Mr U Mbonu v Secretary of State for Justice: 2301981/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 2301981/2022
Between
Mr U MbonuClaimantSecretary of State for JusticeRespondent
Before
Employment Judge N WilsonIn person for claimantMr A Jones (instructed by counsel) for respondentDate 24 March 2025
JUDGMENT
The complaint of direct race discrimination under Section 13 of the Equality Act 2010 is well founded and succeeds. The complaint of harassment related to race under Section 26 of the Equality Act 2010 is well founded and succeeds. The complaint of constructive unfair dismissal under Section 95 of the Employment Rights Act 1996 is well founded and succeeds The complaint of victimisation under section 27 of the Equality Act 2010 is not well founded and is dismissed The matter will be listed for a remedy hearing. Page 1 of 53
REASONS
[1]The Judgment in this matter was reserved as for a variety of reasons closing submissions concluded on 5 December 2024 following a 9-day final hearing. There was accordingly no time for the panel to deliberate and hand down a decision on the final day of the hearing. The panel also had to then accommodate suitable deliberation time which did not take place until January 2025. At the outset it was agreed we would hear evidence about liability and not remedy due to time constraints.[2]I apologise for the delay in providing this decision which was due to a combination of other judicial commitments and intervening periods of leave.
Background
[3]The claimant was employed by the respondent as a Prison Officer at HMP Swaleside from 18 June 2018 until his resignation on notice on 30 June 2023. His resignation took effect following a 4 week notice period on 27 July 2023.[4]There are 3 claims issued by the claimant. They proceed under case numbers: a) 2301981/2022 – ACAS early conciliation started on 28 April 2022 and ended on 8 June 2022. The claim form was issued on 10 June 2022 b) 2301459/2023 – ACAS early conciliation started on 6 March 2023 and ended on 31 March 2023. The claim was issued on 2 April 2023 c) 2304957/2023 – ACAS early conciliation started on 21 August 2023. The claim form was issued on 15 September 2023[5]The claims have been consolidated to be heard together.[6]The complaints being pursued under the following claim numbers are set out below: 2301981/2022 – issued 10 June 2022[7]Direct race discrimination – section 13 of the Equality Act 2010 (‘EqA’) 2301459/2023 – issued 2 April 2023[8]Direct race discrimination – section 13 EqA[9]Harassment related to race – section 26 EqA 2304957/2023 – issued 15 September 2022[10]Constructive unfair dismissal – section 95 Employment Rights Act 1996 Page 2 of 53[11]Direct race discrimination – section 13 EqA[12]The claimant’s case is that over a period of time he suffered treatment which amounted to direct race discrimination by fellow workers and employees of the respondent. He also asserts he suffered less favourable treatment because of his race and because he was ‘widely hated’ for a variety of reasons including his race and due to him complaining about numerous matters to the senior management team at the respondent. He believes he suffered harassment on the grounds of race and victimisation because of his grievance raised about Custodial Manager (‘CM’) Richardson. He considers there to have been a widespread hatred of him culminating in a false accusation about him being aggressive on a bed watch at Medway Hospital on 15 January 2023 (‘the bed watch incident’) which resulted in an investigation into allegations of misconduct on his part with the outcome of that investigation being a finding of gross misconduct and permanent exclusion from working for HMPPS (His Majesties Prison and Probation Service). As part of this investigation and disciplinary action into the claimant’s conduct the respondent included an earlier incident which occurred during a prisoner escort from hospital involving the claimant on 22 December 2022 (‘the taxi incident’). By the time of that investigation finding in August 2023 the claimant had already resigned from the respondent with notice on 30 June 2023.[13]The respondent’s defence denies the allegations. The respondent states: a) The claimant made generalised complaints about discriminatory conduct b) He was not ostracised from staff as alleged or treated differently because of his race but rather that he isolated himself by refusing to assist his colleagues. c) They say the manner and tone of his emails to the respondent raising issues was offensive and threatening. d) It is argued by the respondent the claimant has a proclivity to easily accuse insult and defame without merit or foundation in pursuit of his belief that he has been discriminated/victimised. e) He was investigated and disciplined for legitimate complaints and the investigation outcome justified the finding the gross misconduct and the sanction of a permanent exclusion from working for HMPPS. The respondent denies he was treated less favourably because of his race. f) The respondent denies a course of conduct which amounted to a repudiatory breach of the implied term of trust and confidence. They also assert the claimant affirmed the contract by continuing to work for them. Page 3 of 53 The Complaints[14]The claimant is making the following complaints: a) Constructive unfair dismissal - section 95 Employment Rights Act 1996 (‘ERA’) b) Harassment relating to race (pursuant to section 26 EqA) c) Direct race discrimination (section 13 EqA) d) Victimisation (section 26 EqA) Legal Framework Constructive Unfair dismissal[15]Section 95(1)(c) of the Employment Rights Act 1996 (‘ERA’) states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he or she is entitled to terminate it without notice by reason of the employer’s conduct. This form of dismissal is commonly referred to as ‘constructive dismissal’.[16]In the leading case in this area, Western Excavating (ECC) Ltd v Sharp 1978 ICR 221, CA, the Court of Appeal ruled that, for an employer’s conduct to give rise to a constructive dismissal, it must involve a repudiatory breach of contract. As Lord Denning MR put it: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’[17]In order to claim constructive dismissal, the employee must establish that: there was a fundamental breach of contract on the part of the employer the employer’s breach caused the employee to resign the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[18]In this case Mr. Mbonu relies on a breach of the implied term of trust and confidence. A course of conduct can cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident even though the last straw by itself does not amount to a breach of contract. Page 4 of 53 Direct Race Discrimination[19]Under s.13(1) of the Equality Act 2010 read with s.9 EqA, direct discrimination takes place where a person(a) (A) treats another(b) (B) less favourably because of a protected characteristic - in this case race- than that person treats or would treat others.[20]Under s.23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case.[21]In terms of the relevant legal framework, the matters which the Tribunal have had regard to when arriving at our decision are set out below.[22]We have considered the “mental processes” of the alleged discriminator pursuant to the case of Nagarajan v London Regional Transport [1999] IRLR 572.[23]This is often referred to as “motivation”.[24]A few points to note about motivation: a) Motivation is not the same as motive. A well-meaning employer may still directly discriminate. See, for example, Amnesty International v. Ahmed UKEAT 0447/08. b) Discrimination may be sub-conscious – people rarely admit discrimination, even to themselves. The point was put powerfully in Nagajaran: “All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. ……. Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.”[25]We have also considered ‘significant influence’ – that is that the protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic.[26]Decision-maker - It is important to identify the person who is alleged to have Page 5 of 53 acted with the discriminatory motivation.[27]In this case the claimant is identifying a number of people who have acted with the discriminatory motivation and relies on a number of allegations in respect of this complaint.[28]We have when arriving at this decision considered the motivation of those he alleges made the racist remarks and those who are alleged to have been involved in the conduct alleged at paragraph 4.2 of the agreed list of issues.[29]The burden of proof provisions are contained in section 136 of EqA.[30]There are two analytical stages to this, and we have considered this accordingly. Guidelines on the application of the burden of proof provisions were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142. Although this concerned sex discrimination under the Sex Discrimination Act, the key principles still apply. A more recent EAT decision has restated the Igen guidance and emphasized its continuing importance: Field v Pye & Co [2022] EAT 68.[31]Essentially if there are facts from which a Tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the Tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision. We have taken these guidelines into account when arriving at our decision.[32]At Stage 1, there must be primary facts from which the Tribunal could decide – in the absence of any other explanation - that discrimination took place.[33]Note the word, “could”. All that is needed at this stage are facts from which an inference of discrimination is possible. As it was put in Madarassy v Nomura International Plc [2007] EWCA Civ 33 , primary facts are sufficient to shift the burden if ‘a reasonable Tribunal could properly conclude’ on the balance of probabilities that there was discrimination.[34]At Stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 Royal Mail Group Ltd v Efobi [2021] UKSC 22[35]At this stage of the test, the employer’s explanation is disregarded.[36]In other words, after making our findings of fact the Tribunal will ask itself ‘if these things had happened and there was no explanation for them, could we find discrimination’?[37]It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required.[38]We have therefore made our primary findings of fact following which we have considered whether the burden of proof has shifted to the respondent and if the Page 6 of 53 burden shifts to the employer, we move to Stage 2 and consider the employer’s explanation. Has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason?[39]The Igen guidance makes two points in particular about Stage 2: a) The employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. b) Because the evidence in support of the explanation will usually be in the possession of the employer, Tribunals will expect “cogent evidence” for the employer’s burden to be discharged.[40]It is to be noted that, in a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably.[41]Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar [1998] IRLR 36, HL. Harassment Definition:[42]The EqA, creates three technical definitions of harassment.[43]In this case there has to be unwanted conduct related to the claimant’s protected characteristic of race.[44]The relevant section of the EqA for the purposes of this claim is: Section 26 Equality Act 2010:(1) A person (A) harasses another (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.(2) 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; Page 7 of 53 (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. Unwanted conduct[45]It is important to note that just because a claimant may have laughed along with any harassment, that it was not unwanted. Equally, just because the claimant did not reject the harassment or take a grievance, does not necessarily mean it was unwanted. There are many reasons why someone may feel it is too hard to speak out or waits until they have nothing left to lose. Related to a protected characteristic[46]The first type of harassment is “related to a… protected characteristic”. The phrase is relatively wide. It allows for a looser connection between the conduct and the protected characteristic than the “because of” test in direct discrimination.[47]Unlike with direct discrimination, it is not necessary to consider whether the alleged perpetrator would have treated someone without the relevant protected characteristic in the same way. Nevertheless, it is still useful evidence if it is shown that the perpetrator would not have done so. Purpose or effect[48]Unwanted conduct comes within section 26 if it is either purposefully intended to violate dignity or create the relevant environment; or it has that effect. Harassment may therefore be intentional or unintentional. Violating dignity/Creating an intimidating etc environment[49]Each type of harassment has the purpose or effect of either violating the employee’s dignity or creating one of the kinds of environment listed in section 26. Proscribed effect: two-step test[50]Most harassment complaints are brought on the basis that the unwanted conduct had the effect of creating the relevant adverse environment. Section 26 has been interpreted as creating a two-step test for determining whether conduct had such an effect. The steps are: Page 8 of 5350.1 Did the claimant genuinely perceive the conduct as having that effect?50.2 In all the circumstances, was that perception reasonable? (Pemberton v Inwood [2018] EWCA Civ 564 ) Victimisation Section 27 Equality Act 2010: (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 Protected acts[51]Protected acts are defined in subsection (2) as:51.1 Bringing proceedings under EqA51.2 Giving evidence or information in connections with such proceedings51.3 “doing any other thing for the purposes of or in connection with this Act” and51.4 “making an allegations (whether or not express) that A or another person has contravened this Act”.[52]The claimant in this case relies on the protected act of submitting a grievance against CM Richardson on or around 1 January 2022.[53]It is not a protected act to make a false allegation in bad faith.[54]The claimant is not protected against victimisation for simply complaining about unfairness in a general sense.
The Issues
[55]The issues the Tribunal will decide are set out below. Witnesses[56]We heard sworn evidence from the following witnesses. All witnesses were called on behalf of the respondent (save for the claimant). Whilst a statement was included in the bundle from Mark Hodgkinson, he was not called to given oral evidence. The Tribunal places limited weight on his statement in Page 9 of 53 circumstances where his evidence is not able to be tested by way of cross examination. Mr Mbonu Jenny Louis Cassandra Chapman Lee – Ann Williams Matthew George Steven Blanche Michelle Hodgkinson Duncan Gow Alex Reynolds Jamie Hawkes Abbie Gardner Adam King List of Issues[57]We refer to the agreed List of Issues at pages 27 – 34 of the respondent’s opening note. We discussed the list of issues at the outset of the final hearing. The list of issues and matters we heard evidence about was agreed as set out at pages 27-34. Para 6.1.1 of the List of Issues should read ‘work’ in certain areas not ‘walk’ under the victimisation complaint and both parties agreed to this. This was amended by consent. Preliminary Matters[58]We had a 1860-page main hearing bundle, a 127-page witness statement bundle and as of day two of the hearing a 189 page supplemental bundle.[59]Mr Jones had helpfully prepared a chronology (19 pages) and cast list (5 pages).[60]Mr Jones had also in an effort to assist the claimant who is unrepresented prepared what is titled ‘Respondent opening note’. This sets out the relevant applicable law for the benefit of Mr Mbonu. It also includes from page 27 – 34 the List of Issues which the Tribunal will be making decisions about.[61]It became evident that the list of issues was different to the list of issues set out in the case management order of Employment Judge Rice Burchell dated 13 February 2024. The previous case management order requested the claimant to provide further information. The list of issues which appears in the case management order of Employment Judge Rice Burchell appears not to have been the final one. The list of issues which appears in the respondent's opening note has items added in blue and red text which Mr. Jones informs me the respondent does not object to being included. The claimant made allegations Page 10 of 53 that Mr Jones was not being truthful and informed the Tribunal that there were e-mail exchanges between him and the respondent’s representative where he had attempted to include matters within the list of issues, but the respondent’s solicitors had intentionally removed ‘expunged’ them from the list of issues which appears before us today.[62]After some discussion it became evident that the list of issues has not been agreed. Mr. Jones had no involvement in the prior case management hearing. The case management order of EJ Rice Burchell is at page 101. In direct response to that order and the request for further information the claimant filed a document found at page 113. The respondent has taken this to be the claimant's first set of further and better particulars. I note however Employment Judge Rice Burchell did not ask the claimant to file further and better particulars, simply that there is a request for further information about 3 specific matters. It appears the respondent then queries this document on receipt, and this results in the claimant submitting a shortened version of the further and better particulars found at pages 140 to 149 of the bundle[63]The claimant appears to have believed that he could simply add allegations without them potentially requiring an amendment application. I explained that if the allegations he is saying do not appear in the list of issues are new allegations which did not appear in his original ET1 claims forms and/ or could not be reasonably inferred from the ET1 claim forms and they were not discussed at the previous preliminary case management hearing, and therefore do not appear in the List of Issues set out in that previous record of that preliminary hearing, they are likely to require a amendment application .[64]Unfortunately, there were disclosure issues, and an amendment point which had therefore not been dealt with prior to this final hearing which we had to address as preliminary matters. To be fair to the claimant he had been writing to the Tribunal and the respondent raising issues with disclosure not being complete.[65]I expressed my dissatisfaction with the respondent’s representative’s failing to bring to the Tribunal's attention before the final hearing that there remained an issue between the parties with the List of Issues not being agreed and/ or a disclosure dispute. Ideally such matters should have been dealt with at a preliminary hearing. Given the claimant is not legally represented the respondent’s representatives ought to have known not to leave such matters to the final hearing.[66]Given the allegations raised by Mr Mbonu about disclosure and documents that he wanted to be in the bundle not appearing in the bundle and there being a dispute about the list of issues I asked Mr. Jones to ensure that on day 2 of this Page 11 of 53 final hearing a representative from the respondent’s solicitors who is familiar with the background attends to assist the Tribunal.[67]I asked Mr. Jones to ensure that the respondent’s representative confirms what disclosure requests the claimant has made and what remains outstanding. We wanted to understand what the respondent’s position was in respect of any outstanding disclosure because the claimant is stating his requests have not been responded to. I reiterated both parties’ duty to the Tribunal and the overriding objective as well as a duty to cooperate with each other. I also reiterated both parties’ disclosure obligations. However, we needed to understand the respondent’s solicitors’ position before assessing the matter further. The respondent's representative was asked to send a list of all documents which the claimant has requested and says should be in the bundle and the respondent is to clearly set out its position insofar as whether those documents exist, have never existed, have existed but are no longer able to be located and/ or any arguments about relevance of the documents requested.[68]At the same time, I explained to the claimant if any additional allegations he wishes to add to the list of issues are new allegations which will require an amendment application, then there are a number of factors which we will have to take into consideration when assessing whether to permit the application. I informed him those factors include considering the nature of the amendment and whether the amendment sought is one of minor matters or is a substantive alteration pleading a new cause of action, the applicability of time limits and to consider whether that complaint is out of time and if so whether the time limit should be extended and the timing and manner of the application. It is relevant to consider why the application was not made earlier and why it is now being made. In those circumstances first of all I proposed that we cross reference the list of issues set out at page 27 of the respondent’s opening note with pages 140 -149 of the main hearing bundle and the claimant needs to inform us which new allegations set out at pages 140- 149 he wants to include in the list of issues and we will then hear from the respondent as to whether they consider those require an amendment application or not. We will then inform the parties how the amendment application will need to be dealt with. Amendment[69]Mr Mbonu gave the following additional allegations he wants to add to the list of issues: a) He was not invited for a resignation meeting. The claimant says he should have been invited to a resignation meeting between 30 June 2023 and the last day of work - this allegation is related to his direct race discrimination complaint. Page 12 of 53 b) Officer T Owens called the claimant a ‘fucking black c*nt’ sometime in 2021 in Charlie Wing (the claimant cannot recall the month) – direct race discrimination complaint, harassment complaint. c) That he suffered less favourable treatment than Sophie Waddell and Sean Evans – comparators – in relation to the gross misconduct finding made against him. Mr Mbonu states Sean Evans left an escort’s bag in hospital without the same consequences as the claimant for similar conduct, but the claimant’s similar conduct was treated as gross misconduct by the respondent. He argues others did exactly what he did when on escorts but were not disciplined for gross misconduct -relates to direct race complaint, victimisation complaint. d) The claimant complained to the respondent about zero percentage diversity from middle to upper management and when he approached the governors about this they showed a lot of anger. The claimant said he made such complaints from 2019 to 2022 starting with Simon Drysdale, Duncan Gow, Lee Ann Williams, Governor Matthew Judge, Mark Icke – relates to direct race complaint, victimisation complaint. e) The claimant complained to the governor and deputy governor between 2020 and 2022 that career opportunities were hijacked by the senior management team – relates to direct race victimisation and harassment. f) The detailing of tasks was unfairly done – because he was black he was not allowed to work in certain areas - relates to direct race discrimination complaint.[70]The respondent’s position in relation to the allegations cited above by the claimant are that they have never been pleaded by the claimant previously and require an amendment application. The respondent asserts the allegation involving Mr Owens prejudices the respondent as he is not called as a witness. The respondent also asserts some of the allegations are not easy to understand and not specific enough (for example, ‘hijacked by senior management team’). The respondent argues the claimant is taking a scattergun approach. Disclosure and Documents in the bundle[71]There were a number of documents the claimant asserts are deliberately not being disclosed and kept out of the main hearing bundle. It is troubling that a hearing bundle which runs to almost 2000 pages is contended to still have relevant documents missing from it. This certainly begs the question what has been included in the bundle. The claimant asserts he has made numerous Page 13 of 53 requests to the respondent’s representative, and they have not replied/failed to address them.[72]We spent much of the first day dealing with the List of Issues and the disclosure issues. At the end of day one I asked the following of the parties:a. The claimant is to forward a list of the documents he says ought to be in the bundle by tomorrow morning to the respondent’s solicitors. This will then be sent to Mr Jones and Mr Jones is to ensure he obtains a response to the requests from the respondent’s solicitors.b. The claimant is to be sent a copy of the full main hearing bundle as he appears to have an older version which is incomplete.c. We want a representative from the respondent’s solicitors to be here tomorrow from midday to answer any further issues so we can avoid any delays going forwards. Someone needs to attend to respond to any matters which may arise regarding the history surrounding disclosure and the List of Issues.d. Any documents which are in issue as being available but not relevant need to be put in a supplemental bundle and ready to be made available for us in case we do admit them to avoid delay tomorrow. Witness orders[73]The claimant states that he sent emails to the Tribunal for witness orders, and he was ignored. He wants witness orders especially for Simon Richardson a respondent witness to attend to give evidence. I said I cannot make the respondent call witness evidence from someone as they can choose whose evidence they rely on to respond to his allegations. If he wants me to order someone to give evidence on his behalf, he will not be able to cross examine his own witness. This was accordingly not pursued any further.[74]The claimant said before we finished day one that he had thought about what I had said about the amendment application, and he would not be making the amendment application as the last 6 years have been really bad for him and he could not bear further postponements. I informed him he has had to take in a lot of information today and we wanted him to therefore think about it overnight and come back tomorrow to let us know if he wanted to make the application to amend. I had warned the parties when the amendment point came up if that application causes this final hearing to be adjourned because the respondent would need to be given the chance to respond to any new allegations permitted (if the application was successful) then we are likely to be looking at a listing date of sometime in 2026 perhaps even 2027 for a 9/10 day hearing (more witnesses are likely to result in a longer listing). This is one of the factors we will be weighing up when assessing the balance of prejudice and hardship as this impacts both parties getting a fair hearing with the further passage of time impacting memories and the cogency of the evidence. Page 14 of 53[75]The claimant on day 2 of this final hearing confirmed for the Tribunal that having considered the matter over night he still does not wish to make the application to amend the claim. He also raised he was not mentally fit and has had to deal with a lot and did not want anymore delay. Having satisfied ourselves that the claimant was well enough to represent himself during the hearing we continued. It is evident that representing himself was inevitably stressful for Mr Mbonu. We gave him the opportunity to speak to his GP and informed him we could take a break during this hearing to accommodate this if he felt it necessary to seek an adjournment. He confirmed he was able to represent himself. It was also evident during his cross examination of one of the respondent’s witnesses in particular that the proceedings were taking their toll and at one point he was visibly upset and emotional. We permitted a break and cleared the hearing room save for Mr Jones the claimant and panel. We again satisfied ourselves that Mr Mbonu was able to proceed with representing himself and ensured he knew he could ask for breaks at anytime. We also ensured suitable breaks were taken.[76]It was also evident Mr Mbonu had not only a lot of mistrust for the respondent and their witnesses but also the respondent’s legal representatives. At several points during the preliminary matters being discussed he accused Mr Jones (counsel) and the solicitors acting for the respondent as not being truthful and he was seemingly convinced of there being deliberate attempts by those representing the respondent as being untruthful. Deliberately hiding or ‘doctoring’ emails and/or of trying to confuse him and/or mislead the Tribunal. I had to remind Mr Mbonu on a number of occasions at the outset of the hearing the legal representatives are separate to the respondent and have professional obligations and codes of conduct and that we would not entertain such allegations without serious evidence given their duty as professionals is to assist the Tribunal. The claimant (given the issues and background to this claim perhaps somewhat understandably) believes there are no lengths the respondent will not go to. However, we are satisfied his behaviour was not scandalous and/or vexatious simply that he was at times extremely emotional overwhelmed and stressed by the process. This has not been assisted by the respondent leaving matters such as the disagreement about disclosure and the list of issues not being agreed and finalised to the final hearing. This inevitably compounded Mr Mbonu’s perception that they were trying to ‘get one over him’ as he was not legally represented. He also felt their disclosure (the main bundle being almost 2000 pages) was a deliberate attempt to make it difficult for him to find what was and was not relevant and /or not included and disclosed. Some of the claimant’s disclosure requests had clearly been relevant to the issues and it was frustrating the respondent did not take the time to provide the same level of information in response to the claimant at the time he made the request that they were clearly able to provide once I asked them to on day one of this hearing. I reminded both parties of the overriding objective and their duty to cooperate with each other and to assist the Tribunal. Page 15 of 53
Findings of fact
[77]The relevant facts are as follows. Where we have had to resolve any conflict of evidence, I indicate how we have done so at the material point. References to page numbers are to the main hearing bundle (1860 pages) the supplemental bundle (189 pages) and the witness statement bundle (127 pages). We have considered all the oral evidence heard and the documents referred to in the bundles insofar as they are relevant to the issues. I only refer to as much of the evidence as is necessary to explain our decision. I will deal with each complaint and allegation in turn. Harassment related to race (Equality Act 2010 section 26)[78]Did the respondent do the following things:a. Was the claimant subjected to racist comments at work? The claimant relies on the following:b. In 2020 (the claimant does not remember the exact date), he was told by a colleague that witnessed it that Alex Reynolds called him a “black c@nt”; (allegation 4.2.9.2 of the List of Issues)[79]This comment is alleged to have been made in June 2020 (page 123). Mr Mbonu did not hear the comment himself. The claimant has refused to name the officer who informed him that he had heard this comment. We accept he did so to protect him. We have no evidence from that colleague.[80]From the evidence heard the alleged comment must have been made in or around June 2020. The claimant did not bring the claim pleading a harassment complaint until his ET1 which was issued in April 2023.[81]Mr Mbonu accepted in evidence he had kept this information to himself for a period of time. It was raised in an email on 31 January 2022, and this triggered a meeting taking place between the claimant and Governor Gow on or around 1 February 2022.[82]The claimant’s evidence about this comment and why he has chosen to protect the identity of the officer who gave him this information is credible. It is clear from the email communications Mr Mbonu starts off by raising the issues (many of which are now before us to determine) in a calm and measured manner but becomes increasingly agitated and what could be argued as asserted by the respondent as ‘offensive’ as time passes. This is evident in the email of 31 January 2022 which sets out in polite terms how he feels he has been treated and that such treatment was racially motivated and that he was hated. Page 16 of 53[83]The respondent refers to the claimant being offensive and threatening in his emails. We consider that context and what has led up to those more hostile emails is important in this case.[84]Mr Jones referred to the claimant not raising this with Alex Reynolds who is alleged to have made the comment and the fact that the claimant continued to work with him. We do not consider it unusual that a person who is informed a racist remark was made about him would not wish to have any conversation or confrontation with the person who is alleged to have made that racist remark. Mr Mbonu attempts (after a period of time where he feels he has had to put up with a lot of ‘abusive’ behaviour) to raise these issues with his employer.[85]Mr Reynolds in his oral evidence denied making this racist remark. He also stated that he verbally complained about the claimant to his line managers CM Richardson and CM Hance regarding the claimant’s work ethics. His evidence is that he had to challenge the claimant’s work ethics ‘multiple’ times. However we do not find that it is credible that if you have an officer you have had to challenge on ‘multiple’ occasions and as stated in his witness statement ‘ I found he never completed all assigned tasks and failed to complete simple tasks’ and he also ‘failed to assist in restraints’ there would be no documentary evidence of this nor any formal action taken. As Mr Mbonu’s manager at the relevant time on Charlie Wing if his performance and work ethics were of such concern it would be reasonable for Mr Reynolds to have escalated such concerns to his line managers. We are troubled by there being a lack of evidence to support this. Similarly, we were not satisfied with Mr Reynolds’ evidence that he was told by CM Richardson and CM Hance (in response to his verbally informing them of these alleged concerns about the claimant) that they would speak with him. There is no evidence of those line managers having taken any such action nor any documentary evidence of any outcome to any such conversations which we would expect to exist. Mr Reynolds’ evidence, if it was to be accepted, therefore would also mean both CM Richardson and CM Hance did nothing to address the concerns he raised. We find his evidence in this regard to be implausible and are satisfied that had there been concerns about the claimant’s work ethics to the extent described by Mr Reynolds this would have been addressed formally, and the respondent would be able to adduce evidence to support the assertions being made by Mr Reynolds.[86]In this regard we also take note of the evidence in the bundle where the claimant is praised for his work and ability set out below; a) redacted email page 1752 which is unfortunately anonymised and unhelpfully undated but assists with supporting the claimant that he was identified as being a good officer following observations in supporting healthcare. b) email from Karen Earl (page 609) dated 26 July 2022 who had conducted a quality assurance check for an escort which took place on 14 July 2022. She Page 17 of 53 expresses she was impressed with the content and detail of his entries and that she ‘had not seen a PER completed to this detail for a while’. c) email from Liz Baker dated 8 July 2021 (page 250) who states she wanted to express her thanks to the claimant who was on a bed watch with her and there was a resident who was displaying inappropriate behaviour towards her and the public. She states, ‘I was truly grateful for Officer Mbonu’s professional and authoritative conduct which helped control and resolve the incident quickly and with minimal attention and disruption to the rest of the ward’. d) Email from Duncan Gow dated 12 February 2020 thanking the claimant for his vigilance and observation of the subject ‘RM’.[87]Whilst accepting Mr Reynolds’ evidence covers when the claimant was moved onto Charlie Wing from 2020 his assertion that the claimant’s work ethics were questionable is not supported by the above more general positive feedback about the claimant. Nor do we find it plausible that had there been such serious concerns about the claimant’s performance and work as alleged by him these would not have been formally escalated and that there would be some form of documentary evidence of this.[88]Mr Reynolds admitted is his statement he may have called the claimant useless.[89]We did not find Mr Reynolds to be a credible witness however in the absence of hearing from the officer who heard the comment we are in difficulty in finding that on balance the comment was made as alleged. We find there is insufficient evidence in respect of these words being said by Alex Reynolds to make a positive finding of fact that the words alleged were said by Mr Reynolds. The claimant has not discharged his burden of proof in relation to this allegation. In February 2022 (The claimant does not remember the exact date), he was called a “lazy black c@nt” by Mark Ackland; (allegation 4.2.9.2 of the List of Issues)[90]A prisoner (‘JPL’) informed the claimant about this being said by Mark Ackland in front of the prisoner. Officer O Gonzales reported the comment made by Mark Ackland. The comment was made in February 2022. The claimant was made aware of it by the prisoner in March 2022.[91]Whilst Mr Jones implied in cross examination the claimant in his claim refers to the comment being one of a ‘useless’ black c@nt as opposed to lazy black c@nt it is evident throughout the claimant refers to having been called lazy and useless at various times. We know Mr Reynolds for example admits he called the claimant useless. In any event what we are satisfied about is the comment as it pertains to the ‘black c@nt’ element was made by Mark Ackland. Page 18 of 53[92]Officer O Gonzales clearly was satisfied there may have been merit in the prisoner’s disclosure of this information to have formally reported it via the intelligence report (‘IR’) procedure.[93]The respondent did not inform the claimant of this intelligence report. He heard the information from the prisoner.[94]The claimant then sent an e-mail to Karen Earl about the racial abuse dated 9 March 2022 (page 1607).[95]It is notable the respondent has adduced no evidence of this serious formal allegation having been responded to at all by Karen Earl or anyone else. This we consider goes a considerable way to support the claimant’s overarching allegations of being ignored and treated badly. It also goes a considerable way to show the degree to which language and comments like this were perhaps not out of the ordinary nor indeed treated as unacceptable. It is troubling even in an environment such as this where we accept there would be bad language used, no doubt in particular by prisoners but as well by officers, there appears to be an unusual tolerance for such offensive and obviously racist remarks. Had there been a clear culture of non tolerance of such language, certainly between employees, we would have expected some immediate action and the respondent being able to demonstrate this. They have not been able to particularly in this instance. This inaction goes some way to rebut the respondent’s witnesses who in oral evidence stated they would challenge such remarks if they heard them. We are not convinced of this given the way in which the respondent dealt with a number of matters raised by the claimant.[96]We do not know what happened to Mark Ackland – the respondent’s lack of evidence about this is telling.[97]The claimant later discovered he was able to report such a matter to the police as it can constitute a criminal offence if proven. Whilst the respondent alluded in cross examination to there being no other evidence to support this other than hearsay from the prisoner we do not agree. It is clear the claimant reported the alleged comment to the Kent Police in November 2022.[98]Kent police interviewed Mr Ackland under caution following which a decision was made to refer the matter to the CPS for a decision about charging him with an offence. It is further notable that the email from Kent Police (dated 4 August 2023 – page 1720) clearly confirms there was sufficient evidence for the CPS to be satisfied there was enough evidence to support an offence under the Racially Aggravated S5 of the Public Order Act had taken place. There is a statutory time limit of 6 months for this offence to be prosecuted and as such the matter had timed out. Where the CPS and police were both satisfied having interviewed relevant parties and witnesses that the offence had occurred, we are persuaded Page 19 of 53 that the allegation made by the claimant is proven. We find that Mark Ackland did make this racist remark about the claimant. In 2022 (The Claimant does not remember the exact date), the Claimant’s supervisor (S Blanche) called him a “dirty, money- grabbing c@nt”. (allegation 4.2.9.4 of the List of issues)[99]The claimant in cross examination accepted (when referred to paragraph 50 of his witness statement) this comment was overheard by him on 8 July 2021.[100]We find he was present in the CM’s office and overheard Mr Blanche talking about him. We also accept the claimant reported it to his then line manager CM Richardson, but that CM Richardson did not deal with it.[101]The claimant reported a number of matters in an email dated 31 January 2022 in which he is raising the fact he has not received a reply to his grievance against CM Richardson (raised on 1 January 2022). Whilst he missed out the word ‘black’ in this email we do not find this means this is not what was overheard by him. This email is raising a grievance against Mr Richardson and the reference to racial language and abusive language is given as background by Mr M Mbonu to say what treatment he is suffering and how it is affecting him. He does not indeed specify who said what and when and therefore we are satisfied that the absence of the word ‘black’ in this email does not mean it was not said. At this time the grievance was about CM Richardson.[102]Indeed, it is evident in Mr Mbonu’s emails from the time he raises his grievance he is consistently saying he has been suffering with racist treatment and abusive language for a number of years which he hoped would abate. It is easy to see when attempting to recall all of them in often lengthy emails about other matters (such as the grievance against Mr Richardson) not all the detail is there.[103]At page 1107 the claimant does record in a detailed letter this particular comment and does refer to being called a ‘dirty money- grabbing black c@nt’. This wording is also referred to by the claimant in his email (page 1195) to Marie Rae dated 23 March 2023.[104]Overall, we found Mr Mbonu to be a credible and honest witness. It was clear that he may have become fixated on certain matters which have not been relevant to his complaints and found the process stressful and at times overwhelming. However, this was not incongruous with the serious nature of the allegations and treatment he alleges to have suffered. We also consider that due to cultural differences and English not being his first language the manner in which he may have presented some of his allegations and arguments could Page 20 of 53 easily be misconstrued as being offensive particularly when coupled with his evident increasing agitation with the respondent as matters progressed following his initial grievance. Context is key to understanding how Mr Mbnuo presented not only in emails to the respondent but also during the course of this hearing. We found Mr Mbonu could at times appear difficult, but we found him to be honest.[105]We heard oral evidence from Mr Blanche (Senior Officer – ‘SO’) and we did not find him to be a credible witness. On the one hand his evidence is that the claimant isolated himself from everyone, but he was evasive when asked about whether he saw the claimant being ostracised. He did not give a direct answer simply saying Mr Mbonu was very quiet. This also does not accord with the picture the respondent seeks to paint of Mr Mbonu as threatening and indiscriminatory in his accusations. He also stated that whilst it was not the kind of language he would use that he did hear officers use the word ‘c@nt’ but ‘not in an offensive way’.[106]We find prison officers would use language such as ‘c@nt’ in the workplace. We also find SO Blanche considered it was used in a ‘joking’ and not offensive manner. We find this language was considered acceptable by SO Blanche. There being no indication in his evidence that he felt it was inappropriate nor is there any evidence from him that he raised the use of such language as inappropriate when used between co workers.[107]We also find Mr Mbonu had informed SO Blanche (given he accepted this in evidence) ‘you all think I am a c@nt’. We do not find that SO Blanche took any real action about this. This is also in direct contradiction to the evidence of SO Blanche that it was Mr Mbonu who isolated himself. We find it more likely that the claimant was isolated as he asserts. Here he certainly demonstrates by making this comment to SO Blanche that this is how he feels he is perceived by his colleagues. This we find supports the claimant’s assertion that he was ostracised and after being treated this way kept himself to himself rather than he was isolating himself for some unknown reason.[108]If the claimant isolated himself and did not support and/or assist his colleagues as asserted by a number of the respondents witnesses, it is difficult to understand why no one addressed this formally with the claimant. The claimant after all had been employed since 2018.[109]This alleged comment was made on 8 July 2021 and on the same date SO Blanche completed an Assessment Care Custody and Teamwork review (an ACCT) on a prisoner. This prisoner informed SO Blanche he had started a fire in his cell on 7 July 2021. This was not recorded in the observation book. SO Blanche informed CM Richardson that Mr Mbonu had been the officer who dealt with the prisoner at the time of the fire. SO Blanche states he had no further Page 21 of 53 involvement with this. It is not entirely clear on what basis SO Blanche ‘noted’ and informed CM Richardson that Mr Mbonu had been the officer dealing with the prisoner. Mr Richardson sends an email to Abbie Gardner dated 9 July 2021 (page 254) stating the prisoner gave him Mr Mbonu’s name as the officer who opened the cell door, told him to put out the fire and then walked away.[110]The investigation of the fire incident (page 297) signed off on 9 August 2021, clearly records the CCTV of 7 July 2021 shows no smoke coming out of the relevant cell or anything which indicates there was a fire burning or had been burning inside that cell when Mr Mbonu opens this cell door. It is further notable that the CCTV of CM Richardson attending the same cell on 8 July 2021 (following SO Blanche’s notification to him of the cell fire) disclosed the prisoner never mentions officer Mbonu. However, CM Richardson’s email reporting officer Mbonu dated 9 July 2021 clearly states the prisoner ‘said that Officer Mbonu told him to put it out, Officer Mbonu then walked away after opening the windows at the end of the landing’. This is clearly a false record of the conversation between CM Richardson and this prisoner given the subsequent investigation findings. What is of concern is that despite serious inconsistencies between CM Richardson’s account in his email and the findings of the investigation CM Richardson is neither interviewed further nor are any disciplinary steps taken against him (even when it is established he clearly lied about a meeting having taken place between him and the claimant he was permitted to work for another 4 months without any disciplinary action for such a serious matter). It is troubling that whilst dereliction of duties are (understandably) thoroughly investigated and disciplined as against Mr Mbonu the same cannot be said of Mr Richardson. It is not difficult to see in those circumstances how Mr Mbonu has over a period of his employment began to feel that there is a ‘witch hunt’ against him and that he is targeted and treated differently to others. It is therefore similarly not difficult to see how that difference in treatment (given in particular the language we have found was used against him by his colleagues) was related to his race.[111]We find SO Blanche did not establish what time the fire was alleged to have been started, nor which officer was alleged to have been involved before reporting officer Mbonu. Again, this supports the claimant’s views that he was being targeted particularly given the outcome of the investigation into this incident.[112]We accept the claimant’s evidence that he overheard Mr Blanche use these words about him. We prefer the account of Mr Mbonu as being the more likely version of events. We accept that the claimant originally left the word ‘black’ out of the allegation until his witness statement. We take note the claimant is not legally represented and on balance we found his version of events and his evidence on this point more credible. Page 22 of 53[113]We have found that SO Blanche and Officer Ackland did use the alleged language about Mr Mbonu. We find this was clearly unwanted conduct. We find given the terms used it clearly related to race. We find the conduct not only had the purpose of violating the claimant’s dignity or creating an intimidating hostile degrading humiliating or offensive environment for the claimant, but it also most certainly had this effect. Taking into the account the nature of the language used it was reasonable for the conduct to have that effect on the claimant.[114]In so far as any time limit points arise for the harassment (and any other discriminatory complaints) which may be out of time, we exercise our discretion to permit an extension of time for these complaints under section 123 of the Equality Act 2010. The discretion to extend time is a wide one. We have taken note that the respondent has not been prejudiced as they have been able to adduce evidence to defend these allegations. The length of the delay has also been considered and the reasons for it. Context is everything and, in this case, it is clear Mr Mbonu first attempts to resolve matters by raising his allegations with his employers. He clearly initially believes they will investigate them. There are clearly numerous allegations being raised. The claimant does not issue his first claim until June 2022. He is not legally represented, and it is not difficult to see that he does not know how to correctly label the allegations being made. He makes a general reference to ‘harassment’ and race discrimination in the first claim form. He clearly also states in that claim form he has tried difference avenues to seek justice. The claimant’s delay is largely because he is trying to resolve matters internally with the respondent. He also does not have legal advice and states no one would assist him at the respondent including union reps. There are not insignificant delays on the respondent’s part in addressing his complaints and/or investigating them. We have considered the balance of injustice to the parties in permitting/not permitting the extension and take note the respondent has been able to adduce evidence to fully defend all the allegations made in this case. We found there was no forensic prejudice. Allegations of discrimination and harassment were raised by the claimant to the respondent – they had an opportunity to investigate them more contemporaneously. They have been able to adduce oral evidence and documentary evidence in relation the allegations. We have found the balance of injustice and hardship on the facts of this case tip in favour of permitting the extension. The claimant would be denied the opportunity to proceed with his discriminatory complaints if the extension was refused. The respondent conversely has been able to fully respond to and defend the discriminatory conduct. They also have the benefit of a large internal investigation into the allegations having been conducted in June 2022 by Cindy Henson with a number of relevant witnesses being interviewed which is documented and relied on by them in evidence. An extension of time is accordingly permitted for the claims to proceed. Page 23 of 53 Direct Race Discrimination – section 13 EqA 2010[115]The claimant describes himself as Black African.[116]Where no actual comparator has been named, we have considered a hypothetical comparator. Did the Respondent fail to hold or invite the claimant to a sickness absence review meeting? (allegation 4.2.1 from the List of Issues)[117]The respondent’s return to work policy following a sickness absence is set out at page 1535. It states the line manager must hold a return-to-work discussion following every period of sickness absence, on the day the employee returns to work (or as soon as possible thereafter). The return-to-work discussion should include a review of all sickness absences in the rolling 12-month period. There is a link embedded in the document for guidance on how to hold the return-towork discussion. It is notable this is absent from the respondent’s disclosure. It would certainly assist in clarifying the issue Mr Mbonu raises that policy was not followed. The respondent seeks to argue there need not be a formal meeting and Mr Hawkes in evidence stated this could have taken place by a phone call. The guidance referred to in the document at page 1535 ought certainly to have been in the respondent’s possession and we would have expected it to assist the Tribunal in assessing this allegation.[118]The respondent accepts that there was no formal documented sickness absence review meeting held with the claimant. Jamie Hawkes gave evidence about this.[119]Whilst the respondent argues forensic prejudice in that Mr Hawkes is being asked to recall matters which occurred over 4 years ago (to support their jurisdiction argument and why time should not be extended for this allegation) the respondent’s submissions refer to other aspects of Mr Hawkes evidence which they say amounted to ‘clear evidence’.[120]We found Mr Hawkes’ evidence to be evasive as distinct from being unable to recall matters due to the passage of time per se. Mr Hawkes in his role as a Governor ought to have been familiar with sickness procedure and policies even if only at a high level.[121]Mr Hawkes accepted he selected the ‘box’ in the system following the claimant’s absence from work which indicated that a welcome back discussion had been had. Mr Hawkes says the box being ticked does not mean a review meeting took place, but this could be a phone call that took place. Mr Mbonu states the Page 24 of 53 sickness policy requires a return-to-work meeting and in any event denies any telephone call took place either.[122]Mr Hawkes accepted in evidence it would be part of his job role at the material time to have had the absence review meeting with the claimant. He contradicted himself in evidence by initially stating he did not know what the sickness policy said and then saying, ‘I was aware of the policy but that was the last thing on my mind when I took over A Wing’.[123]He clearly therefore a had sufficiently good recollection (based on his own evidence) of what he was having to prioritise at that time.[124]Mr Hawkes recalled one formal return to work meeting he had for another employee involved in a serious accident and who had been off for a long time. Mr Hawkes admitted that he would decide whether to have a formal return to work meeting depending on the seriousness of the sickness absence rather than following the sickness policy to have a review meeting following every period of sickness absence.[125]We find he did not have any absence review meeting with the claimant. We were not persuaded a review meeting or telephone discussion took place between Mr Hawkes and Mr Mbonu. It is on balance more likely than not had a discussion taken place it would be recorded in the system/there would be paperwork/documentation to support this.[126]We were however persuaded by Mr Hawkes’ evidence that he simply did not consider it a priority at that time when he took over the A Wing. We accept there were considerable challenges he was faced with when he took over the wing which he chose to prioritise. We are not persuaded that the burden of proof shifts to the respondent based on our findings about this allegation but if it had done, we are satisfied the respondent has established the conduct was in no sense whatsoever because of race. Did the Custodial Manager James Richardson falsely state that a sickness absence review took place and forged a supporting document? (allegation 4.2.2 from the List of Issues)[127]This is accepted by the respondent. Whilst the claimant uses the language ‘forging’ and (as was pointed out to him in cross examination) this does not mean the same as falsifying/creating a document which sets out untrue matters nevertheless it is clear what this allegation is. The wording used by Mr Mbonu simply reflects language differences. Page 25 of 53[128]The allegation relates to a ‘meeting’ CM Richardson purported to have with Mr Mbonu on 27 August 2021 and a ‘forgery’ sometime in December 2021. The respondent argues the claimant had knowledge of this as of 16 December 2021. We find CM Richardson emailed the claimant on 14 December 2021 saying he was not eligible to complete the PP bonus scheme due to him being on attendance monitoring. Mr Mbonu queried this with Governor Matthew George who provided him with a copy of the warning CM Richardson purports to have sent to the claimant on 27 August 2021. We now know that meeting never took place.[129]The respondent seeks to gloss over this matter somewhat and refers to CM Richardson’s conduct being ‘unreasonable’ and breaching policy. We find it is far more serious than ‘unreasonable’. The claimant makes the point had it been investigated it would have amounted to gross misconduct. We find CM Richardson’s actions to have been dishonest. The respondent cannot simultaneously concede he did this and not accept it was dishonest conduct. This surely must amount to a serious derogation of duties sufficient to warrant an investigation. Whilst Mr Jones in closing submissions asserts that had CM Richardson not left the service disciplinary action would have followed it is plain that the respondent had amply opportunity to investigate CM Richardson’s conduct and take disciplinary action before he left the service. Mr Mbonu raises that the meeting with CM Richardson did not take place in his email of 17 December 2021. He raised a formal grievance about CM Richardson on 1 January 2022.[130]Governor Gow became aware of the allegation of falsification of the August 2021 absence meeting on or around 5 January 2022 (pages 455 and 456). Mr Mbonu had to chase the respondent on 31 January 2022 about the grievance and this prompts the email at page 463 from Governor Gow asking for the claimant’s warning to be removed and to allow the claimant on the PP Scheme. By this time, it is plainly accepted by the respondent that CM Richardson had falsely claimed that a meeting had taken place in August 2021 when it had not.[131]We find CM Richardson intentionally lied about a meeting taking place and produced a document to support the lie namely the letter at page 360. Whilst the respondent seeks to persuade us that for reasons unknown CM Richardson decided to copy a template letter without actually meeting with Mr Mbonu it is clear he has done more than copy a template letter. Time would have to be taken by CM Richardson to complete the letter set out at page 360. He makes several positive untrue assertions. It is not difficult to see how the claimant would interpret this as conduct related to his race particularly against the clear background of no investigation by the respondent of CM Richardson’s serious actions. CM Richardson is a white officer. Page 26 of 53[132]Importantly it is not difficult to understand how Mr Mbonu starts to become increasingly distressed, and his email communications become more accusatory and are clearly put in increasingly stronger terms which the respondent refers to as being offensive and inappropriate. It is telling the same degree of offence is not taken by the respondent at accusations of racially derogatory language. Yet when Mr Mbonu refers to the respondent as being prejudiced/racist/ unfair, having cliques and refers to the ‘Klu Klux Klan’ this makes the respondent uncomfortable. The same level of discomfort is not demonstrated by the respondent at the terminology Mr Mbonu expresses was used about him specifically referencing his race. We find it entirely understandable why Mr Mbonu would become increasingly distressed and paranoid. The respondent seeks to persuade us this is without foundation. We do not agree.[133]CM Richardson did not leave the service until several months after the claimant’s grievance. Governor Gow accepted in evidence, and we find the respondent had sufficient time to investigate him for what clearly was a serous matter before he left. What is also troubling is the respondent knew CM Richardson had been dishonest yet seemingly permitted him to move to a role at the Border Force. On the one had the outcome of the disciplinary action against Mr Mbonu was that his conduct warranted an exclusion from working within HMPPS. Ms Louis in her evidence states this is a sanction she imposes on all cases where she finds gross misconduct. Given the serious and dishonest nature of what CM Richardson did the failure to investigate it at all undermines the respondent’s argument that there is no evidence that this was tainted by race. This in and of itself is clearly more favourable treatment of CM Richardson. The question is why the respondent considered CM Richardson’s actions less serious so that they did not warrant investigation. We do not find this was simply mismanagement. We find the respondent has repeatedly attempted to minimise CM Richardson’s actions and this certainly begs the question why.[134]The respondent seeks to persuade us in closing submissions there was no history of animosity between Mr Mbonu and CM Richardson and therefore whilst the behaviour was ‘unreasonable’ there is no evidence it was motivated by race. However, this is contradicted in a number of ways: a) CM Richardson saying that the prisoner involved in the fire incident named Mr Mbonu when the investigation revealed the CCTV did not disclose the prisoner naming Mr Mbonu and b) Duncan Gow in his evidence refers to Mr Mbonu raising that he felt bullied and victimised by CM Richardson in September 2021 (before he became aware of the falsification of a meeting between them). Page 27 of 53[135]There are clear facts from which we could find that conduct was related to race. It is clearly unfavourable treatment. The burden of proof shifts to the respondent and the respondent has failed to discharge its burden of proof that the conduct was in no sense whatsoever to do with race. We are not persuaded it was merely unreasonable treatment. On 14 December 2021 did the Respondent incorrectly inform the Claimant that he was ineligible to participate in the Respondents “Operational Stability Payment for PP Volunteers” scheme because his sickness absence was being monitored? (Allegation 4.2.3 from the List of Issues).[136]We find based on Mr Mbonu’s sickness absence record he was not eligible for the scheme. However, the basis for the respondent founding this view was the ‘false’ warning issued by CM Richardson (which was not in fact issued as set out above).[137]However, based on the policy we find the decision being based on this sickness absence was in accordance with the policy at the material time.[138]Governor Gow offered to remedy the situation due to the CM Richardson issue by offering the claimant the bonus figure notwithstanding that he did not qualify for the scheme.[139]We are not persuaded there are facts from which we could infer race discrimination. We do not find the claimant discharged his burden of proof in relation to this allegation. Did the Respondent fail to deal with the Claimant’s grievance against CM Richardson? (allegation 4.2.4 of the List of Issues)[140]The respondent seeks to persuade us they did deal with the claimant’s grievance against CM Richardson (made on 1 January 2022) as it was ‘wrapped up’ along with other issues raised by the claimant and dealt with as part of a larger investigation (page 1386) investigated by Governor Cindy Henson. The commissioning manager was Deputy Director Will Styles.[141]Notably Mr Mbonu’s grievance was raised against CM Richardson on 1 January 2022. He emailed this to Marie Rae. We find at the material time she was his line Manager and the correct person to submit it to. He chases a grievance response on 31 January 2022. The Cindy Henson investigation was not Page 28 of 53 commissioned until 1 June 2022 some 6 months after the grievance was raised and some time after the departure of CM Richardson.[142]Furthermore, it is evident this investigation was to deal with a number of the claimant’s allegations relating to bullying, harassment including racial harassment alleged across multiple areas of the prison between 2019 – 2022. The investigation involved an interview of 37 serving and previous employees of HMP Swaleside.[143]The respondent provides no explanation as to why CM Richardson was not one of those former employees so interviewed if indeed this investigation was meant to address the grievance raised by Mr Mbonu. This is troubling not least because they clearly were able to interview other former employees.[144]Notably the grievance about CM Richardson specifically does not appear in the 19 allegations which are clearly set out as being all the allegations made by Mr Mbonu (page 1389), but we take note allegation 18 refers to ‘grievances that have not been responded to’. We accept on balance the investigation did include the grievance raised against CM Richardson.[145]CM Richardson left the service on 30 April 2022 (page 1404) some 4 months after the claimant raised his grievance. There has been no plausible explanation provided by the respondent as to why the grievance was not dealt with within a reasonable time period of it being raised. 6 months later is certainly not a reasonable period particularly in the absence of any adequate explanation. We do not find the explanation provided by the respondent to be adequate. The respondent seeks to persuade us the grievance was not dealt with because the recipient Marie Rae (who did not give evidence at this hearing) did not want to bring it to CM Richardson’s attention as he was the same rank as her. There is no explanation provided by her in her email at page 559 as to why she did nothing to bring a formal grievance to the attention of anyone else.[146]There is similarly no plausible explanation provided at all for the respondent’s failure to interview CM Richardson whilst he remained in the employ of the respondent. We also heard no evidence that any attempts were made to interview him after the grievance did come to light notwithstanding he had since left the employ of the respondent. This is even more troubling given the subsequent grievances which were raised about the claimant were not abandoned following the claimant’s resignation. Whilst I will come onto those shortly it is clearly relevant and telling that whilst the respondent considered the allegations against the claimant were sufficiently serious to have warranted them being continued to be investigated post his departure, the same standards were clearly not applied to CM Richardson notwithstanding the respondent has accepted he was guilty of a serious matter involving dishonesty. This certainly begs the question why it was considered unnecessary to apply the same Page 29 of 53 stringent standards to ensure CM Richardson (if he was found guilty of gross misconduct) was also prevented from working at HMPPS for similar reasons that the claimant was.[147]On balance taking into consideration all the factual matters surrounding the grievance against CM Richardson we find the respondent did not satisfactorily deal with the grievance raised by the claimant against CM Richardson. We are not satisfied that rolling it up to be dealt with in an investigation that took place 6 months later because the respondent had realised the grievance had not been dealt with is sufficient not least because the investigation into that grievance appears woefully lacking. The Cindy Henson Investigation findings into the failure to deal with this grievance is poor. She arrives at the conclusion Mr Mbonu had not sent the grievance to the correct person which is incorrect. It has been established in evidence Marie Rae was the correct person to send the grievance to. She makes a finding that CM Richardson leaving the service partially explains why the grievance was not dealt with. Given the serious allegations of being ignored by senior officers, being unfairly treated and racism she does not even consider why CM Richardson’s conduct was not investigated. Nor is there any evidence that attempts were made to contact him/interview him.[148]The respondent seeks to persuade us wrapping it all up as part of this investigation is ‘dealing’ with it. This cannot plainly be right where the investigation into that grievance was severely delayed and was clearly hampered by CM Richardson having left the respondent’s employ. Simply accepting a considerable time later that CM Richardson had indeed fabricated the meeting does not mean the grievance was dealt with as it should have been. Leaving the claimant to have to chase and to clearly become more distressed because he understandably reaches a point where in his mind nothing is working, and no one takes his complaints seriously is wholly unacceptable. Yet the respondent seems to not conceive how this treatment could in turn cause the distress and increasingly erratic, distressed and, in some respects, angry emails from the claimant. It is notable this is not the tone of the claimant’s initial complaints. It is clear the failure on the part of the respondent over time to adequately address his grievances and issues he raises has a significant impact on Mr Mbonu as is evident from the tone and content of subsequent emails culminating in time off sick and a request for a transfer.[149]Governor Gow to his credit did refer Ms Rae to the correct protocol for dealing with grievances and he was candid in his evidence accepting that with the benefit of hindsight it should have been investigated. It is clear to us that wrapping up the grievance as part of a wider investigation into some 19 allegations raised by the claimant 6 months after it was first raised is not sufficient to establish the grievance was dealt with timeously or adequately. Page 30 of 53[150]There are clear findings from which in the absence of an explanation from the respondent one could infer discrimination so as to shift the burden of proof to the respondent. We find this is clearly less favourable treatment and the respondent has failed to discharge its burden of establishing the treatment was in no sense whatsoever because of race. Put simply they provide no explanation that persuades us of this. Did Deputy Governor Lee-Ann Williams prohibit the Claimant from undertaking bed watch duties whilst an investigation into the Claimant’s conduct took place? (allegation 4.2.5 of the List of Issues)[151]Governor Lee- Ann Williams accepted that she did this and therefore this is not in dispute. The motive is in dispute.[152]Mr Mbonu’s assertion is that this action was taken vindictively because Governor Williams was ‘hunting’ him due to his numerous complaints including the complaints about experiencing racism.[153]We find this prohibition followed the complaint raised by Michelle Hodgkinson following an incident at Medway Hospital (‘the bed watch incident’) which she alleges occurred on 15 January 2023.[154]Following the complaint raised by Michelle Hodgkinson about the claimant we find Governor Lee - Ann Williams called the claimant on 16 January 2023 and commenced an investigation. We accept that the claimant’s bed watch duties were suspended because of the complaint (relating to the bed watch) pending the investigation outcome.[155]We were not persuaded this prohibition arose due to any other reason than Governor Williams did not consider it appropriate for the claimant to be doing public facing duties (which bed watches are) whilst an investigation was pending into his conduct.[156]We accepted the clear and plausible explanation provided by Governor Williams in this regard. We find she was reasonably following a process as is evidenced by the commissioning of an investigation.[157]What is to be noted is how quickly a complaint about Mr Mbonu is addressed (the investigation being commissioned the next day) versus how the claimant’s complaints and grievances are deal with by the respondent.[158]There are facts from which in the absence of an explanation from the respondent discrimination could be inferred so that the burden of proof shifts to the Page 31 of 53 respondent. However, we are satisfied with the respondent’s evidence in relation to why the claimant was prohibited from bed watches at this time. We do not find this was less favourable treatment because of the claimant’s race. Did the Respondent (Mr Jamie Hawkes & Mr Darren Hance) extend the Claimant’s probationary period for up to 22 months? (allegation 4.2.1 of the List of Issues)[159]We find yes; the respondent did extend the claimant’s probationary period up to 22 months.[160]We found Mr Hawkes was unable to give any clear evidence about the reasons for the extension for the probationary period. His evidence essentially was that he could not recall. We found Mr Hawkes to be evasive about the failure to sign off Mr Mbonu’s probationary period and the probation policy at the material time.[161]We find it troubling that a Governor of some 15 years service in the prison service was unable to give any clear evidence about the probation policy. We are not satisfied this was because the ‘system has changed through my years’ as he stated. We would expect someone with his experience to be able to give clear evidence about the usual probationary protocols whilst accepting he may not have recalled every detail. We were not satisfied with the examples he gave for having concerns with Mr Mbonu. He refers to this in his witness statement and asserts the claimant was reluctant to help his colleagues. When asked what things Mr Mbonu did for him to arrive at this conclusion, he referred to a time the claimant was in the office claiming expenses. The other incident he recalls was the claimant sitting on a landing chair with a pocket notebook. We again find it troubling that Mr Hawkes relies on these seemingly innocuous examples to support the claimant’s probation not being signed off.[162]We are not satisfied that the claimant’s probation was not signed off due to any valid performance issues. Mr Hawkes’ examples of what he considered demonstrated the claimant’s unwillingness to help his colleagues were not persuasive. He gave no examples of behaviour from which we can conclude the claimant was not helping his colleagues at the relevant time.[163]Mr Hawkes in his statement states he did not maliciously or intentionally extend the claimant’s probation and that he simply did not receive notifications that his probation was up for review. His statement refers to other members of staff who did have their probation extended.[164]We have insufficient evidence to find that other officers in the same intake as the claimant whom he relies on as his comparators (Ollie Machis and Matthew White) circumstances were materially the same as the claimant’s and that they Page 32 of 53 had their probations signed off. However, we are troubled by the respondent’s lack of documentary evidence presented in this regard given Mr Hawkes’ inability to recall any probationary sign offs yet they rely on his witness evidence in relation to this allegation.[165]As for whether the failure to sign him off was related to race we take note of Mr Hawkes’ evidence about the Alpha wing having a serious issue with high numbers of assault towards staff and prisoners. He stated how the officers were responding to prisoner was ‘bad’ and that they were not working as a team. We accepted his clear evidence on this matter which was more plausible than when he stated he could not recall much or that there may have been performance concerns. We find it more likely than not that he simply omitted to deal with it as it was not a priority given the other issues on Alpha wing at the time.[166]We find there is sufficient finding here to shift the burden of proof to the respondent. We find it was unfavourable treatment but on balance we are not persuaded the treatment was due to race. Did the Respondent prevent the Claimant from attending training? (allegation 4.2.7 of the List of Issues) i. Claimant says he was prevented from attending ACCT assessor training in October 2018, 2019, 2020 and 2021[167]We accept the claimant’s consistent account that he applied and expressed an interest in attending the ACCT assessor training course as alleged.[168]We also accept his evidence that some years he applied twice a year.[169]Aside from the respondent’s reliance on Covid in the year 2021 we heard no compelling evidence from the respondent as to why the claimant was unable to attend the course when he had clearly applied and/or expressed an interest in doing so.[170]Matthew George in his witness statement states the claimant never expressed an interest but in oral evidence he contradicted himself by saying he knew how passionate he was about getting on the course for years and accepted the claimant had mentioned it to him on a ‘daily’ when asked in cross examination about this. Mr George then referred to not being sure about how passionate he was because the claimant did not apply. However, it is clear the claimant did apply for the training. Page 33 of 53[171]We heard no cogent evidence from the respondent as to why the claimant’s applications were unsuccessful.[172]The claimant’s comparator here is Annie Morrison.[173]Whilst the respondent says the claimant has been inconsistent with when he applied and when, we do not find that this impacts his credibility in relation to this allegation. It is clear he made a number of applications over a period of 4 years, and we accept his evidence that he made two applications in some years which accounts for the confusion with the number of applications made.[174]The respondent largely relies on evidence from 2020 onwards in relation to the applications to essentially argue the claimant was: a) put on a waiting list in August 2020 and b) from 2022 the claimant stated he was not interested in the course anymore.[175]The respondent states his comparator was working on Bravo Wing and that her circumstances were not materially the same as the claimant’s. They say Bravo Wing had more ACCTs open and she was not regularly doing escorts, payment plus (‘PP’) and bed watch shifts.[176]The respondent’s evidence from Mr George was that that the claimant was not disqualified from the ACCT assessor course because of him doing extra bed watches or doing PPs.[177]We find the claimant would not have been eligible to apply during his probation based on the evidence heard about this.[178]We are not satisfied with the respondent’s lack of evidence about what happened with the claimant’s expressions of interest and/or applications prior to 2020. We heard no cogent evidence as to why he did not go on the course as the respondent’s evidence appears to be he should have able to once he expressed an interest. However, on balance we find the reason for the claimant’s pre 2020 expressions of interest not leading to anything was related to him still being recorded as being on probation (which he should not have been). Whilst this was clearly unfavourable treatment, we do not find on balance this was because of race. We do not find there is sufficient in this allegation to reverse the burden on proof to the respondent. Had it been we would have been satisfied the reason was because Mr Mbonu was still on probation (albeit he should not have been) and therefore the respondent has shown it was in no sense whatsoever to do with his race. Page 34 of 53 ii. Claimant says he was prevented from attending Rigid Cuffs Training in 2022.[179]We accepted Mr George’s evidence that due to staff shortages opportunities for the training was limited. The training was mandatory, but we find the respondent had not yet got around to all staff (including Mr Mbonu) being trained in this regard. We therefore find he was not prevented from attending this training and the claimant has not discharged his burden in relation to this allegation. Ignore grievances submitted by the Claimant on 1 January 2022; 18 January 2023; 24 February 2023.[180]We have already made our findings above about the grievance raised on 1 January 2022 about CM Richardson. We have found that the respondent did not deal with the grievance and even when they did purport to ‘wrap’ it up in the Cindy Henson investigation there was no adequate investigation into CM Richardson’s conduct.[181]The grievance raised on 18 January 2023 relates to Governor Lee-Ann Willams and her decision to remove the claimant from bed watches pending the conclusion of an investigation into the hospital incident following the complaint from CM Hodgkinson.[182]The respondent asks us to consider jurisdiction over this allegation stating it is not referred to in the claimant’s claim forms. We have considered the claimant’s ET1s and are satisfied the claimant refers to the incident and Governor Williams handling of it/the decision to remove him from bed watches in the fourth claim (2301459/2023). It is clear that the grievance was raised in this context and the claimant refers to his ‘grievances’ being ignored to sufficiently satisfy us the allegation is articulated albeit the specific reference to the date of the grievance may not have been until the matter was case managed/the list of issues was identified.[183]The claimant accepted that Governor Chapman was assigned to deal with this grievance. Ten days later the claimant went off sick on 29 January 2023.[184]The claimant made it clear he did not want Governor Chapman dealing with this grievance because in terms of rank-and-file Governor Williams was higher than Governor Chapman. This is not disputed by the respondent. In those circumstances this objection by the claimant is reasonable. The other perfectly plausible reason he gave was because they were friends. Page 35 of 53[185]The respondent’s defence to this allegation essentially is that the claimant had been referred to occupational health (OH) on 30 January 2023 and the outcome of the claimant’s appointment with occupational health on 2 February 2023 was that he was not fit for work. He was then off sick until he resigned so the respondent’s position is that it was due to the claimant not wanting Governor Chapman dealing with it following which he was off sick which resulted in it not being dealt with. The respondent states the claimant had a meeting with Karen Earl two weeks later on 20 February 2023 to ascertain if he was fit to attend a grievance meeting to discuss all his issues. The respondent’s position is they did not deal with the grievance because the claimant refused Governor Chapman dealing with it and/or the claimant’s mental health symptoms were such that they did not want to exacerbate them by making him attend a grievance meeting and they were following the advice of OH.[186]However, we note he was deemed fit to attend a meeting to do with his own conduct and behaviour on external escorts on 20 April 2023 (page 984) so why could he not have similarly attended a meeting about his own grievance. Whilst the respondent did not technically ignore this grievance, after he asked for someone else other than Governor Chapman, they certainly have taken no further steps to deal with it. Whilst they seek to rely on his being signed off sick, he was still asked to attend his own disciplinary investigation on 20 April 2023 also at a time when he was signed off. This is quite troubling given on their own evidence they certainly knew by virtue of the OH referrals the claimant was significantly struggling because of treatment he was saying he was suffering during the course of his employment from co workers and his superiors. This significantly undermines their argument that the grievance was delayed because of their concerns over his mental health.[187]Ultimately on balance we find that this grievance was ignored by them insofar as it was not dealt with by them. The larger investigation by Cindy Henson (page 1386) does not address this grievance. Cindy Henson’s report (at page 1392) refers in general terms to the claimant’s allegation ‘that grievances have not been responded to’. She deals with those at pages 1419 and 1433 but the allegation is only dealt with insofar as it relates to the grievance against CM Richardson.[188]The respondent seeks to suggest that the claimant was making general widespread outrageous allegations which they say were offensive and/or without foundation and the claimant was behaving in an erratic manner. He was, as we have noted, becoming increasingly overwhelmed and affected such that the tone of his correspondence was becoming agitated and somewhat angry. However, what is incredibly troubling is this is an employee who the respondent seeks to persuade us kept himself to himself, self isolated who seemingly then becomes angry and agitated and is making false accusations and does not ask themselves why. The respondent simply does not take the claimant seriously for Page 36 of 53 a considerable period of time in relation to the allegations he makes. They either do not want to deal with it or they simply do not know how to deal with Mr Mbonu’s serious allegations. What is particularly telling however is they deal with all complaints made about Mr Mbonu including making him attend a meeting about a grievance against him during the same period that they claim their failure to address his grievance was because of their concern for his mental ill health.[189]We find this was unfavourable treatment. Could we find race discrimination in the absence of any explanation from the respondent sufficient to shift the burden of proof to the respondent; yes we do.[190]Their explanation is that he was off sick and/or had resigned. What undermines their position is that they make him come into work and interview him in relation to their investigation about his conduct in April 2023. We found the respondent gave no explanation as to why they did not find a replacement for Governor Chapman to deal with this investigation when they had 6 months from the date of grievance until the claimant left their employment.[191]We are not satisfied the respondent has shown the reason for the failure to deal with this grievance was in no sense whatsoever because of race. We find there is no satisfactory explanation advanced by them. The respondent knew - because the claimant informs them - that his mental health is being affected because of allegations about racism and discrimination in the work place and their response to that is to give the claimant the option of speaking to the care team for support or to speak to the BAME staff forum rather than dealing with the grievances to ascertain if any of the allegations had any basis or foundation. It is evident the respondent simply did not take Mr Mbonu seriously. He was causing them problems. Ms Gardner in evidence states she was overwhelmed with the number of complaints he had raised over a long period of time. It is not difficult to understand why the claimant lacked the faith in the respondent to adequately deal with his allegations. Had the respondent dealt with the matters Mr Mbonu raised at the time they were raised and demonstrated they treated his complaints as seriously as they treated others complaints about him perhaps the claimant’s outlook and view of the respondent would not have deteriorated in quite the way that it did.[192]We are not satisfied the respondent has discharged its burden of proof in relation to this allegation.[193]The failure to deal with the 23 February 2023 grievance was withdrawn by the claimant during the hearing. The respondent seeks to persuade us this demonstrates the claimant’s willingness to make serious allegations without evidence to support them. To the contrary we do not find the claimant’s conduct to have been scandalous or vexatious. We found him to be someone who was deeply affected by his time at Swaleside. His trust in the respondent had clearly Page 37 of 53 broken down. He did not have the benefit of legal advice, and we give him the benefit of the doubt in relation to the way his claim was pleaded particularly where he conceded the point immediately in cross examination. Was the Claimant subjected to racist comments at work? The Claimant relies on the following: (allegation 4.2.9 from the List of Issues) In 2020 he was told by a colleague that witnessed it that Alex Reynolds called him a “black c@nt” In February 2022 he was called a “lazy black c@nt” by Mark Ackland; In 2022 (The Claimant does not remember the exact date), the Claimant’s supervisor (S Blanch) called him a “dirty, moneygrabbing c@nt”.[194]We refer to our findings set out above in relation to these comments which are relied on for the harassment complaint. Carry on with the disciplinary process after the Claimant’s resignation; Claimant resigned on 30 June 2023. His last day of service was 27 July 2023. Disciplinary hearing took place on 10 August 2023 (allegation 4.2.10 from the List of Issues) and Exclude him from working for HMP ever again (allegation 4.2.11 from the List of Issues)[195]It is not in issue that the respondent carried on with the claimant’s disciplinary process after he resigned.[196]It is evident this was not a policy they adopted in every instance when a grievance was raised. We only have to look at the fact they took no action against CM Richardson. In light of the stance the respondent takes in excluding the claimant from working within HMPPS again, given Ms Louis’ evidence that this is an option available in cases where there is a finding of gross misconduct to protect the prison service, we are very troubled why the respondent took no such similar stance with CM Richardson. Given his actions we consider it likely had they been investigated they would equally have led to a gross misconduct finding such that his exclusion was by the same logic and standards also surely necessary. The respondent has taken no such stance with CM Richardson, to the contrary it appears they have gone out of their way to protect him. This was clearly less favourable treatment.[197]There are facts from which we are satisfied the burden of proof has shifted to the respondent in respect of this allegation and the respondent gave us no Page 38 of 53 plausible explanation for why the claimant’s treatment was so different to CM Richardson’s. The only reason the treatment is not found to be because of race is because of Governor Jenny Louis’ evidence. We found her to be a credible witness. She had no knowledge of the history between HMP Swaleside and the claimant nor of any prior allegations or grievances. She made her decision in the absence of the claimant who had been off sick and had already resigned. She decided to proceed with the grievance notwithstanding the claimant’s resignation. We were satisfied in doing so she was simply following permitted policy and procedure. Governor Louis also gave a plausible explanation as to why she was justified in arriving at the decision to exclude the claimant from the prison service. She was not involved in any way with the respondent’s failure to take any disciplinary steps against CM Richardson. On balance we were satisfied based on her evidence that the decision to proceed with the disciplinary after the claimant resigned and the decision to exclude the claimant made by Ms Louis was not because of race. It is easy to see how the claimant may have seen it as such given the difference in his treatment and that of CM Richardson’s. Victimisation – section 27 EqA 2010[198]Did the claimant do a protected act as follows (allegation 6.1 of the List of Issues) a) Submit a grievance against CM Richardson on 1 January 2022?[199]Did the respondent do the following things (allegations 6.2 of the List of Issues) a) Not allow the claimant to walk in certain areas of the prison eg communications. b) Allow the claimant’s claim to be talked about in the prison by prisoners and officers including Governor Williams and Mark Hodgkinson. c) Call the claimant “lazy” and “useless” and desecrate his food. This was done by the claimant’s colleagues on Charlie Wing. The claimant says the respondent allowed the claimant’s name to be slandered and abused. d) by the claimant’s colleagues, ostracise him by refusing to say hello or work with him on the landing where two prison officers were supposed to work); e) Permanently exclude the claimant from working in the prison service.[200]We were not satisfied based on the evidence heard and documents referred to in the bundle that Mr Mbonu discharged his burden of establishing that any of these things (if they did indeed happen) happened because of the protected act relied upon. It is evident he did not understand the relevance of the protected Page 39 of 53 act in establishing this complaint. A number of the allegations such as being ostracised/not being spoken to and being called lazy and useless on his own evidence predate by some considerable time in some instances the protected act relied on.[201]We have found the decision to exclude him was made by Governor Louis and it was not tainted by race. We are not persuaded this decision was in any way because of the protected act. We accept Ms Louis’s evidence she had no prior knowledge of the claimant’s history with Swaleside, his grievances nor the grievance against CM Richardson.[202]Overall, the allegations lacked specificity, and we did not hear cogent evidence from the claimant to satisfy us when these alleged acts occurred, who was involved (for example who was talking about his claims in the prison and when) and importantly that any of the alleged acts were due to the protected act.[203]The claimant did not discharge his burden of proof in relation to the complaint of victimisation. Constructive unfair dismissal - section 95 Employment Rights Act 1996[204]The claimant relies on the following things that he says happened which contributed or caused the breakdown of the relationship and amounted to a fundamental breach of the employment contract (specifically the implied term of trust and confidence) which caused him to resign (these are set out at paragraph 2.1 of the List of Issues and are repeated below) Lie as regards the bed watch by saying that the claimant was rude and aggressive to a prisoner;[205]We heard evidence from Michelle Hodgkinson about the bed watch incident at Medway hospital. We are not satisfied her evidence was credible. Her account was clearly contradicted not only by the claimant but the other officer present who gave his account during the investigation into this complaint. ‘AA’ (the other officer present and interviewed as part of the investigation into this complaint) gives such a clear account that is so different to Ms Hodgkinson’s version of events but notably consistent with the claimant’s account of the bed watch incident. We are persuaded that both his and the claimant’s account of that bed watch incident are an accurate reflection of what happened. We are troubled that despite the evidence to corroborate the claimant’s version of events from another officer the respondent chooses (without any plausible explanation) to prefer the version of events advanced by CM Hodgkinson. Page 40 of 53 Fail to look after the claimant, because he was not listened to as regards the bed watch and he didn’t feel safe;[206]This allegation lacked specificity and whilst the claimant clearly did notify the respondent, he did not feel safe it was difficult to understand the allegation in the context of the bed watch incident. On balance given the lack of cogent evidence heard from the claimant about this allegation we find he has not discharged his burden of proof in relation to this allegation. Delay the investigation for the bed watch in order to find more allegations against the claimant and Bring up an allegation from 2022 to beef up the allegations against the claimant and invite the claimant to an investigation to discuss both allegations;[207]We find the respondent did delay the bed watch investigation because Carl Roberts discovered intelligence reports (‘IR’s) about the claimant which were notably not actioned at the time those reports were raised. We can see why the claimant may feel this was a deliberate attempt to ‘beef up’ allegations against him given the fact nothing was done about them when they were first raised.[208]The investigating officer was Carl Roberts. Governor Lee-Ann Williams authorised the amended ‘terms of reference’ to add two further allegations to be investigated from the intelligence reports. She did so because Carl Roberts had discovered these intelligence reports. The amendments related to incidents on 23 August 2022 and 22 December 2022. It is odd that nothing was done with those intelligence reports contemporaneously given those allegations were later considered serious enough to include in the grievance into Mr Mbonu.[209]However, on balance we find there was an adequate explanation given by the respondent as to why they were looking into any previous intelligence reports. We find the respondent gave an adequate and plausible explanation about needing to know if there was a pattern of behaviour involving the claimant. Page 41 of 53 Refuse the claimant’s request to be transferred to another prison for a fresh start;[210]We heard from Cassandra Chapman about what steps she took following the claimant’s request to be transferred. It is evident the claimant made it clear to the respondent that he could no longer work at Swaleside. He sends an email to Karen Earl on 1 March 2023 in which he says he does not feel safe to return to Swaleside and asks for a transfer to another prison. He refers in this email to his health and wellbeing. By this time he has also made it clear from his prior allegations of discrimination, that he believes he is widely hated, that he did not feel safe and nor did he have any trust in his superiors at Swaleside. He clearly has no trust and confidence in the respondent from the tone and content of the email.[211]These assertions begin to be more aggressively advanced by the claimant from March 2023.[212]The claimant had informed Ms Chapman on 2 January 2022 that Officer Dan Mackness had called him a fuc*ing wa*nker. She was aware Mr Mbonu felt he was being discriminated against because of his race because her own evidence is when her and Jamie Hawkes spoke with Mr Mackness, he admitted to the comment, but they found no evidence it was motivated by race. She is therefore aware of some of the issues Mr Mbonu has previously raised about race discrimination before requesting this transfer.[213]Ms Chapman in response to the transfer request informs the claimant because of his ongoing investigation and grievances it would not be possible. Following a meeting with the claimant in April 2023 she says she will make enquiries about a level transfer to another prison on detached duties.[214]Ultimately while the claimant believes his request was ignored and /or Ms Chapman did not keep him informed about how she was dealing with the transfers we accept her evidence as to the steps she took to contact 5 prisons to try and find a short-term solution pending the investigation into the grievances raised. None of them were able to assist. We heard no cogent evidence to satisfy us this was deliberate as suggested by the claimant.[215]We were persuaded by the evidence of Ms Chapman that the claimant’s requests for a transfer were considered. Ms Chapman made suitable enquiries but was limited by the responses from the prisons and/or the procedure prohibiting it due to the grievance pending against him. We heard no evidence of unreasonable failure to keep Mr Mobonu informed in this context. Page 42 of 53 Ignore the claimant’s complaints; i. That he was ostracised from Alpha & Charlie Wing, and everywhere he was detailed to work in the establishment (complained between 2018 – 2023); ii. That he was being ignored by about 90% of operational staff especially Governor Mark Cordier, Lee-Ann Williams, Mark Hodgkinson and Darren Hance (complained between October 2018 – December 2022), iii. That he was prevented from acting as Oscar 2 and prevented from working in cleaning, movements, communications, reception and operations, iv. that between June 2019 – April 2020, the Claimant’s probation period was not signed off by Jamie Hawkes and Darren Hance, v. that his grievance against CM James Richardson had been ignored (complained from 31 January 2022 – 30 April 2022), vi. that return-to-work meetings did not take place between 2019 -[216]We find the claimant was ostracised based on the evidence heard and for the reasons set out previously in this Judgment. We were not persuaded by the respondent’s evidence that he isolated himself for no reason. Indeed, it is evident if he did isolate himself, it was in response to how he was being treated.[217]The claimant does not make any complaints to the respondent until the racist remarks were made in January 2020. He does not appear to raise being ostracised until that time either. There are emails in the bundle from page 164- 183 which he sends from January 2020 onwards which are clearly complaining of discriminatory behaviour and alleging acts of harassment.[218]It is relevant that the tone of these emails when Mr Mbonu initially raises discrimination, racist conduct towards him, being targeted and being victimised is measured, polite and seeking to ask those who are his superiors to address ‘this ugly trend’. He uses the words ‘I implore you’ in his emails on more than one occasion. He specifically says, ‘this has become too much for me’.[219]It ought to have been abundantly clear to the respondent by January 2020 that these were serious allegations which were having a serious impact on the claimant. He is consistently and repeatedly making the same allegations.[220]The respondent refers him to the care team after ascertaining that what he had accused officer Dan Mackness of saying to him was true. They take no further Page 43 of 53 action against Dan Mackness. It is notable that the immediate response to the complaint is Simon Drysdale telling Cassandra Chapman (email page 167) to ‘deal with this at the lowest (my emphasis) and sensible level. He goes on to say in the same email ‘can we ascertain whether this is racially motivated…on the face of it I can not see the evidence to support this’. This clearly demonstrates how Mr Drysdale expected Cassandra Chapman to dealt with the complaints raised by Mr Mbonu. He has heavily indicated he does not consider it to be racially motivated before any investigation has even been undertaken. This is consistent with the claimant’s repeated assertions that his allegations are not take seriously and goes some way to rebut the respondent’s position that he is quick to jump to conclusions and that his allegations are based on his perception alone. Indeed, there are a number of findings which clearly objectively support his ‘perception’.[221]Governor Lee-Ann Williams was clear aware from her evidence that Mr Mbonu felt he was being ostracised and staff on Alpha wing were being rude and abusive to him. Her response was to ask if he had challenged any of his colleagues. It is no surprise given the allegations being made that the claimant responds he does not feel comfortable to do so and he also refers to the senior management team doing nothing to address this. Here is the claimant reporting to a Governor that he was being abused and ignored and not only is her response for him to manage the situation by challenging his colleagues himself but when directly informed (on her own evidence) that he did not feel comfortable to do this she simply tells him it was ‘difficult for the senior management to prevent gossip but if there was a specific incident he should report it to his line manager’. No steps were taken by her to address the very complaint he was raising with her. The onus was put on Mr Mbonu to have to identify a specific incident and then report it to the very managers he had already informed the Governor were doing nothing to address his concerns. This is someone reporting bullying discrimination and victimisation by her own admission. Her evidence is that he offers no evidence of this. We would expect someone in the position of Governor who is faced with allegations of discrimination abuse bullying and being ostracised could reasonably be expected to investigate whether there was any substance to the complaints. Much as the respondent did when Michelle Hodgkinson raised a complaint about Mr Mbonu or when the respondent decided to include the intelligence reports raised against Mr Mbonu in the investigation into his conduct. There is a clear disparity in the treatment of any complaint Mr Mbonu raised with the respondent and the way in which the respondent throughout deals with complaints raised about Mr Mbonu.[222]We find the claimant was ostracised. However, we did not hear sufficient evidence to establish that he was specifically ignored by those named in the allegation nor that he was ignored by 90% of staff. Page 44 of 53[223]We accept the evidence of Abbie Gardner as to the Oscar 2 allegation. We heard nothing to rebut her assertion that the claimant was not offered to work on Oscar 2 duties due to views about his performance.[224]We are also not satisfied the claimant has discharged his burden in relation to the allegations about being prevented from working in cleaning, movements, communications, reception and operations. Ms Chapman gave unchallenged evidence that he did not want to work on reception. Matthew George’s evidence was also that the claimant did not express any interest in these roles. We find it more likely than not that had the claimant been interested in such opportunities there would be some documentary evidence in the form of contemporaneous emails about this. On balance we do not find the claimant has discharged his burden of proving this allegation.[225]We have already found the claimant’s probation was not signed off and refer to our earlier findings of fact about this above.[226]We have also already found the claimant’s grievance against CM Richardson was ignored (see our findings above). The respondent accepts that the actions of CM Richardson is likely to have damaged the relationship, but they rely on affirmation; namely that the claimant continued to work for a number of years after the conduct alleged.[227]The respondent once again seeks to get around their failure to investigate the actions of CM Richardson or apply any disciplinary sanction notwithstanding they readily concede he was untruthful about the claimant attending a meeting with him and that he falsified a letter to support that untruth. It is in those circumstances easy to see why the claimant does not trust the intentions of the employer not only prior to his resignation but also during the course of these proceedings. Put simply they accept CM Richardson did what the claimant alleges he did in his grievance against him, but at the time do absolutely nothing about it. CM Richardson is permitted to continue to work for the respondent and has no sanctions imposed about working for the Prison Service. In the context of these claims this is a very significant failure (if not sufficiently serious as a one-off event) and we find objectively it is conduct which is calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. No proper or reasonable cause has been demonstrated for the conduct nor the respondent’s failure to deal with it as disciplinary matter.[228]We have already found no return-to-work meetings took place between 2019 and 2022. Objectively we do not find this amounted to a breach of the implied term of trust and confidence. Page 45 of 53 Target the claimant to try to punish him and dismiss him[229]We find the allegation is too vague. Whilst we have serious concerns about the respondent’s treatment of Mr Mbonu’s complaints we did not hear any cogent evidence to enable us to make a finding that they were deliberately targeting him to try to punish and dismiss him. We find the claimant has not discharged his burden in relation to this allegation. Discriminate against him as set out in 4.2 the list of issues. The claimant relies on his treatment since he joined the respondent in 2018 as regards the allegations of direct discrimination.[230]We refer to our findings of fact in relation to the allegations which are relied on by the claimant for his direct race discrimination complaints as set out at paragraph 4. 2. of the list of issues. Our findings are set out above at paragraphs 117- 197. The claimant relies on the allegation of ‘lie regards the bed watch by saying the claimant was rude and aggressive to a prisoner’ as the final straw.[231]We have already made findings in relation to the allegation made by Michelle Hodkinson against Mr Mbonu in the bed watch incident.[232]We find the respondent’s failings in relation to the CM Richardson’s grievance and their failure to treat him the same way as the claimant insofar as investigating that complaint is concerned was a significant factor in the breakdown of the implied term of trust and confidence and contributed significantly to the claimant’s decision to resign. To him this was clear evidence that he was being discriminated against and being treated differently, and the final straw was the bed watch complaint. It is evident how differently this grievance was ultimately dealt with by the respondent following the complaint raised by Michelle Hodgkinson. There followed a through investigation into the complaint raised about the claimant. No such care or timeous attention was given to any of Mr Mbonu’s complaints including the very serious and specific one about CM Richardson. The respondent hides behind the claimant make accusations about ‘everyone’ and not being specific enough. Yet when faced with a specific complaint where the claimant’s assertions are found to be true, they do nothing with it. It is clear that Mr Mbonu was a nuisance to them. They leave his complaints as long as possible until Governor Gow realised that the complaint has not been addressed and then they have to launch a full Page 46 of 53 investigation (the Cindy Henson investigation). This is done in 2022 over 2 years from the time Mr Mbonu first raised being bullied targeted and discriminated against. Is it any wonder the respondent found themselves on the end of emails from the claimant where he was angry and mistrusting of them. Put simply he had every reason to be. Objectively he was raising serous matters. Objectively he was not taken seriously. Objectively the respondent did not treat him the same way as others against whom complaints which were equally as serious were made.[233]We find a number of the allegations the claimant relies on for his constructive dismissal claim objectively amount to a breach of the implied term of trust and confidence. Those events, including the grievance against CM Richardson not being deal with and ignored, and the complaint from Michelle Hodgkinson which the claimant reasonably believed was a lie (and we can understand why based on the account of ‘AA’ which was disregarded by the respondent despite it supporting that the claimant was not aggressive) led to his resignation. We find Michelle Hodgkinson exaggerated at best what happened on that bed watch. We can understand why he felt this was the last straw event and that things would never get better. Here is someone who has raised very serious allegations which have never been responded to by the respondent with same level of inquiry that Michelle Hodgkinson’s complaint has been. It is easy to see how this compounded his already formed reasonable belief that everyone was against him, no one was taking his allegations seriously and that he was widely hated and being discriminated against and that he had no trust and confidence in the respondent.[234]We have earlier found a number of the allegations of direct race discrimination were proven. The timeline for these positive findings are as follows:[235]He was called a dirty money grabbing black c*nt by Steven Blanche in July 2021.[236]CM Richardson lies about a meeting taking place between him and the claimant on 27 August 2021 and falsified/created a document to support the lie in December 2021.[237]The claimant raised a grievance about CM Richardson on 1 January 2022 and it was ignored until the Cindy Henson investigation some 6 months later.[238]He was called a lazy black c*nt by Mark Ackland in February 2022.[239]The claimant’s grievances raised on 1 January 2022 and 18 January 2023 were ignored. Page 47 of 53[240]We find this conduct (paragraphs 234 – 238) cumulatively objectively is calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.[241]The complaint by Michelle Hodgkinson was raised on 15 January 2023. This is the last straw event. We did not accept Ms Hodgkinson’s version of events for the reasons already set out earlier in this Judgment.[242]Following this allegation being made by Michelle Hodgkinson the respondent suspended the claimant from bed watches and notably commences an immediate investigation into the claimant. Following this the claimant raises his first grievance against Governor Lee-Ann Williams on 18 January 2023. By this time, he is convinced that that he is being bullied ganged up on and victimised for ‘calling out malfeasance like inequality racism slander libel, nepotism verbal abuse’ prevalent in the respondent establishment. This grievance against Lee - Ann Williams we have already found was not investigated and was indeed ignored.[243]On 28 February 2023 the claimant reports in sick and never returns to work prior to his subsequent resignation.[244]There follows a wellbeing assessment referral on 30 January 2023 and an OH referral and assessment on 2 February 2023.[245]Concurrently the respondent adds additional allegations to the claimant’s grievance into the bed watch incident (the amended ‘terms of reference’ referred to above on 1 February 2023).[246]In March 2023 the claimant makes it clear to the respondent he cannot return to Swaleside and asks for detached duties or a level transfer which we have also addressed earlier in this Judgment. He even takes it upon himself during this time to apply to HMP Maidstone, but the pre-employment checks returned were unsatisfactory because of an adverse employment reference from HMP Swaleside so they did not progress his application.[247]If it was not clear to the respondent from the issues the claimant had previously raised over a significant period of time, then it was abundantly clear following the Michelle Hodgkinson allegation that the claimant was asserting serious mental ill health and was feeling unsafe to come back to work. He raises being bullied treated differently (not for the first time) and ‘begs’ for detached duties or a transfer.[248]The claimant consistently informs the respondent he cannot return to Swaleside. His full sick pay stops and he is informed he will be on half pay from 6 June 2023. He asks for an extension to this which is refused on 21 June 2023. Page 48 of 53[249]The claimant submits his resignation on 30 June 2023. In this letter he refers to a number of reasons for his resignation which notably he states he has ‘espoused umpteenth times’. These reasons include the ‘astronomical’ levels of racism bullying harassment unfairness victimisation inequality inequity and verbal abuse. He believed Michelle Hodgkinson and Governor Williams had colluded in bringing charges against him. He refers to the respondent using policy against their adversaries but not themselves or their ‘cliques and cronies’. He refers to double standards in this context. We do not find he resigns because of the grievance against him. There is simply no evidence to support this. His actions following the Michelle Hodgkinson complaint and the grievance do not show someone who is trying to avoid any disciplinary action. He is still raising all the matters which have been ignored by the respondent previously.[250]We find the fact CM Richardson’s grievance was ignored and not dealt with until the Cindy Henson investigation and that the respondent took no steps to interview investigate or to discipline CM Richardson notwithstanding their conclusion that he did in fact lie about the meeting with the claimant and that he falsified documents to support that lie, was sufficiently serious in and of itself to be likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. There is no reasonable explanation for why the respondent chose to permit CM Richardson to continue to work for another 4 months without interviewing or investigating him.[251]Further was there a course of conduct comprising some of the acts and omissions complained of which viewed cumulatively amount to a repudiatory breach of trust and confidence. In short there was. We remind ourselves the test is an objective one.[252]In Lewis v Motorworld Garages Ltd 1986 ICR 157, CA. The Court of Appeal stressed that it is immaterial that one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach and that the employee did not treat the breach as such by resigning.[253]There is no need for there to be ‘proximity in time or in nature’ between the last straw and the previous act of the employer — Logan v Customs and Excise Commissioners 2004 ICR 1, CA. In Omilaju v Waltham Forest London Borough Council 2005 ICR 481, CA, the Court of Appeal explained that the act constituting the last straw does not have to be of the same character as the earlier acts, nor need it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. We are satisfied the Michelle Hodgkinson allegation was the last straw event for the claimant. It is notable he goes off sick a few days later and never actually returns to Swaleside. It is not an innocuous event given how the respondent deals with the complaint compared to how his grievances are dealt with coupled with the Page 49 of 53 acceptance of Ms Hodgkinson’s version of events when there was an independent witness who does not support her allegations that Mr Mbonu was aggressive during the bed watch incident. It is troubling why that independent witness’ account is seemingly wholly disregarded.[254]The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1, CA, held that, if the last straw incident is part of a course of conduct that cumulatively amounts to a breach of the implied term of trust and confidence, it does not matter that the employee had affirmed the contract by continuing to work after previous incidents which formed part of the same course of conduct. The effect of the last straw is to revive the employee’s right to resign.[255]We find there was a genuine last straw that revives the right to resign despite the claimants’ previous affirmation following earlier acts or omissions of the respondent.[256]We find there was a course of conduct which cumulatively amounts to a breach of the implied term of trust and confidence.[257]In Omilaju v Waltham Forest London Borough Council 2005 ICR 481, CA, the Court of Appeal explained that the act constituting the last straw does not have to be of the same character as the earlier acts, nor need it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. In this case we do find there is similarity in character between this event and a number of the earlier acts and /or omissions. We find it was of the same character in so far as the claimant’s version of events was disregarded despite a witness account which supported him. It was a complaint which was handled very differently to objectively equally serious complaints he had raised about others including CM Richardson.[258]The respondent seeks to persuade us the claimant has affirmed the contract following the last straw event which was on 15 January 2023. The relevant period under consideration for affirmation is therefore 16 January 2023 until 30 June 2023. The respondent says the claimant carried on working and treated the contract as continuing. We do not agree.[259]The claimant went off sick immediately after the last straw event and the Michelle Hodgkinson grievance is delayed. The claimant then seeks a transfer to another prison, and he is making it clear he cannot and will not return to work at HMP Swaleside because of the conduct alleged. We find this and his absence from work following the last straw event is a clear pointer against genuine affirmation.[260]The claimant is interviewed for this grievance on 20 April 2023. He is still seeking a transfer at this time and remains off sick. He is still making it clear he will not return to Swaleswide and believes the respondent is looking into this and this could be a suitable alternative to resigning. It cannot be ignored they are informing him they cannot arrange a transfer until the grievance is dealt with. It is reasonable of him to wait to see if a transfer will be possible. His words or Page 50 of 53 actions do not indicate he will return to Swaleside. Whilst the respondent seeks to persuade us seeking a transfer to another prison is affirmation we do not agree. They rely on his conduct including requests for transfer to support this. We find to the contrary Mr Mbonu repeatedly communicates to the respondent he is unable to return to HMP Swaleside for all the reasons he now makes this claim for, and by doing so he is clearly informing them unless they are able to make the breach right (ie by providing him with a transfer to another prison so that he can have a fresh start where he is not treated in a discriminatory way) he cannot remain employed by them.[261]We find he has not affirmed the contract and that he has resigned in response to the conduct which we have found took place that amounted to repudiatory breaches of the implied term of trust and confidence.[262]The respondent did either through a single act (we have found the failures in relation to the CM Richardson grievance alone to be sufficiently serious to amount to a repudiatory breach) or through a combination of any of the allegations we have found did occur conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between them and the claimant and that he resigned in response (without affirming the contract) and his complaint of constructive unfair dismissal is well founded and succeeds.[263]We have not dealt separately with the issue of affirmation following the CM Richardson grievance failures because we have found a genuine last straw event which revives the previous acts/omissions and the right to resign. Matters referred to in submissions[264]There is further conduct referred to in the letter of resignation, but this is not relied on in the claimant’s list of issues. This conduct includes the stalling of the investigation, bringing in Governor Dada as a ‘pawn’ in the investigation and giving him adverse references which prevented him from moving to another prison. The claimant also refers to Governor Dada who was asked by the respondent eventually to assist with the grievance about CM Richardson as an ‘Uncle Tom’. The respondent made much of the claimant referring to not trusting Governor Dada as independent and states his referring to him as an ‘Uncle Tom’ is offensive. Much was made of the explanation given by the claimant about the meaning of this term. We take note that English is not the claimant’s first language, and it is inevitable things get lots in translation particularly with ‘sayings’ or colloquialism. He explained that ‘Uncle Tom’ was a reference used during the slave trade whereby black people who did black people ‘dirty’ to please white people were called ‘Uncle Tom’. It was clear in this context he was suspicious of Governor Dada because he was told that Governor Dada was Nigerian (which is where the claimant was born). He was suspicious that they were only involving Governor Dada so they could say the chief investigator was Page 51 of 53 a black man. He was clearly by this time very suspicious and mistrusting of the respondent’s motives and motivation. It is not difficult to understand why. We refer to this specifically because the respondent seeks to persuade us to be shocked by such a comment and to condemn the claimant’s conduct.[265]It is very easy to try and paint Mr Mbonu to be someone who is making disparaging indiscriminate allegations which are described as a tendency to quickly reach conclusions of being discriminated against. That the respondent continues to refer to Mr Mbonu’s allegations as shocking (as if because he has levelled them at a number of people, they cannot possibly have any truth in them) belies how they dealt with his allegations, complaints and grievances.[266]It is very clear to us he was treated objectively worse than CM Richardson in significant ways. Is it any surprise that over a period of time, given the conduct we have found did take place, that he considers there is a ‘witch hunt’ against him. Is it any surprise that his emails become more offensive. The respondent takes offence at the claimant referring to them being akin to the Ku Klux Klan and Combat 18, yet we have seen or heard no equivalent offence at or serious treatment of serious allegations the claimant makes about a number of staff some of whom are in very senior positions. Whilst we accept not all those allegations have been proven clearly there are a number which have.[267]Mr Mbonu demonstrated at the start of this hearing a clear mistrust of the respondent’s legal representatives including Mr Jones. We explained to Mr Mbonu that Mr Jones and the legal representatives were not the same as the respondent and they have professional obligations as well as obligations to the Tribunal. He required these assurances because put simply he has no faith in the respondent treating him fairly. We find based on the respondent’s acts or omissions this was a reasonably held belief especially as he has not had the benefit of being legally represented. Mr Jones (counsel for the respondent) conducted himself highly professionally and with courtesy throughout to not only Mr Mbonu but also assisted him and the Tribunal when he was able to which greatly assisted in settling Mr Mbonu’s concerns.[268]On the other hand, the respondent seeks to downplay their own starkly different treatment of Mr Mobonu to that of others.[269]It is wholly unsatisfactory that where an employee makes a complaint of serious racist remarks and difference in treatment, they wait the length of time they do to investigate any of those allegations. Page 52 of 53 Time Limits[270]We repeat what is set out above at paragraph 114 and find it is just and equitable to extend time for any of the discriminatory complaints not brought in time.
Conclusion
[271]We find the claimants complaint of direct race discrimination succeeds.[272]We find the claimant’s complaint of harassment succeeds.[273]We find the claimant’s complaint of constructive unfair dismissal succeeds.[274]We find the claimant’s complaint of victimisation is not well founded and does not succeed.[275]The matter will be listed for a separate remedy hearing. Directions will follow for the parties to comply with to prepare for that hearing.