Mr M Ogundu v Stockport NHS Foundation Trust: 2408157/2022

EMPLOYMENT TRIBUNALS

Case No 2408157/2022

Between

Mr M OgunduClaimant

Stockport NHS Foundation TrustRespondent

Before

Employment Judge Leach (sitting alone).

In person for claimant

Ms. L Amartey (instructed by counsel) for respondent

Date 15 October 2024

JUDGMENT

[1]Constructive unfair dismissal (section 98 Employment Rights Act 1996);

[2]Direct discrimination (protected characteristic, race) (section 13 Equality Act 2010);

[3]Victimisation (section 27 Equality Act 2010);

[4]Unauthorised deductions from wages (Part II Employment Rights Act 1996) do not succeed and are dismissed. JUDGMENT having been sent to the parties on 21 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant was employed by the respondent as a security officer between November 2019 until he resigned on 22 September 2022.

[2]The claimant says that he resigned in circumstances amounting to a constructive dismissal. He also makes complaints of direct race discrimination contrary to section 13 Equality Act 2010 (EQA) and victimization contrary to section 27 EQA. The claimant is of Black African ethnicity and Nigerian national origin.

[3]There is also a complaint of unauthorised deductions from wages. This complaint relates to car parking charges deducted from the claimant’s pay during a long period of sickness. This hearing

[4]I heard and decided the case sitting alone. The Tribunal office wrote to the parties in the week before the final hearing to let them know that there was difficulty in identifying lay members able to sit on this case. Options were provided to the parties of either postponing the hearing ( but noting that postponement may well result in a significant delay) or proceeding to final hearing with a judge alone. Both parties provided written consent to a judge hearing the case without lay members.

[5]A proposed timetable had been set out at case management stage. That timetable anticipated that day one would be taken up reading into the case and in initial discussions with the parties and that is what happened on day one.

[6]We started to hear the claimant’s evidence on day 2.

[7]The respondent’s witnesses gave evidence from late on day 3.7.1 Darryl O’Brien (DOB), Security Supervisor

7.2 Joseph Ryan (JR) Service Support Manager

7.3 Steve Whitehead (SW) Head of Facilities

7.4 Dan Reason (DR) Associate Director of Estates and Facilities

7.5 Joanne O’Gara (JOG) HR Business manager

7.6 Paul Featherstone (PF) Director of Estates and Facilities

[8]The parties had an opportunity to make submissions on day 7 before I considered the complaints and provided my judgment.

The issues

[9]These were identified and then refined during case management preliminary hearings. They are set out in the Annex attached. Findings of Fact The role of a security officer and relevant contractual terms .

Findings of Fact

[10]The claimant was employed as a security officer, based at the respondent’s Stepping Hill hospital site.

[11]The job description includes the following duties:-a. To protect staff, patients and visitors and reduce the fear of violence.

b. To support with the day-to-day management of car parking on Trust property.

c. Undertake bed watch duties as requested.

d. Provide appropriate responses to security incidents.

e. To ensure immediate response to criminal or offensive behaviour, demonstrating to perpetrators of criminal acts that their standards of behaviour are unacceptable and, where appropriate, involving the police.

f. To undertake administration duties commensurate with the post.

[12]The job description notes that, on occasions, the post holder may be required to use restraint techniques on individuals.

[13]The contract of employment includes the following:-a. Clause 4.1 – Place of Work: “You will be based at Stepping Hill Hospital. This is your normal place of work excepting that you may be required to work at any other location relevant to the performance of your duties in the interests of the business of the Trust, whether on a temporary or permanent basis as the Trust may direct. The Trust will, wherever possible, endeavour to consult with you about changes beforehand.”

b. A requirement for the claimant to provide 4 weeks written notice of resignation (clause 8.1)

c. An entitlement to pay during periods of sickness, in accordance with NHS agreements. In the claimant’s case this was an entitlement to 4 months full salary and 4 months at 50% of salary.

[14]Although no witness has been able to refer me to a written term, it is not in dispute that security officers were entitled to total break times of 1 hour and 17 minutes per 12-hour shift. The breaktimes were unpaid so officers would, understandably, want to ensure that they did use their break time. There were no set break times and officers took breaks throughout their shift when appropriate. They did not take a 1 hour 17-minute break time in one go and then have no other breaks. The shifts were 12 hours long and breaks were taken at different times during their shift. Other than issues with the claimant on 3 February 2022 particularly, there is no evidence that this system was not a workable and acceptable system. The arrangement worked for both parties.

[15]As a security officer the claimant worked in a team of 4. The respondent operated on the basis that it had 4 security teams each with 4 officers including a team supervisor. The teams worked shift pattern of 4 days on, 4 nights on and 4 days off. They worked 12-hour shifts, 7-7.

[16]Each team worked opposite or mirrored the hours of another team – so that at the end of a shift a team would hand over to the team that was mirroring its hours.

[17]Sometimes a security officer needed to swop a shift. Informal shift swopping arrangements between security officers were allowed. The claimant’s flexible working request

[18]The claimant made a formal flexible working request (FWR) in September 2021. The respondent had recently put in place an online FWR system. The claimant learned of this and submitted his request, using the online system. This is at pages 178 and 179.

[19]The claimant applied to work on day shifts only. The claimant had been regularly swopping shifts with a colleague in the team working opposite his team, called Mr. Hagan (SH). The application was to formalize the existing arrangements although the terms of the application made clear he was looking to make the change on a temporary basis, for 7 months only.

[20]The application was made on 3 September 2021. The claimant was emailed a copy of his application. The email (page 179) appears to have been automatically generated by the new system. On 14 September 2021, the claimant forwarded a copy of this email to the senior security supervisor Derek Wright (DW).

[21]On 20 September 2021) an HR assistant emailed Joseph Ryan (JR), the support services manager, to tell him that he had a flexible working application assigned to him (page 177). The email provided a link to the FWR application procedure but not the application itself.

[22]JR arranged to meet with the claimant. They met on 7 October 2022. JR did not have the claimant’s online application form. Had he logged in to the respondent’s system he would have been able to obtain it; but he did not know that.

[23]The claimant’s evidence about this meeting is that JR told him that his application was approved, and he would be given a letter on the same basis as Gill Smart had been provided (I refer to this below).

[24]JR’s evidence is that he told the claimant he would need to discuss the application with SH; that he did not tell the claimant that his application was definitely approved.

[25]JR’s evidence is also that he did not know about the detail provided by the claimant in the online application process. JR had dealt with FWR applications before, but those formal applications had been set out on a paper form.

[26]In the meeting, the claimant and JR also discussed whether the claimant could work shifts of 8am til 8pm. Shift hours were 7am -7pm (and night shifts, 7pm to 7am). The claimant had not provided that detail on his online application. In response to a question on the online application about what the proposed new hours were, he had answered “37.5” and had simply asked to work “flexi time.”

[27]JR made a file note of the discussion on 7 October 2021. In summary:a. It refers to a discussion about changing hours to 8-8 (above).

b. It notes that JR said that he would speak with SH and take advice from HR.

c. It also notes that JR told the claimant that he was happy for the existing informal arrangements to continue until he could get back to him.

d. It notes that JR told the claimant that he did not anticipate there would be an issue as similar arrangements had been agreed in the past, albeit with some conditions/guidance.

[28]The claimant has questioned the accuracy of this file note. As noted above, his evidence was that he was told his application was approved and that he would receive a letter on the same lines as Gill Smart (GS).

[29]I accept the file note as an accurate summary of the discussion. JR’s view, that he shared with the claimant, was that he expected that the arrangements would be OK – and it is more likely than not that he referenced GS. But the other issues noted in that file note were also covered.

[30]GS is another security officer and sometime earlier, she too had asked for a different work pattern for a temporary period (6 months). She put in her application at the same time as a colleague put in his own FWR application. Effectively the applications were joint. One mirrored the other (in terms of shift swopping for a 6- month period). That was not the case with the claimant; hence JR’s intention to speak with SH.

[31]Unfortunately, shortly after the meeting between the claimant and JR, SH started a period of absence due to sickness. He did not return until early December. JR met with SH following his return (file note at page 200). At that meeting, SH told JR that he was willing to exchange shifts with the claimant. JR told SH it could not be a permanent arrangement.

[32]JR had also by then discussed the issue with the respondent’s HR team. I find as follows:-a. That the HR adviser expressed concern that if JR agreed to the flexible working request, the change would be permanent. That was not something that JR was prepared to agree (and of course, was not what the claimant had asked for – but JR was not clear about that)

b. Generally, agreeing to a change in hours under statutory procedure requiring the consideration of different hours, does result in a contractual change for an indefinite period. There is nothing in the relevant legislation that provides for temporary or trial periods. It is more likely than not, that is why JR received the advice he received from HR; but without either JR or the HR adviser addressing directly that the claimant’s written request was for a 7-month period of flexible working.

[33]At the same time, the respondent was receptive to the claimant’s request and helped him. During the 7 or so weeks that SH was absent ( and the claimant must have known that SH was absent) the claimant was provided with day shifts only. In other words, the Respondent covered all night shifts (both SH’s and those that the claimant would have been working under his usual shift pattern) through overtime/agency work.

[34]On 6 December 2021, the claimant wrote to JR, DW and others to note a discussion that he had just then had with DW. This discussion ( or the claimant’s understanding from this discussion) was a result of “crossed wires” The claimant complained that he was told by DW that the arrangements would not continue. I find that was not the respondent’s intentions and that the claimant either misunderstood what he had been told or that he had been provided with inaccurate information.

[35]There is a file note of a discussion between claimant and JR dated 8 December 2021 (page 202). This file note records that the arrangements would not be permanent, but that JR confirmed that they could continue on an informal and interim basis.

[36]The claimant’s evidence is that this meeting did not take place, that the file note is a fabrication. I do not accept this. In deciding to reject the claimant’s version of events I have:-a. Heard from JR and I accept his evidence about the meeting.

b. Considered the wording of the file note. It strikes me as credible and contemporaneous.

c. Considered the fact that the claimant did not raise the issue of flexible working again until over 2 months later - 15 February 2022 – at which stage he decided to raise a large number of complaints (see below).

d. Accepted the evidence provided by JR that the claimant was not required to work a single night shift after August 2021.

[37]Whilst I have not seen a letter from the respondent to GS, I find that a letter was sent to her (and to Mohammed Saleem - the other security guard who had made the joint application with GS) providing the flexible working arrangements for a temporary period. The respondent could have improved its position with the claimant by sending him a letter setting out the arrangements- and the fact that they were temporary. There is however a difference in GS’s circumstances and the claimants. SH had not made a flexible working application. He had indicated that he was happy to swop shifts with the claimant but, stating that in a meeting and making a formal application for a change in shifts for a 7-month period is different. The arrangements with SH were working but informal. This difference is the reason why the claimant did not receive a letter formalizing the changes to his hours. His race was not relevant.

[38]The meeting on 8 December was a meeting to address the claimant’s letter of 6 December which was his appeal in relation to the flexible working application. He raised that appeal because he had received inaccurate information from DW. Complaints against DOB – prior to January 2022

[39]I set out below my findings about various complaints against the claimant’s supervisor, Darryl O Brien (DOB). In my findings I refer to an investigation. These are references to an internal investigation carried out by the respondent under its bullying and harassment procedure.

[40]The claimant alleges that, on 16 June 2021, DOB commented “there are too many Nigerian workers in the security department and no more will be employed here.” These are my findings:-a. As noted above, the claimant moved into DOB’s team in February 2020. In his evidence he described DOB’s discrimination prior to October 2021 as “subtle” If DOB made this comment in June 2021, as alleged, it was far from subtle. Yet, the claimant did not raise this complaint until 15 February 2022.

b. The evidence that the claimant gave in his witness statement about this complaint was effectively limited to the complaint itself.

c. The claimant’s evidence was not clear about whether he was present when DOB made the comment. At this hearing, his evidence is that it was a comment that was discussed on a night shift. When interviewed as part of the bullying and harassment investigation he noted that another employee (Jason Johnson) witnessed it.

d. Jason Johnson (portering duty manager) has progressed from security officer to his current role. When interviewed during the investigation, he stated that he had worked with DOB for 11 years and never witnessed any racist comments and had not had any issues with him.

e. Having considered the evidence, I have decided on a balance of probabilities that DOB did not make this comment.

[41]The claimant complains that DOB called him slow/lazy. In further information provided during case management, the claimant refers to 2 instances.a. He refers to information provided by a colleague, Fateh Baraket (FB), in an interview on 22 April 2022. That interview was part of the investigation.

b. He refers to a discussion with another colleague, Ryan Johnston ‘When Mr Ryan Johnston and I were in Mr O’Brien’s team, I confronted him for calling me lazy, he said: “we, the Supervisor and I, believe and see you as lazy.”

[42]When interviewed about the use of the term “lazy” during the investigation, the claimant said that DOB had made these types of comments about him to people in the security department but that he did not want to mention names. He suggested the investigation refer to Derek Wright, a senior supervisor in the security team.

[43]The investigator (Jennifer Kilheeney (JK)) asked various colleagues. All denied that they had heard DOB use this comment to describe the claimant.

[44]One colleague, Mark Sweeney, said that was simply not the type of comment DOB would make (page 278). Another (GS) also denied it, noting support that DOB had provided to the claimant (page 296).

[45]The person who the claimant said should be interviewed about this (DW) stated that he had not heard these comments (page 316/7).

[46]During this Tribunal hearing the claimant qualified this complaint, noting the alleged use of the term “slow” and accepting there was no evidence that DOB used the term “lazy.”

[47]During the investigation, FB told the investigator that he had heard DOB calling the claimant “slow.” This is what FB said “I remember once DOB said to me that Maxwell (the claimant) was too slow. My advice to DOB was to speak to Maxwell about it 1-2-1.”

[48]The claimant has not provided a date on which he learned about a comment that is now the subject of his complaint. A comment about being slow is consistent with episodes referred to in a file note of November 2020 (page 168) where, effectively, DOB pulled the claimant up for responding too slowly to 2 calls that month. DOB’s evidence (which I accept) was that he tried to discuss these issues with the claimant at the time and tried to get the claimant to acknowledge the file note about the incident that he had written but the claimant refused. The file note was put on the claimant’s file anyway.

[49]I make the following findings.a. The issues in the file note of November 2020 (at page 168) were raised because they happened. The issues are old now and were not understood at the time to give rise to a complaint from the claimant about DOB. That was not apparent until the claimant’s complaints in 2022 and then these proceedings. I accept the evidence of DOB and accept the file notes as accurate.

b. The reason why DOB may at some stage have referred to the claimant as being slow was because of the conduct described in the file note.

c. The claimant’s race was of no relevance to either the file note or the comment that FB had heard.

[50]I have further comments about the file note of November 2020:-a. The claimant did not raise a complaint about these file notes at the time of their issue – November 2020 – even though the claimant refused to engage with DOB about the incidents that DOB tried to raise with the claimant and refused to sign the file notes.

b. In turn, DOB did not escalate the issues that he was trying to raise with the claimant, even though he was dealing with an employee who refused to accept responsibility and would not engage in the supervision discussion that DOB tried to have with him.

c. When the claimant raised his complaints on 15 February 2022, he raised the incidents covered by the November 2020 file note to support a complaint that DOB was looking for flimsy reasons and an opportunity to damage the claimant’s record and “booting him out.”

d. DOB’s treatment of the claimant in relation to the incidents covered by the file note of November 2020 – and the claimant’s reaction to being spoken to by his supervisor - did not show this at all. The issues themselves and the claimant’s reaction to DOB trying to discuss matters with the claimant could have led to DOB raising the points further, particularly if he was motivated by wanting the claimant to be dismissed. But he did not.

e. The file notes were shown to the claimant, but he refused to sign them. The claimant was not provided with a copy. The claimant was not provided with a right of appeal. The claimant has sought to refer to the policies of other NHS trusts to assert that these things should have happened. The respondent does not have a policy stating that an employee should be given a copy of a file note. I expressed a view that this would in many circumstances be a good practice – but I note here that the respondent was open with the claimant about the file note and what it said, and the claimant refused to engage in a discussion. As for a right of appeal, the issues raised were addressed as informal standards setting; this was not formal disciplinary action and providing a right of appeal against such informal instruction would be counterproductive and disproportionate. Further, the respondent has policies such as a grievance policy or bullying and harassment policy which allow employees to raise complaints.

[51]CCTV camera being focused on the claimant The list of issues records this as having happened on 22 April 2022. During evidence it was noted that the claimant was absent due to sickness in April 2022. The date was clarified as December 2021. The evidence supporting this allegation is flimsy. The claimant accepted that he did not know who if anyone was in the office operating the camera. My finding, based on the evidence provided, is that this did not happen.

[52]Events of 3 January 2022. The claimant makes specific allegations about being ignored and isolated on this day. In response, the respondent has disclosed 5 incident report forms for the day, 2 of which refer to the claimant attending to incidents as part of a team. He attended one in the morning and one in the afternoon. One of his colleagues ( MS) was required to attend all 5 incidents; another (GS) attended 3 incidents and the fourth member of the team (DOB) attended 2 incidents.

[53]In his internal complaint of 15 February 2022, the claimant did not raise a complaint about his treatment on 3 January 2022. That date appears to have been first raised during case management of these proceedings. But it has been raised and consequently I have had a snapshot of a working day with the relevant security department on a date that the claimant (not the respondent) chose.

[54]I note from the documentation generated for this day that is no indication of a 3 to 1 approach; there is no indication of the claimant being isolated or treated differently. I comment further on the complaint of being isolated. 55. 4 January 2022 It is alleged that the claimant was isolated on this day by being sent on his own to do some car park duties. But tasks concerning the car park are within a security officer’s role. The claimant’s complaint is that whilst some car park duties are generally carried out by one security officer working alone, other duties are carried out by 2 or 3 officers working together.

[56]I have decided that the claimant’s evidence concerning car park duties on 4 January 2022 is not reliable. These are my reasons:-a. 4 January was not specifically referred to in the claimant’s complaint of 15 February 2022.

b. The claimant’s complaint did refer to favoritism in the sharing of tasks but what he particularly referred to was desk duties, not car park duties. See para f at p234 (the claimant’s internal complaint letter) and notes of his investigation interview at page 270. .

c. The issue regarding car park duties and specifically issues on 4 January 2022 did not arise until the claimant provided further information in this case.

[57]I have also decided that the claimant’s evidence is not reliable about another issue arising on 4 January 2022; about being required to attend an incident concerning a female patient, without the presence of a female security guard. The claimant mentioned this in vague terms when being interviewed as part of the internal investigation – para 30 at page 270 (he did not mention a specific incident or date). There is no security report about an incident concerning a female patient on 4 January 2022. The date itself was only raised by the claimant when providing further information about this case during case management. On balance I have decided that the claimant was not asked to do anything inappropriate on 4 January 2022. 58. 3 February 2022. On this day, the claimant was working his usual 12-hour day shift – 7am til 7pm. During the morning, the clamant was instructed by DOB, to attend a training session, from 10am until noon.

[59]One of the complaints in the list of issues was that him being sent on training was a discriminatory act. But he accepted when giving his evidence that being given an opportunity for training was not less favourable treatment and he withdrew this complaint. It was also noted and accepted that others in the team would in due course be sent to attend and complete the same training.

[60]In his statement the claimant says this “He ( meaning DOB) sent me away to training so he and other 2 white colleagues would do his usual 3 to 1 work pattern. They stayed together in the office, patrol together, had breakfast and lunch together.” I do not find that the claimant was precluded from breakfast because he was required to attend training at 10am – some 3 hours into his shift.

[61]When interviewed (reference at page 267) the claimant provided some evidence about what he did in the 3 hours before the training. He referred to the “usual morning duties” and then to him collecting ID cards that needed to be updated. He had spent most if not all the first 3 hours of his shift in the security office undertaking administrative tasks and that is what he was doing when asked to go on training.

[62]During the same interview (p 267) the claimant said that he went for his break at about 12 noon. I find that it was probably a few minutes after 12 that he started his break.

[63]At 12.27pm, DOB received a call that urgent back up assistance was required in the Oasis building. This is a building on the Stepping Hill site but from which another NHS Trust called Pennine Care provide mental health services to in patients and outpatients. He was told that there was a patient in possession of a large knife.

[64]When DOB received the call, he was in the staff canteen with GS and MS. He decided to instruct them to leave their lunch and attend immediately, He also decided that he should do the same. On his way to the Oasis building, he called the claimant and asked him to attend what appeared to be an urgent and serious incident.

[65]There are various reports of this incident. The report form completed by DOB records “12.27 hours received a bleep from ext. 5756.” The Pennine report (213) refer to the police being called at 12.15pm. A police crime report (216) refers to the time reported as 12.40pm.

[66]I find the time DOB recorded as receiving the “bleep” to be accurate. DOB called the claimant a few minutes after this – whilst making his way to Oasis. About 12.30pm therefore. The claimant by that stage had been on a break for around 25 minutes.

[67]The claimant answered the call from DOB. He refused to comply with DOB’s instruction. He told DOB he was on his lunch break and could not attend. DOB emphasized the apparent urgency and need for back up. The claimant persisted in refusing to attend. It is not clear ( as neither the claimant nor DOB has provided evidence on this) who ended the call. DOB attempted to call the claimant again, but the claimant did not answer his subsequent calls.

[68]The claimant gave evidence citing a number of reasons why he did not need to attend the incident when his supervisor asked him to. These were:-a. That Oasis has their own security officers. They do not. They do have mental health workers who are experienced in restraining techniques. But they are not security officers. They do not wear body armour – including stab vests; they do not wear body cameras; they are health and care providers who are, by the very fact of the type of patient they are caring for, trained in restraint techniques. But they are not a security presence.

b. That it was a police matter. Ultimately it was but I also find that the purpose of an onsite security department is to ensure first and rapid response on the respondent’s site.

c. That 3 people were enough to deal with the situation. I find DOB did not know ( and could not have known) this. He and 2 colleagues were attending an incident involving a patient with a large knife. It was reasonable of DOB to require another officer ( the claimant) to attend.

d. That there was a bleep but not a fast bleep. The claimant went to some lengths in his complaint and in these proceedings to explain different types of call signals. But this evidence does not explain his decision to refuse a reasonable instruction provided by his supervisor.

[69]I also note and contrast the claimant’s complaint of his colleagues isolating him –and being given jobs by himself. Here he was being asked (instructed) to work as part of a team of 4. He refused.

[70]As it was, the incident was contained following the arrival of the security team. Whilst GS and MS were required to remain at the Oasis building for some time, DOB returned to the security office.

[71]By this stage DOB had received a call from an agency guard who was on duty in the hospital’s Accident and Emergency reception area. The call was to remind DOB that the agency guard needed replacing/relieving so he could take a lunch break. On his return to the office, DOB asked the claimant to take over from the agency guard. The claimant refused. He told DOB that he was completing some security card updates and that he had still not had his lunch break. He was instructed to leave these and relieve the guard. He refused.

[72]In his interview during the investigation DOB told the interviewer (JK) that the claimant had said that DOB was lying about the call out being about a man with a knife. He repeated this evidence during this hearing. I accept DOB’s evidence.

[73]DOB admits to being angry at that stage. He tried to contact his line manager (JR) only to be told he was in a meeting.

[74]DOB decided to relieve the agency guard himself.

[75]DOB did not speak with the claimant again about the events of 4 February. He recorded his version in a file note that he put on the claimant’s file. He did not share this note with the claimant. DOB shared that file note with his manager (JR) but there is no evidence that DOB took the matter further. By the start of the claimant’s sickness absence on 18 February 2022, neither DOB nor JR had taken any further action.

[76]The 2 other team members also and separately raised complaints about the claimant’s conduct; effectively that he had let them down, that he had been instructed to help them with a dangerous incident and he had refused. Their reports are at pages 445-447.

[77]Working relations within this security team of 4 were poor between 4 February 2022 and the beginning of the claimant’s sickness absence on 18 February; the issue was left unresolved in this time. I am sure that the claimant did feel isolated during these 6 or so working days in that period (and I note the terms of his email of 17 February 2022 stating that it was tough working with DOB at the time). This isolation was as a result of the break down in relations following the claimant’s refusal to comply with DOB’s reasonable instructions.

[78]One of the claimant’s complaints is that DOB did not give him feedback, specifically referring to 3 February 2022. Feedback was given to the claimant in terms of his own behaviour; his refusal to comply with instructions. In his evidence the claimant acknowledged this.

[79]Further feedback would have been helpful and might have assisted the position, noting my findings about the atmosphere within the team after 3 February up to the date that the claimant began his period of sickness. However, DOB’s intention was that the claimant would receive more feedback. He had decided to escalate the issue to his manager, JR. DOB cannot be criticized for this. In his discussions with the claimant on 3 February 2022 he was getting nowhere. Those discussions had even reached the point where the claimant accused DOB of making the incident up. The reason that DOB decided not to persist with his discussions with the claimant but to escalate to his manager was the claimant’s stubborn and uncooperative behaviour together with his accusation that DOB had lied about the incident. Other evidence regarding working relations.

[80]Before I move on to the issues concerning the claimant’s complaint of 15 February 2022 and subsequent actions, I note some further findings I have made about working relations.

[81]I have carefully considered the claimant’s complaints that he was isolated. I have considered this as effectively a complaint of a workplace culture in which the white employees worked together and isolated the Black employee; of the claimant being given jobs that others preferred not to do, and which kept him isolated.

[82]In considering these complaints and making findings, I am mindful that direct evidence of discrimination is rarely available. Also, that, in many cases, discrimination will not be intentional but based on an assumption that (in this case) a Black employee would not fit in.

[83]I have considered evidence provided showing DOB’s assistance including in relation to the assistance that DOB provided relating to the claimant’s pay (page reference at 169-170). DOB was the claimant’s supervisor, and the claimant might therefore expect that he would look after his interests. That was the claimant’s response when dismissing the point put by Ms. Amartey that DOB had helped him) But I find that DOB did not need to engage in the issue. He could have simply referred the claimant back to payroll for example. He didn’t. He decided to intervene personally to try to help the claimant resolve pay issues he was having.

[84]I have also seen a staff review form of October 2021 (196-199). Again, this is generally positive and indicates the 2 employees (claimant and DOB) were engaged in the process. The claimant comments “I love team spirit within the department and that each individual brings a different strength” Here the claimant has chosen to comment on exactly the issue that he seeks in these proceedings to say was not there for him.

[85]I also note the absence of any recorded or reported issues between the file notes of 2020 and the 3 Feb 2022. This does not fit with the picture that the claimant seeks to portray of isolation by others and attempts being made to get him in to trouble and dismissed. The claimant’s complaint.

[86]By letter dated 15 February 2022 (pages 233-236) the claimant made various complaints. It is headed “complaint without prejudice about bullying, harassment and discrimination I have been experiencing at work; particularly in my team.”

[87]The respondent decided to investigate the claimant’s complaints under the bullying and harassment policy. I note here that the claimant has criticised of the decision to use the procedure in this policy rather than dealing with the complaints under the respondent’s grievance policy. Those criticisms are unfounded. The bullying and harassment policy is there for these types of complaints. Also, an employee who raises a complaint under this policy and who is dissatisfied with the outcome, can raise their dissatisfaction as a grievance. The bullying and harassment policy expressly provides for this.

[88]The claimant also criticised a failure by JR to acknowledge his complaints of 15 February. Not just that, he has alleged direct race discrimination in not doing so. He continued with that complaint after he had an opportunity of considering the relevant documents. I note here:-a. The claimant did not send those complaints until late afternoon (4pm) on 15 February 2022.

b. On 16 February at 10.57am JR made contact with the respondent’s HR department, sent them the complaint letter and sought advice. In his email to HR, he noted that the claimant’s next day in work was scheduled to be 18 February. He also sent HR the file notes that DOB, MS, and GS had made about events. Each was critical of the claimant’s actions on 3 February.

c. On 17 February at 03.19am the claimant sent an email to his trade union – Unison – noting that he had complained to JR 2 days ago and that it was causing a lot of stress. The Unison officer asked if the claimant wanted them to contact JR for an update.

d. The Unison officer made contact and by the afternoon of 17 February, arrangements had been made for JR’s manager- Stephen Whitehead – to have an initial meeting with the claimant on his return to work on 18 February 2022. Stephen Whitehead became involved because JR was on annual leave on 18 February.

e. Also, on 18 February (238) DW provided the claimant with information about staff support services that he could access (page 238).

f. The respondent’s grievance policy requires a manager to respond within 5 days of receiving the complaint outlining the process to be followed.

[89]Having involved Ruth McNally of Unison, the claimant also told her that he had not had his flexible working request resolved and had made an appeal. Ruth McNally contacted JR about this who sought to reassure Ruth McNally (and therefore the claimant ) by email of 2 March 2022 (page 250).

[90]The claimant was contacted by JR on 21 February 2022. JR asked the claimant to consider an option of mediation. The claimant decided that he did not want this option and informed the respondent of this the following day, 22 February. As a result of this decision, the claimant was told by letter of 28 March 2022 that a formal investigation would take place under the Bullying and harassment policy. He was provided with draft terms of reference for review and told that a manager from a different department, Jennifer Kilheeney (JK), would carry out the investigation.

[91]The claimant is critical of the delay in providing the claimant with an outcome to the grievance. I note here a 5-week period between the claimant telling the respondent that he was not interested in judicial mediation and the letter of 28 March telling him what the next steps were. Within this time:-a. The claimant became absent due to sickness.

b. A person had been identified (JK) to carry out an investigation.

c. Terms of reference for the investigation were drawn up.

[92]The terms of reference were confirmed by letter dated 1 April 2022 and JK wrote to the claimant on 4 April 2022 setting out what she will be investigating ( page 263).

[93]JK then interviewed the claimant on 22 April 2022. Notes of that meeting are at 265-274.

[94]JK then arranged interviews with other relevant employees. These took place between 29 April and 30 May. 11 interviews were held.

[95]By letter dated 5 May 2022 (280) JK told the claimant that she hoped to have the interviews concluded by week beginning 16 May. They did not conclude until a couple of weeks after that expected date.

[96]The investigation report was dated 6 June 2022 (page 344). This was received and reviewed by SW who then wrote to the claimant on 15 June 2022 setting up a meeting with him on 21 June 2022.

[97]Unfortunately, the claimant did not receive this invite letter until 20 June 2022 and contacted SW to explain this and to ask if the meeting could be by phone but on another day.

[98]The meeting took place by Zoom on 5 July 2022. The claimant asked to record the meeting but told that meetings are not recorded. The claimant went ahead and recorded the meeting anyway, without telling any of the respondent’s participants. His evidence (which I accept) was that he decided to record it because he had by then lost trust in the respondent.

[99]The claimant was told the outcome. He was told that he would receive a letter setting out everything in writing. That was confirmed by letter. Unhelpfully the letter is undated. I find it was sent and received shortly (a week or so) after the meeting on 5 July. Had it been longer than that then the claimant would have chased the outcome letter. He was expecting it.

[100]The meeting did not go quite as the respondent wanted. They intended it to be a meeting at which they informed the claimant of the outcome of the bullying and harassment investigation – much like a delivery of a judgment such as this. But it was a meeting and the claimant thought, not unreasonably, that he would be allowed to participate, and he responded in the meeting to the conclusions as he had told them. Managing sickness and attempts for the claimant to return to work. .

[101]This was also referred to in the meeting of 5 July 2022. The claimant told SW that he was following the procedure, that he had had a meeting with Occupational Health; that he had also had a meeting with DW about a return to work. (p364).

[102]The possibility of the claimant’s return to work was also raised in his interview with JK on 22 April 2022. JK told the claimant she would recommend that he be moved into a different team pending the outcome of the investigation once he was fit to return to work.

[103]I have also seen an Occupational Health report of 28 April 2022 that notes that the claimant was not fit to return to work as at the date of the occupational health appointment (also 28 April 2022). The report also stated a view or hope that the claimant would be fit to resume work in the “next short number of weeks.”

[104]The claimant was not however ever declared as fit to return to work by his GP. I have seen various fit notes that stated the claimant was not fit to work ( even with adjustments such as a relocation to a different team). The hopes expressed by the OH Occupational Health physician therefore did not come to pass.

[105]DW wrote to the claimant on 30 June 2022 after he had held an absence review meeting with the claimant. The letter was sent shortly before the investigation outcome meeting of 5 July.

[106]The following was clear from the letter that DW sent (Page 366):-a. That the claimant was still not well enough to return to work. His medication had recently changed – and also noting that the delay to receiving an outcome to his complaints as prolonging problems.

b. That DW told the claimant that he would continue to be reviewed by OH.

c. That some support mechanisms were discussed and agreed including another OH appointment and report.

d. That another review meeting was arranged for 28 July 2022.

e. That the letter included an offer for the claimant to make further contact with DW.

[107]On 6 July 2022 (the day after the outcome meeting with SW) Sarah Pickering from the respondent’s HR department wrote to DW asking that he make the further referral to OH. Sarah Pickering also told DW that the claimant had told her “that he will not be able to return to his current team but will be able to work in another team.”

[108]Another appointment was arranged for the claimant – 16 August 2022.

[109]The claimant did not attend that appointment. He had by then sent a letter of resignation dated 12 August 2024.

[110]One of the claimant’s complaints is that DOB was not redeployed pending investigation of the claimant’s complaints against him. He compares himself with GS. It is not disputed that some time earlier than the claimant’s complaint, GS had raised a complaint against her then supervisor, Chris Dawson (CD). The claimant’s complaint appeared to be based on CD having been redeployed pending the investigation of GS complaints. On being questioned about this however, the claimant accepted that it was GS rather than CD who was redeployed.

[111]One of the complaints that the claimant makes is that the respondent did not follow OH recommendations. This is a reference to him being able to return to work in a short number of weeks after the OH appointment on 28 April. But the fit notes show that the claimant did not become well enough to return. (Complaint 7.7 and 12.17) Portering Duties as an option to aid return to work.

[112]The possibility of the claimant returning to work in the role of a porter was raised with the claimant. JR managed both porters and security staff. He knew that there were vacancies that needed to be filled; it would keep the claimant away from DOB; it would solve the issue of daytime working (as there were vacancies for daytime porters); there would be no loss of pay as he would remain on the same grade, grade 4.

[113]Transferring the claimant within the security department would not be straightforward. The claimant had already ruled himself out of another of the 4 teams as some years earlier he had asked to move from a team headed up by another supervisor. When interviewed the claimant confirmed that he would not wat to return to that team (reference at page 362). This left 2 teams and a need to identify within those teams someone who would be willing to work nights only so that the claimant’s day shifts could be swapped. These arrangements were discussed at length with the claimant on 5 July 2022 (pages 362-364) It is relevant to note that, by contrast, the porter option barely received a mention at that meeting.

[114]The claimant also complains that he was “pushed” to porter duties on other occasions. The claimant’s evidence is that he spoke with JR on 20 and 24 May and with an HR adviser, Sarah Pickering on 19 July 2022 when portering was raised as an option. When answering questions in cross examination, the claimant accepted that there was nothing wrong in putting portering as an option to him. His issue was that the respondent was insisting that he return as a porter.

[115]JR and members of the HR department did sometimes mention portering as an option for the claimant. As already noted, there was much to commend it as a solution. But there is no evidence of an insistence that he returns there. Had JR insisted in a telephone call in May 2022 then it would have been dealt with in the attendance management review on 30 June. It was not. It is not referred to in the letter sent following this meeting (page 366). Not even an option of a porter role is mentioned.

[116]The claimant also complains about a telephone call on 19 July between an HR adviser and the claimant. On the claimant’s own evidence this call was about a grievance process that he had begun having been dissatisfied with the outcome of the bullying and harassment complaint and investigation. The HR Advisor had no operational management responsibilities. I find that the HR Adviser did not tell the claimant that he had to return to a porter role.

[117]Finally, I also note that the issue relating to a porter role, did not feature as a reason for the claimant’s resignation as set out in his resignation letter of 12 August 2022. That is where I turn to next. The claimant’s resignation

[118]The claimant set out the following reasons for resigning in a letter dated 12 August 2022:-. As my employer you failed to put right the following issues which badly affected my health:• Did not handle properly/ uphold my grievance, I now consider my position untenable.

• Being subjected to unreasonable and unfair treatment, bullying and harassment.

• Victimisation, and racial discrimination I was suffering in the workplace.

• Intolerable working conditions under previous and present supervisor.

• Wrong deductions from wages: carpark charges even though I was not at work, etc. In my grievance letter dated 15/02/22, meetings and response to outcome of your investigation concerning said grievance dated 01/08/22, I set out the basis on which I believe you seriously breached my contract and caused the employment relationship to be irrevocably broken due to your behaviour as an employer.

[119]Leaving aside the final issue referred to (deductions for car parking even though the claimant was not at work) I accept that these are the reasons the claimant resigned.

[120]Of these, the most significant was the decision not to uphold the claimant’s complaints (now being referred by him as his grievance). By this stage, the claimant had complained that the complaints made by him in February 2022 should have been considered as a grievance and the grievance policy (not the bullying and harassment policy) should have been followed. The reference to “did not handle properly/uphold my grievance” is a reference to the process which began in February 2022; not the grievance that the claimant subsequently raised because he was dissatisfied with the outcome of the original (Feb 22) complaint.

[121]Elsewhere in his resignation letter, the claimant commented that the delay to the outcome of his complaint, together with his sickness absence, delayed his resignation. It was not the delay that caused him to resign, or even contributed to his decision to resign. In these proceedings, the claimant has referred to a delay of 6 months. It was nearer to 4.5 months. It was the outcome to the investigation into his complaints that was the most significant cause for his resignation. Had the outcome been satisfactory to the claimant then the claimant would not have resigned. Had the outcome been as it was, but provided more quickly, then the claimant would still have resigned. That is effectively what he said in his resignation letter.

[122]The reasons set out in his resignation letter are mainly those reasons for resignation provided in the list of issues. The differences are:a. The list of issues does not include the car park charges.

b. The resignation letter does not expressly include the handling of the flexible working request, although of course the claimant did raise this in his complaint.

c. The resignation letter does not refer to an insistence that he return to work as a porter.

[123]The claimant did however mention the porter role issue soon after he sent his resignation letter. This was in an email from the claimant to SW of 23 August 2022. In that email the claimant alleged he had been told he would have to return to the same security team or work as a porter, that he had been given that stark choice. The claimant was not given that stark choice. As at the 12 August 2022 (date of resignation letter) the claimant remained unfit to work; he was going to attend a second occupational health appointment; return to work options were still being explored. Car Parking Charges

[124]One of the complaints made in this claim is a complaint of unauthorized deductions from wages. This relates to car park charges.

[125]The list of issues does not include this as a reason for his resignation.

[126]The respondent provided employees with an opportunity to purchase a car parking permit which would allow them to park at the hospital.

[127]The claimant purchased a permit. He completed an application form which is at page 165/6. This is dated 13 November 2019. The cost of a permit depended on the pay scale grade of the employee applying. The higher the grade the more the employee was required to pay. The claimant was required to pay £18 per month.

[128]The claimant agrees that the application form (which the claimant has signed in agreement) includes authorisation for deductions to be made from the claimant’s pay. This is what is included on the form:- “By making this application I authorise my salary to be deducted by the required car parking fee for my salary in return for which I will receive car park access, subject to the terms and conditions of the Car Parking Policy.”

[129]The claimant’s case is that, whilst he accepts that he agreed this term, the respondent did not tell him that deductions would continue during a period of sickness.

[130]The term authorising deductions from pay is clear. The deductions were authorized. There is nothing to indicate any difference during a period of sickness. I also note:-a. that the administration of what is on its face a straightforward scheme, would become very difficult if refunds were given from the monthly payment of £18 for periods of sickness.

b. Where an employee knows they will be absent for an extended period, I have not seen anything to stop them cancelling their car park permit. Comments made by DW.

[131]DW was interviewed by JK as part of the investigation on 29 April 2022. The following is an extract of the note of that interview: Q. Do you think there is an issue with Darryl working with ethnic minorities. DW. He certainly tried to keep away from his team. Q. How has he done that? DW. Whenever we have put somebody of ethnicity on his team, he suggested they would be better off with other teams. Q. Have you got an example? DW. Not without going through paperwork. Q. Did Ali Jailow and Barakat work in Darryl’s team? DW Ali not only on overtime. Barakat yes. Q Why did Barakat leave? DW We were short staffed on another team, and he moved over to fill that gap. Q. Were there any concerns raised? DW. No Q. You mentioned that Darryl tried to keep ethnic minorities away from his team. Was that escalated? DW No Q Why? DW. We struggled to get evidence to support that. All hear say. Q Has anybody else approached you regarding his behaviour? DW. No

[132]One of the claimant’s complaints refers to the comment made by DW about DOBs reluctance to work with ethnic minorities? JK interviewed other members of the security department including minority ethnic employees. Those others interviewed made clear that they had never had issues working with DOB. Grievance

[133]Finally, I note the claimant’s grievance dated 1 August 2022 and the process that followed. The claimant had by then decided to resign and therefore this played no part in that decision. It is not referred to in any of the other complaints. Submissions

[134]I heard submissions from both parties. Ms. Amartey also provided written submissions.

[135]I have taken these submissions into account when making my findings of fact and reaching the conclusions set out below. The Law Time limits

The Law

[136]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.

[137]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.”

[138]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.

[139]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. I 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.

• 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”)

[140]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.”

[141]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.

[142]I 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.’

[143]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).

[144]Section 23(1) EqA requires that there to be “no material difference” between the claimant’s position and the 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

). Victimisation

[145]Section 27 Equality Act 2010 is relevant here. It prohibits a person ( the claimant) from being subjected to a detriment by another person ( the res[pendent) because the claimant had done a “Protected Act.”

[146]A protected act is defined at section 27(2) which provides as follows. “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.

[147]Where a claimant has shown that he has been subjected to a detriment, the Tribunal has to consider whether that detrimental treatment was because of the protected act rather than whether the treatment would not have happened “but for” the protected act. On this point, we note the Court of Appeal’s comments in Greater Manchester Police v Bailey

[2017] EWCA Civ 425

particularly at paragraph 36. . Burden of Proof

[148]I must apply the burden of proof provisions under section 136 EqA when considering complaints raised under the EqA.

[149]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.”

[150]I 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).

[151]I also note that there can be occasions, particularly where a claimant is relying on a hypothetical comparator (as with some of the allegations 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, I 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.

[152]Finally, on the issue of burden of proof, I am 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.” Conclusions The complaint of unauthorised deductions from wages.

Conclusions

[153]The claimant complains that deductions for car park permit during his periods of sickness were not authorised.

Conclusion

[154]The deductions were authorized by the claimant under the terms of the application form dated 13 November 2019. The complaint of constructive dismissal

[155]The alleged behaviour which the claimant says made him resign is set out in the list of Issues under 7.1 to 7.7. My conclusions in relation to each issue raised is I believe clear from my findings of fact. 7.1 Mr. Ryan’s decision to decline the Claimant’s flexible working request of 3 September 2021 despite promising him a letter like the one issued to his colleague, Mrs. Smart when hers was approved. Conclusion to 7.1.

[156]The claimant was allowed to work flexibly in accordance with his request. The formal flexible working request was not handled well but the claimant’s flexible working was not adversely affected by his. 7.2 Mr. Ryan’s failure to acknowledge and/or action the Claimant’s appeal against the decision not to grant his flexible working request. Conclusion to 7.2

[157]Mr Ryan did acknowledge the claimant’s appeal. He met with him on 8 December 2021 and confirmed continuation of the informal arrangements. This was satisfactory to the claimant at the time. He did not complain about flexible working until he raised his bullying and harassment complaint on 15 February 2022. 7.3 Mr. Ryan’s failure to acknowledge the Claimant’s grievance of 15 February 2022. Conclusion to 7.3

[158]The claimant’s “grievance” (his complaint) was acknowledged quickly. An initial meeting was arranged between the claimant and SW as early as 19 February 2022 (just 4 days after the grievance was lodged). JR also acted quickly on receiving the complaint by informing the respondent’s HR team about the grievance and looking for guidance. 7.4 The Respondent’s failure to redeploy Mr. O’Brien whilst the Claimant’s grievance was being investigated; an action which the Respondent had previously taken when Gillian Smith had raised concerns regarding her previous supervisor, Mr. Chris Dawson. This was despite the fact the Respondent was on notice of the nature and extent to which Mr. O’Brien’s actions had had a significant and adverse impact on the Claimant’s mental health. Conclusion to 7.4.

[159]The respondent was in ongoing discussions with the claimant about redeploying him away from the team headed up by DOB – either temporarily or permanently. This was consistent with the treatment of GS following her complaint against her supervisor. Further, the claimant was absent from work during the investigation – there was no need therefore to redeploy anyone at that stage. 7.5 Placing undue pressure on the Claimant to return to work, and to return as a porter thereby removing himself from the security team. Conclusion to 7.5

[160]No such pressure was placed on the claimant. Being redeployed to porter duties was an option for the claimant but there was no undue pressure. 7.6 The significant delay in investigating and reaching a determination on the Claimant’s grievance, despite the serious nature of the same and the sustained adverse impact this was having on the Claimant’s mental health. Conclusion to 7.6

[161]Complaints such as those raised by the claimant should be investigated with reasonable speed. Leaving these types of issues outstanding for long periods is unhelpful to working relations. Given(1) the extent of the claimant’s complaints and

(2) the need to identify those complaints from the long complaint document submitted

(3) the claimant’s sickness absence

(4) the number of employees to be interviewed then a considered outcome was bound to take some time. Ideally the outcome would have been provided more quickly; but it was not the type of complaint that was reasonably able to be investigated and concluded in a few weeks.

[162]Unfortunately, Employment Tribunals do see delays to processes in organizations such as NHS Trusts. That is not to excuse them, but it is an unfortunate feature at times. In this case, the periods of delay that is difficult to excuse is this initial stage between 22 February 2022 and 28 March 2022. It should not have taken 5 weeks to get back to the claimant with the terms of reference. It is also apparent that progress was being made in making arrangements for the investigation to begin. The claimant’s complaints were not being ignored.

[163]In any event, it was the outcome rather than the time that the outcome had taken that led to the claimant’s resignation. See my findings of fact. 7.7 The delay in receiving the grievance outcome, which did not address all concerns raised by the Claimant in his grievance, and especially ignoring Occupational Health Medical Report recommendations and rather pushing the Claimant who is the victim to go to porter during zoom meeting of 05/07/22 was the final straw. Conclusion to 7.7

[164]This complaint is in large part a repetition of the complaints under 7.5 and 7.6. I add to the conclusions under 7.5 and 7.6 that the respondent was trying to find a way that would be acceptable to the claimant for him to return to work. The respondent also acknowledged the claimant’s ongoing sickness and had arranged for another occupational health appointment. There is no evidence of anyone “pushing” the claimant into a return to work either as a porter or a security officer or any other role.

[165]The List of issues identifies the following questions:-8.1 Did the respondent conduct itself in the way the claimant alleges?

8.2 Did the respondent have reasonable and proper cause for that conduct?

8.3 Was the conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence?

8.4 Did the claimant resign in response to the breach?

8.5 Did the claimant affirm the contract?

[166]The response to the first of these questions is the respondent did not conduct itself as the claimant alleges – see conclusions to 7.1 to 7.7 above.

[167]In so far as the delay to providing an outcome to the complaint of 15 February 2022 was unreasonably long; moving to the question at 8.4 – that was not a reason for the claimant’s resignation. Further (in response to the question at 8.3) the extent of the delay was not by itself calculated or likely to destroy or seriously damage trust and confidence. The claimant was not dismissed, and the complaint of constructive unfair dismissal fails and is dismissed. The complaints of direct race discrimination

[168]Some of the conclusions below refer to time limits. Early conciliation commenced on 26 August 2022. All complaints predating 26 May 2022 are, on their face, out of time unless they are part of a continuing act, or I decide it is just and equitable to extend time. 12.1 On 3 February 2022 Mr. O’Brien tried to bully the Claimant to attend a job while he was on a break. The claimant says on other occasions Daz and Jim, white colleagues, were not required to attend an incident whilst on break. Conclusion to 12.1

[169]This complaint is out of time. I have decided that it is just and equitable to extend time because the evidence concerning the events of 3 February is available and it is clear that the claimant first raised this complaint ( albeit through the respondent’s internal procedures) soon after the event itself. Other than having to respond to the complaint, the respondent is not prejudiced by this extension of time.

[170]DOB could not have known that he had decided to take a break when he called him on 3 February 2022. The claimant told DOB that he was on a break, but DOB still required his attendance. This was consistent with his expectations of the other 2 members of the team as they were also on a break. The claimant has not provided examples of other occasions.

[171]The instructions given to the claimant on this day were reasonable. See findings of fact at paras 58-79. 12.2 Mr O’Brien often asked the Claimant to leave a job while others were allowed to use their initiative and complete a task without interruptions. The claimant says on 3 February 2022 he collected staff ID cards to update for access and Mr O Brien said leave it for Mrs Smart to complete and go to training. Later that same day the claimant started to assist staff who were waiting due to trouble with their ID cards and Mr O Brien said leave what you are doing I will do it. I need you to give Taurus Guard a break at A & E.

[172]See my conclusion above regarding time limits and events of 3 February 2022 at paras 58-79.

[173]I have no criticism of the requests/requirements being made of the claimant on 3 February 2022. One person was needed for a training place. The claimant was selected having spent the previous 3 hours in the security office. Later that day the claimant was asked to relieve an agency guard so that guard could have his lunch. At that stage, the claimant had spent further hour or more in the office either on a break or carrying out office-based activities. His colleagues were engaged on the incident that he refused to attend. DOB’s instruction to him to relieve the agency worker was reasonable and the claimant’s race was irrelevant to DOB’s instructions. 12.3 Mr O’Brien ignored and isolated the Claimant when they were working on the same shift. Mr O Brien went on patrol with Mrs Smart and Mr Sweeney on 3 January 2022 leaving the claimant to patrol alone, patrol usually done in pairs or all 4 together.

[174]This complaint is, on its face, out of time and I have decided that it is not just and equitable to extend time. The claimant did not raise any complaints about his treatment on this day in his internal complaint. It was not mentioned until he was required to provide more detail about his complaint which he did on 3 November 2023. The respondent’s witnesses are disadvantaged in being asked, nearly 2 years later, to recollect events of what appears to have been a standard working day.

[175]In any event, based on the evidence provided, I find that there was no direct race discrimination. The records show that the security team on that day handled 5 incidents. The claimant was engaged, with colleagues, on 2 of these incidents.

[176]Separately but as noted in my findings of fact, I accept that over the period from 3 February to the start of the claimant’s sickness on 15 February 2022 the claimant felt isolated. But this had nothing to do with his race. His colleagues were unhappy about the claimant’s actions on the 3 February 2022 and had raised complaints about them. 12.4 Mr O’Brien did not share jobs fairly and equally. Mr O’Brien sent the claimant away to training so he and other two white colleagues would do his usual 3 to 1 work pattern. On 3 February 2022 they stayed together in the office, patrol together, had breakfast and lunch together. 4 January 2022 On this very cold day, Mr O’Brien asked me to do car park duties; check car parking, spaces, fix payment machines, etc. we usually do this in pairs or all of us together. Said other 2 colleagues sat in office to take calls. We were on standby duties in A&E, Mr O’Brien answered a bleep and asked me to attend to it alone whilst he and the other 2 colleagues remained standby in A&E. It was a job about troublesome female patient in ward C6. We do not do 1 male to 1agitated female, because most times that involve restraint, and I could be in trouble if she accused me of touching her inappropriately.

[177]This complaint is, on its face, out of time and I have decided that(other than the complaint about being sent to training on 3 February 2022) it is not just and equitable to extend time. As with the complaint of 3 January 2022, the complaints relate to standard working days. The claimant did not raise any complaints about his treatment in his internal complaint. These complaints were not mentioned until he was required to provide more detail about his complaint which he did on 3 November 2023. The respondent’s witnesses are disadvantaged in being asked, nearly 2 years later, to recollect events of what appears to have been a standard working day (or possibly 2 standard working days if the call out to the incident involving a female patient did not occur on 4 January 2022 .

[178]Further, such evidence as there is does not support the claimant’s case.a. my conclusions regarding team working on 3 January 2023 for example are relevant;

b. car park duties and call outs to incidents are part of the duties of a security officer. DOB may well have asked the claimant to attend to those duties on 4 January and on other days.

c. The claimant did not raise this complaint until providing particulars.

[179]Regarding training on 3 February 2022– see my findings of fact as well as my conclusions under 12.2. 12.5 Mr O’Brien rarely gave the Claimant feedback or kept him updated on matters. Mr O’Brien did not give me feedback regarding the incident in Pennine on 03/02/22.

[180]See my findings of fact at paras 78. Feedback was given on the day, albeit not feedback that the claimant agreed with. DOB expected further comment and possible action about the events of 3 February 2022. He had completed a file note and sent it to his manager. 12.6 Mr O’Brien constantly disrespected the Claimant, spreading rumours that he was lazy, thick, and did not understand the job. Security Supervisor, Mr Fateh Barakat told interview panel that Mr O’Brien told him that I am too slow/lazy. When Mr Ryan Johnston and I were in Mr O’Brien team, I confronted him for calling me lazy, he said the Supervisor believe I am lazy.

[181]The claimant accepted that he had no evidence that DOB called him lazy. As for the complaint that he was called “slow” the claimant did not provide any detail, any specific incident when this comment was made.

[182]During the internal investigation one comment was identified. My findings about this comment are at paragraphs 41-48.

[183]The evidence does not indicate that DOB habitually made comments about the claimant being slow. The comment Farak Barakat heard may well have related to November 2020 (the incident covered by the file note of November 2020). This complaint is well out of time. it would not be just and equitable to extend time. Whilst on this occasion there is a file note providing some evidence, the incident relevant to this file note occurred some 3 years before it was raised in these proceedings.

[184]Further and based on the evidence provided I am satisfied that the file note referred to concerns about the claimant’s slow response to incidents. DOB raised the concerns with the claimant because he was huis supervisor and his concerns were genuine. The claimant’s race was irrelevant to the actions of DOB. 12.7 Mr O’Brien looked for opportunities to damage the Claimant’s record and told other team members he did not want the Claimant on his team. Mr O’Brien put two File Notes in my personal work file for flimsy excuses and wrongs I did not do. He did not follow NHS policy on issuing File Note as he neither gave me a copy or right to appeal it. First File Note, I had chat with him, but did not know he put it in my file. Second File Note, I found out during investigation interview, and in details when I received notes of subject access request I made. In said notes, I also noticed that Mr Sweeney, and Mrs Smart made formal complaints against me. Senior Security Supervisor alluded in interview that this was a ‘gang up’. Under NHS policy I should be informed of those complaints. On 22/04/2022 this day, I noticed that CCTV camera was focus on me when I was on standby duties. 16/12/2021 Some colleagues – Tony Adu and Ben Banjoko from other teams advised me to move to Mr Johnston’s team, saying that it was obvious Mr O’Brien did not want me in his team. Mr O’Brien told me in person to meet Mr Derek Wright so that he will move me to Mr Johnston’s team.

[185]The first file note referred to is from November 2020 – see my findings under 12.6.

[186]The second file note referred to is that from 3 February 2023; that DOB had forwarded to his manager and was waiting for a response/action.

[187]The complaints raised by the 2 other members of the team are referred to at para 76 above. Complaints were raised because the claimant’s colleagues felt they had been let down by the claimant. The claimant’s race was irrelevant to their actions.

[188]The claimant’s points about NHS policies on file notes or grievance refer to policies from other NHS trusts, not the respondent Trust.

[189]As for the complaint that on 16 December 2021 some colleagues advised the claimant to move teams:-a. It is out of time. given the absence of evidence on the issue and the fact that it was not raised until detail was provided in these proceedings, it is not just and equitable to extend time.

b. In any event, the claimant provided no evidence to support this complaint. His witness evidence simply repeated the wording of the complaint as set out in the list of issues. The claimant has therefore failed to provide that this alleged conversation took place and, if it did, what was said.

[190]The complaint about CCTV is referred to in my findings of fact. It did not happen. 12.8 Mr. O’Brien’s comments on 16 June 2021 that “there are too many Nigerian workers in the security department and no more will be employed here again”.

[191]See my findings of fact. This comment was not made. 12.9 Mr. Ryan’s decision not to approve the Claimant’s flexible 12.10 Mr. Ryan’s failure to acknowledge and/or action the Conclusions to 12.9 and 12.10

[192]The claimant was allowed to work flexibly as he had requested. He had been allowed to do this before he made his formal request and following.

[193]The handling of the claimant’s formal request was far from ideal. This was due to JRs unfamiliarity with the new online system and the advice provided by the HR Department. The claimant’s race had no impact on JRs handling of the claimant’s application.

[194]JR met the claimant on 2 occasions in relation to his request. The discussions were open and the outcome of both discussions enabled the claimant to continue to work on day shifts only.

[195]The difference in treatment between the claimant and GS was that GS was provided with a letter confirming changes to her hours. But GS’s relevant circumstances were materially different to the claimants. She had made a joint flexible working request with Mohamed Saleem. The claimant had not made a joint application with SH.

[196]JR did meet with the claimant after the claimant had raised an appeal. I do not accept the claimant’s evidence that this meeting did not take place. The reason for the claimant’s appeal was due to misunderstanding/miscommunication by DW and probably by the respondent’s HR Department. At that meeting the claimant was assured that the arrangements – by which he swopped shifts with SH – could continue. 12.11 Mr. Ryan’s failure to acknowledge the Claimant’s grievance of 15 February 2022 (the Claimant relies upon an actual comparator,

[197]See my findings of fact at para 88. The claimant’s grievance was acknowledged quickly. An initial meeting with the claimant was set up quickly. This complaint fails. 12.12 The Respondent’s failure to redeploy Mr. O’Brien whilst the

[198]See my findings of fact at 110. The claimant accepted that GS’s supervisor had not been redeployed. This complaint fails. 12.13 The significant delay in investigating and reaching a determination on the Claimant’s grievance (the Claimant relies upon an actual comparator, Gillian Smith, and a hypothetical comparator).

[199]No evidence was provided to link the delays in the investigation and outcome to the claimant’s race. No evidence was provided about the named comparator and in what way a complaint raised by her took less time to provide an outcome. Further, I have not been provided with any evidence from which I could conclude that a hypothetical white comparator’s complaint would have been dealt with more quickly. 200. . Whilst ideally the respondent would have provided an outcome in less than the 4.5-5 months that it took to provide the outcome., I am satisfied that the claimant’s race was irrelevant to any delay in providing him with an outcome. The claimant’s complaint was complex and needed reviewing and the complaints in the claimant’s document needed to be identified. The claimant was absent due to sickness. A large number of witnesses were interviewed. 12.14 Attempts were made on 24 and 20 May 2022, 5 July 2022, to the position of porter as outlined in paragraph 19c above.

[201]See my findings of fact at paras 112-117. The respondent did not behave inappropriately by exploring options to assist the claimant’s return to work. Those options included an option for the claimant to carry out the role as a porter on either a temporary or permanent basis. 12.15 One of the senior security staff interviewed during the take security officers of ethnic minorities like the Claimant in his team whenever it is suggested to him, which clearly shows his preference for white colleagues or team members.

[202]This is not in itself a complaint of less favourable treatment towards the claimant but evidence that the claimant says supports his other complaints including those in which he alleges that DOB wanted the claimant to be dismissed.

[203]Relevant findings of fact are at 132 and 133.

[204]Whilst DW expressed, what appears to be a personal view, he provided no evidence other than to say that DOB had expressed a preference for some employees to work with another team rather than the one he headed up. DW also accepted that the view expressed was all based on hearsay. The examples he provided indicated that DOB was indeed working with minority ethnic employees and when they moved teams there was a good reason.

[205]Minority ethnic employees interviewed made clear that they had not come across any such issues in their work with DOB.

[206]The claimant himself worked with DOB for some 2 years. There was no indication that DOB made any attempt to have the claimant removed from his team.

[207]There is no evidence to support the contention that DOB was unwilling to take or accept security officers of ethnic minorities. 12.16 Another senior security staff who was interviewed also alluded to the fact he heard rumours/hearsay that Mr O’Brien bullies and

[208]The claimant accepted there was no evidence was provided to support this complaint.. 12.17 Ignoring Occupational Health Medical Report recommendations.

[209]No occupational health recommendations were ignored. The claimant referred here to that part of the OH report that indicated that the claimant should be able to return to work in a few weeks. Whilst that was an expression of hope, the claimant continued to provide fit notes stating he was not fit to carry out any work. This complaint fails. 12.18 Pushing the Claimant who is the victim to go to porter during zoom meeting of 05/07/22. Conclusion to 12.18.

[210]Refer to(1) findings of fact at paras 112-113 and

(2) conclusions under 12.14. The claimant was not “pushed” to go to porter duties. It was an option for him. All complaints of direct discrimination fail and are dismissed. The complaints of victimisation

[211]As is apparent from the list of issues it is not disputed that the claimant did a protected act for the purposes of section 27 EQA when he made his complaint of 15 February 2022. There is a list of 10 allegations that the claimant was subjected to a detriment because he raised is complaint. These allegations relate to the same issues that I have reached conclusions on in the constructive dismissal and/or direct discrimination complaints. These complaints also fail as complaints under section 27 (victimisation). Having alreadt recorded my findings of fact and conclusions under the other headings, I deal with each briefly, 17.1 Mr. Ryan ignored/failed to acknowledge the Claimant’s grievance. Conclusion to 17.1

[212]JR did not ignore the claimant’s grievance which was acknowledged quickly. Further, see the conclusions to complaints 7.3 and 12.11. 17.2 The Respondent failed to redeploy Mr. O’Brien whilst the Claimant’s grievance was being investigated. Conclusion to 17.2

[213]There was no need to redeploy DOB. The fact that the claimant made this complaint was irrelevant to DOB’s ongoing role as a supervisor of the same security team. Further, see the conclusions to complaint 12.2 and findings of fact referred to. 17.3 Attempts were made on 24 and 20 May 2022, 5 July 2022, to the position of porter. Conclusion to 17.3

[214]A porter role was proposed as a potential solution and an option for the claimant. There was nothing wrong in making this proposal. It did not amount to detrimental treatment. Further, see the conclusions to complaints 7.5, 12.14 and 12.18. 17.4 There was a significant delay in the Respondent investigating and reaching a determination of the Claimant’s grievance. Conclusion to 17.4

[215]There was some delay. However the respondent did not delay the outcome to its investigation because the claimant raised the complaint. Further, see the conclusions to complaints 7.6 and 12.13. 17.5 Mr. Ryan’s failure to acknowledge and/or action the Conclusion to 17.5

[216]This predates the protected act and on that basis alone this complaint fails. Further, see conclusions to complaints 12.10 and 7.2. 17.6 The Respondent’s failure to redeploy Mr. O’Brien whilst the Conclusion to 17.6

[217]See 17.2 above. 17.7 One of the senior security staff interviewed during the Conclusion to 17.7

[218]In making this comment, DW did not subject the claimant to a detriment.. 17.8 Another senior security staff who was interviewed also alluded to the fact he heard rumours/hearsay that O’Brien bullies and Conclusion to 17.8

[219]The claimant accepted that there was no evidence of this. All complaints of victimisation fail and are dismissed.