Mr R Roberts v RELX Group plc and others: 2301550/2023 and 2301562/2023

EMPLOYMENT TRIBUNALS

Case No 2301550/2023, 2301562/2023

Between

Mr R RobertsClaimant

RELX Group Plc and othersRespondent

Before

Employment Judge Musgrave-Cohen

Date 9 January 2026

REASONS

[1]Strike out: At a preliminary hearing, if an Employment Judge considers that any specific allegation or argument in a claim or response has “no reasonable prospect of success” they may strike out the part of the claim or response (rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013.

[2]The power to strike out has been described as draconian and only to be used in rare circumstances (Tayside Public Transport Co Ltd v Reilly

[2012] IRLR 755

). Discrimination cases are commonly fact sensitive and should only be struck out in the clearest of cases (Mechkarov v Citibank

[2016] ICR 1121

. Paragraph 14 of Mechkarov reads: “14. On the basis of those authorities, the approach that should be taken in a strike out application in a discrimination case is as follows(1) only in the clearest case should a discrimination claim be struck out;

(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;

(3) the claimant’s case must ordinarily be taken at its highest;

(4) if the claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and

(5) a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”

[3]While the threshold of striking out discrimination claims is high it may be appropriate where there is a legal bar to the claim being pursued; the claim is inconsistent with undisputed contemporaneous documentation (Ezsias v North Glamorgan NHS Trust

[2007] IRLR 603

); there is no proper basis for supposing the claim will succeed at trial (ABN Amro Management Services Ltd v Hogben

UKEAT/0266/09/DM

); or the Tribunal is satisfied that there is no reasonable prospect of the facts necessary to liability being established, notwithstanding that it has not heard the evidence in full (Ahir v BA Plc

[2017] EWCA Civ 1392

[4]Deposit order: At a preliminary hearing, an Employment Judge may make an order requiring the party to pay a deposit to the Tribunal, as a condition of being permitted to advance the allegation or argument if the Judge considers that the specific allegation or argument has “little reasonable prospect of success” (rule 39(1) of the Employment Tribunals Rules of Procedure 2013.

[5]The test is not as rigorous as the “no reasonable prospect of success” test (Van Rensburg v Kingston upon Thames

UKEAT/0096/07

;

UKEAT/0095/07

). The Tribunal may make a provisional assessment of the credibility of a party’s case when deciding whether to make a deposit order (Ezsias).

[6]Nonetheless, the Tribunal should be wary of making an assessment of the strength of a party’s case from a review of documentary evidence where key facts are in dispute. In such cases, merits can often only be determined at a substantive hearing after hearing all the evidence. Page 5 of 34

[7]A H v Ishmail UKEAY/0021/16/DM sets out the consequences and the purpose of a deposit order as follows:

[10]A deposit order has two consequences. First, a sum of money must be paid by the paying party as a condition of pursuing or defending a claim. Secondly, if the money is paid and the claim pursued, it operates as a warning, rather like a sword of Damocles hanging over the paying party, that costs might be ordered against that paying party (with a presumption in particular circumstances that costs will be ordered) where the allegation is pursued and the party loses. There can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That, in our judgment, is legitimate, because claims or defences with little prospect cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resource, and unnecessary anxiety. They also occupy the limited time and resource of courts and tribunals that would otherwise be available to other litigants and do so for limited purpose or benefit.

[11]The purpose is emphatically not, in our view, and as both parties agree, to make it difficult to access justice or to effect a strike out through the back door. The requirement to consider a party’s means in determining the amount of a deposit order is inconsistent with that being the purpose … .” 8. If a Tribunal does consider a deposit order is appropriate as the allegation or argument has little reasonable prospect of success, it may make such an order not exceeding £1,000 as a condition of continuing to advance that allegation. Whether or not to make a deposit order is a matter of discretion for the Tribunal and does not follow automatically from a finding that a claim has little reasonable prospect of success. When making deposit orders, the Tribunal must make reasonable enquiries into the paying party’s ability to pay and must take this into account in fixing the level of the deposit. The purpose of the deposit order is not to effectively strike it out via the back door. Hence the Tribunal must take a step back and look at the overall sum ordered to ensure it has the purpose of pursuing the legitimate aim of discouraging the pursuit of claims with little reasonable prospect of success without making it so difficult for the paying party to pay that it is effectively struck out. 9. If the paying party fails to pay the deposit by the date specified by the Tribunal, the specific allegation or argument to which the deposit order relates will be struck out (rule 39(4) Employment Tribunal Rules). 10. I am grateful for, and have carefully considered, the parties submissions on the law before moving on to consider the Respondent’s application. Parties Submissions Page 6 of 34 11. It is the Respondent’s case that all allegations should be struck out as having no reasonable prospect of success or, alternatively, a deposit order of £1,000 should be made per allegation, per Respondent, for all remaining allegations. The Respondent addresses each allegation in turn explaining why, frequently by reference to multiple documents, the particular allegation should be struck out.

[12]The Claimant objects to the application and contends that all his allegations have prospects and should be permitted to proceed without any strike out or deposit order having been made. The Claimant responds in respect of each allegation. In addition, he makes several overarching points which I have considered. He says that his complaints are not wholly contained in the documents and that the live evidence on disputes of fact and credibility must be heard and tested. He also says that the Respondents rely on redacted documents which he says are obstructive and point away from it being appropriate to strike out the allegations or make a deposit order.

[13]The Claimant suggests that the application is premature having been originally made prior to the concluded list of issues. I note that at the point that the Tribunal is now considering the application, the claims and the issues before the Tribunal are now clear, not least as several Tribunal days have been spent and correspondence passed clarifying the issues. I make my decisions and give judgment on this application following my decisions on the various amendment applications.

[14]The Claimant asked the Tribunal to particularly take into account the authority of X v Y,

UKEAT/0322/12/GE

, paragraphs 35 and 36. I have reviewed the paragraphs the Claimant highlighted in yellow in the case of X v Y including the references to Quereshi v Victoria University at Manchester

[2001] ICR 863

and Anya v University of Oxford

[2001] ICR 847

. The case is authority for the proposition that the Tribunal that it is important to take a holistic view of all the relevant facts and to look at the matter in the round when considering whether the allegations of discrimination are made out. I note that whatever my decision on the strike out and deposit order application, the Claimant will still be able to invite the Tribunal to make relevant findings of facts as to those issues and ask the Tribunal to view them holistic with all other findings of fact when considering the remaining allegations of discrimination.

[15]This has not been an easy application to consider. It is highly unusual for Respondents to contend that each and every allegation presented by a Claimant is appropriate to be struck out and / or a deposit order made. It places a huge burden on an already stretched Employment Tribunal to ask that it consider an application of over 70 pages accompanied by many hundreds of pages of evidence.

[16]I have not considered it appropriate or proportionate to read all the bundle of documents that the Respondents have provided me with which, on an initial review, appear to be the majority of the documents in the investigation and disciplinary process including witness statements, investigation interviews, disciplinary hearing, appeal, appeal interviews, hearing and decision. To contend that the Tribunal need to read all of these documents in order to Page 7 of 34 make my decision on the application appears akin to asking the Tribunal to conduct a mini-trial on the documents without hearing the evidence. The case law expressly cautions against doing so.

[17]The Claimant is encouraged to carefully review the Respondents’ application and documents and take a sensible view himself of the merits of his case regardless of the decision I reach. Likewise, the Respondents are encouraged to read the detail of the Claimant’s objection to the application so as to further their understanding of the basis of why he says the matters he complains of were discriminatory in order that their amended defence, disclosure and witness statements address the allegations.

[18]At this point I add that the Claimant’s approach to speak in derogatory and personal terms about his opposing Counsel throughout his objection to this application do him no favours. While I understand his strength of feeling about his case, I encourage him now, as I did at the Preliminary Hearing, to adjust his tone to a tone of respect. Doing so will make it easier for the trial Judge to focus on his arguments and the evidence rather than be distracted by personal attacks. Strike out order and/or deposit orders made Complaint against individuals

[19]The Respondents maintain that the Claimant has no reasonable prospect of showing that those Respondents who were neither employed by the First or Second Respondents can be held liable under the Equality Act 2010. They say that no claims pursuant to s.110 EqA 2010 can be brought against the following:a. Mr Engstrom (CEO of RELX plc)

b. Ms Jackman (formerly employed by RELX (UK) Ltd)

c. Ms Meredith (employed by RELX (UK) Ltd

d. Mr Udow (Chief Legal Officer of RELX (UK) Ltd

e. Ms Hill (employed by RELX (UK) Ltd).

[20]I do not repeat the submissions here but I have considered the definition of agency under the Equality Act 2010, the extract from Bowstead & Reynolds on Agency as to the common law meaning of agency and also the authority of Kemeh v Ministry of Defence

[2014] ICR 625

. Paragraph 43 of the latter reads: "I would respectfully agree that the fact that someone is employed by A would not automatically prevent him from being an agent of B, and I would not discount the possibility that the two relationships can co-exist even in relation to the same transaction. But in my judgment there would, particularly in the latter case, need to be very cogent evidence to show that the duties which an employee was obliged to do as the employee of A were also being performed as an agent of B. It is in general difficult to see why B would either want or Page 8 of 34 need to enter into the agency relationship. That is so whichever concept of agency is employed."

[21]The Respondents say that none of the above named Respondents were acting as agents for Reed (R2), the Claimant’s employer, and that they only ever acted in their capacity as employees of the own employer within the RELX Group Plc group of companies.

[22]I do not consider the Respondent’s position to be a complete answer such that I can conclude that the Claimant has no or little reasonable prospect of establishing the agency relationship in respect of specific individuals and specific allegations. The authority of Kemeh expressly recognises the potential that an individual may be both an employee of one company and an agent of another at the same time. There would need to be cogent evidence to show that the duties of an employee were also being performed as an agent of another employer.

[23]It seems to me therefore that each specific allegation pursued against someone who is not an employee of R2 needs to be considered in turn to determine whether there is, or is any prospect that there may be, such cogent evidence that the agency relationship exists in respect of the alleged discriminatory act which is being complained about. It remains open to the Respondents to pursue a broader legal point at trial as to whether it is possible for employees of R2 to be agents of R2 in any circumstance. Complaint against RELX Group Plc

[24]The Respondents rely on their explanation of the relevant legal principles as described in the previous paragraphs. They say that the Claimant’s employer was clearly Reed Exhibitions Ltd, R2, and that RELX Group Plc, R1, were the Parent Company and not acting as agent for R2. They say that R2 could not have expressly or impliedly manifested assent that R1 act on its behalf so as to affect his legal relationship with the Claimant. They say that R1 is the parent company of R2 and not its agent. I have not been directed to any authority which I consider conclusively addresses this issue.

[25]If I understand correctly, in response the Claimant says that his contract of employment was signed by RELX, R1, and not by Reed, R2. He says that various aspects of his employment contract, including his post termination non-compete clauses are there to protect R1 and that R1 had a lot of involvement with his employment and its termination, including his being invited to appeal to RELX, R1. He contends that despite the wording of his contract of employment, it may infact me that R1 was his employer and not R2. He said that it was a matter for trial as to who his employer actually was.

[26]Whichever of R1 or R2 is not the employer, the Claimant relies on an agency relationship to contend that they remain liable for the matters he complains of. The Claimant said that R1 has some control over R2 and can move people around between the companies as they choose. He says that various named Page 9 of 34 Respondents had reporting lines to both R1 and R2. He says there is a fiduciary and supervisory relationship between the Companies.

[27]I consider this is a matter for trial and not for summary judgment. I can not conclude that the Claimant has no or little reasonable prospect of succeeding in his complaint against R1. This matter will need to be determined once all the evidence is heard. Issue 1 – Between 29.09.22 and 09.12.22, Kevin O’Donoghue withheld exculpatory information:(a) Firstly, that he had spoken to Katie King on the 29 September 2022 before the social event and had considered that she was drunk.

(b) Between 29.09.22 and 09.12.22, Kevin O’Donoghue withheld exculpatory information: Secondly, that he had felt uncomfortable with her comment that many of our black team members had all congregated at one table.

[28]The Claimant’s case is that Mr O’Donoghue could and should have given this information earlier. He says he relies on unconscious discrimination as being the reason for this. Without hearing the evidence, I am unable to conclude that these allegations have no or little reasonable prospect of success. No Issue 2 – On 29.09.22 and 19.01.23, Katie King commented that the black colleagues were sat together.

[29]The Respondents offer an explanation for why Ms King raised this issue and says it was obvious no offence was intended. I am not able to agree or disagree without the evidence being tested. It is not for me to simply accept the Respondents’ explanation any more than it is for me to comment on whether the comment says something about institutional racism as the Claimant says. Without hearing the evidence, I am unable to conclude that this allegation has no or little reasonable prospect of success. No order made. Issue 3 – On 09.12.22, 19.01.23, and 09.03.23, Mr Tim Ramage expressed the view that it was non or anti racism for Ms King to have commented on black people sitting together.

[30]The Claimant challenges Mr Ramage’s view and says he reached it because of race and gender. This is a matter for trial. There is no evidence before me from which I could conclude that the allegation has no or little reasonable prospect of success. No order made. Issue 4 – Between 29.09.22 to 06.04.23, Kevin O’Donoghue did not tell anyone that he had seen the Claimant swapping seats with the complainant consensually so that she could sit next to him (ie next to himself, O’Donoghue).

[31]The Claimant’s case, as expressed in writing to the Respondents, is that Mr O’Donoghue did see a seat swap. His allegation is that this information would have assisted him and Mr O’Donoghue withheld this information because of the Claimants race, age, and/or sex. I see no obvious evidence of a conscious Page 10 of 34 connection to the Claimant’s protected characteristics, but the Claimant says that the discrimination was unconscious.

[32]The Respondents apply to strike this allegation out in reliance on Mr O’Donoghue’s evidence during the appeal investigation. Strangely, the application does not say whether the Respondents deny or accept the Claimant’s case as to what Mr O’Donoghue saw. It seems to me that there is a dispute of evidence on this point about what Mr O’Donoghue saw and whether or not he gave full information or withheld information. I cannot form a view as to prospects of this allegation without the evidence being tested. No Issue 5a – Between 03.10.22 to 28.10.22, Cathy Laporte failed to investigate the following matters which may have suggested that the complaint against the Claimant should not have been upheld: What it was that the complainant had told Lamaite she proposed to do (as described by Lamaite in interview on 13.10.22).

[33]The extract relied on is at 668 of the bundle before me. The Claimant says that interviewee Ms Lamaite was speaking in the present tense, ie at the date of interview of 13.10.22, when she said that “she does not feel good disclosing it to anyone without her”. He suggests that Ms Laporte failed when she did not ask Ms Lamaite what the complainant proposed to do in the future, ie, after 13.10.22.

[34]I find the Claimant’s analysis to be at odds with the record of the meeting before me which I understand is not disputed. The lengthy extract from Ms Lamaite which begins with “Ok, so there was a marketing talk …” and ends with “Kerry said that she’s going to take action”. Reading the paragraph as a whole, it is plain that it is a description of the events of the night in question and not a proposal for action after 13.10.22.

[35]I consider that the Claimant has little reasonable prospect of succeeding in his complaint that there Ms Laporte failed in her investigation in this respect or that in doing so she treated the Claimant less favourably because of his race.

[36]For these reasons, the claim has little reasonable prospect of success and the issue of a deposit order would be in the interests of justice. Issue 5b – Between 03.10.22 to 2810.22, Cathy Laporte failed to investigate the following matters which may have suggested that the complaint against the Claimant should not have been upheld: What witnesses Prince, Rago, Agbalaya and O’Donoghue thought had happened between the Claimant and the complainant in conversation that had led her to leave the table.

[37]The Respondents present an analysis of the accounts given by each witness and say there was nothing further for Ms Laporte to investigate. The Claimant disagrees with those analysis. I do not consider it is appropriate for me to make a decision on the prospects of the allegation based only on the extracts the Respondents present. Unlike issue 5a which related to a self contained extract of the interview, I consider that to reach a view on the prospects of this Page 11 of 34 allegation would require me to read each of the 4 interviews in full. I consider this is straying too far into conducting a mini-trial and I decline to do so. No Issue 6a – Between 03.02.23 and 09.03.23, Tim Ramage failed to investigate the following matters which may have suggested that the complaint against the Claimant should not have been upheld: What it was that the complainant had told Lamaite she proposed to do (as described by Lamaite in interview on 13.10.22).

[38]I recognise that Mr Ramage may have interpreted the interview extract in a different way to Ms Laporte but this does not fundamentally alter my view of the prospects of success.

[39]For the same reasons as in respect of issue 5a, the claim has little reasonable prospect of success and the issue of a deposit order would be in the interests of justice. Issue 6b – Between 03.02.23 and 09.03.23, Tim Ramage failed to investigate the following matters which may have suggested that the complaint against the Claimant should not have been upheld: What witnesses Prince, Rago, Agbalaya and O’Donoghue thought had happened between the Claimant and the complainant in conversation that had led her to leave the table.

[40]For the same reasons as in respect of allegation 6b, no order made. Issue 7 – Respondent failed to appoint, and or omitted while having fiduciary duty to see to appointment of, a race sub-leader in its Diversity & Inclusion Employee Resource Group.

[41]The Respondents contend that this allegation is misconceived as the Claimant’s complaint is that there was no race subleader at all, therefore this affected everyone regardless of race and hence there was no less favourable treatment of the Claimant.

[42]I note that the Claimant defines his protected characteristic of race very broadly, as being “black or west Indian or persons of African ancestry or BAME or Afro Caribbean”. He says everyone within this group, and therefore him as well, would be treated less favourably by a failure to appoint a race sub-leader.

[43]The Claimant must show that the failure he complains of was because of the protected characteristic, that race had a “significant influence” on the failure to appoint a race sub-leader. He has not suggested anything, in his documents or July 2023 tables which explains why he considers this to be the case, other than an acknowledgement that there were “pockets of discrimination” across the Respondents.

[44]The Claimant has brought a complaint of direct discrimination in this regard and I consider that there is little reasonable prospect that he will establish that he was subjected to less favourable treatment because of his race. The issue Page 12 of 34 of a deposit order is in the interests of justice and I make such an order in respect of the allegation against each named Respondent.

[45]I can not say that there is no or little reasonable prospect of Mr Engstrom being responsible given that I do not know whether the Diversity & Inclusion Employee Resource Group is a group specific to R1 or R2, and so I do not know whose responsibility it was to determine the make up of the group Issue 8 – Respondent failed to carry out an equity audit and/or omitted, while under fiduciary duty, to see that one was conducted.

[46]For the same reasons as in respect of issue 7, I consider that there is little reasonable prospect of this allegation of direct race discrimination succeeding and a deposit order is in the interests of justice. I make such an order in respect of the allegation against each named Respondent.

[47]As above, I do not know where responsibility for an equity audit lay, whether at Parent or Company level, and so do not know whether Mr Engstrom, who the allegation is brought against, had any responsibility at all, as agent or otherwise.

[48]I note that regardless of whether the Claimant elects to pay the deposit order to proceed with this allegation or not, the failures or otherwise alleged in issues 7 and 8 may be relevant evidence which the Claimant may still rely on. Issue 9 – A.Smyth omitted referring to Black West Indians and all persons of African ancestry in her RELX biography on the public company website and then persisted in that omission after this was repeatedly brought to her attention in and since November 2022.

[49]This allegation appears to me to be made up of two allegations or arguments, firstly the omitted reference to specific ethnic groups and secondly the failure to change the biography once it was brought to Ms Smyth’s attention.

[50]As to the first part, the omission of the ethnic groups from the biography, I firstly note that, in contrast to issues 7 and 8, in respect of issue 9, the Claimant contends that Ms Smyth’s alleged omission was a failure to refer to a subset of the protected characteristic he relies on, that of Black West Indians and all persons of African ancestry rather than the full broadly defined race he relies on. This aspect of the allegation seems almost certain to fail given that Ms Smyth referred to just 8 nationalities on her webpage and did not refer to any ethnic groups at all. There were a significant number of nationalities and ethnic groups not represented in the selection that she did include. The Claimant says that the omission would be to the detriment of those omitted, however the group of persons omitted is a wider group than those in the racial group he relies on. It is also apparent that the list of nationalities Ms Smyth cites does include nationalities from within the racial group the Claimant relies on. The allegation is not coherent.

[51]I consider the Claimant has no reasonable prospect of showing that the reason she did not include a reference to Black West Indians and all persons Page 13 of 34 of African ancestry was because of race as relied on by the Claimant, that being the broad definition described above and articulated by the Claimant in the November 2023 PH.

[52]Shamoon v Chief Constable of the RUC

[2003] IRLR 285

, HL, remains good law and is authority for the proposition that an unjustified sense of grievance cannot amount to a detriment. The Claimant recognises in his submission that the Tribunal will consider both he subjective and objective view of the treatment and will ask “whether the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment.” I consider the Claimant has no reasonable prospect of persuading a Tribunal that listing 8 nationalities, even where they do not include a nationality that is Black West Indian or African ancestry, is, viewed objectively, to the Claimant’s detriment.

[53]I order that the first part of the allegation be struck out as having no reasonable prospect of success.

[54]The second part of the allegation is the failure to change the biography to include a reference to Black West Indians and all persons of African ancestry once it was brought to her attention. Given my decision that the Claimant’s complaint about the content of the biography has little reasonable prospect, I consider the complaint that Ms Smyth failed to chance the biography to also have no reasonable prospect of success and I order it be struck out. Issue 10. On 29.09.22, Kevin O’Donoghue shut the Claimant down when he tried to tell him that the bar tender had told him to “Go back to Rwanda”

[55]I decline to strike this allegation out or make a deposit order. The allegations concern issues of fact that turn to any extent on oral evidence. Issue 11 – On 9 December 2022, when describing the incident in allegation 10, Kevin O’Donoghue: (c) He referred to the Claimant as having a “plummy posh accent and he was talking very loudly” and (d) Described the bar tender as being “very flustered and blushing” in contrast to describing me as unnecessarily berating.

[56]The Claimant asserts that Mr O’Donoghue’s choice of language to describe him was less favourable treatment by comparison to others and is evidence of unconscious discrimination. These allegations should be tested in evidence and are not appropriate to strike out as having no or little reasonable prospect of success. Issue 12 – Respondent failed to investigate the Claimant’s complaint of mistreatment by the barmaid on 29.09.22 as raised by the Claimant on 14 October, 31 October, 4 November and 3 February 2022.

[57]The parties disagree about whether the Claimant complained of mistreatment by the barmaid on the four dates in question and about whether any duty to investigate arose. This is a matter for trial and I decline to make any order. Page 14 of 34 Issue 13 – On 29.09.22, Ms King said to the Claimant “you can’t use that word ever” in response to overhearing him using the “n” word in conversation with another colleague.

[58]The parties disagree about the content of this conversation and whether and why it is said to amount to less favourable treatment because of race. This is a matter for trial and I decline to make any order. Issue 14 – On 30.09.22, Ms King described the Claimant as "the male was black and in his 50's and new to the company” and others normalised and condoned it.

[59]The Respondents say this allegation should be struck out as Ms King was simply describing physical features of the Claimant so that he could be identified. The Claimant says this is incorrect and she was infact racially profiling him which was to his detriment as it led to adverse outcomes for him.

[60]This is a core component of the Claimant’s case and I do not consider it appropriate to strike this out without the evidence being heard.

[61]I am less persuaded that the Claimant has prospects of showing that others normalised and condoned what he says is racial profiling, particularly those who were not employees of R2. However, it is not proportionate for me to carry out an analysis of each named Respondents’ knowledge of the descriptor, the context in which it was used and so on. Those are matters for the trial and I decline to make an order. Issue 15 – Between 30.09.22 and 30.11.22, the Respondent refused to give the Claimant a copy of the complaint made by Miss King on 30.09.22

[62]The Respondents make their application for strike out saying that they acted in this situation in the same way as they do in all similar situations. They do not provide any evidence of this and I have no way of assessing the strengths of their defence or the Claimant’s claims. I decline to make an order in respect of the complaint of direct discrimination.

[63]I decline to make an order in respect of the victimisation claim as the Claimant presents a sensible reply to the Respondents application which needs to be tested in evidence.

[64]I have considered the agency arguments of the Respondents but, without reviewing the documents closely, I do not have sufficient information as to precisely who refused the complaint on what date and its relevance to the whole picture to determine the issue. Issue 16 – On 30 September 2022, Mr O'Donoghue treated the complaint as fact rather than an allegation.

[65]The Respondents rely on the fact of suspension and Mr O’Donoghue’s comments in the interview of 09.12.22. Were those the only times that the Claimant relies on as evidencing that Mr O’Donoghue treated the complaint Page 15 of 34 as fact then I would have been more persuaded of the Respondents application. The suspension appears on the face of it to be a neutral act. The Respondents’ application draws my attention to a whole paragraph of Mr O’Donoghue’s interview in which he does refer to the complainant’s feelings and whether or not it was true. I do not read the paragraph as him saying that he took the allegation as fact.

[66]However, the Claimant does not limit himself to these occasions, he also relies on what he says was Mr O’Donoghue’s failure to lift the suspension once corroboration failed; intervention to prevent lifting and returning to work on 25.10.22; adverse involvement in questions of sanctions and evidence in the investigation report, as all showing that he treated the complaint as fact. This requires testing in evidence and can not be determined by reference to only the two documents the Respondents have brought to my attention. I Issue 17 – Ms Laporte treated the Claimant less favourably when she:(a) Made the finding that the alleged events did take place and made her recommendation that there was a disciplinary case to answer.

(b) Accepted the complainant’s false view that KOD was not a material witness. (d) Failed to make an independent decision about appropriate recommendations but rather was influenced or co-decided with KOD and others

[67]The reasons for the decisions made by the key decision makers is at the heart of the Claimant’s case and I am unclear why the Respondents consider that the allegations are appropriate for strike out or deposit order. I do not consider they are. I decline to make an order against the decisions of Ms Laporte.

[68]I consider that the complaints against Ms Hill have no reasonable prospect of success. Allegation 17 is an allegation against the conduct of Ms Laporte and not against Ms Hill. Whatever Ms Hill’s involvement may have been, she was not the decision maker. Any complaints against Ms Hill must be pursued against her directly as they are in numerous other allegations.

[69]I note the Respondents will also say that Ms Hill was not an employee of R2. However, I make my decision without resolving the agency issue as, even if she was acting as agent, it is Ms Laporte who is to be held responsible for Ms Laporte’s decisions, not Ms Hill. Issue 18 – Kevin O'Donoghue involved himself in the investigation and withheld that from the Claimant

[70]I am unclear on how the Claimant says that Mr O’Donoghue involved himself in the investigation and withheld that from the Claimant. However, other than reading all the investigation documents, which I am not going to do as the same would stray into a mini trial on the documents only, I am unable to form a view on the prospects of this allegation against Mr O’Donoghue. I do not make an order. Page 16 of 34

[71]The position is different in respect of Ms Hill. For some reason, Ms Hill is added as named Respondent to this allegation. She cannot be held responsible for Mr O’Donoghue involving himself in the investigation and withholding that from the Claimant. The Claimant’s allegations against Ms Hill’s alleged wrongdoing are properly pursued against her directly as they are under allegation 23. It follows that I consider this allegation has no reasonable prospect of succeeding against Ms Hill and I strike it out in that respect only. Issue 19 – EE, AS, HJ, KOD and the companies failed to treat the Claimant's complaints as a grievance. The Claimant relies on complaints raised on the following dates, 21 November 2022 to HU, 25 November 2022 to HU, 16 January 2023 to EE, 23 January 2023 to AS, HJ and EE, 13 February 2023 to HJ, EE and HU, 15 February 2023 to EE,

[72]I decline to make an order in respect of this allegation. It is not possible to do so without conducting a mini trial considering what was said by the Claimant on each of the dates in question and how the Respondents replied.

[73]Whether or not Mr Engstrom was an agent of R2 or R1 is a matter for trial and I do not consider I can conclude that the Claimant’s case has no or little reasonable prospect without further evidence and argument. Issue 20 – AS, JJ, KM permitted Ms King to amend her grievance complaint throughout the investigation process in contrast to the Claimant who was held to a set of questions sent on 01.11.22 as constituting his grievance complaint.

[74]I decline to make an order. It is not possible to do so merely on the basis of the parties assertions.

[75]I do not know the extent of Ms Meredith’s involvement and am unable to assess whether or not she was acting as an agent of otherwise. Issue 21 – Mr Salman Muneer was removed as the disciplinary hearing manager, for what Respondents later claimed was Claimant's own good, despite Claimant's ignored objections at the time.

[76]The parties are in dispute about the reason Mr Muneer was removed. The Claimant challenges the authenticity of the Respondents’ explanation by reference to what he says are inaccuracies in the explanation given at the time. It is not appropriate to strike out a case with such a clear dispute of evidence.

[77]The Claimant has explained why he considers Ms Smyth was responsible for this allegation. Again, there is a dispute of evidence and I decline to strike out the claim. Issue 23 – Between 30.09.22 - 09.03.23, Naomi Hill failed to treat the Claimant in an even handed way by comparison to her treatment of Ms King:(a) Lied to the Claimant in relation to the involvement of KOD as manager of the process and as a co-suspender of the Claimant.

(b) Led the Claimant to believe that KOD was an Page 17 of 34 interviewee and a witness within the process.

[78]There is a dispute of evidence and I decline to make an order.

[79]Ms Hill provided HR support in relation to the investigation process that took place in relation to the Claimant. She was not an employee of either R1 or R2. Whether or not Ms Hill carried out her work as agent within the meaning of s.110 EqA 2010 is a matter for trial and not an issue I can resolve in a summary basis. This applies in respect of each allegation which is pursued against Ms Hill. Issue 24 – On 5 October 2022 at 7:30am, an employee of the Respondent monitored the Claimant’s whereabouts And Issue 25 – On 5 October 2022 at 2:17pm, an employee of the Respondent asked when it would be appropriate to treat the Claimant’s absence as awol and reach out to his next of kin.

[80]The Claimant considers that the emails reveal that he was being subject to surveillance, harassed and mocked. He felt the emails were disingenuous. It is not appropriate for me to strike out the allegations based on my own, out of context, reading of the emails. The language could be read as the Claimant reads it and it will be for the Tribunal hearing the case to decide if the Claimant’s interpretation is right and if the emails were discriminatory. I Issue 26 – KOD, NH and CL maintained the suspension of the Claimant despite the evidence of Ashweena Reebye given on 06.10.22 or 07.10.22

[81]The Claimant adjusts this allegation to refer to 06.10.22 or 07.10.22. His point being that he says after the interview of Ms Reebye it was discriminatory not to lift the suspension. I have adjusted the issue accordingly.

[82]I note that the parties give slightly different explanations as to why the Claimant was suspended. Whatever the reason for suspension, the allegation that had been made was serious and, in my experience, it would be highly unusual for a Respondent to lift a suspension based on the account of one of the first witnesses to be interviewed, regardless of whether that individual vindicated the Claimant or supported the complainant.

[83]The Claimant has little reasonable prospect of proving that the Respondent elected not to lift the suspension because of the Claimant’s race, age and/or sex as opposed to because the investigation was incomplete and the issue of a deposit order is in the interests of justice.

[84]I have not been told who was responsible for making decisions as to lifting or maintaining the suspension and I am equally not told why the Claimant proceeds with this allegation against three named Respondents. I order a deposit be paid to bring this allegation against each named Respondent. Page 18 of 34

[85]I strike out the allegation against Ms Jackman. In his wording of the allegation, the Claimant does not suggest that she was responsible for maintaining the suspension of the Claimant despite the evidence of Ashweena Reebye and as such there can be no reasonable prospect of the complaint against her succeeding. Issue 27 – On 06.10.22, NH asked Ms King for her opinions on appropriate sanctions when she asked how Ms King would feel if the Claimant was permitted to return to the office

[86]There is a dispute of evidence and I decline to make an order. The Claimant says that Ms King understood she was being asked for her opinion as she referred to not knowing “what the appropriate punishment would be”. There then followed a discussion in which final warnings, dismissal and returning to the office were discussed. He says this was different to how he was treated and cites an extract from his meeting with Ms Hill. I have not read the meeting notes in full. That will be a matter for trial. Issue 28 – Between 6-13.10.22, the Respondent failed to tell the Claimant the name of the complainant and the nature of the alleged act of wrongdoing.

[87]It is true that the Respondent did not tell the Claimant the name of the complainant in this window. The parties are in dispute about the reason for that and whether or not it was less favourably treatment because of a protected characteristic. That matter must go to trial.

[88]I am unclear on the roles of each of the Respondents named in this allegation and, without a careful review of the documents, I would not be able to determine who had responsibility for this alleged failure or whether they did so as employee or agent. It is not appropriate to strike out or order a deposit order in respect of any specific named Respondent.

[89]As to the second part of the allegation, the Respondents did tell the Claimant the “nature” of the alleged act of wrongdoing. They told him that it was alleged that he had “inappropriately touched a female colleague”. Whether or not Ms Hill later described this as “vague” does not mean that it was not a description of the “nature” of the allegation. It seems that the Claimant wanted full details at this early stage but that is not the allegation he has brought. The allegation is that he was not told the nature of the alleged act of wrongdoing but he evidently was.

[90]I note that greater specificity was provided in writing on or around 13 October 2022 when the Claimant was invited to the investigation. But this does not meant the “nature” of the allegation was not provided beforehand.

[91]I consider it appropriate to strike out this latter part of the allegation such that the allegation will now read “Between 6-13.10.22, the Respondents failed to tell the Claimant the name of the complainant” only. Page 19 of 34

[92]In his response to the Respondents application, the Claimant says that the factual issue for trial, that he asks to be stated in the list of issues for trial, is that the Respondents jointly and severally and consistently treated me less favourably throughout the disciplinary process. It is understood that this is what the Claimant complains of, however for the purposes of the list of issues, each and every instance in which the Claimant says the Respondents treated him less favourably must be specified. Issue 29 – Failed to remove suspension entirely on 17.10.22

[93]The Respondents’ explanation may be sensible but the Claimant disagrees and sees this is as one part of the whole disciplinary process that he says was less favourable treatment of him. This dispute can not be resolved on the documents without testing the evidence and I make no order.

[94]I am unclear on the roles of each of the Respondents named in this allegation in respect of the suspension and, without a careful review of the documents, I would not be able to determine who had responsibility for this alleged failure or whether they did so as employee or agent. It is not appropriate to strike out or order a deposit order in respect of any specific named Respondent. Issue 30 – Failed to notify the Claimant on 25.10.22 that the investigators had recommended that the Claimant’s suspension be lifted.

[95]The Respondents have not admitted this allegation as the Claimant appears to suggest. It is correct that they have not addressed why they are applying for the allegation to be struck out or a deposit order made. I decline to make an order. Issue 31 – On 25.10.22 Respondent’s decision not to follow the recommendation of Ms Laporte to lift the suspension and not to inform the Claimant of the same

[96]The Respondents explain the first part of their decision but not the second. The Claimant says he is learning new information in the Respondents’ application which he says is supportive of his case. It seems to me that the evidence must be disclosed and heard and, where necessary, challenged, before this allegation can properly be assessed. I decline to make an order. Issue 32 – 24.10.22 – 10.11.22, the Respondents did not give the Claimant information about why the suspension remained in place.

[97]If I understand correctly, the Claimant’s complaint is that he was not told why his suspension would remain in place, only that it would. The Respondents say they considered this at length and on advice before deciding to maintain the suspension. I am not clear on why the Claimant says that was a less favourable decision because of his protected characteristics, but nonetheless without reading and hearing the evidence I am unable to assess the prospects. I decline to make an order. Page 20 of 34 Issue 33 – On 28.10.22, NH sent an email to KOD, copied to CL, which led CL to believe that NH had not already discussed matters with KOD.

[98]I understand this complaint to be a continuation of the allegation that Ms Hill unduly influenced the investigation process. This is disputed by the Respondents. It is a matter suitable to be determined at trial. I decline to make an order. Issue 34 – On 10.11.22, Jonathan Jones dismissed the Claimant with a taunt and treating his West Indian identity as "relevant" to innocence or otherwise of disputed conduct.

[99]This is at the heart of the Claimant’s claim. I am unclear why the Respondents consider I can strike out this allegation without conducting a mini trial and forming my own view on the appropriateness or otherwise of Mr Jones’ decision without hearing the evidence. To do so would be inappropriate.

[100]The Respondents can address the additional allegation of a taunt and relevance of the West Indian identity in evidence. It is clear there is a dispute of evidence and it not appropriate for me to deal with it summarily. Issue 35 – On 10.11.22, Jonathan Jones made a finding, without prior notice or discussion of such charge, that the Claimant had sexually harassed Ms King

[101]For the same reasons as above, I decline to make an order in respect of this allegation.

[102]If I understand correctly, the Respondents say that the Claimant was given notice of a charge of sexual harassment because the investigation report includes an extract from the RELX Code of Conduct and Business Ethics which reads: “We do not tolerate any form of harassment, including sexual harassment or harassment of any kind based upon any of the protected characteristics listed above. Harassment can be verbal, physical, visual, or other behaviour that creates an offensive, hostile, or intimidating environment.”

[103]It will be for the Trial Judge to decide whether this amounts to prior notice of the charge.

[104]I pause here to note that the relevance of the Claimant’s reference to Burchill and Roldan standards is unclear, this being a discrimination case and not an unfair dismissal case (the Claimant not having 2 years’ service). Issue 36 – On 09.03.23, Tim Ramage treated the Claimant less favourably by:(a) Extended the benefit of the doubt to the complainant but not to Claimant.

(b) Placed the burden of proof on the Claimant rather than the complainant.

(d) Failed to deal with the Claimant’s grievance about treatment by the bar tender.

(e) Upheld the decision to dismiss the Claimant.

(f) Tim Ramage failed to acknowledge Page 21 of 34 that KOD had been racist when describing the Claimant as having a “plummy, posh accent” and “talking very loudly”.

[105]The Respondents invite me to assess the findings of Mr Ramage to find that each of the Claimant’s challenges against that decision have no or little reasonable prospects of success. I can not do so without conducting a mini trial and so I decline to make an order.

[106]The Claimant asks me to note the following in respect of allegation (c). The Respondents are asked to take it into account in as much as it assists them to understand further the Claimant’s complaints: “It is less that KOD differed with the Claimant on any evidence or any fact than that KOD and Ramage (as well as Jones and Laporte) admitted the racism and yet still legitimated the racist bartender’s supposed discomfort by gift of their solidarity and sympathy. They thereby associated the respondents [well beyond the failed and distinguishable facts of Conteh v Parking Partners 2010]. They both disregarded the bartenders UNDISPUTED mistreatment by telling me “Go back to Rwanda” and refusing water, conduct respondents DO NOT DENY occurred (hence no difference upon evidence). That is my discrimination case, with the bartender as a comparator for this purpose.” Issue 37. Labelled the claimant's questions of 01.11.22 as a grievance

[107]The Respondents say they were entitled to do this. The Claimant says they were not and that he expressly told them he did not want his questions to be considered as a grievance but they pressed ahead regardless. The evidence needs to be carefully reviewed and challenged to determine whether the complaints the Claimant wished to make were inappropriately restricted to the questions of 1.11.22 despite him saying this was not his grievance and if so, if that amounted to less favourable treatment and further if so whether that restriction was because of the protected characteristics relied on.

[108]The Claimant explained in his tables why he brings this claim against Ms Hill, Ms Jackman and Ms Meredith. It seems the latter two’s role was to restate Ms Hill’s decision but more than that also to be the point of contact to discuss the decision with the Claimant. Whether that means they too discriminated against the Claimant as he suggests will be a matter for trial. I

[109]I am unable to summarily assess the agency question without understanding the detail of the allegation and steps taken in response to the Claimant’s questions of 01.11.22 in greater detail. I decline to do so. Issue 38 – On 2.11.22 and 4.11.22, Mr Jones required the Claimant to address his response to a data breach during the investigation into his conduct on 29.09.22.

[110]It does not seem unusual to me for an employer to ask an employee to delete a document sent in error. It may be more unusual to do so in the middle of disciplinary process. The Respondent suggests the explanation for Page 22 of 34 their conduct is innocent. The Claimant disagrees. It is not appropriate for me to strike out the case when such a dispute exists and neither can I find that the allegation has little reasonable prospect of success without reviewing the full detail of what happened in respect of the redacted report. To do so is to stray into a mini trial.

[111]The complaint is explicitly against the actions of Mr Jones. The Claimant may wish to make complaints against Ms Jackman and Ms Meredith for things they did or omitted to do or for how they may have influenced Mr Jones, but the Claimant does not do so within the wording of this allegation as particularised during the Preliminary Hearings

[112]In a case of discrimination there must be a particular individual or agent who has the necessary discriminatory mindset. It is not sufficient to “add together” the mindset of one employee or agent with the acts of another in order to establish liability (Reynolds v CLFIS (UK) Ltd

[2015] ICR 1010

at para 36).

[113]I also note that I have not given permission to pursue issue 41 which complains about the actions of Ms Meredith in relation to the redacted email and attachment.

[114]I consider that the Claimant has no reasonable prospect of succeeding in his complaint of issue 38 against Ms Jackman and Ms Meredith and accordingly I strike it out. The allegation does not relate to their actions, it relates to the actions of Mr Jones on two specific dates. Issue 39 – Between 04.11.22 and 05.12.22 Mr Jones and other Respondents refused to provide the claimant with the witness statements from the investigations

[115]I decline to make an order in respect of this allegation. The Respondents assert that it was their usual practice to withhold witness statements during the investigatory stage. I have seen no evidence of this and it is not for me to simply take the Respondents at their word. The Claimant challenges the Respondents position. It will be for both sides to make out their case at trial.

[116]I do not understand the basis of bringing this complaint against those who were not employed by the Claimant’s employer. However, without looking at all correspondence in the month long period mentioned, I am unable to consider the refusals relied on by the Claimant. I decline to make an order in respect of any specific Respondent. Issue 40 – On 04.11.22, Jonathan Jones demanded that the claimant hand back the unredacted investigation report.

[117]As with issue 38, I decline to make an order in respect of this allegation. Issue 43 – Failed to arrange a continuation of the part-heard hearing of 04.11.22 and instead moved straight to a decision on 10.11.22 Page 23 of 34

[118]The Claimant suggests that various matters remained outstanding at the end of the disciplinary hearing not least because it was a combined disciplinary and grievance hearing. The Respondents have identified extracts which they say show that Mr Jones understood his purpose after the investigation meeting to be to finalise the investigation and come to a decision. I understand that. However, the extract form p.782 reads that Mr Jones will “respond to questions you asked”. The Claimant says that he left the meeting believing it was part heard and the meeting would be resumed at a later date for him to hear the answers to the questions. This dispute of evidence requires the evidence to be heard and tested in order to be resolved. I decline to make an order.

[119]Ms Meredith was employed by RELX (UK) Ltd as an Employee Relations Specialist and provided HR support in relation to the disciplinary and grievance process that took place in relation to the Claimant. I understand it was Ms Meredith who notified the Claimant of the second hearing on 10.11.22. I am unable to summarily assess whether she did so as agent or say that such a contention has little reasonable prospect of success. Issue 44 – Appointment of respondent’s solicitors to resist the claimant’s complaints and sustain over several weeks refusal to hand over complainant's complaint and witness statements

[120]I can not be said to be to the Claimant’s detriment that the Respondents appointed solicitors following the Claimant having sent a letter before action. It is the Respondents who are responsible for the decision about when to hand over the complainant’s complaint and witness statement. The solicitors may advise, but that is a matter between them and their client, it is the Respondents who make the final decision.

[121]The Claimant says that he is not objecting to the appointment of the solicitors but rather “the gist of the complaint is the refusal and not the solicitors, who manifestly corrected the refusal”. It seems that even on the Claimant’s own explanation, he is not infact complaining about the actions of the Respondents’ solicitors. That is however what the wording of the issues says he complains about and it is not for me to rewrite the allegation based on what the Claimant now says, not least given there have been 3 days of face to face Preliminary Hearings in this matters. It is the allegation as currently worded that I am considering in respect of the allegation for strike out.

[122]Based on the Claimant’s case and the evident right of a party to appoint solicitors, I consider this allegation has no prospect of success and I consider it in the interests of justice that the claim is struck out. It is not in anyone’s interest for a manifestly unfounded complaint to proceed to trial. The Claimant may of course raise the issue that he believes he only received the documentation he sought when he threatened legal proceedings in evidence, but not as a complaint about the appointment of the solicitors. Page 24 of 34

[123]I note that the Respondents’ decision not to provide the witness statements from the investigations between 04.11.22 and 05.12.22 is already a subject of complaint in issue 39. He has not chosen to otherwise complain about any failure or delay in providing the complainant’s complaint as an act of discrimination or victimisation. Issue 45 – Appointment of Mr Ramage, another white male, to conduct the appeal process in context where Mr Muneer (BAME) had been removed without explanation as disciplinary chair

[124]The Respondents say that the allegation is wrongly brought against Ms Smyth and Mr Udow as neither were involved in the appointment of Mr Ramage. I note that from the outset of the case the Respondents have always maintained that Ms Smyth and Mr Udow were not involved in the decisionmaking process in the investigations, disciplinary and grievance and/or appeal processes that took place in relation to the Claimant (see paras 23 and 32, ET3).

[125]The Claimant’s explanation for their involvement in the allegation is that he had complained to them about the exclusion of Mr Muneer from the disciplinary investigation stage and that he later required the “belated installation” of Mr Muneer as appeal officer, presumably after Mr Ramage had been appointed.

[126]I note that Mr Muneer was the Claimant’s line manager whereas Mr Ramage was the Global Head of ISG. Even if Mr Muneer had been the appropriate person to investigate the matter at the outset (and I make no observation one way or the other as to that), it is evident that Mr Ramage was more independent from the Claimant and his team and so more suitable for the appeal than Mr Muneer. There is no apparent connection between the Claimant’s dissatisfaction at the decision to not appoint or remove Mr Muneer from the investigation with the decision to appoint Mr Ramage for the appeal.

[127]I consider this allegation against Ms Smyth and Mr Udow have no reasonable prospect of success. The fact that the Claimant complained about something to these individuals does not in any way connect those individuals to an entirely separate decision about the appointment of someone else. I strike out the allegation against Ms Smyth and Mr Udow.

[128]I do not understand the Claimant’s case about why it was to his detriment that Mr Ramage was appointment. His complaint is a complaint of race and/or sex and/or age discrimination. He complains that Mr Ramage is a different race and the same sex as him. I do not consider how he can reasonably say that this is to his detriment.

[129]The Claimant says that his complaint is not only based on race but is based on what he says is Mr Ramage’s extreme dishonesty and unfitness for appeal manager. The Claimant has already complained in other issues about Mr Ramage’s handling of the appeal and his ultimate decision. In order to succeed in his issue 45, he will need to show that whoever appointed Mr Ramage knew that he was dishonest and not fit to be an appeal manager and Page 25 of 34 appointed him anyway out of retaliation towards the Claimant for making a protected act and/or disclosure.

[130]I consider it unlikely that the Claimant will show the appointment was to his detriment in the way alleged or that it was an intentional decision out of retribution for his alleged protected acts and/or disclosures.

[131]For these reasons, the claim has little reasonable prospect of success and the issue of a deposit order would be in the interests of justice. Issue 46 – Respondent delayed response to the DSAR between 16.12.22 and 16.01.23

[132]The time frame for responding to a DSAR is one month. The Respondents appear to have replied either on time or just one day late. The request was extremely large, with multiple requests for data searches including email data from 29 potential custodians (p.1211, para 207). I understand that the Claimant made at least one request for the data to be provided with quickly and insisted that the Respondents did not utilise the full one month provided.

[133]I take into account that the Respondents had the option to extend the data provision by 2 months if they were unable to comply within 1 month but they chose not to do so. I also note that the 1 month extended over the Christmas period when it is known that many employees take periods of leave away from work.

[134]I have also considered the Claimant’s explanation that Mr Ramage was attempting to coerce hm to meet ahead of receipt of the documents. I note that Mr Ramage invited the Claimant to attend an appeal hearing in November 2022, before he made the DSAR. The appeal hearing did not in fact happen until February 2023, after the DSAR materials were provided.

[135]I consider that the Claimant has no reasonable prospect of showing that the Respondents delayed the response to the DSAR during this one month period or that this was to the Claimant’s detriment. The allegation has no reasonable prospect of success and I consider it in the interests of justice that it be struck out. Issue 47 – Respondent invidiously redacted documents produced in response to the DSAR

[136]The Respondents say that the redactions carried out were standard practice and lawful. The Claimant says they were not. I have no way of determining if this allegation has no or little reasonable prospects of success without considering the redacted and unredacted versions which are not before me.

[137]Presumably the documents that are relevant to this allegation and the Claimant’s claim will be unredacted and provided to the Claimant as part of the disclosure exercise. It will not for the Tribunal to consider each and every Page 26 of 34 redaction that has been made to assess whether or not it was appropriate made or not or whether it was made because of the alleged protected acts/disclosures. I suggest that, once disclosure is complete, the parties liaise to prepare a list of redactions the Claimant complains about so that the Respondents are able to prepare their response.

[138]The Respondent says that Mr Udow had no involvement in relation to the DSAR process. The Claimant says he did as the letter was co-addressed to him and he appointed the solicitors as joint data controller. I am unable to assess the veracity of either side’s contention or take a view on whether or not Mr Udow acted as agent without far greater review of the documentation than is appropriate for a hearing such as this. Issue 48 – Respondents EE, HU, AS and the companies did not act to ensure the respondents’ solicitors replied to the claimant’s letter of 15 December 2022 without delay.

[139]This allegation is about delay. It is not about the substance of the reply and whether it was or was not complete or even about whether or the Respondents elected to give the undertakings the Claimant sought. The allegation is confined to a complaint about delay.

[140]The start of the Claimant’s letter of 15 December 2022 says that the Respondent has 14 days to reply and then sets out what information he expects to receive within those 14 days, being 6 January 2023 given the Christmas and New Year bank holidays. Later in his letter the Claimant says that he requires certain undertakings within 7 days, by 22 December 2022 otherwise he intended to approach the High Court for an order.

[141]Solicitors for the Respondents replied by 19 December 2022 to explain how they intended to proceed. They said they would reply to the request for undertakings by 22 December 2022 [1642] and did so reply [1646]. They warned that they would be unlikely to be able to comply with the request for a substantive reply by 6 January 2022 given the 75 page letter and 131 page bundle the Claimant had provided [1642]. They provided a substantive response by 12 January 2023 [1652].

[142]I consider that the allegation that the Respondents failed to ensure their solicitors did not act without delay has no reasonable prospect of success. The undisputed contemporaneous documentation reveals that the period of time taken to reply is reasonable and was not to the Claimant’s detriment. The Claimant’s request for undertakings was answered promptly and he was told early on that there may be a delay in respect of the other information he requested. If any pre-action protocols were broken then the remedy for that was in the High Court rather than the Employment Tribunal.

[143]The delay seemingly did not impact on the Claimant’s appeal process as he was not interviewed until February 2023.

[144]I consider that this allegation has no reasonable prospect of success and I consider it in the interests of justice that it be struck out. Page 27 of 34 Issue 49 – Respondents EE, HU, AS and the companies failed to apologise or retract the findings of sexual harassment made against the claimant

[145]The Claimant escalated his complaint about the finding of sexual harassment that had been made against him to Mr Engstrom and Mr Udow and he also says to Ms Smyth. He says that this then compelled them to respond and their failure to respond to retract the finding was to his detriment and was because he had made a protected act and/or disclosure.

[146]Whether or not it would have been “highly improper” for any of these individuals to use their positions to overturn the decision of Mr Jones and later Mr Ramage, as the Respondents say, is a matter best considered at trial when the nature of the reporting lines and the relationship between the Parent Company and Claimant’s employer will be better understood. I do consider that the Claimant has little reasonable prospect of succeeding in his complaint that the reason why Mr Engstrom, Mr Udow and Ms Smyth acted as they did was because he had made a protected disclosure and/or done a protected act as opposed to because the process of appeal was underway and not yet concluded. Given that the appeal considered the disciplinary finding of sexual harassment [976], I consider it in the interests of justice to make a deposit order in respect of this allegation as pursued against each named Respondent.

[147]I do not strike out the allegation as I recognise the serious nature of the finding against the Claimant and that he says he had escalated his concerns about it previously and therefore, he will say, that the senior executives had a fiduciary duty to act. I consider this has little reasonable prospect for the reasons I have explained but I can not say it has no reasonable prospect. Issue 50 – Respondents EE, HU, AS and the companies failed to investigate claimant allegation that KOD and NH had influenced proceedings.

[148]For the same reason as I have made a deposit order in resect of issue 49, I consider it in the interests of justice to make a deposit order in respect of issue 50 and in respect of each named Respondent.

[149]Further, the issue of Mr O’Donoghue’s influence over proceedings was a part of the appeal [965] as was Ms Hill’s influence as her involvement is discussed throughout the appeal findings. The Respondents had appointed Mr Ramage to investigate the Claimant’s allegations in respect of Mr O’Donoghue and Ms Hill to see if they were founded such that the dismissal decision should be overturned. It was not to his detriment that his complaint was not also investigated by numerous more senior officials not least because the process and decision was entrusted to Mr Ramage so there is no basis to say that they would have reached a different decision.

[150]The Claimant’s objection to the Respondent’s strike out of this allegation details the importance he sees of being able to question Ms Hill, Mr O’Donoghue and Ms Laporte about his issue. Given the Claimant has brought Page 28 of 34 many allegations about Mr O’Donoghue’s involvement and the alleged concealment of the same (including at least issues 17(d), 18, 23(d) and (33)), nothing about my decision will prevent him from doing that. Issue 51 – Respondents AS, HU, EE and the companies failed to investigate the claimant’s complaint of racism sent on 26.01.23

[151]The Respondents say that the Claimant’s letter of 26.01.23 did not contain an allegation of racism. The Claimant says that the letter was a “stocktaking” letter and by referring to the “race discrimination aspects” he was referring back to successive substantive racism complaints already received by the Respondents. This is his case at its “highest” level and the case I consider.

[152]Nonetheless, for the same reasons as I have described in respect of the previous 2 allegations, I consider that the Claimant has little reasonable prospect of persuading a Tribunal that the reason why the Respondents failed to investigate his complaint was because he had made a protected disclosure and/or done a protected act rather that because, as the Respondents say, Mr Ramage had been tasked with the matters raised in objection to the investigation and disciplinary process and decision.

[153]The Claimant’s complaints of race discrimination clearly were part of the appeal and dealt with as part of the appeal. The appeal letter cites numerous ways in which the Claimant has complained of racism and gives findings and decisions in respect of them. Whether or not Mr Ramage’s process of conducting the appeal and his decision was itself less favourable treatment is considered in other issues.

[154]For the purposes of this allegation, I consider that the Claimant has little reasonable prospect of success in his contention that the Respondents acted to his detriment or because of his alleged protected acts and/or disclosure and I consider it in the interests of justice to make a deposit order in respect of each and in respect of each named Respondent.

[155]I encourage the Claimant to consider carefully his other allegations related to failed duties of senior executives before deciding whether or not to pay a deposit order, noting that there appears to be some duplication, such as with issue 19. It is a matter for him whether he wishes to proceed with the allegations that I have ordered a deposit order in respect of. Issue 52 – Respondents EE, HJ, AS, TR and the companies denied the claimants requests of 27.01.23 that KOD attend the appeal hearing and that it be recorded.

[156]The Respondents disciplinary policy says that “electronic recording, by you or your companion, of the proceedings of any meeting is not permitted under any circumstances’ [1681]. The denial of the request was in line with that policy.

[157]Mr O’Donoghue was said to be on indefinite sick leave at the time and so was unable to attend the appeal hearing [1677]. There is no evidence, Page 29 of 34 even to date, that this was incorrect. It did not infact matter if Mr Ramage may have also refused his attendance as not being appropriate or necessary as the indefinite sick leave determined the reason for his absence in any event.

[158]I do not consider the strike out application to be an attempt by Mr Ramage to shield the fiduciary HR director from questioning as is now suggested as Mr O’Donoghue will presumably attend Tribunal to give evidence and respond to the allegations he faces in his personal capacity.

[159]I consider that the Claimant has little reasonable prospect of succeeding in his complaint that the real reason for denying him Mr O’Donoghue’s attendance and a recording was because he had made a protected disclosure or done a protected act and I consider it in the interests of justice to make a deposit order.

[160]Mr Ramage had been appointed as the appeal officer and I consider that the Claimant has no reasonable prospect of showing that the other Respondents had any involvement at all in refusing the Claimant’s requests, that they denied the arrangement he requested or that they did so because of his protected disclosures and/or acts. The Claimant may say their failure is their omission to involve themselves in the arrangements for the appear hearing. However, unlike issues 49 and 51, which related to serious issues of sexual harassment and racism, this issue relates to the procedural arrangements being made for the appeal hearing. I consider that the Claimant has no reasonable prospect of succeeding in his complaint against Mr Engstrom, Ms Smyth or Mr Jones and I consider it in the interests of justice to strike out part of this allegation, being the allegation against those three Respondents. Issue 53 – Respondents EE, HJ, AS, TR and the companies secretly recorded, and or authorised and or afterwards condoned and thus further concealed recording, of the appeal hearing.

[161]I do not understand the basis of why liability for this allegation is said to fall on each of the Respondents other than Mr Ramage who was at the appeal hearing. However, I note that the allegation is more than simply the recording but also the alleged condoning and further concealing which I appreciate may have been the decision of others. Given the extent of the disputed evidence in respect of this allegation and as it is not appropriate for me to try to fathom what has happened on the papers alone, I decline to strike it out.

[162]I do not understand the Claimant’s final comment at page 127 of his submission, page 252 submissions bundle. In as much as the Claimant is suggesting that I strike out the Respondents’ defence then I decline to do so, the basis of why I am invited to consider doing so being wholly unclear from the Claimant’s description. Issue 54 – Respondents AS, EE, HU and the companies delayed provision of the claimant’s P45 following his dismissal on 10 November 2022 such that it had still not been filed with HMRC or sent to the claimant by 18 April 2023 Page 30 of 34

[163]The Claimant has explained why the delayed P45 was to his detriment and why he felt the Respondent was being in some way obstructive in not producing it. I can not say that he has no or little reasonable prospect of showing that his employer failed in its duty to provide him with a P45 in a timely manner and that the reason for that was because he had made protected disclosures and/or acts.

[164]I do however consider that the allegation against the named Respondents has no reasonable prospect of success. Mr Engstrom is the CEO of RELX Plc and Mr Udow is the Chief Legal Officer of Relx (UK) Ltd. I consider it wholly implausible that they are responsible for providing the Claimant with his P45 as opposed to delegating the task. I also consider the Claimant has no reasonable prospect of persuading the Tribunal that they instructed that the Claimant’s P45 be delayed and that they did so because the Claimant had made a protected disclosure and/or act. Regardless of the employer’s responsibilities under the Income Tax (PAYE) Regulations 2003, the Claimant’s complaint is that the Chief Legal Officer and CEO caused a delay intentionally and are responsible for that delay. I consider that allegation is bound to fail.

[165]I decline to make the same order in respect of Ms Smyth as the Claimant says he requested the P45 from her on 17.01.23. It is therefore not known whether she had involvement in the delay and if so for what reason. Claimant’s means

[166]I exercise my discretion to make an order for deposit orders in this case for the reasons set out above. I remind myself of the authority of Ishmail and the purpose and effect of a deposit order. I consider it appropriate to order a sum of money to be paid as a condition of pursuing the claims having identified a number of allegations which I consider have little reasonable prospect of success. I do not consider that this will prevent access to justice or effect a strike out through the back door. I have endeavoured to set the deposit order at a level that means they are payable if the Claimant chooses but will encourage him to take stock of the merits of those claims which I consider have little reasonable prospect of success and make an informed decision as to how he wishes to proceed.

[167]The Claimant was ordered to include evidence of his means for the Preliminary Hearing. The evidence he provided was sparse and was discussed during the Hearing. The Claimant only provided details of his present salary of £34,502 gross per year not telling the Tribunal when he had begun to earn that salary nor of any other income, expenditure, savings or assets. He said his previous salary with the Respondent was £75,000 gross per year. I am aware that he has a young daughter. I have seen his CV showing his wealth of experience and previous consistent employment and academic history. I do not know any other details of his means. Page 31 of 34

[168]Standing back and looking at the total sum ordered and considering the information I have at my disposal as to the Claimant’s means, I consider the appropriate sum to be £60 for each deposit order. If the Claimant elects to pay all 83 deposit orders, this gives a total of £4,980.

[169]If the Claimant elects to pay some deposit orders and not others, he is asked to specify clearly which allegations he intends to pursue by reference to the issue number in Appendix 1, the cause of action and the named Respondent. EMPLOYMENT JUDGE MUSGRAVE-COHEN Dated: 13 May 2024 Corrected: 25 June 2024 26 June 2024 ……………………………. ……...…………………….. NOTE ACCOMPANYING DEPOSIT ORDER Employment Tribunals Rules of Procedure 2013 1. The Tribunal has made an order (a “deposit order”) requiring a party to pay a deposit as a condition of being permitted to continue to advance the allegations or arguments specified in the order. 2. If that party persists in advancing that complaint or response, a Tribunal may make an award of costs or preparation time against that party. That party could then lose their deposit. What happens if you do not pay the deposit? 3. If the deposit is not paid the complaint or response to which the order relates will be struck out on the date specified in the order. When to pay the deposit? 4. The party against whom the deposit order has been made must pay the deposit by the date specified in the order. Page 32 of 34 5. If the deposit is not paid within that time, the complaint or response to which the order relates will be struck out. What happens to the deposit? 6. If the Tribunal later decides the specific allegation or argument against the party which paid the deposit for substantially the reasons given in the deposit order, that party shall be treated as having acted unreasonably, unless the contrary is shown, and the deposit shall be paid to the other party (or, if there is more than one, to such party or parties as the Tribunal orders). If a costs or preparation time order is made against the party which paid the deposit, the deposit will go towards the payment of that order. Otherwise, the deposit will be refunded. How to pay the deposit? 7. Payment of the deposit must be made by cheque or postal order only, made payable to HMCTS. Payments CANNOT be made in cash. 8. Payment should be accompanied by the tear-off slip below or should identify the Case Number and the name of the party paying the deposit. 9. Payment must be made to the address on the tear-off slip below. 10. An acknowledgment of payment will not be issued, unless requested. Enquiries 11. Enquiries relating to the case should be made to the Tribunal office dealing with the case. 12. Enquiries relating to the deposit should be referred to the address on the tear-off slip below or by telephone on 0117 976 3033. The PHR Administration Team will only discuss the deposit with the party that has been ordered to pay the deposit. If you are not the party that has been ordered to pay the deposit you will need to contact the Tribunal office dealing with the case. 13. You have the right to appeal against the decision to make a deposit order if you consider that the decision, or the amount ordered, is wrong in law. The time for appealing is 42 days from the date on which the deposit order was sent out in writing by the Tribunal. Details of how to appeal can be found here: HMCTS Booklet T440: https://www.gov.uk/government/publications/how-to-appeal-to-the-employmentappeal-tribunal-t440 The website of the Employment Appeal Tribunal: https://www.judiciary.uk/courts-and-tribunals/tribunals/employment-appeal-tribunal/ Page 33 of 34 ---------------------------------------------------------------------------------------------------- DEPOSIT ORDER To: Judicial Fees, Expenses & Payroll Team Magistrates’ Court & Tribunal Hearing Centre Marlborough Street Bristol BS1 3NU Case Number _____________________________________ Name of party _____________________________________ I enclose a cheque/postal order (delete as appropriate) for £__________ Please write the Case Number on the back of the cheque or postal order Page 34 of 34

Facts

[170]The disciplinary and grievance hearing meeting took place at 3pm on 4 November 2022. Prior to the meeting Mr Jones had read the investigation report, the investigation outcome letter, documents received from the claimant including his response to investigation outcome and the Required Replies document and relevant policies and procedures. Ms Meredith, who supported Mr Jones, had had a meeting with him on 2 November 2022 to discuss the process, what Mr Jones’s role was and what he would need to do and what support she could give him. They discussed the disciplinary allegations in the investigation report findings. Ms Meredith produced a script for him to use during the meeting. The meeting lasted for two hours and 20 minutes.

[171]The claimant was accompanied by Mr Muneer. The meeting included:a. At the start of the meeting Mr Jones introduced the meeting and reiterated the information that was in the invitation letter.

b. The claimant had a number of questions about the process which Ms Meredith took the lead on. There was a discussion about the fact that the meeting would not be recorded and about minute taking. The claimant himself referred to the fact that there were redactions applied to the investigation report and wanted to know that when the record of the meeting was produced, the names would be redacted. He was asked why he read names out, and he said “Because my grievance is about the fact that I can do this. The court will need evidence in the record that this occurred”.

c. The claimant asked why he was suspended. Ms Meredith explained that Mr Jones was not a decision-maker and the partial suspension would continue until the conclusion of the disciplinary process. The claimant asked numerous further questions and Ms Meredith said she would come back to him with some answers. The claimant nonetheless continued to ask numerous questions and make various points.

d. Mr Jones set out that the investigation report found that the claimant had inappropriately touched Ms King on 29 September and this conduct was unwarranted and caused her distress which was a breach of the RELX Code of Conduct and Business ethics. He set out the purposes of the hearing was to consider whether disciplinary action should be taken in respect of the allegation, and to give the claimant the opportunity to respond to the findings and provide any mitigation.

e. There was some discussion about the status of the investigation findings. Mr Jones said that the “findings are the findings. The purpose of this meeting is to hear your response to those. Then after that, I have to come to a decision and that might involve me speaking to people”. He said that he was not going to redo the investigation, but the claimant had its own perspective and recollection which he was interested to hear. The claimant urged Mr Jones not to reopen the investigation report but to look at Ms Laporte’s reasoning, and whether you would come to the same conclusion. He urged Mr Jones to look forensically at what the report said.

f. The claimant made observations about Ms King’s evidence that the claimant’s alleged actions were not discrete, and yet nobody witnessed them.

g. He referred to the fact that the alleged incident about lifting Ms King over the claimant was not complained about. The claimant said that he was asserting that he carried her over himself at her request and this was “blindingly obvious”.

h. The claimant made reference to certain issues “not going to get past the judge”.

i. The claimant commented about a number of witnesses claiming that he was over-friendly and that a naturally more tactile person may interact with others which was not malicious but be construed as inappropriate. He said “that is a cultural difference being described” he said there was no corroboration to the allegation made by the complainant.

j. The claimant’s grievance concerning suspension was discussed. He questioned what due diligence steps were taken between the complaint email on his suspension. He had asked for months what due diligence had been undertaken and got no responses.

k. Mr Jones specifically asked what the claimant meant when he was referring to discrimination. Claimant said that he was given no reason for the suspension of face-to-face working, and when a reason was provided it was along the lines of him having to work alongside others might mean that he tampered with witnesses. Mr Jones questioned whether this was an issue of fairness and asked whether the claimant felt he was discriminated against because of any characteristics. The claimant responded “I am not going to comment at this point because I don’t have evidence. Looking at the Disciplinary Code, the aim is to ensure consistent and fair treatment for all. The discrimination was that that has not been complied with. I was excluded from the workplace for 1 month with no reasons given. I don’t need to use the qualifying racial. It was discrimination because one party was allowed to go on and one assumed to be tampering”. The claimant expressed that he had not been given a valid reason for his suspension.

l. The claimant pressed for answers as to why he was suspended. It was explained that there would be answers through the process rather than at the meeting.

m. Mr Jones referred to the unredacted investigation report and asked the claimant “to delete permanently the copy you have”. The claimant responded that he agreed with that but someone needed to respond to his concerns about it. He said “the SRA needs to explore this if internal remedies are exhausted” and said he was entitled to preserve potential evidence for subsequent proceedings. He would be happy to lodge the document in the secure custody of a solicitor. Mr Jones reiterated his request for the claimant to delete the report, but the claimant said that Mr Jones was not entitled to ask that without legitimate reasons. After further discussion Mr Jones agreed that he would write to request that the claimant deletes the document. Mr Jones drew the meeting to a close and set out his understanding that “the next steps are for me to consider everything been said, to respond to questions you asked, and ultimately come up to a decision” (sic).

n. The claimant sought a commitment that his suspension would be lifted allowing him to return to work at 8 AM the following Monday (the meeting was on Friday). There was further discussion about the suspension and the reasons for it. Mr Jones took the view that the claimant was badgering Ms Meredith. It was impossible to give the claimant the answers he was looking for in such a short timeframe.

o. Mr Muneer mentioned that the claimant was already suspended when he (Mr Muneer) came back to work on 6 October 2022. He had been made aware of things through informal discussion with Ms Pandya, and observed that the communication could have been “sharper”.

[172]Separately, at 11.19 on 4 November 2022 (four hours prior to the meeting), Mr O’Donoghue messaged Ms Jackman to say “I don’t envy [Ms Meredith/Mr Jones with RR - are they feeling good and prepped. I think we need a strat session on RR at some point - breakdown in trust and confidence, aggressive/threatening/bullying behaviour, term probation, whatever…. I think exit strategy is the way to go….” Further correspondence post disciplinary meeting

[173]At 7.09am on Monday 7 November 2022 the claimant emailed Ms Smyth, cc Ms Robbins, Mr Muneer, Ms Meredith, Mr Jones and Ms Prince. He said that Mr Jones and Ms Meredith were unable to supply any replies to the Required Replies document, which prevented any lawful completion of the meeting, despite Mrs Smyth’s personal and professional assurances that the replies would gain lawful consideration on that occasion. He said Mr Jones and Ms Meredith were unprepared and that he had reluctantly agreed to allow for more time and the meeting was “adjourned inconclusively and I await resumption once the required answers are in hand”. He said that his discriminatory suspension remained ongoing, which was impacting his work and personal health. He asked for the suspension to be lifted immediately or give reasons why it was not, and said that a response was expected “within the professional ethics requirements of the SRA and your compliance committee roles”. He said he awaited information such as Ms King’s email of 30 September 2022, a “snippet” of which was quoted in the investigation report. He awaited full records of each witness meeting. He said that Mr Jones appeared broadly attentive to detail and was seemingly fair-minded but appeared confused and admitted to a lack of expertise on the “obvious applicability of SRA obligations in the performance of yourself and Ms Robbins here”. He concluded his email “This is the final mention I intend to make of the SRA prior to formal submissions there, after allowing a pause for your diligent response to every matter raised above”. The claimant says that this was a protected act PA7 and a protected disclosure PD7.

[174]At 7.23am 7 November 2022 the Mr Davies, Ms De Winter and Ms Smyth (cc Mr Muneer, Mr Jones and Ms Prince) raising their silence since his complaint regarding serious data security breaches and breaches of privacy, confidentiality and GDPR obligations. He said that unless he heard by noon how they intended to investigate and rectify he would consider his internal remedies exhausted and would approach the Office of the Information Commissioner (“ICO”) as a formal escalation.

[175]At 11.28 of 7 November 2022 Ms Davies responded acknowledging receipt, and saying that she would review and respond as soon as possible and in any event within 28 days. The claimant replied at 11.46am including a link to business responsibilities and privacy principles. He noted, specifically for the benefit of Ms Smyth and her management of conflicts of interest, Ms Jackman who has presided over and bears accountability for the breaches and negligence was “fatally conflicted and would create an impression of retaliation that is prudently to be avoided”. He required explicit reassurance that Ms Jackman has been removed from all involvement in any matter concerning his interests. We repeat our observations above about the claimant’s 3 November 2022 email to Ms Davies and others. The claimant had not there alleged that Ms Jackman had breached any obligations of privacy or confidentiality, but merely given assurances about confidentiality and warned the claimant to observe them. We do not understand the basis upon which the claimant was saying in this particular email that she was fatally conflicted. The claimant referred to Mr Jones’s “unusual request on Friday that I should destroy the evidence of data breach in my possession”. He referred to the request as being unethical, and suggested a conflict of interest which was active and alive. We note that Mr Jones had not requested the destruction of evidence, but merely requested the deletion of a report which, even on the claimant’s case, he should not have received in that format.

[176]At 12.49pm on 7 November 2022 Ms Meredith emailed the claimant “Private addressee only”. She said she would send the claimant the notes of the disciplinary and grievance hearing by the close of business Friday. She said Mr Jones will consider the points made during the meeting and the written submission claimant produced in response to the investigation outcome. She said that the points made in the required Replies document would be considered a formal grievance, and that Mr Jones would provide a decision relating to that grievance as soon as possible, and in any event no later than 9 November 2022. She explained that, as Mr Jones had said in the disciplinary and grievance meeting, the partial suspension would remain in place pending the outcome of the disciplinary hearing. She reiterated the message that claimant should delete the investigation report which had been improperly redacted. She confirmed that a properly redacted report would be sent to the claimant and the unredacted one would be retained in the format that was sent. She concluded her email “Finally, please refrain from contacting Alex Smyth and Lucy Robins about your concerns. The appropriate recipients of communication in relation to these various matters are those on this email, namely Amanda Jackman, Jonathan Jones and me”.

[177]At 1.21pm the claimant responded to the email thread involving Ms Davies and numerous others to say that in the light of Meredith’s email of 12.49pm that day he was “looping in” others to ensure that a copy of the document in its redacted form is retained for accountability. He also suggested that she attended to the remaining content of her email and that “applicable guidance and general principles preclude your attempt to prevent me contacting Ms Smyth. I would also add that the conflict of interest regarding Ms Jackman has also been raised”. He reiterated his entitlement to answers to the questions he had raised and questioned how Mr Jones could decide the grievance before those responses were given. He copied in further people into the email chain. He confirmed that information had been deleted in his email system. He repeated that no reasons for ongoing suspension had been provided.

[178]Ms Smyth forwarded this email to a colleague, Ms Milner, observing “He obviously doesn’t plan to desist from his campaign directed at me”. Ms Milner questioned whether, in the timing of emails, whether the claimant had contacted Ms Smyth after Ms Meredith this instruction not to. Ms Smyth responded that Ms Meredith had emailed the claimant at 1.07pm (in fact it was 12.49pm) and that the claimant emailed or again at 1.22pm.

[179]At 3.56pm Mr O’Donoghue messaged Ms Jackman. He said “I see ongoing email chains are coming in from RR – Any chance we could do a 5.30 – me, you [Ms Dunn in-house employment counsel] and [Ms Smyth]? I know she is really wanting his harassment, threatening, failure to follow reasonable and instructions to be addressed - separate or together with this issue. I feel a bit out of the loop, but with a view! LOL I think we need a strategy for how this multi-thread thing is coming together”. The respondents’ witnesses gave evidence that no “strat session” took place following this email and that of 4 November 2022. Mr Jones gave evidence, which we accept as nothing was put forward by the claimant to undermine it, that he had no idea of any communications about any “strat session”. Further investigation by Mr Jones, SRA complaint

[180]At 4 PM on 7 November 2022 Mr Jones, with Ms Meredith, had a meeting with Ms Laporte. This meeting included:a. Discussion about the timeline of the investigation.

b. Mr Jones asked Ms Laporte about the claimant’s comments that there was no corroboration to the alleged behaviour, and only a suggestion that people saw Ms King’s reaction. He asked how she approached her findings and how she weighed up the witness evidence on the balance of probabilities. Ms Laporte set out that there were a couple of incidents before the alleged touching, including the incident where Ms King went across the claimant’s lap and the touching of her shoulders. These were visible from across the table. Ms Laporte concluded that the act of touching could have happened a bit lower and may not have been obvious.

c. Ms Laporte further observed that several people reacted and saw that. She had nothing to doubt what Ms King was saying and she was credible in her testimony. Ms King had not met the claimant before. Ms Laporte also observed that there were witnesses to say that the claimant was quite tactile, and although they did not react in the same way, there were patterns. The claimant also said that he was not drunk whereas several people had said he was tipsy.

d. Mr Jones asked about what the claimant had said about innocent and ebullient West Indian cultural differences. Ms Laporte wondered whether this was a reference to what was allegedly said to the claimant by the bartender. She did not think this was relevant to the investigation. Mr Jones said that the claimant was specifically referring to being over friendly and tactile which he thinks was the cultural difference being described. Ms Laporte said that the claimant said he was not tactile and said he had been surprised at the company briefing when people have been asked to hug a colleague.

[181]Mr Jones also held a meeting with Ms Hill on 7 November 2022. This meeting included:a. Discussion about why the claimant was suspended and not Ms King. Ms Hill explained that unless there was a counter-allegation, for example, one person punches another and the other punches back, then this was the only circumstances she could think of in her 20-odd year career and experience.

b. Ms Hill said the claimant was suspended because of the nature of the allegation which was serious and could amount to sexual harassment. Also one of the witnesses worked with him in his team. There was a potential that he could interfere with the investigation process.

c. The partial suspension was imposed because all of the witnesses apart from one had been interviewed. The risk of him interfering with the investigation was no longer there. However the allegation remained a serious one and no findings had been made at that point. He was therefore allowed to work from home. Both Ms Hill and Ms Pandya agreed that this was appropriate.

[182]On 8 November 2022 Ms Meredith sent the claimant a redacted investigation report. She requested again that the claimant refrain from contacting Ms Smyth or Ms Robins. She said that these were employee relations matters and that it was appropriate that the matters to be directed to the employment relations team and Mr Jones as the decision-maker in the disciplinary and grievance.

[183]On 8 November 2022 the claimant sent a complaint to the SRA about Ms Smyth. This was a lengthy document in which he alleged that Ms Smyth had specifically undertaken to answer the required replies questions at a hearing on 4 November 2022 but no responses were forthcoming. He alleged that Ms Smyth and Ms Robins brought solicitors into disrepute. He referred to breach of privacy and attempted destruction of evidence. He dated the complaint 7 November 2022. There is no reference in the complaints to any breaches of the Equality Act 2010 or anything that could be understood to be breaches of it. The claimant says that this was a protected act PA8 and a protected disclosure PD8.

[184]On 9 November 2022 Mr Jones had a follow-up meeting with Ms Hill. Ms Hill shared the suspension letter she had sent claimant. She reiterated the rationale behind the partial lifting of suspension, saying that witness evidence had been gathered, the outcome of the investigation was not yet known, this was a serious allegation, the complainant was in the office and was concerned about bumping into him, and it was felt desirable to protect the situation and mitigate the risks of them bumping into each other when the outcome of the investigation was not yet known.

[185]Also, on 9 November 2022 Ms Meredith emailed the claimant. She referred to having sent him an invitation to a 4.30 meeting to deliver the disciplinary and grievance outcome, but the claimant had not responded. She said she would send another invitation for a reconvened meeting the following day at 10 AM. WhatsApp messages between the claimant and Mr Muneer suggest that the claimant received the invitation at 2.45pm but was not prepared to go into what he described as “some no-evidence call for no apparent reason”. He indicated that he would be speaking to lawyers in the morning. There is no suggestion whatsoever that the claimant viewed this outcome meeting as being part-heard. There is nothing from the respondents to back up this notion either.

[186]On 10 November 2022 the claimant sent his SRA complaint to Mr Jones and Ms Meredith cc: Mr Muneer, Ms Smyth and Ms Robbins. He says this was a protected act PA9 and a protected disclosure PD9. In this email he explained that the meeting the previous day had clashed with his daughter’s parents evening and his companion, Mr Muneer, could not attend either. The claimant anticipated a “constructive resolution which might then perhaps bring finality rather than sequel”. Disciplinary/grievance outcome

[187]At 10 AM on 10 November 2022 the disciplinary/grievance outcome was delivered via a Teams meeting. In addition to the above, Mr Jones had also taken legal advice about the definition of sexual harassment before he made his decision. Mr Jones said that he would follow the meeting up with relevant documents including an outcome letter which set out the details of his reasons. He explained that the grievance was not upheld. The appropriate suspension processes were followed and it was in fact handled fairly. He said that, in terms of the data breach aspect of the grievance, the data protection officer would handle this and would respond as appropriate. Turning to the disciplinary Mr Jones considered that the conduct which he found took place was clearly unacceptable, unwelcome, unwanted and causing upset and was of a sexual nature. He considered that the behaviour amounted to sexual harassment and was clear serious misconduct. Turning to sanction, he was conscious that the disciplinary policy refers to harassment as a course of conduct, and for that reason only, he decided that whilst termination was of appropriate, it should be on notice. He noted that termination for simple misconduct during probation was something contemplated by the disciplinary policy. He said the claimant’s employment was terminated on notice, but the company was exercising its right to pay the claimant in lieu of notice, and so today would be the last day of the claimant’s employment and he would receive a month’s base pay in lieu of notice. He was given a right of appeal. The claimant asked a number of questions most of which were answered.

[188]Mr Jones concluded the meeting by saying words the effect “Have nice day. If you can”. The claimant’s case is that this was a malicious comment infected with discriminatory motives. Mr Jones’s evidence was that he conducts numerous online meetings which he generally includes with some sort of platitude such as “Have a nice day”. He says that as he was saying “Have a nice day” to the claimant he realised how inappropriate it might seem to someone he had just dismissed from employment. He therefore tacked on the words “If you can”, as some sort of clumsy way of rectifying the situation. We accept Mr Jones’s evidence. It is not unusual in all walks of life for people to operate on some sort of autopilot and to find themselves saying something inappropriate without meaning to. We find that this is what happened here. Mr Jones found himself saying something inappropriate, tried to rescue the situation but found himself blurting out something which, understandably, came across as inappropriate and insensitive.

[189]Mr Jones provided the claimant with a disciplinary and grievance hearing outcome letter dated 10 November 2022. This letter included:a. Mr Jones’s methodology, including his consideration of the investigation report of Ms Laporte, the claimant’s response, the further interviews of Ms Laporte and Ms Hill, the documents reviewed, including the disciplinary investigation report, the claimant’s response, the Required Replies document, and privacy complaint.

b. Mr Jones set out a chronology of events.

c. Mr Jones dealt with the Required Replies Mr Jones worked his way through all of the questions. In particular, i. Mr Jones set out the rationale for the claimant suspension, namely that it was not appropriate for the claimant to be in the office while allegations were being investigated as there was a concern that he might attempt inappropriately to influence the outcome of the end investigation and come into contact with the complainant or witnesses, which was problematic while the process was ongoing. ii. Ms Pandya acted appropriately in the manner in which the claimant was informed of his suspension. By its very nature it was not appropriate to give advance warning of the suspension, and it was dealt with according to how the company deals with suspension. iii. It was entirely appropriate to form a view that suspension was appropriate before speaking to the claimant in circumstances where the allegations were clear. iv. It was appropriate to tell the claimant to cancel a work call shortly after he had been informed of his suspension. v. It was appropriate to suspend the claimant, and not Ms King, because the allegations raised were about his conduct and not anyone else’s. Given the seriousness of the allegations, it was appropriate for the claimant alone to be suspended. Mr Jones set out that he had asked the claimant on what basis he felt he had been discriminated against, and the claimant explained that it was not on the basis of a protected characteristic but purely on the basis of differential treatment. He was satisfied that there was no discrimination during the process. vi. Mr Jones explained that once witness interviews were completed on 17 October 2022 the decision to suspend was reconsidered and it was considered appropriate partially to lift the suspension to allow the claimant to work remotely. Given the seriousness of the allegation and the outcome of the investigation it was still considered inappropriate for the claimant to be in the office until after the conclusion of the disciplinary process as it was possible that the claimant could come into contact with Ms King, which was undesirable. It was also envisaged that the disciplinary process would be concluded reasonably swiftly.

d. Mr Jones turned to the disciplinary allegation. We will set out his conclusions in full. I have considered your representations both in the “Response to Investigation Outcomes” document and made during the 4 November 2022 hearing. In the first part of your response to the investigation findings, you assert a number of times that no one directly witnessed the alleged inappropriate touching and therefore the conclusion Cathy reached in her findings was not sound. The thrust of your initial point is that if the alleged touching wasn’t obvious to everyone there, that it could not have taken place. Having read the findings and discussed this with Cathy, I am satisfied that the finding in the investigation report is sound. It is accepted that none of the witnesses confirmed that they observed the touching complained of. Given the nature of the alleged touching, that it was of the complainant’s lower back and then moving upwards, and that everyone was sat round a table, this is not necessarily surprising. However, what is clear from the witness evidence is that five of the witnesses noted that the complainant had an immediate reaction to something that had happened while you were sat next to her and that she was clearly upset. This is consistent with something unwelcome having occurred. You have indicated that the complainant may have made the allegation up. I do not accept this proposition. The complainant did not know you prior to the evening in question and there is no evidence of any motive she may have to make up such an allegation against you. In the second part of your response, you refer to the Code of Ethics and the conclusion drawn about your behaviour in the investigation, with reference to policies. The investigation found that on the evening in question three different women, including the complainant, reported that you were uncomfortably close, placing your arm round their shoulders, and otherwise touching shoulders and waist. It was noted by the witnesses that these may be examples of you being “tactile” or “overfriendly”. Several witnesses reported that you seemed the worse for wear for drink. You imply that witness interpreted your ‘touchy’ behaviour as a characteristic of your West Indian heritage. However, nowhere in the investigation findings do the witnesses refer to your West Indian background. Other witnesses observed (particularly female members of staff) that you were noticeably touchy and certainly more touchy than usual. You did not deny this behaviour occurred. You assert that none of this behaviour is in breach of RELX policy. I agree with this so far as it relates to you being tactile and/ or overfriendly, but it is relevant background to considering the specific complaint. Findings For the reasons set out above, I agree with the investigation findings that on the balance of probabilities, the incident took place as reported. Conclusion I consider that the conduct which I have found took place was clearly unacceptable. It was unwelcome in the sense of being unwanted and causing upset, and was of a sexual nature. In my view, this behaviour amounts to sexual harassment and clear serious misconduct. In deciding what sanction is appropriate I am conscious that the disciplinary policy refers to harassment as a course of conduct and for that reason only I have decided that whilst termination is appropriate it should be on notice. I also note that termination for simple misconduct during probation is something contemplated by the disciplinary policy. Your employment is therefore terminated on notice. In accordance with your employment contract, the Company is exercising its right to pay in lieu of notice. Therefore, today will be your last day of employment and you will you receive one month’s base pay in lieu of notice subject to normal deductions for tax and National Insurance contributions.

e. The claimant was given a right of appeal and given information how to progress this. Correspondence following disciplinary outcome, appeal against dismissal

[190]Within the bundle was the transcript of some messages between Ms Smyth and Mr O’Donoghue dated 15 November 2022. In these messages they were discussing a colleague RM. In one message Ms Smyth says, about RM “I think he was relieved I didn’t go (more) berserk re RR”. The claimant cross-examined a number of witnesses on the issue of this comment, often putting to them the dictionary definition of berserk. He suggested that it was grossly unprofessional for a General Counsel to be going berserk in the workplace. He put this message to Ms Smyth herself. Miss Smyth gave evidence that she was talking figuratively. She stated that someone might say, for example, that they were “banging their head against a wall” which should not be taken to mean that a person was, quite literally, banging their head against the wall. We find that this message was, as Ms Smyth stated, meant figuratively. It was quite clear that she found the manner in which the claimant communicated with her extremely challenging. He wrote lengthy legalistic emails to her when she could see little scope for his involving her. He, rather bizarrely, asked her to confirm her SRA registration number. We find that this was a not particularly veiled threat of making a professional complaint against her if she did not give him what he wanted (and one which he, in fact, followed through with, though unsuccessfully, in that the SRA did not uphold the complaint). He continued to involve her in communications when specifically instructed not to. She contemporaneously raised with colleagues that the claimant was mounting something of a harassing campaign against her. We have every sympathy with her view in the light of the evidence. From a review of the contemporaneous documentary evidence, and from listening to and observing and listening to Ms Smyth in the witness box, we have little hesitation in concluding that she acted with utmost professionalism throughout.

[191]On 16 November 2022 the claimant sent Ms Smyth and Ms Robins and “RELX Group Plc/Reed Exhibitions Limited” a “Letter before action seeking an interim High Court injunction under section 37(1) of the Senior Courts Act 1981 following your repudiate true breach of my contract of employment, which is not accepted”. The claimant identified himself as the proposed claimant to this action and RELX Group Plc as the proposed defendant. The letter was seven pages long asserting breaches of natural justice, denial of witness statements necessary for his defence, shifting goalposts and setting out proposed remedies of injunctions restraining implementation of the notice to terminate his contract. The claimant referred to various legal cases in this letter.

[192]On 17 November 2022 the claimant appealed against his dismissal, setting out his grounds over 15 pages. Very much in summary, he attacks the reasoning of the investigation report, and Mr Jones’s findings. He made various observations, such as suggesting he had been actively misled into believing Mr O’Donoghue had been interviewed during the course of the investigation. He accused Mr Jones of being “malicious” and of “making stuff up” and of being responsible for “disingenuous twisting and rewriting of evidence”. He further suggests that there has “literally been no hearing on my sexual harassment allegation”. He further suggest that Mr Jones “abusively imports a Protected Characteristic: my black West Indian Heritage” into the process. On this point the claimant says “This is another first perpetrated by Jones on 10 November in his outcome letter. Throughout the proceedings I have been exceptionally careful to separate out discrimination (for example when I was, but the complainant was not, suspended from face to face work) from racial discrimination. I pointed out this was discrimination in the sense of unfairness between both parties, as guaranteed by the code; I did not need to suggest any race aspect. Jones differs. In his 10 November report, dealing suddenly and for the first time, and entirely by his own lights, with my West Indian heritage which he never discussed with me on 4 or 10 November, Jones adopts a strangely racialised approach that had plainly discriminatory impact within his analysis and factual conclusions. Why did he ambush me by reference to my protected characteristics in the final step of producing his 10 November letter. He was at minimum required to discuss any aspects of my protected characteristic with me first”. He concludes his grounds by saying he was entitled to the immediate overturning of the unsound and abusive decision and reinstatement. He says he rejected the attempted repudiation of his contract and has affirmed it. The claimant says it is appeal was a protected act PA10.

[193]On 18 November 2022 solicitors Clyde & Co wrote to the claimant saying they were instructed on behalf of RX in relation to the claimant’s proposed application for a High Court injunction. They asked the claimant to correspond directly with them in relation to the letter. The contents of the letter were noted, and it was observed that the claimant’s application was misconceived and without merit. They pointed out that the proposed defendant was RELX Group Plc, but observed that the claimant was employed by RX, which would be the correct party for any application. The claimant responded to this letter on 21 November 2022, first of all asking the solicitor with conduct of the case to confirm their SRA number. He set out numerous reasons why he said RELX Group Plc was the appropriate proposed defendant.

[194]On 21 November 2022 the claimant wrote a four-page letter to Mr Udow, Chief Legal Officer & Company Secretary RELX and Mr Thompson Chief Compliance Officer & Corporate RELX. The covering email says that the letter was sent to avoid litigation which was seeking 1) aggravated data breach damage, 2) defamation/negligent misstatement, 3) High Court injunction. He suggests that Mr Jones “gratuitously references my black West Indian heritage” and makes race, which should be irrelevant, relevant, in order to fire him. He suggests the dismissal was a nullity. He sets out numerous “lurid” abuses of natural justice. He makes no reference to the complaints being a grievance and makes no request that they be treated as such. He asserts this was a protected disclosure PD12.

[195]On 21 November 2022 Ms Smyth emailed Mr O’Donoghue to say that on their “favourite topic”, ie the claimant, had escalated more allegations that morning and sent them directly to Mr Udow and others. She said “Can you please make sure that reception are aware of him and that they shouldn’t let him (sic), and also double check is key card is deactivated?" While this note was not pleaded as an act of discrimination, the claimant suggested to certain witnesses in cross-examination that Ms Smyth, by suggesting that “security” be alerted to the possibility of the claimant attending the offices was applying a negative racial stereotype to the claimant of being an aggressive or violent black man. Miss Smyth gave evidence that there was no security, and there was simply a reception desk. She said that she contacted Mr O’Donoghue about this as the claimant was making more and more allegations and suggesting that he was still employed by RX and considered his dismissal and nullity. She was therefore simply ensuring that a dismissed person, who considered that he was still employed, did not access the offices. We accept Ms Smyth’s evidence. There is no implication that the claimant was considered a security risk (reception rather than security was mentioned in the message), but there was ample evidence to suggest that he still considered himself employed by RX. There appeared, therefore, to be a legitimate concern that someone who considered himself still employed by RX might seek to attend work. It is entirely appropriate for Ms Smyth to have taken steps to ensure that he did not attend work. We have found that this allegation by the claimant does not assist in any sense in inferring discrimination in relation to any of his allegations.

[196]On 22 November 2022 Mr Ramage was sent the claimant’s appeal papers. He had been identified as an appropriate person to hear the appeal. On the same day he sent the claimant an invitation to an appeal meeting on 25 November 2022.

[197]The claimant responded to Mr Ramage later that day to say that he would not be able to attend on Friday as he was travelling. He also said that he was concerned that his requests for the complainant’s statement and witness statements have not been provided. He asked for these to be supplied or an explanation as to why they would not be.

[198]Also on 22 November 2022 the claimant wrote to Mr Richards, Vice President Compliance Assessment and Programmes RELX. He set out that the emergency circumstances of his contacting Mr Richards, himself a black man, were “what is nothing less than a well-documented racialised attack by specific individuals within RELX employee relations, abusing every tenet of due process and natural justice, over here in London. There is no point mincing words at this late stage as nobody who reads the attached chronology and associated evidence could possibly differ with that summation”. He went on to say “Never in my wildest dreams could I ever have expected to be personally on the receiving end (in London!) three decades later of a high-toned version of the familiar Mississippi redneck jury dynamic. And yet: read closely what Mr Jones and Ms. Jackman have done . . . It has a familiar odour, albeit displaced across the pond….Smyth and Robbins have enabled a monster of racism to grow, behind gross failures of due process and natural justice”. He said he hoped “to avoid the litigation that Mr Jones and Ms Chapman have so aggressively courted”. The claimant cc’ed this to Mr Udow, Mr Thompson, Mr Muneer, Ms Prince, Ms Robins, Ms Smyth, Ms Davies, Ms De Winter and are members of HR. Ms Smyth gave evidence that she was deeply embarrassed to read these sorts of comments about her sent to a large number of her colleagues. We can understand her viewpoint.

[199]Towards the latter end of November 2022 there was further correspondence between Clyde & Co and the claimant about the claimant’s application for an injunction. Also, on 25 November 2025 the claimant sent a 4 page letter to Ms King, Mr Udow, Mr Thompson and Mr Richards making a number of complaints and demands following on from his letter before action of 16 November 2022. The thrust (though hard to make out clearly) is that the claimant demanded the provision of Ms King’s email of 30 September 2022, witness statements from the investigation and various other investigation documents. Nowhere in this letter does the claimant refer to the complaints being a grievance or ask that it be treated as such.

[200]On 13 November 2022 Mr Ramage emailed the claimant to rearrange the appeal hearing for either 5 December 2022 all 6 December 2022. He attached to his email Ms King’s email of 30 September 2022, six of the seven witness statements to the investigation, and the two emails in which witnesses made amendments to their interviews. In relation to one of the witness statements, Mr Ramage made clear that he was waiting for confirmation from the individual regarding permission to disclose.

[201]On 2 December 2022 a decision was taken to place an email divert given the proliferation of correspondence coming from the claimant, including to those with no involvement or knowledge of the claimant’s employment issues. The divert operated so that all emails would be diverted and would only be received by Ms Lowe (human resources, assisting Mr Ramage in the appeal), Mr Ramage, Ms Robins, a Ms Clark, Ms Davies, Ms De Winter, a Mr Matz, Ms Dunn and Miss Smyth. The divert was requested on 29 November 2022 and was in place on 2 December 2022.

[202]Also on 2 December 2022 Mr Ramage chased a response from the claimant to his last email.

[203]In early December 2022 there was further correspondence between Mr Ramage and the claimant attempting to set up an appeal meeting.

[204]On 7 December 2022 the claimant emailed various solicitors at Clyde & Co, Ms Robins, Ms Smith, Ms Davies and Mr Udow attaching his data breach complaint of 2 November 2022 and Ms Davies’s undertaking to investigate and revert within 28 days. He said that no one had reverted to him and indicated he intended to pursue a substantial data breach damages claim.

[205]As it had not been possible to arrange an appeal meeting with the claimant, Mr Ramage tried to do what he could to progress the appeal. As set out above, the claimant had indicated in his appeal that he had been misled about Mr O’Donoghue not being interviewed. Mr Ramage therefore interviewed Mr O’Donoghue on 9 December 2022. This interview included:a. Mr O’Donoghue said he was first made aware that an incident may have occurred when Ms Prince asked him to go outside the pub and said that something had happened, she was not sure what, but Ms King seemed quite disturbed and it was anticipated that something might be raised the following day. The following day Ms Romalowska, in Mr O’Donoghue’s team, told him that Ms King had emailed raising a complaint.

b. Mr O’Donoghue said he was on the same table with Ms King and the claimant and he did not talk to Ms King.

c. He said that Ms King and the claimant stood out as being “drunker than I would have expected, and that both were quite loud.” He said Ms King “wasn’t slurring her words, but I could just tell she was a little bit gone. Ronald was being very loud, and I definitely got a sense that he was drunk”.

d. Mr O’Donoghue said it he had spoken to Ms King at the business update event who shared that “that many of our black team members had congregated on one table. I forget how she worded it specifically, but like, oh, did you notice all of our black team members on that one table? I instantly didn’t want to get into any conversation about race or black team members in that environment. I was just conscious that there were other people milling around like it was one big room. I got a sense that she’d already had a couple of drinks by that point. Just in her demeanour. I just didn’t want to engage. So, I just made a comment along the lines of or talked briefly that people do gravitate towards similarity and familiarity. Someone was to look over who I gravitate to, it would be rooted around, gay, female, Irish and Christian. Katie is a member of “All In”, and that is why she may have made the comment”.

e. Mr Ramage asked Mr O’Donoghue whether he had seen happening between the claimant and Ms King that made him pause for thought. He said at one point he noticed Ms King passed him and looked a bit flustered, he thought maybe she had missed her bus. She was flustered and Ms Prince was following her out. He remembered Ms King coming back in and getting her phone, and then she left. After this Ms Prince indicated for him to go outside and that’s when she shared what she thought might have happened. Ms Prince said that Ms King visibly reacted to something and seemed very uncomfortable. Ms King could not maintain eye contact, and said that she was not okay and that she been triggered.

f. Mr Ramage asked Mr O’Donoghue whether he had talked to the claimant at some point. Mr O’Donoghue said that at some point he saw the claimant looking a bit forlorn and was markedly different. He wondered whether he was sick as he had too much to drink. He did not know whether he was drunk or not. Then the barmaid came over and seemed to be apologising to him for what Mr O’Donoghue took was her not serving him. The barmaid said that she was sorry, but she was with another customer and hopefully he didn’t think she was being rude. Mr O’Donoghue said that “He just went off on her, just berating her really and that was very unnecessary and seemingly trying to draw attention to it”. Mr O’Donoghue did not know what the specific nature of the complaint he had, he just assumed he’d been waiting and he could have made some comment about wanting a cup of water and to him. She was trying to explain that she been with another customer. Ms Prince and Mr O’Donoghue tried to calm the claimant down. Mr O’Donoghue went on “If you speak to him, he is very well spoken. He’s got like a plummy, posh accent, and he was talking very loudly. She was flustered and blushing”

g. Mr O’Donoghue said that people indicated to the barmaid that the issue was not then settled down, and she backed off and disappeared. He said that Ms Prince was saying that the claimant should give people the benefit of doubt and that she had apologised. The claimant got sulky and said “you don’t know what she said to me. You don’t know what happened”. Mr O’Donoghue said “I didn’t pick at that. I just wanted to close the conversation and move on”.

h. At one point Mr O’Donoghue mentioned that he was shocked and disappointed, and he was asked about this. He replied “Just that what should have been a good time away from the office, instead it had resulted in a female team member feeling that she'd been, at the time I think the word she used was, “felt up”. I was just like, oh my gosh. That's horrible. I guess I didn't know at the time it was an allegation. So, it was either true that it had happened, which was horrible, or it wasn't true that it had happened, which was horrible. Not a nice situation for anyone to be in”.

i. Mr Ramage asked whether Mr O’Donoghue had any questions. Mr O’Donoghue said that he had tried not to get involved as he was expecting to be interviewed. He said “I think both parties might have said I could corroborate events. But I cannot. I have purposely had a light touch on this case. I have steered the process but not looked into the specific details about what happened”.

[206]On 15 December 2022 the claimant emailed Mr Udow, cc numerous others, a letter before claim in relation to defamation and malicious falsehood. He set out that he claimed damages of £987,000. The letter was 68 pages long. On the last page he said “Everything above is reducible to the following single sentence: Defendants knew, while they stated that I committed sexual harassment, that in truth I never committed sexual harassment and through this arrant malice defendants lose all protection of qualified privilege otherwise applicable to disciplinary proceedings, and so will now compensate my daughter’s father for the damage they have done”. The claimant says this was a protected act PA14.

[207]On 16 December 2022 the claimant sent to Ms De Winter and Ms Davies the first of four subject access requests he was to make.

[208]On 19 December 2022 Mr Ramage provided the claimant with Mr O’Donoghue’s interview notes and offered a hearing on 10 January 2023. The claimant did not reply to this, and Mr Ramage followed up on for January 2023.

[209]On 6 January 2023 the claimant sent a letter headed “Refusal to apologise: aggravation of damages and deepen breach of trust and confidence”. This was cc’ed to numerous recipients, which included Mr Ramage. In the course of this letter, which was dense, legalistic and not easy to understand, the claimant indicated that he could not attend the appeal hearing on 10 January 2023 or during the week of 16 January 2023. Mr Ramage therefore wrote to the claimant on 10 January 2023 and offered an alternative date of 25 January 2023.

[210]On 9 January 2022 the claimant produced a lengthy witness statement for the High Court. He said that as of the 9 January 2023 he had still not received a P45 nor are RELX or RX entitled to issue one. He said that the court would readily draw inferences and he would raise it as a conduct issue with the SRA. On 16 January 2023 the claimant emailed Ms Smyth and numerous others including Mr Engstrom (who would not have received it because of the email block) to complain that Mr O’Donoghue had raised matters of concern about Ms King, and ask why he had not raised that before. Nothing in this email indicated that it was a grievance or should be treated as such. Clyde and Co responded the following day, and there was further correspondence from the claimant, in which he makes no reference to having made a grievance.

[211]In the meantime, Mr Ramage continued to conduct some investigation of his own.

[212]On 19 January 2023 he met with Ms King. Mr Ramage considered that Ms King was not comfortable in her role as a witness and was evidently upset. However, she was clearly able to articulate what had happened in relation to the incident. Mr Ramage found her credible. The interview included had:a. Ms King described the “seat swap”. She said that the wall was behind so she pushed the table forward, said can I move next to you, and the claimant said yes, then she sat there. There were no issues from her understanding.

b. Ms King said that she had one glass of Prosecco at the pub, and two glasses of wine before she got to the pub. Three glasses of wine over the course of 3 to 4 hours. She said people were tipsy but did not consider people were drunk.

c. Ms King described how the claimant’s hand was on the cushion of the bench. She was not alarmed and did not feel uncomfortable. She then felt physical contact against her lower back with his hand resting. He was physically touching her, she carried on with her conversation because she didn’t think it was malicious or that it was going to be an issue. She said “Then the bit after that happened really quickly, and it’s clear that it’s going round my waist and he was stroking… It must have been a matter of seconds, I felt him going up into my bra line… It was like this then I stood up when he’s just about to get to at the bottom of my bra strap”.

d. Mr Ramage asked Ms King about her mentioning that the claimant’s actions were “not discreet” and that “other colleagues began to notice”. Ms King said that, to her understanding, Ms Reebye had seen it because she sat opposite her and she locked eyes with her. She gestured “do you see that?”. Ms Reebye gestured “Come here” and Ms King assumed that she had seen it. She did not have the chance to speak to her and left.

e. Ms King described how Ms Prince had followed her out and asked whether she was okay. Ms King said she said something along the lines of “That guy is a creep” and Ms Prince asked whether she wanted her to say anything. Ms King said no that she just wanted to go home, went inside got her bag and left.

f. Mr Ramage asked whether in Ms King’s view the sequence of movements could be accidental. She said “no because if he is already comfortable leaning his hand behind me, I felt it, but I wasn’t uncomfortable with it, why did he feel the urge to take it further”.

g. Mr Ramage asked Ms King about a conversation with Mr O’Donoghue about observing black members of the team sitting together on one table that the work event. Ms King did not remember having that conversation, but remembered talking to Mr O’Donoghue and another colleague about how she felt isolated sitting on the fourth floor. She did not remember the conversation, but remembered talking about her own experience. After some further discussion, she remembered having a conversation with Mr O’Donoghue and the other colleague about people feeling “podded off” not wanting to mix within teams. She remembered a conversation about trying to change the relationship that groups have within groups within the company.

[213]On 23 January 2023 the claimant emailed Ms Smyth and numerous others to complain, among other things, that Mr Ramage proposed to interview Ms King again. He complained about delay (notwithstanding the fact that he had been responsible for delays). He said he had sent her “deceitful interview” to his solicitors. He referred to leaving matters to cross examination at the employment tribunal. He referred to libel proceedings. He made no reference to this being a grievance or any suggestion that it should be treated as such. On 24 January 2023 Mr Ramage offered the claimant a hearing on 2 or 3 February 2023.

[214]On 27 January 2023 the claimant emailed Ms Smyth, Mr Ramage and various others setting out his requirements for the appeal, which included timetabling an hour and half to present his appeal, 45 minutes to crossexamine Mr O’Donoghue whose attendance he required, video recording of the hearing and other matters. He requested a “hearing de novo”. He said “These delays in turn delayed the emergence of the evidence of the acts of discreet as well as continuing racial discrimination that are among my further appeal points and central to subsequent employment tribunal proceedings, unless consensually resolved and remedied”. The claimant says this was a protected act PA18.

[215]Mr Ramage responded by email to the claimant on 30 January 2023. He proposed setting aside two hours for the appeal hearing, said that Mr O’Donoghue was on indefinite sick leave and in any event he considered it was not appropriate and necessary for him to attend as he had been interviewed by Mr Ramage and the claimant had notes of the interview which the claimant could make points on, he would reach out to Mr Muneer in relation to the appeal hearing (which he then did), and it was not appropriate to allow video recording.

[216]The appeal hearing took place on 3 February 2023 by Teams at 10am, chaired by Mr Ramage who was supported by Ms Lowe of HR. Two note takers from one of the RELX group of companies in the Philippines which provide a support were present. One of these was a Mr Sinzon. Two hours were set aside for the appeal hearing, but the appeal lasted just short of two hour and 40 minutes and at one point Mr Ramage indicated that there was the possibility of reconvening the hearing if needed. The minutes of which were in the bundle. Four minutes before the appeal hearing the claimant sent Mr Ramage a 26 page skeleton argument and a 199 page appeal bundle. The claimant was given the opportunity to refer to evidence and make submissions during the course of the appeal hearing.

[217]During the course of the hearing the claimant raised, for the first time, an exchange he had had with Mr Casserley in which the claimant had said “Hey come on, n*****. Come on n*****. Tell her what you told me”. He then alleged that Ms King, who was setting herself up as “the world’s greatest diversity expert. Never mind that I worked with Nelson Mandela to set up the Truth Commission…She now schools me and says you cannot use that word. I go, I rolled my eyes and I go, oh, God, just spare me the white saviour thing and I turn away”. The claimant went on to explain that Ms King became subdued after that. The claimant explained that it was this exchange that would have disturbed Ms King. He said that it was the final piece of a puzzle for him about how much she was invested in believing that she was some kind of race champion, and that it was this disturbance in the conversation that would have upset her inordinately. He said this was the thing that had not been explored. The meeting ended with the claimant asking whether Mr Ramage anticipated going back to the other witnesses to understand what was the disturbance in the conversation. Mr Ramage said that he would have to review what he had heard that day and look through matters and make a decision.

[218]On 13 February 2023 the claimant emailed Mr Thompson, cc numerous other people including Ms Smyth, Mr Hugh Jones and Mr Engstrom on the subject “Evidence Racism @ RX Global”. He attached a four-page letter set out under a number of headings “Stark & Old Fashion Racism: Red lights on your dashboard”, “Leporte’s (sic) True Findings Were Extensively Rewritten & Falsified”, “Ramage Falsely Claimed to have Have Seen these Drafts”, “Kevin O’Donoghue: Dishonesty + Racism”, “The Complainant Has Now Undeniably Lied”, “Structural and Institutional Racism at Reed”, “Ramage lacked Competent HR Support” and “Conclusion: Employment Tribunal?”. Without going into detail, as these headings suggest, the claimant made numerous wide-ranging allegations of dishonesty, incompetence, bad faith and racism. The claimant also sent corrections to the appeal minutes. Nowhere does he make reference to his complaints being a grievance.

[219]Mr Ramage replied to the claimant on the same day to say that he would take into account further documents as appropriate as part of the appeal.

[220]On 15 February 2023 Mr Ramage interviewed Ms Laporte. Minutes of her interview were prepared. The interview included:a. Mr Ramage asked Ms Laporte why she had not interviewed Mr O’Donoghue and she responded that he was seated further away at the end of the table and did not see anything.

b. Mr Ramage asked Ms Laporte whether Mr O’Donoghue had any involvement in the investigation process. The replied that he had not to her knowledge, apart from receiving a copy of the final report/supporting evidence by email which he was copied into.

c. Mr Ramage asked Ms Laporte how she concluded on the balance of probabilities that the incident of touching took place as reported. Ms Laporte said she had gone through all the witness statements and was able to come to that conclusion. The main deciding point was that many witness to very specific change in Ms King’s behaviour where she suddenly became “very/visibly uncomfortable”, “aggrieved”, “tensed”, “obviously upset”, “looking for help” and suddenly “jumped up”.

d. Ms Laporte was asked how she had assessed the credibility of Ms King’s and Mr Roberts accounts. She responded that she did not know the person before the investigation, and had identified no reason why Ms King should raise such concerns if they did not occur.

e. Ms Laporte was asked about the differences in earlier drafts to the final investigation report, in particular the reference to “partial finding”. Ms Laporte said that looking at the balance of probabilities in the witness statements, she had to make a decision between found or not found. In terms of earlier versions indicating it was not possible to corroborate the allegation of inappropriate touching, she said eventually if you look at the statements, Ms King’s sudden reaction and change of behaviour indicated that something unwanted/distressing happened. In terms of the earlier versions indicating that because the earlier incident was a one-off, it does not amount to harassment, Ms Laporte relied on the RX discrimination and harassment policy which lists “Physical contact including unnecessary touching, brushing against another person’s body” as a potential form of harassment. Regardless of the fact it was intentional or not and a one off, it was still unwanted. Ms Laporte did not recall reading about the difference between misconduct rather than gross misconduct in the final report. In terms of the reasons for the amendments, Ms Laporte compared this to the drafting of a contract where changes are needed to be as accurate as possible and get to the final version of the document. Ms Laporte said that Mr O’Donoghue did not have any involvement in relation to the amendments, as far as she was aware, as she only dealt with Ms Hill at the time.

f. Ms Laporte was referred to a document the claimant obtained through a subject access will request which contains Ms Laporte’s notes including a note saying “squeezed bum”. Ms Laporte said it she had a brief call with Ms Hill about the case before the formal meeting, and Ms Hill must have told her from Ms King about the squeezed bum or something about touching the lower back. She must have put this in her note but that this did not mean that she had a preconceived notion.

[221]On 15 February 2023 the claimant began ACAS early conciliation. On this day he wrote to Mr Engstrom, Mr Udow (neither of whom would have received it) and Ms Smyth to inform them of the ACAS process and suggest settlement. Nowhere does he mention that this communication should be treated as a grievance.

[222]On 16 February 2023 Mr Ramage interviewed Ms Hill. The interviewa. Ms Hill was asked why Mr O’Donoghue was not interviewed as part of the process, and she responded that in other people’s testimony he was not present at the time of the alleged incident.

b. Ms Hill confirmed that Mr O’Donoghue had no involvement in the investigation process. He was involved in the suspension element as the HR Director, but Ms Laporte and Ms Hill did not talk to him as part of the investigation process.

c. Ms Hill was asked about the different iterations of the investigation report. She confirmed that it was quite normal to have several draft iterations as initial thoughts go down on paper, but then there is further revision reflecting evolving thoughts. Ms Hill would discuss matters with Ms Laporte in a debriefing session, Ms Hill would draft something that she felt captured Ms Laporte’s thoughts, and there would be subsequent calls and further discussion where Ms Laporte would say if any amendments were needed. Ms Hill would then update the draft based on conversations with Ms Laporte. Ms Hill could not share the legal advice she received. Ms Hill confirmed that Mr O’Donoghue did not have any involvement in the amendments to the investigation report.

[223]On 17 February 2023 Mr Ramage interviewed Ms Prince. Ms Prince did not hear the claimant use the word “n*****”.

[224]Also on 17 February 2023 Mr Ramage interviewed Ms Reebye. The interview included Ms Reebye saying she remembered the claimant using the word “n*****” , but could not recall who he was speaking to when he used it. She was shocked, but did not say anything at the time. She did not see any reaction from Ms King, as she was looking at Ms Prince and Mr Agbalaya. She said she spoke to the claimant the next day and told him that he could not use language like that. The claimant had said it had formed part of the book that he had read, and discussed how the word was used in a more empowering way to take ownership of the word. Ms Reebye had explained that it was still not okay to use the word in a professional environment.

[225]On 21 February 2023 Mr Ramage interviewed Mr Jones. The interviewa. Mr Jones confirmed he had no interaction with the claimant before the disciplinary process.

b. Mr Jones confirmed that he had no specific training in relation to sexual harassment, just the compliance training standard at RELX.

c. Mr Jones confirmed that it was a recommendation from Employee Relations that the Required Responses document was treated as a grievance.

d. Mr Jones did not consider that Mr O’Donoghue should have been interviewed as part of the process, as his understanding when he spoke to Ms Laporte was that although Mr O’Donoghue was there during the evening, he was not physically present at the time the incident occurred.

e. Mr Jones confirmed that his reference to no-one “directly witnessed” inappropriate touching was that no one directly saw a hand touching intimate areas. What they saw was Ms King’s immediate and noticeable reaction and her looking very uncomfortable and visibly upset.

f. Mr Ramage asked Mr Jones about how he reconciled Ms King’s comment that the claimant’s actions were “not discreet” with his finding that it was not surprising that nobody saw them. Mr Jones said that his understanding based on the geography of the area was that it sounded like everyone was sitting around the table. The claimant’s hand reached around her back intentionally or not he did not know. This was his understanding of the geography and that would be noticeable to people opposite her who saw her reaction to being touched.

g. Mr Jones could not recall the names of the three different women reporting that the claimant was uncomfortably close or touching them. One was Ms King. Although there was no malicious intent indicated, Mr Jones thought that this was odd.

h. Mr Jones confirmed that in trying to conclude whether or not what Ms King had complained about had happened or not there were a number of instances of him reportedly being super tactile, i.e. closer than expected in a professional setting. He felt this was corroborating evidence, on the balance of probabilities, that what she said happened had happened.

i. Mr Ramage asked Mr Jones to talk through his reference to the claimant’s West Indian heritage and what had made him refer to his race. Mr Jones responded “I wouldn’t have done it at all except that he brought it up. Not anyone else. I don’t recall which document he referred to it. He was attempting to explain his touchy or tactile behaviour is a characteristic of his Caribbean background. Therefore, I was attempting to address the fact that I saw no evidence in the statements or latest to [Ms Laporte] that he was a black man when they were referring to his behaviour”. He confirmed that the claimant’s race played no part in relation to his decision on the complaint.

j. Mr Ramage asked Mr Jones to talk through his thinking in terms of his conclusion that the incident took place as reported. Mr Jones said that this was primarily because the alternative was “slightly preposterous”, as in that she was making it up would be a small percentage and slightly preposterous. They had never spoken or met before that evening and he did not see that Ms King had any reason to invent the situation. Her reaction, based on what other people saw, was genuine in that she was surprised and distressed.

k. Mr Jones was asked how he assessed the credibility of Ms King’s and the claimant’s accounts. He said that Ms King’s account was given the next day when fresh in her mind. Her responses were pretty calm and matter-of-fact. He saw no issues of credibility there and the witness statement certainly seemed to support that what she was saying had happened. There would conspiracy to foresee that claim which didn’t seem likely at all. In terms of the claimant’s credibility, Mr Jones was prepared to give the claimant the benefit of doubt to agree that he did not realise that he touched her breast in the way that she described, but his argument was that he denied it outright.

l. In terms of his conclusion that the touching was of a sexual nature, Mr Jones confirmed that he received legal advice about what legally constituted sexual harassment. A single instance of behaviour that is unwelcome and causes distress can constitute sexual harassment. The RX policy refers to a series of actions, but the law does not. The legal advice was that one instance was sufficient. He considered it serious enough to warrant dismissal on notice. The difference between both misconduct and serious misconduct was whether or not it was a course of action. The policy said that it needs to be a course of action, but Mr Jones still thought it was serious enough to warrant dismissal with immediate effect.

[226]On 21 February 2023 Mr Ramage interviewed Ms Pandya. Her interview included:

[227]Mr Ramage asked her why Mr Jones had been appointed rather than the claimant’s line manager. Ms Pandya explained that Mr Muneer was on a flight back from Pakistan issues came to light. The line manager above him was Ms Prince, who it was understood would be a witness to the investigation. The claimant worked closely with the UK business teams, and having discussed the matter with Ms Hill, it was decided that it was more appropriate to look at someone outside of the direct stakeholder map that the claimant had been involved with to avoid any embarrassment. She had spoken to Mr Tapp to explain she had a complex disciplinary coming up to ask for suggestions who might be appropriate. Mr Jones was identified as someone who could be empathetic and deal with the disciplinary sooner rather than later. Time was of the essence.

[228]On 22 February 2023 Mr Ramage had a further meeting with Ms King. Mr Ramage put to her the claimant’s account of the use of the “N” word, and her alleged “white saviour” response. She said that she had not been in a conversation with both Mr Casserly and the claimant. She did not hear the “N” word used that evening.

[229]Mr Ramage interviewed Mr Agbalaya on 2 March 2023. The interviewa. Mr Ramage put to Mr Agbalaya the claimant’s account that he was talking to Mr Casserly when he said “Come on n*****. tell her what you told me”, and that Ms King instructed him not to use the word. In response the claimant said to Ms King “oh, God, my white saviour”. He asked whether Mr Agbalaya recalled any of these incidents. Mr Agbalaya responded “No, not like that”.

b. Mr Agbalaya recalled him saying the “N” word, but not in that sentence. He did not remember Ms King responding to it. He said his recollection was a little bit hazy. But there was a discussion with the claimant, Mr Casserly, Ms Prince and Ms King about marketing. He could not remember why the claimant said it, but he used the “N” word, and said “They’re not like us, as in the “N” word in the wild. That’s what he said.” He said that from what he could remember there was no reaction to it and no one made a comment. He said “I remember at the time, I thought, did I hear what I thought I heard type reaction and I sort of just looked around and thought to myself, maybe I didn’t hear it. That was pretty much because no one reacted to it”. He did not see a reaction from Ms King, saying “I didn’t hear anything verbally from [Ms King]. That’s for sure”. He did not hear the claimant say anything about “oh, God, my white saviour”.

c. Mr Ramage asked Mr Agbalaya how much longer after the use of the “N” word it was before Ms King stood up abruptly. He could not remember whether it was before or after. He was asked whether it was instantaneous, and replied “No it was not. It was not instantaneous because the conversation just continued as normal around the whole marketing conversation that they were having and that’s why I thought maybe I didn’t hear what I thought I heard. I think it must have happened after that”.

[230]On 9 March 2023 Mr Ramage sent the claimant his appeal outcome letter. The letter was 23 pages long and included the following:a. Mr Ramage set out the witnesses he had spoken to and the documents he had reviewed. He indicated that his role had been to consider the claimant’s grounds of appeal and whether Mr Jones’s findings and sanction were fair. He said that in the light of the claimant’s grounds of appeal raising points not raised with Mr Jones, particularly the suggestion of race discrimination, he had considered whether those issues impacting on the findings and sanction. He considered, in addition to the grounds of appeal, the claimant’s further documents. He said that the appeal was not upheld, and dealt with the appeal under a number of headings emerging from the claimant’s grounds of appeal and skeleton argument.

b. Failure to provide copies of complaints and witness statements. Mr Ramage confirmed that he provided these documents to the claimant on 30 November 2022 and that the claimant had been able to access them on 1 December 2022. He pointed out that it was not the company’s normal practice to provide such documentation, and that key points were included in the investigation report. He set out the wording of the disciplinary policy, and the standard approach of the company was to provide a summary of relevant information together with relevant documents to enable the individual to understand and respond to the allegations they are facing, while mindful of the need to maintain confidentiality. Mr Ramage took the view that the level of detail provided to the claimant in the suspension letter, the investigation invitation letter, the investigation meeting and the investigation report provided sufficient information for the claimant to understand the allegation he faced and to respond to it. He considered that the approach was reasonable. He noted that in any event the claimant had subsequently been provided with documentation and that he had had the opportunity to comment in detail as part of the appeal process. Nonetheless, Mr Ramage acknowledged it the initial investigation report had not been properly redacted. Mr Ramage also acknowledged an oversight in providing the claimant with passwords enabling him to access Ms King’s 30 September 2022 email and witness statements for one day. These procedural errors had no impact on the process.

c. Departure from usual practice in not appointing your line manager to hear the disciplinary process. Mr Ramage noted the disciplinary procedure sets out that a meeting would usually be conducted by the line manager. He set out Ms Pandya’s evidence concerning appointing a hearing manager outside of the UK team to spare the claimant from potential embarrassment in the event that he returned to work. He considered this a sensible approach to take in the circumstances, and indicated that he was satisfied that the race of the individuals were not a relevant factor in the decision.

d. Shifting allegations. Mr Ramage was of the view that the fundamental substance of the allegation did not change, and that it was at all times one of inappropriate touching. More detail became available as the investigation process took place in the claimant was provided with this. In terms of the claimant’s contention that the letter inviting him to the investigation meeting included matters that did not appear in the initial email complaint, the reference to the claimant placing his hand on Ms King’s lower back and stroking his hand up her back towards her breasts/bra was consistent with the further information provided by Ms King during the investigation meeting. In terms of the document referencing “squeezed bum”, Mr Ramage did not consider that Ms King had “juiced up” her story, as Ms King had given a description in her investigation meeting that “it was immediate palm from bum area when I sort of panic and still moving up when it went to my bra line I immediately stood up”. Mr Ramage did not consider it surprising that there was some looseness of description of the allegation in the early stages of the investigation before the investigation meetings had taken place.

e. Improper involvement of, and failure to interview, Kevin [O’Donoghue]. Mr Ramage quoted the claimant’s investigation meeting 14 October 2022 which stated that Ms Hill had said “you mentioned, Kerry, Kevin, Joe, Ashweena is there anybody else that you want to flag up we should speak to?”. Mr Ramage considered that Ms Hill was reciting a list of individuals the claimant had referenced as potential witnesses. Ms Hill was simply asking whether there was anyone else the claimant wanted to suggest should be spoken to rather than undertaking to speak to every individual listed. There was no undertaking by Ms Hill or Miss Laporte in this respect. Mr Ramage set out that Ms Hill and Miss Laporte had decided not to interview Mr O’Donoghue because according to the evidence of others he was not present at the relevant time and had been seated further away. Mr Jones had explained that he was not physically present at the time of the alleged incident. Mr Jones did not feel was his function to redo the investigation. Nonetheless, Mr Ramage pointed out that he himself had interviewed Mr O’Donoghue. Mr Ramage did not accept the claimant’s contention that Mr O’Donoghue had concealed matters from the investigators about Ms King being drunk and “awkwardly race conscious” which the claimant said went to motivation and credibility. Mr Ramage considered that it was unlikely that he was actively seeking to conceal matters from the investigation. Mr Ramage did not consider that Mr O’Donoghue’s observations about the way the claimant spoke betrayed a racialised bias, but were merely descriptions of the claimant’s interaction when he was berating the flustered “barmaid”. Mr Ramage did not accept that Mr O’Donoghue displayed “obvious and premeditated” malice in his involvement. He accepted Ms Hill and Ms Laporte’s evidence that he had no involvement in the investigation process other than in relation to suspension.

f. Failure properly to assess credibility of Katie [King]. Mr Ramage considered that it was important to have asked the claimant, an individual facing an allegation, why an alleged victim may have lied. This gives them the opportunity to point to a reason why they may have made up an allegation. He pointed to the fact that the claimant had raised the white saviour issue. The same logic does not apply to a denial of alleged wrongdoing. In terms of the assessment of credibility, Mr Ramage had spoken to both Ms Laporte and Mr Jones about their approaches. Ms Laporte noted a very specific change in Ms King’s behaviour, becoming visibly upset and jumping up from the table. She identified no reason why Ms King would raise his concerns had they not occurred. Mr Jones had taken into account the fact that Ms King raised her allegation the following day when it was fresh in her mind, there were no issues of credibility in her responses, and that other witness statements aligned in terms of her reaction. In contrast the claimant’s approach was simply to deny the allegation. Mr Jones had discounted the likelihood of a conspiracy involving Ms King simply making up the allegations. Both Ms Laporte and Mr Jones took into account all of the evidence available to them, in particular the evidence provided by witnesses, the surrounding evidence and circumstances as well as the evidence King and the claimant. Adequate consideration was given to consistency and plausibility of evidence in reaching their decisions. Their conclusions were not solely based on a conclusion that there was no reason for Ms King to make up the allegations. Mr Ramage dealt with the claimant’s allegation that Mr O’Donoghue’s evidence reveals motivations for Ms King to make up an allegation which were not known the investigation stage, namely that she was drunk and had made comments about black team members which demonstrated awkward race consciousness. Mr Ramage referred to Mr O’Donoghue’s evidence about both Ms King and the claimant standing out as being drunk. However, Mr Ramage spoke to Ms King about alcohol consumption and was satisfied that it did not impact and memory. He also considered that Ms King’s comments simply showed concern that everyone was included and integrated at work. Mr Ramage did not agree with the claimant’s position that it was the claimant’s word and numerous witnesses against Ms King’s. It was clear that nobody saw the alleged incident, something taken into account by both Ms Laporte and Mr Jones. That Ms King thought others had seen the touching incident when others had not. Mr Ramage did not think this was surprising given the nature of the alleged incident in the surrounding circumstances, a busy pub with various people engaged in various conversations. He considered it unsurprising that nobody actually saw the alleged incident itself. He considered some of the wording used in various accounts by Ms King and did not consider they showed material inconsistencies. Mr Ramage set out that following his review of the relevant documentation, he found Ms King to be a credible and broadly consistent witness. Minor inconsistencies in account over time are unsurprising, but the core of her allegation has remained consistent. Mr Ramage agreed with Mr Jones that on the balance of probabilities the alleged incident did occur. He reached this judgement after all of his own investigations.

g. Real reason for Katie King’s discomfort. Mr Ramage observed that the claimant did not advance any evidence on the “N” word “white saviour” exchange during the course of the investigation or disciplinary process, which he now relied on as an explanation as to why Ms King lied. This was notwithstanding the fact that the claimant was specifically asked during the investigation process why he thought Ms King might have lied or what had made her uncomfortable if not the appropriate touching alleged. Mr Ramage set out the witnesses he had interviewed, commenting that Mr Casserly was not interviewed as he was no longer an employee. Ms Reebye had recalled the claimant use the “N” word, considered it inappropriate and spoken to the claimant the following day. She had not seen any reaction from Ms King. Ms Prince had not heard the comments, neither had Ms King. Mr Agbalaya had heard the “N” word, but could not recall any reaction to it, and that this was not the time she stood up and left the table. Mr Ramage did not accept that this exchange was the reason why Ms King had been in visible discomfort and left the table. Mr Ramage set out the claimant’s allegation that Ms King effectively invented her allegation against him because “she could not complain while “venting” that a black man called her a white saviour but she was on safer manipulative ground to accuse [you] of spurious and non existent “inappropriate touching”. Mr Ramage did not accept it, and did not accept that the motive behind Ms King’s making the allegation was discriminatory or improper. Mr Ramage repeated his conclusion, in agreement with Mr Jones, that on balance of probabilities the alleged incident took place. He regarded claimant’s suggestion that Ms King made up an allegation like this because the claimant had referred to her as a “white saviour” as inherently improbable, particularly given it was not raised during the investigator or disciplinary process.

h. Katie King’s contemplation of “extra-legal methods”. This was a reference to evidence given by Ms Lamaite, and, like Mr Ramage, we find it hard to follow. Nonetheless, Mr Ramage was satisfied that Ms King took appropriate action in relation to the events that took place.

i. Seat swap. The claimant’s case was that he and other witnesses had described physical contact between the claimant and Ms King in relation to the seat swap, whereas Ms King said that she either simply got up and switched or pushed the table forward and said can I move next to you. “The claimant suggested that this showed that Ms King “demonstrably lied” and is therefore “malicious and dishonest”. Mr Ramage took the view that the differing interpretations of the seat swap were not the subject of Ms King’s allegations and played no part in Mr Jones’s findings or ultimate decision. Mr Ramage did not consider that this showed that Ms King was lying or dishonest.

j. Manipulation of investigation report. Mr Ramage included in his appeal letter a table that the claimant had provided allegedly showing the differences in the various iterations of the investigation report. Mr Ramage observed that the tables were wrong in that 1) what was referred to as the first draft was in fact the second draft and vice versa, 2) in three of seven instances where the claimant has indicated that wording had been deleted the final report, such wording had not in fact been deleted. Mr Ramage set out the evidence of Ms Hill and Ms Laporte about the preparation of various drafts and amendments following discussions. The change from “partial finding” to “found” changed because Ms Laporte ultimately needed to make a decision as to whether the allegation was found or not. It was clear to Mr Ramage that Ms Laporte was comfortable with the final report which accurately reflected her findings and conclusions. Indeed, Ms Laporte specifically said that if she was asked to do the investigation again, the outcome would be the same. Mr O’Donoghue had no input in relation to the investigation reports. Mr Ramage was satisfied that the final report adequately reflected Ms Laporte’s own findings and conclusions and was not the product of any “unlawful meddling” by Mr O’Donoghue or anyone else.

k. Jonathan’s findings are disingenuous. Mr Ramage set out further allegations made during the appeal process by the claimant, including that the decision was “malicious”, “retaliatory”, “insupportable” and that Mr Jones “again and again just simply make stuff up”. In a lengthy passage of the letter, Mr Ramage breaks down this element into further subheadings. i. Jonathan’s finding of “sexual harassment”. Mr Ramage observed that Mr Jones did make a finding that the claimant’s behaviour amounted to “sexual harassment” which amounted to “clear serious misconduct”. Mr Ramage noted that the disciplinary procedure provides that an employee may be dismissed for a first act of misconduct while in their probationary period. Mr Ramage considered that Mr Jones would therefore have been entitled to dismiss the claimant on the basis of his conclusion that the alleged incident took place, whether or not he concluded that it amounted to “sexual harassment”. Mr Ramage agreed, on the relevant documentation, that the claimant was not specifically notified that he was facing an allegation of “sexual harassment”. However, the claimant was clearly notified of the substance of the allegation he was facing. He was told in the suspension letter that the allegation was “inappropriate touching” of a female colleague. The investigation meeting invitation letter provides detailed that “it is alleged that you placed your hand on her lower back and stroked your hand up her back towards her breasts/bra”. The investigation outcome letter indicates that inappropriate touching was “unwanted and it had the effect of causing the complainant distress…[and that it did] amount to a breach of the RELX Code of Business Conduct and Ethics”. The investigation report further provides further detail in that the behaviour created “an offensive, hostile or intimidating environment” for Ms King in contravention of the Code of ethics and business conduct, which he quoted. Mr Ramage noted that the claimant himself had referred to sexual harassment in his disciplinary and grievance hearing. For Mr Ramage, the important point was that, whether or not he was specifically notified was facing an allegation of “sexual harassment” (and/or whether the specific term was used by Ms King or others), the claimant was notified of and understood the substance of the allegations he was facing. He considered the claimant was in a position to respond to that allegation. Mr Ramage also noted that Mr Jones concluded that the conduct amounted to sexual harassment following legal advice in relation to the definition of such and applying this to the factual findings. He concluded that the touching had been of a sexual nature and hence sexual harassment. Mr Ramage set out his own interview with Ms King and was satisfied that the conduct described by her included the touching of her waist, stroking, touching of her side, and moving up her back to her bra line. This was very clearly the sexual nature because of the location of the touching. Mr Ramage did not agree, having regard to the Code of Ethics and Business Conduct, that the lack of a course of conduct precluded Mr Jones from concluding that the claimant’s behaviour did in fact amount to harassment. Mr Ramage did not consider that Mr Jones’s lack of training was a concern, given that he had the benefit of a support and legal advice. ii. Jonathan abusively imports your protected characteristic of race and adopts a racialised approach that has a discriminatory impact. Mr Ramage considered the claimant’s allegation that Mr Jones “suddenly, and for the first time” deals with the claimant’s West Indian heritage and that he “adopts a strangely racialised approach that had plainly discriminatory impact within his analysis and factual conclusions”. Mr Ramage set out the passage in Mr Jones’s letter referring to the claimant’s West Indian background. Mr Ramage referred to his interview with Mr Jones in which Mr Jones explained that the only reason he made reference to the claimant’s West Indian heritage was that the claimant had specifically referenced it himself in his letter of 31 October 2022. Mr Ramage quoted that letter, observing that Mr Jones’s reference to the claimant’s heritage was simply intended to address the fact that he had seen no reference made to the claimant’s race when witnesses were describing his behaviour. Mr Ramage understood Mr Jones’s reference to the claimant’s heritage, because the claimant had specifically raised it himself. Mr Ramage was satisfied with Mr Jones’s explanation that race played no part in his consideration and decision. iii. Jonathan decided to treat your questions as a grievance. Mr Ramage was satisfied that Mr Jones took guidance on the appropriate way forward. Mr Ramage was also satisfied, having regard to the grievance procedure, that the claimant’s questions were effectively a complaint in relation to his employment, specifically in relation to his suspension. Dealing with these issues as part of the grievance process seemed a sensible approach. iv. Gross/serious misconduct. Mr Ramage did not accept the claimant’s contention that a finding of serious misconduct validates, at most, a final warning. An employee can be dismissed for simple misconduct during their probationary period when there is no requirement for gross misconduct. Mr Ramage clarified that the claimant was not summarily dismissed but was dismissed on notice because of the policy requirement for a course of conduct. Mr Ramage agreed with Mr Jones’s decision that dismissal was the appropriate sanction the circumstances, particularly given the claimant was still in his probationary period. v. “Jones invents a crowd”. Mr Ramage reviewed the evidence and did not accept the claimant’s contention that Mr Jones said referred to 3 different women and portrayed them to have said quite the opposite of what they in fact said. Mr Ramage set out the evidence of Ms King about inappropriate touching. He set out the evidence of (although Mr Ramage did not name her) Ms Lamaite that the claimant took her by the waist and dragged towards himself, which she “brushed off”. He set out the evidence of (again not naming her) Ms Rago that the claimant was seriously drunk and put his arms around her several times, leaning in, trying to whisper, a little bit too close. Mr Ramage considered Mr Jones’s summary of evidence was accurate, and that he was right to take it into account.

l. Other concerns following on from the appeal hearing. Mr Ramage dealt with further allegations made by the claimant during the appeal process that both he and Ms Lowe from HR were disingenuous and that Ms Lowe was incompetent.

[231]On 14 April 2023 the claimant emailed Ms Smyth and Clyde & Co to say that no P45 had been filed following his purported dismissal on 10 November 2022. Clyde & Co responded on 18 April 2020 P45’s are not automatically provided on termination, but that HMRC was notified of his termination date and P45 details were provided via Real Time Information by way of a Full Payment Submission for November 2022. P45s were provided. Data protection issues

[232]As set out above, the claimant made four data protection subject access requests “DSAR”). It would appear that one of these requests led to the disclosure of a transcript of the appeal hearing of 3 February 2023.

[233]On 18 July 2023 Clyde & Co wrote to the claimant that their client was not aware of and had not been able to locate any audio recording or transcript on its systems. It was unclear how the transcript was created as their client had not recorded the meeting. Their client understood that a copy of the transcript was sent by email to one of their employees by an external third party.

[234]On 7 August 2023 the claimant set out over 45 pages a complaint to the ICO about alleged data breaches. There are a number of complaints, but one related to the application of redactions to document supplied to the claimant under a DSAR, and one related to the appeal transcript.

[235]On 29 August 2023 the ICO wrote to RX’s general data protection officer email address providing complaints made by the claimant, although Ms Davies, RX’s Chief Privacy Officer, had been made aware of complaints from 15 August 2023 from emails she had been copied into by the claimant.

[236]On 3 September 2023 the claimant submitted a letter before action seeking a High Court injunction for data breach damages against RX, RELX Group Plc and Lexis Nexis Risk Solutions. Given the threat of High Court action the companies instructed the law firm Morrison Foerster, who are retained to act on data protection issues by the companies, to act in respect of this litigation, as well as Clyde & Co who had assisted with the claimant’s DSAR. The claimant, on numerous occasions during the hearing, referred to Clyde & Co being “fired” from acting in respect of data protection. It was not entirely clear why this was advanced by the claimant, but we accept Ms Davies’ evidence in chief that there was absolutely no truth in the suggestion that Clyde & Co had been “fired”.

[237]The ICO letter required RX to engage with the claimant in respect of his concerns, and on 13 September 2023 Ms Davies emailed the claimant to say that RX were investigating the concerns relating to the transcript and hoped to revert by 6 October 2023. In relation to the redactions, Ms Davies was hoping to revert by 19 September 2023. On 14 September 2023 the claimant responded setting out certain issues he had with redactions and other concerns.

[238]Ms Davies investigated, and was satisfied that a standard approach was taken in that information was redacted unless it was the claimant’s own personal data which was always required to provide context to his data. Thirdparty data was therefore redacted. In reviewing redactions, Ms Davies felt that some of the redactions could be lifted because further context was needed for the claimant’s personal data, or that the claimant had previously seen documents and so the redactions were not necessary. Ms Davies updated the claimant on 19 September 2023 to say that she was hoping to share her conclusions on 21 September 2023.

[239]On 21 September 2023 Ms Davies wrote to the claimant to say that, while she considered previous redactions where she felt it was reasonable to do so she also included documents in unredacted form where the claimant had already seen them as they were emails sent to and from his email address. Certain redactions remained for reasons relating to legal advice privilege, litigation advice privilege and third-party data.

[240]On 27 September 2023 Ms Davies provided the claimant with a statement which had been mentioned in the ET3. On 12 October she provided further documents. The claimant was told that he had been provided with appropriately redacted copies of a minuted meeting.

[241]On 6 October 2023 Ms Davies wrote to the claimant concerning the appeal transcript. She told him that no evidence had been found to suggest that the transcript had been transmitted by email as first thought. There was no evidence of an audio recording of the appeal hearing. RX believed the transcript had been generated by a participant at the meeting. No evidence had been found that an external third party had access the transcript nor that it was available externally (other than solicitors in the context of responding to the claimant’s DSAR). There was no evidence that secure folders had been accessed by external persons.

[242]On 6 October 2023 the claimant emailed Ms Davies demanding that she named the employee associated with the restricted access employee folder, threatening urgent injunctive relief. On 9 October 2023 Ms Davies responded that this information was the personal data of the employee.

[243]On 30 October 2023 Ms Davies emailed the claimant reiterating that an investigation had established that the transcript was generated by a participant in the hearing and this was still under investigation.

[244]On 3 January 2024 the claimant emailed Ms Davies to say that he was aware from the police that the respondents had concluded their investigation by late November, but he had not received any equivalent report in contrast with the way Ms King had been treated. Ms Davies responded on 12 January 2024 saying there was no additional information to provide at this stage, beyond the fact that it had been determined that a participant on the call on 3 February 2023 had generated the transcript and there had not been a hack into their systems or other unauthorised access to the transcript.

[245]On 4 April 2024 Ms Regala, Human Resources Manager of Reed Elsevier Shared Services (Philippines), Inc (which provides a services to the RELX group of companies) sent a Notice to Explain memo to Mr Sinzon. Mr Sinzon had been one of the notetakers at the 3 February 2023 appeal hearing. In short, the memo sets out that it was alleged that Mr Sinzon had used an AI application to record and produce a transcript of that hearing, and that he had made inappropriate remarks in the chats.

[246]On 26 June 2024 Mr Sinzon emailed an HR supervisor to say that he unequivocally admitted to all the allegations in the previous memo, he understood the gravity of his actions, was prepared to accept the consequences and took full responsibility for his behaviour. The HR supervisor emailed a colleague indicating that at a meeting Mr Singzon had accepted that he would be terminated but also signifying his intent to resign immediately due to health reasons. Adverse inferences

[247]We have set out facts above relevant to the issues in the case, and we go on to make our conclusions relating to the issues below. The claimant has invited us to make adverse inferences about certain matters which, he says, would make it reasonable to infer that various treatment he received was on discriminatory grounds.

[248]Many of the matters he suggests are ripe for the drawing of adverse inferences relate to the issues in the case (eg. unexplained unreasonableness throughout disciplinary/grievance process, Mr O’Donoghue’s description of the way the claimant speaks, Ms Haxby “validating complaint”, removal of Mr Muneer from disciplinary process, race profiling in initial complaint and request for CCTV, Mr Jones importing racial characteristics) and we have made findings and will go on to make conclusions about these. We have also made reference to the allegation that “security” were alerted because of an alleged perception of the claimant an aggressive black man. However, we will deal with some of the other issues the claimant appears to have raised.

[249]The claimant put to a number of witnesses a grotesque cartoon, and other documents which demonstrated a negative stereotype of hypersexualised black men, which he says was at play in the disciplinary process. The mere presence of negative stereotypes (and we accept this is one) does not mean that inferences must be drawn. We carefully scrutinised the evidence and we were satisfied that decision-makers focused on the evidence, and there was nothing from which we could conclude that this negative stereotype was operating on them, even on an unconscious level. We say this as their decision-making at all times appeared anchored in the evidence. If, for example, the conclusions the decision-makers made on the issue of inappropriate touching flew in the face of the evidence, there could well have been room for us concluding that negative stereotypes of this sort were at play. That did not appear the case to us.

[250]The claimant cross examined a number of witnesses about disparities in outcomes in disciplinary processes for black and minority ethnic officers in the Metropolitan police. There are indeed such disparities in that, and in other institutions and employers. These disparities in other organisations do not really assist in inferring discrimination in this case.

[251]The claimant made a vast number of complaints about the manner in which the respondents and their legal advisors have conducted litigation. On occasions witnesses were taken, for example, to the minutiae of what was put forward in one of Mr Forshaw’s skeleton arguments at preliminary hearing, cross-referenced to pleadings and other documents. The claimant has alleged false assertions of privilege and other abuses. It has been impossible for us to form a judgment about the vast majority of these numerous complaints. What we did witness for ourselves was his repeated and forcefully expressed criticism of Mr Forshaw during the course of the hearing which led him to make complaints to the Bar Standards Board. In the course of 13 days before us we can identify one comment from Mr Forshaw (he observed that the claimant’s “maths was impeccable” during one point of cross-examination) which might have been less than helpful in keeping the temperature of the hearing down. Apart from that very minor issue, our collective observation of Mr Forshaw’s conduct of the hearing was that he conducted himself with moderation, courtesy and professionalism. The initial Bar Standards Board complaint, as we have set out above, was about Mr Forshaw’s cross examination of the claimant, to which the claimant added on the issue of his apparent duties to the court in relation to Ms King’s alleged perjury. We see no merit whatsoever in these complaints, but the fact of the claimant making them, when what we observed appeared to differ sharply from the content of the complaints, gives us little confidence that his allegations against the respondents and their solicitors provide us with any assistance in inferring

[252]The claimant put to numerous witnesses that the respondents had opposed his application for witness orders in respect of a number of witnesses (understood to include the members of staff who had given evidence to the investigation). The tribunal refused that application for reasons given by EJ Andrews (who the claimant has also criticised). Had she allowed that application there would have been well over 20 witnesses in this case. Additionally, those witnesses simply were not necessary for the disposal of the issues in the case. We are not rehearing the disciplinary process. The fact that the respondents resisted the claimant’s applications for witness orders when the tribunal has held that the orders are not appropriate does not assist us in inferring discrimination.

[253]Mr Ramage referred to Ms Smyth as Miss Smyth in his witness statement. Ms Smyth herself gave evidence that this did not cause her any concern and described any suggestion that this indicated that he was sexist as “ludicrous”. This did not assist us in inferring discrimination.

[254]Some respondents witnesses referred to the bartender as a “barmaid”. In the view of some, this is an outmoded gendered term, and a gender neutral term is preferable. While any attempt to set up a hierarchy of offensiveness is something to be approached with extreme caution, in a case where the N word has featured prominently, we can express a collective view that the term barmaid is at a lower end of any such hierarchy. This did not seem to us as something that would assist us in inferring sex, or any other type of, Comparators

[255]The claimant has identified Ms King and the bartender as comparators in this case. We set out below the law in relation to comparators in discrimination claims. In short, on a comparison of cases for the purposes of determining direct discrimination there must be no material difference between the circumstances relating to each case. We note below the Vento and Parmar cases and their observations about the construction of a hypothetical comparator.

[256]Ms King was in materially different circumstances from the claimant in that she was not the subject of a complaint of inappropriate touching, but rather the person making the complaint. It has not been clear to us what use we should make of her as an “evidential tool” for the purposes of drawing inferences of discrimination.

[257]The material circumstances the bartender differ also, in that she was not an employee of the corporate respondents who had not control over her. Again, it is difficult to see her use as an evidential tool in inferring General observations about reliability of evidence

[258]We would observe that there was at times a difference in the accounts being put forward by the claimant, and the respondents and their witnesses. Before we embarked upon our fact-finding we reflected on the observations made by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited and another

[2013] EWHC 3560 (Comm)

about the fallibility of human memory. He observed that the vividness of memories and the confidence in their accuracy of those who hold them is no guarantee of reliability. Memories are fluid and malleable and external information can cause dramatic changes to them. Memories of past beliefs can be unreliable in that they are liable to be brought into alignment with current beliefs by external influences. The process of litigation itself “subjects the memories of witnesses to powerful biases” which cause the memory of events to be based increasingly on such things as the contents of a witness statement and later interpretations of an event rather than the original experience of the event.

[259]All of this led Leggatt J to the conclusion that “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”. These observations, though made in the context of commercial litigation in the High Court, are applicable to employment litigation.

[260]We heard oral evidence over the course of over 13 days, hearing evidence from the claimant for 4½ of those. Including the claimant we heard from 16 witnesses.

[261]We have a number of concerns about the reliability of the claimant as a historian of fact:a. As a witness under cross-examination he came across on many occasions as evasive. As set out above in the procedural section of this decision, at times he refused to answer a question, or would only be prepared to answer them on his own terms. He was argumentative, and on a number of occasions took issue in strong terms with the questions asked rather than answering them. Often his answers were long and rambling and hard to follow. He seemed intent on making both factual and legal submissions from the witness box rather than engaging with the questions.

b. The claimant, when cross-examining a number of witnesses , put questions on an inaccurate premise. We have set out above at paragraph 95 his questioning of witnesses above Ms Haxby “validating” the complaint. Additionally, one of the panel members, on one occasion had to correct the claimant as he had repeatedly mischaracterised to a number of witnesses a question she had asked the claimant.

c. In his evidence and his questioning of witnesses the claimant has strained the plain meaning of words to breaking point. As we set out above at paragraph 165, the plain meaning of his email of 3 November 2022 is that Ms Jackman had given others assurances of anonymity and admonished him to uphold the same. His subsequent characterisation of this as alleging she had breached his privacy, and therefore she was conflicted was inaccurate. Similarly, he put to witnesses that solicitors had been instructed by Ms Smyth herself which was at odds with solicitors’ correspondence which made clear that solicitors were instructed by RX. Allegation 16 also proceeds on the basis that Mr O’Donoghue treated Ms King’s allegation as fact, which is completely at odds with the actual wording of the transcript of Mr O’Donoghue’s interview with Mr Ramage: “I guess I didn’t know at the time it was an allegation. So it was either true that it had happened which was horrible or it wasn’t true that it had happened, which was horrible.”

d. We agree with Mr Forshaw’s observations in closing submissions that the claimant appears to apply double standards. For example, he appeared to suggest that Mr O’Donoghue’s mispronunciation on one occasion of Ms Reebye’s name as being indicative of unconscious racisms. And yet, despite the tribunal clarifying with Mr Udow at the start of his evidence how to pronounce his name, the claimant repeatedly mispronounced it despite repeated correction.

[262]Mr Forshaw invited the tribunal (relying on Al Hawaz v Thomas Cook Group Limited [2000] CL611624) to make use of adverse findings about the claimant’s reliability as a witness in previous litigation (Roberts v Johncom Media Investments Limited (Case No 8677/04) in assessing his reliability. This was a defamation case the claimant brought in South Africa around 20 years ago. We choose to assess credibility based on what we saw and heard in these proceedings. That said, the claimant cross-examined one witness on certain of the issues in that case, putting to them the contents of a newspaper article, very broadly seeking to undermine the findings made by the South African court. What he did not point out to that witness was that he himself was the author of the newspaper article. Inviting concessions from witnesses without drawing this to their attention indicated perhaps a desire to present a partial account to the tribunal.

[263]We have made certain observations about the evidence of Ms Pandya, which we will not repeat. We will not comment individually on all of the respondents’ witnesses, but confine our specific observations to a handful of them.a. Mr Ramage came across as a rather irritable witness at times. In particular, he was cross-examined about his use of the term “barmaid” and having referred to Ms Smyth as Miss Smyth. He testily observed that he was being given lessons in “wokery”. After further questions from both the claimant and the tribunal he went on to say that he viewed “woke” as a term with both good and bad connotations. It can be good when it is about promoting inclusiveness, but bad when it seeks to drive wedges between sections of society.

b. We gave some thought about what Mr Ramage’s use of the term woke at the time he used it may have demonstrated. Speculating, one view might be that it was indicative of a reactionary mindset in someone who might be inclined to discriminate. Another might be that it was the frustration of someone who felt he was being given lessons in sexist terminology by someone he had found as a fact had inappropriately touched a female colleague. We also had regard to Mr Ramage’s evidence as a whole. He came across, from an assessment of the contemporaneous documentary evidence, as an individual who had diligently and conscientiously approached his task as an appeal officer. His evidence was generally measured (apart from some displays of irritation) and broadly corresponded to the contemporaneous documents. On balance, we do not conclude that the use of the term “wokery” by Mr Ramage indicated anything particularly negative that would require us to view his evidence with caution.

c. The claimant during proceedings stated that he viewed the respondents’ witnesses as being in various circles of Dante’s Inferno. He placed Mr O’Donoghue in the very top tier. He described him as a Iago figure and accused him of various things such as deceitfulness, dishonesty, disingenuousness and more. None of this corresponded with our assessment of Mr O’Donoghue as a witness. Again, he was measured and broadly anchored his evidence in the contemporaneous documentation. There was no real evidence to characterise him as a Iago figure pulling the strings beyond the claimant’s bald assertion. We deal below in our conclusions with his messages to Ms Jackman in early November 2022 about “strat sessions”. They are not the “smoking gun” the claimant portrays them as.

d. In answer to a question from the tribunal, Ms King described the “seat swap” as follows “Q. How did the seat swap happen? A. I asked if we could switch places. I got up to shuffle. C sort of lifted me dragged me down over other side. Q. Did you ask him to lift you? A. I did not ask him to lift me over his lap”. The seat swap is not something that Ms King gave evidence about to the disciplinary investigation. At the appeal she had described the seat swap as her having “pushed the table forward, I said can I move next to you, he said yes. Then I went here and sat (gesturing to her right). There were no issues with that from my understanding”. As we set out at paragraphs 40-43 above, the claimant subsequently put in a Note accusing Ms King of perjury and suggesting that Mr Forshaw had professional obligations in that respect. While Ms King had not described the seat swap as being lifted over the claimant’s lap during internal proceedings, a number of other witnesses had. While it is not strictly necessary in order to determine the issues in the case to make findings about whether or not the seat swap happened, and how it happened, it has become relevant on the issue of credibility. We find that some sort of seat swap, in which the claimant lifted Ms King over his lap did happen. A number of witnesses to the investigation described it. For his part, at the investigation stage the claimant said of the seat swap “I guess I let her out, I don’t remember that part”. At the tribunal hearing he said that Ms King asked him to lift her out. So the claimant’s evidence is inconsistent on this point also. We do not conclude that Ms King committed perjury. As Gestmin makes clear, memory is fallible and subject to powerful biases. It does not surprise us that the narratives presented by both Ms King and the claimant on the subject of the seat swap have changed. That is the way memory operates.

e. The claimant made reference to one further matter which he says undermines Ms King’s credibility. In the consideration of special measures Ms King relied on her dyslexia as an element of her vulnerability as a witness. The claimant suggested to her that this, in conjunction with alcohol consumption, affected her reliability as a witness in that her “working memory” was impaired. Ms King rejected this, saying that her condition meant that she might struggle to recall dates or recite back a sentence that was spoken, but that it had no impact on her ability to recall events. We do not consider that this condition undermined Ms King’s ability to recall events. In broad terms we found Ms King an impressive and measured witness.

f. Beyond the above observations we confine ourselves to the broad point that the remainder of the respondents’ witnesses did not give us cause for concern in respect of their reliability. Most faced allegations couched in the strongest of terms, such as deceit, dishonesty and disingenuousness. They generally anchored their evidence in the contemporaneous documents, though, understandably, some expressed difficulty remembering some individual events which had taken place some three years previously. Many witnesses were not cross-examined on the issues in the case on which they gave evidence, and/or the claimant did not put a number of allegations of discrimination or detriment he claims they were responsible for.

[264]We make the point that an observation about a witness’s reliability or unreliability does not mean that all their evidence should be accepted or discarded. We have approached the evidence by looking at matters both in close focus and by standing back and looking at it in the round. However, all things being equal, when there is a conflict between the evidence of the claimant and that of the respondents, we have preferred the respondents’ evidence. Findings of fact – the case in a nutshell

[265]The tribunal’s obligation is to let the parties know in broad terms how they have won or lost. We are conscious that our findings of fact have extended over many pages. When this happens there can be a risk that the reader can lose the wood for the trees. Having described the “trees” in our extensive fact-finding, and made observations about what we have made of the witnesses, and given that we set out the law and our conclusions below, it seems appropriate for us to set out in extremely concise terms how we see the “wood”.

[266]In the tightest of nutshells, the claimant alleges that he was the subject of a deceitful allegation motivated by his criticism of Ms King as a “white saviour”. A deeply flawed disciplinary process led to his dismissal. He says that he was subjected to multiple further unfairnesses. In broad terms he says that a dishonest and deceitful Iago figure in the form of Mr O’Donoghue was at the centre of this. The treatment was all because of his race, sex, age, and his having made protected disclosures and done protected acts.

[267]The respondents say RX investigated a complaint of inappropriate touching. The investigation, disciplinary and appeal officers accepted Ms King’s account and dismissed the claimant.

[268]In the very broadest of terms, and for reasons set out in the above findings of fact and the below conclusions, we prefer the respondents’ narrative.

The law

[269]Rule 60(7)(d) requires the tribunal to “concisely identify the relevant law, and state how that law has been applied to the findings in order to decide the issues”. There is no obligation to set out each and every authority the parties referred to in submissions (there were around 50 or so authorities referred to in the respective bundles of authorities supplied by the parties at the time they made their closing submissions) and we do not do so. As we have set out in the procedural section of these Reasons, we do not consider that it is in the interests of justice for us to have to comb through over 2000 pages of authorities put forward by the claimant after the end of closing submissions. Direct discrimination

[270]In respect of direct discrimination, Section 13(1) of the EqA provides 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.

[271]Section 23(1) of the EqA deals with comparisons, and provides:- On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

[272]The EAT in Chief Constable of West Yorkshire v Vento

[2001] IRLR 124

made clear that using examples of individuals who were not true comparators was a proper way of constructing a hypothetical comparator.

[273]The burden of proof provisions are set out in section 136 EqA 2010:-(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[274]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed

[2009] IRLR 884

). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor

[1996] IRLR 372

[275]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EqA, including claims of harassment and victimisation) was given by the Court of Appeal in Igen v Wong

[2005] IRLR 258

: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word “could” in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.''

[276]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the process of drawing inferences of discrimination is a matter for factual assessment and is situation-specific, and that the tribunal’s focus should be on whether it can “properly and fairly infer … discrimination” (Laing v Manchester City Council

[2006] ICR 1519

). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board

[2012] UKSC 37

[277]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc

[2007] IRLR 246

). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society

[2003] IRLR 640

[278]The EAT has also provided some recent guidance both on comparators and on the shifting burden of proof in Leicester City Council v Parmar EA-2023- 000353-JOJ. In its review of the case law the EAT observed that “the purpose of a Tribunal’s consideration of comparators is to use it as an evidential tool to see whether an inference of discrimination is justified. It is not an end in itself” and “The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference”.

[279]Case law has emphasised the importance of not taking a fragmented or piecemeal approach when drawing inferences, and to look at the totality of facts, including both acts which form the subject matter of the complaints and background acts which the claimant alleges are evidence pointing towards a discriminatory act (Quereshi v Victoria University of Manchester

[2001] ICR 863

, Anya v University of Oxford [2001] 847.) Harassment

[280]Section 26(1) EqA provides: - 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.

[281]Section 26(4) EqA sets out factors which tribunals must take into account: - (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.

[282]Section 212(1) EqA provides that conduct amounting to harassment cannot also be direct discrimination.

[283]The Court of Appeal in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

stated:- “an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so….We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[284]The Court of Appeal again emphasised that tribunals must not cheapen the significance of the words of section 26 EqA as “they are an important control to prevent trivial acts causing minor upsets being caught up by the concept of harassment” (Land Registry v Grant

[2011] ICR 1390

). Victimisation

[285]Section 27 EqA deals with victimisation and provides: -(1) A person (A) victimises another person (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.

[286]A person suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. An unjustified sense of grievance is not sufficient. (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[287]The EAT held in Durrani v London Borough of Ealing

UKEAT/0454/20

that for the purposes of section 27(2)(d) “I would accept that it is not necessary that the complainant referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the act applies”.

[288]Section 27(2)(c) has been held to be a wider provision than section 27(2)(d), and in Aziz v. Trinity Street Taxis Limited

[1988] IRLR 204

the Court of Appeal held that a claimant who had made covert recordings at work in order to assist him in proving discrimination which he was beginning to suspect was protected by this provision (under previous legislation).

[289]In Saad v. Southampton University Hospitals NHS Trust

[2019] ICR 311

it was held that bad faith under section 27(3) was akin to dishonesty. Limitation

[290]Section 123 EqA governs time limits and provides: - (1)… proceedings on a complaint within section 120 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. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Whistleblowing Whistleblowing Detriments

[291]The Employment Rights Act 1996 (“ERA”) provides as follows in relation to protected disclosures: 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 Section 43B (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— … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, … (d) that the health or safety of any individual has been, is being or is likely to be endangered,

[292]Section 47B ERA provides in relation to detriments: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[293]Section 48 ERA provides inter alia: (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.] (2) On a complaint under subsection …(1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[294]The authorities stress the importance of the tribunal taking a structured approach to determinations relating to protected disclosures. As set out in Williams v Michelle Brown AM

UKEAT/0024/19

“First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.''

[295]There must be a disclosure of information, that is to say the conveying of facts, and it is not sufficient for the claimant simply to have made allegations Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

. However, a disclosure may contain sufficient information to qualify for protection even if it includes allegations. The question of whether there is sufficient information will be a matter of fact for us taking into account context and background Kilraine v London Borough of Wandsworth

[2018] EWCA Civ 1436

[296]In terms of the public interest element, in Chesterton v Nurmohamed [2017] IRL 837 the Court of Appeal set out factors to be considered by a tribunal in deciding whether there was a reasonable belief a disclosure was made in the public interest. They are the numbers whose interests the disclosure serve; the nature of the interests affects; the nature of wrongdoing disclosed; the identity of the alleged wrongdoer. Where a disclosure raises questions of a personal character, the question of whether it is reasonable to regard it as being in the public interest is to be answered by considering all of the relevant circumstances of the case. Dobbie v Felton

[2021] IRLR 679

held that a disclosure relevant to one person could nonetheless be in the public interest.

[297]The tribunal is to determine whether, i) the claimant had a genuine belief that the disclosure was in the public interest, and ii) whether he had reasonable grounds for so believing. The claimant’s motivation, as such, is not part of the test (Ibrahim v HCA International

[2019] EWCA Civ 20

). The reasonableness of any belief must be judged by reference to the information the worker had at the time of the disclosure, including whether they had made reasonable inquiries Korashi v. Abertawe Bro Morgannwg University Local Health Board

UKEAT/0424/09/JQJ

[298]In order to bring a claim under section 47B ERA the worker must have suffered a detriment. This must be judged from the point of view of the worker. “There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistle-blowing cases” (Jesudason v Alder Hay Children's NHS Foundation Trust

[2020] EWCA Civ 73

). However, an unjustified sense of grievance cannot amount to a detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[299]The tribunal is to determine the reason why the claimant was treated as he was, which requires an analysis of the mental processes, conscious or unconscious, which case the employer to act as they did. It is for the employer to prove that the act complained of did not materially influence the employer’s treatment of the whistleblower (Fecitt v NHS Manchester

[2011] EWCA Civ 1190

). In First Great Western v Moussa

[2024] IRLR 697

the EAT held that an employer subjected a worker to detriments in circumstances where, although there was not a conspiracy, “we find that the myriad examples of unfairness and less favourable treatment cannot simply be explained by a string of unfortunate errors. In our view, they show the existence of an underlying negative attitude towards the claimant shared and understood by management”.

[300]It is open to an employee to pursue dismissal as a detriment claim against a co-worker Rice v Wicked Vision and Barton Turns v Treadwell

[2025] EWCA Civ 1466

[301]In terms of time limits, section 46 ERA provides: (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(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 that 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. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done. Automatic unfair dismissal

[302]Section 103A ERA provides that “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”. 1 The claimant has forcefully suggested that Mr Forshaw misled the tribunal in his opening Note about the status of this conjoined appeal at the time of the hearing before us. We do not accept his allegations.

[303]The “reason” for the dismissal “connotes the factor or factors operating on the mind of the decision-maker which causes them to take the decision.” Beatt v Croydon Health Services NHS Trust

[2017] ICR 1240

[304]The focus of the Tribunal is on the mind of the individual responsible for making the decision to dismiss. Royal Mail Ltd v Jhuti

[2019] UKSC 55

provides an exception to this general principle where a person in the hierarchy of responsibility above the decision maker decides to dismiss and hides the true reason behind an invented reason which the decision maker adopts.

[305]Where there is an overall plan to dismiss an employee, to which a number of managers are party, then a Tribunal can draw inferences from the overall circumstantial evidence to conclude that the dismissing manager was acting in accordance with that plan University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall,

UKEAT/0150/20

[36].

[306]The burden of proof is on the claimant, when they do not have 2 years’ service to establish the reason for dismissal (Smith v Hayle

[1978] IRLR 413

.) Identity of employer and agency

[307]Ordinarily an employee cannot be simultaneously employed by two employers in respect of the same work (United Taxis Limited v Connolly

[2023] EAT 93

[308]Section 109 Equality Act 2010 provides:(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.

[309]Section 110 Equality Act 2010 provides: (1) A person (A) contravenes this section if— (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).

[310]Section 47B(1A) ERA provides: [(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure.

[311]In Kemeh v Ministry of Defence

[2014] ICR 625

the Court of Appeal observed that although there would be nothing preventing someone employed by A from being an agent of B in respect of the same transaction, there would need to be very cogent evident to show that the duties being performed as the employee of A were also being performed as agent of B. Other

[312]The Supreme Court in Chhabra v West London Mental Health NHS Trust [2014] ICR held that an employer had acted in breach of an employee’s implied contractual right to a fair process where an HR manager had unduly influenced an investigator’s report. In Ramphal v Department of Transport

[2015] IRLR 985

the EAT, in considering an appeal from a decision of a tribunal that the claimant had not been unfairly dismissed, observed that it was legitimate for HR to advise on matters such as procedure, but this must not stray into impermissible influencing or lobbying as to the eventual decision.

Conclusions

[313]We will make conclusions on the issues as set out in agreed List of Issues. The way the List of Issues is structured is under the headings Time Limits, Employer and individual liability, Direct discrimination, Harassment, Victimisation, Protected disclosures, Detriment, Automatic Unfair dismissal and Remedy. Annexed to the List of Issues is a table of allegations 1-62. The allegations in that table also appear as “Issues” under the heading Direct discrimination. The table also helpfully sets out which causes of action each allegation relates. In a complex case such as this there is no perfect way to structure conclusions, but the way we propose is:a. To make conclusions in respect of whether acts and disclosures attract protection for the purposes of, respectively, the victimisation and the public interest disclosure detriment and automatic unfair dismissal claims;

b. To make conclusions in respect of the individual allegations, including conclusions in respect of each cause of action to which the allegations relate;

c. To “stocktake” and consider how our determination of the allegations dispose of the claims made;

d. To deal with the employer and individual liability;

e. Then, to deal with time. Protected acts PA1

[314]This relates to the claimant’s email of 24 October 2022 to Ms Pandya and Ms Jackman. Our findings are at paragraph 136 above.

[315]As we set out there, the claimant used the word discrimination and its cognates on a number of occasions, but did not refer to any protected characteristic. The context is that the claimant is a highly educated man with two law degrees from world-renowned universities, who was, in the course of this email, making legal points supported by references to case law. There is simply nothing in the communication which would alert the reader to any suggestion that the claimant was linking differential treatment of himself and Ms King to race, age or sex. In the words of Langstaff J in Durrani “there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies” (although the then President acknowledged that it is not necessary that the complainant must use the word race (in that case) for protection to apply.

[316]We have set out at paragraph 171k) above that Mr Jones questioned the claimant about whether his references to discrimination were an issue of fairness and asked whether the claimant felt he was discriminated against because of any characteristics. The claimant responded “I am not going to comment at this point because I don’t have evidence. Looking at the Disciplinary Code, the aim is to ensure consistent and fair treatment for all. The discrimination was that that has not been complied with. I was excluded from the workplace for 1 month with no reasons given. I don’t need to use the qualifying racial. It was discrimination because one party was allowed to go on and one assumed to be tampering”. We also set out at paragraph 192 above that the claimant in his grounds of appeal stated “Throughout the proceedings I have been exceptionally careful to separate out discrimination (for example when I was, but the complainant was not, suspended from face to face work) from racial discrimination. I pointed out this was discrimination in the sense of unfairness between both parties, as guaranteed by the code; I did not need to suggest any race aspect.”

[317]On his own case, certainly the one he was running in his disciplinary hearing and appeal, the claimant was clear that he had been asserting discrimination in the sense of plain unfairness and was careful not to allege anything further than that.

[318]In the circumstances, having regard to the case law, we conclude that the email of 24 October 2022 was not a protected act. When we go on to consider the individual allegations below, we will address the question of whether various detriments were done because of what are asserted to be protected acts in case we are wrong in this conclusion. We will take this approach with respect to all acts which we may find did not attract protection. PA2

[319]This relates to the claimant’s email to Ms Pandya and Ms Jackman which we deal with at paragraph 140 above. Again, the claimant simply states that suspension was unlawful and discriminatory without referring to protected characteristics. The same factors as set out with respect to the previous alleged protected act apply. For the same reason we conclude that this email was not a protected act. PA3

[320]The respondent concedes that his reference in his email of 31 October 2022 to being told by a bartender to go back to Rwanda was a protected act. PA4

[321]This relates to the claimant’s email of 31 October 2022 to Ms Smyth in which he said he considered his suspension to be discriminatory, and which we deal with at paragraph 156 above. Once again, while the word discriminatory is used there is no reference to protected characteristics. The same considerations as in relation to PA1 and PA2 apply, and for those reasons we conclude that this email was not a protected act. PA5

[322]This relates to the Required Replies document, which we deal with at paragraph 158 above. It can be seen that the claimant is again referring to the disparate treatment between himself and Ms King in his suspension when he makes two references to discrimination or discriminatory treatment. Again, the same issues apply as apply above.

[323]However, the claimant appears to be making a further argument. In these tribunal proceedings, for the first time, the claimant appears to suggest that the Required Replies document was in the nature of the old statutory questionnaire. Despite his intelligence and legal qualifications this was not something the claimant spelled out at the time. We do not conclude that he was contemplating the possibility of making some sort of discrimination claim at the time given the clear words he used in his grounds of appeal. We agree with Mr Forshaw that this was an after the event rationalisation of the claimant’s to try and bring this communication within the ambit of section 27(2)(c) of the Equality Act 2010.

[324]In the circumstances we do not conclude that this email qualifies for protection. PA6

[325]This relates to the claimant’s email to Ms Davies of 3 November 2022 which we deal with paragraph 165 above. As we have set out, this email raises to concerns relating to data protection. The email contains nothing which remotely relates to any sort of breach of the Equality Act 2010. It does not qualify for protection under section 27 Equality Act 2010. PA7

[326]This relates to the claimant’s email to Ms Smyth and others at 7.09am 7 November 2022 which we deal with at paragraph 173 above. The claimant made one reference to the discriminatory suspension continuing. The same factors apply as in relation to PA1 and other protected. The claimant is an intelligent man with two law degrees who was quoting case law and setting out professional legal obligations. He did not spell out any protected characteristics and we have regard to what he said in his grounds of appeal. This email, we conclude, was not a protected act. PA8 and PA9

[327]This relates to the claimant’s complaint to the SRA on 8 November 2022, and his subsequently forwarding it to others at RX, which we deal with at paragraph 183 and 186 above. As we set out there, there are no references to any breaches of the Equality Act 2010 or anything that could be understood to be breaches of it. This complaint and the forwarding of it do not constitute a protected act. PA10

[328]This relates to the claimant’s appeal against dismissal on 16 November 2022. It is accepted by the respondent that the claimant expressly raises breaches of the Equality act 2010. The respondent’s position is that this does not qualify for protection as the claimant made allegations in bad faith, i.e. dishonestly. The thrust of the respondent’s argument is that the allegation of discrimination in the appeal document was that Mr Jones discriminated against the claimant by referring to his West Indian heritage in the dismissal letter. However, as must have been plain to the claimant, Mr Jones was dealing with this issue simply because they claimant has raised it himself.

[329]While we consider there is considerable force in the respondent’s argument that Mr Jones dealt with the claimant’s West Indian heritage because the claimant had himself raised it, we do not consider that we are in a position to say the claimant was dishonest, or acting in bad faith by raising it. The claimant was making a bad point, he probably knew he was making a bad point, but we fall short of concluding that he was dishonestly making the point. In the circumstances, we find that this was a protected act. PA14

[330]This relates to the claimant’s letter before action on 15 December 2022. Again, the respondent accepts that the claimant alleged breaches of the Equality Act 2010 in this letter, but again raises bad faith. The same reasons relates to PA10 and we do not conclude that the claimant raised these issues in bad faith, and we find that the complaint was protected. PA18

[331]This relates to the claimant’s request on 27 January 2023 that Mr O’Donoghue attend the appeal hearing and that it be recorded in order that he could advance his discrimination claim. Once again, the respondent raises bad faith, which we are not in a position to conclude. We conclude that this was a protected act. Summary on protected acts

[332]PA10, PA14 and PA18 were protected acts. The remainder were not, but, in case we are wrong, we will make conclusions on causation in respect of the acts we have found not to be protected when we address the individual allegations later. Protected Disclosures PD6

[333]This relates to the claimant’s complaint of 3 November 2022 to Ms Davies and Ms De Winter that redactions of the investigation report had failed, and the report had not been sent to his work email address (see paragraph 165 above).

[334]The respondent’s case, in short, is that while the claimant may have believed that there had been a breach of a legal obligation to preserve confidentiality, such belief was not reasonable. The respondents say that the claimant accepted he had not spoken to others and therefore could not know whether they had been promised confidentiality, in truth they had not been promised anonymity, they would have no legitimate expectation to anonymity, and the employer had a choice as to whether to anonymise the individuals.

[335]We take account of the fact the employer had attempted to redact the names of the individuals, and that this in itself may have given rise to a reasonable belief by the claimant that his colleagues had been promised anonymity. In the circumstances, we find that the claimant had a reasonable belief that the employer was in breach of an obligation of confidentiality.

[336]However, the respondents go on to assert that the claimant has not given any evidence about his reasonable belief that making the disclosure was in the public interest. They further assert that any such belief would not have been reasonable as no public interest was engaged. The respondents say the issue in question was minor, in that the employer could have chosen to have anonymised witnesses identities or not, the failure was unintentional, the number of employees affected was tiny (eight employees out of a workforce of many thousands) and the putative wrongdoer was a member of the ER team, not a person of public interest.

[337]We accept the respondent’s submissions about lack of evidence from the respondent of his reasonable belief that the disclosures were in the public interest. The claimant’s lengthy witness statements do not address his reasonable belief that the disclosures were made in the public interest. His closing submissions equally do not refer to such belief. They simply address an apparently reasonable belief in a breach of a legal obligation (but not public interest) by cross-referring to previous written submissions made at a Case Management stage. These submissions are not easy to understand and do not appear to address the public interest element (paragraph 13 page 616 of the bundle). There are some kinds of disclosures which might be taken as read as engaging the public interest (for example, disclosures relating to the safety of patients or vulnerable service users) without the need for any, or any extensive, evidence on the matter. The type of information the claimant was giving does not fall into that category, and it must be established by evidence that he had a reasonable belief that making such disclosures was in the public interest.

[338]In the circumstances, this disclosure is not a protected disclosure.

[339]As with the protected acts, we will later go on to consider causation in respect of any disclosures we have not found qualify for protection, in case we are wrong in our conclusions. PD8

[340]This relates to the complaint to the SRA on 8 November 2022 (see paragraph 183 above). This was a disclosure of information to someone other than the employer. The claim is brought under section 43C ERA, and in any event the claimant has not set out any grounds or given any evidence in relation to the legislative requirements in cases of disclosures to persons other than the employer. Additionally, the lack of evidence relating to public interest set out in the conclusions on PD6 are repeated.

[341]We conclude that this disclosure is not a protected disclosure. PD9

[342]This relates to forwarding the SRA complaint to the claimant’s employer (see paragraph 186 above). This can be brought under section 43C ERA. However, we repeat the lack of evidence relating to reasonable belief in the public interest.

[343]We conclude that this does not amount to a protected disclosure. PD12

[344]This relates to the letter of 21 November 2022 (see paragraph 194 above). Again, there is no evidence that the claimant held a reasonable belief that this disclosure of information was in the public interest, and we conclude that it does not amount to a protected disclosure. Summary of protected disclosures

[345]None of the disclosures was protected, but we will consider below the question of causation in case our conclusions are wrong. The allegations

[346]This allegation was that Mr O’Donoghue had allegedly withheld exculpatory information about a) talking to Ms King, and considering that she was drunk, and b) that he was uncomfortable about her comments about black members of the team congregating at one table. The allegations are of direct race, age and sex discrimination.

[347]Mr O’Donoghue’s evidence when he was interviewed by Mr Ramage at the appeal stage (see paragraph 205 c) above) was that both the claimant and Ms King stood out as being drunk. Ms Lamaite had commented that probably Ms King was tipsy (paragraph 121g) above). None of the other witnesses had given evidence that Ms King was drunk. Ms King herself given evidence that she had had three glasses of wine throughout the whole evening, and that alcohol had not impaired her memory.

[348]Mr O’Donoghue’s evidence about the comment about black members of the team is set out at paragraph 205 d) above in full. There is no suggestion from Mr O’Donoghue that the content of Ms King’s comment was inappropriate in any way, simply that Mr O’Donoghue, effectively, did not want to have this sort of conversation in that particular environment.

[349]In terms of drunkenness, it might be said that the evidence Mr O’Donoghue allegedly withheld was neutral. Evidence that the claimant was drunk was potentially evidence supporting the allegation, in that, it might be said, drunken people are more likely to act in a disinhibited or inappropriate way. “Withholding” this evidence may have worked for the claimant’s benefit. Equally, it might be said that alcohol might impair and accuser’s ability to remember events or otherwise affect their reliability.

[350]We consider that the most it could be said is that Mr O’Donoghue was in possession of information which might have some relevance to resolving the issues, but it is not clear which way it would have assisted resolution.

[351]In terms of the comment about black members of staff congregating together, we do not conclude that this information shed light on anything of particular relevance. The only minor concern that Mr O’Donoghue had was that Ms King was making her comment in an unsuitable forum rather than that the comment itself was inappropriate.

[352]We also have regard to the fact that, when he was interviewed at the appeal stage, Mr O’Donoghue was open and forthcoming with his observations. If he was of a mind to withhold exculpatory evidence it is not easy to see why he should have volunteered it so willingly at the appeal stage.

[353]We do not consider that Mr O’Donoghue “withheld” this evidence. The fact of the matter was that he was not interviewed. The reason why Ms Laporte did not interview him is that she was told by witnesses, including Ms Prince, that he was either not there when the incident took place or did not see anything.

[354]The claimant’s case is that the reason why Mr O’Donoghue withheld this evidence was because of the claimant’s race, sex and age. There is nothing from which we could include that this was the case. The reason why Mr O’Donoghue did not provide this information at the investigation stage was that he was not interviewed. If this was his motive, we find it hard to see why, as we have said, he was so volunteering at the appeal stage.

[355]We conclude that the claimant’s protected characteristics were in no sense the reason why Mr O’Donoghue did not provide the above information. We conclude that in materially the same circumstances, but involving a person of a different race, age and sex Mr O’Donoghue would have conducted himself in exactly the same way. Allegation 2 and 3

[356]The claimant alleges that Ms King’s comment about black colleagues sitting together was an act of direct race discrimination, including associative discrimination. He says that Mr Ramage’s conclusions about that issue is both direct race and sex discrimination. Our findings on this are at paragraphs 205d), 212 and 230f) above.

[357]There is no evidence that any remark made by Ms King was directed at the claimant in particular, and he was only made aware of it in the appeal process following being supplied Mr O’Donoghue’s interview.

[358]We conclude that Ms King was making, from her perspective as a member of the All In diversity and inclusion group, what she perceived to be a comment that might form the subject matter of discussion for the group. Ms King accepted that the venue for her remarks was not appropriate, but that the sentiment behind them was valid. We do not conclude that the claimant was subjected to a detriment because of his race or his association with the race of anyone the comments were about. Ms King was making a broad point about inclusion, and we conclude she would have made the same comments about any group of people, regardless of their race, who she had observed grouping together. We do not conclude, if such is alleged, that the comments may have had a broader implication, in that they illuminated some sort of racially discriminatory mindset that would allow us to draw inferences from these comments in how we view the remainder of the allegations against Ms King or others.

[359]In terms of Mr Ramage’s conclusions, he spoke to both Mr O’Donoghue and Ms King and reached a conclusion, open to him on the evidence, that the comments indicated a concern that everyone was included at a work event. We cannot see how making this conclusion treated the claimant less favourably because of his race or sex. Allegation 5b)

[360]The claimant alleges that Ms Laporte failed to investigate what might have happened in the conversation between the claimant and Ms King to lead her to leave the table. He says this is direct race, age and sex discrimination.

[361]As we understand claimant’s case, he appears to suggest that Ms Laporte should have uncovered in her interviews with witnesses the fact that the claimant had made the “white saviour” comment which provided motivation for Ms King fabricating the allegation of inappropriate touching.

[362]We have set out the interviews Ms Laporte had with witnesses at paragraphs 114, 118, 120, 121 and 123 above.

[363]The difficulty with the claimant’s argument is that he did not raise the “white saviour” comment until the appeal stage. There was nothing to put Ms Laporte on a train of enquiry as to something specifically in any conversation between the claimant and Ms King as being the motivation for making up the allegation. Ms Laporte specifically asked the claimant in his interview what might have motivated Ms King to make up the complaint (paragraph 124k) above), and he said he could not speculate.

[364]We conclude that the claimant has not made out the factual element of this allegation. Even if we are wrong in that, there is nothing from which we could include that any of the claimant’s protected characteristics had any bearing whatsoever on the manner in which Ms Laporte investigated. Ms Laporte would have investigated matters in the same manner had the claimant’s protected characteristics been different. Allegation 6b)

[365]This is essentially an identical allegation to Allegation 5b) but levelled at Mr Ramage.

[366]We have set out our findings in relation to Mr Ramage’s interviews with the relevant witnesses at paragraphs 205, 212, 223, 224, 228 and 229 above. Mr Ramage quite clearly investigated extensively the claimant’s allegation that the use of the N-word and the white saviour comment provided motivation for Ms King making up the allegation. Ms Reebye and Mr Agbalaya confirmed the claimant had used the N-word, but none of the witnesses supported the claimant’s account of the “white saviour” comment. Interestingly, Ms Reebye’s evidence was that she had raised with the claimant that he should not use the N-word in a professional environment.

[367]Quite the contrary to what the claimant alleges, Mr Ramage took extensive steps to investigate this issue. The claimant has not factually established the elements of this allegation. Further, there is nothing from which we could conclude that the way Mr Ramage approached his task had anything whatsoever to do with the claimant’s race, sex or age. He would have approached his task in the same way if he had been dealing with the appeal of someone with different protected characteristics to the claimant.

[368]The claimant alleges that, on the night of the incident, Mr O’Donoghue shut the claimant down when he tried to tell him that the bartender had told him to go back to Rwanda. He says this was an act of direct discrimination including by association (which he withdrew at the hearing).

[369]Our relevant findings are at paragraph 205e) and f), 128g) and 121e) above.

[370]It appears that the claimant is relying on Mr O’Donoghue saying “I just wanted to close the conversation and move on” to support this allegation.

[371]None of the witnesses to the encounter with the bartender supported the claimant having mentioned anything about the alleged comment about going back to Rwanda on the night in question. The witnesses, however, do appear to suggest that the claimant was “wild”, the bar tender was upset and the claimant’s behaviour was inappropriate, berating and perhaps embarrassing. We would also observe from the way the claimant conducted himself within employment and advanced these proceedings, and from our observations of him, that we consider it highly unlikely that he would have failed to mention it at the time if such an outrageous comment had been made to him.

[372]We conclude that the claimant did not indicate that he was the victim of the Rwanda comment, and that Mr O’Donoghue did not shut down any such complaint. We conclude that Mr O’Donoghue was uncomfortable during what he saw as a puzzling and unnecessary confrontation with the bartender, and he was just looking to end it. This had nothing to do with the claimant’s race. Had Mr O’Donoghue been in the same situation with a colleague who did not share the claimant’s protected characteristics, we are satisfied that he would have approached the matter in exactly the same way. Allegation 11c) and d)

[373]This relates to Mr O’Donoghue’s descriptions of the claimant and the bartender in his interview with Mr Ramage.

[374]The claimant gave evidence and put to witnesses that there are in existence stereotypical assumptions about how black people talk, which can manifest in surprise when they appear to be well-spoken. We can accept that such stereotypes exist.

[375]The relevant findings are at paragraph 205f) above.

[376]Mr O’Donoghue’s evidence broadly corresponds with that of Ms Prince and Ms Lamaite, namely that the claimant was being fairly belligerent towards the bartender, who herself was clearly upset. Mr O’Donoghue’s descriptions of the incident and its protagonists to Mr Ramage was factual and descriptive, and, we conclude, reflected his honest interpretation of events. While we are alive to the possibility of a stereotypical assumption of how black people talk, we conclude that Mr O’Donoghue’s description of events would have been the same if someone of a different race had been speaking to the bartender in materially the same way as the claimant. We do not conclude that the claimant was treated less favourably because of his race in the descriptions used of himself and the bartender. Mr O’Donoghue simply described what he observed.

[377]The claimant says the respondent failed to investigate his complaint of mistreatment by the “barmaid” (respondent’s terminology), and that this was an act of race -related harassment.

[378]The claimant accepted in cross examination that he never made a complaint about this which he asked the respondents to investigate. He did mention during the course of his 14 October 2022 meeting that the bartender had said “go back to Rwanda”, and he mentioned it again in the document on 31 October 2022. However, he did not indicate that this was a complaint he wanted to pursue.

[379]It is unclear what action the respondent would have been able to take in respect of any complaint against the bartender as she was employed by The Roebuck pub. We accept the respondents’ evidence that, had the claimant indicated he wished to make some sort of complaint, the respondents would have passed on complaint to the pub.

[380]We conclude there was no unwanted conduct, in the sense that it cannot be said that a failure to investigate something the claimant had not said he wanted to be investigated was itself unwanted.

[381]The reason why there was no investigation of the comment was that, first, the claimant had not made a complaint and, second, there was little the respondents could do to progress any such complaint, beyond bringing it to the attention of the pub. Although the comment itself related to race, it is hard to see how the failure to investigate related to race. If it did, the failure to investigate something the claimant did not appear to be pursuing as a complaint about someone who the corporate respondents had not control over did not cross the threshold into violating the claimant’s dignity or creating the requisite environment.

[382]In these circumstances, a failure to investigate cannot be said to have had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, humiliating or offensive environment for the claimant.

[383]The claimant alleges that on 29 September 2022 Ms King told him that he could not use the N-word ever. This is said to be an act of direct race

[384]We conclude that Ms King did not say this to the claimant. We repeat our conclusions in respect of Allegation 5b) above, and the findings referred to there. None of the witnesses interviewed during the investigation or appeal supported the claimant’s allegation that Ms King said this. It is something she denies herself. The claimant did not put forward this allegation at the investigation or disciplinary stage. Of interest is Ms Reebye’s evidence to Mr Ramage (see paragraph 224 above) that she herself was the person to take the claimant to task over his use of the N-Word. The explanation that best fits the facts is that Ms King did not criticise the claimant in this regard, it was Ms Reebye the following day.

[385]Even if Ms King had criticised the claimant as alleged, we do not find that this would have subjected the claimant to a detriment. While the concept of reclaimed language is a complex and nuanced one, we consider it likely, had Ms King made the comment alleged against her, it is likely she would have criticised a colleague of any race who has used the N word.

[386]The claimant alleges that Ms King’s description of him in her email of 30 September 2022 as “the male was black and in his 50s and new to the company”, and the company’s normalising and condoning of this as being direct race, sex and age discrimination.

[387]We set out the full text of Ms King’s email at paragraph 96 above. From this it is clear that she did not know the name of the claimant and had never met him before. While she specifically referred to 3 protected characteristics, in the circumstances, when she did not know his name or who he was and had never met him before, it is understandable that she referred to various features that would help to identify him. Merely describing a black person as black, a man as male and a person in his 50s as being in that age group is not in of itself discriminatory. Indeed, Mr Forshaw goes as far as saying that the claimant is being hypocritical in this regard in that on numerous occasions he has referred to Mr Forshaw’s instructing solicitor as “an Australian”, Mr Jones as “white male respondent”, Mr Ramage as “another white male” and “obtuse white male” and himself as “white male counsel Mr Forshaw”.

[388]We are not clear how it is said that the company and others condoned and normalised it. Perhaps that somewhere down the line someone should have “called out” this objectionable reference to protected characteristics. In many situations it is obviously preferable generally not to describe people by their colour, but in these circumstances we find that it was not objectionable as it was purely to identify someone unknown to Ms King.

[389]In the circumstances there is nothing from which we could conclude that Ms King or any of the respondents subjected the claimant to a detriment or treated the claimant less favourably.

[390]The claimant alleges that refusing to give him a copy of Ms King’s 30 September 2022 email between that date and 30 November 2022 was an act of direct race, sex and age discrimination.

[391]It was correct that the claimant was not supplied Ms King’s actual 30 September 2022 email until Mr Ramage provided it on 30 November 2022. However, as we have set out above (and in particular paragraph 146) Ms Laporte quoted virtually all of the part of the email in which Ms King set out the allegation (see paragraph 96 above). Ms Laporte did not quote “snippets” as the claimant would suggest. It is also right to say that the investigation report was provided to the claimant in a form in which he could identify all of the redacted information. We conclude that the claimant was provided with sufficient the allegation to allow him to understand it, challenge it and present his evidence about it.

[392]The ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) sets out keys to handling disciplinary issues in the workplace, which includes “Inform the employee of the problem. 9. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate which may include any witness statements, with the notification”.

[393]Ms Jackman (paragraph 37 witness statement) and Ms Meredith (paragraph 28 witness statement) gave evidence that it was never standard practice within the RELX group of companies for an initial complaint to be shared with the person subject to the complaint.

[394]We remind ourselves that this is not an unfair dismissal claim. However, the claimant’s case appears to be, broadly speaking, that there was a catalogue of unfairness in his disciplinary process which, together with other matters, can only lead to the conclusion that his protected characteristics played a part.

[395]The reason why the claimant was not provided with Ms King’s initial email was twofold. First, it was not considered standard practice within the RELX group to provide such initial complaints. Second, it was considered that the claimant had been provided sufficient detail of Ms King’s allegations without the need to provide the initial complaint email. Ideally, the respondent could have supplied Ms King’s initial email to claimant. However, we find that somebody who did not share the claimant’s race, age and sex would have been treated in the same way in materially similar circumstances. Standard practice would have applied to a hypothetical comparator who had been supplied the relevant details in the investigation report. We do not conclude that any of the claimant’s protected characteristics had any bearing in his not being provided with the initial complaint email. Had we found that the claimant had done a protected act, we would have found that his treatment was in no sense because of his having done so. Looking at this allegation in isolation, and standing back and looking at the disciplinary process and beyond as a whole, we do not conclude that this element formed part of a catalogue of unfairness that points towards discrimination in any way.

[396]The claimant says that on 30 September 2022 Mr O’Donoghue treated the complaint as fact rather than an allegation. He says this was direct discrimination because of race age and sex.

[397]It appears that the claimant is relying on what Mr O’Donoghue said in his interview with Mr Ramage set out at paragraph 205h) above.

[398]It is clear from the wording of this passage that Mr O’Donoghue was not treating the allegation as fact. He was specifically saying that either it was true, or it was not true, and that either way it was a horrible situation. He was clearly retaining the possibility that the allegation was not true. The claimant has not made out the factual elements of this allegation. In any event, we conclude that Mr O’Donoghue’s entirely balanced view as expressed was in no sense because of any of the claimant’s protected characteristics. There is nothing from which we could conclude it was so, and he would have taken the same approach in materially similar circumstances with someone else who did not share the claimant’s protected characteristics.

[399]The claimant alleges that Ms Laporte made findings that the alleged events took place and recommended there was a disciplinary case to answer, that she accepted Ms King’s false view that Mr O’Donoghue was not a material witness, and that she failed to make an independent decision about appropriate recommendations but was influenced or co-decided with Mr O’Donoghue and others. He says this was direct race, sex and age

[400]We will deal first with the question of Mr O’Donoghue as a material witness. In her email of 30 September 2022 Ms King clearly stated that Mr O’Donoghue was not in the pub when the incident happened (paragraph 96 above). Ms Prince also gave clear evidence that Mr O’Donoghue “didn’t see anything” (paragraph 128i) above). Although later in time, when Mr O’Donoghue was interviewed by Mr Ramage, he was unable to give any direct evidence about the incident.

[401]There may well have been other employers who, in investigating these allegations, may have chosen to include Mr O’Donoghue in the list of witnesses to be interviewed. However, we can see that there were reasons why Ms Laporte chose not to include him.

[402]The claimant, in the way he has conducted his case, has, in very broadbrush terms, placed Mr O’Donoghue as the centre of something of a conspiracy to mistreat the claimant. He also described him on more than one occasion as a “Iago figure”. No doubt Mr O’Donoghue’s not having been interviewed feeds this belief. As will become clear in the totality of our findings and conclusions, we have struggled to see this characterisation of Mr O’Donoghue’s involvement. While it may have been something of a relief for Mr O’Donoghue not to have been interviewed, we have failed to see how he has manoeuvred this situation in any way.

[403]Ms Laporte, for her part, while others may have made different decisions about interviewing Mr O’Donoghue, had reasonable reasons not to do so. She felt that the alleged victim and another witness had clearly said he had witnessed nothing. This was the reason why she did not interview him. We also accept that she made this decision herself and was not subject to any influence or instruction. There is nothing from which we could conclude that any decision she made in this regard had anything to do with the claimant’s race, sex or age. We conclude that someone in materially the same circumstances with different protected characteristics would have been treated in exactly the same way.

[404]Turning to the allegations that Ms Laporte made a finding that the alleged events took place (Allegation 17a) and that she failed to make an independent decision (Allegation 17d)), the claimant’s claim here seems to be that the unseen hand of Mr O’Donoghue was directing matters to a guilty conclusion. We do not accept this narrative.

[405]In our experience of the workplace it is not unusual for investigation reports to undergo different iterations. Drafts can be prepared, discussed, and revised; further evidence can emerge, professional advice can be taken and people can even revise their conclusions in the light of a host of factors. Of course, it can also be the case that an investigator can come to a conclusion which the organisation does not like, and pressure can be put on the investigator to change their conclusions. The claimant appears to be suggesting that the latter took place.

[406]We have set out our findings on the various drafts at paragraphs 132-3 (first draft), 134-5 (second draft), and 146-8 (final draft).

[407]It can be seen that the first draft sets out a “fair” conclusion that “it is highly likely that some form of physical interaction did take place” based on the fact that a number of witnesses saw Ms King becoming suddenly uncomfortable. The draft points out that it was not possible to corroborate the allegation, sets out that the incident appeared to be a “one off incident” and recommends a disciplinary hearing to consider whether a formal sanction was appropriate, including consideration of guidance or an apology. In short, the allegation was “partially found”.

[408]It appears, therefore, that Ms Laporte accepted Ms King’s evidence of inappropriate touching. Why else would there be a conclusion that “some form of physical interaction” took place, that it was a “one-off” incident and consideration should be given to whether a sanction was appropriate?

[409]The second draft maintained the conclusion that some sort of physical interaction did take place, but pointed out that it was not possible to determine what occurred and whether it was deliberate, and maintained the “partially found” conclusion.

[410]At paragraph 145 above we set out that Ms Hill took privileged legal advice. She then advised Ms Laporte that she needed to make a clear finding one way or another about whether the incident took place.

[411]The final draft therefore took the form we set out at paragraph 146-8 above. In particular Ms Laporte observed that support for Ms King’s account took the form of multiple witnesses describing her as visibly uncomfortable, the claimant’s over-friendly behaviour, Ms King’s credible testimony and the absence of any identified reason why she would raise concerns if they had not occurred.

[412]While, therefore, there were differences in the various iterations of the report, there was a core consistency in all drafts of a finding that the allegations of physical interaction did in fact occur. There was no apparent sudden significant change in approach. It was more of a firming up of conclusions.

[413]We gave consideration to Ms Laporte’s evidence from the witness box that she was more comfortable with the first draft. Her reasoning for this was not explored. Of course, this could be because this was the first draft she came up with; or that she was put under pressure to change it and was uncomfortable with being put under that pressure. We discount the latter as an explanation. The explanation that best fits the facts is that, to a degree, Ms Laporte could, to a degree, “sit on the fence” with a “partially found” conclusion. Our experience of industrial practice (and perhaps life, or decision-making in general) is that fences are often more comfortable places to sit. We do not find it inappropriate that Ms Hill advised Ms Laporte that she should commit to a decision one way or the other. Nonetheless, when forced off the fence she found the allegation “found”. This was actually consistent with her conclusions all along that some sort of physical interaction had taken place. She was able to support the conclusion with evidence she had gathered in her investigation, and nothing had changed in that regard.

[414]Ms Laporte and Ms Hill gave evidence that Ms Laporte made the decision, albeit with Ms Hill’s advice which was provided after having sought legal advice. Mr O’Donoghue also gave evidence that he had not influenced any decisions of Ms Laporte in any way. On the other hand, the claimant contends that Ms Laporte was influenced in some way by Mr O’Donoghue (and/or perhaps others). The height of his evidence is bald assertion and conjecture. Mr O’Donoghue must have had a hand, as he was in the top tier of some sort of Dantean hell calling the shots. We accept the evidence of the respondents. There is a consistency and coherence to it and it fits in with the contemporaneous documents. In contrast, the claimant’s narrative is unsupported by anything beyond his own, at times hyperbolic, conjecture. We do not find (although these were breach of contract and unfair dismissal claims) that HR involvement strayed into the impermissible territory identified in Chhabra and Ramphal.

[415]There is nothing from which we could conclude that the claimant’s protected characteristics played a part in Ms Laporte’s decision making. We conclude that Ms Laporte was not influenced by Mr O’Donoghue or anyone else beyond being given appropriate advice from Ms Hill. We conclude that Ms Laporte would have reached and expressed her conclusions in exactly the same way in materially similar circumstances in respect of someone who did not share the claimant’s protected characteristics. In short, she believed Ms King’s account, and she set out cogent evidence to support that belief.

[416]The claimant alleges that Mr O’Donoghue involved himself with the investigation, and withheld this from the claimant as an act of direct race, age and sex discrimination.

[417]We have touched upon this in the previous section. Mr O’Donoghue was, as HR Director, jointly involved in the decision to suspend the claimant. We have also set out the fact that Ms Hill emailed Mr O’Donoghue and Ms Jackman on 26 October 2022 about approving the lifting of the suspension, and that Mr O’Donoghue wanted to understand the logic of the decision (paragraphs 142-5 above). We have found that Mr O’Donoghue had no sight of any drafts of the investigation report at this stage, or until he received a final copy of the report on 28 October 2022 (paragraph 149 above).

[418]As we concluded in the previous section, there is no evidence that Mr O’Donoghue was influencing the investigation in any way, and the claimant’s case on the issue relies solely on his own conjecture. We accept the respondents’ evidence rather than what really amounts to little more than a conspiracy theory expressed in florid terms.

[419]We do not conclude that the claimant has established the factual basis of this allegation. Furthermore, we conclude that there is nothing from which we could conclude that what little involvement Mr O’Donoghue had (the joint decision to suspend, the querying of the rationale to lift suspension) had anything to do with the claimant’s protected characteristics. Mr O’Donoghue would have involved himself in the same way with a hypothetical comparator in the materially the same circumstances who did not share the claimant’s protected characteristics.

[420]The claimant alleges that the failure to treat various documents as formal grievances was direct discrimination on the grounds of race, sex and age.

[421]We have set out at paragraph 88 above that the grievance policy requires an individual to set down in writing the nature of a complaint indicating that it is a formal grievance. We also repeat the fact that the claimant is an intelligent man with two law degrees.

[422]We have set out between paragraphs 191-199 above an intense bout of correspondence between the claimant and various individuals including solicitors relating to the claimant’s letter before action. This includes letters of 21 and 25 November 2022. There is nothing in any of this correspondence to suggest that the claimant was raising a grievance or that he wished the matters he was raising to be treated as such. Solicitors were involved and response made to the claimant. He made no contemporaneous complaint that that any respondent was failing to progress any grievance he was making.

[423]In short, the claimant does not factually establish the elements of this allegation. The respondents did not refuse to deal with a grievance. Further, there is nothing from which we could conclude that the approach taken in responding to the claimant’s communications had anything to do with his protected characteristics. We conclude that the respondents would have taken exactly the same approach as they did to the claimant if they had received this correspondence from someone who did not share his protected

[424]Similarly, in respect of the email of 16 January 2023, at paragraph 210 above we set out correspondence about Mr O’Donoghue’s evidence in which the claimant does not set out that he is making a grievance.

[425]Once again, with respect to the letter of 23 January 2023 we set out at paragraph 213 above that the claimant’s complaints about Mr Ramage proposing to interview Ms King again contained no references to a grievance.

[426]With respect to communications on 13 and 15 February 2022, as we have pointed out at paragraphs 218 and 221 above, the claimant made no reference to these communications being grievances.

[427]We agree with Mr Forshaw that the claimant never expressly nor impliedly raised grievances. The various communications were threatening litigation, making submissions for the appeals stage or seeking settlement. The various issues were dealt with in appropriate ways and correspondence was answered even if not treated as formal grievances. There is no way the recipients of the communications (who actually received them, as some had emails from the claimant blocked) would have understood the claimant to be raising grievances. The reason why these communications were not treated as grievances was because they were not understood to be such. We also bear in mind the context of the claimant sending an almost overwhelming amount of correspondence to numerous recipients. It would have been hard for the respondents to keep a handle on this. There is nothing from which we could conclude that the claimant’s race, sex or age was in any sense a factor in this.

[428]The claimant alleges that Ms Smyth, Mr Jones and Ms Meredith permitted and assisted Ms King to amend her grievance in contrast with him being held to a set of questions on 1 November 2022 as constituting his grievance.

[429]We struggle to understand the allegation. Ms King’s complaint against the claimant remained one of inappropriate touching. There were minor differences in recollection by Ms King, as is often the case in investigations going on over several months. The claimant’s Required Responses was treated as a grievance by the respondents, but there was no restriction on him amending this or putting in fresh grievances if he chose. We do not see a difference in treatment, and there is nothing from which we could conclude that the respondents’ approach had anything to do with protected characteristics. Someone with different characteristics would have been treated in the same way in materially similar circumstances.

[430]The claimant says that Mr Muneer was removed as disciplinary hearing manager as an act of direct race discrimination (including, possibly associative discrimination).

[431]We repeat our findings at paragraphs 127, 139, 152-4 ,157-9 and 162- 3.

[432]The claimant accepted in cross-examination that Mr Muneer would have been inappropriate as a hearing officer. It is hard to see how the claimant could have said otherwise. We firmly formed the impression that the behind-the-scenes communications between the two men (though it must be stressed that virtually all of it that we could see came from the claimant) gave the appearance of the claimant enlisting the support of Mr Muneer, and strategising. This must have been entirely obvious to the claimant at the time. The claimant has, at all times, sought to present himself as someone at pains to ensure the probity of the disciplinary process, and has made allegations of bad faith in the strongest terms against those he sees as not having acted with probity. That he was communicating with Mr Muneer in the terms he did, and was insisting, on the threat of reporting Ms Smyth to the SRA, that Mr Muneer be installed as hearing officer, we conclude, very much indicates the bad faith that the claimant seeks to accuse other of.

[433]Despite some reservations about the quality of Ms Pandya’s evidence, we conclude that the reason why Mr Jones was asked to be the hearing officer was for the reasons she gave contemporaneously and in her witness statement. It was felt appropriate, and even considerate to the claimant, to appoint someone outside of the business the claimant worked in. There is nothing from which we could conclude that either the claimant’s or Mr Muneer’s race had anything to do with the decision. The respondents would have made the same decision in respect of a hearing officer in materially the same circumstances if the claimant’s and Mr Muneer’s races were different.

[434]Allegation 23a) is that Ms Hill lied to the claimant about Mr O’Donoghue being in charge of the disciplinary process and co-suspender of the claimant. This is said to be direct discrimination on grounds of race, sex and age.

[435]On our findings Mr O’Donoghue simply was not in charge of the disciplinary process. We cannot identify any lies or dishonesty from Ms Hill in this regard. Even if some sort of representation was made by her that Mr O’Donoghue was not in charge of the process, this would have been factually correct. The claimant does not establish the factual elements of this allegation.

[436]Mr O’Donoghue was jointly a decision-maker in respect of suspension in that he approved the decision of Ms Hill and Ms Pandya. We can find no evidence of any lies told by Ms Hill in this regard. The claimant did not even put this to her or contradict the clear evidence she gave that she did not lie about this. The claimant has not factually established the elements of this allegation.

[437]Further, there is nothing from which we could conclude that anything said or done by Ms Hill in this regard had anything to do with the claimant’s protected characteristics.

[438]Allegation 23b) is that Ms Hill led the claimant to believe that Mr O’Donoghue had been interviewed. This is said to be direct race, sex and age discrimination. This allegation almost certainly stems from Ms Hill’s question set out at paragraph 124n) above.

[439]In some senses we can see how the claimant may have understood that Mr O’Donoghue was likely to be interviewed. However, Ms Hill was simply flagging up who the claimant had identified and asking if there was anyone else who should be interviewed. However, this was no guarantee of who would be interviewed, and Ms Laporte determined that Mr O’Donoghue was not relevant based on what other witnesses were saying.

[440]While having some sympathy for the claimant’s understanding, there is nothing from which we could conclude that Ms Hill’s saying what she did (in the light of what transpired) had anything to do with the claimant’s protected characteristics. In materially the same circumstances, in an investigation involving someone with different characteristics, we conclude that Ms Hill would have asked the same question, and the investigation would have panned out in the same way.

[441]Allegation 23c) is that Ms Hill redacted the report in the way it was redacted to conceal the fact that Mr O’Donoghue was not a witness. Essentially the claimant’s claim appears to be that because of his race, sex and age, Ms Hill redacted the report in order to conceal the fact that Mr O’Donoghue had not been interviewed. The implication is that she would have approached things differently with someone with different protected

[442]We find this contention far-fetched in the extreme, with nothing to support it beyond the claimant’s assertion. On the other hand, Ms Hill gave compelling evidence that the redactions were made with the purpose of protecting the identities of witnesses in a sensitive investigation. This narrative fits in with the overall probabilities and we accept it. There is nothing from which we could conclude that the way Ms Hill approached redaction had anything to do with the claimant’s protected characteristics. The reason why the redactions were made was in an attempt to preserve the confidentiality of named individuals.

[443]The claimant alleges that Ms Pandya monitored the claimant’s whereabouts and Mr O’Donoghue mocked his sleeplessness. The claimant says this was direct discrimination on grounds of race, sex and age.

[444]Our findings on the monitoring allegation are at paragraphs 103-110 above. We have set out that we had concerns with Ms Pandya’s evidence, but we did not find that she monitored the claimant. She was tasked with delivering the news of his suspension and she was making a number of attempts to meet with him. In circumstances when she found it difficult to get hold of him it is unsurprising that she took such efforts to locate him. This did not strike us as sinister in any way.

[445]Even if we took the view that her attempts to locate the claimant could be classed as “monitoring”, our focus is on whether it was discriminatory. There is nothing from which we could conclude that any of Ms Pandya’s actions had anything to do with the claimant’s protected characteristics. She was taking these steps to get hold of him as he was not responding to an invitation to a meeting, and did not appear to be at work when the respondent’s systems would suggest he would be. She would have taken exactly the same steps in materially the same circumstances if she was attempting to contact someone with different protected characteristics.

[446]We set out our findings on Mr O’Donoghue’s alleged mocking the claimant’s sleeplessness at paragraph 168 above. We see this as something of a flippant remark from Mr O’Donoghue to comment on the fact that the respondents were receiving a number of early morning emails from the claimant. We conclude that Mr O’Donoghue would have made exactly the same comment if the respondents received numerous early morning emails from someone with different protected characteristics in materially the same circumstances. There is nothing from which we could conclude that race, sex or age had anything to do with the remark being made.

[447]This is the allegation that Mr O’Donoghue disingenuously asked about treating the claimant as awol. It is said to be direct race, sex and age

[448]Our findings, again, are set out at paragraphs 103-110 above.

[449]Mr O’Donoghue, when he sent the message, was unaware that Ms Pandya had managed to speak with the claimant. He was under the impression that no-one had been able to contact the claimant for around 24 hours when he should have been at work. While we believe that Mr O’Donoghue was probably more concerned about the claimant’s whereabouts than his welfare, we do not conclude that Mr O’Donoghue was trying to load more misconduct charges on the claimant. He was just keen to ensure that he could be contacted, if necessary, by contacting next of kin. There is nothing from which we could conclude that the claimant’s race, sex or age had anything to do with Mr O’Donoghue sending the message that he did. He would have sent exactly the same message in respect of a hypothetical comparator in materially the same circumstance.

[450]The claimant says that Ms Hill asked Ms King what an appropriate sanction should be and how she would feel if the claimant returned to the workplace. He says this was direct race, sex and age discrimination.

[451]The issue, as framed by the claimant mischaracterises what was actually put to Ms King. We deal with this at paragraph 113g) and h) above.

[452]We conclude that Ms Hill was asking appropriate and relevant questions to someone who has made an allegation that she had been inappropriately touched in the workplace.

[453]There is nothing from which we could conclude that by asking Ms King these questions the claimant was being less favourably treated because of any protected characteristics. The reason why she was asking these questions was to establish how Ms King, as someone who had made serious complaints, would like her complaints resolved. We conclude that Ms Hill would have asked exactly the same questions to Ms King if the protected characteristics of the person she was accusing were different.

[454]The claimant claims that failing to tell him the identity of the complainant between 6 and 13 October 2022 was direct race, sex and age

[455]We have set out our findings at paragraph 117 above. We have accepted Ms Hill’s explanations that she followed standard practice in order to maintain Ms King’s confidentiality until the point when it was known that the claimant would need to be interviewed, and would then (as he was) be supplied with the identity of his accuser so that he could respond to the allegations.

[456]The rationale for this approach is understandable. The investigation may have gone nowhere and the claimant may never had needed to be interviewed. When it was clear that the investigation was to proceed, the claimant was provided with the necessary information in order that he could respond. There was no compelling reason for why the claimant should have been provided with the identity before that point.

[457]There is nothing from which we could conclude that the claimant was treated less favourably because of his race, sex or age. A hypothetical comparator with different protected characteristics would have been treated in exactly the same way.

[458]The claimant claims that failing to remove the suspension entirely on 17 October 2022 was an act of direct race, sex and age discrimination.

[459]Our findings are at paragraphs 125-6 above. We concluded that Ms Hill and Ms Pandya carefully balanced various factors in deciding partially to remove the suspension. The fact that the allegation was serious, the investigation was still ongoing and there was a chance that the claimant could bump into Ms King in the workplace militated against lifting the suspension in full. We also noted above at paragraphs 181k) and 184 that Ms Hill explained this rationale to Mr Jones during the disciplinary process, which indicates a consistency in her evidence. We conclude that these factors were the reasons why it was not lifted in full. There is nothing from which we could conclude that the claimant’s race, sex or age had anything to do with the decision. In materially the same circumstances a hypothetical comparator would have had their suspension only partially lifted. Allegation 30, 31 and 32

[460]The claimant says that the failure to notify him that there was a recommendation that the suspension be wholly lifted (30); the decision not to follow Ms Laporte’s recommendation to lift the suspension and to notify him of the same (31); and the failure to give him information about why the suspension remained in place (32) was direct race, sex and age discrimination

[461]We have set out our findings relating to Allegations 30-1 at paragraphs 142-3 above, but there is more context preceding that. We have made findings about information provided to the claimant (Allegation 32) at paragraphs 151, 164 and 176 above.

[462]The first point to make is that the recommendation to lift the suspension was made by Ms Hill and Ms Pandya and not Ms Laporte.

[463]The email from Ms Hill of 26 October 2022 sets out that there were no grounds for gross misconduct but a disciplinary hearing was recommended. Mr O’Donoghue was understandably confused and wished better to understand the position. He had a brief conversation with Ms Hill and the decision was made for Ms Hill to seek legal advice. Ms Hill took legal advice and subsequently decided that the partial suspension should remain in force. We note that though all iterations of the investigation report there was a conclusion that it was highly likely that “some form of physical interaction did take place” and that, on the evidence of Ms King, this was the claimant moving his hand up Ms King’s back and touching the side of her breast/bra area. It does appear (on looking through the iterations of the investigation reports) that the rationale for not considering this to be gross misconduct rests on the incident not being considered a course of conduct such as to bring it within the RX Disciplinary Policy definition of harassment.

[464]In circumstances when these factual allegations, whether expressed as misconduct or gross misconduct, were still in play in terms of a subsequent disciplinary hearing, and there was still a chance of the claimant bumping into Ms King in the office, it does not strike us as odd or sinister, that on gaining “further understanding” in a “tricky” case, that the recommendation was not followed.

[465]In terms of Allegation 31 there is nothing from which we could conclude that the failure to follow the initial recommendation to lift the suspension wholly was because of the claimant’s race, sex or age. The reason why the recommendation was not followed was because it was further scrutinised, further considered, advice was taken and the recommendation was changed. We conclude that a hypothetical comparator who did not share the claimant’s protected characteristics would have been treated identically.

[466]There is some overlap between the last part of Allegation 31 and Allegation 30 concerning failing to inform the claimant of the change of recommendations.

[467]We conclude that it would have been odd in the extreme if the claimant had been told that an initial view had been taken to lift his partial suspension and that this was not followed on further consideration. There is nothing from which we could conclude that the claimant’s race, sex or age had anything to do with this. Nobody would have been given this information in materially the same circumstances, regardless of their protected characteristics. To do so would have been bizarre.

[468]In terms of providing the claimant with information about why the suspension remained in place, the claimant was told repeatedly that it would remain in place until the conclusion of the disciplinary hearing. It remained the position throughout that he faced serious allegations and there was a continuing risk of his bumping into the person who had raised the complaints.

[469]There is nothing from which we could conclude that the respondent’s approach had anything to do with the claimant’s race, sex or age. It was the circumstances of the case that drove the approach, and this would have applied to anyone, regardless of their protected characteristics in materially the same circumstances.

[470]The claimant says that the email Ms Hill sent to Mr O’Donoghue on 28 October 2022 was calculated to sustain Ms Laporte’s impression that Ms Hill was independent and had not discussed matters with Mr O’Donogue. He says this was direct discrimination because of race, sex and age.

[471]Our findings are at paragraphs 142, 149 and 150 above.

[472]As we understood the claimant’s case, he is suggesting that Ms Hill was attempting to hide the fact that she had spoken with Mr O’Donoghue on 26 October 2022. This was a brief conversation in which the ongoing suspension was discussed and a decision was made that Ms Hill should speak to employment counsel.

[473]We can see nothing odd or inappropriate about Ms Hill’s email, and do not consider that she was attempting to keep things from Ms Laporte or to foster some sort of misleading impression. She simply did not refer in this email to an appropriate short discussion between human resources professionals that had taken place on the issue of suspension.

[474]Furthermore, there is nothing from which we could conclude that the claimant’s race, sex or age was a factor in the content of this email. The email would have been written in the same terms in the case of someone in materially the same circumstances who did not share the claimant’s protected

[475]The claimant says that Mr Jones dismissed him with a taunt, and treated his West Indian identity as relevant to his innocence or otherwise of disputed conduct. He says this was direct age, sex and age discrimination as well as victimisation and whistleblowing detriment.

[476]Our findings on the “taunt” are at paragraph 188 above. We have found that Mr Jones concluded the meeting with a rather clumsy remark. We have found that this was entirely unintentional and not meant as a taunt.

[477]There is nothing from which we could conclude that the claimant’s race, age or sex was a factor in any sense in this. Mr Jones would have used the same unfortunate phrase to anyone in materially the same circumstances regardless of their protected characteristics.

[478]On the question of the claimant’s West Indian identity, we have set out our findings relevant to this issue at paragraphs 155, 171i) and 189d) above.

[479]What is clear is that the claimant himself raised his West Indian identity in his 31 October 2022 reply to the investigation report, suggesting that the tactile conduct being described by some witnesses was part of a “cultural difference”. The claimant referred during the disciplinary hearing to witnesses’ references to being tactile, and set out that it was “a cultural difference being described”. Mr Jones therefore dealt with this issue in the decision letter.

[480]It is abundantly clear that the reason why Mr Jones referred to the question of the claimant’s West Indian identity was to deal with the point that the claimant himself had raised. The claimant’s allegations go against the clear wording of his own communications. There is nothing from which we could conclude that the claimant’s race, sex or age were the reason why Mr Jones dealt with the issue in the way he did. If a comparator in materially the same circumstances as the claimant, but with different protected characteristics had raised the issue that their racial identity was relevant to the issues to be determined, Mr Jones would have dealt with it in the same way. We further do not find that any protected act or disclosure was the reason why Mr Jones dealt with matters the way he did. He dealt with the identity issue as the claimant himself had raised it. Put shortly, the reason why Mr Jones dismissed the claimant was that he accepted Ms King’s account of the incident of inappropriate touching and considered the allegations sufficiently serious to warrant dismissal.

[481]Turning more closely to the whistleblowing detriment’s claim, we note the chronology. The claimant first raised an issue about the data breach on 1 November 2022 in an email to Ms Smyth (paragraph 161 above). Mr Jones asked the claimant to set out his complaint in writing (paragraph 164 above). The claimant relies on his first protected disclosure on 3 November 2022 (paragraph 165 above). By the time of the protected disclosure:a. Ms King had raised her complaint;

b. Ms Laporte had investigated;

c. Mr Jones had been appointed hearing officer and had invited the claimant to a disciplinary hearing.

[482]We agree with Mr Forshaw that it is unrealistic to suggest that a disciplinary process had got this far untainted by protected disclosures, but then all of a sudden Mr Jones’ reason, or principal reason, for dismissal was what the claimant said in his email to Ms Davies and Ms De Winter about the data breach.

[483]We also accepted Mr Jones’s evidence that the allegation of data breach had no impact whatsoever on his decision making on the dismissal and that he was focused on the evidence in relation to the disciplinary allegations. There was nothing meaningfully put forward by the claimant to undermine this. We do not accept the claimant’s suggestion that Mr Jones raised the data breach himself illegitimately. The hearing minutes show that the claimant raised the matter. Mr Jones’s only real engagement with the issue was to ask the claimant to delete a document the claimant himself appears to assert he should not have received.

[484]We further accept Mr Jones’s evidence that he was an independent decision-maker and that he was not influenced by anyone. Any suggestion that Mr O’Donoghue or anyone else was actually calling the shots is unsupported by anything beyond the claimant’s bald assertion. There is nothing we could remotely have regard to in order to go behind Mr Jones’s evidence that the reason why he dismissed the claimant was that he accepted Ms King’s account and believed dismissal was the appropriate sanction.

[485]The claimant says that Mr Jones made a finding without prior notice or discussion that the claimant had sexually harassed Ms King. He says this was direct race, sex and age discrimination and victimisation and whistleblowing detriment.

[486]It is right to say that the investigation report itself did not explicitly use the term sexual harassment. As we have set out in paragraph 146 above, the investigation report did, however, set out Ms King’s complaint that she “was inappropriately touched, he had his arm around me and then he began to feel me up to the point where I was extremely uncomfortable”. It also set out Ms King’s evidence to Ms Laporte’s investigation that “I noticed his hand leaned on the bench”. KK then demonstrated how his hand was on the bench she then went on to say “I wasn’t thinking about that, but it begins to move closer, but I wasn’t uncomfortable at this point, and as I was talking, he makes contact to my lower back….. Then I did begin to feel that he was touching me, I carried on talking then he moves his hand up and kind of touching the side of my boob”. It is right to say, therefore, that the factual allegations were set out clearly.

[487]The investigation report also made explicit reference to the RELX Code of Conduct and Business Ethics, which makes clear reference to not tolerating any form of harassment “including sexual harassment”. At the disciplinary hearing the claimant himself pointed out that this was the policy Ms Laporte relied on, stating “This is about sexual harassment in gross terms”.

[488]Also, as set out above at paragraph 187, Mr Jones had taken legal advice about the definition of sexual harassment.

[489]An allegation that a person has touched a person in the manner alleged by Ms King is clearly one that would amount to sexual harassment under RELX policy and the Equality Act 2010. The claimant was clearly made aware of the precise nature of the allegation. We do not conclude that the claimant was disadvantaged in any way.

[490]More to the point, for the purposes of this case, we conclude that there is nothing from which we could conclude that Mr Jones’s conclusion that the claimant had been guilty of sexual harassment was in any sense because of the claimant’s race, sex or age. Mr Jones did not make the conclusion because of any protected acts or disclosures by the claimant for reasons given in the previous section. The reason why Mr Jones concluded as he did was that he determined, on the evidence available to him, and on his understanding of the policies and the law, that the claimant had sexually harassed Ms King by inappropriately touching her in the manner she alleged.

[491]The claimant levels numerous allegations against Mr Ramage about the way he dealt with the appeal. He says that a) he extended the benefit of doubt to the complainant but not him; b) he placed the burden of proof on him, not Ms King; c) he favoured the discrimination of Mr O’Donoghue and the bartender in relation to the actions of the bartender; d) he failed to deal with the grievance concerning the bartender; e) he upheld the decision to dismiss; f) he failed to acknowledge that Mr O’Donoghue had been racist in the way he described the way the claimant spoke. The claimant alleges that this was direct discrimination on grounds of race, sex and age.a. Benefit of doubt. We have set out Mr Ramage’s approach to the appeal at some depth at paragraphs 205, 212, 216-217, 220, 222-229. His conclusions are set out at paragraph 230. It was clear to us that Mr Ramage conducted an extensive examination of the evidence and reached conclusions and made determinations on the evidence. He was not extending the benefit of doubt to Ms King. As Mr Ramage set out in paragraph 63 of his witness statement, he was considering a single moment in time, and determining whether, on the balance of probabilities, the incident happened. Based on all the documents he read and the individuals he spoke to, “I accepted Ms King’s account of events”. In short, he believed her. There is nothing from which we could conclude that the claimant’s race, sex or age had anything to do with the way Mr Ramage approached his task. He decided the way he did because he believed Ms King.

b. Burden of proof. We have set out Mr Ramage’s conclusion on the failure to properly assess Ms King’s credibility at paragraph 230f) above. Mr Ramage’s letter on this point reads: “In my view, it is important to ask an individual who is facing an allegation why the alleged victim may have lied — because that individual may be able to point to a reason - for example, some animosity between them. Indeed, you have now pointed to the use of the terms "n*****" and "white saviour" as the reason for this, and I have dealt with this at Section 6 below. This same logic does not apply to the denial of alleged wrongdoing.” We do not conclude that Mr Ramage was placing a burden on the claimant to disprove the allegation, either focussing on this passage or looking at the wider investigation or decision. It is appropriate to ask someone facing a charge why the accuser might have raised the allegation. There is no real sense in asking an accuser why the accused might deny that allegation. There is nothing from which we could conclude that Mr Ramage approached matters as he did because of the claimant’s race, sex or age. He would have approached matters in the same way in the case of a hypothetical comparator.

c. Favouring discrimination of Mr O’Donoghue and the bartender. We have dealt with Mr Ramage’s conclusion on this point at paragraph 230e) above. Mr Ramage simply accepted Mr O’Donoghue’s account, which chimed with that of others, that Mr O’Donoghue, as did other witnesses, believed that the claimant was unnecessarily berating the bartender, and that this did not show racialised bias. This was not favouring any discrimination of Mr O’Donoghue or the bartender, but making an appropriate finding on the evidence. There is nothing from which we could conclude that the claimant’s race, sex or age had anything to do with Mr Ramage’s approach. He would have dealt with matters in the same way with an appropriate hypothetical comparator.

d. Bartender grievance. It is right that Mr Ramage did not deal with a grievance against the bartender. As we have concluded in relation to Allegation 12 above, the reason why this was the case was because the claimant did not make a grievance. This had nothing to do with the claimant’s race, sex or age.

e. Upheld the decision to dismiss. For reasons set out in sub-paragraphs a) and b) of this paragraph, and the findings we refer to there, the reason why Mr Ramage upheld the appeal is that he accepted Ms King’s account. While we accept that there are negative stereotypes that black men face, and we accept that in broad terms people from black and ethnic minority groups statistically fare worse in conduct proceedings in certain institutions, on a close examination of the evidence in this case we cannot conclude that Mr Ramage was influenced by unlawful considerations. There is nothing from which we could conclude that race, sex or age were factors in his not upholding the appeal. He concluded as he did because he accepted Ms King’s account and considered the allegation sufficiently serious to warrant dismissal in all the circumstances. While this specific allegation is not put by the claimant as whistleblowing detriment, we would add that we do not find that the reason why Mr Ramage did not uphold the appeal was in any sense because of any protected disclosures.

f. Failing to acknowledge Mr O’Donoghue’s racism in his observations about the claimant’s way of speaking. There is an overlap with the issue c) above and we repeat our conclusions. The reason why Mr Ramage did not acknowledge any racism, is that he did not see any on the evidence. He considered that Mr O’Donoghue was merely describing the embarrassing encounter with the bartender. There is nothing from which we could conclude that the claimant was treated less favourably because of his race.

[492]The claimant alleges that treating the Required Replies document as a grievance was victimisation and whistleblowing detriment. Our relevant findings are at paragraph 158 and 160 above.

[493]Ms Smyth’s evidence was that she considered that matters raised would be appropriately dealt with at the disciplinary hearing and that she had no ulterior motive. This, we conclude, is the explanation that best fits with the facts. The claimant was raising concerns about things which happened at the outset of the disciplinary process (his suspension), and a decision that the claimant could air his complaints about this at the disciplinary hearing, which would consider the complaints as a grievance, seems entirely appropriate and in accordance with good industrial practice. A suggestion that this approach was taken because the claimant had raised discrimination or other protected matters is far-fetched. We do not find that the claimant was subjected to a detriment for having raised protected acts or made protected disclosures.

[494]The claimant says that Mr Jones requiring him to address his response to a data breach during the investigation was victimisation and whistleblowing detriment.

[495]As we found above at paragraph 161, the claimant himself raised a confidentiality breach on 1 November 2022. On 2 November 2022 Mr Jones wrote to the claimant to say he was aware the claimant had raised these issues and asked him to set them out (paragraph 164 above). During the disciplinary hearing on 4 November 2022 the claimant himself again raised the redactions issue (paragraph 171b) above) at the start of the hearing. The only reference to Mr Jones raising the issue of data breach is his request to the claimant to delete the report (paragraph 171m) above).

[496]The claimant has not made out the factual element of his complaints on the evidence. The only requirement Mr Jones made of the claimant was on 2 November 2022 to set out his complaint (a reasonable request) and to delete an improperly redacted report at the hearing (again, a reasonable request). We do not conclude that Mr Jones made these requests because the claimant had done protected acts or blown the whistle. He was seeking clarity, in one instance, of complaints the claimant had made, and was asking the claimant to delete a document which, even on the claimant’s own case, he should not have received in that form.

[497]The claimant says, as acts of victimisation and whistleblowing detriment, Mr Jones and other respondents refused to provide witness statements.

[498]It is right to say that the respondents did not provide witness statements to the claimant. Both the respondents’ policies and the ACAS Code say that witness statements may be provided. Some other employers may have chosen to provide statements in a similar case. This employer, in a sensitive case, in which, by purporting to make redactions it was clearly alive to confidentiality issues, chose not to. As we have set out at paragraph 169 above, RX took the view that it would not provide witness statements as sufficient details had been set out in the investigation report, and this was contemporaneously internally recorded. Ms Meredith’s evidence that it was standard practice not to supply witness statement and that the investigation report set out the relevant evidence of the witnesses was not challenged.

[499]While providing witness statements early would have been preferable, we accept the contemporaneous and subsequent evidence of the respondents that these were the reasons why they chose not to supply witness statements. We do not conclude that the claimant’s having done protected acts or made protected disclosures had anything to do with this decision. There is nothing to support this beyond the claimant’s bald assertion.

[500]The claimant says that Mr Jones’s demand that he hand back the unredacted investigation report was detrimental treatment because he had made protected disclosures.

[501]We have touched upon this already. In terms of “handing back” the report, more accurately it was that Mr Jones requested that the claimant delete it. We consider nothing turns on this.

[502]The plain fact is that the claimant was supplied a copy of the report which the respondents intended should be redacted. The redaction failed. The claimant was therefore in possession of a document in the form it was not intended to be sent in. He was aware of the information that should have been redacted and he was subsequently supplied with a properly redacted report. All Mr Jones was doing was asking the claimant to delete a document he should not have received. That is why Mr Jones asked the claimant to delete it. The request was not a detriment, and had absolutely nothing to do with protected disclosures.

[503]The claimant says that the respondents failed to arrange a continuation of the part heard disciplinary hearing and that this was victimisation and whistleblowing detriment.

[504]As we set out at paragraph 171m) above, towards the end of the disciplinary hearing Mr Jones said “the next steps are for me to consider everything been said, to respond to questions you asked, and ultimately come up to a decision”. At paragraph 176 above we have made findings about the email Ms Meredith sent to the claimant on 7 November 2022 in which she made clear to him that he would remain suspended until the outcome of the disciplinary and grievance hearing, and that a decision would be sent to him by 9 November 2022.

[505]We do not conclude that the meeting was part-heard. There was no suggestion this was the case at the meeting itself, if anything the communication at that meeting and subsequently, suggested that the next stage was a decision. The claimant has not factually made out the elements of the complaint. Furthermore, we do not consider that the fact that the claimant had done protected acts or made protected disclosures drove the way Mr Jones dealt with things.

[506]The claimant says that the respondents invidiously redacted documents produced in response to the DSAR, and that this was victimisation and whistleblowing detriment.

[507]We have set out our findings on data protection issues at paragraphs 232-246 above. In particular, we have found that Ms Davies was satisfied that all redactions were appropriate, but some redactions could be lifted for reasons given.

[508]As Mr Forshaw submitted in his closing submissions, the documents supplied following the DSAR were disclosed pursuant to a DSAR and were not disclosure in these proceedings. The respondents were entitled to redact personal data.

[509]Ms Davies’s evidence about the appropriateness of the redactions, and the decision and reasons for reviewing the redactions was not challenged.

[510]We do not conclude that the respondent “invidiously” redacted documents. There is no evidence whatsoever to suggest that their approach to redactions under the DSAR was anything to do with protected acts or disclosures. The respondent has satisfied us with unchallenged evidence that redactions appropriate to a DSAR were made and then reviewed.

[511]The claimant says that Mr Engstrom, Mr Hugh Jones, Ms Smyth, Mr Ramage and “the companies” secretly recorded and or authorised and or afterwards condoned and further concealed recording of the appeal hearing. He says this was victimisations and whistleblowing detriment.

[512]Our findings on this issue again appear in paragraphs 232-246 above. The recording (or rather the use of AI to produce a transcript) was made by an individual working in the Philippines for a RELX Group company. None of the individuals named by the claimant knew anything about this. An investigation revealed the identity of the individual who had made the recording, and steps were taken to discipline him (though he resigned, accepting full responsibility for his actions).

[513]It is not right that the named individuals secretly recorded the appeal hearing. There is no evidence whatsoever that they condoned or further concealed the recording. The issue was investigated, there was an outcome and the claimant was informed in these proceedings. The claimant does not make out the factual elements of his complaint.

[514]Furthermore, there is absolutely no evidence linking the approach taken here to the fact that the claimant made protected disclosures or did protected acts.

[515]The claimant says that Ms Smyth, Mr Engstom, Mr Udow and the companies delayed providing him with his P45 following dismissal. He says this was victimisation and whistleblowing detriment.

[516]Our findings on this are at paragraphs 210 and 231.

[517]It can be seen that the claimant asserted in a lengthy witness statement in support of an application for an injunction that his P45 should not be issued to him and that if it were he would raise the matter to the SRA as misconduct by Ms Smyth. When he did seek his P45 it was provided without delay.

[518]Quite why, as the claimant alleges, RX’s General Counsel, its Chief Legal Officer and the CEO of the parent company would be involved in issuing P45s is not clear. Ms Smyth gave unchallenged evidence that the process is automated, and this strikes us as highly likely to be the case.

[519]The claimant was not subjected to a detriment, as he had indicated he did not want his P45. He was supplied one when asked. The respondents have satisfied us that the way they approached this was nothing to do with protected acts or disclosures.

[520]The claimant says that Ms Hill racially profiled him when she sought CCTV footage from the Roebuck, and says this was direct race, sex and age discrimination, and harassment related to those characteristics.

[521]Relevant findings appear at paragraphs 111-112, 116, 124g) and 157 above.

[522]It is right to say that Ms Hill referred to the claimant’s race, sex and age group in this email. It is right that she referred to the self-same characteristics of Ms King’s. Ms Hill is more or less echoing the description of the person Ms King had alleged had touched her inappropriately in her email of 29 September 2022. The claimant makes the point that the footage could have been identified without reference to his protected characteristics.

[523]We conclude that Ms Hill was not racially profiling the claimant. She was providing factual information that would help the pub locate relevant footage that could help the investigation. The pub would not have known the claimant’s name and she was providing a description that could narrow down the search and allow the pub to ensure that there was a proper basis for disclosing the footage having regard to its data protection obligations.

[524]In terms of direct discrimination, the claimant was treated the same as Ms King. There is nothing from which we could conclude that the description was because of the protected characteristics.

[525]The claimant was not aware of the email at the time and we conclude that it was not the purpose or effect of the email to violate his dignity or create (in shorthand) the requisite harassing environment. No reasonable person would have considered it as such.

[526]The claimant alleges that Ms Laporte, Ms Smyth, Mr Udow, Mr Engstrom and Mr Hugh Jones failed to give the claimant the notes of the meeting of 7 November 2022 which showed that Ms Laporte and Mr Jonathan Jones failed to investigate the complaint about the alleged Rwanda comment. He says this was direct race, sex and age discrimination and harassment related to these characteristics.

[527]Ms Davies clarified in oral evidence that the notes in question were ones that were not provided following a DSAR. Her evidence was that these documents were missed in an initial search, as can sometime happen with large searches, and this was a simple oversight.

[528]We also make the point that we have concluded on the evidence that the claimant had never made a complaint or grievance about the alleged comments of the bartender.

[529]On the one hand we have the claimant’s case that documents related to a complaint that he never made were not disclosed in a DSAR because of or related to his protected characteristics. On the other hand, we have the respondent’s case that this was an oversight in a large request. The latter seems much more likely. There is nothing from which we could conclude that the failure to disclose was because of or related to protected characteristics. The failure to disclose did not have the purpose or effect of creating the requisite violation of dignity or environment. The respondent has satisfied us that the failure to disclose was not because of any protected disclosure.

[530]The claimant alleges that the respondents failed to inform him of the outcome of his data breach complaint and associated disciplinary proceedings. He says this was direct discrimination on grounds of race, sex and age.

[531]We have set out the steps taken in relation to the data breach complaint at paragraphs 232 to 246 above. The claimant was told that the investigation had in fact established that the recording was made by a participant at the hearing.

[532]The claimant was not told about the identity of the individual who had made the recording, and how they had been dealt with. We are satisfied that this was to protect the confidentiality and data of the individual involved, and Ms Davies gave unchallenged evidence about this. There is nothing from which we could conclude that this was anything to do with the claimant’s protected characteristics. The respondent has satisfied us that the reason it provided, or did not provide, certain information was in no sense because of protected acts or disclosures. We note also that Ms King was told in her interview with Ms Laporte that certain information about how the claimant might be dealt with would not be shared with her.

[533]The claimant says that in an email of 3 November 2022 Mr O’Donoghue framed the claimant as a troublemaker and describing his conduct as “another example of aggression”. He says this was direct race, sex and age discrimination.

[534]Our findings (and to a large extent) our conclusions are at paragraph 166 above. We conclude that Mr O’Donoghue assumed, wrongly but perhaps understandably, that the claimant had set out Ms Jackman’s name incorrectly as an act of passive aggression. He had started to come to the conclusion that the claimant was being needlessly confrontational and in this instance Mr O’Donoghue saw confrontation here where there was none. There is nothing from which we could conclude that the claimant’s protected characteristics, or prior protected acts played any part in that misjudgement. In materially the same circumstances, where someone was perceived as confrontational in the manner in which they had sent extensive correspondence and had misnamed a colleague, but their protected characteristics were different, Mr O’Donoghue would have made the same mistake.

[535]The claimant says that by emails of 4 and 7 November 2022 Mr O’Donoghue, Ms Jackman, Ms Smyth and Ms Meredith arranged a “strat session to predetermine an exit strategy for a variety of false reasons. He says this was direct race, sex and age discrimination and victimisation.

[536]Our relevant findings are at paragraphs 172 and 179, but there is further context around those paragraphs.

[537]Our impression of the claimant’s case is that he sees such communications from Mr O’Donoghue as some sort of “smoking gun” that lays bare Mr O’Donoghue’s pivotal position as the guiding hand in mistreating the claimant and terminating his employment.

[538]We do not see things that way. A reading of the messages makes clear that Mr O’Donoghue was detached from the disciplinary process and not influencing it. If he had any influence, why, rhetorically, would he have needed to suggest meetings to explore an exit based on breakdown in trust and confidence, the claimant’s bullying behaviour, termination of probation etc. On the claimant’s case he was pulling Ms Laporte’s and Mr Jones’s strings, so there would have been no need to explore other options. He, on the claimant’s narrative, had already influenced them to uphold the investigation and dismiss the claimant.

[539]Additionally, the claimant was treating Ms Smyth in a way which she, not unreasonably, perceived as harassing. He was including her in a large amount of email correspondence, even after being requested not to. He was making what we see as unwarranted threats of professional complaints about Ms Smyth. What must also be remembered is that the claimant was still in his probationary period and was nowhere near acquiring the right not to be unfairly dismissed.

[540]In the circumstances, we see nothing untoward or out of the ordinary for Mr O’Donoghue to suggest to Ms Jackman, a fellow HR professional, that some sort of strategy session should take place with Ms Smyth (perhaps most affected by the claimant’s conduct) and employment counsel. We would go as far as to say that Mr O’Donoghue’s suggestion does not surprise us in the least, having regard to all the circumstances. Such a strategy session (which did not take place) would necessarily be after the disciplinary process had run its course.

[541]There is nothing from which we could conclude that Mr O’Donoghue’s suggestion had anything to do with the claimant’s race, sex or age or that he had done protected acts. Mr O’Donoghue suggested strategising with HR, General Counsel and employment counsel to discuss options for dealing with a probationer who was perceived to be conducting himself in a harassing way. We are satisfied that Mr O’Donoghue would have made the same suggestion in materially the same circumstances with a hypothetical comparator who did not share the claimant’s protected characteristics and who had not done protected acts. Stocktake

[542]Our conclusions on the above allegations are sufficient to dispose of the complaints of direct discrimination on all protected characteristics, harassment related to all protected characteristics, victimisation and whistleblowing detriment. We uphold none of those claims.

[543]The complaint of automatic unfair dismissal may need further clarification, though we repeat some of our conclusions. Automatic unfair dismissal

[544]In dealing with our conclusions relating to allegations 34, 35 and 36 above we have indicated that the reason why Mr Jones dismissed the claimant, and the reason why Mr Ramage did not uphold the appeal was because both accepted the account of Ms King and considered that dismissal was the appropriate sanction.

[545]Allegations 34 and 35 were pursued as complaints of whistleblowing detriment, and pursued against Mr Jones as a named individual respondent as well as against the employer. Allegation 36 was not pursued as a whistleblowing detriment claim, but we have set in the section dealing with that complaint our conclusion that Mr Ramage’s not upholding the appeal was in no sense because of protected disclosures.

[546]We have also set out our findings and conclusions that Mr Jones and Mr Ramage were independent decision makers and our conclusion that Mr O’Donoghue was not the Iago figure that the claimant paints him. We therefore focus on the decisions of the two decision makers, but are alive to the way the claimant puts his case.

[547]We consider that our conclusions in relation to Allegations 34, 35 and 36 almost certainly are sufficient to dispose of the section 103A ERA claim. But for the avoidance of doubt, and repeating those conclusions and our findings on the investigation, disciplinary and appeal process, we conclude that the reason that Mr Jones dismissed the claimant was that he accepted Mr King’s account and believed that the claimant had inappropriately touched Ms King in the manner she alleged. He further considered that dismissal was the appropriate sanction in the circumstances. Mr Ramage did not uphold the appeal as he was exactly of the same view as Mr Jones. The protected disclosures were not the reason or principal reason for the dismissal. The two decision makers were entirely focused on the evidence before them untainted by unlawful considerations.

[548]We have given consideration to whether there is anything else which might undermine the decision-makers’ stated reasons for deciding as they did. We have found nothing. We have remarked above that ideally the claimant would have been supplied with witness statements and the original complaint earlier. We have had regard to the different iterations of the investigation report. But we are not determining an ordinary unfair dismissal claim. These issues do not undermine our conclusion that the reason why Mr Jones and Mr Ramage made the decisions they did was for their stated reasons. We would observe that when an employer has concluded that someone in their employment probation has done what was alleged by Ms King dismissal is very highly likely to be the consequence.

[549]In the circumstances the section 103A ERA claim for automatic unfair dismissal is not well-found and is dismissed. Employer and individual liability

[550]The claimant has put before us a factually and legally complex claim about the identity of the employer and arguments about agency.

[551]We consider that none of the complaints are well-founded on their facts. We do not consider that we are shirking our responsibilities to determine the issues when we say that we consider that determining these complex matters is entirely otiose. We have concluded that none of the named respondents has acted unlawfully as alleged by the claimant. The legal capacity in which they are said to have operated is not going to change that. Time points

[552]As we have found none of the complaints proven we have not found any unlawful conduct extending over a period or any series of unlawful acts. In the circumstances we do not need to consider time points. Overall

Conclusion

[553]None of the claimant’s claims are well-founded and they are all dismissed. Approved by: