Mr J Aslam v London General Transport Services Ltd T/a Go Ahead London: 2303508/2019
EMPLOYMENT TRIBUNALS
Case No 2303508/2019
Between
Mr J AslamClaimantLondon General Transport Services Ltd T/a Go Ahead LondonRespondent
Before
Employment Judge FergusonMr R O’Dair (instructed by counsel) for claimantMr I Maccabe (instructed by counsel) for respondentDate 24 January 2022
JUDGMENT
It is the judgment of the Tribunal that: The time limit under s.123 of the Equality Act 2010 is extended such that the Tribunal has jurisdiction to hear the Claimant’s claim. JUDGMENT It is the unanimous judgment of the Tribunal that:[1]The Respondent’s rejection of the Claimant’s job application on 29 March 2019 amounted to direct disability discrimination and victimisation.[2]A remedy hearing will take place on 21-24 June 2022. Notice of the hearing and directions have been sent separately.
REASONS
INTRODUCTION
[1]By a claim form presented to the Tribunal on 31 July 2019, following a period of early conciliation from 23 May to 23 June 2019, the Claimant brought complaints of direct disability discrimination and victimisation against the Respondent relating to an unsuccessful job application.[2]This hearing was limited to liability only and the issues were agreed at a preliminary hearing as follows: Disability(i) Was the claimant a disabled person in accordance with the Equality Act 2010 (“EQA”) at all relevant times because of anxiety/depression? EQA, section 13: direct discrimination because of disability(ii) It is not in dispute that the respondent rejected the claimant’s application for employment on 29 March 2019.(iii) Was that treatment “less favourable treatment". is. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators.(iv) If so, was this because of the claimant’s disability and/or because of a perceived disability (anxiety/depression)? Equality Act, section 27: victimisation(v) Did the claimant do a protected act and/or did the respondent believe that the claimant had done or might do a protected act? The claimant relies upon the complaint of disability discrimination which he brought against Metroline in January 2019.(vi) Did the respondent reject the Claimant’s application for employment because the claimant did a protected act and/or because the respondent believed the claimant had done, or might do, a protected act?[3]The Respondent has since conceded that the Claimant was a disabled person at all material times due to anxiety/depression.
FACTS
[4]On 1 March 2019 the Claimant applied for a job with the Respondent as an iBus Controller. It is not in dispute that he was qualified for the position. The Claimant had worked for another bus company, Metroline, for more than 16 years and had been promoted to Senior Operations Supervisor. He was subjected to disciplinary proceedings in 2018 relating to alleged improper viewing of CCTV footage and as a result was demoted to driver and issued with a final written warning. On appeal he was regraded to Operations Support Supervisor, still one step below his substantive position, and the same level as the iBus Controller position he applied for with the Respondent.[5]There were around 120 applications for 5 vacancies and there was scope to recruit others to a lower grade role but suitable for the position in the future.[6]In the Claimant’s application form, in the section on professional experience, he wrote of his role at Metroline: “Dismissed under medical capability awaiting tribunal hearing”.[7]The recruitment exercise was managed by Sajid Chaudry, Service Manager for Area Delivery, and Takmil Kiani, then Deputy General Manager.[8]Around 45 applicants, including the Claimant, were shortlisted for interview.[9]The Claimant’s interview took place on 15 March 2019. It consisted of a 30- minute skills-based assessment and a 30-minute interview.[10]The interview was conducted by Mr Chaudry and Mr Kiani. Mr Chaudry led the interview and Mr Kiani took notes on a laptop. The notes were taken in a pro forma document that lists 10 standard questions. The first question is “What makes you suitable for the role? And why should we give you the position”, which Mr Kiani described as an ice-breaker. It had no scoring associated with it, whereas all the other questions had a space to give a score. The notes record only an answer to the first question. They read as follows: “1. What makes you suitable for the role? And why should we give you the position Answer: Dvr with Metroline 2001, experience / knowledge of the industry, controller 2003 (managing route performance). Senior operations supervisor. Managing supervisors, liaising with senior managers, route performance, health & safety. SC: I worked at First Group and know the garages and some people, what made you leave Metroline? JA: Right, I’m going to be very honest and tell you exactly what happened. I was a senior operations supervisor around 2017. I got my self-involved with a female driver. So basically I was dating her. There was an incident and I viewed the CCTV. I saw that she was on the phone. I reported her and because of that, she put in a grievance against me. They investigated and I was done for not following the company’s procedure. I was demoted back to controlling. l appealed this but lost. I was a very good worker and always honest. They didn’t treat me right. I put in grievances. l was moved to a different garage. I was mistreated there as well where I put further grievances. l was not one for putting in grievances but all this was getting too much. I started getting anxiety and depression for which I was getting counseling. I was off work for over four months. After departing from Metroline in 2019, the case is still ongoing against Metroline which is with IT. I am still getting treatment. I’ve been in a dark place and have isolated myself. I finally decided to get myself back on track and that's why I’ve applied for this job.”[11]Broadly speaking both parties accept that that is an accurate, although not verbatim, record of what the Claimant said. However, both agree that the Claimant described the relationship with the female driver as “toxic”, or at least said they were not on good terms.[12]There are a few minor disputes about precisely what was said: 12.1. The Claimant says that he explained he had been demoted to driver, not to “controlling”. He accepts, however, that the notes reflect accurately what had actually happened in the end, i.e. after his appeal. In those circumstances we consider it likely that he explained during the interview that he was regraded to controller on appeal. 12.2. The Claimant’s account of the interview in his witness statement is that he said he was disciplined unfairly, i.e. he did not accept he breached the procedures relating to CCTV or the GDPR. Mr Chaudry and Mr Kiani say the Claimant “effectively accepted” in the interview that he had committed a serious breach of company procedure. In fact there may not be any factual dispute here. Given that it is accepted that the Claimant said he appealed, he must have explained that he contested the disciplinary charges. He also said “they didn’t treat me right”. He also, however, accepted his appeal was unsuccessful. We consider this is not so much a dispute about what was said, as about what inferences were drawn. Mr Chaudry and Mr Kiani formed the impression, given the eventual outcome of the disciplinary proceedings, which still involved a demotion, and having heard the Claimant’s description of the background, that there was likely to have been a serious breach of procedures relating to data protection. 12.3. The Claimant also says that he made Mr Chaudry and Mr Kiani aware that his mental health condition met the definition of a disability under the EQA. The Respondent denies that. There is no mention of disability in the notes and the Claimant accepts he did not ask for any adjustments for the interview. We find on the balance of probabilities the Claimant did not expressly say his mental health condition was a disability under EQA. Again, however, there is a distinction to be drawn between what was said and what conclusions or inferences were drawn from what was said. It is not disputed that, as recorded in the notes, that the Claimant said he developed anxiety and depression following mistreatment by his previous employer after he was moved to a different garage, that he was off work for more than four months and that after leaving he was still getting treatment and was “in a dark place”. Both Mr Chaudry and Mr Kiani said in their witness statements that they had attended recruitment and interview training and a diversity and inclusion course. Mr Kiani had also attended equality and discrimination training at the Respondent’s solicitors. We find that both managers must have recognised that the Claimant may well consider himself a disabled person under EQA because of his mental health issues. 12.4. There is also a dispute about whether the Claimant said the Tribunal proceedings against Metroline included discrimination. There is a judgment of Watford Employment Tribunal in the bundle which suggests that the Claimant had in fact brought a claim of disability discrimination against Metroline on 25 January 2019. As to what was said during the interview, Mr Chaudry and Mr Kiani say that the Claimant did not say his claim was one of discrimination and they understood the proceedings to be for unfair dismissal. Given there is no mention of discrimination in the notes, we are not satisfied that the Claimant said that the claim included discrimination. Nor is there any basis to find that Mr Chaudry and/or Mr Kiani must have realised it was a claim for discrimination. Even though they would have recognised that the Claimant might consider himself a disabled person, it does not necessarily follow that any claim against Metroline was likely to be for disability discrimination. The Claimant had only mentioned the fact of his dismissal on medical grounds and the fact of the Tribunal proceedings. That is not a sufficient basis to establish that Mr Chaudry or Mr Kiani knew that the Claimant had done a protected act. 12.5. The Claimant says that Mr Chaudry said after he had finished his explanation: “you sound like a troublemaker”. This is denied by the Respondent. We return to this issue below. 12.6. There is also a dispute about whether Mr Kiani asked the Claimant about his marital status, but that is not relevant to the issues we are deciding.[13]There is also a minor dispute about how long the Claimant was talking. He says around 15 minutes, 20 maximum. Mr Chaudry said it was almost the whole time allocated for the interview, i.e. 25-30 mins. Mr Kiani said it was more than the time allocated for the interview. Again, we do not consider it necessary to resolve this. The Respondent’s witness accepted that regardless of how much time was left, the interview was effectively abandoned after the Claimant’s explanation because they were “gobsmacked” and had decided they were not going to offer him the job.[14]On 29 March 2019 the Claimant was informed his application was unsuccessful.[15]A spreadsheet completed for internal purposes records the Claimant’s application as unsuccessful and the reason given is “poor references”. Mr Kiani said in response to questions from the Tribunal that he had completed that entry and said it was meant to be an aide-memoire for what the Claimant had said in his interview. He accepted that that was not what would normally be meant by poor references. He confirmed no references had been requested in respect of the Claimant.[16]The Claimant requested feedback on his interview. This was provided, in consultation with Mr Chaudry and Mr Kiani, on 5 April 2019 as follows: “Although Jamshid has experience working in iBus overall his interview and test did not meet the standards that would be expected. Successful candidates had outstanding attendance, better understanding of Go-Ahead's policies and procedures and knowledge of our network.”[17]On 10 June 2019 a solicitor instructed by the Claimant requested a copy of the interview notes. This was forwarded to Mr Chaudry, who in turn forwarded it to Mr Kiani. On 13 June 2019 Mr Kiani emailed the head of HR, with a copy to Mr Chaudry, as follows: “Hi Des, Please see the attached. After the initial question, the interview was terminated. Jamshids' account caused us grave concern. Due to his attendance, ongoing health issues, conduct and grievances, we could not take the risk of employing some one with that background. When Jamshid asked for feedback, he was informed that he had not been successful due to poor references. These references were his own admission of his breach of procedure, poor attendance and the ongoing grievances. Regards”[18]Mr Kiani’s evidence was that he discussed and agreed the contents of the email, although not word for word, with Mr Chaudry before sending it. Mr Chaudry did not disagree at the time with the account given in the email or provide his own account of the reasons for the decision. In his evidence to the Tribunal he said he did not disagree with the email, but it could have been clearer because the decision was in fact “purely” because of the Claimant’s admission that he had breached the procedures and GDPR in relation to viewing CCTV and had been demoted as a result.[19]Mr Kiani in his oral evidence accepted that the health issues, attendance and grievances were “areas of concern” but he said they were not the ultimate deciding factor. When asked by Tribunal what he meant by the risk of employing someone with that background, he said he was referring to the grievances the Claimant had submitted, which he described as “fine”, but said they raised a concern. He said then to go off sick as a result of those grievances and how the company was dealing with the case “raised alarm bells”.[20]Returning to the troublemaker comment, we note that in both Mr Chaudry and Mr Kiani’s witness statements they do not expressly deny that Mr Chaudry made the comment; they say they do not recall it. The Claimant’s account was not challenged during cross-examination. Although Mr Chaudry in his oral evidence did deny making the comment, on balance we consider it more likely than not that Mr Chaudry said words to that effect, and that he used the word troublemaker. The Claimant’s account has been consistent throughout and contrary to the Respondent’s submissions, we consider it entirely plausible that Mr Chaudry would respond to the Claimant’s revelations in that way. Indeed it is consistent with the email of 13 June 2019, which refers repeatedly to the grievances the Claimant had raised and says they could not take the risk of employing someone with that background. It is also consistent with Mr Chaudry’s evidence that he was gobsmacked by what the Claimant had said.
THE LAW
[21]The EQA provides, so far as relevant: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. …
THE LAW
[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act-- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. … 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. 22. It is well established that the protected characteristic need not be the only reason for the treatment in order for direct discrimination to be made out, as long as it was an “effective cause”, or had a “significant influence” on the outcome (Nagarajan v London Regional Transport 1999 ICR 877). The same applies to the protected act in victimisation complaints. CONCLUSIONS Direct disability discrimination 23. The Respondent accepts that the Claimant had a disability, namely anxiety and depression, at the time of his interview and the decision not to offer him the role. The only issue for us is whether the Claimant’s disability was an effective cause, or had a significant influence, on the decision not to offer him the position. 24. We consider the email of 13 June 2019 is compelling evidence of the reasons for Mr Chaudry and Mr Kiani deciding not to employ the Claimant. Both Respondent witnesses sought to distance themselves from the references to “attendance”, “ongoing health issues” and “grievances” in the email, and instead focused on the reference to “conduct”. Mr Kiani was more candid in his oral evidence, however, accepting that the grievances and the sickness absence, which appeared to be related to those grievances, were also a concern and were factors in their decision. 25. We do not accept Mr Chaudry’s evidence that the decision was made “purely” because of the prior disciplinary issue. If that had been the case Mr Kiani would have said so in his email of 13 June, or Mr Chaudry would have corrected the impression given by Mr Kiani’s email at the time. It is not for us to decide at this hearing, which is limited to liability only, whether the disciplinary issue would have precluded the Claimant being offered the position in any event. The question at this stage is whether his disability was “an effective cause” of the treatment. It is not disputed that the “ongoing health issues” in the email referred to the Claimant’s disclosure that he had developed anxiety and depression, or that the “poor attendance” referred to the absence of more than four months that the Claimant said was due to his anxiety and depression. On a natural reading of the email, those matters were significant factors in the decision not to offer the Claimant the role. We also take into account that the Respondent has not given a consistent explanation for rejecting the Claimant’s application. The reason recorded internally was “poor references” and Mr Kiani’s explanation for recording that as the reason was not wholly satisfactory. The feedback given to the Claimant on 5 April 2019 gave different reasons again. We consider the 13 June email gave the true reasons. Mr Kiani was giving an honest account to the head of HR, not expecting that the email would be seen more widely, and the Respondent is now seeking to resile from the natural meaning of it. 26. We are satisfied that the Claimant’s health issues, which the Respondent concedes amounted to a disability, were an effective cause of the Respondent’s decision not to offer him the role. The complaint of direct disability discrimination therefore succeeds. Victimisation 27. We have found that neither Mr Chaudry or Mr Kiani knew that the Claimant’s Tribunal claim was one of discrimination, so they cannot have rejected his application because of his protected act in bringing that claim.
CONCLUSIONS
[28]We must also consider whether they rejected his application because they believed he might do a protected act in the future.[29]We consider the key evidence here is the comment in the email of 13 June 2019 that they could not “take the risk of employing someone with that background”, having referred to the Claimant’s health issues and multiple grievances as part of the background. We have already found that Mr Chaudry and Mr Kiani must have known that the Claimant may well consider himself a disabled person under the EQA. We have also found that Mr Chaudry made a comment along the lines that the Claimant sounded like a troublemaker. It is also not disputed that Mr Chaudry and Mr Kiani knew that the Claimant had brought Tribunal proceedings against his former employer. In those circumstances we consider that the “risk” referred to in the email included the risk of the Claimant doing a protected act in the future, either by making a complaint of discrimination against the Respondent or bringing proceedings under the EQA. This is also supported by Mr Kiani’s oral evidence, in which he said that the grievances were a matter of concern and raised “alarm bells”.[30]The complaint of victimisation also therefore succeeds. REMEDY JUDGMENT It is the unanimous judgment of the Tribunal that: 1. The Claimant is awarded £3,500 plus interest of £910 in respect of compensation for injury to feelings. 2. The Respondent must pay the Claimant the total sum of £4,410. REMEDY JUDGMENT having been sent to the parties on 1/7/22 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[1]By a judgment given on 14 January 2022, the written judgment with reasons having been sent to the parties on 28 January 2022, we found that the Respondent’s rejection of Claimant’s job application on 29 March 2019 amounted to direct disability discrimination and victimisation.[2]The issues to be determined in respect of remedy were agreed as follows: 2.1. But for the discrimination, would C have been offered the iBus controller post (at either LG01 or LG03 level)? 2.2. R does not dispute that if C had been offered the post he would have commenced employment with R. 2.3. What would C have received by way of salary and benefits if he had been appointed? 2.4. What income (including from benefits) has C received since 29 March 2019? 2.5. Has C taken reasonable steps to mitigate his losses? 2.6. Were there any new intervening acts that caused C losses for which R should not be liable (e.g. discrimination by another prospective employer or the Covid-19 pandemic)? 2.7. Has any loss, whether pecuniary and/or non-pecuniary, been caused by a combination of factors which are not unlawful discrimination by R such that any compensation falls to be discounted by such percentage as reflects the apportionment of that responsibility? 2.8. Has C established psychiatric injury caused by the discrimination? 2.9. What level of award is appropriate for personal injury and/or injury to feelings? 2.10. Is an award for aggravated damages appropriate and if so in what amount? 2.11. What award should be made for interest?[3]We heard evidence from the Claimant and from Sajid Chaudry on behalf of the Respondent. FACTUAL FINDINGS[4]The findings in our liability judgment stand as to what happened in the Claimant’s interview for the position, and in particular what was said about the GDPR issue.[5]We remind ourselves that the relevant undisputed facts are: 5.1. The Claimant said he was in a toxic relationship with a female driver. 5.2. The Claimant said he had been disciplined for breach of the GDPR relating to him accessing CCTV footage. 5.3. The Claimant said he was demoted to driver, that he appealed and was regraded to controller, i.e. still a demotion from his substantive post. 5.4. The Claimant said he believed he had been treated unfairly.[6]We found at paragraph 12.2 of the liability judgment that: “Mr Chaudry and Mr Kiani formed the impression, given the eventual outcome of the disciplinary proceedings, which still involved a demotion, and having heard the Claimant’s description of the background, that there was likely to have been a serious breach of procedures relating to data protection.”[7]Having heard further evidence from the Claimant and Mr Chaudry on this issue we can make the following additional findings.[8]The Claimant takes issue with the notes of the interview recording that he said he reported the driver for using a phone, and that he said she raised a grievance against him. He does accept, however, that she did in fact raise a grievance against him, and that that led to the disciplinary proceedings. He has also never disputed that the GDPR issue was in some way connected to the relationship.[9]We accept that even if the Claimant did not expressly say that he reported the driver for using a phone, or that she raised a grievance against him, he gave the impression in his description of the background that the essence of the charge against him, which was upheld to the extent that he remained demoted at the end of the process, was improper accessing of CCTV footage for personal reasons. We accept Mr Chaudry’s evidence, given in the remedy hearing, that his understanding during the interview was that the Claimant had accessed the CCTV and reported the driver for personal reasons, which was a serious breach of the GDPR. We also accept his evidence that he was particularly concerned that the Claimant did not appear to accept any wrongdoing or to have learnt from the experience.[10]We also heard evidence and make findings about the other candidates and the process for selection.[11]The Claimant was one of 42 candidates invited to interview of whom 35 attended. There were five vacancies for an iBus controller at LG01 level, with scope to appoint others at LG03 level if deemed suitable for later appointment.[12]There was a written assessment marked by Sarah Hillier against a model answer document. The Claimant scored 26 out of 73.[13]Five candidates were offered the LG01 post. Their scores in the written assessment were between 26 and 34. The candidate who scored 26 was not ultimately appointed because he declined the offer. Mr Chaudry’s evidence was that that candidate had performed well in interview. He also said that none of the other candidates interviewed had any disciplinary issues that he was aware of. He gave evidence about one candidate who scored 28 on the written assessment but was not offered the job. The records of the recruitment process state “average interview did not score high enough”.[14]Mr Chaudry’s oral evidence was that the written assessment was a secondary consideration to the interview. He said that in this type of exercise they would take the top ten or so candidates based on their scores in the written assessment and then decide who to appoint based on their interviews. Although the template interview notes document has space for a score for each answer he said in practice they did not gives scores for the interviews at all. That is supported by the interview notes produced in the bundle.[15]Mr Chaudry’s evidence was that regardless of the Claimant’s health issues and any risk of him making complaints of discrimination, the Claimant would not have been offered the post because of what he revealed in the interview about being disciplined and demoted for a breach of the GDPR, together with the fact that he did not appear to have acknowledged any mistake or learnt lessons from it. He said that even if the Claimant had scored higher in the written assessment he still would not have been offered the job because of those concerns.[16]Mr Chaudry accepted that the iBus controllers do not have authority to request CCTV unless they are the subject of the footage, so a similar issue was unlikely to arise if the Claimant took up the post, but he said that compliance with GDPR was still an important part of the role because controllers handled personal data regularly.[17]It has never been in dispute that the Claimant was well qualified for the position with 17 years’ experience in a similar role at Metroline. The Claimant says that at the start of the interview Mr Chaudry said words to the effect of “we know you could do the job with your eyes closed/ standing on your head”. Mr Chaudry could not recall saying this. We are prepared to accept that he did. It is not inconsistent with his evidence that his view changed completely after the Claimant’s revelations and in his words he was “gobsmacked” by what the Claimant said.[18]The Claimant’s evidence was primarily about the effect of the discrimination on him and his medical history. There is no real dispute about the history.[19]The Claimant says his mental health problems started in around 2012 when a group of drivers at his previous workplace accused him of racism. The investigation took about two years and the allegations were ultimately not upheld. He said he then was in a toxic relationship from around 2013 until 2017. After that ended there was the disciplinary investigation and the Claimant’s dismissal on medical grounds from Metroline in around January 2019. The Claimant suffered insomnia in March/April 2018. He also said he saw Occupational Health about his depression before being moved to a different garage in 2018. He had at least two courses of counselling, one in around 2012 and one in 2018.[20]By early 2019 the Claimant was experiencing problems with his property. He had to sell a house because he could not pay the mortgage and he said the estate agents sold it significantly under value. He then had to pay much of what he received from the sale to a former partner so he was left with very little.[21]The Claimant’s GP records note that in January 2019 he was experiencing ongoing stress partly due to grievances at work. In February 2019 he told his GP he had been dismissed and there was an ongoing tribunal. He was prescribed sleeping tablets on this occasion. The first entry after the Claimant was rejected for the job with Respondent was on 1 April 2019. It reads: “Situation has gotten worse- estate agents in London […] causing harrassment- police not assisting - Luton estate agents […] trying to sell property under market valye and trying to scam pt by not evicting tenant who has not paid rent for 8/12 - unable to pay credit card bills but getting repeated reminders/letters as unemployed and not making any money - causing stress to pt - eldest child age 17yrs has left home to live with his mother - belittled at job interview for GoAhead - due to being discriminated against disabilty of stress/anxiety - likely to have work/noise related hearing loss in right ear – being referred to ENT for that - no sucidal thoughts - req med3 for ISA”[22]The GP records from this point onwards show that the Claimant was attending regularly, on average about once a month, to discuss his personal situation. They reveal, and he accepted in his evidence, he had a very large number of disputes with people in almost every aspect of his life. From disputes with the Council about his housing, to complaints against the police, to altercations with shopkeepers, to problems with his family. He applied for numerous other jobs in 2019 and early 2020, but says that as soon as he mentioned his health issues and needing adjustments he was always rejected. He explained he has two ongoing civil claims against shops and two other Tribunal proceedings, one against Metroline and another against Abellio who also rejected a job application in around June 2020. The Claimant became homeless in March/ April 2020 and says he was too unwell to work or apply for jobs from then onwards.[23]The Claimant says his health has deteriorated since the interview with the Respondent. He says in his witness statement: “The claimant’s depression symptoms have become so severe that daily headaches are regular, eye pressure, tightness of the body in all areas especially neck and body aches is daily part of life now, irritability, difficulty breathing, irregular heart palpitations, increased fatigue, lack of motivation, increased sadness, lipping, difficulty finding words, hands shaking, weakness in the arms at times and the continuation of all ongoing symptoms of depression. The claimant’s anxiety has been made worse to the point he does not feel he can any longer apply for further jobs, the coercive abuse attacks by previous and all future employers including the respondent, government departments, and public servants has placed the claimant in an uncertain state of mind. The claimant is aware all the individuals involved may have mental health issues of there own hence their conscious choice for use of coercive abuse tactics, for which the claimant is very sympathetic however, it is unfair for these individuals to abuse their power to make the claimants genuine medical conditions worse due to their own deep inner issues. At no point during the interview was the claimant explained that the interview panel will adopt to manipulation after the interview, nor was he pre-warned that the interview panel will use harassment and abuse tactics which is not normal behaviour for professionals conducting a intreview. Due to the above issues, state of mind, personal injury the claimant must now rely upon further aides to manage his daily needs. These aids consist of a shower stool, kitchen stool, back support belt, regular body massage therapy, massage gun, hearing aid, reminder alarms and high strength prescribed medicine which pre – 2019 were never required.”[24]In terms of the injury to feelings caused by the discrimination he says: “The claimant considers the claim to meet the highest Vento bands because the discrimination caused severe distress to the claimant. The respondent was fully aware of the claimant’s medical conditions, but like vultures decided to consciously attack him through there abuse of power. This was clearly demonstrated and established at the full merits hearing where discrimination and victimisation was unanimously found in the favour of the claimant. The claimant was referred to as a troublemaker during the interview which caused the claimant a serious amount of distress and considering he was already under a great deal of stress, which the respondents were aware off from the outset of the interview. This demonstrated the heartless, lack of empathy, unprofessionalism, vultures Ness & cannibalism approach, tactic adapted by the interview panel. From the outcome of this case, it is fair to say the respondents were trying to project their behaviour onto the claimant. Therefore, I would consider this as an example of coercive abuse attack on the claimant rather than trying to employ the claimant which is completely contrary to the respondent’s company polices. … Having now established formally the reason why the respondents refused the job it causes the claimant even more sadness to learn how this multi-billion-pound company and their peers have operated. Therefore, causing the claimant a great deal of concern and increased anxiety to learn are we safe under the current directorship, management, and leadership, who demonstrate hypocrisy rather than the expected care and compassion. whilst we are medically aware that the use of coercive abuse tactics can lead to serious mental health issues, physical injuries, and death. Having now established this has happened in the claimants case, therefore, if the claimant was to die from the injuries sustained now and or the effects of these injuries was to worsen over time which may result in early death or life changing injuries, and based on the evidence present for the sustained personal injuries the claimant believes it is likely there could be likeliness to explore a possible coercive murder attempt on the claimant.”[25]The Claimant has recently seen a psychiatrist but has had no formal diagnosis and he has not produced any records of any psychiatric assessment or treatment.[26]The Claimant accepts that his mental health problems have not been caused solely by the Respondent’s conduct, but says it was a factor. THE LAW[27]The purpose of an award of compensation for discrimination is to put the claimant in the position he or she would have been but for the discrimination (Ministry of Defence v Cannock and ors 1994 ICR 918, EAT). The Tribunal must therefore determine the hypothetical question of what would have happened if the discrimination had not occurred. In cases involving failure to recruit the authorities are not entirely clear as to whether that question should be determined on the balance of probabilities or whether the Tribunal should assess the percentage chance of the claimant being successful absent the discrimination. The IDS Handbook states that tribunals “have a wide discretion in this area” (Volume 4 – Discrimination at Word, paragraph 37.21). Our reading of the authorities (Abbey National plc and anor v Chagger 2009 ICR 624, EAT, Allied Maples Group Ltd v Simmons and Simmons (a firm) 1995 1 WLR 1602, CA) is that where the Tribunal is concerned with hypothetical events in the past, if what would have happened depends on the actions of a third party, i.e. not a party to the proceedings, then a “loss of a chance” approach is appropriate. If, however, the Tribunal is concerned with what the parties to the proceedings would have done, it can hear evidence on the issue and determine the matter on the balance of probabilities.
CONCLUSIONS
[28]Given that we are concerned with what the Respondent would have done, and we have the benefit of evidence from the actual decision-maker Mr Chaudry, we consider this is an appropriate case for us to make a finding on the balance of probabilities as to what would have happened if the Respondent had not discriminated against the Claimant.[29]We note that much of the Claimant’s submissions was focused on what the Respondent should have done. He argued that they should have asked more questions about the GDPR issue, that they should have given credit for his honesty, that they should have given him a second chance, and that ultimately they should have offered him the job. He considered it was unfair that, as he saw it, the only way for him to get this job would have been for him to accept wrongdoing about the GDPR matter, when he did not believe he had done anything wrong.[30]None of those matters are relevant. The question for us is whether the Respondent would have offered the Claimant the job but for the discrimination. We must, when considering this hypothetical question, assume that everything apart from the discrimination happened as it did, i.e. the Claimant achieved a score of 26 in the written and assessment and Claimant gave the answer that he did in interview, which we have found was accurately recorded in the notes, but Mr Kiani and Mr Chaudry did not take any account of his health issues or any risk that he might make complaints of discrimination against the Respondent in the future. Leaving aside those discriminatory factors, what would have happened?[31]We accept Mr Chaudry’s evidence that the Respondent would not have offered the Claimant the position due to the concerns arising from what the Claimant revealed regarding the GDPR breach. We accept that the Respondent placed significant weight on candidates’ performance in interview in the application process and that regardless of the Claimant’s score in the written assessment the GDPR issue would have precluded the Claimant from being offered the job. We accept Mr Chaudry’s evidence that compliance with the GDPR is an important element of the iBus controller role. His understanding from what the Claimant said was that the Claimant had accessed CCTV for personal reasons, which was a serious breach of data protection rules, and the Claimant had not accepted his mistake or learnt from it. That, in his view, made the Claimant unsuitable for the position. It is not relevant whether it was fair or reasonable for the Claimant’s application to be rejected on that basis. We simply accept that that is what would have happened.[32]Even if we were considering this issue on the basis of loss of a chance, we consider that the prospects of the Claimant being offered the post, absent the discrimination, were negligible so we would not award any financial loss.[33]The consequence is that the Claimant is not entitled to compensation for any financial losses claimed.[34]The Claimant also claims compensation for non-pecuniary losses, including for personal injury. We do not have anywhere near enough evidence to find that the discrimination we have found caused or exacerbated psychiatric injury. We do not even have medical evidence of any identified psychiatric injury at all, let alone of any exacerbation after the interview or rejection, or of causation of any such exacerbation or injury. This is not a case, therefore, in which it is appropriate to make an award for personal injury. We can, however, take account of such evidence we have about the Claimant’s mental health when determining compensation for injury to feelings.[35]We accept, based on the Claimant’s own evidence and the GP records, that he has suffered from symptoms of depression over a long period. He has also been prescribed medication for depression and/or anxiety and been referred for other types of treatment including talking therapy.[36]The Respondent says that the Claimant’s account of the effect of the Respondent’s conduct on his health is hugely exaggerated. They point to the fact that the Claimant was still able to apply for other jobs until early 2020 as well as instructing solicitors and bringing legal proceedings as a litigant in person.[37]It is undoubtedly the case that the Claimant’s life has been extremely difficult over the last few years, and in particular since early 2019. We found him to be an honest witness. We accept that he has suffered in the ways he has described in his statement. We are not medically qualified to assess the Claimant’s mental health issues, but we would not assume that the fact the Claimant was able to pursue challenges or legal proceedings with other people, and apply for jobs, meant that he was not suffering from mental health problems. Indeed it seems possible to us that the Claimant’s response to conflict and feelings of injustice are a feature of his condition(s).[38]The question for us is what award for injury to feelings is appropriate bearing in mind the nature and severity of the discrimination and its effect on the Claimant in the context we have described.[39]We agree with the Respondent that the lower band of Vento is appropriate. The lower band applicable to claims brought between April 2019 and April 2020 is £900 to £8,000.[40]This was a one-off act of discrimination. Mr Chaudry and Mr Kiani unlawfully took into account the Claimant’s disability and their perceived risk of him making complaints of discrimination in the future when deciding to refuse his application for the job. That is not a minor or insignificant act of discrimination. Mr Chaudry also made the comment in the interview that the Claimant sounded like a troublemaker. But nor was it at the higher end of the spectrum of one-off acts of discrimination. No particularly offensive or abusive language was used, and the discriminatory factors were not the only reason for the decision.[41]In terms of the impact on the Claimant, we have already found that the Claimant would not have been offered the job in any event. That does not mean we cannot or should not make an award for injury to feelings. The Claimant said to the GP very shortly after hearing his application was not successful that he believed it was disability discrimination. He also described feeling belittled in the interview. It is true that the Claimant’s evidence in his witness statement seems somewhat out of proportion to the discriminatory act, but we note that he was already struggling with life beforehand and has continued to do so ever since, so events such as this can take on greater significance than they would to a person in more stable circumstances. Clearly this was one of many things that happened to the Claimant around this time that he considered unfair or discriminatory but that does not mean he did not suffer injury to his feelings because of it. We accept he felt belittled and recognised straight away, correctly as it turns out, that there was discrimination involved. We do not consider it necessary to apportion by percentage any injury to the Claimant’s feelings according to the different stressors in his life.[42]Taking into account the nature of the discriminatory act and the fact that it caused some upset that is likely to have contributed to the Claimant’s existing mental health problems, we make an award in the lower half of the lower band, namely £3,500.[43]The Claimant claims aggravated damages but we do not accept there were any aggravating features that would justify an additional award in this case.[44]We calculate interest, with agreement of both parties, on the basis of 3.75 years at 8%. This gives a figure of £910.[45]The total sum awarded is therefore £4,410.