Mr J P Mugenga v Cumberland Council and Westmoreland and Furness Council: 2405891/2023

EMPLOYMENT TRIBUNALS

Case No 2405891/2023

Between

Mr J P MugengaClaimant

Cumberland Council and Westmoreland and Furness CouncilRespondent

Before

Employment Judge Leach, Mrs C.Doyle; Mr T D Taylor.

Date 31 January 2025

JUDGMENT

[1]The complaints of direct discrimination (protected characteristic race) dating back to 2019 and 2020 were presented outside of the time limits at section 123 Equality Act 2010. It is not just and equitable to extend time and therefore they are dismissed.

[2]All other complaints of direct discrimination fail and are dismissed.

[3]The complaint of constructive unfair dismissal fails and is dismissed. JUDGMENT having been given orally on 4 December 2024 and written reasons having been requested on 13 December 2024, in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant brings complaints of unfair constructive dismissal and race discrimination arising out of his employment with Cumbria County Council (CCC) and the termination of that employment on 31 March 2023.

[2]CCC no longer exists. In 2023 there was a reorganisation of local government in Cumbria. On 1 April 2023, the local government administrative functions for Cumbria were transferred to the 2 respondents. That is why both respondents are parties to these proceedings.

The Issues

[3]The complaints and issues were clarified at a preliminary hearing and annexed to the case management orders that followed that hearing. 1 of 35

[4]These were refined a little during this final hearing. The issues that we needed to reach decisions on are below. The complaints that are shown as crossed out are those issues that the claimant withdrew during the hearing. .

The Issues

[1]Time limits1.1 Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 2 January 2023 may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[2]Unfair dismissal Dismissal2.1 Can the claimant prove that there was a dismissal?2.1.1 Did the respondent do the following things:2.1.1.1 Repeatedly refuse the claimant’s request for part-time flexible working as described in the claim form; and

2.1.1.2 On 11 November 2022, refuse the claimant’s final request for flexible working;

2.1.1.3 Subject the claimant to race discrimination (as detailed below).

2.1.2 Did that breach the implied term of trust and confidence? Taking account of the actions or omissions alleged in the previous paragraph, individually and cumulatively, the Tribunal will need to decide:2.1.2.1 whether the respondent had reasonable and proper cause for those actions or omissions, and if not.

2.1.2.2 whether the respondent behaved in a way that when viewed objectively was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent.

2.1.3 Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the claimant was entitled to treat the contract as being at an end.

2.1.4 Was the fundamental breach of contract a reason for the claimant’s resignation. 2 of 35

2.1.5 Did the claimant affirm the contract before resigning, by delay or otherwise? The Tribunal will need to decide whether the claimant’s words or actions showed that they chose to keep the contract alive even after the breach.

2.2 Has the respondent shown the reason or principal reason for the fundamental breach of contract?

2.3 Was it a potentially fair reason under section 98 Employment Rights Act 1996?

2.4 If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant?

[3]Remedy for unfair dismissal.3.1 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.2 What should the terms of the re-engagement order be?

3.3 What basic award is payable to the claimant, if any?

3.4 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

3.5 If there is a compensatory award, how much should it be? The Tribunal will decide:3.5.1 What financial losses has the dismissal caused the claimant?

3.5.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.5.3 If not, for what period of loss should the claimant be compensated?

3.5.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.5.5 If so, should the claimant’s compensation be reduced? By how much?

3.5.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.5.7 Did the respondent or the claimant unreasonably fail to comply with it?

3.5.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

3.5.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

3.5.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

3.5.11 Does the statutory cap of fifty-two weeks’ pay apply?

[4]Direct race discrimination (Equality Act 2010 section 13)4.1 What are the facts in relation to the following allegations:4.1.1 3 September 2018 – the claimant being asked to ‘pose’ as a homeless person (see paragraph 18 of claim);

4.1.2 11 October 2019 – the claimant being reprimanded in respect of a media interview (see paragraph 19-20 of claim); 3 of 35

4.1.3 2018 – end of 2019 – the claimant being prevented from attending refugee resettlement meetings (see paragraph 21 of claim);

4.1.4 Around September 2019 - The manipulation of job roles to facilitate the promotion of Liam Reidford ((see paragraph 22 of claim);

4.1.5 21 May 2020, Allyson Carty abruptly cancelling C’s flexible working arrangement (see paragraph 6 of claim); Comparator, Chris Barry;

4.1.6 March 2021, Liam Reidford refusing the claimant’s part-time flexible working request (see paragraph 8 of claim), Comparator, Rebecca Birkett.

4.1.7 11 November 2021, Liam Reidford refusing the claimant’s part-time flexible working request (see paragraph 11-15 of claim), Comparator, Rebecca Birkett.

4.1.8 8 November 2022 – the comment regarding “funny names” (see paragraph 25 of claim);

4.1.9 February 2023 - The failure to shortlist the claimant for a team Manager interview (see paragraph 23 of claim);

4.1.10 28 February 2023 [and another date to be confirmed by the claimant] – Liam Reidford refusing to authorise the claimant’s expenses (see paragraph 26 of claim);

4.2 Did the claimant reasonably see the treatment as a detriment?

4.3 If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances of a different race was or would have been treated? The claimant relies on a hypothetical comparison in respect of all allegations and, in addition, relies on the comparators named above in respect of the specific allegations they are listed against.

4.4 If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of race?

4.5 If so, has the respondent shown that there was no less favourable treatment because of race?

[5]Remedy for discrimination.5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

5.2 What financial losses has the discrimination caused the claimant?

5.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

5.4 If not, for what period of loss should the claimant be compensated?

5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

5.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that? 4 of 35

5.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

5.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

5.9 Did the respondent or the claimant unreasonably fail to comply with it?

5.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

5.11 By what proportion, up to 25%?

5.12 Should interest be awarded? How much? B. The hearing 5. We were provided with a file of documents of 581 pages.

[6]We heard evidence from the following people:-a. The claimant

b. Allyson Carty (AC). AC is employed by the second respondent as a Resettlement Programme Manager. She was the claimant’s first line manager during his employment with CCC.

c. Liam Reidford (LR). LR is a team manager within the first respondent’s Global Resettlement Service. He was the claimant’s second and final direct line manager during his employment with CCC.

d. Helen Blake (HB), an assistant director with the second respondent. HB was on a shortlisting and interview panel for a recruitment exercise in around January 2023. That panel decided not to shortlist the claimant.

e. Robert Cartner (RC). RC was the second member of that shortlisting and interview panel and is a senior manager of the resettlement team, managing AC and LR. C. Findings of Fact

[7]In this claim the claimant raises various complaints of race discrimination that he says occurred during his employment with the respondent. The dates of his employment were May 2018 to 31 March 2023. The complaints of discrimination span almost all of this period. The claimant

[8]The claimant has years of experience of working in services that assist refugees including through various Government programmes.

[9]The claimant is of Rwandan national origin. He moved to the UK as a refugee and survivor of the Rwandan genocide in the mid-1990s. 5 of 35

[10]When the claimant secured his role with the respondent in May 2018, the claimant and his partner had a young child and the claimant’s partner was pregnant with their second child.

[11]The claimant’s employment was initially on a fixed term basis through a series of contracts. In April 2021, the claimant was given a permanent employment contract.

[12]The claimant has worked with different organisations to provide support to refugees. Before his employment began with the respondent, the claimant was employed for some 9 years as a volunteer coordinator by the Scottish Refugees Council.

[13]The claimant has a master’s degree in equality and discrimination law. The respondents

[14]The respondents are 2 local authorities that were formed as successor organisations to Cumbria County Council (CCC). In a local government reorganisation, CCC was abolished as were various district councils. The administration of the county of Cumbria was divided in to 2 geographic areas and the 2 respondent councils succeeded CCC as local authorities for these 2 areas. Had the claimant’s employment continued beyond 31 March 2023, he would have transferred to one of these authorities but possibly, through transfers of services that took place in the reorganisation process to both of them.

[15]This local government reorganisation coincided with the claimant’s resignation effective on 31 March 2023. His employment did not therefore transfer to either successor authority on 1 April 2023. That is why both respondents are named.

[16]At all relevant times, the claimant only had one employer, CCC. Whilst 2 respondents necessarily named we refer to the employer or the respondent in the singular. 3 September 2018 – being asked to pose as a homeless person.

[17]This incident occurred a few months after the claimant’s employment with the respondent began. The claimant alleges that AC and RC asked the claimant to attend at a local food bank, pose as a homeless person in order to obtain free food for a service user. It appeared that the rationale for this was that the service user in question was a difficult character to deal with and there were concerns about how he would behave if attending the foodbank himself. AC and RC deny they asked or instructed the claimant as alleged.

[18]The claimant did not raise any complaint about this at the time. Having heard evidence from the claimant, AC and RC, we are concerned about the reliability of the evidence. The incident occurred almost 5 years before this claim was issued. Whilst we have seen some records indicating the client in question was difficult, there are no documents about the foodbank visit or any instructions. As we make clear later in this judgment, our concerns about unreliability of evidence particularly has led to a conclusion that it would not be just and equitable to allow the race discrimination claim arising from this incident to proceed. However it also features as part of the constructive dismissal claim and we have therefore done our best to reach a conclusion on the evidence provided. 6 of 35

[19]The claimant’s evidence was that this was the first time the resettlement team had utilised a local foodbank. We do not agree. .We prefer AC’s evidence particularly that foodbank referrals happened frequently.

[20]We find that it is likely that a discussion took place about the claimant accompanying this service user to a foodbank. The service user in question was regarded as difficult. The claimant was the resettlement officer working with this service user at the time, which is why he would be the likely candidate to accompany the refugee. The claimant’s race was irrelevant to that request/instruction. Neither AC nor RC asked the claimant to attend the foodbank, posing as a homeless person.

[21]Having considered the evidence available we decided that this incident had no bearing on the claimant’s decision to resign. October 2019 – media interview.

[22]The evidence from the respondent’s witnesses about this complaint is vague. Having heard from RC particularly, we accept that his poor recollection is genuine. The relevant events happened a long time ago and, like the incident in September 2018, the claimant did not raise any complaint at the time. It was not referred to in meeting notes that followed a management supervision meeting on 31 October 2019. These notes are at pages 244 to 246.

[23]This makes our fact finding very difficult.

[24]The alleged incident took place at a promotional event. It was at a library in Carlisle. The event promoted library services and how refugees who were settling in the local area could access those services. The claimant spoke to an attendee who was a journalist. He was asked for a photo. By this time RC had joined the claimant. The claimant’s version is that RC gave the claimant permission to conduct an interview with the journalist. RC denies giving the claimant permission. It may be that the claimant believed he had permission from RC by RC’s presence there and that, according to the claimant, it was obvious that he was speaking to a journalist.

[25]The complaint is that the claimant was subsequently reprimanded for the interview (we understand that a feature had appeared in a local newspaper following the interview). RC’s evidence is that the claimant did not have permission to give a media interview, that there is a process to go through to obtain permission. There is no dispute that RC raised safety concerns. The claimant says that the concerns raised were about the fact that he had given the interview, that he was a Black employee, had settled in the UK as a refugee and could be a target. RC’s evidence is that the threat was more about publicity of Cumbria’s resettlement scheme at the time. particularly given local tensons arising from allegations of sex trafficking. The policy at the time was to make sure that the resettlement service kept a low profile.

[26]Such reprimand as was given was verbal. There are no documents to refer to, to assist in our fact finding. No complaint was raised at the time which might have helped witnesses recall the detail of these events many years later. From the evidence we have heard, we find that a discussion between RC and the claimant will have been more instructive than disciplinary. 7 of 35

[27]We find that this one-off event in October 2019 did not contribute to the claimant’s decision to resign in March 2023. Flexible Working Requests

[28]During his employment with the respondent, the claimant made various requests for flexible working. Before we go through these, we note relevant extracts from the respondent’s Procedure and Guidance on Work Life Balance and Flexible Working (pages 58-70). .

[29]There are paragraphs which indicate a positive approach to flexible working. Employees who have a better work-life balance often have a greater sense of responsibility, ownership and control of their working life. Effective service provision can be enhanced by employees being able to work in more flexible ways to better balance home and work life. There are a range of different working arrangements which can also enhance the efficiency of service delivery. Having a good work-life balance will benefit the Council/School and employees in the following ways:

[30]We also note that:a. the procedure expressly applies to all employees of the respondent (page 59, under the heading “Scope”.

b. The success of an application will depend on whether the flexible working can fit with service delivery. The following extract is relevant:- “It is acknowledged that some service areas are required to work set working patterns and therefore time management is key to managing a good work life balance. Although the council/school is committed to providing the widest possible range of flexible working opportunities, arrangements can only be agreed if the provision and quality of services can meet organisational demands. Therefore the full range of flexible working options will not be appropriate for all jobs across all areas of the council/school.”

[31]Looking next at some details of the process to be followed, it includes the following:-a. Managers are required to meet with the employee making the FWR application, within 28 days of the application being received. (page 64, para 5)

b. Managers need to inform employees, in writing, of the decision within 5 days of a meeting. (para 8)

c. There is an option for a trial period (pages 65-66) with the trial being monitored on a regular basis and actively managed.

d. Trial periods are normally in place for 6 weeks (page 66). 8 of 35

e. If the trial period is considered to me unsuccessful the manager must provide one of the stated business reasons for refusing the FWR application (bottom of page 66)

f. There is a right of appeal applicable to those employees who have made a statutory request for flexible working. An appeal process is set out at page 67.

[32]Following this process would ensure that the relevant ACAS Code on the Process for Flexible Working Requests (the 2014 version) would be adhered to. The claimant’s first flexible working request (FWR).

[33]The claimant’s first request was made in May 2019. At the time, his direct manager was Allyson Carty (AC) and the claimant’s FWR application was directed to her. The request was to work full time hours over 4 days instead of 5 (compressed hours). This is an option that is specifically referred to in the respondent’s policy.

[34]The application was sent to AC at about 5.30pm. About an hour later AC emailed her manager (RC) as follows:- Hi Rob Operationally in Carlisle I do not see this arrangement working, should something happen on the front line this reduces the availability of who can attend, I also have reservations as JP struggles generally getting everything done across five days, JP noted in the meeting today he gets stressed and I think compacted hours would greatly impact upon him, as this is a frontline role operationally I need him in every day and only doing the standard hours. What are your thoughts? Obviously, I am keen to support staff but ultimately it has to fit operationally.

[35]The reference to getting stressed was dealt with in evidence. The main cause, or at least a significant contributor, was that the respondent was short staffed at the time in the area the claimant was working (Carlisle and Eden).

[36]AC then discussed the FWR with the respondent’s HR department. That discussion was followed on 4 June 2019 with another email from AC to RC (page 225): Hi Rob I have spoken to HR and PM about JP requesting condensed hours, they agreed my concerns were valid and a reason not to approve the request, he did say this could result in a grievance against me. He also said I could trial it if I needed wanted to for one month to see how it went, he felt what I said about the pressure on other staff and having to be there as a front-line worker very valid reasons to refuse. He did ask if he could do admin in the evenings. I said yes but I did not feel there would be enough admin for 2 hours every 4 days, unlike social workers who write up assessments. 9 of 35 I will chat with JP at his next supervision and I will speak again to you before I respond but I really do not think it would be best for staff and the service as a whole. Thanks

[37]AC and the claimant discussed the request on 12 June 2019. We find that it was the type of discussion that is anticipated by the policy and also by the statutory procedure.

[38]At that time, the department was recruiting into vacant positions. There were 2 vacancies in the Carlisle and Eden valley areas. The claimant and AC discussed this and agreed that the trial period to assess the viability of him working compressed hours, should take place once the Respondent had recruited into those roles. That is the reason the trial period was delayed.

[39]The trial period eventually began on 2 February 2020. The claimant’s second child was borne a month earlier on 9 January 2020.

[40]AC decided that the trial period should be for 3 months. The respondent’s policy expressly provides for the option of a trial period. It states that the maximum trial period would usually be for 6 weeks but exceptionally (and with input from HR) could be for longer.

[41]AC’s evidence is that she wanted to assess the suitability of the arrangement for both the claimant and the service and that is why she opted for a 3-month trial period. AC was very doubtful about whether the compressed hours would work for the service. She agreed to a trial period because that was something that HR proposed. She decided to go with 3 months because it provided a better opportunity for assessment than a shorter period would provide. The claimant’s evidence is that this longer period was chosen because it provided greater opportunity to fail. However, what was not foreseen by either the claimant or AC was the coronavirus pandemic and the country moving quickly into lockdown in late March 2020, part way through the trial period.

[42]Working practices necessarily changed significantly at this stage. The resettlement team members based themselves at home. Visits to refugees were not carried out in person. They were, in the main, phone visits of interviews.

[43]There were 2 discussions between the claimant and AC during this trial period. The first was on 11 February 2022 when it was agreed that the claimant’s non-working day would change from a Friday to Wednesday. There was some confusion about who requested this. The most likely explanation is that the claimant asked for the change because he recognised that drop-in days that the service operated was changing. Drop-in days allowed users of the service to call in and discuss issues. It would be helpful for the claimant’s working arrangements to include the weekday when drop-in days were scheduled.

[44]On 1 April 2020, only 5 or so working days into lockdown, a supervision note of that date records that the claimant said he still wanted to continue with the compressed hours during lockdown (note is at 267-270)..

[45]On 27 April 2020, AC sent an email to RC noting a discussion she had had with the claimant, that he was struggling with lockdown and that he wanted to take some leave. 10 of 35 Other than noting that the claimant was not in on a Wednesday ( because of the compressed hours arrangements) there is no indication from that email that compressed hours were discussed.

[46]On 12 May 2020 there was another supervision meeting between the claimant and AC. The issue of compressed hours did not arise as a topic for discussion. These notes are at pages 288-291.

[47]On 21 May 2020, AC called the claimant and told him that a decision had been made that the compressed hours would not continue. In other words the trial period had not been successful. The claimant was shocked. He described the news as a bombshell. He had not been forewarned; there had been no discussion with him.

[48]We are mindful that this discussion took place a long time ago. There is no detailed note of the discussion.

[49]It is not disputed that the claimant asked for time to adjust, to make alternative childcare arrangements. AC’s evidence is that she did not refuse this – but she did not agree to anything either.

[50]Nor is it disputed that the respondent did not provide reasons for refusing the FWR application. The telephone call between the claimant and AC ended abruptly. That may have been because the line was interrupted; it may have been because the claimant was upset and chose to end it abruptly. The call was a long time ago and we do not need to make a finding on this.

[51]The respondent did not provide a written decision or confirmation of its decision.

[52]AC’s note of this call is at page 229. In considering why AC decided to refuse to allow the claimant to work compressed hours we decided that a key phrase in this note is as follows: “I advised him that this is something I do not have to offer and if it conflicts with the service then it is not appropriate to continue with the arrangement, reminding JP that this was done on a trial it was not understood at the outset of this request how it would impact on the service.”

[53]The reason that the respondent decided to refuse the claimant’s application was because AC chose a risk averse approach. That was supported (or at least not resisted) by others in the respondent organisation that she had consulted including the respondent’s HR department and RC. In her evidence, AC referred to a member of staff being on annual leave and another member of staff, mainly based in other areas of Cumbria to the claimant’s main base, being on long term sick leave. These were only temporary issues and, in themselves, cannot have been the reason for refusing a long-term change to the claimant’s working hours. But we are satisfied that AC saw them as indications of potential vulnerability, in that concerns about adequate cover on the claimant’s non-working day particularly would continue to arise when employees in the team took annual leave or were too ill to work and that the staffing levels at that time were unable to accommodate the arrangement.

[54]In this case, the claimant has named a white male comparator; an employee called Chris Barry (CB) who was permitted to work condensed hours. This comparator was based 11 of 35 in a different department doing a different type of work and with a different manager, that different manager (not AC) making the decision to grant CB’s request to work condensed hours. The comparator was employed as a participation officer, working with children of school age trying to ensure their attendance and participation at school. CB could work flexibly by controlling his work and arranging meetings over 4 days. The claimant worked with refugee families including with children of school age, and made appointments for visits to those families at times and dates to suit. But considering the role and service as a whole, we find that them to be different. The service provided to refugees was a service that was open and service users could access throughout the week. AC’s concern was availability of resettlement officers to maintain the service throughout the week including the claimant’s non-working day.

[55]The claimant did not appeal. The respondent did not write to the claimant with its decision as it should have done; had it done so then we are sure that a written decision would have referred the claimant to his right of appeal. Correspondence refusing a later FWR application did that (see below). But the claimant told us that he knew about his right to appeal. He had researched the statutory right to flexible working including the required process. When making his application he referred to the relevant statutory provision, section 80F Employment Rights Act 1996 (ERA).

[56]The claimant became absent due to sickness. The outcome to his application was a contributor to his illness.

[57]On return from sickness absence and following a discussion with AC on that return, the claimant took some unpaid parental leave and reduced his working time with an HR policy that allowed the claimant to “purchase” additional holiday. The claimant did this to assist with childcare. “Second “request for flexible working – end of 2020.

[58]This was not a request made under the Statutory framework or in line with the respondent’s policy. In fact it was a question that the claimant raised during a supervision meeting.

[59]By this stage, the claimant had a new manager, Liam Reidford (LR). Notes of the relevant supervision meetings are at 310 and 312, being meetings in November and December 2020.

[60]The claimant asked whether part time hours might be possible to help him attend a counselling course at a local university. We accept from the evidence heard that childcare was another reason the claimant asked for part time hours, although that is not specifically mentioned in the supervision note. The claimant also noted the option of participating in a job share arrangement, assuming that a job share partner could be recruited.

[61]LR took the query away from the supervision meeting of 12 November 2020. On their next meeting on 8 December 2020 LR told the claimant that part time working “would not meet the needs of the service.”

[62]We are satisfied that the respondent’s reasoning is the same as with the earlier refusal to permit the claimant to work condensed hours. LR had just been recruited into 12 of 35 the manager post. LR also took the risk averse option. Like AC before him, he did not want to make a decision that might adversely affect the service.

[63]Whilst the events giving rise to the next complaint did not happen until September 2022, it is relevant to note some findings about events in 2021 and the claimant’s working relationship with his manager at the time.

[64]We have been provided with a note of a supervision meeting of March 2021 (page 327) which shows good working relations. It also shows that the claimant was struggling in balancing his work and home commitments and an understanding of this on LR’s part. The claimant was also continuing to struggle with lockdown/social restrictions and the ongoing effects of historical trauma. LR provided the claimant with helpful, albeit relatively shortterm arrangements or options, including parental leave Recruitment of Salam Bousnahli (SB)

[65]SB was recruited into the team in October or November 2021. She was already employed by the respondent in an interpreter role. She was of Syrian nationality or national origin and worked as an Arabic translator.

[66]In her role as an interpreter she worked part time hours. When applying for the resettlement officer post (the same post that the claimant held) she stated that she needed to continue her part time hours because of childcare commitments.

[67]The respondent’s evidence was that SB was a great candidate that they wanted to recruit as a resettlement officer; that there were difficulties in recruiting into resettlement officer posts and that they had a stark choice was between recruiting SB on a part time basis and not securing anybody at all. We have not been provided with any evidence about the recruitment exercise, how many candidates applied and the calibre of those candidates. The exercise took place around 18 months before the claimant presented his claim. We accept the evidence provided by the respondent’s witnesses that it was very difficult to recruit into the role of resettlement officer.

[68]Whilst in December 2020 the claimant had been told that part time working was not an option, by November 2021 the claimant had a new colleague who was being allowed to work part time hours.

[69]There is no dispute that a discussion took place between the claimant and LR about the fact that SB had been recruited on a part time hours basis. The claimant’s evidence is that he was told by LR that if he made a FWR then it would be authorised. LR’s evidence is that if he made a FWR it would be considered.

[70]We prefer LR’s evidence. In reaching this decision we note our finding about the cautious approach adopted by him previously. LR has given evidence at this hearing. Our impression of him is that he is a thoughtful and careful manager who would adopt a cautious approach. The claimant’s health and Workload 13 of 35

[71]The claimant suffered from poor mental health in 2021 and was absent from work from March to June 2021. We also note that at some time in 2021 the claimant was placed on a reduced workload. This is confirmed in a supervision meeting in October 2021 (notes at page 396).

[72]The occupational health report recommended counselling and a reduced workload. It made other recommendations on the basis of a stated view that the claimant had a disability, including a suggestion of more flexible working. A long list of suggested adaptions and adjustments was included in the occupational health report (at page 4012).

[73]We note this period because no issues arose and even though there is no evidence of long-term part time working options being discussed, support was being provided by LR particularly. Third FWR application

[74]The claimant did not make this application until September 2022. A copy of the written application is at pages 433 to 435. The terms of the application are of some support LR’s version of events about the conversation in November 2021 and particularly that LR told the claimant that any subsequent FWR would be considered rather than (on the claimant’s version) it being guaranteed.

[75]The claimant’s application was for part time hours (60%) or, if the Respondent preferred, a job share arrangement, so that he would work 50% of full-time hours.

[76]On 8 October 2022 LR made a request for HR advice. A manager within the respondent organisation at the time had to complete a form in order to access HR advice. This is what LR submitted. “Hi, the above member of the team has put in a request for flexible working. ODT form in order to go part time within the team. This is a formal request and so I need to respond in the next three months. I have sent in a holding e-mail using the template on the form. Can I arrange a meeting with someone in HR to discuss please as we are not going to agree to this arrangement due to the capacity and ongoing need for full time positions in the scheme but I want to make sure that I respond properly as. Jean Pierre will likely take my decision to tribunal.”

[77]As is clear from this, LR had already decided that he would not grant the application. This decision making did not follow the policy (or for that matter the ACAS Code) which provides at paragraph 5, page 64- “ managers should hold a meeting to discuss the request within 28 days of the application being received.” When read together with paragraph 8 at page 64 it indicates that discission should take place before a decision has been made. “Within 5 days of the meeting the line manager must inform the employee, in writing, of their decision providing a short explanation as to the reasons(s) for the decision taken.” 14 of 35

[78]LR met with the claimant on 9 November 2022. In line with the respondent’s policy the claimant was told that he entitled to be accompanied by a union representative. LR opted to attend with a member of HR team, indicating his concern about getting the process right, including the delivery of his decision.

[79]The meeting did involve a discussion about the claimant’s application, although this meeting was really about LR’s decision to refuse the application. In evidence LR confirmed this; the meeting was held so that LR could speak with the claimant about his decision and the reasons for it.

[80]Shortly afterwards, on 11 November 2022, LR wrote to the claimant setting out reasons for reasons for refusal. A copy of the letter is at page 443. We summarise the terms of the letter as follows:-a. Recent “massive” changes in service requirements and delivery including the introduction of various government schemes for Afghan refugees as well as the Homes for Ukraine scheme.

b. Tied with this – outstanding pledges arising from these schemes in the area in which the claimant was working.

c. a growing level of asylum seekers and asylum hotels in the Carlisle area

d. the upcoming local government reform – April 2023.

e. difficulties in recruiting into a resettlement officer role.

f. The benefit of consistent service delivery for users of the service.

[81]We accept that the reasons for refusing the claimant’s application are those set out in this letter. We also accept the evidence from the respondent’s witnesses that some of these circumstances had arisen recently, after the decision to recruit SB into the resettlement officer role on a part time basis. An obvious example here is the additional demands on the team from the Homes for Ukraine scheme. Another is the local government reorganisation.

[82]We accept these reasons as genuine business reasons for refusing the claimant’s application. Whilst not specifically referenced, the reasons provided are ones that fall within the finite list of reasons for refusing a FWR application – see section 80F Employment Rights Act 1996 and particularly. An inability to reorganise work amongst existing staff. An inability to recruit additional staff. A detrimental impact on quality. A detrimental impact on performance Detrimental effect on ability to meet customer demand.

[83]We also find that, as previously, a risk averse approach was adopted. Neither LR nor those advising them considered there was a need to grant the FWR application. The safest approach, in terms of service delivery, was to reject it.

[84]The claimant told LR in the meeting of 9 November 2022, that if his application was not allowed then the claimant would have no choice but to leave. The term constructive dismissal was used. The claimant also in his email of 15 November 2022 ( page 442) noted 15 of 35 that he would not be raising an internal appeal and that “if it was necessary to seek a redress, my preference is to do so externally through ACAS.”

[85]Whilst we recognise that any discussions with ACAS would be without prejudice, there has been no indication that the claimant made any approach to ACAS and, in accordance with what he told LR on 9 November 2022, he did not appeal. The claimant did not raise a grievance either.

[86]The claimant did not leave his employment at this stage, even though he made a reference to constructive dismissal.

[87]The claimant knew he could raise a complaint internally, but decided not to. He continued in his employment with the respondent. Named comparator

[88]Whilst making reference to SB in his evidence, the claimant also names a comparator – Rebecca Birkett (RB). We make the following findings:-a. RB was recruited to the respondent before LR became employed there. LR was not therefore responsible for her recruitment. He was unable to provide any evidence about her. LR joined the resettlement team in May 2019. It is not disputed that RB left the respondent’s employment in 2019 (although no evidence has been provided about exactly when in 2019 she left).

b. Like SB, RB was already employed by the respondent on a part time basis when she was recruited into the resettlement team. She applied for a role whilst working in a team called targeted youth support. “Funny Names” comment in a team meeting

[89]There is no dispute that LR introduced the team (including the claimant) to a visiting student who was spending time with the respondent. He went round the room, introducing the student to each individual member of the team and telling the student their names. Having done so, LR made the comment that they had some funny names in the team.

[90]We heard evidence from the claimant and from LR about this incident. We accept LR’s explanation of the incident, what he said and why. Many members of the team had names that are not common names in Cumbria or the UK. The claimant was one of the team members with an uncommon name. But he was not the only team member. We accept that when LR used the term “funny” he meant “unusual.” In using this term he was not mocking either the claimant or any other member of the team..

[91]In this hearing there was a dispute about whether this event involving the visiting student, took place on 7 or 14 November 2022. On balance, we find it happened on 14th November 2022, – just after the meeting when the claimant had been told that his fwr application had been refused.

[92]The claimant was unhappy about the outcome of the meeting of 9 November concerning his FWR application. He was at that stage considering whether he should leave 16 of 35 and claim constructive dismissal, whether he should be in touch with ACAS. His unhappiness was understandable, given that he had seen other employees, SB particularly, being treated differently. This is the context in which he heard the comment by LR. It is very unlikely that, had this incident occurred in 2021 or earlier in 2022, when the relationship between them was good, that this would have resulted in a complaint, let alone an employment tribunal claim.

[93]The reason why LR made this comment was because he had just gone round the room introducing a visiting student to the team and there was a range of diverse and unusual names. The claimant’s race was irrelevant. Further, it was not reasonable for the claimant to have regarded that comment as a detriment. Team manager application.

[94]In January 2023 RC applied for, and was given, authority to recruit into a Team Manager position. (page 456). The post went out to advertisement.

[95]It is relevant to note that this recruitment took place just before the significant local government restructure in Cumbria already referred to. However the recruitment took place in the knowledge that the restructure was about to happen.

[96]Carlisle, where the claimant was based in his role as a resettlement officer, was to be in Cumberland. This was the same with other north Cumbria towns and areas.

[97]The role that was being created, the Team Manager position, was to cover Eden and South Lakes areas. Following reorganisation, the employer of the successful candidate would be Westmorland and Furness (page 459).

[98]The post was advertised internally and externally. Only 3 candidates applied, all applicants were internal. This is an indicator that these posts – working in resettlement teams - are not ones that attract a lot of interest and endorses our earlier finding that the respondent found it difficult to recruit into resettlement officer posts.

[99]The claimant was one of the 3 applicants. The application appears at odds with the claimant’s position in November 2023:-a. His intention to leave the respondent’s employment;

b. His desire to work part time hours. – and the suggestion of reduced hours that was made in the OH report in 2021.

[100]The claimant’s explanation, that we accept, is that the more senior role provided a higher salary. If he was in receipt of this higher salary then paid childcare for his children would become viable. The claimant’s wife was in employment in the NHS and was due to take on a full-time role from 1 April 2023.

[101]Essential criteria for the post are set out in page 463. There are 15 bullet points. We note the following 5 criteria all focussed on management experience:-a. experience of management and supervision.

b. Ability to forward plan, both short and long term and respond to change. 17 of 35

c. Good interpersonal skills including negotiating conciliating people management and motivational skills.

d. Ability to influence people to change behaviours and circumstances.

e. Experience of collating information, planning, review and development.

[102]Other criteria amongst the 15 focus on knowledge and experience of the service itself including knowledge of the relevant legislation and of the mechanisms to recognise and address areas of risk and vulnerability.

[103]For the purpose of marking the applications, these 15 or so points were boiled down to 3 essential “global” categories set out on a shortlisting form.a. Essential qualifications and training

b. Relevant experience

c. Relevant knowledge.

[104]The shortlisting form used was a standard form used by the respondent. That standard form also included the categories of “skills and abilities and personal skills and Special Circumstances. Scores were not applied against any of these categories in this recruitment exercise.

[105]Each of the 3 candidates were scored as meeting the essential criteria. However the claimant’s score was the lowest of the 3. He scored 13 and the 2 other scores were 14 and 15.

[106]Even though his score showed him to meet the essential criteria he was not selected to be interviewed.

[107]The claimant says that, applying the terms of the respondent’s own policy, it was obliged to interview him. We considered the relevant terms of the respondent’s recruitment policy. The process described in the policy is this:- o Prior to shortlisting the panel should agree a benchmark score which applications must achieve in order to be shortlisted for possible interview. o All eligible applicants must be shortlisted against the criteria as outlined in the person specification. o Panel members should individually score the candidates to decide whether they meet or exceed the essential criteria for the post. o Those they score as meeting or exceeding the essential criteria should be given individual scores. Where an application falls below the essential criteria, no score is required. o “Depending on the volume of applications received it may not be possible to invite all candidates who meet the benchmark to interview. In those cases the panel should consider the overall quality of the applications and invite 18 of 35 those applicants who best meet the essential criteria along with any disabled candidate as applicable.”

[108]The claimant’s position is that because he met the essential criteria he should have been interviewed. That, he says is what the policy provides for.

[109]Our finding is as follows:-a. That is not quite what the policy wording provides for.

b. In this exercise the respondent did not fully apply the process as set out. Whilst they decided to shortlist scores against essential criteria., they did not first decide on a benchmark score.

c. The policy wording assumes that a benchmark score will be set.

[110]We have considered the essential shortlisting criteria forms. Standard headings of qualifications and training were adopted. Standard wording for relevant experience and relevant knowledge are used. This wording doesn’t really say anything about what those assessing the candidates were looking for. That detail is found in the post specification - the 15 criteria referred to above. 5 out of these are ones that require management experience, including people management, change management and the management and the planning and development management of a service.

[111]The respondent’s witnesses involved in this shortlisting (RC and HB) have given evidence about what happened. Both witnesses say they assessed the 3 applications and decided that only 2 of them demonstrated what was considered to be absolutely essential at that stage which was a candidate with strong and management experience. Perhaps that should have been identified and scored as a separate category on the shortlisting form. As it was the need for management experience was included under the global category of relevant experience. Relevant experience also included experience of the service area itself. Given the claimant’s considerable knowledge and experience in the areas relevant to resettlement, how could he be marked as not meeting the criterion of relevant experience?

[112]As well as an emphasis on management skills and experience, identified amongst the 15 essential criteria in the post specification, we also considered the terms of the advertisement for this post, under the heading of “what we are looking for”. The ideal candidate will have a good understanding of resettlement and the reasons for resettlement along with a good knowledge of cultural needs. We are looking for a person who has a good working knowledge and experience of Early Help, reviewing case information, evaluating and monitoring including risk management. We are seeking applicants who have experience in allocating, coordinating planning and supervising employees and volunteers as well as contractors and partners. Strong communication skill and the ability to lead on effective partnerships, internal and external including third sector and develop good working relationships are essential. 19 of 35 Experience of monitoring, reviewing and verifying programmes of work against set standards and the ability to plan work and resource allocation are essential along with the ability to contribute to service improvements.

[113]The evidence of Helen Blake (HB) was particularly strong. HB was not based in or directly responsible for the resettlement service. There was no evidence that she had worked closely with any of the 3 internal candidates. We are satisfied that she, together with RC, was looking for a strong manager. That was the priority. We are satisfied that both were concerned to ensure that the successful applicant could “hit the ground running” under the new structures that were to be in place as a result of the local government reorganisation. We accept her evidence that the restructure was not just about dividing existing services in to 2 geographical areas. New partnerships would need to be formed; new members (councillors) would need to be involved and new working relationships built. The new manager would need to manage the team through a transfer into a new organisation and new structure with the changes that would bring.

[114]We have considered the 3 applications. It is not for us to carry out our own scoring process as if somehow re-running the recruitment process, but we are satisfied from a review of the 3 applications that 2 candidates have demonstrably better management experience than the claimant. Their experience is at a very different level to the experience evidenced by the claimant in his application. We refer below to candidate A and candidate B. The application form for candidate A is at page 512 - 539; for candidate B at 540 to 570. The claimant’s application is at 139-161.

[115]Candidate A has a degree in geography, is a qualified teacher and has a management qualification. Like the claimant, at the time of the application, candidate A was employed as a resettlement officer although had been in the post for less than 2 years. She had transferred into that role from a post in the respondent’s family assessment team. She also had experience of working with the schools adjudicator which included report writing obligations. Prior to this, the claimant had over 20 years’ experience working in the prison service, rising to the position of prison governor. Her application gives details of her management experience in this role including managing a team of over 30 people, having responsibility for assessing and managing risk and working together with other agencies, responsibility for writing and implementing policy, experience with change management, developing staff and so on. Examples are provided of leading teams through cost reduction change management exercises, working with systems and processes relevant to the post the respondent was recruiting in to , particularly involving safeguarding and other risk management. Whilst the candidate had far fewer years’ experience of working with refugees, she demonstrated experience of working within government resettlement schemes and familiarity with the requirements and processes of those schemes.

[116]Candidate B has qualifications in social care and safeguarding including qualifications as a registered manager in a social care setting. Before her time working as a resettlement officer this candidate held various roles in adult and children’s social; services including time spent as a registered manager of a children’s (post 16) home and as a manager of an adult social care unit. Her application demonstrated experience of collaborative working between different partnership agencies, working with various relevant procedures and protocols. 20 of 35

[117]The claimant demonstrated little management experience on his application form. The role he had before becoming employed by the respondent was a volunteer coordinator role and his application emphasized experience that he had gained in that role but we agree with the evidence of RC and HB that the relevant management experience demonstrated by candidates A and B was at a different level to that of the claimants.

[118]We are satisfied, having heard from the 2 shortlisting managers, having critically assessed their evidence about the relevant experience of candidates with what is demonstrated on the application forms themselves, then contrasting this with the relevant experience on the claimant’s application form, that the 2 candidates pout forward for interview were selected on the basis of the experience their applications demonstrate.

[119]The claimant challenged marks provided for educational qualifications (essential qualifications and training) opining that he should have been given a higher mark than he was, due to the fact that he held a higher-level degree (a masters). The claimant was marked as a 5 for qualification. Candidate B was also marked a 5, candidate A was marked a 4. We are not critical of the respondent for considering the relevance of qualifications and particularly the relevant vocational qualifications of candidate B and assessing them to be as valuable and relevant to the post being applied for as a master’s degree in equality and discrimination law.

[120]No actual comparator is named in the list of issues. In his claim form the claimant states that white colleagues “with far less experience” were invited for an interview; he was not. This is (can only be) a reference to candidates A and B.

[121]Whis it is not disputed that the claimant has more experience than candidates A and B in working with refugees, we do not agree with the claimant that candidates A and B had far less relevant experience. As made clear in our findings above, we have accepted RC’s and HB’s evidence about the importance of management experience and both candidates had much more than the claimant. We also note that candidates A and B noted relevant experience in all of the government resettlement programmes then in operation.

[122]A hypothetical white comparator with experience, qualifications and employment history that compared with the claimant would not have been treated any differently to the claimant. The claimant’s race was irrelevant to the decision not to recruit him.

[123]On 17 February 2023, RC emailed the claimant after deciding not to invite the claimant for an interview. This is what he said:- “ Hi JP. Hope all is well. I want to give you some feedback re your application which was of good quality but lacked detail about managing people and planning. With this in mind, I want to talk to you about what you would like to do to give you this experience and how we can support you to do this. I will try to grab some time with you in the coming days to talk through. Cheers.”

[124]We find the terms of this email to be genuine. RC recognised that the claimant lacked experience in management and planning even though he had considerable experience in providing services to refugees including through various government programmes and initiatives. RC wanted to assist and support the claimant. 21 of 35

[125]The claimant did not take the news well however and decided that he did not want to follow up on RC’s offer of assistance. His reply was as follows:- “Hi Rob. Thank you very much for the feedback. I thought the application was of the quality that at the minimum would merit an interview but clearly didn't meet your expectations. I thank you for the opportunity you gave me to serve as a caseworker, but I think it's probably a good time for me to reassess my career plan going forward. Thank you again for the amazing work you and the team you do. Kind regards.” The claimant’s resignation

[126]The claimant handed in his notice of resignation on 17 February 2023. The resignation letter itself is dated 9 February but sent by email on 17 February.

[127]Set out below are the terms of the resignation:- “Dear Liam I hope you are doing well. Kindly find attached my resignation letter. I would like to thank you for the support, guidance and encouragement you gave me. I wish you and the team all the success and good times ahead.”

[128]The attached resignation letter said this:- “I want to let you know that I have decided to resign from my position effective 31 March 2023. It has been a pleasure working with such a great team and I feel privileged to have gained such valuable experience and knowledge while working her. I am grateful for the opportunity to have been a part of the resettlement team and I know that I have learned a great deal that I will take with me in my future career. I want to thank you for the passion that you have for our work and for the trust and support you have given me. I will do my best to ensure a smooth transition and to provide any help that may be needed during this time. I wish you and the team every success in the future.”

[129]The resignation email was sent shortly after the claimant had received notification from RC that he had not been shortlisted for interview for the Team management post. 22 of 35

[130]The claimant was contractually obliged to give one month’s notice (clause 11 of the contact, page 90) yet he provided 6 weeks’ notice and continued in employment until 31 March 2023.

[131]We find that the reasons for the claimant’s resignation are these.a. The claimant’s application for the post of team manager was not successful. He was disappointed with this and although he did not refer to it in his resignation letter, he considered that he had been badly treated. That is apparent from his reply to RC noted above. It subsequently became apparent (particularly on issue of this claim) that he considered he had been treated less favourably in this recruitment exercise because of his race.

b. The claimant’s wife was about to return to work following the birth of their second child and it was financially better for the claimant to stop work rather than the family paying for childcare. The claimant’s decisions not to escalate concerns/complaints.

[132]With the exception of the complaint relating to the respondent’s failure to select the claimant for interview for the team manager role, all of the complaints of race discrimination are outside of the primary time limits.

[133]The claimant was asked about this and his evidence was long the following lines” in real life every time something happens you don’t raise a complaint. It can have a worse outcome than the discrimination itself.”

[134]We have some sympathy with that position; but that essentially requires an individual to make a choice at the time that an employee is aggrieved; to raise a complaint or not. If the choice is not to then it will in many instances, be difficult at a much later date, to seek redress for that grievance.

[135]We are satisfied that the claimant did not raise issues going back as far as 2018 because he decided that he did not want to. The claimant is ( and was) well informed. He knew about rights to raise grievances, rights of appeal, ability the ability to seek redress through employment tribunal proceedings. D. The Law Constructive and unfair dismissal

[136]The claimant claims(1) that his resignation amounted to a constructive dismissal and

(2) that this dismissal was unfair under s98 of the Employment Rights Act 1996 (ERA).

[137]Dismissal for the purposes of s98 includes the circumstances stated at s95(1)( c). “…..an employee is dismissed by his employer if…….the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” 23 of 35

[138]In considering the issue of constructive dismissal, an Employment Tribunal is required to consider the terms of the contractual relationship, whether any contractual term has been breached and, if so, whether the breach amounts to a fundamental breach of the contract (Western Excavating (ECC) Limited v. Sharp [1978] QC 761).

[139]It is an implied term of every employment contract that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee (see for example Malik v. BCCI

[1997] IRLR 462

at paras 53 and 54). We refer to this term as “the Implied Term.” It is the Implied Term that the claimant says was broken by the respondent.

[140]In considering the Implied Term, Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Limited

[1981] ICR 666

(“Woods”), said that the tribunal must “look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

[141]In Frenkel Topping v King

UKEAT/0106/15

[12]-[14] (“Frenkel Topping”) the EAT (Langstaff P) considered the test facing a claimant seeking to establish a breach of the Implied Term and provided the following guidance: 12 We would emphasise that this is a demanding test. It has been held (see, for instance, the case of BG plc v O’Brien

[2001] IRLR 496

[27) that simply acting in an unreasonable manner is not sufficient. The word qualifying “damage” is “seriously.” This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI

[1997] UKHL 23

as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.” 13 Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the Appeal Tribunal, presided over by Cox J in Morrow v Safeway Stores

[2002] IRLR 9

. 14 The test of what is repudiatory in contract has been expressed in different words at different times. They are, however, to the same effect. In Woods v W M Car Services (Peterborough) Ltd

[1981] IRLR 347

it was “conduct with which an employee could not be expected to put up”. In the more modern formulation, adopted in Tullett Prebon plc v BGC Brokers LP & Ors

[2011] IRLR 420

, is that the employer (in that case, but the same applies to an employee) must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term.

[142]Relevant to breach of the Implied Term is the claimant’s requests for flexible working. There is no dispute that 2 of the requests were by way of formal applications made under section 80F ERA. 24 of 35

[143]An employer’s statutory duties in relation to an application under section 80F are listed in section 80G ERA. They include a requirement to “deal with the application in a reasonable manner.”

[144]ACAS have a code of practice called “Handling in a reasonable manner requests to work flexibly” For the purposes of this case we have considered the 2014 version of this Code, rather than the version updated in 2024. Relevant paragraphs of the Code say this:- “4. Once you have received a written request you must consider it. You should arrange to talk with your employee as soon as possible after receiving their written request. If you intend to approve the request then a meeting is not needed.” “5. You should allow an employee the right to be accompanied by a work colleague for this and any appeal discussion and the employee should be informed of this prior to the discussion.” “6. You should discuss the request with your employee. It will help you get a better idea of what changes they are looking for and how they might benefit your business and the employee.” “7. Wherever possible the discussion should take place in a private place where what is said will not be overheard.” “8. You should consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes, see paragraph 11. In considering the request you must not discriminate unlawfully against any employee.” “9. Once you have made your decision you must inform the employee of that decision as soon as possible. You should do this in writing as this can help avoid future confusion on what was decided.” “10 If you accept the employees request or accept it with modifications you should discus with the employee how and when the changes might best be implemented.” “11. If you reject the request it must be for one of the following business reasons as set out in the legislation: The burden of additional costs An inability to reorganise work amongst existing staff. An inability to recruit additional staff. A detrimental impact on quality. A detrimental impact on performance Detrimental effect on ability to meet customer demand. Insufficient work for the periods the employer proposes to work. A planned structural change to your business. 25 of 35 “12. If you reject the request you should allow your employee to appeal the decision. It can be helpful to allow an employee to speak with you about your decision as this may reveal new information or an omission in following a reasonable procedure when considering the application.”

[145]Where repudiatory breach of contract has been established, it is necessary to consider the issue of affirmation as well as the part it played in the claimant’s decision to resign.

[146]In WE Cox Toner International Ltd v Crook

[1981] ICR 823

, at 828F the EAT stated as follows: ‘If one party (" the guilty party ") commits a repudiatory breach of the contract, the other party (" the innocent party" ) can choose one of two courses: he can affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end. But he is not bound to elect within a reasonable or any other time. Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation.’

[147]The following passage from the judgment of the Court of Appeal in Nottinghamshire County Council v. Meikle

[2004] IRLR 703

, is helpful: “33. It has been held by the EAT in Jones v Sirl and Son (Furnishers) Ltd

[1997] IRLR 493

that in constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee's resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of contract and that the employee may leave because of both those breaches and another factor, such as the availability of another job. It suggested that the test to be applied was whether the breach or breaches were the 'effective cause' of the resignation. I see the attractions of that approach, but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship, and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other: see the Western Excavating case. The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation.” 26 of 35

[148]In the recent case of Leaney v. Loughborough University

2023 EAT 155

, the EAT holds that the correct approach is for a Tribunal to focus on what conduct there was during the relevant period that might or might not have amounted to an express or implied communication of affirmation.

[149]In the event that an Employment Tribunal decides that the termination of a claimant’s employment falls within s95(1) the employer must show the reason for dismissal and that the reason for dismissal was a potentially fair one under s98(1) and (2) ERA. In a constructive dismissal claim, the reason for dismissal is the reason why the employer breached the contract of employment (Berriman v. Delabole Slate Limited

[1985] IRLR 305

at para 12). Equality Act – time limits.

[150]Section 123 Equality Act 2010 (EQA) provides that complaints may not be brought after the end of 3 months “starting with the date of the act to which the complaint relates” (s123(1)(a) EqA). This is modified by section 140B – providing for early conciliation.

[151]Section 123(1)(b) provides that claims may be considered out of time, provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable.”

[152]As for the exercise of the power under section 123(1) I note the following passage from paragraph 25 of the judgment of Leggat LJ in Abertawe Bro Morgannwg University Local Health Board v. Morgan

[2018] EWCA Civ 640

the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.

[153]The EqA itself does not set out what Tribunals should take into account when considering whether a claim, which is presented out of time, has been presented within a period which it thinks is just and equitable. We note the following:-a. British Coal v. Keeble UKEAT 496/96 in which the EAT advised, when considering whether to allow an extension of time on just and equitable grounds, adopting as a checklist the factors referred to in s33 of the Limitation Act 1980. These are listed below:-

• the length of and reasons for the delay.

• the extent to which the cogency of the evidence is likely to be affected by the delay.

• the extent to which the party sued had co-operated with any requests for information. 27 of 35

• the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action.

• the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

b. Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] ICR 283

EAT. This case noted that the issue of the balance of prejudice and the potential merits of the (in that case) reasonable adjustments claim were relevant considerations to whether to grant an extension of time.

c. In Adedeji v. University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ. 23

noted that Tribunal’s should not rigidly adhere to the Keeble checklist (above). “The best approach for a Tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time including in particular … “the length of and the reasons for the delay”. If it checks those factors against the list in Keeble, well and good but I would not recommend taking it as the framework for its thinking.” (from para 38 of the Judgment). Direct Discrimination – section 13 Equality Act 2010 (“EqA”)

[154]Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.”

[155]An important question for us is whether the claimant’s race was an effective cause of the respondent’s treatment of the claimant. As was made clear in the case of O’Neill v. St Thomas More Roman Catholic School

[1996] IRLR 372

the relevant protected characteristic need not be the only cause of the treatment in question.

[156]We also note the following:-a. the House of Lords in Nagarajan v London Regional Transport

[1999] ICR 877

, HL, held “discrimination may be on racial grounds even if it is not the sole ground for the decision……..If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” (judgment of Lord Nicholls)

b. Paragraph 3.11 of the EHRC Employment Code which states that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause.’

[157]Section 13 provides that direct discrimination occurs where an individual is treated “less favourably” than another. It is generally necessary therefore to identify a comparator who does not share the claimant’s protected characteristic, although claimants can rely on a hypothetical comparator (the term “or would treat others” within the wording of section 13 makes this clear). 28 of 35

[158]Section 23(1) EqA requires that there is “no material difference” between the claimant’s position and his/her comparator’s position. Case law makes clear that the comparator’s circumstances do not have to be the same in all respects; rather they have to be the same (or nearly the same) in those circumstances which are relevant to the claimant’s claim. (see for example the decisions of the House of Lords in Shamoon v. Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

and MacDonald v. MOD; Peace v. Mayfield School

2003 ICR 937

). Burden of Proof

[159]We are required to apply the burden of proof provisions under section 136 EqA when considering complaints raised under the EqA.

[160]Section 136 states:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has 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.”

[161]We have also considered the guidance contained in the Court of Appeal’s decision in Wong v. Igen Limited

[2005] EWCA 142

. This case concerned the test as set out in discrimination legislation that pre-dated the EqA but the guidance provided in there remains relevant. It is the annex to the judgment particularly that provides guidance. (the amended Barton guidance). We note the following particularly from the guidance (recognising that the guidance is now relevant to the application of s136 EqA)a. That it is guidance only and not a substitute for the statutory language.

b. It is for the claimant to prove on the balance of probabilities, facts from which the tribunal could conclude, in the absence of adequate explanation, that the respondent has committed an unlawful act of discrimination. If the claimant does not prove such facts then the claim will fail.

c. It is unusual to find direct evidence of discrimination.

d. It is important to note the use of the word “could” at s136(2) – that, at this stage of analysis, a definitive determination does not have to be made.

e. The Tribunal needs to decide what inferences of secondary facts can be made from the primary facts at this stage, on the assumption there is no adequate explanation for those facts. 29 of 35

f. Where the claimant has proven facts from which the Tribunal could conclude that the respondent has treated claimant less favourably on the grounds of (in this case) the claimant’s race then the respondent must prove that it did not do so. It must prove that the treatment of the claimant was in no sense whatsoever on the grounds of the claimant’s race.

g. The Tribunal will need to assess

(1) whether the respondent has provided an explanation for the relevant facts and

(2) that the explanation is adequate to discharge the burden of proof on a balance of probabilities.

h. The facts necessary to discharge the burden of proof would normally be in the possession of the respondent and a tribunal would therefore normally expect cogent evidence to discharge that burden of proof.

[162]We also note that there can be occasions, particularly where a claimant is relying on a hypothetical comparator (as here) where it is appropriate to dispense with the first stage of the burden of proof test and to focus on the second stage, the reason why the Respondent treated the claimant in the way that it did. See for example the EAT Judgment in Laing v. Manchester City Council

[2006] IRLR 748

(paragraphs 73 to 77). However we also note the EAT’s caution against Tribunals adopting this approach too readily - in the recent case of Field v. Steve Pye and Co (KL) Limited

[2022] EAT 68

and particularly paragraphs 43-46.

[163]Finally, on the issue of burden of proof, we are mindful of guidance from case law indicating that something more than less favourable treatment may be required in order to establish a prima facie case of discrimination; see for example Madarassey v. Nomura International

[2007] ICR 867

, where the following was noted in the judgment: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” E. Conclusions – race discrimination Issues4.1.1 and

4.1.2

[164]These issues are the complaints dating back to September 2018 and 11 October 2019.

[165]These complaints were presented outside of the primary time limit. Our decision is that it is not just and equitable to extend time.

[166]We decided that it was not just and equitable to allow to proceed out of time particularly given the length of time between the incidents in question and the presentation of the claim. the difficulty that such a long delay causes in terms of reliability of evidence, is particularly marked here due to the absence of any compliant at the time. We were satisfied that those witnesses who gave evidence and stated a difficulty with recollection, were genuine. 30 of 35

[167]The claimant is and was aware that remedies could be sought for discriminatory acts; he was aware of the option to raise a grievance. His evidence is that he elected not to raise any complaint. That is of course his choice but, having done so and then changed his mind years later it makes any fair and just investigation and determination of that complaint very difficult. The fact that the claimant made the choice when he did is also something we took into account when deciding that it is not just and equitable to allow the complaints to proceed. Issues 4.1.3 and 4.1.4 These complaints are withdrawn. Issue 4.1.5 - 21 May 2020, AC abruptly cancelling Claimant’s flexible working arrangement; comparator Chris Barry

[168]The circumstances relating to this complaint took place some 3 years before the claimant presented his claim (and are therefore well outside of the primary time limit at section 123). It was necessary therefore to consider whether it would be just and equitable to allow this complaint to proceed.

[169]We took in to account the fact that this complaint was presented well after the primary time limit expired. We considered the impact that delay may well have had on the recollections of parties as well as the fact that the claimant was aware that he could raise complaints at the time and chose not to, However on balance we decided it was just and equitable to allow this complaint to proceed. Whilst the claimant made no formal complaint, he did make known to AC the extent of his dissatisfaction with her decision. In turn, some notes were taken and retained, particularly of the discussion on 21 May 2020. We decided that AC’s recollection of her decision and the reasons for it were sufficiently clear for us to make a fair decision. We also recognised that the claimant’s wish to work flexibly (albeit that his requests changed over the years) was an ongoing theme, continuing until 4 or so months before his resignation and that we needed to make findings to consider the constructive dismissal complaint (a complaint that was in time) as well as the race discrimination complaints.

[170]As we make clear in our findings of fact, we do not accept that the named comparator, Chris Barry is an appropriate comparator within the definition of section 23(1) Equality Act 2010. There are material differences between the claimant’s relevant circumstances and Chris Barry’s. one of these differences was that a different manager made the decision.

[171]We have considered the complaint on the basis of a white male hypothetical comparator doing the same job as the claimant in the same circumstances.

[172]We are satisfied that AC’s decision would have been the same if she had considered a FWR application from this hypothetical comparator.

[173]We find that the claimant has not proven facts from which we could conclude that the respondent had discriminated against the claimant on the grounds of his race. The burden of proof does not therefore shift to the respondent. 31 of 35

[174]We also applied the “reason why” approach to this discrimination claim. We are satisfied that the reason why the claimant was refused his FWR application was because:-a. of the risk averse approach that AC decided to adopt.

b. that risk averse approach arose from AC’s concern about the unpredictable nature of the work of the refugee resettlement scheme, the fact that a relatively small team may be seen as vulnerable if other members of the team were absent on the claimant’s non-working day.

c. AC, acting on advice, considered that she was permitted to refuse the application. The risk averse approach therefore was considered by her to be the safest and easiest decision.

[175]The claimant’s race was irrelevant to AC’s actions and decision. Issue 4.1.6 – flexible working request of March 2021.

[176]This complaint was withdrawn. Issue 4.1.7 LR refusing the claimant’s part time flexible working request in November 2022. Comparator Rebecca Birkett. Response.

[177]As noted in our findings of fact; we accept the reasons provided by LR for turning down the claimant’s FWR application.

[178]We do not accept RB (or SB) to be comparators within the definition at section 23 Equality Act 2010. The fact that they were both working in other teams, in other roles and on a part time basis when recruited into the resettlement team means that their circumstances were materially different to the claimant’s when he made his application for part time working.

[179]Whilst we understand the claimant feeling aggrieved, given the contrast between the rejection of his FWR and SB’s working arrangements, our conclusion is that the claimant has not shown a difference in treatment between himself and an actual comparator.

[180]Having regard to the evidence heard, we find that a hypothetical comparator, a white male in substantially the same circumstances as the claimant, would not have been treated any differently. His FWR application would have been rejected.

[181]As with our conclusion to the first FWR rejection, the claimant has not proven facts from which we could conclude that the respondent had discriminated against the claimant on the grounds of his race. The burden of proof does not therefore shift to the respondent. 32 of 35

[182]The reason why the claimant’s FWR application was rejected were those reasons set out in LR’s letter of 11 November 2022 and the risk averse approach that LR adopted. The claimant’s race was irrelevant to that decision. Issue 4.1.8 November 2022 – the comment regarding “funny names” (see para 25 of claim).

[183]Our findings of fact make clear our conclusion that:-a. the comment was not made because of the claimant’s race.

b. the comment did not amount to less favourable treatment of the claimant.

[184]The reason why LR made the comment that he did was because the group that was gathered and being introduced to the student included a lot of unusual names. LR wanted to put the student at ease having given her a lot of unusual names within a few minutes.

[185]Further it was not reasonable for the claimant to consider this comment as detrimental (addressing issue 4.2). We note here:-a. That he did not raise a complaint

b. There is no indication that the claimant considered at the time that the comment was a detriment to him.

c. The comment was a description of the group as a whole, a group with a range of ethnic and national origins. The claimant was not being treated less favourably than other members of the group.

d. The claimant had just received the news about the flexible working request and that/the decision to bring this case alleging race discrimination has impacted the claimant’s view of the comment. Issue 4.1.9 February 2023 – failing to shortlist the claimant for interview for team manager position.

[186]Our findings of fact make the following clear:-a. That there is no actual comparator, the circumstances of candidates A and B being materially different to the claimant’s due to their relevant and considerable management experience.

b. A hypothetical white comparator, with substantially the same CV as the claimant’s would not have been treated any differently to the way the claimant was treated; he would not have been invited to an interview.

c. The reason why the claimant was not invited to an interview and candidates A and B were, was because of the relevant management experience that candidates A and B demonstrated in their application, in comparison with the experience demonstrated by the claimant. In addition to that substantial management experience they met other requirements for the role. Whilst not as experienced as the claimant in working with refugees, they had experience and were able to demonstrate knowledge of the various government programmes and schemes in operation. 33 of 35 F. Conclusions – constructive dismissal Issue 2.1.1 .Did the respondent

(1) repeatedly refuse the claimant’s request for part time flexible working

(2) on 11 November refuse the claimant’s final request for flexible working;

(3) subject the claimant to race discrimination?

[187]The respondent did not subject the claimant to race discrimination – for the reasons noted in part E above.

[188]This leaves the complaints relating to the flexible working requests. Issue 2.1.2 Did that breach the implied term of trust and confidence?

[189]We have considered whether the refusals to grant the claimant flexible working either individually or collectively amounted to a breach of the implied term of trust and confidence (even though they did not amount to race discrimination) and; if so,a. Whether those refusals were a reason the claimant resigned? (issue 2.1.3)

b. Whether the claimant had affirmed the contract? (issue 2.1.4)

[190]AC and LR’s decision (which we have referred to as cautious or risk averse) did not amount to a breach of the claimant’s employment contract let alone a fundamental breach. The refusal to allow the application was based on a reason for refusal provided for in the relevant statutory provisions (section 80-F ERA) and the respondent’s own policies. We are satisfied that the reasons for refusal were genuine and not based on incorrect facts.

[191]We have made findings that the procedure followed was not compliant with either the relevant ACAS code or the respondent’s own policies. Contrary to both;(1) AC did not provide the claimant with her decision in writing;

(2) LR arranged a meeting with the claimant after he had made a decision that he would reject the claimant’s application, not before.

[192]The complaint of constructive dismissal is based on a breach of the Implied Term rather than an argument that the flexible working policy amounted to a term of the claimant’s employment contract and that there was a fundamental breach of an express term. We note however that the policy is stated to apply to all employees of CCC and we have assumed therefore that employees have a contractual right to make an application in accordance with the policy and for the application to be considered and determined in accordance with the policy. On that basis, the failure to provide a written outcome and LR’s decision to arrange a meeting after he had made his decision did amount to breaches of the claimant’s contract of employment. However, these failures do not amount to a breach of the Implied Term. We note here the EAT’s guidance in the Frenkel Topping case.

[193]Further:-a. It was the respondent’s decision to reject the applications that was so upsetting to the claimant, rather than the procedural failings identified. The decision provided were for reasons that were permitted under the contract and the statutory provisions. 34 of 35

b. By his actions following the outcomes to his applications, the claimant affirmed the contract (see below)

c. We have made findings that the decision not to allow the claimant’s flexible work applications were not part of the reasons for the claimant’s resignation. Affirmation

[194]On 9 November 2022, the claimant indicated that if his fwr application was refused he would have no choice but to leave. But he did not leave. Other than those comments at the meeting on 9 November 2023 he gave no indication that he was leaving. He continued to attend work and accept pay; he did not appeal LR’s decision; he did not commence an ACAS early conciliation process; he indicated that he was willing to continue in the respondent’s employment by applying for the Team Manager role. Taking account of these actions, we conclude that the claimant had affirmed the contract after he had been told of LR’s decision on 9 and 11 November 2022.

[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claims. That application is contained in a 5-page document dated 20 February 2025.

The Law

[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment.

[3]Rule 70(2) of the 2024 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[5]Similarly in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[6]In common with all powers under the 2024 Rules of Procedure, preliminary consideration under rule 70(2) must be conducted in accordance with the overriding objective which appears in rule 3, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application

[7]The claimant’s application helpfully identifies 5 reasons why he says the judgment should be reconsidered and changed. I deal with each in turn. Before doing so however I note that a number of the arguments raised by the claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour. The Cumulative Impact of Flexible Working Refusals on Trust and Confidence

[8]We made clear in our decision (para 190) that neither of the 2 decisions to refuse the claimant flexible working amounted to a breach of contract. Those were decisions that the respondent was entitled to make under the terms of the contract.

[9]We did find that the respondent did not comply with its own contractual process in its consideration of the applications, to the extent noted at paragraph 192. We considered the impact of these procedural failures and decided that, even when considered together they did not amount to a breach of the Implied Term. Our reasons are at paragraphs 192 and 193 of the Judgment. Affirmation of the Contract.

[10]It was not the time delay by itself that led to our decision that the claimant had affirmed the contract. Our reasons are set out at paragraph 194 of the Judgment. Causation of resignation

[11]Having decided that;(1) the respondent did not breach the implied term and;

(2) even if it had, the claimant had affirmed the contract; the cause of the claimant’s resignation becomes somewhat irrelevant. We made a decision on this point, in the alternative. Our finding of fact set out at paragraph 131 was part of the panel’s unanimous decision in this case, having considered all of the evidence provided to us. This part of the claimant’s application is an attempt to re-open issues of fact. Time Limits for Discrimination claims

[12]This part of the reconsideration application would require us to accept new evidence that the claimant was fearful of reprisals (presumably from his managers) if he had raised a complaint of race discrimination in 2018 and/or 2019. Evidence about a fear of reprisals was not provided at the final hearing. It was open to the claimant to provide this evidence. Evidence about a fear of reprisals may have been inconsistent with evidence that the claimant did provide – for example at paragraph 31 of his statement when he gives an account of him arguing with his managers about the food bank incident ( in 2018) and convincing them “to back down.” The claimant is also referred to our findings of fact at paragraph 135.

[13]This part of the claimant’s application is an attempt to re-open issues of fact. Burden of proof 13. We decided that the claimant had not proven facts from which we could conclude that the burden of proof had shifted to the respondent in the complaints about(1) the abrupt cancellation of the claimant’s flexible working arrangements in May 2020 and

(2) the respondent’s decision to refuse the claimant’s FWR in November 2022. However, we went on to make decisions ( in the alternative) about the reasons why the respondent decided to act as it did; assuming therefore that the burden of proof had shifted. See paragraphs 174 and 182. Conclusion Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused.