Mr M Mostafa v K Julier and C Slater: 2304625/2023
EMPLOYMENT TRIBUNALS
Case No 2304625/2023
Between
Mr M MostafaClaimant(1) Katie Julier (2) Chloe SlaterRespondent
Before
Employment Judge T KnowlesIn person for claimantMr D Smith (instructed by Counsel) for respondentDate 28 March 2025
REASONS
[1]These are the reasons for the Judgment that I made on 12 June 2024, which was sent to the parties in writing on 18 June 2024.[2]In that Judgment, I held that the Claimant’s claim of unfair dismissal is dismissed for want of jurisdiction. I further held that the Claimant does not claim to be an employee of the Respondents for the purposes of Section 230(1) of the Employment Rights Act 1996.[3]The Claimant had sought to bring claims of unfair dismissal and discrimination on the grounds of race, religion and belief.[4]The matter came before me on 12 June 2024 for the first preliminary hearing for case management.[5]We discussed the Claimant’s claim of unfair dismissal whilst identifying the claims and issues in the case.[6]The Claimant conceded in his claim form that he worked for an employment agency, Property Management Recruitment Limited (“PMR”) and not for either of the Respondents.[7]The Respondent therefore raised the jurisdictional issue that the Claimant was not an employee of either Respondent in their response.[8]At the preliminary hearing for case management, the Claimant also agreed that he was supplied by PMR to Encore Estate Management Limited (“Encore”).[9]The Claimant accepted he worked for the agency PMR and continued to do so after his engagement with Encore (with whom he had been placed by PMR) ended on 31 August 2023, until he resigned from PMR 19 January 2024.[10]I explained at some length to the Claimant that a claim of unfair dismissal could only be brought against his employer. I explained to the Claimant that in the absence of him seeking to bring his complaint against PMR then the Tribunal did not appear to have jurisdiction to hear that claim.[11]I pointed out to the Claimant, being careful not to provide him with advice, that it did not appear that he was seeking to add PMR, or anyone else, as a Respondent and bring a claim of unfair dismissal against them.[12]The Claimant reiterated during our discussions that he did not seek to bring any complaint against PMR.[13]There is no basis for an unfair dismissal claim under Section 94 of the Employment Rights Act 1996 unless you are claiming against your employer and were an employee as set out in Section 230(1). The Claimant does not assert that he was employed by the Respondents or by Encore. See the separate Judgment that I made today.[14]Under Rule 37, I dismissed the Claimant’s claim of unfair dismissal for want of jurisdiction because the Claimant explained to me that he is not claiming that he was employed by either of the Respondents, by PMR or by Encore. JUDGMENT having been sent to the parties on 9 April 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
The facts
[15]On 9 March 2023, Craig Higgs at PMR emailed Mrs Julier to ask whether the Claimant would be made a permanent Encore employee. The Claimant very much wanted this because it would lead to more job security and a higher wage. Mr Higgs said he thought a decision might be made in April once the budget was clearer. Mrs Julier and Miss Slater exchanged emails and seemed keen on this option. Miss Slater commented it was a good sign that the Claimant was committed to the site and they could work on strengthening his skills.[16]Miss Slater went for a site visit to Putney Square on 12 March 2023. The Claimant expressed on her in person his enthusiasm to take a permanent role. Miss Slater noted a few issues with dog poo in the gardens and parcels in the lobby (which later point was clearly a long standing issue due to limited storage space).[17]On 14 March 2023, Mrs Julier attended a residents meeting at which she was made aware of some complaints about the concierge.[18]From March/April onwards both Respondents say they started to have concerns about the Claimant’s performance. Repairs were not being identified by the Claimant. The Claimant was handing out Encore staff mobile numbers when told not to and was not doing site walks. They felt that the Claimant was dismissive and not proactive. The Claimant was seen smoking outside the building. The permanent member of staff also complained that the Claimant was providing a poor level of handover, was not dealing with emails or instructions and that residents were complaining about him not being helpful. Ms Slater says she raised these matters with the Claimant but that nothing was done about it.[19]On 27 March 2023, Mrs Julier received a complaint about the Claimant from a resident alleging a racial comment had been made by the Claimant. The complaint asked that the Claimant be excluded from the premises. Mrs Julier asked PMR to investigate.[20]On 30 March 2023, the Claimant emailed Miss Slater asking whether there was an update as to when he would be joining full time as he had been told this would be 1 April. Ms Slater replied that she and Mrs Julier were liaising with PMR and internal recruiters and that commencement would be more likely in the middle or end of the month. Miss Slater says she did not intend this email to be an offer of employment.[21]On 19 April 2023, Mr Higgs sent the Claimant’s version of events regarding the incident with the resident to Mrs Julier. The Claimant alleged the resident had “attacked me with bad words”. The Claimant identified another resident who had witnessed the incident. The Claimant made no mention of race at that time.[22]On 20 April 2023, Mr Higgs sent that individual’s statement to Mrs Julier. This described the resident aggressively shouting at the Claimant. The individual did not describe hearing the words used by the resident and did not mention race either.[23]On 23 April 2023, the resident who had complained about the Claimant provided a list of how he thought the concierge service should be changed.[24]On 4 May 2023, Mrs Julier emailed Miss Slater, seemingly forwarding the resident’s list of thoughts on the concierge service saying that “we need to make a decision on Mo”. Miss Slater replied addressing the resident’s comments saying that they should be taken with a pinch of salt as he was not monitoring the whole shifts. Miss Slater said that once they knew the structure reporting logs could be strengthened. She did comment “I do however feel we need to let Mohammed go, it’s evident that he lacks basic customer service skills, that he “doesn’t seem to make any effort other than the bare minimum (eg not providing Oli with a handover.” Ms Slater says by the time of this email it had been decided it was unlikely the Claimant would be offered a permanent role. It is clear from this email that there was some uncertainty about how the concierge service was going to be structured going forwards.[25]On 16 May 2023, the Claimant chased Miss Slater by email for an update on the permanent role. Miss Slater did not reply because, she says, she had no update.[26]On 3 July 2023, the resident complained that the Claimant had sent him a threatening message about packages being left on the floor in reception and alleging that the Claimant should be removed.[27]On 5 July 2023, Mrs Julier emailed the residents association email address asking what their thoughts were on asking the agency for another member of staff rather than the Claimant.[28]On 16 July 2023, the resident again asked Mrs Julier by email that the Claimant be replaced. Mrs Julier replied that she had not heard from the residents’ association – which I understand to be a reference to the possibility of replacing the Claimant.[29]On 20 July 2023, Miss Slater met with Mr Mulcare to discuss progressing the permanent position. The role was advertised. There were 384 applications for the role.[30]Before 25 July 2023, Miss Slater informed the Claimant that the permanent role was going ahead and that the Claimant could apply for it. The Claimant sent his CV to Miss Slater on 25 July 2023. When Mr Mulcare forwarded 8 CVs to her, Miss Slater responded by forwarding the Claimant’s CV to Mr Mulcare saying “definitely need to extend an invite to interview for him.”[31]On 2 August 2023, there had been a further incident between the resident and the Claimant.[32]At 07:18 on 3 August 2023, the Claimant emailed Mrs Julier to complain about the resident using “abuse with bad words”. He attached videos of the incident, which I have not seen.[33]At 07:24am the resident again asked Mrs Julier by email that the Claimant should be removed. He alleged that the day before the Claimant had refused to hand over a parcel.[34]At 4:04pm Mrs Julier wrote to Mr Higgs saying that she understood the resident had been verbally abusive towards the Claimant. She mentioned that she hoped the Claimant was ok and that abuse was not acceptable at any time. There was a mention of the fact that the Claimant should have been in uniform at the time but was not.[35]Mrs Julier replied to the resident at 16:21 saying that the resident needed to be respectful to staff in the future and that being abusive to the team was not acceptable.[36]On 3 August 2023, Mr Mulcare emailed himself under the header “to do” the email from Miss Slater asking him to extend an interview invite to the Claimant. Mr Mulcare says he is confident he called the Claimant but could not recall whether he left a voicemail. Mr Mulcare was working on 14 vacancies at the time, which was more than his normal workload. There are no accessible phone records.[37]On or before 22 August 2023, an external candidate, an individual who was black and Zambian, was appointed to the permanent post. Two staff had been interviewed for the post by Miss Slater. When that individual later sadly died, he was replaced by a British born national of Somali ethnicity.[38]On 22 August 2023, Mrs Juilier confirmed to PMR that a candidate had been appointed and gave notice that the Claimant would no longer be required from 10 September 2023. The email mentioned that the Claimant had provide a CV but did not come back to the HR team to confirm an interview.[39]Ultimately the Claimant’s engagement was ended on 29 August 2023 by Miss Slater due to the Claimant’s negative reaction to being informed about his engagement ending.[40]Later on 29 August 2023, the Claimant posted a Trustpilot review of Encore Estatement Management which edited twice. The second version said “I have been abused by the encore managers badly”… “the encore managers got rid of me which to me you all together against me because of my name and where am coming from shameful.”
The law
[41]Direct discrimination is covered under s13 Equality Act 2010, which reads 13Direct discrimination (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.[42]The basis of the necessary comparator is set by s23 Equality Act 2010 23Comparison by reference to circumstances (1)On a comparison of cases for the purposes of section 13, 14, or 19A there must be no material difference between the circumstances relating to each case.[43]The shifting burden of proof is contained in s136 Equality Act 2010. 36Burden 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.[44]The approach to the burden of proof is elaborated in Igen Ltd v Wong [2005] IRLR 258 in which the Court of Appeal specifically endorsed the principles set out in Barton v Investec Securities Ltd [2003] IRLR 332,[45]The Supreme Court in Efobi v Royal Mail Group Ltd [2021] UKSC 33 confirmed certain clarifications and elaborations of the Igen approach and confirmed that so far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so.[46]The extent to which there has to be strict compliance with burden of proof provisions is a little contentious.[47]The Supreme Court, in Hewage v Grampion Health Board [2012] IRLR 870, agreed with a warning given by Underhill J in Martin v Devonshires Solicitors [2011] ICR 352, at [39], that it is 'important not to make too much of the role of the burden of proof provisions'. Lord Hope in Hewage went on 'they will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other'.[48]However, in Field v Steve Pye & Co (KL) Ltd [2022] IRLR 948, HHJ James Tayler emphasised that the reference in the Hewage judgment to 'room for doubt' was important: where there is room for doubt as to facts such as the respondent's motivation then the burden of proof provisions will require careful attention.[49]In Madarassy v Nomura International plc [2007] IRLR 246, the court noted that it is not enough to shift the burden of proof for the claimant to prove facts from which the tribunal could conclude that the respondent 'could have' committed an act of discrimination; rather, the claimant has to prove facts from which the tribunal 'could conclude' (in the absence of an explanation) that the respondent 'had' on the balance of probability committed an act of discrimination. This led the court on to state that 'The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient…'[50]In Leicester City Council v Parmar [2024] IRLR 721, HHJ Tayler reviewed the authorities in detail and said: '' comparing the treatment of a claimant with that of another person is a subtle business. The analysis is highly context specific. Where such a comparison is made, as part of an analysis of a range of relevant factors, it is not valid to pick apart small components of the comparative analysis, and to trot out the well-worn phrase that there is nothing more than a mere difference of status and treatment, while ignoring all of the other relevant findings of the tribunal that contributed to the overall analysis.' (para 66)[51]If a claim is based on a hypothetical comparator, the claimant will often rely on the treatment accorded to a real person who is similar, but who does not meet the 'not materially different' test. Such a person is usually referred to as an 'evidential comparator'. Where there is an actual comparator and it is established that they have been treated more favourably it is likely that the burden of proof will have been shifted, but it is not right to say that the burden of proof will shift in every case:[52]In contrast, where the comparator is an evidential one then, unless the circumstances demonstrate that there is more than less favourable treatment, the burden of proof is less likely to have been shifted. Judge James Tayler said in Virgin Active Ltd v Hughes [2023] EAT 130, [2024] IRLR 4; ''Evidence of the treatment of a person whose circumstances materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ to those of the claimant. That distinction is not always sufficiently considered when applying the burden of proof provisions in section 136 EQA.''
Conclusions
[53]Are there facts from which the court could decide, in the absence of any other explanation, that the Claimant went from a position where he was the front runner for getting a permanent role to not even being interviewed for that role and the role going to someone else because of the Claimant’s race or religion?[54]The reality of the Claimant’s case as explained at the hearing is that the reason he says that this happened was to placate the resident who was complaining about him and that, consciously or subconsciously, the Respondents did not stand up for the Claimant more in face of those complaints because of his race and religion and that they would have acted differently if the Claimant were of a different race or religion.[55]The Claimant has been unclear on what facts he relies on to shift the burden. I do not say that to criticise him too much as this is a technical and nuanced point. Nevertheless, I have gone on to consider a number of factors that might be said to have shifted the burden.[56]The first is whether placating the resident who had complained was in fact the reason why the Claimant went from being in first place to having to interview for the permanent role at all. I find that the Claimant has not established that fact. I find that the reason why he went from first in the queue to having to interview for the role was the various performance concerns that the Respondents had. I accept their evidence both that they had these concerns and that was the reason why the Claimant was no longer going to automatically get the role. I reach that decision largely because of the email of 4 May where they say the reason the Claimant was going to be let go is his lack of customer skills, not making enough effort and failure to do a handover. I do not accept the Claimant’s evidence that because there is no formal record of performance concerns being raised with him that the Respondents did not hold these concerns.[57]The second point is whether the Claimant has shown that was a failure to stand up for him to the resident who was complaining about him. I do not think there was such a failure. The Claimant was not removed despite repeated requests that the Respondents do so. In relation to the March complaint, there was an investigation and when that uncovered evidence that supported the Claimant, no action was taken against him. In August, when there was a second incident and the Claimant provided evidence that the resident had been aggressive to him and acted inappropriately, it was the resident who was told by Mrs Julier not to be abusive. The fact is that the Respondents did stand up for the Claimant.[58]It might be said that if there was a failure to address concerns of racism raised by the Claimant that could be something to shift the burden. However, I do not find that the Claimant did allege racism in March – all he said was that the resident had “attacked me with bad words” and the witness did not make any suggestion that had been racism. When the Claimant did allege that the incident in August had involved race and seemingly provided evidence, Mrs Julier told the resident not to be abusive. The matter had been referred to the police. There was nothing further the Respondents could do about it. I do not find there was a failure to address concerns of racism.[59]The Claimant says Mrs Julier falsely claimed in email of 22 August that he had been contacted about an interview. A false claim could be something that could shift the burden. However, I do not find that it is a fact that the Claimant has proven. First, I find that Mrs Julier genuinely believed that is what had happened. Second, I find that the reason for that belief was because that was what she had been led to believe having seen the email from Miss Slater asking that the Claimant be interviewed. That was also clearly the understanding of Mr Mulcare as well. I accept Mr Mulcare’s evidence that he did try to call the Claimant to arrange an interview. This was therefore not a false claim in any event.[60]Clearly were Mrs Julier to have called the Claimant “moo”, that is something that could shift the burden. I do not accept that Mrs Julier referred to the Claimant as “moo”. This Claimant did not mention it in his Trustpilot reviews when airing his grievances. He did complain about the failure to deal with resident who he saw as abusing him. If this comment had been said, the Claimant would have mentioned it.[61]The Claimant referred briefly in evidence to how the previous management company had treated and supported his permanent colleague when resident complaints about his. There are two issues with that being relied on as something to shift the burden. The first is that there was no evidence before this tribunal of what those complaints were and how they were dealt with. Second, the Claimant accepted in response to my questions, that those were not the actions of the Respondents. Accordingly, they were not capable of shifting the burden.[62]The Claimant pointed to the fact that the person who did get the job was of a different race and religion to him. I do not find that a very persuasive point. Three people held the post, they all seem to be of different backgrounds. Their religions are not known. There is nothing in that fact that shifts the burden. It is a bare difference of race and religion, which is not enough to shift the burden.[63]Finally, the Claimant suggests that the reason Miss Slater terminated the engagement on short notice was in response to him reporting the resident to the police. There was no evidence before me to support that suggestion and I reject it. I find the reason for the early termination was the Claimant’s actions on being informed had he had not got the role.[64]Accordingly, the Claimant has not proven any facts that could shift the burden.[65]Alternatively, if I am wrong about that, I am satisfied that race and religion played no part in any treatment of the Claimant. The Claimant was told he was likely to get the permanent role when the Respondent’s had the same level of understanding of his of race and religion as they did later on when he dropped out of serious consideration for the role. I have already made a finding as to the explanation for why the Respondents said the Claimant had not responded to the recruiter. Race and religion played no part in that. The reason the Claimant did not get the job was in part because he did not arrange an interview. However, there is also the wider context, which is that the reason nobody was more proactive in chasing up why the Claimant had not arranged an interview, was because the Respondents had decided due to issues with performance that they did not think the Claimant was the right person for the job. They had decided that as far back as 4 May. It had nothing to do with race and religion.[66]I do not consider that a hypothetical comparator of a different race or religion would have been treated differently in any respect.[67]It follows that the Claimant’s claims fail and are dismissed. Approved by: