Mr I Laing v Bury and Bolton Citizens Advice Bureau: 2406159/2019
EMPLOYMENT TRIBUNALS
Case No 2406159/2019
Between
Mr I LaingClaimantBury and Bolton Citizens Advice BureauRespondent
Before
Employment Judge FraneyIn person for claimantMr J Searle (instructed by Counsel) for respondentDate 18 May 2020
JUDGMENT
All complaints of breach of contract are dismissed upon withdrawal by the claimant. JUDGMENT[1]The Tribunal does not have jurisdiction to extend the time for payment of a deposit after the making of a deposit order has not been complied with, pursuant to rule 39(1) of the Employment Tribunals Rules of Procedure 2013.[2]The Tribunal declares that it has no jurisdiction in respect of the claimant’s claim in respect of direct race discrimination, and the Tribunal has no jurisdiction in respect of his complaint of direct sex discrimination.[3]Such claims are struck out by means of the claimant's failure to pay the deposit in accordance with Employment Judge Franey's order.[4]The Tribunal declines to make a Witness Order requiring the attendance of Rebecca Potts- Jacobs, Emma Davies and Charlie Smythe.[5]The Tribunal declines to make any order in respect of the suspension of the witness order regarding Mr Verrachia which was suspended by order of the Acting
REASONS
[1]This is the ruling on the claimant's application to extend the period of time for payment of a deposit ordered by Employment Judge Franey on 2 January 2020 sent to the parties on 9 January 2020.[2]On 2 January 2020 Employment Judge Franey made a deposit order. The order was sent to the parties on 9 January 2020. The terms of the deposit order were as follows:(1) The claimant is ordered pursuant to rule 39(1) of the Employment Tribunals Rules of Procedure 2013 to pay a deposit of £10 within 21 days of when this Order is sent to him as a condition of proceeding with his complaint of race discrimination.(2) The claimant is ordered pursuant to rule 39(1) of the Employment Tribunals Rules of Procedure to pay a deposit of £10 within 21 days of when this Order is sent to him as a condition of proceeding with his complaint of direct sex discrimination.[3]The claimant by his own admission has not paid the deposit order. The deposit would have been due to be paid by 30 January 2020 in accordance with the 21 days of when the Order was sent to him. The deposit order was accompanied by notes which made clear when to pay, including at paragraph 4 of those notes “if the deposit is not paid within that time the complaint or response to which the order relates will be struck out”. The note also included how to pay and enquiries with a telephone number.[4]The claimant made an application for a witness order late on 14th February 2020, (which will be dealt with in due course in these reasons), he also made an application said to be for an extension of time to pay the deposit at the same time.[5]He said in that that he had failed to pay the deposit “which was due to an oversight”. He indicated he had written to the respondent’s solicitors on 14 February 2020, which was already after the time for payment had expired and those claims struck out, (the Friday before this hearing) which is 3 days before this final hearing commencing on 17 February 2020, when he was requesting the respondent’s bank details to make payment and enclosed an email. He apologised for failure to comply. By his own admission the claimant has failed to pay the deposit on time and suggested it was "an oversight." He renewed the application for an extension orally at this hearing.[6]The Tribunal has considered the submissions of the claimant and of the respondent who asserts through Mr Searle of counsel that the Tribunal has no jurisdiction to extend the period for payment per rule 39(4) regarding deposit orders.[7]As set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1. Rule 39(4) reads as follows: “If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out the consequences shall be as if no response had been presented as set out in rule 21.”[8]The rule is mandatory. The Tribunal has no jurisdiction to hear the claim of a complaint of direct race discrimination and no jurisdiction to hear the claimant’s complaint of direct sex discrimination. There are no grounds to extend time.[9]The Tribunal is now proceeding to hear the claimant’s outstanding claim relating to victimisation under section 27 of the Equality Act 2010, and the Tribunal will deal with the submissions in respect of a witness order for Rebecca Potts-Jacobs, Emma Davies and Charlie Smythe.[10]The claimant has applied for witness orders. He is seeking the attendance of three individuals, namely Rebecca Potts-Jacobs, Emma Davies and Charlie Smythe. He made those applications late on Friday 14 February 2020. The applications are before the Tribunal on Monday 17 February 2020. That is the first day of a four day fixture. If the Tribunal were to make orders requiring those three individuals to attend it is likely that this case would have to be adjourned, and it would not conclude within the hearing window.[11]The factual matrix of the case has been set out previously by Employment Judge Franey particularly in a case management summary which has been sent to the parties heard on 2 January 2020. There is no need to repeat that here.[12]The claimant's claims for direct sex and race discrimination are not proceeding because the claimant failed to pay a deposit. It is solely the claim for victimisation which now remains live, and in the Annex to the case management hearing on 2 January 2020 Employment Judge Franey set out those matters that the Tribunal needs to deal with. in respect of whether or not the claimant can establish he did a protected act, and those (so far as the facts are concerned) relate to occasions firstly when he was in company with Gail Lyle who is a respondent witness and was his line manager at the time of his employment, and in respect of an email sent to Ms Lyle on 4 June and causation in relation to alleged detriment.[13]The now more limited factual matrix that the Tribunal has to consider in our view does not require the attendance of the three female witnesses that the claimant seeks the order to include. The case can be properly dealt with on the evidence of the witnesses already to be called by the respondent present to deal with the case this week.[14]Should three further witnesses be ordered to attend, the case would require in our view a disproportionate amount of time to consider, further it would likely have to be adjourned. The respondent’s witness evidence deals with the factual matrix sufficiently, and it would seem from the appendices to the statement of Ms Lyle that the evidence that those witnesses would intend to give would in fact be contrary to assisting the claimant's case. In all the circumstances considering the application of the overriding objective we refuse the application for a witness order in respect of those three individuals.[15]Mr Laing also puts before the Tribunal the fact that Mr Verracchia has been stood down so far as his answering a witness order is concerned for attendance tomorrow which was previously granted. That is a matter that the Tribunal can do nothing about in our view. He was stood down by the order of the Acting Regional Employment Judge and it is just a fact that we will have to carry on with this case without Mr Verracchia. The Tribunal anticipates he was stood down for good reason by the Acting Regional Employment Judge, but that correspondence is not currently before the Tribunal.[16]In any event from the information before the Tribunal there has been no draft witness statement provided from him to assist as to which matters he would give evidence upon, and for the Tribunal to consider how if he does so, he assists the claimant's case in the circumstances it would be wholly wrong for this Tribunal to revisit that order in the dark. This case will proceed with the claimant's claim in respect of victimisation being dealt with,[1]The Tribunal is part way through hearing the claimant's claim against the respondent alleging victimisation, the Tribunal having no jurisdiction to consider the claimant's claims in respect of race and sex discrimination as the claimant failed to pay any deposit previously ordered by Employment Judge Franey.[2]The claimant by letter of 17 February 2020 made available to this Tribunal on 18 February requested that the letter be placed for the urgent attention of the Regional Employment Judge. He in that letter stated a complaint against Employment Judge Grundy and pertaining to this hearing also a request for a review on several bases of the judgment given yesterday and thirdly, an application that the hearing is heard by a male Employment Judge/ new Judge. The letter is read into this judgment as if all of the terms of it were set out herein. It is a lengthy letter, which the claimant said, took him five hours to put together over yesterday evening.[3]In that letter the claimant alleges bias against the Employment Judge, both actual and apparent bias when asked to clarify those matters. The Tribunal heard both the claimant in relation to those matters and Mr Searle on the respondent’s behalf.[4]The Tribunal also considered a number of the previously decided authorities which touch on the issue of bias, in particular Locabail (UK) Limited -v- Bayfield Properties Ltd and Others [ 2000] Q.B.451, Magill -v- Porter 2001 UK HL 67, Lodwick and the London Borough of Southwark cited by the claimant and Ansar -v- Lloyds Bank and Others 2006 EWCA Civ 1462.[5]The Tribunal has analysed the substance of the submissions as invited to do by the authorities. First of all, the claimant in the background in the letter suggested that the Tribunal having ruled against him on the Deposit Order the Tribunal hadn’t taken into account sufficient matters in relation to the Deposit Order because the Tribunal was only aware of the failure to pay from the claimant’s admission.[6]The Tribunal as a tripartite unit of three persons considering the deposit position ruled that the claimant not having paid the deposit within the requisite time should not be able to proceed with his race and sex discrimination claims because the other claims were as a matter of law struck out, which then left the victimisation claim live. The Tribunal did not take into account extraneous matters.[7]The Tribunal also made a ruling in respect of Rebecca Potts Jacobs, Charlie Smythe and Emma Davies who were witnesses whom the claimant sought the Tribunal to issue a witness order against, the Tribunal ruling that it was not necessary for them to give evidence, in part that was because the issues have narrowed because the sex and race discrimination claims were no longer live.[8]It is also right to say that in considering the three witnesses statements which are appended to the witness statement of Miss Gail Lyle, the evidence within those statements is not supportive of the claimant, in fact it would seem that they would be hostile witnesses to the claimant and although the claimant through discussion says that part of the statement of Charlie Smythe may be of assistance to him, that would then not require challenge under cross examination and would not be a reason for the witness to be called to give evidence. The Tribunal also relied on proportionality in making that decision, again it was a tripartite decision of the three members of this Tribunal.[9]That was part of the background to the claimant’s concerns of bias. The Tribunal takes on board that the claimant indicated in his view the Employment Judge had not read the papers properly. The situation on the personal attendance of the Employment Judge was that the Tribunal office had wrongly indicated to her as diarised at Friday 14th February 2020 that she was sitting in Liverpool on Monday 17th February 2020 so she attended Liverpool Tribunal in good time for reading papers for a hearing in Liverpool. Plainly when the Judge attended Liverpool at 9am papers were not there and her attendance was required in Manchester. The Judge then drove from Liverpool to Manchester to commence the hearing as promptly as possible. In these circumstances when the hearing first commenced she had read the papers in as much as she was able and to make sure the reading time left available was properly utilised, she therefore took more time from between 12 pm and 2 pm to reread the papers so that she was fully able to deal with all of the issues with her colleagues in order to consider the matters that were before the Tribunal.[10]At 2 o’clock when the decisions were given in respect of the granting of the witness order the Tribunal Judge was well aware and clear about all of the issues, and the same matters applied in respect of the email regarding Mr Varachia’s attendance. The Tribunal had not at that time ( when making its earlier ruling) seen the email which had been sent by Mr Varachia to the Tribunal which was before Acting Regional Employment Judge Warren who had suspended the witness order requiring his attendance. This was because it had not been printed and placed on the file at that time. The Tribunal has of course now seen that and there are clear reasons why the Acting Regional Judge took the view that his attendance would not be necessary set out later in this judgment.[11]Dealing with the specifics relating to concerns/appearance of bias that the claimant relies upon and that he discussed and amplified on before the Tribunal, the Tribunal’s recollection of the claimant’s response to Mr Wilkinson was very soon after he ( the claimant) had been sworn in to give his evidence, the claimant suggested Mr Wilkinson was smirking. The Employment Judge did comment about perception because she herself had not witnessed anything but what she also did was engaged with the claimant’s concern that there was something which had been going in within the Tribunal and she asked all members of the Tribunal and all persons present to behave with decorum, and properly and that was not said directly to any one person, it was aimed at ensuring that everybody behaved appropriately. (Incidentally Mr Wilkinson later changed his seat so he was sitting to the far left of the claimant and well outside his eye line.)[12]Further, in the discussion that the Tribunal has had with the claimant he accused the Employment Judge of dismissing his feelings about personal statements that had allegedly been made. Far from dismissing the claimant’s feelings, the Tribunal Judge engaged about that and talked with the claimant during the course of that hearing about having feelings, she did not dismiss them, so in terms of the claimant’s concern and complaint that is not accepted by the Tribunal.[13]The claimant goes on in his letter specifically to say “I am greatly concerned that the Employment Judge who is female is overtly sympathetic to the allegations made by the respondent and the female staff members against me, this is based on my observation of the Judge”. The Tribunal have yet to hear the respondent’s evidence, the Tribunal has only engaged in so far hearing the evidence of the claimant himself. The respondent suggests therefore that this is a complaint of apparent bias based solely on gender and given that the claimant himself says that, one could indeed reach that conclusion.[14]The Tribunal has engaged fully to deal with the complaints that the claimant makes and has fully considered them. At the time the claimant was giving his evidence he suggests that he has been hurried by the Tribunal. In fact, the situation is that the Tribunal was assisting the claimant to give the best evidence he could in the circumstances that although a qualified non -practising Solicitor the Tribunal accepts he is a litigant in person.[15]The Tribunal has in front of it the full witness statement of the claimant, the live issues relate to the victimisation claim, the annex of Employment Judge Franey identified the issues pertinent to that claim, what the Tribunal did was to offer the claimant the opportunity to give any further evidence about those issues that he wished to and again, in an effort to assist him the Tribunal asked specifically that he direct the Tribunal’s attention to any particular pages of the bundle of documents he wished to refer, and he did indeed do that and referred to the policies which the Tribunal will consider.[16]So, far from hurrying the claimant the Tribunal was assisting. The claimant had a tendency to return to "festering sores" that relating to the Tribunal’s judgment so far as the witness orders were concerned and the dismissal or the deposit order position. The Tribunal Judge is mindful that the evidence now to be considered by this Tribunal is only that regarding the victimisation claim and that is limited in relation to the relevant issues, the claimant has so far not wished to accept that ruling.[17]The claimant’s letter also on page 4 and 5 seeks to put forward that the claims should be heard by a different Employment Judge, he says "different" in that paragraph but also in the final sentence on page 4 says “I request this case is heard by a "male" Employment Judge”. He started the letter in part 3 of his application by asking that the hearing is heard by a "male" Employment Judge and then goes on on page 5 to request the proceedings be heard by a "different" Employment Judge. When asked about that in clarification by the Employment Judge the claimant said it was an error despite the capitals underlined in the first paragraph. It is concerning that the claimant has re-iterated and then retracted the suggestion that he would wish the claims to be heard by a male Employment Judge.[18]On behalf of the respondent Mr Searle referred us to paragraph 26 of the Lockerbail decision. In particular, quoting as follows “it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias, everything will depend on the facts which may include the nature of the issue to be decided. We cannot however concede circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age/class, means or sexual orientation of the Judge specifically ruling out an objection on the basis of gender. "[19]The Tribunal has also considered carefully the dicta from paragraph 28 of Ansar -v- Lloyds TSB and the test that was articulated within the claimant’s letter. The test to be applied as stated by Lord Hope in Porter -v- McGill at paragraph 103 and recited by Pill L J in Ludwick -v- The London Borough of Suffolk. Paragraph 18. “In determining bias is whether the fair minded and informed observer having considered the facts would conclude that there was a real possibility that the Tribunal was biased. If an objection of bias is then made it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. Although it is important that justice must be seen to be done it is equally important that judicial officers discharge their duty to sit and do not by exceeding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a Judge they will have their case tried by someone thought to be more likely to decide the case in their favour”.[20]Also relevant is a quote from Mason J in the High Court of Australia recited in Locabail. "It is the duty of a Judicial Officer to hear and determine the cases allocated to him or her by their head of jurisdiction, subject to certain limited exceptions a Judge should not accede to an unfounded disqualification application. The EAT should test the Employment Tribunal’s decision as to recusal and also consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen. The mere fact that a Judge earlier in the same case or in a previous case had commented adversely on a party or witness or found the evidence of a party or witness to be unreliable would not without something more found a sustainable objection. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different Judge or Tribunal in a later case. Something more must be shown. Courts and Tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for an adjournment or stay cannot. There shall be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearing of the dialogue which frequently takes place between the Judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal as master of its own procedure to seek to control prolixity and irrelevancies." "In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal. Whilst recognising that each case must be carefully considered on its own facts a real danger of bias might well thought to arise if there were a personal friendship or animosity between the Judge and any member of the public involved in the case, or the Judge was closely acquainted with any member of the public involved in the case, particularly the credibility of that individual could be significant in the decision in the case, and so it goes on about those circumstances where the situation is much clearer."[21]The Tribunal has considered the real danger or possibility of bias and the matters relied upon by the claimant, and has gone through those circumstances with a fine toothcomb. The Tribunal does not accept that the test is satisfied in terms of the informed observer concluding there is a real possibility of bias by the Judge. The Tribunal has acted transparently and openly, engaged in a dialogue with the claimant, given him leeway in his oral evidence which is still continuing and made tripartite decisions on a unanimous basis. In those circumstances the application for recusal is dismissed and the case will continue.[22]This is the claimant’s application to review the following decisions. Firstly, in the claimant’s terms, the strike out of the applicant’s race and sex discrimination claim, secondly, to refuse the claimant’s witness order for the attendance of the respondent’s witnesses Rebecca Potts Jacobs, Emma Davies and Charlie Smythe and thirdly, refusal of the claimant’s request for attendance of the respondent’s witness is Mr Verrachia and to proceed with the hearing of the claim. The Tribunal has considered the matters that the claimant has referred to in writing, the claimant having been given the opportunity to make further submissions orally, and choosing not to do so and dismisses the application to review those orders. In the first instance the reasons are as follows.[23]The Tribunal has previously given reasons for not allowing the race and sex discrimination claim to proceed in fact because of lack of jurisdiction given that the claimant failed to pay the deposits ordered. This judgment is to be considered in relation the original judgment on that matter. The Tribunal would add, which was considered with the claimant in earlier discussion today is that the amounts ordered to be deposited were £10 in respect of the race discrimination case and the sex discrimination case, both of which were extremely small sums.[24]The claimant in his letter says that his failure to pay was due to "an oversight" (and the oversight was, and this is new information,) due to my personal circumstances relating to my child and on-going stress that I had been suffering as a result. The claimant is a qualified Solicitor, although not practising, and he has been employed as an immigration advisor in his last post. He is articulate and intelligent. He has at no time previously sought an extension of time to pay. He had the clear information attached to the notice of payment of a deposit and the Tribunal has looked at this new reason and does not find it a compelling reason to alter its previous decision.[25]So far as the refusal to make witness orders in respect of the three individuals the Tribunal has given previous reasons for that and the only matter to add that the claimant has raised in discussion in the original application for recusal of the Judge is that some of the matters in Charlie Smythe’s statement appear to support him. If that is correct there is even less reason for a witness order to be made against her because those matters can be referred by the claimant to the Tribunal without the witness attending and there would indeed be no point to her attending for cross examination.[26]So far as the third aspect is concerned, refusal of the claimant’s request for the attendance of Mr Ishmail Varachia, the Tribunal was not aware of an email that was before the Acting Regional Employment Judge Warren when she suspended the order that Mr Varachia attend, within that email the Tribunal had been aware that Mr Varachia had asserted personal reasons relating to his family and half term, they are set out in detail in the email, what the Tribunal had not been aware of and is now is the following said by Mr Varachia “I do not believe I have anything of relevance to contribute to the evidence in this case, my employer has allowed me to review its copy of the hearing bundle which contains the claim brought by Mr Laing, I have now had an opportunity to look at this and having done so I am confused as to why Mr Laing thinks I will be able to provide relevant evidence. I had very little interaction with him whilst he was worked at the Citizens Advice Bureau, Bolton, and I would not say that I knew him, I remember maybe two days where he sat near me in the office and I also had a brief discussion with him at a CPD event, I never had any in depth conversations with him, I don’t feel I can give any relevant evidence about the allegations he has made of discrimination or about his dismissal, which I had absolutely no involvement with. "[27]He then says he would be grateful for confirmation as soon as possible as to whether he would be required to attend. The witness order in respect of him was suspended and this Tribunal sees no reason to interfere with that suspension. The Tribunal takes the view it would be unnecessary and disproportionate for Mr Varachia to attend and therefore there will be no change to the position in respect of his suspended witness summons. This deals with all the matters which the claimant has raised on 18th February 2020.
FINDINGS OF FACT
[28]After termination of employment the Claimant brought his Tribunal claim on 10 June 2019, page1-20 which relied on the email of 4 June as the containing specifics of a protected act, with amended grounds on 27 September 2019 pages 28-32 seeking to rely on the conversation at the meeting of 3 June 2019 as a protected act, the amendment to rely on the events of 3 June was granted by EJ Franey as set out in paragraph 41 of the CMO on 2 January 2020.[29]At the Tribunal hearing to the Judge and the members, the claimant presented as extremely egotistical and emphasized at every turn his qualification as a solicitor and a perceived superiority. He believed he was being interrupted during his evidence when the reality was he was being encouraged not to repeat and re- visit matters the Tribunal already had cognisance of. Towards the end of his cross examination by Mr Searle he was threatening saying, " If you interrupt me again, when I'm giving an answer..... I'm giving you notice........" It was very much a situation of him trying to dominate and wishing to have his own way all of the time. At one stage his riposte was "Let me finish, do you think I'm someone from the street?" He sought to paint himself as a private person, whilst grandstanding and challenging at times and not wishing to conform to authority for most of the hearing. He seemed to have a fixation about others failing to be " professional". He was difficult to engage for much of the hearing and the applications and judgments meant that the hearing was very stop/ start. At the conclusion of the proceedings on day 4 he thanked the Tribunal for dealing with his case in what was at point a very polite manner.
THE LAW
[30]The Tribunal had regard to section 27 of the Equality Act 2010 which reads as follows:- SECTION 27 (1)A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[31]The claimant also refers the Tribunal to section 26 which reads as follows:- (1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are—• age;• disability;• gender reassignment;• race;• religion or belief;• sex;• sexual orientation.[32]A claim for victimisation is actionable as a statutory tort. A realistic approach must be taken to any situation in which it is said a protected act occurred. The burden of proof is on the claimant to prove that he did a " protected act" as identified in the issues above relating to the verbal discussion with Gail Lyle on 3 June or in the email sent to her on 4 June. The standard of proof is the balance of probabilities.[33]The burden if such a protected act is established is also on the claimant to establish that the respondent subjected him to a detriment because of the protected act. The causation aspect requires knowledge of the protected act and a causal connection between the protected act and the detriment. There is no comparator aspect to a victimisation claim, nor is there any reverse or shifting burden in considering the burden of proof per Oyarce v Cheshire County Council [2008] EWCA Civ 434[34]The primary object of a victimisation provision is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or are intending to do so.[35]Section 27(3) above refers to the "giving of false evidence or information or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith." The allegation asserted by the respondent of bad faith would require the respondent to prove bad faith on the claimant's behalf. (This matter first arose in written submissions on behalf of the respondent and was not a matter identified in the issues although the claimant fully addresses it in his submissions in reply to the respondent, as the Tribunal ordered the respondent to file submissions first.) SUBMISSIONS[36]Both parties made written submissions, which are incorporated by reference essentially the respondent whose submissions were ordered and filed first in time as set out above, address the issues as follows:- the protected act being relied upon, the detriment suffered, the reason for the detriment, any defence and the burden of proof. There was no reply filed to the claimant's written submissions.[37]The respondent seeks a specific finding that the claimant is dishonest and has fabricated his account of the meeting on 3 June to seek to allege sexual harassment. It is asserted (and it is correct) that the conversation is not referred to at all in the ET1. It is asserted (and it is correct) that only upon hearing what EJ Holmes had to say at the preliminary hearing on 13 September 2019 did C say that he had made a verbal complaint of sexual harassment on 3 June 2019. The respondent invites the tribunal to expressly find that the C: invented his version of telling GL about sexual harassment in an attempt to bolster his claim and lied in his evidence on this point.[38]Further the respondent asserts the email of 4 June does not satisfy the requirements of section 27, the first reference to any protected characteristic is in the amended grounds of claim at 29 (2.5).[39]The respondent accepts dismissal could amount to a detriment. As to causation the respondent refers to a number of authorities within the written submissions and asks the Tribunal to consider the reason why the dismissal occurred. "In examining the reason for that treatment, the issue of R's state of mind is likely to be critical." "The key issue in such situations will be the tribunal's understanding of the motivation (conscious or unconscious) behind the act by the employer which is said to amount to victimisation."[40]The respondent asserts a complete defence to the claim if the Tribunal were to accept bad faith on the part of the claimant. The respondent relies on the Gillingham Football club case as set out in submissions.[41]The respondent submits , "C has not discharged the burden. He has failed to establish a prima facie case. Even taking R’s explanation into account C has not made out his claim of detriment. Alternatively, R has shown that the dismissal was in ‘no way whatsoever’ because of a protected act, if there is one. The protected act was not ‘the effective cause’ of the dismissal. The reasons set out at [107] are the true reasons for the dismissal of C."[42]In concluding- specific findings are invited to be made by the Tribunal- " an express finding that the C has lied in his evidence and has been responsible for causing 4 female employees (GL, RPJ, ED and CS) to feel uncomfortable because they are female and to expressly record that C acted in a manner consistent with him holding a sexist view of women. R contends that C has demonstrated that he has a warped and jaundiced of women. This was evident even in the face of the tribunal. R refers specifically to the C’s application for recusal of the Employment Judge on the grounds of her gender."[43]The claimant's submissions were lengthy running to 39 pages. He refutes the assertion of dishonesty and sets out the required tests for the Tribunal to consider in Royal Brunei Airlines v Tan [1995] 2 AC 378 and Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37. The Tribunal is reminded by the claimant ,of his status as a non-practising solicitor.[44]He alleges that it is the respondent who makes false allegations against him. He refutes the veracity of date and time stamped emails. He says he is upset by the allegations of misogyny and the like. He repeats many of his complaints the subject of separate judgments of this Tribunal already promulgated.[45]At one part of the submissions he appears to allege on page 26 that the Judge having allowed cross examination about the " statements" of Rebecca Potts Jacobs, Miss Smythe and Miss Davies, " On at least one occasion in the proceedings, when the claimant strongly objected to answer questions put by Counsel pertaining to these statements, the EJ repeatedly threatened the claimant that if he did not answer questions of Counsel pertaining to these statements purportedly prepared by CS, ED, RPJ and the Judge would record that the claimant refused to answer the questions of Counsel. This approach by the EJ was intended to and did pressure the claimant into acknowledging and accepting the veracity of the statements. (This is not the recollection of the Tribunal and appears to be a mistake as the Tribunal's understanding of the claimant's case throughout is that at no time did the claimant accept their veracity.)[46]It is not until page 30 of 39 of his written submissions that he then specifically addresses the victimisation claim itself. He contends he asserted sexual harassment by Rebecca Potts Jacobs at the meeting with Gail Lyle on 3 June. He refers to the conversation with Gail Lyle and criticises the cross examination to which he was subjected about his attitude to Rebecca Potts Jacobs.[47]He seeks to argue that the email was a complaint in good faith. He says RPJ "had taken an interest in him which he rebuffed". He suggests the email was seen before the dismissal was communicated to him.[48]In effect and in short he asserts that the Tribunal should reject the evidence as to the reason why he was dismissed "as the reasons in the ET 3 are fabricated". page 24 para 6.
CONCLUSIONS
[49]The Tribunal applied the law to its findings of fact after consideration of all of the evidence, re- reading the notes of oral evidence and witness statements and the submissions made in writing. The Tribunal reached the following conclusions. The claimant did not establish that the respondent had done a protected act taking account of the findings at pages 3, 4 and 5 above. The verbal discussion with Gail Lyle on 3 June 2019 was not as the claimant seeks to argue that he was making an allegation another person had contravened the provisions of the Equality Act. It was him complaining about Rebecca Potts Jacobs being " unprofessional" in his personal view because she did not conform to his prescripts about how people should react and behave.[50]The email also does not establish that he made an allegation that the respondent ie Rebecca Potts Jacobs or another person has contravened the Act. The allegations by the claimant regarding asking about getting a train and the station events were bizarre in the manner in which such complaints were couched by him. When heard by Ms Lyle she did not understand any of the complaints to be an allegation of harassment on the grounds of sex. The claimant may have tried to give a particular emphasis to attempt to fit the statutory criteria of the victimisation provisions latterly but the Tribunal does not accept what the claimant did was a protected act in relation to events on 3 June or 4 June email.[51]Having reached the conclusion the claimant has not established any protected act the claimant's case fails on this basis however if the Tribunal has reached a wrong conclusion on the evidence as to the question of either events at 3 June meeting or 4 June email amounting to a protected act the causative aspect relating to the claimant's dismissal would be live. The Tribunal considers that the cause of claimant's dismissal wholly related to his own reprehensible conduct by his difficult behaviour across the Board with colleagues and management, in a matter of less than 2 weeks in new employment with a charitable organisation.[52]The respondent was not in breach of its probation policy in dismissing the claimant nor in the circumstances did it breach its bullying policy and the Tribunal doubts the relevance of these matters to its ultimate decision regarding alleged victimisation but deals with them as the claimant raised them.[53]The overbearing manner of the claimant was writ large to this Tribunal as it fell to assess him over 4 days and as it was to the respondent over less than 10 days in employment. It follows that any individual displaying his characteristics would be difficult to work alongside and impossible to manage. It is patently obvious at times he cannot rein himself in nor take direction and often responds alleging he is affronted whilst not seeing or understanding the offence he could be causing to someone else. An example was accusing the respondent's witness Mr Wilkinson of smirking and the when the Judge intervened to deal with the claimant's assertion he subsequently submitted it was insufficient to refer to "his perception", when in fact the point was the Employment Judge had asked everyone to act with decorum to diffuse the situation and in fact Mr Wilkinson, who seemed perturbed, sensibly moved to sit out of the claimant's eye line. However the claimant returned to complaining about it later in the hearing, despite Mr Wilkinson moving.[54]The extent of the claimant's hostile animus to anything, which did not accord with his view for the majority of the time, was the Tribunal would observe and conclude very wearing and quite wearying. The Tribunal considers this must have been the experience of those working along side him and trying to manage the claimant,both male and female, black or white.[55]The respondent asks the Tribunal to find that the claimant put together a preemptive strike in suggesting a false allegation may be made against him. The Tribunal considers that the claimant did make a pre-emptive strike not motivated by malice or in bad faith, but because of the claimant's own warped perceptions of his working environment. This was based on and a development of his odd and bizarre suggestion that Rebecca Potts Jacobs had been "unprofessional".[56]The respondent seeks a finding of bad faith. Considering the high test to be satisfied given how the case was originally pleaded and the identified issues the Tribunal does not consider the high test of bad faith is satisfied and notes that this has only latterly been developed, by the respondent, in closing submissions hearing the evidence as it proceeded and the claimant's applications during the hearing.[57]The Tribunal concludes the ultimate decision to dismiss was taken by Richard Wilkinson in context of an employee who was not "gelling" or fitting in with colleagues to an acceptable degree. In fact far from it, he was exhibiting basic difficulties in having normal social relationships and interaction, which was having a detrimental effect and impact on the rest of the team. The feedback on his short period of employment was extremely critical. Those immediately around him were women but another who was male as reported, found him to express a superior attitude. There was a fundamental inability to accept direction as witnessed by the Tribunal it so happened this was from a female Employment judge in the case of this listing. He was challenging to Mr Searle in retorts in cross-examination.[58]The respondent dismissed the claimant because his reactions to other staff and relationships to staff, and his Manager and the attitude to his work were not appropriate for someone only the second week in to a role. Page 107 made clear he would not have passed his probationary period and the respondent generously after 2 weeks, paid 3 and a half weeks notice pay. There is no inconsistency taken in the round, in the reasons the respondent says it dismissed the claimant from the purport of the evidence and the written documentation considered overall.[59]The Tribunal declines to make the specific findings sought by the respondent. The Tribunal accepts that one view of the evidence may be that the claimant has a warped view of women. The Tribunal draws the conclusion that the claimant had, as Mr Searle had put it to Employment Judge Franey on 2 Janaury 2020, at the case management hearing "some bizarre and fantastic interpretations of innocent actions". Given his interpretations he may or may not hold misogynistic views the Tribunal cannot explicitly reach that conclusion even in the face of the recusal application made by the claimant in the first instance to seek a male Employment judge. There is certainly in the claimant's responses at times a strange heightened sensitivity to plain and straightforward matters. The simplest example of this is in the objection to questions about dress size to which the claimant took offence during him being cross- examined. In the Tribunal's view this gives weight to the conclusion this claimant was extremely difficult to deal with, had some bizarre reactions to innocent actions and that was the reason for his dismissal at its nub.[60]The Tribunal not having acceded to the claimant's request to adjourn and hear directly from Rebecca Potts Jacobs and Charlie Smythe and Emma Davies for the reasons given in the previous judgment taking a proportionate view throughout is not in a position to make the explicit findings now sought by the respondent in submissions and declines so to do.[61]The claim of victimisation fails and is dismissed.