Mr Y Jammeh v London Underground Ltd: 2206160/2018

EMPLOYMENT TRIBUNALS

Case No 2206160/2018

Between

Mr Y JammehClaimant

London Underground LtdRespondent

Before

Employment Judge Norris

Members

Mr S Williams

Mr S Ferns

In person for claimant

Ms R Thomas (instructed by Counsel) for respondent

Date 30 May 2019

JUDGMENT

[1]The Claimant’s claim is not well-founded and is dismissed.

REASONS

[2]The Claimant has been employed by the Respondent since September 2004. He currently works as a Customer Service Assistant. He describes himself as a Black British person of African origin. Issues3.1 To understand the issues in this claim, it is necessary to set out briefly some of the history. In 2015, the Claimant brought a claim against the Respondent and two named Respondents, complaining of race discrimination. According to the bundle before us, he was complaining that from 2007, he wanted to progress to a higher role (Station Assistant Multi-Function, or SAMF) but in the course of his application process, experienced direct race discrimination.

3.2 The Claimant raised an internal complaint in or around June 2009 suggesting he was being discriminated against. It appears that was not resolved, or certainly if it was, it was not resolved to the Claimant’s satisfaction. The issue continued to be of concern to the Claimant.

3.3 In July 2015, the Claimant again raised an allegation of race discrimination to two different managers. In September 2015, he submitted an Early Conciliation (“EC”) request to ACAS. He named two managers who had been involved in the process: a Ms Bouder who had given a grievance outcome to the Claimant in April 2008 and a Mr Beveridge who had had meetings with the Claimant in 2012 and 2013. It is apparent that there was at least one other person against whom an EC certificate was raised, and that was Mr Peter Sanders. Mr Sanders is now an Area Manager and is the Claimant’s manager’s manager. A claim (“first claim”) was then lodged on 15 November 2015 against Ms Bouder, Mr Beveridge and London Underground Limited (the Respondent before us); but no claim was presented against Mr Sanders. The Respondents defended the claim.

3.4 The Employment Tribunal at London South (Employment Judge Baron) struck out the claim following a Preliminary Hearing on 3 June 2016. Judge Baron refused the Claimant’s application to add a further Respondent (a Mr Alaoye, who dismissed the Claimant’s appeal against the rejection of his grievance in June 2015) and found that the case was presented very considerably out of time. The Employment Appeal Tribunal (Her Honour Judge Eady QC) rejected the Claimant’s appeal on the “paper sift” on 21 October 2016 on the basis that it stood no reasonable prospects of success, and the Court of Appeal refused permission to appeal on 25 May 2017, noting that there were no errors of law identified in the ET or EAT’s decisions.

3.5 It is against that background that the Claimant lodged his second claim, which is before us, on 3 December 2018. Since the first claim was brought, the SAMF position has been deleted from the Respondent’s structure but the Claimant believes that his career development generally has been held back and that this unfavourable treatment is because of his doing the protected act of bringing proceedings in 2015.

3.6 On 23 January 2019, Employment Judge Russell sitting at London Central conducted a Preliminary Hearing (Case Management) and identified the following issues (in summary):3.6.1 The Respondent (Mr Sanders) failed to action the Claimant’s secondment opportunity to the Respondent’s training centre at Ashfield House in or around August 2017 and January 2018;

3.6.2 The Respondent failed to respond to his complaint letters in or around April and August 2017 (Mr Brown, Mr Wild and Ms O’Neal);

3.6.3 The Claimant was not shortlisted and hence was rejected for two separate trainer positions for which he applied, both those rejections being in late 2017 (recruitment manager Mr Blaxall – role: Fleet Maintenance Trainer 024551 – and recruitment manager Mr Killeen – role: Operational Trainer 025017); and

3.6.4 The Claimant’s grievance appeal was rejected by Ms Travers, former Head of HR, in July 2018.

3.7 These issues were confirmed at the outset of the Hearing before this panel, and we returned to them on several occasions to ensure the evidence was on track. Hearing

4.1 We had before us a bundle of documents prepared by the Respondent and running to around 380 pages; and we had a much smaller bundle from the Claimant containing just over 30 pages, all of which we were told were in the Respondent’s bundle but might not have been very clear. The Claimant was rightly concerned that we should be able to read all the material he relied on, and we could.

4.2 On the first morning, the Respondent added an email exchange dated 14 and 16 July 2015 to its bundle. This exchange was between Mr Desbruslais, in the Respondent’s Skills Development team, and Mr Sanders. It did not appear contentious (pre-dating as it did the protected act relied on) and we permitted its inclusion. On the morning of day two, the Claimant produced the EC certificate relating to Mr Sanders which was issued on 25 September 2015. Again, we permitted its inclusion.

4.3 On day one, we spent until midday reading the witness statements and considering the pages referred to in them. We then heard from the Claimant in oral evidence and lastly that day from Mr Graham, a former Customer Service Assistant who was promoted to SAMF and thereafter to Station Supervisor. He has known and worked with the Claimant for a number of years, although they are no longer at the same location.

4.4 On day two, we heard from Mr Lynch, who has acted as the Claimant’s RMT union representative at some stages of the more recent grievance hearings and appeals. That concluded the Claimant’s case. We then heard from the Respondent’s witnesses in turn: Mr Sanders, Mr Blaxall, Mr Killeen and Ms Travers. At the conclusion of day two, we listed the matter for a provisional remedy hearing in August, as it was clear that we would not reach a conclusion in time to conduct remedy considerations if the Claimant succeeded in whole or in part.

4.5 On day three, Ms Thomas had been asked to give the Claimant a copy of her written submissions in advance of the Hearing recommencing, and she then spoke to those; then we heard from the Claimant. We have considered both sets of submissions carefully, and although we do not reproduce them here in their entirety, we return to some of the most salient points below. Law

5.1 The law was identified in EJ Russell’s Case Management Summary. Section 27 Equality Act 2010 (EqA) provides that a person is victimised where he is treated unfavourably because he has done a protected act (or because it is believed he may do so). In this case, it is agreed that the Claimant did a protected act (bringing the 2015 proceedings – section 27(2)(a)).

5.2 In the case of Royal Mail v Jhuti1, the Court of Appeal confirmed that in whistleblowing cases, it is the mind of the decision-maker that is to be considered by the Tribunal – in other words, did the decision-maker know about the whistleblowing? If they did not know that the employee has made a protected disclosure, the decision-maker will not be found to have treated the employee unfavourably in consequence.

5.3 By the same token, in victimisation claims under the Equality Act 2010, it must be right that if a manager treats an employee to his detriment, that manager cannot be found to have victimised the employee if they did not know about the protected act (and/or, in the case of Mr Sanders, believed the Claimant was about to do a protected act).

5.4 Therefore, given that the protected act is agreed to have taken place, we have considered:5.4.1 Did the unfavourable treatment alleged occur as claimed (i.e. as set out in the issues section above)?

5.4.2 If so, did the managers responsible for that treatment have knowledge of or belief in the Claimant’s protected act at the time they behaved as claimed?

5.4.3 If so, was the knowledge of the protected act the reason why they behaved in that way?

5.5 It should be noted that under section 136 EqA, it falls to the Claimant to show facts from which we could conclude that there was discriminatory conduct, and if he does so, the burden of disproving it shifts to the Respondent.

5.6 The Respondent contends that the majority of this claim is out of time. Ms Thomas relies on section 123 EqA which provides that claims must be commenced (in reality, ACAS Early Conciliation entered) within three months of the act complained of or, where there is a continuing act, three months from when the conduct complained of ceased. She asserts that complaints about any conduct prior to 1 May 2018 do not fall within our jurisdiction; this is because Claimant went to ACAS for Early Consideration on 31 July 2018. Findings

6.1 Allegation one - That Mr Sanders failed to action secondment opportunities in or around August 2017 and January 2018. Our findings of fact in relation to this allegation are:6.1.1 The Claimant wrote to Mike Brown, TfL Commissioner, in April 2017 and that email was apparently forwarded to Mark Wild, Managing Director at TfL who arranged for the Claimant to meet Ms O’Neill, then Head of Performance and 1

[2017] EWCA Civ 1632

Planning at the Respondent. That meeting took place following a period of annual leave from the Claimant in August 2017.

6.1.2 Although Ms O’Neill was asked to lead the meeting, she wrote to the Claimant in advance saying that she would facilitate it with the Claimant’s manager; in fact however it was Mr Sanders who was asked to attend and he was, and is, as we have said, the Claimant’s manager’s manager. Ms O’Neill emphasised the importance of drawing a line under the legal proceedings that had by now been “closed out” as she put it, and stressed that the Respondent is committed to developing people and supporting career progression, noting the Claimant’s ambition in this regard.

6.1.3 We gather from that exchange that Ms O’Neill was aware that the Claimant had brought legal proceedings in 2015. Therefore she had knowledge of his protected act.

6.1.4 The Claimant met Ms O’Neill, Mr Sanders and an HR Manager, Mr Euan Taylor, on 7 August, and Mr Sanders sent the outcome letter two days later. We accept Mr Sanders’ evidence that he was not specifically briefed in advance of the meeting. He was not copied in to any of the exchanges beforehand, albeit there is as we have noted a reference to the Claimant’s manager attending. However, we find that Mr Sanders also had knowledge of the Claimant’s earlier protected act.

6.1.5 This knowledge potentially comes in two ways. Firstly, it is right to say that the Claimant entered Early Conciliation against Mr Sanders in September 2015. The certificate was issued a week later and the postal address on it is that of 55 Broadway; however, it says it was sent by email. It is not clear whether it was sent directly to Mr Sanders’ email, only to the Claimant’s, or both. In any case, Mr Sanders says he did not receive it. This is not implausible; he was not working at 55 Broadway at the time. Had he received it however, he might well have believed that the Claimant was about to bring proceedings naming him personally as a Respondent, and hence that the Claimant was about to do the protected act.

6.1.6 That state of affairs (a belief that the Claimant was about to do a protected act which had personal consequences for Mr Sanders) could have lasted only until November 2015, two months later, when the claim was lodged and did not name Mr Sanders. Thereafter, there was never any application to add him as a Respondent, but the second method of Mr Sanders having knowledge is clear and not denied. Accordingly, Mr Sanders was, by 2017, which is the time with which we are concerned, aware that proceedings had been lodged against the Respondent, and he knew that this was a protected act, but would have no personal reason to feel a grudge against the Claimant.

6.1.7 The outcome letter sent by Mr Sanders following the meeting in August 2017 confirms a number of points: a) That all had agreed to draw a line under the past complaints; b) The Claimant was keen to progress his career as a trainer and had been undertaking local ad hoc training jobs which he had enjoyed; c) Ms O’Neill was recorded as having commended the Claimant’s commitment and thanking him for previous training. However it was noted that trainer vacancies were few and far between and the Claimant would have to apply in the usual way. She had reminded him of keeping himself updated and indicated that courses passed sometime ago might have to be refreshed. She had suggested work on the Claimant’s CV, interview skills practice and undertaking mock interviews; d) The letter further records in that regard that Mr Taylor and Mr Sanders offered to undertake a mock interview session with the Claimant and that Mr Sanders would be in touch shortly to set this up. e) Mr Sanders also personally committed to speak to the trainers Mr Jackson and Mr Tolchard at Ashfield House, the Respondent’s training centre, to see if there were secondment opportunities. f) It was emphasised that during the meeting it was confirmed there is a need to be fair and equitable and that a training vacancy could not be created for the Claimant. g) Mr Sanders concluded by giving the Claimant his personal assurance of commitment to any future applications and to supporting Claimant’s development pathway. He required the Claimant to raise any future concerns with him rather than with senior management.

6.1.8 The Claimant makes a number of points about this letter and the meeting, of which we were told no notes were taken. He sent several emails in the succeeding days to Ms O’Neill and she responded, emphasising the points Mr Sanders had made. Eventually on 16 August 2017 Mr Sanders wrote again and repeated that a line was being drawn under the history of the matter; he also repeated that he was prepared to contact the trainers at Ashfield House to see if there were any forthcoming training secondment opportunities and to conduct a mock interview.

6.1.9 The first issue for the Claimant arising from that August 2017 meeting appears to be that he was promised a secondment opportunity. That is one of the issues before this tribunal. We have found no evidence that Mr Sanders and Ms O’Neill went so far as to promise the Claimant a secondment, and indeed, on the contrary, they were at pains to point out they could not create one but would explore whether there were opportunities available. Further, the Claimant’s correspondence immediately after the meeting claims two things, firstly that he came out of the meeting with no clear development pathway, itself indicating that he had not been promised anything and secondly that he wanted a position as a station supervisor, because he believed that had he been promoted to SAMF in 2009 station supervisor was the automatic equivalent once SAMF was abolished. He was not asking at that stage for a secondment or suggesting that one had been promised.

6.1.10 The second issue for the Claimant is now that Mr Sanders was not being genuine in his offers of support for him. He asserts that Mr Sanders did not follow up in pursuit of the potential development opportunities discussed. We accept Mr Sanders’ evidence that he spoke on the phone to the trainers and that they had nothing available for the Claimant at that time. We are bolstered in this finding by the fact that the following January when the skills development team were seeking 16 trainers, Mr Sanders initially directly forwarded the email advertising the exercise to the Claimant and to nobody else. The Claimant did not apply for any of the roles, and it was not suggested that the Claimant had asked Mr Sanders or anyone else to support him in an application for those positions. Indeed, the Claimant accepted before us that he had deliberately not applied, saying it was because he did not want to be embarrassed by a further rejection.

6.1.11 Further, the Claimant had asked in October 2017 whether he could be released for a secondment opportunity – or more than one - to Ashfield House and by email, Mr Sanders had given his approval in principle for the Claimant to go ahead. This contrasts with the position in July 2015 (i.e. before any protected act had been done) when Mr Sanders was approached by Mr Desbruslais, Training Manager, to release the Claimant for three to six months and Mr Sanders emailed a refusal because he said there was an overtime ban in force.

6.1.12 The Claimant further contrasts his treatment with that of Mr De Lara/Sweet, Mr Talash and Mr Chan. Although we did not hear evidence from the trainer Mr Jackson, there is a note in the bundle said to be of a conversation with him regarding the secondments of Mr de Lara and Mr Talash. Mr Jackson said that in around October 2016 Mr de Lara came to help him because Mr Jackson had already worked with Mr de Lara previously. He does not say whether that was at the Respondent or elsewhere. Mr de Lara himself subsequently recommended Mr Talash, and there is an email from the latter to Mr Jackson saying that he has approached Mr Sanders to be released; Mr Sanders is copied in.

6.1.13 The Claimant takes exception to the fact that Mr Sanders, when asked to release these two colleagues, did not pro-actively suggest that Mr Jackson take the Claimant instead. We have some difficulty with this argument. Firstly, both men’s secondments pre-date the August 2017 meeting between the Claimant, Ms O’Neill and Mr Sanders. So at that time, Mr Sanders had not made the offer to be pro-active. Secondly, although the Claimant says this was unfair because it did not follow the secondment policy and therefore meant he missed out on the opportunity, we accept Mr Sanders’ evidence that this was how secondments were arranged at that time. It may have changed since.

6.1.14 In any case, the Claimant himself had benefitted from such a direct approach by the Skills Department previously, because Mr Sanders had released the Claimant in the same manner; and of course, we have noted that Mr Sanders had again been approached in 2015 by Mr Desbruslais to release the Claimant. Further, the Claimant said in submissions (though he had not brought any evidence to this effect) that Mr Jackson is his friend. If we take the Claimant’s case on this at its highest, without any evidence, it seems even more unlikely that Mr Sanders could have had a negative influence over Mr Jackson’s decision in this regard. It is fair to note that Mr Sanders was not a champion of the secondment policy himself, considering it to be flawed and potentially unfair because it could (and did) lead to management nominating people for secondment without going through due process – but as we have found, the Claimant had benefitted from that in the past, and any disadvantage to him on this occasion was not because Mr Sanders was treating him unfavourably because the Claimant had done a protected act.

6.1.15 It appears to be accepted by the Claimant that some mock interview training was given, or at least was available to him, from Mr Euan Taylor and/or Mr Sanders, although it is not clear to us whether it did actually take place.

6.1.16 We did not hear any evidence about the circumstances of Mr Chan’s secondment opportunity and nor was it put to Mr Sanders that he had facilitated this, let alone that he had done so as a way of victimising the Claimant.

6.1.17 The final significant issue that the Claimant took with the outcome letter was that Mr Sanders threatened him regarding future complaints. The Claimant said that senior management have indicated they have an open-door policy. However he acknowledged that there is a grievance process in place and it involves going to your manager in the first instance or, if the grievance is about the manager, going to their manager. It clearly does not involve going repeatedly to the Transport Commissioner, Directors of TfL or the Respondent’s senior manager; and Mr Sanders’ letters contain no threats only reminders that that is the process to follow

6.2 Allegation Two – that the Respondent failed to respond to the Claimant’s complaint letters in or around April and August 2017. It follows from our findings above that we not accept that the Respondent either ignored or failed to act upon the letters written to Mr Brown and Mr Wild of TfL or Ms O’Neill of the Respondent. The Claimant did not receive the outcome he desired, but that is not the same thing.

6.3 Allegation Three – that the Claimant was not shortlisted and hence was rejected for two separate trainer positions for which he applied in 2016.6.3.1 Two points were made by the Claimant in submissions and/or cross examination: the first is that people were “longlisted” for the roles when there was no provision for this in the job adverts. The second is that the Claimant apparently believes Mr Sanders prevailed over the appointing managers to subvert the Claimant’s chances, and the Claimant was told HR were “administering” the process when he believes it was being controlled by Mr Sanders.

6.3.2 The first point, regarding long-listing, is correct in that there is no specific mention of it in the adverts. However, there is a mention of short-listing, and we find that it is a common exercise in the transport and other industries to whittle down a large number of applications before the appointing manager is presented with a list of possible candidates from which to form a shortlist. In any event, the Claimant was not disadvantaged by the long-listing, because he was on the long list for both roles.

6.3.3 The Claimant was however not shortlisted. We have considered the roles separately because different managers were involved and had different criteria, albeit the Claimant’s covering letter and CV were submitted in the same format for both.

6.3.4 Dealing first of all with the fleet maintenance trainer role, considered by Mr Blaxall, the Claimant applied in September 2017. Although he was rejected before Christmas 2017, the Claimant did not receive feedback for that rejection until 13 February 2018. Mr Blaxall, via Mr Euan Taylor, confirmed that the position required someone with sound knowledge and technical expertise of engineering/operational systems and the Claimant’s CV did not describe training or even an interest in technical subjects. This was entirely consistent with his evidence to the Tribunal.

6.3.5 The Claimant relies on his experience in TBTC signalling, but Mr Blaxall explained to our satisfaction that while he was aware of this and had fed back that this was mentioned in the CV, it was insufficient for him to progress the Claimant to shortlist or interview. The Claimant was one of 42 applicants for this role and was on an 18-strong long-list but not one of the six put forward for interview. The Claimant sought to refer back to an occasion in 2011 when he had been found to meet the entry level for a similar role based on his engineering experience. We find that while it is true to say that he met the entry level and was assessed as somebody who could potentially pick the training up quickly, that can be no guarantee of a shortlisting on a different occasion for a different role, particularly where, as there were here, candidates who more closely matched the criteria. Had that not been the case, the Claimant might have been progressed but it seems to us that he can have no argument about not progressing where his technical engineering skills were not as advanced as the others’.

6.3.6 The Claimant sought to rely on an initial match through the Respondent’s system Taleo, which indicated that he met the requirements for the role with a score of 95%. We accept Ms Travers’ evidence that the Taleo tool is rather indiscriminate, in that it performs what she described as a Boolean or keyword search and matches that to the algorithm for the role. That is how the longlist is drawn up, with oversight, she said, from the recruitment consultant.

6.3.7 The fact that HR have an administrative role to play is not in our view significant or at all unusual in such a large organisation and with many candidates. It is only once the field has been narrowed that the employing manager begins to become involved, and they will then use their knowledge (and in Mr Blaxall’s case, experience) of the requirements of the role to shorten the list further. To the extent that it was argued by the Claimant that because he was longlisted he should have been interviewed, by that logic Mr Blaxall would have had to interview all 18 on the longlist and as Ms Travers pointed out, that would have been both unnecessary and unwieldy.

6.3.8 We heard no evidence to suggest (and there was nothing from which we could draw an inference) in any case that Mr Blaxall had any knowledge of the Claimant’s protected act, which he denied knowing about; we accept his evidence in that regard. He and the Claimant had never met. It was not put to Mr Blaxall that Mr Sanders had had any influence over the shortlist he drew up.

6.3.9 The Claimant asserted in submissions indeed that there is a form of blacklisting (perhaps more relevant to the second role) and that, in terms, Mr Sanders interfered with the process to prevent him from getting this job. We do not accept that submission, which was not put to either Mr Sanders or Mr Blaxall in cross examination. We accept that it may be difficult, and litigants in person may be reluctant, to put such allegations directly to managers at the organisation where the litigant still works, and they may not wish to be seen as confrontational in that way; however, the Claimant did not advance this argument to Chris Mussard, who heard his grievance, or to Ms Travers, who heard the appeal, either.

6.3.10 So far as the second role is concerned, this appears to have matched the Claimant’s skills and experience more closely. There are some facts surrounding this application which, taken in isolation, would potentially give us some cause for concern. The first is that the Claimant submitted his application and, evidently, he immediately received a rejection email. However, it was explained to him quickly that the Respondent had received 120 applications for the role and that he should ignore the rejection email which had been generated due to a computer glitch (in terms); his application proceeded, and he was longlisted along with 34 others. He was not shortlisted. Mr Killeen interviewed 11 candidates.

6.3.11 Whether related to that system glitch or otherwise however, the next problem was that the Claimant’s CV was not forwarded to Mr Killeen, only the covering letter. Mr Killeen said in evidence, and we accept, that there has been an occasion or occasions in the past where a candidate has omitted to forward their CV and in such a scenario Mr Killeen will base his decision exclusively on the covering letter. Ms Travers also gave evidence (and again we accept, not least because one of the panel is familiar with the system and its limitations) that the Taleo system does occasionally throw up glitches of this nature. In this instance we find based on the emails in the bundle that Mr Killeen did eventually see the Claimant’s CV and that that did factor into his decision not to shortlist him.

6.3.12 It is another minor concern that Mr Killeen does not appear to have spent a great deal of time on considering the Claimant’s CV. He was sent it at 09.41 on 23 November and ten minutes later he wrote back to the recruitment consultant saying that he had looked at it and making observations from which it was clear he did not rate the Claimant as a candidate. One of those observations was that it was not clear if the Claimant had “done train the trainer”, i.e. obtained the associated qualification. However this was not sustainable had Mr Killeen considered the Claimant’s CV and/or covering letter properly, because on the second page of the two-page covering letter the Claimant says he has done train the trainer and this is repeated in the CV itself, albeit on the last page of a nine- (or eleven-) page document.

6.3.13 There was a dispute before us over which version of the Claimant’s CV was before Mr Blaxall and Mr Killeen. It appears to us to be of little significance, because both versions were long, as the Claimant accepted, and both contained confirmation that he had “done” train the trainer.

6.3.14 As we have said, in isolation, those concerns might have persuaded us to shift the burden of proof to the Respondent, in relation to this point alone. However, if it had shifted, we would have found that the Respondent had disproved discrimination. We have looked at the evidence in the round and the burden does not shift for these reasons.

6.3.15 First of all the evidence does not suggest even remotely that Mr Killeen knew or could have known about the Claimant’s protected act. As we have noted, the law therefore means that we cannot find he treated Claimant unfavourably because of it.

6.3.16 Secondly, the feedback both in October and later in December 2017 from Mr Killeen, aside from the points raised above, was both rational and substantiated. For instance, Mr Killen noted in December that it had been at least four years since the Claimant had delivered training, while the people Mr Killeen was interviewing for the role had much more recent experience and/or were delivering training currently. Other candidates, he noted, submitted better evidence, although he added that if they had been struggling for candidates he might have interviewed the Claimant. He had previously said that the Claimant did not “sell himself” well. Again, there was no evidence that he had ever met the Claimant nor any suggestion that he had been influenced against the Claimant by Mr Sanders.

6.3.17 We also consider it much more logical that had either Mr Blaxall and/or Mr Killeen known of the Claimant’s protected act, they would have sought to interview him, if only to quash any possible suggestion that they had treated him unfavourably as a result of that act. Similarly, if Mr Sanders were, as the Claimant asserted, trying to give an illusion of support while in fact putting obstacles in his way, he could have encouraged both employing managers to give interviews and then reject the Claimant. We find that entire assertion of the Claimant’s thoroughly implausible, however. We find in fact that it might have been difficult to justify asking the Claimant for interview in either case, but particularly for the Fleet Management role, given the way in which he presented himself on paper.

6.3.18 We should note that both Mr Lynch and Mr Graham, who have both had experience of the Claimant in a training scenario, or more than one, and (in particular with Mr Graham whose evidence we found very credible) they were surprised that the Claimant had not progressed in his training career based on that experience. We have no doubt, as has been acknowledged by the Respondent that the Claimant has skills, passion and ambition in this regard. However, as much as he says he is listening to feedback, certainly in relation to his presentation on paper, we have seen no evidence of that, and he seems unwilling or unable to take on board suggestions regarding (for example) his CV. His evidence was that it was long but needed to be that long, even though acknowledged that for one of the roles it was expressly stated it should be kept to no more than two pages.

6.3.19 It did not appear to us that anyone was denying the Claimant had the qualifications on which he relied (which was something which clearly caused the Claimant considerable unhappiness and concern); it was just that they did not stand out from the CV as then (and is presently) formatted.

6.4 The Fourth Allegation – that the Claimant’s grievance appeal was rejected by Ms Travers, former Head of HR, in July 20186.4.1 Some confusion arose as to whether Ms Travers had previously met the Claimant and if so when. The Claimant did not give direct evidence himself on this but seemed to suggest when he was cross examining Ms Travers that they had met once or twice some years ago in a group meeting where he and a number of other colleagues were present. Ms Travers’ statement has of course been prepared to the best of her knowledge and belief and not with 100% assurance.

6.4.2 In any case, whether they had met or not, Ms Travers was aware of the protected act because the Claimant directly referred to it in the grievance on which she was hearing the appeal. It did not involve her, and the Claimant did not, as we have found, advance a case before her, as he has before us, that everything stems from it and Mr Sanders’ reaction to it.

6.4.3 Ms Travers, as we have noted, gave some clear evidence before us, which we accept, in relation to the Respondent’s systems and the reasons why the Taleo system in particular may have generated the issues referred to above. She tried in her outcome letter on 16 July 2018 to ensure the Claimant focussed on the future rather than dwelling on the past. The Claimant before us took issue with her recommendations as to his future applications, claiming it was neither the time nor the place to make them in an appeal outcome letter. We disagree. The Claimant has been told on numerous occasions and by numerous people that the past cannot be altered but that he may well have a bright future if he is able to take on board the feedback he has received, and particularly in relation to his CV and, to a lesser extent, covering letter.

6.4.4 One example of his resistance to such feedback is that he took umbrage at the suggestion that his thumb or finger appeared in a photograph of what he had presented to the recruitment agent. Ms Travers’ point was that the presence of a thumb in the picture was not suggestive of a very professional finish. The Claimant appeared to miss this point before us because he was focussing on the fact that Ms Travers had assumed it was his thumb because he is black and so is the thumb in the picture.

6.4.5 In any event, we can see no reason to conclude that the Claimant’s prior protected act was in any way influential in Ms Travers’ thinking in this appeal. On the contrary, she, like the other managers comes across as trying to move the Claimant on to put the past behind him, progress his career and fulfil his potential, and she makes positive suggestions as to how he might achieve that. Conclusions

7.1 Conclusion on the first issue: both Ms O’Neill and Mr Sanders had knowledge of the protected act relied on. However, they did not fail to action any secondment opportunity for the Claimant because at the time of their meeting in August 2017, there was none; none was (or could be) promised, and when 16 roles became available in January 2018, Mr Sanders directly drew that fact to the Claimant’s attention. The Claimant did not apply for any of them. There was no unfavourable treatment, but if there was, it was not because of the protected act.

7.2 Conclusion on second issue: the Respondent did not fail to respond or deal with the complaint letters and Ms O’Neill as the only Respondent manager named, in conjunction with Mr Sanders dealt fairly and objectively with his complaint. There was no unfavourable treatment.

7.3 Conclusion on third issue: the interviewing managers did not know of the Claimant’s first claim, and hence could not have acted unfavourably towards him because he had brought it. There is no evidence that they were influenced by Mr Sanders in rejecting the Claimant for the roles. There was no unfavourable treatment because of the protected act.

7.4 Conclusion on fourth issue: while Ms Travers knew of the protected act, there is no evidence she was influenced by it (or by Mr Sanders) in reaching her appeal conclusions. There was no unfavourable treatment because of the protected act.

7.5 On the time points, in any case, all the issues before us bar the appeal to Ms Travers (fourth issue) are out of time. While it is a just and equitable test and we can extend time if there is good reason, the presumption is that the time limit will be applied, and we accept the Respondent’s submission that there has been no good reason advanced.

7.6 In fact, in this case, we further accept that this Claimant - more than most litigants in person - was aware of the time limits, because that was the very reason why the first claim was rejected. He has also had access to union representation throughout. Therefore, we would not extend time; but the claims would have been rejected even if we had done so. There was no continuing act. Ms Travers had had no prior involvement in any of the other treatment complained of, and each of those other complaints relates to allegations of conduct by different managers.

7.7 So far as Ms Travers is concerned then, while the complaint against her appeal decision is in time, it is rejected for the reasons we have set out above. The Tribunal does not have jurisdiction to hear the other allegations.

7.8 Accordingly we find that the Claimant’s claim is not well-founded and is dismissed.

7.9 The remedies hearing provisionally listed for August is vacated.