Mrs H CraikMr J BallardIn person for claimantDate 15 June 2021
JUDGMENT
The judgment of the Tribunal is that:(1) the Claimant was unfairly dismissed by reason of having made a protected disclosure;(2) the Claimant was unfairly dismissed by reference to Section 98(4) of the Employment Rights Act 1996;(3) the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of age is dismissed;(4) the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of sex is dismissed; and(5) the Claimant was unlawfully discriminated against by reference to the If required a hearing will be listed for a future date to determine the remedies in relation to claims (1), (2) and (5) and the claimant should write in to request one is agreement between the parties cannot be reached.
REASONS
[1]In this case the Claimant brings five claims.(1) He alleges that he has been unfairly dismissed by the Respondent;(2) He alleges that he has been unfairly dismissed by reason of having made protected disclosures;(3) He alleges that he has been subjected to unlawful discrimination by reference to the protected characteristic of race;(4) He alleges that he has been subjected to unlawful discrimination by reference to the protected characteristic of sex; and(5) He alleges that he has been subjected to unlawful discrimination by reference to the protected characteristic of age.
THE ISSUES
[2]In the course of a Case Management hearing before Employment Judge Tayler on 21 May 2018 the parties agreed that the following issues fell to be determined: Qualifying Disclosure
THE ISSUES
[1]Did the Claimant make disclosures of information:1.1 Disclosure 1: By email in August 2017, reporting to Hilary Tysoe, Rowena Smith, Emma Thomas (‘the HR team’) the threat made by Roya Arasp and Darrell Giovanni that ‘If Virgin Active don’t get him, we will’. Further, by informing the respondents later in August that he had also told the police.1.2 Disclosure 2: In June or July 2017, telling the HR team that Mr Giovanni had committed direct debit fraud.1.3 Disclosure 3: During his grievance following his disciplinary suspension telling the respondents that he had suffered a heart attack in November 2016 because of the way they had been treating him.[2]Did the disclosures in the reasonable belief of the Claimant tend to show that:2.1 a criminal offence had been committed, was being committed or was likely to be committed?2.2 a person had failed, was failing or was likely to fail to comply with any legal obligation to which he is subject?2.3 the health or safety of any individual had been, was being or was likely to be endangered?[3]In the reasonable belief of Claimant were the disclosures made in the public interest? Protected Disclosures[4]If the Claimant made protected disclosures were they protected disclosures being made to the Claimant’s employer? - 2 - Detriment, automatic unfair dismissal and causation[5]Was the Claimant subject to detriment by reason of having made the protected disclosures by the manner in which grievances, disciplinary and appeal were handled, including the outcomes of the disciplinary process and grievance?[6]Was the principal reason for the Claimant’s dismissal the making of the protected disclosures? Unfair Dismissal[7]What was the reason for the dismissal of the Claimant? The Respondent relies on conduct in that the Respondent alleges that the Claimant made a racist remark to a member of staff, bullied another member of staff and was aggressive in his approach to managing the sales team.[8]Did the Respondent have a genuine belief that the Claimant was guilty of the conduct found against him?[9]Was any such belief formed on reasonable grounds?[10]Did the Respondent conduct a reasonable investigation?[11]Was the dismissal fair? Direct age and/or sex and/or race discrimination[12]Was the handling of the Claimant’s disciplinary and grievances as set out in his tribunal claim and/or his dismissal direct age and/or sex and/or race discrimination?
Compensation
[13]If successful what compensation should the Claimant be awarded: including any deduction that should be made if the Claimant caused or contributed to his dismissal or to take account of the chance he would, or might, have been dismissed absent any unfair process? 3 In relation to the discrimination allegations (Point 12 of the Case Management Notes), the parties co-operated on the first day of the hearing to facilitate an agreed statement of Further Particulars to be produced with a view to clarifying more specifically the matters being relied upon by the Claimant. Those Further Particulars were expressed as follows: WHISTLEBLOWING 1. Reporting crime to Respondent of Direct Debit fraud being committed by Darrell Giovanni. Detriment suffered: Disciplinary action. 2. Reporting crime – Threats to safety – to the Respondent and police. Detriment suffered: Dismissal. DISCRIMINATION 1. Reported a racist, ageist comment "you are only doing this to me as I am old, Treated differently due to age and race. - 3 - Age – Told to be "more mature". 3. Roya Arasp raised concerns to have me removed as disciplinary officer – HR investigated and put her disciplinary on hold. Age, Race, Gender 4. My grievances were not heard in line with Policy. Roya Arasp, Jannett George and Darrell Giovanni all had grievance hearings and investigations into theirs, without a dictated scope. Grievances treated differently. Due to Race, Age and Gender. meetings/investigations leading to unfair disciplinary process. Lead to unfair dismissal. 5. Treated differently in disciplinary process regarding racial allegation compared to Jannett George. Age, Race, Gender Treated differently age, race, gender 7. Grievance meetings were handled differently and their grievances taken at face value with no set agenda. Age, Race and Gender 8. Threat to safety not taken seriously by the Respondent. There was a witness statement provided to the Respondent confirming the threat. In comparison, I denied making the racial allegation. Roya Arasp also had a witness to her allegation. The Respondent dismissed me. Due to Race and Gender. - 4 - 9. Disciplinary officer made discriminatory comment "young gent out of his depth" and confirms "he's exactly what he thinks he is being discriminated against". Due to age and gender Racial allegation changed by Malcolm Armstrong/Respondent (3 June) (evidence 10. provided showed it could not have happened). Comparator: Jannett George admitted to making racist, ageist comment – no action taken by Respondent. Due to age, race and gender. CONDUCT OF THE PROCEEDINGS 4 The hearing of this case was listed for five days commencing on 23 July 2019. 5 On Day 1 of that listed hearing the matter had initially been included in the list of hearings at the London Central Employment Tribunal to be heard before an Employment Judge sitting alone. However, given that the Claimant’s claims included an allegation of detriment and unfair dismissal by reason of having made a protected disclosure (what is often described as a “whistleblowing” complaint) it had been ordered at a Preliminary Hearing (Case Management) held on 21 May 2018 before Employment Judge Tayler that the matter should be heard by a full panel in accordance with the provisions of the Employment Tribunals Act 1996 (as amended). 6 Non-Legal Members were eventually assembled to join the Employment Judge, but half a day was lost before proceedings could get under way. 7 Thereafter, the case proceeded on 23 – 30 July 2019, and additional listed sittings were held on 3 September and 11 October 2019. Following a hearing on 25 October 2019 at which final submissions were made on behalf of each of the parties, the Tribunal adjourned to consider their decision in chambers on 23 & 24 January 2020. Shortly following the initial chambers discussions Covid-19 struck, with a lockdown of the Employment Tribunal premises. Notwithstanding the closure of the London Central Employment Tribunal building, which has continued up until the time of completing this judgment, arrangements were eventually made for a “virtual” chambers hearing to take place, using “MS Teams”. This duly took place on 16 & 18 February 2021. The Tribunal is grateful to solicitors acting on behalf of the Respondent for their assistance in accessing electronic versions of the trial bundles. 8 The Tribunal heard oral evidence from the Claimant, and from five witnesses on behalf of the Respondent – namely Ms Morag Alabaster (on Day 4); Mr Malcolm Armstrong (on Days 4 and 5); Ms Emma Thomas (on Days 5, 6 and 7); Mr James Archibald (on Day 5); and Ms Hilary Tysoe (on Day 6). It was noted that Ms Tysoe attended to give evidence notwithstanding that she had by the time of the hearing left the employment of the Respondent. In the course of his evidence, Mr Armstrong confirmed that a number of other individuals who featured in the - 5 - narrative had also left the employment of the Respondent, but were not appearing to give evidence. Those former employees were Ms Roya Arasp, Ms Wynny Asiegbu, Ms Jannett George, Mr Darrell Giovanni, Mr Tristan Laubscher, Ms Denise Mackenzie, Ms Rowena Smith and Mr Simon Stokes. 9 Oral evidence was given on the basis of written Witness Statements, and the evidence-in-chief was then subjected to cross-examination and questioning from the panel. 10 Documentary evidence was also received in the form of an agreed Bundle of documents, which was supplemented by additional documents produced by both the Claimant and the Respondent during the course of the hearing. 11 At the outset of the hearing the Tribunal dealt with a matter concerning covert recordings made by or on behalf of the Claimant which contained conversations between members of the Respondent’s management team during the course of(1) a “disciplinary hearing” held in relation to the Claimant on 22 August 2017 (Mr Armstrong and Ms Thomas) [Bundle p.546A ff.], and(2) a “disciplinary appeal hearing” held in relation to the Claimant on 9 October 2017 (Mr Stokes and Ms Thomas). 12 At a hearing before Employment Judge Tayler on 21 May 2018 the Respondent had made application for the covert recordings to be excluded from the evidence in this case. That application was refused. 13 In consequence the Tribunal received both the recordings made and transcripts prepared from those. It was common ground between the parties that the transcripts produced to the Tribunal accurately reflected the content of the original recordings. THE LAW (1) Unfair Dismissal
THE LAW
[14]Section 94(1) of the Employment Rights Act 1996 states that, subject to any other provision in Part X of the Act: An employee has the right not to be unfairly dismissed by his employer.[15]Section 98 of the Employment Rights Act 1996 provides that:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show — (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it — - 6 - (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) — (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[16]Section 207 of the Trade Union and Labour Relations Act 1992 provides(1) A failure on the part of any person to observe any provision of a Code of Practice issued under this Chapter shall not of itself render him liable to any proceedings.(2) In any proceedings before an employment tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by ACAS shall be admissible in evidence, and any provision of the Code which appears to the tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.(3) In any proceedings before a court or employment tribunal or the Central Arbitration Committee any Code of Practice issued under this Chapter by the Secretary of State shall be admissible in evidence, and any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question.[17]In the context of that provision, the Tribunal has had regard to the ACAS Code of Practice No.1 on Disciplinary and Grievance Procedures (latest version 11 March 2015). (2) Unfair Dismissal by Reason of Having Made a Protected Disclosure[18]Section 103A of the Employment Rights Act 1996 provides that: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[19]Section 43A of the Employment Rights Act 1996 provides that: In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. - 7 -[20]Section 43B of the Employment Rights Act 1996 provides that:(1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following — (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).[21]Section 43C of the Employment Rights Act 1996 provides that:(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to — (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.[22]Section 43G of the Employment Rights Act 1996 provides that:(1) A qualifying disclosure is made in accordance with this section if — (a) … (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, - 8 - (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure.(2) The conditions referred to in subsection (1)(d) are — (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information — (i) to his employer, or (ii) in accordance with section 43F.(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to — (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.[23]Section 43H of the Employment Rights Act 1996 provides that:(1) A qualifying disclosure is made in accordance with this section if — (a) … (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, (d) the relevant failure is of an exceptionally serious nature, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure.(2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.[24]Section 43J of the Employment Rights Act 1996 provides that: - 9 -(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.(2) This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.[25]Section 43L of the Employment Rights Act 1996 provides that:(1) In this Part — - “qualifying disclosure” has the meaning given by section 43B; - “the relevant failure”, in relation to a qualifying disclosure, has the meaning given by section 43B(5).(2) In determining for the purposes of this Part whether a person makes a disclosure for purposes of personal gain, there shall be disregarded any reward payable by or under any enactment.(3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention.[26]Section 47B of the Employment Rights Act 1996 provides that:(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. …(2) This section does not apply where — (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X). …(3) The Discrimination Claims (Age, Sex and Race)[27]The allegations made by the Claimant by reference to the Equality Act 2010 are agreed to be allegations of “direct” discrimination.[28]Section 4 of the Equality Act 2010 provides that: The following characteristics are protected characteristics —• age; …• race; …• sex; …[29]Section 13 of the same Act deals with “direct discrimination” and provides (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. - 10 - …[30]Section 23 provides that: (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.[31]The relevant parts of Section 25 provide that: (1) Age discrimination is — (a) discrimination within section 13 because of age; (b) discrimination within section 19 where the relevant protected characteristic is age. … (6) Race discrimination is — (a) discrimination within section 13 because of race; (b) discrimination within section 19 where the relevant protected characteristic is race. … (8) Sex discrimination is — (a) discrimination within section 13 because of sex; (b) discrimination within section 19 where the relevant protected characteristic is sex. …[32]Section 120 of the Equality Act 2010 provides that: (1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to — (a) a contravention of Part 5 (work); (b) a contravention of section 108, 111 or 112 that relates to Part 5. …[33]Section 136 of the same Act, which is concerned with the burden of proof, provides that:(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.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.(5) …(6) A reference to the court includes a reference to — - 11 - (a) an employment tribunal; (b) … PRIMARY FINDINGS OF FACT[34]Having heard evidence from the witnesses as set out above, and on consideration of documents contained in the Agreed Bundle, the Tribunal makes the following findings of fact:a. A. Background and events leading to the Claimant’s move to Mayfair(1) The Claimant commenced employment with the Respondent – which operates a number of fitness centres (“Clubs”) – on 8 May 2012 as an Assistant General Manager at the Respondent’s Chelmsford Club. Subsequently, he progressed to the position of General Manager and eventually also managed the Respondent’s Harlow, Hemel Hempstead, and Repton Park Clubs.(2) The Claimant’s evidence is not challenged that he had good relationships with his work colleagues. In addition, there is evidence in the Bundle that he received good feedback from Management about his performance. The evidence also shows that he achieved various awards throughout his career – and he points particularly to the Repton Park being nominated for Club of the Year under his management.(3) Having shown himself to be capable of high levels of performance in relation to a broad range of management areas, the Claimant was gradually trusted with additional responsibilities, including sensitive and confidential areas of the Respondent’s operations. He was also called upon to support various Clubs in relation to health and safety matters, as well as with ensuring Club standards. Latterly, he was given tasks involving what he has described as “HR support” for the London region of the Respondent’s activities, which included carrying out investigations and conducting disciplinary hearings for Clubs within that region.(4) In January 2017, the Claimant was approached by the Respondent’s Regional Director (Mrs Renee Bowman) about a vacancy at the organisation’s Mayfair Club. The Claimant told us that Mrs Bowman had described that Club as “the biggest money-making club in London”. He was subsequently interviewed for the Mayfair position, and, having performed successfully, was offered a “dual role” as manager of the Mayfair Club while at the same time continuing to be responsible for the management of the Repton Park Club. The Claimant accepted the offer and was rewarded with a significant salary increase together with a work travel package [B/55].(5) At around the time of commencing his expanded duties in relation to the Mayfair Club the Claimant became the subject of a formal grievance lodged by an employee at the Repton Park Club. The person lodging the grievance was Mr David Amroon (a Membership Consultant) against the Claimant, as his General Manager [B/56 for revised grounds of grievance]. The employee lodging the grievance had previously been subjected to a disciplinary procedure, resulting in - 12 - warnings and a “final written warning” (issued on 14 June 2016 for “underperformance”). Those disciplinary sanctions had been appealed by the employee, and had been upheld by the Claimant.(6) A grievance process was put in place by Ms Wynny Asiegbu of the Respondent’s People Hub, in conjunction with Ms Jen Russell (Head of Safety). An investigation meeting to deal with Mr Amroon’s grievance was set up for 22 March 2017. An outcome letter, which did not uphold the grievance, was sent to Mr Amroon by Ms Russell on 6 April 2017 [B/73] [B/146-8].(7) Following receipt of that outcome Mr Amroon indicated in an email dated 10 April 2017 that he intended to appeal against the result through his solicitor [B/74]. Eventually Mr Amroon lodged an appeal as intimated [B/203-4], at the same time as initiating the early conciliation procedure through ACAS. An appeal took place at a meeting on 15 May 2017. The outcome of that appeal hearing was communicated to Mr Amroon by letter signed by Mr Andy Birch (Product & Fitness Director) dated 15 June 2017 [B/245-5]. The result was that the appeal was not upheld.b. B. Line management by the Claimant after joining the Mayfair Club(8) The Claimant told the Tribunal that, when he took over the management of the Mayfair Club at the end of January 2017, he was alerted to what he described as “serious concerns”, causing him immediately to request Health & Safety and Financial Audit information. At about the same time (6 February 2017) important changes were implemented in relation to the management line for the Mayfair Club, including the removal of Mrs Bowman from the business with immediate effect. Following that, Mr Glen Heidke replaced Mrs Bowman as Regional Director, and thereby became the Claimant’s new Line Manager. The “dual role” continued until the Claimant handed over the management of the Repton Park in June 2017, to be replaced by another General Manager.(9) The Claimant took on responsibility for the Mayfair Club with effect from 26 January 2017. He received what were described as “handover documents” from Mr Daniel Dean (General Manager) in relation to the Mayfair Club on the evening of 26 January 2017 [B/55 – B/55III]. Almost immediately after this, on 8 February 2017, the Claimant was informed by Mr Nav Dari (Audit Team Leader) that there was to be a “club audit” on 8 February 2017 [B/55BBBB-CCCC].(10) Following this audit, the metric reported in relation to the financial audit was 68%, set against a “pass rate” of 90%. The Claimant concluded that this indicated what he described as “a huge risk” for him as the new General Manager. In particular, he felt that it raised “concerns” about Ms Jannett George (the Member Services Manager) whose role encompassed responsibility for passing the financial audit.(11) In the light of the audit result, the Claimant took both general action and commenced specific action in relation to Ms George. His action in relation to Ms George included the setting out of “expectations and actions” in order to resolve - 13 - (1) various Health and Safety audit issues and (2) the financial audit situation. The Claimant discussed and reviewed these with Ms George by way of “regular 1-1 meetings”.(12) This action adopted by the Claimant was undertaken in consultation with his line manager and under advice from the Respondent’s “People Hub”, which it is agreed deals with HR issues and provides support and expert HR advice to General Managers.(13) Following advice from the People Hub, Ms George was suspended from work pending investigation.(14) On 8 March 2017, the Claimant sent the outcome of his Investigation Meeting in relation to Ms George, with a recommendation to proceed to a disciplinary hearing, to Ms Wynny Asiegbu (an Advisor in the People Hub). Thereafter, the advice from the People Hub was to proceed to a disciplinary procedure in relation to Ms George.(15) Separately, on 27 March 2017 the Claimant had been asked by Mr Andre Orr (Operations Manager Mayfair) to conduct a disciplinary meeting with Ms Roya Arasp. The issues involved dated back to 2016, and concerned Ms Arasp’s nonadherence to procedures concerning a so-called “change freeze”, and noncompliance with procedures relating to the issuing of guest passes. Mr Orr had conducted an investigation in that case under the oversight of the People Hub team.(16) Before that disciplinary meeting could take place, the Claimant was informed by Mr Orr [B/144-5] by email dated 6 April 2017 that a recommendation had been received from the People Hub team (Ms Wynny Asigegbu and her manager Ms Emma Thomas) that no further action be taken in the case. Mr Orr thus advised that there was no need for a disciplinary meeting. This outcome contrasted with the view of the Claimant and Mr Orr that there should have been a progression to a disciplinary process [B/143].(17) In a communication to Ms Denise Mackenzie (Head of People Operations) dated 10 April 2017 Ms Wynny Asiegbu set out what she described as “Craig Hughes – HR update” [B/149-153], in which she outlined the situation as she understood it in relation to Ms George, Ms Asarp and Mr Amroon, as well as an additional employee, Mr Michael Akande, who had also been subject to an investigation procedure conducted by the Claimant. That communication was not copied to the Claimant.(18) Shortly after this, on 20 April 2017 the Claimant had his first formal “one to one” meeting with his immediate line manager, Mr Glen Heidke. During the course of that meeting the case of Ms George was discussed, and it was agreed that there should be a “weekly 1-1” on the basis of new documentation setting out expectations, as well as a weekly review of a “PIP” (Personal Improvement Plan) for Ms George. It was also agreed that the Claimant should send to Mr Heidke (1) weekly HOD scorecard, and (2) copies of PIPs. The Claimant confirmed those agreements in an email sent at the end of the afternoon of 20 April 2017 [B/172], - 14 - including specific reference to the fact that the PIP for Ms George would be set in train from the next Monday.(19) By this stage, in addition to the PIP for Ms George [B/184-186] [B214-216], there were PIPs in place for Mr Darrell Giovanni [B/181-183], Mr Kenny Solly [B/197-189], and Ms Roya Arasp [B/190-192]. All of these latter three employees were under the management of Ms Helen Ashdown.(20) On 5 May 2017 the Claimant sent an email to Mr Heidke reporting various matters which had been dealt with in the light of the agreements made at the 1-1 on 20 April 2017 [B/205].(21) On 9 June 2017 the Claimant sent an email to Ms Wynny Asigegbu under the heading “PIP Reviews and Advice Needed” [B/241-2]. That message included attachments with three of the “live” PIPs, with a promise of completion of the fourth (for Ms Roya Asarp, which had been delayed by her taking annual leave), along with notes relating to the achievement of set objectives on the parts of the subjects of the PIPs. A brief note acknowledging receipt and promising that “I’ll go through your email and advise you accordingly” was sent on 12 June 2017 [B/252]. This was followed by a communication from Mr Heidke to the Claimant on 13 June 2017, in which Mr Heidke indicated that he had met with Ms Asigegbu in relation to the PIP reports, and went on to comment that: “I am happy with them, thorough and well detailed” [B/241].(22) Following a message from Mr Heidke to Ms Asigegbu on 14 June 2017, “nudging” her to get back to the Claimant “so he can move forward” [B/243], and a message on the same date from the Claimant making the same enquiry [B/251-2], Ms Asigegbu sent an email on 15 June apologising for the delay in responding and asking for copies of the “121 meeting forms” for the 3 employees in respect of whom she had initially received PIP reports. The Claimant replied on the same afternoon, attaching the information requested, along with the documentation in relation to Ms Roya Asarp [B/248].(23) Shortly thereafter, on the same afternoon, Mr Heidke emailed the Claimant under the heading “Re: Roya Arasp PIP Review”, to ask if Ms Asigegbu had “come back on the other PIP’s” [B/248], to which the Claimant responded an hour later [B/247], in the following terms: “Just spoken to her now, shes advised that i now hold a formal investigation to go over the PIP’s again. Seems a bit long winded given the reviews have already taken place with communications around reasons why standards not met.”(24) The Claimant undertook to issue invitations for investigation meetings on the following Monday, with a view to holding these on the following day. An immediate response was sent by Mr Heidke, in which he stated: “I assume the formal investigation leads to a disciplinary outcome as the PIP’s are signed and agreed by both parties – that is the normal process post PIP.” - 15 -(25) It is common ground that the Claimant held an investigation meeting with Ms George on 21 June 2017, and that he undertook a similar meeting with Mr Darrell Giovanni on the same day. It is also agreed that an investigation meeting was held with Ms Roya Arasp on the following day, 22 June 2017.(26) On 26 June 2017 the Claimant wrote to Mr Richard Downs (Dual General Manager) attaching notes of an investigatory meeting which he had held with Ms George [B/261-263]. These related to a disciplinary meeting to be conducted by Mr Downs on 3 July 2017. At almost exactly the same time, the Claimant emailed Mr Barry Gillard (Regional Sales Manager) attaching copies of “Investigation Notes Key Points” in relation to Mr Darrell Giovanni, Mr Kenny Solly, and Ms Roya Arasp [B/264-268].(27) In the event, Mr Downs was unable to undertake conduct of the disciplinary meeting on 3 July 2017, so the Claimant sought the assistance of Mr Tristan Laubscher (General Manager, Swiss Cottage & Cricklewood) to stand in for Mr Downs [B/282]. Mr Laubscher undertook to perform the task, and the Claimant then emailed him a copy of his Investigation Notes for Ms George [B/278-9], together with a “follow on” email setting out further details [B/280].(28) Mr Laubscher held the meeting with Ms George on 3 July 2017, following which he sent an email to the Claimant on 4 July 2017 seeking a number of “clarifications” [B/290-1]. The Claimant responded on the same day setting out responses to the questions raised by Mr Laubscher [B/288-290], including copies of Ms George’s PIPs since 24 April 2017. Mr Laubscher also wrote to Ms Emma Thomas in the People Hub, enquiring whether additional documentation might be available, to which the response was that there was nothing beyond outcome letters relating to 2016 [B/292].(29) An enquiry from the Claimant to Mr David Long (Senior General Manager) by email dated 4 July 2017 [B/294] sought confirmation of what had been the outcome in respect of an earlier disciplinary hearing for Ms George. Mr Long’s response stated that, to his memory, the outcome had been a final written warning [B/293].c. C. Grievances raised against the Claimant (a) Mr Darrell Giovanni(30) On 26 June 2017 Mr Giovanni raised a grievance against the Claimant. This was set out in a document addressed to the People Hub under the title “Grievance against General Manager Craig Hughes” [B/915-916A].(31) The matters set out in Mr Giovanni’s grievance communication reflected a generalised complaint about the Claimant’s management style and approach (his “attitude”), which were summed up towards the end as leaving the complainant (and, it was alleged, other managed staff) “unsupported, picked on and mistreated”. - 16 -(32) Those matters were linked to an “investigation meeting” relating to Mr Giovanni which took place on 21 June 2017.(33) Mr Giovanni further set out the names of Ms Roya Arasp (Sales Consultant), Mr Kenny Solly (Sales Consultant), Ms Jannette George (Membership Service Manager) and Mr Leon Carr (Front of House) as members of staff who it was said could “inform you of their experience with Craig Hughes and support my claims”. (b) Ms Roya Arasp(34) On 2 July 2017 Ms Roya Arasp sent an email to Ms Wynny Asigegbu [B/295] which contained a “formal grievance” against the Claimant. The complaints were set out as being that the Claimant: “… has harassed me based on my sexual orientation and race/nationality, and further that he has engaged in bullying practices against me since arriving as General Manager at the club.” No further detail was included, other than for Ms Arasp to assert that: “… I feel unsafe in the club with Mr Hughes as General Manager and request that immediate action is taken.” Ms Arasp expressly requested that her grievance be: “… kept in the utmost confidence to the maximum possible extent given the sensitive nature of the complaint and the effect his behaviour has had on me.” (c) Ms Jannett George(35) By communication dated 3 July 2017 – the day scheduled for her to attend an “investigation meeting” which was to be conducted by Mr Laubscher – Ms George wrote to the Respondent’s HR People Hub, setting out a formal grievance directed against the Claimant [B/285-7] [B/299].(36) This communication was also set out in broad terms, alleging “being treated as an outcast in my place of work”; being “unfairly targeted”; and “setting almost impossible expectations as if he’s deliberately setting me up to fail instead of managing me to do well”. The statement culminated in the proposition that: “I strongly believe that Mr Hughes is only concerned about how he could get me out of my job.”(37) Specific reference was also made to the handling of a request for the taking of annual leave to visit Jamaica along with an issue over certification of First Aid training.d. D. Treatment of the grievances against the Claimant(38) All of the three grievances were dealt with together by Ms Denise Mackenzie.(39) On 20 July 2017 the Claimant attended a meeting with Ms Mackenzie at Head Office. A note-taker (Ms Smith) was also brought in for that meeting. The Claimant - 17 - was informed that this was to question him “regarding the three grievances raised against me”. The Claimant told the Tribunal [W/S para.54] that he was not aware of the contents of these grievances or the allegations made towards him.(40) A substantial document [B/336-361] is set out in the Bundle as containing notes made of an investigation meeting held on 20 July 2017. The timings indicate that the meeting commenced at 10:30 and ended at 13:50.(41) An account of Ms Mackenzie’s investigation and her conclusions in the light of that investigation was set out in a document entitled “Investigation Outcome” [B/885-898]. A second copy of that document was also included in the Bundle [B/899-912], which included a further two pages [B/913-914] containing an Annex setting out a “List of Documents” which Ms Mackenzie indicated were “all of the investigation documents relevant to the case”.(42) Ms Mackenzie’s conclusions were that: “Following my investigation I have a reasonable belief based on the evidence gathered that Craig Hughes should face a disciplinary hearing for the following reasons:• That, following the issuing of the PIP's to Darrell Giovanni and Roya Arasp he failed to adequately support the team to success due to insufficient follow up and assessment of progress; that he didn't adequately support the team ln the absence of a SM. Even though the majority of MC's in VA are not achieving these are the only 2 MC's on a PIP. This would support the assertion by Darrell Giovanni that he is setting them up to fail.• That he made a comment of a racist nature on 3rd June; "We had better watch out in the office, you're lranian aren't you?"• That he has a tendency towards disciplinary investigation/action rather than having a conversation and supporting as demonstrated by the fact that both Darrell Giovanni and Roya Arasp were given an outcome of no further action for the PIP disciplinary cases and in Darrell's case the use of another members bank details: the fact that the outcome of Jannett George disciplinary case relating to the freeze resulted in no further action and him asking whether he should carry out an investigation due to her failing to attend competency training even though she was suspended at the time, which gives me a reasonable belief that Craig Hughes had an ulterior motive.• That he treats Jannett George unfairly as demonstrated by his requirement of her to email following her club walk arounds; that he insisted, unreasonably that she get a certificate which wouldn't be issued; he excludes her from conversations or doesn't speak to her.• That he tried to influence the outcome of the latest disciplinary case against Jannett George to dismissal as through the text discussion with Tristan Laubscher, This would support Jannett George's assertion that "I strongly believe that Mr Hughes is only concerned about how he could get me out of my job.”e. E. Disciplinary measures in relation to the Claimant(43) In the wake of the “Investigation Outcome” prepared by Ms Mackenzie, and at the instigation of Ms Rowena Smith (People Advisor) [B/316] a letter suspending - 18 - the Claimant from work for investigation to take place [B/330-1] was drawn up. That letter, which carried the date of 17 July 2021, stated: “I write in relation to the following allegation discussed your alleged breach of the Company’s rules and policies, in particular that it is alleged:• That you have made an inappropriate comment of a racist nature to Roya Arasp.• That you have made an inappropriate comment about an employees (Roya Arasp) sexual orientation.• That you have treated unfairly and allegedly harassed and bullied Jannette George, Roya Arasp and Darrell Giovanni.” The letter went on to state that: “… as the allegations appear to involve a serious matter of potential gross misconduct, they need to be investigated further, and you will be suspended from work during the investigation or for as long as is appropriate. The allegations may require us to hold a formal disciplinary meeting with you once the investigation is complete.”(44) There had been some difficulty in getting a finalised version of the “pending investigation letter” in the Respondent’s HR People Hub. On 17 July 2017 Ms Smith wrote to Mr Heidke [B/332-3] to say: “Attached is the suspension letter to issue Craig following the meeting today. I am unsure of the allegation that was stated at this meeting, please can you assist with this? Denise – I have cc’d you for support on the allegation if needed”(45) On 19 July 2017 Mr Heidke responded to Ms Smith and Ms Mackenzie [B/332], to say: “… any chance I could pls have some support on getting this put together and out? Denise can you pls confirm the exact allegation(s).”(46) A copy of the initial “template” letter drawn up for the Claimant was included in the Bundle at pages B/334-5, in which the operative paragraph read: “I write in relation to the following allegation discussed your alleged breach of the Company’s rules and policies, in particular that it is alleged:• That you were seen taking a <insert item> without paying. You were seen on CCTV to of taken the item(s) from the fridge in the club lounge area and leaving without making payment. From the evidence available it is apparent that no payment was processed for the item(s), meaning you are in breach of the Company Disciplinary Policy.”(47) The Claimant told the Tribunal that he received the “suspension pending investigation” letter by email on 24 July 2017 and that it had been backdated to 17 July 2017. Given the circumstances revealed by the available evidence the Tribunal accepts the Claimant’s evidence in that regard.(48) Thereafter, under the guidance of Ms Mackenzie [B/318], on 3 August 2017 Ms Smith issued the Claimant with an “Invite to Disciplinary Meeting” over the - 19 - signature of Ms Mackenzie to what was described as an “investigation hearing” which was to be held on 7 August 2017 [B/363-4].(49) On 3 August 2017 Ms Smith emailed the Claimant at 18:00 [B/320-1], to inform him that: “Denise has now completed her investigation and she has progressed the matter to disciplinary stage; therefore, you have been invited to attend a disciplinary meeting, details of which are included in the attached invite to disciplinary letter.”(50) In that email Ms Smith indicated that she had also sent a signed copy of the letter by post, along with “the investigation report and all the supporting evidence. The signed “Invite to Disciplinary Meeting” letter [B/363-4] included the following: “I write following the meeting held on 20th July at BSO with myself Denise Mackenzie at which we discussed the three grievances that had been raised by Darrell Giovanni, Roya Arasp and Jannett George. The investigation is now completed and having now considered this matter I believe that it should be dealt with formally as a disciplinary matter. Therefore, I am writing to you to ask you to attend a meeting on Monday 7th August at 12.00pm at BSO, Training Room 3 with Malcolm Armstrong, Regional Director & Emma Thomas, Head of People Services who will attend as my witness and note-taker. The purpose of the meeting will be to discuss the following matters: The details of the allegation are detailed below:• That, following the issuing of the PlP's to Darrell Giovanni and Roya Arasp you failed to adequately support the team to success due to insufficient follow up and assessment of progress; that you didn't adequately support the team in the absence of a SM. Even though the majority of MC's in VA are not achieving these are the only 2 MC's on a PIP. This would support the assertion by Darrell Giovanni that you are setting them up to fail.• That you made a comment of a racist nature on 3rd June; "We had better watch out in the office, you're Iranian aren't you?"• That you have a tendency towards disciplinary investigation/action rather than having a conversation and supporting as demonstrated by the fact that both Darrell Giovanni and Roya Arasp were given an outcome of no further action for the PIP disciplinary cases and in Darrell's case the use of another members bank details; the fact that the outcome of Jannett George's disciplinary case relating to the freeze resulted in no further action and you asking whether you should carry out an investigation due to her failing to attend competency training even though she was suspended at the time, which gives me a reasonable belief that you had an ulterior motive.• That you treat Jannett George unfairly as demonstrated by your requirement of her to email following her club walk arounds; that you insisted, unreasonably that she get a certificate which wouldn't be issued; that you exclude her from conversations or don't speak to her.• That you tried to influence the outcome of the latest disciplinary case against Jannett George to dismissal as demonstrated through the text discussion with Tristan Laubscher. This would support Jannett George's assertion that ‘I strongly believe that Mr Hughes is only concerned about how he could get me out of my job.’”(51) The letter concluded by stating that: - 20 - “Malcolm Armstrong will reach a decision about the most appropriate action to take once he is satisfied that the allegations have been investigated fully and that he has had an opportunity to discuss the evidence with you and listened to your comments. You will of course be given every opportunity to give your views and comments at the meeting. Due to the nature of the allegations against you, you should be aware that this could lead to a dismissal without notice (gross misconduct).”(52) On 11 August 2017, Ms Thomas wrote to the Claimant rescheduling the “Disciplinary Hearing” to 14 August 2017 [B418-9]. A further communication dated 14 August 2017 was sent by Ms Thomas rescheduling the “Disciplinary Hearing” to 22 August 2017 [B/422].(53) The meeting duly went ahead on 22 August 2017, conducted by Mr Malcolm Armstrong and Ms Emma Thomas. The Claimant was accompanied by his representative Mr Paul Forsey. A “briefing note” prepared for use by Mr Armstrong was produced [B/473-5]. Handwritten notes were made during the meeting by Ms Thomas [B/476-507] and a typed-up copy of those notes was subsequently produced [B/508-535].(54) In addition, it emerged later that, unbeknown to either Mr Armstrong or Ms Thomas, a covert recording of the meeting on 22 August 2017 had been made and has since been transcribed [B/546A-F]. The admissibility of the content of that covert recording has been the subject of preliminary proceedings in this case before Employment Judge Taylor.(55) Subsequent to the meeting on 22 August 2017 a further meeting was held between Mr Armstrong, Ms Thomas, the Claimant and Mr Forsey on 19 September 2017. Handwritten notes were made by Ms Thomas [B/635-643] and a typed copy of those notes was then produced [B/644-648].(56) The eventual outcome of the disciplinary meetings was communicated to the Claimant by letter, over the signature of Mr Armstrong, dated 21 September 2017 [B/653A-656]. That stated that: “… this letter is to confirm the outcome of the disciplinary proceedings is that you have been summarily dismissed, meaning your contract of employment has immediately ended without notice and without pay in lieu of notice, in line with the disciplinary procedure.” There then followed a recital of the allegations which were said to have been addressed by Mr Armstrong and an account of what he put forward as constituting his reasoning behind the decision to dismiss.(57) The letter of 21 September 2017 reminded the Claimant that he had a right of appeal against Mr Armstrong’s decision. In reliance upon that right of appeal, on 27 September 2017 the Claimant duly lodged an appeal against his dismissal [B/667-670]. This set out “grounds for appeal” under headings of: (1) The investigation carried out was not reasonable and Virgin Active has failed to carry out as much investigation as was reasonable, and necessary in the circumstances. - 21 - (2) Virgin Active has failed to follow their own policies and there are no reasonable grounds for Virgin Active to believe I am guilty of the alleged gross misconduct. (3) Virgin Active has breached their own grievance policies and discriminated against me by failing to address my grievances raised on 27th July, 4th August, 7th August and 9th August Virgin Active has failed to carry out a reasonable investigation in respect of my grievances. (4) Virgin Active is inconsistent with their disciplinary sanctions and process.(58) In summary, the Claimant set out his appeal grounds in terms of:• Investigative failures;• the sanction imposed was too severe or disproportionate to the alleged misconduct;• the sanction was inconsistent with one imposed for similar misconduct committed by another employee;• there was unfairness or bias among the original decision-makers;• VA has not taken into account a previously exemplary disciplinary record; and• Procedural failings in relation to failure to follow its own policies and procedures and ACAS Code.(59) Upon receipt of the appeal, Ms Hilary Tysoe arranged for Mr Simon Stokes (UK Operations Director) to conduct the appeal hearing, accompanied by Ms Emma Thomas [B/676]. A letter of invitation was sent by Ms Smith by email, with a date for the hearing on 6 October 2017.(60) Subsequently, Ms Smith wrote to the Claimant to say that Mr Stokes would, after all, be out of the country on 6 October, and that the meeting would have to be rearranged. After some considerable “chopping and changing” over the date the hearing was eventually re-scheduled for 9 October 2017 [B/700].(61) On 9 October 2017, the Disciplinary Appeal Meeting took place. Mr Stokes was accompanied by Ms Thomas, and the Claimant was accompanied by Mr Forsey. Handwritten notes were made during the course of the meeting by Ms Thomas [B/713-736] and a typed-up version was subsequently made available [B/737-753]. Once again, and unknown to either Mr Stokes or Ms Thomas, a covert recording had also been made and a transcript produced [B/546F-K].(62) The outcome of the appeal hearing was communicated to the Claimant by Mr Stokes in a letter dated 24 October 2017 [B/820-826] in terms that: “At the appeal meeting on 9 October 2017, your appeal against your summary dismissal for making a racist comment towards Roya Arasp and bullying Jannett George was considered. I am writing to confirm the decision made at the appeal hearing. Your appeal was unsuccessful and the decision that was confirmed to you in writing on 21 September 2017 to summarily dismiss you stands.” - 22 -(63) Mr Stokes then listed each of the grounds of appeal and set out what he said was an explanation of his findings. He ended by confirming in unequivocal terms “This decision is final.”(64) The Claimant’s last day of employment was confirmed as 21 September 2017 [B/656]. Subsequently, having entered into early conciliation through ACAS, the Claimant served a Claim Form ET1 on 22 November 2017.f. F. Grievances raised by the Claimant(65) The Claimant’s response to the events unfolding in July 2017 was to lodge a number of “serious concerns” which have been treated by the Respondent during this hearing as “grievances”.(66) The first instance of this was on 27 July 2017 (further to receipt of the suspension letter on 24 July 2017) [B/362AA-FF, repeated at B/1231-1236]. This communication, addressed to Ms Smith, set out a lengthy list of concerns touching both substantive matters and procedural issues. The Claimant told the Tribunal [WS para.58] that he received no response or acknowledgement from Ms Smith to his communication.(67) The second occasion was in an email to Ms Smith dated 4 August 2017 [B/366-368, repeated at B/370-371], which also complained about the lack of response to the Claimant’s communication of 27 July 2017 and sought to “escalate this original grievance to senior management”.(68) The third occasion was in an email dated 7 August 2017 [B/372], which set out a very much more detailed set of concerns in an appended letter [B/373-387].(69) The Claimant then sent a letter to Ms Tysoe dated 9 August 2017, setting out a further list of concerns by way of grievance [B/390-406], constituting a fourth phase (what he described as “my fourth formal written grievance letter”) in relation to grievances being raised by the Claimant (described in WS para.69 as constituting his “final” grievance).(70) In addition to the narrative setting out his immediate grievances, the Claimant indicated in his letter of 9 August 2017 that he had reported certain matters (what were described as “serious threats” and an incident in which his locked personal drawers in the office had been “smashed open and broken in to”) to the Metropolitan Police and Essex Police [B/397].(71) It is also clear that, almost from the outset, the Claimant was on record as challenging the process adopted in relation to him, and in setting out his case that the process had been stacked against him and the individuals involved were not acting independently in accordance with the formal procedures of the Respondent.(72) The Tribunal has been provided with copies of the following procedures: (1) a Disciplinary Policy [B/1324-1329]; (2) a Grievance Policy [B/1330-1332]; (3) an - 23 - Anti-Harassment and Bullying Policy [B/1333-1338]; (4) a Whistleblowing Policy [B/1339-1341]; (5) an Equal Opportunities policy [B/1342-13443]; and (6) the Respondent’s “People Handbook” [B/1344-1400]. It is common ground that these documents reflect the relevant policies in place at the time of the events under consideration. On 18 August 2017 the requested policies were sent to the Claimant by Ms Smith.(73) On 27 July 2017, in his “first grievance” [B/362AA-362FF], he complained about: “… concerns I have regarding the process and conduct relating to the investigation so far.” In particular, there was a complaint about: “… the conduct of The People Hub/Denise during the investigation to date” [B/362EE] focusing upon the actions of Ms Mackenzie.(74) Thereafter, in his “second grievance” of 4 August 2017 [B/365-8], following receipt of the “Invite to Disciplinary Meeting” dated 3 August 2017, the Claimant again expressed his “concerns”. In particular, he stated that: “I do not wish Denise Mackenzie to be involved with the meeting to discuss these concerns, as her personal involvement and conduct has already been highlighted in the attached document. One of the serious concerns highlighted in the original grievance email dated Thursday 27th July was towards the conduct of Denise Mackenzie and my opinion that she is unable to remain impartial, in addition to her prior involvement in cases that includes Roya Arasp, Darrell Giovanni, Jannett George and I. I have raised concerns formally in a grievance letter about Denise Mackenzie. These concerns have been ignored and in my opinion, she should not have been allowed to continue with the investigating until my concerns have been at the minimum been acknowledged or discussed formally in a meeting.”(75) On 7 August 2017 the Claimant wrote to Ms Tysoe [B/373-378] with another “written formal grievance”, in the course of which he stated that: “8. I believe this investigation and disciplinary process has been unreasonable and not followed the company grievance policy process (identified on previous concern email dated Thursday 27th July 2017).” [B/374](76) He then proceeded to express much broader concerns that just those made in relation to Ms Mackenzie: “Further to my initial concern emailed on Thursday 28th July 2017, it is my opinion that Denise Mackenzie is unable to remain impartial on this investigation as several times she included her own opinion on the case. Denise included a private conversation between her and me from 16th March 2017 into questioning, which is not relevant to this investigation. … It is my opinion that this investigation is no longer impartial or being conducted thoroughly - as such I would like Denise Mackenzie, Rowena Smith, Emma Thomas and Wynny Asiegbu removed from this process going forward. It is my belief that this investigation should be reopened and reinvestigated - with an impartial member of staff, who has had no involvement with prior - 24 - investigations or disciplinaries regarding Jannett George, Roya Arsap, Darrell Giovanni. Denise Mackenzie, Emma Thomas, Rowena Smith and Wynny Asiegbu were all involved in influencing or taking notes in the outcomes at each of the above disciplinaries.” [B/375](77) Two days later, on 9 August 2017, the Claimant wrote further to Ms Tysoe [B/390-406]. After rehearsing various issues raised in his previous correspondence, his complaints culminated in the allegations that: “I have been unlawfully harassed by Denise Mackenzie, Jannett George and Roya Arasp pursuant to s.26(1)(a)(b)(i)(ii)(4)(5) of the Equality Act 2010.” and: “I have been subjected to a systematic campaign of bullying by Denise Mackenzie, Wynny Asiegbu, Jannett George, Roya Arasp and Darrell Giovanni. The bullying by the above individuals is unwanted, uninvited and unwelcome. It is making me feel ill.”(78) These “formal” grievances followed a number of concerns which had already been raised by the Claimant. Thus, late in the afternoon of 13 July 2017 the Claimant had written to Ms Wynny Asiegbu in the following terms under the heading “Concern/Update” [B/312]: “Spoke to Glen via email earlier who advised to send the below over to you… Just wanted to update you around Jannett George MSM. I was informed by my Head Coach, George Hopkins today that Jannett has been approaching staff in the office asking them to sign a statement to say I am bullying her. George told me that she refused to sign as she did not believe this to be true but wanted to make me aware this type of behaviour had been happening and instigated by Jannett.”(79) This followed an earlier message sent to Mr Heidke on the same afternoon [B/314], in which the Claimant had stated that: “Just wanted to give a heads up/update I have been informed on today. George HC was approached by Jannett asking her to sign a statement stating I had been bullying her in the office. George said she refused as this was not the case, I wanted to make you aware of Jannett’s actions.(80) On 14 July 2017 the Claimant wrote again to Mr Heidke [B/315], following a call between the two: “Just caught up with Cleopatra after her training session at BSO this morning. She informed me that Roya was in BSO for her meeting with Barry earlier and was informing people in BSO that I was kicking and banging doors in the club this morning. As discussed this morning this is fabricated and untrue and now being communicated to new management in the club through Roya who was not in the club with only one member of the staff in the office at the time I picked up my diary and popped out. - 25 - Further addition to that; Roya informed Cleopatra that the reason I was moved to Mayfair and not promoted was because I had got the SM at Repton Park pregnant and had multiple disciplinary’s against me. I will make Denise aware of this on Monday when she visits the club, just wanted to make you aware.”(81) The Claimant’s raising of these concerns has also to be seen alongside a recognition that other issues relating to the Claimant had given rise to expressions of concern on the part of Mr Michael Cawthorn (Service Manager, Mayfair) who then had an extensive exchange of messages with Ms Mackenzie. Those messages were in relation to matters that had come to Mr Cawthorn’s attention and his personal fears for his safety in the light of those. There was no suggestion that Mr Cawthorn’s actions were co-ordinated with, or even known to, the Claimant.(82) This exchange of messages followed a telephone conversation in which Mr Cawthorn had participated, conducted by Ms Mackenzie on 25 July 2017. Notes of that conversation were set out in a document headed “Investigation Meeting” [B/362]. Following the conclusion of that conversation Mr Cawthorn wrote to Ms Mackenzie at 16:53 setting out “the notes you have requested”: “Further to our phone call today please find the notes you have requested. - Sayed (PT) told me that Fabian and Cleopatra slept together when they went for drinks one night after work. When I asked how he knew, he told me that Roya told him and to not say anything as Roya would never tell him anything again. Now I am hearing that Sayed has told Fabian that I had started the rumour by telling him which is not true. The next day I told Craig as I felt whether this was true or not, it is not the right thing to have spreading around the club. - Roya said in the office that she had got Kas (BST) to write a grievance against Craig because Craig didn't listen to him with a problem he had and that she would process the Grievance. - In the office I have multiple threats against Craig. One of which is when Janett come back from a disciplinary and started crying in the office saying that all of this is unfair and that she hadn't done nothing wrong. Roya then responded with "don't worry Craig will get what’s coming to him". - She also said to me on a separate occasion that "If Virgin don't sort this out then Darrell will sort him out". To that I responded "I don't like violence and I don't think that violence is the right way to solve something whether someone is on the wrong or not. She replied with "Everyone has different ways of dealing this things". - Just before i went on annual leave Roya was laughing and when I asked she responded with "Craig is Fucked because 4 people are putting grievances against him for racism and bullying". I walked away from that. - I have also heard from a member of the Mayfair HOD team that when she was in BSO a lady named Whynny come and spoke to her about Mayfair and said "Do you want to write a statement about Craig pressuring two sales people to leave", to which the Mayfair employee responded "No I'm not writing anything, I don't want to get involved". Like I previously said, I perceived that as threatening and intimidating behaviour and I never wanted to get involved in the first place as I don't want to feel threatened in my place of work. I understand how easy it is for someone to get my details off exerp and I didn't want to get involved as I can't have something coming to my doorstep when most of the time is my mum at home on her own. - 26 - I already feel threatened as they will know I've said this now when it comes up. I don't want to be fearing for my own safety when going to and from work. I feel that all the threats that have been said had a lot of truth and intention behind them.”(83) Ms Mackenzie responded on 28 July 2017 [B/362DDD] with a revised version of Mr Cawthorn’s notes, excluding reference to Ms Whynny Asiegbu: “The notes do not include what you told me about Wynny as you didn't want to disclose the HOD and I am therefore unable to investigate further. Can you please confirm which of the statements below you would like me to include? Can you also let me know whether there were any witnesses to the threats made by Roya?”(84) This elicited a prompt response from Mr Cawthorn [B/362CCC-DDD] stating “… I am happy for the issue is Wynny to be followed up with Cleopatra as I feel that if it is true then it is important for the issue to follow the correct procedure.”(85) Later that same afternoon Mr Cawthorn wrote in response to a further request for “details of any witnesses to the threats made by Roya” [B/362BBB-CCC]: “The threat about Craig getting what comes to him, Jannett was there as Roya said it to Jannett. The other times she has said it only to me. this is why I'm worried to go back to work as Roya will know that is me that said it.”(86) Ms Mackenzie’s immediate response [B/362BBB] was: “She doesn't know anything at the moment so there is nothing to worry about. In order to investigate further I would have to meet with Roya and discuss the threats with her so you will have to decide whether this is what you want me to do. Regarding Wynny, I have spoken to her line manager who tells a completely different storey to Cleopatra. She is aware that Wynny spoke to Cleopatra but it is not in the way that you describe or using the words that she told you. Please confirm whether you want me to pursue this further with Cleopatra?”(87) Mr Cawthorn then responded [B/362AAA-BBB]: “That’s fine to pursue with Cleopatra. Regarding the Roya situation I feel it needs to be investigated. But I also know that if anything does come back to me from her and I don't feel safe then I would no longer be able to work in that club, as I don't want anything happening to me.”(88) Finally, it should be noted that the Claimant repeatedly expressed dissatisfaction in relation to provision of what he considered necessary documentation from the Respondent. In consequence of that dissatisfaction, the Claimant made a Subject Access Request (SAR) on 20 August 2017 [B/551]. The Respondent acknowledged receipt of that SAR in a communication from Ms Smith on 5 September 2017 [B/553]. The Claimant followed this up by email on 7 - 27 - September 2017 to Ms Tysoe [B/601], to which a response was made on the following day [B/600]. Thereafter, Ms Smith sent an email to the Claimant on 2 October 2017 in relation to a memory stick said to have been provided as part of the SAR response [B/758-9], acknowledging that: “The data that we have sent is not the full access request. This is due to the size of the data that was pulled from the system.” There was then a letter from Ms Asiegu on 13 October 2017 requesting courier service to deliver material to the Claimant [B/761], which followed a communication from the Claimant on 10 October 2017 complaining about the Respondent’s failure to comply with the SAR [B/763-4]. On 17 October 2017 Ms Tysoe then wrote to the Claimant acknowledging the failure of the Respondent to comply with the deadline for disclosure in relation to his SAR [B/785A-B].(89) Having received what he described as “5 boxes of information in the post, which pertained to my five year career at Virgin Active Limited”, the Claimant then sent an email to Ms Tysoe on 26 October 2017 confirming that he had “escalated a formal complaint with the Information Commissioner’s Office (ICO) as the Respondent was not complying with the SAR Request or Deadlines”.(90) On 1 November 2017 the Claimant issued a second SAR to Ms Tysoe [B/847]. He explained the reason for this second request as: “… due to the problems with the Respondent sending the original date within the deadlines, plus I felt that specific information was being withheld …” An exchange of correspondence then took place between the Claimant and Ms Tysoe, in the course of which the Claimant expressed his dissatisfaction with the treatment of his SAR [B/880A-C]. Having not received what he considered to be an adequate response to this, the Claimant indicated that he had again approached the ICO, and had been advised to send a “final written request” for missing information. This he did on 13 December 2017 [B/880BBB]. Eventually, the Claimant’s email of that date was responded to by Ms Tysoe in a communication dated 15 December 2017 [B/880AAA-880DDD].g. G. Treatment of the grievances raised by the Claimant(91) On 10 August 2017, under the heading “Response to Grievance”, Ms Tysoe wrote to the Claimant [B/407-8] in the following terms: “I can confirm that I have received both your letters, dated Monday 7th August 2017 and Wednesday 9th August 2017, raising a formal grievance. The issue raised by you in the letters are as follows: 1. That you are suffering from work related stress and that Virgin Active have not taken steps to prevent this and have not taken your concerns seriously; 2. That you do not feel your recent suspension and the investigation into the allegations which resulted in this suspension have been handled appropriately; - 28 - 3. That you have been bullied, harassed and discriminated against by named members of the People Team and named members of your team at the Mayfair Club; 4. You dispute some of the information contained in some of the documents resulting from the investigation and provided to you in preparation for the disciplinary hearing. I understand you are aware that you will be invited to a disciplinary hearing, in line with the company's Disciplinary Policy, in due course. The purpose of the Disciplinary Hearing is for you to respond to the allegations and explain your case. The meeting can be adjourned and re-convened to allow any necessary further investigations to take place. Malcolm Armstrong, Regional Director - Provincial, will Chair the Disciplinary Hearing, accompanied by Emma Thomas, Head of People Services. You will be invited to this meeting under separate cover. Having reviewed your case it is clear that the majority of the Grievance you have rather than a separate grievance hearing being convened. In the relation to the matter of your alleged work related stress I am satisfied that this is a separate matter and not related to the content of the Disciplinary Process. As such I have asked for a Grievance Hearing to be arranged. Morag Alabaster, Sales Director, will hear your Grievance accompanied by Emma Thomas, Head of People Services. You will be invited to this meeting under separate cover. In order to assist with the preparation for this meeting please forward any medical documentation to Emma Thomas (emma.thomas@virginactive.co.uk) prior to the meeting. I have noted that you have named Emma Thomas in your Grievance letters relating to the handling of your case so far. However, having reviewed the case I can find no evidence to support your claims that Emma has been involved in the case other than as the line manager of members of the People Team you have named in your Grievance. Emma will act as note taker in both hearings and will provide advice on process and employment legislation rather than to influence the outcome in any way. As these two issues are separate, I believe that the two processes can run concurrently so every effort will be made to ensure that they are scheduled within a reasonable timescale.”(92) In consequence of this decision by Ms Tysoe, no separate “grievance process” was instigated in relation to the Claimant’s grievances other than that concerning work-related stress.(93) In relation to that single matter of grievance, a letter of invitation was issued by Ms Emma Thomas on 11 August 2017 for a grievance hearing meeting to be held on 16 August 2017. (94) That hearing duly took place on 16 August 2017, with the Claimant being accompanied by Mr Forsey and Ms Alabaster, the hearing officer, being accompanied by Ms Thomas. Handwritten notes were made by Ms Thomas during the course of the meeting [B/441-450] and a typed-up version was then produced [B/451-459]. - 29 -(95) Thereafter, the outcome of the “work related stress” grievance was communicated to the Claimant in a letter signed by Ms Morag Alabaster dated 28 September 2017 [B/683-4]. Her conclusion was that: “Having considered your points at length, I have decided that there is no case for any further action to be taken at this time. I understand that the disciplinary process has been a stressful time for you. Support has been offered to you in the form of the employee assistance programme and Occupational Health. I am not sure if you have used the employee assistance programme as this is confidential but I am aware you haven’t asked to be referred to Occupational Health.”(96) Ms Alabaster concluded by reminding the Claimant of his right to appeal against the outcome in relation to his grievance. In reliance upon that right, therefore, the Claimant lodged an “Appeal Notice against Grievance Hearing Outcome” on 4 October 2017. His grounds for appeal were summarised in terms• VA has failed to follow policies and breached ACAS code of practice• VA has breached statutory laws including Health and Safety at Work Act 1974• VA did not take what I said at Face Value• VA has failed to “take steps” that are reasonable in the circumstances(97) A “Grievance Appeal Meeting” was eventually arranged to take place on 7 November 2017 and notice of this was sent to the Claimant by Ms Thomas on 17 October 2017 [B/781]. Mr James Archibald (UK Legal Director) was assigned the task of conducting that appeal meeting.(98) Following the meeting the Claimant was eventually furnished with a letter headed “Outcome of grievance appeal” [B/872-8], setting out reasons, and concluding that: “I am of the opinion that the grievance you have raised in relation to work related stress have been fairly considered as part of the grievance process and that the grievances you raised in relation to other matters have been fairly considered as part of the disciplinary process. You have been given reasonable opportunity to discuss all of your grievances and to provide evidence in relation to them, and appropriate investigations have been carried out. … For these reasons, I agree with Morag Alabaster’s decision that there is no case for further action to be taken in relation to your grievances. This decision is final.”
DISCUSSION
[35]The case management notes [B/38L] set out the complaints and the issues agreed between the parties at a hearing before Employment Judge Tayler on 21 May 2018. The order of the complaints is:(1) dismissal by reason of making a protected disclosure;(2) unfair dismissal;(3) direct discrimination by reference to the protected characteristic of age;(4) direct discrimination by reference to the protected characteristic of sex; and(5) direct discrimination by reference to the - 30 - (1) Dismissal by Reason of Making a Protected Disclosure[36]The Tribunal turns first to the allegation arising out of the alleged protected disclosure. The allegation is that the Claimant was dismissed by reason of having made a protected disclosure (or disclosures).[37]The disclosures originally relied upon were recorded in the Case Management Notes as being three:(1) in relation to a threat that “if Virgin Active don’t get him, we will”;(2) the report in relation to Mr Giovanni of direct debit fraud; and(3) a heart attack suffered by the Claimant.[38]On the morning of Day 2 of the hearing the Claimant made clear that he was not relying upon the third of those alleged disclosures (the heart attack). His complaint therefore rests upon what he claims to have been two protected disclosures.[39]In relation to the first of these (the threat of violence), the background was that there had been reported threats made by Ms Arasp in relation to the Claimant. These had, in particular, been reported by Mr Cawthorne in his communication to Ms Mackenzie and were also said to have been known to Ms Asiegbu. Those threats had allegedly been articulated in terms that “…don't worry Craig will get what’s coming to him" and "If Virgin don't sort this out then Darrell will sort him out". In addition, there had been an incident in which the Claimant’s locked personal drawers in the office had been “smashed open and broken in to” [See photos at B/371A-E]. It is not disputed that the Claimant had made a report of these matters to the Metropolitan Police and Essex Police, for which a Police Crime Reference (477/07082017) had been given [B/397].[40]The Tribunal has had regard to the provisions of section 43A onwards of the Employment Rights Act 1996 as amended, and we find that this disclosure was made as described in the case management notes (indeed, it has not been challenged). We further find that it falls both within section 43B(1)(a) – ie. commission of a crime – as well as section 43B(1)(d) – ie. the health and safety of a person involved.[41]So far as the second of these (the direct debit fraud) is concerned, the circumstances were that, in the course of the Claimant’s investigation into alleged wrongdoing by Mr Giovanni, it emerged that a member had informed Mr Giovanni that she would be using somebody else’s bank details for the purposes of a transaction with the Respondent. Mr Giovanni had admitted that he had permitted the member to sign a direct debit agreement for someone else’s bank details, and had further admitted that he had done this previously. The Claimant characterised this in his “Darrell Giovanni – Investigation Notes Key Points” [B/265] as “fraudulent”, and noted that “Darrell admitted he knew who should sign for the DD”.[42]We find that this was also made as described and that it falls within section 43B(1)(a) – ie. commission of a crime. - 31 -[43]The Tribunal is satisfied, therefore, that both disclosures are “qualifying disclosures” as provided for by section 43A of the 1996 Act. The question then is whether those disclosures were made in circumstances falling within sections 43C to 43H of the 1996 Act.[44]The Tribunal has had regard to section 43C of the 1996 Act. We find that the first disclosure (threat of violence) was made to the Respondent employer on 17 August 2017. We further find that the second disclosure (the direct debit fraud) was made in the report made of the investigation carried out by the Claimant [B/265 with covering email at B/264], spelling out that Mr Giovanni had admitted doing certain things and appending various observations made by the Claimant to his employer.[45]We find that both disclosures were of information and were made to the employer. It has already been noted that a separate disclosure was also made to the police in respect of the first matter. They therefore fall within the provisions of section 43C(1)(a) of the 1996 Act. In reaching that conclusion the Tribunal has reminded itself of the changing state of the case law in this area, and, in particular, has noted the reconsideration and clarification by the Court of Appeal in Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, of the judgment given by the Employment Appeal Tribunal in Cavendish Munro Professional Risks Management Limited v Geduld [2010] ICR 325 [see per Sales L.J. at paragraphs 34-36 of his judgment].[46]The question for us thus becomes whether there was a reasonable belief on the part of the Claimant that these disclosures were made in the public interest. In this regard the evidence is consistent to the effect that the Claimant regarded these matters as serious and their disclosure as being in the public interest. This was confirmed to the satisfaction of the Tribunal during the course of the Claimant’s evidence and under cross-examination during the hearing. It is our view that there was a reasonable belief on the part of the Claimant that these were made in the public interest.[47]The question then arises as to causation – in other words, whether the protected act was something which led to the dismissal of the Claimant by reason of having made the disclosure or disclosures. Our evidence in relation to this is drawn substantially from the disciplinary hearing transcript derived from the covert recording made by or on behalf of the Claimant, which involves the voices of Mr Armstrong and Ms Thomas. The transcript is not challenged (there having been a tape recording behind it), and it is common ground that this is a record of a disciplinary meeting in relation to the Claimant held on 22 August 2017. [B/546A, see in particular B/546E and B/546F][48]It is clear that, in discussing some of the background [B/546E], Ms Thomas draws the attention of Mr Armstrong to the fact that, “He's gone to the police for support. He’s reported", at which Mr Armstrong indicates that he was unaware of that previously, queries this in a concerned manner, and is told by Ms Thomas that, “He’s reported this as a crime". Ms Thomas also says that (the Claimant) is “scared that someone is going to attack him outside of work". - 32 -[49]The Tribunal finds the response of Mr Armstrong to this revelation to have completely changed the trajectory of the proceedings on the part of the Respondent. The verbatim quotation from Mr Armstrong is: “Fucking Christ. What’s the outcome here Emma? [referring to Ms Thomas]. This is your baby (laughs), what do we do here?” To this Ms Thomas replies: “He can't come back now. Let's be honest.”[50]Close attention was drawn to that exchange on frequent occasions during the course of cross-examination. The Tribunal is satisfied – and Mr Armstrong did not seek to deny this – that there was, indeed, a “change in the wind” at this stage, and that this indicated very clearly an inevitability that the Claimant should leave the Respondent organisation. When the point was put directly to him in crossexamination on the afternoon of Day 4, Mr Armstrong answered: “There was a notable change in attitude, yes.”[51]The Tribunal finds, from the evidence before them and taking into account the cross-examination that they have heard, that the reason for this “change in attitude” was triggered by the discovery on Mr Armstrong’s part that the Claimant had gone to the police in respect of the incident disclosed.[52]A follow-up meeting was held on 19 September 2017, and the eventual outcome of the disciplinary procedure was set out in a letter dated 21 September 2017 which informed the Claimant that he was to be dismissed summarily. The purported reasons given by the Respondent for that dismissal are set out in extensive form over four pages [B/653A-657]. Those reasons are challenged by the Claimant as not being the true reasons for his dismissal.[53]The Tribunal has had regard to the record of the disciplinary hearing held on 19 September 2017 [B/649] and is satisfied that the primary purpose of that meeting was to "tie up loose ends" in constructing a set of “reasons for dismissal” in order to justify the already pre-determined decision of the panel – as indicated by Mr Armstrong and the statement by Ms Thomas that the Claimant would be parting company with the Respondent organisation.[54]Subsequent to that letter of termination the Claimant exercised his right of appeal. A transcript of comments made and recorded during an appeal meeting convened on 10 October 2017 was produced for the hearing [B/546F onwards] and that supplements the formal record of the meeting.[55]Once again, the picture painted by the covert recording of the discussions between members of the appeal panel indicates to the Tribunal that there was an inevitability about the Claimant being required to leave the Respondent organisation. Indeed, this is so to such an extent that the Tribunal has formed the view that this “appeal meeting” would appear to have been a complete sham. In particular, regard is had to observations by Mr Simon Stokes, who was chairing that meeting [B/546I-546J]. - 33 -[56]With the benefit of hindsight it can clearly be seen that neither Ms Thomas nor Mr Armstrong (at the disciplinary hearing) nor Ms Thomas and Mr Stokes (at the appeal hearing) had any inkling that a covert recording of various parts of the procedure had been and was being made by, or on behalf of, the Claimant. A number of examples can be seen at B/546E onwards.[57]The Tribunal finds that the covert recordings demonstrate very sharply a clear difference between the version being put forward by the Respondent witnesses Mr Armstrong and Ms Thomas and the actual transactions between the participants during the discussions at that meeting. The same conclusion is drawn in relation to the appeal hearing involving Mr Stokes and Ms Thomas.[58]Counsel for the Respondent, in her submissions to the Tribunal, makes a valiant effort to play down the significance of the covert recordings evidence, suggesting that they do nothing more than to reflect “a few comments” which the participants have “no recollection of making”.[59]The Tribunal, however, is of the view that it is not acceptable to say that these were “a few comments which the makers have no recollection of making”. What was said is incontrovertible and was not challenged in evidence. The Tribunal is entitled to, and does, take the words uttered at face value.[60]Furthermore, the conscious intention of Mr Stokes, as the chair of the appeal committee, can clearly be gathered (from comments at B/546I and elsewhere) that he was content to “put matters into confusion”, in order that the Claimant should not really focus upon particular matters of appeal for determination at that hearing. By way of example, there is an exchange [at B/546I] where Mr Thomas said: “… this is the thing. He keeps throwing bits. He is very muddled in the way he is presenting everything.” to which Mr Stokes replied: “I know, which is good for us.” Ms Thomas then responded: “So, because he's just throwing so much that bits are getting lost.” Ms Thomas continued: “It's just very haphazard.” Whereupon Mr Stokes interrupted by saying: “That's good … that's what I'm kind of letting him do.” and Mr Stokes then went on to make the telling comment: “Because I want him to be muddled, I want him to admit that he's covered everything off, I want him to, and then we can hit him with the hard stuff.” - 34 -[61]Having due regard to these matters, setting them in the context of the totality of the available evidence, and having particular regard to the cross-examination of Mr Armstrong, Mr Stokes and Ms Thomas, the Tribunal finds, in relation to the allegation of dismissal by reason of having made a protected disclosure (so-called “whistleblowing”), that(1) disclosures of information were made by the Claimant to his employer; and(2) they were disclosures in relation to two matters – the perception of fear for the Claimant’s physical integrity and the allegation of a crime committed by way of the direct debit fraud. The circumstances relating to those disclosures satisfied the requirements of Section 43B of the Employment Rights Act 1996 and were therefore “protected disclosures”.[62]Focusing solely upon the allegation in relation to the alleged threats and sense of fear on the part of the Claimant, the Tribunal finds that this particular disclosure clearly influenced the minds of Mr Armstrong and Mr Thomas at a point in the disciplinary hearing where they were unaware that their exchanges were being covertly recorded.[63]The Tribunal finds that the formal record of that meeting fails properly (indeed, almost completely) to indicate what was transacted during the course of that meeting between the people responsible for the decision-making. The Tribunal finds that the disclosure of the "crime" to the police indubitably influenced the mind of Mr Armstrong and led Ms Thomas to make the observation, which was subsequently carried through, that the Claimant “had to go”.[64]That being the case, and there being a disclosure of information – the information tending to show a crime being committed or, in this case, a fear of health and safety under section 43C(1)(d) – the Tribunal finds that there was a protected act; the decision to terminate was accelerated by and overwhelmingly influenced by the discovery of that protected disclosure; and from there onwards the fate of the Claimant in terms of summary dismissal from his employment was inevitable.[65]The Tribunal is satisfied that the true reason for the Claimant’s dismissal was his having made the protected disclosure. That being the case, therefore, the unanimous decision of the Tribunal is that the Claimant's claim of unfair dismissal by reason of having made a protected disclosure is upheld. Unfair Dismissal (Part X of the Employment Rights Act 1996)[66]There is no dispute that the Claimant was dismissed by the Respondent within the meaning of Section 95(1)(a) of the Employment Rights Act 1996 and that the effective date of termination for the purposes of Section 97 of the same Act was 21 September 2017.[67]The burden rests with the Respondent to establish “the reason (or, if more than one, the principal reason) for the dismissal”, as provided for by Section 98(1)(a) of the Employment Rights Act 1996. - 35 -[68]The Respondent’s case is that the Claimant was dismissed for a reason relating to his “conduct” – namely, as set out in the dismissal letter of 21 September 2017 [B/653A].[69]The Claimant challenges that alleged “conduct” reason.[70]The Tribunal has therefore asked itself the question as to what was the “true” reason (or, if more than one, the principal reason) for the Claimant’s dismissal.[71]A number of points were put to Mr Armstrong in the course of re-examination by Counsel for the Respondent, in the course of which (entirely professionally and in full compliance with the Overriding Objective) she covered a number of allegations raised by the Claimant, which had not been put to the witness in crossexamination.[72]The first was the proposition that Mr Armstrong had decided to dismiss because the Claimant had made allegations of credit card fraud against Roya Arasp.[73]In relation to that allegation, which Mr Armstrong denied, the Tribunal was furnished with no other supporting evidence. In consequence, the Tribunal finds that the Claimant fails to discharge the burden of proof in establishing the matter.[74]The second was the direct allegation that Mr Armstrong had dismissed the Claimant because he had made a report to the police about threats to his safety.[75]As regards that allegation, by contrast, the Tribunal does not accept the witness’s denial. Indeed, the Tribunal explicitly rejects the evidence of Mr Armstrong – which had been given during the course of his cross-examination in response to a question from the panel – to the effect that: “I made the decision after the two disciplinary hearings and speaking to 6 other people then I made the decision at the end.”[76]On the contrary, and the Tribunal finds, the decision to dismiss the Claimant was made during the covertly recorded exchange with Miss Thomas and was triggered by the revelation that the Claimant had made a report to the police concerning his perception of threats to his personal security. The outcome of dismissal was set in stone from there on. The reasoning leading the Tribunal to that conclusion has already been set out in relation to our finding that the Claimant was dismissed for having made a protected disclosure and does not need to be repeated here.[77]The Tribunal is in no doubt that the procedures put in place by the Respondent’s People Hub in relation to the Claimant had been orchestrated to lead to and justify (with copious supporting documentation) a dismissal for “gross misconduct” – namely a reason constituting “conduct” falling within Section 98(2)(b) of the Employment Rights Act 1996. - 36 -[78]However, having regard to the unequivocal statements made in the covert recording during the course of the recess to the disciplinary hearing, and for the reasons already stated, the Tribunal finds that the intended “conduct” scenario was overtaken by the reaction to discovery of the Claimant’s “protected disclosure”. In consequence, it was this impermissible reason for dismissal which constituted the “principal reason” for the dismissal of the Claimant.[79]It follows that the Tribunal does not accept the reasons put forward by the Respondent in the letter of dismissal [B/653A] in so far as they indicate otherwise. From the moment when “the wind changed” in the disciplinary hearing, the actions of the Respondent in the name of and with the authority exercised by Mr Armstrong – and primarily orchestrated by Ms Thomas – effectively amounted to an attempt to “stitch together” reasons ostensibly to justify a “conduct” dismissal and thereby conceal the true ground.[80]Nor did anything of significance change in relation to that during the appeal hearing conducted by Mr Stokes. Indeed, the Tribunal has gone so far as to find that the appeal stage hearing conducted by Mr Stokes and influenced by Ms Thomas was little short of a “complete sham”.[81]Even had there been no issue in relation to the reason for dismissal, however, the Tribunal finds that there were significant shortcomings in relation to the reasonableness of the Respondent’s investigation of allegations made against the Claimant.[82]Mention has already been made of the lack of clarity associated with the drafting of a letter dated 17 July 2017 (which clearly had not been drafted until a later date) setting out allegations against the Claimant in respect of which he was being summoned to a disciplinary hearing.[83]The Tribunal also expresses serious concerns in relation to the investigation of generic “bullying” allegations made by Mr Giovanni, Ms George and Ms Arasp, and, in particular, to the question of whether there had been (or could have been) “collusion” between the makers of the grievances along the lines indicated by the information volunteered by Mr Cawthorn.[84]However, it is the approach to the allegation of a “racist remark” having been made by the Claimant to Ms Roya Arasp which serves to illustrate the extent to which the Respondent (both through their designated disciplinary officers and in the guise of the People Hub) was prepared to “play fast and loose” with due process.[85]The original allegations set out against the Claimant were contained in the letter backdated 17 July 2017 which suspended the Claimant from work with the warning that “the allegations appear to involve a serious matter of potential gross misconduct”. The first specific allegation set out there provided that: “… you have made an inappropriate comment of a racist nature to Roya Arasp …” - 37 -[86]Thereafter, in the letter headed “Invite to Disciplinary Meeting” dated 3 August 2017 (which included the warning that “Due to the nature of the allegations against you, you should be aware that this could lead to a dismissal without notice (gross misconduct …”) the second allegation was set out in terms that: “… you made a comment of a racist nature on 3rd June: “We had better watch out in the office, you’re Iranian aren’t you?””[87]Consistently throughout the disciplinary process the Claimant took issue with the allegation of having made a “racist comment”. Not only did he deny making any such comment at any time, but he specifically took issue with the allegation that such an incident had taken place on 3 June 2017. The fixing of that date had been by reference to a terrorist incident which took place at Borough Market on that date. In all of his correspondence with the Respondent, throughout the disciplinary and appeal procedures, and consistently in the course of putting his case before the Tribunal, the Claimant made repeated reference to what was known to have happened at the time of the terrorist incident on 3 June 2017 and related this to whether attendance records held by the Respondent established that he could have been in the office with the complainant at any time indicated in the claim made against him. This included putting his case that such an allegation could not have taken place during the course of the disciplinary hearing before Mr Armstrong on 19 August 2017.[88]However, by the time the letter of dismissal was drawn up and dated 21 September 2017 [B/653A], having repeated the original allegation dating the “racist comment” as having been made on 3 June 2017, the conclusion given over Mr Armstrong’s signature was that: “… the date of 3 June is an error and should have read after the terrorist attacks on 3 June.”[89]Mr Armstrong was pressed repeatedly about this during the course of crossexamination on the afternoon of Day 4. Having been taken through the attendance records, and being driven to accept that there was a 26 day period after 3 June when the Claimant and Ms Arasp did not work together, Mr Armstrong was asked to explain how the change from a specific allegation dated 3 June had been transformed into a non-specific allegation. His answers to cross-examination questioning were that: “I “reconfirmed” the allegation.” “I changed the date.” “There was a mistake in the allegation.” “The original allegation was 3 June. We knew from Roya’s grievance that the allegation was not that specific.” “It referred to “shortly after” 3 June.” “I stand by my conclusion that the Claimant made the comments.”[90]Mr Armstrong’s attention was drawn by the Tribunal to a supplementary “Grievance Statement of Roya Arasp” [B/918-922], which stated that: - 38 - “The details of the first incident are that shortly after the horrendous and traumatic events in London Bridge on the 3rd June 2017, all clubs received an email urging vigilance against any potential dangers. Whilst this was being discussed in the office, Mr Hughes said in reference to myself, “We had better watch out in the office, you’re Iranian, aren’t you?”” In the course of cross-examination Mr Armstrong had conceded that the email being referred to “urging vigilance” had been circulated after the next regularly scheduled management meeting, which was held on 6 June 2017. It was put to him, and he accepted, that Ms Arasp was not shown on the duty rosters to have been in the office until 16 June (ie. 10 days later) and could not have been together with the Claimant and the claimed witness to the event until that date at the earliest.[91]Mr Armstrong was then asked whether he went back to Ms Arasp and Mr Giovanni to clarify the issue of the date. He responded that: “I chose not to go back to Roya and Darrell about the date.” When it was then put to him that his investigation was therefore incomplete, he replied: “It was complete. I did not need to go back as the date was clear… Roya’s grievance did not put a specific date … I felt I had enough to decide on a balance of probabilities that the Claimant had made the statement.”[92]The Tribunal finds it remarkable that, given the confusion over the date alleged, the significance of the expression “shortly after”, and the evidence of the duty rostas (which should have been available to him at the time of the disciplinary hearing), Mr Armstrong simply “chose not to go back” to Ms Arasp and Mr Giovanni for further clarification. In the view of the Tribunal it was unreasonable for Mr Armstrong not to have sought to clarify the matter in the light of what had been raised by the Claimant on 19 August 2017. This was particularly so since Mr Armstrong, having been taken to the terms of Ms Arasp’s grievance as set out at B/918, conceded under cross-examination that: “The Claimant’s defence was in relation to specific “3 June”.”[93]By way of completeness, it has to be noted here that it was at this stage of the proceedings – at the end of Day 4, and pending resumption of Mr Armstrong’s evidence on Day 5 – that it came to light that an act of serious misconduct on the part of Ms Thomas had taken place in clear contravention of a “witness warning” given by the Employment Judge at the end of Day 4. Not only was there an unauthorised email approach made overnight by Ms Thomas to Mr Armstrong, but it is clear that the purpose of that email was to seek to provide Mr Armstrong with a fresh (plausible) version of the confusion surrounding the date of 3 June 2017 – presumably to be utilised during the continuation of cross-examination on the morning of Day 5.[94]The Tribunal made clear at the time, and repeats its position, that it recognises and appreciates the entirely professional manner in which Counsel for the Respondent dealt with this matter. An apology was tendered on behalf of the Respondent for what Ms Thomas had done. Nevertheless, after a request by the - 39 - Tribunal to Instructing Solicitor for the Respondent to take instructions from Mr Armstrong, it became clear that the witness had read the email from Ms Thomas.[95]In addition to the Tribunal’s view that the enquiry undertaken by the Respondent was unreasonable, mention has also to be made of the extent to which arrangements provided for in the Respondent’s disciplinary and grievance procedures were adhered to in the course of the treatment of the Claimant. This was a matter which was repeatedly raised by the Claimant from the outset, and, indeed, formed part of his “formal grievances” as outlined above.[96]The Tribunal has been provided with the Respondent’s “Disciplinary Policy” [B/1324-9] and their “Grievance Policy” [B/1320-2]. In the context of those policies, the Claimant’s case has been that the decision by Ms Tysoe (communicated on 10 August 2017 [B/407-8]) to process a complaint of “work-related stress” through the Grievance Policy procedure, but not to treat the Complainant’s other three complaints in like manner, was in breach of the Respondent’s own policies. This was particularly the case in relation to his complaint which was summarised by Ms Tysoe in terms: “3. That you have been bullied, harassed and discriminated against by named members of the People Team and named members of your team at the Mayfair Club;…” Ms Tysoe’s reasoning for that decision was that: “Having reviewed your case it is clear that the majority of the Grievance you have rather than a separate grievance hearing being convened.”[97]Having regard to the provisions in the Grievance Policy, and in particular the “Formal grievance procedure” [B/1330] set out there, it is the view of the Tribunal that this denial by Ms Tysoe of recourse to that procedure was contrary to the provisions set out in the Respondent’s Grievance Policy. Not only did it close off access to the right to a grievance meeting, as well as precluding the potential for “further investigation as necessary, for example interviewing witnesses”, but it flew in the face of the proclamation that: “Virgin Active is committed to ensuring that all grievances are investigated fully. This may involve carrying out interviews with the employee concerned and third parties such as witnesses, colleagues and managers, as well as analysing written records and information.”[98]Instead, the Claimant was forced to raise his grievances in the context of the Respondent’s Disciplinary Policy, where they were to be treated as his “defence against the allegations being made”.[99]That being the case, far from facilitating “a fair and meaningful consideration” of the Claimant’s case, Ms Tysoe’s decision rendered the Claimant incapable of presenting his grievances with any prospect of “ensuring that all grievances are investigated fully”. The Claimant was immediately placed “on the back foot”, was - 40 - deprived of the potential for his complaints to be treated to “further investigation as necessary”, and faced no realistic prospect that investigatory interviews would be conducted with “third parties such as witnesses, colleagues and managers” to elicit responses to the matters being raised by the Claimant. The Tribunal finds that the treatment of the Claimant’s grievances was not in conformity with the Respondent’s relevant policies and was unreasonable in the circumstances.[100]In summary, therefore, the Tribunal finds that the Respondent has failed to establish that the “principal reason” for the dismissal of the Claimant was one of the possible reasons set out in Section 98(2) or Section 98(1)(b) of the Employment Rights Act 1996. Furthermore, the Tribunal finds that the conduct of the investigation, disciplinary hearing, and decision-making in relation to the dismissal of the Claimant were unreasonable in the circumstances. In addition, the procedure adopted to deal with the Claimant was not only in contravention of the Respondent’s own policies, but was also unreasonable in the circumstances.[101]For the reasons set out above, therefore, the Tribunal finds unanimously that the dismissal of the Claimant by the Respondent was unfair. The Discrimination Claims[102]The Tribunal turns now to the three discrimination claims made by the Claimant. These allege unlawful direct discrimination by reference to the protected characteristics of(1) Age;(2) Sex; and(3) Race.[103]In relation to each of those allegations of discrimination the Tribunal has been concerned to evaluate its findings of fact within the framework set by Section 136 of the Equality Act 2010, which deals with the burden of proof, and is intended to transpose into United Kingdom law provisions established at the level of the European Union. The transposing provisions now to be found in the Equality Act 2010 reflect Treaty obligations on the United Kingdom which existed prior to withdrawal from membership of the European Union, and have not subsequently been amended by domestic law.[104]The requirement in relation to alleged discrimination by reference to the protected characteristic of age is to be found in Article 10 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. In relation to alleged discrimination by reference to the protected characteristic of sex the provision is to be found in Article 4 of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. So far as concerns alleged discrimination by reference to the protected characteristic of race the relevant provision is to be found in Article 8 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. In all three European Union instruments the provision on the burden of proof is expressed in identical terms. - 41 -[105]The correct approach to dealing with the burden of proof under Section 136 has been extensively considered at the level of the Court of Appeal, with, in particular, detailed evaluation (by reference to the statutory wording in force before the enactment of the Equality Act 2010), in the cases of Igen v. Wong, [2005] EWCA 142 and Madarassy v. Nomura International plc, [2007] EWCA Civ 33], and, after the coming into force of the Equality Act 2010, in Royal Mail Group Limited v. Efobi, [2019] EWCA Civ 18, subsequent to consideration of the issues afresh in Ayodele v. Citylink Ltd, [2017] EWCA Civ 1913.[106]At the time of the hearing in the present case, the Tribunal was made aware that an appeal was pending before the Supreme Court in the Efobi case, but that the hearing of that appeal had been adjourned at the request of the parties and had not yet been rescheduled. Assistance has therefore been drawn from the detailed evaluation to be found in the judgment of Sir Patrick Elias in the Court of Appeal in Efobi, it being noted that both Baker LJ and Underhill LJ (a former President of the Employment Appeal Tribunal) agreed with the reasoning of Sir Patrick Elias (himself also a former President of the Employment Appeal Tribunal). (1) Age[107]The Claimant’s case in relation to the allegation of unlawful direct discrimination by reference to the protected characteristic of age is set out in the in his tribunal claim and/or his dismissal direct age … discrimination?[108]In his Further Particulars, furnished to the Tribunal at the beginning of Day 1, the Claimant relies specifically on the following matters: 1. Reported a[n] … ageist comment "you are only doing this to me as I am old, Treated differently due to age ... Age – Told to be "more mature". Age, … Due to … Age ... - 42 - Age, … Treated differently: age, … Age, … 8. … 9. Disciplinary officer made discriminatory comment "young gent out of his depth" and confirms "he's exactly what he thinks he is being discriminated against". Due to age … 10. Due to age, ...[109]The various components of the Claimant’s case alleging direct age discrimination have been considered in the course of the evidence-in-chief and cross-examination of the Claimant, as well as, in particular, the cross-examination of Mr Armstrong, who is alleged to have been the perpetrator in relation to item 9 of the Further Particulars. Much of the context has also been addressed in the reasoning set out above in relation to the Tribunal’s findings on the dismissal claims.[110]At paragraph 75 of his Witness Statement, the Claimant, who self-identifies as “young, white and male” [WS para. 2], sets out his comparators for all three of his discrimination allegations. He identifies there(1) Mr Giovanni, who “is a black male”;(2) Ms George, who “is an older, black female”; and(3) Ms Arasp, who “the Respondent advised … is an Iranian female”.[111]No evidence was given as to the ages of the potential comparators for this part of the claim, other than an implicit suggestion that the Claimant regarded himself as being “young” by comparison. However, beyond that, the Tribunal does not have evidence upon which to make specific findings as to relative age for the purposes of this head of claim. - 43 -[112]Specific complaint is made by the Claimant of statements made(1) by Ms George, in terms that the Claimant might be acting as he did because she (Ms George) was “fat, old and black”;(2) by Ms Mackenzie, in telling the Claimant to be more “mature”; and(3) by Mr Armstrong – disclosed on the covert recording of 22 August 2017 – stating that the Claimant was a “young gent out of his depth”, and that “he’s exactly what he thinks he is being discriminated against”.[113]Counsel for the Respondent in her Skeleton Argument (at para. 24) is dismissive of all the claimed instances of discrimination by reference to the protected characteristic of age, submitting that they “do not come close to being capable of amounting to discrimination against the Claimant”.[114]Having regard to the detail furnished in the Further Particulars to support the allegation that the handling of the Claimant’s disciplinary and grievances constituted direct age discrimination:(1) The Tribunal finds no evidence to indicate that the comment made by Jannett George (“old, black and fat”) influenced in any way the handling by the Respondent of the Claimant’s disciplinary and grievances or could be linked in any way to the age of the Claimant;(2) The Tribunal did not hear evidence from Ms Mackenzie, but there was no challenge to the alleged making of the “more mature” comment. However, the Tribunal does not accept the proposition that the grievance was “ignored” and there is no evidence to support the proposition that Ms Mackenzie dismissed the Claimant’s grievance for a reason related to the age of the Claimant. Nor is there any evidence to suggest that the appointment of Ms Mackenzie as the investigating officer was in any way related to the age of the Claimant;(3) The Tribunal finds no evidence to support the allegation that actions taken by the Respondent in the light of efforts by Ms Arasp to have the Claimant replaced as the disciplinary officer, including the decision that Ms Mackenzie should continue in her investigatory role, were in any way connected to the age of the Claimant;(4) The Tribunal has already set out its finding that the treatment of the Claimant’s grievances was not “in line with policy”, and the Tribunal also finds that the Claimant was treated differently from Ms Arasp, Ms George and Mr Giovanni in that regard. However, there is nothing in the findings of the Tribunal which suggests that this treatment was related to the age of the Claimant;(5) The Tribunal likewise finds nothing in the evidence to support the proposition that different treatment of the Claimant in the disciplinary process regarding the “racial allegation”, when compared with Ms George, was in any way related to the age of the Claimant; - 44 -(6) The Tribunal further finds no evidence to support the allegation that what are described by the Claimant as “inconsistent disciplinary sanctions applied by the Respondent” were in any respect connected with the age of the Claimant;(7) The Tribunal is unable to conclude, on the basis of the available evidence, that the grievances raised by Ms Arasp, Ms George and Mr Giovanni were “taken at face value with no set agenda”, as alleged by the Claimant. While it has been a consistent part of the Claimant’s case that the Respondent engaged in a strategy to set him up for dismissal, and notwithstanding that such an allegation might be one plausible explanation for the events which eventually unfolded, there is insufficient evidence to that effect upon which the Tribunal could say on the balance of probabilities that this was the case. In so far as grievance meetings relating to the Claimant were “handled differently” from grievance meetings held in relation to Ms Arasp, Ms George and Mr Giovanni, there is nothing in the findings of the Tribunal, having regard both to the copious documentation and the cross-examination of the Claimant, Ms Tysoe and Ms Thomas, which supports the proposition that this treatment was related to the age of the Claimant;(8) The alleged statements made by Mr Armstrong are not disputed, and can be found in the transcript of the covert recording [B/546E]. Mr Armstrong was cross-examined on the afternoon of Day 4 and the morning of Day 5 in relation to parts of the transcript. In particular, he was cross-examined on the morning of Day 5 in relation to the alleged “age” comments, which are transcribed as: “… He’s everything you’ve just said next door. He is a, well he is what he thinks people discriminated him on. Young. A young gent who’s out of the depth…” Having heard Mr Armstrong’s evidence given in the course of that crossexamination, the Tribunal is satisfied that they accurately reflected Mr Armstrong’s view that the Claimant was “out of his depth”, and that this was a consequence, at least in part, to a lack of experience on the Claimant’s part. That lack of experience was related to the “youth” of the Claimant. However, even though that is the case, there is no evidence to suggest that “the handling of the Claimant’s disciplinary” was influenced in any way by the age of the Claimant, as alleged. The Tribunal finds nothing to connect the comment about the Claimant’s youth to the subsequent handling of the disciplinary hearing, and has already expressed the view that there is nothing else which indicates that the Claimant’s age affected the handling of that disciplinary. In particular, the Tribunal finds that the alleged link to the dismissal decision having been made on the basis of the Claimant’s age is not made out on the available evidence;(9) The Tribunal has already set out its findings concerning the amendment of the date in relation to the alleged “racial allegation” raised by Ms Arasp. This matter was also explored in depth during the cross-examination of Mr Armstrong and the Tribunal finds that there is no evidence to support the proposition that either the amendment of the date for the alleged incident or - 45 - the Respondent’s subsequent handling of the Claimant’s disciplinary and grievances was related in any way to the age of the Claimant.[115]In light of these findings, the Tribunal finds that the Claimant’s allegation that the handling of his disciplinary and grievances were handled differently by reason of his age is not made out. Even taking the inadequate evidence in relation to the age of the comparators at its highest (i.e. “older than the Claimant”), the remainder of the available evidence does not even begin to support the allegation, other than, potentially, in respect of the remarks uttered by Mr Armstrong as revealed by the covert recording. In relation to those remarks, the Tribunal has had careful regard to the cross-examination of Mr Armstrong on Days 4 and 5, and finds that there is nothing in the handling of the Claimant’s disciplinary that calls for explanation.[116]The consequence of this is that the Claimant has failed to establish “facts from which the court could decide, in the absence of any other explanation”, that the Respondent contravened Section 13(1) of the Equality Act 2010. As a result, the Claimant fails to get past the first stage of what is accepted as being “a twostage process” provided for by Section 136 of the Equality Act 2010. That process has most recently been set out at para. 10 of the judgment of Sir Patrick Elias in Royal Mail Group Limited v. Efobi, [2019] EWCA Civ 18: The authorities demonstrate that there is a two-stage process. First, the burden is on the employee to establish facts from which a tribunal could conclude on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred. At that stage the tribunal must leave out of account the employer's explanation for the treatment. If that burden is discharged, the onus shifts to the employer to give an explanation for the alleged discriminatory treatment and to satisfy the tribunal that it was not tainted by a relevant proscribed characteristic. If he does not discharge that burden, the tribunal must find the case proved. To adapt the later words of Sir Patrick Elias (at para. 59 of his judgment), in this case the Claimant’s allegations of discrimination by reference to the protected characteristic of age are mere assertion and the Claimant has not backed up his claims with the necessary factual foundation.[117]For the reasons set out above, therefore, the Tribunal unanimously finds that the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of age is not made out. That claim is dismissed. (2) Sex[118]The Claimant’s case in relation to the allegation of unlawful direct discrimination by reference to the protected characteristic of sex is set out in the in his tribunal claim and/or his dismissal direct sex … discrimination?[119]The Claimant seeks to compare himself with Ms Arasp and Ms George. It is common ground that the Claimant is male and that those two comparators are - 46 - female. There is also mention in the Further Particulars of Mr Giovanni as a potential comparator. It is common ground that Mr Giovanni is male.[120]In his Further Particulars, furnished to the Tribunal at the beginning of Day 1, the Claimant relies specifically on the following matters for his claim alleging discrimination by reference to the protected characteristic of sex: 1. … 2. … … Gender Due to … Gender. … Gender Treated differently … gender … Gender 8. Threat to safety not taken seriously by the Respondent. There was a witness statement provided to the Respondent confirming the threat. In comparison, I denied making the racial allegation. Roya Arasp also had a witness to her allegation. The Respondent dismissed me. Due to … Gender. 9. Disciplinary officer made discriminatory comment "young gent out of his depth" and confirms "he's exactly what he thinks he is being discriminated against". Due to … gender - 47 - 10. Due to … gender.[121]Having regard to those Further Particulars produced by the Claimant to support the allegation that the handling of his disciplinary and grievances constituted direct discrimination by reference to the protected characteristic of sex:(1) The Tribunal has considered the exchanges of correspondence as regards the concerns of Ms Arasp in relation to the Claimant acting as disciplinary officer in her case. Those concerns were set out in a communication to the Respondent’s People Hub, dated 30 March 2017 [B/132]. That communication was acknowledged by Ms Asiegbu [B/134]. After internal exchanges within the People Hub, Mr Andre Orr (Operations Manager, Mayfair) eventually wrote to the Claimant on 6 April 2017 to set out the decision reached by the Respondent in relation to the handling of Ms Arasp’s case [B/144]. Further insight into the approach adopted by the People Hub was set out in an email from Ms Asiegbu to Ms Mackenzie on 10 April 2017 [B/151-2]. Thereafter, a number of managerial supervision measures continued in place, including, in particular, the implementation and monitoring of a PIP for Ms Arasp (along with three other employees), which was being conducted by the Claimant under the supervision of his line manager, Mr Heidke. Follow up in relation to the PIP for Ms Arasp came in exchanges of emails between the Claimant and Ms Asiegbu in early June 2017. Thereafter, the Claimant had further exchanges, including in relation to Ms Arasp’s case, with Mr Barry Gillard [B/264-8]. This was then followed by an “overview” of the situation in relation to Ms Arasp sent by Mr Kiran Babenia (Regional Sales Manager) to the Claimant on 28 June 2017. The Tribunal finds nothing in this documentation, or in the available evidence concerning this period of managerial supervision in relation to Ms Arasp, to suggest that any decision or action taken by the Respondent was because of the sex of the Claimant. The same finding is made as regards the Claimant’s “concerns” in relation to the impartiality of Ms Mackenzie, which had been clarified, in particular, in a communication of 7 August 2017 where the Claimant set out what he described as his “opinion” in relation to the matters raised. In the view of the Tribunal the Claimant has failed in relation to these matters to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s sex.(2) The Tribunal has already found that the Claimant’s grievances were not conducted in accordance with the Respondent’s established policies. It is also the case that they were dealt with in a manner different from that applied to grievances raised by Ms Arasp, Ms George and Mr Giovanni. - 48 - However, the Tribunal is unable to accept the proposition made by the Claimant that the handling of his grievances was different from an appropriate comparator because of sex. The Claimant can compare himself with Ms Arasp and Ms George, both of whom are female. However, on his own case he also compares himself with Mr Giovanni, who, like the Claimant, is a man. It has been established that the Claimant was treated differently from Mr Giovanni, but that Mr Giovanni was treated in the same way as Ms Arasp and Ms George. It follows that the Respondent treated the grievances of the two female comparators in the same way as the male “comparator” Mr Giovanni. This fails to establish the necessary discrimination for the purposes of Section 13(1) of the Equality Act 2010. Looking only at the treatment of the female comparators’ grievances, and having regard to the decision on procedure made by Ms Tysoe as set out in her letter dated 10 August 2017, the Tribunal does not find anything in the available evidence to suggest that any such decision was made with the protected characteristic of sex in mind. The Tribunal therefore finds that the fact that the grievances were treated differently in the case of the Claimant was not because of the Claimant’s sex.(3) The Claimant’s articulation of his claim by reference to being treated differently from Ms George regarding a “racial allegation” is a specific allegation within the framework of the more generally expressed allegation about the differences in the handling of the disciplinary and grievance processes. For the reasons set out already, the Tribunal finds nothing in the available evidence to support the proposition that the Respondent acted because of the sex of the Claimant. In the view of the Tribunal the Claimant has failed to establish facts in respect of this articulation of his claim from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s sex.(4) In relation to the allegation made by reference to the alleged application by the Respondent of “inconsistent disciplinary sanctions”, the Claimant seeks to compare himself with Mr Giovanni, Ms George and Ms Arasp. For the reasons already indicated the Tribunal finds that the Claimant is unable in this context to compare himself with Mr Giovanni, who, like the Claimant, is male. So far as the comparisons with Ms George and Ms Arasp are concerned, the Tribunal has considered the substantial documentation dealing with allegations made against, investigations conducted in relation to, and decision-making processes applied for both of these female comparators. This has been compared with the evidence in relation to treatment of the - 49 - Claimant in order to identify whether there are established facts from which, in the absence of any other explanation, the Tribunal could decide that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s sex. There is no dispute that, following disciplinary/grievance procedures, Ms George was not dismissed in relation to what was described as a “racist comment”, and no action was taken against Ms Arasp in relation to allegations of “malicious rumours/bullying”. By contrast, the Claimant was dismissed following disciplinary/grievance procedures. Notwithstanding that difference between the outcome for the Claimant and the outcomes for the two female comparators, the Tribunal has not found anything in the available evidence which can be said to support the proposition that the differential outcomes (or the processes leading to those outcomes) were in any way because of the Claimant’s sex. In the view of the Tribunal the Claimant has failed to establish facts in relation to the different disciplinary sanctions (or lack of sanctions) from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s sex.(5) So far as the allegation that “grievance meetings were handled differently” is concerned, the differential handling has already been considered and the Tribunal finds that this differential treatment has not, on the available evidence, been established to have been because of the Claimant’s sex. The Claimant seeks to compare himself with Mr Giovanni, who is male, and, as has already been indicated, this comparison is not open to the Claimant in respect of a claim alleging discrimination by reference to the protected characteristic of sex. Comparison thus has to be made with the two named female comparators. In relation to the proposition that grievances raised by Ms George and Ms Arasp were “taken at face value with no set agenda”, as compared with the treatment afforded grievances raised by the Claimant, the Tribunal recognises that a consistent element in the Claimant’s case has been that he was the victim of a co-ordinated strategy to find him guilty of “gross misconduct” and thus justify dismissal. However, the Tribunal is not able to make any such finding on the basis of the evidence produced during the hearing of this case. The written documentation produced to the Tribunal in relation to investigations conducted in the wake of grievances being raised, taken together with records of the approach adopted by various members of the Respondent’s People Hub, do not suggest the presence of any “set agenda”. Nor is there any clear suggestion of particular allegations being “taken at face value” as compared to other allegations. - 50 - The complaints made in this context amount to nothing more than assertions, and, without adequate relevant supporting evidence, the Tribunal finds that the Claimant has failed to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s sex.(6) The “threat to safety” referred to here relates to reported comments said to have been made by Ms Arasp. On the Claimant’s own case the identified differences in treatment and outcome arose out of judgments made by the Respondent in relation to witness evidence considered in the course of disciplinary/grievance investigations. The Tribunal rejects the proposition that a ‘threat to safety” in this respect was “not taken seriously by the Respondent”. On the contrary, the material said to have been “provided to the Respondent” came into existence as part of investigations undertaken by the Respondent, while it is clear from the records of subsequent disciplinary and appeal proceedings that a serious view was taken of the allegation. That having been said, however, even if one were to complement the reported “threat” with the incident of damage to the Claimant’s locked drawers and the incident which eventually led to the making of a formal police complaint, the Tribunal finds absolutely nothing to suggest that anything done or decided in this context was in any way because of the sex of the Claimant.(7) Mr Armstrong (the disciplinary officer) accepted in the course of his crossexamination that he had made the statements “young gent out of his depth” and “he’s exactly what he thinks he is being discriminated against”. He had little choice but to do so, since the covert recording of the disciplinary hearing disclosed that to have been the case. The Tribunal accepts the unchallenged proposition that such comments would not have been made in relation to a female – and, in particular, the female comparators Ms Arasp and Ms George. The Tribunal have then proceeded to consider what evidence has been presented in support of the proposition that the handling by Mr Armstrong of the Claimant’s disciplinary and grievances was tainted by direct discrimination because of the Claimant’s sex. In doing so, the central question has been for the Tribunal to determine whether the Claimant has established facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s sex. The Tribunal notes that Mr Armstrong was responsible for the conduct of the Claimant’s disciplinary hearing, and that it was his decision which resulted in the dismissal of the Claimant by the Respondent. It has already been found by the Tribunal that the primary driver behind Mr Armstrong’s decision to - 51 - dismiss the Claimant was the discovery of a “protected disclosure” by the Claimant. Taking that into account, the Tribunal has asked itself whether there is evidence before them to indicate another motive for Mr Armstrong’s decision, and whether there is anything which indicates that regard to the protected characteristic of sex played any part in the Claimant’s treatment in relation to his disciplinary and grievance procedures and eventual dismissal. Taking all of the available evidence into account, and having particular regard to exchanges during the cross-examination of Mr Armstrong, the Tribunal finds that there is nothing which suffices to require the Respondent to provide some other explanation as provided for by Section 136 of the Equality Act 2010.(8) Mr Armstrong accepted during the course of his cross-examination that he had “changed” the “racial allegation” made against the Claimant during the course of the disciplinary procedure. This relates to the alleged making of a comment by the Claimant in terms of “We had better watch out in the office, you're Iranian aren’t you?”. The admitted “change” was from an initial allegation contained in the “Invite to Disciplinary Meeting” sent to the Claimant on 3 August 2017 that this comment had allegedly been said “on 3rd June”, to an amended proposition that it had been made “shortly after 3rd June 2017”. This change was made in the light of the Claimant and his representative establishing unequivocally during the course of the disciplinary hearing held by Mr Armstrong on 19 August 2017 that he could not have made the alleged comment, or any comment, to Ms Arasp as alleged on 3 June 2017. The Tribunal has already considered in detail, while dealing with the Claimant’s allegation that he was unfairly dismissed, what was done by Mr Armstrong in relation to the date of the alleged comment in question. However, notwithstanding the strong criticism expressed by the Tribunal in relation to Mr Armstrong’s conduct in that regard, the Tribunal is unanimously of the view that there is nothing in the evidence before them to indicate that what Mr Armstrong did was in any way done because of the Claimant’s sex. In so far as the Claimant is complaining about the procedural treatment afforded his comparator Ms George and the outcomes of investigations into his and Ms George’s allegations, those matters have already been considered by reference to the Claimant’s allegation concerning what he described as “inconsistent disciplinary sanctions”, and by reference to the decisions made in the Respondent’s People Hub as to how the Claimant’s grievances were to be handled. It follows therefore that the Claimant has not established, in relation to either limb of this complaint, facts from which the Tribunal could decide, in the - 52 - absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s sex.[122]In the light of these findings the Tribunal unanimously concludes that the Claimant’s allegation that the handling of his disciplinary and grievances was different from the handling of his female comparators because of his sex is not made out. The Tribunal finds that there is nothing in the available evidence regarding the handling of the Claimant’s disciplinary and grievances which calls for explanation.[123]The “two-stage process” provided for by Section 136 of the Equality Act 2010 has already been considered in relation to the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of age. Having sought to follow the guidance on the correct approach to that process given by Sir Patrick Elias in Royal Mail Group Limited v. Efobi, [2019] EWCA Civ 18, the Tribunal finds that the Claimant fails to get past the first stage in relation to his claim alleging unlawful discrimination by reference to the protected characteristic of sex.[124]For the reasons set out above, therefore, the Tribunal unanimously finds that the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of sex is not made out. That claim is dismissed. (3) Race[125]The Claimant’s case in relation to the allegation of unlawful direct discrimination by reference to the protected characteristic of race is set out in the in his tribunal claim and/or his dismissal direct race … discrimination?[126]The Claimant seeks to compare himself with Ms Arasp, Ms George and Mr Giovanni. It is common ground, and was specifically confirmed in the course of cross-examination, that Ms Arasp is black, Ms George is black (Iranian), and Mr Giovanni is black. The Claimant is white (British).[127]In his Further Particulars, furnished to the Tribunal at the beginning of Day 1, the Claimant relies specifically on the following matters in relation to his allegation of unlawful discrimination by reference to the protected characteristic of race: 1. Reported a racist … comment "you are only doing this to me as I am old, Treated differently due to … race. … - 53 - … Race … Due to Race… … Race … Treated differently … race … … Race … 8. Threat to safety not taken seriously by the Respondent. There was a witness statement provided to the Respondent confirming the threat. In comparison, I denied making the racial allegation. Roya Arasp also had a witness to her allegation. The Respondent dismissed me. Due to Race … 9. … 10. Due to … race ...[128]Having regard to those Further Particulars produced by the Claimant to support the allegation that the handling of his disciplinary and grievances constituted direct discrimination by reference to the protected characteristic of race: - 54 -(1) The Tribunal has already considered the Respondent’s treatment of this matter by reference to allegations that this was motivated by either the age or sex of the Claimant. So far as those two protected characteristics are concerned the Tribunal has found nothing in the available evidence to call for explanation on the part of the Respondent. In relation to the component of the claim brought by reference to the protected characteristic of race, however, the nature of the reported comment raises an initial question as to whether any alleged different treatment of the Claimant might have been with that characteristic in mind and because of that characteristic. In the view of the Tribunal the evaluation of an alleged “racist comment” in this context must have brought into consideration the respective racial characteristics of the alleged comment maker and the alleged recipient of that comment. Further, given the seriousness with which the Claimant’s alleged “racist comment” to Ms Arasp was treated, it might be expected that at least a similar level of seriousness would be accorded to the alleged comment by Ms George to the Claimant. An explanation is therefore called for in relation to the way in which such consideration took place, including the reason for Ms Mackenzie’s dismissal of the Claimant’s grievance. The Tribunal finds that the Claimant has established facts in relation to this matter from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race.(2) As indicated above, the Tribunal does not accept that the Claimant’s grievance was “ignored” as alleged. In addition, even though the Tribunal did not hear live evidence from Ms Mackenzie, it follows from consideration of the available documentation, taken together with the oral evidence heard from other witnesses, that no evidence has been adduced to suggest that the appointment of Ms Mackenzie as the investigating officer was in any way related to the race of the Claimant. It is common ground that Ms Mackenzie did not uphold the Claimant’s grievance, which included the treatment afforded Ms George when she had admitted making a racist comment. That decision can be contrasted with the upholding of Ms Arasp’s grievance against the Claimant as regards an alleged “racist comment”. This decision by Ms Mackenzie, and the circumstances leading up to it, call for explanation, taking into account the nature of the grievances involved and the respective racial characteristics of the Claimant, Ms George, and Ms Arasp. In the view of the Tribunal the Claimant has established facts in relation to this matter from which the Tribunal could decide, in the absence of any other - 55 - explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race.(3) The Tribunal has already indicated how it has considered the exchanges of correspondence as regards the concerns of Ms Arasp in relation to the Claimant acting as disciplinary officer in her case. Those matters were examined by reference to allegations that there had been direct discrimination by reference to the protected characteristics of age and sex – in relation to each of which the Tribunal has found nothing calling for explanation on the part of the Respondent. For similar reasons to those set out in relation to the age and sex claims, the Tribunal finds nothing in this documentation, or in the available evidence concerning this period of managerial supervision in relation to Ms Arasp to suggest that any decision or action taken by the Respondent was because of the race of the Claimant. In like manner, the Tribunal makes the same finding as regards the Claimant’s “concerns” in relation to the impartiality of Ms Mackenzie. In the view of the Tribunal the Claimant has failed in relation to these matters to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race.(4) For reasons already set out the Tribunal has found that the Claimant’s grievances were not conducted in accordance with the Respondent’s established policies and that they were dealt with in a manner different from that applied to grievances raised by Ms Arasp, Ms George and Mr Giovanni. Having regard to the nature of the respective grievances, and the respective racial characteristics of the Claimant as set alongside those of the three comparators, an explanation for the departure from established policies and the different treatment of the Claimant’s grievances is called for. In relation to these matters the Tribunal finds that the Claimant has established facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race.(5) The Tribunal has already indicated that it finds the Claimant’s articulation of his claim by reference to being treated differently from Ms George regarding a “racial allegation” is a specific allegation within the framework of the more generally expressed allegation about the differences in the handling of the disciplinary and grievance processes. For the reasons already set out the Tribunal finds that, in respect of the more specifically expressed claim relating to a “racial allegation”, the Claimant has established facts from which the Tribunal could decide, in the absence of any - 56 - other explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race.(6) So far as the allegation made by reference to the alleged application by the Respondent of “inconsistent disciplinary sanctions” is concerned, the Claimant seeks to compare himself with Mr Giovanni, Ms George and Ms Arasp. The difference in racial characteristics between the three comparators and the Claimant is acknowledged as common ground. The Tribunal has considered the substantial documentation produced as part of the trial bundle dealing with allegations made against, investigations conducted in relation to, and decision-making processes applied for the comparators. This has been compared with the evidence in relation to treatment of the Claimant in order to identify whether there are established facts from which, in the absence of any other explanation, the Tribunal could decide that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race. There is no dispute that, following disciplinary/grievance procedures, Ms George was not dismissed in relation to a “racist comment” which was described as a “deliberate act of unlawful discrimination” and which she admitted having made, but was told to apologise; no action was taken against Ms Arasp in relation to allegations of “malicious rumours/bullying”; while Mr Giovanni was subjected to disciplinary investigation before handing in his notice and eventually leaving employment with the Respondent.By contrast, the Claimant was dismissed following disciplinary/grievance procedures. It follows from what has already been said in relation to the comparison with Ms George that the alleged “inconsistent disciplinary sanction” calls for explanation. The Tribunal is also of the view that the other sanctions applied in cases with which the Claimant wishes to compare himself call for some explanation in this context. In short, it is the view of the Tribunal that the Claimant has established facts in relation to the different disciplinary sanctions (or lack of sanctions) from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s race.(7) So far as the allegation that “grievance meetings were handled differently” is concerned, various points of contrast have been established, and the differential handling has already been considered in the context of the Claimant’s age and sex allegations. It has already been indicated that the Tribunal is of the view that, where these fall to be considered in relation to the allegation of unlawful discrimination by reference to the protected characteristic of race, the contrasts and differential handling call for an explanation. - 57 - In relation to the specific proposition that grievances raised by comparators were “taken at face value with no set agenda”, as compared with the treatment afforded grievances raised by the Claimant, it has already been noted that the Tribunal recognises that a consistent element in the Claimant’s case has been that he was the victim of a co-ordinated strategy to find him guilty of “gross misconduct” and thus justify dismissal. The Tribunal, for reasons already set out, has not been able to make any such finding on the basis of the evidence produced during the hearing of this case. The written documentation produced to the Tribunal in relation to investigations conducted in the wake of grievances being raised, taken together with records of the approach adopted by various members of the Respondent’s People Hub, do not suggest the presence of any “set agenda”. Nor is there any clear suggestion of particular allegations being “taken at face value” as compared to other allegations. To the limited extent that this component of the Claimant’s case raises differential treatment in the course of the handling of the respective grievances, the Tribunal finds that the Claimant has established facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s race. The matter has to be seen in conjunction with the already discussed components of the claim relating to alleged discrimination on race grounds, as already set out.(8) The “threat to safety” referred to here has been addressed in relation to the allegation that the matters complained of here amounted to unlawful discrimination by reference to the protected characteristic of race. The Tribunal has already set out the reasons why it has rejected the proposition that a ‘threat to safety” was “not taken seriously by the Respondent”. Furthermore, the Tribunal has already made clear its view that the identified differences in treatment and outcome arose out of judgments made by the Respondent in relation to witness evidence considered in the course of disciplinary/grievance investigations. Overall, therefore, and in the absence of any other evidence plausibly raising a suggestion that “race” may have contributed to the handling of the Claimant’s grievance in relation to a “threat to safety”, the Tribunal finds that the Claimant has failed to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened Section 13 of the Equality Act 2010 because of the Claimant’s race.(9) It is common ground, as has already been rehearsed, that Mr Armstrong “changed” the “racial allegation” made against the Claimant during the course of the disciplinary procedure. - 58 - Having regard to the circumstances surrounding the allegation itself, taken together with the method of handling the Claimant’s grievances and disciplinary (as previously determined by Ms Tysoe) as compared with his comparator, and having regard to the findings of the Tribunal already set out in relation to their decision on the unfair dismissal of the Claimant, the Tribunal is of the view that these matters call for explanation. The Tribunal finds that the Claimant has established facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s race.[129]So far as the allegations of unlawful direct discrimination by reference to the protected characteristic of race are concerned, and having regard to the “two-stage process” provided for by Section 136 of the Equality Act 2010, therefore, the Tribunal finds that the matters raised in sections (1), (2), (4), (5), (6), (7) and (9) of paragraph 128 of this decision are matters in relation to which the Claimant has established facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent contravened the Equality Act 2010 because of the Claimant’s race. Several of the matters raised fall to be dealt with together as constituting essentially the same allegation or separate elements of the same allegation.[130]By way of summary, the matters in relation to which the Tribunal finds that an explanation from the Respondent is required are:(1) the decision of Ms Tysoe which determined that the Claimant’s grievances (with the exception of the “health and safety” grievance) should be dealt with as part of a disciplinary process rather than within the framework of the Respondent’s grievance procedure;(2) the decision to refuse to make any adjustment to the personnel involved with the disciplinary and appeal procedures in the light of the Claimant’s complaints and observations about Ms Thomas;(3) the handling by Mr Armstrong of the disciplinary allegation against the Claimant in respect of a “racist comment”; and(4) the application of different sanctions (or lack of sanctions) for the Claimant by contrast with his comparators. In relation to each of those matters the Tribunal has found that there is a difference between the Claimant and his comparators by reference to the protected characteristic of race and that the Claimant has been subjected to less favourable treatment.[131]The consequence of this is that Section 136(3) of the Equality Act 2010 comes into play: (3) But subsection (2) does not apply if A shows that A did not contravene the provision. In other words, in the present case the Respondent has to show that they did not do anything which would have amounted to direct discrimination by reference to the protected characteristic of race. It is often said that this involves a “reversal of the burden of proof”. - 59 -[132]Only limited guidance on the application of Section 136(3) can be drawn from the observations of the Court of Appeal in Royal Mail Group Limited v. Efobi, [2019] EWCA Civ 18, since the appeal in that case was disposed of without need for detailed consideration of the “second stage” of the process.[133]It is therefore necessary to return to the consideration of this issue in the detailed judgment of the court presented by Peter Gibson LJ in Igen Ltd v. Wong, [2005] EWCA Civ 142. In particular, it is noted that the Court of Appeal in that case paid close attention to earlier guidance on the correct approach to be taken by Employment Tribunals and the Employment Appeal Tribunal, contained in the judgment of the then President of the Employment Appeal Tribunal, HHJ Ansell, in Barton v. Investec Securities Ltd., [2003] UKEAT 18/03/0304 (what is referred to by the court as “The Barton Guidance”.[134]In Igen the Court of Appeal reviewed the earlier authorities in detail and confirmed that: 17. The statutory amendments clearly require the ET to go through a two- stage process if the complaint of the complainant is to be upheld. The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the Respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the Respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.[135]In so far as the “Barton Guidance” is concerned, the Court of Appeal set out a (revised) version of that guidance at paragraph 76 of their judgment, in an Annex. It is to be noted that the court was at pains to: … repeat the warning that the guidance is only that and is not a substitute for the statutory language. The Tribunal has borne that warning in mind when addressing this issue in relation to the present case.[136]Of particular relevance to the present case are paragraphs (9) – (13) of the “Barton Guidance”, which suggest that: (9) Where the Claimant has proved facts from which conclusions could be drawn that the Respondent has treated the Claimant less favourably on the ground of [race], then the burden of proof moves to the Respondent. (10) It is then for the Respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [race], since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. - 60 - (12) That requires a Tribunal to assess not merely whether the Respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [race] was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.[137]Bearing in mind the wording of the statutory provision, which requires the Respondent to “show” that they did not contravene the provision (“direct discrimination”, Section 13 of the Equality Act 2010) alleged, the Tribunal has considered all of the evidence brought by the Claimant, and turns to the Respondent to give an explanation of the matters which “in the absence of any other explanation” could lead the Tribunal to decide that such a contravention has taken place.[138]In the light of the findings set out above, therefore, the Tribunal finds that the burden of proof has shifted to the Respondent to explain:(1) the decision of Ms Tysoe which determined that the Claimant’s grievances (with the exception of the “health and safety” grievance) should be dealt with as part of a disciplinary process rather than within the framework of the Respondent’s grievance procedure;(2) the decision to refuse to make any adjustment to the personnel involved with the disciplinary and appeal procedures in the light of the Claimant’s complaints and observations about Ms Thomas;(3) the handling by Mr Armstrong of the disciplinary allegation against the Claimant in respect of a “racist comment”; and(4) the application of different sanctions (or lack of sanctions) for the Claimant by contrast with his comparators.[139]Turning first to the decision of Ms Tysoe which set the framework for treatment of the Claimant’s grievances (other than the “health and safety” concern), that decision by Ms Tysoe was set out in her communication dated 10 August 2017 [B/407-8] which informed the Claimant that: “Having reviewed your case it is clear that the majority of the Grievance you have rather than a separate grievance hearing being convened.”[140]It is noted in passing that a foretaste of this approach on the part of the Respondent’s People Hub, of choosing to deal with what the Claimant regarded as “grievances” in the context of what would eventually become “disciplinary” proceedings, was already to be found in the email response of Ms Rowena Smith on 4 August 2017 [B/319-320]. This email was in response to a variety of substantive and procedural complaints raised by the Claimant, to the effect that [B319]: - 61 - “The document you sent through raises concerns that would be dealt with in your disciplinary hearing as they are to do with the investigation. We would not hold a separate grievance hearing for this. … The normal process for an investigation is to speak to all parties involved and then witnesses. Once this has happened a decision is made on whether the case should progress to disciplinary. I can confirm that this is the process that has been followed. In relation to your concerns about Denise, I would suggest you raise these as part of your case in the disciplinary hearing. …”[141]Ms Smith did not appear before the Tribunal so that it was not possible to hear from her whether the indication contained in her email to the Claimant reflected her own decision-making or was guided from somebody else. The Tribunal notes that, in the email string at B/318-9, it is clear that detailed instructions were being given to Ms Smith by Ms Mackenzie.[142]However, the Tribunal did hear oral evidence from Ms Tysoe (who was no longer employed by the Respondent but had been their People Director at the relevant times in relation to this case) on Day 6 of the hearing.[143]In her witness statement Ms Tysoe claimed not to have known about the Claimant’s case until the time of his suspension or when he began to send email messages to her. Her position was that, prior to this, the case was being dealt with by Ms Mackenzie and Ms Thomas, both of whom reported directly to Ms Tysoe. Thereafter she acknowledged that she did have contact with the Claimant during the period from mid-July 2017 through to November 2017. So far as the Claimant’s allegations about the handling of his disciplinary and grievances were concerned, she maintained that: “Whilst this was clearly a very complex case, the way in which these processes were dealt with was in line with VA's grievance and disciplinary policies and Craig was not treated any less favorably than any other employee would have been during these processes, for any reason.”[144]Ms Tysoe was cross-examined at length on Day 6. During the course of that cross-examination, having accepted that she had been copied in to what she described as the Claimant’s “escalating grievance”, she was taken to the Respondent’s procedures – in particular, the Disciplinary Procedure [B/1324-9], the Grievance Policy [B/1330-2] and the Anti-Harrassment and Bullying Policy [B/1333-8] – and pressed to indicate where in those procedures she derived support for her proposition that the Claimant had been dealt with “in line with VA’s grievance and disciplinary policies”.[145]When questioned about the evidence set out in paragraph 7 of her Witness Statement, Ms Tysoe became increasingly defensive, and was unable to point to any specific provision in the relevant procedures to support her propositions. She relied upon her comment that what happened was “in line with” the Respondent’s policies, but conceded that this was “not in the policy”. She said that “there is a difference”, maintaining that while “not in the grievance policy”, the policy “does not set out every eventuality”. When asked what constituted “normal practice”, she - 62 - first said that this would reflect “an assessment taken by the company”, which, after being pressed further on the point, she accepted was an assessment “made by me on behalf of the organisation”. Ms Tysoe accepted that “these practices are not necessarily recorded”, and claimed that “the policies act as a guide”. She also suggested that it might sometimes be necessary to “make different practice to make these fit the specific circumstances of the case”. Finally, when taken to the related comments in her Witness Statement at paragraph 27, Ms Tysoe was asked again about the use of the terms “procedures” and “policies or procedures”. In response, she said that: “… [this is] a turn of phrase, it is ‘the way we do things’.”[146]When asked what she meant by the statement at paragraph 15 of her Witness Statement that: “I considered the points made in [the Claimant’s] emails carefully. However, I remained of the view that my proposed approach was in line with our disciplinary and grievance procedures …” Ms Tysoe replied that: “When I “considered” matters I thought about it and made a decision which [the Claimant] did not like.”[147]In response to cross-examination in relation to her statement at paragraph 16 of the Witness Statement that: “At no time did I say to [Craig] that his grievances in relation to the other matters would not be dealt with. Quite the opposite, I assured [Craig] a number of times that his grievances and concerns would be considered but this was most appropriately done as part of the disciplinary process as his concerns directly related to this and could not be adequately separated from this.” Ms Tysoe clarified that, in using the term “would be considered”, she: “… just meant that they would be part of the disciplinary hearing.” However, when asked what she did to ensure that this happened, Ms Tysoe admitted that: “I did not follow up with [Mr Armstrong] to see if the points raised by [the Claimant] to me had been covered off.”[148]When asked to comment in relation to the treatment afforded the comparators (Mr Giovanni, Ms Arasp and Ms George) she told the Tribunal that she did not know whether they had been dealt with by way of separate disciplinary hearings. However, she acknowledged that none of the comparators had been suspended, whereas the Claimant was “treated differently” – qualifying that latter remark with the observation that “but the facts may have been different”. In any event, she maintained, the Claimant was not treated differently because he was white. When then asked directly why the Claimant was treated differently, she replied: “I made a general assessment in the light of all the information before me that [your] complaints should be treated as part of the disciplinary … Further investigation could be made as part of the disciplinary process.” - 63 -[149]Ms Tysoe was then asked about the “damaged drawers” incident, and rejected the suggestion that this concern of the Claimant had been “ignored”. Although unable to indicate specifically where, she stated that: “I seem to remember that the drawers incident was looked into and there was some explanation as to why that had been the case …” Thereafter, she explained that: “The other issues were then passed on to be dealt with in the context of [the Claimant’s] disciplinary process.” When asked about the “alleged threats” against the Claimant, Ms Tysoe replied “They were in the investigation and the investigation was the subject of the disciplinary ...” stating that these could be dealt with as: “… part of the mitigation.”[150]Looking in the round at these explanations for the different treatment of the Claimant, the Tribunal finds that Ms Tysoe has failed to put forward a plausible non-discriminatory explanation for her decisions. She set out from a position that her decisions were “in line with” the Respondent’s grievance and disciplinary policies. However, after that proposition was effectively demolished in the course of cross-examination, the best she could come up with was that she had made “a general assessment in the light of all the information before me” that the Claimant’s complaints should be treated as part of the disciplinary.[151]No cogent evidence has been put before the Tribunal, other than the unsuccessful attempt to hide behind the Respondent’s policies, to discharge the burden of proof. Nor does any of the explanation put forward by Ms Tysoe come anywhere near amounting to what might be adequate to discharge the burden of proof on the balance of probabilities that race was not a ground for the treatment in question.[152]That being the case, and bearing in mind the “Barton Guidance” in relation to the application of Section 136(3) of the Equality Act 2010, the Tribunal finds that the Respondent has failed to prove, on the balance of probabilities, that her decisions in this regard were in no sense whatsoever on the grounds of race.[153]In consequence, Section 136(2) of the Equality Act 2010, which provides conclusion that, in relation to the decision of Ms Tysoe to direct that the Claimant’s grievances should be handled as part of his disciplinary process in the form of his “defence against the allegations being made”, and could be dealt with as “part of the mitigation”, the Respondent is guilty of unlawful direct discrimination against - 64 -[154]Ms Tysoe was also cross-examined in relation to the role of Ms Thomas in the procedures relating to the Claimant. In that regard, her evidence in respect of the grievance hearing was that: “I considered whether the fact that [Emma] had been named in the grievance document in relation to the handling of [Craig's] case meant she was not suitable to be a HR representative and note taker at the grievance hearing. However, having considered this, I saw no reason why [Emma] was not suitable to act as note taker in the meetings and provide HR support to the decision maker. [Emma] was not a decision maker in any of the processes and [Craig] had actually named a significant number of the HR team in his grievance so it was difficult to have only the support that were not connected in any event.” while, in relation to the subsequent grievance appeal hearing: “I appointed James Archibald (Legal Director) to hear the grievance appeal, also supported by Emma Thomas. I felt it was appropriate for Emma to continue to be involved in the case given her knowledge of the now very complex background. In my opinion, there was no conflict of interest as Emma had not been a decision maker in any of the processes. She was purely there to provide HR support and take notes. Emma is an experienced member of the HR team and I had no doubt she had been, and would continue to be, professional in dealing with this case.”[155]Ms Tysoe also made clear that she had appointed Ms Thomas “as note taker” for the Claimant’s disciplinary appeal which was conducted by Mr Archibald.[156]When cross-examined in relation to this evidence Ms Tysoe accepted that it was “unusual” for a member of the HR team to continue as note-taker or in some other role when a complaint has been made. She made the point that Ms Thomas, Ms Mackenzie, Ms Smith and Ms Asiegbu were the only members of the team with employee relations experience, and that there was nobody else. However, when asked about the particular role to be performed, she accepted that “of course there were other people who could have taken notes”, but maintained that she “thought it useful to have somebody who had had constant overview”.[157]The Tribunal has already set out its findings in relation to these matters in the course of giving its reasons for its finding that the Claimant was unfairly dismissed by the Respondent. That forms the background to consideration of the Claimant’s allegations that what took place constituted unlawful direct discrimination by reference to the protected characteristic of race.[158]Having regard to the evidence given by Ms Tysoe, the Tribunal – as has already been set out – finds that the confidence in Ms Thomas that: “Emma is an experienced member of the HR team and I had no doubt she had been, and would continue to be, professional in dealing with this case …” was badly misplaced. The covert recording also made clear to the Tribunal that the proposition set out in Ms Tysoe’s communication of 10 August 2017 to the effect - 65 - “Emma will act as note taker in both hearings and will provide advice on process and employment legislation rather than to influence the outcome in any way …” turned out to constitute nothing more than an empty aspiration in relation to the behaviour of Ms Thomas.[159]That having been said, there is nothing to suggest to the Tribunal that Ms Tysoe made her decisions concerning the involvement of Ms Thomas other than in good faith. The Tribunal is satisfied that there is no suggestion of anything putting Ms Tysoe on notice of a risk in relation to Ms Thomas in that regard. Nor could Ms Tysoe have been aware at the time of making her decisions of the extent to which Ms Thomas was eventually established to have been prepared to “play fast and loose” with due process.[160]That being the case, the Tribunal is satisfied that the Respondent has put forward cogent evidence to explain the appointment and continuing involvement of Ms Thomas and that the explanation given by Ms Tysoe in that regard is adequate to discharge the burden of proof on the balance of probabilities that race was not a ground for the decisions in relation to the involvement of Ms Thomas in the various stages of the procedures under which the Claimant’s issues were being dealt.[161]In respect of the Claimant’s allegations concerning the participation and behaviour of Ms Thomas in his grievance and disciplinary procedures, therefore, the Tribunal finds that nothing in this context renders the Respondent responsible for unlawful discrimination by reference to the protected characteristic of race.[162]The Tribunal now turns to the handling by Mr Armstrong of the Claimant’s disciplinary process in relation to an alleged “racist comment”. Mr Armstrong was cross-examined on the afternoon of Day 4 and the morning of Day 5. The Tribunal reminded itself of the content of the covert recording of the exchanges between Mr Armstrong and Ms Thomas in the course of the disciplinary hearing held on 22 August 2017.[163]The original allegation contained in the suspension letter backdated 17 July 2017 was expressed in terms that: “… you have made an inappropriate comment of a racist nature to Roya Arasp” Thereafter, in the “Invite to Disciplinary Meeting” letter dated 3 August 2017 the allegation was set out in terms that: “… you made a comment of a racist nature on 3rd June: “We had better watch out in the office, you’re Iranian aren’t you?””[164]In the letter dated 21 September 2017 confirming that the Claimant had been summarily dismissed [B/653A-656] Mr Armstrong set out the allegation in terms that “… you made a comment of a racist nature on 3 June …”, but then went on to state [B/654] that: “… the date of 3 June is an error and should have read after the terrorist attacks on 3 June.” - 66 -[165]Mr Armstrong told the Tribunal during the course of his cross-examination that the Claimant attended the disciplinary hearing equipped solely to deal with the allegation that a comment had been made on 3 June 2017. The notes drawn up to reflect what happened during that meeting also demonstrate this to have been the case.[166]During the course of his cross-examination Mr Armstrong was repeatedly questioned in relation to how he had felt justified in what he described as “reconfirming the allegation”. He accepted that he “changed the date”, but insisted that there was a “mistake in the allegation”. His explanation for this was that, “although the original allegation was 3 June”, nevertheless “…we knew from Roya’s grievance that the allegation was not that specific – ‘shortly after’…”. On that basis he maintained that “I stand by my conclusion that the Claimant made the comments”.[167]However, Mr Armstrong was then asked whether he had taken steps to clarify or confirm what he claimed to be “the correct date”, to which his response was that he: “… did not go back to Roya and Darrell about the date.”[168]When it was then put to him that his investigation was “not complete”, Mr Armstrong replied that: “It was. I did not need to go back as the date was clear.” His justification for this proposition was that: “Roya’s grievance did not put a specific date.” Nothing more was said other than that Mr Armstrong felt that he: “… had enough to decide on a balance of probabilities that [the Claimant] had made the statement.”[169]Mr Armstrong accepted in cross-examination that he knew that the Claimant had lodged a grievance that Ms George had made a racist comment to him, and that Ms George “accepted that she made the comment”. He also agreed that he knew that the Claimant is white and that Ms George is black.[170]Given this account of matters in Mr Armstrong’s evidence the Tribunal has considered the “Barton Guidance” while asking itself whether Section 136(3) of the Equality Act 2010 has been satisfied by the Respondent.[171]In the unanimous view of the Tribunal the Respondent has failed to prove, on the balance of probabilities, that the treatment of the Claimant in respect of the handling of the disciplinary procedure and the “reconfirmation” (changing) of the date of the alleged racist-comment incident was in no sense whatsoever on the grounds of race. - 67 -[172]Mr Armstrong’s justification for his action was shown during the course of cross-examination to have amounted to little more than a dogged insistence that the allegation could relate to a time at which the Claimant was present in the club with Ms Arasp and Mr Giovanni. The more he was pressed on the matter, the more dogged that insistence became. Indeed, when challenged as to why he had not gone back to the complainant and her alleged witness to clarify or confirm the alleged date, Mr Armstrong insisted that he “did not need to go back as the date was clear”.[173]Having overcome, to his own satisfaction, the hurdle of the inconsistency in the alleged dates, Mr Armstrong then felt confident in proceeding to the proposition that he “…had enough to decide on a balance of probabilities” that the Claimant had made the statement.[174]Once again, this involved selecting one version of events as compared with another, but with no clear explanation as to what justified the selection of the version put forward by Ms Arasp. The Tribunal particularly notes that, in the course of making that choice, Mr Armstrong chose, without more, to discount the evidence contained in his disciplinary hearing bundle concerning Mr Cawthorn’s account of “threats” directed to the Claimant, and what was consistently maintained by the Claimant to have been “collusion” between the three (non-white) employees who lodged formal grievances against him. This information had been submitted to Ms Mackenzie in writing by Mr Cawthorn, the Respondent’s Service Manager at the Mayfair club, notwithstanding Mr Cawthorn’s declaration [B/362C] that: “I already feel threatened as they will know I've said this now when it comes up. I don't want to be fearing for my own safety when going to and from work. I feel that all the threats that have been said had a lot of truth and intention behind them.” and his subsequent protestation [B/362AAA] that: “Regarding the Roya situation I feel it needs to be investigated. But I also know that if anything does come back to me from her and I don't feel safe then I would no longer be able to work in that club, as I don't want anything happening to me.”[175]In particular, the reported propositions that Ms Asarp had made statements in terms of: “… don't worry Craig will get what’s coming to him …” and “Craig is fucked because 4 people are putting grievances against him for racism and bullying.” had been reported by Mr Cawthorn directly to Ms Mackenzie, were known to Ms Thomas, and were set out in the email chains included in Mr Armstrong’s disciplinary hearing bundle, yet had not been followed up either with Ms Cleopatra Bartley or with Ms Arasp by the time of the Claimant’s disciplinary hearing and summary dismissal. The matters had also been vividly set out at length by the Claimant in his communication of 7 August 2017 to Ms Tysoe [B/373-387], a full fortnight before the disciplinary hearing. - 68 -[176]When taken to the notes of an “Investigation Meeting” conducted by Ms Mackenzie with Mr Cawthorn on 25 July 2017 [B/262], Mr Armstrong first told the Tribunal that he could not recall if Ms Mackenzie had investigated Ms Arasp for this, and confirmed that he had not for his part investigated the threat with Ms George.[177]He then said that he did not recall if the material was in his bundle of hearing documents and said that he did not recall seeing [the document at B/362]. Mr Armstrong was then asked by the Employment Judge to look at page B/913 of the hearing bundle, which set out a list of documents prepared for the disciplinary hearing to be conducted by Mr Armstrong. That list included reference to “Additional Documents”, including “4. Investigation meeting Michael Cawthorn 25th July”.[178]On the resumption of cross-examination, and after being taken to a note of the articulation by Ms George of her grievance against the Claimant [B/1076], Mr Armstrong was directed to the account of Ms George accepting that she had “used her race” in relation to the Claimant [B/1078]. Mr Armstrong was asked whether there had been any investigation into that admitted matter, and he responded that there was no reference there to Ms Mackenzie investigating the threat. When asked whether he had himself taken steps to investigate, Mr Armstrong responded: ‘I did not feel it needed investigation.’ Mr Armstrong was then asked whether it was not surprising that a: ‘… serious gross misconduct allegation was not investigated …’ to which he replied: “It did not come across that way.”[179]The Tribunal reminds itself that, while considering the “reason or principal reason” for the dismissal of the Claimant in the context of the decision of the Tribunal that the Claimant was unfairly dismissed by the Respondent, the Tribunal has explicitly rejected the evidence of Mr Armstrong, given during the course of his cross-examination in response to a question from the panel, as regards his reasons for deciding to dismiss the Claimant.[180]Looking in the round at Mr Armstrong’s explanations for his conduct of the disciplinary procedure and his decision to dismiss the Claimant, the Tribunal finds that there has been a failure to put forward a plausible non-discriminatory explanation for what took place. Mr Armstrong’s evidence was unsatisfactory in various parts: He failed to provide a cogent non-discriminatory explanation as to why he chose to “reconfirm” the allegation in relation to the “racist comment”; He was unable to explain or justify the failure to investigate Ms George’s admitted use of language which the Claimant had characterised in his grievances as a “racist comment”; and he was unable to provide a satisfactory explanation as to why the alleged threats by Ms Arasp – which had been reported by Mr Cawthorn, who was described by Mr Armstrong as “a senior manager at that time” – were not followed up and accorded serious investigation. Nor was Mr Armstrong’s performance as a witness enhanced by his claimed inability to recall whether he had been in - 69 - possession of key documents during the course of the disciplinary procedure leading to the summary dismissal of the Claimant.[181]It follows that the Tribunal finds insufficient in Mr Armstrong’s evidence to get anywhere near what would be adequate to discharge the burden of proof on the balance of probabilities that race was not a ground for the treatment in question.[182]That being the case, and bearing in mind the “Barton Guidance” in relation to the application of Section 136(3) of the Equality Act 2010, the Tribunal finds that the Respondent has failed to prove, on the balance of probabilities, that Mr Armstrong’s handling of the disciplinary procedure against the Claimant and his decisions in this regard were in no sense whatsoever on the grounds of race.[183]In consequence, Section 136(2) of the Equality Act 2010, which provides conclusion that the Respondent is guilty of unlawful direct discrimination against[184]The Tribunal turns, finally, to brief mention of the differential treatment of the Claimant when contrasted with his comparators in relation to the sanctions (or nonsanctions) applied in their respective cases.[185]Once again, it is common ground that Mr Giovanni was not dismissed before he resigned, and that neither Ms Arasp nor Ms George was subjected to disciplinary sanctions – still less summary dismissal – in respect of the matters raised in the Claimant’s grievances. The Claimant, by contrast, was dismissed and subjected to less favourable treatment than his comparators.[186]It has also been established that there is a difference of racial characteristic as between the three comparators (all of whom are black) and the Claimant (who is white).[187]The thrust of the Claimant’s complaints has been directed towards his dismissal. This was said by the Respondent to have been by reason of “gross misconduct”. The dismissal letter of 21 September 2017, drafted over the signature of Mr Armstrong, concluded that: “I believe there is evidence to suggest you made a racist comment to Roya and have bullied Jannett. In relation to Roya and Darrell I believe that the PIP process was not managed appropriately and this isn’t acceptable for a General Manager of your experience. I therefore believe that, on the balance of probabilities, you did make a racist comment towards Roya and did bully Jannett.”[188]When cross-examined in relation to his reasons for dismissal, Mr Armstrong conceded that “bullying” was not one of the allegations set out in the “Invite to Disciplinary Meeting” dated 3 August 2017 or recited at the beginning of his dismissal letter of 21 September 2017.[189]Having heard Mr Armstrong’s evidence under cross-examination on the afternoon of Day 4 of the hearing in relation to the “4 examples” raised as - 70 - constituting “bullying”, and having considered this evidence in the context of the Respondent’s procedures as set out in their “Anti-Harassment and Bullying Procedure” [B/1333-1338, with particular reference to B/1335], the Tribunal is satisfied that Mr Armstrong failed to demonstrate that he was doing other than seeking by whatever means to establish a ground of “gross misconduct” against the Claimant by reference to the Respondent’s Anti-Harassment and Bullying Procedure.[190]Even on his own evidence Mr Armstrong did not uphold two of the four examples raised, while the allegation of “treating Ms George unfairly” resulted in findings that [B/655]: “During my review of the case and after speaking to you, I found that you do require Jannett to email you after her club walk arounds. When speaking to you there was (sic) some inconsistencies as to the reason for asking Jannett to do this. I understand why you asked Jannett to get the certificate from the Training team however, as was explained to you by Jannett, there wasn’t a certificate that could be issued. In reviewing the investigation notes from Chris Welch, it is clear no certificates are issued. I believe you should have gone to Chris or the team directly as they normally provide the information to the Operations Manager or General Manager. In relation to excluding Jannett from conversation, I feel that there is inconclusive evidence, however, I don’t believe you converse with her in a friendly manner, just professional, relying heavily on email to communicate with her. Finally, there is the rejection of Jannett’s holiday. I accept that you technically followed process, however, I don’t believe you exhausted all options to find a solution to letting Jannett have the holiday in what are extenuating circumstances.”[191]Meanwhile, the allegation of seeking to influence the outcome of a disciplinary case against Ms George resulted in a finding that: “From reviewing the evidence given to me as part of the investigation process and on speaking by Tristan Laubscher, I feel there is evidence, by way of text messages between you and Tristan and Tristan and Whynny’s statements, to support the allegation that you wanted the outcome of the disciplinary hearing to be a dismissal. This would support Jannett’s assertion that you wanted Jannett out of her job.”[192]Since it was conceded that the text messages were between the Claimant and Mr Laubscher, and would not have been known to Ms George, it is difficult to understand how this could amount to “bullying” within the framework of the Respondent’s Anti-Harassment and Bullying Policy”, since Ms George was not the “recipient” of these, such as to give rise to the consequences set out in that policy.[193]When pressed on these points, all that Mr Armstrong would do was to repeat his view that: “I believe on the basis of all of these that [the Claimant] bullied Ms George.”[194]In summary, no cogent evidence was presented to justify or explain the appearance at the stage of the disciplinary hearing of a charge of “gross misconduct” by reason of “bullying”. Mr Armstrong struggled under cross- 71 - examination to establish his view that there had been “bullying” within the Respondent’s procedures. In the light of his performance under oath the Tribunal has formed the view that Mr Armstrong – as with other parts of his activity in this context – was content to proceed on a highly selective basis with a pre-determined view that the Claimant should be dismissed for “gross misconduct”. As Mr Armstrong put it himself: I am not saying I “ignored” information, but there was a lot of it. Clearly I did not use all of it.[195]Even more problematic was the reliance upon the alleged “racist comment” as a ground for dismissal by reason of “gross misconduct”. The Tribunal has already set out its findings in relation to Mr Armstrong’s decision to “reconfigure” the allegation as regards the date of the alleged incident. The Tribunal has also expressed its view in respect of Mr Armstrong’s decision that there was no need to check with the complainant and her alleged witness once the confusion in relation to the date of the alleged “racist comment” had been brought to light. In both respects the Tribunal has found that the Respondent has failed to put forward a non-discriminatory explanation of those actions which would prove, on the balance of probabilities, that Mr Armstrong’s handling of the disciplinary procedure against the Claimant and his decisions in this regard were in no sense whatsoever on the grounds of race.[196]In so far as the Respondent purported to dismiss the Claimant for “gross misconduct” on the basis of(1) the making of a “racist comment” and(2) “bullying” of Ms George, therefore, the Tribunal finds, bearing in mind the “Barton Guidance” in relation to the application of Section 136(3) of the Equality Act 2010, that the Respondent has failed to prove, on the balance of probabilities, that such a purported dismissal was in no sense whatsoever on the grounds of race. This applies to the process leading to that purported dismissal and the reasoning set out in the letter dated 21 September 2017.[197]In consequence, Section 136(2) of the Equality Act 2010, which provides conclusion that the Respondent is guilty of unlawful direct discrimination against[198]For the reasons set out above the Tribunal finds that the Respondent has committed unlawful acts of discrimination against the Claimant by reference to the protected characteristic of race.
DISPOSAL
[199]In the light of the above the unanimous judgment of the Tribunal is that:(1) the Claimant was unfairly dismissed by reason of having made a protected disclosure;(2) the Claimant was unfairly dismissed by reference to Section 98(4) of the Employment Rights Act 1996; - 72 -(3) the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of age is dismissed;(4) the Claimant’s claim alleging unlawful discrimination by reference to the protected characteristic of sex is dismissed; and(5) the Claimant was unlawfully discriminated against by reference to the[200]A hearing will be listed for a future date to determine the remedies in relation to claims (1), (2) and (5).