Mr A Bockarie v Goulden House Co-operative: 2302010/2020

EMPLOYMENT TRIBUNALS

Case No 2302010/2020

Between

Mr A BockarieClaimant

Goulden House Co-operativeRespondent

Before

Employment Judge Harrington

In person for claimant

Date 9 February 2022

JUDGMENT

The Claimant’s claims of Breach of Contract are struck out. The Claimant’s claims of Direct Race Discrimination, Victimisation and Harassment related to Race shall proceed to the full merits hearing.

REASONS

Background

[1]At a Preliminary Hearing on 9 February 2022 I gave Judgment striking out the Claimant’s claim for Breach of Contract. His claims of Direct Race Discrimination, Victimisation and Harassment related to Race are proceeding to the full merits hearing listed from 4 – 7 October 2022 at London South Employment Tribunal, Montague Court, West Croydon.

[2]By an email dated 14 March 2022 the Claimant, Mr Bockarie, requested the written reasons for this judgment. I received his request on 29 March 2022.

[3]I now produce my reasons for the Judgment. All numbers appearing within square brackets refer to pages from the Preliminary Bundle.

[4]This Preliminary Hearing follows a Preliminary Hearing which was held on 7 June 2021 with Employment Judge Tsamados [57]. At that hearing it was agreed that the Claimant’s claims were for direct race discrimination, victimisation, harassment related to race and breach of contract [61]. The Claimant’s claim for wrongful dismissal was dismissed upon withdrawal. I note that the Claimant’s claims arise from his employment with the Respondent as a cleaner between 7 October 2019 and 28 February 2020. Employment Judge Tsamados made various case management directions and the claims were listed for a full merits hearing in October of this year at the London South Employment Tribunal in West Croydon.

[5]Paragraph 10 of the Case Management Directions required the Claimant to provide some further information of his claim by 19 July 2021 [58]. In the event, the Case Management Order was not produced by the Tribunal until after this date and so, quite sensibly, the parties agreed an extension of time until 11 August 2021 for the Claimant to produce his further information. That further information is found in the bundle prepared for this Preliminary Hearing [37].

[6]Following the production of this document, the Respondent made an application to strike out the Claimant’s claims or for consideration of a deposit order. This application was made by email dated 27 August 2021 [70-72]. On or around 20 December 2021 the Claimant also made an application to strike out the Respondent’s response to his claims. Accordingly, the Tribunal recorded that the Claimant’s application would be heard alongside the Respondent’s application and I have proceeded today to hear and determine the applications.

[7]The Claimant has represented himself at this hearing and the Respondent has been represented by Mr Chehal, a consultant. I have heard lengthy and detailed submissions from both parties. In addition to the Preliminary Hearing bundle that was sent to the Tribunal by the Respondent, the Claimant has sent a number of emails, each with a number of attachments. In order for me to consider the matter within the listed time, I emphasised to the Claimant that it was for him to take me to what he considered was relevant in those materials. In this way, we have looked at various pages of the attachments together, during his submissions.

[8]I note two further matters before considering the substance of the applications. Firstly, the Claimant referred me to the fact that he had wanted a face to face hearing today. He said he wanted this because part of his application to strike out the Respondent’s response was on the basis that some documents disclosed by the Respondent have been manufactured by the Respondent for the purposes of defending his claims. The Claimant was of the opinion that a face to face hearing would be helpful as I would be able to examine the ‘originals’ of these documents.

[9]I considered this submission but decided that it was appropriate to proceed with the remote hearing. I am not trained, nor is it part of my function, to forensically examine documents in an attempt to identify their authenticity. Whilst a more in-depth consideration of the physical features of the documents might assist at the full merits hearing, for the purposes of these preliminary applications, it is sufficient for me to consider the parties oral submissions, looking at the documentary evidence on screen at a remote hearing.

[10]Secondly, on occasion and entirely understandably, the Claimant wished to address me on more detailed features of his case and why he felt so aggrieved by his dismissal and the actions of the Respondent. I had to remind him that those arguments are appropriate for a full merits hearing but do not assist me on the application to strike out, where my focus must be on the specific arguments which are said to make a decision to strike out, pursuant to Rule 37 of the ETs (Constitution & Rules of Procedure) Regulations 2013 Schedule 1, appropriate.

[11]I turn first to the Respondent’s application. Mr Chehal submitted that the Claimant’s claims have no reasonable prospects of success and therefore should be struck out. It is the Respondent’s submission that the Claimant has still not particularised his claims sufficiently to enable the Respondent to respond to them, as required and as necessary, for the claims to proceed to a full merits hearing. Mr Chehal took me to the Claimant’s document entitled ‘Case Management Orders’ [37]. He referred to its vagueness.

[12]Following a detailed consideration of the further information provided and submissions from the Claimant, I was able to clarify the following matters with the Claimant.

[13]Direct Race Discrimination – The treatment relied upon by the Claimant as amounting to direct race discrimination is threefold:(i) being put under pressure on 16 January 2020 to sign an inaccurate report of issues with Mr Clutterbuck. It is said by the Claimant that workers who were not black were not required to sign such a report

(ii) being allocated, by the Estate Manager, Block A to clean in the period January and February 2020 and following Fateh and Hussain leaving, and

(iii) being dismissed.

[14]Whilst the Claimant refers to the colleagues employed by the agency as an appropriate comparator, the Respondent contends that a hypothetical comparator is appropriate for his case.

[15]Harassment – So far as harassment is concerned, he complains of three matters:(i) the incident detailed in paragraph 37 of his document which is said to have happened in November 2019 [42]

(ii) the incident on 24 February 2020 and

(iii) the conduct complained of that is said to have happened on 25, 26 and 27 February 2020.

[16]Victimisation – The Claimant relies upon the grievance he raised informally about the Estates Manager in February 2020 as being the protected act. The detriment is then said to be the conduct, which is also complained of as harassment, which is said to have occurred on 24 February and 25 - 27 February 2020.

[17]Following this clarification, I considered the claim for Breach of Contract with the parties. Following further protracted attempts to understand these claims adequately, I have concluded that the claim based on the alleged change to the working hours does not have reasonable prospects of success pursuant to Rule 37 (1) (a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1.

[18]The Claimant explains that he worked on some, or possibly all of his working days, from 7 am until 3 pm. He refers to the hours advertised for the job as being 9 am – 5 pm. On the face of it, therefore, he appears to have worked different hours to those advertised when he was recruited - that is to say that the total number of hours worked per week were the same but rather than it being daily 9 – 5 pm, it was 7 am – 3 pm on some days or possibly all the days. This of course made no financial difference to the Claimant and he attended to work those hours without protest.

[19]On the basis of this factual context and the failure by the Claimant to provide the particulars required by the Tribunal, as set out by Employment Judge Tsamados in this Order [65-66], I am satisfied that this claim has no reasonable prospects of success.

[20]I have considered the entirety of the Claimant’s document, including paragraphs 78-81 [48]. Some of these paragraphs actually describe claims already identified – for example, the claim for being dismissed is, as confirmed by the Claimant, a claim for direct race discrimination. Beyond this, I am not satisfied that the remaining complaint about the staff handbook is adequately particularised. In paragraph 45 of the case management order Employment Judge Tsamados required the Claimant to identify the term of the contract the Respondent allegedly breached and what damages flow from that breach. I understand that there is a dispute over when the Claimant was given access to the staff handbook but at the last hearing, the Employment Judge spent some time with the Claimant identifying the information required from him in respect of each claim he brought. That information has not been provided in respect of any claim involving the staff handbook, including the Claimant failing to identify what damages are said to flow from any failure to give him access to the handbook.

[21]To return to the Respondent’s application, I am satisfied that there are no reasonable prospects of the Claimant’s claims for breach of contract succeeding and that there has been a failure by the Claimant to comply with the orders of Employment Judge Tsamados to provide further particulars of the claims. Accordingly I strike out the Claimant’s claims for breach of contract. However the Claimant’s claims for race discrimination: direct, victimisation and harassment, proceed as detailed in the Case Management Order.

[22]With regards to the Claimant’s application, the Claimant says that the Respondent’s response should be struck out on two grounds: firstly that there was a failure to comply with paragraph 14 of the Case Management Order [59]. This required that there be agreement reached by 1 November 2021 as to the documents to be used at the full merits hearing. So far as the Claimant is concerned, there was no such agreement. Secondly, the Claimant refers me to documents at pages 119 – 120 and the meeting notes of 27 February, all appearing within his bundle ‘RD bundle 4’. He tells me that these documents are fabricated. 22. The Claimant assumes that his writing, which appears on page 120, is there because the Respondent has copied some words that he did write and that appear on page 127. He says that he thinks the notes from 27 February meeting with Ms Marshall are fabricated because he does not believe she made the reports, as recorded there, of his alleged misconduct. The Claimant tells me that this would be inconsistent with how Ms Marshall reacted to him when he returned to the site, after his dismissal, to collect some belongings. Ms Marshall was polite to him and helped him with collecting his things.

[23]I am unable to make a decision on these points without hearing the evidence in the case. It is important for the Tribunal to understand the relevant factual context to the documents referred to by the Claimant and which the Respondent puts forward as having been produced at the relevant time. There is insufficient information currently before me to make a determination, on the face of the documents alone, that they have been manufactured. Therefore whilst I entirely understand the Claimant’s arguments and indeed, these are arguments he may wish to pursue at the full mertis hearing in October 2022, I am unable to make a finding today that on the balance of probabilities these documents have been manufactured by the Respondent.

[24]Further, whilst I also entirely understand his point about the lack of an agreement to the file of documents, as set out in the Case Management Order, I consider that striking out a response for the failure to reach such an agreement would be disproportionate, taking into account the stage at which the proceedings have reached, the extent of any prejudice to both parties and the overriding objective.

[25]In summary, in my Judgment the claims for breach of contract will be struck out. The Claimant’s claims of direct race discrimination, victimisation and harassment will be determined at the full merits hearing in October 2022.

[1]The claimant notified ACAS of his potential dispute with the respondent on 11 May 2020 and received an ACAS Certificate the same day. He presented his tribunal claim on 20 May 2020 asserting complaints for breach of contract, wrongful dismissal and direct discrimination, race-related harassment and victimisation, contrary to sections 13, 26 and 27, together with section 39, of the Equality Act 2010 (EA 2010). The claimant withdrew his wrongful dismissal claim on 5 July 2021. His breach of contract claim relating to working hours was struck out by the tribunal at a preliminary hearing (PH) on 9 February 2022.

[2]There was a case management discussion at the PH on 9 February 2022 at which the claimant’s claims and complaints were discussed in detail and agreed. Those agreed issues were listed in the Record of the PH (sent to the parties on 13 February 2022) and, in these Reasons, we use the paragraph numbers in those issues at pages 314 to 315 of the Bundle. They are attached at the end of these Reasons.

[3]The tribunal has adopted and referred to that list of issues as the framework or roadmap to assist it in its deliberations and determinations, whilst referring also to the narrative detail in the claimant’s pleaded case (in the grounds of claim attached to his ET1) and to the further information set out by the claimant in response to the case management orders of EJ Tsamados following the preliminary hearing for case management in June 2021.

[4]This case has had a somewhat complex procedural history, involving previous postponement to the listed final hearing and that has caused regrettable delay. It means that it comes to trial more than four and a half years after the claimant’s dismissal. That is not in the interests of either of the parties and we, as the tribunal at this final Hearing, were determined that the case should be heard and decided this week.

[5]We are, therefore, grateful to the parties for cooperating with the tribunal to ensure that we focussed on relevant evidence and submissions and had proper time for deliberations.

[6]We were provided with a bundle running to 332 pages as well as a witness statement for the claimant and eight witness statements on behalf of the respondent. Of those individuals who produced statements, only Ms Annie Gleeson attended the hearing to give oral evidence. The other seven individuals did not attend. The respondent’s representative explained that the significant delay in getting this case to a final hearing has meant that time had moved on and the witnesses were no longer willing or available to attend tribunal to give evidence. The respondent applied to adduce their witness statements as written evidence, understanding that – since the claimant would not, therefore, have an opportunity to challenge that evidence in cross-examination – this would affect the weight that the tribunal might attach to their statements. We permitted the statements to be adduced. Where the witness statements corroborate the oral evidence we have heard or, in particular, contemporaneous documentary evidence, we have placed some weight on it. Some of the evidence we found to be of little assistance (for example, the three statements from individuals who had worked with Ms Gleeson and stated in a couple of short paragraphs that they had found her conduct to be appropriate and/or helpful).

[7]We, therefore, heard oral evidence from the claimant and from Annie Gleeson. We received helpful written submissions from both parties on the morning of day 3 (31 October 2024) and we then heard oral closing submissions from R’s representative and the claimant. We then deliberated in chambers from late morning until the afternoon of day 4 (1 November 2024).

[8]As we explained to the parties, we have not read every page in the Bundle but only those documents which were referenced, either in the witnesses’ statements or during the Hearing. We have considered the evidence and made our findings of fact on the balance of probabilities. Any failure to mention any specific evidence should not be taken as an indication that the tribunal has failed to consider it. It has not been necessary to determine every fact in dispute: the tribunal has only made findings of fact necessary for it to determine claims brought by the claimant.

[9]The tribunal’s decision is unanimous.

FINDINGS OF FACT

[10]The claimant was employed by the respondent as a cleaner from 7 October 2019 until 28 February 2020 when he was dismissed with a payment in lieu of notice.

[11]The respondent is a housing cooperative consisting of 269 flats on a site in Battersea, London.

[12]The respondent employed Ms Gleeson as an Estate Manager and she has been in her role since 2019. There was also an employed caretaker (Mr Barnes, known as Barney, who was described by the claimant as a white Englishman) and, in late 2019/early 2020, a temporary office administrator (Maxine Thompson, who the claimant described as black), who was replaced by Donna Fullerton, another temp (who the claimant also described as black).

[13]The claimant was interviewed by Ms Gleeson and offered the job by letter dated 27 September 2019. She, therefore, played a key role in the claimant securing employment with the respondent.

[14]The offer letter made clear that the claimant’s employment was subject to a three-month probationary period.

[15]The claimant was provided with a Statement of Main Terms and Conditions which he signed on 27 November 2019. This made reference to the respondent’s Employee Handbook, which is in the Bundle. The respondent asserts that the claimant was provided with a copy of the Handbook at the start of his employment.

[16]The claimant asserts in his evidence that he was not provided with a copy of the Handbook during the course of his employment.

[17]We do not accept the claimant’s evidence in this regard. Firstly, the impression we have formed of the claimant is that he analyses information closely and carefully. During these proceedings, both in his witness statement and in his oral evidence and cross-examination of Ms Gleeson, the claimant was adept at noticing language, picking up on the way language was used (for example, Ms Gleeson’s reference to serious rather than gross misconduct). His Statement of Terms & Conditions clearly alerted him (at the top) to the Employee Handbook. Had he not been provided with a copy of the Handbook, we consider it highly likely that he would have asked for a copy. Secondly, the claimant made reference to having read the Handbook at a meeting on 5 November 2019. In it, the claimant is mentioned as having said that he had read the staff handbook three times. Thirdly, the claimant also makes reference to the Handbook in his ET1, but does not state there that he had not received a copy.

[18]In the Handbook, it is made clear that the probation period could be extended or, indeed, brought to an end before its expiry.

[19]It is also stated that the respondent’s usual capability and disciplinary procedures will not necessarily be applied during an employee’s probationary period.

[20]The claimant states that, just before his employment commenced, he attended the Estate Office with his paperwork, including two passports which Ms Thompson was asked to copy. He alleges that when Ms Thompson proceeded to photocopy the two passports together, Ms Gleeson then shout at her which the claimant found shocking. When the claimant questioned her about this during his cross-examination of her, Ms Gleeson denied that she shouted at Ms Thompson.

[21]On the balance of probabilities, we find that Ms Gleeson probably told Ms Thompson to copy the passports separately and may have done so curtly. We find it unlikely that she shouted at her. Had she done so, we consider it very unlikely that Ms Thompson would have continued to provide her temp services to the respondent much longer. She continued in her role for another few months, until February 2020, when she was replaced by another temporary agency worker, Donna Fullerton.

[22]The claimant alleges that he was provided with no induction training, whilst Ms Gleeson stated in her evidence that, on his first day, he was provided with copies of relevant documentation, that he was directed to the health and safety policy and that a period of work shadowing was arranged whereby the claimant would shadow Barney to learn the ropes, the layout of the site and the necessary cleaning activities and processes. This is denied by the claimant. We note that, in the last week of February 2020, when a new cleaner, Ms Marshall (“SM”) started, she was assigned to shadow Munir, the owner of Star Cleaning Agency (“SCA”) who provided cleaning services to the respondent. Given that a process of shadowing was arranged for her, we think it likely that the claimant was similarly encouraged to shadow Barney and to raise any ‘business as usual’ work queries with him. That said, there is no evidence of any formal induction programme being undertaken in the form of a training course (either in person or via online training courses). It was loosely structured, informal and ad hoc.

[23]The respondent’s site consisted of three blocks of flats, A, B and C. The claimant was assigned to clean Block C and half of Block B. When he started his employment, there was another cleaner employed directly by the respondent (Didier) who then left. He was then replaced by a cleaner (Fateh) who was employed by SCA, an agency which had been providing cleaning services to R for around 15 years. SCA’s owner, Munir, sometimes provided those services himself but, more usually, he would send his employees to the respondent’s site to provide the cleaning services.

[24]The claimant initially described Fateh as white Caucasian but then agreed that he was of North African origin. He stated (and this was not challenged by the respondent) that Fateh was much lighter skinned than the claimant. In around January 2020, Fateh was replaced by Hussein (or Houcene, as he is referred to in some of the documents) who the claimant described in the same terms – someone of North African origin and much lighter skinned than the claimant. Fateh was assigned to clean Block A and half of Block B. The cleaners were required to clean and tidy all three bin stores (for Blocks A, B and C), with a particular focus on those for the blocks which they cleaned. Feedback about the claimant

[25]Two weeks after the claimant started in his role, he attended a meeting with Ms Gleeson and the other directly employed cleaner (Didier), on 24 October 2019. Ms Gleeson criticised them both for not communicating with each other. She considered that staff engagement was important and warned them that she would be monitoring them for the next two weeks and, if there was still no engagement between them, this might result in their dismissal.

[26]A week later, however, Ms Gleeson gave the claimant positive feedback, acknowledging his good work in the past week which had resulted in two emails from impressed residents. At this meeting, the claimant confirmed he was happy and familiar with his responsibilities. The claimant raised the issue of health and safety equipment and clothing and Ms Gleeson agreed that the respondent would reimburse him for the additional clothing items he required.

[27]On 19 November 2019, in her Report to the General Meeting (we assume of the Management Committee), Ms Gleeson shared the positive feedback about the claimant’s work.

[28]We have already referred to the meeting on 5 November 2019. This meeting was held to discuss concerns the claimant had raised about Ms Thompson who had apparently taken him to task for entering the Estate Office before it opened at 9am.

[29]From these meetings, we find that the claimant knew how to raise complaints or concerns about work-related matters and did raise those concerns. We also find that Ms Gleeson was balanced in her feedback about the claimant; picking him up on some issues and praising him for others. November 2019 – bin stores (Issue 22.1)

[30]The respondent contracted with a bulk waste removal contractor who would come at fairly regular intervals to remove bulk waste (that is, when residents dumped bulky household items, which Ms Gleeson referred to as ‘fly tipping’ in her evidence). If these sorts of items accumulated, then the contractor would be called out specifically but otherwise he would attend every 4 to 6 weeks or so.

[31]In November 2019, the claimant noticed that household items had accumulated and mentioned this to Barney and Ms Gleeson. The contractor attended the site.

[32]On the day in question, Ms Gleeson attended the bin stores with the contractor. Also present were the claimant, Fateh and Ms Thompson.

[33]The claimant alleges that Ms Gleeson shouted and screamed at him about the accumulation of cardboard boxes, following him from bin store B to bin store C and that she aimed her aggression at him, not Fateh. He says this was race-related harassment.

[34]When they got to bin store C, a gas cylinder was found, at which point the claimant alleges that Ms Gleeson yelled and shouted at him so much that people on the road running alongside the bin stores could hear.

[35]Ms Gleeson denies shouting, screaming or yelling at the claimant or anyone. She says she was shocked to see the gas cylinder as it posed a potential safety risk and was located in the bin store with five floors of flats above it. She agrees she commented on the presence of the cylinder but denies shouting or screaming at the claimant.

[36]After his employment terminated, on 1 April 2020, the claimant wrote a detailed letter of complaint, but with no mention of race discrimination. He refers to the allegation of shouting and yelling by Ms Gleeson at the bin stores but states that this was aimed at both the claimant and Fateh (not that he was singled out, let alone because of or for reasons related to race).

[37]We find that Ms Gleeson was more likely than not to have expressed her concern about the gas cylinder in trenchant terms. She considered that the claimant had been provided with sufficient information about his work duties and she told us that she had noted his knowledge of health and safety during his interview. On her own evidence, she was shocked and concerned when she saw the gas cylinder. We, therefore, find that she probably did express that shock and concern in alarmed terms but that she was not yelling and screaming.

[38]We do not find that she was yelling and shouting about the cardboard boxes but, again, we think it likely that she was disappointed about the accumulation of rubbish and expressed that view forcefully to all around her, including Fateh. AG’s annual leave in December 2019 / January 2020

[39]In December 2019, Ms Gleeson was about to go on a period of annual leave. She informed the claimant about this by letter and that he should report to Ms Thompson in her absence, who would update Chris Clutterbuck (the Estate Manager for Battersea Fields) and seek his guidance on issues raised, if necessary. 16 January 2020 – probation review meeting (Issue 27.1)

[40]When Ms Gleeson returned from her holidays, in the New Year, on 16 January 2020 she received an email from Mr Clutterbuck, raising concerns about both the claimant and Fateh apparently failing to answer a number of telephone calls from Ms Thompson. In his email, Mr Clutterbuck said that Ms Thompson had observed the claimant on the CCTV monitor, holding his phone whilst she was trying to call him and not answering. Mr Clutterbuck said that he had tried to call Fateh but it went to voicemail and he then called the claimant and spoke to him. He said that he had told the claimant that he was aware that he was not answering calls from Ms Thompson and that he must take instructions from her when required.

[41]Ms Gleeson was meeting the claimant that day at 11am for his probationary review meeting (this had been postponed from the original date earlier in January 2020 because of Ms Gleeson’s holiday). At that meeting, she raised the concerns that Mr Clutterbuck had referenced in his email. The claimant denied that he had spoken with Mr Clutterbuck on the phone. That was noted down by Ms Gleeson in her file note of this meeting. Ms Gleeson made some positive comments about the claimant’s work (being of a good standard) but noted that his staff engagement was very poor. She commented that there had been a number of meetings which she had needed to have with him since his employment started. Ms Gleeson informed the claimant that his probationary period would be extended by 2 months until 7 March 2020 but that, since that was a Saturday, the Probation Review Meeting would take place on Monday 9 March 2020. Finally, she warned the claimant that she would be monitoring his performance and would provide him with support and if he had any concerns, he was to make her aware of them.

[42]The claimant says that he was put under pressure to sign an inaccurate meeting record and that agency workers, who were not black (specifically Fateh), were not required to sign such a report.

[43]In his oral evidence, the claimant said that Ms Gleeson “asked” him to review and sign the record. Ms Gleeson denied that she forced him or otherwise pressured him to sign it.

[44]The claimant said in his evidence that the meeting note had already been created and was printed off for him to sign. We reject that because the note clearly records things that were being said during that meeting (including his responses and his denial of the phone conversation with Mr Clutterbuck).

[45]We find that Ms Gleeson did ask the claimant to sign the probationary review meeting note but that such a request is not at all unusual or unreasonable. There is no evidence of her forcing him to do so. We do not find that the meeting note was inaccurate. Indeed, the claimant’s denial of the telephone conversation with Mr Clutterbuck is specifically noted.

[46]There is no evidence that Fateh had a probationary review meeting or was asked to sign a record of such any meeting. However, we note that Fateh was not employed by the respondent and so was not working under a probationary period monitored by the respondent.

[47]Ms Gleeson’s evidence, which we accept given that Fateh stopped providing cleaning services to the respondent at around this time, was that she spoke to Munir (SCA’s owner) about Fateh and these events. February 2020 – allocating claimant to clean Block A (Issue 27.2)

[48]Fateh was replaced by another SCA cleaner called Hussein. He, therefore, took over cleaning Block A and part of Block B (instead of Fateh). The claimant continued his usual duties in relation to Block C and part of Block B.

[49]On 14 February 2020, Ms Gleeson held a meeting with the claimant and Munir (of SCA). She referred to residents having raised concerns about comments being made about members of staff employed within the Estate Office and about the claimant spending too much time talking to residents, as well as the content of his conversation. In particular, they were apparently concerned about his comments regarding the recruitment of two new female members of staff. We note here that, in the end, only one of those two new cleaners took up her role. That was SM (to whom we have referred earlier in these Reasons) who started on 24 February 2020.

[50]Ms Gleeson in this meeting also raised concerns about Hussein, in particular about the time he spent on his mobile phone, his attitude and negativity. Munir agreed that this was not acceptable. Ms Gleeson instructed Munir that Hussein was not to return to site and Munir agreed and stated that he would cover Hussein’s shifts until the newly appointed cleaners started in their roles.

[51]Ms Gleeson informed the claimant that she was moving him to Block A with immediate effect due to complaints received from Block C residents and his reaction to them. She reminded the claimant that his probation had already been extended once due to his behaviour towards staff. She reminded him of the importance of carrying out his role in a professional and respectful manner and that he risked being dismissed if there were any further concerns.

[52]From this time onwards, the claimant was assigned to Block A and continued to clean part of Block B. For the next two weeks or so, Munir covered the shifts which Hussein had been carrying out (but now on Block C).

[53]This file note was signed as having been reviewed by the claimant on 26 February 2020.

[54]The claimant says that cleaning Block A was detrimental because it had been left in a bad state by Hussein. The claimant has produced some photos which we have looked at. These look to be communal entryways and show some mould. Ms Gleeson said in her evidence that the claimant was not expected to remove or clean mould (as specialist contractors provided that service). We have seen recorded in the note of the meeting on 26 February 2020 that Ms Gleeson told the claimant to refrain from mould clearance. We, therefore, accept Ms Gleeson’s evidence. We do not find that cleaning Block A was detrimental as compared with cleaning Block C. Alleged protected act (on or around 21 February 2020) (Issue 17)

[55]The claimant says that he raised an informal grievance with the chair of the Management Committee, Sasha Savich on around 21 February 2020. In his evidence, he explained that he had met her on one of the stairwells and told her that he was being treated “unfairly” by Ms Gleeson. He states that Ms Savich advised him to detail his concerns in writing which he subsequently did on 1 April 2020 (after his dismissal).

[56]Ms Savich in her witness statement says that the claimant stopped her in the building stairwell and expressed his unhappiness with the way the Respondent (we take that to be a reference to Ms Gleeson) interacted with him.

[57]Ms Gleeson stated that Ms Savich told her that the claimant had complained about her (that is, Ms Gleeson) and that he was unhappy but that they did not discuss any detail. In her evidence, she explained that Ms Savich had told her that she had advised the claimant to put any complaint in writing and that had not yet happened.

[58]We note that the claimant wrote a short letter to Ms Savich on 31 March 2020 and then put his detailed concerns in writing, on 1 April 2020, to both Ms Gleeson and Ms Savich, after his employment had ended.

[59]In his letter of 31 March 2020, the claimant said that his complaint to Ms Savich had been about Ms Gleeson’s “character”. He does not suggest there (nor in his letter of 1 April 2020) – either expressly or impliedly – that he complained about race discrimination or racial harassment or conduct that would be unlawful under the Equality Act 2010.

[60]In his letter of 1 April 2020, the claimant did use the word “discriminatory” to describe Ms Gleeson; but he described her as being antagonistic to everyone, he accused her of lacking respect towards staff (i.e. in general) and his comment about discrimination specifically was by reference to her treatment of him compared to SCA cleaners. There is no mention of skin colour or race more widely.

[61]In that letter, he also describes Ms Gleeson’s poor treatment of Barney (a white Englishman according to the claimant), saying that Ms Gleeson criticised him for not being qualified to change a light bulb; and he referred to Ms Gleeson shouting at both him and Fateh.

[62]We find that the discussion between the claimant and Ms Savich was a very short one. It was on the stairwell and was not at an arranged meeting. People could easily have passed the claimant and Ms Savich on the stairs so, in that sense, it was not in a private place. In those circumstances, we find that the conversation did not include any detail of the claimant’s concerns. Rather, the claimant told Ms Savich that he was unhappy as he felt that Ms Gleeson was treating him unfairly and she advised him to put his concerns in writing so that they could be looked at. We accept that Ms Gleeson was simply told that the claimant was unhappy and had raised concerns that he was being treated unfairly. 24 – 27 February 2020 – Ms Gleeson yelled and screamed at the claimant about the fact he had raised an informal grievance with Ms Savich (Issues 18.1, 18.2, 22.2 and 22.3)

[63]The claimant says that, on 24 February 2020, he observed Ms Savich and Mr Gleeson speaking in the Estate Office. He assumed that they were talking about the concerns he had raised informally with Ms Savich on the stairwell the previous week. He accepted in his evidence that he did not hear any of the conversation. As we have noted, Ms Gleeson denied that she and Ms Savich discussed the detail of any concerns he had raised. As we have also noted, we do not consider that the claimant did raise his concerns in any detail – he had been told by Ms Savich to put them in writing, rather than discuss them on the stairwell.

[64]However, Ms Gleeson accepts that Ms Savich told her that the claimant had complained that he was unhappy, and we consider it is more likely than not that Ms Savich conveyed this to Ms Gleeson on that Monday morning but without any further detail being discussed.

[65]Nevertheless, there is no sufficient evidential basis for us to find that Ms Gleeson screamed, yelled and shouted at the claimant about the fact he had raised an informal grievance with Ms Savich on the four days alleged (24 to 27 February 2020 inclusive).

[66]We note that, in his letter of 1 April 2020, there is not a single mention in the detailed narrative (including in the section headed “Events leading to my dismissal” where one might expect to see this referred to) of being shouted at, yelled and screamed at by Ms Gleeson about the fact he had raised an informal grievance with the chair. C’s dismissal on 28 February 2020 (Issue 18.3 and 27.3) 24 to 26 February 2020

[67]During February 2020, the respondent went about recruiting two new directly employed cleaners, both female. As things transpired, only one took up her role, starting on 24 February 2020 (SM).

[68]Initially in his evidence, the claimant said that he did not have any conversations with SM at all. However, he then recalled a short conversation on Wednesday 26 February 2020 but said that was the only interaction he had with her.

[69]We note that in his ET1, the claimant states that he and SM in fact interacted, at meetings that week on 25, 26 and 27 February 2020. We also note that in his letter of 1 April 2020, the claimant refers to having been at meetings with SM on 25 and 27 February 2020.

[70]We consider that the claimant’s account of events in his ET1 and his letter of 1 April 2020 is likely to be more accurate, given that they were both written within three months after his employment ended.

[71]We therefore conclude that the claimant and SM had interactions on more than one occasion. 27 February 2020

[72]On 27 February 2020, Ms Gleeson wrote the claimant a letter reminding him of the probation review meeting on 9 March 2020. The claimant does not dispute this and he reviewed and signed the letter.

[73]At that time, therefore, we find that Ms Gleeson was expecting the claimant’s employment to continue at least until 9 March 2020.

[74]Later that day, SM reported to Ms Gleeson that she was unhappy with the claimant’s conduct and, specifically, things he had said to her since 25 February 2020. The comments which she complained about were said to be of a sexual nature both about her and residents. SM also complained about the effect of the comments on her well-being. A file note of that meeting with SM is in the Bundle.

[75]The claimant alleges it was fabricated. The file note was signed and dated by SM. In an email dated 5 April 2022, Donna Fullerton (who had been employed as a temp in the Estate Office in February 2020) confirmed that she had made the file note of the meeting with SM. When the tribunal asked the claimant about this email during his closing submissions, he said that he had never seen the email before and he emailed the tribunal (on the morning of day 4 – so, 1 November 2024) to expand further on this and to allege that the respondent had deliberately tampered with the Bundle. We come back to this matter in our conclusions.

[76]At 16:38 on 27 February 2020, Ms Gleeson sent a copy of the file note by email to a member of the Peninsula HR team asking for guidance.

[77]Ms Gleeson’s evidence, which we accept because it is plausible, is that she was advised by Peninsula that the claimant’s conduct likely constituted gross misconduct and that, given that the claimant was still in his probation period, the respondent could dismiss him without embarking on any disciplinary process at all.

[78]We reach no concluded view on whether the matters SM complained about in relation to the claimant actually happened as she described or at all. That is because what is relevant to the claimant’s complaints in these proceedings is Ms Gleeson’s response to SM’s complaint, not the underlying concerns raised by SM.

[79]The next day (28 February 2020), the claimant was called into a meeting with Ms Gleeson. A resident and member of the respondent’s management committee was present. The claimant was not introduced to him. Ms Gleeson informed the claimant that further issues had been brought to her attention about derogatory comments of a sexual nature regarding tenants and staff. She reminded him that, via the extension to his probation period on 16 January 2020, he had been afforded a further opportunity to demonstrate his suitability for his role but had failed to do so; and she informed the claimant that the respondent had decided to dismiss him with pay in lieu of notice. She handed him a signed copy of the dismissal letter, stating that a copy would be sent via first class post.

[80]The claimant has stated in his evidence and closing submissions that he was not given the detail of the allegations, that there was no proper investigation or any adherence to the disciplinary process. We agree. However, as we have already noted, for employees in their probation period, the respondent reserves the right not to apply its usual policies and procedures (including its disciplinary policy).

[81]The claimant was paid in lieu of notice. We note that, although he had originally asserted a claim for wrongful dismissal, he withdrew that claim on 5 July 2021. Since that does not appear to have been done by the tribunal at the time, we have issued a Judgment dismissing that claim upon its withdrawal (under r.52 Rules of Procedure 2013).

[82]On 12 March 2020, the claimant wrote to the respondent regarding concerns about his working hours and the respondent responded on 17 March 2020. As we have found above, on 31 March 2020 and 1 April 2020, the claimant wrote to Ms Savich and Ms Gleeson raising detailed concerns, some of which we have referenced in these reasons.

[83]Ms Gleeson’s evidence, which we accept because she had done the same thing with the file note of the meeting with SM, is that she passed this correspondence on to Peninsula who considered that, as the claimant was no longer an employee, the correspondence did not need to be addressed. THE LAW Direct discrimination

THE LAW

[84]Section 13 EA 2010 provides that: “(1) A person(a) (A) discriminates against another

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

[85]In respect of each complaint under sections 13(1) and 39(2)(c) and/or (d) of the EA 2010, the tribunal must determine whether the respondent, in dismissing the claimant or subjecting him to any of the other detriments asserted by the claimant in his claim, discriminated against him by treating him less favourably than it treated or would have treated others because of race.

[86]A detriment is something that a reasonable worker in the claimant’s position would or might consider to be to their disadvantage in the circumstances in which they thereafter have to work. Something may be a detriment even if there are no physical or economic consequences for the claimant, but an unjustified sense of grievance is not a detriment: see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

(at paragraphs 34-35 and 104-105).

[87]In determining whether race was a reason for the acts of direct discrimination relied on by the claimant, the tribunal must consider “what, consciously or unconsciously, was the reason” for the treatment (Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, per Lord Nicholls, at paragraph 29). If the claimant’s race was a material (i.e. nontrivial) influence or factor in the reason for the treatment, it will be unlawful discrimination (Nagarajan v London Regional Transport

[1999] ICR 877

[88]In considering whether the treatment of the claimant was because of race, the tribunal needs to be satisfied that it was less favourable (because of race) in comparison to an employee in materially similar circumstances who did not have the same protected characteristic as the claimant (per section 23(1) EA 2010).

[89]The claimant points to the treatment of other cleaners (Fateh, Hussein and Munir) who (he says) were treated more favourably than him. The question will be whether they are proper comparators or whether their circumstances were not materially similar. Even if the latter is the case, they may be used as evidential comparators whose treatment can help the tribunal to evaluate and elucidate whether the claimant was treated less favourably because of race: Leicester City Council v Parmar

[2024] ICR 1115

[90]If there is no actual comparator, the comparison required by section 13 EA 2010 is hypothetical – would a person whose circumstances were not materially different (including their performance at work and their conduct, but who was not the same race as the claimant) have been treated in the same way or more favourably than the claimant and, if so, was the impugned treatment of the claimant because of his race? Victimisation

[91]Pursuant to section 27 EA 2010, a respondent victimises a claimant if it subjects him to a detriment because he does a protected act or the respondent believes that he has done, or may do, a protected act.

[92]Each of the following is defined as a protected act:a. bringing proceedings under EA 2020;

b. giving evidence or information in connection with proceedings under EA 2010;

c. doing any other thing for the purposes of or in connection with EA 2010;

d. making an allegation (whether or not express) that the respondent or another person has contravened EA 2010.

[93]The context of the allegation must indicate a relevant complaint under the EA 2010. Accordingly:a. In Beneviste v Kingston University

UKEAT/0393/05

Dr Beneviste claimed that she had been victimised because she had raised earlier grievances. However, the EAT upheld a tribunal's decision that the grievances did not amount to protected acts, because they did not complain of treatment on the grounds of sex or race. The EAT observed that: ‘There is no need to for the allegation to refer to the legislation, or to allege a contravention, but the gravamen of the allegation must be such that, if the allegation were proved, the alleged act would be a contravention of the legislation. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development because I am a woman" or "because you are favouring the men in the department over the women", her statement would be protected even if there was no reference to the 1975 Act [Sex Discrimination Act 1975] or to a contravention of it.’ The EAT held that merely making a criticism, grievance or complaint without suggesting that it was in some sense an allegation of discrimination or otherwise a contravention of discrimination legislation was not sufficient to amount to a protected act.

b. In Durrani v London Borough of Ealing

UKEAT/0454/12

, the EAT upheld a tribunal's decision that Mr Durrani had not done a protected act. Although he had referred to being "discriminated against" and suffering detriment during his employment, the tribunal found that he had not used the word "discriminated" in any sense other than that he had been unfairly treated generally, not specifically because of race. However, the EAT stressed that each case should be determined on its particular circumstances and its decision should not be taken as a general endorsement that an employee who complains of "discrimination" has not done enough to bring themselves within the scope of section 27 EA 2010.

c. In Fullah v Medical Research Council and another

UKEAT/0586/12

, Mr Fullah was the only black person working in a scientific research unit. He brought an internal complaint of harassment against his manager, alleging that he had been "physically, verbally and psychologically bullied and harassed, discriminated and victimised both directly and indirectly". His grievance was rejected and on appeal he stated that he believed that his manager had subjected him to bullying, harassment, discrimination and victimisation over the course of four years. However, he did not mention race and alleged the manager had treated other employees badly as well. The EAT upheld a tribunal's decision that Mr Fullah had not done a protected act. The tribunal took into account the fact that a year later Mr Fullah made explicit claims of race discrimination, and that he was articulate and well-educated and clearly knew the appropriate language to use for such a claim. The EAT accepted that the word race did not have to appear, but the context had to indicate a relevant complaint, and in Mr Fullah's case, that context was lacking.

[94]Giving false evidence or information, or making a false allegation, is not a protected act if the allegation is made in bad faith (section 27(3) EqA). The tribunal must, therefore, be satisfied both that the allegation is false (i.e. not true) and that, in making the allegation, the claimant was acting in bad faith. Here, it is not a part of the respondent’s case that the claimant made a false allegation (to Ms Savich, the chair of the management committee) in bad faith and we see no reason to go behind that. Indeed, we consider it would be potentially unfair to explore that issue, since it was not explored as an issue during the proceedings.

[95]The employer must subject the employee to the alleged detriment “because” of the protected act. In other words, the protected act (or the suspicion) must be a real or effective cause of the detriment (see Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

(HL)).

[96]Where there is more than one motive, the discriminatory reason must simply be of “sufficient weight” (O'Donoghue v Redcar and Cleveland Borough Council

[2001] EWCA Civ 701

at [26]) or should have had “a significant influence on the outcome” (Nagarajan (above)).

[97]Accordingly, it is vital for the tribunal to consider the conscious or unconscious state of mind of the individual who is alleged to be responsible for the detriment (or dismissal). The protected act relied on by the claimant must be an effective cause of that individual’s treatment of the claimant. Detriment (discrimination & victimisation)

[98]Pursuant to sections 39(2) & (4), an employer must not discriminate against or victimise an employee:a. as to his terms of employment

b. the way the employer affords the employee access, or by not affording him access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

c. by dismissing the employee;

d. by subjecting him to any other detriment.

[99]As to what is meant by “detriment” in section 39(4)(d), this must be examined from the perspective of the employee but, per Ministry of Defence v Jeremiah

[1980] ICR 13

, at paragraph 31, a detriment will only exist if a reasonable worker would also take the view that the treatment was to his detriment.

[100]Accordingly, and pursuant to Shamoon (above), an “unjustified sense of grievance cannot amount to ‘detriment’” [637]. The Shamoon principle was expressly applied to victimisation in Warburton v Chief Constable of Northamptonshire Police

[2022] EAT 42

, in which the EAT also held, at paragraph 51, that: ‘Although the test is framed by reference to “a reasonable worker”, it is not a wholly objective test. It is enough that such a worker would or might take such a view. This is an important distinction because it means that the answer to the question cannot be found only in the view taken by the employment tribunal itself. The tribunal might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied.’ Harassment

[101]Pursuant to section 40 EA 2010, an employer must not harass an employee. Section 26 EA 2010 provides: “(1) A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant 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 [for short we will refer to this as a “proscribed environment”]. … (4) In deciding whether conduct has the purpose or effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[102]The meaning of ‘related to’ is distinct from and broader than the ‘because of’ formulation under s.13. It is not, however, to be reduced to a but-for test and it is not enough to point to the relevant characteristic as the mere background to the events. As Underhill LJ said in UNITE the Union v Nailard

[2019] ICR 28

: ‘… The necessary relationship between the conduct complained of and the claimant’s gender was not created simply by the fact that the complaints with which they failed to deal were complaints about sexual harassment — or, in the case of Mr Kavanagh, that part of the situation that led him to decide to transfer the claimant was caused by such harassment.’

[103]In considering whether a comment that is said to amount to harassment is conduct related to the protected characteristic, the tribunal has to ask itself whether, objectively, the comment relates to the protected characteristic. The knowledge or perception by the person said to have made the remark of the alleged victim’s protected characteristic is relevant to the question of whether the conduct relates to the protected characteristic but is not in any way conclusive. The tribunal should look at the evidence in the round (per HHJ Richardson in Hartley v Foreign and Commonwealth Office Services

UKEAT/0033/15/LA

at [24-2].)

[104]In considering whether the conduct is related to the protected characteristic, the tribunal must focus on the conduct of the individuals concerned and ask whether their conduct is related to the protected characteristic (Nailard, at paragraph 80).

[105]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

HHJ Auerbach gave further guidance: ‘[21] Thirdly, although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient. The conduct must merely be found (properly) to relate to the characteristic itself. The most obvious example would be a case in which explicit language is used, which is intrinsically and overtly related to the characteristic relied upon. Fourthly, whether or not the conduct is related to the characteristic in question, is a matter for the appreciation of the Tribunal, making a finding of fact drawing on all the evidence before it and its other findings of fact. The fact, if fact it be, in the given case that the complainant considers that the conduct related to that characteristic is not determinative. [24] However, as the passages in Nailard that we have cited make clear, the broad nature of the ‘related to’ concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual’s conduct was related to the characteristic in question. Ms Millns confirmed in the course of oral argument that that proposition of law was not in dispute. [25] Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.’ [emphasis added] [See also Wasteney v East London NHS Foundation Trust

[2016] ICR 643

]

[106]In Weeks v Newham College of Further Education

UKEAT/0630/11/ZT

, Langstaff J said this at paragraph 21: ‘An environment is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned. We cannot say that the frequency of use of such words is irrelevant.’

[107]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

(at paragraphs 15 and 22), Underhill J (as he was) said: ‘15…A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard….Whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt. 22…We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…’

[108]A finding that it is not objectively reasonable to regard the conduct as harassing is fatal to a complaint of harassment. That point may not be crystal clear on the face of section 26 Equality Act 2010 but see the obita dicta of Underhill LJ in Pemberton v Inwood

[2018] IRLR 557

at paragraph 88 and the ratio of Ahmed v The Cardinal Hume Academies, unreported EAT Appeal No.

UKEAT/0196/18/RN

in which Choudhury J (at paragraph 39) held that Pemberton indeed correctly stated the law. Burden of Proof

[109]For claims under the EA 2010 (including for direct discrimination, victimisation and/or harassment), the burden of proof is on the claimant initially under s.136(1) EA 2010 to establish facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has directly discriminated against him and/or subjected him to race-related harassment and/or victimised him.

[110]In the case of direct discrimination, this requires more than that there is a difference in treatment and a difference in protected characteristic (Madarassy v Nomura International plc

[2007] ICR 867

at paragraph 56). There must be evidence from which it could be concluded that the protected characteristic was part of the reason for the treatment. The burden then passes to the respondent under s 136(3) to show that the treatment was not discriminatory: Wong v Igen Ltd

[2005] ICR 931

[111]This same approach was applied to a claim for victimisation in Greater Manchester Police v Bailey

[2017] EWCA Civ 425

, in which the Court of Appeal held at [29] that “It is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act”.

[112]This does not mean that there is any need for a tribunal to apply the burden of proof provisions formulaically. In appropriate cases, where the tribunal is in a position to make positive findings on the evidence one way or another, the Tribunal may move straight to the question of the reason for the treatment: Hewage v Grampian Health Board

[2012] UKSC 37

[2012] ICR 1054

, per Lord Hope (at paragraph 32). In all cases, it is important to consider each individual allegation of discrimination separately and not take a blanket approach (Essex County Council v Jarrett

UKEAT/0045/15/MC

at paragraph 32), but equally the Tribunal must also stand back and consider whether any inference of discrimination should be drawn taking all the evidence in the round: Qureshi v Victoria University of Manchester

[2001] ICR 863

, per Mummery J (at 874CH and 875C-H). Time issues

[113]For discrimination cases under s.123(1)(a) EA 2010 a claim concerning work-related discrimination under Part 5 of the EA 2010 (other than an equal pay claim) must be presented to the employment tribunal within the period of three months beginning with the date of the act complained of. This is subject to the extensions of time permitted by the ACAS Early Conciliation provisions, i.e. by virtue of s 140B of the EA 2010, any period of ACAS Early Conciliation is to be ignored when computing the primary time limit, and if the primary time limit would have expired during the ACAS Early Conciliation period, it expires instead one month after the end of that period. If a claim is not brought within the primary time limit, the Tribunal has a discretion under s.123(1)(b) to extend time if it considers it is just and equitable to do so.

[114]In computing the primary time limit, conduct extending over a period is to be treated as done at the end of the period (s.123(3)(a)). Failure to do something is to be treated as occurring when the person in question decided on it, which includes doing something inconsistent with doing it or on the expiry of the period in which the person might reasonably have been expected to do it (s 123(3)(b) and (4)).

[115]An alleged act of discrimination (or harassment or victimisation) cannot be said to be part of “conduct extending over a period” within the meaning of s.123(3)(a) EA 2010 where that alleged act is then found not to constitute discrimination, harassment or victimisation: see South West Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

[116]The burden is on the claimant to satisfy the tribunal that it is just and equitable to extend time. In Robertson v Bexley Community Centre t/a Leisure Link

[2003] EWCA Civ 374

[2003] IRLR 434

, the Court of Appeal stated (para 24) that when employment tribunals consider exercising the discretion under what is now s.123(1)(b) EA 2010, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’

[117]Although the tribunal has a broad discretion, two factors are almost always relevant: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent: see Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

(at paragraph 19). CONCLUSIONS Fabricated documents

CONCLUSIONS

[118]The tribunal considers it is convenient first to make conclusions about the four documents which the claimant alleges have been fabricated by Ms Gleeson (and/or the respondent) since his dismissal.

[119]We consider that these documents are all authentic.

[120]We are not experts in the field of authentication of documents and we heard no expert evidence on this issue.

[121]However, having looked at the documents said to be the originals of the four disputed documents included in the Bundle (which the respondent brought along to the tribunal on day 2, at our suggestion), we note that: i. The file note of the meeting with SM (on 27 February 2020) was sent that same day under cover of an email at 16:38 to Peninsula seeking advice on next steps. Accordingly, on the balance of probabilities, we conclude that the file note had been prepared that day about an actual meeting that happened that day with SM. ii. We note the email from Donna Fullerton (temporary office administrator) (dated 5 April 2022) in which she confirms that she made the file note of the meeting with SM. Although the claimant also now (on the morning of day 4, via emails to the tribunal) disputes its authenticity, that is solely on the basis that it was not included in an earlier version of the hearing bundle sent to the claimant on 20 May 2022. However, the emails produced on behalf of the respondent on the morning of day 4, show that Ms Fullerton’s email was only sent on to Peninsula by Ms Gleeson on 7 July 2022 and that the bundle was updated on 22 July 2022, with the claimant being sent a link to the revised bundle on 23 August 2022. In the email of that date, Peninsula did point out that the bundle had been updated with one further email (added as the last four pages in the bundle). The tribunal concludes that there is no basis to determine that the email is not genuine or that the bundle has been tampered with. We conclude that the claimant was provided with the updated bundle, including that email, on 23 August 2022. Finally, the claimant was referred to the updated Bundle (of 23 August 2022) in an email from the respondent’s representative on 18 October 2024, he was re-sent a copy of the updated bundle on Monday 28 October 2024 and he had an opportunity to comment on Ms Fullerton’s email, during the Hearing, and so there is no prejudice to him by reason of its inclusion in the updated bundle. iii. Although we invited the claimant to make any observations about anything he had noted as suspicious or otherwise notable about the original versions of the four disputed documents in the Bundle, he did not have any specific comments. iv. Looking at the original versions of the disputed documents ourselves, we cannot find any evidential basis for the claimant’s allegation that these four documents have been fabricated. For example, we note that, in each case, the handwritten signatures and dates on the documents are written in pen (not photocopied). v. The file note of the meeting on 14 February 2020 is signed and dated by the claimant on 26 February 2020. On the balance of probabilities, we think it likely that if somehow or for some reason this was forged, it is very unlikely that the date of 26 February 2020 would have been used (rather than the date of 14 February). vi. The claimant maintained that the file note of the meeting on 26 February 2020 (at 10:35am) (to discuss a complaint made by the resident of Flat 64) was fabricated, stating in his witness statement and in oral evidence that the meeting never took place and that he did not sign or date this document. However, in his ET1 (page 21), he goes into lengthy detail about the meeting on Wednesday 26 February 2020 and states that Ms Gleeson wrote a report about it, that he was not permitted to explain his part and that she asked him to sign the report, which he did “just to get out of the office”. We conclude that the narrative in the ET1 is more accurate; and that the meeting did take place, along the lines set out in the meeting note, and that the claimant did sign and date it. The document is not, therefore, in our judgment, a fabrication. Background evidence / adverse inferences / shifting of burden of proof

[122]The claimant’s complaints are that, in respect of each of the six events giving rise to complaints of direct race discrimination, race-related harassment and victimisation, Ms Gleeson was consciously or unconsciously motivated to subject him to detrimental and harassing treatment (and to dismiss him) because of or for reasons relating to race (the claimant being black) and/or because he had made a complaint to Ms Savich (chair of management committee) which he says was a protected act under the EA 2010.

[123]At the outset we note that the claimant’s case about discrimination and harassment is based on a premise that Ms Gleeson’s treatment of him was because of or related to his skin colour.

[124]This is largely a case where the claimant points to alleged ill-treatment by Ms Gleeson and then points to his protected characteristic and/or protected act, without proving facts from which we could conclude that he had been subjected to direct race discrimination, race-related harassment and/or victimisation. As we have noted, case law tells us that unfavourable treatment and a protected characteristic or a protected act, without more, does not constitute discrimination, harassment or victimisation.

[125]We have considered the wider background facts to determine whether there are facts from which we could conclude that an effective cause of Ms Gleeson’s treatment of the claimant was race and/or a reason relating to race and/or his alleged protected act.

[126]We conclude that there is no such wider evidence.

[127]We have, for example, considered whether the fact that the respondent did not comply with its disciplinary procedure on 28 February 2020 when dismissing the claimant might be something from which we could draw an adverse inference of discrimination or victimisation and/or which could help to shift the burden of proof on the respondent.

[128]However, it is fully explained by(1) the fact that the respondent took HR advice from its external HR and legal consultants, Peninsula, who advised that – since the claimant had only been employed for a few months and was still in his probationary period – the respondent was not required to go through the usually mandated disciplinary process; and

(2) the respondent’s own internal guidance (in its Employee Handbook) expressly states that the disciplinary (and, indeed, capability) policies can be disapplied during an employee’s probationary period.

[129]We have also considered whether the failure by the respondent to respond to the claimant’s letter of 1 April 2020 is something, in the particular circumstances of this case, from which we could draw an adverse inference of discrimination, harassment or victimisation and/or which could help to shift the burden of proof.

[130]Had the essence of the claimant’s letter been about race-related harassment, race discrimination or victimisation (in the legal sense, under the EA 2010), which the respondent had then completely failed to respond to, this might have been a matter from which we could conclude that the respondent’s treatment of the claimant was because of or related to race and/or a protected act but – as we have found – the letter complained about Ms Gleeson’s antagonistic, oppressive and disrespectful behaviour towards those around her and to staff in general. Where discrimination was referenced by the claimant, the differentiation relied on by him was between him (as an employee) as compared with Star Cleaners (agency staff). In the letter, there is no express or implied allegation of race discrimination or racerelated harassment. Furthermore, whilst the claimant alleges that he was dismissed because Ms Gleeson was unhappy that he had raised concerns with Ms Savich, there is no express or implied allegation that this was victimisation in the legal sense (i.e. by reference to a protected act). As such, the circumstances of the respondent’s failure to acknowledge or reply to this letter do not provide a proper basis from which to make appropriate adverse inferences and/or otherwise to shift the burden of proof.

[131]In addition, we conclude that there are factors which point away from race (the claimant being of black African origin) and/or away his alleged protected act being any part of Ms Gleeson’s treatment of the claimant: i) Ms Gleeson shared excellent feedback about the claimant with him in a meeting on 31 October 2019 and in her formal Estate Manager’s Report of 19 November 2019, and even in the probation review meeting on 16 January 2020, and again on 14 February 2020. ii) Indeed, Ms Gleeson was responsible for extending the claimant’s probation in January 2020, rather than dismissing him as she could have done. This tends to show that she was hoping that he would succeed, rather than wanting to get rid of him at the first opportunity. iii) There is no evidence of any complaints of race discrimination against Ms Gleeson by others (residents or staff). iv) On the claimant’s own case, he did not complain to Ms Savich about race discrimination (either expressly or impliedly). As he confirmed in his oral evidence (on day 2), he complained about being treated “unfairly” by Ms Gleeson. He did not mention skin colour or race more widely. His witness statement (at paragraph 149), in this regard, is ambiguous. He says he complained about Ms Gleeson’s “racist” conduct and discriminatory behaviour but there is no other evidence to support the claimant’s assertion that he described it in those terms, particularly given his failure to describe Ms Gleeson’s conduct in that way in his letter of 1 April 2020. Moreover, in his ET1, he does not assert that he told Ms Savich that he wished to complain about “racist” conduct or race discrimination or that he felt he was being badly treated because he was black or for reasons relating to the colour of skin. v) As we have noted, the claimant’s concerns, as communicated in considerable detail in his letter of 1 April 2020 did not refer to race discrimination or race-related harassment or victimisation (in the legal sense). Rather, he referred to Ms Gleeson’s ill treatment of others who did not share his protected characteristic (i.e. who were not black). We reach no concluded view on whether Ms Gleeson was, for example, generally antagonistic to everyone (as alleged by the claimant) but it is significant, in our view, that the claimant himself – shortly after his dismissal – complained about Ms Gleeson as being unfair and overbearing towards him and others and did not suggest that she discriminated against him because of or related to the colour of his skin. vi) In the letter of 1 April 2020, whilst we have noted that the claimant did use the word “discriminatory” to describe Ms Gleeson, he did not relate this (expressly or impliedly) to skin colour or race more widely; and, indeed, read in the context of the letter overall, it is clear that he was using this word to describe the different treatment afforded to agency cleaners in comparison to him as a directly employed cleaner. The basis of the discrimination was not skin colour but employment status (employee versus agency). vii) When Ms Gleeson was unhappy with Hussein’s work, she instructed SCA to ensure that he did not return to work at the respondent’s site. In this way, she was instrumental in terminating the arrangement for Hussein to provide cleaning services to the respondent. The claimant’s case is that cleaners such as Fateh and Hussein were more favourably treated because they are not black (being of North African origin and much lighter-skinned than the claimant). Yet Ms Gleeson’s treatment of Hussein in mid-February 2020 was, on its face, less favourable to her treatment of the claimant at that time (because the claimant’s job as a cleaner was permitted to continue, whilst Hussein’s was not) This tends to suggest that the claimant’s race (black African origin) and/or the race of Hussein (or Fateh) (North African and non-black) was not an effective cause of nor any part of the reason for Ms Gleeson’s treatment of them.

[132]We have, therefore, concluded that there is no background evidence which points towards race and/or the alleged protected act being any part of the treatment which forms the basis of the claimant’s claims in these proceedings and/or which shifts the burden of proof onto the respondent.

[133]We now turn to our conclusions in respect of the specific complaints. Issue 22.1 – conduct at the bin stores regarding cardboard boxes (race- related harassment)

[134]We have found that Ms Gleeson did not yell and shout at the claimant about the cardboard boxes she found at bin store B. In that sense, the claimant has not proved the necessary facts in this allegation. Nevertheless, we have also found that Ms Gleeson was probably disappointed about the accumulation of rubbish, including the cardboard boxes, and likely expressed that view forcefully to all around her, including Fateh, who was also present. The tribunal accepts that this was unwanted conduct, as least as far as the claimant is concerned.

[135]However, Ms Gleeson’s criticism and disappointment about the state of the bin stores was conveyed to all those who were present and there is no evidence that her conduct was related to race.

[136]Furthermore, the tribunal does not consider that the conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading or offensive environment for him. Whilst that may have been his perception, the disappointment and criticism expressed by Ms Gleeson about the cardboard boxes was not by way of yelling and shouting. As such, if that was the claimant’s perception, it was not reasonable for him to perceive the conduct as harassment.

[137]This complaint of race-related harassment is, therefore, not well-founded and does not succeed. Issue 27.1 – 16 January 2020 meeting record (direct race discrimination)

[138]The tribunal has found that Ms Gleeson asked (but did not pressure) the claimant to review the file note of the probation review meeting on 16 January 2020. We have also found that the file note was not inaccurate. As such, the claimant has not proved the key facts of this allegation and has not demonstrated that he was subjected to any detriment.

[139]Fateh did not have a probationary review meeting and, therefore, he was not asked to sign a record of such a meeting. However, Fateh was not directly employed by the respondent and we, accordingly, conclude that, unlike the claimant, he would not therefore have been subject to a probationary process monitored by Ms Gleeson.

[140]We consider that, in respect of this incident, Fateh is not an appropriate comparator within the meaning of section 23 EA 2010 because his employment status (i.e. as a Star Cleaner Agency worker) was a relevant factor in the treatment complained of. Indeed, that was the reason for the difference in treatment between the claimant and Fateh, not race.

[141]Accordingly, the claimant was not subjected to less favourable treatment because of race and this complaint is not well-founded. Issue 27.2 – assigning claimant to clean Block A (direct race discrimination)

[142]We have found that the claimant was assigned away from Block C to clean Block A instead with effect from 14 February 2020 after concerns had been raised by residents in Block C. The tribunal notes that, at this time, Ms Gleeson instructed SCA that Hussein was not to return to the site because of his poor attitude. The claimant describes Hussein as white or lightskinned. Munir (the owner of SCA) took on the cleaning of Block C (the claimant’s previous block) until SM, the new female cleaner recruited by R started in her role on 24 February 2020. The tribunal notes that SM is described by the claimant as being black and Munir is described by him as white or light-skinned.

[143]Consequently, the interim cleaner of Block C (Munir) was light-skinned; the new cleaner of Block C (from 24 February 2020) (SM) was black; and the cleaner who had previously cleaned Block A (Hussein) was a Star Cleaning Agency worker, who was light-skinned.

[144]There are no facts from which we could conclude that the reason for the claimant being assigned to Block A was race. The reason had everything to do with the fact that residents of Block C had complained about the claimant; and, therefore, to ensure operational effectiveness and to be pragmatic, AG decided to move the claimant away from Block C to Block A. In any event, as we have found, moving the claimant to Block A was not a detriment.

[145]This complaint of direct race discrimination is not well-founded and does not succeed. Issues 18.1, 18.2, 22.2 and 22.3 – Ms Gleeson shouted/screamed/yelled at the claimant on 24, 25, 26 & 27 February 2020 about the claimant having raised an informal grievance with Sasha Savich (victimisation and race-related harassment) Protected act (Issue 17)

[146]We then need to determine whether the claimant did a protected act by raising concerns informally with Sasha Savich a week or so before his dismissal.

[147]The tribunal has concluded that it is more likely than not that the claimant did not reference his colour or race more widely in the short conversation on the stairwell with Ms Savich. We have determined that the claimant referred to unfair treatment by Ms Gleeson but did not relate this, expressly or impliedly to his colour or to race more generally. We have reached this conclusion because of the way the claimant has described his conversation with Ms Savich in his ET1 and in his letter of 1 April 2020, only later in these proceedings stating that he spoke about “racist” conduct. In his oral evidence, he stated that he complained about Ms Gleeson’s “unfair” treatment of him. We have also had regard to the fact that both Ms Gleeson and Ms Savich state that the claimant expressed his unhappiness about unfair (but not racially discriminatory) treatment.

[148]The claimant, therefore, did not do a protected act within the meaning of section 27(1)(a) and (2) EA 2010.

[149]We have considered section 27(1)(b) EA 2010 (which provides that victimisation, as prohibited in the 2010 Act, can also occur where a person is subjected to a detriment by another because that other person believes they have done or may do a protected act).

[150]The difficulty with this, however, is that the claimant has not put his case that way and this was not one of the issues identified following a lengthy discussion at the preliminary hearing on 9 February 2022 (as confirmed at the outset of the final hearing this week) and, furthermore, the claimant did not cross-examine Ms Gleeson on this. We have, in any event, asked ourselves whether there is anything in the evidence which we have seen and heard which could lead us properly to conclude that Ms Gleeson believed that the claimant had done or was going to do a protected act and we record here that we have not found such evidence.

[151]Turning now to the complaints of victimisation and race-related harassment – namely, that on 24, 25, 26 and 27 February 2020, Ms Gleeson subjected the claimant to race-related harassment by screaming, shouting and yelling at him about the fact he had raised an informal grievance with Ms Savich, the chair, and/or conducted herself in this way because he had done a protected act, such that this constituted victimisation.

[152]Issues18.1 and

18.2 are not well-founded because, as we have concluded, the claimant did not do a protected act and so none of Ms Gleeson’s conduct can have constituted victimisation as defined in the EA 2010.

[153]In any event, we have concluded that Ms Gleeson did not shout, yell and scream at the claimant about the fact he had raised informal concerns with Ms Savich. The claimant has the initial burden of proving that this conduct took place and he has failed to discharge that burden – we have noted that, in his detailed letter of 1 April 2020, he does not assert that Ms Gleeson shouted at him about having complained informally to Ms Savich.

[154]That conclusion also disposes of issues 22.2 and 22.3 (the complaints of race-related harassment) – the claimant has not proved that Ms Gleeson conducted herself in the way he alleges. In any event, we also record that there is no evidence that Ms Gleeson’s conduct more generally was related to race and, for that reason too, this complaint would not have been wellfounded.

[155]Accordingly, the complaints of victimisation and race-related harassment, at issues 18.1, 18.2, 22.2 and 22.3 are not well-founded and do not succeed. Issues 18.3 and 27.3 – claimant’s dismissal (victimisation and direct race discrimination)

[156]The claimant’s final complaints are for victimisation and direct race discrimination in respect of his dismissal.

[157]On our findings, the claimant was not dismissed because of any protected act because he did not do a protected act. The victimisation claim is not well-founded and does not succeed.

[158]In any event, we conclude that the reason for the claimant’s dismissal is clear – Ms Gleeson had mounting concerns about the claimant’s performance in his role. Although his cleaning work was generally good, there had been both positive and negative feedback, and concerns had been raised by residents about him talking too much and about the content of his discussions (namely, derogatory comments being made about staff and some residents). The claimant’s probation had to be extended on 16 January 2020 and issues were raised with him on 14 February 2020 and again on 26 February 2020.

[159]However, on 27 February 2020, Ms Gleeson wrote to the claimant to remind him of the probation review meeting fixed for 9 March 2020. At that point in time, therefore, we conclude that Ms Gleeson considered that the claimant’s employment would continue until at least 9 March 2020. That all changed on 27 February 2020 with the complaint made by SM about the claimant’s comments of a sexual nature allegedly made to her that week and noted in the file note of the meeting between SM and Ms Gleeson, minuted by the office temp, Donna Fullerton.

[160]We have found that Ms Gleeson immediately took HR advice from Peninsula and, as a result of SM’s complaint, fortified by the guidance from Peninsula, Ms Gleeson decided to bring the claimant’s employment to an end, which he was told the next day (28 February 2020).

[161]The claimant was dismissed and he is black but he has not proved facts from which we could conclude that the dismissal was racially discriminatory and the burden of proof has not shifted to the respondent. In any event, we are entirely satisfied that race played no part whatsoever in Ms Gleeson’s decision to dismiss which was based solely on her view of the claimant’s conduct towards SM, against a background of other concerns about his performance in his role.

[162]As such, the dismissal complaints of victimisation and direct race discrimination are not well-founded and do not succeed. Concluding remarks

[163]In considering the discrimination, harassment and victimisation complaints, we have stepped back and reviewed the overall picture reflected in the evidence we have seen and heard. We have asked ourselves whether there are facts in the background which may have provided any sufficient evidential basis from which to draw inferences that the claimant’s race and/or any alleged protected act had any material influence on the treatment about which the claimant has raised complaints in these proceedings. We are satisfied that there is no such background evidence, and that looking at the complaints both individually and overall, we conclude that race and/or any protected act were not effective causes of the dismissal or the detrimental treatment complained about.

[164]Given our conclusions, we have not gone on to make any determinations as to whether any of the claimant’s complaints are out of time and, if so, whether they constitute conduct extend over a period and/or whether it would have been just and equitable to extend time.