Mrs L Arnost v Commissioner of HM Revenue and Customs: 2300882/2023

EMPLOYMENT TRIBUNALS

Case No 2300882/2023

Between

Mrs L. ArnostClaimant

Commissioner of His Majesty’s Revenue and CustomsRespondent

Before

Employment Judge G. King

In person for claimant

Mrs J. Smeaton - counsel for respondent

Date 30 July 2024

JUDGMENT

[1]The Claimant’s claims of discrimination on the grounds of race, pursuant to s.13 Equality Act 2010, are not well founded and are dismissed.

REASONS

[1]By a Claim Form dated 22 February 2023, the Claimant brought two claims of direct race discrimination.

[2]The Tribunal was referred to various documents during the hearing. These were:a. The 188-page bundle prepared in advance of the hearing. Pages from this bundle are noted in square brackets, e.g. [1];

b. The 23-page witness statement bundle. The Tribunal heard witness evidence from the Claimant and Mr Bob Khangura on behalf of the Respondent. References to witness statements are designated as page number, WS bundle, followed by paragraph number if there is one, e.g. [2 WS bundle] for the first page of the Claimant’s witness statement (page 1 being the index), or [20 WS bundle 1] for paragraph one of Mr Khangura’s statement. Case No: 2300882/2023 10.8 Reasons – rule 62(3)

The Issues

[3]The issues that the Tribunal had to decide are set out in the case management order of EJ Khalil dated 13 October [36]. These are: Direct Race Discrimination:a. Did the Respondent treat the Claimant less favourably by terminating the engagement of the Claimant by reason of her East European Race?

b. Did the Respondent treat the Claimant less favourably by failing to listen to the Claimant’s version of events because of her East European race?

c. In both allegations, the Claimant compares herself with the treatment afforded to Ms Nathalie Chalk

Findings of Fact

[4]On 14 December 2020, the Claimant was placed by the agency that employed her - Brook Street (UK) Ltd - on a temporary assignment with the Respondent as an Administration Officer at the Ebbsfleet Inland Border Facility site (‘the Site’). The Site was managed by staff from a third party, called Wincanton PLC.

[5]The Claimant worked 12-hour night shifts, usually starting at 19:00 and finishing at 07:00 the following morning.

[6]The Claimant was supervised by Natalie Chalk, who was also employed by Brook Street.

[7]On 3 October 2022 there was an incident during the Claimant’s night shift involving the Claimant and Ms Chalk. The Tribunal did not need to make any findings on exactly what happened during this incident, suffice to say that none of the Respondent’s employees were involved at the time. There were no employees of the Respondent on site at the time.

[8]As a result of this, the Claimant sent Ms Chalk a WhatsApp message saying “Natalie pick someone else to cover for you when you’re not here. I don’t need this” [88].

[9]At around 01:00 on 4 October, Ms Laskowska came into the office in which the Claimant was working and told the Claimant to follow her. The Claimant was hopeful that she was being taken to a mediation meeting [7 WS bundle 9].

[10]The Claimant and Ms Laskowska went into a separate office were there were four other people. One was a lady named Karen, from another team. One was Mr Tony Taylor, who was employed by Wincanton, although the Claimant did not know who he was at the time, nor who employed him. Case No: 2300882/2023 10.8 Reasons – rule 62(3)

[11]Mr Taylor was the duty site manager [21 WS bundle 7].

[12]Following this, the Claimant was told to leave the Site. The Claimant’s witness statement says that she was told to leave by Ms Laskowska [8 WS bundle] but the Respondent’s case is that it was Mr Taylor who told the Claimant to leave the Site [21 WS bundle 7]. During cross-examination, the Claimant accepted that it was Mr Taylor who made the decision.

[13]On 4 October at 02:32 (once she was home), the Claimant emailed Mr Khangura complaining of alleged mistreatment by Ms Chalk [90] and subsequently lodged a grievance alleging age discrimination by Ms Chalk [90]. There was no mention of race discrimination in the Claimant’s emails.

[14]On 4 October, Natalie Chalk had emailed Brook Street to notify them of the incident [93]. Natalie Chalk attached to the email a statement of events [86-87] and a statement from Chiyne Dundun [89]. The same day, Mr Khangura and Ms Chalk notified Brook Street of the incident. Mr Khangura recommended the Claimant be temporarily stood down pending investigation [93].

[15]Ms Jerabkova, from Brooke Street, replied to Mr Khangura [114] the same day to say: “Yes, I have spoken to Libuse and advised her not to come back to work until further notice and until all investigations are completed.” The Tribunal is satisfied that Ms Jerabkova did explain this to the Claimant.

[16]On 10 October, Mr Khangura emailed Brook Street asking for an update on its investigation [113]. There does not appear to have been a reply from Brooke Street.

[17]12 Oct 2022 Mr Khangura emailed Brook Street asking for an update on its investigation [113]. Ms Jerabkova responded the following day to confirm that the matter had been referred to Brook Street’s Human Resources team [113].

[18]The Claimant requested accrued holiday pay and her P45 from Brook Street, which Brooke Street treated as her resignation. Emails from Ms Jerabkova to the Claimant on 25 October and 26 October [108 – 109], however, made it clear to the Claimant that Brooke Street did not consider that the Claimant had been dismissed. The Claimant also asked for one week’s notice pay, and Brooke Street confirmed that she had no entitlement to this [108].

[19]Brooke Street tried to speak to the Claimant by telephone, however the Claimant refused to speak on the telephone and stated on several occasions that she preferred email communication [107, 111].

[20]On 26 Oct 2022, Mr Khangura emailed Brook Street again, asking for an update on its investigation [112]. On 3 November, Ms Jerabkova from Brook Case No: 2300882/2023 10.8 Reasons – rule 62(3) Street emailed Mr Khangura to say the Claimant had not returned her calls [112].

[21]The Site closed permanently on 27 November 2022.

[22]On 2 December 2022, the Claimant submitted complaint to the Respondent, which the Respondent replied to on 3 January 2023 [120]. The Law Direct Discrimination

The Law

[23]Section 13 of the Equality Act 2010 provides: S. 13. (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.

[24]In considering the Claimant’s direct discrimination complaints the Tribunal is required to focus on the ‘reasons why’ the Respondent had acted (or failed to act) as it did. That is because, other than in cases of obvious discrimination, the Tribunals will want to consider the mental processes of the alleged discriminator(s): Nagarajan v London Regional Transport

[1999] ICR 877

[25]In order to succeed in any of her complaints, the Claimant must do more than simply establish that she has a protected characteristic and was treated unfavourably: Madarassy v Nomura International plc

[2007] IRLR 246

. There must be facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Claimant was discriminated against. This reflects the statutory burden of proof in section 136 of the Equality Act 2010, but also long-established legal guidance, including by the Court of Appeal in Igen v Wong

[2005] ICR 931

. It has been referred to as something “more”, though equally it has been said that it need not be a great deal more: Sedley LJ in Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

. A Claimant is not required to adduce positive evidence that a difference in treatment was on the protected ground in order to establish a prima facie case.

[26]The grounds of any treatment often have to be deduced, or inferred, from the surrounding circumstances and in order to justify an inference one must first make findings of primary fact from which the inference could properly be drawn.

[27]This is generally done by a Claimant placing before the Tribunal evidential material from which an inference can be drawn that he or she was treated less favourably than he or she would have been treated if they had not been a particular race, gender, religion etc: Shamoon v RUC

[2003] ICR337

. ‘Comparators’, provide evidential material. But ultimately, they are no more than tools which may or may not justify an inference of discrimination on the relevant protected ground, in this case race. The usefulness of any Case No: 2300882/2023 10.8 Reasons – rule 62(3) comparator will, in any particular case, depend upon the extent to which the comparator’s circumstances are the same as the Claimant’s. The more significant the difference or differences the less cogent will be the case for drawing an inference.

[28]In the absence of an actual comparator whose treatment can be contrasted with the Claimant’s, the Tribunal can have regard to how the employer would have treated a hypothetical comparator. Otherwise, some other material must be identified that is capable of supporting the requisite inference of discrimination. This may include a relevant statutory code of practice. Discriminatory comments made by the alleged discriminator about the Claimant might, in some cases, also suffice. There were no such comments in this case.

[29]Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some case suffice. Discrimination may be inferred if there is no explanation for less favourable treatment. This is not an inference from less favourable treatment itself but from the absence of any explanation for it.

[30]It is only once a prima facie case is established that the burden of proof moves to the Respondent to prove that it has not committed any act of unlawful discrimination, so that the absence of an adequate explanation of the differential treatment becomes relevant: Madarassy v Nomura

[2007] EWCA Civ 33

[31]In the Tribunal’s discussions regarding the Claimant’s direct discrimination complaints, the Tribunal held in mind that the Tribunal are ultimately concerned with the reasons why each of the alleged perpetrators acted as they did in relation to the Claimant. Deliberation

[32]The first question the Tribunal has considered is “did the Respondent terminate the Claimant engagement?”

[33]The Claimant’s case that she was told to clear her desk and was escorted off site under the instruction of Mr Taylor, who was employed by Wincanton. She said she did not know who Tony Taylor was at this point. The Respondent was unable to give any comment on the detail of exactly what happened on the night that the Claimant was told to leave the site, as none of the people on site at that time were employees of the Respondent. The Tribunal accepts that Mr Taylor, as the site duty manager, did have the authority to require the Claimant to leave the site during the night shift.

[34]Any discrimination on the part of the Respondent can only start from the involvement of the Respondent employees, which in this case is Mr Khangura. Mr Khangura’s involvement began when he took a call from Chalk around 07:00 on 4 October. Case No: 2300882/2023 10.8 Reasons – rule 62(3)

[35]At 11:43 on 12 October, Mr Khangura sent an email to Brook Street [93], which concluded with the line “I recommend that at this stage – Libuse be stood down tonight until its fully investigated.”

[36]In the Tribunal’s view this wording is important, as it is clear that Mr Khangura is not recommending that the Claimant’s engagement, or assignment, with the Respondent comes to an end. Mr Khangura is recommending that the Claimant be suspended pending an investigation.

[37]In the Claimant’s own email to Mr Khangura [90], which was written at 02:32 on 4 October, the Claimant says that Ms Laklowska told the Claimant there will be an investigation. On 4 October, Ms Jerabkova, from Brook Street, confirmed to Mr Khangura in an email [114] that she has “spoken to Libuse and advised her not to come back to work until further notice and until all investigations are completed”. The Tribunal did not hear from Ms Jerabkova, but the Tribunal has no reason to doubt the validity of this email. It is consistent with Ms Jerabkova’s subsequent emails of 17 October, which confirms that the Claimant’s assignment still runs until 27 November, and of 26 October [108] in which she confirms to the Claimant that she has not been dismissed and that she was asked not to attend shifts until her case been investigated.

[38]The Claimant has said in evidence that she genuinely believed her assignment had been terminated, but the documentary evidence does not support that it was. The Claimant’s belief is not a relevant factor here. It is a question for the Tribunal to determine if the Claimant’s assignment was terminated or if she was merely suspended pending an investigation. This is also supported by the Claimant's own witness statement, in which she says: “Ms Laskowska stated: “We will not be discussing anything with anyone, you will have to leave NOW pending investigation”.”

[39]On that basis, it is clear that the Claimant knew at the time that she was not dismissed and that there would be an investigation. She accepted this in cross-examination, although she said she did not know how the investigation would work.

[40]The Tribunal is satisfied, that is a matter of fact, the Claimant’s assignment was not brought to an end, either by the Respondent nor by her employer. This case has been pleaded as a claim of direct race discrimination, with the unfavourable treatment being the termination of the Claimant’s assignment. As the assignment was not terminated, the claim in respect of the first allegation fails at this first hurdle.

[41]As the unfavourable treatment did not occur, the Tribunal has not gone on to consider the question of race in relation to this first allegation.

[42]In respect of the second allegation, Mr Khangura accepts that he made the recommendation to Brook Street that the Claimant be stood down until the matter had been investigated without speaking to the Claimant. Case No: 2300882/2023 10.8 Reasons – rule 62(3)

[43]In looking at the Claimant’s arguments in relation to this second allegation, the Claimant’s arguments appear to be more related to fairness. The Employment Rights Act 1996 covers topics such as fairness, for example the right not to be unfairly dismissed. The Equality Act 2010, in relation to direct discrimination, refers to less favourable treatment. It is easy to see how a litigant in person could equate the idea of treating someone fairly with the idea of not treating someone less favourably. In law, however, these two concepts are very different things.

[44]The Claimant has set out in her submissions how the Equality Act 2010 applies to both employees and to workers, including agency workers, such as the Claimant was. This is correct. The Equality Act operates on a much broader scope than the Employment Rights Act. It protects workers from less favourable treatment when that less favourable treatment is due to a protected characteristic. The Equality Act does not, however, bring in the provisions of the Employment Rights Act by the back door.

[45]In the penultimate page Claimant’s witness statement [13 WS bundle] the Claimant says: “as the Respondent and HMRC management were not made privy to my employment contract and T&Cs with the agency, their representatives would be required to follow their own policy ‘HMRC upholding our standards of conduct policy’ (p62-p81 of the document bundle) which they singly failed to do”.

[46]This is not correct. The Respondents ‘HMRC upholding our standards of conduct policy’ [62 – 81] applied to employees of the Respondent. It did not apply to agency workers such as the Claimant, and the Equality Act does not alter this.

[47]Unfairness and discrimination are not the same thing (Bahl v Law Society

[2003] IRLR 640

). In any event, the Claimant’s terms employment with Brook Street was such that either Brook Street or the end user client could bring an assignment to an end without notice.

[48]Whilst it may have been fairer to have listened to the Claimant’s version of events, and sought her views on what happens before making a recommendation that her suspension continue, the Respondent was not obliged to do so. The Respondent was entirely justified in delegating this matter to the Claimant’s employer, Brook Street.

[49]The Tribunal found the evidence of Mr Khangura to be vague at best and evasive in parts. He was not a reliable witness. It is clear that the Claimant has been subjected to some poor practice from the Respondent. Her emails to Mr Khangura could have been acknowledged, which they were not. The exact nature of her suspension, and whether or not it was paid, could have been communicated to her, either by the Respondent or by Brook Street, and it was not. These issues, however, do not form part of the pleaded case, and in any event would relate to overall fairness of how the Claimant was treated. As noted above, as an agency worker, the Claimant was not entitled Case No: 2300882/2023 10.8 Reasons – rule 62(3) to the same protections afforded to employees by virtue of the Employment Rights Act.

[50]For the Claimant’s claim to succeed as a case discrimination, she would need to show that the Respondent not listening to her version of events amounted to less favourable treatment and that the Respondent did this because of her Eastern European race.

[51]The Claimant made various suggestions to Mr Khangura that she was treated unfairly, but did not suggest to him, the only HMRC employee involved, that he was motivated to act as he did because of the Claimant’s race.

[52]The Tribunal does find it relevant that the Claimant’s emails to Mr Khangura on 4 October do not mention anything to do with her race. The second email does contain allegation of discrimination, but this is allegation of age discrimination. It appears that races not mentioned until the Claimant files her ET1s against the Respondent and Brook Street.

[53]It is a further important point to note that discrimination does not occur just because less favourable treatment - bad things, in simple terms - happen to someone, and that person has a protected characteristic. The less favourable treatment must be because of that protected characteristic.

[54]The Tribunal finds that the Claimant has not made out a case where it could be inferred by the Tribunal that any treatment she was subject to by the Respondent was due to her Eastern European race. At [7 WS bundle 8] the Claimant refers to her WhatsApp message t Ms Chalk [88] and says: “I believe it was that message and the fact that I had the courage to turn down the previously agreed favour that tipped the scales for Ms Chalk who then stated that she cried out to all the other managers for their support.” This suggests that the Claimant believed that it was the refusal of a favour that led to her less favourable treatment. This has nothing to do with the Claimant’s Eastern European race.

[55]The Tribunal is satisfied that the Claimant’s race was not an influencing factor on the Respondent’s decision to not listen to her version of events and to place the investigation in the hands of Brook Street.

[56]The claim in respect of the second allegation therefore fails.

[57]As both claims have failed on their merits, the Tribunal has not gone on to consider the issue of jurisdiction (Fuller v London Borough of Redbridge

[2013] UKEAT 0084

13 1207). Case No: 2300882/2023 10.8 Reasons – rule 62(3)