Mr Daniel Hart v Birmingham Neoglory Ltd and others: 2501176/2018

EMPLOYMENT TRIBUNALS

Case No 2501176/2018

Venue NORTH SHIELDS

Hearing 2 August 2019

Between

Mr Daniel HartClaimant

Birmingham Neoglory Ltd and othersRespondent

Before

Employment Judge Garnon

Date 2 August 2019

JUDGMENT

[1]The name of the third respondent is further amended to that shown above.

[2]The claimant was harassed contrary to section 40 of the Equality Act 2010 (the EqA) by all three respondents . We so declare and order the respondents to pay compensation to the claimant of £ 7000 and interest of £ 840 for which they are jointly and severally liable. REASONS ( bold print is our emphasis and italics quotes from documents)

[1]Procedural History of the claim and the Issues for today 1.1. The claimant (C) was employed by R1 from 25 November 2017 to 3 February 2018 at a shop in the Gateshead Metrocentre called “Amon” (“the shop”) which sells handbags and other accessories . He originally named Amon as the second respondent. He commenced Early Conciliation (EC) against all three respondents on 17 April and received an EC certificate on 25 April 2018. The claim, presented on 25 May 2018, is expressed as harassment only contrary to s 40 EqA. The claimant does not say he was constructively dismissed. as he confirmed at a preliminary hearing before Employment Judge Garnon on 13 December 2018 and the remedies he seeks are a declaration and compensation for injury to feelings only. 1.2. The claim was served on 20 June . A response form, due by 18 July, arrived on 17 July signed by R3 and Mr Yan Wang as Director of R1 attaching payroll documents relating to C. It did not answer the harassment claim but denied dismissal which was not claimed. It says R1 and R3 need not consult solicitors because it was a very easy case. 1.3. At various stages of claims most Employment Judges perform a company search to check they do not take steps against a company which has been dissolved or is in compulsory liquidation or administration. In this case one showed the sole director of R1 is a Mr Yan Wang. The company was shown as “active”. 1.4. On 15 August 2018 Employment Judge Johnson conducted a preliminary hearing at which none of the respondents appeared. He ordered the removal of Amon from the proceedings , the joining of Ms Karen Price as R2 and made an order for further particulars from the claimant by 31 August. The claimant set out instances of things said, by various people and enclosed a manuscript 3 page signed statement of Ms Amanda Tilney. Employment Judge Johnson ordered a reply to the further particulars by 28 September. One arrived on 27 September 2018 under cover of a letter from Legis Chambers, Fitz Eylwin House, 25 Holborn Viaduct, London EC1A 2BP signed by Mr Nazar Mohammad , Barrister. It denied anyone for whose acts R1 is responsible had said what the claimant alleged. R2 was served on 26 October 2018 at an address c/o R1. No response arrived from R2. Employment Judge Johnson made an order R1 and R3 confirm whether R1 employed R2. By email it denied it did. He ordered a preliminary hearing to clarify the claim. 1.5. At that hearing before Employment Judge Garnon R1 and R3 were represented by Mr A Khan Solicitor and R3 attended. Employment Judge Garnon told Mr Khan he was not prepared to “play hide and seek the proper respondent” , needed to ascertain exactly the role various people held and broke for 15 minutes to enable Mr Khan ,whom he found cooperative and helpful, to take instructions. Mr Khan returned saying Amon shops are operated by franchisees ,R1 is one, and R3 provided services to R1 as a consultant. R2 was employed by another Amon franchisee in Doncaster and “lent” to R1 to help at the Metrocentre shop. R3 believed R2 left the employment of that franchisee in June 2018. The impression being given was that R3 had nothing to do with the Doncaster franchisee. 1.6. R2 had only ever been sent the claim c/o R1’s Metrocentre address and Employment Judge Garnon suspected she had never had notice of the claim which would explain why she had not entered a response. It was the view of the claimant, Mr Khan and himself that before the issues of for whose conduct R1 could be liable and for what R2 or R3 may be liable under sections 110-111,were addressed , it was essential a further attempt be made to effect service on R2 .He wrote in notes sent to the parties that if it was not possible to do so, but the facts set out by C as to the role R2 and R3 played in the shop were accepted, it seemed likely R2 in acting as a manager (she actually claimed, according to C to be the managing director ) and R3 were employees or agents of R1. It, as well as C, could be prejudiced in that without knowing what R2 has to say about the allegations against her, R1 would have difficulty running any defence to the claim if what C alleged was accepted as true , which it may well be if R2 not there to rebut his evidence. In written notes sent to the parties Employment Judge Garnon set out the essence of the claim as clarified and, to assist the parties , the relevant law in similar terms to that in part 2 below. 1.7. When this claim was presented the name of R3 was stated by the claimant as Linda Xiong. As Mr Khan requested, Employment Judge Garnon ordered the spelling of her surname, in the characters of the British alphabet ,to be amended to Zhang . A letter to the claimant dated 7 September 2018 , copied to the Tribunal is signed “ Linda Zhang On behalf of Birmingham Neoglory” By 17 January 2019 R1 was to use reasonable endeavours to provide the tribunal a service address for R2 . The file was to be referred to Employment Judge Garnon on that day, or before if R1 replied earlier, to consider what steps to take to effect service on R2 and/or convene a further preliminary hearing. Some correspondence sent to the shop was returned by Royal Mail on 27 December 2018. Employment Judge Garnon directed it be re-sent to Legis Chambers which it was on 8 January 2019. No reply was received so another letter was sent to Mr Mohammad at Legis Chambers on 6 February. 1.8. By email on 7 March 2019 at 15:31 Mr Mohammad replied R1 believed R2’s last known address was “129, The Oral, Cowlesbroush Doncaster DN12 3HZ.” The tribunal clerk did a postcode search and found the proper spelling was 129, The Oval, Conisbrough, Doncaster DN12 3HZ. Employment Judge Garnon directed R2 be served at that address which she was on 14 March. She had until 11 April to respond but she did not. Neither was the documentation returned by the Royal Mail. 1.9. Employment Judge Garnon then directed a public preliminary hearing to decide which respondents were potentially liable to C if his claims were proved and to give directions for a full trial. It was fixed for 4 June 2019. On 3 June at 17:15 an email was received from Mr Mohammad asking R1 and R3 be excused from attending. It said C was not an employee of R1 or R3 and neither of them had harassed or caused ,encouraged or incited any other person to harass, C. It criticised the particularisation of the claim, said the allegations amounted to an abuse of the court process, the claim had no merit, was malicious, misconceived and should be struck out. When the public preliminary hearing came before Employment Judge Garnon only C attended. He gave evidence that as far as he was aware Mr Yan Wang was the husband of R3. He also said all wages paid to him went directly into his bank account and although originally his bank statements showed the payer as R1, a payment on 25 January 2018 ( of which he produced a copy today) from “ Xiong Neog” was, so R3 told him , from her. Employment Judge Garnon concluded the statement in Mr Mohammad’s email “The Claimant was not an employee of either R1 or R3” contradicted what has been previously pleaded. All the documentary evidence he saw clearly showed C was at all material times employed by R1. It was also far more likely than not R3 was either an employee or agent of R1. The same was true of R2. In such circumstances insofar as the claim was proved, he held all three would be liable. 1.10. Finally, he ordered a full hearing be listed before a full panel and a witness order sent to Ms Tilney. That order was returned by Royal Mail but, as the claimant confirmed in sworn evidence today, he, accompanied by his brother , delivered it personally to Ms Tilney at 7:15 pm on 24 July at the same address from which it had been returned, which was also the address she gave for herself in her signed statement. Late on the day before the hearing Ms Tilney telephoned the tribunal saying she was a registered childminder and not available to attend. She was asked to email the tribunal if she could not. 1.11. These emails arrived : From: Amanda Tilney Sent: 01 August 2019 19:42 To: NO-NTMClisting <NO-NTMClisting@Justice.gov.uk> Subject: 2501176/2018 My name is Amanda tilney. I have been called as a witness to give evidence for mr d Hart. I don't understand why or how I can give evidence as I left Birmingham neoglory in November mr Hart got my job as manager when I left so I can't tell you what went on as I didn't work there when Dan was the manager! I would be lying if I said I did. I also can not come to court today as I am a ofsted Registered Childminder and I have children. If I had of worked there when Dan was manager I would of had an insight into it but like I said I was the manager but when I left dan said he got my job. Kind Regards Amanda Sent from my iPhone From: Amanda Tilney Sent: 02 August 2019 09:09 To: NO-NTMClisting <NO-NTMClisting@Justice.gov.uk> Subject: Re: Auto-Response Hi I do hope my emails go to the right place so I have emailed both email address. I also did state to To Mr Hart that when I left my job at Amon in Metrocentre as manager Mr Hart got my job as he told me he got the manager job if I was a witness how could I say what had gone on as I didn’t work there when he was manager so it would be a waste of everybody’s time as I haven’t a clue what had been done or said! Maybe the staff that worked with mr Hart as his time as manager maybe able to help but am not going to stand up and lie because I wasn’t there so I really don’t know so I am unable to help. I am also an ofsted Registered Childminder so I couldn’t come today and even tell you what I have just said in an email as I have children booked in and to be honest it’s just a waste of your time and mine, has he not asked any of the girls that worked with him because he said he had took a couple of girls on? I would be grateful if you could email me back to confirm you have received my emails. Kind Regards Amanda Sent from my iPhone 1.12. Employment Judge Garnon today repeated a company search. The sole director of R1 is a still Mr Yan Wang . The company is still shown as “active” ,changed its registered office from 35-40 Rea Street Digbeth Birmingham West Midlands B5 6HT to Unit 90, 14 Russell Way, Intu Metrocentre, Gateshead NE11 9YG on 15 February 2018. Its 2019 annual confirmation statement is overdue. When he searched the search engine produced other companies containing the name “Neoglory” . There were several , some had been liquidated or dissolved, one was called Xiong Neoglory Ltd. Its registered office is Unit 38 Frenchgate Shopping Centre Doncaster. Its director is shown as Xiong Wang . There was a shop called Amon in the Frenchgate Shopping Centre. 1.13. There has been no appeal or application for reconsideration of the judgment made by Employment Judge Garnon and sent to the parties on 5 June 2019. The issues to be decided today are whether the respondents or any of them engaged in unwanted conduct related to the relevant protected characteristics of race, sex and/or sexual orientation which had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. If it did not have that purpose, in deciding whether it had that effect account has to be taken of C’s perception , all the other circumstances of the case and whether it was reasonable for the conduct to have that effect.

[2]Relevant Law 2.1. Section 40 EqA says An employer(a) (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's;

(b) who has applied to A for employment. and s 26 includes (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect. 2.2. Section 109 includes (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. (3) It does not matter whether that thing is done with the employer's or principal’s knowledge or approval. (4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A— (a) from doing that thing, or (b) from doing anything of that description. 2.3. Section 110 includes (1) A person (A) contravenes this section if— (a) A is an employee or agent, (b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and (c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be). (2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4). 2.4. Section 111 includes (1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part …, 5, … .. or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3), inducement may be direct or indirect.

[3]Findings of Fact 3.1. Daniel George Jason Hart (“C”) gave evidence on affirmation. Ms Tilney did not attend but we read her written signed witness statement which had been produced and sent to the respondents much earlier , and questioned C about the content of her emails. He explained Ms Tilney had left on 24 December 2017 not in November, when he started as part-time help for the shop . On Christmas Eve, no staff including Ms Tilney attended to open the shop. It is a rule of the Metrocentre landlords that all shops must have a manager on site. R2 contacted C on his day off and he came in to open the shop, for which R3 later thanked him by telephone. From then until late January, C was acting manager of the shop. It was only then Ms Carol Thorpe arrived. After C had given had two days training R2 made her the manager and demoted him to assistant manager. We are entirely satisfied Ms Tilney was present until 24 December. We asked C whether he wished any steps to be taken against her with regard to her disregard of the witness order, and more significantly that she did not make any contact with the tribunal or him until as late as she did, despite having had the witness order for a week. The claimant did not wish any steps to be taken against Ms Tilney because he believed her non-attendance, though deliberate, was due to her being afraid of having to confront R3 , who could have attended today. 3.2. At all material times, C knew the person in charge of the shop, and C believed of the Doncaster shop, was the person he knows as” Linda” . That is R3. He had personally heard her say it was “her shop”. C found out on the day after the preliminary hearing on 13 December 2018 the Metrocentre shop was closed and believes the Doncaster shop has too. The closed-circuit camera which covered the shop was directly connected to R3 and she would regularly telephone to instruct staff to move goods on display etc. 3.3. On 24 November 2017, C did a trial for employment at the shop. On 25 November 2017, Ms Tilney , then manager, was told by R2 to tell R3 C was gay as R3 does not like men working in the shop unless they are gay. Ms Tilney telephoned R3 and asked her to look at a camera recording of C whom she thought worked really well .Ms Tilney’s statement says in a telephone conversation between herself and R3 , R3 asked if C was gay . Ms Tilney replied he was and R3 said “ Ooo good, the boy seems OK “. The claimant heard Ms Tilney’s end of the conversation and was told about three days later by Ms Tilney who it was with. The response form filed by R3 appears to be completed by her in manuscript and it starts with ” The boy D Hart was employed as a Christmas PT, after Christmas he started to take more shifts (over 25 hrs pw) to support store manager Carol Thorpe.” At the time R3 drafted this form she would not have seen Ms Tilney’s statement. The use of the words “the boy” in both is strong corroboration of the truth of Ms Tilney’s written statement. Also, C’s evidence was R3 regularly referred to him as “the boy”. 3.4. In the week of 18 December 2017, R2 told C, face to face , R3 was not to find out he was bisexual as she would not be able to process this and she was only happy for gay men to work in the shop. Prior to that R2 had said to Ms Tilney ”Amanda, whatever you do don’t tell Linda Dan is bisexual because she wouldn’t understand and it would only lead to one thing, he will have to go”. Ms Tilney said she thought that was unfair. R2 responded” This is Linda we’re talking about, just keep it shut Amanda”. The claimant overheard this. 3.5. During January with the claimant acting as stand-in manager R2 regularly came to the shop from Doncaster to hire staff. She and R3 would also send CVs for prospective employees to the claimant for him to assess them . R3 only ever sent the CVs of women whereas R2 sent women and men but told C to prefer the women because that is what R3 wanted .On 25 January 2018 R2 told C by telephone to hire new staff but not men who were not gay as R3 said women and gay men are more qualified for the positions. He found this offensive and being bisexual himself it made him feel he, and any prospective candidates for employment, were being judged on sex and sexuality and not capability. 3.6. On 31 January 2018 by telephone R2 told C not to hire “coloured people” as they are “considered to be lazy smelly dirty bastards “ . R3 also expressed this view to Ms Tilney before she left and did so in earshot of customers. The claimant found this particularly offensive as he has many friends from ethnic minorities. Because R3 herself is Chinese he could not understand why she held these views but In context we accept C is right to interpret the words considered to be as considered by R3. Again in context coloured probably means people of Indian sub-continental or black African/Caribbean descent.

[4]Conclusions 4.1. Before harassment became a separate statutory tort, in Wethersfield Ltd t/a Truck and Van Rental -v- Sergeant a claimant complained it was direct race discrimination to instruct her not to hire vans to Asian people. That argument succeeded. If C, who is white, male and bisexual was offended by comments made and/or instructions given which related to coloured people and/or non homosexual men , it would constitute harassment, provided the comments or instructions were unwanted conduct by his employer , prospective employer or persons for whom that employer was liable. There is the soundest possible evidence that at all times material to this case R1 was the claimant’s employer. 4.2. S.109 (4), sometimes called the “statutory defence”, is available to R1 if it employed R2 or R3. C believed R2 and R3 were employed by R1. It is R1 and R3 who say otherwise. In the absence of any evidence of any respondent on balance of probabilities we find R2 and R3 were employees of R1. There is no pleading of a statutory defence and certainly no evidence to support one. 4.3. If either was not an employee of R1, both were certainly R1’s agent. R1 is affixed with liability for whatever it is shown R2 or R3 said when acting with its authority as its agent. At all material times on the balance of probabilities ,they were. 4.4. S 110 (1) has the effect that if R2 or R3 are found to be an employee or agent of R1 they too would be liable. 4.5. R1 and/ or R3 may be liable under section 111 too but have no need to consider that section because sections 109 and 110 clearly apply. 4.6. It does not appear likely any of the unwanted conduct was done with the purpose of harassing C but it plainly had that effect and it is entirely reasonable that it would. 4.7. The injury to feelings caused by the remarks and instructions related to sex and sexuality was significant but not as great as those related to race . It is not uncommon for people to believe certain types of shop eg those selling ladies accessories or cosmetics should be staffed by people who understand what women want, but there is absolutely no reason why an Asian or black woman or homosexual man would have any less understanding than a white woman or homosexual man. The degree of injury to feelings, in our judgment falls in the higher part of the lower band of compensation awarded in discrimination cases. The claimant had done some research and himself suggested a figure which we thought entirely reasonable of £5000. 4.8. Zaiwalla-v-Walia & Co establishes high-handed malicious conduct of the proceedings may lead to aggravated damages . It is now patently obvious R1 and R3 have set about making C’s task of achieving justice as difficult as possible. They made it as difficult as possible for C and the Tribunal to trace R2. They have by providing incomplete or misleading information prolonged a case for over a year without putting in any cogent defence. The damage to their credibility is enormous. R1 and R3 themselves, and by their representatives, are most culpable, but R2 could have responded and has not. An award of aggravated damage should be 40% of the award we would otherwise have made. to rely 4.9. Where more than one respondent is found liable for the same acts of unlawful discrimination, we are entitled to make an award for compensation on a joint and several basis. This means C can take enforcement action against any one of the respondents for the full amount of the award. It is then up to each respondent to seek a contribution from the co-respondents. In Way v Crouch

2005 ICR 1362

, the EAT did not think joint and several awards would often be appropriate and suggested apportionment should be the default position. Since, in Munchkins Restaurant v Karmazyn EAT 0359/09 Langstaff J thought the claimant should be entitled to receive the full extent of an award from any of the respondents as he or she chooses. Underhill P agreed in London Borough of Hackney v Sivanandan

2011 ICR 1374

in the EAT. In the Court of Appeal Lord Justice Mummery endorsed Underhill P’s guidance in cases of ‘indivisible’ damage i.e. those where it is not possible to identify distinct elements of loss caused by individual tortfeasors. This will be so in most claims brought against an employer and its employees jointly where the employees are the actual ‘doers’ of the harm and the employer is liable by virtue of S.109 EqA. In Miles v Gilbank

2006 ICR 1297

, the Court of Appeal agreed and noted the individual respondent was effectively the owner of the respondent company which had been voluntarily dissolved by the time of the tribunal hearing. Accordingly, if a joint and several award had not been made, the claimant would not have been able to recover any compensation. As Mummery LJ said in Sivanandan, it may be different where the claimant himself says one respondent injured his feelings less than the others. We specifically asked the claimant what his wishes were in connection with R2 and although he felt she was for most purposes the mouthpiece of R3, without her the harassing behaviour could not have continued. 4.10. Interest is awarded under the Employment Tribunal (Interest on Awards in Discrimination Cases) Regulations 1996 where the prescribed rate of interest is 8% and the period for which it is awarded is 18 months being for the acts of harassment to today. Employment Judge Garnon

[5]HH Judge Barklem’s reasons clearly identify the primary ground for reconsideration as the respondents not realising a hearing was taking place, but he also mentioned the respondents’ assertion they had “ no contractual relationship with the claimant” . I have never suggested the second or third respondents did. Their liability was as agents of the first respondent. Plainly, payslips the respondents produced showed the claimant was at all material times employed by the first respondent. Point 1.2 of the reasons included : A response form, due by 18 July, arrived on 17 July signed by R3 and Mr Yan Wang as Director of R1 attaching payroll documents relating to C. It did not answer the harassment claim but denied dismissal which was not claimed. It says R1 and R3 need not consult solicitors because it was a very easy case”. More importantly for today’s purposes, the existence of that employment relationship and the agency relationship between the second and third respondents on the one hand and the first on the other was not decided as part of the Judgment but by an earlier judgment made by me, sitting alone, on 4 June 2019 never been appealed and I am not being asked to reconsider it. I reproduce it in full in the Appendix as it contains many points which show why I decided as I did on matters the respondents now seek to challenge by this application and in the appeal.

[6]The main points of the application, which I reproduce below, are shown in bold Application for Reconsideration 3. R1 and R3 seek reconsideration on the following grounds:(i) R1 and R3 rely on their joint Grounds of Resistance. R1 and R3 jointly and severally join issue with the assertions and allegations that the Claimant has advanced in support of his claim, namely that he was harassed and or discriminated against.

(ii) R1 and R 3 both jointly and severally contend that the Claimant’s case does not have a realistic prospect of success

(iii) The Claimants case is not credible, nor is it supported by credible evidence. 4. R1 and R3 have always contested the Claimant’s assertions and would have attended the trial had they had the opportunity to do so. 5. R1 and R3 contend they did not have a fair trial, dated of 2 August, which is in breach of section 6 Human Rights Act 1998, or otherwise irregular, including for the following reasons: a) The Claimant failed to comply with the 5 June 2019 to contact R3 to agree on a suitable hearing date. The Claimant has not provided a good reason for why he failed to comply with that requirement. The Tribunal’s response does not refer to the order of 5 June 2019 requiring the Claimant to contact the Respondents to agree on a hearing date. There was no agreement on setting the 2 August 2019 as a hearing date. Even the notice is not definitive of the date of the hearing reading as “the claim will be heard on 2/8/2019 (on that day) or as soon after that…” b) On 2 August 2019, R1 and R3’s representative through a telephone to the Tribunal learnt that the hearing had concluded. R1 and R3’s representative was trying to obtain a date at what he thought was the start of a window for the hearing c) The Claimant failed to agree a hearing bundle with R1 and R3. d) The Claimant submitted evidence which he had not served on R1 and R3. R1 and R3 were denied an opportunity to challenge the evidence which was presented to the Tribunal. Such evidence is still not served to date. e) The fresh evidence of Ms Amanda Tilney over the telephone at the trial undermines both the Claimant’s evidence and her own previous evidence [LZ1, page 12-13]. The Tribunal gave no reason for disregarding Ms Tilney’s evidence. No reason is given as to why the witnesses did not attend or respond to the witness order earlier [LZ1, page 18]. f) The Tribunal has wrongly concluded that R3 should be jointly liable with R1 and R2 to the Claimant. There is no legal basis for the decision. R3 was neither an employee nor an agent but a provider of services as a consultant. R3 did not have any contractual arrangement of employment or agency with C, and it was not open to the Tribunal to make such a finding of liability against her. R3 has set out in detail in her witness statement the relationship between her and R1. g) The evidence referred to in the judgement at 1.9 [LZ1, page 16], including the Claimant’s bank statements and or payslips is evidence which the Claimant has not disclosed to the Respondents. The Respondents could not respond to the same. The issues raised are severe, and the Respondents should be permitted to address the same. R3 has not been known as “Xiong”. Xiong Neoglory Ltd is an entirely different entity, but not R3 in any event, and Mr Xiong Wang is its director. The reference to Yan Wang as being R3’s husband factually wrong. Yan Wang is a female and is not married to R3 [LZ1, page 17]. In her witness statement [LZ1, page 21-25], R3 explains who Ms Yan Wang is. The Tribunal fell into error in its research. R3 is married to Mr Shaoan Chen and is otherwise known as Phil. h) Any findings of joint liability based on a contractual or agency relationship between R1 and R3 are rejected and not supported by the evidence. i) R2’s address is a result of mispronunciation rather than an attempt to mislead. j) R3 does not have a contractual relationship with the Claimant and is not an agent or employee of R1 but acted as consultant to R1. k) The Tribunal had no reason or evidence before it to conclude that R1and R3 were in any way trying to obscure the identities or addresses. The fact is that the Claimant misidentified and misspelt parties’ details on correspondence to the Tribunal. Details of R1 are publicly available, and R3 was wrongly identified and had at the first opportunity adequately identified herself. Any confusion is purely due to the Claimant failing to determine who were purported parties to be sued. l) R1 and R3 rely on the grounds of resistance and the witness statement of Ms Meng Zhang (Linda Zhang) [LZ1, page 21-25]. R1 and R3 have neither harassed, caused to be harassed or allowed the Claimant to be harassed in any way. R1 and R2 have neither discriminated against or created or allowed discrimination on whatever to or against the Claimant. 6. In the premises, the hearing on 2 August 2019 was not fair and was procedurally irregular and the decision emanating from that hearing ought to be revoked. A new hearing date should be set down. R1 and R3 made representations to the Tribunal on 12 August 2019 by email [LZ1, page 4]. The Tribunal’s response [LZ1, page 5-9] was that a notice setting down the date had been sent out on 25 June 2019 by email. Neither R1 nor R3 has received such notice by email.

[7]In the premises, it would be in the interest of justice to extend the time to reconsider the final decision and to revoke the same. Statement of Truth I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Linda Zhang 14th April 2020 7. I do not know what is meant in paragraph 5 a) by “failed to comply with the 5 June 2019 to contact R3 to agree on a suitable hearing date”. There is no requirement for parties to agree a hearing date, though sometimes the Tribunal invite them to give unavailable dates. The bigger issue is the last sentence. Notices of hearing are a standard form letter adopted nationwide. They are adapted by a Tribunal clerk filling in “blanks “and deleting certain options. When I read “the claim will be heard on 2/8/2019 (on that day) or as soon after that…” it looked as if a clerk had erroneously failed to insert the time of hearing and, though it would surprise me a lawyer would not realise the mistake and ask for clarification , I was of the view I would grant this application. However, out of caution I asked the Notice of Hearing be scanned and sent to me. It reads: Employment Tribunals Rules of Procedure 2013 The claim will be heard by an Employment Tribunal at 2nd Floor Kings Court, Earl Grey Way, Royal Quays, North Shields, Tyne and Wear, NE29 6AR, on Friday, 2 August 2019 at 10:00 am (on the first day] or as soon thereafter on that day as the Tribunal can hear it. The tribunal may transfer your case at short notice to be heard at another hearing centre within the region. If you are affected by this order you may apply, in writing, to have any part of it set aside, varied or stayed by 14 days aner the date of this notice. Unless there are exceptional circumstances, no application for a postponement made after 14 days from the date of this order will be granted. The emboldened words differ markedly from those in the application and the meaning is different. The actual version is a standard wording which permits for different start times on different days of multi day cases and for a tribunal, for whatever reason usually the judge having a short hearing before the one in question, to start later than 10 am. The application claims the respondent’s representative did not know there was any hearing on that day but was trying to obtain a date at what he thought was the start of a window for the hearing . This is not a conclusion they could have drawn from the Notice of Hearing

[8]As for point c) I am not aware of a requirement to agree a bundle, but if there was the claimant’s failure to do so does not explain or excuse the respondents doing nothing to notify the Tribunal of an alleged breach, still less not attending.

[9]As for points d) and e), I dealt fully with Ms Tilney’s non attendance, despite a witness order, at paragraphs 1.10 and 1.11 of the reasons .Paragraph 3.1 reads Daniel George Jason Hart (“C”) gave evidence on affirmation. Ms Tilney did not attend but we read her written signed witness statement which had been produced and sent to the respondents much earlier, and questioned C about the content of her emails. He explained Ms Tilney had left on 24 December 2017 not in November, when he started as part-time help for the shop. On Christmas Eve, no staff including Ms Tilney attended to open the shop. It is a rule of the Metrocentre landlords that all shops must have a manager on site. R2 contacted C on his day off and he came in to open the shop, for which R3 later thanked him by telephone. From then until late January, C was acting manager of the shop. It was only then Ms Carol Thorpe arrived. After C had given had two days training R2 made her the manager and demoted him to assistant manager. We are entirely satisfied Ms Tilney was present until 24 December. We asked C whether he wished any steps to be taken against her with regard to her disregard of the witness order, and more significantly that she did not make any contact with the tribunal or him until as late as she did, despite having had the witness order for a week. The claimant did not wish any steps to be taken against Ms Tilney because he believed her non-attendance, though deliberate, was due to her being afraid of having to confront R3, who could have attended today. If the respondents had not seen her statement, they never informed the Tribunal and again it does not explain or excuse them doing nothing to notify the Tribunal of an alleged breach, still less not attending. No-one spoke to Ms Tilney “over the telephone at the trial”.

[10]As for point f), the first part of g), and h), these matters were decided on 4 June at a hearing(i) of which the respondents had notice,

(ii) failed to attend ,

(iii) were sent full reasons and

(iv) did not question at the time. As for the second part of g), I now accept Yan Wang is female. The sentence “The Tribunal fell into error in its research.” presupposes it was conducting “research” which it was not. I explained at paragraph 1.3 of the reasons the limited purpose of making a company search was to check we did not take steps against a company which has been dissolved or is in compulsory liquidation or administration. In this case one showed the sole director of R1 Yan Wang. Had I been conducting “research” I would have opened the documents filed by the company, and seen Yan Wang was female. It was the claimant who said he thought Yan Wang was the claimant’s husband. The point was not material to the decision. The company was then shown as “active” and still is, but its accounts to 30 June 2020 were due to be filed by 31 March 2020 and are overdue.

[11]As for points j) k) and l), we made a finding of fact based on the evidence we had the existence of which was fully pleaded and discussed at a hearing where the third respondent was present with her lawyer, Mr Khan, on 13 December 2018. In paragraph 1.7 of the reasons I wrote” When this claim was presented the name of R3 was stated by the claimant as Linda Xiong. As Mr Khan requested, Employment Judge Garnon ordered the spelling of her surname, in the characters of the British alphabet ,to be amended to Zhang . A letter to the claimant dated 7 September 2018, copied to the Tribunal is signed “ Linda Zhang On behalf of Birmingham Neoglory”. I see no logic in the assertion that because Ms Zhang was a consultant, she cannot be an agent. As for the spelling of her name, one of the members at the hearing speaks fluent Mandarin and said he may have been able to clarify spelling in English had he seen the Chinese characters. None of this was material to the decision and does not explain non attendance.

[12]Point 6 is the first suggestion I have seen that the email enclosing the notice of hearing did not arrive. I asked the file be checked. The notice was emailed on 25 June at 10.19 to email addresses which I have checked are those of Ms Zhang and Legis Chambers. HH Judge Barklem’s reasons identify the primary ground for reconsideration as the respondents not having had Notice of Hearing. That ground is simply untrue. The remaining points are either untrue or irrelevant. The only ground for a reconsideration is whether one is necessary in the interests of justice. It is not in the interests of justice to reconsider on the basis of assertions of irregularity and breaches of the Convention rights to a fair trial which on examination prove to be groundless. Had there been evidence to support the allegations which caused HH Judge Barklem to stay the appeal to allow for a reconsideration application, I would willingly have reconsidered and arranged for the decision to be taken afresh by a different panel . There is no such evidence.

REASONS

[1]Following a private preliminary hearing held on 13 December 2018, I set out in written orders the procedural history of the claim which I need not repeat in full . In short, the claimant (C) was employed by R1 from 25 November 2017 to 3 February 2018 . He worked at a shop called “Amon” ( “the shop”) which sells handbags and other accessories in the Gateshead Metrocentre, a large shopping centre . His claim is of harassment under the EqA Its essence is that he was harassed by comments made to him to the effect he was only to hire shop workers who were female or gay men and not to hire anyone who was non white. His claim form refers to comments made by “my employer” specifically one to the effect “coloured people are considered lazy smelly dirty bastards”. The claim form originally named Amon as the second respondent.

[2]The claim was served for all three respondents on 20 June together with the notice of a preliminary hearing. On 17 July an emailed response from R1 was signed by “ Linda Zhang on behalf of Birmingham Neoglory”. It enclosed payslips for the claimant from Birmingham Neoglory Ltd . 3 . Employment Judge Johnson spotted Amon appeared to be only the name of the shop. On 15 August at a preliminary hearing where no respondent attended, he joined a Ms Karen Price as R2 in substitution for Amon . He also made an order for further particulars to be provided by C by 31 August. C’s reply enclosed a manuscript 3 page statement of Ms Amanda Tilney the ex manager of the shop who left just before Christmas 2017. Employment Judge Johnson ordered a revised response. An email on 10 September again signed “Linda Zhang on behalf of Birmingham Neoglory” referred to” our barrister Mr Naz”. A revised response arrived on 27 September, professionally drafted by Mr Nazar Mohammad. At paragraphs 3 to 4 its answer to the harassment claim is a denial that anyone for whose acts R1 is responsible told the claimant what is alleged. R2 was served on 26 October at an address c/o R1. No response arrived from R2. When the file came to the attention of Employment Judge Johnson he made an order R1 and R3 confirm whether R1 employed R2. By email they denied it did. Employment Judge Johnson had listed the claim for a one-day full merits hearing on 13 December but in light of the information which had come in, he converted that to a preliminary hearing which I conducted.

[4]I now set out a brief summary of C’s case(a) On 24 November 2017, C did a trial for employment at the shop. Amanda Tilney, said that on 25 November 2017 she was told by R2 to tell R3 that C was gay as R3 does not like men working in the shop unless they are gay. Ms Tilney says in a later telephone conversation between herself and R3 , R3 asked if C was gay to which Ms Tilney replied he was, and then R3 said “ Ooo good, the boy seems OK “. The claimant was informed of this conversation about three days later by Ms Tilney.

(b) In the week of 18 December 2017, R2 told C in a face to face conversation R3 was not to find out he was bisexual as she would not be able to process this as she was only happy for gay men to work in the shop.

(c) On 25 January 2018 R2 told C by telephone to hire a new staff member but not men who were not gay as R3 said women and gay men are more qualified for the positions. He found this offensive and being bisexual himself it made him feel he was being judged on his sexuality and not the job he could perform.

(d) On 31 January 2018 by telephone R2 told C not to hire a person of ethnic origin as they are considered “ lazy smelly dirty bastards “ . Other staff were offended by these remarks .If the claimant, who is white, male and bisexual was offended by the instructions he was allegedly given, he has a good claim of harassment. The harder question is against whom?

[5]At the hearing in December R1 and R3 were represented by Mr A Khan, Solicitor. It is plain the acts complained of were allegedly done by R2 and R3 only. I needed to ascertain exactly who they were in relation to R1. Amon shops are operated by franchisees of which R1 is one. Mr Khan said R3 provided her services to R1 as an consultant. R2 was employed according to R3, by another franchisee in Doncaster and “lent” to R1 to help in setting up the shop in the Metrocentre. R3 believes R2 left the employment of that franchisee in June 2018. R2 had only ever been served with proceedings c/o R1’s Gateshead address. A company search showed the sole director of R1 is a Mr Wang Yan. Today I took evidence from the claimant who said that as far as he was aware Mr Wang Yan was the husband of R3. He also said all wages paid to him went directly into his bank account and although originally his bank statements show the payments to have been made by R1, late in his employment they showed the payer as being R3.

[6]I need not repeat in full the section headed “The Relevant Law” in my orders of 13 December 2018. I cited sections 40 ,26, 109, 110 and 111. I explained if R2 or R3 were R1’s agents, rather than its employees, R1 is affixed with liability for whatever it is shown R2 or R3 said when acting with its authority. C believed R2 and R3 were employed by R1 . It is R1 and R3 who say otherwise. On 10 December the tribunal had received an email from R3’s email address but signed by Meng Zhang stating R1 had never employed R2. If R2 or R3 are found to be an employee or agent of R1 they too would be liable. Under section 111 headed “ Instructing, causing or inducing contraventions” if R2 and or R3 told C not to hire heterosexual or bisexual men or non white people they may be liable under that section too.

[7]I will repeat in full the section headed “The Problems” in my orders of 13 December 2018:

[16]This case as clarified by C depends first upon the evidence of Ms Tilney to attribute to R3 any potentially unlawful conduct. The claimant freely accepted R3 had never said anything directly to him in person or by telephone .

[17]The other aspects of C’s case rely upon what was said to him by R2 whether or not on instructions from R3. I must allow for the possibility that what R2 said was done on instruction from R3 in fact may not have been, but rather the views of R2 herself.

[18]Before we tackle the issues of for whose conduct R1 could be liable and for what R2 or R3 may be liable under sections 110-111, it was the view of both parties and myself that it was essential a further attempt be made to effect valid service on R2 . If it is not possible to do so, but the facts set out by C as to the role R2 and R3 played in the shop is accepted, it seems likely R2 in acting as a manager (she actually claimed, according to C to be the managing director ) and R3 as a consultant were agents of R1. It, as well as C could be prejudiced in that without knowing what R2 has to say about the allegations against her, R1 will have difficulty in running any defence to the claim if what C alleges she said to him is accepted as true , which it may well be if she is not there to rebut his evidence. 8. By email from Mr Mohammed we were provided with a last known address for R2. A tribunal clerk wisely did a postcode check and found it contained spelling errors .I directed those spelling errors be corrected and the claim form sent to R2 which it was .It has not been returned on by the Royal Mail. More significantly the claimant said he received out of the blue a telephone call from R2 who said she would reply but he has not heard from her since. I am satisfied she has now had notice of the claim but has not entered a response. 9. At the time of conducting this hearing today I had not seen the following email because, due to the time it was sent, it had not been linked with the file From: Nazar Mohammad [mailto:nkhattak63@hotmail.com] Sent: 03 June 2019 17:15 To: NEWCASTLEET <newcastleet@Justice.gov.uk> Cc: Legis Chambers <contact@legischambers.com> Subject: case no. 2501176/2018 Dear Sir My clients R and R3 I am instructed to write to the tribunal and express all due respect to the Tribunal, and ask they be excused from attending the hearing. The cost of travel and representation is prohibitive. I am instructed to reiterate the position in the reply the claim submitted at the outset. The Claimant was not an employee of either R1 or R3. I am instructed that neither R1 nor R3 harassed or caused or encouraged/incite any other to harass the Claimant. Th e is not particularised nor specific about exactly about the facts of the allegations and amount to an abuse of the Courts Process. R1 and R3 contend that the Claim has no merit, is malicious, misconceived and should be struck out. Nazar Mohammad Barrister at Law, MCIArb Legis Chambers 10. The statement “The Claimant was not an employee of either R1 or R3” contradicts what has been previously pleaded. All the documentary evidence I have seen clearly shows the claimant was at all material times employed by R1. It is also far more likely than not R3 was either an employee or more probably an agent of R1 . The same is likely to be true of R2. In such circumstances insofar as the claim is proved all three of them will be liable.