Employment Judge WhittakerIn person for claimantDr Ahmad (instructed by Counsel) for respondentDate 3 November 2021
JUDGMENT
The judgment of the Tribunal is that claim number 7 in the Schedule of Claims of the claimant included in the bundle of documents at pages 36-42 inclusive succeeds on the grounds of race but not on the ground of religion. The claimant is awarded £1,000 as compensation for injury to feelings and interest from the date of the discrimination, 19 November 2019, to 27 October 2021 at the rate of 8% per annum in the sum of £155.
REASONS
[1]The claimant had made it very clear at an earlier preliminary hearing that he wished every one of his complaints to be considered contrary to section 13 of the Equality Act 2010, in other words as claims of direct discrimination on the grounds of the protected characteristics of race and religion. It had been suggested to the claimant in the past that perhaps he should consider bringing claims under a different section/sections of the Equality Act 2010, but the claimant had rejected that suggestion and was adamant that all his claims should be considered only in respect of section 13. The Tribunal proceeded accordingly.[2]There was included within the bundle of documents presented to the Tribunal a schedule of the claimant's claims at pages 36-42. At the beginning of the hearing the Tribunal discussed these with the claimant in order to be satisfied about the nature of the claims and how the claimant purported to fit them within section 13. Those pages within the Tribunal bundle have been marked up to indicate that the Tribunal was presented with ten separate claims. They were numbered accordingly. The claimant confirmed however that claims numbered 3, 4 and 10 were not claims and were simply the claimant providing narrative which he believed was relevant to his other claims. The Tribunal therefore considered the other seven claims. As indicated above, the Tribunal found in favour of the claimant in respect of claim number 7 but dismissed the other claims for reasons which are set out below. Evidence and Witnesses[3]The Tribunal was presented with a bundle of documents comprised of 115 pages. The claimant gave evidence on oath by reference to a very short statement which in effect simply repeated what he had set out in his Schedule of Claims at pages 36-42.[4]The respondent called five witnesses. They were the owner of the respondent company, Mrs Shurink, and four separate employees of the respondent company, Mr Morley, Miss O’Gorman, Miss Socket and Miss Carr. All those five witnesses gave evidence on oath and answered questions from the Tribunal and from the claimant.[5]When considering the claims of the claimant the Tribunal paid very close attention indeed to the wording of section 13 of the Equality Act 2010, bearing in mind that the claimant had insisted that his claims should be considered under that section only. Section 13 states that a person discriminates against another if, because of a protected characteristic, they treat another person less favourably than they would treat others without that characteristic. The claimant indicated that in respect of each of his seven claims that he had been discriminated against on the grounds of the protected characteristic of race and religion. The claimant said that the religion he relied upon was that of a Muslim and that his racial characteristic was that of being of Pakistani heritage.[6]The Tribunal reminded itself of the need to find less favourable treatment if any of the claims of the claimant were to succeed. Furthermore, it would have to be satisfied that any less favourable treatment was because of one or other of the two identified protected characteristics. Expressed in another way, the Tribunal would need to look carefully at “the reason why” the less favourable treatment had occurred, making a finding of fact as to what was the motivation for the behaviour in question. It reminded itself that unreasonable treatment is not necessarily discrimination and that it would be relevant to consider whether there was less favourable treatment, by looking at the treatment and behaviour of others, including other employees who worked alongside the claimant in the same office environment.[7]This was not a case where the less favourable treatment was obvious as it may be in cases where the claims relate to a job application or a failure to promote. The Tribunal also reminded itself that different treatment is not necessarily less favourable treatment. The Tribunal also had to consider whether any treatment was less favourable against the background of an objective test. It was not just for the claimant to decide if he felt treated differently. It was a question of fact for the Tribunal to determine objectively.[8]The Tribunal also had to consider how a comparator would have been treated. Was or would someone without the relevant protected characteristic have been treated the same or differently? The Tribunal also reminded itself that when considering a comparator, it must consider the provisions of section 23 of the Equality Act 2010 to ensure that when considering the identity of a comparator that there should be no material difference between the circumstances of each person, and that the Tribunal should make sure that it was comparing like with like.[9]Further, the Tribunal carefully considered that when considering whether or not a protected characteristic was the “reason why” the claimant had been treated less favourably then the Tribunal would only need to be satisfied that the relevant protected characteristic was a significant influence on the decision making process of the person responsible for the behaviour. A variety of generic phrases have often been used to describe the words “because of”. However, the crucial question for the Tribunal to ask was- why the person had behaved in the way that was alleged.
Findings of Fact
[10]Having heard evidence from the witnesses and considered the relevant documents, and in this case having observed the demeanour of the witnesses, in particular Mrs Shurink, Mr Morley and the claimant, the Tribunal made the following findings of fact and came to the following judgment in respect of each of the seven identified claims of the claimant. On 21 February 2020 and other previous occasions (not identified), “I have been told that Pakistani/Muslim men are paedophiles”.[11]In the statement of claims it was alleged that Emma Socket was part of claims numbered 1 and 2 but in fact the claimant clarified this at the beginning of the hearing to confirm that she was not. The claims were therefore made against one person, Adele Carr. Ms Carr dealt with the allegations in paragraphs 33-39 of her witness statement.[12]The conclusion of the Tribunal was that the comment had been made but that it was a comment which must be placed into proper context. The Tribunal found that there may well have been a comment of that nature on 21 February and on other previous occasions, but the Tribunal was unanimously satisfied that whenever a comment of that nature was made that it was not a one-off, out of context, remark as suggested by the claimant. That did not make any sense to the Tribunal. The Tribunal found that it was much more likely, as Ms Carr said, that it was part of a pattern of discussion which was held between employees of the employer including the claimant. It was a small office environment in which there were no more than five/six people including the claimant. The Tribunal found as a fact that there was regular discussion between those members of staff about such things as the content of TV shows and news events, and indeed the personal events in the lives of the employees in question. The Tribunal found as a fact that the claimant participated in those discussions. Ms Carr in her witness statement as above was able to specifically recall the discussion in question and to recall the specific TV show which had prompted the discussion in question. The Tribunal found this evidence to be strongly persuasive. The Tribunal found that this discussion took place amongst the office staff and not just between Ms Carr and the claimant. Due to the passage of time it was not possible to identify who was present, but the Tribunal was satisfied that at no stage did that discussion take place only between the claimant and Ms Carr.[13]It was clear, in the opinion of the Tribunal, that whenever discussions of this nature took place that they took place in the presence of others. On that basis the Tribunal was wholly satisfied that all office members who participated in these discussions, including the claimant, were treated in exactly the same way. They were all equally involved. They equally participated in one way or another. There was therefore no difference in treatment and therefore no less favourable treatment. It was a discussion in which various comments were made, including the comment alleged, but it was not a comment which was only made to the claimant and neither was it only directed towards the claimant. The essential element of section 13 therefore, that there should be less favourable treatment, was missing, and on that basis the claim was dismissed.[14]Equally the Tribunal was not persuaded that when the comment was made that it was made because of the protected characteristics of religion or race as alleged by the claimant. It was part and parcel of a general office discussion. The claim would also therefore have failed because the claimant did not satisfy the second arm of the wording of section 13. Trying to contact her niece on Facebook. This comment clearly required some explanation. The claimant said that Ms Carr had come into the office one day to say that her own niece had been contacted by an Asian man on Facebook, and the obvious inference was that there had been an attempt to groom her niece.[15]The Tribunal again was satisfied that this comment had been made but was equally satisfied that it did not amount to less favourable treatment and neither was it a comment which was made because of either of the protected characteristics relied upon by the claimant. It was simply Ms Carr coming into the office after she had learned of this event and reporting it in general conversation to her work colleagues. She did not report it only to the claimant. It was a comment which again took place in the context of general office discussions between the members of staff. On that basis the claimant participated in it as part of the office environment and not as an individual. Everyone participated in an equal way and on that basis there was no less favourable treatment. Equally the comment was made because of what Ms Carr had been told which she then repeated to her work colleagues, but it had no connection whatsoever with the protected characteristics of race or the religion of the claimant as he alleged.[16]The claim was therefore dismissed because it did not meet the essential requirements of the wording of section 13 of the Equality Act 2010. 8 October – Adele Carr advised that Muslim Iran men have sex with 11 year old girls.[17]The Tribunal was satisfied that this comment had been made. The claimant said that in response he had messaged an Iranian friend. The claimant did not however choose to include any details of that message or any copies of the exchanged messages in the bundle of documents, even though he was under an obvious obligation to do so. He told the Tribunal for the first time, not even in his witness statement, that in response to this comment being made he had messaged an Iranian friend and that he had been told that the comment was true.[18]The respondent denied that the comment had been made but, in the opinion of the Tribunal, the additional evidence given by the claimant that he had been prompted to contact his Iranian friend had an essential ring of truth about it and that he was able to recall the incident. However, the message that he got back from his Iranian friend was that the comment was actually true when it was checked out. Because of the claimant's reaction to the comment in question then on balance the Tribunal found that the comment had been made.[19]The Tribunal then went on, however, to ask whether or not the comment had only been made to the claimant and him alone. He said that it was. However, the Tribunal was very clearly of the view that the comment would also have been made to a relevant comparator who did not have the protected characteristics of the claimant. There would therefore have been no less favourable treatment. Adele Carr was not motivated by the protected characteristics of the claimant. She was simply reporting information which she had learned of and reporting it within the office. It was therefore part of the office environment of discussion with office colleagues on the widest possible range of topics.[20]The conclusion of the Tribunal therefore was that the comment was made but that it was not less favourable treatment and that it was not made because of the protected characteristic of either race or religion. The claimant was unable to satisfy the Tribunal that the comment had only been made to him and in his presence. It was an allegation which the claimant said had occurred as long ago as 8 October 2019, and although the claimant said that he had records to be able to show that, he had not produced any of those records to the Tribunal despite being under an obligation to do so and despite having experience of participating in court proceedings where the importance of disclosing relevant documentation would have been clear and obvious to the claimant.[21]The Tribunal concluded therefore that there was no evidence to show that this had been a comment which had only been made to the claimant alone, and the Tribunal on balance found that it was again part of a comment which was made in office discussions in which others were present. In any event, if the discussion had only taken place with the claimant then the Tribunal was fully satisfied that if others had been present the comment would have been made in exactly the same way. The comment was made because the information had come to the attention of Adele Carr and she had chosen to then raise it in the office environment as part of general discussions. The claimant was not targeted. The Tribunal was fully satisfied therefore that any comparator without the protected characteristics of the claimant would have been treated in exactly the same way. Theft of car keys.[22]Being blunt, the Tribunal found this to be a preposterous allegation. The claimant alleged that Mr Morley had stolen the claimant's car keys. He produced absolutely no evidence whatsoever to substantiate such a serious allegation. It was simply nothing more than his belief. He could not produce any evidence whatsoever to substantiate that belief. By the end of the hearing it was clear that there was an atmosphere of animosity between the claimant and Mr Morley. It seemed to the Tribunal that that atmosphere of animosity had been reciprocated by the claimant towards Mr Morley when because clearly they did not get on, putting it mildly, the claimant therefore believed that when his keys went missing that he believed that Mr Morley had stolen them. This was despite the fact that at the time, when his keys went missing, the claimant went on a wide-ranging search of other premises including a coffee shop and including the car park, believing at that stage that his car keys must simply have been misplaced.[23]In any event the claimant produced no evidence whatsoever to substantiate this serious allegation and it was therefore dismissed. In November 2019 when the claimant broke the record for settlements a senior member of the team, Sean Morley, immediately stated that the 97 Korean team had two forwards, one called Pak and another called Kee.[24]The obvious and clear meaning of putting those last 7 words together was what had raised this particular complaint.[25]The Tribunal was faced with a complete disagreement between Mr Morley and the claimant. The claimant was clearly and strongly adamant that the comment had been made, and Mr Morley was equally strongly adamant that it had not. The claimant indicated that other members of staff had been present, in particular Mrs Shurink and Ms O’Gorman. The Tribunal considered very carefully the words which were used by Mrs Shurink at paragraph 22 of her witness statement and Ms O’Gorman at paragraph 9 of her statement.[26]There was no dispute that the claimant had been presented with a bottle of prosecco by Mrs Shurink because of his achievements in his work. There was no dispute that Mr Morley, Ms O’Gorman, Mrs Shurink and the claimant were present when this presentation was made. However, Mrs Shurink when asked whether she had overheard the particular allegation says in her witness statement that she has “no recollection”. She does not say that it was never said and that she heard everything that Mr Morley said. Similarly, Ms O’Gorman says that she did not hear it and that she did not recall it. Equally she does not deny it. She equally does not say that she heard everything that Mr Morley said during that meeting, and that he definitely did not say it.[27]There was, in the opinion of the Tribunal, therefore a significant difference between a steadfast denial on the part of Mr Morley and the comments which Mrs Shurink and Ms O’Gorman carefully made in their witness statements.[28]The Tribunal considered carefully what possible link there could be between the award ceremony and the comment having allegedly been made by Mr Morley. For reasons which are set out below, the Tribunal concluded that the reason why Mr Morley had made the comment was because the claimant had won the award and Mr Morley strongly objected to someone of the racial background of the claimant being presented with the award in this way. The Tribunal could find no link at all to the claimants religion however.[29]The Tribunal was also taken by the specific and detailed nature of the wording of the allegation made by the claimant. This was not a generalised comment about race. It was a very specific and carefully crafted comment which the claimant was able to recall and state to the Tribunal very clearly indeed. That significantly influenced the Tribunal.[30]When giving evidence Mr Morley presented himself in a manner which never previously had the three members of the Tribunal in many, years of joint experience gained such an unfavourable view of a witness as they did in respect of Mr Morley in the very short time that he gave evidence. He began being cross examined by taking the oath at 10.25am and his evidence was concluded by 10.38am. Nevertheless, during that short period of time the Tribunal would describe Mr Morley as bristling with indignation. This was the joint and unanimous conclusion of the Tribunal. Mr Morley was observed to take quite ridiculous points with the claimant in connection with the easiest and most simple of questions. When he was asked a question, he argued with the claimant as to whether or not that was a question or a statement. He was asked specifically by the claimant whether he “took” the keys of the claimant. Instead of simply answering the question Mr Morley pointed out that it was being alleged to have stolen the keys when clearly there was no difference in the wording which had been used. The Tribunal was very much taken aback by the attitude of Mr Morley.[31]The claimant had asked Mr Morley whether or not there had ever been any altercations between them, and Mr Morley immediately answered very firmly that there had not. The claimant then however, step by step without reference to any papers or documents whatsoever, set out the steps of an altercation which he said had taken place in respect of a telephone call the claimant had taken from Mr Morley’s wife while Mr Morley was away from the office. When Mr Morley returned the claimant made a rather feeble joke about if Mr Morley was going to have an affair that he should be more careful about it. There had then been an allegation where Mr Morley had told the claimant very clearly indeed that he objected to that comment and that this had amounted to the altercation/disagreement. Mr Morley was very quick and fast to deny that that incident had ever occurred.[32]The Tribunal however believed that the description put forward by the claimant had an obvious ring of truth to it bearing in mind the manner in which he was able to present it, step by step, off the top of his head without reference to any documents. The Tribunal accepted and acknowledged that he had not included it in any witness statement or in any other documentation, but that was not in any way fatal. The manner in which Mr Morley responded to this allegation was both striking and illuminating because when answering that it had not taken place he also said, “it doesn’t matter because it’s not in your statement”. It was then necessary for the Tribunal to intervene to point out that that was an inappropriate comment to make. It was however, in the opinion of the Tribunal, an illuminating comment. It confirmed what the Tribunal had already begun to believe, which was that there was an obvious and real sense of animosity on the part of Mr Morley towards the claimant.[33]In respect of the specific claim as set out above, the Tribunal therefore had to consider whether or not the claimant had made it up. The Tribunal was fully satisfied that he had not and that in fact the disagreement described by the claimant with Mr Morley had equally taken place despite the strident denials of Mr Morley. In respect of the nature of the claim, Mr Morley denied the whole incident. He did not accept part of it and deny other parts. He did not suggest, for example, that he had in some way been misrepresented or misunderstood. He simply steadfastly denied that it had ever occurred.[34]The Tribunal did not believe the evidence of Mr Morley. It may well have been embarrassing for Mr Morley to have put to him in the formality and cold light of a Tribunal the disagreement in respect of the telephone call from Mr Morley’s wife, but Mr Morley as a witness, and in particular as a solicitor, must surely have recognised that he should override that and that he was on oath to tell the truth. The Tribunal was satisfied that he had not done so.[35]Returning therefore to the disputed Korean comment, the Tribunal unanimously and wholeheartedly preferred the evidence of the claimant to Mr Morley and found that the comment had been made.[36]Returning to the evidence of Mrs Shurink and Ms O’Gorman, the Tribunal equally took that into account because they had not denied that it had occurred. They had simply said that although they were present, they had not heard it. It had not been steadfastly denied by them and the Tribunal found that to be of significance.[37]Having found that the comment had been made and had been made by Mr Morley towards the claimant, and having taken into account that Ms O’Gorman and Mrs Shurink had not heard it, the Tribunal had to consider whether or not it was a comment which had actually been directed by Mr Morley to the claimant alone and not to anyone else. The Tribunal was satisfied that was the case. The Tribunal was satisfied that in some way it was a private comment which had been directed by Mr Morley towards the claimant and that it had not, as with other allegations as set out above, been part of any office discussion. The demeanour of Mr Morley when giving evidence persuaded the tribunal that there was a genuine element of dislike on the part of Mr Morley of the claimant and of his racial background. The Tribunal satisfied however that the protected characteristic of religion was utterly irrelevant. The link therefore between the award ceremony and the Korean comment which was made by Mr Morley was that Mr Morley was annoyed/frustrated that the award had been made to someone of Pakistani heritage.[38]The Tribunal therefore considered whether or not those facts as found by the Tribunal satisfied the requirements of section 13. The Tribunal was satisfied that it was less favourable treatment because the treatment had not involved anyone other than the claimant. The Tribunal was satisfied that either a hypothetical comparator of non Pakistani heritage, or the specific comparators of Adele Carr and Samantha O’Gorman who equally were not of Pakistani heritage, would not have had that comment made to them, and indeed did not have that comment made to them. The Tribunal then went on to consider the reason why Mr Morley had made that comment to the claimant, and it was unanimously satisfied that the reason why was the racial characteristics of the claimant and that that was the motivation for the comment having been made by Mr Morley to the claimant.[39]In those circumstances the Tribunal found that this claim was proved and succeeded. However it was equally clear that the religion of the claimant was not part of the reason why and that element of the claim fails and is dismissed. November 2019 – The next time she was in the office, Adele Carr made it clear “no matter what happens Sean is always in the right”.[40]Right at the beginning of the hearing the Tribunal was unable to understand what the claimant meant by this allegation. He sought to suggest that the comment had been made to justify the Korean remark. However, there was no evidence whatsoever put forward by the claimant to illustrate that that was the case. The allegation was denied, but without deciding whether the claim had or had not been made the Tribunal found that this claim simply could not succeed. If it had been made, then on the evidence of the words used and the evidence which the Tribunal had heard a great deal about concerning the general discussions which took place in the office, then it was a comment which Adele Carr would have made about any aspect of the conduct of Mr Morley. It was not suggested that there was any evidence to say that she was, when allegedly making the remark, referring to the Korean comment at all. The Tribunal was simply urged by the claimant to accept that it was but there was no evidence to suggest that. If Mr Morley’s behaviour had been challenged by any other employee then there was no reason to believe that Ms Carr would not have said exactly the same thing to them, namely that Mr Morley was right and always right.[41]The Tribunal could find no evidence whatsoever to link that alleged comment to the Korean remark. There was no evidence, therefore, that even if the comment had been made that it was less favourable treatment, and equally no evidence to show that it was a comment which was in any way associated or motivated by either of the two protected characteristics the claimant relied upon. If Adele Carr believed that Mr Morley was always right then he would always be right about everything, and that in essence was what the claimant said Adele Carr had said to him in any event. The claim was therefore dismissed. “After I handed in my one month notice, leaving to join Clyde & Co as a litigator, the owner sent a WhatsApp that I believe had a racist edge to it”.[42]The WhatsApp message in question appeared at page 67. It was a picture of an Asian man who was, to use a colloquialism, “dripping in gold”. Mrs Shurink told the Tribunal that this message had to be put into proper context. It was a message which she shared, as a humorous comment, on the panic buying of toilet rolls at the beginning of the COVID pandemic in March 2020. She said that she had never for a moment thought that it was racist. She had simply seen someone who was dripping in gold and that as a result of the panic buying of toilet rolls that that represented the likely financial outcome for a plumber. It was however, and this was accepted by the claimant, sent to every single one of the respondent’s employees. It was not directed at the claimant.[43]The motivation/reasoning of Mrs Shurink had nothing to do with race and nothing to with religion. It was simply something which she found humorous in the context of panic buying of toilet rolls. Sending it was not an act of less favourable treatment because it was sent to all the employees of the employer in exactly the same way. The relevant comparators therefore were treated in exactly the same way. Furthermore, there was no evidence at all to show that the motivation or “reason why” on the part of Mrs Shurink had anything to do with the race or religious characteristics of the claimant. The allegation was dismissed.
Conclusion
[44]The Tribunal therefore found in favour of the claimant in respect of allegation number 7 only relating to the Korean comment. The claimant had prepared a Schedule of Loss. The Tribunal discussed with the claimant the Vento guidelines. In his Schedule of Loss he had indicated that he should be awarded injury to feelings in the sum of £1,000 if all his claims were successful. Now that the majority of his claims had been dismissed the claimant indicated that he still believed he should be awarded £1,000.[45]The respondent indicated that the Tribunal should take into account the fact that the incident in question occurred in November 2019 but that the claimant did not leave until March 2020, some four months later. There was no evidence whatsoever that he had raised any grievance or complaint, and indeed the claimant accepted that. He said he was unable to do so within a small working environment, but the Tribunal did not believe that to be the case bearing in mind that Mrs Shurink had at all stages indicated that she was extremely supportive of the claimant and indeed she had treated him, as far as the Tribunal could see, in exactly the same way as all her other employees, including buying him a bottle of prosecco because even though he is a Muslim the claimant had made it very clear that he was someone who consumed alcohol.[46]The Tribunal was not presented with any evidence by the claimant apart from the fact that he took exception, not surprisingly, to the comment which had been made. He nevertheless continued to work alongside Mr Morley for the next four months, and as the Tribunal has already said he raised no complaint about it, and he did not even complaint direct to Mr Morley.[47]Taking all the circumstances into account and remembering that compensation was to compensate the claimant and not to punish the employer, the Tribunal unanimously decided that the relevant vale of injury to feelings was £1,000.[48]The incident occurred on 19 November 2019. Today’s hearing was concluded on 27 October 2021. The claimant was entitled to interest at the rate of 8% per annum. This amounted to £80 for one year and £75 for the part-year 20/21, a total of £155.[49]The total compensation to be paid by the respondent to the claimant is therefore £1,155.