Dr R Arora v Dr G Bangi T/a GAB Healthcare: 2401223/2024
EMPLOYMENT TRIBUNALS
Case No 2401223/2024
Between
Dr R AroraClaimantDr G Bangi T/a GAB HealthcareRespondent
Before
Employment Judge SlaterMr S Harding (instructed by counsel) for claimantMs L Hatch (instructed by counsel) for respondentDate 2 May 2025
JUDGMENT
[1]Complaint 4.1.3 is dismissed on withdrawal by the claimant.[2]The Tribunal has no jurisdiction to consider complaints4.1.1 and4.1.2 which were presented out of time.[3]The remaining complaints of harassment related to race and direct race discrimination are not well founded. Approved by: Employment Judge Slater Date: 2 May 2025
REASONS
[1]The claimant presented two claims on 23 February 2024. One was presented on his behalf by his trade union, the BMA, in respect of what described as money claims (case number 2401226/2024). The other claim was presented by the claimant personally, claiming unfair dismissal and race discrimination (case number 2401223/2024). Both claims named GAB healthcare as the respondent. During the course of the hearing, it was agreed that GAB healthcare is not a legal entity but the trading name of Dr G Bangi. By consent, the name of the respondent has been amended to Dr G Bangi trading as GAB healthcare.[2]Unfortunately, the parties in correspondence mixed up the case numbers, referring to the money claims as being in case number 2401223/24 and the other claims in case number 2401226/2024. This error was continued by the Tribunal so that, when the claimant withdrew, following settlement, what everyone understood to be the money claims, with the withdrawal letter giving the incorrect case number, the judgment dismissing this claim on withdrawal was given the incorrect case number of 2401223/24. When the claimant withdrew the unfair dismissal complaint, the judgment dismissing the claim was given the incorrect case number of 2401226/2024. Case Number: 2401223/2024 2[3]This hearing was listed to hear what everyone understood to be the outstanding complaints of race discrimination. The incorrect case number of 2401226/24 appeared on the cause list.[4]The Tribunal noticed the errors and raised this with the parties at the start of the hearing. By consent, the Tribunal rectified the errors by revoking on reconsideration the two judgments already issued and making new judgments, with the correct case numbers, dismissing on withdrawal the money claims and the unfair dismissal complaint. This hearing proceeded to deal with the race discrimination complaints contained in case number 2401223/24.
Evidence
[5]The Tribunal heard evidence from the claimant and from Suzanne Clitheroe, the respondent’s business manager since December 2024 and, at relevant times, the respondent practice manager, and from Dr Bangi. There were written witness statements for these witnesses.[6]The Tribunal had an agreed bundle of documents. Some documents were added to this by agreement during the hearing. The Tribunal also had CCTV footage of events in the reception area at the respondent practice on 15 September 2023, which the Tribunal viewed.[7]After the claimant had finished giving evidence and partly through the evidence of Ms Clitheroe, on the morning of the third day of hearing, the claimant disclosed, for the first time, a recording which he had made covertly of the meeting on 1 June 2023. The claimant said he had forgotten about this recording until the evening before. The Tribunal is not satisfied that this is true. The Tribunal agrees with the submissions of Ms Hatch on this point. In particular, the Tribunal considers the claimant must have listened to the recording before he gave his oral evidence about the “Indianness” comment, which was before he says he remembered about the recording. We consider it unlikely that, without the prompting of the recording, the claimant would have remembered this remark, which was mentioned for the first time in that oral evidence. This damages the claimant’s credibility as a witness.[8]After an adjournment for Ms Hatch to listen to the recording with her clients and take instructions, it was agreed that a transcript be made of the part of the recording of most relevance to allegation 4.1.2. Counsel agreed this transcript which was provided to the Tribunal. The Tribunal did not listen to the recording of the meeting which we were told was of around 40 minutes duration. The claimant was recalled so that he could be cross examined by Ms Hatch about the recording.[9]The Tribunal draws no conclusions as to the claimant’s credibility from the claimant taking the oath on the Bible rather than another Holy Book. The Tribunal has no reason to believe that the claimant did not consider this oath binding on him in conscience. Claims and issues[10]The complaints and issues to be determined by the Tribunal were agreed to be those relating to the complaints of race discrimination listed in the record of the Case Number: 2401223/2024 3 preliminary hearing held on 15 May 2024. This list is reproduced in the annex to these reasons.[11]During the course of his evidence, the claimant withdrew allegation 4.1.3. Although the claimant said in oral evidence that there was nothing wrong with the statement “it can’t happen, it can’t happen,” which was the subject of allegation 4.1.2, the claimant said he still wished to pursue this as an allegation of harassment related to race. However, Mr Harding made no submissions in relation to this complaint.[12]The Tribunal had understood that allegation 5.1.1 was about the fact of summary dismissal and not just about the dismissal allegedly taking place in front of patients. We think this was the original intention. This is the more natural reading of the allegation, which is supported by the Further Particulars, However, in closing oral submissions, and after an adjournment to take instructions, Mr Harding told us that the allegation pursued at 5.1.1 was only about Suzanne Clitheroe dismissing the claimant in front of patients. Mr Harding told us that the claimant did not argue that Dr Bangi dismissed the claimant because he was Indian. The complaint about the dismissal being in front of a patient is, therefore, the only part of this complaint we have to consider.[13]The parties confirmed, at closing submissions’ stage, that there was no complaint of wrongful dismissal and that this appeared to have been included in error in the list of complaints and issues.
Facts
[14]The respondent is a sole practitioner operating three GP surgeries under the trading name of GAB Healthcare. Two of the surgeries are located at the same premises in Leyland and the other is in Chorley, about 4.5 miles away.[15]Dr Bangi is a very experienced trainer of GPs. The practice is an approved training practice recognised for both undergraduate and postgraduate medical training. Many of his trainees stay on with him for one or two years as newly qualified GPs. Dr Bangi provides the newly qualified GPs with considerable support and advice. Although, once GPs are qualified, they are independent clinical practitioners, we accept the evidence of Dr Bangi that there is a real need for mentorship in the first 1 to 2 years post qualification. He offers tutorials to newly qualified GPs which are voluntary but, with the exception of the claimant, have been accepted by other newly qualified GPs in the practice.[16]Dr Bangi is himself of Indian ethnic origin. The respondent’s employees are of diverse ethnic origins. In September 2023, of seven GPs, four were British Indian, two black British and one white British. In November 2024, of seven GPs, four were British Indian, two black British and one Egyptian.[17]The claimant joined the respondent as a newly qualified GP. He applied for a position as a salaried GP. He was offered a permanent salaried position for five sessions per week, one to be to participate in the two-year NTP (new to practice) fellowship program. This would have been the equivalent of two full clinical days in the practice. The claimant asked to work some sessions as a salaried GP and some sessions as a locum GP but this was refused because the advice of the Case Number: 2401223/2024 4 respondent’s accountant was that they should not do this, it being regarded as red flag to HMRC. The claimant then asked to work only two clinical sessions a week (one day) plus half a day for NTP. The claimant explained that he would continue to locum elsewhere as he wanted to keep his PAYE salary well below £50,000. The respondent agreed to this, although they would not normally employ a salaried GP for only one clinical day per week. We accept the evidence of the respondent that salaried GPs are difficult to find.[18]It was agreed that the claimant would do his clinical work on Fridays and he suggested that he do his NTP work on Thursday mornings. The claimant now disputes that the NTP work had to be done on Thursday mornings and asserts that he was free to do it whenever he wanted. We accept that the respondent understood, whether correctly or not, that the claimant was contracted to work for them, on his NTP programme, on Thursday mornings.[19]The claimant suggested that he do his NTP work from home on a Thursday rather than taking up surgery time or space.[20]The claimant began work with the respondent on 9 February 2023. The claimant was issued with a written contract of employment but this was never signed by the claimant. When this was followed up by Suzanne Clitheroe in March 2023, the claimant said he was getting advice from the BMA about the contract. He subsequently sent the respondent suggested changes based on the advice from the BMA. The respondent did not agree to these changes and the claimant never signed the contract. It is not necessary for our decision to determine what the exact terms of the contract were.[21]The claimant had an induction programme carried out by Julie Grant who was at the time joint practice manager with Suzanne Clitheroe. The respondent required that certain online training be completed as part of the induction. The claimant was given time to do this during induction but he did not complete it then or at any time before his employment was terminated in September 2023. After Julie Grant had left the practice in the summer of 2023, Suzanne Clitheroe discovered, during an audit of training, that the claimant had not completed his mandatory training and followed this up with the claimant. The claimant promised to complete this but did not do so.[22]The practice has a few laptops provided by the PCT. The practice is to comply with PCT requirements for software updates. Laptops are not routinely provided to salaried GPs. Each consulting room is equipped with a desktop PC with access to programs and information required for a GP’s work.[23]In April 2023, the claimant asked if he could have a laptop for VPN access for the work he did at Leyland, to look at bloods or tasks from home on a Thursday. Suzanne Clitheroe agreed to provide the claimant with a laptop but wrote to him on 12 April 2023 telling him that laptops needed to be brought back to base weekly for IT updates but suggested he could do that every Friday, when he would be working at the practice.[24]The claimant’s first complaints relate to a meeting on 1 June 2023. It is relevant to make some findings of fact about the background to that meeting. Case Number: 2401223/2024 5[25]We find that, from an early stage, the respondent had concerns about the claimant. These included: 25.1. The way he spoke to staff, which was viewed as condescending. 25.2. Contacting staff outside working hours to find out where he should be, when the information was already available to him. 25.3. Feedback from patients that he could be rude and dismissive. 25.4. Being late for telephone appointments.[26]Dr Bangi also had some concerns about the claimant’s clinical practice but these were not any greater than for any other newly qualified GP. Dr Bangi’s concern in relation to this and other matters was that the claimant did not appear to have a reflective approach to his practice and interactions with people which Dr Bangi considered necessary for the claimant to improve.[27]There was an ongoing failure on the claimant’s part to accept the respondent’s practice in relation to not allowing payment on a locum basis to GPs employed on a salaried basis in the practice. Although the respondent’s reasons for not doing this were explained to the claimant on a number of occasions, he kept asking. This had arisen, most recently, in relation to an additional session which the claimant worked on 20 May 2023. This was too late for the 19 May cut-off for payment in May and the claimant also had not filled in the overtime claim form in accordance with the respondent’s practice. When the claimant was told that he could not be paid by an additional salary payment in May, the claimant asked whether a payment could be made to his company. This was refused. The claimant would not accept the information being given by Suzanne Clitheroe, who even offered personally to lend the claimant the money, and Dr Bangi had to be involved, confirming to the claimant that this could not be done and asking the claimant to accept their processes.[28]In an email dated 23 May 2023, Dr Bangi wrote to the claimant that he would like a meeting with him as he felt there were issues they needed to discuss. Dr Bangi asked Suzanne Clitheroe to organise the meeting. By an email later that same day, Suzanne Clitheroe asked the claimant to attend a meeting on Thursday 25 May to meet her and Dr Bangi. This was during a time when the respondent understood that the claimant was contracted to work for them, on his NTP Fellowship program. The claimant replied that he was not coming that day but could meet them on Friday and asked what issues they needed to discuss. On 26 May 2023, Suzanne Clitheroe sent the claimant a further invitation to a meeting on Thursday 1 June “to discuss the possibility of bringing an end to your employment”. The letter, which was drafted by HR advisers to the respondent, said that “the reason that the termination of your employment is being considered is due to incompatible work practices.”[29]The meeting was ultimately rearranged as a Teams online meeting on 1 June 2023, to accommodate the claimant. Case Number: 2401223/2024 6[30]The claimant attended the meeting with his BMA representative. Dr Bangi and Suzanne Clitheroe attended the meeting. We now know that the claimant covertly recorded this meeting.[31]It is common ground that Dr Bangi and Suzanne Clitheroe raised their concerns with the claimant. Although he was resistant at first, he ultimately acknowledged that there were genuine concerns and said he would reflect and would change. Dr Bangi wanted to support the claimant and decided not to terminate his employment, giving the claimant another chance.[32]It is common ground that Dr Bangi and/or Suzanne Clitheroe used words to the effect of “it can’t happen, it can’t happen.” This was in the context of Dr Bangi explaining to the claimant that they had policies and procedures in place and would accommodate requests if they could. However, they could not pay him as a selfemployed locum and a salaried employee. In oral evidence, the claimant accepted that there was nothing wrong with this comment.[33]Allegation 4.1.2 is that, at the meeting, Dr Bangi said “this is how things are done in this country” or words to that effect. The relevant part of the recording of the meeting has been transcribed so we are able to see exactly what was said and the context in which the remark now relied on was made. The comment the claimant now relies on is Dr Bangi saying “That doesn’t work. That stuff doesn’t work here.” That comment is completed by Dr Bangi saying “We treat everybody with the same professionalism and respect that we deserve. We are here to do a job.” The claimant replied: “No, but Dr Bangi, I can assure you I’ve not been condescending to anybody.”[34]The lead up to the remark included Dr Bangi expressing concern about the non-reflective nature of something and asking the claimant to accept the policies and processes they follow. Dr Bangi spoke about everyone there being part of a team and part of being a team being the need for having a level of respect for everyone. Dr Bangi said the problem they had was the claimant’s behaviour and that he needed to reflect on that. He said the claimant’s behaviour was, in his opinion, completely unacceptable and bordered on unprofessionalism. He gave an example of the claimant phoning him 17 times on Saturday. He said the claimant knew that he was avoiding having a discussion because they had sent the letter out. Having an informal discussion with the claimant before the meeting was counter-productive. Dr Bangi said he had the impression that the claimant had the view that he could bypass the rules.[35]The immediate lead up to the remark about which the claimant complains was as follows:[36]“[Dr Bangi] You say yourself it’s a good place to work, but there are a set of rules that hinges all this together. And we all have to respect them. I can’t remember in any job getting a response off a manager saying, this is it, and then me just saying no, don’t treat me as a kid.”[37]“[Claimant] I think it’s also a bit of a change in place, you know I’ve worked in Blackpool, things were different there. There’s a bit of a cultural difference as well. No matter how long I work in the UK, I’ll always be, you know, you can take an Case Number: 2401223/2024 7 Indian out of India, but you cannot take the Indianess out of an Indian, ever. So, you know, that’s the Indian way of doing things.”[38]The claimant has not satisfied us, on a balance of probabilities, that he considered the comment “That doesn’t work. That stuff doesn’t work here.” offensive at the time.[39]The respondent had further concerns about the claimant’s behaviour, following the meeting on 1 June 2025. These included the following.[40]On 9 June 2025, the claimant informed Dr Bangi that Dr Bangi would be contacted in relation to some safeguarding concerns which were being investigated. Dr Bangi asked the claimant to provide details of the safeguarding investigation but the claimant refused.[41]On the same day Ann Batty, apprentice trainee nursing associate, emailed Dr Bangi with some concerns about blood tests and an ECG requested by the claimant. She also wrote that they had received about four complaints from patients in the past two weeks about the claimant’s attitude, saying that he was abrupt, seemed disinterested and quite rude.[42]On 20 June 2023, Jackie Kirby, senior practice administrator, forwarded to Dr Bangi an email from another member of staff questioning bloods being requested by the claimant. Dr Bangi wrote to the claimant asking to speak to him on Friday about blood tests he was requesting and the indication for such blood tests and the process of requesting them.[43]On the same day, Dr Bangi asked Suzanne Clitheroe to keep a log of the issues which were arising with the claimant.[44]On 3 July 2023, Dr Bangi and Suzanne Clitheroe had a meeting with safeguarding at which they were informed of some serious allegations against the claimant. We understand that, following the claimant’s dismissal and a behavioural assessment with safeguarding, no action was taken against the claimant in relation to these allegations. Dr Bangi decided to keep claimant on and keep matters under review since the claimant still licensed to practice.[45]In July, the claimant requested leave without using the required process in the practice. Suzanne Clitheroe reminded the claimant in August of the rules relating to annual and study leave.[46]In August, Suzanne Clitheroe discovered the claimant had not completed his mandatory training and asked for him to do so.[47]On 29 August 2023 Suzanne Clitheroe received an email from the PCT setting out action which was to be taken on the following Friday to move from one software program to another. We accept that Suzanne Clitheroe understood, whether or not she was right about this, that she needed the laptops back to be able to make this change. She emailed the claimant and the two others who held laptops in the practice on 30 August 2023 asking for the laptops to be returned to the surgery by 11 am on 1 September and saying the laptops would need to be in the practice approximately one week to remove and replace the software. She sent the three people including the claimant a reminder about this at 8:19 a.m. on 1 September Case Number: 2401223/2024 8 2023. The claimant emailed Suzanne Clitheroe at 19.53 on 1 September 2023 saying he had not been able to bring in the laptop because he was on a course. He wrote that he would call IT to remove any script the following week. At 19.59, Suzanne Clitheroe replied, asking the claimant to bring the laptop on site the following the day. The claimant was due to work at the practice on Saturday. The claimant replied at 20.15 saying that he was using his laptop for his NTP project and potential meetings with PCN during the week. He asked Suzanne Clitheroe not to insist on him leaving the laptop. He said he would get in touch with IT on Monday and sort things out. Suzanne Clitheroe replied at 20.23 writing that the claimant was welcome to come into the practice on Thursday to use the desktop PC for his NTP work and mandatory training. She also offered to arrange desktop provision if he wanted to come in on any other day. She wrote that provision of the laptop was not a contractual requirement and suggested that, if he needed a laptop for his NTP work, he should purchase one. She stated that she had requested on several occasions that the laptop be brought onto site for updates but he had refused every time.[48]At 20.43 on 1 September 2023, the claimant wrote that he would bring the laptop in on Monday but would need it back on the same day.[49]The claimant suggested in oral evidence that there were other emails from Suzanne Clitheroe that evening which have not been included in the bundle. We do not accept this evidence. If there had been other emails, the claimant should have been able to produce these. The emails in the bundle do not suggest that there were any missing from the email trails. There was only one email from Suzanne Clitheroe to the claimant after 8 o’clock that evening and that was in response to an email from the claimant shortly before.[50]At 7:48 a.m. on 2 September 2023, Suzanne Clitheroe wrote to the claimant that she was coming into Chorley that day and would collect the laptop from the claimant. The claimant replied that he would be using the laptop for consultations. Suzanne Clitheroe replied, noting the claimant’s refusal to return the laptop.[51]The claimant emailed Suzanne Clitheroe on 4 September 2023, writing that he was free the next two days and could do extra sessions if they needed help but would prefer the locum rate. He suggested he could bring the laptop in for her to sort out during the day.[52]The claimant was invited to a meeting on 21 September 2023 (a Thursday) to discuss issues including mandatory training, leave, patient notes and practice equipment. We accept Dr Bangui’s evidence that he had been made aware that the claimant had refused to return the laptop following Suzanne Clitheroe’s requests, that the claimant had not completed his mandatory training and continued to fail to follow the relevant processes for requesting annual and study leave. The meeting was to discuss these issues.[53]The claimant replied on 13 September 2023 to say that he could not attend the meeting on 21 September but could attend on the 19th . He wrote that he was trying his best to complete all the training. There followed further correspondence about the date of the meeting with Suzanne Clitheroe asserting that the claimant was under contract to work for the respondent on Thursdays and the claimant disagreeing. Case Number: 2401223/2024 9[54]Suzanne Clitheroe contacted IT at the PCT because she had not been able to carry out the required work on the claimant’s laptop and asked them to disable the laptop. She thought this would result in the claimant needing to bring the laptop in.[55]On 15 September 2023, the claimant was at the respondent’s Chorley surgery, carrying out clinical work. An IT person attended, apparently in response to a request from the claimant. The IT person took the laptop from the claimant and passed it to Suzanne Clitheroe.[56]Suzanne Clitheroe put the laptop under her desk, on drawers, separate from the other laptops which had been worked on. Suzanne Clitheroe then got a call that her Mum was in A & E so she closed her office, which automatically locks, and went to A & E. Whilst she was in A & E, she got a call from the practice receptionist saying the claimant wanted access to her room to retrieve the laptop. She said he was not to be given access. The receptionist passed the phone to the claimant. He demanded the laptop back and access to her room. She refused. She terminated the call when he persisted with his demands and was talking over her.[57]Suzanne Clitheroe returned to the office later that day and found the laptop had gone. We make no finding as to whether the claimant broke the lock or managed to enter in some other way. He had been given a code to the key lock in April 2023 but we accept Suzanne Clitheroe’s evidence that the code had been changed since then. However he entered, he must have understood, from the phone call, that he did not have permission to do so. When asked, when he was giving evidence, whether he believed he had done anything wrong in relation to the laptop in the period 30 August to 15 September, the claimant said “no comment.”[58]We prefer the evidence of Suzanne Clitheroe to that the claimant in making the following findings, to the extent that their evidence differs on some of these details. We note that the claimant changed some of his evidence after viewing the CCTV footage. We found Suzanne Clitheroe to be seeking to tell the truth whilst we had some concerns about the claimant’s credibility.[59]Susan Clitheroe went to the consulting room the claimant was using that day. She knocked on the door then entered. The claimant was alone, eating his lunch. She asked if he had taken the laptop and he said he had. She said words to the effect that she needed it back to update the software. She saw the laptop on the desk and went to pick it up but he intervened, picking up the laptop and taking it, together with his lunch, into the reception area, where a patient was waiting. The claimant refused to give the laptop to Suzanne Clitheroe and asked the receptionist to phone the police. Suzanne Clitheroe indicated to the receptionist that she should do so. As soon as the receptionist got through to emergency services, the claimant told her to terminate the call. Suzanne Clitheroe told the receptionist to hand the call to her. We accept that this was because it is a serious business for a doctor’s surgery to call emergency services and such a call cannot be terminated without explanation. She spoke to the emergency services saying that she needed to report stolen equipment. At this point, the claimant handed the laptop to her. She confirmed to the operator that the equipment was being handed over to her and apologised for wasting their time. Case Number: 2401223/2024 10[60]Suzanne Clitheroe then went to take the laptop to her office. The claimant told her that he was going home and would not see any patients that afternoon.[61]Suzanne Clitheroe phoned Dr Bangi. She told him that the claimant was not working that afternoon and asked whether Dr Bangi could come into cover. Dr Bangi realised that she was distraught and Suzanne Clitheroe then explained what had happened. Dr Bangi decided, in the circumstances, to dismiss the claimant summarily. We accept that he had been intending to dismiss the claimant at the meeting to be held the following week. Given the safeguarding allegations, the various concerns they had had about the claimant and what appeared to Dr Bangi to be patterns of behaviour by the claimant, Dr Bangui decided to dismiss the claimant with immediate effect. He gave instructions to Suzanne Clitheroe to tell the claimant he was dismissed immediately.[62]Suzanne Clitheroe went to carry out these instructions, asking a receptionist Kylie Cylok, to accompany her. It is common ground that the claimant opened the door to his office when he heard Suzanne Clitheroe approaching. Suzanne Clitheroe told him that Dr Bangi had told her to tell him that he was dismissed with immediate effect. She asked him to collect his belongings and leave the premises.[63]The claimant alleges that this conversation was in the presence of a patient. There was no patient in the claimant’s consulting room. We note that, in the complaint the claimant made about Suzanne Clitheroe’s conduct shortly after his dismissal, he made no mention of the dismissal being effected in the presence of a patient. Instead, he referred to Suzanne Clitheroe humiliating him in the presence of a receptionist. He did not mention in his claim form that the dismissal was in front of a patient. The first mention of this is in the further particulars. It was not put to Suzanne Clitheroe in cross examination that the dismissal was in front of a patient. The burden is on the claimant to satisfy us of facts on which he relies. The claimant has not satisfied, on a balance of probabilities, that the dismissal was in front of a patient. We do not consider that the presence of the patient in the waiting room in the CCTV footage assists the claimant. The waiting area is separated by doors, including a fire door, from the door to the consulting room.[64]There is some dispute as to what was said by the claimant to Suzanne Clitheroe once she had told him he was dismissed. Suzanne Clitheroe did not include all the allegations which are now in her witness statement in her initial reports. However, we are not satisfied that these discrepancies are due to an intention to exaggerate. Whatever was said, Suzanne Clitheroe was upset. It is common ground that the comments included questioning her credentials. Submissions[65]Ms Hatch, for the respondent, provided written submissions and made brief additional oral submissions. Mr Harding, for the claimant, made oral submissions only.[66]We address the main submissions in our conclusions. Case Number: 2401223/2024 11
Law
[67]Section 13(1) of the Equality Act 2010 (EqA) provides: “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”. Section 4 lists protected characteristics which include race. “Race” is defined by section 9(1) as including colour, nationality, ethnic or national origins.[68]Section 23(1) provides that “on a comparison of cases for the purposes of section 13….there must be no material difference between the circumstances relating to each case.”[69]Section 39(2) provides, amongst other things, that an employer must not discriminate against an employee by subjecting that employee to a detriment.[70]Section 136 provides: “(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.”[71]The fact that a claimant has been subjected to unreasonable treatment is not, of itself, sufficient as a basis for an inference of discrimination so as to cause the burden of proof to shift: Glasgow City Council v Zafar [1998] ICR 120 HL. In that case, the House of Lords held that a tribunal had not been entitled to infer less favourable treatment on the ground of race from the fact that the employer had acted unreasonably in dismissing the employee.[72]If the claimant establishes facts from which the tribunal could conclude there was unlawful discrimination, the burden passes to the respondent to provide an explanation for its actions. The tribunal must find that there was unlawful discrimination unless the respondent provides an adequate, in the sense of nondiscriminatory, explanation for the difference in treatment.[73]Less favourable treatment will be because of the protected characteristic if the characteristic is an “effective cause” of the treatment; it does not need to be the only or even the main cause. The motivation may be conscious or unconscious: Nagarajan v London Regional Transport [1999] IRLR 572 HL.[74]Section 123 EqA provides that proceedings may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable. Section 123(3) provides that conduct extending over a period is to be treated as done at the end of the period. Case Number: 2401223/2024 12 Conclusions Harassment related to race
Conclusions
[75]There is a time limit issue in relation to the allegations about events on 1 June 2023. We deal first with the merits of the complaints and then will return to the issue of time limits. 4.1.1 At a meeting of 1 June 2023, did Suzanne Clitheroe and Dr Bangi chastise the claimant for asking things again and again and use the words “it can’t happen, it can’t happen” or words to that effect.[76]This complaint was not formally withdrawn but the claimant said in evidence that there was nothing wrong with this comment and no submissions were advanced in relation to this allegation. We conclude that, if we have jurisdiction to deal with this, this complaint is not well founded on the merits. 4.1.2 At the same meeting did Dr Bangi say “this is how things are done in this Country” or words to that effect?[77]We consider, taken in context, that Dr Bangi saying “That doesn’t work. That stuff doesn’t work here” must reasonably have been meant and understood as relating to the practice. We do not consider that the claimant could reasonably have understood it to relate to race. We were not satisfied, as a matter of fact, that the claimant was offended by this comment. The claimant does not rely on anything other than the comment itself to prove facts from which we could conclude that the comment was related to race. The claimant has not satisfied us of such facts. The complaint would fail on the merits on this basis alone. However, even if we had concluded it related to race, we would not have been satisfied that it did, in fact, have the requisite effect on the claimant. Even if we had been satisfied that it did, we would have concluded that it was not reasonable in the context, for it to have such an effect. The claimant introduced stereotypical assumptions in the conversation, although the Tribunal is still unclear as to what he meant by his Indianness comment. The explanation given in oral evidence, before the recording was disclosed, that it referred to repetition, makes no sense in the context of the transcript. We conclude that, if we have jurisdiction to deal with this, this complaint is not well founded on the merits. 4.1.3[78]This complaint was withdrawn. 4.1.4 On 15 September 2023 did SC lock the claimant’s laptop in her office. 4.1.5 On the same date, having retrieved the laptop from SC’s office did SC(a) enter the claimant’s office without consent?(b) attempt to search his office for the laptop, and(c) snatch the laptop from his desk and otherwise act in an aggressive manner. 4.1.6 On the same date, when the claimant called the police about the laptop did SC say that she was about to tell the police that the laptop had “been stolen”? Case Number: 2401223/2024 13[79]We deal with complaints 4.1.4 to 4.1.6 together. Suzanne Clitheroe did lock the laptop which had been loaned to the claimant in her office, as she locked everything in that office, when she went to A & E. She entered the consulting room where the claimant was working after knocking. She did not attempt to search the office; she could see the laptop on the desk. She attempted to pick up the laptop but was prevented from doing so by the claimant. We were not satisfied she acted in an aggressive manner. After the claimant told the receptionist to call the police but then wanted to terminate the call, the claimant did speak to them and say she was going to report a stolen laptop but this had now been handed back.[80]In submissions, we were invited by Mr Harding to draw inferences that this conduct was related to race from the previous comment made by Dr Bangi in the 1 June meeting and by what the claimant alleged was bizarre behaviour by Suzanne Clitheroe and alleged exaggerations in her evidence. We did not find Dr Bangi’s comment to be related to race so this cannot be relied upon to draw inferences. We are not satisfied that Suzanne Clitheroe deliberately exaggerated her evidence. Nor do we agree with the description of her behaviour as bizarre. Her conduct on 15 September was explicable in the context of her belief in the need to have the laptop to update it and the claimant’s failure to return it for updates. Even if Suzanne Clitheroe’s behaviour was unreasonable (which we do not find that it was) this would not be sufficient to shift the burden of proof. The claimant has not satisfied us of facts from which we could conclude that Suzanne Clitheroe’s conduct on 15 September was related to race. The complaints must fail. Direct race discrimination 5.1.1 The respondent summarily dismissed the claimant in front of patients without notice.[81]The only part of this still pursued is that Suzanne Clitheroe allegedly told the claimant of his dismissal in front of a patient. The claimant has not satisfied us that this happened, as a matter of fact. The complaint, therefore, fails. Even if he had satisfied us it was in front of a patient, we would have concluded that he had not proved facts from which we could have concluded that race was a material factor in the decision to tell the claimant of his dismissal in front of a patient. The complaint would have failed for that reason. Time limits[82]Since all the complaints would fail on their merits, there can be no continuing course of discrimination. The complaints about the conduct on 1 June 2023 were, therefore, presented out of time. The claimant gave no evidence as to why he did not present his claim in relation to these complaints in time. Mr Harding submits that it would be just and equitable to extend time because, having not been dismissed at the meeting, the claimant would not want to rock the boat by bringing the complaint. We are not satisfied, however, that the claimant was offended at the time by Dr Bangi’s comment. We are not, therefore, satisfied that the reason he did not take action in time was for fear of rocking the boat. We do not consider there are grounds for a just and equitable extension of time. We conclude that we do not have jurisdiction to consider complaints 4.1.1 and 4.1.2. Case Number: 2401223/2024 14 Approved by: