[1]The Claimant’s claims set out in the amended claim dated 24 October 2017 under the heading “Victimisation claim against Steve Willey” are struck out.
REASONS
Background
[1]Introduction 1.1. This is the respondent’s application to strike out certain claims of victimisation brought against the respondent in form, but in practice being claims making allegations against the respondent’s solicitor, Mr Steve Willey. They arise in the third amendment of his claim dated 24 October 2017. The respondent seeks strike out on the grounds that they are vexatious and/or have no reasonable prospect of success. 1.2. This claim is already of some age. It was presented in January 2017 and does not yet have a final hearing date listed. It has been through a number of preliminary hearings. Prior to this latest amendment, in all but one respect the claimant’s claims were struck out on the ground that they were presented out of time. The exception was the claims relating to the claimant’s application for flexible working and his associated grievances. They were made subject to a deposit order which has been paid. 1.3. I have received a short bundle of documents, a written submission from Dr Ibakakombo and oral submissions from both representative. The claimant also Page 1 of 10 produced a written statement. This is not a hearing at which it is appropriate to hear evidence or make findings of fact and he was not called. I did not consider the witnesses statement other than in respect of reference being made to certain paragraphs during submissions.[2]The claim 2.1. The claims I am required to consider is put in these terms. Victimisation Claim against Steve Willey Protected Acts: 1.Claimant’s ongoing ET1 Claim 2.Contents of the Claimant’s letter dated 29/08/2017 3.Contents of the Claimant’s letter dated 6/09/2017 4.Contents of the Claimant’s letter dated 4/10/2017 Detriment: 1.When 13/10/2017, Mr Willey wrote to inform the claimant that his grievance letters dated 4th & 5th October 2017, 29th August and 6th September 2017, and latest letters which are related to the issues or matters currently before the Leicester Employment Tribunal will not be responded to other than by means of Mr Willey’s letter dated 13/10/2017. 2.When concluding that if claimant continues to write to Unipart on these matters his letters will not be responded to despite of knowing that the Respondent is under duty to acknowledge receipt of the claimant’s letter or contract the claimant in the course of his continuing relationship with them while he is physically absent from the workplace. 3.For advising the Respondent not to acknowledge receipt of the claimant’s letter or contact the claimant in the course of his continuing relationship with them while he is physically absent from the workplace. 4.Mr Willey’s failure to provide the claimant with requested copy of Company Policy, General Section of Law and/or Law Authority supporting that when an employee, who is off work due to work related stress, has a Claim before the tribunal, his grievances, which are related to the issue before tribunal, cannot be addressed and resolved in order to assist of facilitate that employee to resume work. 5.Mr Willey’s failure to provide the claimant with name of the managers including their positions, who have instructed him to conclude that the claimant’s latest letters will not be responded to other than by means of Mr Willey’s letter dated 13/10/2017, and that if the claimant continues to write to Unipart on those matters, his letters will not be responded to (In event the names of those managers will be provided, the claimant will amend his claim against those managers) 6.When on 18/08/2017, Mr Willey asked the claimant to provide full names of Monika and Leeban and that the Respondent is currently unable to identify the employees referred to by the claimant as “Monika” and “Leeban”. 7.When on 25/09/2017, Mr Willey said that Jose Fragona was not the claimant’s line manager particularly, only on 3/10/17, the claimant was told by Mr Fragona that he will not be claimant’s line manager anymore. 8.When on 25/09/2017, Mr Willey said that the claimant was given flexible working hours but he declined. 9.Failure to produce documents (Tribunal Claim ET1 form, business’s ET3 form and corresponding Tribunal Judgement or copy of settlement agreement) related to Davinder Singh’s Claim. 2.2. Certain aspects of that pleading require further explanation. Firstly, there is no dispute that the claimant has done a protected act. Page 2 of 10 2.3. The correspondence referred to dated 13/10/2017 appears in the bundle at page 26. This is part of a series of correspondence in which the claimant has repeatedly sought to raise further internal grievances concerning the matters are before the employment tribunal in these proceedings. The letter is a letter from Mr Willey which informs the claimant of his client’s position. It states that the respondent will not consider grievances raised by him in respect of the ongoing dispute over working hours or those matters which are currently before the Employment Tribunal but it does make clear that it will consider any fresh grievances on matters outside that limitation. It is a repetition of the position previously stated by the respondent directly to the claimant. 2.4. Reference in paragraphs 2, 3 and 4 to the claimant being physically absent from the workplace is because he is currently on an agreed career break, the employment relationship otherwise continuing. 2.5. In paragraph 6, reference to the request made by Mr Willey is a reference to an oral request made by him when appearing on behalf of the respondent at the preliminary hearing held at Leicester before EJ Blackwell on 18 August 2017. At that time, the respondent had been given only the first names of these two comparators. It was stating that it was unable to identify them and sought their full names. In the event, it has subsequently identified them and amended its response accordingly. 2.6. In paragraphs 7 and 8, reference to Mr Willey making statements on 25/09/2017 are, in fact, references to factual averments in the respondent’s amended grounds of resistance of that date which appear at paragraphs 16 and 36 respectively. 2.7. It is also to be noted that this amendment does not add Mr Willey as an additional respondent. Any claim relating to his actions must be as an agent of the principal respondent.[3]Submissions The Respondent’s Application 3.1. In support of the respondent’s application, Mr Johnston submitted that this is an inherently weak and speculative claim against a party’s legal representative and is vexatious. It has serious consequences to the fair administration of justice as it would end his ability to continue to act for the respondent. He would be required to give contentious evidence and be professionally embarrassed. He has been retained in this complicated case for over a year. Of further concern, there is nothing to stop similar, vague allegations being levelled at any replacement solicitor who did not respond to the claimant in exactly the manner he insisted with the ultimate consequence that the respondent could never be represented. Mr Johnston accepts a solicitor is an agent of the principal respondent under s.109 Equality Act 2010 but these allegations are not what s.109 was designed to address. Even if the acts complained of are capable of amounting to detriments, there is presently no evidential basis that will prove facts that Mr Willey acted as he did because of the claimant’s claim of racial discrimination and there is no evidence, nor could there be, of any instruction so to act as the communications between respondent and Solicitor are covered by litigation privilege. The claimant puts his case on the basis that the respondent must disclose the communications between lawyer and client. He is requiring the Page 3 of 10 respondent to waive privilege in his demand to know the instructions he received. The claim should be struck out on the ground that it is vexatious. 3.2. Alternatively, it is in any event without any reasonable prospect of success. The Claimant has the burden of proving facts from which the tribunal could conclude there has been victimisation. He simply cannot do that. There is nothing to suggest Mr Willey has done anything other than act on his instructions and there is nothing in his conduct from which a tribunal could properly conclude that he was himself acting in a discriminatory manner. When one looks at the alleged conduct of Mr Willey, they are not properly detriments. At their highest, paragraphs 1-3 of the amended claim set out a principled and reasoned stance of proportionality. He has not suffered any disadvantage as the subject matter of those grievances is the substance of the claim before the ET and the claimant’s substantive concerns will be considered in that forum. Allegations at paragraphs 4 and 5 deal with the refusal to disclose privilege communications. Paragraph 6 was no more than a request to identify the pleaded comparators. Paragraphs 7 & 8 are merely factual averments in the current pleadings to be tested within the proceedings. Such a fundamental state of affairs is present in just about every disputed case in all jurisdictions and there would have to be something very particular about it to permit it to become a basis of a further allegation of a statutory tort. Further, it was submitted that were a party inclined to embark on victimisation in the course of litigation, the factual examples at paragraphs 7 and 8 were inherently unlikely examples of how that intention might be executed. Paragraph 9 is a request for irrelevant disclosure which can and should be managed within the Tribunal’s case management powers. The Claimant’s Response 3.3. For the Claimant, Dr Ibakakombo submits the claimants case is simple. The respondent’s solicitor is acting on behalf of the respondent and either or both is discriminating against the claimant through his conduct. The claimant is still employed by the respondent and has a right to submit grievances at any time. Mr Willey has refused to provide the name of the manager who instructed him. If he did, the claimant would pursue that person instead. It is submitted that Mr Willey does not have a right to give his own evidence and that it is clear he was motivated to discriminate. Legal privilege does not mean a solicitor can discriminate. 3.4. In respect of the names of the comparators, Dr Ibakakombo submits that it is odd that the respondent has previously claimed to have fully investigated the grievance which included the two comparators, yet it now does not know who they are. He submits the reason for this conduct is because the claimant is now being victimised. 3.5. Dr Ibakakombo submits that Mr Willey is trying to cover up discrimination and that the claim does not stop the respondent being represented in the future. Dr Ibakakombo relied on an example at para 5.5 of the claimant’s witness statement where there is a dispute about whether or not a letter was sent to the claimant dated 5 September 2017. 3.6. The claimant’s case is that this hearing should not consider whether the detriments amount to detriments, there is a dispute of fact and that should be considered at a final hearing. Dr Ibakakombo relies on the well-known case of Anyanwu v South bank Student Union and Others [2001] IRLR 305 together with Page 4 of 10 a number of authorities on the same broad point. 3.7. Dr Ibakakombo puts the allegation bluntly. He says that Mr Willey consciously knew what he was doing when he acted as he did, he knew by doing that he would hurt the claimant and he did this because the claimant was black. (I record here that that is how the submission was put even though the claim is one of victimisation and not direct discrimination). The claimant also conceded he does not know exactly what happened, but whatever happened was due either to Mr Willey’s legal advice or a manager’s instruction. The Respondent’s Reply 3.8. Mr Johnston accepts the authority that binds the tribunal on strike out of claims generally and, particularly, in fact sensitive cases such as those alleging unlawful discrimination. He submits that the case law does not create an absolute bar to strike out and that this is both an obvious and exceptional case. It is exceptional in that it is unheard of, at least in his personal experience of over 20 years employment practice at the bar, for a claim such as this to be brought against a regulated and qualified legal representative within the proceedings. He stresses that Mr Willey is not simply a representative, but an officer of the court and bound by professional obligations which in certain situations could transcend his instructions, an instruction to discriminate being one. It is obvious because it is such a weak claim in which the claimant’s burden of proof faces an insurmountable and fundamental obstacle. It is fundamentally inappropriate in this case to seek to go behind legal privilege to litigate against the solicitor acting which strikes at the heart of the justice process. 3.9. As to the further authorities relied on, they do no more than restate the propositions of Anyanwu. He submits there is a significant difference between striking out a claimant’s claim in its entirety and, as here, striking out a very small part of a much wider claim which will otherwise proceed.[4]Relevant Law 4.1. This is an application for strike out only. Rule 37 provides, so far as is material:- 37 (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a)that it is scandalous or vexatious or has no reasonable prospect of success; 4.2. Whenever the tribunal exercises any power given to it under the rules, it must do so in a way which seeks to give effect the overriding objective. Rule 2 provides:- 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing; (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (d)avoiding delay, so far as compatible with proper consideration of the issues; and Page 5 of 10 (e)saving expense. 4.3. The classic statements on the tribunal’s power to strike out fact sensitive cases on the ground they have no reasonable prospect of success comes from Lord Bingham of Cornhill in Anyanwu, at paragraph 24:- Such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. And Maurice Kay LJ in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, at paragraph 29:- It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. 4.4. This high threshold sits alongside the fact that strike out is, in any case in which it is contemplated, a draconian measure and will often be considered alongside the question whether the ability to conduct a fair trial is compromised which, it goes without saying, is central to the process of justice. 4.5. A detriment is something which a reasonable worker would take the view in all the circumstances puts him at a disadvantage. (Ministry of Defence v Jeremiah [1980] ICR 13). The reference to the reasonable worker renders it an objective test and not one wholly in the gift of the particular claimant, although his perspective will form part of “all the circumstances”. 4.6. To succeed in a claim of victimisation under s.27 Equality Act 2010, the burden rests with the claimant to prove the protected act and a detriment. The key to success is the causal link between the two expressed in terms of “because of”, not “but for”. It is a “reason why” question as is the case with other forms of discrimination. He must prove that the reason was the protected act or, at least, facts from which the tribunal could decide the reason was him making the protected act, in which case the burden would shift to the respondent (s.136 Equality Act 2010). If he cannot prove that, his claims cannot succeed. It is not enough for him to show a difference in treatment and difference in characteristic (or in the case of a victimisation claim, the protected act). Something more is required. 4.7. Strike out on grounds that the claim is vexatious engages other considerations. A vexatious claim is, broadly, one that is an abuse of process. In Attorney General v Barker 2000 1 FLR 759 QBD Bingham LCJ described the hallmarks of a vexatious claim as having:- Little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process 4.8. The claimant’s allegations require disclosure, or strictly inspection, of the Page 6 of 10 instructions and advice between respondent and its solicitor. Where the dominant purpose of correspondence between client and legal adviser is the conduct of litigation, legal professional privilege, in the sub category of litigation privilege, operates to prevent inspection of any documents that may exist. Important public policy underpins the ability of clients and lawyers to freely share instructions and advice. I fully accept also that solicitors are also under a regulated professional duty to the court which not only governs their conduct before a court or tribunal, but in certain situations could transcend their duty to their client and its instructions. 4.9. The privilege is all but absolute unless waived, but a court can go behind privilege where fraud or dishonesty is alleged. The balance to be struck between those policy aims was described by Goff LJ in Gamlen Chemical Company (UK) Limited v Rochem Limited [1983] RPC1 (CA) in terms that the court:- “..must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.”[5]Discussion 5.1. I deal first with the prospects of success. I reject Dr Ibakakombo’s submission that it is not for this hearing to consider whether the allegations amount to detriments. If an essential element of a claim is not capable of being satisfied, that is exactly what this type of preliminary hearing is designed for. That is not the same as thing as making findings of facts to resolve disputes which is rightly the role of a tribunal at a final hearing. 5.2. The alleged detriments said to arise because of doing the protected act are odd examples of detriments if, indeed they are capable of amounting to detriments. They sit against other conduct by the same alleged wrongdoer, Mr Willey, which is favourable to the claimant in the conduct of the case to date, in particular the relaxed view taken to his various amendment applications. Equally, there are other acts of his, such as the previous application for strike out or deposit orders, which are not pleaded as examples of detriment. None of the alleged detriments stand out as being unusual or unexpected in the context of contested litigation. All have an explanation which is potentially reasonable and understandable. Furthermore, insofar as they are allegations of matters taking place in the course of litigation before live tribunal proceedings, they are subject to supervision through the various case management powers of the tribunal. Whilst none of that means the reason why could not be because of a protected act, there is nothing inherently discriminatory about the conduct and evidence of the reason being the protected act will have to be found elsewhere. However, before turning to the reason why issue, I have come to the conclusion that in all but one respect, the allegations cannot reasonably be regarded as detriments. The one exception is the respondent’s position in not corresponding with the claimant in respect of grievances which are already before the tribunal, as manifests in various forms in paragraphs 1 – 5 of the amended claim. It seems to me that refusing to reply to the claimant (and its associated manifestations pleaded) must be a detriment and I must not conflate what appears to be the obvious answer to the reason why that happened, with whether the act complained of is capable of amounting to a detriment. Seeking further particulars, pleading facts and disclosure matters in the circumstances of this case fall outside the reasonable meaning of detriment. Page 7 of 10 5.3. I then turn to the reason why issue in respect of all allegations, including, in case I am wrong, those I concluded were not detriments. There is nothing prima facie discriminatory about the conduct from which the reason why question is answered. The claimant himself recognises the evidence to prove his belief will exist only in the flow of correspondence between respondent and solicitor during the process of giving and receiving instructions and legal advice. (For present purposes, I interpret that “belief” to be him doing the protected act, albeit his submissions instead attributed the reason why to aspects of his protected characteristic). He accepts that he does not know what lies behind the alleged detriments, only that he believes it was discriminatory. He seeks disclosure and inspection accordingly in order to prove a case which seems wholly speculative. 5.4. The obstacle in the way of that disclosure is respondent’s entitlement to claim privilege in those documents which renders the very documents he seeks prima facie inadmissible. 5.5. The law does not place an absolute bar on privilege and privilege may be lost where it discloses a fraud on the other party. This case does not suggest fraud or dishonesty and to that extent, unless the respondent was to waive privilege, which they do not, the documents that the claimant seeks to rely on to prove discrimination will not be before the claimant or the tribunal. As that is where he says the evidence will be found, he will not be able to prove the reason why without an order for disclosure. Any such order would not happen without a preliminary stage of disclosure to a Judge, and not the claimant, for the purpose of reviewing the documentation in question in order to rule on the question whether any privilege existed and was to be overridden by order or not. 5.6. In reaching that conclusion, I have considered whether there could be any extension of the exceptions to privilege which would entitle a tribunal to override privilege and order disclosure. In particular, whether the fraud exception could be extending to include statutory torts of discrimination. I am not aware of any authority to that effect and none was relied on, but I take the view that it would serve the same broad objective and is, at least, possible that such an exception exists at common law. However, even if that is the case, the nature of the balance to be struck between the two competing public policies, as described by Goff LJ, would have to take into account all the circumstances of the case. For litigation to be conducted proportionately and efficiently, there would have to be something about the circumstances of the case which poked at the tribunal’s concerns sufficiently to render it proportionate to embark on the necessary closed preliminary hearing at which the contested documents could be reviewed. 5.7. I turn, then, to consider the circumstances of this case and whether they disclose anything that might engage such concerns. Here, there is a weak case generally, already subject to a deposit. The ne claim is speculative. The victimisation allegation is borne out of a belief, but no other evidence. That claim depends on what the claimant believes might be found in the inspection of privileged documents. In itself that does not persuade me to go behind privilege and that conclusion only becomes fortified when I consider the nature of the detriments, if they are detriments at all, that they are minimal and peripheral and entirely consistent with the conflict created by ordinary litigation. The claim is peripheral to the substantive claim, perhaps obviously, but it is relevant that whatever my decision, the underlying claims will continue. A tribunal considering the alleged proscribed “reason why” will be faced with what appear to be Page 8 of 10 perfectly good, or at least non-discriminatory, reasons why the alleged acts happened. The allegation is levelled at an experienced representative governed by a professional code and regulatory regime and there is nothing about his conduct of the proceedings that raises any hint of concern. The subject of the grievances go to the substance of the matters before the employment tribunal such that seeking to litigate the respondent’s declaration not to correspond on those matters during the claim does not materially add anything to the underlying claim. Conversely, not litigating take’s nothing away from the existing claims. If a claimant succeeds, it is always open to him to identify aspects of the respondent’s conduct in the litigation which may be relevant to aggravating injury to feelings, even if that conduct is not an act of discrimination in its own right. 5.8. In my judgment, none of the circumstances provide any basis for embarking on a closed disclosure hearing. In fact, they positively weigh against it. I am not at all satisfied there is anything before me to warrant an enquiry into the documents in question, even if there is such an exception in law to the doctrine of litigation privilege. 5.9. The respondent may therefore rely on its right to withhold inspection of documents subject to legal professional privilege. The claimant says he needs them to prove his case. Without them, he accepts he knows nothing about what lies behind Mr Willey’s actions and will not be able to discharge his burden of proving discrimination. As he will not have any evidence of the reason, it follows there is no reasonable prospect of success. This case falls within the obvious or exceptional circumstances where an order for strike out is just and proportionate. 5.10. Having reached the conclusions I have, it is not necessary for me to consider further whether the claim should also be struck out on the ground that it was vexatious. I have, however, come to the conclusion that it does fall within the definition of vexatious. A party can act vexatiously, which implies motive, or his acts can simply be vexatious, whether they are intended as such or not. I don’t need to find motive. It is sufficient in my judgment that the effect of this particular claim is vexatious. The allegations are very much peripheral to the underlying claim, they require a court or tribunal to go behind legal privilege where there is no apparent reason to do so and the basis for seeking it is speculative. Were they to proceed they could have a negative effect on the efficient and proportionate conduct of the litigation as Mr Willey is likely to be compromised in his continued ability to represent his client. They attach to the ordinary process of litigation and seek to turn the normal adversarial process (even in this more informal jurisdiction) into substantive allegations. Whilst I do not say that acts of discrimination could never be made out in the process of litigation, there is nothing that raises even a prima facie concern. The fact that the claimant’s remedy on the underlying claim, at least insofar as injury to feelings, can be aggravated by the conduct of the litigation as well as the original statutory tort itself, means the negative effect on the respondent is grossly disproportionate to any likely benefit to the claimant. I would strike out on this ground had I not already reached the conclusion I have above.[6]Case Management 6.1. Whatever decision I was to reach on the application, further case management orders remained necessary in any event to progress the claims through to a final hearing. They are set out in a separate order. Page 9 of 10
Background
[1]The Claimant presented his claim to the Tribunal on 15 February 2017. He had notified ACAS under the early conciliation procedure on 19 December 2016 and ACAS had issued the early conciliation certificate on 17 January 2017. Page 1 of 20[2]The Claimant had been employed by the Respondent since 19 October 2009, latterly at Magna Park as an operations colleague.[3]His claim was of: -• Direct race discrimination• Indirect race discrimination• Victimisation[4]His complaints date back to 2014. He originally described his race as black African but shortly before the Preliminary Hearing held on 6 April 2018 he changed this to black African Cameroonian.[5]His claims are set out in a revised Scott Schedule which is contained at pages 60-70 of the bundle. This schedule was prepared by the Claimant’s representative. It is dated 15 June 2018. The document also contains the response by the Respondents to the allegations.[6]By this time the Claimant’s claims were now said to be: -• Direct race discrimination• Direct disability discrimination by association• Harassment because of the Claimant’s wife’s disability• Victimisation Events leading up to this hearing[7]On 10 April 2017 my colleague Employment Judge Ahmed conducted a case management Preliminary Hearing. Having considered the papers he expressed a concern that the Claimant did not appear likely on the face of it to be able to establish sufficient facts from which a prima facie case of discrimination was likely to succeed. This related not only to the claim of direct and indirect discrimination but also the complaint of victimisation.[8]He was also concerned that the claims appeared to be presented out of time as well as having little or no reasonable prospect of success. He ordered the Claimant to prepare a Scott Schedule and that the case should be listed for a Preliminary Hearing to consider strike out of the claims or alternatively the making of a deposit order.[9]On 3 July 2017 the Claimant made an application to amend the claim to add fresh claims of direct race discrimination on grounds of race and a claim of direct disability discrimination by association and a claim of victimisation.[10]On 27 July 2017 the Claimant made a further application to add claims of direct race discrimination, direct disability discrimination by association and victimisation. Page 2 of 20[11]On 18 August 2017 the matter came before my colleague Employment Judge Blackwell. He was satisfied that the Claimant’s allegations or arguments had little reasonable prospect of success and he ordered the Claimant to pay a deposit of £2.50 in respect of each of his heads of claim, namely: -11.1 Direct race discrimination.11.2 Indirect race discrimination.11.3 Victimisation.11.4 Direct discrimination by association in respect of the protected characteristic of disability.[12]At that hearing Employment Judge Blackwell declined to strike out the claims. He permitted the Claimant to amend his claims as per the applications made on 3 and 27 July 2017.[13]He said that the only allegations which were permitted to proceed were those relating to the Claimant’s assertions that he was refused flexible working hours and to the associated grievance procedures. He said it was for the full Tribunal to determine whether the allegations permitted to proceed were continuing acts. All the other allegations were struck out.[14]He ordered the Claimant to provide a revised Scott Schedule having regard to his decision.[15]On 24 October 2017 the Claimant made a further application to amend his claim.[16]He now described his race for the first time as of: “Black African – Cameroon’s origin.”[17]He wished to make additional claims of: -• Direct race discrimination as per the Claimant’s grievance letter dated 29 August 2017• Direct race discrimination as per the Claimant’s letter dated 6 September 2017 against the HR department• Victimisation claims relating to the Claimant’s ongoing ET1 claim and his letter of 19 August 2017• Further victimisation claims against the HR department relating to the contents of his grievance letter dated 29 August 2017 and his letter of 6 September 2017 namely;• Lauren Reynold• Maranda Leach• Korenza Rushton• Steve Willey, the Claimant’s representative He also claimed indirect discrimination.[19]My colleague Employment Judge Clark at a hearing on 6 April 2018 struck out the victimisation claim against Steve Willey. The complaints against Page 3 of 20 Mr Willey related to his conduct of the case. He was satisfied that it should be struck out on the basis that the allegation was “vexatious”.[20]At the conclusion of that hearing he made case management orders. He pointed out that until recently the Claimant had described his protected characteristic as black African but that it had now become black African Cameroonian. He ordered the Claimant to prepare a final Scott Schedule of his claims which took into account the recent amendment of his claim and removed the allegations that had been struck out.[21]At the start of the hearing it was agreed items 6-15 in the Scott Schedule which were at pages 60-2 of the bundle were out of time. We agreed that the primary time limit was 20 September 2016 and therefore all items that predate this were out of time unless we were satisfied that they were continuing acts. Dr Ibakakombo specifically agreed that his Claimant was not pursing matters on the Scott Schedule before 4 August 2016.[22]During the hearing though the Claimant’s representative changed his position and then said that the incidents on 3 August 2016 were in time and he wished to pursue these as he was alleging that these were continuing acts of discrimination. At this hearing[23]It can be seen from the above that there had been various issues about the conduct of these proceedings prior to the hearing taking place and the matters I am going to raise need to be seen in context with the events that have happened over the last 2 years.[24]During the previous hearings the Claimant had not been assisted by an interpreter. In respect of our hearing the Claimant asked for a French interpreter. This is not unusual because the Claimant is entitled to a court interpreter and one was provided. It was surprising that the Claimant needed an interpreter because he had worked for the Respondent in various capacities for more than 10 years and at no time had there been any issues in him speaking or understanding English.[25]Much of his case related to him giving evidence in an Employment Tribunal case of Onuoha case in 2015. We were told that he had been cross examined in that case without the services of an interpreter.[26]He had already attended two in person Preliminary Hearings in the current proceedings including giving evidence on one occasion, again, without the services of an interpreter.[27]He was the author as could be seen in the bundle of a volume of letters and e-mails which demonstrated an excellent understanding of the English language. Page 4 of 20
The law
[28]Having given evidence before the Tribunal to us it was clear that he did not need to use the interpreter who himself made a comment to the Tribunal about the Claimant not needing one.[29]At the commencement of our hearing Dr Ibakakombo requested that the hearing should be held in private. He asked for the Respondent’s witnesses to leave the hearing and we discussed that. I explained to him that in England and Wales the normal procedure was to have witnesses present. We discussed the fact that it was a public hearing. I asked him if he was concerned about whether the witnesses would be dishonest and he said that he was not. I asked him if there were exceptional circumstances and he said there were none. In view of this I asked him if he wanted to proceed with his application. He conferred with Mr Tchapdeu and then decided not to go ahead with his application.[30]On the third day of the hearing an incident occurred whilst he was cross examining one of the Respondent’s witnesses. He complained to the Tribunal about the conduct of Mr Willey. He had previously applied to amend his claim to include a claim of discrimination against Mr Willey which had been dismissed as being vexatious. He complained that Mr Willey was interrupting him. Mr Willey was making some point about the questions that were being asked by Dr Ibakakombo of his witness. I explained to Mr Willey that Dr Ibakakombo had not interrupted his own cross examination and that he should be careful to make sure that he only did so if it was necessary and he had a specific objection to a question. This was accepted.[31]On day 4 of the hearing Dr Ibakakombo was cross examining Alison Ringer. Mr Willey interrupted the cross examination. Whilst I was satisfied that he was only trying to be helpful Dr Ibakakombo again said that he had not interrupted Mr Willey. He said that he could not work under the pressure of interruptions and said he needed a break.[32]At that point we discussed language issues that he had. He said he was struggling to understand witnesses and they were struggling to understand him. I said I would try to assist him in framing his questions and to make sure that he put his case to the witnesses. Later that day he was cross examining Maranda Leach from Human Resources. She appeared to have difficulty in understanding Dr Ibakakombo’s questions and I intervened to assist him.[33]At this point he surprised the Tribunal by saying that the hearing had been conducted unfairly. That it was just a formality. He complained that since the start of the hearing we had a mindset to dismiss the Claimant’s case. He said that I was not acting fairly and that I was trying to get witnesses to change their responses to his questions. He said that I had allowed Mr Willey to interrupt him and not allowed him to ask his questions. That I was no longer impartial.[34]I responded saying that I had already dealt with Mr Willey to ensure that he did not interrupt his questions. That I had not prevented him from asking any questions at all. I had given him some assistance with framing his questions and I had tried to make sure that he didn’t ask too many irrelevant questions. I had tried not to restrict his questioning of the witnesses. By that time, we were on the second day of him asking questions of the Respondent’s witnesses. Page 5 of 20 I rejected his allegations and said that if he was not satisfied with my conduct of the proceedings he should make a complaint. I assured him that I would continue to deal with his case in a fair manner and I asked him if he wanted to carry on at that point or take a break. He had a 5-minute break and then concluded his questioning for the day.[35]On day 5 of the hearing Dr Ibakakombo said that he was not well. He asked for a postponement in respect of that day saying that he was under pressure. I said that I understood the pressures of conducting a case such as this and the Tribunal granted him his postponement to the following day. By the time we concluded the cross examination on day 6 the Claimant’s representative had been cross examining witnesses for two and a half days.
Evidence
[36]The Tribunal heard evidence from the following: -• The Claimant• Dean Ellis, General Manager, Magna Park• Steve Goode, Operations Manager, Magna Park• Kyle Newell, Operations Manager, Magna Park• Allison Ringer, Future Project Manager• David Harper, General Manager• Miranda Leach, HR Manager[37]There was an agreed bundle of documents and various additional documents that were handed in by Dr Ibakakombo during the proceedings.[38]Where there was a conflict in evidence the Tribunal preferred the evidence of the Respondent’s witnesses. They were consistent, credible and reliable. The same could not be said for the Claimant who it can be seen has persistently changed his case. He changed the basis of his protected characteristic from black African to black African Cameroon. He tried to add additional claims and build claims out of simple events that clearly had nothing to do with his race or indeed his wife’s disability.[39]Where I refer to page numbers it is from that agreed bundle.
The Facts
[40]The Respondents are a large employer and have 5,300 employees nationally. They offer a wide variety of services to industry. The Claimant works for Unipart Logistics which provides services to the mobile phone industry.[41]Mr Tchapdeu commenced his employment on 19 October 2009. His contract is at page 113-21. At that time, he was based at Nuneaton.[42]On 12 November 2014 he applied for flexible working (page 122). He said that he was responsible for the upbringing of a child under the age of 17. He wanted to work only Mondays, Tuesdays and Wednesdays and on Wednesday to finish at 10:00 am. He made no reference to his wife’s disability in his application. Page 6 of 20[43]There was a delay in the Respondents getting back to him but they did so on 7 January 2015 via Andy Latham, Operations Manager (pages 125-6).[44]On 13 January 2015 Mr Tchapdeu wrote to Mr Latham. He explained that he had 3 children under the age of 16 and that his wife was suffering from back pain for years. He said that her back pain was worsening and he wanted to give her some relief by helping with childcare (page 131).[45]On that day the Claimant had a meeting with Karen Langham who was considering the request. She adjourned the meeting to obtain further information (page 132-6).[46]There was a further meeting on 21 January 2015 (page 137-40) when Ms Langham told him that they had decided that they could not support the application now. Full reasons for this were given to him including the number of requests they had received in his area and the forecasted demand and the additional costs that would be incurred. Ms Langham said she would ask other areas to see if they have scope to accommodate his request. She was prepared to review the matter in 3 months’ time.[47]They met again on 22 January 2015 when they tried to agree the next step that would be taken. The Claimant told Ms Langham that he would be raising a grievance (pages 141-3).[48]On 29 January 2015 the Claimant raised a grievance (pages 146-8). His complaint was about the way in which his request had been dealt with including issues of delay and who had dealt with it and said that he had not been given adequate reasons why his application had not been granted. He did not complain that his treatment was because of his race.[49]This resulted in a grievance hearing on 18 March 2015. At the hearing the Claimant said he had not received an outcome letter dated 23 February 2015 notifying him of the outcome of his flexible working request. He was provided with a copy of that at the hearing. He was told that he would be given a further opportunity to appeal the decision provided he did so within 2 weeks of their letter of 19 March 2015 (page 193).[50]On 21 March 2015 the Claimant set out his appeal (page 194-5). He said in his letter that there had been no proper examination of his arguments and grounds and the reason for this was his assistance and help to Ikechukwu Onuoha David in the Employment Tribunal.[51]On 8 June 2015 Vince Edwards, Operations Manager wrote to the Claimant with the outcome of his grievance (pages 197 – 205). He pointed out that he had not received any reply to his letter dated 15 May 2015. He decided to uphold the grievance in part. He found that Andy Davidson, the Team Leader, had not fulfilled his responsibility as a Team Leader in relation to responding to e-mails in a timely fashion and ensuring that he was up to date with current policies. For this reason, it was Mr Edwards’s opinion that his actions could be interpreted as unprofessional.[52]He also found the HR adviser had mishandled the procedure having signed a letter written by Karen Langham, Team Leader. Page 7 of 20[53]All other complaints were not upheld. The Claimant was told about his right of appeal.[54]At that time the Claimant was off sick but his wife Blanche wrote on his behalf on 9 June 2015 asking for an extension of time (page 205a). An extension was given by Lucy Sharp, HR Adviser to 22 June 2015 (page 207).[55]On that date the Claimant raised a further grievance. This time against Vince Edwards and Lucy Sharp (page 208-9). He complained that: -• They had failed to give him the opportunity of two to three weeks to provide evidence in person during a reconvened hearing which was required because he was not well enough• That they had done this because he was black and because he supported the case of Ikechukwu David Onuoha.[56]Also on that date he appealed against the grievance outcome (pages 211-9). The grievance appeal was heard on 7 July 2015 and the notes are at pages 221-9. The appeal was conducted by David Marsh, Head of Technical Services and the outcome of the appeal is set out in the letter from Mr Marsh dated 14 July 2015 (pages 231-9). Mr Marsh supported the conclusion reached by the end and said that the Claimant had offered no new evidence but sought to challenge Mr Edwards interpretation of events. He did not uphold any part of the appeal.[57]On 6 August 2015 there was a hearing in respect of his grievance lodged on 22 June 2015. He received the outcome in respect of that grievance by way of a letter dated 13 August 2015 (pages 239c-d) and he appealed against that decision on 21 August 2015 (pages 239e-f).[58]On 22 October 2015 he was granted his flexible working request (pages 240-1). This allowed him to work 3 full days a week between the hours of 8:00 am 4:30 p.m. this was to be effective from the 22 September 2015 and was granted by Lauren Reynolds.[59]On 24 June 2016 the Claimant received a letter of confirmation that H3G had chosen to move their returns operation to an alternative provider. That provider would be based in Norwich. The letter (page 253-4) offered the Claimant the opportunity to accept a new role based in Magna Park. The letter said: “However, UTL has offered you the opportunity to accept a new role based in Magna Park. Your terms and conditions remain the same with effect from 1 July 2016, and you have elected to stay within the Unipart Group in your role as Operations Colleague, in Receiving initially on 6.00-14.30 shift, Monday to Friday. Your continuous service date and all other terms and conditions remain the same, including all flexibility clauses.” Although it said that “your terms and conditions remain the same” it was clear that the role offered to him was on a full-time basis, working Monday to Friday.[60]Magna Park, where the Claimant would be based, has a work force of 600 staff. The site offers a reverse logistics service. This is the opposite of a normal logistics operation, where goods are held in stock and then distributed to retailers and or customers for sale. They receive goods back after sale, either because Page 8 of 20 they are faulty or because the purchaser wished to return them.[61]They have two contracts at the site, one with Apple and one with the network operator Three. Seventy-five per cent of the staff work on the Apple contract and the Respondent receives 10-12,000 units per day.[62]Magna Park is at its practical limit for numbers of staff and has been for several years. This means that onsite facilities such as parking, toilets and the canteen are struggling to cope with demand. The Respondents have made improvements but the constant increase in services and business they are asked to supply for Apple means it has been difficult to keep up with the site services.[63]It was because of these difficulties, when in 2016 it was proposed that staff at the Nuneaton site who were displaced by the loss of the Vodafone contract, were to be offered a transfer to Magna Park, it was made clear that they could only be offered full time employment.[64]This did not mean that there were no part time staff at all but a decision was made that any staff displaced from Nuneaton would only transfer if they were prepared to work full time.[65]A significant number of the staff from Nuneaton worked part time and Mr Ellis, the general manager at Magna, made it clear that it was not possible to transfer these part time staff and he did not want to create a precedent by agreeing to one or two of these. Whilst there Mr Ellis had standardised shift patterns.[66]Steve Goode was the Operations Manager at Magna Park. We are satisfied that Mandeep Gill from Human Resources had explained to Mr Tchapdeu that because of the operational issues he had to work full time. It can be seen from the email exchange at pages 262 – 4 that the claimant had a meeting with Mandeep Gill on 18 July 2016 when she explained to him that they were unable to accommodate his current working hours at Magna Park. He was not happy about this but he reluctantly accepted the position. The letter dated 19 July 2016 at page 266-7 clearly sets out the position. He signed his acceptance and agreed to this and started working his new role on 25 July 2016 on a full-time basis.[67]Mr Tchapdeu’s Team Leader was Jose Fragona. He reported to the Operations Manager who at that time was Kyle Newall who was deputising for Steve Goode at the time. Kyle Newall was away on holiday during that week. Mr Tchapdeu wrote with a request for flexible work on 29 July 2019 which was the first Friday that he had worked. The letter is at page 268. The letter describes him requesting an implementation of his current employment terms and conditions which included flexible working. He wrote this letter in the full knowledge that he had agreed to work on a full-time basis in the new position and had understood why his transfer had been on that basis.[69]He then spoke to his Team Leader, Mr Fragona, who did not have any authority to vary terms and conditions or agree to any flexible working to say that he would be off Thursday and Friday of that week (page 269). Mr Fragona referred the matter to Human Resources and persuaded the Claimant to maintain his position of working full time. Mr Fragona clarified his position in his e-mail of 3 August 2016. Mr Fragona had been misled by the Claimant who had indicated that it had already been agreed with HR as part of the relocation process that he Page 9 of 20 could work part time. He had not.[70]There was a meeting between Mr Tchapdeu, Mr Newall and Mr Fragona on 3 August 2016. The minutes of that meeting are at page 270-1. It was made clear to Mr Tchapdeu that: “As discussed with HR we cannot accommodate flex work/part time hours, I will need you in Monday to Friday 6:00 am – 2:30 pm as stated in the letter written to you on 19 07 2016 which you printed and signed on 19 07 2016.”[71]Having been told this the Claimant then applied for flexible working again on 4 August 2016 (page 274-7).[72]Mr Tchapdeu then raised a grievance against Mandeep Gill dated 6 August 2016 saying that she had subjected him to less favourable treatment on grounds of his race, national origin and because of his support of Mr Onuoha. (Pages 278 – 9). He made many allegations in that letter that we are satisfied were untrue. He accused Mandeep Gill of changing her statement by telling him that Magna Park does provide part time but could not accommodate the days and hours that he requested. This was untrue. Mandeep Gill had always maintained that the work at Magna Park was offered on a full-time basis to all staff who are transferring from Nuneaton. He also accused Mandeep Gill of having a “well planned agenda to act in breach of my family well-being because of his support of Ikechukwu David Onuoha”. This was also untrue. We are satisfied that he knew from the start that if he agreed to transfer to Magna Park it would be on a full-time basis.[73]Kyle Newall and Steve Goode then had informal meetings with Mr Tchapdeu on 9 and 10 August 2016. These are referred to in Mr Tchapdeu’s e-mails on those dates (pages 281-2). Mr Tchapdeu wanted to discuss his ongoing issue of flexible working. They were not part of any formal assessment and only brief discussions about the issues. At that time, they had not received the new request from Mr Tchapdeu.[74]Following the meeting on 9 August 2016 Mr Newall and Mr Goode asked HR for guidance as to how they should deal with Mr Tchapdeu’s insistence on being allowed to change his working hours. They were advised that any new request he made would be dealt with as part of the grievance he had raised and they did not therefore need to respond to it. They advised Mr Tchapdeu that this is what would happen and had no further discussions with him about it.[75]Allison Ringer who was Future Projects Manager based in Burton-on-Trent was asked to hear his grievance. She had had no previous dealings with the Claimant.[76]Ms Ringer met with Mr Tchapdeu at Magna Park on 16 August 2016. The notes of the meeting are at pages 283-8.[77]At the meeting Mr Tchapdeu presented several documents. He told her about the grievances that he had raised whilst he was at Nuneaton and that he was eventually granted part time working. He told her that he had supported a former colleague who had brought a claim of racial discrimination to the Employment Tribunal and that he had given evidence on behalf of that colleague but that the case had been dismissed. He felt that his support had been held Page 10 of 20 against him. Ms Ringer had no knowledge about this.[78]He told Ms Ringer that it was his expectation that he would be allowed to continue working part time once he arrived at Magna Park but that this had not happened and he had been “forced” to move to full time hours. He complained that he felt that he had been misled about his working hours at the time he agreed to move to Magna Park. He also said he believed that part time work was available there but it had been denied to him because of his race. He said that he wanted to be able to resume part time working and be free of discrimination at work.[79]Ms Ringer then conducted her investigation by interviewing: -• Mandeep Gill (pages 293-5)• Kyle Newall (pages 299-300)• Jose Fragona (pages 301-3)[80]The allegation that Mandeep Gill had discriminated against him because of his race and victimised him was a serious allegation. From her investigations she was satisfied that Mandeep Gill had not done anything improper. She had been liaising between Nuneaton and Magna Park to relocate a sizeable number of people who were displaced by the loss of the Vodafone contract they had worked on. She had done her best to find suitable alternative work for as many people as possible.[81]It was not Mandeep Gill’s decision, but Dean Ellis, who had decided that they could not grant new part time working arrangements. Mandeep Gill had done her best to locate a part time role for Mr Tchapdeu but had been unable to do so. Mr Tchapdeu had then decided to accept the role on a full-time basis.[82]Not only did she find that Mandeep Gill had done nothing wrong but that none of her actions were in any way because of the Claimant’s race or because he had been involved in a Tribunal claim. She decided to reject the allegations and wrote to the Claimant with her decision on 22 September 2016 (pages 305- 9).[83]On 3 October 2016 the Claimant went off sick and he has not returned to work since then.[84]On 17 October 2016 the Claimant appealed against Allison Ringer’s decision (page 316). He now accused Allison Ringer of racism because he was “black African” and said that his grievance had been rejected without good reason. He referred to “institutional racism”. He said: “It is racial discriminatory for Allison Ringer not to find that I have been racially discriminated.”[85]David Harper was appointed to deal with the appeal and he met with the Claimant on 2 November 2016. Notes of the meeting are at pages 322-50. The meeting started at 2:00 pm and ended at 5:15 pm. Mr Harper identified 3 broad areas that Mr Tchapdeu wanted him to consider which were: -85.1 Whether he had been treated differently because of his race.85.2 Whether his involvement in the case of a former employee who he Page 11 of 20 had supported had impacted on the decision and;85.3 whether the company had followed its own processes properly.[86]Mr Harper knew nothing about the case of Mr Onuoha and deliberately chose not to read any of the paperwork in respect of that. He noted that Allison Ringer had also said that she was unaware of it and that there was no record on Mr Tchapdeu’s personnel file about his involvement.[87]Mr Harper was satisfied that there was no evidence that Mr Tchapdeu had been subjected to discrimination because of his race or that Allison Ringer had been influenced by his race in the way she had handled the grievance or the conclusions she had reached. He was satisfied that Ms Ringer’s findings had been based on the facts of the case as they should have been.[88]Mr Harper rejected the Claimant’s theory that Ms Ringer had been guilty of race discrimination because she had rejected his allegations of race discrimination against Mandeep Gill. His logic was that by rejecting criticism of Mandeep Gill, Ms Ringer had been tainted by racism herself. He understandably rejected that theory.[89]He was satisfied that Mandeep Gill had not made any decision relating to Mr Tchapdeu. She had simply supported many staff being displaced by the loss of a contract on which they were employed. Several staff, including Mr Tchapdeu, had elected to move to Magna Park and the question of who moved and where exactly they moved to and on what terms were decided by managers, not by Mandeep Gill.[90]All this had been explained previously to Mr Tchapdeu who would not accept that explanation.[91]Mr Harper explained that whilst there might have been some misunderstanding at the time of his transfer to Magna Park this had been quickly resolved and no one had set out to deceive him and in fact the business was making strenuous efforts to preserve the employment of a substantial number of people who might otherwise have been made redundant.[92]He was satisfied that Mr Tchapdeu’s actions in giving evidence on behalf of Mr Onuoha had played no part in the decision the business took about it.[93]Like Ms Ringer he agreed that there had been some confusion in the mind of Mr Fragona when they discussed the Claimant’s wish to work part time. This had not been helped by the fact that Mr Tchapdeu had shown Mr Fragona a flexible working request which had dated back to his time at Nuneaton. Whatever, Mr Fragona did not have the authority to agree a new flexible working request and such a request had to go to Mr Newall. Mr Harper found that Mr Fragona believed Mr Tchapdeu had been granted flexible working before he had moved to Magna Park and that in fact as Mr Tchapdeu knew very well he had agreed to transfer on the basis that he would have to work full time.[94]He found that Mr Tchapdeu had caused the confusion himself, an example of which was his letter at page 268 which was worded in a way that implied that a flexible working arrangement was already in place when he knew that those arrangements related to his time at Nuneaton and would end when he transferred to Magna Park. Page 12 of 20[95]He was satisfied that Allison Ringer had been entitled to make the findings that she did and he rejected the grounds of appeal. His conclusions were then set out in a letter to Mr Tchapdeu (pages 351-5) dated 18 November 2016.[96]On 19 December 2016 the Claimant contacted ACAS and presented his claim to the Tribunal on 15 February 2017. The Claimant continued in the employment although he was absent from work through illness. He made further requests to work part-time but these were rejected the same business reasons as before. An occupational health report was obtained dated 18th of January 2017 pages 358 – 358AA. The advice contained in the summary section was as follows; “this is a management issue and will only like resolved by allowing flexible working”. The report does not advise the respondent to grant the claimant’s flexible working request.[97]The claimant made a further request for flexible working on 5 May 2017 (page 377) which was refused for the same reasons as before. The Claimant also raised further grievances that letter accusing Mr Goode of discriminating against him and victimising him. This was repeated in another letter dated 25th of May 2019 (page 379). The Respondent advised the claimant by letter dated 31st of May 2017 (page 380-1) that they would not hear further grievances from him which related to matters which had already been dealt with, all of which were then subject to the tribunal proceedings. This was repeated in a letter dated 13th of October 2017 (page 417) and in an email dated 18th of October 2017 (page 420) and in a further email to the claimant dated 19 October 2017 (page 421). This decision was made because the Claimant’s continuing complaints was taking up substantial resources by dealing with repetitious grievances. Because of this decision the Respondent’s did not further correspond with the Claimant and his representative. The Law Direct Race Discrimination[98]Section 13 of the Equality Act 2010 (“EQA”) provides: - “(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.” As Mr Willey points out in his skeleton argument the Claimant relies on his race as a protected characteristic. This he initially classified as black African but subsequently he clarified it as being black African Cameroonian.[99]Mr Willey referred us to: -• Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285• Nagarajan v London Regional Transport [1999] IRLR 572 Page 13 of 20 Indirect Race Discrimination[100]Section 19 EQA provides: - “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if:- (a) A applies, or would apply, it to persons with whom B does not share the characteristic; (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;(c) it puts, or would put, B at that disadvantage, and;(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”[101]In this case the Claimant referred me to the case of British Airways Plc v Starmer IRLR 862.[102]As Mr Willey says indirect discrimination means that the Respondents have applied a provision, criterion or practice (PCP) which puts the person in question at a disadvantage compared to people to whom the PCP is applied but who do not share the relevant person’s protected characteristic and who do not in consequence suffer that disadvantage. Direct Disability Discrimination[103]Again Section 13 EQA applies as above. In this case the Claimant does not have a disability himself. As Mr Willey says the case of Coleman v Attridge Law [2008] IRLR 722 applies.[104]The Tribunal must be satisfied that the Claimant’s rejection to work reduced hours amounts to less favourable treatment of him because of his wife’s disability. The Claimant not only has to show that he has suffered less favourable treatment but also that it is because of his wife’s protected characteristic. Victimisation[105]Section 27 EQA provides: - “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because: - (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. Page 14 of 20 (2) Each of the following is a protected act: - (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.”[106]In this case it is not in dispute that the Claimant has committed a protected act. We have to be satisfied that: -106.1 The employer has subjected him to a detriment and in particular;106.2 that he was subjected to the detriment because he did the protected act. Burden of Proof[107]Section 136 EQA provides: - “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (ii) does not apply if A shows that A did not contravene the provision.”[108]The case of Ayodele v City Link Limited [2018] IRLR 114 reaffirmed the position in respect of burden of proof that had previously been set out in the cases of: -• Hewage v Grampian Health Board [2012] IRLR 870• Igen Limited and Others v Wong and Others [2005] IRLR 258• Khan and Another v Home Office [2008] IWCA CIV 578• Laing v Manchester City Council [2006] IRLR 748• Madarassy v Nomura International Plc [2007] EWCA CIV 33[109]The case law is clear. In discrimination claims brought under the EQA the initial burden of proof lies with an employee as it always had done under the earlier legislation.[110]It is therefore initially for the Claimant to prove facts in support of his claim to have suffered the discrimination in question. Unless he does so the Respondent will not need to advance a non-discriminatory explanation for the facts established by the Claimant.[111]As described by Mr Willey in practice and in most cases the Tribunal will be able to establish with relative ease whether the facts offered by the Claimant would, if proved, show that a breach of the act had taken place. It then applies Page 15 of 20 the normal (civil) standard of proof in assessing the evidence as to whether the facts are proved.[112]If those facts are established then and only then does the burden move to the Respondent to show that the conduct in question was in no sense at all related to the relevant protected characteristic of the Claimant (in this case race). Jurisdiction[113]Section 123(1)(a) EQA provides: - “1) Subject to section 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of: -(a) The period of 3 months starting with the date of the act to which the complaint relates, or(b) Such other period as the Employment Tribunal thinks just and equitable. (3) For the purposes of this section: - (a) Conduct extending over a period is to be treated as done at the end of the period; (b) Failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something: - (a) When P does an act inconsistent with doing it, or (b) If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[114]We were referred to several cases namely: -• Bexley Community Centre v Robertson [2003] EWCA CIV 576• Hendricks v Commission of Police for the Metropolis [2002] EWCA CIV 1686• Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA CIV 14548• Cast v Croydon College [1998] IRLR 318• Sougrin v Haringay Health Authority [1992] IRLR 416[115]Dr Ibakakombo makes much in his legal submissions of the case of Cordell v Foreign and Commonwealth Office UK EAT/0016/11/SM. That case emphasises the two questions that the Tribunal must ask: -115.1 Has the Claimant received less favourable treatment than an actual or hypothetical comparator? And;115.2 was the reason for that treatment the person’s protected characteristic? Page 16 of 20 Our Conclusions[116]We agree generally with Mr Willey’s submission that this case is “remarkable for the almost complete lack of any supporting evidence for the Claimant’s claims”. Whilst Mr Tchapdeu and even more so Dr Ibakakombo are firmly of the view that the Claimant has suffered the discrimination alleged, there is in our view no evidence to support that contention. None of the facts have been presented to us point to the reasons for any treatment that he has received being because of his race or because of his wife’s disability or because he had undertaken protected acts.[117]We are satisfied that allegations numbered 6 to 15 are all out of time and that the Tribunal does not have jurisdiction to deal with these claims. The Claimant notified ACAS of his claims on 19 December 2016 so on the face of it any claims made before 20 September 2016 are out of time. Dr Ibakakombo on behalf of the Claimant accepted at the commencement of the hearing that these were out of time and we are satisfied that they are and no reason has been put forward why there should be an extension of time on a just and equitable basis.[118]The allegations which are in time and which could form part of a continuing act relate to his request for flexible working and grievances he has raised in respect of them. Direct race discrimination[119]The Claimant says that all matters that he complains of amount to direct race discrimination i.e. because he is black African Cameroonian. The alleged less favourable treatment is set out in the schedule.[120]We are satisfied that his request for flexible working was rejected not because of his race but because of issues at Magna Park which led to a decision being made that those transferring from Nuneaton would have to transfer to Magna Park on a full-time basis. We are satisfied that this provision applied to all employees and that the Claimant was not singled out in any way or suffered any different treatment. We have heard the Respondent’s explanation as to why they made their decision and accept that this was the reason for them doing so, namely issues over the facilities at Magna Park.[121]Allison Ringer’s rejection of his grievances was because there were no grounds for his grievance. She knew nothing of the Claimant prior to being appointed to consider his grievances and her rejection of those grievances was perfectly proper and not motivated by his race at all.[122]David Harper was also someone who knew nothing about the Claimant and nothing about his involvement in other cases. He rejected the Claimant’s appeal not because of the Claimant’s race but because there were no grounds for it.[123]After the Claimant presented his claim to the Tribunal the company took a strategic decision to not consider any further claims but for these matters to be dealt with by the Tribunal. Again, this was a business decision and not motivated by race. Page 17 of 20 Indirect Race Discrimination[124]The provision, criterion or practice relied on in this case is rejecting claims and grievances. We are satisfied that there was no provision, criterion or practice to reject his grievances. There was no lack of a proper examination of complaints and grievances. All matters were looked into carefully by those responsible, i.e. Allison Ringer and David Harper. The Claimant has not established any basis for any such complaint. Victimisation[125]We are satisfied and the Respondent’s accept that the Claimant undertook various protected acts, namely: -125.1 Accompanying of a colleague to a grievance hearing.125.2 Appearing as a witness in January 2016 in a Tribunal claim of discrimination.125.3 Lodging a grievance alleging racial discrimination.125.4 Submitting various letters alleging racial discrimination.125.5 Bringing these proceedings.[126]In this case the Claimant says that he has suffered various detriments because he had undertaken those protected acts, namely: -126.1 Requiring him to work full time at Magna Park.126.2 Giving him incorrect information at the time of transfer.126.3 Continuing to refuse him part-time working in August 2016126.4 Failing to properly consider the new request for flexible working in August 2016126.5 The rejection of his grievance dated 6th of August 2016126.6 The rejection of his appeal against that outcome in November 2016126.7 The withdrawal of an offer of part-time working in July 2017126.8 The failure to provide him with information about 2 fellow employees he wanted to cite as comparators in his direct discrimination claim in mid-126.9 Failing to provide him with employment tribunal case papers relating to a former employee Davinder Singh126.10 Failing to implement flexible working arrangements during 2017 while he was off work sick126.11 Failing to acknowledge and respond to letters of grievance during Page 18 of 20 2017, and126.12 Failing to provide him with information relating to internal rules and procedures relating to the handling of grievances during 2017.[127]We are satisfied that the claimant;• Agreed to work full-time at Magna Park.• He was not required to work full-time at Magna Park.• He chose to accept the transfer on that basis.• He was not given incorrect information by Mandeep Gill.• The Respondent did not continue to refuse to allow him to work part-time.• The Respondent considered properly his request for part-time work at all stages and his grievances and the appeals that followed those grievances were dealt with professionally and without a hint of discrimination.• There was no withdrawal of an offer of part-time work in July 2017.• There was no failure to provide him with information or case papers that had anything to do with his race or that could possibly amount to any victimisation.• There was no failure to implement flexible working arrangements during 2017 while he was off sick• there were good business reasons why the respondent decided to not respond to letters of grievance during 2017.• There was no failure to provide him with information relating to internal rules and procedures.[128]We are satisfied that none of the acts complained of were because of these protected acts. Allison Ringer, David Harper and Jose Fragona, we are satisfied, were not aware of his involvement in the Tribunal claims until he told them about it. They were not involved in the claims. None of the people who he complains of were motivated in any way by the protected acts complained of. Institutional Racism 128. In this case in an almost desperate attempt to make some sort of claim Dr Ibakakombo accuses the Respondent of institutionalised racism. Saying that the Respondents by not hearing his new grievances and complaints were motivated by widespread racism which permeates the business. He cannot accept what we accept that this was simply a business decision undertaken by the business.[129]Allison Ringer and David Harper had carried out thorough investigations into the allegations that the Claimant has made and came to entirely appropriate conclusions that he had not been discriminated on grounds of his race.[130]We are satisfied that there were no misdeeds with regards to the witness statements. The amendments made were simply to address the new race discrimination claim that the Claimant had been discriminated against because he was black African Cameroonian. There is no evidence in this case at all that the Claimant has suffered any type of discrimination.[131]We are satisfied that he has been treated fairly and properly by his employers’ and the allegations of discrimination against them are entirely without foundation. Page 19 of 20[132]In the circumstances all the claims fail and are hereby dismissed and the provisional remedy hearing listed for 29th of August 2019 is hereby cancelled.[1]The Claimant was employed by the Respondent from 19 October 2009. He presented his claim to the Tribunal on 15 February 2017 and claimed that he had suffered: -• Direct race discrimination• Indirect race discrimination• Victimisation[2]We heard the Claimant’s claims over seven days including a reading day and reserved judgment day between 10 April 2019 and 30 April 2019. The reserved judgment was dated 19 July 2019 and was sent to the parties on 20 July 2019. All the Claimant’s claims were dismissed. Page 1 of 9[3]On 15 August 2019 the Respondents made an application for an order for costs to be paid by the Claimant. They said that the Claimant had acted unreasonably in both bringing and continuing with the case in circumstances where he knew or ought reasonably to have known that it stood little or no reasonable prospect of success. On 20 August 2020 Dr Ibakakombo on behalf of the Claimant sent a response to the Respondent’s application. The response went to 14 pages. Among other matters it accused me of abusing my legal power and required me to provide further information and reasons for the tribunal’s original decision. I directed that a costs hearing would be listed. A notice of hearing was sent to the parties on 21 September 2019. On 31 October 2019 Dr Ibakakombo wrote to request a postponement of the costs hearing on the grounds that the decision on liability had been appealed to the Employment Appeal Tribunal. I considered that postponement request and refused it. The grounds for doing so were: -3.1 The Tribunal should deal with the issue of costs.3.2 The fact that the Claimant appeals the liability decision does not affect that.3.3 I urged the Claimant and his representative to attend the hearing to make their points in person.3.4 I reiterated that if the Claimant and his representative chose not to attend the Tribunal would take into account any written representation.[4]Dr Ibakakombo wrote again on 4 November 2019. He said that he and the Claimant were willing to attend the costs hearing to make their points in person, provided that the Tribunal were also willing to properly address correspondence to the Tribunal i.e. the letters dated 20 August 2019, 5 September 2019 and 6 September 2019 by 9 November 2019.[5]I replied to that correspondence saying that the Tribunal had provided its judgment and written reasons on liability and had nothing further to add and that there would be no further explanation of the Tribunal’s reasons. I said that I would be happy to explain the reason for this at the costs hearing but I would not be explaining further the reasons for the Tribunal’s decision.[6]I urged the Claimant and his representative to attend the costs hearing and be prepared to participate in it and if they did not attend the Tribunal would take into account any written representations.[7]By a letter of 11 November 2019 Dr Ibakakombo made it clear that neither he nor Mr Tchapdeu would be attending the hearing. The matter had to therefore progress in their absence although the Tribunal was able to take into account the written representations that had been previously submitted on the Claimant’s behalf. The application for costs[8]The Respondent submitted their application for costs under Rule 76 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the rules”). Page 2 of 9[9]The application is made on 2 grounds which are: -9.1 That the claims had no reasonable prospect of success.9.2 That the Claimant acted unreasonably and vexatiously in the manner in which he conducted the proceedings.[10]The Respondent in this case is seeking the expenses they have incurred in defending these proceedings. All the witnesses are employees of the Respondent and have been reimbursed by the Respondent their expenses. They are: -• Claire Burgess, HR representative• Miranda Leech• Kyle Newall• Steve Good• David Harper• Dean Ellis• Korensa Rushton, HR representative and notetaker[11]The expenses are set out in the schedule of the Respondent’s costs which was provided to the tribunal and also to the Claimant prior to the hearing Their expenses were for: -• Parking• Train travel• Hotel• Meals• Mileage• Salary costs[12]There was also a claim for legal costs comprising Counsels fees for attending the Preliminary Hearing on 6 April 2018 in the sum of £900. Counsel had to be instructed because the Claimant had sought to amend the claim by making an allegation against the Respondent’s representative of discriminating against the Claimant. No reasonable prospect of success[13]Mr Willey referred us to the comments made by three separate Employment Judges at Preliminary Hearings which were all attended by Dr Ibakakombo.[14]On 10 April 2017 Employment Judge Ahmed expressed the view that the claims seemed unlikely to succeed. Of his own motion, and not on the application of the Respondent, he directed that the case should be the subject of a Preliminary Hearing to determine if the claim should be struck out on that basis (or a deposit order made).[15]At a hearing conducted by Employment Judge Blackwell on 18 August 2017 he struck out a number of the claims and made a deposit order in respect of all the allegations that survived. It can be seen from his reasons that Employment Judge Blackwell said: Page 3 of 9 “I… urge the Claimant and his advisers to think carefully before proceeding and to re-read both this decision and the earlier decision I have referred to above.”[16]On 6 April 2018 Employment Judge Clark conducted a further Preliminary Hearing to consider striking out some additional claims the Claimant had sought to plead. In his judgment and reasons, he described the whole case as being “weak”.[17]It can be seen from the above therefore that on 3 separate occasions the Claimant was advised that his claims stood little reasonable prospect of success. Of course, the Judges had not heard any evidence at that stage but made their assessment based on the pleadings that were before them.[18]The Respondents make the point that Dr Ibakakombo although not legally qualified is a highly skilled and experienced advocate with a specialism in discrimination matters as he is often referred to in his correspondence with the Tribunal being also an author of a book titled “Black phobia at work place and lack of remedies and recommendations”. He is a skilled lay adviser and the Claimant must have been aware or should have been aware that his claims had no reasonable prospect of success. Unreasonable conduct[19]The Respondent also submits that the Claimant acted unreasonably in the manner in which he conducted the proceedings. They remind us that where a Claimant pursues a claim in which an order for a deposit was made and the Tribunal subsequently decides the case against him, then unreasonable behaviour will normally have been made out. The Respondent says that there are other acts of behaviour which amount to unreasonable conduct of the proceeding.[20]That the Claimant acted unreasonably in bringing the amendments to the claim dated 24 October 2017 when he made allegations against the Respondent’s solicitor. At the hearing conducted by my colleague Employment Judge Clark on 6 April 2018 he found that those claims were vexatious and had no reasonable prospect of success and struck them out. As the claims were against the solicitor representing the Respondent it was necessary for the Respondent to instruct Counsel for that hearing and the Respondent was therefore put to time and costs of preparing for, attending and being represented by Counsel at that hearing.[21]The Respondent’s point out that in his judgment and reasons Employment Judge Clark described the claims as “speculative” and “weak” and in relation to the allegations of race discrimination which the Claimant sought to bring against Mr Willey, he said “there is nothing that raises even a prima facie concern”.[22]The Respondent’s also say that the Claimant acted unreasonably in the number and length of the amendments he made to his claim. None of the amendment application was successful. Those amendment applications were made on: -•3 July 2017•27 July 2017 Page 4 of 9•24 October 2017[23]The Respondent says that the first and second applications whilst alleged to have been concerning new events were broadly the same as had already been pleaded. The third application ran to seven closely typed pages, much of it dealing with what they described as “satellite issues only loosely related to the main claim”. Much of the application comprised a wholly spurious argument around the Respondent’s decision not to respond to further correspondence for the Claimant in relation to matters which had already been the subject of grievance hearings.[24]Thirdly the Respondent submits that the Claimant acted unreasonably in changing his definition of his race from Black African to Black African Cameroon part way through the case. In this matter the claim was lodged on 2 February 2017 and the change was only confirmed at the Preliminary Hearing on 6 April 2018 by which time witness statements had been exchanged.[25]The Respondent’s point out that the Claimant had never identified himself by reference to his nationality at any time during his employment and none of the witnesses knew his country of origin. The Respondent’s do not object to the fact that the Claimant chose to identify himself in that way but do submit that it amounted to unreasonable conduct because it had only been done a substantial way through the proceedings.[26]Because of the amendment to the pleadings which took place after witness statements had been prepared the witness statements had to be amended at considerable cost to the Respondents.[27]Finally, the Respondents say that the Claimant acted unreasonably in insisting on the use of a separate bundle of documents at the hearing which consisted very largely of the case papers relating to the case of Onuoha v Unipart Group which was a case in which was a case in which the Claimant had appeared as a witness and Dr Ibakakombo had been his representative. In insisting on including this it was necessary for the Respondent’s witnesses to read documents so that they could be prepared to answer questions on this. In the event no reference was made to the documents at any stage during the hearing and the entire time spent preparing was therefore wasted.
The Law
[28]The Tribunal was referred to the following rules: -28.1 Rule 76. This provides for when a costs order or a preparation time order may or shall be made: “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that: -(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or Page 5 of 9(b) any claim or response had no reasonable prospect of success;”28.2 Rule 78 deals with the amount of a costs order: - “(1) A costs order may: - (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000 in respect of the costs of the receiving party; (d) Order the paying party to pay another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses (of the kind described in Rule 75(1)(c).”28.3 Rule 75 states: - “(1) A costs order is an order that a party (“the paying party”) make a payment to: - (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;(c) another party or a witness in respect of the expenses incurred, or to be incurred, for the purposes of, or in connection with, an individual’s attendance as a witness at the Tribunal.”28.4 Rule 84 deals with ability to pay and says: - “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s …. ability to pay.”[29]In deciding whether to make a costs order we must adopt a two stage test in assessing the Respondent’s application. We must first decide whether: -29.1 The claims had no reasonable prospect of success and/or;29.2 the Claimant acted unreasonably and/or vexatiously in the manner in which it conducted these proceedings;29.3 decide whether we should exercise our discretion and make an order in all the circumstances of the case.[30]If we decide to exercise our discretion we must then consider the amount of the costs order the Claimant should have to pay. That is also a matter of discretion for the Tribunal.[31]On the issue of the ability to pay the rules recognise that we may have regard to the paying party’s ability. Page 6 of 9[32]We have been referred to several cases namely: -• Dyer v Secretary of State for Employment EAT 183/83• Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420• Sud v Ealing London Borough Council [2013] ICR D39• Scott v HMRC [2004] ICR 1410• Raveneau v Brent London Borough Council EAT 1175/96• Mvula v The Cooperative Group Limited ET number 1300032/2015• Arrowsmith v Nottingham Trent University [2012] ICT 159• Herry v Dudley Metropolitan Borough Council [2017] ICR 610[33]In his written submission on behalf of the Claimant Dr Ibakakombo also referred us to many cases namely: -• Meek v City of Birmingham District Council [1987] IRLR 250• Cordell v Foreign and Commonwealth Office UK EAT/0016/11/SM• Sheffield City Council v Norouzi UK EAT/0497/10/RN• Lang v Manchester City Council [2006] IRLR 745• Bahl v The Law Society [2004] IRLR 810• Anya v Oxford University [2001] IRLR 377[34]Although the Claimant and his representative declined to attend the costs hearing we did have the benefit of a twelve-page submission from Dr Ibakakombo in support of his contentions that we should not make an order for costs.[35]Broadly it can be said that Dr Ibakakombo does not accept at any time that the claims had no reasonable prospect of success. He suggests that although the three experienced Employment Judges had all expressed their views about the claims being weak, this was done without seeing any documents or evidence and without considering the claims in depth. We now have had the benefit of considering his claims in depth.[36]Dr Ibakakombo also refuses to accept that the Claimant acted unreasonably in pursuing these claims or that he was unreasonable in his conduct of the proceedings in any way, or that he had acted vexatiously as found by Employment Judge Clarke in pursuing an amendment to the claim to complain of race discrimination by the Respondent’s solicitor.[37]Although he knew that the Tribunal could take into account the Claimant’s ability to pay, he did not provide any details of his financial circumstances.[38]The only details of the Claimant’s ability to pay were provided at the deposit hearing in August 2017. He was not working at that time and as far as we know he is still not working although we cannot be sure. He did not make any mention at the Tribunal of what he was doing now. There is no reason though why he should not be working. He had been employed by the Respondents for some ten years. Page 7 of 9 Our conclusions[39]Making a costs order in the employment tribunal is still the exception rather than the rule. The tribunal’s power to order costs is more sparingly exercised and more circumscribed than that of other courts where the general rule is that costs follow the event. We are satisfied in this case that it is appropriate for us to make a costs order. We are satisfied in this case that none of the claims of discrimination had any reasonable prospect of success. This had been highlighted by three Employment Judges to the Claimant at separate hearings, all taking the same view that the claims were weak. Although a costs warning had not been issued by the Respondents it was entirely unnecessary.[40]At a hearing on 18 August 2017 Employment Judge Blackwell made a deposit order in relation to all the claims and urged the Claimant to think carefully before proceeding.[41]Mr Tchapdeu was represented by an experienced legal representative and there really is no excuse for him to think that at any stage of the proceedings his claims had any prospects of success at all. In the view of the Tribunal having heard the evidence at no stage did the claims have any prospect of success.[42]We are also satisfied that the Claimant acted unreasonably in the manner in which he conducted the proceedings. Having been subjected to a deposit order, the Claimant continued with the proceedings to the very end and this would normally be sufficient for us to make a costs order.[43]We are also satisfied that the Claimant acted unreasonably in other ways in his conduct of the proceedings.[44]He continually sought to amend the claims to add further claims which also had no prospect of success and were struck out.[45]He pursued claims against the solicitor representing the Respondent which necessitated Counsel to be instructed at a Preliminary Hearing at which Employment Judge Clark not only struck out the allegations but also found that they were “vexatious”. We are bound by Employment Judge Clarke’s decision that the claimant had acted vexatiously in pursuing that amendment which necessitated the instruction of Counsel[46]The Claimant also acted unreasonably by changing his chosen definition from Black African to Black African Cameroon part way through the case. He did this despite that in all the previous complaints that he had made to the Respondents he had never referred to his race in this way.[47]It was also unreasonable for the Claimant to insist on using a separate bundle of documents containing the case papers relating to a case which was irrelevant to the proceedings being brought before us.[48]Having decided that the Claimant had acted unreasonably and vexatiously and that his claims had no reasonable prospect of success, we are satisfied in this case that it would be appropriate to exercise our discretion.[49]We are satisfied that the schedule of the Respondent’s costs is reasonable. It consists of the Counsel’s fees for attending the Preliminary Page 8 of 9 Hearing on 6 April 2018 and the costs incurred for the witnesses to attend the hearing.[50]All these witnesses had been accused of acting in a discriminatory way towards the Claimant. All the witnesses had to be called to give their evidence as they were all accused. None of the accusations had any foundation at all. We are satisfied that we should make an award for the sums claimed which total £4,971.42 as per the schedule of costs.[51]The Claimant has chosen not to provide us any details of his ability to pay or to attend the hearing to give us evidence or submissions about his ability to pay other than the written submissions from Dr Ibakakombo. We are satisfied that there is no reason why the Claimant should not be working at this stage but in any event the behaviour is such that we are satisfied that it would not be appropriate for us to take into account his ability to pay in any event.[52]For these reasons the Claimant is ordered to pay to the Respondent the sum of £4,971.42.