Mr D Ajao v Commerzbank AG and Others: 2206071/2019 and 2200216/2020
EMPLOYMENT TRIBUNALS
Case No 2206071/2019, 2200216/2020
Between
Mr D AjaoClaimantCommerzbank AG and OthersRespondent
Before
Employment Judge A M SnelsonDate 19 April 2024
JUDGMENT
BETWEEN Claimant and Respondents Mr Damilare Ajao(1) Commerzbank AG(2) Mr L Vogelmann(3) Ms H Jackson(4) Mr G Booth(5) Ms Y Mehta(6) Q AMENDED CORRECTED JUDGMENT1 OF THE EMPLOYMENT TRIBUNAL SITTING AT: London Central ON: 19-27 October 2021; 28 October, 23 December 2021 (in chambers) BEFORE: Employment Judge A M Snelson MEMBERS: Ms C Ihnatowicz Mr D Clay On hearing Ms S Chan, counsel, on behalf of the Claimant and Ms C McCann, counsel, on behalf of the Respondents, the Tribunal unanimously determines and orders that: (1) The Claimant’s complaints under the Equality Act 2010 are not well- founded. (2) The Claimant’s claim under the Working Time Regulations 1998 for compensation in respect of annual leave entitlement said to have been outstanding on termination of his employment is not well-founded. (3) Accordingly, the proceedings as a whole are dismissed. (4) Any application consequential upon this judgment relating to any restricted reporting order and/or anonymity order made in the proceedings shall be[1]The judgment, sent to the parties on 14 February 2022, was corrected on 27 May 2022 under ET Rules of Procedure 2013, r69 to correct the year of hearings from 2019 to 2021 and amended on 16 April 2024 to substitute the Claimant’s name for ‘Z’, pursuant to the Order of the EAT (Kerr J sitting alone) handed down on 12 February 2024. presented within the period of six weeks commencing on the day on which this judgment is sent to the parties. CORRECTED REASONS2 Introduction[1]The First Respondent (‘the Bank’) is a major international bank with headquarters in Germany which trade in, inter alia, investment banking. It has a substantial City of London presence, located in Gresham St (‘the London office’).[2]The Second Respondent, Mr Lars Vogelmann, was at all material times employed by the Bank at the London office as Head of Operations, Client LifeCycle Management (‘CLM’), a Director-level position.[3]The Third Respondent, Ms Hope Jackson, was at all material times engaged by the Bank at the London office in a contractor capacity as HR Business Partner.[4]The Fourth Respondent, Mr Gary Booth, was at all material times employed by the Bank at the London office as Vice-president, Senior Specialist Projects.[5]The Fifth Respondent, Ms Yogita Mehta, was at all material times employed by the Bank at the London office as COS Workflow Co-ordinator, a Vice-presidentlevel role.[6]The Sixth Respondent, Q, was at all material times employed by the Bank at the London office as a Senior ‘Know Your Client’ (‘KYC’) Reviewer, a Vicepresident-level role.[7]The Claimant is a black British man of Nigerian descent. He was continuously employed by the Bank as a KYC Analyst at the London office from 1 May to 21 November 2019, when his employment was terminated summarily, with payment in lieu of notice.[8]By his claim forms presented on 31 December 2019 and 21 January 2020 the Claimant brought numerous claims under a variety of jurisdictions3. A lengthy, painful and disproportionately costly case management history followed, which we prefer not to attempt to summarise. Suffice it to say that some claims were added by amendment and many were withdrawn. The result was that what remained were complaints under the Equality Act 2010 (‘the 2010 Act’) of sexual harassment, harassment related to sex, direct sex and race discrimination and victimisation and, under the Working Time Regulations 1998 (‘the 1998 Regulations’), a claim for compensation in respect of annual leave entitlement alleged to have been outstanding on termination. All claims were resisted. 2 The reasons sent to the parties on 14 February 2022 are corrected under the ET Rules of Procedure 2013, r69 to delete from para 7, line 1 two commas and a clause consisting of four words and a date, between “Claimant” and “is”. 3 Initially, seven Respondents were named: the claim against the Seventh Respondent, Mr Artur Kowalik, a KYC Reviewer, was withdrawn at the last case management hearing.[9]In the course of case management restricted reporting and anonymity orders were made. The Claimant secured an anonymity order under the Employment Tribunals Rules of Procedure 2013, r50, read with the Sexual Offences (Amendment) Act 1992, based on his assertion that he was the victim of a sexual assault by Q. We note that this protection is stated to be life-long and appears to apply regardless of the findings which the Tribunal makes on his allegations. Q’s protection (she is anonymised under r50 only) applies only until promulgation of our judgment, subject to any application for its extension.[10]Ultimately, the scope of the dispute was agreed between the parties in the form of a list of issues (abbreviated to ‘LOI’ below), which is annexed.[11]The case came before us on 19 October 2021 for final hearing, with eight days allowed (the matter had been listed for 10 days commencing on 15 October but a shortage of judicial resources had made a start before 19 October impossible). Ms Susan Chan, counsel, appeared for the Claimant and Ms Claire McCann, counsel, for the Respondents. We are grateful to both for their helpful contributions.[12]Having read into the case on day one, we heard evidence and argument on liability over days two to seven and then reserved judgment. Our private deliberations occupied day eight and a further day in chambers, on 23 December 2021. The Legal Framework The 2010 Act[13]Direct discrimination is defined by the 2010 Act, s13 in (so far as material) these terms: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. By s23(1) and (2)(a) it is provided that there must be no material difference between the circumstances of the claimant’s case and that of his or her comparator and that (for these purposes) the ‘circumstances’ include the claimant’s and comparator’s abilities.[14]In Nagarajan v London Regional Transport [1999] IRLR 572 Lord Nicholls construed the phrase ‘on racial grounds’ in the Race Relations Act 1976, s1(1)(a), in these words: If racial grounds … had a significant influence on the outcome, discrimination is made out. In line with Onu v Akwiwu [2014] EWCA Civ 279, we proceed on the footing that introduction of the ‘because of’ formulation under the 2010 Act (replacing ‘on racial grounds’, ‘on grounds of age’ etc in the earlier legislation) effected no material change to the law.[15]The 2010 Act defines harassment in s26, the material subsections being the following:(1) A person (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.(2) A also harasses B if – (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if – (a) A … engages in unwanted conduct of a sexual nature …, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B’s rejection of or submission to the conduct, A treats B less favourable than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in sub-section (1)(b), 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.[16]In R (Equal Opportunities Commission) v Secretary of State for Trade & Industry [2007] ICR 1234 HC, it was accepted on behalf of the Secretary of State that the ‘related to’ wording in the legislation then in force (the Sex Discrimination Act 1975) was satisfied if an ‘associative’ connection was shown between the relevant protected characteristic and the conduct under consideration. Burton J, sitting in the High Court, did not question the concession. The EHRC Code of Practice on Employment (2011) deals with the ‘related to’ link at paras 7.9 to 7.11. It states that the words bear a broad meaning and that the conduct under consideration need not be ‘because of’ the protected characteristic.4[17]Despite the ample ‘related to’ formulation, sensible limits on the scope of the harassment protection are set by the other elements of the statutory definition. Two points in particular can be made. First, the conduct must be shown to have been unwanted. Some claims will fail on the Tribunal’s finding that the claimant was a willing participant in the activity complained of or at least indifferent to it.[18]Secondly, the requirement under subsection (4) for the Tribunal to take account of all the circumstances of the case and in particular whether it is reasonable for the conduct to have the stated effect dictates an objective approach 4 To similar effect, see Hartley v Foreign & Commonwealth Office Services UKEAT/0033/15 (HH Judge Richardson and members), paras 23-24. – albeit one which takes account of a subjective factor, the perception of the complainant. Here the Tribunal is equipped with the means of weighing all relevant considerations to achieve a just solution.[19]Central to the objective test is the question of gravity. Statutory protection from harassment is intended to create an important jurisdiction. Successful claims may result in very large awards and produce serious consequences for wrongdoers. Some complaints will inevitably fall short of the standard required. To quote from the judgment of Elias LJ in Land Registry v Grant [2011] ICR 1390 CA (para 47): Furthermore, even if in fact the [conduct] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. The Claimant was no doubt upset … but that is far from attracting the epithets required to constitute harassment. In my view, to describe this incident as the Tribunal did as subjecting the Claimant to a ‘humiliating environment’ … is a distortion of language which brings discrimination law into disrepute. In determining whether actionable harassment has been made out, it may be necessary for the Tribunal to ascertain whether the conduct under challenge was intended to cause offence (ibid, para 13). More generally, the context in which the conduct occurred is likely to be crucial (ibid, para 43).[20]By the 2010 Act, s27 victimisation is defined thus:(1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act – … (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) … making a false allegation … is not a protected act if … the allegation is made … in bad faith.[21]When considering whether a claimant has been subjected to particular treatment ‘because’ he has done a protected act, the Tribunal must focus on “the real reason, the core reason” for the treatment; a ‘but for’ causal test is not appropriate: Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL, para 77 (per Lord Scott of Foscote). On the other hand, the fact of the protected act need not be the sole reason: it is enough if it contributed materially to the outcome (see Nagarajan, cited above).[22]Discrimination is prohibited in the employment field by s39 which, so far as relevant, states: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) – …(c) by dismissing B;(d) by subjecting B to any other detriment.[23]A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment: see Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL.[24]Employees are protected against victimisation and harassment by the 2010 Act, ss39(4) and 40(1) respectively. 25 2010 Act, by s136, provides:(1) This section applies to any proceedings relating to a contravention of this Act.(2) 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.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[26]On the reversal of the burden of proof we have reminded ourselves of the case-law decided under the pre-2010 legislation5, including Igen Ltd v Wong [2005] IRLR 258 CA, Villalba v Merrill Lynch & Co Inc [2006] IRLR 437 EAT, Laing v Manchester City Council [2006] IRLR 748 EAT, Madarassy v Nomura International plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned that it is possible to exaggerate the importance of the burden of proof provisions, observing (judgment, para 32) that they have “nothing to offer” where the Tribunal is in a position to make positive findings on the evidence.6 But if and in so far as it is necessary to have recourse to the burden of proof, we take as our principal guide the straightforward language of s136. Where there are facts capable, absent any other explanation, of supporting an inference of unlawful discrimination, the onus shifts formally to the employer to disprove discrimination. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered.[27]The 2010 Act, s123(1) enacts a jurisdictional limitation period for the presentation of claims in the employment sphere of three months starting with the date of the act or event complained of. The effect of the early conciliation provisions enacted more recently is to extend the period by the time taken up with conciliation. By s123(3)(a) ‘conduct extending over a period’ is to be treated as done at the end of the period. The Tribunal has a discretion under s123(1)(b) to 5 The language of s136 was new but did not change the effect of the burden of proof provisions. 6 See to like effect the judgment of Lord Leggatt JSC in Efobi v Royal Mail Group Ltd [2021] ICR 1263 SC, especially at para 38. substitute for the three-month period such other period as it thinks just and equitable. The 1998 Regulations[28]The effect of reg 14 of the 1998 Regulations is to entitle a worker whose employment ends part-way through a leave year to compensation where the leave entitlement accrued up to termination is greater than the leave taken up to that date. Nothing turns here on the wording of the provision: the parties are divided only on the relevant facts. Oral Evidence and Documents[29]We heard oral evidence from the Claimant and read the supporting statement in the name of his wife. On the Respondents’ side, we heard from Q, Ms Mehta, Mr Booth, Mr Vogelmann and Ms Jackson.[30]Besides the testimony of witnesses we read the documents to which we were referred in the agreed bundle of documents, which ran to over 1,400 pages, and the supplemental bundle produced by the Claimant, which contained over 170 pages.[31]We also had the benefit of two chronologies, two cast lists and the written closing submissions of both counsel. The Primary Facts[32]The evidence was extensive. We have had regard to all of it. Some of it could not possibly assist us to decide the claims before us. We have reminded ourselves that it is not our function to recite an exhaustive history or to resolve every evidential conflict. The facts which it is necessary to record, either agreed or proved on a balance of probabilities, we find as follows. Background[33]As is well-known, the financial services sector, in which the Bank operates in tightly regulated. Its statutory regulator is the Financial Conduct Authority.[34]The Bank’s CLM Department had, at the relevant time, a headcount of 83, a little under 10% of the Bank’s total London staff. It was led by Mr Vogelmann. His deputy was Mr Booth.[35]A core responsibility of the CLM Department was to conduct ‘Know Your Client’ (‘KYC’) checks. These formed a key part of the Bank’s anti-moneylaundering processes.[36]The Claimant was employed as a KYC Analyst. His primary function was to carry out KYC checks. Analysts’ checks were subject in every case to scrutiny and review by KYC Reviewers. Their work was also liable to be reviewed separately in the course of quality assurance and/or compliance checks and/or as part of internal and/or external audits. Accordingly, it was of fundamental importance that KYC Analysts should be able and willing to accept and learn from constructive feedback.[37]Having conducted the relevant KYC checks, Analysts would present their cases for review. Reviewers (allocated by the responsible team leader) would score the work, awarding outcomes according to set criteria and adding bespoke additional feedback as appropriate. Scores were expressed as percentages, which translated into results. The desired result was a ‘Pass’. On the negative side, the Reviewer’s options included ‘Fail’, ‘Risk Fail’, ‘Procedure Fail’ and ‘Admin Error’ (the last two being much less serious than the first two).[38]The temporal context of this case is of some importance. The Claimant’s employment fell within a period of acute pressure for the Bank as it was in what was, perhaps euphemistically, referred to as a ‘remediation’ process following critical scrutiny by the regulator.[39]We heard unchallenged evidence, which we accept, concerning the diversity of the Bank’s workforce. Ms Mehta told us that the CLM Department in London included 12 nationalities and 19 ethnicities.[40]Ms Mehta was involved in, and supportive of, the Claimant’s appointment.[41]Newly recruited Analysts were required to pass what was known as an accreditation process, which depended on their work achieving an average score of 90%. The Claimant was denied accreditation at the first attempt and his challenge to that decision was considered and rejected by Ms Mehta. He was one of four Analysts recruited at about the same time who were initially unsuccessful and, of those four, the highest-scoring. He passed his accreditation at the second attempt in late August 2019, thanks to a score of 90% awarded by Ms Lola Ogunfowora, a woman of Nigerian origin then working on an agency basis as a Reviewer (see further below).[42]The Claimant’s employment was subject to a six-month probationary period. On 1 November 2019 he was told that he had passed his probation.[43]The Claimant alleged that on one occasion Mr Vogelmann, who is German, made a racial comment about Germans. What was put to Mr Vogelmann, and he accepted, was the he once remarked in the office that the (London) business would benefit from having more German speakers. There were at the time only two in the CLM Department.[44]At one stage the Claimant’s pleaded case included complaints of sex-based harassment based on remarks by Ms Ogunfowora to the effect that:(a) Women were “taking over the world”;(b) She would not be subservient to any man and would challenge any man who treated her as inferior; and(c) It was the Claimant’s choice to get married just as it was his choice to work for the First Respondents. At a case management hearing EJ Brown expressed the view that such comments (if proved) seemed to be about the empowerment of women and that harassment claims based on them had little reasonable prospect of success. Accordingly, she made deposit orders in relation to each. The deposits were not paid and the claims were automatically struck out. Sexual harassment by Q (LOI, paras 1-3)[45]We are satisfied that the Claimant’s case under this head is simply false. We accept the evidence of Q that she once commented to him in the office that she could see his vest through his shirt and that it was an interesting look (or words to that effect). She told us that the shirt was very thin and the vest seemed to be of a material resembling fishnet tights. The remark was not made in a suggestive manner. Nor did it come across as a criticism. Nor did it cause any apparent offence to the Claimant or elicit a negative reaction from him. Nor was it repeated. And it was entirely in keeping with the friendly, good-natured, casual exchanges (not infrequently on the subject of dress and fashion) which were commonplace between the two.[46]We greatly regret to say that in our judgment the balance of the Claimant’s case on sexual harassment, which included an exceedingly serious allegation of sexual assault, is, in its entirety, pure invention. The acts and events on which he relies did not happen. There was no treatment of him by Q which could conceivably have been seen as amounting to harassment of any kind. Harassment by Q (s26(3)) (LOI, para 9c)[47]This claim alleged ‘less favourable treatment’ because the Claimant rejected the alleged sexual harassment of him by Q. Since there was, on our finding, no such harassment and no such rejection, it would be sufficient to leave the matter there. But for completeness we will add some brief further findings.[48]The pleaded treatment was the act of marking the Claimant down as a ‘Risk Fail’. Q did indeed, on reviewing the case of ‘Client B’, an investment fund manager, which the Claimant had handled as Analyst, note a ‘Risk Fail’. She also recorded some ‘Procedure Fails’ and ‘Admin Errors’. In her feedback sent to him on 24 October 2019 she explained that the ‘Risk Fail’ was because an ‘AML (antimoney laundering) letter’ had not been obtained. The Respondents’ written policy in force at the time stated that an AML questionnaire or letter was required as part of the information to be collected on any investment fund manager. The Claimant immediately queried the feedback, drawing attention to very recent advice from an authoritative source given to another Analyst explaining that an AML letter could be dispensed with in a case where the only financial products were exchange traded funds (‘ETFs’). The advice went on to say that in such a case the Analyst needed to note in the Relationship Profile Summary (‘RPS’), a due diligence document which the Reviewer would scrutinise, the reason why the AML letter was not required.[49]The same day, conscious that Client B dealt in ETFs and noting the recent advice from a reliable source, Q sent an email to the Claimant agreeing that the AML letter could be dispensed with but asking him to note on the RPS the reason why. As she explained to us, and we accept, she could not approve the case until this step was taken. Unfortunately, five days passed before the Claimant complied with her simple request, whereupon she duly approved the case. She also updated the Assessment Spreadsheet to show the outcome, namely a ‘Pass’.[50]Although it did not feature in his pleaded case or the LOI, the Claimant’s complaint as developed before us seemed to shift to new ground, focusing on the Q’s alleged failure to remove the ‘Risk Fail’ from the Reviewer Checklist document. Since the point was explored in evidence, we add the following findings for what they are worth. On 14 November 2019 the Claimant sent an email to Q asking her to remove the ‘Risk Fail’ from the Checklist document. She was, as he knew, leaving the Respondents the following day. She replied promptly, pointing out, rightly, that the Reviewer Checklist would not be taken into account in assessing his work because the Assessment Spreadsheet (showing the ‘Pass’) contained the definitive record of all completed cases. There were then some further exchanges, in which Ms Mehta was involved. It seems that, while the Reviewer Checklist could not have been amended retrospectively, it would have been technically possible for a second, revised Reviewer Checklist to be prepared. That could then have been uploaded to the system by means of a particular software programme. These steps were not taken. Q did not have access to that programme and had never had cause to use it. She was also very busy clearing her desk and arranging to hand over her work to her successor. We find as a fact that the paperwork in relation to Client B, in its final form, contained no conceivable risk of causing prejudice of any kind to the Claimant. Direct sex discrimination by Ms Mehta (LOI, paras 4-5)[51]The Claimant makes two claims under this head: first, that Ms Mehta allocated the Claimant’s files to Ms Ogunfowora after promising him that she would not do so; second, that she failed to investigate a grievance raised by him against Ms Ogunfowora. We will deal with them in turn.[52]The first complaint is based on an assertion which is not made out on the evidence. We are satisfied that Ms Mehta did not make the promise on which the Claimant relies. We find that, on a date which we are not able to identify with precision, he did ask her to assign his cases to Reviewers other than Ms Ogunfowora and she replied that she would do her best to oblige him. But, as the responsible manager, she could not, and did not, guarantee that his wish would be honoured since allocations would necessarily depend on the volume of work and availability of Reviewers, which fluctuated from time to time. We think it much more likely than not that the conversation happened in the fourth quarter, or at least well into the third quarter, of 2019. Ms Ogunfowora reviewed three cases analysed by the Claimant and passed them all. The last was assigned to her in early November 2019. It was the Claimant who sent it to her for review, in circumstances of some urgency. This may have been before or after his conversation with Ms Mehta to which we have just referred.[53]For the purposes of the first complaint, the Claimant compares himself with a female colleague, Divya Bhaskaran. The comparison fails because we accept Ms Mehta’s evidence that, contrary to the Claimant’s assertion, she was never asked by Ms Bhaskaran not to assign her cases to a particular Reviewer, Mr Osa Osagie. For what it is worth, we also accept the Respondents’ evidence that none of Ms Bhaskaran’s cases was ever assigned to Mr Osagie.[54]As to the second complaint, we find as a fact that no formal grievance was raised. The Claimant did express concern about Ms Ogunfowora’s treatment of him and others in an email sent on the afternoon of 20 November 2019, the day before his dismissal. That was his first written expression of concern about her. In that message he made no allegation of discrimination. Nor did he say that he wished his remarks to be treated as a formal grievance. He asked only to be advised as to what steps had been taken to prevent recurrence of the treatment complained of. Harassment related to sex by Ms Ogunfowora (LOI, paras 9a and 9b)[55]On 14 November 2019 a conversation took place at the Claimant’s desk involving the Claimant, Ms Mehta and Ms Ogunfowora. The context was that Ms Ogunfowora had given the Claimant some feedback concerning a piece of work he had done on the case of Client F and asked him re-do it and he was refusing to do so, seemingly because he did not accept the feedback. Ms Mehta was present because she was anxious to see the problem solved and the task duly completed. Ms Ogunfowora stated that the Claimant was not following her feedback. She exhibited a degree of frustration but was not hostile or impolite. The Claimant’s allegation (made for the first time in particulars filed on 15 June 2020) that she “yelled” at him and referred to him as “this boy” is, we find, false.[56]A further uncomfortable conversation occurred between the Claimant, Ms Mehta and Ms Ogunfowora on 18 November 2019, also at the Claimant’s desk. Again, Ms Ogunfowora sought to explain a work-related matter to the Claimant, to which he was resistant. At one point Ms Ogunfowora used his mouse in order to demonstrate something on his monitor. The Claimant became bad-tempered and told Ms Mehta that he did not want “this girl” (he was referring to Ms Ogunfowora) to mark his cases. He used the words “this girl” at least twice. Ms Ogunfowora raised a formal complaint the following day, referring in particular to his having called her “this girl” and more generally to his repeated rejection of her feedback. The Claimant’s allegation (also made for the first time in particulars filed on 15 June 2020) that she treated him in a demeaning way and called him “this boy” is also, we find, false. Direct race discrimination excluding dismissal (LOI, para 8)[57]The only complaint under this head was that based on the alleged failure to investigate the Claimant’s grievance against Mr Artur Kowalik. By the end of the hearing before us, the Claimant’s case was that he had sent a written formulation of that grievance (which he called a ‘report’) to Mr Booth by email very soon after 16:54 hrs on 20 November 2019, the day before his dismissal. We find as a fact that no such email was sent and no such ‘report’ was delivered. Direct sex and race discrimination, victimisation: dismissal (LOI, paras 6, 7, 11, 12)[58]The narrative which follows seeks to summarise the dismissal and the main events which led up to it. It includes some duplication of findings already made under other headings.[59]We have mentioned that the Claimant did not pass his accreditation at the first attempt. He complained about that to Ms Mehta and they met to discuss the matter on 7 August 2019 but she did not accept his criticisms and the Reviewers’ marks were unchanged. He also pursued complaints of religion or belief discrimination in these proceedings against the two Muslim Reviewers who had awarded those marks, but those claims were struck out at an interlocutory stage.[60]The challenge to the accreditation outcome was part of a pattern of behaviour that the Claimant exhibited throughout his employment at the Bank. He appeared constitutionally resistant to constructive criticism and feedback and reacted to it in an increasingly direct and confrontational way as time passed.[61]On 4 November 2019, the Claimant had a brief discussion with Ms Mehta as to whether a particular case (that of Client E) could count as an ‘approval’ for the purposes of his monthly target. She explained, for reasons which he appeared to accept at the time, that it could not. He then complained that she did not appreciate his hard work, to which she replied that she did and that she valued his commitment. She went on to say that he was “lucky” to have passed his probation. He immediately questioned the remark, and she apologised and explained that she meant only that he was in a happier situation than others who were yet to pass their probation. He appeared to accept the explanation and she left the conversation thinking that everything had been resolved.[62]Ms Mehta accepted before us that her use of the word “lucky” had been unfortunate.[63]The Claimant was on sick leave on 5 and 6 November 2019. Asked by Ms Mehta what was wrong he stated (by a text of 6 November) that he had food poisoning and back pain but his main problem was “low mood” and feeling “worthless” as a result of her remark about him being “lucky” to have passed his probation.[64]Following some consecutive days of pre-booked annual leave, the Claimant returned to work on 12 November.[65]On the same day at 09.30 Ms Mehta and the Claimant had a scheduled ‘catch-up’ meeting. She gave notice that the Reviewer of Case E (discussed on 4 November) would be present. He objected but the Reviewer attended and the meeting was uneventful.[66]Later on 12 November Mr Kowalik showed Ms Mehta an email sent to him by the Claimant at 09.29 that day. The email concerned the relationship between the Claimant and Mr Kowalik and in particular an incident which had happened on 11 October 2019, more than a month before. This was the first Ms Mehta knew of any difficulty between the two. Mr Kowalik explained that he had spoken to the Claimant on 11 October and told him that he did not appreciate his jokes and felt bullied by him. He added that he had made a warning remark to the effect that he would (or might) “crush” him but had apologised and the episode had ended with the two shaking hands and agreeing to move on.[67]A little later on 12 November 2019 Ms Mehta had an unscheduled meeting with the Claimant (‘the first unscheduled meeting’). Mr Kowalik was present initially but left, it seems, at an early stage. The Claimant covertly recorded the meeting, without the permission of the other participants. Ms Mehta raised the matter of Mr Kowalik. He asserted that he felt threatened by the “crush” remark. He said something obscure about a previous employer and a suggested link between the earlier employment and his difficulty with Mr Kowalik. He did not claim to have raised an allegation of discrimination against his previous employer or imply that he had done so. He said that he intended to take his concern about Mr Kowalik to HR.[68]A further meeting (‘the second unscheduled meeting’) took place between Ms Mehta and the Claimant on 12 November 2019. Again, the Claimant recorded it covertly and without permission. The Claimant wanted to know about the grievance procedure and Ms Mehta reminded him that it was contained in the staff handbook which had been provided to him with his contract. Again, the Claimant made an opaque reference to his previous employer. It emerged that he had not known Mr Kowalik when with that employer. Ms Mehta attempted to explore the background history but, beyond stating that he had left his previous employer of his own accord, the Claimant declined to provide any more information. Ms Mehta said that she intended to involve Mr Booth. Again, the Claimant did not say or imply that he had raised an allegation of discrimination against his previous employer.[69]More generally, and for the avoidance of doubt, we accept Ms Mehta’s evidence that she was not aware of the Claimant having made an allegation of discrimination against his previous employer (if he did) until after these proceedings were instituted.[70]The Claimant asserted before us that there was a third unscheduled meeting between him and Ms Mehta, which he had not recorded, in which he had told her that he had raised an allegation of race discrimination against his previous employer. We reject that assertion as false. There was no such meeting and no such conversation.[71]On 13 November 2019 Mr Booth and Ms Mehta held a meeting with Mr Kowalik. Mr Kowalik explained that he had felt bullied by the Claimant and that he had responded inappropriately (a reference to the “crush” remark). He was asked to set out a brief history in writing, which he did the same day. In it he gave examples of the Claimant’s jocular remarks and personal comments to which he took exception, described the confrontation (on 11 October) and its apparent resolution with a shaking of hands and said that there had been no communication since apart from one occasion when the Claimant had challenged his feedback on a particular case in a “rude and aggressive” way.[72]The same day, Mr Booth and Ms Mehta had a meeting with the Claimant. Again, the Claimant recorded the meeting covertly and without permission. The Claimant stressed the “crush” comment (he said that the word had been used three times) and complained that the apparent resolution (on 11 October) had been extracted from him by some form of duress. He seemed to deny making offensive or personal comments to Mr Kowalik. More generally, he expressed the wish to transfer to another team. Mr Booth remarked that in his view Mr Kowalik could have conducted himself “much, much better” but also reminded the Claimant of the need to interact with colleagues in a careful and considerate way. He did not rule out a transfer but stressed that his priority was to resolve the difficulty without one. It was agreed that the Claimant would, like Mr Kowalik, set out his account in writing.[73]Later on 13 November 2019 a meeting was held between Mr Booth, Ms Mehta, Mr Kowalik and the Claimant. Mr Booth said that he expected Mr Kowalik and the Claimant to treat each other in a professional way and respect each other’s boundaries.[74]On 14 November 2019 the Claimant sent an email to Mr Booth asking for time to prepare his written account discussed the previous day. Mr Booth agreed and added that the contributions on both sides would not be shared directly.[75]On 18 November 2018 a meeting took place between the Claimant, Mr Vogelmann, Mr Booth and Ms Mehta. The Claimant again covertly recorded without asking for the permission of the other participants. Very late in the Tribunal proceedings, he produced a partial recording of less than three minutes’ duration. He told us that the recording had been accidentally halted by some physical contact with the touch screen (the mobile phone having been in his pocket). He also told us that the timing of the disclosure of the (partial) recording was attributable to(a) his initial view that the evidence was “irrelevant” and(b) his recent discovery that he was under an ongoing duty of disclosure, even where the deadline for exchange of documents had passed. He rejected Ms McCann’s suggestion that he had suppressed part of the recording because it contained material which was unhelpful to his case.[76]At the start of the meeting the Claimant asked for Ms Mehta to leave. She did so. In the discussion that followed (in which the Claimant returned to the subject of his alleged sense of grievance over her comment about him being “lucky” to have passed his probation) Mr Vogelmann said that, in light of his request of 13 November, he could move to the Financial Institutions (‘FI’) team. The Claimant accepted the proposal with some enthusiasm. Mr Vogelmann emphasised that the FI team worked under a lot of pressure and that the move was conditional upon him improving his behaviour and getting his head down. He did not beg him not to pursue a grievance against Mr Kowalik but conveyed the hope and expectation that the move to another team would serve as an informal resolution enabling all concerned to draw a line under recent events and move on. The Claimant gave no sign of seeing matters differently. The meeting ended with handshakes and Mr Vogelmann and Mr Booth left believing that the problem was solved.[77]Later on 18 November 2019 the Claimant entered into the public spat with Ms Ogunfowora (his second bad-tempered exchange with her in four days, both of which were witnessed at close hand by Ms Mehta), rejecting her feedback and calling her “this girl”. Fuller findings on both episodes are recorded above.[78]A further development was the receipt by Ms Mehta on 18 November of an email from Mr Zoltan Batyi, Deputy Head of the International Desk, which strongly criticised the Claimant’s analysis work on a particular case. In particular, Mr Batyi found fault with his failure to register and act upon feedback already given to him and his needless escalation of the case to a manager in Frankfurt (which required the personal intervention of Ms Mehta and another colleague in order to get the matter completed and approved).[79]On 19 November 2019 the Claimant spoke with Ms Mehta after the daily morning team meeting, informing her of his intention to “blow up” the incident of the day before with Ms Ogunfowora. We reject as false the Claimant’s claims (LOI, para 11(e)) that he also told Ms Mehta that he was being discriminated against by Ms Ogunfowora on the ground of his sex, that he cited a number of alleged instances of her mistreatment of other male colleagues and that he said in terms that he intended to raise a formal grievance. It was not until well into Ms McCann’s cross-examination that the Claimant stated for the first time that, covertly and without Ms Mehta’s permission, he had recorded this conversation. We directed that it be disclosed. On the morning of day four he produced what he said was the recording. Some muffled, indistinct noises could be heard but nothing more. It contained no evidence as to when, or in whose presence, it was made. The Claimant said that the recording had failed because his mobile phone had been “on mute”. He offered no explanation for his failure to give disclosure at the proper time.[80]Ms Ogunfowora sent an email to Ms Mehta on the morning of 19 November 2019 raising an “official formal complaint” about the Claimant. She asserted that he reacted defensively to her comments when reviewing his cases and only read her feedback “to respond, instead of reading to understand”. This had resulted in a “series of altercations” and the “last straw” had been the incident on the previous day, when he had said (she quoted directly): “I don’t want this girl to mark my cases, I don’t want this girl touching my mouse, tell this girl not to talk to me.” We find no evidential basis for the Claimant’s suggestion that Ms Mehta solicited this complaint.[81]Later the same day Ms Mehta copied Ms Ogunfowora’s formal complaint to Mr Vogelmann and Mr Booth for their information.[82]Also on the morning of 19 November Ms Mehta noted that the Claimant was talking to team members away from their work stations and distracting them from their duties.[83]The Claimant further claims (LOI, para 11(a) and (b) and (g)) that he had a meeting with Mr Booth on 19 November, in which he made allegations of discrimination and harassment by Q, Ms Ogunfowora and others and mentioned a grievance and claim against his previous employer. We are satisfied that those claims are false: there was no such meeting and no such conversation.[84]The Claimant left work at lunchtime on 19 November, saying that he was unwell.[85]The same day, Mr Vogelmann set up a meeting for the following day, 20 November, to consider the Claimant’s conduct, to be attended by Mr Booth and Ms Jackson. Material summarising the Claimant’s recent behaviour, collated by Ms Mehta, was circulated to the invitees. By this point, Mr Vogelmann was minded to dismiss him.[86]The meeting just referred to duly took place on the morning of 20 November. In the course of the discussion, Mr Vogelmann and Mr Booth took the decision to terminate the Claimant’s employment. Their shared view7 was that his performance was adequate but his attitude and behaviour were unacceptable. He was unable to accept feedback. He was disruptive and divisive. And on recent evidence his conduct was getting worse. It was agreed that the dismissal would be effected that day and Ms Jackson was asked to prepare an appropriate letter in draft.[87]On the afternoon of 20 November the Claimant sent an email to Ms Mehta raising again the incident of 18 November between him and Ms Ogunfowora. It complained that she had acted inappropriately but made no allegation of any breach of the 2010 Act.[88]Also on 20 November the Claimant sent an email to Mr Booth referring to the meeting of the day before and stating that he was happy to “go with” what had been agreed at the meeting of 18 November. He added that preparation of his written account of the episode with Mr Kowalik was still a “work in progress.”[89]The Claimant claimed before us that, “soon after 16:54” on 20 November 2019, he sent an email to Mr Booth “detailing [his] interactions with Mr Kowalik”. We are satisfied that he sent no such email then or at any other time.[90]In the event, the dismissal meeting took place on 21 November 2019, not 20 November as originally planned. It was held in the meeting room on the lower ground floor at about 4.00 p.m. Those present were the Claimant, Mr Vogelmann, Mr Booth and Ms Jackson. The Claimant was not told in advance what was to be discussed. The meeting was brief. Mr Vogelmann told the Claimant at once that he was being dismissed and asked Mr Booth to explain the reasons. He started to do so but the Claimant rapidly became argumentative and disruptive. He stopped Mr Booth from speaking and challenged the Respondents’ legal right to dismiss him. He took out his mobile phone and demanded the email addresses of those present. He asked if the Respondents were recording the meeting and was told that they were not. He also claimed that he had presented a formal complaint to Mr Booth alleging discrimination and harassment (including sexual harassment) and that he had failed to deal with it. Mr Booth stated, rightly, that this assertion was untrue: no such complaint had been presented. Ms Jackson handed the letter of dismissal to the Claimant and said that he could collect his personal belongings before leaving. The meeting broke up very soon afterwards. Mr Vogelmann and Mr 7 The decision was jointly taken. Strictly, Mr Vogelmann alone had authority to dismiss. Booth followed him to his desk where, despite instructions to the contrary, he switched on his computer and sent at least one email to his personal email address. He became increasingly agitated and eventually it was necessary for security staff to be called. Having collected his personal effects he was then escorted from the building.[91]The Claimant covertly recorded the dismissal meeting without the permission of the other participants. The recording which he disclosed ended partway through the meeting, before Mr Booth’s challenge to his claim to have presented an unanswered complaint of discrimination and harassment. He told us in evidence that the recording mechanism had somehow been accidentally cut off.[92]The Claimant relied on an email on his personal email account which he sent to Mr Booth, copied to Mr Vogelmann, timed at 16:09 on 21 November, complaining (with no particulars whatever) of racial discrimination by Ms Mehta, sexual harassment by Q and “bullying and harassment” (no perpetrator was named). His evidence that this message was composed and sent just before the meeting cannot be reconciled with turnstile data produced by the Respondents that he was making his way back to his desk (after the meeting) by 16:11.[93]Having returned to his desk, the Claimant sent an email to Mr Booth from his mobile phone timed at 16:21 which read: “For mal (sic) complaint raise race discrimination”.[94]We heard evidence and speculative submissions about the precise timing of the generation and delivery of the two emails just mentioned. There was some suggestion that a poor internet connection may have resulted in an unusual gap between the times when they were sent and received. We prefer not to speculate. It is sufficient to record that we are entirely satisfied that both emails were generated after the Claimant had been told at the meeting of 21 November that he was being dismissed. The claim under the 1998 Regulations[95]The Claimant took five days’ leave plus the three bank holidays which fell between 1 May and 21 November 2019. He gave oral evidence to the effect that the three days of annual leave on 7, 8 and 11 November were, by agreement, converted to sick leave. That evidence, we find, was false. Secondary Findings and Conclusions Rationale for primary findings[96]This has been an exceptionally troubling case to hear. A very large part of the Claimant’s case has been met with the stark denial that the acts on which he bases his claims ever happened. On many other points, he is accused of distorting or exaggerating events to the extent that his account bears no real relation to reality. His complaints are, for the most part, of a kind which leaves no possible room for a finding that they may rest on an error or a misunderstanding. In the main, we are compelled to decide between completely irreconcilable accounts of events, one of which must be put forward by a witness (or more than one) who is knowingly and deliberately giving sworn evidence which is wholly untrue. The implications of this are not lost on us. On the Respondents’ case, the Claimant has simply made up allegations and has even manufactured a document and tampered with audio recordings in order to substantiate claims and secure legal remedies upon them. We agree with Ms Chan that the Tribunal must reflect with extreme care before making findings of such serious wrongdoing against anyone, and particularly someone who makes his living in financial services. Having done so anxiously and at length, we have reluctantly been driven to the conclusion that the Respondents are right. In our view, the Claimant has shown himself to be a witness contemptuous of his duty to tell the truth and unworthy of belief. Salient among our numerous reasons are the following.[97]In the first place, the Claimant’s account of events was in numerous instances inherently implausible. One striking example was his claim in his oral evidence that, immediately after being subjected by Q to an act of sexual harassment, he stepped into a lift with her. His evidence that he was willing to share a lift with her (challenged in fact by Q, who told us that she never used the lift) severely undermined his own case on the allegation. Another implausible feature of his case related to the secret recordings. He showed himself most adept as using his mobile phone to record conversations but claimed that:(a) he had been unable to make any recording of the (disputed) meeting with Mr Booth on 19 November 2019,(b) the recording of the meeting with Mr Vogelmann and Mr Booth on 18 November had been curtailed by accidental contact with the touch screen,(c) the alleged recording of his conversation with Ms Mehta on 19 November had failed because the phone was “on mute” and (c) that the recording of the dismissal meeting on 21 November “stopped” of its own accord owing to some unexplained malfunction just before the point at which (as we have found) Mr Booth pointed out the falsity of the Claimant’s claims to have raised prior complaints of discrimination and harassment. In our view, his evidence on these points was not credible. It was false and entirely tactical, being designed to improve his case mainly by explaining the absence of material which he knew to be harmful to it.[98]Second, we have had regard to the timing of the Claimant’s allegations. (We are of course mindful that the fact that a complaint is not made at once may not call into question its veracity. There are often good reasons why workers may hesitate before raising concerns. But the evidence shows overwhelmingly that the Claimant was not one who was reluctant to complain. Quite the reverse.) Two examples will suffice. First and most strikingly, there is the fact that he did not complain about the alleged sexual harassment by Q, including an exceedingly serious criminal act, until 21 November 2019, after he had been dismissed. The pleaded explanation, that he did not want to cause “further upset” because Q had recently lost her mother and because he feared that reporting her conduct might result in retaliatory action on any future case reviewed by her, is not plausible. The latter point, which could not be reconciled with his fearless routine challenges to feedback by other Reviewers, was subsequently quietly dropped. The former was made even more implausible by later particulars in which he claimed that “in or about October 2019”, after the sexual harassment and sexual assault, he was even willing to accept Q’s invitations to join her for lunch because of his sympathy for her loss. Second, it is noteworthy that it was not until he filed further particulars of his case in June 2020 that the Claimant first alleged that Ms Ogunfowora had referred to him as “this boy” on 14 and 18 November 2019 and that he had responded (apparently on 18 November only) by referring to her as “this girl” to draw attention to her prior use of inappropriate language towards him. Again, we consider that this was a late tactical adjustment designed to counter the inconvenient fact that she had raised an immediate, and truthful, complaint about his gratuitous and offensive reference to her as “this girl” and that her complaint would be substantiated by eye witnesses.[99]Third, we have considered the internal consistency of the Claimant’s behaviour and evidence. Again, telling instances can be found in connection with the allegations against Q. In particular, there were many and considerable differences between the accounts of the various alleged events given in the Claimant’s claim form, further particulars, witness statement and oral evidence. These inconsistencies extended to the dates on which they were supposed to have happened. To give one example, the date of the alleged sexual assault was variously given as “exactly two months ago” (in the post-dismissal email of 21 November 2019), 11 October, “the third week of October” and finally, 18 October.[100]Fourth, we have had regard to contextual facts which appear inconsistent with the Claimant’s allegations. Among others, notable examples appeared to point to a relaxed, friendly work relationship between the Claimant and Q between the alleged sexual assault in October 2019 and her leaving less than a month later. So, for example, she quoted in unchallenged evidence the warm message which he had written in her leaving card. We also heard evidence about the fact, which the Claimant was not in a position to deny, that, on 15 November 2019 (less than a month after the alleged sexual assault by Q), he invited himself out to lunch with her and another colleague. Self-evidently, this seemed to further undermine the core allegation against Q. Sensing the danger, he then created more credibility problems for himself by weaving a fantastic tale about his having brought a Nigerian dish to work on his birthday (which was in August and happened to fall on a Sunday) and Q wishing to taste the dish and his having invited the entire team to a Thai restaurant. (In fact, the lunch, which was attended only by Q, the Claimant and the other colleague, was held at a Vietnamese restaurant.) This ludicrous account did not assist him. It only served to make the Respondents’ case for them that he was a witness who saw the preparation of evidence as a means of presenting a narrative calculated to further his interests, entirely without regard to whether it was true or even bore any relation to the truth.[101]Fifth, we have considered the extent to which the Claimant’s case was contradicted or called into question by contemporary records, or the absence of such records. One illustration is his evidence concerning the email which he claimed to have sent to Mr Booth on 20 November 2019. This alleged email has never been produced. The Respondents say that it never existed. It was not relied on as a protected act but as material “background”, evidencing his intention to present a formal grievance against Mr Kowalik. Mr Booth produced a screen shot demonstrating that the Claimant has sent only two emails to him on 20 November, timed at 12:24 and 14:46. Undeterred by this inconvenient evidence, the Claimant did not hesitate to denounce the screenshot as a fabrication. In his witness statement (para 144) he said that he had sent the email to Mr Booth “at 17:10”. This was problematic for him because the Respondents produced turnstile records which showed that he had left the building at 16:57. Also in the bundle was an email from Mr Booth to him timed at 16:54 the same day, which did not acknowledge the message on which he relied. This left the Claimant in the hopeless position of being forced to contend that, between “after 16:54” and 16:57 he had written an email to Mr Booth detailing his complaints about Mr Kowalik, closed down his computer and left the building. Equally striking is the absence of any evidence to substantiate or at least support the Claimant’s evidence about the (phantom) meetings with Ms Mehta on 12 November and Mr Booth on 19 November.[102]Sixth, we have borne in mind the Claimant’s late and suspicious disclosure of documentary evidence. We have already referred to his production of the (phantom) recording of the meeting of 19 November 2019. Another, more striking, instance was his revelation at a case management hearing before EJ Brown on 9 September 2021 that he held a ‘work diary’ containing notes of relevant meetings. The judge remarked that it was “outrageous” that this material had not been disclosed before. We do not feel able to place any confidence in the entries in the ‘work diary’. The Claimant put forward as informal corroboration a note in it which he claimed to have written on the evening of 18 November, listing as an aidememoire allegations of gender-based harassment on the part of Ms Ogunfowora which he planned to raise with Ms Mehta on the following day, 19 November.8 The note is curious for two reasons. First, it is not in its natural place, appearing before what purports to be a note made earlier on 18 November concerning the meeting between the Claimant, Mr Vogelmann and Mr Booth. Second, it seems to prompt the Claimant to ask Ms Mehta how misconduct allegations had been dealt with “per HR advice”. An arrow from “HR” points to a name, “Anne-Marie”. Ms McCann drew attention to an obvious difficulty with this entry, namely that it appears to conflict with the Claimant’s evidence before us that he telephoned Ms Anne-Marie Burgess of HR on the morning of 19 November and, having told her that he had been complaining to Ms Mehta about Ms Ogunfowora for six months without success, was advised to email Ms Mehta to ask what steps she had taken to forestall the treatment which had caused him to make these complaints. Asked how his note could refer to advice not given until the day after it (the note) was written, the Claimant told us that his reference was to prior telephone advice which he had received from Ms Burgess. But that was not, to our minds, a remotely convincing answer. If he had received advice from Ms Burgess which was fresh in his mind at the time when he wrote the note, what possible reason could he have to contact her the very next day to ask for the selfsame advice? We heard nothing from the Claimant to unlock this puzzle. Nor is there anything in his witness statement to suggest that his (alleged) conversation with Ms Burgess of 19 November involved retreading familiar ground. Rather, it reads as though (on his own case) he was telling her his story for the first time. Another factor causing us to disbelieve the Claimant’s evidence in relation to the ‘work diary’ was the complete absence of any reference to it in either claim form or in the copious particulars of his case or in the voluminous correspondence. These sources can be mined for numerous references to documentary evidence in his possession which, the reader was promised, would substantiate this or that allegation, but nowhere does the precious 8 Of course, it could not, as a matter of law, stand a true corroboration: Ms Chan rightly did not attempt to argue that it could. resource of the ‘work diary’ get a single mention. Finally, the ‘work diary’ is notable for what it does not contain. If, as he claimed, it was his standard practice to note in it key meetings and communications, why does it contain no reference to many of the controversial events which we have explored? With regret we conclude, on a less than marginal balance of probabilities, that the ‘work diary’ evidence was, in material part, manufactured in the course of these proceedings in an effort to bolster the claims9 and that the Claimant chose to take this disgraceful course because he recognised that, without improvement, the original would not advance his case in the slightest degree.[103]We have not had recourse to the burden of proof provisions. We have had the evidence carefully explored and tested before us and the advocates have fully equipped us with the means to make findings and reach conclusions. Sexual harassment by Q (LOI, paras 1-3)[104]Our primary findings dispose of the entire case on sexual harassment. There was none. The Claimant’s case here is pure invention. Harassment by Q (s26(3)) (LOI, para 9c)[105]This allegation of harassment against Q also fails comprehensively on our primary findings. The requisite background facts (a sexual advance, or any unwanted conduct of a sexual nature, by Q, rejected by the Claimant) never happened. It follows that the treatment complained of (marking his work as a ‘Risk Fail’) was not ‘because of’ events within the protection of the 2010 Act, s26(3). Moreover (for what more it is worth), that treatment was rationally and plausibly explained: Q followed the written policy, which stated that an AML letter was required, but reconsidered when the recent advice was drawn to her attention. Direct sex discrimination by Ms Mehta (LOI, paras 4-5)[106]These claims are also defeated on the facts. As to the first (LOI, para 4), there was no detrimental treatment because Ms Mehta never promised the Claimant that she would not assign any case of his to Ms Ogunfowora and in any event he was not disadvantaged by the assignment of three of his cases to her (the last, at his request). Nor did the assignment of those three have anything whatsoever to do with the Claimant’s sex. There is simply nothing before us to suggest that it did. The circumstances of the comparator cited by the Claimant (Ms Bhaskaran) were, as we record in our primary findings, entirely different.[107]The second complaint (LOI, para 5) also fails. There was no grievance to investigate. The Claimant did raise concerns on 20 November 2019 about Ms Ogunfowora’s treatment of him and others but did not allege discrimination in any form. He only asked what steps he needed to take to prevent any recurrence of the treatment complained of. Had his employment continued, it might have been a detriment to deny him a response within a reasonable period, but given the 9 The ‘work diary’ also purported to substantiate the alleged conversation between the Claimant and Mr Booth (not merely the Claimant’s plans to hold such a conversation) on 19 November 2019. That conversation, as we have recorded, never happened. decision to dismiss taken that day and implemented the next, the absence of a response was plainly no detriment. In any event, the fact that no action was taken in response to the email of 20 November was nothing whatsoever to do with the Claimant’s sex. Again, there is no possible reason to suppose that it was. A female employee in like circumstances, whose superiors had decided to dismiss her as a divisive and disruptive figure would plainly have been treated exactly as he was. The Claimant’s attempt to compare himself for the purposes of this claim with Ms Ogunfowora is hopeless. He did not raise a formal grievance; she did. And in any event, there is no evidence that, by the time of his dismissal on 21 November, the Respondents had taken any more action on her grievance (issued on 18 November) than on his. Harassment related to sex by Ms Ogunfowora (LOI, paras 9a and 9b)[108]The complaints of sex-related harassment against Ms Ogunfowora based on the exchanges on 14 and 18 November 2019 again fail on our primary findings. As to the first (LOI, para 9a), we have noted that the Claimant’s account, given for the first time in particulars of 15 June 2020, was false. We are satisfied that Ms Ogunfowora’s conduct towards him on 14 November, even if unwelcome, came nowhere near to treatment capable of satisfying the demanding language of the 2010 Act, s26(1)(b).[109]We make the same assessment in relation to the episode of 18 November and would only add that it was the Claimant, not Ms Ogunfowora, who crossed the line set by the statutory language, particularly by his loud and angry denunciation of her as “this girl”.[110]For good measure, we would add that we see no basis for supposing that Ms Ogunfowora’s behaviour on either occasion was motivated to any extent by, or otherwise in any way related to, his sex or hers. Accordingly, even had the gravity threshold been met, these claims would have fallen for want of the requisite link under the 2010 Act, s26(1) with the relevant protected characteristic. Direct race discrimination excluding dismissal (LOI, para 8)[111]As noted above, the only complaint of direct race discrimination rests on the alleged failure of the Respondents to investigate the Claimant’s alleged grievance against Mr Kowalik. That claim is unsustainable given our finding that the grievance relied upon was not delivered to Mr Booth on 20 November 2019 (or at all). The detriment asserted did not happen. Direct sex and race discrimination, victimisation: dismissal (LOI, paras 6, 7, 11, 12)[112]It is convenient to start with the dismissal-based victimisation claims, on which the Claimant appeared to place principal reliance. At the start of the hearing before us these relied on seven protected acts (LOI, para 11(a)-(g)), but Ms Chan in her closing submissions abandoned two, subparas (c) and (d), accepting that they were communications made after the dismissal. On the strength of our primary findings, we are satisfied that no protected act is made out. As to (a), (b) and, in so far as it relates to alleged remarks made at an alleged meeting between the Claimant and Mr Booth on 19 November 2019, (g), there was no such meeting and no protected act. The same goes for (g) in so far as it relies on alleged remarks at the second unscheduled meeting with Ms Mehta on 12 November and/or the alleged third unscheduled meeting with Ms Mehta on 12 November. At the former, the Claimant’s obscure reference to his previous employer did not constitute or include an assertion, express or implied, that he had raised an allegation of discrimination against that employer; as to the latter, we have found that the alleged meeting never happened. Item (e) also falls: on our primary findings the Claimant told Ms Mehta on 19 November that he wished to “blow up” the incident with Ms Ogunfowora of the day before but made no complaint, express or implied, of discrimination by her and did not say that he intended to raise a formal grievance against her. As to (f), the Claimant’s email to Ms Mehta of 20 November was not, on our primary findings, a protected act. Rather, it was a complaint about the way in which Ms Ogunfowora was said to have treated him and “colleagues”. There was no express or implied allegation of discriminatory treatment based on sex or race, or on any other protected characteristic.[113]Ms Chan contended that, even if no protected act was shown, the victimisation claims should prevail on the basis that the treatment of which the Claimant complained was done because the Respondents believed that he had done, or might do, a protected act (or more than one) (see the 2010 Act, s27(1)(a)). We remind ourselves that the treatment in question was the invitation (without warning) to attend the dismissal meeting, the dismissal itself and the act of escorting him from the building following the dismissal. We are satisfied that those three events are indivisible and not sensibly seen as open to separate analysis. All three were steps taken to implement the decision of Mr Vogelmann and Mr Booth, taken on 20 November 2019, to dismiss the Claimant the next day. Did Mr Vogelmann and Mr Booth (or either of them) believe that the Claimant had done, or might do, a protected act? If so, did that belief materially influence the decision to dismiss?[114]We reject the suggestion (if made at all) that Mr Vogelmann or Mr Booth believed that the Claimant had made an allegation of discrimination or otherwise done something falling within the scope of the 2010 Act, s27(2). He had not done so and they had no reason to think that he had. The slightly less straightforward question is whether they believed that he might in future do a protected act. We have no doubt that the reason they give for dismissal is the true reason. It is that they judged that it had become necessary to remove him and that doing so involved little risk given that he had not been employed for sufficient time to qualify for protection against unfair dismissal. Their view that dismissal was necessary was based on their perception that:(a) in the three weeks since passing his probation, he had become an increasingly disruptive and divisive presence to the prejudice of the atmosphere in the office and the orderly running of the business generally and(b) there was every prospect of his behaviour continuing and, if anything, getting worse, and(c) his conduct and its consequences were particularly harmful and intolerable given the vital need for the LCM Department to focus its energies on producing the improvements which the current ‘remediation’ measures implemented at the behest of the regulator required. We find that it is highly unlikely that Mr Vogelmann or Mr Booth turned their minds to the possibility of the Claimant invoking his anti-discrimination rights if he was permitted to remain in his post. He had not raised those rights or done anything to suggest that he might. It was not in question that the organisation was thoroughly diverse racially and there was a healthy gender balance. There was no undercurrent of racial or gender-based division. There was nothing of substance to prompt Mr Vogelmann or Mr Booth to worry about allegations of discrimination being made. In the circumstances, we conclude that, if (which we strongly doubt) they even thought about that subject, it played no material part in their decision-making. Their central concern was simply that he would continue to be fiercely resistant to feedback and to engage in harmful and distracting conflicts with colleagues.[115]For these reasons the victimisation claim fails.[116]The complaint (LOI, para 6) that the dismissal was an act of sex discrimination is unfounded. Granted that the incident of 18 November 2019 between the Claimant and Ms Ogunfowora was one factor in the minds of Mr Vogelmann and Mr Booth, he was obviously not dismissed ‘because of’ his sex or because of her sex. Sex had nothing to do with the dismissal. A female whose circumstances were otherwise the same as the Claimant’s would obviously have been dismissed as he was. There is not the first beginning of a valid comparison with Ms Ogunfowora. She (an agency worker) was performing satisfactorily and the Respondents had no reason to consider dispensing with her services. The sex discrimination claim is hopeless.[117]The same goes for the dismissal-based race discrimination claim (LOI, para 7). The Claimant was not dismissed because he was not Polish or because he was British Nigerian. Race had nothing to do with the dismissal. He was dismissed for the reason summarised in our analysis of the victimisation claim above. Selfevidently, a person of different race would have been treated exactly as the Claimant was. The comparison with Mr Kowalik is untenable. The Respondents had no reason to consider dismissing him. This claim is as hopeless as the sex discrimination claim. The claim under the 1998 Regulations[118]Given our factual findings above, the Claimant’s claim under the 1998 Regulations inevitably fails. It was agreed that his annual leave entitlement up to the date of termination was 17 days, inclusive of three bank holidays. He took eight days’ leave (of which three were bank holidays) and so was entitled to compensation for nine day’s pay. It was common ground that he received payment which, on that basis, was correctly calculated. Outcome and Postscript[119]For the reasons stated, the claims are dismissed in their entirety.[120]Since all claims have been comprehensively defeated on the facts, we have not found it necessary to engage formally with the question of jurisdiction (to which neither counsel gave any real attention in evidence or argument). But we record for completeness that, had we done so, we would have held that, if and to the extent that any claim was brought outside the primary three-month limitation period as extended by the ACAS conciliation period, it was of time and accordingly outside the Tribunal’s jurisdiction. There was no unlawful conduct at all and the concept of ‘conduct extending over a period’ (the 2010 Act, s123(3)(a)) is inapplicable. And there could be no possible reason to exercise the discretion to substitute a longer period than the primary period in respect of any claim already found to be without merit.[121]Para (4) of our Judgment (strictly a case management direction) was included at the request of Ms McCann, to which Ms Chan raised no objection.
REASONS
[1]Following a hearing from 19-27 October 2021 and two days’ private deliberations on 28 October and 23 December 2021 we issued a reserved judgment with reasons on 14 February this year (‘the liability judgment’) dismissing all of the Claimant’s numerous claims under the Equality Act 2010 and the Working Time Regulations 1998. Most of his case failed on the ground that the facts on which he relied were not established in the evidence.[2]An appeal to the EAT was rejected on the ‘sift’. We are not entirely clear whether the Claimant has exercised the right to a Rule 3(10) hearing.[3]The liability judgment should be read with these reasons. It is sufficient for present purposes to say that it contains many findings unequivocally rejecting as false complaints and allegations which were central to the Claimant’s case. When we use the word “false” we make it clear that we mean that he repeatedly put forward assertions which were completely untrue and which he knew to be completely untrue. Numerous claims had no factual basis whatsoever. The alleged events on which they were premised never happened. They were made up. His most serious inventions were directed at the Sixth Respondent, ‘Q’, whom he accused of sexual harassment including sexual assault. He had no possible ground to make any complaint against her, let alone allegations of such gravity. We found him a witness “contemptuous of his duty to tell the truth and unworthy of belief” (para 96). We also found that he had manufactured evidence in the form of a ‘work diary’ purporting to contain a contemporary record corroborative of some of his allegations (para 102).[4]On 4 March this year the Respondents presented applications for costs on three bases:(a) that the Claimant has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the bringing and conducting of the proceedings; and/or(b) that the Claimant’s claims had no reasonable prospect of success; and/or(c) that, given the Tribunal’s findings on the one allegation in respect of which a deposit had been ordered and paid, he was statutorily deemed to have acted unreasonably in pursuing that allegation.[5]The Claimant’s observations were sought. He resisted the costs application on a number of grounds.[6]On 15 March this year the Respondents presented two further applications, for:(a) the anonymity and restricted reporting order made by Employment Judge (‘EJ’) Brown on 9 September 2021 in respect of the Sixth Respondent, ‘Q’ and her husband to be varied so as to have effect indefinitely;(b) the anonymity and restricted reporting order made by EJ Brown on 9 September 2021 in respect of the Claimant to be revoked.[7]The Claimant opposed these applications too.[8]Procedural management of the three applications fell to EJ Snelson (‘the judge’). He attempted to deal with them on paper. A two-day hearing (expanded from one day) was fixed for 26 and 27 May and the parties were urged to prepare co-operatively. A predictable avalanche of correspondence followed, as a result of which the judge fixed a case management hearing for 14 April.[9]Repeated applications by the Claimant for the hearings on 14 April and 26- 27 May to be vacated or postponed were refused, for reasons given.[10]The hearing of 14 April was duly held and an order made which, together with the accompanying commentary, should be read with these reasons.[11]On 25 April, the Claimant made yet another application for the hearing on 26-27 May to be postponed. Owing to an administrative oversight, it was not seen by the judge and was first drawn to the attention of the Tribunal on 26 May. We will return to that application shortly.[12]The Claimant did not comply with the order of 14 April, which (among other things) required him to state by a specified date whether he intended to rely on his means as a ground for resisting the costs application and, if so, to make disclosure by a specified date of the documents to which he proposed to refer for that purpose. Very shortly before the hearing he disclosed a small selection of documents said to be relevant to his means.[13]Also prior to the hearing on 26 May the Respondents applied for permission to deploy a medical report concerning Q subject to the condition that it would not be shown to the Claimant. The judge stood that application over to the hearing.[14]The matter was called on for hearing on 26 May by CVP. The Claimant attended in person and the Respondents were represented, as before, by Ms McCann, counsel.[15]The Claimant drew attention to the outstanding application of 25 April, which had sought amendments to the order of 14 April and postponement of the May hearing on the grounds that(a) he needed time to arrange pro bono representation;(b) the refusal to postpone the 14 April hearing had exacerbated his mental health condition necessitating an increase in medication and referral for psychotherapy; and(c) he had not been in a position to engage with the hearing on 14 April owing to technical difficulties and the fact that he had his children with him. Although it was not entirely clear, we understood that he wished us to consider and determine the application. We did so and dismissed it. As to ground (a), he had had ample time to prepare for the hearing and, if so advised, arrange representation. Moreover, he had received specialist advice from counsel, whose submissions addressing the application referred to in para 6(b) above were before us. As to ground (b), there was no evidence that the Claimant was medically indisposed, much less that he was unfit to proceed with the hearing and represent himself. He did not make that case. As to ground (c), the order and commentary of 14 April can speak for themselves. That was a routine procedural hearing to ensure that suitable preparations were made for the hearing on 26 May. Straightforward, unremarkable directions were given. The Claimant ceased to participate without providing a good reason. The outcome was sent to the parties without delay. In all the circumstances, we were satisfied that no ground for postponing the hearing was given and that it was in accordance with the overriding objective to proceed.[16]In the submissions of Ms Chan to which we have just referred it was suggested (paras 14-19) that the judge/Tribunal should recuse himself/itself on the ground that the reasons accompanying the judgment sent out on 14 February included (para 7) the Claimant’s date of birth which, it was said, placed the Tribunal in breach of the anonymity and restricted reporting order in respect of the Claimant of 9 September 2021. We were clear that no arguable ground for recusal was shown but advised the parties that, pursuant to the ‘slip rule’, an amended version of the judgment and reasons would follow, deleting the Claimant’s date of birth and correcting the details of the hearing (which was wrongly shown as having been held in 2019 rather than 2021). Shortly afterwards the judge gave instructions for this to be done. We do not accept that a fair-minded and informed observer would conclude, on the strength of the inclusion of the date of birth in the reasons, that there was a real possibility that the Tribunal (or the judge alone) was biased. It was included in accordance with the judge’s standard drafting practice and there was no ulterior purpose behind it. On reflection, however, and without objection from Ms McCann, we agree that the detail is better excluded given the concerns raised on behalf of the Claimant.[17]We turned next to other procedural matters. After discussion we set a timetable, allowing for pre-reading on the morning of 26 May (which gave the Claimant a further half day to prepare), evidence and submissions that afternoon and private deliberations on 27 May.[18]As to the Claimant’s late disclosure, we were not at all impressed by his suggestion, as a seasoned litigator, that he had not regarded himself as continuing to be bound by the 14 April order following delivery of the application of 25 April, but we nonetheless considered it just to allow him to rely on it.[19]On the other hand, we did not accede to the Claimant’s proposal, at the end of his evidence on the afternoon of 26 May and immediately before we were due to hear submissions, that he be permitted to collate and present additional documentary evidence. The directions had been clear and indulging him as asked would delay our decision-making, inflate the Respondents’ costs further and place an added burden on the Tribunal’s overstretched resources. In all the circumstances, we were satisfied that it would not be in accordance with the overriding objective to grant the application.[20]On the Respondents’ application relating to medical evidence on Q, we suggested that a redacted form of the document be shared with the Claimant. Ms McCann agreed to explore the idea and in the course of the morning the parties agreed that the redacted version would be placed before the Tribunal. The unredacted original was not shown to the Claimant or the Tribunal.[21]In accordance with the agreed timetable, we reserved judgment at the end of 26 May and devoted a substantial part of 27 May to our private deliberations. The Legal Framework Costs
The Legal Framework
[22]The power to make costs awards is contained in rule 76 of the Employment Tribunals Rules of Procedure 2013 (‘the 2013 Rules’), the material parts of which are the following: (1) A Tribunal may make a costs order … , and shall consider whether to do so, where it considers that – (a) a party … has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success As the authorities explain, the rule poses two questions: first, whether the Tribunal has power to make an order; second, if so, whether the discretion should be exercised.[23]Once an Employment Tribunal is satisfied that the relevant tests under rule 76 have been satisfied, the Tribunal’s discretion to make a costs award against a party is wide and unfettered: see Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 CA.[24]The 2013 Rules, r84 provides, relevantly, as follows: In deciding whether to make a costs … order, and if so in what amount, the Tribunal may have regard to the paying party’s … ability to pay.[25]We are mindful of the fact that orders for costs in this jurisdiction are, and always have been, exceptional. Employment Tribunals exist to provide informal, accessible justice for all in employment disputes. We recognise that, if Tribunals resorted to making costs orders with undue liberality, the effect might well be to put aggrieved persons, particularly those of modest means, in fear of invoking the important statutory protections which the law affords them. It would be contrary to the purpose of the Tribunals if parties to disputes declined to exercise their right to bring (or contest) proceedings as a result of unfair economic pressure. On the other hand, we also bear in mind that, when our rules of procedure were revised in 2001, the Tribunal was for the first time not merely permitted, but obliged, to consider making a costs order where any of the prescribed conditions (vexatiousness, abusiveness etc) was fulfilled, and a new and wider criterion of unreasonableness was added. It seems to us that these innovations, preserved in subsequent revisions of the rules, indicate a policy on the part of the legislature to encourage Tribunals to exercise their costs powers where unmeritorious cases are pursued or where the manner in which litigation is conducted is improper or unreasonable. Privacy orders Rule 50 powers[26]By the 2013 Rules, r50, it is provided, so far as relevant, as follows:(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.(3) Such orders may include – … (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymization or otherwise, whether in the course of any hearing or its listing or in any documents entered on the Register or otherwise forming part of the public record… … (d) a restricted reporting order within the terms of section 11 … of the Employment Tribunals Act 1996.[27]The Employment Tribunals Act 1996 (‘the 1996 Act’), s7 includes (1) The Secretary of State may by regulations (“employment tribunal procedure regulations”) make such provision as appears to him to be necessary or expedient with respect to proceedings before employment tribunals.[28]By s11 of the 1996 Act, it is provided that: (1) Employment tribunal procedure regulations may include provision— (a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and (b) for cases involving allegations of sexual misconduct, enabling an employment tribunal, on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.[29]In Fallows v News Group Newspapers Ltd [2016] ICR 801 Simler J, then President of the EAT, considered arguments concerning the sources and scope of the powers of Employment Tribunals to make privacy orders. She said:41. Provided an order is considered necessary in the interests of justice or necessary to protect Convention rights, and the Tribunal considering whether to make an order gives full weight to the principle of open justice and the right to freedom of expression, Rule 50(1) enables an order to be made in circumstances that do not fall strictly within sections 11 and 12 ETA 1996, or that extends beyond the end of the proceedings (whether they otherwise fall within sections 11 and 12 or not). This is not to create a power in order to give effect to the Article 8 rights of parties to Tribunal proceedings; but is a question of the proper construction of an express power given in Rule 50(1) of the 2013 Rules.42. Like the Employment Judge I recognise that reporting restrictions which last indefinitely are a much more substantial restriction on freedom of expression than restrictions imposed for a limited period. Permanent protection may or may not be appropriate in a given case, but where it is sought it requires particularly careful consideration. It is likely to be a rare case where the Article 8 rights at stake are so strong that it is necessary to grant indefinite restrictions as the means of striking the balance between Article 8 rights on the one hand and the principle of open justice and rights of freedom of expression on the other. … such cases are likely to be the exception and not the rule. …43. … [The] power [under the 1996 Act, s7(1)] to make regulations considered “necessary or expedient with respect to proceedings” in the Employment Tribunal is wide and includes the regulation of any aspect of such proceedings. That necessarily includes making orders “with a view to preventing or restricting the public disclosure of any aspect of those proceedings” under Rule 50(1). In my judgment, whether read alone or construed with section 3 Human Rights Act as a power that must be exercised compatibly with Convention rights, section 7(1) ETA 1996 provides the vires for the wider privacy order making power contained in Rule 50(1), notwithstanding the more specific, restrictive powers in sections 11 and 12 ETA 1996.[30]The open justice principle demands hearings before open and publicly accessible courts and freedom to report publicly on proceedings and their outcomes (Khuja v Times Newspapers Ltd [2017] UKSC 49, [2019] AC 161, para 16, Lord Sumption JSC). It is grounded in the public interest irrespective of any particular public interest in the facts of any individual case (Fallows, para 48(iii)). It serves to reinforce the Article 10 right to freedom of expression and stands as a key feature of the Article 6 right to a fair trial. The principle requires that any restriction of public access is the least that can be imposed consistently with the protection of competing rights (Fallows, para 59).[31]The Article 8 right to respect for private life has many aspects and is not amenable to concise definition. The European Court of Human Rights has held that preservation of mental stability is an indispensable precondition to effective enjoyment of the right to respect for private life (see Bensaid v United Kingdom (2001) 33 EHRR 10, para 47).[32]In In re Guardian News and Media Ltd [2010] 2 AC 697, Lord Rodger, having reviewed the authorities, remarked (para 52): In the present case M's private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. … the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life. At a later point (para 63), he said this: What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. … The judges [have recognised] that editors know best how to present material in a way that will interest the readers of their particular publication, and so help them to absorb the information. A requirement to report it in some austere abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive. Elsewhere, the learned Justice pointed out that the identities of claimants “may not matter particularly to the judges. But the legitimate interest of the public is wider than the interests of judges qua judges or lawyers qua lawyers” (para 38). Furthermore, the fact that the parties have agreed to anonymity cannot absolve the court from balancing the interests at stake for itself. Indeed that is when there is the greatest need for vigilance (para 2).[33]In Khuja, Lord Sumption JSC stated with reference to In re Guardian News and Media Ltd that the public interest in the administration of justice may be sufficiently served as far as lawyers are concerned by a discussion which focusses on the issues and ignores the personalities, but (para 57) “the target audience of the press is likely to be different and to have a different interest in the proceedings, which will not be satisfied by an anonymised version of the judgment. In the general run of cases there is nothing to stop the press from supplying the more fullblooded account which their readers want”. But in the same judgment the learned Justice also observed (para 30): None of this means that if there is a sufficient public interest in reporting the proceedings there must necessarily be a sufficient public interest in identifying the individual involved. The identity of those involved may be wholly marginal to the public interest engaged. Thus Lord Reed JSC remarked of the Scottish case Devine v Secretary of State for Scotland (unreported) 22 January 1993, in which soldiers who had been deployed to end a prison siege were allowed to give evidence from behind a screen, that “their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure”: A v British Broadcasting Corpn [2015] AC 588, para 39. In other cases, the identity of the person involved may be more central to the point of public interest, but outweighed by the public interest in the administration of justice. This was why publication of the name was prohibited in A v British Broadcasting Corpn. Another example in a rather different context is R (C) v Secretary of State for Justice (Media Lawyers Association intervening) [2016] 1 WLR 444, … involving the disclosure via judicial proceedings of highly personal clinical data concerning psychiatric patients serving sentences of imprisonment, which would have undermined confidential clinical relationships and thereby reduced the efficacy of the system for judicial oversight of the Home Secretary’s decisions.[34]In Fallows, at paras 48-49, Simler J gave general guidance on the correct approach to be taken where competing Convention rights are in play. She set out a number of propositions, including the following2.(1) The burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice.(2) No Convention right has precedence over any other.(3) Where Convention rights are in conflict, an “intense focus” on the comparative importance of the specific rights is required.(4) Justifications for interfering with or restricting any right must be taken into account.(5) Proportionality must be weighed in the balance. The Sexual Offences (Amendment) Act 1992[35]Alongside the 2013 Rules, r50 and the 1996 Act, ss 7 and 11, the Sexual Offences (Amendment) Act 1992 (‘the 1992 Act’) supplements the privacy protection available to persons who are alleged to have been subjected to sexual offences. By s1 it provides:(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of 2 Points (2)-(5) are drawn directly from the opinion of Lord Steyn in In re S (A Child) [2004] 3 WLR 1129 HL. the public to identify that person as the person against whom the offence is alleged to have been committed.(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.(3) This section— (a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and (b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3. (3) This section— (a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and (b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3. (3A) The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular— (a) the person’s name, (b) the person’s address, (c) the identity of any school or other educational establishment attended by the person, (d) the identity of any place of work, and (e) any still or moving picture of the person.[36]The protection under s1 of the 1992 Act is subject to s3, which includes: (2) If at a trial the judge is satisfied—(a) that the effect of section 1 is to impose a substantial and unreasonable restriction upon the reporting of proceedings at the trial, and(b) that it is in the public interest to remove or relax the restriction, he shall direct that that section shall not apply to such matter as is specified in the direction. (3) A direction shall not be given under subsection (2) by reason only of the outcome of the trial. … (6) In subsections (1) and (2), “judge” means— (a) in the case of an offence which is to be tried summarily or for which the mode of trial has not been determined, any justice of the peace ... ; and (b) in any other case, any judge of the Crown Court.[37]The general effect of s6(3) is that a person is “accused” of a relevant offence when he or she is charged with it or committed for trial on it.[38]In A & another v X & others (No.1) [2019] IRLR 620 EAT Soole J remarked (para 70) that it was routine for judgments in criminal cases covered by the 1992 Act to be anonymised and Tribunal judgments “can be in no different position.” There appears, however, to be no direct authority on whether, and if so how, the Tribunal should endeavour to give effect to the 1992 Act. Variation of case management orders[39]The Tribunal has a wide power to make case management orders under the 2013 Rules, r29. The same rule further states: A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.[40]In Serco Ltd v Wells [2016] ICR 768 It was held by the EAT (HHJ Hand QC) that the power under r29 to vary, suspend or set aside case management orders must be narrowly construed as applying only where there had been a material change in circumstances or for some other special reason. Oral Evidence and Documents[41]The Claimant gave evidence based on his statement of 25 May 2022 containing 21 numbered paragraphs. The statement consisted more of argument than evidence, much of which was directed to challenging the Tribunal’s findings in its original reasons, but it did also briefly address the question of his means.[42]The Respondents produced the original trial bundle (for reference) and an ‘Additional Bundle’ of 754 pages. The Claimant supplied an 8-page bundle which he had prepared.[43]In support of the application relating to Q we had before us her signed statement and the redacted version of the medical report already mentioned.[44]We also had the benefit of the written submissions of Ms McCann and Ms Chan. Analysis and Conclusions Costs[45]The Respondents limited their application to £20,000, the maximum sum awardable without a detailed assessment. The costs which they actually incurred up to the end of the trial came to many times that sum.[46]The burden of the costs application was that the Claimant had dishonestly and cynically pursued a series of complaints based on evidence which he knew to be false and that in so doing he had brought claims which had no reasonable prospect of success and/or had acted unreasonably in bringing them and/or in his conduct of them.[47]The Claimant resisted the application. He argued that he had been entitled to bring his claims and the fact that he had lost should not result in him being condemned in costs. An award of costs was an exceptional measure. He also challenged a number of the findings in our judgment and reasons, although we tried to explain that those matters were closed and could not be revisited. In addition, he advanced the argument that we should somehow be guided by a decision of the Dartford County Court refusing the Respondents costs following their successful defence of a short-track claim which he had brought against them in that court. Finally, he contended that, in view of his very limited means, the Tribunal should make no, or no substantial, costs order, even if it would otherwise judge a substantial award to be appropriate.[48]In our view, the Claimant’s conduct in bringing and persisting with his claims, or at least a large proportion of them, was not merely unreasonable but disgraceful. To concoct, as he did, allegations of sexual harassment by Q was beneath contempt. As serious (although not calculated to cause pain and distress to any individual) was his act of manufacturing evidence. More generally, time and time again, he rested claims on alleged facts which were at best so distorted or exaggerated as to bear no relation to real events and at worst simply invented. It is, we think, hard to imagine a more obvious case of unreasonable conduct in the bringing and pursuit of litigation. So much for the 2013 Rules, r76(1)(a).[49]We prefer to leave r76(1)(b) to one side. A cynical manipulator might make up claims so skilfully that the Tribunal might struggle to say, after the event, that they had had no reasonable prospect of success. The fact that they had ultimately failed would not by itself warrant that assessment. We prefer not to wrestle with the question whether, on an objective analysis, the claims, which the Claimant knew to be bogus, were doomed to fail.[50]Our reasoning under r76(1)(a) determines the first question identified in para 22 above. The Tribunal has jurisdiction to make a costs order.[51]Should we exercise the jurisdiction and, if so, how? Subject to the question of means, we are quite satisfied that the Claimant’s conduct merits a costs order and that it would be unjust to the Respondents to decline to make one. We might ask, if this is not a proper case for the exercise of the discretion, what is?[52]Should we take account of means? The documentary evidence provided by the Claimant as to his means was minimal. His answers to questions from Ms McCann and the Tribunal were short on detail and uninformative. We are unable to place confidence in his evidence, although we are careful not to make the mistake of assuming that, because of our findings at trial, he cannot be believed on anything. On balance, we find that he has been out of work since his dismissal by the Respondents in November 2019 and is living wholly or very largely on state benefits. It seems that he has separated from his wife and is living in private rented accommodation. He has two school-age children to support. We treat him as currently cash-poor, albeit with a substantial earning capacity as someone with financial sector experience who commanded an annual salary of some £50,000 when with the Respondents. The capital picture is much less clear. He told us that he had co-owned a property with his wife and that he had transferred his share to her and that she had paid him “a contribution”. We were shown no documents relating to this transaction.[53]We have decided not to have regard to the Claimant’s ability to pay. This is because he has not supplied us with sufficient information backed by evidence to enable us to make a reasonable assessment of his capital position. In the commentary accompanying the order made on 14 April, the judge included these remarks: 9. The question of ability to pay is important. I draw attention to the Employment Tribunals Rules of Procedure 2013, rules 74-84. Rule 84 says that, in considering whether to make a costs order and, if so, how much to award, the Tribunal may have regard to the paying party’s ability to pay. If the Claimant wishes the Tribunal to take that factor into account he must follow my Order ... 10. If the Claimant’s means are in issue, it is for him to decide what information he wishes to share with the Respondents and put before the Tribunal. The Tribunal cannot advise, but it is a statement of the obvious that sparse or selective disclosure will carry less weight than comprehensive disclosure. It is a matter of regret that he did not heed the guidance offered.[54]If he finds himself in due course facing enforcement proceedings in relation to our costs judgment, the Claimant will have a fresh opportunity to argue (at that stage in the county court) that his means should be taken into account. There again, sparse and selective disclosure will not serve his interests.[55]Ability to pay not being a ‘live’ consideration, what sum should be awarded? In our judgment, the answer is plain. If the Claimant’s means do not bear on the decision, the proper award is the sum sought, £20,000, which represents a small fraction of the costs to which, entirely without justification, the Respondents have been put.[56]In view of our conclusion on the r76(1)(a) application, we do not think that it would be helpful or proportionate to engage with the much narrower costs application based on the Claimant’s election to persist with a particular claim in respect of which EJ Brown made a deposit order. This application would not necessarily have succeeded (it is questionable whether the relevant claim failed for substantially the reason given in the deposit order (cf the 2013 Rules, r39(5)) and even if it had, it would have attracted no separate award.3 The privacy orders applications[57]We will consider the two applications in turn. The application relating to Q 3 Rightly no doubt, Ms McCann did not seek an award based on the deposit order over and above the £20,000 sought pursuant to her primary application.[58]While very properly recognising the central importance of the principle of open justice, Ms McCann submitted that there had been a change of circumstances which warranted a variation of EJ Brown’s order and that it was necessary in the interests of justice to vary it by extending the anonymisation of Q indefinitely.[59]The Claimant took a neutral stance, raising no challenge to the application.[60]We must say at the outset that the fact that the Claimant raises no challenge is not determinative or even persuasive. The principle of open justice must be jealously guarded and where parties agree that some derogation from it is justified (or do not disagree on the matter) it is all the more incumbent on the court or tribunal to subject what is proposed to close and sceptical scrutiny. We have the observations in In re Guardian News and Media Ltd, para 2 very much in mind.[61]That said, following conscientious reflection, we are satisfied that it is necessary and in keeping the interests of justice and the overriding objective to make the order which the Respondents seek. We have several reasons.[62]First, it is clear on the authorities discussed above that the Tribunal has jurisdiction in principle to make the order, under r50(1) read with the 1996 Act, s7.[63]Second, despite the constraints of Serco Ltd v Wells, the Tribunal is free to re-visit the original order. There have been several material changes of circumstances, including in particular, the delivery of the Tribunal’s reasoned judgment on liability and the presentation of fresh evidence in the form of Q’s statement and the supporting evidence of the psychiatrist.[64]Third, it is material that, as the record shows, EJ Brown envisaged at the time of making her order that an application to extend the duration of Q’s protection might be made and might be entertained.[65]Fourth, while the open justice principle and freedom of expression rights are certainly engaged, Q’s Article 8 rights are too. We must balance her right to be protected in her honour and reputation and the risk to her mental health and stability to which her evidence adverts.[66]Fifth, while we are far from thinking that a restriction on the freedom to publish the name of a key witness is a trifling matter (we have Lord Rodger’s remarks in In re Guardian News and Media Ltd very much in mind), we consider that the interference with the open justice principle and freedom of expression for which Q contends is relatively minor here, largely because the other Respondents, and in particular, the corporate First Respondent, have not been anonymised at any point. The full context in which the events recounted in our reasons occurred has thus been in the public domain throughout and the request for one name (among many) to be kept from view permanently is not likely to result in any press coverage being in “some austere abstract form, devoid of much of its human interest” (to quote again from Lord Rodger) or to cloud any third party’s understanding of the story or its implications, particularly as the Tribunal has now adjudicated upon the claims and its material findings are all to the effect that allegations made against Q were false and the wrongful acts of which she stood accused never happened. It is not a matter of real public interest that Q did not do this or that act. (As we will observe below, it is potentially of much greater interest that the Claimant ran a bogus case based on countless inventions.) By contrast with what we see as a minor interference with the open justice principle and freedom of expression, the unchallenged and entirely plausible evidence of and on behalf of Q, which we can only take at face value, points to a significant risk to her health and wellbeing, and thus her Article 8 rights, if the temporary protection of EJ Brown’s order is not extended. We are in no doubt that, on the facts of this case, the balance of prejudice comes down firmly in favour of granting the application.[67]Sixth, in arriving at our finding on the balancing exercise, we have not overlooked the obvious thought that, given that our judgment leaves Q fully vindicated, disclosure of her name might be seen as no longer liable to expose her to any harm. Certainly we would accept that, in the usual case, such vindication would be all that was required. But this is not the usual case, as the cogent and powerful evidence of Q and her medical witness clearly shows.[68]Seventh, we agree with Ms McCann that, in performing the balancing exercise, we must have regard to the fact that the events which have happened were not of Q’s choosing. She is the wholly blameless victim of his conduct. He forced her into the litigation by making false allegations against her and by naming her as a party. He also rejected the First Respondents’ requests to release her on their undertaking not to run the ‘statutory defence’. Asked to exercise a discretion, we consider that Ms McCann’s appeal to broad considerations of fairness is both apposite and compelling.[69]For all of these reasons, the Respondents have satisfied us (the burden being upon them) that this dispute falls into the rare category of case in which postpromulgation protection is necessary and that EJ Brown’s order must be varied as set out in our Order above, para (3). The application relating to the Claimant[70]Has there bee a material change of circumstances sufficient to enable the Tribunal to consider revoking the original anonymity order? Plainly, there has. The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.[71]Ms Chan submitted that the Tribunal had no power to revoke the anonymisation order in respect of the Claimant because the 1992 Act contained no such power. We disagree. The order itself was not made under the 1992 Act (which does not have anything to do with Employment Tribunals) but under the 2013 Rules, r50. The power to revoke lies under the 2013 Rules, r29. The argument that no direction has been made under the 1992 Act, s3(2)4 and therefore there is no power to revoke under r29 is misconceived.[72]We agree with Ms McCann that the correct approach is to exercise our case management powers under r29 in light of, and in keeping with the spirit and intention of, the 1992 Act. This approach recognises that the protection under the 1992 Act is automatic and, in principle, permanent. The underlying policy objective is clear: to ensure that victims of sexual offences are not discouraged from making complaints for fear of facing distressing publicity. Eloquent of that purpose is the express stipulation that a s3 direction is not to be given only because of the outcome of the trial (s3(3)). A complainant in a rape case must not be at risk of losing her anonymity simply because the Defendant is acquitted. We agree with Ms McCann (submissions, para 27) that great care must be taken before any inroads are made into the s1 protection. But we also agree with her further contention that our procedural rules enable us remove or relax that protection in special circumstances. We cannot accept the contrary view, namely that any allegation ostensibly within the reach of the 1992 Act attracts protection which is lifelong and irrevocable regardless of a judicial finding subsequently made following a comprehensive hearing that it was false to the point of being simply made up. Such was and is our finding and the necessary logic, from which we do not shrink, is that the application for privacy orders made on the strength of it was equally dishonest and the resulting orders were secured on the basis of gross and wilful misrepresentations. We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result. We cannot disagree with Ms McCann that if it did, it would make a mockery of the protection which the 1992 Act is designed to enshrine.[73]If we are right so far, the next question is, How should we resolve the balancing exercise between competing interests? We agree with Ms McCann that it is material here that the privacy orders secured by the Claimant involved derogating from the open justice principle and freedom of expression. We have explained why, in our view, extending the anonymisation protection the case of Q would entail a minor derogation. By contrast, we do not consider that permitting the Claimant’s protection to last indefinitely could sensibly be seen as having a similar effect. His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal’s findings, in the way that Q’s would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant’s Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.[74]Would revoking the anonymity order in the Claimant’s case undermine the vital interest which the 1992 Act seeks to protect? In our judgment, it would not. To 4 Such direction may only be made “at a [criminal] trial” by a justice of the peace or Crown Court judge (s3(6)). There has been no criminal trial. Indeed, not surprisingly, no criminal charge was ever brought against Q (see generally ss1(2) and (3) and 6(3)). be clear, we regard this as a wholly exceptional case and we see no possible reason for fearing that our decision could affect public confidence in the principle that those who raise complaints of sexual offences can do so without their identities becoming known.[75]For all these reasons, we conclude that the Respondents have demonstrated that the exceptional measure sought by their application referred to in para (4) of our Order above is both proper and necessary.
Outcome
[76]The Respondents’ applications succeed as explained in our reasons above.[77]The Tribunal’s administrative staff will be instructed to implement our rulings in three months’ time unless the Tribunal or EAT extends that period in the interim (Order, para (5)). In view of the pressure under which the Tribunal is currently operating, it may be advisable for the parties to check at the appropriate time that the stay has been duly lifted and our Order, para (4) implemented by publication on the website of the (further) revised version of the liability judgment.