K Matthews v Morrison Data Services Ltd: 2501687/2021
JUDGMENT
[1]The Claimant’s claims for unfair dismissal, direct race discrimination and harassment related to race are not well-founded and are therefore all dismissed.REASONS
[1]By way of his ET1 claim form and grounds of complaint received by the Tribunal on 25th October 2021, the Claimant, Mr Kenneth Matthews, brings claims for unfair dismissal, direct race discrimination and harassment on the grounds of race. The matter was listed for a 5-day hearing and an oral judgment was delivered on 5th March 2025. There appear to have been some unexplained administrative delays which led to the hearing not taking place until 2025 but we decided at the outset that, in order to make sensible use of the time available, Case No: 2501687/2021 we would initially only hear evidence relating to liability and not remedy, on the basis that we would return to issues of remedy as and when required.[2]The Claimant represented himself, with the assistance of a friend, Melanie Joseph; we were satisfied that, with the appropriate guidance from the Tribunal during the course of the hearing, he was able to put his own case and challenge the other side’s case such that he was not at any disadvantage through lack of representation. The Respondent was represented by Mr Scott Davis, a litigation specialist. We received written and oral submissions from both parties which were very helpful in summarising their respective cases and, although we may not refer to them all directly here, we considered them carefully when reaching our decision. We were provided with a hearing bundle running to 232 pages and a chronology, both of which had been agreed between the parties. Any references to specific pages of the hearing bundle herein will be by way of square brackets, for example [220] or [34-54]. We made it clear to the parties that, given the size of the bundle, it should not be assumed that we would be aware of, or would take into account, any document to which we were not referred during the course of the hearing.[3]We were also provided with witness statements from 5 witnesses:a. The Claimant (consisting of a document dated 20th May 2024, his grounds of complaint [24-36] and one undated document, all of which he adopted as his evidence-in-chief under oath);b. Andy Stalman (undated and signed during his evidence, on behalf of the Respondent);c. Nick Clift (undated and signed during his evidence, on behalf of the Respondent);d. Darren Cousins (undated and signed during his evidence, on behalf of the Respondent);e. Andy Tudor (undated and signed during his evidence, on behalf of the Respondent); andf. Anjam Khan (undated and whose evidence, we were told by Mr Davis, would not be relied upon at the hearing as, on reflection, it was effectively purported expert evidence in relation to Urdu which was probably inadmissible). We heard oral evidence during the course of the hearing from all of these Case No: 2501687/2021 witnesses save for Mr Khan.[4]Throughout the course of the hearing, we kept in mind the list of issues [62-68] included within the case management order of Employment Judge Leach dated 28th November 2023 [51-68]; insofar as was relevant to the matters we decided, that list of issues is replicated as an annex to these reasons.[5]Very little of the factual background was in dispute between the parties but, where they were not agreed and we were required to make findings, we did so on the balance of probabilities and have set out, to the extent we consider to be required, how we came to those findings. For the avoidance of doubt, we did not find any of the witnesses to have been dishonest or intentionally misleading; we were conscious throughout of the inevitable frailties of human memory and that we were dealing with matters which took place several years ago and which we had to examine in some detail in order to deal justly with the case. When deciding which findings of fact we were required to make, we had regard to the list of issues, which we used to guide us to our various decisions.[6]The Claimant was employed by Npower as a meter reader between 2013 and 2020. His employment was transferred to the Respondent from 1st October 2020 pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly known as a TUPE transfer) and, in advance of that transfer, the Claimant attended an induction day on 17th September; this is the date of the Claimant’s first allegation of discrimination and, in effect, is the start of the relevant chronology in this case. In respect of the witnesses from whom we heard, Andy Stalman was the Clamant’s team leader, Nick Clift was an assistant field manager, Darren Cousins was the regional operations manager and Andy Tudor was the regional performance manager. For the purposes of this claim, it is relevant that the Claimant is black and that he resigned from his employment on 26th September 2021. Comments on the Claimant’s Reliability as a Witness[7]We were very conscious that the Claimant has clearly been deeply affected by his experiences during the period we were considering; there was no doubt, in our view, that he was unwell at that time as there were continuous GP fit notes from 7th June 2021 onwards regarding stress at work [182-188] as well as a Mind Matters referral dated 22nd June 2021 [89] and discharge letter dated 2nd Case No: 2501687/2021 August 2021 [101]. We were also conscious that this was a period which included the early days of the Covid pandemic and subsequent lockdown, during which the Claimant’s father-in-law was unwell, requiring care, and subsequently passed away; all of this would doubtless contribute to a psychological vulnerability to which the Claimant referred a number of times during the hearing and which we have kept in mind throughout our deliberations.[8]Against that background, however, we had nothing more than the fit notes for stress at work and we were conscious that the Mind Matters referral letter notes very low scores on routine depression and anxiety tests; there was also no clinical diagnosis at any stage. We had no other information, from the Claimant or otherwise, about the mental health issues he was experiencing; it was notable that, a number of times during his evidence, the Claimant appeared to be about to say something of relevance but then stopped himself, at one point saying, “I’m not going to go there”. It was explained to him a number of times, and we repeat it here, that we can only make findings on the basis of the information we have; whilst we recognise that it can of course be difficult to talk about such matters in an open forum, we can still only make decisions based on the evidence before us. As such, we had no way of knowing exactly what the Claimant’s symptoms or experiences were during the period we were considering and whether that had any impact on his ability to give accurate evidence about his experiences. In such circumstances, it would be wrong for us to speculate or to make assumptions about such matters and we did not do so.[9]Whether it was caused by his psychological vulnerability or otherwise, in respect of many factual disputes aired during the hearing, it appeared to us that the Claimant’s recollection of events and conversations did not align with the facts we found on the rest of the evidence before us. By way of illustration of the evidential issues we encountered, there were a number of assertions in relation to which there was a concern as to the Claimant’s ability to recollect accurately what had happened or what had been said which caused us to treat his evidence with care. A number of examples were relevant:a. One of the most striking examples was the Claimant’s allegation that he was told by Mr Stalman in around May 2021 to falsely inflate the number Case No: 2501687/2021 of “valid non-access” visits (VNAs) recorded in his handheld device. It was agreed between the parties what a VNA was and this was summarised by Mr Stalman at paragraph 48 of his witness statement, where he says that it was “a classification which should be made by an MR [meter reader] visiting a property where they are unable to physically take a meter read for whatever reason – ‘locked meter cupboard’, ‘lost key’ etc”. We paid careful attention to this evidence and, in summary, given the very nature of VNAs, we accepted without hesitation the Respondent’s position that it would be inherently contrary to their own interests to have an inflated number of VNAs as this would lead to lower income for the business. The fact that the Claimant was adamant that he was specifically told to fabricate such figures led us to find that he must either have misunderstood what Mr Stalman was saying to him or has subsequently developed a flawed recollection of that whole conversation. For the avoidance of doubt, we found, and it was not in dispute, that a discussion about VNAs did take place in the field in May 2021 but that it was a routine conversation between Mr Stalman and the Claimant as one of the employees whose performance Mr Stalman considered could be improved. In that regard, it was notable that the Claimant’s description of this encounter was so significantly different from Mr Stalman’s and we were also mindful of Mr Cousin’s evidence about the nature of these regular discussions with all meter readers deemed to be underperforming.b. The Claimant asserted that, when his father-in-law passed away in October 2020, he asked for time off work as bereavement leave to attend the funeral; the Claimant said that he was met with an insensitive response from Nick Clift and, more importantly, that he was not allowed the time off. Having heard evidence from the Claimant, Mr Cousins and Mr Clift, it was clear to us that the Claimant had initially contacted Mr Clift in Mr Stalman’s absence (being on paternity leave) and that Mr Clift said he was unsure of the details of the process and would get back to him. The Claimant then became impatient with perceived delay in the response and contacted Mr Cousins, who was not yet aware of the issue but allowed a day’s compassionate leave as soon as he was contacted. The timeframe between the various conversations was unclear on the Case No: 2501687/2021 Claimant’s evidence so we were unable to gauge the extent of any delay but we appreciate that the Claimant would have been anxious for a response; nonetheless, his account of being refused leave and meeting with an insensitive response appeared to us to be far removed from what we found actually happened.c. The Claimant asserted that the Respondent ignored his concerns in respect of his son having asthma and did not furlough him when he requested it on this basis. In his grievance [25], the Claimant said that this happened in April 2020. In his oral evidence, he was very unclear as to the timeframe and vacillated between April 2020 and April 2021; when asked why he had eventually settled on saying he was sure it was 2021, the Claimant said it was because he spoke to Mr Stalman about it. When considering the likely timeframe, it seemed to us overwhelmingly more likely that such a discussion, as urgent as the Claimant perceived it to have been at the time, would have happened in April 2020, when the first Covid lockdown had only just happened and furlough was first introduced, and not a year later. Furthermore, the Claimant had not yet met Mr Stalman in April 2020. As such, we were concerned that the Claimant’s recollection of this whole scenario was very confused despite his being certain as to what happened.d. The Claimant asserted that the Respondent had failed to protect him from racial abuse when out in the field in Blackburn in early June 2021 and this seemed to be a significant feature of the case for him. However, it took very little consideration of the evidence, which included text messages and rota logs, to determine that the Respondent could not possibly have known that there was anything to be concerned about as the Claimant had been to Blackburn in March 2021 for a few days without any reported incident and the first time he did report any concern was in a text message to Mr Stalman on the morning of 3rd June 2021 [83], when he simultaneously hinted at the issue for the first time and also said that he is too unwell to come into work, after which he never returned. At its height, the Claimant’s case on this point was that there were two colleagues who had said that it was an area to be avoided but he agreed during his oral evidence that he knew nothing about why they had said Case No: 2501687/2021 this and whether or not they had told the Respondent their views at all. In such circumstances, we found it extremely difficult to understand how the Claimant has come to the clearly strongly-held view that the Respondent had failed to protect him from an issue of which they could not have been aware, even on his own account. We were fortified in this approach by the evidence we heard from the Respondent’s witnesses about the reporting system, which was clearly intended to be used to collate information regarding many different risk factors for employees with a view to acting to reduce those risks.e. The Claimant asserted that he was denied flexible working hours by the Respondent on the basis that he used to take Fridays off when working for Npower because he had been able to complete his required hours but that the Respondent insisted on his working on Fridays. Aside from when the whole team was sent a text on 2nd June 2021 [82] (which was the day before the Claimant went on sick leave) saying that they were expected to work at least 4 hours on a Friday (unless anyone speaks to Mr Stalman specifically to request otherwise), we saw no evidence of a requirement to work on Fridays and were told by Mr Stalman that the Claimant could largely choose his hours within a specified framework as long as he hit his targets. More importantly, the Claimant seemed to assert that he always took Fridays off when at Npower and had wanted to continue doing so after the TUPE transfer but was not allowed to. We can see from the TUPE consultation record from 17th September 2020 [191] that, when asked about his usual working pattern at Npower, the Claimant said he mainly works Monday to Friday but “I sometimes flex it to MondayThursday”; and, when asked when he preferred to work if he wanted a specific day off, the Claimant asked when was best to work. Further, the rota logs [211-223] show that, from the start of his employment with the Respondent, the Claimant did not always work on Fridays. In those circumstances, we were very unclear as to how this assertion of previous flexible working could be made out given that the Claimant’s account of not usually working Fridays is wholly contradicted by the contemporaneous documentation, including his own account at the TUPE transfer consultation. Case No: 2501687/2021 Findings of Fact in Relation to the List of Issues[10]Against the background set out above in respect of our concerns about the Claimant’s reliability as a witness, we proceeded to consider the factual issues we were required to determine. We did this by way of reference to the specific allegations set out in the list of issues, numbered 1 to 13. We considered allegations 2 to 13 first, before returning to allegation 1, as we felt that our analysis of the reliability of the Claimant’s evidence in respect of allegations 2 to 13 assisted in resolving allegation 1. Our findings on each allegation are set out below; there is a short summary of each but the full allegations are contained within the list of issues in the annex to this judgment and should be taken as repeated herein for these purposes. Allegation 2[11]The Claimant alleged that he was not allowed to take time off work following his father-in-law’s death and that his request was met with an insensitive response. Our findings in respect of this allegation are set out at paragraph 9(b) above and will not be repeated here. For the reasons set out there, we did not find this allegation proved. Allegation 3[12]The Claimant alleged that Mr Stalman “doubted his right to work in the UK” and asked for his passport. On his own account at its highest (from both his written and oral evidence), the Claimant’s evidence was that, when he gave Mr Stalman his National Insurance number, he expressed surprise and said something to the effect of “not heard that one before”. Nothing further was said even on the Claimant’s own account so, in our view, it did not begin to support the allegation made, especially as it was a question asked as part of the TUPE process to every employee and the Claimant agreed nothing was actually said about his right to work. We therefore found that this allegation was not proved. Allegation 4[13]The Claimant alleged that, throughout the time that Mr Stalman was his manager, he belittled his work and repeatedly asked him if he knew how to do his job. We found this allegation to be far too vague to lead to any factual finding in this case as there are no specific incidents or allegations of any cogency; we heard detailed evidence from 2 of the Respondent’s witnesses Case No: 2501687/2021 that they had a clear management strategy, namely to meet the team’s targets of meter readings by encouraging and nudging meter readers to work certain hours and in certain areas in order to get their reading levels up. The Claimant agreed in his oral evidence that he never had a formal performance review and the only cogent incident in this context was in May 2021 when Mr Stalman came to see him in the field, which we found was a discussion in line with the Respondent’s general approach and was taken in light of several employees, including the Claimant, starting to fall behind their targets after Covid restrictions started to relax. We therefore found that this allegation was not proved. Allegation 5[14]The Claimant alleged that the Respondent refused to allow him flexible working arrangements (in the same way as when he worked for Npower) and was told that he needed to book a holiday for personal events such as having a boiler fitted at home. We reminded ourselves that it is the Claimant’s burden to prove any assertion that changes to working conditions were made by the Respondent unilaterally; no evidence at all of his original contractual terms with Npower were provided to us so the allegation could be seen to fail on that basis alone. Going further, however, we also noted what was said at the induction meeting on 17th September 2020 [191], when the Claimant said that he only occasionally took Fridays off. The only evidence of a change was a text on 2nd June 2021 from Mr Stalman to the whole of his team [82] about working at least 4 hours on a Friday; we found that was in line with reasonable management strategy and, on the evidence, was not a regular occurrence and cannot be said to have been unreasonable. The text message did specifically say that this is required “unless you speak directly to me first” and explained why it was considered necessary at that time.[15]In respect of the allegation about time off for a boiler fitting, we found that there was no cogent evidence of anything in respect of this allegation and it was frankly very difficult to understand the Claimant’s case on the issue at all, even after hearing his oral evidence. If the Claimant was saying that he was told he had to book holidays for such things, we would question how this is unreasonable; but it was unclear on the Claimant’s own account whether he was saying that he was told this had to booked as a holiday or if it was just a Case No: 2501687/2021 question of having to notify them. Furthermore, we also noted what was said to the Claimant at the induction on 17th September 2020 [191], when Mr Stalman said that there is flexibility as long as he is informed; and we considered the text messages between the Claimant and Nick Clift in May 2021 [81] showing that leave was changed on other occasions when the Claimant requested it.[16]We note in passing that the context of this allegation was a good example of the overall tenor of the Claimant’s evidence (and his specific comments when asked about it) that he did not like the change in culture when he moved from Npower to the Respondent and found it very difficult to accommodate it, feeling that it was not in accordance with the promises about working conditions he felt had been made at the induction meeting.[17]For the reasons set out, we found that this allegation was not proved. Allegation 6[18]The Claimant alleged that, following his TUPE transfer, the Respondent introduced demanding targets. There was no evidence adduced of what the conditions were at Npower in respect of targets or, therefore, how it differed under the Respondent. The Claimant agreed in cross-examination that they were just the Respondent’s own targets (and therefore different from Npower’s) but not necessarily therefore that they were more demanding. We therefore found that this allegation was not proved. Allegation 7[19]The Claimant alleged that he was required to lie and record inaccurate VNAs in respect of customers refusing entry during the Covid lockdown period; this allegation was addressed at paragraph 9(a) above, the contents of which will not be repeated here. The Respondent’s position was that they would never encourage a higher number of VNAs as it would be financially detrimental to them; we accepted that as it made logical sense and there was also no evidence to contradict it save for the Claimant’s own recollection of the conversation. The Claimant’s allegation was difficult to understand in any event as it would not require any lying to say that no access had been allowed due to vulnerability, which would be a VNA; we found it to be more likely a matter of the Respondent attempting to encourage meter readers to try and Case No: 2501687/2021 enter properties before recording a VNA to ensure the accuracy of their records. There was clearly a conversation when Mr Stalman visited the Claimant in the field in May 2021 to talk about his performance and, although we can only do our best to piece together the evidence we had, we found it likely that the conversation had been misconstrued by the Claimant somehow and was actually geared towards making sure that, coming out of Covid lockdown restrictions, the Claimant recorded no-access incidents properly with “access refused” (which is a category of VNA) being distinguished from “no access” which is not a VNA. Grouping these together would potentially increase the number of VNAs which was not a desirable outcome for the company’s income. We found that this is where the Claimant’s misunderstanding has probably arisen; there was also no basis for anyone to say (as the Claimant alleged) that a VNA is the only way that the Respondent would get paid as they were paid on the basis of meter readings so would actually receive less for VNAs. We therefore found that this allegation was not proved. Allegation 8[20]The Claimant alleged that his concerns about his son’s asthma were ignored in the context of the Respondent’s decisions about furlough options; this allegation was addressed at paragraph 9(c) above, the contents of which will not be repeated here. The Claimant’s dating of the alleged incident was very unclear and we were therefore unable to say if it was alleged to have happened in April 2020 or April 2021. Mr Stalman said that he could not recall any such conversation with the Claimant. Conversely, the Claimant told us that he could be sure that it was April 2021 because the bulletin came out to their mobiles but we found that this did fix it to either of his employers. The Claimant also said that he could be sure because he spoke to Mr Stalman about it but we found that this could have been any conversation about furloughing, not necessarily in relation to asthma or, even if it was, it was unclear from the evidence if the Claimant even mentioned his son’s asthma if the conversation did indeed happen. As such, we could not be satisfied that any such conversation, if it did happen, was when the Claimant had started working for the Respondent; we checked the government timeline and April 2020 fits far more logically with the scenario than April 2021 given that furlough was introduced in April 2020 and employees would have needed to ask for it then, Case No: 2501687/2021 rather than a year later. We therefore found that this allegation was not proved. Allegations 9 and 10[21]The Claimant alleged that he was underpaid by approximately £1,500 and that he was not reimbursed when a colleague in the same circumstances was paid the difference. We found that there was no satisfactory documentary proof of any underpayment (such as payslips) or of the cause of any underpayment. Furthermore, the Claimant’s evidence kept changing as to whether it had actually been repaid or not and, if so, when; we found this to be reminiscent of the evidence we heard regarding his poor engagement with the vetting requirements after the TUPE transfer and with the basic occupational health consent process whereby the Claimant complained of not being dealt with properly when the evidence suggested that he had simply not responded properly himself.[22]It was also not possible to understand the basic allegation being made about the Respondent’s specific conduct in respect of wages in any event. In respect of the comparator, no evidence whatsoever was provided other than the Claimant’s recollection of a short conversation with the colleague which provided no details so as to be satisfied about the similarity of their situations; in any event, Mr Stalman’s evidence was that he did not recall such an issue and, anyway, all he could do was refer such issues to human resources and payroll. We therefore found that this allegation was not proved. Allegation 11[23]The Claimant alleged that, in May 2021, he was transferred from Preston to an area in Blackburn where the Respondent knew that he had been the victim of significant racial abuse. In respect of the alleged transfer itself, we found that this was not in fact a transfer and was simply temporary cover, with the Claimant having worked only 3 days in the BB2 (Blackburn) area in March 2021. Furthermore, as already noted at paragraph 9(d) above, there was no evidence at all of the Respondent being aware of any issue with racial abuse prior to the Claimant’s partial reporting by text on 3rd June 2021.[24]Although it was not the way that the Claimant put the allegation in the list of issues or in his original grievance (so strictly speaking it was not for us to deal Case No: 2501687/2021 with in any event), it was suggested by the Claimant during the course of the hearing that the Respondent failed to deal appropriately with his reporting of racial abuse to Mr Stalman. We accepted Mr Stalman’s evidence that the Claimant was, when they discussed the matter, very unclear about what had actually happened and that he was simply trying to elicit more information from the Claimant in order to take the matter further if necessary but was unable to do so. To a certain extent, the Claimant actually supported this contention as he told us that Mr Stalman kept asking him for more detail, which we considered to be appropriate and indicative of his desire to help and not in any way malicious, as the Claimant seemed to suggest. The Claimant did not report his concerns to the incident line (of which he himself agreed he was made aware as part of the induction process and which the Respondent’s witnesses told us was discussed regularly as an important feature of the work structure) and the Respondent was still asking him for information about the abuse allegations in their letter of 10th September 2021 [128], when they decided to take no discplinary action following the Claimant’s long-term absence. In effect, we accept that Mr Stalman could theoretically have taken the matter further at that stage but, in the circumstances of still having insufficient clarity as to the allegations over 3 months later, and having made a number of phone calls on 3 rd and 4th June 2021 (with a text on 4 th June) which were not answered by the Claimant (all of which can be seen on [83]), we did consider it to be something of a counsel of perfection to say that Mr Stalman could or should have done more at that stage.[25]For these reasons, we found that this allegation was not proved. Allegation 12[26]The Claimant alleged that, despite knowing he had experienced racial abuse in the Blackburn area, the Respondent refused to move him from that area. As set out above, we found that the Respondent did not know anything about the allegations of racial abuse until 3rd June 2021 and, when asked to provide further detail by Mr Stalman, the Claimant provided very little cogent information upon which the Respondent could reasonably be expected to act. In any event, the Claimant was, by this stage, off work through ill health so it could not be said that the Respondent refused to move him from that area as he was never sent there again. Furthermore, this was not a move to the Case No: 2501687/2021 Blackburn area and was, in our view, just normal temporary cover as set out above. We therefore found that this allegation was not proved. Allegation 13[27]The Claimant alleged that, in June 2021, his absence was wrongly recorded as unauthorised. It became clear as the evidence emerged that the Claimant was referring specifically to an absence on 4th June 2021 but there was no evidence before us that this date was ever requested by the Claimant or approved as holiday. It was also clear from the documentary evidence that the Claimant did not self-certify sickness or provide a sick note from his GP until 7 th June 2021; this was not in accordance with the Respondent’s sickness absence policy so we found that it could not reasonably be treated as anything other than being absent without leave on 3rd and 4th June. We also did not consider the letter of 10th June 2021 [86] to be the commencement of a discplinary process and was, rather, simply a standard letter sent out to employees in such circumstances. We therefore found that this allegation was not proved. Allegation 1[28]We considered the other 12 allegations before the first because, as was noted above and will be set out further below, the resolution of this allegation rested on a careful analysis of the Claimant’s reliability as a witness in circumstances where the only evidence we had were the differing accounts of two witnesses, namely the Claimant and Mr Stalman, and no contemporaneous documentary evidence. The Claimant alleged that, shortly after the transfer of his employment to the Respondent, Mr Stalman spoke with the Claimant about whether he had any holiday commitments and, when he said that he did not, Mr Stalman replied that this was good as he “did not want the Claimant running off to Barbados at the last minute”.[29]As the evidence emerged, it became clear that the Claimant was asserting that this conversation took place when he met Mr Stalman for the first time at the induction meeting on 17th September 2020, which was prior to the official TUPE transfer date of 1st October 2020. As noted above, there is no contemporaneous account of this specific part of the conversation; it was agreed between the parties, and reflected in the minutes, that Olivia Jordan Case No: 2501687/2021 was present as a note-taker but we know nothing about her or why she was not asked to give evidence save that she left the Respondent’s employment in 2022. For the avoidance of doubt, we do not draw any adverse inference from her absence as a witness. We also noted that there was no reporting of any issue in relation to this allegation by the Claimant until his grievance of 16th September 2021 [133], exactly one year later. It was also quite striking that the Claimant had a disciplinary meeting on 6 th September 2021 (the minutes of which start at [123]), during which he talked about the racist abuse in Blackburn but made no reference to the Barbados comment even though he did refer to the TUPE consultation meeting on 17th September 2020 more generally.[30]During his oral evidence, the Claimant was adamant that the alleged comment was made and has been largely consistent in its wording in the various documentation where it is referenced save for a difference in whether he claims that Mr Stalman said “running off” or “buggering off”. Mr Stalman said that this did not happen and that he would never have said such a thing as he never engages in this kind of small talk; furthermore, Mr Stalman told us that he himself did not ask the question about annual leave as this was a standard question which would have been asked by Olivia Jordan as part of the HR process for that meeting, referencing the layout of the completed form for the meeting. It was clear to us that the Claimant holds deep-rooted feelings in respect of this comment and referred to it many times spontaneously in his oral evidence, often saying that this was the root of all of his negative feelings about his work environment and in respect of his relationship with Mr Stalman specifically.[31]We make several observations in respect of this allegation:a. It is reliant on the Claimant being correct in his account of the conversation as he has the burden of proving the allegation on the balance of probabilities;b. It may be tempting to say that the Claimant is adamant about what was said (whereas Mr Stalman simply did not recall it) so must be right; but we reminded ourselves that this would be a misconception of how memory works and the reliability of such a recollection, as has been repeated in many judicial contexts; Case No: 2501687/2021c. We were conscious that the Claimant clearly struggled with the notion that he could be inaccurate about something which seems so clear to him in his mind; but we were also conscious that he was equally adamant about other assertions which we found to have been incorrect on the balance of probabilities, as set out at paragraph 9 above; andd. In light of our concerns as to the Claimant’s reliability as a witness of fact, we found that he is not immune to mixing together different conversations that he has had in the past. It was also very clear from his own evidence that he had taken an instant dislike to Mr Stalman from the moment they met on 17th September 2020, which the Claimant himself found difficult to explain, even referring at one point in his evidence to Mr Stalman’s tone and body language whilst he seemed to struggle to explain what it was that made him have such negative feelings towards him.[32]Against this background, keeping in mind that the Claimant does bear the burden of proof, whilst we accept that, on the evidence before us, Mr Stalman may have made the alleged comment, we were unable to find on the balance of probabilities that he did. We emphasise that we did not find that the Claimant was lying; we found him to be an entirely honest witness who was doing his best to give accurate and reliable evidence, as we did with all the witnesses in the case; however that does not, and cannot, mean that what each witness says must therefore be correct on the balance of probabilities where there are conflicting accounts given of the same events.[33]For these reasons, we could not find that allegation 1 was proved.Conclusion
[34]In light of the factual findings set out above, none of the Claimant’s allegations were found proved to the required evidential standard. As such, we had no need to go on to consider any of the issues in relation to time limits, the relevance of the date of the TUPE transfer and whether or not, as a matter of law, any of the acts or omissions led to a constructive dismissal or constituted harassment and / or discrimination on the grounds of race. All of the Claimant’s Case No: 2501687/2021 claims were therefore dismissed.[35]As an aside, we wanted to mention one final point. During the course of the hearing, we found Mr Davis’ representation of the Respondent to have been generally measured and helpful. We were therefore quite surprised to read the comments at paragraphs 75 to 79 of his written submissions at the conclusion of the hearing which referred to the Claimant having brought his claim “in bad faith and malice… engineered [and] designed initially as a ‘gun to the head’ of the Respondent”. He went on to suggest that the bringing of the claim was “another bite at the cash cherry on its most favourable construction, and a spiteful, vindictive retaliation on its least”. Most distastefully, we found, Mr Davis then argued that the bringing of the claim “has proven an enormous consumption of resource, temporal and financial, not only of this Respondent and Tribunal, but every brutalised taxpayer”. Whilst any advocate is of course entitled to, and indeed required, to put their client’s case, this should, we would suggest, be done with far more moderation than Mr Davis seems to have adopted in these final paragraphs of his written submissions; and we would suggest that he may wish to reflect on the use of such language in future when its context in any given case may be questionable. In short, it does nothing to serve the interests of what may otherwise be a meritorious position.