Mr S Mutangadura v The Home Office: 2410356/2018

EMPLOYMENT TRIBUNALS

Case No 2410356/2018

Between

Mr S MutangaduraClaimant

The Home OfficeRespondent

Before

Employment Judge Holmes

In person for claimant

Ms Trotter (instructed by Counsel) for respondent

Date 13 March 2023

JUDGMENT

[1]The respondent’s application for an order striking out the claimant's race discrimination claims is dismissed.

[2]The respondent’s application for an order that the claimant pay a deposit in relation to his race discrimination claims is dismissed.

[3]The respondent’s application that the claimant's complaints of disability discrimination have no reasonable prospect of success and should be struck out is granted and the claimant's disability discrimination claims are hereby dismissed.

REASONS

[1]The Tribunal has today been considering applications made by the respondent for orders that the claimant's claims be struck out , or in the alternative that the Tribunal makes an order that the claimant pay a deposit as a condition of being permitted to advance the claims any further. The claims in question are claims of race discrimination and disability discrimination , which were made in a claim form presented to the Tribunal on 29 April 2018. They came before Employment Judge Howard on 16 July 2018 in a preliminary hearing to identify the issues, and as a result of the discussion on that occasion the claims were identified in her judgment and the issues to be considered in this preliminary hearing were then set out. This hearing was then listed to consider them.

[2]In terms of the claims before the Tribunal, they were at that time identified as being race discrimination , in respect of the claimant identifying his race as black African and that the respondents, in their dealings with him in connection with applications that he made, successfully, for roles as administrative officer and executive officer with the respondent were in fact instances of direct race discrimination in relation to , in particular , the security clearance that he was required to obtain for at least the first of those posts. Those issues were discussed and identified in paragraph 3 of the Case Management Orders on that occasion, and, in relation to the disability discrimination claims , the disability was identified as being a condition of anxiety and depression. The claims that were made were identified as being complaints of failure to make reasonable adjustments in relation to a provision, criterion or practice (“PCP”) that the respondent accepts was applied to the claimant and others, that all candidates for these posts were communicated with via email. The claimant's claims were identified in that preliminary hearing as being that he believed this placed him at a significant disadvantage , as this practice led to delays in responses which exacerbated his anxiety and depression. Those matters are set out in that Order and consequently this hearing has been held to consider the applications that the respondent then made.

[3]The claimant has appeared in person , and the respondent has been represented by Ms Trotter of counsel. The parties have both provided skeleton arguments. The claimant, although unrepresented, has clearly put much time and effort into his submissions and arguments, indeed has clearly done some extensive research and has been able to make references to case law, but the Tribunal , of course , bears in mind that he is not a qualified lawyer. He clearly has researched extensively into these issues and has produced, for an unrepresented party, a considerable body of argument and documentation which has assisted the Tribunal greatly in determining this application. The respondent has similarly produced a skeleton argument and there has been an agreed bundle of documents for this hearing, the claimant also advancing some further documents in support of his contentions.

[4]The Tribunal, of course, on such an application makes no findings of fact and does not determine any claims in terms of the merits, other than to determine whether or not the respondent’s contentions that the claims, or any of them, have either no reasonable prospects of success , or little reasonable prospects of success. That is far as the Tribunal’s enquiry on this occasion will go.

[5]In terms of the facts, they are largely agreed and where they are not agreed they will be assumed in the claimant's favour, as , for example, disability will be for these purposes, and is conceded for these purposes, although in the claims as a whole that has not as yet been conceded. In terms of the basis of the claims and the facts that are largely agreed, they are as follows.

[6]The claimant made applications for two roles with the respondent: the AO (administrative officer) role and the EO (executive officer) role, in late 2017, and indeed was successful in obtaining first the AO role and subsequently the EO role. These claims arise out of the process that was then followed by the respondent in terms of obtaining security clearance for the claimant , given that he was to work for the Home Office. In terms of that process, the claimant accepted the first offer, the AO caseworker role, by an email of 21 September 2017, and there then ensued email communication and the requirement to complete various documents. Amongst those documents was a health questionnaire , and various other pieces of information that were required from the claimant which he prepared and sent back to the respondent. In due course he was referred to a website link in relation to the security check that was to be undertaken in relation to this role, which he duly followed and completed. It was at that point that the issues arose.

[7]The link took the claimant to a questionnaire which he completed and noted, if it did not expressly say so itself, that the questions that he was being asked were consistent with a level of security check which is higher than the lowest of the three levels that the respondent operates, which are , firstly, a counterterrorist check, which is level 1; secondly is a security check and the third is developed vetting. The role that the claimant at that point had successful obtained, the AO role, did in fact require the first level, the counterterrorist level check, but the questionnaire that the claimant completed included particular references to his finances and credit history, and consequently was consistent with, and indeed was, part of the information required for a counterterrorist check, a CTC as it has been referred to in the documentation.

[8]Consequently, by an email of 24 October 2017 , the claimant queried why the questionnaire that had been referred to him had this level of detail in it , and was not consistent with a counterterrorist check but the higher level. Consequently in that email he raised as a query, and it is right to say it was no more than that at that stage, whether this was in fact correct and should he be doing that. The email address he used in relation to HR employment checks was @hremploymentchecks, it was not an individual that he sent the email to, but the response came from one Jack Holding, and that is at page 8 of the bundle, on 31 October. The answer to the claimant’s queries was simply “you will need to answer all of the questions on the link questionnaire” and continued “if you would like to query this further please contact HO security enquiries” and an email address was given for the claimant to do so, but that was his communication with Mr Holding at that time. The claimant duly did so, and sent an email to HO security enquiries, as directed to do so, on 31 October , and he raised the same query as he had done in his previous email as to whether it was right that he should be completing a questionnaire which went further than the CTC level that he was expecting to be applicable to this post.

[9]There seems to have been some difficulty, and this was replicated subsequently with the HO security email, because there was disruption to the service and the reply he got to that email was indeed a temporary disruption , and he was advised to respond later on. So he did not get an immediate response and consequently he renewed his enquiries in due course.

[10]In the meantime, the claimant having completed as part of the documentation that he did on 25 September when he accepted the AO role, a medical assessment form (page 39 of the bundle) was then invited to attend an appointment to assess his medical suitability, he having on that form, which he dated 25 September, ticked the box in answer to the question “do you consider yourself to be disabled” and indeed having then ticked the next box “do you require any reasonable adjustments” Thus it was that he was referred onwards for a medical assessment, and there was email traffic about that which was subsequently arranged, and the ensuing report dated 28 November 2017 is at pages 62 and 63 of the bundle.

[11]That report did refer to the information that the claimant supplied to the doctor, namely that the claimant had had previous treatment for anxiety and depression between 2015 and February 2017, but he explained that overall he was well and that he was functioning at a normal level in terms of everyday activity. He did explain he did have some issues with anxiety when called to workplace meetings, otherwise he explained to the doctor that he had no particular issues with psychological ill health. In terms of the adjustments that may be required, the doctor reported that the claimant stated when completing the questionnaire that if he was called into a meeting by management he would like to request it was done in a manner that would not cause to think that something bad was likely to happen in that meeting. On that basis the doctor expressed his view that the claimant was medically fit for work and repeated that the recommendation was that any meetings would be dealt with in the way in which the claimant had asked. Other than that , however, no other issues with the claimant's employability or issues from his condition were addressed. The report does not express a view as to whether the claimant's condition was or was not a disability, although he had of course ticked that box on the assessment form.

[12]Thereafter, the claimant completed the security check as requested, and did indeed provide the financial information that was requested in that form, although he remained concerned as to whether that was indeed the correct form of check that was required, and indeed he continued his enquiries in that regard by continuing to send emails to, amongst others, PM Recruitment. That is an organisation, or a limb of an organisation, that is in fact part of the respondent and was, as the name suggests, instrumental in the claimant obtaining the posts that he had applied for. That was an organisation he continued to correspond with , as well as communicating with Home Office Security.

[13]The claimant’s next email to Home Office Security was 13 November 2017, where he again repeated his query as to whether or not the appropriate level of clearance was SC or CTC, and indeed he also asked in that email (page 10 of the bundle) whether this was an accident, that he had been sent this link instead of the CTC clearance, and whether or not any credit score would have any bearing on whether or not the applicant would get security clearance for this role. The response that came from Home Office Security was from one Shila Peli, that was on 14 November and is, other than a salutation and to thank him, a one line email in which it is simply said “the level of security clearance is requested for SC NOT CTC”, and that somewhat terse email was sent to the claimant effectively in answer to his query. So he was told on that occasion that the higher level of security clearance was apparently correct, the author being somewhat emphatic about it.

[14]Around about this time, it is not exactly clear when, the claimant had a telephone conversation (the respondents do not specifically deal with this in terms of whether they accept it or not, but it will be assumed for these purposes) with someone called “Sheri” in which he again raised the question as to whether or not this was the correct level of security clearance for the post that he had been offered, and again this person, he says, said that that was indeed correct.

[15]PM Recruitment, however, that he was in communication with on 15 November 2017 by email, gave the claimant a response of 16 November (page 12 of the bundle) in which it was confirmed that the level was in fact CTC, so the claimant was receiving conflicting information from different wings, as it were, or emanations of the respondent as a Government department. PM Recruitment’s understanding was that CTC was the correct level.

[16]Consequently, the claimant continued to raise these matters with PM Recruitment and indeed sought to do so with Home Office Security. In terms of Mr Holding, however, he had no more direct dealings with him at that stage and did not get any direct response from Home Office Security. The claimant around about this time started going onto online chatrooms to see what other people who had made the same application had been doing, and he learnt that they too seemed to have been filling in CTC level security checks, confirming his suspicion that the SC level was being applied to him and him only.

[17]Subsequently, the next major development was that in January 2018 the claimant was successful in being offered the other role, the EO role, and indeed he was offered that by an email of 11 January 2018 (page 15 of the bundle). That then gave rise to the need for pre-employment checks and further emails about that, the claimant pointing out in that email exchange that followed that of course he had already been through this process when he had accepted the AO caseworker role, and he raised queries as to whether he needed to do this again, pointing out that he had in fact also completed financial information as part of the information for those checks. It was at this time that he entered into communication with one Roy Williams, who was in fact from Home Office Security, and again raised the question as to whether or not the SC vetting process was indeed the correct one. This came to a head in email exchanges which took place mainly on 8 March 2018 onwards, and that email is pages 18-20 of the bundle, in which the claimant expressly went through the history of the security checks , and again raised the query as to the appropriateness of him going through the SC vetting process. He went on to say in that email that he considered it unfair that he had gone through the SC process , when that the CTC process was probably the correct one, and he again complained and sought an explanation as to why this was. In particular he asked, at the bottom of page 19 of the bundle, “did all the other applicants who received provisional offers for this role have to undergo the SC vetting process instead of the CTC vetting process?”. The claimant also asked in that email (again at the moment this is still addressed to Roy Williams) could he also please find out why he [the claimant] was advised that the level of check required of him was that of SC as opposed to CTC a long time after he had accepted the provisional offer of the job in the AO role?. The claimant expressed his concern that other applicants did not have to do an SC as this would put him in a disadvantaged position.

[18]The answer that Mr Williams provided on 9 March 2018 (page 20 of the bundle) was in these terms, “Please note that your Home Office sponsor”, which is a reference in fact to Jack Holding, “has submitted your application for an SC level security clearance, and as such part of the clearance process is the oversight of the applicant’s finances”. That, in effect, was all Mr Williams said. He explained in that email that this had been, as indeed seems likely to be the case, the action of Mr Holding and that he was the person who had submitted the security clearance application on that basis.

[19]The claimant continued to seek clarification of these issues and again was in communication with PM Recruitment on 11 March about them. He sent them a lengthy email on that date which is at pages 21-23 of the bundle. An email in identical or virtually identical terms was also sent to Home Office Security enquiries again, again the same date, and this is at pages 23-25 of the bundle. The last paragraph of each of these emails makes the following observations, which is this: “I would like to request the Home Office makes reasonable adjustments for me in the recruitment/checks process with regards to my mental health disability. All the uncertainty regarding the CTC/SC situation has caused me panic and anxiety. Can it please be arranged so that when I ask the Home Office regarding the recruitment process i.e. queries about CTC/SC, that they are answered in a clear and reasonably prompt manner. Some of the questions which I asked in emails sent to the Home Office were not answered in the subsequent replies. This made me feel anxious and hurt. As I pointed out earlier, I did not receive replies to some of my emails, this also exacerbated my levels of anxiety.” That email was sent in those terms to both PM Recruitment and to Home Office Security.

[20]PM Recruitment did reply to the claimant on 12 March 2018 (pages 25-26 of the bundle) in which the reply is this: “I can confirm that candidates from the two campaigns only require counterterrorist check, CTC. We cannot confirm as to why you were required to complete SC level, this could purely be down to abbreviations.”

[21]They then went on to say that they would forward his email to the preemployment checking team and that a number of checks would be conducted in relation to his applications, but at the end of that email, which was copied to Home Office Security Enquiries, the following is written: “Home Office Security team issue the links – could this please be looked into and advise the individual”, which the Tribunal takes as being a communication directly to Home Office Security asking them to pick this up , and indeed to reply directly to the claimant in relation to this. In effect PM Recruitment were passing the matter back to Home Office Security to answer the claimant's queries.

[22]The email traffic continued and in due course the claimant continued to email to the employment checks email address, which is indeed Mr Holding’s email address , although not addressed to him personally that was the email address that he appeared to use and from which in due course a reply was eventually sent. Basically, after further enquiries of various people , Roy Williams on 21 March sent the claimant a copy of what he had sent to Mr Holding, which was in effect the email traffic that had taken place between 6 and 22 March , and in effect he sent that to Mr Holding effectively for comment and copied the claimant in on that email. The upshot of this was that on 22 March Mr Holding did respond to the claimant in these terms (pages 35-36 of the bundle): “I am sorry for the distress you have been caused by the CTC/SC security clearance application. I have been in touch with the Home Office Security Team today and confirm that CTC clearance is required for the job vacancy you have applied for, not SC clearance.” Other than to say “regards” and his name, that is the end of the email.

[23]The claimant replied to that (page 37 of the bundle) on 22 March 2018, saying that he was still very distressed and how mortified he was that he had to go through the SC process when other people who had applied for the roles only had to go through the CTC process. At the end of the second paragraph of that email he says this: “Why was I required to go through the SC process when other people applying for the same AO and EO roles only had to undergo the CTC vetting process?”.

[24]It is right to say that no reply to that question was ever received, certainly not from Mr Holding, and one of the claimant’s issues in this claim is that there was no explanation, no answer to that query; a query that he repeated again in subsequent emails . Indeed by the time that one Adam Duffy became involved in the matter (he appears to be someone from Civilian Human Resources) in an email to him on 13 May 2018 (pages 42 and 43) again the question was asked . The claimant made the point to him that he had been waiting for a response to that question posed in his email of 22 March , but still had not got one.

[25]Subsequently on 1 June an email was sent by Laura McKeswick, again from Human Resources it would appear, in which she said this: “I can only apologise that your security clearance was raised incorrectly. I did correct our error as soon as it was picked up. Please think about your decision.”

[26]The decision that she is referring to is that which the claimant made, or had made by that date (sent to the respondent or confirmed around about 13 May) that he was in fact not pursuing the job anymore and was going to withdraw, and indeed did withdraw, from the EO position that he had in fact been offered, and so that was the end of his involvement in terms of employment with the respondent. The application – the race claims.

[27]Those are the basic facts or allegations, if not agreed in some instances in full by the respondent, that form the basis of the claimant’s claims of race discrimination and indeed disability discrimination. In terms of the application, it is put in relation to the race discrimination claims in the respondent’s skeleton argument and indeed in submissions today in these terms: the facts are indeed largely agreed but the prospects of the claimant succeeding in establishing that what happened to him was any form of race discrimination are non existent, or certainly not reasonable, or failing that he has little reasonable prospect of establishing that. In essence, what is submitted is that the facts as explained a moment ago basically are agreed but that the explanation that there was an error which was responsible for the claimant undergoing the higher of check is one that in effect is bound to succeed, if necessary. The respondent’s primary position, I take it to be, is that the claimant will not in fact get past the first hurdle of establishing a prima facie reversing the burden of proof. From the facts as alleged by the claimant and agreed largely by the respondent there is no real prospect of the claims succeeding.

[28]In support of that , it is contended that the documents show that the contention that this was at worst an error, and an easy one to make, are established, or will be established easily, from an examination of the relevant document which would be completed in this instance in the claimant’s case, an example of which is at pages 80-86 of the bundle. This is a blank form of screenshot, one presumes, of the process that would have been undertaken in relation to how this security vetting would have been set up in the case of the claimant. This is, as I have said, a blank form and the Tribunal does not have the benefit of the one that actually was completed in the claimant's case, but it is pointed on behalf of the respondent by Ms Trotter that , whereas certain parts of the document have to be populated by typing in details, other parts and in particular section 7, contain drop down boxes . In particular box 7.4 has a number of drop down boxes where the security level required is indeed in a drop down form, and although it is blank on the example before the Tribunal it is presumably where , if the little arrow on the right-hand side was clicked , it would give the three options of level of security check, and the person completing the form would then select one of the three levels. In the claimant’s case he or she , on the respondent’s case, presumably clicked in error “SC” for security check , when the menu gave him or her CTC, and this is simply an error , effectively, of inputting. This, it is submitted, is an easy mistake to make and therefore is a plausible explanation that if advanced in a hearing is likely, or more than likely, to succeed , and therefore explains any apparent discrimination that the claimant complains of.

[29]It is also submitted that it would not be apparent to whoever it was that made this alleged error that the claimant was indeed black or black African, whichever of the characteristics he wishes to advance, and that that too would make any form of discrimination most unlikely .The claimant's prospects of success therefore are nil or next to nil. Alternatively, if they are not that low there is little reasonable prospect of him succeeding in the race claims. The claimant’s response.

[30]The claimant resists that, not surprisingly, and invites the Tribunal to look at the history of the matter , and indeed also not only what happened to him but the explanation, or lack of explanation , or lack of prompt explanation, for it. He points to the email exchanges that I have referred to , and how it was that only on 1 June 2018 that somebody did actually say that this was an error .That that was the first time that this had been put forward. It is perhaps worth observing that that, of course, was post the institution of these proceedings, which was on 24 April 2018. Be that as it may, the claimant effectively relies upon not only that happening of the event , and his race , but also the history of his enquiries and the response of the respondent to the complaints that he made.

[31]Additionally, the claimant submits that on an assessment day he was in the minority , in terms of white people , and black or non white people, and submits that it is therefore likely that he was in a minority , if not of one , but at least of a very small number of people in terms of the racial makeup of the potential applicants or successful applicants. He argues that the respondent in these circumstances should have the burden of proving that what happened to him was not discriminatory.

[32]Those, in essence, are the arguments on the race claims. Discussion and findings – the race claims.

[33]In terms of striking out discrimination claims, Ms Trotter has rightly in her submissions referred the Tribunal to the case of Anyanwu v South Bank Students Union

[2001] IRLR 305

which has long been held to be the authority which counsels Employment Tribunals against striking out claims of race discrimination except in the clearest of circumstances. That has been the law for many years. But, as the case of Ahir v British Airways PLC

[2017] EWCA Civ 1392

makes clear, and indeed as do other cases, this should not be elevated to a rule of law; a Tribunal always has a discretion , and it is not the case that just simply because a claim is a claim of discrimination, whether it be race or any other form, that that is somehow some protection against being struck out in an appropriate case. The respondent’s submissions are that this is an appropriate case and the Tribunal should not therefore shrink from making such an order just because this is a discrimination claim.

[34]In terms of the law, of course, and little has been said about this but it is clearly a matter the Tribunal must take into account and the claimant has touched upon, the burden of proof is now to be found in section 136 of the Equality Act 2010, which effectively provides that the burden of proof is reversed if there are facts from which the court could decide in the absence of another explanation that a person contravened the provision concerned, in which case the court must hold that the contravention occurred. In other words, once a claimant has established facts from which a Tribunal could, but not must, absent an explanation, consider that the claimant had been discriminated against, the burden shifts to the respondent to put forward a credible and plausible non discriminatory reason, and the claimant's argument is that he has done, or can do , that and that the Tribunal in those circumstances should not strike out the race claims, or indeed make a deposit order.

[35]In terms of the burden of proof, of course in addition to the section there is much case law both before and after the 2010 Act, and in particular as to whether and when the burden of proof shifts, and in particular the case of Madarassy v Nomura International plc

[2007] ICR 867

, a pre 2010 case, has been referred to but it remains in effect good law, which held in essence that it was not enough for a claimant to establish a difference in status and a difference in treatment as being sufficient to reverse the burden of proof. In other words, simply to say, “I have the protected characteristic, I suffered a difference in treatment” of itself would not be enough to shift the burden of proof, and Madarassy held that, and that has been held to be good law since the enactment of section 136 Equality Act 2010. It has sometimes been termed as the “something more” test , that in those circumstances a claimant has to show “something more” to shift the burden of proof. My task today is not to decide whether the claimant has done so , but whether there is any reasonable prospect of him doing so, and my view is that there is.

[36]The “something more” it seems to me that could, and that is as far as I need to go today, shift the burden of proof is to be found in a number of facts, but two in particular. First of all, the respondent’s contention that it would not be apparent to anyone dealing with the claimant's security check level that he was black or of black African origin seems to me to have little strength in it for two reasons: firstly, there is his name, which clearly is likely to alert anybody to the possibility, nay the probability, that he has some ethnicity other than white British; but secondly, if that were not enough, in the form that the claimant filled in and submitted on 25 September 2017 for the AO post , at page 46 , amongst the details that he provides a the bottom of page 46 in relation to his nationality, in addition to the current, at birth he has put “British and Zimbabwean”, so anyone looking at that, quite apart from his name, would be likely to take the view that he may well be a person of non white origin. So in terms of the alleged lack of knowledge of his race, these were not anonymised applications or anything of that nature. It seems to the Tribunal highly likely that anyone dealing with his applications would be likely to consider , or know , that he was of non white origin. Indeed in terms of the computerised form itself, of course, the blank example in the bundle requires the entry of all the applicant’s details, including the claimant’s name, so this was not being filled out anonymously.

[37]Secondly, I take the claimant's point in relation to sections 7 and 8 of this form, that in addition to section 7, section 8 requires the person completing it actually to save it , and to carry out some further checks to ensure that they have filled it in correctly, including the relevant security clearance section. This suggests that there is, or ought to be, given that it is required to be saved, some form of this document in existence, either in hard copy or on some form of computer record. No copy has been produced, all the Tribunal has got is the blank form, so in terms of the likelihood of the person making a mistake and explaining that mistaken, it is not just simply a question as submitted by the respondent of one drop down box, it is a drop down box plus a requirement to actually check what has been written and to save it. That is a requirement to doublecheck, as it were, that the security clearance section has been entered correctly. In terms of the ease with which the mistake might be made it is not, or at least it seems to the Tribunal, or at least it is arguable, as easy perhaps as was first thought.

[38]The third element that could contribute to the “something more” test under Madarassy, it seems to the Tribunal, is the lack of explanation of lack , or prompt explanation , in reply to the claimant's queries, and indeed the specific question from 22 March onwards as to why this happened. In particular there is the lack of any explanation from the person who apparently was responsible for it, Jack Holding. I say “apparently” because one does not know who actually competed the form. Mr Holding was the only person who responded eventually, but effectively he only simply stated that there had been an error, but did not begin to explain why.

[39]Were it the case that the Tribunal had before it today some witness statements from the person or persons who actually did make the mistake, in which they set out in a coherent , comprehensive , and plausible looking document an explanation for how this came about, then the Tribunal might take a different view, but the Tribunal does not have that evidence at the moment, it only has assertions as to what the explanation was, and the documents . Those assertions may well be right , and as and when the relevant people give the relevant evidence the Tribunal may well come to that finding that there is an innocent explanation, if the burden of proof does indeed pass. I am satisfied today , however, that it certainly is arguable that the burden of proof should pass to the respondent, and if it is arguable that it should then it is far too early for the Tribunal to say that the respondents are bound to succeed in any non discriminatory explanation that they put forward in the evidence.

[40]For those reasons I hold that not only does the claim not have no reasonable prospect of success , I cannot say that it has little reasonable prospect of success in terms of the race claims, and I decline to make an order either striking out the race claims or indeed ordering any deposit in respect of those. The disability claims.

[41]I now turn to the disability discrimination claims. The first issue there is that the claimant at present has to accept that the claims before the Tribunal are those that were identified in the preliminary hearing before Employment Judge Howard. The Tribunal agrees that in the submissions and documents the claimant has put forward today, and this is not a criticism because he is unrepresented and doubtless perhaps did not appreciate this at the time, but what he has effectively sought to do in respect of the disability discrimination claims in particular is to widen their scope. Consequently to the extent that he wishes to complain of not only the delay in any email response he got from the respondent , but also in relation to the content of those responses, particularly for example the email of 14 November 2017, those are not claims that he has presently put before the Tribunal and will have to form the basis of an application to amend if he so decides to pursue them.

[42]In relation to the claims that are before the Tribunal, they are of failure to make reasonable adjustments in relation to email communications. The PCP identified on the last occasion was the requirement to use email communications for this purpose, and the complaint made , the failure to make reasonable adjustment , was the delay occasioned in doing so . The claimant will have to consider, and the Tribunal will have to consider, whether the respondent can be shown to have had the requisite knowledge. The requisite knowledge comes in two forms: first of all of the claimant's disability, and secondly of the disadvantage to which the claimant’s disability was likely to put him, which is the effect of the provisions of schedule 8 to the Equality Act 2010.

[43]In terms of the former, the claimant says “well, I ticked the box on the form that I had a disability”, which is right, but that in itself is not sufficient to establish that the claimant's disability was one that the respondent knew of or ought to have known of in terms of what it was; it was merely an indication that he had a disability. In terms of the subsequent medical examination and assessment, the question, it is right, was not asked, but neither did the claimant say in terms, and he was provided with a copy of that document, that his condition amounted to a disability. Not every medical condition amounts to a disability, and to the extent to which the impairment of the claimant’s day-to-day activities is recorded in the medical examination at page 62, it has to be observed that the effect on those day-to-day activities is relatively marginal because it relates to difficulties in attending meetings at work and the manner in which those might be done. So , it seems to me at this stage that it is far from clear that the respondent would be put on notice at that stage that the claimant had the particular disability of which he now complains, and which may well be established, but in terms of the knowledge of the respondent at that stage then this report, it seems to me, potentially falls very short of giving them that requisite knowledge.

[44]Quite apart from that, even if that report put them on constructive knowledge of his disability , he would have to go further and establish effectively that the respondent knew or ought to have known that the disability in question put him at the particular disadvantage in question, which in the context of these claims, of course, is in relation to delay in responses to emails. Whilst the claimant has quite rightly, and indeed very thoroughly, referred the Tribunal to cases such as Home Office v Kuranchie

UKEAT/0202/16/BA

and indeed other guidance on disability, where it is clear that disability is something where an employer cannot be excused from the failure to make reasonable adjustments merely because the employee has not suggested that adjustment. It is right that in various instances that is so, but in this context one has to bear in mind that this was not employment , this was prospective employment, and the degree to which an employer can be expected to know of the particular disadvantages to which a prospective employee’s disability may put him, when he has not even begun to employ that person , it seems to me , is very different from that which he could reasonably expect to glean for himself once the employee was actually in employment. So whilst taking on board his arguments in relation to the effect of those cases, it seems to me that the claimant will have grave difficulty in establishing, certainly prior to 11 March 2018 email where he expressly made these points, that up until then the respondent had the requisite constructive or actual knowledge of his disability, and/or the disadvantages to which it would then put him. to impose upon them the duty to make the reasonable adjustment of not communicating with him by e-mail, or doing so promptly.

[45]After 11 March 2018, however, the claimant accepted that there was in fact no unreasonable delay in responding to his emails, so in terms of the reasonable adjustment claims after 11 March, which is the point at which constructive knowledge may well then be found to have arisen, the difficulty then is that there is no actual failure to comply with the reasonable adjustments, or the duty did not arise. The claimant accepts that the subsequent replies, which indeed the Tribunal can see for itself, were reasonably prompt and would not amount to a breach of that requirement to make reasonable adjustments. So , the only disability claims that the claimant effectively has made, even if it is not clear at the moment as to whether they do go back any further than 11 March 2018 , if they do already on existing pleadings, the Tribunal is satisfied that those claims would have no real prospect of success, and rather than make a deposit order the Tribunal indeed agrees that those are so unlikely to succeed that they can be struck out, and they will be.

[46]Consequently, the disability discrimination claims are dismissed. There is no need for the Tribunal to consider any financial issues because it is not going to make a deposit order, but the race discrimination claims will proceed. Case management orders are made in a separate Order.

The Facts

[47]Mr Cunningham then went on to look at the work of Jack Holding. According to his investigation, Mr Holding had created 190 security links, two of which were wrong: one was in respect of this claimant and the other was in respect of a white female. Given that 141 errors were found that left 139 errors. They were made by 54 other members of staff, although we do not know the number of candidates involved, the total number of members of staff involved or more particularly the ethnicity of those candidates who were the ones who had incorrect clearance levels applied to them. The report simply does not question ethnicity and in cross examination it did not appear to cross his mind that anything might be related to race. He was not aware, and presumably neither was the Home Office, of any problem of this nature until this case arose. He confirmed that there did not appear to be any checks made on security levels as the process went along. Submissions

[48]We have received lengthy written submissions from the claimant. We have received written submissions from the respondent, but in the form of an introduction setting out the legal position and then a conclusion after the evidence, applying the law to the facts. I will not set out what those submissions are save to say that the Tribunal received and read them, and we also have taken into account the oral submissions made this morning following our reading.

The Law

[49]Section 13 of the Equality Act 2010 deals with direct discrimination and provides that: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[50]Section 23(1) provides that: “On a comparison of cases for the purposes of section 13 there must be no material difference between the circumstances relating to each case.”

[51]There are many decided cases giving guidance to Tribunals in respect of discrimination cases. Ms Trotter in her submission referred to the guidance given by Underhill, P (as he then was) in the case of Amnesty International v Ahmed

[2009] IRLR 884

as to what must be considered by a Tribunal when determining a direct discrimination claim: “The basic question in a direct discrimination case is what is or are the ‘ground’ or ‘grounds’ for the treatment complaint of. That is the language of the definitions of direct discrimination in the main discrimination statutes and the various more recent employment equality regulations. It is also the terminology used in the underlying Directives … In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying ‘no blacks admitted’, race is, necessarily, the ground on which (or the reason why) a black person is excluded James v Eastleigh is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the council’s swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as ‘free entry for women at 60 and men at 65’. The council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it…, ‘gender based’. In cases of this kind what was going on inside the head of the putative discriminatory – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The ‘ground’ of his action being inherent in the act itself, no further inquiry is needed … But that is not the only kind of case. In other cases – of which Nagarajan is an example – the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation i.e. by the ‘mental processes’ (whether conscious or unconscious) which led the putative discriminator to do the cat. Establishing what those processes were is not always an easy inquiry, but Tribunals are trusted to be able to draw appropriate inferences (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator’s action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant … The distinctions involved may seem subtle, but they are real … There is thus, we think, no real difficulty in reconciling James v Eastleigh and Nagarajan. In the analyses adopted in both cases, the ultimate question is – necessarily – what was the ground of the treatment complained of (or if you prefer – the reason why it occurred). The difference between them simply reflects the different ways in which conduct may be discriminatory.”

Conclusions

[52]We need to examine the acts complained of in relation to Mr Holding, Ms Pillai and Ms Russell with whom we include the PM Recruitment inbox.

[53]In relation to the setting of the security level at SC for the claimant, the claimant was treated less favourably by being asked to complete a longer form, including detailed financial information, which we know was not on the CTC form. We know this made the claimant feel weaker as a candidate because his finances were not in as good a state as he might have wished. It made him feel anxious. Certainly on the information we have got the CTC form would not have required financial information, and we know that nothing was done to deal with the claimant’s queries when raised to Mr Holding particularly as to whether or not he was doing the right form, but the initial question comes down to why the claimant was asked to fill in SC and not CTC? Was it because of the claimant's protected characteristic of race, because he is black African?

[54]Mr Holding’s evidence was given. We take the view it was given honestly and we find that he made an administrative error; a position that might have been different had he had proper training, proper supervision, had there been appropriate checks on the system. It would have been better had the system been prepopulated so that if a candidate applied for a job with CTC level the form immediately comes up with CTC level rather than there being room for human error with someone having to populate the level of the security check. Mr Holding made an error. Mr Holding was not, in our judgment, over the relevant time supported by proper training/supervision and management. We do not find any inferences can be drawn to warrant a finding of discrimination against Mr Holding and the Home Office in relation to this error. It was in our judgment an error made without discriminatory intent.

[55]In reaching this conclusion we take into account 180 or so forms completed by Mr Holding, two mistakes made, one in respect of the claimant, one in respect of a white female, and if that person were to be a comparator put forward from the respondent’s side Mr Holding would appear to have not treated them differently i.e. he treated them both as badly for a reason that would not appear to be related to race or to sex.

[56]In relation to the actions or inactions of Mr Holding thereafter, in our judgment he could have answered the claimant’s email sent on 24 October in more detail and properly without just sending him a link to the Home Office Security. He may have been too busy but he, from his evidence, seemed to lack full knowledge of the systems and processes he was dealing with. He failed to go back into the system to check what he had done, he was perhaps too busy to be bothered to give the claimant a proper and detailed answer to the questions that he reasonably raised. But to be too busy to be bothered or to be too busy to give a proper and effective reply does not in our judgment amount to discrimination and we do not find that he did it because of the claimant's protected characteristic related to his race.

[57]Mr Holding was the person who in due course provided an apology. It could, and in our judgment should, have been a detailed letter explaining the position to the claimant, telling what happened and why and what could be done to resolve matters, but again we are satisfied that this was not done or failed to be done on the basis of race. Again it was the way in which Mr Holding seemed to have operated without taking proper care for the person he was initially the sponsor of, and when we have the claimant's final email (page 159) sent to the generic inbox but to “Hi Jack” Mr Holding claims he did not see it, it was not forwarded to him. No-one responded to it. Again we are unable to find that this failure was an act of discrimination against the claimant on the ground of race, but we have noticed that after that apology and failure to respond he did write to the claimant to confirm the chance to continue with his application.

[58]Looking at Ms Pillai, it is alleged that when she sent the curt email to the claimant she was discriminating against him directly on the basis of his race. In our judgment it was a factual response to a part of the claimant's question; it was a failure to respond to the rest. We understand why the claimant might take offence at an email coming to him in a curt and brusque manner using capital letters and red, which generally we think is regarded as being “shouting” which was not necessary when responding to a civil, straightforward and fairly simply enquiry from the claimant. However, we assume that she was asked about the level of security, she checked the database: looking at the database for the claimant would say that the level was set at SC and that is the information that she provided. The letter was brusque, it was rude, it was inadequate, but it was not in our judgment discrimination against the claimant on the basis of his race.

[59]Turning to Ms Russell, at the material time her section seems to have been chaotic and under-resourced. We have noted some inconsistency in her evidence as to whether she was in or out of her office or not during the weeks of the Assessment Centres; there is also the inconsistency in her evidence as to access to emails. We have the response to the claimant's 15 November email which fails to look beyond the immediate question that the claimant raised as to the level of security to deal with whether or not he had filled in the wrong form. Thereafter there was a failure to answer, which should not have been the case. In our judgment there should have been proper staffing such that emails coming into the department were responded to properly rather than being ignored. However, having said that we are satisfied that the race of the claimant was not a factor in the way in which he was treated by Ms Russell and the department and the inbox. We are satisfied there was no racist intent.

[60]Having said all that, we are not surprised that the claimant felt as he did given the initial error in the setting of the security level, the failure properly to respond to his queries or the lack of response to his various emails sent usually to at least two different sections with the Home Office. There was a failure to put matters right when the claimant raised his issue initially to Mr Holding back in October.

[61]We dismiss the claimant's claim that what happened was because of race. We find that the application process that the claimant was involved in was not at all satisfactory from his perspective; we fully understand that. However, we must for these reasons dismiss the claimant’s claims that what happened was motivated by direct discrimination because of his race.

Introduction

[1]This case is about the claimant’s application for employment with the respondent. He successfully applied for 2 roles; an administrative officer role and an executive officer role. He was offered employment, subject to security clearance.

[2]The respondent has 3 levels of security clearance. The level applicable to these roles was a basic clearance level called CTC. Unfortunately the claimant was told that he needed the next level of security clearance called SC. The claimant alleges that he was singled out for the higher clearance level because of his race.

[3]It became apparent during the Tribunal process that the claimant’s complaint also included allegations that he was discriminated against when he raised queries and concerns about the level of security clearance that was applied.

[4]A final hearing in this case took place on 6,7 and 8 August 2019 when all of the claimant’s complaints were dismissed.

[5]The claimant appealed to the Employment Appeal Tribunal (EAT) against 2 findings made by the Employment Tribunal. By Judgment dated 1 July 2021, Judge Keith upheld his appeal against one of these. Judge Keith remitted the case to the Employment Tribunal to determine the finding that had been overturned on appeal. It decided that the same Tribunal should determine the complaint. This Tribunal

[6]One of the members of the Tribunal (the Employment Judge) has now retired. The 2 members, Dr Vahramian and Mrs Jarvis, were on the Tribunal that heard and determined the claim in August 2019. The Regional Employment Judge appointed Employment Judge Leach to sit on the Tribunal for the purposes of this hearing. The issues for determination.

[7]We need to decide whether, through the actions of one its employees called Shyla Pillai (SP), the respondent directly discriminated against the claimant. The issues relevant to this outstanding complaint were identified in discussion with the parties at a case management hearing on 10 September 2021 and set out in the Case Management Summary document sent to the parties following that hearing. They are as follows:-(1) Are there facts from which the Tribunal could conclude that in sending her email to the claimant on 14 November 2017 Shyla Pillai treated the claimant less favourably because of his race than a hypothetical comparator of a difference race would have been treated?

(2) If so, can the respondent prove on the balance of probabilities that there was no contravention of Section 13 Equality Act 2010 because the claimant’s race was not a reason for the treatment?

(3) If not, what is the appropriate remedy for race discrimination?

[8]We refer below to the email from Shyla Pillai to the claimant on 14 November 2017 as “the Email.” This hearing.

[9]The hearing was listed to take place over 2 days, 25 and 26 October 2022. The Tribunal had been allocated reading/refresher time before the hearing itself.

[10]Unfortunately, counsel instructed by the respondent was too ill to attend on 25 October 2022. We were able to speak with Ms Khan of the Government Legal Service and with cooperation from both parties, resolved to begin the hearing at 09.30am on 26 October 2022. The respondent was able to instruct alternative counsel, Mr Tinkler, who was aware of the case having represented the respondent at the Employment Appeal Tribunal. We were unable to reach our decision on 26 October 2022 and we reconvened (in Chambers) on 8 March 2023.

[11]We had a file (bundle) of documents that had been prepared for the purposes of this second final hearing. Reference to page numbers in this Judgment are to that bundle.

[12]We heard from the following witnesses:-a. The claimant

b. Stephen Cooke, Risk, Resource and Accommodation Safety Senior Manager, based in the respondent’s offices in Liverpool (“SC”)

c. Shyla Pillai, Helpdesk Officer in the respondent’s departmental security Unit (“DSU”) based in the respondent’s offices in Croydon (“SP”).

[13]The Tribunal heard from the claimant and SC at the (first) final hearing in August 2019. SP did not give evidence at that hearing. In his judgment in the EAT, (para 58) Judge Keith said this: “In remitting the matter back to the original ET, I reiterate the preserved ﬁndings and the point that the Appellant‘s case is not that he was the subject of systemic discrimination. The only remaining claim to determine is in relation to Ms Pillai’s email. Whether the Respondent now seeks to adduce evidence from Ms Pillai is a matter for it, as she may not even still be employed by the Respondent and may not be contactable.”

[14]Ms Pillai is still employed by the respondent and attended this (second final) hearing to give evidence. Findings already made

[15]At the first final hearing, the Tribunal made many findings of fact that are not now challenged. The findings already made provide relevant contextual information. They are set out in the full reasons for the Judgment, sent to the parties on 5 November 2019 (we call this the 2019 Judgment). Those that are directly relevant to the issues we need to decide are at paragraphs 21 and 22 (page 87).

[16]By way of brief summary:a. In 2017, the claimant applied for 2 roles with the respondent, an Administration officer (AO) and an Executive Officer (EO).

b. The claimant’s applications were successful. The EO was the more senior role. He was offered that role second (and a few months later than the AO role) and, once offered, that is the one that the claimant proposed to progress.

c. The offers to the claimant were subject to a security check.

d. The respondent has 3 levels of security check. The name of the level of check that should have been applied to the claimant is CTC. That is the lowest level of security check.

e. In fact, what the claimant was told was that he was to undergo the second level of security check called SC. That was an error made, not by the department that the claimant was being recruited in to but by a department called Government Recruitment Service (GRS).

f. The error was by a civil servant working in GRS, called Mr Holding. He input the wrong information in to the respondent’s recruitment system.

g. The claimant was pretty sure that he was being made to undertake the wrong check and raised this with the respondent on various occasions between October 2017 and March 2018

h. It took many attempts on the part of the claimant over those months before the respondent finally acknowledged that an error had been made.

i. By that stage the claimant decided that he no longer wanted to progress with the recruitment and he did not take up the employment offered to him.

[17]It is clear from the conclusions reached at the first final hearing that the treatment of the claimant was unacceptable in putting him on the wrong security clearance and then failing to correct this, even though the claimant provided the respondent with multiple opportunities to do so. As for what led to the claimant being initially required to undertake the SC clearance level, the Tribunal has already decided that it was a result of avoidable human error on the part of Mr Holding (a witness at the first final hearing but not at this second final hearing). That human error was caused or contributed to by a lack of training, lack of supervision, and high workload. (paragraphs 9-14 and conclusion at paragraphs 54-56 of the 2019 Judgment). There was no direct discrimination.

[18]It is also clear from the decision (not challenged) that some of the tardiness in responding to the claimant’s queries about the security level were due to (or contributed by) under resourcing and some “chaotic” circumstances in the relevant department; again the finding was that there was no direct discrimination (see particularly findings of fact at para 44-47 and conclusion at para 59) Our fact finding

[19]There is little in dispute about the relevant facts.

[20]The claimant queried with Mr Holding the level of security clearance being applied and was told by Mr Holding on 31 October 2017, to contact Home Office security enquiries (page 155).

[21]On the same day the Claimant then emailed the Home Office security enquiries helpdesk at the email address he had been provided (page 156). He received an automated reply telling him that there were unusually high volumes of queries impacting on response times.

[22]The claimant had still not received a reply by 13 November 2017 and so, on that day, he sent a second email to the security enquires email address.

[23]The second email (13 November) contained nearly the same information that he had sent on 31 October but he had not received a reply to. We set it out below:- Hi, I have submitted the Security Questionnaire for the HOM/610/17 AO role. My understanding is that the for the HOM/610/17 role, the level of security check required is counter-terrorist check. This is confirmed in the job advert and in the Candidate Information Pack for this role. I believe that the questionnaire which I submitted was for SC clearance. I thought that for the CTC level of security check, a personal finance/credit check was not carried out. In the SC questionnaire, it asked for information on financial history, financial circumstances, assets and liabilities. I think that I may have been accidentally sent the link for SC clearance instead of CTC clearance. Can you please advise if an applicant’s credit score/credit profile will have any bearing on whether an applicant gets security clearance for this role. I am looking forward to hearing from you.

[24]On 14 November 2017 (2 weeks after the claimant first emailed HO Security Clearance, but 24 hours after his most recent email) the claimant received a response as follows:- Hi Simbirai The level of security clearance is requested for SC NOT [typed in red font and capitals] CTC. Many thanks Shyla Pillai Security, Science & Innovation Directorate Home Office

[25]In his evidence, the claimant has referred to the Email as “cruel;” saying it led him to having a panic attack, that it was “unjustifiably vile.”

[26]We accept that the Email was sent to him at a stage when he had already queried the security level, when some of his emails appear to have been ignored and others had got him nowhere. We are sure that he was very frustrated.

[27]We do not however find that it would be reasonable to describe the Email in the way that the claimant has. We maintain the description given to it in the 2019 judgment – that it was “curt” (see para 58). We would also describe it as; unhelpful, abrupt. It does not engage in the level of detail provided in the claimant’s query. It does not answer the query about credit score

[28]SP says (and we accept) that she has no recollection of sending the Email itself. In this second final hearing, the claimant questioned SC about her evidence that she dealt with 50-70 queries a day and did so throughout the year. We accept that SC was dealing with a high volume of email traffic at the relevant time and spending substantially all of her working day doing this. We accept that, when dealing with emails, SP was aware of the extent of unanswered emails awaiting her attention. We also accept:-a. that late 2017 was a busy year for SP. She worked on the security clearance helpdesk with one colleague only. There was significant recruitment taking place in 2017/18 due to the need to process residency for EU Citizens residing in the UK. This increase in recruitment activity meant that her team was particularly busy which required her to deal with a high volume of email queries on a daily basis.

b. that as of November 2017, the helpdesk on which she operated, had just stopped dealing with telephone queries. Therefore all queries were received by email.

c. when necessary to review data entries for a candidate for employment (held on a system called the DSU database) SP accessed the first page only on almost all occasions. This provided basic information only which would not include for example a candidate’s nationality or ID details.

[29]We accept that the Email was one of many transactions what will have been carried out by SP on the relevant day and that it is understandable that SP does not recall the Email. We believe her when she says she does not recall dealing it.

[30]We have also taken account of the fact that the respondent did not initially pick up that the claimant had a specific complaint about the Email. Whilst this hearing has necessarily focussed on the Email, the case the claimant issued with the Employment Tribunal was principally about the decision to impose a higher security check than was required of other candidates. That meant that SP was not questioned about the Email until relatively recently. We comment further on this below.

[31]As SP could not recall the Email, she had to provide evidence based on her recollection of the circumstances generally at that time and also to give evidence on what she would normally do and why, but without any specific recollection of sending the Email to the claimant. The claimant’s complaint about the Email.

[32]It is relevant to note the following:-a. that on 11 March 2018 the claimant raised concerns/complaints to the respondent about the way he had been treated. In this email the claimant noted that he had not received replies to some emails and that “Some people within the Home Office security /pre-employment check set up were not very helpful.”

b. That on 22 March 2018 the claimant said that he had been treated unfairly in the vetting process but did not specifically raise the Email.

c. In the Claim Form ( ET1) dated 29 April 2018, the claimant makes no reference to the Email. The focus is on the decision to put the claimant through the wrong vetting process and arguments that was due to race and/or (at the time) disability discrimination. At part 8.2 of the claim form the claimant states “ The reason why I want to take the Home Office to Employment Tribunal is because I was required to undergo the SC vetting process while other applicants only had to undergo the less stringent CTC vetting process. I am black and I noticed that almost all of the applicants that I saw at the assessment centre were white.”

d. In a case management hearing held on 18 July 2018, it was noted that the claimant’s complaint of race discrimination included the way that the respondent communicated with him about the security vetting issue, but no specific reference to the Email.

e. A preliminary hearing took place on 23 October 2018 when applications for strike out/deposit orders were considered. The judgment arising from this hearing noted specifically the Email (paragraph 13 of the Judgment, at Page 31 when the Email was described as “somewhat terse”).

f. In his written submissions provided at the first final hearing (a copy of which is at pages 43-70) the claimant puts forward the argument that the treatment that he received from Shyla Pillai is “part of the overwhelming evidence directly connected to Mr Holding and a lot of evidence indirectly connected to Mr Holding which points to racism being the reason why I had to undergo the SC level of security check.” In other words, the focus of the case was on the respondent’s decision to require the higher level of security check and to persist with this requirement in the face of the claimant’s queries.

g. However in the same submissions made at the (first) final hearing, the claimant also makes specific allegations about the Email (see page 63 “In light of the fact that I am a black man of African descent with an African name who was trying to apply to work for an organisation which does not have many black Africans working for it and all the surrounding facts, the reason why Ms Pillai subjected me to the less favourable treatment is because of my race. There is simply no other logical explanation for her vile treatment of me.”.

[33]The claimant’s focus on the email and SP has increased throughout the life of these proceedings. Inevitably its importance to the claimant has increased significantly following his successful appeal. In November 2021 ( soon after the claimant received the outcome of his appeal to the EAT) the claimant submitted a questionnaire to the respondent asking questions and requesting information relating to the Email. The response was that documentation no longer existed (see further paras 56 and 57 below).

[34]In his witness statement prepared for the purposes of this hearing, the clamant does not specifically refer to the Email as being direct race discrimination in itself or make any allegation that Shyla Pillai discriminated against him because of his race. At paragraph 28 of his statement the claimant describes the email as “very nasty” “ very cruel” that there was no empathy and that it led to the claimant having a panic attack. On this, see our comments at 27 above. SP’s actions on 14 November 2017

[35]SP is a junior civil servant. She joined the service in 1998 as an administrative assistant and has had one promotion since then. SP told us that she did not want higher promotion. She was content with her role and grade. SP did not know, until about September 2021 that she may have to provide a witness statement about her actions on 14 November 2017.

[36]We accept SP’s evidence that she works as part of a diverse and multi-cultural team, that she has a diverse customer base and has worked with people (and handled enquiries from) people of all nationalities, ethnicities and cultures. We accept that in over 20 years as a civil servant she has never received a complaint concerning her conduct or performance, about discrimination or otherwise.

[37]As noted above, SP gave her evidence without specific recollection of sending the Email. We find that she did so to the best of her ability, truthfully and candidly.

[38]Having heard from SP, the claimant and considered the relevant documents, we make the following findings:-a. On the occasion of the Email, SP’s department processed the emailed query within its target of 48 hours. It had failed to do this with the claimant’s first email of 31 October 2017. We find this gives an indication of the pressure the department was under at the time. The reason for this delay was the work pressure that the department was under.

b. Before replying to the claimant, SP accessed the relevant information on the respondent systems (contained on a database called DSU).

c. Having accessed that database, SP saw the level of security clearance required of the claimant to be the higher level ( SC) and that is what informed SP’s reply to the claimant.

[39]Having made these findings, we have gone on to consider:-a. Why SP left matters there and did not query with others at the Home Office, whether the SC clearance was correct.

b. Why SP responded in the form that she did ( particularly using red font and capitals).

[40]We accept SPs evidence that she would not have queried the information provided by the DSU database and we find that she did not do so on that occasion. We accept that this was particularly the case in the pressurised working environment at the time. It is possible that in a less pressurised environment SP could and would have signposted him elsewhere. But SP was not in that less pressurised environment.

[41]As for the use of the red font and capitals:-a. We accept SP’s explanation this method of communication was sometimes used by her for emphasis.

b. She did not apply any thought to how the recipient might receive the email. Sometimes careful thought is given to the language and style of electronic communications. SP did not have the luxury of the time to give such careful thought. Also:- i. We accept her evidence that she had used this method before and not been criticised for it. ii. An emphasis in messages by using font changes, appears to have been in practice at the time. We note the bold and underlined font on part of a standard message dated 20 April 2018 (page 212) and an emphasis of part of a message by displaying it in red font - on an email dated 21 March 2018 at page 192 and in red font, bold and underlined in an email of 25 November 2021 at page 245. Whilst we note that these examples are to messages in standard email “footers” particularly, it is some indication that some messages included emphasis by altering font.

c. We have considered the submission made by the claimant, that SP would have been engaged in more time in changing the font colour to red and upper case. But we find that would only have added a second or 2 to the time taken to send the message.

d. The response was to a “chaser” message. The claimant had not received a reply to his first message and therefore sent a second email. The reply, with the changed font to provide emphasis, was to this second email. SP’s actions – March 2019.

[42]It is relevant to make findings of fact about SP’s subsequent involvement with the claimant.

[43]On 21 March 2018 (page 192) SP emailed the claimant in the following terms “Sims Your line manager/Business Unit will inform you as to the security level required for your post. This is not done by centrally”

[44]We also note the email is one that has a footer in red font and italics, informing the receiver that SP’s department was receiving a high number of queries and to bear with them.

[45]The claimant confirmed in his evidence that this email was acceptable. SPs evidence about the claimant’s name.

[46]Because she had no recollection of handling the email in question, SP was unable to give evidence that she did not notice the claimant’s name on the email or, if she did, did not assume that the claimant was African. In her evidence SP explained her own minority ethnic background, that she knows people of many different cultures and national origins and her view that it is unreliable to assume a particular national or cultural background from a name. She summarised her evidence on this theme at paragraph 27 of her statement. “ I give these examples because in my experience you simply cannot know or assume a person’s race, nationality, ethnicity or background from their name alone and I would not have made assumptions about Mr Mutangadura or any other applicant”

[47]The claimant’s name appears on the Email – Simbirai Mutangadura. If a recipient of an email from the claimant containing his name, were to reflect on that name, they would conclude that the claimant is almost certainly not of white British origin and possibly also that the claimant is black African or of black African origin.

[48]However we find:-a. That SP’s focus on 14 November 2017, was to deal with the email query as quickly as reasonably possible, given the backlog. As such, we find on balance that she did not pause to consider the origins of the claimant’s name.

b. Had SP considered the claimant’s name and concluded that he was or may have been of black African origin, she would not have treated the claimant less favourably as a result. We make this finding having considered the evidence provided by SP in her statement, in answers to questions from the claimant and in the bundle (particularly page 192 of the bundle – being the only other email from SP to the claimant which is dated 21 March 2018 (comments above).

[49]We accept SP’s evidence that, when dealing with the query from the claimant she would not have accessed any information on the respondent’s systems about the claimant’s nationality or national origins. Respondent’s retention of emails.

[50]Part of SP’s evidence is that she has in the past sent emails to other recipients that included highlighted words in red font and capitals. Understandably, the claimant asked where other examples were.

[51]SP did not provide any other examples. Her evidence was that she had stopped emphasising parts of messages in red font and capitals when she learned that it had caused offence to the claimant. We accept that evidence.

[52]The respondent’s evidence was that it was not possible to search a “back catalogue” of emails sent by SP because such emails were not retained. Mr Cook gave evidence that he tried to conduct a search for SP’s old emails but was told that was not possible. He gave evidence of a discussion he had with another employee of the respondent called Stuart Crook (SC) who is the Head of Personnel Security at the respondent’s security unit. Mr Cook’s evidence is(1) that he was told by SC that at the time, emails were being handled via Outlook and were deleted every 2 weeks or so

(2) a more recent system has a retention time set at 90 days. Any emails that need to be retained for longer are transferred to a case management system.

[53]SP’s evidence is consistent with the information provided by Mr Cook. This is what she says: “I have been referred to emails he [the claimant] sent to HOsecurityenquiries@homeoffice.gsi.gov.uk. This is the inbox which was receiving all HO security enquiries at the time and, as referred to above, was being manned by just me and one other colleague in October and November 2017. This had a huge backlog of enquiries and we were trying to get through as many of these in a day as we could. Before clustering we were using Outlook and at the time this inbox received thousands, sometimes 10s of thousands of emails in a week. Our server did not have the space to store the volumes of emails we sent and received so our practise was to delete emails once we had dealt with them.”

[54]“HOsecurityenquiries” was an email equivalent of a helpline. We accept that the email traffic was considered to be the type of information that could and should be deleted after a short retention period and soon after a query had been answered. Any email traffic generated that became more significant was purposefully moved to different system/folder.

[55]We accept SP’s evidence that she was unable to recover other emails from that period which included her placing an emphasis (by changing font) on part of a message.

[56]We are not impressed by some of the respondent’s response to a questionnaire submitted by the claimant on 22 November 2021 (a copy of which is at 280 to 282). One of the questions asked by the claimant was:- “Please advise of the number of emails in which Ms Pillai used at least one capitalised and in bold word in red that was underlined from 2017 and onwards that were sent from Ms Pillai to other people in relation to a security check that they were undergoing or underwent.”

[57]Other questions indicated that the claimant wanted disclosure of similarly styled emails.

[58]The response provided in January 2022 was “Emails from 2017 are no longer available.” At the date this questionnaire was received the respondent knew that it faced a remaining complaint from the claimant about the Email. The response provided is accurate as far as emails sent in 2017 are concerned. However it must have been possible to have searched emails for the 90 days at the end of 2021. We accept that SP had by then stopped any underlining or red font colour and she may have done more than 90 days before the date of the questionnaire/ We note that by the Case management Hearing on 10 September 2021 SP had been told about the complaint and her involvement(see para 15 at page 122). There may have been no such emails in this last period of 2021. But the respondent should have considered this and provided a more accurate response.

[59]We also find that SP had no involvement in the responses to this questionnaire. Through the actions of others within the respondent, SP might have been denied an opportunity to provide documentary proof that sometimes she emphasised part of a message by using a contrasting font. Submissions

[60]We heard submissions late in the afternoon of the second day ( 26 October 2022).

[61]For the respondent, Mr Tinkler relied on the written submissions document that had already been provided by Mr Jones and supplemented these with oral submissions. By way of brief summary, in Mr Tinkler’s oral submissions:-a. We were reminded of the findings of fact already made at the first Final hearing and not challenged.

b. That allegations of discrimination against the respondent through the actions of their employees Holding and Russell, had been dismissed and the only remining issue was in relation to the Email;

c. That the claimant takes no issue with SP’s email of March 2019.

d. That a large part of SP’s evidence is unchallenged – including the heavy workload, the significant recruitment taking place. c. That although SP is unable to specifically recall her dealing with the claimant, she gave clear and candid evidence about the process she would have followed. d. That the respondent has provided a coherent explanation about the destruction/non-retention of emails.

e. That the claimant did not raise any concerns at the time or in the ET1 about the Email.

f. That the claimant has not discharged the initial burden of proof but if the Tribunal is against the respondent on that, through the evidence provided, it has done mor than enough to adequately discharge the burden of proof.

[62]A brief summary of the claimant’s submissions:-a. This is a case whether there has been subconscious bias by SP.

b. That if SP was unable to consider properly the claimant’s query, she simply needed to refer him to the relevant business manager or business unit but instead she replied as she did and did so because she decided the claimant was trying to lower the security levels and therefore cheat the system.

c. That the difference in circumstances of November 2017 (when SP sent the Email) and March 2018 ( when SP was much more friendly and helpful) was that in March 2018, the claimant had informed SP’s department ( by email of 11 March 2018) that the correct security check level was CTC ( low) level.

d. In November 2017, SP could and should have just advised the claimant to raise his query with the right department.

e. That there are people who consciously or subconsciously believe that black people are more likely to be involved in misconduct (para 3m of the Written submissions).

f. That SP subconsciously distrusted the claimant and that was based on her stereo typical assumptions about black Africans. He supplements this considerably in his written submissions. At paragraph 5: “Miss Pillai realised in my 13 November 2017 to Home Office Security Enquiries that I was trying to get the Home Office to change the level of security cheque from SC to CTC. She subconsciously thought that because of my black African background that was suggested by my distinctive name, I was doing so fraudulently.”

g. That SP will have sent 1000s of emails (in his written submissions the claimant estimates some 50,000 over a 4-year period) yet when the claimant asked for disclosure of emails from SP which contained red capitals, not one other example was provided.

h. That the respondent dd not produce Mr Crook (or other IT expert) as a witness about IT retention policies. Adverse inferences should be drawn from this.

i. A hypothetical comparator in substantially the same circumstances ( but called John Smith) would not have received a direct, curt response as the claimant received. That comparator would have had their query about security clearance properly investigated and resolved. (paras 11- 13 of the written submissions)

j. The evidence provided by SP does not discharge the burden of proof that must shift over to the respondent.

[63]We have read and re read the written submissions documents handed up by the parties, including the additional written submissions that the claimant provided after the hearing, by email dated 24 November 2022. We note specifically one part of the respondent’s written submissions. Paragraphs 19 and 20 of Mr Jones’/Mr Tinkler’s submissions draw our attention to another Employment Tribunal case that the claimant brought and some of the conclusions of the Tribunal in that case. We have not considered the judgment in the other case, focusing instead on the merits of the case before us. The Law Direct Discrimination – section 13 Equality Act 2010 (“EqA”)

The Law

[64]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.”

[65]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.

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

[1999] ICR 877

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

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

[67]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).

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

2003 ICR 337

and MacDonald v. MOD; Peace v. Mayfield School

2003 ICR 937

). Burden of Proof

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

[70]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.”

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

[2005] EWCA 142

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

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

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

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

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

f. Where the claimant has proven facts from which the Tribunal could conclude that the respondent has treated claimant less favourably on the grounds of (in this case) the claimant’s race then the respondent must prove that it did not do so. It must pro9ve that the treatment of the claimant was in no sense whatsoever on the grounds of the claimant’s race.

g. The tribunal will need to assess

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

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

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

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

[2006] IRLR 748

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

[2022] EAT 68

and particularly paragraphs 43-46.

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

[2007] ICR 867

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

Conclusions

[74]Before we set out our conclusions against the relevant issues we wish to make clear that the claimant should not have been put through the turmoil of the recruitment process that he was. We have no doubt that it upset him greatly. The Tribunal has already recorded (in the 2019 judgment) the sometime chaotic nature of some of the respondent’s relevant operation, some lack of care and mistakes. The evidence heard in this second hearing confirms how busy relevant departments or teams within the respondent department were at the relevant time, when a huge recruitment exercise was underway (see para 6 of the 2019 Judgment).

[75]The principal wrong that the claimant was subjected to was the application of the incorrect security clearance and that was not initially picked up within the recruitment process even though the claimant queried it. The action of SP in writing and sending the Email was in part a continuation of that wrong and in part a consequence of it. The Tribunal has already reached the decision that the principal wrong was caused by an administrative error and not unlawful discrimination.

[76]Issue One Are there facts from which the Tribunal could conclude that in sending her email to the claimant on 14 November 2017 Shyla Pillai treated the claimant less favourably because of his race than a hypothetical comparator of a difference race would have been treated?

[77]We have decided that it is appropriate to look at the email in 2 parts:- 1. Whether SP treated the claimant less favourably in communicating to the claimant the error that the security clearance level was SC not CTC (rather than for example signposting the claimant elsewhere or looking in to the claimant’s query further). 2. Whether SP treated the claimant less favourably in the style of that communication – the curt, “shouting” terms that she used.

[78]These are the facts that indicate that discrimination may have occurred:- (1)The claimant’s name that appeared on his email to which the Email was a response, being a name that a reader might conclude was of black African origin. (2) The terms of the Email itself, being curt, brusque and shouting ( as already decided in the 2019 Judgment). (3) The absence of any similarly styled emails sent by SP to any other recipient.

[79]These are also facts that we have taken in to account in considering and deciding on Issue One:-(1) That SP sent a second email to the claimant in March 2018 that the claimant refers to as being in friendly terms

(2) That the November 2017 and March 2018 email exchanges were the only 2 contacts between SP and the claimant

(3) That the respondent system showed the incorrect security clearance level – but this error was not a result of a discriminatory act.

(4) That SP accessed the system and told the claimant the security clearance level that was on the system.

[80]There are no facts which we could conclude that, in telling the claimant that the security level was SC (i.e. the incorrect level) SP treated the claimant less favourably because of his race than she would have treated a hypothetical comparator in the same circumstances, called John Smith. SP saw the security requirement on the system and that is what she reported. There is no evidence to indicate that SP knew that the information was inaccurate.

[81]However, the style of the communication is something that requires explanation particularly in the absence of documented examples of similarly styled emails sent by SP to other recipients. Therefore we look to the respondent to prove, on the balance of probabilities that, the claimant’s race was not a reason for the treatment. Issue 2 If so, can the respondent prove on the balance of probabilities that there was no contravention of Section 13 Equality Act 2010 because the claimant’s race was not a reason for the treatment?

[82]Notwithstanding our finding above, when reaching our decisions on issue 2 we considered and reached our conclusions on the respondent’s explanation about the email as a whole.

[83]Our conclusion is effectively recorded in our findings of fact, that we are satisfied that when writing the email in the terms and style that she did, SP was not influenced by the claimant’s name (see particularly para 40 and 41 above).

[84]We considered whether the respondent could discharge the burden of proof at all given(1) that it was unable to provide a witness who now recalled dealing with the Email and

(2) SP had been unable to provide copy emails in the same style, due to the short data retention periods applicable and possibly also due to the failings of others within the respondent, to review emails from the 90 days preceding consideration of the claimant’s questionnaire dated 22 November 2021 (see paragraphs 56-58 above).

[85]Had that answer been a straight “no” then our only possible conclusion would have been that SP directly discriminated against the claimant even though, having heard and considered the evidence provided by SP we are all firmly of the view that she did not.

[86]These difficulties with the evidence were not fatal to the respondent’s defence, but they did place the respondent at something of a disadvantage when discharging its burden of proof.

[87]In reaching our conclusion, we took into account the reasons why the evidence could not be provided and particularly the fact that it was through no fault on the part of SP. We also took in to account the evidence that the respondent did provide, particularly the evidence from SP. This evidence satisfied us that race was not a reason for SP writing the Email in the terms and style that she did.

[88]For these reasons, we find that the claimant was not subject to direct discrimination as alleged. Employment Judge Leach Date: 13 March 2023