Mr A Sutherland v Commissioners for HM Revenue and Customs: 2301362/2022 and 2302338/2022
EMPLOYMENT TRIBUNALS
Case No 2301362/2022, 2302338/2022, 6011224/2024
Between
Mr A SutherlandClaimantCommissioners for His Majesty’s Revenue and CustomsRespondent
Before
Employment Judge RamsdenDate 6 December 2024
JUDGMENT
[1]The Claimant has worked for the Respondent for nearly 40 years, since September 1988, latterly as a Senior Officer Casework, at the Respondent’s Croydon Regional Centre. The Claimant remains in the Respondent’s employment.[2]This hearing concerned two claims brought by the Claimant with case numbers 2301362/2022 (the First Claim) and 2302338/2022 (the Second Claim), which the Tribunal determined on 24 October 2022 should be heard together.[3]The Claimant has presented a third claim on 10 September 2024, with case number 6011224/2024 (the Third Claim), which has not yet been the subject of case management by the Tribunal, and was not listed to be determined alongside the First Claim and the Second Claim. 1 of 118 The claims and issues[4]While the Claimant has worked for the Respondent for some considerable period of time, the events which are the subject of the claims began in September 2020, and have given rise to complaints of: a) Direct discrimination because of race, pursuant to section 13 of the Equality Act 2010 (the 2010 Act); b) Indirect discrimination in relation to the Claimant’s race, as described in section 19 of the 2010 Act; c) Harassment related to race, governed by section 26 of the 2010 Act; d) Victimisation, contrary to section 27 of the 2010 Act; and e) Detriment on the ground that the Claimant had made a protected disclosure, pursuant to section 47B of the Employment Rights Act 1996 (the 1996 Act).[5]This matter has been the subject of two Preliminary Hearings for case management: a) The first on 24 October 2022 before EJ Siddall. EJ Siddall determined that the First Claim and the Second Claim would be heard together, and upon discussion of the complaints and issues, granted permission for the Respondent to amend its Grounds of Resistance, which it did on 5 December 2022. b) The second took place on 21 February 2024, before EJ McCluskey, who considered and determined an application from the Claimant to amend his claims, and worked with the parties to determine the list of complaints and issues.[6]The Claimant withdrew his complaint of discrimination on the ground of religion or belief, and that was dismissed by EJ McCluskey on 21 February 2024.[7]The Claimant wrote to the Tribunal on 18 March 2024, saying that he considered that there were some errors in EJ McCluskey’s list of issues from 21 February 2024, in light of his understanding of the discussion that took place at that hearing. The Claimant provided a tracked changes version of that list of issues, showing the changes he thought were necessary and accorded with the discussion that took place.[8]On 22 March 2024 the Respondent replied to the Claimant’s email, disagreeing that the Claimant’s mark-up reflected the discussion at the Preliminary Hearing, and saying that EJ McCluskey’s version was correct. The Respondent considered some of the Claimant’s changes unnecessary, and that others sought to expand the scope of the Claimant’s complaints, introducing new matters for which the Respondent had not anticipated needing to call witness evidence to 2 of 118 address in this hearing. There was one inconsequential change sought by the Claimant that the Respondent did not object to.[9]The Tribunal wrote to the parties on 30 May 2024, setting out that EJ McCluskey had read the parties’ correspondence on the list of issues in her Orders of 21 February 2024, and that she had decided not to vary, amend or revoke any part of those orders or case summary or the list of issues recorded for the final hearing, “because EJ McCluskey is satisfied that they are an accurate reflection of what was discussed and agreed at the case management hearing. If the claimant considers that the list of issues is not agreed he can file his own list of issues for the final hearing. It will then be for the Tribunal at the final hearing to decide which list of issues to adopt, The Tribunal at the final hearing may also impose its own list of issues if it sees fit to do so”.[10]The parties, at a further Preliminary Hearing (a Dispute Resolution Appointment) agreed some minor amendments to the list of issues discussed with EJ McCluskey, and that amended list of issues was sent to the Tribunal on 23 October 2024. That amended list of issues is appended to this judgment.[11]The complaints are numerous (31), and relate to a fairly lengthy fact pattern, and so the complaints are identified in the Facts section below. The hearing[12]The Claimant presented his own case at the hearing, and the Respondent was represented by Ms M Polimac and Ms T Blair, both Counsel. Panel composition[13]The Regional Employment Judge of London South, REJ Khalil, wrote to the parties on 22 November 2024 to inform them that, in accordance with paragraph 28 of the Presidential Guidance on Panel Composition, this matter would be heard by a Judge sitting alone because of resourcing difficulties in finding nonlegal members to sit on this case. REJ Khalil regarded this as a material change in circumstances to the position outlined in the Case Management Orders of each of(a) EJ Siddall on 24 October 2022, and(b) EJ McCluskey on 21 February 2024, which provided that the case would be heard by an Employment Judge and two non-legal members. The Third Claim[14]As noted above, the Claimant presented the Third Claim on 10 September 2024, some two and a half months before the commencement of this hearing. The Respondent filed its Response to that Third Claim on 16 October 2024 – just over a month before this hearing started.[15]The Respondent’s Response to the Third Claim has raised arguments of abuse of process, saying that the Third Claim should be struck-out. 3 of 118[16]The Claimant says that the Third Claim relates to the same matters as the First Claim and the Second Claim, and he asked the Tribunal to envelop that Third Claim into his hearing.[17]The Respondent objected to that course of action, saying that the Third Claim relates to grievances the Claimant raised in relation to the conclusion of a number of the matters that are raised in the First Claim and the Second Claim, and that the Respondent would wish to call six further witnesses who are not due to give evidence to the Tribunal in connection with the First Claim and the Second Claim in order to effectively resist that Third Claim.[18]The Tribunal determined that: a) The Third Claim, while related to matters that are the subject of First Claim and the Second Claim, is actually about the Respondent’s handling of the Claimant’s complaints that were not cited in the Claim Forms for either the First Claim or the Second Claim; b) The Third Claim is separable from the First Claim and the Second Claim; and c) The Respondent would be unfairly prejudiced should this hearing proceed to determine all three claims, given there had been no forewarning of that by the Tribunal, the Respondent had not prepared witness evidence relevant to the Third Claim, and the hearing window could not be extended to accommodate any additional evidence.[19]The Tribunal therefore declined the Claimant’s application to have the Third Claim heard alongside the First Claim and the Second Claim in this hearing. The next hearing window sufficient for all three claims to be heard together would not be until November 2027, and the Tribunal determined it was clearly in the interests of justice for the First Claim and the Second Claim to proceed in this hearing, given: a) the parties had prepared the First Claim and the Second Claim for determination now; b) the increased risk of “memory fade” between now and November 2027; c) the fact that more of the Respondent’s witnesses would likely have ceased to be employed by it as time goes on; and d) the general forensic prejudice that comes with time. The list of issues, application to amend[20]The Claimant raised the fact that he had been given permission to provide the Tribunal with an alternative list of issues for its consideration by EJ McCluskey.[21]The Employment Judge noted that a list of issues is a case management tool, not a pleading, and she discussed the changes the Claimant sought to make to EJ McCluskey’s list of issues. The Claimant confirmed that the only changes he 4 of 118 was pursuing related to the protected disclosure detriment complaints, and the Employment Judge observed that these were changes that effectively sought to bring significant parts of the Third Claim into these proceedings.[22]The Claimant noted that he had raised the matters that are the subject of the Third Claim (namely, the treatment of various grievances that relate to the outcome of various other grievances the Respondent has finally determined) in response documents he prepared and sent to the Respondent and the Tribunal after the Respondent filed its Responses to his claims. However, the Employment Judge noted that such documents are not part of the Claimant’s cases (each of which is defined by the claim form and accompanying documents), and that the Claimant would need the permission of the Tribunal to amend his claims in the ways sought.[23]The Claimant applied for permission to amend so as to enable his protected disclosure complaints in the Second Claim to be expanded to include those matters. The Employment Judge refused that permission: a) for the same reasons as the application to hear the Third Claim alongside the First Claim and the Second Claim was refused; and b) because the Third Claim still exists, and will be heard in the future, so the Claimant’s ability to pursue those matters is not extinguished.[24]The Employment Judge determined that the balance of injustice and hardship (the relevant test as explored in the key cases of Selkent and Vaughan) lay firmly in refusing the application to amend. a) The nature of the proposed amendments would be to introduce:(i) new factual allegations, some relating to the denial, by a person not involved in the First Claim or the Second Claim, of the Claimant’s requests for reviews of the outcomes of four grievances (determined by different people to the characters in the First Claim and the Second Claim) he submitted about the Respondent’s treatment of grievances that are the subject of the First Claim and the Second Claim, and others as yet undefined relating to further instances of protected disclosure detriment the Claimant averred following the protected disclosure relied upon him in the Second Claim; and(ii) new legal complaints (of protected disclosure detriments) pertaining to those new factual allegations. These matters are effectively ‘what happened next’ after the events that are the subject of the complaints in the First Claim and the Second Claim. The Respondent said that it would need to call five or six additional witnesses to the seven it was already calling to give evidence in this hearing; 5 of 118 b) The applicability of time limits: The amendments relate to matters some of which would be “in time” at the outset of this hearing, but not all of which are yet understood. However, the Claimant’s ability to pursue those complaints would not be hindered by failing to permit the amendments, as he has already presented the Third Claim which includes complaints about them (as well as further allegations of race discrimination and victimisation); and c) The timing and manner of the application: The Claimant maintains that these are not new amendments he is seeking to make, but amendments he discussed and understood to have been agreed by EJ McCluskey. However, it is clear that EJ McCluskey, who has since reviewed the correspondence from the parties about the accuracy of the complaints and issues in her case management orders of 21 February 2024, disagrees that these were discussed. These amendments have been sought by the Claimant since March 2024, but significantly the Respondent has been preparing for this hearing on the understanding (emanating from the Tribunal, by reason of EJ McCluskey’s correspondence on the subject) that these were not within the scope of the matters that would be considered at this hearing.[25]These were the key considerations the Employment Judge considered relevant to this amendment application, and she judged that the disadvantage to the Claimant by the delay to him in having the Third Claim decided was far outweighed by the prejudice the Respondent would suffer by not being able to effectively resist the matters that are the subject of the Third Claim were the Claimant’s amendments be allowed.[26]In light of these decisions, the list of issues sent by the parties to the Tribunal on 23 October 2024, was the list of issues used by the Tribunal in this hearing. That list of issues is appended to the judgment, and each complaint identified in that list has been given a complaint number at the place the relevant act appears in the factual chronology in this judgment.[27]The Employment Judge raised two matters relating to time limits in the list of issues: a) The “in time” lookback period for the First Claim appeared to her to have been calculated incorrectly (although it accords with the date identified by the Respondent in its Response to the First Claim). While the list of issues identifies the earliest date for a matter to be “in time” as being 31 December 2021, the Employment Judge considered that to be an error, and that the correct date is 3 December 2021; and b) While the list of issues refers to the issues that will apply to any complaints brought under the 2010 Act that are apparently out of time, the allegations that the Claimant was subjected to detriments on the grounds that he had made a protected disclosure are subject to a different test if those 6 of 118 complaints were presented outside the primary time limit. The 1996 Act provides that such complaints will only have been presented “in time” if it was both not reasonably practicable for the relevant complaint to have been presented within the three month time period (as adjusted as appropriate for ACAS Early Conciliation) and the complaint was presented within a further reasonable period.[28]As these matters relate to the jurisdiction of the Tribunal, the Employment Judge raised these matters with the parties ahead of the date set for submissions so that the parties could consider them. The Employment Judge invited the Claimant to make submissions relating to time limits in relation to both the 2010 Act test and the 1996 Act test (and he did address the Tribunal on time limits). After consideration, the Respondent agreed with the Employment Judge on both of these points. The Bundle[29]The Respondent had prepared an agreed hearing bundle of 4,981 pages.[30]The Claimant applied on the first day of the hearing to add five further one-page documents to it. The Respondent questioned the relevance of those documents, but did not object to their admission. The Tribunal agreed that those documents could be admitted given the Claimant’s wish to rely upon them and the Respondent’s non-objection. Those were: a) An email of 6 October 2024, when the Claimant made a freedom of information request to the Respondent; b) An email from the relevant team in the Respondent’s organisation, the Information Rights Unit, acknowledging the Claimant’s freedom of information request on 7 October 2024; c) An email from the Respondent’s Information Rights Unit to the Claimant on 6 November 2024, setting out its anticipated response date; d) An automated email from Martyn Mellis in the Respondent’s HR team to Lesley Hilton on 4 January 2022; and e) An email of 13 August 2020 from the Claimant to various individuals in the Respondent’s organisation, and copied to Jay Vig, in which the Claimant informs them that he will be delivering a presentation around race issues and reaffirming the message that racism is not acceptable.[31]The bundle therefore comprised 4,986 pages (the Bundle).[32]The Tribunal made it clear to the parties that it would not be possible for the Employment Judge to read all of those documents, and therefore she would read all the documents to which she is taken to – whether by cross-references in the written witness statements or oral evidence, or in the course of submissions – but 7 of 118 the parties should not rely on her having read any document the Tribunal was not taken to. Witness evidence[33]The Tribunal heard oral evidence from 14 witnesses.[34]For the Claimant, evidence was given by: a) The Claimant; b) Sreekumar Sreenivasan, a Caseworker at Senior Officer Grade for the c) Anthony Riley, another employee of the Respondent who worked in the same team as the Claimant during some of the period with which these claims are concerned; d) Sukhvinder Sohpal, a Higher Officer undertaking a WMBC National Corporate Centre role for the Respondent; e) Ted Watson, the Claimant’s PCS trade union representative at the time of the matters with which these claims are concerned; f) Lesley Hilton (now retired), the Respondent’s former London Evasion Team Leader (and who was the Claimant’s mentor, and became his line manager part-way through the events with which these claims are concerned); and g) Michelle Herbert, who previously worked for the Respondent and was coChair of the Respondent’s Race Network, and a Senior Equality, Diversity and Inclusion Consultant.[35]For the Respondent, oral evidence was given by: a) Nahida Ahmed, formerly a Senior Equality Diversity and Inclusion Consultant for the Respondent; b) Colin Williams, a Deputy Director in the Respondent’s Large Business Directorate, who dealt with Grievance 2; c) Matt Blake, Deputy Director, Large Business North West, and the person who heard the Claimant’s appeal against those parts of Mr Williams’ decision that had not upheld the Claimant’s complaints in Grievance 2; d) Sital Patel, who works for the Respondent as Compliance Team Manager of ISBC National and Technical Compliance (referred to as Mr “S” Patel, given there is a second Mr Patel involved in the factual narrative of these cases); e) Diane Turner, a Caseworker in the Respondent’s Human Resources Expert Advice Service (EAS); 8 of 118 f) Mary Greenwood (who retired on 30 September 2021), who heard and determined Grievance 1 (defined below, in the Facts section) in her capacity as a Grade 6 employee working on Special Projects for the Respondent; and g) Lyndsay Cecil, a Grade 7 employee of the Respondent who works in the Unity Programme managing strategic communications for a transformation programme. Mrs Cecil was, at the relevant time, the Respondent’s Yammer Community Manager.[36]Four witnesses gave their evidence via CVP, being Mr Sophal and Mrs Herbert for the Claimant, and Ms Ahmed and Mrs Turner for the Respondent. Neither party objected to the other’s witnesses giving evidence in this way.[37]A written witness statement was provided in support of the Respondent’s case by Brian Redford, the Respondent’s Deputy Director, LB Scotland & Northern Ireland (who heard and determined the appeal against the outcomes of Grievance 1), but he was not available for cross-examination or Tribunal questions. The reason given by the Respondent was that Mr Redford had retired and was travelling. Each party made submissions on the weight that should be accorded to Mr Redford’s evidence, in light of his non-attendance and nonpresentation for cross-examination and Tribunal questions.[38]The Tribunal determined to admit that statement as evidence relevant to the issues in the case (not least because some of the complaints relate to actions taken by Mr Redford). The factual material referred to in his statement was not disputed by the Claimant, though the characterisation of those facts under the legal tests was. This is a matter that can be assessed by the Tribunal using the entire body of evidence before it, and a witness’s own assessment of the law will not hold much sway in any event. Where Mr Redford made statements about his reasons for acting, the Tribunal was alive to the fact that less weight should be accorded to them than might otherwise, given the witness had not presented himself for cross-examination or Tribunal questions, but in any event the challenge made to Mr Redford’s actions by the Claimant was largely assessed using the documentary evidence in the Bundle.[39]Jonathan Poole, now retired but who was an employee of the Respondent who worked in the same team as the Claimant for part of the period concerned, submitted a written witness statement to the Tribunal and was available for crossexamination and Tribunal questions, but neither the Respondent nor the Tribunal had any questions for him. His unchallenged written evidence was accepted by the Tribunal.[40]The Claimant’s witness statement was extremely lengthy, and covered events that post-date the First Claim and the Second Claim (as he was hoping to succeed in his application to have the Third Claim heard as well, or in his application to amend). The Employment Judge spoke to the Claimant and said that, as he had helpfully arranged his witness statement chronologically, she 9 of 118 would read up to the period covered by the First Claim and the Second Claim, and the statement’s conclusion, together with any other paragraphs which the Claimant considered should be read by her in light of the fact that the Third Claim was not heard with these, and nor we the sought amendments to the protected disclosure detriment complaints made. The Claimant directed the Employment Judge to numerous further paragraphs, which the Employment Judge read and considered. Those parts of the Claimant’s statement which were not identified as relevant to the First and Second Claims (as unamended) by the Claimant were not read. Adjustments[41]Neither party asked for any adjustment to be made to the conduct of the hearing besides: a) The request that the Tribunal accommodate their requests for certain witnesses to give their evidence by CVP (as noted above); and b) The Respondent asked that Mrs Cecil be permitted to take a blank piece of paper to take notes during her evidence, due to brain fog attributable to menopausal symptoms. The Claimant did not object to this.[42]In the course of giving his evidence, the Claimant noted that he may have difficulty remembering the matters to which he wished to return by way of reexamination, and the Respondent did not object to the Claimant taking a blank piece of paper and a pen to the witness stand so that he could make a note of those matters during cross-examination and Tribunal questions. Facts[43]The Claimant began working for the Respondent on 26 September 1988. He remains employed by the Respondent, in the role of Senior Officer Casework.[44]The Claimant was line managed my Mr Sital Patel for the period 3 April 2018 to 11 December 2020 in the Technical and Specialist Department (also known as “Tech & Spec”).[45]The facts outlined below are those that are relevant to the determination of the Claimant’s complaints in the two cases that are the subject of this judgment. Other matters have also occurred between the parties (e.g., the Claimant raised numerous additional grievances to those described below), but those are not described in light of the fact that they are not relevant to either the First Claim or the Second Claim. 10 of 118 The “Tech & Spec” team’s manager before Mr Vig[46]Four witnesses (the Claimant, Mr Poole, Mr Sreenivasan and Mrs Hilton) gave evidence, not challenged by the Respondent, that the person who had managed the team before Mr Vig had regularly used racist language towards members of the team. Mrs Hilton also referred to that person as a misogynist, and this was also not challenged by the Respondent. Tasks normally carried out by the team’s Single Point of Contact, February 2019[47]On 5 February 2019, when Mr S Patel line managed the Claimant and others, Mr S Patel sent an email to his team noting that one of the team members, who performed the role of Single Point of Contact (SPOC), had partially retired. Mr S Patel asked that the duties of that person be shared among the team.[48]Mr Poole’s (unchallenged) evidence was that, initially, all Senior Officer Caseworkers objected to this request as the work was at a level beneath their grade, “but eventually we all relented except [the Claimant]”.[49]Email correspondence in the Bundle showed the back-and-forth between the Claimant and Mr S Patel on this matter, including: a) The Claimant to Mr S Patel on 5 February 2019: “I do not deem this to be my role as a Senior Caseworker undertaking checks/enquiries… I am of the opinion that you are responsible for providing me with [that work already completed]… Therefore, I respectfully request that you direct me to HMRC guidance (not [the Senior Leadership Team]’s views/opinions) which supports this to be my responsibility and not my managers… Failing this I find your request to be unreasonable and I am therefore unable to comply with it… I respectfully request you direct me to HMRC guidance which supports your comment that “me failing to adhere to your request to undertake SPOC duties and find my own cases next year, would result in me having a problem come the end of the next PMR reporting period” as I deem this to be an unfounded “Threat” and attempt to “Bully/Harass” me in to complying with your unfounded request.” b) Mr S Patel back to the Claimant on 14 February 2019: “I am disappointed with both your comments at the SO meeting and in your email below… as no one has volunteered to take over the role from [the partially retired Single point of Contact], I am asking the whole team (and I include myself) to assist as and when required… I therefore consider my request to you and your fellow SO’s to be reasonable… we have previously spoken about you using ‘the guidance’ as your first line of resistance (for want of a better word), as it seems to me, to reasonable management requests… We do have specific mandatory instructions for some things which we are obliged to follow however, as previously explained our guidance is… well precisely 11 of 118 that – ‘guidance’… I, as a manager, will make requests/ decisions that I consider to be reasonable for the benefit of the team….”. Mr S Patel’s email went on to say that he did not recall saying that if the Claimant failed to undertake SPOC duties he would have a problem in the performance management review reporting period. “What I do recall is something along the lines of refusing to undertake a reasonable management request or continued negative behaviour generally may be a performance issue that needs to be discussed at PDCs [Personal Development Chats], where appropriate. I do not consider that this to be unreasonable… I am taken aback by your comment that you feel I have threatened and bullied/harassed you”.[50]As is evident from these exchanges, the Claimant and Mr S Patel had a strained relationship before the events with which these claims are about. Indeed, the relationship between them became so difficult that the Claimant and Mr S Patel entered into a mediation process to endeavour to resolve matters between them, and that process culminated in a mediation agreement in June 2019. “Our Conversation” meeting, 24 September 2020[51]On 24 September 2020, a meeting was held of the team the Claimant was part of which was given the title “Our Conversation”. The purpose of the meeting was to discuss race, equality and inclusion, with a view to identifying measures that could be implemented to address racism within the Respondent. The Claimant attended, as did the Claimant’s then-line manager, Mr S Patel, and the meeting was led by Mr S Patel’s line manager, Jay Vig.[52]Towards the end of the meeting one of the white team members, “SH”, talked about the benefits of mentoring in tackling racism and racist behaviours. The Claimant disagreed, saying that mentoring did not play a significant role in tackling the race agenda. Part of the context relevant to the Claimant’s disagreement with SH was that SH had been a member of the team when the previous team leader had been in post, and the Claimant perceived that SH had not challenged the team leader’s racist behaviour when SH observed it.[53]There is a disagreement between the parties as to whether Mr Vig brought the “Our Conversation” meeting to a close because of the Claimant’s “behaviour” (as a note on one of the Respondent’s HR systems recorded – described below). The Claimant says the conversation did not get heated, but rather the reason the meeting ended was “because an individual got upset when I responded to their comments, and that upset led to Jay Vig ending the meeting”. The Respondent’s position is that it was the Claimant’s behaviour that was Mr Vig’s reason for ending the meeting earlier than scheduled.[54]The parties do not dispute that there was a disagreement between the Claimant and his colleague, SH, and Mr Vig, the person who ended the meeting, is 12 of 118 recorded in Mrs Greenwood’s notes of her meeting with him as saying that the reason he did so was because “nothing constructive was coming out of the mentoring discussion”. He went on to say that he “felt [the Claimant] had overstepped the mark and had become aggressive” and that he “did not want to end a meeting like that”.[55]Other people attended the meeting. a) Those included Mr Sreenivasan and Mr Riley, both of whom have provided witness evidence in support of the Claimant’s case, who observed that the Claimant had been “passionate, but not rude” (Mr Sreenivasan), and “parts of the meetings were difficult” (Mr Riley). b) Mrs Greenwood also spoke to Matthew Clarke, another team member, about what happened, and the notes of that meeting recorded Mr Clarke’s recollection as being: “[the Claimant] is generally vocal and expresses his views… He is generally quite passionate and sometimes goes a bit far. [Mr Clarke] thinks that it may have gone a bit far in the first ‘OC’ meeting when the discussion got more heated towards the end… [Mr Clarke] felt that [the Claimant] had crossed the line towards the end of the meeting as his comments to [their colleague] were more personal”. c) Mr S Patel also considered that the Claimant “loudly over talked the team member and became a little too aggressive. [Mr Vig] stepped in and brought the meeting to a close”. d) Mr Poole’s written witness statement states that Mr Vig decided to end the discussion and the teams meeting in a way which “implied [the Claimant]’s challenge had been confrontational and upsetting. I did not have the same opinion and felt that [the Claimant] had made a valid point in defending himself and supporting his view regarding mentoring, something which [the Claimant] has always done in an assertive and professional manner when challenging or defending himself”.[56]The Tribunal finds that the Our Conversations meeting was ended because of the Claimant’s behaviour. The key evidence in this regard is that of Mr Vig’s (albeit taken a few months after-the-event, when the Claimant had raised a grievance about him), given that Mr Vig was the person who decided to end the meeting. He is best-placed to say why he did so. This is supported by the fact that Mr Poole, a witness for the Claimant, also says Mr Vig ended the meeting because of Mr Vig’s perception of the Claimant’s behaviour (even though Mr Poole did not agree that that perception was reasonable), as does Mr S Patel. Mr Clarke did not comment on why the meeting was concluded, but he did observe that he Claimant’s behaviour “crossed the line towards the end of the meeting”. None of Mr Sreenivasan, Mr Riley or Mr Clarke comment on why the meeting was brought to a close, but they do comment on their views of the Claimant’s behaviour. 13 of 118[57]Although there is a risk that, by the time Mr Vig was interviewed by Ms Greenland, his recollection could be influenced by his knowledge of the Claimant having complained about him in Grievance 1, Mr Vig’s position was not simply to paint the Claimant as an aggressor, but rather he recognised that the Claimant’s reaction could have been prompted by upset rather than anger. Nevertheless, whether the behaviour was justified or understandable was not recorded in the EAS note – so the only question the Tribunal needs to address is why the meeting was brought to a close by Mr Vig.[58]It is clear to the Tribunal that Mr Vig brought the meeting to a close because of the Claimant’s conduct. Correspondence after the “Our Conversation” meeting, September/October 2020[59]Mr Vig later messaged the team about reconvening the “Our Conversation” meeting. On 29 September 2020 the Claimant emailed Mr Vig to offer to assist in facilitating the reconvened meeting, with a view to helping the team understand what it means to “become actively anti-racists,”… which I am sorry to say I do not think the team currently is and I accept this will not happen overnight”.[60]The next day, on 30 September 2020, Mr Vig forwarded the Claimant’s email on to all team members, asking for their thoughts, without discussing that with the Claimant beforehand.[61]Mr S Patel “replied all” and wrote: “Dear Jay I guess it depends on what Andrew means by ‘assist’. Of course we want to hear Andrew’s views on anti-racism together with his wider perspective of D&I lead for the G6 teams but I’m wondering if helping to facilitate the discussion fits in more with Matt’s role as our team’s Diversity and Inclusion Champion.” (The Claimant was the Diversity and Inclusion Champion for the management of various teams called the “G6 teams”, whereas Matt Clark was the team-specific Diversity and Inclusion Champion.)[62]The Claimant emailed Mr S Patel, and Mr Vig, on 6 October 2020 asking Mr S Patel to clarify what he meant by his comment “I guess it depends on what Andrew means by ‘assist’”, in light of the Respondent’s Respect at Work policy.[63]Mr S Patel telephoned the Claimant to apologise, and followed this with an email to the Claimant, copying the team, on the same day stating: “in asking the question, I certainly did not intend for it to be taken in the way that it has and in hindsight I could have phrased it a bit better – something that was mentioned during our team call today and I’ve fallen foul of it here and I apologise for that. 14 of 118 I have tried to explain both in my subsequent emails and during our telephone conversation… that facilitating the conversations for our team around this issue following Part 1 seems, in my view, to fall within Matt [Clarke]’s remit, as our team’s D&I lead, with of course your help and support from the broader perspective as the Techn & Spec D&I Champion. I was certainly not suggesting that your assistance was in any way unwelcome, quite the contrary…”.[64]The Claimant wrote to Mr S Patel on 16 October 2020, copying the team into his email, that he (the Claimant) did not regard Mr S Patel’s apology as sincere.[65]Mr S Patel replied to the Claimant on 19 October 2020, expressing sadness that his apology was not accepted. Mr S Patel contacted the Respondent’s HR Employee Advisory Service, 20 October[66]The next day Mr S Patel contacted the Respondent’s HR Employee Advisory Service (EAS) for advice on this matter, and spoke to Diane Turner. Mrs Turner made a note on the system used by the EAS team to record notes of engagement with people in the Respondent organisation, which began: “Call with LM - during the ‘Our conversations’ meeting the G6 made the decision to end the call due to behaviour on the JH.”[67]This telephone call, and the resultant EAS note, form the basis of eight complaints made by the Claimant: a) That Mr S Patel’s comments to Mrs Turner in their telephone call on 20 October 2020 was direct discrimination because of race (Complaint 1); b) That Mrs Turner’s decision to record those comments in a telephone note also on 20 October 2020 was direct discrimination because of race (Complaint 2); c) That the making of the comments by Mr S Patel to Mrs Turner amounted to harassment related to race (Complaint 3); d) That Mrs Turner’s decision to record those comments in a telephone note amounted to harassment related to race (Complaint 4); e) That the making of the comments by Mr S Patel to Mrs Turner was victimisation (Complaint 5); f) That Mrs Turner’s decision to record those comments in a telephone note was victimisation (Complaint 6); g) That the making of the comments in a telephone call by Mr S Patel was a detriment on the ground that the Claimant had made a protected disclosure (Complaint 7); and 15 of 118 h) That Mrs Turner’s decision to record those comments in a telephone note was a detriment on the ground that the Claimant had made a protected disclosure (Complaint 8).[68]The Respondent does not dispute that Mr S Patel telephoned its HR EAS on 20 October 2020, seeking their advice because the Claimant had refused (on 16 October 2020) to accept Mr S Patel’s apology for the terms of his email of 30 September 2020.[69]There are two disputes of fact relating to these events: a) Whether the note Mrs Turner recorded, specifically the statement that the Our Conversations meeting was brought to an end “due to behaviour on the [the Claimant]”, was what was communicated to Mrs Turner by Mr S Patel; and b) Whether the note Mrs Turner recorded was used in determining subsequent grievances raised by the Claimant.[70]Mr S Patel says the note written by Mrs Turner “bears no resemblance to the conversation [he] had with Diane Turner – the chronology is wrong, and the discussions [he] had with her were more detailed”, and he observes it was made approximately 4.5 hours after the call was made.[71]Mrs Turner says that, while she cannot recall the telephone conversation as it was several years ago, it is her usual practice to take handwritten notes and then to type those notes up afterwards. She does not have the original handwritten notes of her conversation with Mr S Patel, but she is confident that her notes were accurate. Mrs Turner said that she records only a summary of telephone conversations she has with managers she is advising, in the interests of time.[72]The Tribunal finds that Mr S Patel did tell Mrs Turner that the Our Conversation meeting had been brought to a close by Mr Vig due, at least in part, to the behaviour of the Claimant. The Tribunal reaches this conclusion for the following reasons: a) Mrs Turner, having not attended the Our Conversation meeting, would not otherwise have known about how the meeting ended, and would have no reason to speculate; b) Mr S Patel agreed that he had discussed the matter with her, though he said he did so more fulsomely than Mrs Turner’s note indicates – which is consistent with her evidence that she makes summary notes only; and c) The note recorded in the EAS HR system that the Our Conversation meeting ended “due to the behaviour of [the Claimant]” is consistent with what Mr S Patel discussed with Mrs Greenwood in his discussion with her on 15 March 2021. The notes of that meeting record that Mr S Patel said: “the meeting ended distastefully. The issue that escalated was around the value of mentoring and became heated between [the Claimant] and 16 of 118 another team member. In [Mr S Patel]’s view [the Claimant] loudly over talked the team member and became a little aggressive”. This is largely consistent with Mr S Patel’s evidence to this Tribunal, that “There was then a heated discussion between a member of the team and Mr Sutherland around whether mentoring was a valuable tool in tackling racism. At this point Mr Vig brought the meeting to a close to deescalate the situation and as the meeting had already overrun”, i.e., that the Claimant’s behaviour was a reason that Mr Vig ended the meeting.[73]The second factual dispute relates to the Claimant’s contention that the note made by Mrs Turner on 20 October 2020 was used by the Respondent when considering his subsequent grievances. He says that he believes it has done so, because his understanding is that this record would, in accordance with the Respondent’s “Personal data: Retention of HR data – data held centrally” policy (HR21005), have been destroyed within 12 months of Mrs Turner’s note having been made – i.e., by 20 October 2021, but the fact that the note still existed when the Claimant made his subject access request on 1 March 2022 shows that the note was used in connection with his grievances, in respect of which the Respondent operates a longer data retention period.[74]The evidence from Mrs Turner was that she was not responsible for determining or operating the Respondent’s policy for notes on the EAS case management application, but that the policy the Claimant pointed to requires that the EAS team retain records for six years where they have been involved in grievance and discrimination claims. Mrs Turner said that her understanding is that when the Claimant raised Grievance 1 the day after she made the note on the EAS system, the retention policy that applied to that note then became six years.[75]The Tribunal prefers the evidence of Mrs Turner on this point - it is based on her knowledge of the EAS systems rather than conjecture. The Tribunal has read the Respondent’s policy, and can see that it provides that EAS records will be retained for six years “where they’ve been involved in cases”, and this text appears under the heading “Grievance and discrimination claims, including ET applications” . While the words “where they’ve been involved in cases” implies that the EAS records will only be retained for this six year period where the record is itself relevant to the grievance or discrimination claim, it makes sense that rather than checking all the personal data “on file” for the Claimant when he raised a grievance to see which related to it and which did not, a blanket approach of retaining all personal data relating to him for six years would be applied.[76]The Tribunal finds that this was the reason why the note made by Mrs Turner was produced in response to the Claimant’s subject access request on 1 March 2022 – because on 21 October 2020, when the Claimant raised Grievance 1, the retention policy applied to Mrs Turner’s note changed from being 12 months to six years. As to whether this note was used in determining the grievances 17 of 118 (including the appeals of their outcomes) the Claimant subsequently raised, the only evidence on this point is: a) The Claimant’s conjecture that it would have been shared with the decision managers and appeal managers by the HR EAS advisers supporting those decision makers; and b) Mrs Greenwood’s evidence that she did not see it when investigating and considering Grievance 1 (which was about the events involving Mr Vig and Mr S Patel).[77]The Tribunal notes that neither the one appeal manager who gave oral evidence in this hearing (Mr Blake) nor the other decision manager (Mr Williams) was asked by the Claimant whether they had seen the note Mrs Turner made.[78]The Tribunal finds, on the basis of the very limited evidence available, that the note was not shared with any of the decision managers or appeal managers dealing with the Claimant’s grievances. The grievance it would have been most relevant to is Grievance 1, and there is no reason to doubt Mrs Greenwood’s evidence that she did not see it. If it was not provided to her, it is improbable that it was provided to any of the others, and the Tribunal finds that it was not.[79]Following advice from Mrs Turner, Mr S Patel emailed the Claimant on 21 September 2020, asking what the Claimant wants by way of resolution of the matter, and signposted sources of help with the Claimant’s wellbeing. The Claimant raised Grievance 1, 21 October 2020[80]On 21 October 2020 the Claimant raised what is known in the Respondent’s organisation as “a formal concern” (i.e., a grievance) against Mr S Patel and Mr Vig, alleging bullying, harassment, discrimination and victimisation and other actions which do not meet the Respondent’s standards of conduct (Grievance 1). Grievance 1 was later expanded to include allegations of bullying, harassment, discrimination and victimisation. Race Equality Workshop Facilitation Upskilling, October/November 2020[81]The Claimant applied to be a facilitator to deliver the Respondent’s Race Equality workshops, and was selected to do so on 29 October 2020. The Claimant informed Mr S Patel of this on the same day.[82]On 30 October 2020 the Claimant attended an upskilling event, led by Nahida Ahmed, a Senior Equality Diversity and Inclusion Consultant, and Gillian Smith, the Respondent’s Head of Equality, Diversity and Inclusion, for those selected to be facilitators. 18 of 118[83]On 2 November 2020 the Claimant was given feedback on his performance in this event: a) By telephone from Ms Ahmed. No contemporaneous notes exist of this conversation; and b) By email from Ms Smith.[84]The email included the following from Ms Smith: “I had asked Nahida Ahmed (the HMRC Race Programme Lead) to speak with you following our observation at the upskilling session that your understanding of equality, diversity and inclusion, and your skills in facilitation were not at the level needed for the role… I have reflected further on your suitability and readiness, concluding that we should not schedule you in for partnering in any of the facilitation for the next couple of months at least, pending further work to improve the level of your understanding and relevant skill-set. You mentioned that your application was supported by Kate Rudd and I have therefore copied her into this email… You showed little understanding of the views discussed and did not appear to be open to the views of others… Nahida has offered to reflect with the team on how we might provide you with more support to be able to upskill yourself in coming weeks…”.[85]The following day, Mrs Hilton, the Claimant’s mentor, emailed Ms Smith, describing the feedback she gave him as “brutal”.[86]The Claimant emailed Ms Smith on 9 November 2020, questioning whether the “brutal” feedback should have been copied to Ms Rudd and the email account for “CDIO Enterprise Platform Services”, as the Claimant perceived this would cause him professional harm. The Claimant described the distress that the feedback caused him.[87]In later correspondence with the Claimant dated 16 November 2020, Ms Smith mentioned that her feedback was based on her own observations of the facilitation of the workshop and on Ms Ahmed’s report to Ms Smith of her own conversation with the Claimant. Ms Smith acknowledged that, with hindsight, it would have been better if her feedback had been given by telephone. That feedback, Ms Smith stated, “was based entirely on the knowledge and skills we observed on 28 October and the information relayed back to me by Nahida following her call with you on 2 November, none of which related to your skin colour or gender”. 19 of 118 The Claimant raised Grievance 2, 25 January 2021[88]The Claimant was absent from work due to ill health from 3 December 2020 to 15 January 2021. During his absence, and with his agreement, he was reassigned to Mrs Hilton’s team with effect from 14 December 2020.[89]Shortly after his return to work, on 25 January 2021, the Claimant raised a grievance about Ms Ahmed and Ms Smith, alleging bullying and harassment, discrimination, victimisation and other breaches of the Respondent’s Standards of Conduct, as well as a General Data Protection Regulation (GDPR) breach by Ms Smith, pertaining to the Race Equality Workshop feedback (Grievance 2).[90]This Grievance 2 is accepted by the Respondent to be a protected act for victimisation purposes (PA 1). Decision in relation to Grievance 2, 20 September 2021[91]Colin Williams was assigned to be the Decision Manager for Grievance 2.[92]Mr Williams reached his decision on Grievance 2 on 20 September 2021. Grievance 2 comprised ten different complaints relating to the Race Equality Workshops upskilling feedback, and Mr Williams upheld or partially upheld seven of them, and made various recommendations. The Claimant avers that: a) The handling of and decision reached in respect of Grievance 2 by Mr Williams was direct discrimination because of race (Complaint 9); b) Mr Williams applied three practices in dealing with Grievance 2 of:(i) Inappropriately taking into account the intentions of the subjects of the complaint;(ii) Looking for examples of overt discrimination; and(iii) Raising the issue of race even where this had not been referred to in the grievance, (with (i), (ii) and (iii) collectively referred to as the Alleged PCPs) which the Claimant says indirectly discriminated against him as a person of AfroCaribbean heritage (Complaint 10); c) Mr Williams’ handling of and decision reached in respect of Grievance 2 on 20 September 2021 amounted to harassment related to race (Complaint 11); and d) Mr Williams’ handling of and decision reached in respect of Grievance 2 on 20 September 2021 was victimisation (Complaint 12). 20 of 118 The “handling” flaws alleged by the Claimant[93]The Claimant raised the following concerns with the process followed and decision reached by Mr Williams in relation to Grievance 2: a) That Mr Williams did not agree terms of reference with the Claimant before conducting his investigation and reaching his conclusion; b) That Mr Williams showed preferential treatment to the evidence given by senior management when it conflicted with the evidence given by the Claimant and others who are not of that level; and c) That Mr Williams did not uphold all of the Claimant’s complaints.[94]On the first of those, the Respondent accepts that there was no document entitled “terms of reference” which was agreed by Mr Williams and the Claimant, but it says that, in effect, terms of reference were agreed by them in the meeting held on 17 June 2021 and its aftermath.[95]As for the Claimant’s contention that greater reliance was put on the oral evidence of senior managers by Mr Williams when considering Grievance 1, while he has not been specific about the instances of this greater reliance, he seems to be referring to: a) The conflict between the evidence of the Claimant’s performance in:(i) the upskilling event given by Ms Smith and Ms Ahmed on the one hand, and the Claimant and the other attendees interviewed by Mr Williams (Mr Sophal, Kevin Drinkwater and Sharron Parry); and(ii) the telephone call between him and Ms Ahmed on 2 November 2020, when Ms Ahmed provided him with oral individualised feedback; and b) The conflict between his recollection, and the recollection of Ms Ahmed, regarding what was said on the feedback provided by Ms Ahmed orally in their telephone call of 2 November 2020.[96]On the conflict between the different accounts of the Claimant’s performance in the upskilling event itself, Mr Williams did not make a finding as to whose accounts was the correct one. He did not do so as the decision to reject the Claimant’s application to be a facilitator was taken after Ms Ahmed’s telephone call with the Claimant to provide feedback, rather than on the basis of his performance in the upskilling event itself. This was not a matter where the account of senior management was preferred over that of the Claimant and similar-level non-management employees.[97]On the conflict pertaining to the telephone call between the Claimant and Ms Ahmed, Mr Williams upheld the Claimant’s concern that Ms Ahmed’s feedback was inaccurate. He preferred the Claimant’s account. 21 of 118[98]On the third, Mr Williams preferred Ms Smith and Ms Ahmed’s account over the accounts of the Claimant and Mr Sohpal as to whether Ms Smith was role-playing in the part of the workshop that caused distress to Mr Sohpal. Mr Williams’ decision appears to be based on the fact that the explanation Ms Smith gave was a credible one – that she was role-playing the part of a challenging attendee, as dealing with challenges was an essential part of facilitating. He did not accept that explanation because of her seniority to the Claimant and Mr Sohpal, but because of its plausibility in the context of a workshop designed to examine participants’ suitability to facilitate the roll out of Race Equality Workshops to colleagues.[99]Of the three examples of disputed evidence between ‘the Claimant and others of his level’ and ‘Ms Smith and Ms Ahmed’, Mr Williams’ decision shows that he favoured the Claimant in one instance, favoured Ms Smith in another, and declined to decide the third. The Tribunal finds that Mr Williams did not place greater reliance on the oral evidence of senior management than of that of the Claimant and fellow workshop attendees.[100]As for the third alleged “handling” flaw, that Mr Williams did not uphold all of the Claimant’s complaints, it is correct that Mr Williams did not uphold all of the complaints the Claimant made, but he did uphold or partially uphold seven out of ten of them.[101]On the question of whether Mr Williams applied the Alleged PCPs in dealing with Grievance 2, the Respondent denies that he did so. Mr Williams’ evidence is that the Respondent does not have these practices, and he did not apply the Alleged PCPs in any event.[102]Specifically in relation to whether Mr Williams applied the first Alleged PCP, that he inappropriately took into account the intentions of the subjects of the complaint, i.e., the intentions of Ms Smith and Ms Ahmed: a) The Respondent says that he did not do so. b) Mr Williams says, as regards:(i) The Respondent’s policy entitled “How to: Recognise and deal with bullying, harassment and discrimination” states that “The intention of the bully/bullies is irrelevant when determining whether bullying has occurred”;(ii) The Policy envisages a two-stage process for determining whether bullying has occurred, involving firstly a determination of whether the incident complained of occurred, and if it did, then determining whether that behaviour was appropriate. The Policy notes that “If 22 of 118 the behaviour is considered inappropriate, it could have the potential to create the perception of bullying behaviour”; and(iii) In relation to the second of those two stages, Mr Williams concluded that he could not find that the actions of Ms Smith or Ms Ahmed were inappropriate. He considered that there were better ways they could have delivered their feedback, he did not consider that their actions constituted bullying behaviour. His evidence was that their intentions did not come into this assessment, i.e., that the first Alleged PCP was not applied by him. c) The Claimant says that, in reaching his conclusions, Mr Williams took account of the intentions of Ms Smith and Ms Ahmed. d) It is clear to the Tribunal that Mr Williams did take account of the intentions of Ms Smith and Ms Ahmed in relation to his findings on two of the complaints brought by the Claimant: (i) The first ground of complaint in Grievance 1 was that Ms Smith had breached GDPR. Mr Williams concluded that she had, but that she had done everything she could to mitigate her mistake, and it had been inadvertent. The latter two points appear to have led him to conclude that the complaint should only be “partially upheld”. It would therefore appear that the fact that Ms Smith’s action was inadvertent played some part in the complaint only be “partially” upheld. (ii) The ninth ground of complaint was that Ms Smith failed to tackle Ms Ahmed’s inappropriate behaviour. The Respondent’s policy indicates that intention is not relevant to whether behaviour is or is not appropriate, but Mr Williams concluded that Ms Ahmed’s behaviour was “inadvertent” and “unintentional”, and went on to conclude that “Therefore… there was no inappropriate behaviour for [Ms Smith] to tackle”. Although this complaint was about Ms Smith, Mr Williams considered Ms Ahmed’s intentions when determining whether Ms Smith should have acted. This was not, strictly speaking, taking in account of the intentions of the “subject” of the complaint when determining whether it was made out, but it did involve factoring in intention when determining whether the behaviour in question amounted to bullying. e) It is also clear that in relation to some of the grounds of complaint, the intention of the subject was part of the complaint, and so taking account of the subject’s intentions was necessary to determine the matter the Claimant complained of. This applied to: (i) The sixth ground – of unconscious bias – you need to understand the conscious reasons or drivers for the decision taken by the 23 of 118 subject to determine which of the objectively-assessed reasons for the decision were unconscious; and (ii) The seventh ground – that Ms Smith “disregarded” the harm she caused to the Claimant’s mental health – you cannot disregard something without being aware of it and intentionally choosing not to give regard to it. It was appropriate for Mr Wiliams to take account of Ms Smith’s intentions in relation to that one. f) Mr Williams also noted the subject’s intentions in relation to grounds 2, 3 and 8, which he fully upheld, so the subject’s intentions did not affect the outcome in those instances. g) Mr Williams did not take account of the subject’s intentions when determining complaints 4, 5 and 10. h) Mr Williams did apply the first Alleged PCP to some of the Claimant’s complaints in Grievance 1.[103]In relation to whether Mr Williams applied the second Alleged PCP, i.e., that he was looking for examples of overt discrimination: a) Neither the Respondent generally nor Mr Williams specifically dealt with whether Mr Williams (as opposed to the Respondent generally) applied this practice to the Claimant, although the fact that Mr Williams agreed in his witness statement that the Respondent does have a practice of looking at examples of overt discrimination indicates his belief that he did. b) The Claimant has not pointed to any evidence of Mr Williams’ consideration of Grievance 1 looking for examples of overt discrimination, or of ignoring any non-overt racism.(i) The Claimant asked Mr Williams in cross-examination about his complaint 5, that Ms Smith had said racist things in the facilitation workshop and treated Mr Sohpal inappropriately (which seems to the Tribunal to be an example of overt racism, but not one “looked for” by Mr Williams, but one raised by the Claimant in Grievance 1). Mr Williams’ clear evidence was that he did consider that complaint, Ms Smith’s behaviour and its effect on Mr Sohpal, but he accepted Ms Smith’s evidence that she was role-playing to see how the participants responded to inappropriate behaviour.(ii) The Claimant also asked Mr Williams in cross-examination if he (Mr Williams) considered investigating whether there was another motivation (besides what Ms Ahmed says was her concerns about the Claimant’s performance in the facilitation workshop) for Ms Ahmed calling him to provide him with feedback (to which Mr Williams said he did not), but the Claimant made no arguments on this point to the Tribunal (and this point did not arise in the Respondent’s cross-examination of him). 24 of 118(iii) In any event, the Tribunal considered the implicit argument from this line of questioning, that Ms Ahmed’s motivation in calling the Claimant to provide feedback could have been racism. However, as that was not a point made to Mr Williams by the Claimant, as Ms Ahmed was a Senior Equality Diversity and Inclusion Consultant employed by the Respondent, and as the facilitation workshop had been set up to roll out race equality training, absent the Claimant positively asserting this to Mr Williams, he had no reason to consider he motivation as an instance of non-overt race discrimination. He did not ignore any hint that the call from Ms Ahmed to the Claimant was motivated by racism, as there was none. c) None of the Claimant’s complaints that formed the basis for Grievance 1 overtly referred to race, although the substance of complaint 5 was about race discrimination. This complaint was considered thoroughly by Mr Williams, and was not upheld. No case has been presented to the Tribunal that Mr Williams ignored any non-overt racism, and the Tribunal finds that he did not do so. d) Mr Williams did not apply the second Alleged PCP to the Claimant.[104]In relation to whether Mr Williams applied the third Alleged PCP, that he raised the issue of race even where this had not been referred to in the grievance: a) The Respondent says that there is no evidence that Mr Williams took account of the Claimant’s race when it was not referred to. b) The Claimant does not advance any argument on this point at all. c) The Tribunal has read through his decision notice and finds that he did not raise the issue of race when it was not referred to in this grievance. Mr Williams did not apply the third Alleged PCP to the Claimant. Decision in relation to Grievance 1, 29 September 2020[105]Mary Greenwood was assigned to consider and determine Grievance 1, in a role that the Respondent’s relevant policy labels the “Decision Manager”.[106]On 29 September 2021 Mrs Greenwood reached her decision on Grievance 1. Mrs Greenwood concluded that: a) In relation to the actions of Mr Vig:(i) Mr Vig’s sharing of the Claimant’s email on 5 October 2020 was inappropriate;(ii) There was no evidence of Mr Vig bullying or harassing the Claimant; and 25 of 118 b) In relation to the actions of Mr S Patel: (i) The comment made by Mr S Patel on 30 September 2020 about the Claimant’s offer to Mr Vig was demeaning; and (ii) Whilst this was not intentional, the comment was an act of bullying.[107]The Claimant characterises this as follows: a) The handling of and decision reached in respect of Grievance 1 by Mrs Greenwood was an act of direct discrimination because of race (Complaint 13); b) Mrs Greenwood applied the Alleged PCPs in dealing with Grievance 1, which the Claimant says indirectly discriminated against him as a person of Afro-Caribbean heritage (Complaint 14); c) The handling of and decision reached in respect of Grievance 1 by Mrs Greenwood amounted to harassment related to race (Complaint 15); and d) Mrs Greenwood’s decision was a detriment on the ground that the Claimant had made a protected disclosure (Complaint 16). The “handling” complaints regarding Grievance 1[108]The Claimant has made several complaints in relation to the way in which Grievance 1 was “handled” as amounting to less favourable treatment, namely: a) That Mrs Greenwood was not an appropriate person to act as Decision Manager in relation to Grievance 1, because of a conflict of interest that applied to her in relation to one of the subjects of the grievance, Mr Vig; b) That she showed preferential treatment to Mr Vig and Mr S Patel because they were senior leaders; c) That Mrs Greenwood dismissed historic evidence of inappropriate behaviours on the parts of Mr Vig and particularly Mr S Patel; d) That she inappropriately considered the intentions of Mr Vig and Mr S Patel when determining if their conduct amounted to bullying; e) That Mrs Greenwood disregarded relevant evidence about the Claimant’s health and feelings; and f) That she did not advise the Claimant of her imminent retirement, and because she was due to retire imminently, she could not be held accountable. - (1) Conflict of interest[109]On the first “handling” complaint, the Claimant has asserted that Mrs Greenwood was not an appropriate person to act as Decision Manager in relation to Grievance 1 pursuant to principles of natural justice and the Respondent’s 26 of 118 Conflict of Interest policy. He does on the basis that Mrs Greenwood and Mr Vig were part of the same senior leadership team nine years prior to her taking on the role of decision manager in relation to Grievance 1.[110]The Tribunal accepts Mrs Greenwood’s evidence that, while she and Mr Vig were both part of the Senior Leadership Team at some point, she has no recollection of ever having met or spoken to him prior to the process involving Grievance 1. The Tribunal finds that the Respondent’s Conflict of Interest policy was not breached, as there was no “personal relationship or association” between them - examples of which the policy gives as the person being a relative of the other, a close friend, or of there being financial dependency between them, or their being associates where the connection may cause reputational damage to the Respondent.[111]The Claimant has failed to show that there was a conflict of interest – real or perceived – operating when Mrs Greenwood determined Grievance 1. - (2) Preferential treatment of Mr Vig and Mr S Patel[112]The Claimant asserted in his witness statement that Mrs Greenwood showed preferential treatment to Mr Vig and Mr S Patel when assessing conflicts of evidence because they were senior leaders, but he has not cited any specific instance when Mrs Greenwood allegedly did so.[113]In fact, the reality seems to be the opposite – Mrs Greenwood found both Mr Vig and Mr S Patel to have behaved inappropriately, and in Mr S Patel’s case to have amounted to unintentional bullying.[114]This allegation of less favourable treatment is not substantiated on the facts. - (3) Dismissal of historic evidence[115]The Claimant is not clear about which historic evidence he considers Mrs Greenwood dismissed, but her decision notice makes it plain that she took account of the historic evidence of the difficult relationship between the Claimant and Mr S Patel when re-characterising what might otherwise have been regarded as innocuous behaviour as instead showing a lack of support for the Claimant. The notice included the following: “There is nothing intrinsically offensive in saying “it depends what X means by “assist””. The meaning will always depend on the context… However I can see that in the context of the team conversations, the previous “Our Conversation” meeting and your previous working relationship with [Mr S Patel] that it was inevitable that you would perceive the comment as demonstrating reservations about your carrying out the facilitation role… 27 of 118 For those reasons therefore I find that the email was worded in such a way as to be demeaning and humiliating for you to receive, especially as it was copied to the whole team, and as such represents a form of unintended bullying”.[116]As for Mr Vig, the notice records that: “You felt that sharing the email demonstrated a lack of support for you in your role as Diversity and Inclusion Champion, reinforced by earlier communications where you felt that [Mr Vig] had not support you in the role”.[117]There is a later section of the decision notice entitled “Previous working relationships”, which takes up about a page-and-a-half of the just-over nine page decision notice.[118]The Claimant’s contention that Mrs Greenwood dismissed historic evidence is flatly contradicted by the terms of the decision notice, and so this allegation of less favourable treatment does not succeed. - (4) Inappropriate consideration of the intentions of Mr Vig and Mr S Patel[119]As discussed in more detail below in relation the first Alleged PCP, the Tribunal finds that Mrs Greenwood did not inappropriately take into account the intentions of Mr Vig and Mr S Patel when determining Grievance 1. - (5) Disregarded relevant evidence about the Claimant’s health and wellbeing[120]The Claimant has not specified how he says Mrs Greenwood disregarded evidence of his health and feelings, but the text cited above from her decision notice shows that account was taken by her of the Claimant’s feelings and reactions to the email from Mr S Patel.[121]Similarly, in relation to the complaint concerning Mr Vig, Mrs Greenwood recorded in her decision notice how the Claimant felt unsupported by him in his role as Diversity and Inclusion Champion, and noted his feelings about Mr Vig’s failure to take up the Claimant’s offer to help facilitate the next “Our Conversation” meeting, and the exposure of Mr Vig’s view of him to the team.[122]The Claimant’s feelings were not disregarded – they were taken into account alongside other evidence and weighted by Mrs Greenwood when reaching her views.[123]The Claimant has not stated what health information he considers Mrs Greenwood disregarded. - (6) Did not advise the Claimant of her imminent retirement and so could not be held accountable 28 of 118[124]Mrs Greenwood thought she had advised the Claimant, and/or Mr Watson of her impending retirement, but in any event, the Claimant has not shown that he has been unable to hold Mrs Greenwood to account as a result. She reached her decision, and it was appealed by him, and is now the subject of this Tribunal claim which Mrs Greenwood has attended and given evidence.[125]On the question of whether Mrs Greenwood applied the Alleged PCPs in dealing with Grievance 1, the Respondent denies that she did so. Mrs Greenwood’s evidence is that she not apply the first or second of the Alleged PCPs to the Claimant, and she says that the third Alleged PCP would not have disadvantaged him in any event.[126]Specifically in relation to: a) The first Alleged PCP, that Mrs Greenwood inappropriately took into account the intentions of the subjects of the complaint, i.e., the intentions of Mr Vig and Mr S Patel, when determining Grievance 1:(i) The Respondent and Mrs Greenwood say that she did not. Mrs Greenwood cited the appropriate Policy in her decision notice, including the passage about the subject’s intentions not being relevant to whether bullying has occurred, but she also noted the intentions of the subjects because that is relevant to looking at options for resolution;(ii) Besides the assertion made in the list of issues, the Claimant has not explained why he considers that she did so in his witness statement, his oral evidence to the Tribunal, by his crossexamination of Mrs Greenwood or in submissions.(iii) The Tribunal finds that: Mrs Greenwood’s decision notice recorded that she did consider Mr Vig’s intentions as to whether he intended to demean or humiliate the Claimant by his sharing of the Claimant’s email with the team, but she also considered whether an unintended consequence of his sharing of that email was to demean or humiliate the Claimant. Therefore her consideration also encompassed unintended consequences of the behaviour, as envisaged by the Respondent’s policy; and Mrs Greenwood concluded that, although this was not his intention, Mr S Patel did demean and undermine the Claimant by his comment in his email of 30 September 2020. His intentions were noted but had no bearing on whether the grievance was upheld or not. 29 of 118 The Tribunal therefore finds that Mrs Greenwood did not apply the first Alleged PCP. b) The second Alleged PCP, that Mrs Greenwood was looking for examples of overt discrimination: (i) The Respondent and Mrs Greenwood say she did not do this. (ii) The Claimant did not, in either his own evidence or his crossexamination of Ms Greenwood, assert that Mrs Greenwood was looking for examples of overt discrimination. (iii) The Tribunal has read her decision notice, and notes that Mrs Greenwood recorded the Claimant’s assertion that other people’s perception of him as “aggressive” could be a form of bullying in itself, because it could be linked to the Claimant’s race. Mrs Greenwood engaged with the allegation that the Claimant behaved aggressively, though not with the implication that this was evidence of others using a racial trope. She says that she did not do so because the Claimant had told her that he was not someone who alleged racism but did challenge inappropriate behaviours more widely. Mrs Greenwood said that, for this reason, she understood that the Claimant’s complaint did not encompass her investigating this matter.(iv) Mrs Greenwood was not looking for examples of overt discrimination, and so did not apply the second Alleged PCP. However, if this Alleged PCP should properly be regarded as an assertion by the Claimant that, by looking only for overt examples of race discrimination, Mrs Greenwood failed to investigate matters of less-than-overt race discrimination, the Tribunal finds that she did so. Mrs Greenwood did not consider whether the labelling of the Claimant as “aggressive” was a non-overt act of racism, and she did not do so because she understood the Claimant to not to be pursuing that as part of Grievance 1. Although her witness statement says that “Had I identified any racist behaviours I would have been concerned and asked for advice on whether to include this in my investigation or raise it as a separate issue”, but she did not do so as regards the identification of the Claimant as aggressive. c) The third Alleged PCP, that Mrs Greenwood raised the issue of race even (i) The Respondent says she did not do so. (ii) Mrs Greenwood does not say whether or not she did so. (iii) The Claimant has failed to make any kind of assertion that she did. 30 of 118 (iv) The Tribunal finds, from reviewing her decision notice, that she did not.[127]The first and third of the Alleged PCPs raised by the Claimant were not applied by Mrs Greenwood, and Mrs Greenwood did not look for overt examples of race discrimination. If the second Alleged PCP should properly be regarded as a practice of failing to investigate less-than-overt race discrimination, Mrs Greenwood did apply that second Alleged PCP to the Claimant. The Claimant appealed the outcomes of the grievances, October 2021[128]The Claimant appealed: a) The outcome of Grievance 1 on 12 October 2021; and b) The outcome of Grievance 2 on 21 October 2021.[129]The Appeal Manager for Grievance 2 was Mr Blake, and the Claimant met with him on 8 December 2021. In that meeting the Claimant referred to the fact that one of the outcomes he desired was for Ms Ahmed and Ms Smith to be removed from their posts. Mr Blake outlined that such an outcome was not within his gift to deliver, as he could only decide whether Mr Williams’ decision was an appropriate and reasonable one in the circumstances, and could not “rework” his original decision.[130]The notes of that meeting record the Claimant as having said that if Ms Smith and Ms Ahmed were not removed from their posts, he would “take it outside and is working on an Employment Tribunal application and will also [raise the matter] via Yammer and post outcomes and question why”. Mr Blake responded that he did not think it was appropriate for the Claimant to say that at that meeting, but that the Claimant should take advice from Mr Watson (who was the Claimant’s companion at the meeting). The Religion or Belief Advisory Group, November/December 2021[131]On 16 November 2021 the Claimant submitted an application to become a member of a new Religion or Belief Advisory Group (the RBAG) which the Respondent was looking to establish.[132]The decision-makers as to which applicants were appointed to the RBAG were Ms Ahmed and Mrs Herbert, and in a meeting held by Teams they looked at anonymised applications where applicants were asked to answer: “Please explain why you are interested in this role, what you would bring to the group and how that would contribute to making HMRC more inclusive and a great place to work. 500 words maximum”.[133]The parties disagree about two matters relating to this decision-making process: 31 of 118 a) Whether Ms Ahmed did an ‘initial sift’ of the applications, so that Mrs Herbert’s input was only brought to bear on those applications that had made it through that initial sift; and b) Whether Ms Ahmed recognised the Claimant’s application given its similarity to the application he had made to facilitate the Race Equality Workshops.[134]On the question of whether Ms Ahmed did an initial sift or not: a) Ms Ahmed’s very clear evidence in her written witness statement and orally was that she did not. Ms Ahmed said that all of the applications were considered by her and Mrs Herbert jointly on a Teams call that had been scheduled for perhaps half a day (she was not certain on scheduled length of their meeting), but in fact they scored and reached their decision in less than the allocated time. b) Mrs Herbert’s recollection was less confident – she said that she thought they looked at number of applications after Ms Ahmed had carried out an initial sift, and that they scored the applications together and then checked for a fair spread of beliefs among the highest scoring applicants.[135]The evidence relevant to whether Ms Ahmed carried out an initial sift, or whether Ms Ahmed and Mrs Herbert considered all the applications together is as follows: a) Mrs Herbert could recall looking at applicants’ personal statements (the only application they were required to make). Those personal statements appear in a column of a spreadsheet included in the Bundle. It could be that Mrs Herbert only saw the personal statements and not the spreadsheet, but she was not confident about that (which is understandable, given the passage of time). b) That spreadsheet has been anonymised, but it records more information than applicants’ personal statements – it includes their name, location, grade, and a column with their score, of between 1 and 5. Mrs Herbert accepted that she and Ms Ahmed agreed on the scores between them. The spreadsheet sets out 52 applications, and each of them (except the last one) is scored. This indicates that:(i) Either Ms Ahmed’s initial sift was done by way of scoring, and she and Mrs Herbert scored the remainder; or(ii) They both scored every application (except the last one). c) The witnesses agreed that the exercise took a few hours, maybe a little short of half a day. Given they only needed to consider the personal statements in order to determine the score, it is feasible a few hours was sufficient for all 52 (maximum 500 word) personal statements to be considered and re-examined for consistency in that time. d) The Claimant’s application scored 3, which carried the adjective “average”. 32 of 118[136]As the Gestmin case indicates, assessing the accuracy of Ms Ahmed’s versus Mrs Herbert’s recollections based on their degree of confidence is not a reliable way to determine what happened. Far more reliable is an examination of the contemporaneous documents. The one contemporaneous document we have is the spreadsheet. This indicates that all of the applications (bar one) was scored. If Ms Ahmed had done the initial sift by way of scoring, she would have needed to score all of the applications to do so, and then she and Mrs Herbert would have checked or revisited her provisional scores at their meeting – which neither of them says they did. Far more plausible is that Mrs Herbert and Ms Ahmed together scored all of those applications, and therefore that, as Ms Ahmed has said, she did not carry out an initial sift. The Tribunal finds that Ms Ahmed did not carry out an initial sift.[137]The second dispute is whether Ms Ahmed recognised the Claimant’s anonymised application from among the others, recalling details of what the Claimant had included in his application to become a Race Equality Workshop facilitator. a) The Claimant avers that she did, noting that his application for the Race Equality Workshop facilitation event referred to a then-upcoming “livestream” event he would be presenting at, and he referred to that same event, but by this time having taken place, in his application for the RBAG. The Claimant also noted that, at the time of the RBAG determination, Ms Ahmed was the subject of his appeal against the outcome of Grievance 2, so he would have been memorable to her. b) Ms Ahmed said she did not recognise any of the RBAG applications as being from the Claimant. She said that there was more than a year’s gap between her consideration of the two sets of applications, and that the detail the Claimant said was memorable about his applications was giving a presentation by way of a livestream event, which she said most of the applications she saw would have included. c) Mrs Herbert said that she thought that Ms Ahmed had recognised a couple of the applications, and said they were not suitable for the role, but she did not know whether either of those was the Claimant’s. d) Ms Ahmed’s account is more plausible than the Claimant’s suggestion. Both Ms Ahmed and Mrs Herbert agreed that the applications they considered were anonymised. The Tribunal has already determined that Ms Ahmed did not conduct an initial sift. While the Claimant himself would likely have been memorable to Ms Ahmed given Grievance 2, Ms Ahmed’s evidence was more persuasive than the Claimant’s suggestions about whether his application would “stand out”. The Tribunal finds that Ms Ahmed did not recognise the Claimant’s application to join the RBAG.[138]On 22 December 2021 the Claimant was informed by email that he had not been successful in his application to be part of the RBAG. The Claimant says that: 33 of 118 a) This was an act of direct discrimination because of race (Complaint 17); and b) This was an act of victimisation (Complaint 18).[139]The Claimant asked Mrs Hilton, his mentor and line manager, to seek some feedback on his behalf on why his application was unsuccessful. Mrs Hilton did so on 4 January 2022. Outcome of the Claimant’s appeal relating to Grievance 1, 24 January 2022[140]On 24 January 2022 Mr Redford determined the outcome of the Claimant’s appeal, consisting of 19 grounds, against Mrs Greenwood’s decision into those parts of Grievance 1 which Mrs Greenwood did not uphold. Mr Redford did not uphold the appeal. The Claimant avers that: a) Mr Redford’s handling of and decision concerning the Claimant’s appeal against the Grievance 1 outcome was an act of direct discrimination because of race (Complaint 19); b) When he determined the appeal against Grievance 1 Mr Redford applied the Alleged PCPs, which the Claimant says indirectly discriminated against him as a person of Afro-Caribbean heritage (Complaint 20); c) Mr Redford’s handling of and decision concerning the Claimant’s appeal against the Grievance 1 outcome amounted to harassment related to race (Complaint 21); and d) Mr Redford’s handling of and decision concerning the Claimant’s appeal against the Grievance 1 outcome was a detriment on the ground that the Claimant had made a protected disclosure (Complaint 22). The “handling” complaint in relation to the appeal against Grievance 1[141]The Claimant says that Mr Redford was sent an incorrect version of the terms of reference for Grievance 1.[142]Mr Redford was not presented by the Respondent for cross-examination or Tribunal questions, and so enquiries could not be made of him on this issue, but the email correspondence in the Bundle supported the Claimant’s contention that Mr Redford had been sent a version of the terms of reference for Grievance 1 that had subsequently been amended.[143]The differences between the two terms of reference are: a) The reference to the behaviours of Mr Vig and Mr S Patel being seen in the context of previous interactions with and behaviours displayed towards the Claimant. This was included in the later version, but not in the version sent to Mr Redford; 34 of 118 b) The list of people who evidence was to be considered was shorter in the version sent to Mr Redford, comprising only the Claimant, Mr Vig and Mr Patel. The later version not seen by Mr Redford also included Mrs Hilton, Mr Riley and Mr Sreenivasan; and c) The box for documentary evidence also included, in the later version not seen by Mr Redford, the notes of the Claimant’s meeting with the decision maker of 15 December 2020.[144]The Claimant is concerned by both the outcome of the appeal grounds and a comment made by Mr Redford in the appeal notice in relation to ground 10 (whether Mr Vig harassed the Claimant by forwarding the Claimant’s 29 September 2020 email offering to assist with the facilitation of the to-be-resumed “Our Conversation” meeting, and expressing his view that the team is not “actively anti-racist” to the whole team). The Claimant says that Mr Redford: “directly discriminated against me by stating under point 10 “the email exchange does not concern colour””.[145]This relates to Mr Redford’s statement in his appeal notice that the Claimant’s email to Mr Vig on 29 September 2020 did not “concern colour”, and “nor is it directly related to race beyond the fact that it describes the offer of assistance at a ‘Our Conversation’ meeting generated by HMRC’s Race Equality Action Plan”.[146]The Claimant disagrees with Mr Redford’s assessment, as does the Tribunal. In that email of 29 September 2020, the Claimant made his offer of assistance, but also expressed a view on whether the team is anti-racist. He expressed the view that the team was not actively anti-racist. That email was about race, and colour, because it was expressing a view on whether the team was actively anti-racist.[147]In his written witness statement Mr Redford does not talk about his own approach to determining the Claimant’s appeal, but rather says that he does not believe that Mrs Greenwood, when determining Grievance 1 at the decision notice stage, did not appear to have applied the Alleged PCPs.[148]Mr Redford only provided a written witness statement to the Tribunal, and did not present himself for cross-examination of Tribunal questions, so we have relatively evidence about whether he applied the Alleged PCPs to the Claimant when considering his appeal against those parts of Grievance 1 which Mrs Greenwood had not upheld – we effectively have the terms of the appeal notice, and the parties’ respective interpretations of that notice. 35 of 118[149]In relation to the first Alleged PCP, that Mr Redford inappropriately took into account the intentions of the subjects of the complaint, i.e., the intentions of Mr Vig and Mr S Patel, when determining Grievance 1: a) This was effectively the first of the 19 grounds of the Claimant’s appeal. Mr Redford appeal notice included the following: “In reviewing your appeal, I have considered if the appropriate test around bullying was applied at the decision stage… The test is not determined by the intention of the individual as you have referenced in your appeal but must be based on the facts available, understanding the impact of the action and considering the event(s) holistically.” b) Mr Redford’s role, as appeal manager, was not to re-investigate the substance of Grievance 1, but to consider whether Mrs Greenwood undertook a suitably robust investigation, considered all information available to her, and made an appropriate and reasonable decision. c) Mr Redford noted that Mrs Greenwood interviewed Mr Vig and Mr S Patel, and asked them about their intentions, but he concluded that her purpose in doing so was not to aid her determination about whether bullying had occurred, but rather to understand the context and significance of emails and their impact on the Claimant, and to help think about resolution options. d) Mr Redford concluded that he was confident Mrs Greenwood had applied the correct test – i.e., that she did not take account of Mr Vig or Mr S Patel’s intentions when determining whether bullying had occurred. e) There is nothing to indicate that in coming to this conclusion Mr Redford took account of the intentions of Mr Vig or Mr S Patel – Mr Redford’s focus was on Mrs Greenwood’s assessment. f) The second ground of appeal concerned whether Mrs Greenwood had ignored evidence that Mr Vig undermined the Claimant and his role as a Diversity and Inclusion Champion. This necessarily involved looking at what Mrs Greenwood found was operating on Mr Vig’s mind when he sent the offending email. It was not “inappropriate” for Mr Redford to look at that – he needed to do so in order to determine the ground of appeal. g) None of Mr Redford’s assessment of grounds 3 to 19 show that he took account of the intentions of Mr Vig and/or Mr S Patel, as appropriate, when determining whether to uphold or not the appeal on that ground. h) Therefore the Tribunal concludes that Mr Redford did not apply the first Alleged PCP to his consideration of the appeal on any of the 19 grounds.[150]In relation to second Alleged PCP, that Mr Redford was looking for examples of overt discrimination when determining the Claimant’s appeal against the outcome of Grievance 1: 36 of 118 a) None of the reasoning for Mr Redford’s conclusions on appeal grounds 1 to 9 (inclusive), or 11 to 19 (inclusive) show that Mr Redford was looking for examples of overt discrimination, or indicate that he was ignoring lessthan-overt discrimination. b) The Claimant’s arguments to the Tribunal focused on Mr Redford’s response to ground 10, where Mr Redford disagreed with the Claimant that Mr Vig’s action in sharing an email relating to the subject of race (being about the “Our Conversation” meeting) was, by its nature, related to race. Instead Mr Redford concluded – agreeing with Mrs Greenwood on this point – that the relevant question is whether Mr Vig was motivated, consciously or unconsciously, by considerations of race, or related to race, when he shared that email. That was not Mr Redford (or indeed, Mrs Greenwood) looking for examples of overt discrimination, but looking at the action complained of – the sharing of the email – and assessing whether this related to race. He concluded it did not (as had Mrs Greenwood at the initial decision stage). The Tribunal disagrees with Mr Redford that the underlying email was not related to race – it was, as the Claimant offered his view on whether the team was anti-racist – but Mr Redford’s real examination, as he goes on to clarify, was whether the sharing of the Claimant’s email was related to race, and he reasonably concluded that it was not. He was not looking for examples of overt discrimination, but characterising the motivation behind Mr Vig’s sharing of the Claimant’s email, and finding it was not related to race. c) Therefore the Tribunal finds that Mr Redford did not apply the second Alleged PCP to any of the grounds of appeal.[151]In relation to third Alleged PCP, that Mr Redford raised the issue of race even a) Mr Redford did not “raise” the issue of race in relation to any of appeal grounds 1 to 19 (inclusive) – where race was discussed it was because the ground of appeal raised it. b) The Claimant has said that Mr Redford inappropriately referred to his colour in relation to the tenth ground of appeal – but that is not correct. The Claimant had complained of harassment under the 2010 Act, and for harassment to come within that Act it must be “related to” a protected characteristic. It was perfectly proper and necessary for Mr Redford to refer to the Claimant’s race, and he did so in terms that he understood the Claimant to prefer, being a “man of colour”. This was not an instance of Mr Redford raising the issue of race where it had not been referred to in the grievance – it had been.[152]In summary, the Tribunal finds that Mr Redford did not apply any of the Alleged PCPs when he determined the Claimant’s appeal against the outcomes of Grievance 1 that were not upheld. 37 of 118 The initial Yammer post, 4 February 2022[153]On 4 February 2022, after asking: a) Anthony Riley, a colleague of the Claimant’s who was a Grade 6 Team Leader/manager at the time; and b) Mrs Hilton, to review it – both of whom did so, the Claimant posted a piece on the Respondent’s Yammer RACE Network site.[154]Yammer is a public internet platform used within the Respondent’s organisation for members to discuss, debate and share knowledge. At the time, there were about 80,000 users of the Respondent’s Yammer platform, around a quarter of whom were outside of the Respondent’s direct workforce (such as agencies, contractors and IT partners). The evidence of Mrs Cecil (unchallenged on this point) is that there were hundreds of communities set up within the Respondent’s Yammer platform to discuss matters such as race, gender identity, hobbies, and pets, as well as aspects of the work done by the Respondent organisation).[155]The unchallenged evidence of Mrs Cecil was that the Yammer Usage Principles would pop up every three to six months when logging into the platform, and users were required to accept these.[156]The piece was entitled “Is HMRC Institutionally “Discriminatory” and not “Racist”? Or Is the system broken or corrupted?”, and excerpts included: a) “I am inclined to think that as a department HMRC is “Institutionally Discriminatory””. b) “In my experience HMRC’s HR Department appears only interested in recognising, although not always suitably addressing “Overt Discrimination or Racism”. The practices applied by HR’s appointed “Decision and Appeal Managers” are discriminatory and displays an ignorance of their own published HR guidance. This is apparent in the way they investigate concerns/grievances raised which relate to “Bullying and Harassment”.” c) “It would appear to me in view of my lived experiences, that HMRC’s HR Department’s practices are designed to heavily side with the accused”. d) “HMRC’s HR Departments practice is a blatant and abhorrent failure to recognise and comply with Chapter 7 of Employment Statutory code of practice and ensure HMRC is not failing in its legal obligation to protected “Black, Asian and Minority Ethnic” and other colleagues who have a protected characteristic under the Protected from Harassment Act 1997.” e) “I truly believe that HMRC’s HR Department is applying a practice which is discriminatory” (the Claimant’s Yammer Post). 38 of 118[157]The Claimant’s Yammer Post prompted some concern on the part of the Respondent, which culminated in a telephone call by Mrs Cecil, Kholoud Htewash (administrator of the Yammer Race Network) and Victoria Rawnsley (one of the Co-chairs of the Race Network) to Mrs Hilton, as the Claimant’s manager. Mrs Hilton was asked to ask the Claimant to remove his post from the Yammer site because it was “potentially defamatory”. Ms Smith did not attend this call or, Mrs Cecil says, have any input on the Respondent’s response to the Claimant’s Yammer Post on 4 February 2022, because Ms Smith was on annual leave on that date.[158]Following that meeting the Claimant and Mrs Hilton discussed the concerns relayed to her, and the Claimant agreed to take the post down pending a discussion with the concerned people at the Respondent about why they considered the post to be “potentially defamatory”.[159]The Claimant estimates, and the Respondent has not disputed, that the post was on the Respondent’s RACE Network Yammer site for less than an hour.[160]The Claimant says that addressing his post on Yammer as “potentially defamatory” was: a) An act of harassment related to race (Complaint 23); and b) An act of victimisation (Complaint 24).[161]The Claimant and Mrs Hilton met with Ms Rawnsley and Mrs Herbert (as the cochairs of the Respondent’s Race Network) on 7 February 2022 to discuss the matter. Neither Ms Rawnsley nor Mrs Herbert was able to clarify why the post had been identified as “potentially defamatory”, but they said that they were concerned the post could damage the Respondent’s reputation if it were publicly disclosed pursuant a Freedom of Information request. Mrs Herbert told the others in this meeting that she understood that the Claimant had an Employment Tribunal case.[162]The Claimant met with Hitesh Patel, the Respondent’s Race Delivery Director, to discuss the matter on 14 February 2022.[163]The Claimant emailed Ms Rawnsley, copying Mr H Patel, along with Penny Ciniewicz (the Respondent’s Race Champion) and Mrs Herbert, on 16 February 2022 seeking clarification as to why the post was seen as “defamatory”. “Whistleblowing”, 16 February 2022[164]The Claimant submitted a “whistleblowing concern” to Trish Kelly of the Respondent on 16 February 2022 (the Report). The Report alleged that the Respondent’s HR department applied a practice of allowing people determining grievances and grievance appeals: a) To consider the intentions of people accused of bullying and harassment; 39 of 118 b) To dismiss/ignore evidence of historic incidents which, if taken into account, would assist the complainant in establishing bullying and harassment; and c) To decide that unwanted conduct towards Black, Asian or Minority Ethnic (BAME) “or other employee, which relates to a protected characteristic they possess and has the effect of violating a colleagues dignity, creating an intimidating, hostile environment etc…” is not unlawful harassment under the EHRC Code, each of which the Claimant said contradicted the Respondent’s guidance and was discriminatory.[165]The Claimant considered this meant that the Respondent was in breach of: a) The Protection from Harassment Act 1997; b) The EHRC Code; c) The Civil Service Code; and d) The 2010 Act.[166]The Claimant says, and the Respondent accepts, that this was a protected disclosure.[167]This matter was assigned to Briony Kernan, a Deputy Director in the Respondent’s Solicitor’s office, to consider in accordance with the Respondent’s whistleblowing policy. A third grievance, 16 February 2022[168]Also on 16 February 2022 the Claimant submitted a grievance regarding: a) Organisational management decisions which affected the Claimant; and b) Other actions which the Claimant said did not meet the Respondent’s Standards of Conduct, citing Mr Redford’s appeal outcome regarding Grievance 1. The Claimant says that this was a protected act for victimisation purposes (PA 2), though this is disputed by the Respondent. Subject access request, 1 March 2022[169]The Claimant submitted a subject access request on 1 March 2022. 40 of 118 Early Conciliation pertaining to the First Claim, March 2022[170]After contacting ACAS, a period of ACAS Early Conciliation in respect of the dispute that resulted in the First Claim began on 2 March and ended on 23 March The second Yammer post, 3 March 2022[171]Mr H Patel sent an email to the Claimant (and others) on 3 March 2022, which responded to queries sent to him by the Claimant. Mr H Patel wrote: a) “You asked me if your proposed post was defamatory. I’m not a lawyer, so this is my personal view… I don’t think there was anything you said about these individuals that would harm their reputations… I also looked to see if you said something that implicated , without naming them , someone who could be identified. I don’t think you’ve made any such comments. So I don’t think the post was defamatory about any individuals.” b) “I did think about any potential reputational damage [for the Respondent]… You set a fair challenge and I would agree with you that we need to do more… and I would also say that there us much we have done over the last 12 months . Nothing here so far that should not be aired on Yammer. Then there are a series of issues you bring up , which I think deserve a balancing view from HMRC: Conferring intent on the HR department… There are a series of examples you give where you say that HR practices are discriminatory, contradict our own published guidance and against the Equality Act 2010.”[172]Mr H Patel suggested that he and the Claimant, together with the people involved in the requested deletion of the Claimant’s Yammer Post, attended a call so the concerns of those people could be explained to him and the Claimant.[173]The Claimant emailed Mr H Patel on 8 March 2022, informing him that he would repost the Claimant’s Yammer Post, given that some time had passed since he agreed to take it down in February.[174]The Claimant reposted the Claimant’s Yammer Post (without amendment) on 9 March 2022.[175]Ms Smith became aware of the Claimant’s Yammer Post and informed Mrs Cecil as the Yammer Community Manager on 10 March 2022 that it had been reposted. Ms Smith wrote, in an instant message chat conversation: “I think we are likely to be asking him again to remove or removing it ourselves. Do you have a view? Assuming you will maintain it is no consistent with your usage policy and should be removed.” 41 of 118[176]Mrs Cecil replied within 40 minutes, at 11:06, and her reply included: “I absolutely do not think that Yammer is the correct platform for this… my view is this should be deleted… I am particularly concerned about HMRC’s reputation perspective… … it is not professional or respectful to colleagues (decision and appeals managers) dealing with disputes, nor to our HR policy colleagues. It is not concise, he is not taking care in expressing his views that could be triggering for others, there is a lack of judgement and discretion in my opinion. It is right for our colleague to raise concerns, but, what is the underlying objective of posting this on Yammer? It is not a brief and balanced post to open up a discussion that could lead to change… This does not feel like it is a discussion which is going to lead to a safe an supportive conversation, it feels like he’s airing his own grievances which Yammer is not there to do.”[177]Later in the same ‘chat’ Ms Smith wrote: “ok Lyndsay - I have spoken with Toni. She thinks that this is a decision for Comms, and your justification is robust… I can’t personally get involved for reasons I mentioned privately.”[178]The Claimant avers that this reference to “reasons I mentioned privately” is a reference to a conversation where Ms Smith informed Mrs Cecil that the Claimant had raised a grievance against her (Ms Smith).[179]Mrs Cecil deleted the Claimant’s Yammer Post and confirmed this in writing to the Claimant at 12:59 on 10 March 2022. Mrs Cecil told the Claimant that the reason she deleted it was that it breached the Yammer Usage Principles and policies linked to it. Her email included: “It is right for you to raise concerns, and we have several ways in HMRC in which you can do this… your manager or Expert Advice Service can help you with these.”[180]The Claimant alleges that this act: a) Amounted to harassment related to race (Complaint 25); and b) Was a detriment because he had done a protected act, i.e., was victimisation, because he says that Mrs Cecil deleted the Claimant’s Yammer Post because the Claimant had raised a grievance against Ms Smith (Complaint 26).[181]A little later in the day Mrs Cecil messaged Ms Smith: “I’ve had a reply from the manager, copying in Hitesh and a few others, and mentioning an Employment Tribunal as well as a few other points”. 42 of 118 Outcome of the Claimant’s appeal relating to Grievance 2, 11 March 2022[182]Mr Blake determined the Claimant’s 11 grounds of appeal against the outcome of Grievance 2 on 11 March 2022 – they were not upheld. The Claimant avers that: a) The handling of and decision pertaining to the Claimant’s appeal against the outcome of Grievance 2 by Mr Blake on 11 March 2022 was an act of direct discrimination because of race (Complaint 27); b) Mr Blake’s decision followed his application of the Alleged PCPs in dealing with the appeal against Grievance 2, which the Claimant says indirectly discriminated against him as a person of Afro-Caribbean heritage (Complaint 28); c) The handling of and decision pertaining to the Claimant’s appeal against the outcome of Grievance 2 by Mr Blake on 11 March 2022 was an act of harassment related to race (Complaint 29); d) The handling of and decision pertaining to the Claimant’s appeal against the outcome of Grievance 2 by Mr Blake on 11 March 2022 was a detriment to which the Claimant was subjected because he had done a protected act, i.e., an act of victimisation (Complaint 30); and e) The handling of and decision pertaining to the Claimant’s appeal against the outcome of Grievance 2 by Mr Blake on 11 March 2022 was a detriment to which he was subjected on the ground that he had made a protected disclosure (Complaint 31).[183]The Claimant makes two “handling” complaints in respect of Mr Blake’s consideration of the appeal against the outcome of Grievance 2: a) That Mr Blake was not a suitable person to hear the Claimant’s appeal, as he and Mr Williams were both members of the same Senior Leadership Team, both managed by Mr Redford – i.e., there was a relevant conflict of interest; and b) That no terms of reference had been agreed in relation to Grievance 2.[184]On the first, Mr Blake’s evidence was that he and Mr Williams only came under the same management in May 2022, i.e., after the appeal outcome had been reached. The Tribunal finds that the Claimant has not proven that there was any conflict of interest that rendered Mr Blake an inappropriate person to hear and determine the appeal against the outcome of Grievance 2.[185]On the second, the Tribunal has already concluded that the absence of a formal terms of reference document did not disadvantage the Claimant. 43 of 118[186]The Claimant has made broad criticisms of Mr Blake’s conclusions (“In this [appeal] notice [Mr Blake] continued to victimise and discriminate against me regarding the formal concern dated 25 January 2021… and failed to address my appeal in line with and provide an appeal decision which accords with the Respondents own guidance, policy and UK employment law”).[187]The only complaint about the appeal outcome that the Claimant makes that is specific enough to be considered by this Tribunal is as follows: In the appeal notice, in his conclusion on ground 3 of the appeal (that the feedback given to the Claimant on his performance at the Race Equality Workshop facilitation event was based on inaccurate information) Mr Blake wrote: “in my opinion, this does not meet the definition of harassment as the feedback related to your facilitation skills and did not relate to the protected characteristic of race”. This, the Claimant avers, was direct discrimination, because the feedback given related to the Claimant’s understanding of and concepts of “race” as a protected characteristic which the Claimant posses.[188]The parties disagree on whether Mr Blake applied the Alleged PCPs to the Claimant when taking his decision on the grounds of appeal the Claimant raised against those parts of Grievance 2 that Mr Williams did not uphold. The Respondent and Mr Blake contend that he did not, and the Claimant says that he did.[189]In relation to the first Alleged PCP, that Mr Blake inappropriately took into account the intentions of the subjects of the complaint, i.e., the intentions of Ms Smith and Ms Ahmed, when determining the appeal against the outcome of Grievance 2: a) Mr Blake did not apply the first Alleged PCP in relation to grounds 1, 3 to 5 (inclusive), or 7 to 10 (inclusive) – he did not take account of the intentions of Ms Smith and/or Ms Ahmed (as appropriate). b) The second ground of appeal related to the action Ms Smith took in copying her feedback email to the Claimant to a senior employee of the Respondent, Kate Rudd, whom Ms Smith mistakenly understood to have supported the Claimant’s application to become a Race Equality Workshop facilitator.(i) Mr Williams’ conclusion was that this mistake was avoidable had Ms Smith taken more care and checked the position, but that it was a mistake, rather than a calculated decision to negatively influence 44 of 118 how the Claimant was perceived by a senior leader. Despite taking account of Ms Smith’s intention, Mr Williams upheld this aspect of Grievance 2, so it did not affect the outcome of that complaint, but he also determined it was not an act of bullying. This latter conclusion was challenged by the Claimant in his second ground of(ii) Mr Blake observed that Mr Williams had not allowed Ms Smith’s intentions to affect his conclusion as to whether the complaint should be upheld – it was upheld - agreed with Mr Williams’ conclusion that Ms Smith’s mistake and lack of sufficient care did not equate to bullying.(iii) While the Respondent’s Policy says that “The intention of the bully/bullies is irrelevant when determining whether bullying has occurred”, Ms Smith’s intentions were taken into account by Mr Williams when determining whether she bullied the Claimant by sharing the email with Ms Rudd, and Mr Blake considered this appropriate. Logically, this must be correct – Mr Williams determined that a mistake had occurred, and that the action of sharing the feedback was not “Offensive, intimidating, malicious or insulting behaviour, an abuse of misuse of power through means that undermine, humiliate, denigrate or injure the recipient”, but rather the result of an avoidable misunderstanding. However, this approach was at odds with the terms of the Respondent’s Policy.(iv) Mr Blake, in determining the second ground of the Claimant’s appeal, did take account of Ms Smith’s intentions. c) The sixth ground of appeal was that Ms Smith displayed confirmation bias in relying on the assessment of her colleague, Ms Ahmed, of the quality of your performance in the workshop. Examining this complaint necessarily involved consideration of Ms Smith’s conscious motivations for doing so, and so her intention was relevant to the determination of your complaint. This does not support the Claimant’s contention that Mr Blake “inappropriately” took account of the subject’s intentions – it was appropriate to do so where that was part of the Claimant’s complaint. d) Similarly, Mr Blake’s consideration of complaint 11 required him to examine to reasons why Ms Smith and Ms Ahmed gave the Claimant feedback on his performance at the Race Equality Workshop facilitation event. This was because of the points made by Mr Watson (that relevant evidence supplied by the Claimant was ignored because of his race) and the Claimant (that feedback was given to him because of a belief he holds or because of his race). It was not “inappropriate” for Mr Blake to take account of the intentions of Ms Smith and Ms Ahmed in the circumstances – in fact, it was required to determine the complaint. 45 of 118 e) The Tribunal therefore finds that Mr Blake did not take account of the subject’s intentions when determining 10 out of the 11 grounds of appeal to Grievance 2, but did take account of the subject’s intentions in relation to ground 2.[190]In relation to the second Alleged PCP, that Mr Blake was looking for examples of overt discrimination when determining the appeal against the outcome of Grievance 2: a) Mr Blake did not apply the second Alleged PCP to the determination of grounds 1 to 10 (inclusive) of the Claimant’s appeal. b) The eleventh ground of appeal was that Mr Williams ignored the Claimant’s evidence that the actions of Ms Smith and Ms Ahmed affected his mental health and wellbeing. As part of that assessment Mr Blake considered the point raised by Mr Watson that this was because of the Claimant’s race, and the point Mr Blake understood the Claimant to have made, that the feedback given to him was about either his belief or his race. While Mr Blake did not uphold the ground of complaint or find the points made by Mr Watson or the Claimant to be well-founded, that is not because Mr Blake was looking for overt discrimination, but rather because he attributed the actions of Ms Smith and Ms Ahmed to the feedback they were giving on how the Claimant presented himself in the Race Equality Workshop. c) Mr Blake did not apply the second Alleged PCP to any of the grounds of complaint raised by the Claimant.[191]In relation to the third Alleged PCP, that Mr Blake raised the issue of race even a) Mr Blake did not do this in relation to any of grounds 1 to 11 (inclusive) of the Claimant’s appeal. Where race was considered, it was because the Claimant or Mr Watson had raised it. b) Mr Blake did not apply the third Alleged PCP to his consideration of any of the Claimant’s 11 grounds of appeal regarding the outcome of Grievance 2. A fourth grievance, 14 March 2022[192]The Claimant raised a further grievance on 14 March 2022 about the appeal outcome relating to Grievance 2, determined by Mr Blake. The Claimant said: a) He did not understand how the decision was reached; b) He did not think the rationale for the decision was right; c) The right information was not considered; 46 of 118 d) There is no right of appeal against the decision; and e) “I believe I have observed and been subject to conduct that would go against HMRC’s conduct policies and procedures, observed and been subject to actions that are specifically referenced in HMRC’s “Upholding our Standards of Conduct policy as potentially constituting misconduct/or gross misconduct.”[193]The Respondent’s grievance form has various categories of concern for complainants to choose from, and the Claimant categorised his concerns as: a) Concerns about “Organisational management decisions which affect me”; and b) Concerns about “other actions that do not meet our standards of conduct”.[194]This, the Claimant asserts, was a protected act (PA3). The Respondent does not accept that this was a protected act. A fifth grievance, 15 March 2022[195]The Claimant raised another grievance the following day, on 15 March 2022, relating to his unsuccessful application to be part of the RBAG. The Claimant said that Ms Ahmed, having been the subject of a grievance raised by him (Grievance 2), was involved in determining his application to join the RBAG, and that he believed he had: “been treated unfairly due to a perceived view regarding my views relating to my belief(s) and because I have raised genuine concerns about wrongdoing in a responsible manner.”[196]The Claimant categorised these concerns as: a) Concerns about “Organisational management decisions which affect me”; b) “Discrimination or victimisation”; c) Concerns about “other actions that do not meet our standards of conduct”; and d) “Worries [he] can’t place”.[197]It is accepted by the Respondent that this was a protected act (PA4). Review of the Claimant’s Yammer Post, 17 March 2022[198]The Respondent’s Head of Internal and Change Communications (part of Mrs Cecil’s line management team) commissioned a review of the Claimant’s Yammer Post and what action, if any, ought to have been taken. Although the 47 of 118 Respondent describes this as an “independent” review, it was carried out by Emma Mouchet, the Respondent’s Senior Strategic Communications Manager.[199]Ms Mouchet’s review of the Claimant’s Yammer Post in light of the Respondent’s Yammer Usage Principles was completed on 17 March 2022, and she concluded that: a) It diverged from those principles on a number of bases; b) The post was not consistent with the Civil Service Code or the Respondent’s values. Specifically, Ms Mouchet considered that there were a number of statements within the Claimant’s Yammer Post “which could be viewed as defamatory”, and she listed five excerpts that this applied to; and c) She (Ms Mouchet) would have removed the Claimant’s Yammer Post had she acted as the relevant Yammer community moderator.[200]Ms Mouchet noted that: “Our Commitments are clear that sharing concerns is the right thing to do. Perhaps in this case the individual needs additional support – from HR / his LM (not Comms) – to understand the right channels through which to share his concerns in order to have them addressed.”[201]Mrs Cecil’s evidence to the Tribunal was clear that she did not suggest another means by which the Claimant could raise the concerns he was seeking to air by the Claimant’s Yammer Post. Subject access request response, 25 March 2022[202]The Respondent sent various documents to the Claimant in response to his subject access request on 25 March 2022. Among them was a copy of the note made on the Respondent’s case management application for its HR EAS team made by Mrs Turner on 20 October 2020.[203]The Claimant sent some queries about that response on 4 April 2022, and received a response the following day. The Claimant raised some further questions on 20 April 2022, and those questions were passed to Ms Kernan to address. A sixth grievance, 4 April 2022[204]The Claimant raised a grievance against Mrs Cecil on 4 April 2022 relating to her handling of the Claimant’s Yammer Post, both in relation to the response to its initial posting and to its deletion on 10 March 2022. Ms Kernan was appointed to be the Decision Manager for this grievance (although the matter later passed to a colleague to determine). 48 of 118 Feedback regarding the RBAG application, 6 April 2022[205]Ms Ahmed provided some feedback to Mrs Hilton on the Claimant’s RBAG application on 6 April 2022. Ms Ahmed noted, among other things: a) The question (really questions) applicants were asked to address; b) That the Claimant’s application was not as strong as others; and c) That the Claimant’s application would have been stronger if he had included more than a single sentence about how he would bring his experience and knowledge to the group. The First Claim, 20 April 2022[206]The Claimant presented the First Claim on 20 April 2022. The First Claim complained of race discrimination, discrimination on the ground of religion or belief, and victimisation, and cited: a) The rejection of the Claimant’s application to join RBAG, which occurred on 22 December 2021; b) The handling of Grievance 1 at both decision (29 September 2021) and appeal (25 January 2022) stages; c) The labelling of the Claimant’s Yammer Post as “potentially defamatory” on 4 February 2022; d) The removal of the Claimant’s Yammer Post on 10 March 2022; and e) The handling of Grievance 2 at both decision (20 September 2021) and appeal (11 March 2022) stages.[207]The First Claim did not complain of protected disclosure detriment, or complain about the telephone call made by Mr S Patel to the Respondent’s HR EAS team, or the note made by Mrs Turner on the EAS team’s case management system, both of which occurred on 20 October 2020. A seventh grievance, 27 June 2022[208]The Claimant raised a further grievance on 27 June 2022, citing the note on the EAS case management application made by Mrs Turner on 20 October 2020 following her call with Mr S Patel, which the Claimant says: a) Contained unevidenced, discriminatory and defamatory assertions/ accusations; and b) Prejudiced the outcomes of Grievance 1 and Grievance 2.[209]The Claimant categorised these concerns as: a) Concerns about “Organisational management decisions which affect me”; 49 of 118 b) “Bullying, harassment, discrimination and victimisation”; and c) Concerns about “other actions that do not meet our standards of conduct”.[210]The Respondent accepts that this was a protected act (PA5).[211]The Respondent determined that this would be treated as part of the Claimant’s whistleblowing complaint, of 16 February 2022. Early Conciliation pertaining to the Second Claim, June/July 2022[212]After contacting ACAS, a period of ACAS Early Conciliation in respect of the dispute that resulted in the Second Claim began on 28 June and ended on 7 July The Second Claim, 13 July 2022[213]The Claimant presented the Second Claim on 13 July 2022. This claim complained about: a) The same incidents that were the subject of the First Claim; and b) The telephone call made by Mr S Patel to the Respondent’s HR EAS team, and the note made by Mrs Turner on the EAS team’s case management system, both of which occurred on 20 October 2020.[214]The legal complaints raised in the Second Claim were of race discrimination, discrimination on the ground of religion or belief, victimisation and protected disclosure detriment. Ms Kernan’s initial discussion with the Claimant, July 2022[215]Ms Kernan met with the Claimant, accompanied by Mr Watson, on 13 July 2022 to discuss the whistleblowing concern, the sixth grievance and the Claimant’s questions arising out of the subject access requests response. Ms Kernan met with Mrs Cecil, 21 October 2022[216]Ms Kernan held a fact-finding meeting with Mrs Cecil in relation to the sixth grievance.[217]In relation to the initial Claimant’s Yammer Post on 4 February 2022, Mrs Cecil told Ms Kernan: “We could have deleted it, the [Race Network] admin could have deleted it, but we didn’t want [the Claimant] to feel silenced. Victoria [Rawnsley, the Co-chair of the Race Network] had promised to take [the matter] forward next week. [The 50 of 118 Claimant] deleted it (the post). We were coming up with a plan of what to do to monitor responses if [the Claimant] chose not to delete it. We were trying to sort out who would do what over the weekend, but then he deleted it quite quickly afterwards and I thought that was the end of it.”[218]Ms Kernan noted that “One of the concerns is that you said the post was defamatory and [the Claimant] doesn’t understand why. What was the thinking behind that?”[219]Mrs Cecil replied: “Perhaps I chose the wrong word. Last thing on a Friday you aren’t at your sharpest with zero notice or prep. Definitely reviewing it again, I think it would be reputationally damaging for HMRC. If I were to go through the principles again, I would pick out several elements that make it inappropriate to be on Yammer. It’s not the correct platform.”[220]The instant message ‘chat’ between Mrs Cecil and Ms Smith that took place on 10 March 2022 was discussed as part of that meeting. The notes record Mrs Cecil as telling Ms Kernan: “[Ms Smith] said they were leaving it to Comms and that she assumed I would act as I had done before in thinking it wasn’t right for Yammer. Gillian didn’t tell me what to do, I made the decision myself for all the reasons I had dine before. If nothing else, it was the longest post I’ve ever seen on Yammer. It is supposed to be for brief posts or knowledge sharing. It would not have led to a safe supportive debate. Yammer is not the right platform for airing grievances. Experts had left it up to Comms and I felt confident that it wasn’t right for Yammer. I deleted the post and wrote to him and copying in his manager.” Ms Kernan met with Ms Smith, 16 August 2023[221]Ms Kernan met with Ms Smith on 16 August 2023, as part of the fact-finding process relating to the Claimant’s sixth grievance. In that meeting, Ms Kernan brought up the deletion of the Claimant’s Yammer Post on 10 March 2022, and the instant message ‘chat’ between Ms Smith and Mrs Cecil that preceded it. “BK – You contact Lyndsay at 10:29 and say that you are waiting to discuss it with Toni at 12. What made you think likely course of action was to remove the post? GS – I understood it to be the same article with no amendments. BK – Lyndsay comes back and says she is willing to take a steer from you but that her view is that it should be deleted and she goes through why and then you say that you agree and will speal to Toni and revert. Can you remember the conversation between you and Toni? GS – Toni said the decision wasn’t for us in the ED&I policy team as it was about the Yammer Usage Principles and therefore it was for the Comms team. 51 of 118 BK – Ok, so you go back to Lyndsay on that basis and say that it is a decision for Comms and that her reasons are robust. You also say that you can’t personally get involved for reasons you mentioned privately. GS – I think she phoned me because she was trying to get an answer urgently, but I couldn’t give an answer as Toni was in other meetings. The reason I mentioned privately was the grievance being dealt with where I was the cause of the complaint. I didn’t want to get involved because it would further complicate matters.” Key dealings with the Employment Tribunal[222]A Preliminary Hearing for Case Management took place on 24 October 2022 before Employment Judge Siddall.[223]A second Preliminary Hearing for Case Management took place on 21 February 2024 before Employment Judge McCluskey. On the same date EJ McCluskey dismissed the Claimant’s complaints of discrimination on the ground of religion or belief following their withdrawal by the Claimant.[224]A further hearing was held on 17 October 2024, and an (at that time) agreed list of issues was filed with the Tribunal on 23 October 2024. Overarching factual questions about the Alleged PCPs[225]The Tribunal is required to determine whether the Respondent generally had practices described in the Alleged PCPs, in the sense of applying them to persons other than the Claimant. Taking each in turn: a) The first Alleged PCP, that the Respondent had a practice of inappropriately taking into account the intentions of the subjects of complaints when determining grievances or grievance appeals:(i) The only evidence relating to this matter is the treatment of Grievance 1 by Mrs Greenwood, the treatment of the appeal of that grievance outcome by Mr Redford, the treatment of Grievance 2 by Mr Williams, and the treatment of the appeal of that grievance outcome by Mr Blake. There is no evidence put forward of any practice by the Respondent applying to anyone other than the Claimant, despite the fact that this Alleged PCP is clearly capable of applying to the Respondent’s handling of all grievances.(ii) As noted above, the Tribunal has concluded that the first Alleged PCP: Was not applied by Mrs Greenwood in her decision on Grievance 1; 52 of 118 Was applied by Mr Williams to two of the grounds for Grievance 2 but not in relation to the other 8; Was not applied by Mr Redford to his consideration of the Claimant’s 19 grounds of appeal pertaining to Grievance 1; and Was applied by Mr Blake in relation to one out of the 11 grounds of appeal pertaining to Grievance 2.(iii) This is evidence only pertaining to the Claimant, and shows the intention of the subject of the grievance affecting the outcome only in a small minority of cases. It does not support the Claimant’s contention that there was a “practice” either within the Respondent organisation generally of decision managers and appeal managers dealing with grievances of inappropriately taking into account the intentions of the subjects when determining those grievances, or of these or any of these decision managers generally applying such a practice. This is so even though the Claimant, through his crossexamination of three of the four of them, established that each is an experienced decision manager and appeal manager, having performed that role on a number of other occasions. The witness statement of the one person who was not available for crossexamination – Mr Redford – states that he has dealt with many grievances.(iv) The Tribunal consequently finds there was no such practice within the Respondent’s organisation, by this group of decision and appeal managers generally, or by the individual decision managers and appeal managers generally. There is no evidence of any such practice in relation to any person other than the Claimant, and there is little evidence of that. b) The second Alleged PCP, that the Respondent had a practice generally of looking for examples of overt discrimination: (i) The Respondent in submissions said that this practice has not been shown to exist and that its guidance says the contrary. Those submissions refer to parts of the Respondent’s aforementioned Policy, which appears in the Bundle, and which notes that discrimination or bullying is not always immediately obvious, that it can be overt or subtle, and that it can be unintentional. (ii) Mr Williams’ witness statement says that the Respondent does operate a practice of looking at examples of overt racism. He says “Racism would be dealt with if it was raised as a concern either informally or formally. HMRC staff are also encouraged to be an 53 of 118 active bystander and challenge if we see overt racism… However, that obligation is not confined to overt racism.” (iii) These reveal the different ways that the practice alleged by the Claimant has been interpreted. By criticising the Respondent for the practice he alleges, the Claimant seems to be saying that the Respondent operates a practice of looking for overt discrimination to the exclusion of more subtle forms of discrimination, whereas Mr Williams interpreted the allegation more literally – in the terms set in the list of issues (as the allegation is not clear from the Claimant’s pleadings) – that the Respondent actively looks out for overt racism as part of its expectation that its staff will tackle all forms of racism. Mr Williams’ position is therefore not inconsistent with the submissions made by the Respondent’s Counsel, but rather reflects the ambiguity of the asserted PCP. (iv) If the second Alleged PCP is interpreted literally, that the Respondent had a practice of looking for overt discrimination, none of Mrs Greenwood, Mr Williams, Mr Redford or Mr Blake demonstrated this practice. There is no evidence before the Tribunal that this practice was applied in a single instance, let alone that it was a general practice applied by them generally, or generally within the Respondent’s organisation.(v) If the second Alleged PCP is interpreted in the way that the Tribunal considers the Claimant is now presenting – that by focusing on looking for overt discrimination the Respondent’s decision managers and appeal managers neglect to consider whether the behaviour complained of amounts to less-than-overt discrimination – the Claimant has pointed to only a single instance of this, whereby Mrs Greenwood did not investigate whether the characterisation of the Claimant’s behaviour as “aggressive” by some of the people involved in Grievance 1 involved reliance on a racial trope. (It is noteworthy that this was not a matter the Claimant complained of when he appealed that grievance.) This single instance is insufficient to establish that the Respondent or Mrs Greenwood had a general practice of looking for overt discrimination and neglecting less-than-overt discrimination when determining grievances and grievance appeals. The Tribunal finds that there was no such practice in the Respondent’s organisation. c) The third Alleged PCP, that the Respondent had a general practice of raising the issue of race even where this had not been referred in a grievance: (i) No evidence has been provided of the Respondent, these decision and appeal managers as a group, or each of them individually, 54 of 118 applying this third Alleged PCP to the Claimant or anyone else. The Tribunal finds that the Respondent operated no such practice. Are there any inferences of discrimination that should properly be drawn from considering the totality of the primary facts?[226]The Tribunal is conscious that, as observed by Neill LJ in King, direct evidence of discrimination is unusual, but it does not mean that discrimination has not occurred. The Tribunal therefore needs to consider, in light of the totality of the primary facts (those agreed by the parties together with those found by the Tribunal), whether it is appropriate for it to infer from those facts, and all the circumstances of the case, that there was a racial ground for the acts the Claimant complains of (Qureshi). The Tribunal is also reminded that any inferences drawn must be based on evidence, not by making use (without evidence) of a verbal formula such as ‘institutional discrimination’ (Stockton on Tees BC v Aylott [2010] ICR 1278).[227]There were aspects of the factual matrix, and other circumstances of the case (namely, aspects of oral evidence before the Tribunal), that gave us initial cause for concern: a) There is a difficult factual background that underlies the complaints made here – that the Claimant, and other witnesses, have said that the previous leader of the team before Mr Vig was racist. The manner in which that racism was expressed, according to the evidence of Mr Sreenivasan, was that inflammatory language was used in team meetings, including the use of the word “Paki” in the presence of team members of South Asian heritage. Notes of a meeting between Mr Sreenivasan and Mrs Greenwood (this part not referred to in evidence) record Mr Sreenivasan as telling Mrs Greenwood that that previous team leader referred to the Claimant as “Boy”. If such language was used, that is shocking and appalling, and it would cast a long shadow over the relationship of the Claimant and Mr Sreenivasan and others affected by it. The Tribunal is conscious that that previous team leader was not a witness in these proceedings, and nor were the matters relating to him a basis for any of the complaints the Tribunal considered – but this shadow is relevant background to understanding the context in which the “Our Conversation” meeting occurred, and the emotions and feelings felt and displayed in the events that are the subject of this case. b) Mr S Patel appeared to downplay the difficulties in the relationship he had with the Claimant. He was asked to describe his relationship with the Claimant after the mediation agreement was put in place between them and before the “Our Conversation” meeting and its aftermath. Mr S Patel said “It was probably difficult. Professional, I would hope, but difficult. I 55 of 118 don’t recall there being any particular issues between us. We had disagreements about work related things and that sort of stuff. But nothing beyond that”. The Tribunal Judge observed the mutual antipathy between Mr S Patel and the Claimant, which was evident throughout their interactions in the hearing. c) Mrs Herbert gave evidence that, during her tenure as Co-chair of the Respondent’s Race Network (that tenure ended in August 2022) she began to receive feedback of bullying, harassment and discrimination in the workplace, and there was a specific concern around the different experiences of black men, and their feeling unheard. In response Mrs Herbert started to put together a Race Network Insights document – an anonymised account of colleagues’ poor experiences organised thematically. d) Mrs Herbert also said that in February 2022, when she became involved in discussing the Claimant’s Yammer Post with colleagues, she was informed by her manager, Siobhan O’Malley, her Deputy Director, Ms Smith, and her Race Network Co-chair, Victoria Rawnsley, that the Claimant was a “keyboard warrior” (someone who regularly posts and responds on social sites, such as Yammer), and advised to proceed with caution when engaging with him, as he could be volatile. Mrs Herbert met with the Claimant in June 2023, and her evidence was that he allayed her previous nervousness about him and the preconceived impression she had been given by her colleagues about him.[228]However, it is important to put these matters into their proper context when considering whether they should form the basis for an inference of discrimination: a) While the history of the Claimant’s team is relevant to understanding the emotions and perceptions of the Claimant, Mr Vig and Mr S Patel, as well as Mr Riley, Mr Sreenivasan, Mr Poole and Mrs Hilton, the events with which this case is concerned post-date the time when the Claimant’s team was managed by the line manager alleged to have been racist. The Tribunal needs to considers the facts and complaints in this matter based on the evidence available. b) While there was palpable tension between the Claimant and Mr S Patel, that tension is explicable by reasons other than the allegations of racism, victimisation and protected disclosure detriment made by the Claimant in these proceedings. Before any of the matters which form the basis for the legal complaints in this matter, the Claimant issued direct and blatant challenges to Mr S Patel’s authority which would likely have riled him considerably. c) Mrs Herbert’s evidence about the experiences of black men within the Respondent’s organisation is concerning, but she could not draw any 56 of 118 direct link between her concerns and the events with which the claims in this matter are concerned. d) The warnings given to Mrs Herbert about the Claimant could have been given to others involved in the matters with which these events are concerned. However, the Claimant described himself as “difficult to manage” in his interview with Mrs Greenland, and he did raise numerous grievances and appeals, and so the perception of the Claimant as challenging was not unwarranted. Of course, he was perfectly entitled to challenge, and in many instances saw his challenges upheld.[229]The Tribunals considers that, looking at the evidence and all the circumstances of the case, it is not appropriate to draw any inferences that there were the averred discriminatory grounds for the acts complained of. The matters which have made the Employment Judge uncomfortable relate to: a) The history, which gives context to the case, but do not affect the evidence of whether something did or did not occur, and whether that meets or does not meet the legal test for direct discrimination, harassment, etc. b) Many of the matters the Claimant complained about were upheld as legitimate concerns by the decision-makers of the two grievances with which this case is predominantly concerned (Mrs Greenwood and Mr Williams). The inappropriate conduct about some of factual matters which have been the subject of evidence has been acknowledged by the Respondent and acted upon by way of recommendations.[230]Therefore the Tribunal has concluded that no such inferences should be drawn. Law Amendments[231]As observed by Mr Justice Langstaff (President) in Chandhok v Tirkey [2015] IRLR 195:[232]“The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond.”[233]The Tribunal has the power, in Rule 29 of the Employment Tribunals Rules of Procedure 2013 (the ET Rules) to:[234]“at any stage of the proceedings, on its own initiative or on application, make a case management order…”. 57 of 118[235]This includes the power to permit a party to amend its Claim or Response, but that power should be exercised in accordance with the Overriding Objective in Rule 2 of the ET Rules: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable-(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[236]The seminal cases on the proper approach to exercising the power in Rule 29 in relation to amendment applications are Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore [1996] IRLR 661, Vaughan v Modality Partnership UKEAT/0147/20/BA (V), Abercrombie v Aga Rangemaster [2013] EWCA Civ 1148, Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07/LA and Ladbrokes Racing Ltd v Traynor UKEAT/0067/06.[237]It is clear from those authorities that when answering the question of whether the discretion in Rule 29 should be exercised to permit the amendment, the assessment is ‘what does the overriding objective require?’, or to put it another way, ‘in which party’s favour does the balance of injustice and hardship sit?’.[238]The burden of satisfying the Tribunal that the amendment application is one that should properly accepted sits with the applicant.[239]The case law offers some suggested factors that may be relevant to consider when assessing how the scales weighing the balance of injustice and hardship tip, though of course the actual assessment will be fact-dependent, and there may be other matters that are important to that analysis: a) The nature of the proposed amendment, for example, the adding of factual details to existing allegations; the addition or substitution of other labels for facts already pleaded; the making of entirely new factual allegations. Would the amendment sought be a minor matter, or a substantial alteration pleading a new cause of action? This should be considered both in terms of the legal effect of the amendment sought, and the evidential implications of making it – is it likely, for example, that the facts relied upon in the 58 of 118 sought-to-be-added complaint involve substantially different areas of enquiry than those in the old? (Abercrombie) b) The applicability of time limits. If the amendment would add a new cause of action, is that out of time; if so, what is the legal test for extending time applicable to that cause of action; and should the time limit be extended by allowing the amendment. The fact that an amendment would introduce an out-of-time claim is not an automatic bar to accepting the amendment application (Safeway Stores). c) The timing and manner of the application. The Tribunal should seek to understand why the application was not made earlier, and why it is now being made. For example, is it because new information has come to light, or was the relevant information in the possession of the party now seeking the amendment at a much earlier point. Contemporaneous documentary evidence versus human memory[240]Leggatt J (as he then was) made some observations on the reliability of evidence based on recollection in the case of Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm). He noted that: a) Human memory is subjected to powerful biases, and “such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth”; b) “The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces”; and c) “In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to 59 of 118 avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. The burden of proof in discrimination complaints[241]Section 136(2) of the 2010 Act sets out the burden of proof applicable to proceedings under that Act: “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold the contravention occurred.”[242]In other words, an examination of whether race discrimination has occurred involves a two-stage enquiry: a) Firstly, the claimant must establish, on the balance of probabilities, facts from which the inference could properly be drawn by the tribunal that, in the absence of any other explanation, an unlawful act was committed; and then b) Secondly (if the claimant has made out a prima facie case for discrimination, as per the first stage), the burden of proof shifts to the respondent to prove, on the balance of probabilities, that the treatment in question was in no sense whatsoever on the ground of the claimant’s race (Igen Ltd (formerly Leeds Careers Guidance) v Wong [2005] ICR 931).[243]The first stage of that test has been considered in a number of subsequent cases, including by the Court of Appeal in Madarassy v Nomura International plc [2007] ICR 867, where Lord Justice Mummery observed that: “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”. Direct discrimination[244]Section 13(1) of the 2010 Act describes the prohibited conduct of direct discrimination as follows: “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.”[245]In other words, two conditions must be satisfied for a complaint of direct race discrimination to be made out: 1. The employer must have treated the claimant less favourably than it treated or would treat others; and 2. The reason for that difference in treatment is race. 60 of 118 Less favourable treatment[246]The assessment of whether treatment is less favourable is an objective one, i.e., whether the tribunal finds it so, not whether the claimant perceived it as such (Land Registry v Grant (Equality and Human Rights Commission intervening) [2011] ICR 1390). The exercise of comparison[247]Section 13 involves the comparison of treatment afforded the claimant against a named or hypothetical comparator (“than A treats or would treat others”), and section 23(1) provides that: “there must be no material difference between the circumstances relating to each case” [i.e., there must be no material difference between the circumstances of the claimant and the comparator].[248]Lord Hope, in the House of Lords decision in Macdonald v Ministry of Defence; Pearce v Governing Body of Mayfield Secondary School [2003] ICR 937, held that, with the exception of the prohibited factor (be it sex, race or otherwise), “all characteristics of the complainant which are relevant to the way his case was dealt with must be found also in the comparator.”[249]Their circumstances need not be entirely identical, though, as the EHRC Code reflects, at paragraph 3.23: “it is not necessary for the circumstances of the two people (that is, the worker and the comparator) to be identical in every way; what matters is that the circumstances which are relevant to the treatment of the worker are the same or nearly the same for the worker and the comparator”.[250]Where there is no “real life” or “actual” comparator identified by the claimant, or where the claimant’s selected comparator does not meet the conditions in section 23(1), the tribunal must construct one to determine the complaint.[251]Linden J in the EAT decision of Gould v St John's Downshire Hill [2020] IRLR 863 described the process of constructing a hypothetical comparator for this purpose: “Where a Tribunal does construct a hypothetical comparator, this requires the creation of a hypothetical 'control' whose circumstances are materially the same as those of the complainant save that the comparator does not have the protected characteristic or has not taken the protected step. The question is then whether such a person would have been treated more favourably than the claimant in those circumstances.”[252]When answering the second question, the examination of the reason why the decision-maker acted in the way that they did, the claimant need not show that the protected characteristic was the sole reason, but it needs to have been a “significant influence” (Lord Nicholls in Nagarajan v London Regional Transport 61 of 118 [1999] IRLR 572). It is not necessary that the decision-maker was conscious of this significant influence.[253]Lord Nicholls in Nagarajan observed that “the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.” Comparison may not always be necessary – examine the reason for the treatment[254]In some cases it will be obvious why the complainant received the less favourable treatment, and as noted by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337: “employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant.” Indirect discrimination[255]Section 19 of the 2010 Act concerns indirect discrimination, and describes it as follows: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, 62 of 118 (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,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”[256]Disability is listed as a “relevant protected characteristic” in subsection (3).[257]That legislative test can be turned into the following staged test: a) The first question: Is a PCP applied to a group which is a wider group than those with whom the claimant shares the relevant protected characteristic? b) The second question: Does the application of the PCP put a sub-group sharing the claimant’s protected characteristic at a particular disadvantage when compared with others outside the sub-group to whom the PCP is applied? c) The third question: Is the claimant put at that disadvantage? d) The fourth question: If the answer to each of the questions above is “yes”, can the respondent justify the application of the PCP?[258]In relation to the first question: The PCP must be capable of applying to a group in order for the conditions in subsection (2)(a) and (2)(b) to be met (Ishola v Transport for London [2020] ICR 1204.[259]In relation to the second question: Subsection (2)(b) calls for a comparison of a sub-group to which the claimant belongs (a sub-group identified by reference to the protected characteristic) with the remainder of the group (or pool) to whom the PCP is applied. It is the PCP that determines the pool (Essop v Home Office (UK Border Agency) [2017] ICR 640), and the Claimant’s protected characteristic that determines the sub-group. As stipulated by section 23(1), “there must be no material difference between the circumstances relating to each case” – i.e., the circumstances of all those in the pool must be all the circumstances relevant to the adverse treatment of which the claimant complains (The Royal Parks Ltd v Boohene [2023] EAT 69).[260]Some people within the pool must be capable of satisfying the PCP, otherwise no group disadvantage or disadvantage to the claimant (as required by subsections 19(2)(a), (b) and (c)) can be shown (British Medical Association v Chaudhary [2007] IRLR 800).[261]Subsections (2)(b) and (2)(c) require that the claimant demonstrate that the PCP puts the sub-group and the claimant themselves at a “particular disadvantage” when compared with persons with whom the claimant does not share the protected characteristic. It is common, though not required, for the group disadvantage to be evidenced by statistics. “Disadvantage” is not defined by the 2010 Act, but paragraph 4.9 of the EHRC Code (drawing on the decision of the 63 of 118 House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337) provides that: “It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.”[262]The sub-group cannot comprise the claimant alone (Gray v Mulberry Co (Design) Ltd [2020] ICR 715), though the sub-group could be those who “would [be] put” to the particular disadvantage, i.e., a hypothetical group (section 19(2)(b)).[263]In relation to the third question: The requirement that the claimant is put “at that disadvantage” means that the claimant must be put at the same disadvantage as the sub-group (Essop) – the claimant must also struggle to meet the terms of the PCP for the same reason as the group (e.g., where a sub-group comprises single mothers unable to meet the new shift pattern of the employer because of childcare responsibilities, the claimant would need to be a single mother unable to meet the new shift pattern for the same reason).[264]The burden of proof for the first three questions sits with the claimant asserting the indirect discrimination, but the burden of proving justification sits with the respondent if the claimant has sufficiently proven the other three limbs of the test. The respondent must show that justification as at the time when the PCP was 265. ‘Harassment’ is defined in section 26, which includes, in subsection (1): “A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[266]In other words, there are three elements to this test:a. There has been unwanted conduct;b. That has the proscribed purpose or effect; andc. That unwanted conduct relates to a relevant protected characteristic (e.g., race).[267]As for “purpose or effect”, the requisite threshold is high – intending to or causing upset or offence is insufficient – the language used (e.g., “violating” and 64 of 118 “degrading”) points to purposes/effects which are serious and marked (Betsi Cadwaladr University Health Board v Hughes EAT 0179/13). “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment” - Elias LJ in Grant.[268]Section 26(4) requires that: “In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken account-(1) the perception of B;(2) the other circumstances of the case; and(3) whether it is reasonable for the conduct to have that effect.”[269]This is entails both subjective (the perception of the claimant) and objective (whether it is reasonable for the conduct to have that effect) assessments of the effect of the conduct, as well as consideration of all the other circumstances of the case. The objective assessment is particular to the claimant – involving consideration of whether it was reasonable for the conduct to have the effect on that particular claimant.[270]The EHRC Code (at paragraph 7.18) indicates that the “other circumstances of the case” could be matters such as the personal circumstances of the claimant, such as their health, mental capacity, cultural norms, and previous experience of harassment, as well as the environment in which the conduct takes place.[271]Section 26(1)(b)(ii) refers to the creation of an “environment”. When the claimant remains in the respondent’s employment, the “environment” may well be regarded as the state of affairs in which they work or their employment continues.[272]The question of whether conduct “related to” a relevant characteristic is determined by the tribunal, not by either: a) the claimant’s perception (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495; or b) the respondent’s knowledge or perception of the claimant’s protected characteristic, or by their perception of whether the conduct “relates to” the claimant’s protected characteristic (Hartley v Foreign and Commonwealth Office Services [2016] ICR D17). It is an objective question.[273]When determining whether the act complained of “related to” a protected characteristic, the tribunal must consider: a) The relevant context (as Elias LJ put it in Grant, “it will generally be relevant to know from whom a remark is made, in what terms, and for what purpose”); 65 of 118 b) The wider connection test that applies to “related to” than applies to the “because of” test for direct discrimination. So conduct can be “related to” a protected characteristic even if it is not “because of” it; and c) The mental processes of the alleged harasser will be relevant to whether the conduct “related to” the protected characteristic, but such evidence is not essential to determine the issue. The tribunal will need to reach its conclusion based on the evidence before it (Bakkali v Greater Manchester Buses (South) Ltd (trading as Stagecoach Manchester) [2018] ICR 1481).[274]Conduct can be “related to” a protected characteristic even if there is no discriminatory intent on the part of the actor, e.g., idle gossip that is not ill-meant may still be related to a protected characteristic (Grant).[275]Equally, an unpleasant and unacceptable remark may not be related to a protected characteristic (Warby v Wunda Group plc UKEAT/0434/41).[276]The EHRC Code, at paragraph 7.9, observes that: “Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic”.[277]It gives the following example: “A female worker has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by continually criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker, but because of the suspected affair which is related to her sex. This could amount to harassment related to sex.”[278]This less-than-causative meaning of “related to” has been considered in cases such as Kelly v Covance Laboratories Ltd [2016] IRLR 338, where a Russian claimant worked for a company carrying out animal testing. The employer in that case had concerns about possible unwelcome actions by covert animal rights activists. The claimant spoke Russian, and frequently held long conversations on her mobile telephone in Russian. Her manager instructed her not to speak Russian so that her conversations could be understood by English-speaking managers. When she brought a claim of racial harassment, that was dismissed by the tribunal. On appeal, the EAT found that the tribunal had been correct to conclude that the instruction did not “relate to” the claimant’s race or national origins, even though it potentially could have been – it was because the claimant’s line manager was suspicious of her conduct in the context of the employer’s business and the risks it faced from animal rights activists.[279]Section 212(1) of the 2010 Act provides that “detriment” does not include conduct which amounts to harassment – in other words, that the same act cannot be found to be both direct discrimination and harassment. 66 of 118[280]Section 27 of the 2010 Act sets out that: “(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;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.”[281]This can be summarised by way of a three-stage test: a) Did the claimant do a “protected act”? b) If yes, did the respondent subject the claimant to a detriment?; and c) If yes, was the claimant subjected to that detriment because they either did a protected act, or the respondent believed they had done or might do a protected act?[282]“Detriment” is not specifically defined in the 2010 Act (although section 212(1) provides that it does not include conduct which amounts to harassment), but the EHRC Code (at paragraphs 9.8 and 9.9) suggests that: “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards…[283]The case law shows that detriment is assessed from the Claimant’s point of view (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065), subject to that view being a reasonable one for a person in the claimant’s position to hold (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337). An “unjustified sense of grievance” is not sufficient to amount to a detriment, but whether a grievance is justified or unjustified is assessed taking account of the particular circumstances of the claimant. The tribunal only needs to be satisfied that a reasonable worker might take the view that the conduct was to the worker’s detriment (Warburton v Chief Constable of Northamptonshire Police [2022] EAT 42). 67 of 118[284]Whether the detriment was “because” the claimant did (or the respondent believes the claimant did or might do) a protected act is a question of fact. The doing of (or the belief that the claimant did or might do) the protected act must be a conscious or subconscious reason for the respondent’s action or inaction (similar to the “because of” element in section 15 complaints).[285]The question to be asked is whether the fact that the claimant had brought proceedings alleging, or made an allegation of, unlawful discrimination (etc.) amounted to a significant influence on the employer’s decision-making resulting in the detriment (Nagarajan v London Regional Transport [1999] IRLR 572) – an influence which does not need to be of great importance but which needs to be more than trivial (Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931). Inferring discrimination[286]As has been acknowledged in the case law: “it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’.” Neill LJ in the Court of Appeal decision in King v Great Britain-China Centre [1992] ICR 516)[287]As described by the EAT in Qureshi v Victoria University of Manchester [2001] ICR 863, in relation to disputed facts in discrimination cases: “The function of the tribunal in relation to that evidence was therefore twofold: first, to establish what the facts were on the various incidents alleged by [the claimant] and, secondly, whether the tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of.”[288]This approach was confirmed in Igen: after the primary facts have been determined, tribunals must consider what, if any, inferences are appropriate to draw from those primary facts seen in their totality (Qureshi), so as to determine what facts it is proper to infer. After the primary facts have been determined and the consideration of whether it is proper to draw any inferences of secondary facts, the question of whether the claimant has established a prima facie case of discrimination can then be answered. If a prima facie case has been made out in relation to any of the complaints, the burden of proof then shifts to the respondent to demonstrate that the respondent’s actions were in no sense whatsoever on the protected ground.[289]Inferences must have a basis in the facts agreed by the parties or found by the tribunal. “A mere intuitive hunch, for example, that there has been unlawful 68 of 118 discrimination is insufficient without facts being found to support that conclusion” (Chapman v Simon [1994] IRLR 124).[290]Drawing inferences must be based on evidence, not by making use (without requiring evidence) of a verbal formula such as ‘institutional discrimination’ or ‘stereotyping’ (Stockton on Tees BC v Aylott [2010] ICR 1278).[291]Examples of matters that may be relevant to the consideration of whether inferences of discrimination can properly be drawn may include: a) Whether there is a non-discriminatory explanation for the behaviour, and if so, the weight of that explanation; b) The tribunal’s assessment of the parties and their witnesses, and of the alleged discriminatory ‘actor’, including of their credibility, reliability and motives, tested by reference to objective facts and documents, possible motives and the overall probabilities; c) The relationship between the parties (e.g., if it is one of hostility and there is nothing else to explain it); d) If the respondent behaved badly towards the claimant, whether that is consistent with the respondent’s treatment of other people who do not have the claimant’s protected characteristic (the ‘generally-badly-behaving employer’); e) Whether there is a pattern of behaviour; f) If there is a surprising lack of documents in evidence on a matter; g) If there has been adherence to or a failure to follow applicable policies and procedures; and h) Whether the claimant’s response to the behaviour is reasonable. An justified sense of grievance cannot amount to a detriment for the purposes of less favourable treatment. Protected disclosure detriments[292]Section 47B(1) of the 1996 Act provides: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[293]The term “protected disclosure” is set out in section 43A: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[294]The basis on which a disclosure will be a “protected disclosure” is described in section 43B as follows: 69 of 118 “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[295]A “qualifying disclosure” made to the discloser’s employer is a “protected disclosure” pursuant to section 43C.[296]In other words, for a person to demonstrate that they have made a protected disclosure they need to show the following: a) That they have made a “qualifying disclosure” by:(i) disclosing information;(ii) in the reasonable belief that the disclosure was in the public interest;(iii) in the reasonable belief that the information disclosed tended to show one or more of the “relevant failures” in section 43B(1)(a) to (f); and b) That their qualifying disclosure was made in accordance with one of the six specified methods of disclosure, which includes disclosure to their employer.[297]The protection afforded workers by section 47B is from detriment by his employer done on the ground that the worker has made a protected disclosure, so a claimant pursuing a claim under section 47B must show: a) That they made a protected disclosure; b) That they suffered some identifiable detriment; c) That detriment was at the hands of their employer; and 70 of 118 d) There was a causal connection between the act or failure and the protected disclose – that the detriment was on the ground of their protected disclosure.[298]Whether something amounts to a “detriment” is to be assessed from the point of view of the worker (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[299]Being subjected to a “detriment” does not mean anything more than “putting at a disadvantage”. A detriment “exists if a reasonable worker would or might take the view that the [act] was in all the circumstances to his detriment” (Ministry of Defence v Jeremiah [1980] ICR 13).[300]It is not a “but for” test, but rather whether the detriment is “on the ground” of the protected disclosure is to be understood as meaning that the protected disclosure “materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower” (Fecitt v NHS Manchester [2012] ICR 372).[301]This requires an examination of the mental processes (conscious or unconscious) of the decision-maker – what caused or influenced them to act (or fail to act) as they did (London Borough of Harrow v Knight EAT/0790/01). Time limits – discrimination and victimisation complaints under the 2010 Act[302]Claims of direct and indirect discrimination, harassment and victimisation pursuant to the 2010 Act are subject to a time limit stipulated in section 123(1) of that Act, namely that such a claim: “may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.”[303]The three month period in section 123(1)(a) – which might be referred to as the “primary lookback period” - is extended by the period of early conciliation pursuant to section 140B of the 2010 Act to facilitate early conciliation between the parties. In this case, where early conciliation started on 9 March and ended on 20 April, both of 2023, with the Claim Form filed on 22 May 2023, the effect of section 207B is to extend the primary lookback period to 12 January 2023. Time limits – protected disclosure detriments, section 48 of the 1996 Act[304]Section 48 of the 1996 Act governs the bringing of complaints under section 47B where a worker has been subjected to a detriment by their employer done on the ground that the worker has made a protected disclosure. Section 48(3) stipulates: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented71 of 118(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where the act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[305]ACAS early conciliation can extend the primary time limit in certain circumstances. The test for extending time[306]Where the three month time limit (as extended by early conciliation if appropriate) has expired, in order for the Tribunal to hear the complaint it must be satisfied both that: a) it was not reasonably practicable for the Claimant to bring their claim within the time limit; and b) it was presented within such further period as the tribunal considers reasonable. Application to the claims here Complaint 1: That Mr S Patel’s comments to Mrs Turner in their telephone call on 20 October 2020 was direct discrimination because of race[307]The Tribunal has already found that Mr S Patel did tell Mrs Turner that the “Our Conversation” meeting had been ended due to the behaviour of the Claimant, so the relevant questions that follow to determine whether Complaint 1 is made out are: a) Whether by doing so Mr S Patel subjected the Claimant to detriment; and b) Whether Mr S Patel treated the Claimant less favorably than he treated or would have treated others. The Claimant has not identified a “real comparator”, and so the treatment of the Claimant is to be compared to that that a hypothetical comparator would have received.[308]The Claimant says that the comments made by Mr S Patel “could have” prejudiced how his future grievances were treated. As noted in the Facts section above, the Tribunal has found that it did not.[309]There remains the question of whether, simply by informing Mrs Turner that the “Our Conversations” meeting was ended because of the Claimant’s behaviour, Mr S Patel treated the Claimant less favourably.[310]The assessment of whether the treatment was less favourable is an objective one (Grant). The Tribunal finds that Mr S Patel did not subject the Claimant to a 72 of 118 detriment by informing Mrs Turner that the “Our Conversation” meeting had been brought to an end by the Claimant’s behaviour when: a) that was, in fact, true; b) Mr S Patel was seeking expert advice as to how to try to resolve matters between him and the Claimant, which was a reasonable thing to do, and that necessitated him sharing relevant background information to inform Mrs Turner of the context in which his email was written; and c) the Claimant’s assertion that Mr S Patel should have envisaged that a note would have been made of the conversation on his HR record and that that note could cause him detriment in the future, is based on conjecture and is not supported by any evidence. In fact, the evidence of Mrs Turner is that the note she recorded would only ever be shared with another person outside the EAS team should that be required by a formal process such as, for example, in response to a subject access request (which is how the Claimant saw it). Even though other members of the EAS team could view it, she said that the note would not have been shared by that EAS team member with any manager they were advising about the Claimant, even if a similar call were to be received from a subsequent manager about the Claimant.[311]In any event, even if the comment Mr S Patel made to Mrs Turner should properly be regarded as a detriment, it is clear that the reason Mr S Patel called the EAS resource was to seek advice. The reason for the treatment was not because of the Claimant’s race (Shamoon).[312]Complaint 1 therefore does not succeed. Complaint 2: That Mrs Turner’s decision to record the comments gleaned from her telephone call with Mr S Patel in a telephone note also on 20 October 2020 was direct discrimination because of race[313]It is not disputed by the Respondent that Mrs Turner recorded the note on the CMA file that included the reference to Mr Vig’s decision to end the “Our Conversation” meeting as a decision taken “due to behaviour on the [Claimant]”.[314]The next step is either to consider the treatment of a hypothetical comparator in that situation, or to consider the reason for the treatment (Shamoon). Mrs Turner’s evidence was that she did not know the Claimant, and did not know that he is of Afro-Caribbean heritage or BAME. (The Claimant has noted that Mr S Patel sent Mrs Turner an email with three attachments, one of which referred to the Claimant as a BAME individual, but Mr S Patel’s email to Mrs Turner was sent at 15:35, after Mrs Turner made the note about which the Claimant complains, which was written at 15:00 on 20 October 2020.) 73 of 118[315]There is no reason whatsoever to suppose that Mrs Turner would have treated a comparator (another employee who is not of Afro-Caribbean heritage or BAME about whom she received a call from their manager describing a breakdown in their relationship and who said that the employee’s behaviour had caused another manager to bring a meeting to an end) any differently. The reason she recorded her note in the terms she did is because it was her practice to make a summary record of her conversations with managers when she gave them advice. That is sensible and appropriate, and the Claimant agreed it was good practice to do so. The fact that she took a note, or that it was expressed in the terms that it was, was not because of the Claimant’s race.[316]Moreover, it is not clear that writing this note subjected the Claimant to any detriment. While the Claimant asserts that the note “could have” led to HR EAS staff, decision managers and appeal managers to believe the Claimant had behavioural issues related to being managed, no evidence that it has done so has been provided, and Mrs Greenwood (the only decision manager or appeal manager asked about this) gave clear evidence that she had not seen the EAS note and was not aware of it until reading the Bundle for attendance at this hearing.[317]Complaint 2 therefore does not succeed. Complaint 3: That the making of the comments about the Claimant by Mr S Patel to Mrs Turner in a telephone call on 20 October 2021 amounted to harassment related to[318]The Tribunal has already found that Mr S Patel did tell Mrs Turner that the “Our Conversation” meeting had been ended due to the behaviour of the Claimant, so the next questions relevant to determining a complaint of harassment are to determine: a) Whether the conduct was unwanted; b) Whether the conduct had the proscribed purpose or effect; and c) Whether the unwanted conduct related to the Claimant’s race.[319]It is clear that the conduct was unwanted – the Claimant did not consider that the “Our Conversation” had been ended because of his conduct, he maintains that the meeting ended on time, and any “heat” at the end of the meeting was attributable to SH’s reaction to things he had said.[320]Mr S Patel’s evidence is clear that he did not make the telephone call with the purpose of violating the Claimant’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. The Tribunal accepts this – Mr S Patel’s purpose was to seek HR advice regarding next steps given the email had added to an already very difficult working relationship. 74 of 118[321]As for whether the making of the comments by Mr S Patel to Mrs Turner had the proscribed effect, there is limited evidence on this. a) The Claimant’s witness statement describes the comments made by Mr S Patel to Mrs Turner as “victimising, defamatory, inaccurate and prejudicial”. This description does not tell us how the Claimant feels about Mr S Patel having made these comments, and nor was he asked that in cross-examination. b) One indication of his reaction to it is his answer to the question of why he believes the note prejudiced his subsequent grievances. The Claimant clarified that he believed it “could have” done, indicating that it has not caused him a significant degree of worry in that regard. c) The Claimant raised a grievance about Mr S Patel’s telephone call to Mrs Turner, and the note that resulted from that, on 27 June 2022. That grievance identifies the categories of grievance that the Claimant ascribes to it, and the list includes “Bullying, harassment, discrimination and victimisation”, and “Concerns about other actions that do not meet our Standards of Conduct”. The grievance states the Claimant’s belief that the note has prejudiced the outcomes of Grievances 1 and 2, and that he has been subject to “conduct that would go against HMRC’s conduct policies and procedures… as potentially constituting misconduct/or gross misconduct” and that he has been ““discriminated” against (e.g. treated unfairly/differently)”. It does not describe any personal impact on him that aligns with the legislative language of the proscribed effect.[322]The case law is clear that the effect must be serious and marked, and that tribunals must not “cheapen” the significance of the legislative language (Betsi Cadwaladr and Grant). Consequently, the Claimant has not satisfied the Tribunal that the effect upon him was to violate his dignity, or create an environment which was intimidating, hostile, degrading, humiliating or offensive. The relationship between the Claimant and Mr S Patel was hostile – but it is evident that it was so ahead of the 20 October 2020 email, and indeed, prior to Mr S Patel’s 30 September 2020 email – it was hostile, to such a significant degree that it required mediation, from 2019. Moreover, the telephone call did not change the Claimant’s working environment – it merely summarised the then-existing difficulties in the working relationship between the Claimant and Mr S Patel – it did not exacerbate them, and could not have done so when the Claimant learned of it in March 2022, when he had ceased to be line managed by Mr S Patel and was then line managed by a manager who he regarded as supportive. Even if Mr S Patel was wrong that it was the Claimant’s behaviour that was the reason Mr Vig brought the first “Our Conversations” meeting to an end (and the Tribunal has found that the Claimant’s behaviour was one of the reasons he did so), that remark was reflective of his perception of the Claimant and his conduct, rather than related to 75 of 118 his race (Warby). The Tribunal therefore finds that the telephone call did not have the proscribed effect.[323]Moreover, even if the telephone call had the proscribed purpose or effect, the Tribunal finds that it was not related to the Claimant’s race – it is abundantly clear that Mr S Patel was seeking advice on next steps given the total breakdown of the relationship between him and the Claimant (and the mental processes of the alleged harasser are relevant to this assessment - Bakkali). The context of the call to Mrs Turner was the “Our Conversations” meeting and the email correspondence that followed that, but the Claimant’s race was irrelevant to Mr S Patel’s attitude to the Claimant, whom (despite his answer to the contrary to a question from the Tribunal) it is clear he disliked and regarded as insubordinate and difficult.[324]Complaint 3 does not succeed because the comments made by Mr S Patel in his telephone call to Mrs Turner on 20 October 2020 did not have the proscribed purpose or effect, and was not related to the Claimant’s race. Complaint 4: That Mrs Turner’s decision to record comments gleaned from her telephone call with Mr S Patel in a telephone note on 20 October 2020 amounted to[325]It is not disputed by the Respondent that the note was recorded, so the other issues relevant to determine this complaint are: a) Whether the conduct was unwanted; b) Whether the conduct had the proscribed purpose or effect; and c) Whether the unwanted conduct related to the Claimant’s race.[326]The conduct was unwanted – the Claimant was evidently upset and angry at the discovery that the note had been made, as it prompted him to raise a grievance about it on 27 June 2022.[327]Mrs Turner’s evidence was clear: a) Her reason for recording it was that that was her standard practice when she was contacted by a line manager seeking HR advice. b) The note was never intended by her to be viewed by anyone, but was merely reflective of good practice.[328]It is plain that Mrs Turner did not have the purpose, in making the note, of violating the Claimant’s dignity, or creating an environment which was intimidating, hostile, degrading, humiliating or offensive for him.[329]Nor did the making of the note have that effect, for the same reasons as the Tribunal concluded that the telephone call did not have that effect. When the Claimant discovered the existence of the note he was angry about it, and 76 of 118 concerned about whether it had affected the determination of Grievances 1 and 2, but the note did not violate his dignity, or create an environment which was intimidating, hostile, degrading, humiliating or offensive for him.[330]Also for the same reasons as for Complaint 3, the Tribunal does not consider that the making of the note was “related to” the Claimant’s race, even if it had the proscribed purpose or effect.[331]Complaint 4 therefore also does not succeed. Complaint 5: That the making of the comments by Mr S Patel to Mrs Turner during a telephone call on 20 October 2020 was victimisation[332]Victimisation occurs when a respondent subjects a claimant to a detriment because the claimant does a protected act, or the respondent believes the claimant has done or may do a protected act.[333]All of the averred protected acts relied upon by the Claimant post-date the making of the comments by Mr S Patel to Mrs Turner, and so the Claimant can only succeed in this complaint if he is able to show that Mr S Patel believed that the Claimant had done or may do a protected act.[334]The Claimant has not suggested that Mr S Patel mistakenly believed that the Claimant had already done a protected act.[335]It is highly unlikely that Mr S Patel knew that the Claimant was going to raise any of the grievances that the Claimant relies on as protected acts because: a) The most proximate of the alleged protected acts was Grievance 2, which was not brought until 25 January 2021 and related to the feedback from the Race Equality Workshop upskilling. That workshop only occurred nine days after Mr S Patel’s call to Mrs Turner. He had no way of anticipating Grievance 2; b) The next proximate of the alleged protected acts was the grievance raised on 16 February 2022. This originated with Mr S Patel’s action in emailing the Claimant’s team in the terms that he did – the same subject that he telephoned Mrs Turner about – and Mr Vig’s sharing of the Claimant’s email with the team, but the 16 February 2022 grievance was about Mr Redford’s decision of the Claimant’s appeal of the outcome on Grievance 1. While Mr S Patel might have anticipated the Claimant raising a grievance about his email and Mr Vig’s email to the team, he had no way of knowing that the Claimant would bring a grievance about the appeal outcome relating to that grievance. It is too far-fetched to say that Mr S Patel believed that the Claimant may do a protected act of that kind; 77 of 118 c) The third protected act the Claimant asserts was a grievance about the appeal outcome to Grievance 2. Again, Mr S Patel could not have anticipated that at this time; d) The fourth protected act the Claimant seeks to rely on is a grievance he brought on 15 March 2022, relating to his unsuccessful application to be part of the RBAG. The RBAG process did not happen until 13 months after Mr S Patel called Mrs Turner, so again, Mr S Patel could not have anticipated that; and e) The fifth protected act the Claimant relies upon is a grievance brought 20 months after this telephone call, relating to the Claimant’s discovery of the EAS note Mrs Turner wrote in consequence of this call. Mr S Patel’s evidence was clear that he did not know Mrs Turner would write a note of the call, so again, it is improbable that he anticipated this grievance.[336]Furthermore, the Tribunal has already found that the making of the telephone call was not less favourable treatment, and the Tribunal finds that it was not a detriment for the same reasons (set out in relation to Complaint 1).[337]This Complaint 5 does not succeed. Complaint 6: That Mrs Turner’s decision to record the comments made in a telephone call between her and Mr S Patel on 20 October 2020 note was victimisation[338]Mrs Turner’s evidence, unchallenged on this point, was that she was unaware that the Claimant had made any of the grievances that he relies on by way of protected acts. Moreover, those grievances significantly post-dated the date when Mrs Turner made that record – the earliest averred protected act took place on 25 January 2021, some three months after the note was made. There is no indication that Mrs Turner knew or anticipated that the Claimant was going to raise any of these grievances, and nor has the Claimant suggested that she did.[339]Consequently, Complaint 6 fails. Complaint 7: That the making of the comments by Mr S Patel in a telephone note on 20 October 2020 was a detriment on the ground that the Claimant had made a[340]The protected disclosure the Claimant relies upon (a disclosure accepted by the Respondent to be protected) was the “whistleblowing concern” the Claimant raised with Trish Kelly on 16 February 2022. This disclosure was nearly 16 months after Mr S Patel telephoned Mrs Turner and made the comments he did on 20 October 2020. The telephone call was, in so sense whatsoever, on the ground of that protected disclosure (Fecitt).[341]Complaint 7 therefore does not succeed. 78 of 118 Complaint 8: That Mrs Turner’s decision to record Mr S Patel’s comments in a telephone note on 20 October 2020 was a detriment on the ground that the Claimant had made a protected disclosure[342]As for Complaint 7, there can be no question of Mrs Turner’s note on 20 October 2020 having been made in any sense whatsoever on the ground that the Claimant, nearly 16 months later, would make a protected disclosure to Ms Kelly (Fecitt).[343]Complaint 8 therefore fails. Complaint 9: That the handling of and decision reached in respect of Grievance 2 by Mr Williams was direct discrimination because of race[344]The Claimant raised the following concerns with the process followed and decision reached by Mr Williams in relation to Grievance 2: a) That Mr Williams did not agree terms of reference with the Claimant before conducting his investigation and reaching his conclusion; b) That Mr Williams showed preferential treatment to the evidence given by senior management when it conflicted with the evidence given by the Claimant and others who are not of that level; and c) That Mr Williams did not uphold all of the Claimant’s complaints.[345]The first question in relation to Complaint 9 is whether these matters identify less favourable treatment. Was the Claimant treated less favourably by the absence of terms of reference?[346]There is nothing in the Respondent’s “Raising and Resolving a Concern toolkit” that anticipates that terms of reference will be required in order for a grievance to be investigated and determined.[347]From those of the Respondent’s policies, procedures, toolkits, etc., included in the Bundle which do contain references to “terms of reference”, it appears that terms of reference are only required where a decision manager appoints an investigation manager to carry out a fact-finding exercise for the decision manager. This understanding is gleaned from the following documents: a) The Standard Operating Procedure for the Expert Advice Service processes involved with the Respondent’s “Raising & Resolving a Concern” policy. That document provides that where the decision manager has a commissioned a ‘fact find’ that the case worker will arrange a threeway conversation with the decision manager and fact finder to agree the 79 of 118 terms of reference. This is for the decision manager to lay out the scope of the fact-finding exercise; b) The Respondent’s “Information for Decision Managers, Investigation Managers and Appeal Managers”. That document outlines that the HR caseworker would organise a call with the decision manager and any investigation manager (if one is needed) “to understand the scope of the Concern and agreeing the terms of Reference”; and c) “The Civil Service Investigation Standards”. That document contains a slide on terms of reference, which sets out bullet point text about an investigation report.[348]Of the evidence given to the Tribunal specifically about the terms of reference for Grievance 1: a) Both the Claimant and Mr Williams gave evidence that they discussed the points the Claimant wanted Mr Williams to look into at their meeting on 17 June 2021. b) Notes of that meeting show that it opened with Mr Williams outlining that its purpose was “to get a better understanding of your concern”. He went on to list out the points that he understood, from reading the Claimant’s grievance, that his enquiry was to centre upon. c) The Claimant conceded in cross examination that in this meeting he and Mr Williams agreed what needed to be investigated, but the Claimant maintained that the manner in which those matters were to be investigated was not agreed upon by them. d) Mr Williams stated that his discussion in the 17 June 2021 meeting was much more detailed than the usual terms of reference. He maintained that the Claimant had the same opportunity to provide his thoughts and input on the scope of the investigation needed, and the manner in which he wished Mr Williams to conduct the investigation, in the 17 June meeting. e) The notes of the 17 June meeting were commented on by the Claimant and Mr Watson, and the version in the Bundle shows their changes in ‘tracked changes’ (all of which Mr Williams agreed to make). The notes record that Mr Williams’ list of points was confirmed by the Claimant, who said: “I think the main points are all covered. But I will let you know later if there is anything else.” After the meeting the Claimant sent Mr Williams a two-page statement to include in those meeting notes, which was “relevant to formal concerns being investigated”. That statement is appended to the meeting notes as the Claimant requested. f) The last part of the meeting notes record that Mr Williams said: “I’d like to conclude by giving you the opportunity to say anything else you wish me to consider.” The Claimant and Mr Watson broke off from the meeting for a few minutes to discuss that, and then returned, when the Claimant 80 of 118 mentioned one point and confirmed there were no others. Mr Williams said that his next step would be to set up meetings with three individuals (Ms Smith, Ms Ahmed and Mrs Hilton), and “any other people involved”. The Claimant did not, at that point, refer to anyone else he thought Mr Williams should speak to.[349]The terms of reference contained in the Bundle for Grievance 1 comprise a table setting out: a) The applicable Respondent’s process – “Formal Concern”; b) What needs to be investigated? – the adjacent cell lists the points to be investigated; c) The Respondent guidance potentially breached; d) The subject/s of the complaint and witnesses from whom evidence is to be sought; e) Additional evidence required (i.e., documentary evidence such as emails); and f) Anticipated timescale.[350]A version of those terms of reference for Grievance 1 was discussed by the Claimant and Mr Watson with Mr Theakstone (at that time the decision maker for Grievance 1) on 15 December 2020, i.e., significantly before the 17 June 2021 meeting between Mr Williams and the Claimant cited above.[351]The Tribunal was not taken to any record of the Claimant raising any concern with the lack of terms of reference for Mr Williams’ consideration of Grievance 2 at any point, and significantly this does not appear in the Claimant’s grounds of appeal of Mr Williams’ decision.[352]It is clear that most of the categories of matters set out in the terms of reference for Grievance 1 were discussed by the Claimant and Mr Williams in the 17 June 2021 meeting. The relevant guidance was not listed, nor was the anticipated timescale, but relevant emails and the people involved were.[353]The Claimant has not shown that he was treated less favourably as a result of the absence of terms of reference. He has also not shown that it was the Respondent’s policy or practice for such terms of reference to be agreed where no separate investigation manager was appointed by the decision manager. This part of Complaint 9 therefore does not succeed. 81 of 118 Preferential treatment of senior management[354]The Tribunal has already found that Mr Williams did not prefer the accounts of senior management over those of the Claimant and employees of his level. This part of the Claimant’s Complaint 9 does not succeed. Not upholding all of the Claimant’s complaints[355]As noted above, in seven out of ten of the complaints the Claimant raised Mr Williams upheld or partially upheld the concern.[356]Of the three complaints that Mr Williams did not uphold: a) The first was complaint 5, that Ms Smith had behaved inappropriately towards another person present. Mr Williams accepted the explanation provided by Ms Smith, that she was role-playing to test facilitators’ skills at managing difficult attendees. This was a credible explanation in the context and Mr Williams was entitled to accept it; b) The second was complaint 7, that Ms Smith disregarded the Claimant’s mental health. Mr Williams did not uphold this complaint because he could see content in Ms Smith’s email which directed the Claimant to sources of support. He had an objective basis for not upholding that complaint; and c) The third was complaint 9, that Ms Smith failed to tackle Ms Ahmed’s inappropriate behaviour in a telephone call between Ms Ahmed and the Claimant which Ms Smith did not attend. Mr Williams concluded that Ms Ahmed’s behaviour was inadvertent, and Ms Smith therefore had no means of knowing it was inappropriate. This was a reasonable position for him to take.[357]Therefore, of the three types of less favourable treatment that the Claimant advances as part of this Complaint 9, the Tribunal finds that: a) There was no less favourable treatment by Mr Williams’ failure to agree terms of reference with the Claimant; b) The preferential treatment of oral evidence from senior management did not occur; and c) Mr Williams did not uphold or partially uphold three of the Claimant’s complaints, so there was less favourable treatment on this basis.[358]In relation to the latter averred detriment, it is clear to the Tribunal that the reason for that treatment was not race – it was his reasonable assessment of the evidence before him (Shamoon).[359]Complaint 9 therefore does not succeed. 82 of 118 Complaint 10: That Mr Williams indirectly discriminated against the Claimant on 20 September 2021[360]Specifically, the Claimant avers that, by applying a practice in dealing with Grievance 2 of: Mr Williams indirectly discriminated against him as a person of Afro-Caribbean heritage.[361]As set out in the Law section above, whether complaints of indirect discrimination are made out depends on the answers to four questions: a) The first question: Is a PCP applied to a group which is a wider group than those with whom the claimant shares the relevant protected characteristic? b) The second question: Does the application of the PCP put a sub-group sharing the claimant’s protected characteristic at a particular disadvantage when compared with others outside the sub-group to whom the PCP is applied? c) The third question: Is the claimant put at that disadvantage? d) The fourth question: If the answer to each of the questions above is “yes”, can the respondent justify the application of the PCP?[362]As noted in the Facts section above, the Tribunal has found that there is insufficient or no evidence to support a finding that there was a practice by the Respondent organisation, or by the decision and appeal managers cited in this case, or by Mr Williams, of applying any of the Alleged PCPs to any group, and that is a fatal finding in relation to Complaint 10, as the first question is answered in the negative for all three Alleged PCPs.[363]Moreover, the Tribunal has found that Mr Williams did not apply the second or third Alleged PCPs to the Claimant, so that is a second reason why those parts of Complaint 10 do not succeed.[364]While the Tribunal found that Mr Williams did apply the first Alleged PCP to some of the complaints in Grievance 2, which satisfied the third question by putting the Claimant at a disadvantage, the Claimant cannot show that it was applied to a group (the first question), or that its application put the Claimant’s sub-group at a disadvantage (the second question).[365]Moreover, there has been no evidence adduced of any particular disadvantage suffered by the Claimant’s sub-group – people of Afro-Caribbean heritage (the second question). Indeed, on the face of it, the second Alleged PCP – a practice 83 of 118 of looking for overt examples of discrimination – could be seen as advantageous to people of Afro-Caribbean heritage, by the person applying the practice actively seeking out race discrimination. The same could be said of the third Alleged PCP.[366]In light of these findings, Complaint 10 does not succeed. The Claimant has not shifted the burden of proof that sits with him (Cross). Complaint 11: That Mr Williams’ handling of and decision reached in respect of Grievance 2 on 20 September 2021 amounted to harassment related to race[367]The Claimant’s complaints about the way in which Mr Williams “handled” Grievance 2 were considered in the Facts section above, and in relation to Complaint 9.[368]In relation to the first “handling” complaint, that no terms of reference were agreed: a) This was not unwanted conduct, as the Claimant never raised this as an issue throughout the Grievance 2 determination and appeal processes. b) Furthermore, there is no evidence to support any contention (which the Claimant has not articulated) that Mr Williams, in not:(i) Recording terms of reference in a specific document;(ii) Citing the guidance or policies alleged to have been breached; and(iii) Setting an indicative timetable for his decision on Grievance 2, (the only parts of a typical terms of reference document not covered in the 17 June 2021 meeting) acted with the purpose of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. On the contrary, Mr Williams took care to ensure that the Claimant’s input was provided in the 17 June meeting and its aftermath. c) Nor is there any evidence that the effect of failing to agree a terms of reference document was to violate the Claimant’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for him. If it had done so, the Claimant would have said so, either during the Grievance 2 progression process or in his appeal pertaining to it. The Claimant had stood up and raised numerous formal concerns where he has seen a practice or conduct that he considered was found wanting. He would have done so in relation to the absence of a terms of reference document relating to Grievance 2 if that absence had had the proscribed effect on him. 84 of 118 d) There is also nothing to suggest that a terms of reference document was not agreed for a reason “relating to” race. The substance of the meaningful parts of a terms of reference document – the grounds of complaint, the people whose evidence should be gathered, the key documentary evidence – was discussed and agreed with the Claimant, and the record of that discussion and agreement provided to him so he could comment on it (which he did). It is not credible that the failure to identify the relevant guidance or policies, or to set an indicative timetable was for a reason “relating to” race.[369]The Tribunal has found that the second alleged “handling” complaint, that Mr Williams showed preferential treatment to evidence from senior management, did not occur, and so that part of Complaint 11 does not succeed.[370]As for whether the decision not to uphold all of the Claimant’s complaints amounted to harassment related to race: a) The failure to do so was unwanted conduct; b) There is no evidence to support any assertion that Mr Williams’ purpose in doing so was to violate the Claimant's dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant; c) While the Claimant was undoubtedly unhappy that not all of his complaints had been upheld, seven out of ten of them had been completely or partially upheld, and meaningful recommendations were made to improve matters going forwards. It is not credible that the effect of failing to uphold the rejected parts of the Claimant’s complaints violated his dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant; and d) There is absolutely no reason offered by the Claimant as to why Mr Williams’ failure to uphold the three grounds he rejected was for a reason “related to” the Claimant’s race.(i) The fifth complaint, and Mr Williams’ finding that Ms Smith’s behaviour was part of the workshop’s role play, was really saying that the Claimant that as a participant he was not “in on” the fact that the participants were being assessed by their response to Ms Smith’s actions. There is no suggestion from the Claimant that that was to do with race, and the Tribunal finds that it was not. Rather, the Tribunal finds that it was to do with his being a participant whose ability to manage difficult situations was being observed and assessed by the Respondent; 85 of 118(ii) The seventh complaint was not upheld because an email provided to Mr Williams did contain suggested sources of support for the Claimant, and so the complaint that Ms Smith disregarded his mental health was contradicted by it. That was unrelated to race; and(iii) The ninth complaint was not upheld because Mr Williams did not consider that Ms Smith could rightly be said to have “failed” to tackle inappropriate behaviour if she did not know the behaviour was inappropriate. Again, there is nothing to relate this to race.[371]Complaint 11 therefore does not succeed. Complaint 12: That Mr Williams’ handling of and decision reached in relation to Grievance 2 was victimisation The protected acts[372]The matters that the Claimant relies on as “protected acts” for section 27 purposes are grievances. Those are capable of being “protected acts” for section 27 purposes if they make an allegation (whether or not express) that the Respondent or a particular person/s at the Respondent has contravened the 2010 Act (section 27(2)(d)), or are brought in connection with the 2010 Act (section 27(2)(c).[373]The Respondent accepts that PA1, PA4 and PA5 were protected acts for section 27 purposes, as they complain of discrimination and/or victimisation rendered unlawful by the 2010 Act. It does not accept that the making of either PA2 or PA3 was a protected act because, it says, neither of those grievances refer to breaches of the 2010 Act.[374]In relation to PA2, a grievance raised by the Claimant on 16 February 2022: a) That grievance did not identify the category of grievances of “bullying, harassment, discrimination and victimisation” that most closely aligns with 2010 Act victimisation as applying to it; b) It complained about the outcome of the Claimant’s appeal in relation to Grievance 2 – that none of the 19 grounds of appeal were upheld, that the Claimant did not understand how the decision was reached, that he did not think the rationale for the decision was right, or that the right information was considered; and c) It complained that there was no further appeal from a grievance appeal conclusion. 86 of 118[375]The Tribunal finds that PA2 was not a protected act, as it contained no assertion of any 2010 Act breaches. PA2 does not meet any of the conditions in section 27(2).[376]PA3, raised on 14 March 2022, was in those respects identical to PA2, and therefore was also not a protected act.[377]The two “handling” complaints made by the Claimant that do not relate to the decision Mr Williams reached (dealt with below) were that: a) Mr Williams did not agree terms of reference with the Claimant before conducting his investigation and reaching a conclusion; and b) Mr Williams showed preferential treatment to the evidence given by senior management when it conflicted with the evidence given by the Claimant and others not of that senior management level.[378]On the first of those “handling” complaints, it is accepted by the Respondent that there was no terms of reference document agreed between Mr Williams and the Claimant, but the Tribunal has found that the majority of the substance of what would be set out in such a document was in fact agreed by Mr Williams and the Claimant in their meeting of 17 June 2021 and its aftermath. The matters ordinarily included in a terms of reference document (if used) that were not discussed and agreed were: a) The guidance or policies of the Respondent that applied to the complaints; and b) The timescale within which the Claimant might expect Mr Williams to revert with his decision.[379]As the applicable Respondent guidance and policies were considered and taken into account by Mr Williams in reaching his conclusions on Grievance 2, and was generally discussed in the meeting on 17 June 2021 (though the names of the relevant guidance documents were not specified), and there was further engagement between the Claimant and Mr Williams whereby the Claimant could continue to “make his case” for why his complaints should be upheld, providing ample opportunity for him to cite relevant guidance and policies, the failure to agree those in terms of reference did not subject the Claimant to detriment.[380]The failure to inform the Claimant of the expected timescale for the grievance outcome cannot rightly be regarded as a detriment in the context of Mr Williams having fairly regular contact with the Claimant in the period between their initial meeting on 17 June and the Grievance 2 outcome being delivered on 20 September. (The Claimant emailed Mr Williams commenting on the notes around 87 of 118 2 July, and sent further evidence on 17 and 31 August, and again on 16 September.) The Claimant could have asked at any time if he wished to know.[381]Consequently, the Tribunal has found the second “handling” complaint not to be made out on the facts, and so that part of Complaint 12 cannot succeed.[382]Given that Mr Williams upheld or partially upheld seven out of the Claimant’s ten complaints that comprised Grievance 2 it is wrong to characterise his conclusions on Grievance 2 as a “detriment” to the Claimant. Nor, for the reasons described in relation to Complaint 11 above, does the Tribunal find that those complaints which Mr Williams did not uphold were not upheld for reasons relating to race. Causation[383]Mr Williams’ decision on Grievance 2 was reached on 20 September 2021, and so post-dated PA1 but pre-dated PA4 and PA5 by approximately six and nine months respectively.[384]PA1 was the grievance that Mr Williams was investigating. It is possible that a person could subject a claimant to detriment in the decision reached on the grievance for having raised the grievance in the first place, but the Tribunal finds it did not happen on this occasion. There is nothing to suggest that Mr Williams’ reasons in not upholding the three out ten complaints that he did not uphold (or partially uphold) was for any reason other than the evidence before him concerning those complaints. If Mr Williams had wished to punish the Claimant for bringing Grievance 2, he likely would not have upheld or partially upheld seven of the ten complaints he made.[385]There is no reason to suppose that Mr Williams anticipated the Claimant bringing the future grievances that would form the basis for PA4 and PA5.[386]Complaint 12 therefore does not succeed. Complaint 13: That the handling of and decision reached in respect of Grievance 1 by Mrs Greenwood on 29 September 2021 was an act of direct discrimination because of[387]As set out in the Facts section, the Tribunal has found that none of the first five of the Claimant’s “handling” complaints concerning aspects of Mrs Greenwood’s 88 of 118 investigation and consideration of Grievance 1 were supported by the factual evidence. The Claimant has not satisfied the Tribunal that they occurred.[388]As for the sixth, that Mrs Greenwood did not inform the Claimant or Mr Watson of her impending retirement and so could not be held accountable, Mrs Greenwood thought she had informed the Claimant of this, but even if she did not, the Claimant has been able to challenge her approach and conclusions, and did so in his appeal against her decision.[389]Accordingly, the Tribunal finds that none of the “less favourable treatment” the Claimant contends he was subjected to in the handling of Grievance 1 is supported by the evidence.[390]As for the decision itself, Mrs Greenwood largely upheld the Claimant’s complaints. The decision was not entirely what he would have wished, given that Mr Vig’s inappropriate behaviour was deemed not to have amounted to bullying, and the fact that Mr S Patel’s bullying was found to have been unintentional lessened the strength of the recommendations made in respect of him. Furthermore, Mrs Greenwood offered observations on the Claimant’s behaviour and recommendations for him as well as for the subjects of the grievance.[391]However, the Claimant has made no case whatsoever that this treatment – if it is to be rightly regarded as “less favourable” - was because of race. He has done no more than assert a bare difference in treatment. This is insufficient to shift the burden of proof (Madarassy).[392]Complaint 13 therefore does not succeed. Complaint 14: That Mrs Greenwood indirectly discriminated against the Claimant by applying a practice to him in relation to his race on 29 September 2021[393]Specifically, the Claimants asserts that Mrs Greenwood applied a practice in dealing with Grievance 1 of: 89 of 118[394]As set out in the Facts section above, the Tribunal finds that none of the Respondent, the group of decision and appeal managers he names as having applied these practices, nor Mrs Greenwood, had such practices generally (in the sense of applying them to anyone other than the Claimant), and so this complaint cannot succeed.[395]Moreover, the Tribunal finds that Mrs Greenwood did not apply either the first or the third Alleged PCPs to the Claimant, and that she did not apply the second Alleged PCP, as pleaded, to him. If the second Alleged PCP is rightly to be understood as a practice of not considering less-than-overt racism, there was one instance where the Tribunal found that Mrs Greenwood did this. In any event, Complaint 14 still fails, because it depends upon there being a general practice in operation that was applied to a group that included the Claimant.[396]Significantly, there has also been no evidence proffered to support a finding that the sub-group the Claimant defines himself as being part of – people of AfroCaribbean heritage – were or would be put at a particular disadvantage by the application of any of these Alleged PCPs.[397]Moreover: a) The application of the first Alleged PCP would disadvantage all persons complaining of bullying under the policy (which is not confined to complaints of bullying related to protected characteristics under the 2010 Act, but applies to all acts of bullying). The Claimant has not shown that any particular disadvantage would be suffered by his sub-group. b) The application of the second Alleged PCP could be advantageous to people of Afro-Caribbean heritage, if it should properly be understood as an alleged practice of actively looking for examples of overt racism. It would not be advantageous if it should rightly be understood as referring to a practice of neglecting to look for less-than-over race discrimination. Such a practice, if established, would disadvantage people of AfroCaribbean heritage, who are more likely to complain of less-than-overt discrimination than people of majority racial heritage, such as white people – but the Claimant has not established that such a practice existed. c) The application of the third Alleged PCP, of raising the issue of race even when it has not been referred to in the grievance, would also be expected to advantage people of Afro-Caribbean heritage – representing the taking of the proactive anti-racist stance for which the Claimant has admirably been advocating within the Respondent.[398]Complaint 14 therefore fails. 90 of 118 Complaint 15: That the handling of and decision reached by Mrs Greenwood in respect of Grievance 1 on 29 September 2021 amounted to harassment related to[399]The Tribunal has found that none of the first five of the Claimant’s “handling” complaints relating to Mrs Greenwood’s investigation and consideration of Grievance 1 occurred.[400]The same is true of the sixth “handling” complaint - that Mrs Greenwood did not inform the Claimant or Mr Watson of her impending retirement and so could not be held accountable. The Tribunal has found that even if Mrs Greenwood did not inform the Claimant or Mr Watson of her upcoming retirement, Mrs Greenwood’s process and decision could be and was capable of being held to account by the appeal process, so the complained of conduct did not occur.[401]As regards the decision reached by Mrs Greenwood, and as noted in the context of Complaint 13, she largely upheld the Claimant’s complaints. The decision was not entirely as he would have wished, given that Mr Vig’s inappropriate behaviour was deemed not to have amounted to bullying, and Mr S Patel’s bullying was found to have been unintentional. These aspects of the decision were unwanted conduct. Harassment[402]The remaining issues to determine in order to conclude whether Complaint 15 succeeds are: a) Whether the unwanted conduct had the proscribed purpose or effect; and b) Whether it related to race.[403]The legislative language of the proscribed purpose or effect is set at a high level – the purpose or effect must violate the Claimant’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. The case law reminds tribunals not to “cheapen” that language by finding that purpose or effect too readily.[404]The terms of reference for Grievance 1 describe the Claimant’s feelings about the actions of Mr Vig and Mr S Patel in the following terms: “In the context of previous interactions with [Mr Vig] and [Mr S Patel], [the post“Our Conversation” emails] in addition to historic behaviours [the Claimant] has been subjected to from [Mr Vig] and [Mr S Patel] has led to [the Claimant] having 91 of 118 feelings of anxiety, stress, distress, feeling unsupported, insulted, emotional and experiencing sleep deprivation.”[405]This description is arguably sufficient to meet the proscribed effect for harassment, but it is not the behaviour of Mr Vig and Mr S Patel that the Claimant relies upon as the basis for this Complaint 15 (or indeed, any of the harassment complaints), but the handling and decision of Mrs Greenwood in relation to Grievance 1. There is limited evidence of the effect of Mrs Greenwood’s handling and decision in relation to Grievance 1 on the Claimant.[406]It the context where most of what the Claimant complained of was upheld by Mrs Greenwood’s decision, it is not credible to argue that the purpose or effect of Mrs Greenland’s decision was of the proscribed kind.[407]Mrs Greenwood’s evidence was that she did not intend to violate the Claimant’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for him, and the Tribunal accepts that. While her additional comments on the Claimant’s own behaviour were not accepted by him, they were not made so as degrade, humiliate or offend him, or to violate his dignity (and nor can they be characterised as intimidating, hostile or offensive), but were made in an attempt to help him and Mr Vig and Mr S Patel move forward in their working relationship.[408]As to whether Mrs Greenwood’s: a) Failure to uphold all aspects of his complaints; b) Failure to characterise Mr S Patel’s bullying behaviour as intentional; or c) Comments about the Claimant’s own behaviour, had the proscribed effect, again we have little evidence from the Claimant. The Claimant’s oral evidence on this subject to the Tribunal focused on Mrs Greenwood’s comments on his own behaviour in the “Our Conversation” meeting which, the Claimant says, was not the subject of his grievance (that was focused on the after-meeting email correspondence). This, he said, followed from an irrelevant line of questioning he was subjected to by Mrs Greenwood about what happened at the “Our Conversation” meeting. This questioning, he said, did not degrade him, but made him feel uncomfortable because it had no bearing on his grievance.[409]Even if Mrs Greenwood’s decision had the proscribed effect, the Claimant has made no case that that unwanted conduct “related to” race. It is clear that, while the “Our Conversation” meeting related to race, Mrs Greenwood’s conclusions on Grievance 1 were not. Those conclusions that the Claimant did not support were: a) That Mr Vig’s behaviour did not amount to bullying because he found it difficult to deal with what he perceived to be aggressive behaviour by the Claimant; and 92 of 118 b) Mr S Patel’s behaviour in questioning the assistance the Claimant could provide was bullying but was not intended to be so.[410]Nor were Mrs Greenwood’s comments on and recommendations pertaining to the Claimant’s own behaviour related to race – they were related to the breakdown of the relationship between the Claimant and Mr S Patel, and the strained relationship between the Claimant and Mr Vig.[411]Consequently, Complaint 15 does not succeed. Complaint 16: That Mrs Greenwood’s decision in relation to Grievance 1 on 29 September 2021 was a detriment on the ground that the Claimant had made a[412]The protected disclosure relied upon by the Claimant is that made to Trish Kelly on 16 February 2022, so nearly five months after Mrs Greenwood reached her conclusions on Grievance 1. That report complained about the practices followed by decision and appeal managers in the handling of grievances. No evidence or assertion has been made to the Tribunal that Mrs Greenwood knew that the Claimant would be making this protected disclosure nearly five months after taking her decision on Grievance 1, or that it influenced her decision in any way.[413]Complaint 16 does not succeed. Complaint 17: That the rejection of the Claimant’s application to be part of RBAG on 22 December 2021 was an act of direct discrimination because of race[414]The Claimant was unsuccessful in his RBAG application, and that amounted to less favourable treatment than others who were successful.[415]However, the contention made by the Claimant to the Tribunal was that Ms Ahmed recognised his application and manipulated the assessment process so as to ensure his application was rejected because the Claimant had raised a grievance against her. The Claimant has not presented a case that the reason for the difference in his treatment versus successful applicants was race.[416]The Claimant has not shifted the burden of proof in relation to this complaint (Madarassy), and it fails. Complaint 18: That the rejection of the Claimant’s application to be part of RBAG on 22 December 2021 was an act of victimisation[417]As described in relation to Complaint 17, the Claimant’s application to be part of RBAG was rejected, and he has made argument to the Tribunal that the reason for the rejection was the fact that he raised Grievance 2, of which Ms Ahmed was 93 of 118 one of the subjects complained about. Ms Ahmed, together with Mrs Herbert, were the decision-makers regarding the RBAG applications.[418]The rejection of the Claimant’s application was a detriment, but the key question is causation: whether he was subjected to that detriment because he had done a protected act, or the person who subjected him to it believed he had done or would do a protected act.[419]In making his victimisation complaints, the Claimant relies on three acts which the Tribunal has found to be “protected acts” for section 27 purposes: a) The raising of Grievance 2 by the Claimant on 25 January 2021, which concerned the actions of Ms Ahmed and Ms Smith in relation to the Race Equality Workshop facilitation upskilling and its aftermath (PA1); b) The raising of a further grievance by the Claimant on 15 March 2022, which related to the rejection of the Claimant’s application to the RBAG (PA4); and c) The raising of a further grievance by the Claimant on 27 June 2022 relating to the EAS note (PA5).[420]It is plausible that Ms Ahmed, being in the position to assess applications to join a new group with which she would likely have ongoing interaction, would wish to ensure that the application of the Claimant, a person who had raised a grievance about her, was not successful.[421]However, the Tribunal has found as a matter of fact that: a) Ms Ahmed did not conduct an initial sift of applications, so the decision about who was appointed to RBAG and who was not was taken by Ms Ahmed and Mrs Herbert jointly; and b) Ms Ahmed did not recognise the Claimant’s application from among the 52 anonymised applications that were considered by her and Mrs Herbert.[422]In light of this, Complaint 18 fails. There is no basis for the Tribunal to find that the rejection of the Claimant’s RBAG application was on the ground that he had done a protected act. Complaint 19: Mr Redford’s handling of and decision reached on 24 January 2022 concerning the Claimant’s appeal against the Grievance 1 outcome was an act of[423]The complaint the Claimant makes regarding the “handling” of this appeal is that Mr Redford was supplied with the incorrect terms of reference by HR EAS. It seems clear that he was. What is also clear is that terms of reference are only 94 of 118 agreed, if at all, at the decision stage. New terms of reference are not agreed at the appeal stage.[424]It could be that the provision of the incorrect version of a document to Mr Redford subjected the Claimant to less favourable treatment, but the Tribunal finds that it did not. The differences between the two versions (as set out in the Facts section above) did not affect Mr Redford’s task at the appeal stage given: a) Mrs Greenland had considered the behaviour complained of in the context of the previous interactions between the Claimant and the subjects of Grievance 1. Significant parts of Mrs Greenland’s decision notice reflected on the relevance of those previous interactions, and that context changed her assessment of Mr S Patel’s behaviour in a way that supported the Claimant’s complaint against him. b) More than one of the Claimant’s appeal grounds complained that the historic interactions and relationship between him and the subjects of his grievance had been given insufficient consideration by Mrs Greenland, so Mr Redford engaged with that matter in any event. c) Mrs Greenland’s decision notice recorded that she met with the three additional witnesses listed in the later of the two sets of terms of reference, and Mr Redford confirmed that he had access to all the relevant papers, which would have included notes of those meetings. Mr Redford’s appeal notice confirmed that he had all the documents he thought relevant, including those documents listed in a schedule provided by the Claimant’s trade union representative, Mr Watson. It is improbable that the Claimant and Mr Watson did not include the notes of the interviews with those witnesses if Mr Redford did not have them. d) The same applies to the meeting notes between the Claimant and Mrs Greenland on 15 December 2020.[425]Therefore it is clear that there was in fact no disadvantage experienced by the Claimant by the incorrect terms of reference being sent to Mr Redford. The “handling” complaint cannot therefore form the basis for a finding of direct discrimination.[426]As for Mr Redford’s decision, he rejected all 19 of the Claimant’s grounds of[427]The Claimant’s criticisms of Mr Redford’s findings are, in the main, very general, and amount to bare assertions rather than allegations that can be tested by the Tribunal. He says that “In this notice [Mr Redford] continued to victimise and discriminate against me… Failing to address my appeal in line with and provide 95 of 118 an Appeal Decision which accords with, the Respondents own guidance, policy and employment law.”[428]The only criticism which is clear (and this is the one that the Claimant referred to when giving his oral evidence) is that the Claimant says that Mr Redford’s finding on the tenth ground of appeal: “directly discriminated against me by stating under point 10 “the email exchange does not concern colour””.[429]The Tribunal has interpreted this as both: a) A complaint of discrimination relating to the Mr Redford’s designation of the Claimant’s email of 29 September 2020 as “not [concerning] colour”; and b) A complaint of discrimination pertaining to Mr Redford’s conclusion on that appeal point 10.[430]On the first, as this is pleaded as both an act of direct discrimination and harassment, section 212(1) provides that it cannot succeed under both heads. As this succeeds as a complaint of harassment (see Complaint 21 below), it is not considered further here.[431]In relation to the conclusion on ground 10, which was that Mr Vig, by sharing the Claimant’s email, harassed the Claimant on the basis of race (in this instance, meaning colour), Mr Redford was required to consider whether the action of sharing the Claimant’s email was “related to” race in order to reach a conclusion on the appeal ground. He concluded that it was not, but rather that the sharing of the email was about the running of an event (the to-be-resumed “Our Conversation” meeting).[432]The Tribunal considers that the “any thoughts” question Mr Vig posed could have been: a) Seeking thoughts on whether the team welcomed the Claimant’s offer of assistance in facilitating the discussion; b) Seeking thoughts on whether the team members agreed or disagreed with him that team as a whole was not anti-racist; or c) Both.[433]The latter two options would render the action of sharing the email as “related to” race.[434]The judgment that Mr Redford reached, that it was about a) and so not “related to” race, was most likely based on the notes of Mrs Greenwood’s interview with Mr Vig, although he did not cite those notes in reaching his conclusion. Mr Redford’s conclusion is consistent with the reason given by Mr Vig in his interview with Mrs Greenwood - where he said that he felt under pressure to submit an “Our Conversation” action plan, and was keen to get on with things – i.e., a nonrace-related reason. 96 of 118[435]On balance, while the Tribunal agrees with the Claimant that the Claimant’s 29 September 2020 email did “concern colour”, the Tribunal considers that Mr Redford was entitled to reach the conclusion that he did as to whether ground 10 of the Claimant’s appeal should be upheld. As that was a conclusion open to Mr Redford (as was a conclusion that the sharing of the email did “relate to” race), the question becomes whether Mr Redford’s decision was less favourable treatment because of race. The Tribunal finds that it was less favourable treatment, but it was not because of race – the Tribunal considers it more likely than not that the reason Mr Redford decided the sharing of the email was not “related to” race was based on Mr Vig’s evidence to Mrs Greenwood.[436]In summary, Complaint 19 fails because: a) Mr Redford’s handling of the Claimant’s appeal against Grievance 1 did not subject the Claimant to less favourable treatment; and b) Mr Redford’s decision on ground 10 of the Claimant’s appeal was made because of the evidence of Mr Vig that his sharing of the Claimant’s email was related to arrangements for the rescheduled “Our Conversation” meeting, rather than because of race. Complaint 20: That Mr Redford indirectly discriminated against the Claimant by applying the Alleged PCPs to him when determining his appeal against Grievance 1 on 24 January 2022[437]Specifically, the Claimant says that Mr Redford applied a practice in dealing with Grievance 1 of:[438]As set out in the Facts section above, the Tribunal finds that Mr Redford did not apply any of the Alleged PCPs to the Claimant, and so Complaint 20 fails. Complaint 21: Mr Redford’s handling of and decision on 24 January 2022 concerning the Claimant’s appeal against the Grievance 1 outcome amounted to harassment related to race[439]The legislative test in section 26 requires that there has been: a) Unwanted conduct; 97 of 118 b) That has the proscribed purpose or effect; and c) That unwanted conduct relates to race.[440]The Claimant’s complaint about Mr Redford’s “handling” of his appeal against Grievance 1 relates to the incorrect terms of reference being sent to Mr Redford. This was unwanted conduct - but conduct on the part of the HR EAS person supporting Mr Redford, who sent it to him. There is nothing to indicate that Mr Redford knew he was reading the incorrect version of the terms of reference document.[441]No case has been advanced by the Claimant that the HR EAS’s person’s purpose in sending the incorrect terms of reference was to violate his dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. No evidence has been proffered as to why the incorrect version was sent, and the reason could plausibly be human error. If there was a purpose behind it, it is unclear what that was, given Mr Redford had all the missing information from other sources in any event.[442]Nor has the Claimant said that the use by Mr Redford of the incorrect terms of reference had the proscribed effect on him. It would be surprising if it did, given that reliance on the incorrect terms of reference would have made no difference whatsoever to Mr Redford’s consideration of the Claimant’s appeal, for the reasons set out in relation to Complaint 19 above.[443]Furthermore, no argument has been made that the use by Mr Redford of the incorrect terms of reference, or the provision to Mr Redford of that incorrect document, was in any way “related to” race.[444]This part of Complaint 21 therefore does not succeed.[445]As for the decision Mr Redford reached on ground 10 of the appeal, the Claimant’s complaint pertains to Mr Redford’s approach to complaint 10, discussed above.[446]Mr Redford both: a) Said that the Claimant’s email of 29 September 2020 did not relate to colour – which it did; and b) Concluded that Mr Vig’s action in sharing that email with the team was related to the running of part 2 of the “Our Conversation” meeting and was not related to race.[447]On the designation of the Claimant’s email as “not [concerning] colour”: 98 of 118 a) Mr Redford’s written witness statement says that: “Whilst I did not uphold his appeal, this was not to do with the Claimant’s race. There was simply nothing unsound in Mary’s determination that I needed to overturn… I don’t accept that my handling of the appeal was unwanted conduct related to the Claimant’s race that had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.” b) The Claimant said in submissions were that, when he received the appeal notice from Mr Redford, he was “devastated” – he felt that he had highlighted Mr Vig’s treatment that was harassment, and for Mr Redford’s to not see the link to his (the Claimant’s) colour was racist. This is also a point he made on several occasions at other points of the hearing. c) Section 26(4) provides that when considering whether conduct has had the proscribed effect, account must be taken of:(i) The perception of the Claimant;(ii) The other circumstances of the case; and(iii) Whether it is reasonable for the conduct to have that effect. d) Here, the Claimant had, by this point in time, been going back and forth with Mr S Patel, Mr Vig, Mrs Greenwood and now Mr Redford for nearly four months complaining of his treatment after the “Our Conversation” meeting. He had been off sick for stress-related reasons, and had changed teams as his relationships with Mr Vig and Mr S Patel were so strained (not just because of the aftermath of the “Our Conversation” meeting). This matter began with the Claimant raising concerns about racism, in the context of his team having previously been managed by a person who several of the witnesses to the Tribunal described as racist, and Mr Redford failed to recognise that his email doing so concerned race. e) In light of these considerations, the Tribunal finds that it was reasonable for the conduct complained of - the designation of his email as not concerning colour – to have had the proscribed effect on the Claimant. As it was “related to” race, this part of Complaint 21 succeeds.[448]On Mr Redford’s conclusion of ground 10, that Mr Vig’s action in sharing that email with the team was related to the running of part 2 of the “Our Conversation” meeting and was not related to race: a) That was unwanted conduct – the Claimant wanted Mr Redford to uphold the ground of appeal; b) For the same reasons as for the email designation, it had the proscribed effect; but c) It was not related to race. Mr Redford’s conclusion was a conclusion open to him to make in light of the evidence from Mr Vig’s interview with Mrs 99 of 118 Greenwood (which she accepted), that Mr Vig’s action in sharing the email was not related to race but was to do with Mr Vig wishing to make arrangements for the running of an event (the to-be-resumed “Our Conversation” meeting). Mr Redford’s decision to uphold Mrs Greenwood’s decision was based on the evidence, not on race.[449]Consequently, part of Complaint 21 succeeds. The designation of the Claimant’s 29 September 2020 email to Mr Vig as “not [concerning] colour” by Mr Redford was an act of harassment.[450]The remaining part of Complaint does not succeed. The complaint concerning the “handling” of the appeal against Grievance 1 has not been effectively pleaded, and the burden of proof that sits with the Claimant has not shifted in relation to that allegation. As for the part of Complaint 21 that relates to Mr Redford’s decision on ground 10 of the Claimant’s grounds of appeal, that decision did not “relate to” race. Complaint 22: Mr Redford’s handling of and decision on 24 January 2022 concerning the Claimant’s appeal against the Grievance 1 outcome was a detriment on the ground that the Claimant had made a protected disclosure[451]There was no detriment to the Claimant relating to the “handling” of the Claimant’s appeal against Grievance 1 by Mr Redford. While the incorrect terms of reference were sent to Mr Redford, this made no difference to his handling of the Claimant’s[452]The matters the Claimant complains about in relation to the outcome of the appeal are: a) Mr Redford’s designation of the Claimant’s 29 September 2020 email as “not [concerning] colour”; and b) Mr Redford’s conclusion on ground 10 of the Claimant’s appeal.[453]The protected disclosure that the Claimant relies upon is that he made to Trish Kelly on 16 February 2022. That disclosure post-dated Mr Redford’s appeal notice by around three weeks.[454]The legislative language of section 47B of the 1996 Act (protected disclosure detriment) provides that: 100 of 118 “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer does on the ground that the worker has made a protected disclosure.” (emphasis added)[455]In other words, the protected disclosure must pre-date the averred detriment.[456]Moreover, no evidence has been presented that Mr Redford knew that the Claimant was going to make a protected disclosure, or that Mr Redford’s actions were in any way influenced by the protected disclosure.[457]Complaint 22 therefore fails. Complaint 23: That addressing the Claimant’s post on Yammer as “potentially defamatory” on 4 February 2022 was an act of harassment related to race[458]The Respondent accepts and agrees that Mrs Cecil labelled the Claimant’s Yammer Post as “potentially defamatory” in a call on 4 February 2022, but it disputes that doing so was an act of harassment related to race.[459]The Tribunal has assessed this complaint by reference to the elements of the legislative test as follows: a) This was unwanted conduct. The Claimant did not want the Claimant’s Yammer Post to be described in this way (and subsequently went to some trouble to try to understand the reasons why it was). b) The conduct did not have the proscribed purpose. As was clear from the evidence, Ms Rawnsley, one of the Co-chairs of the Race Network, told Mrs Hilton in the same call that the Respondent did not want to silence the Claimant (this was recorded in notes made by Mrs Cecil). Mrs Cecil endeavoured to explain her position that she was concerned about the potential for the Claimant’s Yammer Post to be leaked into the public domain, and that she thought it was “potentially defamatory”. While the Respondent had administrator rights and could have removed the post itself, it significantly did not do so, but gave the Claimant some time to think about whether to delete it himself because they wanted him to be the one to remove it (which he did). This behaviour is inconsistent with the Respondent, or Mrs Cecil, having the proscribed purpose. The Tribunal finds that they did not. c) As to whether the conduct had the proscribed effect, the Claimant was undoubtedly very upset and angry, particularly that an explanation was not forthcoming as to why the Claimant’s Yammer Post was “potentially defamatory”. Section 26(4) provides that account should also be taken of the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. 101 of 118(i) The other circumstances of the case which the Tribunal has considered are that: The Claimant and others say that the previous leader of his team was racist, and this was not challenged by the The Claimant had experienced a difficult relationship with Mr Vig, and particularly with Mr S Patel, some of which he attributed to his anti-racist stance; The Claimant had raised and appealed the outcomes of two grievances, each of which included allegations of race discrimination; The Claimant was disappointed with the outcomes of those processes, and this was a significant driver to his writing the post (which was largely about the Respondent’s process and response to complaints of this nature); The Claimant knew the post was incendiary. While he maintained before the Tribunal that he did not consider it to be so, that is simply implausible in light of the content of the post. While the Claimant posed a question in the title of the post and explored the issues in it, it is evidently a highly critical post of the Respondent’s HR team and those managers who had been involved in the Claimant’s own grievances. The fact that the Claimant knew it was incendiary is supported by the fact that he asked two more senior colleagues, Mr Riley and Mrs Hilton, to read it before he posted it; The Respondent had a responsibility to care for the welfare of its employees, which included the Claimant, its HR team, its management team and other users of the Respondent’s Yammer site; This was a Yammer site provided by and sponsored by the Respondent, and it bore some responsibility for its content; There were external people who had access to the Respondent’s Yammer site; and The Claimant must have been aware of the Yammer Usage Principles, because the unchallenged evidence of the Respondent is that he would have accepted them as part of gaining access to it. Some of those principles were blatantly offended by the Claimant’s Yammer Post (the post was not “impartial”, the Claimant had not exercised “discretion” when writing about his own experiences, it was not “constructive” in 102 of 118 its criticism, it was not “concise”, and it breached the principle that users should “avoid posting anything that could harm the reputation of HMRC”).(ii) Whether it is reasonable for the conduct to have that effect. It was not reasonable for Mrs Cecil’s labelling of the Claimant’s Yammer Post as “potentially defamatory” to have had the proscribed effect. The Claimant had written the post to start debate, and he had written it in a way that was damningly critical of the Respondent. He knew he was going to stir something up, and that was his purpose in writing the piece, as he wanted to spark debate and bring about change. As it was not reasonable for the conduct to have the proscribed effect, Complaint 23 fails. d) In addition, the Tribunal finds that the labelling of the Claimant’s Yammer Post as “potentially defamatory” was not “related to” race – it was related to the fact it was heavily critical of the Respondent’s HR and management team’s approaches to grievances raising concerns of racism, bullying and harassment, and could cause significant reputational damage were it to be shared outside the Respondent’s organisation. While the Tribunal recognises that conduct can be “related to” race even where there is no discriminatory intent on the part of the actor (Grant), the reason for the treatment was the strength of the criticism of the Respondent. If the Claimant had been making such damning criticisms of the Respondent in a context other than that of race, or any protected characteristic, the Tribunal considers that the Respondent would also have called that post “potentially defamatory”. Mrs Cecil gave evidence that her reference to “defamatory” derived from the Yammer Usage Principles, and the Respondent’s Acceptable Use Policy (both of which refer to this). The Tribunal accepts her evidence that this label would have been attached to an equivalent post outside the context of protected characteristics. This is a situation analogous to the Kelly case, where the instruction was because of a security concern, not because of the claimant’s race.[460]Consequently, Complaint 23 fails both because it was not reasonable for the conduct to have had the proscribed effect, and it was not “related to” race. Complaint 24: That addressing the Claimant’s post on Yammer as “potentially defamatory” on 4 February 2022 was an act of victimisation[461]The questions relevant to answering this complaint are: a) Did the Claimant do a protected act? b) If yes, did the Respondent subject him to a detriment? 103 of 118 c) If yes, was the Claimant subjected to that detriment because they had done a protected act, or the Respondent believed they had done or might do a protected act?[462]In relation to that first question, by this point in the chronology the Claimant had (the Respondent accepts and the Tribunal agrees) done a protected act – PA1, being his raising of Grievance 2, which related to Ms Smith and Ms Ahmed and the feedback he received following the Race Equality Workshop facilitation exercise.[463]The Respondent accepts and agrees that it labelled the Claimant’s Yammer Post as “potentially defamatory” on 4 February 2022. As to whether that amounted to a detriment, it is relevant to consider the EHRC Code, paragraph 9.8 of which indicates that: “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage.”[464]Here, the Claimant had written and posted the Yammer post. The content of that post was deliberately provocative and strongly critical of the Respondent. The Tribunal considers that labelling the post as “potentially defamatory” was not a detriment – it did not change the Claimant’s position for the worse or put him at a disadvantage. The Claimant had chosen to write the Claimant’s Yammer Post in the terms he did, and chosen to post it. The Tribunal finds that the Respondent saying what it thought the post did not change the Claimant’s position at all, it just described the post as Mrs Cecil saw it relative to the Respondent’s Yammer Usage Principles. The Respondent’s addressing the Claimant’s Yammer Post as “potentially defamatory” was not a detriment.[465]As for the causation question, it is possible that Mrs Cecil, in the course of frantically engaging with various members of the Respondent’s Comms and HR teams, learned that the Claimant had raised a grievance which concerned Ms Smith and Ms Ahmed, who were senior members of the Respondent’s HR team, but there is no evidence to support this conjecture on the part of the Claimant, and clear evidence from Mrs Cecil that she did not. The Tribunal finds that she did not know of the Claimant’s grievances on 4 February 2022.[466]Consequently, Complaint 24 fails. Complaint 25: That the deletion of the Claimant’s Yammer Post on 10 March 2022 by Mrs Cecil was harassment related to race[467]It is accepted by the Respondent that Mrs Cecil deleted the Claimant’s Yammer Post on 10 March 2022.[468]The Tribunal has assessed this complaint by reference to the elements of the legislative test as follows: 104 of 118 a) This was unwanted conduct. The Claimant did not want the Claimant’s Yammer Post to be deleted. b) The conduct did not have the proscribed purpose.(i) It was clear that the Respondent did not want to silence the Claimant, as was shown by its response to his initial Yammer post on 4 February 2022, and by Mrs Cecil’s email to the Claimant after the deleted the post.(ii) There had been some efforts made by the Respondent to engage with the Claimant about the Claimant’s Yammer Post in the intervening period between the initial post and the second post (the meetings on 7 and 14 February, and email correspondence between the Claimant and Mr H Patel), though they significantly failed to explain what about the post was regarded as “potentially defamatory”. These were clear efforts on the Respondent’s part to recognise and acknowledge the reasons for the Claimant’s post, and to explain its position that it was not looking to silence him but also that the Yammer Usage Principles needed to be complied with. This behaviour is inconsistent with the Respondent, or Mrs Cecil, having the proscribed purpose. The Tribunal finds that they did not. c) As to whether the conduct had the proscribed effect, the Claimant was undoubtedly very upset and angry, particularly that he had deleted the post on the understanding that an explanation would be provided as to why the Claimant’s Yammer Post was “potentially defamatory”, and by a month later that had not happened. Section 26(4) provides that account should also be taken of the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. (i) The other circumstances of the case which the Tribunal has considered are that: The Claimant and others say that the previous leader of his team was racist, and this was not challenged by the The Claimant had experienced a difficult relationship with Mr Vig, and particularly with Mr S Patel, some of which he attributed to his anti-racist stance; The Claimant had raised and appealed the outcomes of two grievances, each of which included allegations of race discrimination; The Claimant was disappointed with the outcomes of those processes, and this was a significant driver to his writing the 105 of 118 post (which was largely about the Respondent’s process and response to complaints of this nature); The Claimant knew the post was incendiary; The Claimant had deleted the post on the Respondent’s request, on the understanding that a dialogue would follow during which the Respondent’s concerns with the post would be made clear to the Claimant; The Respondent had a responsibility to care for the welfare of its employees, which included the Claimant, its HR team, its management team and other users of the Respondent’s Yammer site; This was a Yammer site provided by and sponsored by the Respondent, and it bore some responsibility for its content; There were external people who had access to the Respondent’s Yammer site; The Claimant must have been aware of the Yammer Usage Principles, because the unchallenged evidence of the Respondent is that he would have accepted them as part of gaining access to it. Some of those principles were blatantly offended by the Claimant’s Yammer Post (the post was not “impartial”, the Claimant had not exercised “discretion” when writing about his own experiences, it was not “constructive” in its criticism, it was not “concise”, and it breached the principle that users should “avoid posting anything that could harm the reputation of HMRC”); The Respondent had previously engaged with the Claimant about the post and reasonably expected that that engagement would continue given that Mr H Patel had set up a further meeting to discuss it; and The Respondent had previously given the Claimant an opportunity to delete the post, which he did, but he was unlikely to do so again given his decision to re-post, so the Respondent could either tolerate the post or delete it. (ii) Whether it is reasonable for the conduct to have that effect. It was not reasonable for Mrs Cecil’s deletion of the Claimant’s Yammer Post to have had the proscribed effect. The Claimant had written the post to start debate, and he had written it in a way that was damningly critical of the Respondent. He knew he was going to stir something up, and that was his purpose in writing the piece, as he wanted to spark debate and bring about change. He had been told 106 of 118 in February that the Respondent may delete the post if he did not do so himself, so he knew that was the likely consequence of reposting. The Claimant knew that Yammer was a platform maintained by the Respondent, and that it had published principles because it was concerned to try to manage the content posted there. As it was not reasonable for the conduct to have the proscribed effect, Complaint 25 fails. d) The Tribunal also finds that the deletion of the Claimant’s Yammer Post, even though it was unwanted conduct and even if it had the proscribed purpose or effect, was not “related to” race: (i) It related to the fact that the post breached the Respondent’s Yammer Usage Principles in the ways previously described; (ii) It posed significant risk to the Respondent’s reputation if the post was to be made public; and(iii) It could have been distressing for other members of the Respondent’s staff. While Mr Watson gave evidence that he had previously made a highly critical post on a different Yammer page operated by the Respondent relating to health and safety matters that had not been deleted, Mrs Cecil gave clear evidence that if that was the case, it was because those within the Respondent’s Comms team were not aware of that post. This is unsurprising given that there were typically 1,200 posts per day on the Respondent’s Yammer site, which comprised more than 50 communities, and Mrs Cecil’s evidence was that, consequently, the Comms team was reliant on the relevant network administrator bringing it to their attention (which is what happened in the Claimant’s case). Mrs Cecil’s equally clear evidence was that she had deleted others Yammer posts besides the Claimant’s, both where the posts in question did and did not concern racism. The consistent theme was that they were posted deleted because they breached the Yammer Usage Principles. The Tribunal finds that the deletion of the Claimant’s Yammer Post was not “related to” race.[469]Complaint 25 therefore does not succeed. Complaint 26: That the deletion of the Claimant’s Yammer Post on 10 March 2022 by Mrs Cecil was an act of victimisation[470]The Respondent (Mrs Cecil) deleted the Claimant’s Yammer Post on 10 March 107 of 118[471]One of the Claimant’s protected acts had occurred by this time – PA1 – Grievance 2 concerning the Claimant’s complaints about Ms Smith and Ms Ahmed.[472]The removal of the Claimant’s Yammer Post was a detriment – the Claimant wanted the post to remain on Yammer.[473]By the time Mrs Cecil deleted the Claimant’s Yammer Post, she knew that the Claimant had brought a grievance against Ms Smith. The Claimant avers that Mrs Cecil deleted the Claimant’s Yammer Post because he had raised that grievance, Mrs Cecil denies that.[474]In support of his position the Claimant says: a) The Respondent was prepared to leave the post up in February 2022, and Mrs Cecil and others had started to think about how to change their weekend plans to monitor the response to it over the weekend. Something had now changed, and he thinks it was Mrs Cecil’s knowledge of PA1; and b) Ms Smith is very senior in the Respondent’s organisation, and he thinks she used her influence to get Mrs Cecil to remove the post.[475]Mrs Cecil says: a) The decision as to whether the Claimant’s Yammer Post was removed rested with her as the Yammer Community Manager. This is evidenced by the correspondence in the Bundle; b) While she was aware that the Claimant had raised a grievance against Ms Smith, she was not aware of any of the details of it, and did not form a view on the merits or otherwise of that grievance at all; c) She had formed her view on the Claimant’s Yammer Post in February, i.e., before her knowledge of PA1, and that view was that it an inappropriate post for Yammer. The Claimant had not altered the content of the post, and so her view still applied that it breached the Yammer Usage Principles; d) She and Ms Smith were colleagues who did some work together, but they were not friends. Mrs Cecil did not act so as to punish the Claimant for raising a grievance against Ms Smith; and e) While the Respondent told the Claimant that they would like him to remove the post on 4 February 2022, and while she and colleagues had begun to think about how to share the work of monitoring the response to the post over that weekend, no final decision had been made on 4 February 2022 as to whether the Respondent would delete the Claimant’s Yammer Post. As Mrs Cecil’s handwritten notes record, the personnel involved in the initial post from the Respondent’s side were due to meet again at 5pm that day for final discussions before a decision would be made as to whether the Respondent should delete that initial Yammer post. In the end, they did not need to, as the Claimant deleted it ahead of that planned meeting. There was no change in position on the Claimant’s Yammer Post between 108 of 118 4 February 2022 and 10 March 2022. All that changed was that the Respondent had to take a decision about whether or not to delete it as it was clear, by 10 March 2022, that the Claimant would not do so.[476]On balance, the Tribunal prefers the evidence of Mrs Cecil on this point. Knowledge of the fact that the Claimant had brought a grievance against Ms Smith might have had the opposite effect to the effect the Claimant contends – it might have, if anything, made Mrs Cecil more reluctant to delete the post because of the possibility of the Claimant raising a grievance against her (which is ultimately what happened). While something had changed between 4 February and 10 March, the Tribunal finds that that was not knowledge of Ms Smith’s grievance by Mrs Cecil, but Mrs Cecil’s taking the decision to delete the post that she would have taken on 4 February 2022 had the Claimant not been persuaded on that occasion to delete it himself. The Tribunal finds that the detriment of deleting the post was not because of PA1, and so Complaint 26 does not succeed. Complaint 27: That the handling of and decision pertaining to the Claimant’s appeal[477]As noted in the Facts section, neither of the “handling” complaints concerning Mr Blake is well-founded. This aspect of Complaint 27 does not succeed.[478]The Claimant’s contention is that Mr Blake directly discriminated against him because of race when Mr Blake upheld Mr Williams’ decision that the feedback given to the Claimant by Ms Smith was related to his facilitation skills and not to race.[479]The treatment complained of is Mr Blake’s decision to uphold Mr Williams’ decision. The appeal notice provides more context to that decision: “I am satisfied that I understand what actually happened. Colin Williams formed a view that Gillian Smith only sent the feedback following your call with Nahida Ahmed earlier in the day... You have made points about the accuracy of that feedback, and Colin Williams upheld that aspect of your concern. Having reached that decision and in the light of your call with Nahida Ahmed on earlier that day, I do think it reasonable that either Gillian Smith or Nahida Ahmed (in their roles of appointing facilitators) informed you that you were not accepted as a facilitator and provided you with the reasons. 109 of 118 You may not agree with those reasons in the feedback, but in my opinion, this does not meet the definition of harassment as the feedback related to your facilitation skills and did not relate to the protected characteristic of race.”[480]The reason Mr Blake concluded as he did was because he thought Mr Williams’ reasons were sound. There is no indication that race played any part in that decision (Shamoon). The Claimant has failed to shift the burden of proof, and Complaint 27 fails. Complaint 28: That Mr Blake indirectly discriminated against the Claimant on 11 March[481]Specifically, the Claimant says that Mr Blake applied a practice in dealing with his appeal against the outcome of Grievance 2 of:[482]The Tribunal has found that the Claimant has not established that the Respondent, the decision or appeal managers he cites in his complaints, or Mr Blake individually, had a practice of operating the Alleged PCPs, in the sense of applying them to any person other than the Claimant.[483]Moreover, as regards the second and third of the Alleged PCPs, the Tribunal has found that Mr Blake did not apply them to the Claimant.[484]As a result, Complaint 28 cannot succeed. Complaint 29: That the handling of and decision pertaining to the Claimant’s appeal[485]As noted in the Facts section above, neither of the Claimant’s complaints about Mr Blake’s “handling” of the appeal against Grievance 2 is supported by the facts, so this part of Complaint 29 does not succeed on that basis. 110 of 118[486]The part of the appeal outcome that the Claimant has complained of is Mr Blake’s conclusion in relation to appeal ground 3, that the feedback given did not meet the definition of harassment because it related to the Claimant’s facilitation skills and did not relate to the protected characteristic of race.[487]Mr Blake’s conclusion on this point was unwanted conduct, but whether it amounts to harassment depends on whether: a) That conduct had the purpose or effect of violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant; and b) That conducted “related to” race.[488]Mr Blake’s conclusion clearly did not have the proscribed purpose. Mr Blake was appointed to hear and determine the Claimant’s appeal, and his purpose was to do that. There is no evidence to support any contention (which the Claimant has not made in any event) that Mr Blake’s purpose in concluding as he did on this ground 3 was anything other than determining that appeal fairly.[489]The Claimant’s witness statement sets out that Mr Blake’s decision was “upsetting and affecting my health and wellbeing, given the time this matter had been ongoing”. Firstly, it is not clear whether the effects were caused by the decision itself or the time taken to reach it. Secondly, there is insufficient evidence to understand that the effect on the Claimant meets the legislative requirements. In any event, it was not reasonable for Mr Blake’s decision on this ground 3 to have that effect – it was a perfectly sound decision, taken in the context of an appeal process the Claimant brought (i.e., the Claimant sought the determination of his appeal, albeit that he thought the appeal well-founded).[490]Moreover, Mr Blake’s decision was not “related to” race – it was related to the evidence before him, and he was endeavouring to explain to the Claimant why he reached the conclusion he had that Mr Williams had reached a decision that was appropriate and reasonable in the circumstances. While the context in which the underlying complaint arose was feedback given following of a race equality workshop, and while the Claimant is a person of colour and BAME (to use his descriptors), those features do not mean that the feedback given was “related to” race, or that Mr Williams failed to recognise that. The feedback related to the Claimant’s facilitation skills. Mr Blake’s own decision was a step removed from that again. Mr Blake was saying to the Claimant in the appeal notice that he (Mr Blake) understood the reason Mr Williams had given and why he had come to the conclusion he had, and Mr Blake found that Mr Williams’ decision to be appropriate and reasonable in the circumstances. There is no evidence to support the Claimant’s contention that Mr Blake’s conclusion on this was “related to” race. The Tribunal finds that it was not.[491]Consequently, Complaint 29 does not succeed. 111 of 118 Complaint 30: That the handling of and decision pertaining to the Claimant’s appeal[492]As noted in the Facts section above, the “handling” complaints are unfounded, and therefore cannot form the basis for a complaint of victimisation.[493]Mr Blake’s decision on the Claimant’s appeal pre-dated PA4 and PA5, but postdated PA1, i.e., by the time Mr Blake reached his decision the Claimant had done a protected act.[494]The next question is whether Mr Blake subjected the Claimant to a detriment. The Claimant regarded the comment Mr Blake made in relation to ground 3 of the appeal notice referred to above as a detriment. The Tribunal considers that Mr Blake’s comment was a reflection and explanation of what had already happened. It did not alter the Claimant’s position to his detriment. Mr Blake could have treated the Claimant more favourably by upholding appeal ground 3, but he did not subject him to detriment by not doing so.[495]If the Tribunal is wrong about that and Mr Blake did subject the Claimant to a detriment on this basis, the next question is whether Mr Blake subjected the Claimant to that detriment because the Claimant had done PA1.[496]Mr Blake obviously knew about PA1 because that was the genesis of the appeal he was considering, but there is no evidence to support the contention made by the Claimant that Mr Blake treated the Claimant detrimentally for having raised that grievance. Mr Blake is an experienced decision manager and appeal manager, and it is highly unlikely that he would be continuing to operate as such if he penalised appellants for having raised grievances in the first place. The Tribunal accepts his evidence that he did not do so here.[497]As a result, Complaint 30 fails. Complaint 31: That the handling of and decision pertaining to the Claimant’s appeal against the outcome of Grievance 2 by Mr Blake on 11 March 2022 was a detriment to which he was subjected on the ground that he had made a protected disclosure[498]This is the only complaint of protected disclosure that post-dates the relied upon disclosure of 16 February 2022, as Mr Blake’s decision on the Claimant’s appeal against the outcome of Grievance 2 was decided on 11 March 2022. 112 of 118[499]As noted in the Facts section, these are not well-founded, and so cannot form the basis for a complaint of protected disclosure detriment.[500]Mr Blake’s evidence is that he was not aware that the Claimant had raised a “whistleblowing concern” at the time he conducted the Claimant’s appeal process or when he made his decision. The Claimant has not put any case that he did.[501]Consequently, this Complaint 31 does not succeed. Time limits[502]The only complaint that succeeds is part of Complaint 21: the designation of the Claimant’s 29 September 2020 email to Mr Vig as “not [concerning] colour” by Mr Redford on 24 January 2022 was an act of harassment. This complaint arose from the First Claim, and was presented “in time”, and therefore the question of time limits need not be considered. Conclusions[503]For all of the above reasons: a) The designation of the Claimant’s 29 September 2020 email as “not [concerning] colour” was an act of harassment related to race; b) All of the Claimant’s other complaints fail and are dismissed.