Dr G T Parker v Liverpool John Moores University: 2402391/2024
EMPLOYMENT TRIBUNALS
Case No 2402391/2024
Between
Dr G T ParkerClaimantLiverpool John Moores UniversityRespondent
Before
Employment Judge DunlopIn person for claimantMr C Baran (instructed by Counsel) for respondentDate 23 May 2025
JUDGMENT
[1]The claimant’s complaint of victimisation is not well-founded.[2]The claim is dismissed.
REASONS
[1]The claimant, Dr Parker, was employed by the respondent university as a lecturer from 15 July 2016 until 14 October 2021 when he was dismissed on notice. That dismissal, along with earlier incidents arising in the course of Dr Parker’s employment, was the subject of an Employment Tribunal claim (2402035/2022) which was heard by a Tribunal panel (Employment Judge Johnson, Mr Murdie and Ms Crane) at a ten-day hearing, followed by three deliberation days, in September and October 2024.[2]In a lengthy reserved Judgment sent to the parties on 3 December 2024, the panel dismissed all of Dr Parker’s claims. I will refer to that claim as “the first claim”, the Tribunal as “the Johnson Tribunal” and the Judgment as “the Johnson Judgment”.[3]This was a much simpler claim. After presenting the first claim Dr Parker had received an offer of employment from another employer, Study Group. That offer was withdrawn following the respondent’s response to a reference request from Study Group. Dr Parker complains that the response amounted to unlawful victimisation under the Equality Act 2010.
The Hearing
[4]The hearing took place by CVP. This was at Dr Parker’s request because he now lives in the south of England. Dr Parker’s internet connection was inconsistent, but we were able to resolve this by having him join by telephone for his audio connection and by video (remaining muted) so that we could also see him. Beyond this there were some minor technical difficulties, as is generally the case with video hearings, but the Tribunal was satisfied that both parties were able to present their evidence and submissions effectively and that the hearing was fair.[5]At the start of the hearing, Dr Parker raised two issues, which he had previously raised in correspondence. He invited the Tribunal to postpone the hearing due to these matters.[6]The first issue related to the respondent’s disclosure of a redacted document. Some context is necessary in relation to this. Although the respondent and Study Group are two separate entities, Study Group operates in Liverpool from premises which are owned and operated by the respondent. There is a partnership in operation between the respondent and Study Group under which Study Group delivers foundation courses to students who do not have the qualifications required for the university’s undergraduate courses. The courses are ‘badged’ as LJMU courses and students are LJMU students. Both of the respondent’s witnesses made reference to the partnership arrangement in their witness statements, which were served well in advance of the hearing.[7]On 13 May 2025, around a week before this hearing started, the respondent disclosed a copy of a written “collaboration agreement” between the respondent and Study Group (or, to be more accurate, between the respondent and Bellerbys Educational Services Limited, being the legal entity which trades as “Study Group”). That document had a large number of redactions. The respondent sought to rely on it as evidencing the commercial relationship between the respondent and Study Group which had been referred to its witness statements.[8]Dr Parker complained that the document had been disclosed late, and that he was unable to assess for himself whether the redactions were legitimate.[9]The second issue related to an unfortunate sequence of correspondence with the Tribunal. At a preliminary hearing in this matter on 8 November 2024 (which, coincidentally was also conducted by the Employment Judge Dunlop) the Judge had noted that Dr Parker had not yet had sight of the respondent’s responses to Study Group’s reference request. The Judge ordered early disclosure of those, and made provision for Dr Parker to refine the detriments that he was relying on in view of the contents of that disclosure. Dr Parker duly wrote to the Tribunal on 6 December 2024 in order to do so.[10]No doubt due to the pressure of work, the Judge who reviewed that correspondence considered Dr Parker’s letter to be an application to amend, and did not appreciate that it was a clarification which was envisaged and invited by the earlier case management orders. She directed that Dr Parker provide his comments on various matters by 28 February 2025.[11]Dr Parker duly provided a response by email on 25 February 2025. The response would have clarified the situation, had it not been for the fact that it unfortunately went missing from the Tribunal’s files. The apparent lack of any response from Dr Parker prompted another Employment Judge to write to the parties on 18 March 2025, stating that Dr Parker was not seeking to amend the claim and the list of issues would remain unaltered.[12]Dr Parker was alarmed by this letter, and there followed further correspondence which we will not rehearse in detail in which he sought to instigate an investigation into what had happened to the email and maintained that the case could not proceed until that had been resolved. Pragmatically, however, both parties had in fact prepared their case on the basis of the updated list of alleged detriments provided by Dr Parker on 6 December. Further, there is actually very little evidence required from either party in relation to the alleged detriments, because the matters complained of are apparent on the face of the emails which formed the respondent’s early disclosure.[13]Mr Baran’s position at the outset of the hearing was that the case could go ahead on the basis of the alleged detriments as set out in Dr Parker’s 6 December email (notwithstanding the fact that the respondent had originally objected to some to the matters set out therein, on the basis that they could not properly be classed as ‘detriments’). Dr Parker’s position was that the hearing should be adjourned until an investigation had been conducted into what had happened to his email of 25 February.[14]The panel adjourned to consider the claimant’s postponement application and decided that the hearing should go ahead. In relation to the late disclosure issue, the panel were of the view that it was the existence of the agreement that was material, rather than the substance of its contents. We considered it unsurprising, in the circumstances of the case, that large portions of the agreement had been redacted as the commercial details of the agreement would not be relevant to the issues we had to determine, and the respondent would have a legitimate interest in maintaining confidentiality in respect of those details. We noted that, whilst late disclosure is not to be condoned, Dr Parker is a very literate and intelligent individual and we considered that a week would give him enough time to consider the document and its relevance to the case. Dr Parker could give no credible answer as to how it would benefit his case to receive a nonredacted (or less-redacted) version of the document, nor as to how it would benefit his case to have more time to consider the document.[15]In relation to the issue about the missing email, the panel could understand Dr Parker’s alarm at the 18 March letter, and his concern to put things right, especially after the context of his initial email had been misinterpreted. Pragmatically, however, the respondent’s concession that Dr Parker should be able to advance his claim on the basis set out in the 6 December letter answers the point completely. It is extremely unlikely that any ‘investigation’ conducted by the Tribunal Service will provide an answer as to why the email that Dr Parker undoubtedly sent does not appear on the file. There have always been instances of correspondence not reaching the file, or going missing from the file, whether in the days of paper files or in the modern electronic case management system. Even if any investigation was able to provide answers, those answers would not impact on the on-going conduct of the case in view of the respondent’s concession. Again, Dr Parker could provide no credible answer as to what benefit there was to him of delaying the case.[16]That lack of any substantive benefit of delay (or, to put it the other way, detriment in proceeding) must be balanced against the very significant negative consequences of a decision to postpone. To postpone at the outset of the final hearing would represent a significant waste of resources for the respondent, and for the public purse, as well as a waste of time for Dr Parker. It would mean that the evidence would be older and, potentially, more stale by the time the case came to trial, and it would mean that other cases that are waiting for their own hearing would have a longer wait. Given all those circumstances, our unanimous view was that the right decision was to proceed with the hearing. Dr Parker did not seek any other order, aside from postponement, in relation to the matters he raised.[17]Following our decision to go ahead with the hearing, the case proceeded smoothly. We had a 306-page hearing bundle which were able to read in full during the time allocated to reading on Day 1. The bundle included the Judgment in the first claim, as well as the pleadings and underlying documents relevant to this claim. In the afternoon of Day 1 we heard evidence from Dr Parker, and from the respondent’s first witness, Professor Michael Riley, who concluded his evidence at the end of that day. On the morning of day 2 we heard from the respondent’s second witness, Professor Mark Power. We then heard submissions from both parties. Both Dr Parker and Mr Baran had helpfully provided a written outline of the points which they wanted to make, and they were given the opportunity to expand these submissions and respond to points each other had raised. We were grateful to both for the submissions received. Following deliberations, we delivered an oral Judgment.
The Issues
[18]The issues in this case were set out at the case management hearing, subject to refinement after Dr Parker had had disclosure of the communications between the respondent and Study Group. Incorporating the changes he made in his 6 December 2024 letter, they stood as follows (in relation to liability only) (‘TSG’ being an abbreviation for ‘the Study Group’): Victimisation (Equality Act 2010 section 27)1.1 The respondent concedes that on 18 March 2022 the claimant issued a claim in the Employment Tribunal for various matters, including complaints of race discrimination and that that was a protected act within s.27 EqA.1.2 Did the respondent do the following things: 1.2.1 On 6 November 2023 Professor Cotgrave forwarded a request by TSG to Professor Michael Riley. Professor Cotgrave asked whether Professor Riley thought it was 'the same Geoff Parker'. Professor Cotgrave wrote that she was not sure what to do. 1.2.2. On 6 November 2023 Professor Riley involved himself in the reference request by writing back 'surely not!'. 1.2.3. On 6 November 2023 Professor Cotgrave again invited Professor Riley to provide instruction and explained that it was 'even more complicated'. 1.2.4. On 6 November 2023 Professor Riley involved himself further in the reference request by instructing that Professor Cotgrave 'pass this one to' (also involve) Laura (Halpin) and David (Watson), who he described as 'the University's solicitor dealing with Geoff's case'. 1.2.5 On or around 10 November 2023 Professor Cotgrave represented to TSG that she had had no direct responsibility for managing Dr. Parker, and declined to provide a substantive reference for the claimant, and referred the request to HR, and wrote that HR would be responding on behalf of the University. 1.2.6 On or around 15 November 2023 the HR Team providing a response to the reference request in a new, original format/questionnaire (including supplemental and original language) which referred to the claimant’s employment being terminated, to the fact that the disciplinary procedure had been invoked and to the fact that a final written warning had been issued. 1.2.7 On or around 20 November 2023 the HR Team emailing TSG and stating that the respondent would not permit the claimant to enter LJMU buildings or use LJMU resources in the event that he secured employment with TSG.1.3 By doing so, did it subject the claimant to detriment?1.4 If so, has the claimant proven facts from which the Tribunal could conclude that it was because the claimant did a protected act or because the respondent believed the claimant had done, or might do, a protected act?1.5 If so, has the respondent shown that there was no contravention of section 27?
Findings of Fact
[19]On 14 October 2021 Dr Parker was dismissed from his employment with the respondent. That dismissal prompted the first claim to the Tribunal, issued on 18 March 2022. The claim included Equality Act complaints of harassment, direct discrimination and indirect discrimination on grounds of race, and also of victimisation. In addition there were other complaints brought under the Employment Rights Act 1996.[20]In respect of the circumstances of the claimant’s dismissal we adopt (indeed, we are bound by) the findings of fact made by the Johnson Tribunal. In summary, the claimant was fairly dismissed for, in the language of the statute, “some other substantial reason”. Specifically, he was dismissed because he had become unmanageable (paragraph 230). The Johnson Tribunal made extensive findings about the dismissal process, which I can summarise as being that a formal process took place, albeit that it was not identical to a disciplinary process. There were no findings at all of unfairness. All of Dr Parker’s complaints, including his Equality Act and whistleblowing complaints were dismissed. The Judgment was reserved and was sent to the parties on 3 December 2024.[21]On 25 October 2023 – that is, after presenting the first claim but long before it came to hearing – the claimant applied for a job as a Life Sciences Tutor with Study Group. Study Group operates an International Study Centre within Liverpool John Moores University and teach students at a foundational level, with a view to them progressing to mainstream higher education provision in due course. Study Group has its headquarters in Brighton and operates in many other locations. However, the position description provided for the role that Dr Parker applied for clearly and prominently gave the location of the role as being Liverpool John Moores University International Study Centre. We find that, in choosing to apply for the role, Dr Parker knew that it was extremely likely, if not certain, that he was applying for a role which would take him back to the premises of the university he had been dismissed from.[22]The rubric of the application form required Dr Parker, as an applicant, to provide referees from his current or most recent employer, and his next most recent employer. He provided the name of Alison Cotgrove, a professor at the respondent university. The reason for selecting Professor Cotgrove was not explored in evidence, although it is noted that there were nine individual respondents to the first claim, including the claimant’s recent line managers, but not Professor Cotgrove. It is perhaps not surprising that he did not choose to name any of the individuals he was pursuing litigation against.[23]The application form also required Dr Parker to state his employment history over ‘at least’ the last ten years, and provide a reason for leaving each role. Dr Parker gave his reason for leaving Liverpool John Moores University as “career progression” and conceded in evidence that those words were “doing a lot of lifting”. Of course, the reality was that he had been dismissed and that that entry was simply untrue.[24]Dr Parker successfully progressed through the stages of the application process until he was offered the role, subject to various conditions relating to DBS checks, background checks and reference checks.[25]On 6 November Study Group sent a reference request to Professor Cotgrove. The request was in a template form with responses requested to a number of specific questions.[26]On the same day, Professor Cotgrave forwarded the request to Professor Riley, and a short email exchange ensued about how to respond. Professor Riley’s advice, was to pass the request onto Laura Halpin, the HR business partner for this part of the university, and David Watson, the in-house solicitor dealing with the Tribunal claim. This email exchange is the subject of the alleged detriments listed at points 1.2.1-1.2.4 of the list of issues above. Each of the comments recorded there is accurate in terms of what appears on the face of the emails.[27]On 10 November, Professor Cotgrove emailed Study Group stating that she was not best-placed to respond to the request and that the HR department would respond on behalf of the university. That email is constitutes alleged detriment 1.2.5.[28]On 15 November an email was sent to Study Group from a generic HR email address and signed off ‘HR Advice’. The substantive content of this email was a reproduction of the first four boxes of the Study Group reference template. This sets out the candidate’s name and dates of employment. The relevant details are completed in respect of Dr Parker. There was some dispute as to whether the start date which had been given was factually correct, although the difference was a matter of less than two weeks.[29]The next box asked for “reason for leaving” and the reply stated “this candidate’s employment with the university was terminated in October 2021 following a formal hearing.”[30]The fourth box asked “Has the candidate been the subject of disciplinary proceedings (formal or informal) during the last 12 months of employment? The answer given was: “Yes the university invoked its disciplinary procedure against the candidate leading to a final written warning being imposed on 15 June 2021” This email constitutes alleged detriment 1.2.6.[31]There was some debate as to whether these responses were truthful responses from the university. We find that they were. There is no material difference, in this context, between a start date of 15 July 2016 and a start date, as Dr Parker suggested, of 6 July. Although Dr Parker disputes that his employment terminated following a formal hearing, we find that it did. No other conclusion is compatible with the findings of the Johnson Tribunal.[32]The other boxes of the reference template which had been sent to Professor Cotgrove were not replicated in this email, and so response was given. These had included a request to rate the candidate’s performance on a given scale, a question about whether the organisation would re-employ the candidate, a question about safeguarding, a question about disciplinary proceedings and a question about extremism.[33]On 16 December there was a reply to the HR email from someone called “Fern” at Study Group. She asked: “to assist us with our safeguarding procedures we kindly ask if any further information on the nature of the disciplinary and warning can be provided along with information you feel we should consider as part of our onboarding process. We would also appreciate if you are able to share if there were any specific safeguarding concerns in relation to the employment.”[34]A response was provided on 20 November 2023 again, not attributed to any individual but sent from “HR Advice”. It stated: “Further to your request for additional information regarding the employment of Dr Geoffrey Parker, the University is able to confirm that there were no safeguarding concerns raised with it during the period in question. In addition, it is not clear from your original reference request if it is proposed that the candidate’s appointment as Life Sciences Tutor would be with the International Study Centre in Rodney House in Liverpool. However, please be advised that, having been dismissed from his employment with the University, this candidate would not be granted access to enter LJMU buildings and use LJMU resources.” This email constitutes alleged detriment 1.2.7.[35]Dr Parker’s job offer was withdrawn on the same day.[36]We have all of the emails I have referred to in the bundle. There is no room for disputed findings of fact or interpretation about what was said to Study Group – it is there in black and white.[37]There was, unfortunately, a distinct paucity of evidence about how the emails came to be written, who decided what would go in them, and how. Professor Cotgrave did not give evidence. We did have evidence from Professor Riley, who was the person Professor Cotgrove sought advice from in the email chain of 6 November. He told us that she is on long term sick leave, and that evidence was not challenged. It is unfortunate, however, that her absence was not accounted for in his written evidence, and only came out when he answered questions on the subject.[38]The respondent’s other witness was Professor Power, who is the Vice Chancellor and Chief Executive of the university. Professor Power spoke to the university’s relationship with Study Group and commented on the later email exchanges in the bundle, although he had not been directly involved with them at the time of writing.[39]It was concerning to the panel that the author of the HR Advice emails was never identified. Professor Power told us that he had one conversation with Greg Thompson, the deputy director of HR, and he acknowledged that that conversation influenced the content of the second paragraph of the 20 November letter, concerning Dr Parker’s access to the respondent’s premises and facilities. Despite having the conversation, he told us that he did not know who wrote the emails and did not see a draft of them. We accept that evidence. This case turns, at least to some extent, on the motivation of the author of those emails. The absence of their evidence, and indeed their identity, caused us difficulty.[40]Mr Baran, in his submissions, quite properly reminded the Tribunal that legal professional privilege applies to advice given by in-house lawyers as much as external lawyers and posited that it would be unsurprising for the respondent to act on legal advice in relation to this reference request given the background of on-going litigation and the desire, as he put it, for the university not to do anything which might expose it to risk. His case is, essentially, we can draw our own conclusions from that general principle and from the contents of the emails themselves.[41]The Tribunal’s view is that, notwithstanding the question of legal privilege, the way the respondent’s case has been put is very unsatisfactory. The existence of privileged documents is generally a matter to be disclosed, even if their contents are not susceptible to inspection. There ought to have been an account given, within the respondent’s written witness evidence, of how the responses to the reference request came to be written and why, if it was not the writer giving evidence, they were unavailable to do so. Mr Barran submits that it would have been pointless to have someone from HR give evidence which said little more than “we were acting on legal advice”. The view of the Tribunal is that it would have been far from pointless, and would actually have been of real assistance in circumstances where Mr Baran himself, of course, cannot give evidence. Relevant Legal Principles S27 Eq A[42]The legislation provides: 27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act[43]I am not concerned with the definition of “protected act”, as the respondent concedes that the first claim was a protected act. Detriment[44]As to what constitutes a “detriment” Mr Baron referred to Warburton v Chief Constable of Northamptonshire [2022] ICR 925, EAT, applying Shamoon v Chief Constable of the RUC [2003] UKHL 11, as support for the following propositions:a. the term ‘detriment’ is to be interpreted widely;b. the key question is whether the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment;c. an unjustified sense of grievance does not pass this test. I accept that that is a correct statement of the law. The ‘reason why’ test[45]Again, we are content to adopt the brief analysis set out by Mr Baran as a correct statement of the law: 45.1 As to the proper approach to the ‘reason why’ question – was any detriment ‘because’ GP did a protected act – see:a. Nagarajan v London Regional Transport [1999] ICR 877, HL: if protected acts have a ‘significant influence’ on the employer’s decision making, discrimination will be made out;b. Igen v Wong [2005] ICR 931, CA: for an influence to be ‘significant’, it does not have to be of great importance. A significant influence is an influence which is more than trivial’;c. s136 EqA 2010 the ‘shifting burden of proof’. There is an initial burden on a claimant to prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened a provision of the EqA – a ‘prima facie’ case. The burden then passes or shifts to the respondent to prove that discrimination did not occur. If the respondent is unable to do so, the Tribunal is obliged to uphold the discrimination claim;d. Martin v Devonshires Solicitors [2011] ICR 352, EAT: dismissal in response to the doing of a protected act will not necessarily be ‘because of’ the protected act where the employer can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. See too Chief Constable of West Yorks v Khan [2001] ICR 1065, HL: an employer who responds to a reference request with a ‘no comment, Tribunal proceedings ongoing’ response is not doing so because the former employee has brought discrimination proceedings, but is doing so because currently and temporarily they need to take steps to preserve their position in the outstanding proceedings.[46]We would add, in respect of Martin v Devonshires (which is often cited by respondents) that it is clear from the authority that this principle must be applied with care and requires the tribunal to make a precise distinction between the protected act itself and the related conduct, and assess the influence of each on the respondent’s motivations.[47]It is worth saying a little more about the operation of s.136 Equality Act (burden of proof) in the circumstances of this case, specifically the absence of direct evidence from the respondent as to the reasoning behind the ‘HR Advice’ emails.[48]In Igen the Court of Appeal considered and amended the guidance contained in Barton v Henderson Crosthwaite Securities Ltd 2003 IRLR 332 on how to the previous similar provisions concerning the burden of proof should be applied: 1. It is for the claimant who complains of discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful .These are referred to as “ such facts” 2. If the claimant does not prove such facts the claim fails. 3. It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. 4. In deciding whether the claimant has proved such facts it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inference it is proper to draw from the primary facts found by the tribunal. 5. It is important to notice the word “could”. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage the tribunal is looking at the primary facts proved by the claimant to see what inferences of secondary fact could be drawn from them and must assume that there is no adequate explanation for those facts. These inferences can include any inferences that may be drawn from any failure to reply to a questionnaire or to comply with any relevant code of practice. It is also necessary for the tribunal at this stage to consider not simply each particular allegation but also to stand back to look at the totality of the circumstances to consider whether, taken together, they may represent an ongoing regime of discrimination. 6. Where the claimant has proved facts from which inferences could be drawn that the respondent has treated the claimant less favourably on the proscribed ground, then the burden of proof shifts to the respondent and it is for the respondent then to prove that it did not commit, or as the case may be, is not to be treated as having committed that act. 7. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities that the treatment was in so sense whatsoever on the proscribed ground. This requires a tribunal to assess not merely whether the respondent has proved an explanation for such facts, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the proscribed ground was not a ground for the treatment in question. 8. Since the facts necessary to prove an explanation will normally be in the possession of the respondent, a tribunal will normally expect cogent evidence to discharge that burden of proof. In particular a tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or any relevant code of practice.[49]The guidance has been approved in subsequent cases including, significantly, Hewage v Grampian Health Board [2012] IRLR 870, SC and Royal Mail Group v Efobi 2021 ICR 1263, SC. The case law makes it clear that the tribunal is not expected to split its hearing into two parts, but instead conducts the two-stage exercise during its deliberations, having heard all of the evidence. Secondly, in conducting this exercise the tribunal may take account of all relevant evidence at stage 1, without artificially excluding evidence which comes from the respondent at this stage of the decisionmaking process. Submissions, discussion and conclusion[50]As noted above, it is accepted by the respondent that Dr Parker’s presentation of his first claim was a protected act within s.27 EqA[51]Alleged detriments numbers 1 to 4 are the emails between Professors Cotgrave and Riley. We do not consider that these amount to detriments. There was no disadvantage to Dr Parker in the respondent taking a period of time to identify the right person to respond to a reference request. There is nothing in this internal correspondence of itself which prejudiced his chances of securing the position with Study Group. The emails express a sense of surprise, but there is nothing insulting or pejorative in them. To the extent that Dr Parker takes issue with the content of these emails, we find he is harbouring the sort of “unjustified sense of grievance” which is not to be equated with genuine detriment.[52]Number 5 is the “holding response” provided by Professor Cotgrove. Again, this was not a detriment for reasons analogous to those set out above. It was courteous and sensible for Professor Cotgrove to inform Study Group that their request was being actioned.[53]Alleged detriment number 6 is the first substantive response, sent on 15 November from ‘HR Advice’, in which the respondent completed some, but not all, of the questions contained in Study Group’s reference form. Alleged detriment number 7 is the 20 November follow-up email, referencing the fact that Dr Parker would not be granted access to LJMU buildings or resources.[54]In respect of these emails, Mr Baran argued that because all the matters set out in them were truthful, and because it was reasonable for the respondent to refer to them given all the circumstances, neither of these communications constituted detriments. Again, the respondent says, this was an unjustifiable sense of grievance on the part of Dr Parker because, by choosing to apply for a role which would take place LJMU premises, and naming an LJMU referee, he could expect nothing else. Mr Baran argued that if this was a detriment, then choosing not to provide a reference, or providing a bare factual reference confirming dates of employment would also be a detriment. The respondent plainly could not complete the template form sent by Study Group in a positive way, and it would make no sense if the legal definition of detriment meant that it was compelled, in these circumstances, to subject Dr Parker to one form of detriment or another.[55]The Tribunal rejects Mr Baran’s argument. We are of the view that Warburton does not support the argument, and that a negative or incomplete employment reference which causes a job offer to be withdrawn is self-evidently a detriment.[56]In saying that, we want to be clear that there is no inherent criticism in a finding that an employer has subjected an employee (or, as in this case, former employee) to detriment. Any employer giving a disciplinary warning, turning down an application for promotion, or even refusing a holiday request will have subjected an employee to detriment. Managerial decisions such as changing shift patterns or altering policies on home working, dress code and even provision of tea and coffee might well cause an employee to reasonably feel they have received disadvantageous treatment. Employers do these things every day, and must do so, as part and parcel of running their organisations. The key question is the ‘reason why’ question – only if a protected characteristic or, in this case, a protected act, was a significant influence on the reason why the employee was subjected to a detriment, will the employer have acted in an unlawful way.[57]Turning to that question in the context of this case, we have to consider why the respondent responded in the way that it did.[58]Applying the shifting burden of proof, we first have to consider the facts proven by the claimant. The relevant facts, in the view of the panel, are:58.1 At the time the reference request was made, the claimant had done a protected act, and there was on-going litigation;58.2 The claimant’s employment had ended following a formal process, and due to the fact he had become unmanageable, albeit that at the time of the request the claimant’s challenge to that decision had not been determined by the Tribunal;58.3 The respondent failed to complete the reference form in full, as requested by Study Group;58.4 It provided its own reference, which was very short and, as we have found, factual. Nonetheless, it was a negative reference as the respondent chose to refer to the ending of employment by a formal process and to the earlier disciplinary procedure. They could have chosen to provide no information beyond dates of employment;58.5 Following prompting, the respondent followed up by confirming that there were no safeguarding concerns. This confirmation was, of course, in Dr Parker’s favour, and important in a job involving work with young people. It might be expected that an employer wishing to act vindictively would have declined to give this confirmation. However, the email also added, unprompted, that the claimant would not be permitted to work in its premises or using its resources.[59]Although there are criticisms of the way the respondent has presented its evidence in this case, we do not consider that these are matters which properly weigh into the balance at this stage. Where there is evidence that can realistically suggest discrimination, then the onus falls on the respondent to discharge that burden.[60]There is an obvious difference between a case where an employer acts of its own volition to ‘bad mouth’ a former employee who has brought a claim, and a case where they are asked to provide a reference. By making the request, Dr Parker put the respondent into a difficult, if not impossible, position. Although Dr Parker had answered untruthfully in his own application form as to the his reason for leaving LJMU, it cannot be the case that the respondent could be expected to answer untruthfully and to provide a positive reference. The respondent had several choices available as to how much information it was prepared to give Study Group, but any of those options inevitably came with a high prospect of the job offer being withdrawn, and any would have been detrimental to Dr Parker.[61]In the view of the panel the proximate causes of the detriment that Dr Parker suffered all lie in his own conduct. It was his conduct, as the Johnson tribunal found, which led to his dismissal. It was his conduct in naming the respondent as a referee which created the situation where he would inevitably be subject to detriment in one form or another as they could not truthfully provide a positive reference. It was his conduct in applying for a role which would be undertaken on LJMU premises which created the additional problem which the respondent highlighted to Study Group in the final email. All of those were matters which were in place entirely independently of the fact that the claimant had brought a claim.[62]It is true that the first claim also arose out of the same set of circumstances, but that does not drive any necessary conclusion that there is a causative relationship between the first claim and the content of the reference. There was no mention of the claim within either of the reference documents. There is no suggestion, on the face of the documents, that the respondent had tried to do anything other than gives a brief, neutral and factually accurate account of the circumstances, nor that more favourable reference would, or even could, have been given if Dr Parker had not brought the first claim. If anything, it is likely that the existence of the first claim made the respondent more circumspect in the terms of the reference that was given due to the fact that the matter was referred to the university’s lawyer, which may not have happened absent the live litigation.[63]Whilst many employers will choose to give a ‘factual’ reference which only confirms dates of employment, we do not consider it can be right that an employer is constrained to only give such a reference in circumstances where a discrimination claim has been brought but not yet determined. That is all the more the case where the claimant being successful in his application may cause real and specific difficulties for the respondent. That is an unusual circumstance, but we accept that it was the case here given the fact that Dr Parker was applying for a job which he would undertake on the respondent’s premises.[64]Given all of that, we are satisfied that there is no realistic suggestion of victimisation, and Dr Parker has not discharged his burden of proof. The contents of the emails are entirely explained by the circumstances of the claimant’s departure from employment, and not by the fact that he had brought a claim. We take account of the guidance in Martin v Devonshire and Chief Constable of of West Yorkshire v Khan in reaching that conclusion. We accept Mr Baran’s submission that this case is analogous to a direct discrimination case where the claimant has shown a difference in treatment and a difference in protected characteristic, but no prima facie case of a connection between the two.[65]We note finally, that if the burden of proof had shifted, the respondent may have been in difficulty in discharging that burden in relation to the 15 November email, given the complete lack of evidence explaining the rationale behind that email and what was included and omitted from it. In relation to the 20 November email, we would have accepted Professor Power’s evidence as to the respondent’s explanation for volunteering information to Study Group about the respondent’s position that Dr Parker would not be permitted on its premises or to use its resources. Again, Professor Power’s decision is entirely explained by the difficult and acrimonious employment history.[66]Finally, we did not hear submissions on remedy. As Dr Parker was unsuccessful it was not necessary to do so. We do make a broad observation, however, that Dr Parker must have known that the respondent could not, acting honesty, give him a positive reference, and that by applying for a job so closely connected to the university he was applying for a job which he could not realistically expect to fulfil. In those circumstances it is difficult to see how any compensation would properly flow. Approved by: