Mr L Cunha v ZCO Ltd and Mr Gummakonda: 2305647/2021
EMPLOYMENT TRIBUNALS
Case No 2305647/2021
Between
Mr L CunhaClaimant(R1) ZCO Ltd (R2) Mr Gummakonda RECORD OF A FINAL HEARINGRespondent
Before
Employment Judge Hart, Ms Evans, Ms WickershamRepresenting himself for claimantDate 8 May 2024
JUDGMENT
[1]The claims for direct religious discrimination under section 13 of the Equality Act 2010 do not succeed and are dismissed.[2]The claims for direct age discrimination under section 13 of the Equality Act 2010 do not succeed and are dismissed. JUDGMENT having been sent to the parties on 9 May 2024 and written reasons having been requested by the claimant on 13 May 2024 in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]These are the Reasons for our unanimous Judgment to dismiss Mr Cunha’s claims for religion and age discrimination.[2]Mr Cunha was a post office clerk working for the respondent who operated franchise post offices for Royal Mail. He brought claims for direct age and religion discrimination. He says that this was the reason why his working hours were reduced and he was asked to work in a different branch. This was denied by the respondent.
THE HEARING
[3]During the hearing we were provided with the following documents:1.1 A hearing bundle, initially of 203 pages to which the claimant added 3 pages on day 1. The references to page numbers in these Reason are to the pages in this bundle.1.2 A supplementary bundle of 17 pages provided by the claimant on day 3 which was not admitted in evidence for the reasons set out below.1.3 Three witness statements.[4]Mr Cunha gave evidence on his own behalf. The following gave evidence on behalf of both respondents:4.1 Mr Gummakonda, Area Manager and the second respondent.4.2 Mr Bobat, Contract Manager (who heard Mr Cunha’s grievance).[5]On completion of the evidence both parties made oral submissions. Judgment and reasons were given orally on day 3. The Unlawful Deduction of Wages claim[6]In separate proceedings Mr Cunha had brought a second claim for Unlawful Deduction of Wages (claim no: 2300783/22) (UDW claim) which had been determined by EJ Rice-Birchall following a hearing on 16 June 2023. Written reasons were sent to the parties on 29 August 2023. The parties were provided with a copy of these reasons at the commencement of our hearing and were informed that we would take into account the findings of fact therein (UDW Judgment). The parties were informed that under ‘issue estoppel’ a party may not reopen an issue that has been decided in earlier proceedings involving the same parties, where that issue was a necessary ingredient to that determination. Therefore where there was a finding of fact on an issue that was identical to matters to be determined in this claim, we were bound by those findings. Where this has occurred this is referred to in our findings below. ISSUES DURING THE HEARING The Claimant’s strike out application[7]On the morning of day 1, Mr Cunha applied to strike out the respondent’s response under ET rules rule 37 on the grounds of conduct (rule 37(b), noncompliance with tribunal orders (rule 37(c)) and that a fair trial was no longer possible (rule 37(e)).[8]The background to this application was as follows:8.1 On 23 January 2023 at a Preliminary Hearing EJ Martin ordered that Mr Cunha provide a schedule of loss by 10 March 2023; the parties to exchange documents by 26 April 2023 and the respondent prepare the hearing bundle by 9 June 2023.8.2 On 10 March 2023, Mr Cunha failed to provide a schedule of loss, and by the time of the final hearing had still not done so. He stated that this was because he did not know what to do.8.3 On 28 April 2023 both parties exchanged documents.8.4 On 9 June 2023 the respondent failed to send to Mr Cunha the final hearing bundle. From the correspondence provided it appears that a bundle was provided on the 13 June 2023 but it was the wrong bundle since it was the one for the UDW claim.8.5 On 31 July 2023 Mr Cunha emailed the tribunal stating that the respondent had failed to comply with a tribunal order to provide him with the final hearing bundle.8.6 On 21 August 2023 Ms Ajibad, senior litigation consultant on behalf of the respondent, wrote to Mr Cunha to inform him that she had taken over conduct of the case. She provided him with a copy of the bundle that they had on file asking him to list the issues that he had with it so that it could be agreed.8.7 On 29 August 2023 Mr Cunha responded stating that he had checked two previous draft bundles and did not have the time to do so again. Ms Ajibad responded the same day proposing that the bundle provided by the respondent be submitted as the respondent’s final hearing bundle and that Mr Cunha could produce his own bundle for the hearing.8.8 On 29 September 2023, EJ Frazer wrote to the parties asking the respondent to provide an explanation as to why the parties had been unable to agree the bundle.8.9 On 3 October 2023 Ms Ajibad responded explaining that there had been a change in personnel, setting out the proposal made in her letter of 29 August 2023, and stating that Mr Cunha had not responded.8.10 On 11 October 2023 Mr Cunha objected to the respondent being givenmore time to produce a hearing bundle. He requested that the respondent be barred from participation in the proceedings or the response be struck out.8.11 On 22 November 2023, EJ Leith ordered that Mr Cunha write to therespondent within 14 days identifying the issues that he had with the hearing bundle. The respondent was then ordered to provide a final bundle to Mr Cunha within 21 days. The parties were reminded of their duty to cooperate under ET rule 2 (overriding objective).8.12 On 5 December 2023, Mr Cunha wrote to the tribunal objecting toextension of time for the hearing bundle to be produced and stating that he was too busy to provide the information requested. He did not request an extension of the deadline for compliance with this order and to date has still not provided this information.8.13 On 2 April 2024 Mr Cunha wrote to the tribunal stating that therespondent had deliberately deleted or withheld documents from the final hearing bundle. He claimed that he had complied with EJ Leith’s orders but we found that there was no evidence on the tribunal file that this was the case.8.14 On 16 April 2024 EJ Heath responded stating that it was unclear whatdocuments Mr Cunha was alleging had been deleted or withheld by the respondent and again reminding the parties of the duty to cooperate.8.15 On 22 April 2024 Mr Cunha responded stating that the respondent hadcontinued to provide the wrong bundle with reference to a bundle of 103 pages sent to him on 24 January 2024 (we assume that this is a typo and should read ‘203 pages’ since he refers to documents on pages 99 to 112).8.16 At the beginning of this hearing Mr Cunha informed us that he had beenprovided with the bundle of 203 pages ‘about a month ago; not too sure’ and confirmed that he had had an opportunity to look at it. He stated that he had not brought it with him (it was on his mobile phone). The respondent had brought hard copies with them and this was provided to Mr Cunha at the start of the hearing. The relevant law to be applied to strike out applications[9]Rule 37 (strike out orders) provides that: ‘(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: … (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out)’.[10]Rule 37 applies a two-stage test requiring:(1) the establishment of a specific ground, and(2) the ET to consider whether or not to use its discretion taking into account the overriding objective.[11]Striking out a claim is a draconian option and should only be used as a last resort, where there is no other option available: see for example Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327 (EAT). Further there is considerable caselaw cautioning against striking out of discrimination cases due to the public interest in having such claims properly determined on the merits: see for example Anyanwu v South Bank Students’ Union [2001] UKHL 14. These cases equally apply to applications to strike out a response as well as a claim.[12]The leading case when considering the conduct of the parties under rule 37(1)(b) is Blockbuster Entertainment Ltd v James [2006] IRLR 630 (CA), which set out two ‘cardinal conditions’ when considering striking out a claim for this reason:(a) ‘that the conduct has taken the form of deliberate and persistent disregard of required procedural steps’; or(b) That the conduct ‘has made a fair trial impossible’. Even if the conditions are fulfilled, the tribunal is still required to consider whether striking out is a proportionate response.[13]The leading case when considering non-compliance with a tribunal order is Weir Values & Controls (UK) Ltd v Armitage [2004] ICR 371. The EAT suggested that when considering whether or not to strike out a claim or response, tribunals take into account the following considerations:(a) the magnitude of the non-compliance;(b) whether the default was the responsibility of the party or his or herrepresentative;(c) what disruption, unfairness or prejudice has been caused;(d) whether a fair hearing would still be possible; and(e) whether striking out or some lesser remedy would be an appropriateresponse to the disobedience.[14]It is rare for a case to be struck out on the grounds that a fair trial being is longer possible, as a free-standing ground. Examples would be ill health cases where a party is unable to attend over a prolonged period.[15]The Tribunal also reminded itself that under ET Rule 6 (irregularities and noncompliance) a failure to comply with a tribunal order does not itself render void the proceedings and that that the tribunal may take such action as it considers ‘just’. Striking out the claim in whole or in part is only one of the possible options which includes varying or waiving the order or awarding costs. Discussion and Conclusions on the strike out application Unreasonable conduct[16]Mr Cunha’s application was that the respondent had caused him unnecessary stress by sending him the wrong hearing bundle on three separate occasions. He accepted that this was the only order that the respondent had failed to comply with.[17]The respondent accepted that it had not produced the hearing bundle by 9 June 2023 and was therefore in breach of a tribunal order. We did not consider that the respondent’s conduct was deliberate or persistent. The respondent took steps to address this failure sufficiently in advance of this tribunal hearing, by providing Mr Cunha with a draft on 21 August 2023 and asking him to identify what changes he wanted. The tribunal therefore considered it to be a minor infringement and not sufficiently serious to constitute unreasonable conduct.[18]We also took into account that Mr Cunha had also not complied with tribunal orders. He has still not provided a schedule of loss, nor did he comply with EJ Leith’s Order of 22 November 2023 by identifying what additional documents were to be added to the bundle, has not cooperated with the respondent to agree the bundle for today’s hearing and has not provided his own bundle. Failure to comply with a tribunal order[19]We considered that the failure to provide an agreed bundle was a minor infringement by the respondent’s representative. There was no suggestion that the respondent was at fault. We also considered that there had been a greater infringement by Mr Cunha.[20]In particular, no disruption, unfairness or prejudice had been caused. The parties were ready for the hearing and able to proceed. The hearing bundle provided to us now contained Mr Cunha’s documents and he could add anything that was missing.[21]We considered that taking into account all the circumstances a fair hearing would still be possible. In particular:21.1 the bundle was a relatively small bundle amounting to approximately 200 pages;21.2 Mr Cunha was not prejudiced since disclosure had taken place over ayear ago and the hearing bundle was largely the same as that used for the UDW hearing in June 2023. It was therefore a bundle that he was familiar with;21.3 if Mr Cunha had difficulty in locating any document he could be assistedby the tribunal;21.4 Mr Cunha confirmed at the beginning of the hearing that he was notapplying for postponement of the hearing on the basis that he did not have time to prepare; and21.5 Mr Cunha had been unable to explain why he may not get a fair hearing. Fair trial no longer possible[22]The tribunal did not consider that a fair hearing was no longer possible, for the same reasons as set out above. Matters following application to strike out[23]Mr Cunha was informed that if there were any documents missing from the hearing bundle then he was to check overnight and had permission to bring them to the tribunal the next day and if relevant they would be added to the bundle. At the beginning of day 2, Mr Cunha was asked by the tribunal if he had any additional docs and he responded ‘no’.[24]At end of hearing Mr Cunha again raised that bundle had not been agreed and complained that his documents had only been added to bundle on day 1 and therefore he had not been able to adequately prepare for the hearing. This was contrary to the representations that he made on day 1 that he had been provided with a copy of the hearing bundle a month before this hearing. On being asked by the EJ to identify which documents in the bundle he was referring to, Mr Cunha responded that he had not checked the bundle and therefore he was not able to say if all the documents that he had previously provided to the respondent were in the bundle.[25]We did not accept that Mr Cunha’s submissions in closing that he had not been able to adequately prepare for this hearing. Mr Cunha has had since January 2023 to prepare his case, obtain evidence and seek advice if needed. Disclosure took place in April 2023; Mr Cunha has been in possession of all the respondent’s document since then. The documents that Mr Cunha says have been added to the bundle late are ones in his possession, ones that he drafted and therefore ones that he would be familiar with. Mr Cunha further accepted that the docs in this case were largely the same as for his UDW claim which was determined in June 2023. As was clear from the chronology set out above, the failure to agree a final hearing bundle was largely due to Mr Cunha’s failure not the respondent’s.[26]At no point during the hearing did Mr Cunha request assistance nor was it apparent to us that assistance was required. Mr Cunha asked questions of the respondent witnesses referring to documents in the bundle.[27]Neither party referred us to the documents that Mr Cunha had added to the bundle. These comprised a collection of emails sent by Mr Cunha to his union and to the law centre (at pages 177 onwards). They are Mr Cunha’s contemporaneous accounts (and not the advice given). Since these are the documents that Mr Cunha appears to have wanted to add to the bundle, and he refers to obtaining advice in his witness statement, we have taken them into account in our deliberations.[28]During the hearing Mr Cunha asked to adduce some additional documents in support of his evidence that had worked at other branches. Mr Cunha confirmed in evidence that the period that he worked at four other locations had been prior to becoming an employee in April 2020. This was not a central issue in this case but in any event Mr Bobat accepted this in his evidence. Therefore Mr Cunha was informed by the tribunal that he did not need evidence to prove this. Claimant’s application to admit new evidence prior to announcement of our[29]On day 3, following our deliberations and at the point that we were due to announce our decision, Mr Cunha applied to admit new evidence comprising of 17 pages including text messages between the claimant and Mr K Mohammed (pages 1-8) and between the claimant and Ms Tharmi (pages 9-13). The respondent did not object to the tribunal looking at this evidence for the purposes of determining Mr Cunha’s application.[30]Mr Cunha claimed that the texts were evidence:(a) that Mr A Mohammed had worked until 9 October 2022; and(b) that Ms Tharmi had not resigned in the autumn of 2021 as claimed by MrGummakonda in his evidence but had in fact continued to work for the respondent for a further one year and two months. He claimed that this supported his contention that Mr Gummakonda had given false evidence, in particular in relation to the staff meeting on the 17 August 2021.[31]The respondent opposed this application stating that the fact that Mr A Mohammed had worked in other branches owned by the respondent did not undermine Mr Gummakonda’s evidence that Mr A Mohammed had only worked for limited period in New Malden branch. In relation to Ms Tharmi’s employment the respondent questioned the provenance of the text messages and submitted that if Mr Gummakonda had got confused about the dates that did not undermine his evidence. The respondent stated that if this evidence was to be admitted then witnesses would need to be recalled.[32]In considering this issue we applied the test set out in the well-known case of Ladd v Marshall [1954] 3 All ER 745 (CA), which to paraphrase stated that new evidence should only be considered if:(1) the evidence could not have been obtained with reasonable diligence foruse at the original hearing;(2) the evidence is relevant and would probably have had an importantinfluence on the hearing; and(3) the evidence is apparently credible.[33]We accepted that this evidence could not been obtained prior to the original hearing since it only became relevant after Mr Gummakonda gave evidence. We also accepted that it was apparently credible.[34]In relation to Mr A Mohammed we did not consider that this had any influence on the hearing because it was clear that he had been employed in a number of different branches and the fact that he continued to work for the respondent did not have any bearing on the outcome of the claim. Nor did it undermine Mr Gummakonda’s evidence that after the first week of training Mr A Mohammed had mainly worked in Dorking branch and only worked at New Malden to cover annual leave. Indeed if anything the text messages supported the respondent’s position that Mr A Mohammed was used to cover staff absences.[35]In relation to Mr Gummakonda’s evidence that Mrs Tharmi had left in October 2022 when in fact it is clear from the new texts that she still worked for the respondent until at least 9 April 2022, we agreed that they were potentially relevant. However, we noted that before this date there were a number of texts about being late for work whereas after this date the only text was on 31 December 2023 wishing Mr Cunha ‘Happy New Year’. This suggested that Mrs Tharmi had left the respondent’s employment sometime after 9 April 2022. In any event, we did not consider that this new evidence would have an important influence on the hearing (or our decision). This was because we had already concluded that we did not accept Mr Gummakonda’s evidence that a staff meeting had taken place on the 17 August 2021. We had concluded that his evidence was unreliable, that memories are fallible and timescales of particularly difficult to recall. The text messages merely confirmed a conclusion we had already reached. CLAIMS & ISSUE[36]The claims and issues as agreed at the Preliminary Hearing on 23 January 2023, with two minor amendments that emerged in our hearing, are attached as Appendix 1. FINDINGS OF FACTS[37]This judgment does not seek to address every point about which the parties have disagreed. It only deal with the points that are relevant to the issues that we must decide to determine if a claim succeeds or fails. If it does not mention a point it does not mean that we have overlooked it, it is simply because it is not relevant to the issues. Where there were facts in dispute we have made findings on the balance of probabilities. The claimant[38]The Cunha is a 62-year-old man of Roman Catholic religion. He informed us that he wears a cross, but it was not on display at work. Mr Cunha stated in evidence that he had not disclosed his religion to his employer or colleagues, but he assumed that they must have found out since this is the basis of his religious discrimination claim. He referred to his name as an indicator of his religion. Mr Cunha stated that he had also not informed Mr Bobat or Mr Gummakonda of his age. The respondent[39]At the material time, the respondent had 60 post office branches across the UK under a franchise agreement. It employed 300 employees plus relief workers on self-employed contracts.[40]It employed four area managers of which two were Hindu, one Sikh and one Christian. The respondent did not otherwise monitor or know the religion of its employees.[41]The respondent employed 50 staff aged 62 years or more of which 15 were age 69-79 years. Therefore approximately 250 employees were under 62 years. Chronology of events[42]Prior to 23 April 2020, Mr Cunha had been employed by the respondent as a relief worker and worked in a number of different branches.[43]On 23 April 2020Mr Cunha became an employee of the respondent on 30 hours pw, following his appointment as a Counter Clerk working at New Malden branch. Mrs Tharmi was the Branch Manager. Mr Gummakonda (second respondent) was the Area Manager.[44]Four other staff were employed at New Malden branch: one left in May 2020 and another in early August 2021. Mr Cunha accepted that the two remaining counter staff were the same age as he was.[45]The relevant terms of Mr Cunha’s employment were as follows:45.1 The contract contained a flexibility clause and the respondent werepermitted to reduce Mr Cunha’s hours of work: UDW Judgment para 26.45.2 The contract contained a mobility clause and the respondent werepermitted to require Mr Cunha to work at other locations than New Malden: UDW Judgment para 27.[46]On 26 November 2020 Mr Cunha and other employees opted to work flexi furlough, working eight hours at work and the rest as furlough leave. Mrs Tharmi went on full-time furlough. These arrangements were due to the dramatic reduction in footfall and the viability of the business due to COVID-19: pg 98.[47]In November 2020 the respondent’s Greenford branch was transferred to another franchisee. Mr K Mohamed (Branch Manager of the Greenford Branch) was transferred to the New Malden branch and took over as manager whilst Mrs Tharmi was on furlough. Mr K Mohammed had been employed by the respondent since 2012 and had worked in more than 50 branches over the years. We find on the basis of Mr Cunha’s evidence that he was Muslim and around 50 years old.[48]It was not disputed that 80-85% of the branch manager’s job was similar to that of counter clerk, since in a small post office the manager was required to cover counter work. However we do not find that it was the same job as Mr Cunha claims. The manager was employed on a higher grade and received higher pay. This was for additional duties which included being in charge of the cash float, being responsible for the security of the branch, being responsible for setting staff rotas and interacting with the area manager to whom they reported.[49]Around April 2021 Mr Cunha stated that Mr Gummakonda had visited the branch and said to Mr Cunha ‘You are very fit….’ and then asked Mr Cunha how old he was. Mr Cunha’s view at the time was that this was a friendly conversation. Around June 2021 Mr Gummakonda again visited the branch and made comments of a similar nature. Mr Gummakonda denied both of these conversations. We preferred the evidence of Mr Gummakonda, and considered his evidence on this point to be more credible for the following reasons:49.1 Mr Cunha did not provide any detail of these conversations in his claimform or witness statement or at any point before this hearing.49.2 Mr Cunha’s evidence was inconsistent in that:49.2.1 When first asked in evidence when was the first time that therehad been a conversation about his age, he had stated a couple of months before the August conversation. He could not remember the conversation, it was friendly, and he just laughed it off.49.2.2 In later questions he referred to an earlier occasion and hisevidence changed from not being able to recall the conversation, to recalling a conversation about his fitness and being asked about his age.49.2.3 We accepted that memories are fallible, and these conversationstook place several years ago, but they are a significant part of Mr Cunha’s claim for age discrimination and we were surprised that his evidence on this point was so vague.[50]On 1 August 2020, due to financial pressures resulting from COVID-19, following the end of the furlough scheme, the respondent decided to reduce the number of hours its employees were required to work: UDW judgment para 12.[51]Since she could no longer be furloughed, Mrs Tharmi returned to work. We accepted Mr Gummakonda’s evidence that the original intention had been to move Mr K Mohammed to another branch on Mrs Tharmi’s return. This is consistent with Mr Cunha’s email account provided to his union representative on 1 September 2021 (see below). We also accepted Mr Gummakonda’s explanation that the reason why Mr K Mohammed remained at New Malden was because Mrs Tharmi had informed him that she did not wish to return to her full hours and that she was intending to resign (and we accepted his evidence that she did in fact resign to work for the NHS, albeit it was not in the autumn 2021). Mr Gummakonda stated that if Mrs Tharmi had wanted to return to her full role then Mr K Mohammed would have been moved to Sydenham branch, since the Sydenham manager wanted to return to being a counter clerk and therefore there was need to appoint a manager. Mr Gummakonda was already in talks about transferring Mr K Mohammed when Mrs Tharmi said that she would be leaving New Malden.[52]In August 2021 the respondent employed Mr A Mohammed (comparator 2). In the absence of any positive evidence to the contrary we accept Mr Cunha’s evidence that he was Muslim and 40-45 years old and inexperienced. The respondent referred to him as a trainee.[53]We found, on the basis of the invoices in the bundle, that Mr A Mohammed was a self–employed relief worker. Mr Cunha challenged this evidence stating that the invoices were a ‘fake’ due to the date on the right-hand side being 2023. Mr Bobat explained that the date was a computer-generated automatic date recorded when the documents were printed and not when they were created. We considered that this was a plausible explanation and saw no evidence from which to conclude that the invoices were fakes. We consider that more than mere assertion by Mr Cunha was required to make such a finding.[54]We also accepted Mr Bobat’s evidence that Mr A Mohammed was placed in the New Malden for a week of training in August 2021. Thereafter, on the basis of the invoice evidence provided from 16 August 2021 to 22 February 2022 Mr A he was employed primarily at the Dorking branch, then the Wembley branch and only in New Malden branch on two occasions for 11½ hours in November 2021 and 16 hours in February 2022. Mr Cunha conceded that he did not know what contract Mr A Mohammed was employed on or which other branches he was asked to work.[55]The staff at the New Malden branch were informed by Mr Gummakonda of the reduction in hours at a staff meeting. The claimant disputed that this meeting took place. We did consider whether it was feasible to have such a meeting during opening hours but concluded that mid-morning was likely to be a quiet period, and that these are small post office branches and therefore meetings would have been conducted causally. No evidence was adduced to suggest that staff were informed in any other way than as stated by the respondent witnesses. However we consider that the date of this meeting was not on the 17 August as Mr Gummakonda stated in his evidence. This was because in his email of 15 August 2021 Mr Cunha referred to Mr Gummakonda visiting the branch ‘last week on my off day’ and the proposal to reduce of hours of all the counter clerks not just his: pg 180. This is consistent with the claimant’s evidence that he was not present at the staff meeting and that it did not take place on 17 August 20211.[56]On 17 August 2021Mr Gummakonda asked Mr Cunha to work in the Wembley branch. We find that this was in addition to the hours he would be asked to work in the New Malden branch (and not in substitution of those hours). We accepted Mr Gummakonda’s reasons for offering the extra hours to Mr Cunha was because he lived near Wembley. Mr Cunha himself accepted in his evidence that it was only when he refused that those hours were offered to other staff. Mr Gummakonda confirmed that they were then offered to Mr K Mohammed who agreed to go.[57]We find that this conversation occurred in a 1:1 meeting not a staff meeting as the respondent had claimed. Mr Gummakonda admitted he had a 1:1 meeting 1 The UDW Judgment stated that the date the reduction was “communicated to all employees” was the 17 August 2021; but did not make any specific findings as to the meeting that Mr Gummakonda attended. with Mr Cunha over performance but was evasive as to when and failed to answer our repeated questions as to the nature of the discussion on performance. However we did not accept Mr Cunha’s evidence that at this meeting Mr Gummakonda asked his age and then said ‘which other employer would give [him] a job at such an old age and in that bad COVID situation, if [he] was sacked by the respondent’. The reason we do not accept Mr Cunha’s evidence (denied by Mr Gummakonda) is:57.1 Mr Cunha did not refer to this comment in his email to his union representative the next day (see below) or in any subsequent email to his union representative or to the law centre on 30 September 2021.57.2 Mr Cunha did not refer to this comment in his grievance complaint, at thegrievance meeting or in his appeal.57.3 Given that Mr Cunha was represented by a union, we find it unbelievablethat if this comment had been made that he would not have raised it with his union and that his union would not have raised it with the respondent. Mr Cunha accepted in his evidence that he only considered that he had been discriminated against after talking to a friend and seeking legal advice in October 2021. That may explain why he did not attach the legal label of discrimination to his treatment but does not explain the failure to refer to the factual elements of the comment that he now alleges was made.[58]During this discussion Mr Gummakonda referred to the mobility clause in Mr Cunha’s contract which permitted the respondent to move employees to another branch without their consent. We noted that Mr Cunha referred to this discussion in his subsequent emails (see below). The claimant interpreted this as a threat to sack him, but we do not find on balance probabilities that any actual threat was made nor was it Mr Gummakonda’s intention. In reaching this decision we took into account that this was not a matter pursued by Mr Cunha’s union representative. We also took into account the UDW Judgment that found that the respondent were entitled to ask Mr Cunha to move to another branch, therefore there was no reason to threaten him with dismissal if he did not agree. Further there was no other evidence before us to suggest that the respondent were seeking to dismiss him; indeed the contrary since they were prepared to reach an agreement with Mr Cunha (see below).[59]On 19 August 2021 Mr Cunha wrote to Mr Tickner, his union representative and referred to the respondent’s reason for reducing his hours of work as being ‘financial’, referred to the offer of 8 hours pw at New Malden and further hours at Wembley and that Mr Gummakonda had referred to the mobility clause. He stated his view that Mr Gummakonda threatened to sack him but does not set out what said for him to draw that conclusion: pg 182[60]On 19 August 2021 Mr Cunha requested a copy of his contract, which the respondent sent on the 26 August 2021: pg 183. On 1 September 2021 Mr Cunha requested copy of staff handbook, which he was sent the next day: pg 190. We find that these requests are consistent with Mr Cunha’s concern about the operation of the mobility clause in his contract.[61]On 1 September 2021 Mr Cunha emailed Mr Tickner. He again referred to the failure of the respondent to revert back to full contractual hours of employees (plural) and attributed the decision to move him to Wembley with Mrs Tharmi’s return and failure to move Mr Khaja Mohammed: pg 186-187[62]On 6 September 2021 Mr Cunha submitted a grievance in relation to the following four matters:62.1 that his hours had not reverted back to 30 hours pw post-COVID and hewas only being allocated 8 hours pw for first two weeks in September;62.2 that he was being asked to help out in other branches and queryingwhether he was being treated fairly;62.3 that the Wembley branch lacked the amenities of New Malden; and62.4 that Mrs Tharmi used to set the rota for the whole month whereas Mr K Mohammed only prepared rotas 1-2 days in advance: pg 99. The grievance did not refer to age or religious discrimination or threats to dismiss him during the August meeting.[63]On 13 September 2021 Mr Cunha emailed Mr Tickner in advance of the grievance meeting again attributing the decision to move him to the Wembley branch with Mrs Tharmi’s return and the failure to move Mr K Mohammed: pg 186-187.[64]On 14 September 2021 Mr Cunha attended a Grievance Hearing with Mr Tickner, Mr Bobat (hearing officer) and Mr Musa: pg 103. In this meeting:64.1 Mr Cunha was asked to explain his grievance in own words. In doing sohe again referred to the reduction in his hours of work.64.2 Mr Cunha did not refer to the meeting with Mr Gummakonda on 17 August 2021 but did refer to a meeting the previous week where Mr Gummakonda stated there were no hours in Malden but were hours available in Wembley branch and that Mr Cunha was asked ‘whether he would like to work there’: pg 103.64.3 Mr Cunha then explained his concern regarding the amenities at theWembley branch. Mr Bobat asked if that was sorted would he consider working at the branch to which Mr Cunha responded it ‘would not be an issue anymore’. Mr Cunha accepted in evidence that geographically Wembley branch was closer to his home.64.4 During the meeting Mr Cunha questioned whether he was being treated‘fairly’ and ‘being singled out’ but made no reference to discrimination or his age or religion. Nor did he refer to Mr A Mohammed or Mr K Mohammed being treated more favourably.[65]On 17 September 2021 the respondent provided Mr Cunha with the outcome of his grievance. Two out of four of his concerns were upheld. The respondent agreed to rectify the lack of amenities at the Wembley branch and the proper production of the rota and lack of notice of shifts. pg 103. The respondent found no evidence of unfairness, stating that:65.1 ‘the reason you had received less hours to other employees is through your refusal to work at other sites, resulting in getting less hours’ .65.2 ‘the reason you had been moved to the Wembley store due to geographical reasons of your home being the closest compared to other employees.’ The respondent offered Mr Cunha 8 hours at the New Malden branch and rest of his contractual hours at the Wembley branch.[66]On 24 September 2021 Mr Cunha submitted an appeal: pg 109. He compared himself with Mrs Tharmi and Mr K Mohammed (both managers). There is no mention of any differential treatment with Mr A Mohammed (the comparator he now relies on). There is no mention of his alleged differential treatment being due to his age or religion. In his appeal email Mr Cunha offered to work 22 hours at New Malden and eight hours at Wembley (until the staffing issues were permanently resolved): pg 109[67]On 27 September 2021, Mr Bobat accepted Mr Cunha’s offer: pg 110; UDW judgment para 172. The respondent did not progress Mr Cunha’s appeal. Mr Bobat explained to us that he thought an appeal was not necessary since he was agreeing to what Mr Cunha was seeking; however he did not discuss this with Mr Cunha or his union representative. We note that Mr Cunha did not make any attempt to pursue his appeal on receipt of the respondent’s response.[68]On 30 September 2021 Mr Cunha sought legal advice: pg 177-179. In the email setting out his concerns, Mr Cunha again referred to all employees having their hours reduced and attributed the decision to move him to Wembley with Mrs Tharmi’s return and failure to move Mr K Mohammed to another branch.[69]On 6 October 2021, following a discussion with a friend, Mr Cunha attended a telephone appointment with a Law Centre. It is only from this point that he alleged that his treatment was age and religious discrimination: pg 196.[70]On 20 October 2021 Mr Cunha commenced early conciliation. The certificate was issued on 28 October 2021: pg 4. Mr Cunha’s claim form was submitted on 25 November 2021: pg 5.[71]On 14 July 2023 Mr Cunha was TUPE transferred to a new employer. THE LAW 2 The UDW Judgment stated that the date of acceptance was 24 September but it is clear from the documents that it was in fact 27 September 2021. Direct Discrimination
THE LAW
[72]Section 13(1) of the Equality Act 2010 (EA 2010) (direct discrimination) provides that: ‘A person(a) (A) discriminates against another(b) (B) if, because they protected characteristic, that person treats B less favourably than a treats or would treat others’. In this case the relevant protected characteristics are age and religion. In age discrimination cases there is a statutory defence of justification under section 13(2). This is not relied upon in this case.[73]Mr Cunha is alleging that his employer has subjected him to a ‘some other detriment’ under section 39(2) EA 2010 . Detriment is not defined under the act but is understood to mean some form of disadvantage, to be assessed from the viewpoint of the worker: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (HL).[74]The concept of less favourable treatment presumes an actual or hypothetical comparator. The relevant circumstances of the comparator must be ‘the same, or not materially different’: Section 23 EA 2010.[75]Discrimination may be, and often is, unconscious and unintended, therefore the tribunal’s decision will often depend on what inference it is proper to draw from all the relevant surrounding circumstances: see Qureshi v Victoria University of Manchester [2001] ICR 863 EAT and Anya v University of Oxford [2001] EWCA Civ 405.[76]It is well established that it is not necessary for the prohibitive characteristic, to be the sole reason for the less favourable treatment, if it has significantly influenced the reason for the treatment, discrimination is made out: Nagarajan v London Regional Transport [1999] IRLR 572 (HL). Burden of proof[77]Section 136 of the EA 2010 provides that: ‘(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.’[78]This means that the burden of proof is initially on Mr Cunha to establish primary facts from which the tribunal could decide in the absence of any other explanation that discrimination took place (stage 1). The burden then shifts to the respondent to prove that the discrimination did not occur (stage 2): Efobi v Royal Mail Group Ltd [2021] ICR 1263 (SC). Guidelines on the application of the burden of proof provisions are set out in Igen Ltd and Oth v Wong [2005] ICR 931; recently confirmed in Field v Pye & Co [2022] EAT 68.[79]Unfair and unreasonable treatment on its own is not enough to shift the burden of proof: Glasgow City Council v Zafar [1998] IRLR 26 (HL), although in certain circumstances it may be evidence from which an adverse inference can be drawn. DISCUSSION AND CONCLUSION Direct Discrimination Asking the Claimant to split his work across the New Malden and Wembley branches;[80]We have found as a fact that in August 2021 Mr Cunha was asked to work at both New Malden and Wembley branches. However we do not accept that Mr Cunha was being treated less favourably. This is because on 1 August 2021 the decision was made to reduce the hours of all employees and Mr Cunha was being offered Wembley to help make up his contractual hours.[81]Mr Cunha disputed that the decision to reduce hours was applied to all employees. However, not only is this a fact that has already been determined in the UDW Judgment, but Mr Cunha in an email dated 15 August 2021 referred to the reduction of hours of all the counter clerks not just his own. Therefore the contemporaneous documentation in Mr Cunha’s own words does not support this element of his claim.[82]We have found that Mr Cunha was offered the Wembley branch in order to make up his hours, because he lived close to Wembley, so it made geographical sense to offer this to him. This was only offered to the other staff at his branch when Mr Cunha turned it down. Therefore we concluded that rather than being subjected to a detriment Mr Cunha was being treated more favourably because he was in effect given first refusal.[83]In any event, we did not accept that Mr K Mohammed was a correct comparator (as was at times suggested by the claimant). He was a branch manager and therefore his circumstances were materially different because he was not employed in the same role or on the same pay. Further we do not accept Mr Cunha’s case that he was only offered Wembley branch in order to make space available at New Malden branch for Mr K Mohammed. We have found as a fact that the reason Mr K Mohammed remained at New Malden was due to Mrs Tharmi informing Mr Gummakonda that she was leaving. The plan had been to move Mr K Mohammed to Sydenham due to the need for a branch manager to cover staff illness. We accept that from Mr Cunha’s point of view it may have looked at the time as if he was being asked to move to make way for Mr K Mohammed, but he would not have been privy to the discussions about Mrs Tharmi’s anticipated departure.[84]Nor do we accept that Mr A Mohammed was a correct comparator. We have found that he was a self-employed relief worker. He had been placed at New Malden branch for a week in August 2021 for training and then placed mainly in the Dorking branch. According to the invoices he only worked at the New Malden branch on two relatively short occasions: 11½ hours in November 2021 and 16 hours in February 2022. Further there is no evidence to support Mr Cunha’s case that the respondent chose to employ a more junior member of staff over a senior employee at the New Malden branch and / or that Mr A Mohammed was brought in to replace him or stop his hours been increased. For example, when Mr Cunha hours were reduced in August and September 2021 Mr A Mohammed was not employed in his place.[85]Further, other than the fact that Mr K Mohamed and Mr A Mohammed were both Muslim, we were pointed to no evidence from which any inference could be drawn that the decision was anything to do with Mr Cunha’s religion. Indeed Mr Cunha was unable to give any positive evidence that the respondent were ever aware of his religion or that of Mr A Mohammed (although it was accepted that Mr Gummakonda did know that Mr K Mohammed was a Muslim having worked with him for many years). Therefore this is a case where the claimant has failed to establish the requisite primary facts for the burden of proof to transfer to the respondent for an explanation.[86]In relation to the age discrimination claim, other than the fact that Mr K Mohammed and Mr A Mohammed were both younger than Mr Cunha, the only other evidence from which an inference of discrimination could have been drawn is the age related comments by Mr Gummakonda. However we have found on balance of probabilities that these comments were not made. These findings were made on the basis of contemporaneous documents that Mr Cunha wrote at the time. Further we note that the two other counter clerks employed at the New Malden branch were of a similar age to Mr Cunha and were not subject to the alleged discriminatory treatment. We also heard undisputed evidence from Mr Bobat that the respondent employed a significant number of staff above 62 years old right up to 79 years old. Therefore, in the absence of any evidence from which an inference could be drawn we do not find that the burden of proof has shifted to the respondent.[87]Having taken into account all the evidence in this case, we are satisfied that the sole reason why Mr Cunha was asked whether he wanted to work in the Wembley branch was because it was geographically close to his home and the respondent needed someone to work there to provide cover for an ill member of staff, it was nothing whatsoever to do with his religion and / or age. The threat to sack the Claimant at the meeting on 17/08/2021[88]This claim failed on the facts. We had found that Mr Gummakonda did not threaten to sack Mr Cunha on 17 August 2021, and that comments made with reference to the mobility clause were misinterpreted by Mr Cunha (see paragraphs 56-58 above).[89]In any event, even if Mr Gummakonda had threated to sack Mr Cunha that does not mean that the reason for this threat was because of his age and / or religion. Mere unreasonable treatment in the absence of any other evidence is not sufficient to shift the burden of proof onto the respondent. In Mr Cunha’s case there is no evidence from which any inference of discrimination can be drawn for the same reasons as already stated. The most plausible explanation for any threat, if made, was that Mr Cunha was refusing to work at a branch which the respondent were entitled to request that he move to. Taking on a new employee, rather than increase the hours of existing members of staff[90]This claim failed on the facts. We had found that Mr A Mohammed was not taken on as a new employee but was employed as a relief worker. Further he was not taken on to work at New Malden but placed in a number of branches. He did his training for a week at New Malden in August 2021, but after that only worked in New Malden on two occasions, both post-dating the grievance and ACAS early conciliation process. Further and in any event there was no evidence to suggest that Mr A Mohammed was taken on to avoid increasing the hours of existing members of staff. Mr Gummakonda reminding the Claimant of his age when he saw him[91]This claim failed on the facts. We had found that Mr Gummakonda did not make any reference to Mr Cunha’s age on 17 August 2021, or on any previous occasion.
CONCLUSION
[92]Therefore, we concluded that Mr Cunha’s claims for religion and age direct discrimination did not succeed, and his claims were dismissed.