Mrs M Karooma-Brooker v Royal Borough of Greenwich: 2301202/2022

EMPLOYMENT TRIBUNALS

Case No 2301202/2022

Between

Mrs M Karooma-BrookerClaimant

Royal Borough of GreenwichRespondent

Before

Employment Judge Fredericks-Bowyer

In person for claimant

Mr O Mills (instructed by Counsel) for respondent

Date 9 July 2024

JUDGMENT

[1]The response is struck out under Rule 37(1)(b) and Rule 37(1)(e) Employment Tribunal Rules of Procedure 2013.

[2]The claimant’s following claims are not well founded and are dismissed:- 2.1. Direct sex discrimination (s.13 Equality Act 2010); 2.2. Indirect sex discrimination (s.19 Equality Act 2010); 2.3. Direct sex discrimination in employment (s.39 Equality Act 2010); and 2.4. Indirect race discrimination (s.19 Equality Act 2010).

[3]The claimant’s following claims are well founded and succeed:- 3.1. Direct race discrimination (s.13 Equality Act 2010); 3.2. Direct race discrimination in employment (s.39 Equality Act 2010); and 3.3. Victimisation (s.27 Equality Act 2010).

[4]The Tribunal has jurisdiction to deal with the out of time elements of the claims set out by paragraph 3 because there formed a continuous course of conduct as set out by s.123(3)(a) Equality Act 2010. 1 of 2 Case Number: 2301202/2022

[5]In any event, it is also just and equitable to rule that the successful claims are brought in time as set out by s123(2)(b) Equality Act 2010.

[6]The respondent must pay the claimant the sum of £43,773.15 (gross) to compensate her for losses caused by the discrimination found. This is made up of:- 6.1. £34,363.65 in past losses; and 6.2. £9,409.50 to compensate the claimant for 18 months into the future, as we consider it just and equitable to provide that interim support.

[7]The respondent must pay the claimant the sum of £20,000 to compensate the claimant for her injury to feelings.

[8]The claimant’s request for aggravated damages is refused.

[9]No interest is due on any of the sums awarded in this judgment.

[10]The Tribunal does not make any recommendations in the case. Employment Judge Fredericks-Bowyer Dated: 9 July 2024 16th July 2024 NOTES:

[1]Oral judgment was given at the hearing. Written reasons will not be provided unless requested at the hearing or a request is made in writing by a party within 14 days of the sending of this document.

[2]Where written reasons are produced, they will be published in their entirety on the public Employment Tribunal decisions website here: Employment tribunal decisions - GOV.UK (www.gov.uk). 2 of 2

REASONS

JUDGMENT having been given orally in the hearing, these written reasons are provided following the claimant’s request under Rule 62(3) Employment Tribunal Rules of Procedure 2013.

Introduction

[1]These reasons are produced following the striking out of the response during the hearing, as a result of the respondent’s unreasonable conduct during disclosure which meant that it was not possible to have a fair hearing in the trial window. In the circumstances, we considered that striking out the response was a proportionate step in keeping with the overriding objective.

[2]Judgment, including remedy, was given and explained at the hearing. Written notice of the judgment followed, but there has been a delay in processing the request for written reasons. We apologise for the delay. The issues 1 of 33

The issues

[3]The issues were set in a hearing conducted by Employment Judge B Smith in August 2023. We repeat them in full to make clear which allegations we consider proven and which we consider were not proven even though the response was struck out.

[4]They were – 4.1. Time limits – 4.1.1. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened may not have been brought in time. The latest act complained of took place on 9 February 2022, namely the date of the outcome of the claimant’s grievance appeal. 4.1.2. Were the discrimination and victimisation complaints within three months (plus early conciliation extension) of the act to which the complaint relates? 4.1.3. If not, was there conduct extending over a period? 4.1.4. If so, was the claim made to the Tribunal within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide – 4.1.4.1. Why were the complaints not made to the Tribunal in time? 4.1.4.2. In any event, is it just and equitable in all the circumstances to extend time? 4.2. Direct race and sex discrimination (Equality Act 2010 section 13) 4.2.1. The claimant is a Black woman of Ugandan national origin. She compares herself to those who are white, and are men. 4.2.2. Did the respondent do the following things: 4.2.2.1. Repeatedly undermine and ignore the claimant in so far as: 4.2.2.1.1. In November 2017, in respect of a landscape project in General Gordon Square and the claimant’s project management role, the claimant’s colleagues did not cooperate with her to deliver the project, including by failing to place orders and failing to attend meetings scheduled by the claimant. 4.2.2.1.2. The claimant was asked by Dawn Squires to hand back project management responsibilities for General Gordon Square to Lisa Lawrence and Rob Goring following an internal memo in or around March 2018. 4.2.2.1.3. In August 2018, following training on Equality and Diversity in the PE&OS department of the respondent, the claimant raised the fact she believed she was experiencing discrimination on the ground of her protected characteristics with Lisa Lawrence. The claimant’s manager denied any racial discrimination and 2 of 33 dismissed the claimant’s concerns, referring to the claimant as “silly”. 4.2.2.1.4. On 26 September the claimant wrote to TK Karikalan in HR of the respondent regarding ongoing issues in her workplace, particularly concerning racism. When this was not followed up, the claimant sent a reminder email on 28 September. TK Karikalan replied on 1 October promising to assign the claimant someone work with her more closely. Sean Kayode was appointed, but the claimant’s concerns were not addressed. 4.2.2.1.5. In October 2018, the claimant’s manager Lisa Lawrence stated that she did not have the competencies to carry out meetings for the claimant under the Performance Review and Development Scheme (“PRaDS”) and requested to bring in Rob Goring. In preparation for her PRaDS meeting, the claimant compiled a list of over 20 projects she had worked on which had failed to progress due to lack of direction. The PRaDs were never completed, agreed, or signed off. 4.2.2.1.6. On 5 April, the claimant wrote to Lisa Lawrence to ask whether she could support her in writing a briefing note to Mirsad, the senior assistant director of the respondent for a business case to support the need for a Principal Development Officer role in the claimant’s department and asking whether, if the role was agreed, her pay would be backdated to reflect the work she had already been doing to date requiring landscape architectural skills and appropriate to a higher pay grade. The claimant did not receive a response. 4.2.2.1.7. On 28 May, the claimant wrote to TK Karikalan copying Sean Kayode to inform them both of the detrimental effect the process of waiting for HR to help was taking on her health and wellbeing. The claimant did not receive a response to this email. 4.2.2.1.8. On 8 July, the claimant wrote to Lisa Lawrence and Rob Goring, to inform them of the detrimental effect of waiting for senior management of PE&OS to review and re-evaluate her role was taking on her health and wellbeing. The claimant did not receive a response to this email. 4.2.2.1.9. On 31 July, the claimant was invited to a meeting with TK Karikalan and Kareem Ibrahim of the respondent to discuss concerns. HR of the respondent stressed to the claimant the need to keep within her current job description and failed to address other issues of discrimination raised by the claimant. 4.2.2.1.10. At around 25 September 2019, the claimant was informed there would be a follow-up meeting with HR to conclude on the role re-evaluation process. This meeting never happened. 3 of 33 4.2.2.1.11. In June 2020, following the murder of George Floyd and a message from the CEO of the respondent encouraging employees to stand together, the claimant reached out to her team via email and in a Whatsapp group chat to discuss race issues in the workplace. She also requested team building and awareness raising sessions, and sent around reading materials on Black Lives Matter. These efforts were not supported by management. 4.2.2.1.12. On 29 July the claimant attended the offices of the respondent to collect a book, following a period of 5 months working from home. She was made to wait outside, while a colleague asked management whether they were permitted to grant access to the claimant. Then the claimant entered she greeted the manager and her team and was mostly ignored. 4.2.2.1.13. When the claimant returned to the workplace, she experienced microaggressions including a colleague failing to acknowledge her presence or direct anything to her, and ignoring her. 4.2.2.1.14. On 2 December, the claimant attended a stage 1 sickness review, in which a member of HR made it clear he considered the claimant was unwell because she wanted a role that was never finalised. The claimant clarified that the workplace issues causing her sickness were discrimination, which the role review was just one manifestation of. Lisa Lawrence disputed the claimant’s experience. 4.2.2.1.15. On 17 November, the claimant had been tasked by Rob Goring with visiting the Fairy Park site in Mottingham to meet the park’s friends group and determine where they would like a water fountain to be situated. On arrival, the claimant was made aware by the park’s friends group of the fact that a white colleague in her department (Claire Lambert) was also on site, tasked with a plan to redesign the playground. The claimant had not been made aware of these redesign plans by management. Rather than an integrated approach being taken, she had been assigned a single element, one that required less expertise, and the element assigned to her colleague was commensurate with the claimant’s landscape architectural skills and experience yet she had been excluded from this work. 4.2.2.1.16. On 18 November, the claimant detailed the Fairy Park incident in an email to Rob, Dawn, as well as chair of REN Tony Sewell and senior management of the respondent, explaining that she was “requesting immediate intervention in this situation as I cannot continue to live like this anymore. As the council is looking to address racial discrimination, this is an opportunity to address the long-standing inequalities in the parks department”. There then followed an exchange of emails between Rob Goring and the 4 of 33 claimant, in which Rob Goring denied the claimant’s experiences of the incident. 4.2.2.2. A community engagement role was offered to a white individual rather than incorporated into the claimant’s role, and her input on this issue was ignored. 4.2.2.3. The claimant was subjected to tokenistic treatment, namely she was asked to sit on an interview panel for a new position within the PR&OS department. She was given the date for the interview but no further information, despite requesting it. Other than sitting on the panel of the interview, the claimant was not invited to substantively participate in the recruitment process, contrary to the respondent’s recruitment and selection procedure. 4.2.2.4. The claimant was not paid an honorarium for the work done above and beyond her pay grade, while other employees of the respondent have been. 4.2.2.5. The claimant was given to understand that her role was being regrade changes in far shorter timeframes. 4.2.2.6. The claimant was given to understand a role was bring created that 4.2.2.7. The claimant was made to feel pushed out of her job by the respondent through implications that she should be applying for different jobs. 4.2.2.8. The respondent took 40.5 weeks to provide the claimant with an outcome to her grievance. This is far longer than a white comparator would have to wait. 4.2.2.9. The respondent made use of, or failed to prevent from being used, stereotypes associated with the claimant’s protected characteristics which would never have been used in relation to a white man in an equivalent role to the claimant in that – 4.2.2.9.1. The claimant was called a ‘qualified nuisance’ by a senior manager for raising issues in the workplace in or around March 2019. 4.2.2.9.2. The claimant as described as ‘silly’ for raising the issue of racism in August 2018 following training on Equality and Diversity in the PE&OS department by Lisa Lawrence. 5 of 33 4.2.2.9.3. The claimant was described as ‘authoritarian’ in a report prepared by Priscilla John appeal pack for her grievance appeal hearing, received by the claimant on 6 January 2022. 4.2.2.9.4. Issues with the claimant’s ‘professionalism’ were raised in the Priscilla John report, above. 4.2.2.9.5. The implication was made that the claimant was scary or aggressive through statements that management ‘felt uncomfortable attending her planned meetings’ and that ‘staff avoided her, and her line management became anxious when they need to have meetings’ in the Priscilla John report. 4.2.2.9.6. The implication was made that the claimant was bossy or otherwise acting above her station: ‘it is alleged that Mary spoke down to colleagues or ‘ordered’ staff to work with her’ (in the Priscilla John report). 4.2.2.9.7. The claimant was described as having ‘what could be considered a strong personality’ in the Priscilla John report. 4.2.2.10. The respondent made counter-allegations about the claimant in response to her raising a grievance and appealing its outcome, namely a lack of professionalism and accusing the claimant of name-calling. 4.2.2.11. The claimant had responsibilities commensurate with her from her. 4.2.2.12. The claimant was provided with the explanation that PE&OS was ‘traditional’ in response to her raising issues of discrimination in a grievance outcome dated 4 October 2021. 4.2.2.13. The respondent failed to action the recommendations made in respect of the claimant by occupational health on 26 November 2021, namely that the risk assessment be revisited and senior management and a third party to be involved to progress the case. 4.2.2.14. The claimant was not afforded access to the tools or facilities she needed to carry out her work, namely specific software and RSA token, whilst other colleagues were afforded these tools. 4.2.2.15. To date, the respondent failed to action any of its own recommendations made as part of the grievance and grievance appeal procedure in relation to the claimant. Specifically – 4.2.2.15.1. The claimant has not been formally written to in relation to her role evaluation. 4.2.2.15.2. No mentoring or shadowing arrangements were made. 6 of 33 4.2.2.15.3. There was no review of working practices in the PE&OS service. 4.2.2.15.4. There was no procurement or implementation of recommended unconscious bias training. 4.2.2.15.5. No mediation plan was issued or carried out. 4.2.2.15.6. No team meetings were planned. 4.2.3. Was that less favourable treatment? 4.2.4. If so, was that because of the claimant’s race or race and sex? 4.2.5. Did the respondent’s treatment amount to a detriment? 4.3. Direct race and sex discrimination in employment (Equality Act 2010 section 39) 4.3.1. Did the respondent discriminate against the claimant in a way that offers the claimant access, or by not offering the claimant access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service, in that:- 4.3.1.1. The claimant was given to understand that her role was being regrade changes is far shorter timeframes. 4.3.1.2. The claimant was not given any clear information or outcome in relation to the above. 4.3.1.3. The community engagement role was offered to white individual rather than be incorporated into the claimant’s and her input on the issue was ignored. 4.3.1.4. The claimant was not given the opportunity to engage substantively in the recruitment process she was invited to sit on an interview panel in around in around April 2018 for a new position within the PE&OS department. 4.3.1.5. The respondent has failed to carry out Performance Review and Development Scheme (‘PRaDS’) for the claimant. 4.3.1.6. The respondent has failed to set SMART goals for the claimant. 4.3.1.7. The respondent has failed to make any formal and informal progression plan or other career development support for the claimant. 4.3.1.8. The claimant had responsibilities commensurate with her 7 of 33 from her. There was progressive diminution in landscape architectural work and increased administrative or other tasks from 2017 to date. 4.3.1.9. The claimant was given to understand a role was bring created that 4.3.1.10. The claimant was not given any clear information or outcome in relation to the above role. 4.3.1.11. The claimant was not afforded access to the tools or facilities she needed to carry out her work, namely specific software and an RSA token, while other colleagues were afforded these tools. 4.3.1.12. To date, the respondent failed to action any of its own recommendations to redress the issues including access to opportunities raised by the claimant as set out above. 4.4. Indirect discrimination (Equality Act 2010 s19) 4.4.1. Did the respondent have the following PCPs:- 4.4.1.1. Not carrying out PRaDS; and/or 4.4.1.2. Not setting SMART goals; and/or 4.4.1.3. Not making formal or informal development plans. 4.4.2. Did the respondent apply the PCP(s) to the claimant? 4.4.3. Did the respondent apply the PCP(s) to those with whom the claimant does not share race and/or sex? 4.4.4. Did the PCP(s) put people who share the claimant’s protected characteristics at a particular disadvantage when compared with persons with whom the claimant does not share protected characteristics, in that it makes career progression and access to opportunities within the respondent less merit-based and therefore more liable to reinforce and exacerbate existing racial and or combined racial and gender disparities in the respondent’s workforce, particularly at higher pay grades? 4.4.5. Did the PCP(s) put the claimant at that disadvantage? 4.4.6. Was the PCP a proportionate means of achieving a legitimate aim? The respondent does not identify any particular aim. 4.5. Victimisation (Equality Act 2010 section 27) 4.5.1. Did the claimant do a protected act, and/or did the respondent believe the claimant did a protected act, as follows: 8 of 33 4.5.1.1. The claimant issues of lack of cooperation in projects she leading on to senior management in around March 2018. 4.5.1.2. The claimant raised the issue of insufficient work being done by the respondent to ‘engage black or brown communities’, suggesting she would be well-placed to do this work, in April 2018. 4.5.1.3. The claimant raised race discrimination with her line manager, Lisa Lawrence in August 2018 following training on equality and diversity. 4.5.1.4. The claimant raised race discrimination with HR in August 2018 including a meeting with TK Karikalan, and in writing to TK Karikalan on 26 & 28 September 2018. 4.5.1.5. The claimant raised with TK Karikalan the detrimental impact waiting for her concerns about discrimination to be addressed was having on her health on 28 May 2019. 4.5.1.6. The claimant raised with Lisa Lawrence and Rob Goring the detrimental impact her role review was having on her health and wellbeing on 8 July 2019. 4.5.1.7. The claimant raised in meetings with the racial equality network on 15 July 2020 her experience of racism at the respondent. 4.5.1.8. The claimant raised ongoing issues with managers of the respondent via occupational health reports dated 26 November 2020 and 4 November 2021. 4.5.1.9. The claimant’s grievance dated 23 December 2020. 4.5.1.10. The claimant’s appeal of the grievance outcome. 4.5.2. Did the claimant do the following things:- 4.5.2.1. Repeatedly undermine and ignore the claimant as described in the discrimination allegations above. 4.5.2.2. Offer a community engagement role in April 2018 to a white individual rather than the claimant and ignoring her input on the issue. 4.5.2.3. The claimant was subjected to tokenistic treatment, namely she was asked to sit on an interview panel for a new position within the PR&OS department. She was given the date for the interview but no further information, despite requesting it. Other than sitting on the panel of the interview, the claimant was not invited to substantively participate in the recruitment process, contrary to the respondent’s recruitment and selection procedure. 4.5.2.4. The claimant was not paid an honorarium for the work done above and beyond her pay grade, while other employees of the respondent have been. 9 of 33 4.5.2.5. The claimant was given to understand that her role was being regrade changes in far shorter timeframes. 4.5.2.6. The claimant was given to understand a role was bring created that 4.5.2.7. Not providing the claimant with clear information in relation to her role re-evaluation and/or a new role. 4.5.2.8. The claimant was made to feel pushed out of her job by the respondent through implications that she should be applying for different jobs. 4.5.2.9. The respondent took 40.5 weeks to provide the claimant with an outcome to her grievance. This is far longer than a white comparator would have to wait. 4.5.2.10. The respondent made use of, or failed to prevent from being used, stereotypes associated with the claimant’s protected characteristics which would never have been used in relation to a white man in an equivalent role to the claimant in that – 4.5.2.10.1. The claimant was called a ‘qualified nuisance’ by a senior manager for raising issues in the workplace in or around March 2019. 4.5.2.10.2. The claimant as described as ‘silly’ for raising the issue of racism in August 2018 following training on Equality and Diversity in the PE&OS department by Lisa Lawrence. 4.5.2.10.3. The claimant was described as ‘authoritarian’ in a report prepared by Priscilla John appeal pack for her grievance appeal hearing, received by the claimant on 6 January 2022. 4.5.2.10.4. Issues with the claimant’s ‘professionalism’ were raised in the Priscilla John report, above. 4.5.2.10.5. The implication was made that the claimant was scary or aggressive through statements that management ‘felt uncomfortable attending her planned meetings’ and that ‘staff avoided her, and her line management became anxious when they need to have meetings’ in the Priscilla John report. 4.5.2.10.6. The implication was made that the claimant was bossy or otherwise acting above her station: ‘it is alleged that Mary spoke down to colleagues or ‘ordered’ staff to work with her’ (in the Priscilla John report). 10 of 33 4.5.2.10.7. The claimant was described as having ‘what could be considered a strong personality’ in the Priscilla John report. 4.5.2.11. The respondent made counter-allegations about the claimant in response to her raising a grievance and appealing its outcome, namely a lack of professionalism and accusing the claimant of name-calling. 4.5.2.12. The claimant had responsibilities commensurate with her from her. 4.5.2.13. Causing the claimant to suffer a dramatic deterioration in her mental health, quality of life and levels of stress and anxiety. 4.5.2.14. The claimant was not afforded access to the tools or facilities she needed to carry out her work, namely specific software and RSA token, whilst other colleagues were afforded these tools. 4.5.2.15. The claimant was provided with the explanation that PE&OS was ‘traditional’ in response to her raising issues of discrimination in a grievance outcome dated 4 October 2021. 4.5.2.16. The respondent failed to action the recommendations made in respect of the claimant by occupational health on 26 November 2021, namely that the risk assessment be revisited and senior management and a third party to be involved to progress the case. 4.5.2.17. Outlining a model disciplinary rather than grievance appeal procedure including use of the word ‘sanction’. 4.5.2.18. Not permitting REN to be present throughout grievance appeal proceedings. 4.5.2.19. Delay issuing claimant’s grievance appeal outcomes. 4.5.2.20. Failing, to date, to action any of its own recommendations made as part of the grievance and grievance appeal procedure. 4.5.3. By doing so, did it subject the claimant to detriment? 4.5.4. If so, was it because the claimant did a protected act? 4.5.5. Was it because the respondent believed the claimant had done, or might do, a protected act? 4.6. Remedy for discrimination or victimisation 4.6.1. Should the Tribunal make a recommendation? 4.6.2. What financial losses has the discrimination caused the claimant? 4.6.3. Has the claimant taken reasonable steps to mitigate her losses? 11 of 33 4.6.4. If not, for what period of loss should the claimant be compensated? 4.6.5. What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 4.6.6. Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

The hearing

[5]The claimant represented herself at the hearing and gave evidence to support her claim with reference to two witness statements. She had been intending to be represented by Counsel, but Counsel withdrew in the days leading up to the hearing. Counsel had made an application to postpone the hearing, but that application had been refused by Acting Regional Employment Judge Andrews in correspondence. The claimant renewed the application at the start of the hearing, citing the affect of the stress of self-representing had had on her health since the application had been refused. Apart from what she said in submissions, the claimant provided no medical evidence to support the application. The respondent opposed the application on the grounds that it had already been refused, and the respondent would be prejudiced by a postponement because it was ready for the hearing and there would be increased time and cost from postponement.

[6]We reminded ourselves of our ability to postpone a hearing less than seven days before the hearing was due to begin, which is restricted by Rule 30A Employment Tribunal Rules of Procedure 2013 (“Rules”). In particular, Rule 30A(2)(c) only gives the power to postpone where the other party objects where there are ‘exceptional circumstances’. Those circumstances may include ill health but, in our view, sufficient evidence would be required to set out the health issue and why that leads to exceptional circumstances justifying postponement. We also considered that the claimant’s application was made on identical grounds to the application refused the previous week, and so there was no obvious material change in circumstances which could allow us to reverse AREJ Andrews’ directions (applying Serco v Wells

UKEAT/330/15/RN

). We therefore refused the application.

[7]The respondent was represented by Mr Mills, of Counsel. The respondent intended to call four witnesses, but we only heard evidence from Mr Fanowapo before the response was struck out for the reasons given below. Documents in the hearing

[8]There was an agreed bundle which ran to 826 pages.

[9]In addition to the hearing documents, we were provided with copies of two Employment Tribunal judgments: 9.1. L Aboulossoud v(1) Royal Borough of Greenwich

(2) Dawn Squires (2302090/2016), where the respondent and the respondent’s Ms Squires (a key witness in this case) were found to have carried out religious discrimination and harassment due to religion following remarks made about Muslim people in the 12 of 33 presence of staff, in circumstances where Ms Squires denied the key facts found against her; and 9.2. M Cummings v Royal Borough of Greenwich (2301311/2020), where the respondent’s response had been struck out because an inadequate disclosure process led to disclosure of documents in the hearing which was unreasonable, and which had the ultimate effect of making a fair trial impossible.

[10]The claimant sought to introduce new documents into the hearing following refusal to postpone. Some of those documents were admitted because the respondent had seen them and offered no objection. Some were refused because they did not appear relevant to the issues in the case. These related principally to the claimant’s prior work experience and technical skills and qualifications. In our view, they did not relate to any of the allegations about what the respondent was said to have done to the claimant.

[11]The respondent also disclosed some relevant documents during the hearing, during cross examination and even between respondent witnesses. These were admitted because they were relevant, but gave rise to concerns with the respondent’s disclosure process. When a further issue with disclosure arose during the course of the hearing, the response was struck out. Strike out of the response Grounds to strike out

[12]Disclosure of documents is a crucial step in any litigation. Each party must disclose all documents in its possession which are relevant, so far as is proportionate, and there is a duty to undertake searches for documents which are relevant to the issues in the case, whether or not they are helpful or harmful to that side’s position. This is well understood, with the duties to the Court or Tribunal relating to disclosure being a key strand of any qualified solicitor or barrister’s professional obligations as an officer of the court. Disclosure is therefore a serious issue, with professional conduct implications where failures in respect of disclosure are deliberate or seriously negligent.

[13]The Employment Tribunal has the explicit power to order disclosure of documents courtesy of Rule 31 Employment Tribunal Rules of Procedure 2013. On 27 October 2022, the Tribunal sent the parties ‘suggested case management orders’ which framed expectations around disclosure. Those expectations, so far as relevant to what happened in this case, are – “By 22 June 2023 the claimant and respondent must send each other a list of all documents they have relevant to the issues identified by the tribunal at the case management preliminary hearing…. Documents include recordings, emails, text messages, social media and other electronic information. You must disclose all relevant documents you have in your possession or control. A relevant document is in your control f you could reasonably be expected to obtain a copy by asking somebody else for it…” 13 of 33

[14]The claimant’s claim was issued with detailed particulars, broken clearly down into the heads of claim which were argued at trial. Within those heads, clear facts are pleaded with close reference to particular incidents, conversations or e-mails. This is not the sort of claim where a variety of amendments or clarifications, or intervention by the Tribunal, has resulted in a claim being heard which is different in character or nature to that indicated in the initial pleadings. In our view, the respondent would have been aware of all of the issues in the case at the point of issue, and would have been by the time of the suggested case management orders. It should, therefore, have put its mind to securing all of the documents which were required for disclosure at least by October 2022, if not actually in May 2022 when the claim documents were served.

[15]The respondent’s response was submitted in July 2022. It gives a detailed comment and rebuttal of the claims, indicating that the issues in the claim were well understand (as might be expected given the claimant’s lengthy and detailed grievance and grievance appeal).

[16]The claim came before Employment Judge B Smith in case management, with the consequential order sent to the parties on 9 August 2023. The lengthy list of issues in the claim were finalised and sent to the parties in the same document. The parties were ordered to disclose all documents relevant to those issues by 29 September 2023, almost two months after the hearing, and some 17 months after the respondent first learned the detail of the claimant’s claims.

[17]The guidance about what should be disclosed states:- “Documents include recordings, emails, text messages, social media and other electronic information. You must list all relevant documents you have in your possession or control even if they do not support your case.”

[18]Although we accept that the Civil Procedure Rules cannot simply be read into the expectations of what should be done in the Employment Tribunal (per Langstaff J in Harris v Academies Enterprise Trust and others

UKEAT/97/14

), we do note that guidance about what should be done is found at CPR 31.7(1) and CPR 31.7(2). These is a requirement to make a ‘reasonable search’ for relevant documents, with relevant factors determining reasonableness including – 18.1. The number of documents; 18.2. The nature and complexity of the proceedings; 18.3. The ease and expense of retrieval of any particular document; and 18.4. The significance of any document likely to be located.

[19]In our view, there must be an expectation on the parties to conduct a reasonable search for documents when it comes to disclosure in the Employment Tribunal. If there was not, then how can the instructions relating to securing relevant documents within a party’s possession or control (including asking for it from someone) be carried out or enforced? We consider that a reasonable search along the lines of what is described by CPR 31.7 is necessary if a party is to comply with its disclosure obligations. 14 of 33

[20]The parties exchanged documents, prepared bundles, and brought witness statements to the hearing. We assumed that the disclosure process had been properly conducted. The documents the claimant wished to admit on the first morning were of tangential relevance to the issues, and were sought to be included in order to support a particular argument rather than being of central relevance to the case.

[21]The first respondent witness was Mr Fanawopo. He gave his evidence in general and non-specific terms, indicating at one point that he had only worked at the respondent for four weeks. His witness statement did not lay out any particular career history or knowledge of the claimant and her issues. We formed a clear impression that his evidence was being given in a hypothetical sense, giving answers based on his understanding of what would have happened or what he would expected to have happened at that time.

[22]The Panel asked Mr Fanawopo about how the respondent addressed the claimant’s complaints about race discrimination during her employment. He said that he would expect that human resources would investigate the complaints through discussion, and then the person could choose to follow a formal route which might lead to a grievance or to a disciplinary issue for the other party to the complaint. When he was asked what happened in the claimant’s case, he said that he did not know because the human resources person at the time no longer worked in the organisation. The implication from his answer, which we accepted, was that he had not been directly involved. If he had been, we considered, he would have been able to answer the question.

[23]In cross examination, Mr Fanawopo also referenced the use of the Intranet to book development courses, saying the claimant did have access to courses (contrary to her case), which she could choose to attend herself. He also answered questions about his understanding of the claimant’s grievance process, in terms of the delays in implementing recommendations. It was put to him that there is no evidence supporting the proposition that the claimant’s line management did not receive the grievance outcome for a long time after it had been released, which meant that it could not have implemented outcomes. Mr Fanawopo was also asked whether the respondent had a diversity policy, because there was not one in the bundle as would be expected.

[24]The day finished when Mr Fanawopo finished his evidence. The respondent disclosed further documents overnight. We were presented with a further bundle of 41 pages made up of seven separate documents. These were:- 24.1. An email from 4 July 2024 showing progress made against outstanding actions from occupational heath. 24.2. An e-mail chain involving Mr Goring and Ms Squires from May and June 2022 showing that management had not received the occupational health report (filling the evidential gap identified when Mr Fanawopo was answering questions). Mr Fanawopo was included on an email from June 2022. 24.3. An e-mail from Ms Squires to Ms Morrison dated 4 July 2024 (the respondent’s in-house solicitor) copying and pasting a part of the respondent’s 15 of 33 intranet which supported Mr Fanawopo’s argument that there was an ability for the claimant to see courses herself. 24.4. An e-mail originating on 20 May 2019 about acting up pay and ad honorarium pay (both elements of the claimant’s claims), with a covering e-mail from Ms Squires to Ms Morrison explaining that it covers the points raised by the claimant in paragraph 39 of her witness statement. 24.5. An HR bulletin from June 2019 outlining the PRaDS process to be implemented, which goes directly to the claimant’s claim about PRaDS. 24.6. The respondent’s equality policy.

[25]We were surprised by the disclosure of these items, which were plainly available to Ms Squires as she had been able to find them quickly, in an afternoon, in response to matters being put to Mr Fanawopo in his cross examination. We asked for an explanation. We were told that the disclosure process was not as thorough as would be ideal because the respondent’s e-mail search system was time consuming and clunky. We were told that the P&OS team was under-resourced, and that the witnesses themselves had been asked to conduct searches for relevant items to discover items for disclosure. We were told that the documents were found by Ms Squires because the cross examination of Mr Fanawopo highlighted the relevance of certain items to her. Once so highlighted, the documents had been found quite easily.

[26]We asked Mr Mills whether the witnesses had had any training in searching for disclosure, and were told that they would have been sent written instructions. We asked Mr Mills if there was any mechanism to check that a reasonable search had been carried out or that all found items had been sent to Ms Morrison, the solicitor acting for the respondent. We were told there was no such mechanism. We asked whether Ms Morrison had any active involvement in the search process, or whether she simply received documents and then decided on disclosure. We were told the situation was the latter.

[27]We asked Mr Mills about Mr Fanawopo being included on e-mails in June 2022, noting that he had now finished his evidence and was not present following finishing his evidence. We were told that Mr Fanawopo had previously worked at the respondent in human resources before leaving and then recently re-joining. Mr Mills could not explain why Mr Fanawopo had not made this clear, though he suggested that Mr Fanawopo perhaps could not remember the claimant or her case. He accepted that Mr Fanawopo may have remembered about it with the prompt of seeing this (and any other existing) e-mails where he was involved with the claim.

[28]Eventually, Mr Mills conceded that the respondent’s disclosure process had been inadequate and that, if these documents were admitted, the claimant and Mr Fanawopo would likely need to be recalled to give evidence in order to allow the Tribunal to have a full picture of the new relevant evidence.

[29]We noted that it was, by this time, day 4 of 7 in the claim. Going back to recall witnesses, even if we accepted the position as at that point, was likely to result in the hearing not being concluded in the listed trial window. We therefore proposed, of the Tribunal’s own motion, that the response could be struck out. We directed that there 16 of 33 should be a break for the parties to prepare any submissions they may have on the potential strike out, and then we heard those submissions. Relevant law on strike out

[30]Rule 37 Employment Tribunal Rules of Procedure 2013 gives the Tribunal the ability to strike out a claim or response. It says, relevantly:- “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –(a) That it is scandalous or vexatious or has no reasonable prospect of success;

(b) That the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) That the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations… at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in Rule 21 above.”

[31]“Scandalous” means that the proceedings are conducted in a way which amounts to an abuse of process; it should not be given its normal everyday meaning implying something which is shocking or of some sort of morally outrageous nature (Bennett v Southwark London Borough Council

[2002] ICR 881

[32]Where the Tribunal considers striking out a claim or response for unreasonable conduct, it must be satisfied that(1) there has been a persistent and deliberate disregard of required steps, or that the conduct has made a fair trial impossible, and

(2) striking out is the proportionate response (Blockbuster Entertainment Ltd v James

[2006] IRLR 630

CA). Striking out is unlikely to be a proportionate response unless there is a conclusion that a fair trial is no longer possible (De Keyser Ltd v Wilson

[2001] IRLR 324

EAT).

[33]When assessing whether a fair trial can take place, the ability to have a fair trial within the trial window is a key consideration because if there is no further hearing 17 of 33 listed and it is not proportionate to list one, a fair trial is not possible (Emuemukoro v Croma Vigilant (Scotland) Ltd v Anr EA-2020-000006-JOJ).

[34]When considering the proportionality test under any ground, it is important to have in mind the overriding objective and consider whether any steps short of striking out the claim or response could remedy the defect and make a fair trial possible (Laing O’Rourke Group Services Ltd and ors v Woolf and anr

EAT/0038/05

). If the defect can be remedied short of striking out, and it is proportionate to do so after considering eg Emuemokoro, then striking out would not be appropriate (applying cases such as De Keyser).

[35]We remind ourselves, always, that striking out of the claim or response is the most draconian of sanctions and the authorities rightly caution against taking that step unless it is truly necessary in the circumstances. Determination on strike out

[36]It is unusual, in a final hearing, to have other first instance decisions involving the respondent available. The parties had agreed for that material to be in front of us, and so we take account of it having heard submissions. Where, in determining whether anything done short of strike out would remedy the default, looking at what happened in the past and considering the similarity to what has happened now is a relevant step when thinking about what we consider to be likely in the future.

[37]In M Cummings v Royal Borough of Greenwich (2301311/2020), the hearing was postponed because the respondent disclosed new relevant documents during the course of evidence, which had not been disclosed initially but which were found following hearing questions and answers in cross examination of respondent witnesses. This case was heard prior to Emuemukoro. When the hearing resumed, the same issue arose again. The Tribunal heard from the then in-house solicitor managing the case and the disclosure, and decided that it could have no trust in the respondent’s disclosure process and so it could not be satisfied that any hearing could be fair. It did not consider it proportionate to postpone the hearing again, and so the response was struck out.

[38]Although we do not consider there is the same level of poor conduct from the respondent’s solicitor as the Tribunal appeared to find in Cummings, the underlying issue is identical – the disclosure search was inadequate, not all of the relevant documents were before the Tribunal or known to the claimant, and then documents were produced during the hearing in response to how the hearing was progressing, necessitating a re-hearing of evidence for there to be a chance of a fair hearing to take place which took account of available relevant evidence.

[39]In L Aboulossoud v(1) Royal Borough of Greenwich

(2) Dawn Squires (2302090/2016), the respondent through Ms Squires had been found to have said a comment to the effect that residents of Bromley would not want to be buried next to Muslims, and that Muslims come in and take over. Ms Squires admitted saying the first part about burial but denied saying the second part about Muslims taking over. The Tribunal did not accept her evidence, finding instead that the comments were made because that is what two other witnesses said that Ms Squires said in a fit of anger or a ‘rant’. Although not relating to disclosure, it is necessarily relevant to this 18 of 33 discrimination claim that Ms Squires had been found as a fact to have done something she denied, which was discriminatory and harassing. Ms Squires is the claimant’s head of department, and the person who had discovered the documents which were available to her prior to the start of the hearing.

[40]We considered that the documents disclosed were highly relevant to the issues in the case. In particular, the documents relating to training courses and the e-mail involving Mr Fanawopo undermined impressions made on us by the oral evidence heard over the preceding days of the hearing. We were concerned that these were only some of the available documents which should have been disclosed because the new searches had been targeted based on specific answers from Mr Fanawopo. We accepted the characterisation of the disclosure as ‘inadequate’ and considered, probably by accident than by design, that the documents now before us were overwhelmingly likely to be a cherry-picked handful of documents sitting within a pool of highly relevant material of unknown volume. We aired these concerns to the parties prior to hearing submissions to ensure the parties could address the reasons why we were considering striking out the response.

[41]In submissions, Mr Mills accepted that the disclosure process was insufficient from the respondent. He explained that this was because of capacity issues and problems with the systems. He accepted that all witnesses heard previously would likely need to be recalled to have points put to them again once the disclosure process was rerun. He confirmed that, given the time it would take to do a reasonable search to produce full disclosure, the current hearing window would be lost. He estimated the respondent would need something in the order of weeks rather than days or months to complete the step. He submitted that postponing the hearing to complete that search and effectively re-starting evidence in a resumed hearing would be a step less severe than strike out which would allow a fair hearing to proceed. He submitted the clear prejudice to the respondent of striking out the response meant that, following James, De Keyser and Emuemukoro, the response should not be struck out because it is not proportionate to do so.

[42]The claimant was unsure what she should submit, which reflects that she is not a lawyer and also that she did not make an application for the response to be struck out. In her view, though, the response should be struck out because of the inadequacy of the disclosure. She highlighted the impact upon her health of these proceedings, supported by her being off work sick for a significant period, and by her application to postpone the hearing in the lead up to its starting on the grounds of the stress that it caused her.

[43]We retired to consider our determination. It was clear to us that there could not be a fair trial in the remaining trial window. We did not have all of the relevant documents at the hearing. Those documents were not just available, but readily searchable in real time during the hearing. The disclosure process had been grossly inadequate. It is never going to be sufficient to ask witnesses to conduct a search in their own terms in their own time, and then not scrutinise or check the results of that limited search. By not completing an adequate search for disclosure, the respondent had, in our judgment, acted unreasonably and made a fair hearing in the trial window impossible. This gave grounds to strike out the claim, if we considered it proportionate to do so. 19 of 33

[44]We considered the proposition that the hearing should be postponed for new documents and re-listed in the future. This was a final hearing and no further hearings were to be listed. The parties had had significant notice of the hearing, and the respondent had had over two years since it knew of the nature and detail of the claimant’s claims. We accepted the claimant’s points about the impact upon her from the case being pro-longed. The claimant has been off work with mental health complaints which the documents indicate are caused by or contributed to by issues relating to this claim. We accept the impact of the claim on her if it continues beyond the current hearing. We considered that the claimant had been well able to conduct herself in the hearing, with the support of her husband sitting alongside her, but it is right to comment that the claimant did occasionally appear stressed, nervous and anxious to us over the course of the preceding days. We consider that impact is particularly relevant where the postponement, if ordered, was done so entirely because of a default of the respondent.

[45]In Emuemukoro, Mr Justice Choudhury considered that it would not be proportionate to re-list a final hearing where the respondent’s default meant that there could not be a fair trial in the window. The reason why it was not proportionate was, principally, because the claimants in that case had been made redundant and there was severe prejudice which would follow from their potential remedy being delayed until a resumed hearing. In our view, the impact of the claimant in this case is similar. The claimant was clear in her evidence, and in her claim, that her life feels on hold until these issues are resolved. These proceedings are a key part of that. We consider that requiring the claimant to go through disclosure, preparing supplementary witness statements, hearing preparation, and attending the hearing to give evidence again would all cause severe on-going prejudice to her. That delay, given the capacity in this region’s Tribunal, is likely to be at least a year (even if the Judge did all he could to press for an urgent hearing).

[46]We accept the obvious prejudice to the respondent in striking out the response. It would be deprived of defending the claim effectively. We therefore considered whether, in our view, the proposed less drastic steps would cure the default and let us have a fair hearing. We were not so satisfied. In our judgment, the circumstance was very similar to the first attempt at a hearing in Cummings. It was alarming to us for the same initial issue to arise in another race discrimination case being brought in Tribunal. We would have expected the respondent, after Cummings, to have put into place a robust process for searching for relevant documents when proceedings are issued against it. We therefore have little confidence that a second bite of this cherry would be adequately effective. In particular, we were not satisfied by the suggestion that the legal team would take a closer hold of disclosure. That team had overseen both attempts in Cummings, although ostensibly with different people involved, and had allowed this situation to arise through a plainly inadequately designed process.

[47]Further, it was clear to us that (as the Tribunal found in Cummings) the witnesses in the hearing must have known that there was relevant disclosure which had not been provided in the case. If the respondent’s ‘brief’ about disclosure was even partially sufficient, then they must have realised that this was not a fair or proper way to conduct the litigation. We did not consider that we could have trust and faith in the respondent evidence at a re-convened hearing, which is clearly a significant to bar in our view that we could hold a fair hearing if the hearing is postponed. 20 of 33

[48]When these conclusions about whether there could be a fair hearing ‘next time’ are measured against the respondent which we conclude would be caused to the claimant if the hearing is postponed, it is clear to us that it would not be sufficient or proportionate to postpone the hearing for the litigation steps to be repeated. In our judgment, there is no proportionate response less drastic than striking out the respondent. Striking out the response is, in our judgment, the only proportionate response to this situation. We therefore struck out the response. Relevant law Direct discrimination

Relevant law

[49]Section 13(1) Equality Act 2010 provides:- “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

[50]This means that the claimant would have suffered from direct discrimination if we find that he was treated less favourably than someone who was not a man, Pakistani, or Muslim, because of one of those characteristics.

[51]The claimant must establish that he was objectively treated in a ‘less favourable’ way. It is not sufficient for the treatment to simply be ‘different’ (Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

HL). The person(s) with whom the comparison is made must have “no material difference in circumstances relating to each case” to the person bringing the claim (section 23(1) Equality Act 2010). The comparator should, other than in respect of the protected characteristic, “be a comparator in the same position in all material respects as the victim” (Shannon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL). There is no requirement for a comparator to be identical, but the greater the differences, the less likely it might be that the difference in treatment was because of discrimination and so more is likely to be required to shift the burden of proof (Virgin Active Ltd v Hughes

[2023] EAT 130

[52]If there is no such comparator in reality, then the Tribunal should define and consider how a hypothetical comparator would have been treated if in the same position as the claimant save for the fact that they would not have the protected characteristic relied upon (Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting

[2002] ICR 646

, CA).

[53]The phrase ‘because of’ is a key element of a direct discrimination claim. In Gould v St John’s Downshire Hill

[2021] ICR 1

EAT, Mr Justice Linden said, in respect of determining ‘because of’:- “It has therefore been coined the ‘reason why’ question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of. In need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.” 21 of 33

[54]Under section 136(2) Equality Act 2010, the claimant needs to show facts, found on the balance of probabilities, which could lead the Tribunal to properly conclude that the discrimination has occurred before any other explanation is taken into account. If the claimant succeeds with this, then it is for the respondent to show that the contravention has not occurred (section 136(3) Equality Act 2010). The Tribunal must first consider whether the burden does shift to the respondent. The claimant must show more than simply there is a protected characteristic and a difference in treatment (Madarassy v Nomura International Plc

[2007] IRLR 246

). The operative point is whether the Tribunal could conclude there had actually been discrimination, not simply that there might have been (Hammonds LLP v Mwitta [2010] 0026/10).

[55]S136 clearly sets out a two stage test, but the Tribunal is cautioned against applying that test in a way which is too mechanistic. This is important to ensure that discrimination is not incorrectly imputed into circumstances where the case is simply about unreasonable treatment for other reasons, or unfortunate circumstances (Chief Constable of Kent Constabulary v Bowler

[2016] EAT 0214/16

). There is a manifest difference between unreasonable treatment of a claimant, and unlawful discrimination (Bahl v The Law Society

[2004] EWCA Civ 1070

[56]Once the burden has shifted, if it does, the respondent must show that the treatment was ‘in no sense whatsoever’ due to the protected characteristic (Igen Ltd v Wong

[2005] IRLR 258

). In weighing up whether or not there has been discrimination, the Tribunal should consider all of the evidence from all sides to form an overall picture. Causation, or the ‘why’ the conduct was committed, is a subjective conclusion of law rather than objective conclusion of fact: what is the reason for the conduct and is that reason discriminatory (Chief Constable of West Yorkshire Police v Kahn

[2001] UKHL 48

). It is almost always the case that the Tribunal needs to discover what was in the mind of the alleged discriminator (The Law Society v Bahl

[2003] IRLR 640

). Indirect discrimination

[57]Section 19 Equality Act 2010 says, relevantly – “(1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a PCP which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of (1), a PCP is discriminatory in relation to a protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

[58]It is for the claimant to show that section 19(2)(a-c) are made out in this case, before the Tribunal can concern itself with the respondent’s possible justification under (d) (if any) (Dziedziak v Future Electronics Limited

UKEAT/270/11/ZT

). Unless there is clear documentary evidence showing s19(2)(a-c), the claimant must give positive evidence about those matters (which the Tribunal accepts or prefers) before the respondent is required to offer justification. Discrimination in employment

[59]Section 39 Equality Act 2010 says –(1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.

(2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.

(3) An employer (A) must not victimise a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.

[60]Section 136 Equality Act 2010 applies to this complaint, and so the burden of proof principles which apply to ‘direct discrimination’ above also apply to the complaint. Victimisation

[61]Section 27 Equality Act 2010 says, relevantly – 23 of 33 “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.”

[62]A detriment will be considered so where a reasonable employee would in all the same circumstances consider that they had suffered a detriment (Warburton v Chief Constable of Northamptonshire Police

[2022] EAT 42

). A detriment will be held to have been done because of the protected act where the Tribunal considers the detriment to have been done materially (ie. more than trivially) because of the protected act (Fecitt v NHS Manchester

[2012] ICR 372

). Time limits

[63]Section 123(1) Equality Act 2010 provides that claims for discrimination (of which failure reasonable adjustments is one) and victimisation should be brought within three months of the act being complained of. Time can be extended to take account of a period in ACAS early conciliation where, if ACAS notification occurred within three months, the days spent in early conciliation will ‘stop the clock’. Events occurring more than three months before the claim is issued may be brought as claims in time if they form part of a course of related discriminatory conduct, the last one of which is in time when the claim is brought.

[64]If, despite all of the above, a claim is still brought outside of the three month time limit, the Tribunal can extend time if it considers that it is just and equitable to do so. This is a broad discretion which requires the Tribunal to balance all of the circumstances of the case including the length and reason for the delay, the prospects of the claim brought out of time, and any other factor which appears relevant. The Tribunal should weigh those factors to determine the prejudice to each party in extending or not extending time, and then make a decision (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

). Time will almost always not be extended where time limits are being considered at a final hearing and the Tribunal has determined that those late claims are not well founded and would be dismissed. In those cases, it would be pointless to extend time anyway. Remedy 24 of 33 Compensation for losses

[65]The Tribunal may award compensation for past losses which have been suffered as a result of any discrimination found. Where those losses are caused by illness (for example, where someone is off work due to the resultant illness and so they suffer a reduction in pay), the Tribunal must find that causation (Malcolm v Dundee City Council

UKEATS/50/13/SM

). It should also consider whether any apportionment is necessary to take account of the possibility that the illness was caused by or contributed to by other causes (Thaine v London School of Economics

[2010] ICR 1422

[66]The Tribunal may also award remedy for future losses. This involves, as Lord Justice Underhill put it in Griffin v Plymouth Hospital NHS Trust

[2015] ICR 347

CA:- “to a considerable extent an exercise in speculation, based on assessment of the claimant herself – that is, her attitude and abilities…”

[67]Such a calculation could result in career long compensation for future losses, where the Tribunal is satisfied that the damage caused by the discrimination has rendered the claimant unable to work again (or work to the same grade/salary) for the rest of their career, even taking account of usual compensation principles such as the duty to mitigate loss or the likely length of that career (Secretary of State for Justice v Plaistow [2021] 7 WLUK 37). Naturally, the circumstances where a career length award of future losses are awarded are very rare unless that period of time is relatively short because of the proximity of retirement to a claimant. Injury to feelings

[68]The award for injury to feelings is to compensate the claimant for the injury they have suffered and, when deciding an award, we should focus on the injury rather than the gravity of the act committed by the respondent (Komeng v Creative Support Ltd

UKEAT/0275/19/JOJ

). The general principles when considering the remedy are drawn from Prison Service v Johnson

[1997] IRLR 162

: 68.1. Awards are compensatory and should be just to both parties to compensate fully without punishing the perpetrator or allowing feelings of indignation affect the decision; 68.2. Awards should not be too low to ensure that the cause of the claim is respected, but not too high so that the claimant enjoys untaxed riches; 68.3. Awards should bear some broad general similarity to the whole range available in personal injury cases; 68.4. Tribunals should take in account the value of everyday life by reference to purchasing power or by reference to earnings; and 25 of 33 68.5. Tribunals should keep in mind the need for public respect for the level of awards made.

[69]Vento v Chief Constable of West Yorkshire Police (No2)

[2003] IRLR 102

found that compensation can be awarded for subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[70]Vento then set the possible ranges of awards which should be paid and separated them into three ‘bands’: lower; middle; and upper. These ranges have been amended in subsequent cases culminating in De Souza v Vinci Construction (UK) Ltd

[2017] EWCA Civ 879

. Following this, the Presidents of the Employment Tribunals of England and Wales, and Scotland, issued Presidential Guidance which, now in its 15th Edition, and that guidance sets the Vento bands for the period of this claim as follows: 70.1. Lower Band, for less serious cases which are an isolated or one-off occurrence causing the injury to feelings: £990 to £9,900; 70.2. Middle Band, for serious cases which do not merit the Highest Band: £9,900 to £29,600; and 70.3. Upper Band, for the most serious cases involving a prolonged course of discrimination or harassment on the grounds of sex or race: £29,600 to £49,300.

[71]Whilst it is possible to award more than £49,300, this should be reserved only for the most exceptional cases.

[72]For an award to be made, we must be satisfied that the injury to feelings has occurred and that it has occurred because of the action or incident identified. Where the link between those two is clear, it might be sufficient for the claimant to simply say that they were upset by the action (Murray v Powertech (Scotland) Limited

[1992] IRLR 257

; Ministry of Defence v Cannock

[1994] ICR 918

). Aggravated damages

[73]The Tribunal has the ability to award aggravated damages as a result of the general principles applicable to the award of other torts where the respondent behaves in a way which aggravates an injury to the feelings of the claimant (also set out in Johnson). This is a separate award to injury to feelings, and so the aggravated damages awarded must not be for the same injury or conduct for which an injury to feelings is made to avoid a double recovery for the same issue.

[74]Summarising the approach to assessing aggravated damages, Mr Justice Langstaff said (in HM Land Registry v McGlue EAT 435/11) – “a tribunal in examining whether there is a case for aggravated damages has to look first at whether objectively viewed the conduct is capable of being aggravating, that is aggravating the sense of injustice which the individual feels and injuring their feelings still further.” 26 of 33

[75]It is for the claimant to establish that there is conduct which has caused circumstances where aggravated damages may be awarded. Conclusions on liability The claims which must fail

[76]We had the benefit of seeing and hearing the claimant’s tested evidence by the time the response was struck out. From the point of the strike out, the respondent was treated as though Rule 21 applied. In other words, its response, including any challenge to the claimant’s facts and any reasoning or justification for the treatment done, were disregarded and we considered the claimant’s case against her evidence alone when determining her claims.

[77]Rule 21 is not a default judgment of the kind which is found in the civil courts. The claimant does not automatically win all of her claims as a result of the respondent’s default. The claimant is still required to prove the facts relied upon for her claims on the balance of probabilities. Where she bears the burden of establishing that treatment happened and that that treatment could have occurred because of discrimination relating to a protected characteristic, she needed to give coherent evidence about those issues.

[78]Additionally, the respondent had been permitted to challenge the claimant’s evidence because its default leading to strike out had not emerged. We could not ignore deficiencies or contradictions with the claimant’s evidence which were highlighted by respondent Counsel during that cross examination. Those points were central to the question of whether or not the claimant met the evidential burden placed upon her.

[79]In our judgment, the claimant gave no evidence which could lead us to conclude that she may have been the victim of discrimination because of her sex. The claimant’s witness statement was focused principally on race discrimination. It does not mention sex discrimination at all. The claimant only mentions being a woman twice in her witness statement, once where her protected characteristic is set out, and once in a sweeping concluding comment that: “seeing Black Lives Matter painted in the Town Square makes me feel sick, because as a Black Woman in The Royal Borough of Greenwich in 2024, I know that doesn’t matter to this organisation.” In our view, this is more about race than sex but in any case there is no reference to specific facts which we might find were said to have been caused by sex.

[80]Additionally, we note that some of the key matters complained about, such as an incident at Fairy Park, involved the claimant’s perception that she was treated less favourably than someone upon whom advantage was conferred. The Fairy Park incident involved this happening with a colleague called Clare Lambert, a woman. There is no less favourable treatment on the grounds of sex where the comparator in the incident is of the same sex.

[81]Where the claimant has offered no evidence in chief which could have set out facts from which we could properly conclude there was discrimination, we clearly cannot find those facts from her evidence. Where, as here, there is nothing else plain from 27 of 33 the wider evidence which would allow us to find such facts, the claims must fail. All of the claims based around the claimant being a woman must fail, and they do.

[82]A further problem with the claimant’s evidence arises in respect of the indirect discrimination claims, and this affects both the indirect sex and the indirect race claims. Even if we accept that the alleged PCPs were in existence and were applied to the claimant, as she alleged in her evidence, there is no evidence before us that those alleged PCPs were applied to anyone else. The claimant does not say that ceasing those review and career enhancement steps indicated by the PCPs was applied to anyone else. On the contrary, the claimant complains that her PRaDS was paused or not carried out. She complains that she did not have any formal or informal development goals, but asserts that this is discriminatory because other colleagues did have those steps undertaken. In our judgment, the claims as pleaded do not work as indirect discrimination claims because they identify issues which the claimant says were done to her negatively because of her protected characteristics.

[83]For indirect discrimination claims, the claimant is also required to show that any such application of the PCPs to those sharing the claimant’s characteristics served to put the whole group at a disadvantage. The claimant talks only about herself as an individual in the particular circumstance she found herself in, given her own career history and perceived skillset. There is no evidence from that which we can extrapolate and apply to all of those sharing the claimant’s race or sex. For this reason, also, the indirect discrimination claims must fail, and they do. Direct race discrimination claim

[84]To succeed with the direct race discrimination claims, for both the section 13 and the section 39 claims, the claimant needs to prove facts from which the Tribunal could properly conclude that there was less favourable treatment because of race. If she successfully does this, then the respondent is unlikely to discharge its obligation under the shifted burden of proof because the response is struck out. It is as if Rule 21 has taken effect. In other words, there is no defence.

[85]We found the claimant to be a persuasive witness. She gave her evidence with care and thought, and at no point were we given any reason to question that the evidence she gave was honest and truthful. We accept her evidence as being given in that vein, and rarely did we consider that her evidence was contradicted by the contemporaneous documentation we were shown in the hearing. In the usual way, where we are satisfied that those documents demonstrate that the claimant is mistaken or has misconstrued events, we have preferred the evidence demonstrated by those documents.

[86]In respect of direct race discrimination, the claimant did provide evidence in chief about why, in her view, the less favourable treatment outlined at paragraph 4.2.2 above was done because of her race. We also accept, incidentally, the claimant’s evidence in respect of each item of alleged less favourable treatment. There is no contradictory material before us which we consider displaces a conclusion, on the balance of probabilities, that the claimant is being truthful in her account of the less favourable treatment occurring. We find those instances of less favourable treatment as facts. 28 of 33

[87]The next question is the first limb of section 136. In determined whether that less favourable treatment is because of race, we must consider whether the claimant has established facts from which we could conclude that discrimination caused those things before we consider any other explanation. The claimant relies on a hypothetical comparator for all issues save for the community engagement role issue.

[88]We find four important facts which are instructive in how to deal with this claim:- 88.1. We find that the claimant’s management was not supportive of her efforts to raise awareness of issues surrounding Black Lives Matter following the death of George Floyd; 88.2. We find that the claimant’s concerns that she was the victim of race discrimination were minimised by Lisa Lawrence, who called them ‘silly’; 88.3. We find that the claimant was given a menial role in the Fairy Park site whilst the playground design role which was more suited to her skills was given to a white colleague; 88.4. We find that the claimant was not given a meaningful role when called upon to interview a candidate and accept her characterisation in evidence of her treatment as being ‘tokenistic’ because the respondent wished to promote the colour of her skin to those attending interview; 88.5. We find the claimant was referred to in terms which are often used to stereotype characteristics perceived from those of her race, as are outlined at paragraph 4.2.2.9; 88.6. The respondent and Ms Squires have been previously found liable for discrimination and harassment for comments about Muslims in the local area, which were made in front of a Muslim colleague and other witnesses, and we consider that the comments found to have been made by Ms Squires by an Employment Tribunal are plainly racially as well as religiously prejudicial; and 88.7. Ms Squires was the claimant’s Head of Department whom had control over some of the decisions which we have found to be less favourable treatment.

[89]Laid against that background, and in particular noting the pervasive elements of(1) Ms Squires,

(2) the tokenistic treatment,

(3) the minimising of race by the claimant’s line manager, and

(4) the widespread use of potentially racially stereotypical language in respect of the claimant, we consider that it is possible to conclude that the less favourable treatment was done to the claimant because of her race. The claimant has satisfied the burden upon her.

[90]The response is struck out and is treated as if not presented. The respondent cannot therefore present any explanation which could lead us to conclude that discrimination was not the reason for the treatment. This claim succeeds. Race discrimination in employment 29 of 33

[91]The claimant makes allegations at paragraph 4.3.1 which she says contravene section 39. We find all but two of those allegations as facts as, again, we accept her evidence as fact on the balance of probabilities unless we consider there is evidence clearly showing the contrary. We find the following allegation not found for the reasons given:- 91.1. Paragraph 4.3.1.7, in relation to the respondent failing to make any formal or informal progression plan. In cross examination, the claimant admitted that she had had meetings which were intending to discuss her desire for progression and did discuss role evaluation. We note page 608, where the grievance appeal outcome notes Mr Goring supported the claimant in her quest for role reevaluation, including being involved with writing job descriptions. We also note Lisa Lawrence’s desire for the claimant to have development opportunity (page 392). We understand that the claimant is frustrated with the lack of progress on these points, but the steps taken do, in our judgment, constitute a plan for the claimant to progress.

[92]In our judgment, all of the allegations found relate to opportunities for career progression and development where matters were not progressed or where opportunities were denied the claimant. We are satisfied that the claimant has met her burden of showing these were done because of race, for all the same reasons as given in respect of the direct race discrimination claim above. This claim succeeds. Victimisation

[93]The claimant has pleaded ten protected acts. To qualify as protected acts, they must fulfil the criteria stipulated by section 27 (outlined above). We accept the claimant’s evidence that she did all of the things she pleaded as being protected acts, and find that the claimant did raise the matters outlined in the list of issues in this section. We have seen the grievance and grievance appeal.

[94]However, in our judgment, the pleaded protected acts found at paragraphs 4.5.1.1, 4.5.1.2, 4.5.1.6 and 4.5.1.8 do not fulfil the required definition. We are not satisfied that the matters raised are sufficiently closely aligned to the wording of the Equality Act 2010 to be caught by the definition found at s27(1)(e). Those matters are expressed as general complaints and grievances about the work environment. They do not appear on paper to be matters relating to section 27(1), and the claimant’s evidence does not assist in making that connection either.

[95]In our judgment, the other pleaded acts do fulfil the definition because they are complaints about matters relating to the claimant’s protected characteristics or, with the grievance and grievance appeal lodged, they contain matters relating to the claimant’s protected characteristic. This does meet the definition at s27(1)(e).

[96]We accept the claimant’s evidence about the pleaded detriments and find that all of those facts occurred between the parties. However, 4.5.4.2 cannot be found as a detriment because it pre-dates all of the protected acts we have found. Although we have accepted that the community engagement role was offered to another individual and not the claimant, it cannot have been done due to the material influence of a protected act which had not yet happened. We have no such bar to 30 of 33 finding the other claimed detriments were done because of the protected acts. That is the claimant’s allegation and she supported that in her evidence when asked. There is no response, and so these elements of the claim succeed. Time limits

[97]In our judgment, considering the matters we have found to be race discrimination and victimisation, and the chronology of those matters, the claimant’s successful complaints form a continuing course of conduct which satisfies one of the exceptions which would bring all of those allegations from an ostensibly out of time position to an in-time position.

[98]In any event, we consider that it is just and equitable in the circumstances to extend time to consider the complaints. We are satisfied that the claimant has been trying to deal with these matters internally through a grievance process which has been delayed and taken over a year to conclude. Even at the final hearing, we were told and we accept that the recommendations from the grievance process have not been implemented. We do not consider it would be just and equitable to refuse to consider complaints which the claimant thought were being dealt with internally. Even if the claims had been brought promptly, we are mindful that the number of subsequent allegations being added (and possible stay to deal with the grievance) would likely have caused a delay to the hearing of the case to somewhere around this point of time anyway.

[99]We also consider, after the response was struck out, that the claims must be considered to have substantial merits such that it would also be just and equitable to extend time. This is not the sort of case where the claims would have been dismissed if in time, and so time is not extended. We keep in mind the general principle that time limits should be adhered to. In this case, we consider there are good reasons for making an exception in these particular circumstances. We therefore also extend time to consider the claims because it is just and equitable to do so. Conclusions on

Remedy

[100]The respondent was allowed to take part in the remedy portion of the hearing in full. Mr Mills produced a helpful note in respect of the respondent’s position on remedy. The claimant gave evidence about the remedy she considered appropriate given the claims she had won. Past losses

[101]A key area of divergence between the parties was as a result of the losses incurred as a result of the discrimination found, particularly in respect of the claimed salary shortfall against the discriminatory decision not to re-evaluate the claimant’s role in 2018. The claimant considered that her role would have been re-graded from ‘SO1’ grade to a PO5 grade. This was based on her own assessment of her skills and abilities as against the job grading criteria. We are satisfied that the claimant was arguing that she should leap some seven grades on the pay scale, which would have put her from being on the most junior grade within her department to the most senior grade. 31 of 33

[102]We do understand the claimant’s perspective. Prior to re-locating to the UK, the claimant had held a very senior role in a city government, where she had managed a great number of people and services. She took a very junior role at the respondent because, she says, she needed a role and she had understood there would be opportunities to progress. However, the respondent is a local authority with all of the funding constraints anybody familiar with the sector will be aware of. We are satisfied from the evidence that the scope for progression in terms of a significantly inflated grade was limited.

[103]The respondent submits that there was scope for a PO2 grade to have been created in June 2018 and that, if the claimant had taken such a role, she would have progressed up the pay scale on the usual spinal points. The respondent accepts that not taking such a step would be a loss due to the discrimination we found. However, the respondent argues that there would have been the possibility that other candidates would have applied for the job the claimant’s role was re-evaluated to, and so we should apply a 30% reduction to any past losses found to account for the chance that she would not have been successful in obtaining the role.

[104]In our judgment, it is most likely that a PO2 grade job would have been created with the claimant in mind. This accords with the evidence available to us from the respondent, as well as the contemporaneous discussions shown in the bundle. The job created needed to fit with the respondent’s general workforce practices, and it seems to us to be very unlikely that a PO5 grade post would have been created. We do not agree with the respondent that it would be appropriate to apply a reduction to reflect a chance the claimant would not have secured the role. It is, we consider, overwhelmingly unlikely that the claimant’s job would be re-graded at her request and then she is made redundant because someone else took the new role. We do not consider any progression beyond PO2 because we have no evidence that would have happened, or indeed could have happened.

[105]We therefore conclude that past losses should reflect the amount the claimant would have been paid had she moved on to a PO2 grade in Jun 2018. That amount is £34,363.65 before tax and deductions are applied.

[106]We do not apply interest to this past loss amount because we do not consider it appropriate to do so. Future losses

[107]The claimant has been off work sick, we consider, as a result of her experiences of working at the respondent. She asked us to award future losses to reflect that she continues to work on a lower grade than she would have done if there had been no discrimination. She suggested something in the region of 18 months’ award would allow her to continue her recovery (she is now working again), and also secure development opportunities related to work to help her secure a more senior and better paying role. We consider that it is appropriate to make that 18 month future loss award to allow the claimant the protection from the effects of the discrimination whilst she secures what she considers she needs to recover to a senior role. That amount is £9,409.50 before tax and deductions. Injury to feelings 32 of 33

[108]The parties consider that the injury to feelings in this case is likely to fall in the middle Vento band. The respondent considers that £17,500 is an appropriate figure, having regard to the length of time of the matters complained of and the mental health impact indicated by the claimant. The claimant submits that figure is not sufficient.

[109]We accept the claimant’s evidence that the discrimination faced has caused significant personal effect, leading her to be unwell, think less of herself, and be off work sick for a considerable period. We agree that this is a case where injury to feelings should fall on the middle band. We have found a series of discriminatory acts and acts of victimisation, over a period of years, which have led to a significant absence from work. We do not consider that this is one of those extremely exceptional cases which would fall into the upper band.

[110]In our judgment, considering what we have found and the impact on the claimant, we consider that an injury to feelings award of £20,000 is the most appropriate award. That is what we award. Aggravated damages

[111]In our judgment, there simply is not the sort of conduct claimed which would give rise to aggravated damages. The respondent has discriminated against the claimant, and that finding has been drawn for the reasons outlined in this judgment. Frankly, we acknowledge that those reasons are informed significantly by the response being struck out. We do not consider it appropriate to imply or construe facts from the shadow of a struck out response to justify awarding aggravated damages, and so we do not. The claimant has already been adequately compensated, in our view, for the matters she has faced. Recommendation

[112]The claimant requested a recommendation be made in respect of the respondent not being able to discriminate again. We decline to make such a recommendation. Recommendations made, for which the respondent may be held to account and which are publicly published, should be based on the circumstances of the case following full findings of fact. In this case, we struck out the response for good reasons. However, one upshot of that is that we did not hear the respondent’s evidence about all of the points in dispute. We therefore do not consider we can make a recommendation which would properly reflect what has happened between these parties, and which may offer appropriate comfort or protection in the future.