Dr R Masunga v Bishop Grosseteste University: 2600434/2019

EMPLOYMENT TRIBUNALS

Case No 2600434/2019

Between

Dr R MasungaClaimant

Bishop Grosseteste UniversityRespondent

Before

Employment Judge R Clark

In person for claimant

Mr Fahy (instructed by Solicitor) for respondent

Date 29 March 2021

JUDGMENT

[1]The claim of breach of contract was presented out of time and is struck out.

[2]The claim of direct race discrimination, so far as it alleges the absence of a formal complaints procedure for ex-employees was an act of less favourable treatment because of the claimant’s race has no reasonable prospects of success and is struck out.

REASONS

Discussion

[1]Introduction1.1 This hearing was listed to consider whether any of the claimant’s claims were presented out of time and, if so, whether time should be extended. It was also listed to consider whether it was appropriate to make any orders in respect of the prospects of success of the claimant’s claims. The claims themselves were not clearly particularised in the original ET1. An attempt to do so was made by EJ Broughton at the previous telephone preliminary hearing held on 1 November 2019. Following that hearing, she ordered the claimant to provide some further particularisation and set down this hearing.

1.2 Before I could consider the issues for this hearing it was necessary to spend some time ensuring the individual allegations were fully understood.

1.3 I have set out a short summary of the relevant chronology where it is agreed or noncontentious. Where there are disputes of substance, I identify them. The only area in which I make explicit findings of fact is in respect of the time limit issues. I then consider the elements of each of the allegations, the question of time limits and prospects of success.

[2]Background Chronology2.1 The claimant is a PhD level educationalist. He is black.

2.2 In March 2017, the claimant applied for employment with the respondent. There may be more detailed findings to be made as to whether there was an initial post for which he was not appointed and whether the visiting tutor (“VT”) position was suggested as an alternative. Either way, it is common ground the claimant became eligible for VT work. He says he was appointed to a VT post. The respondent says he was merely included in a potential pool of VT’s.

2.3 VT’s are casual or hourly paid lecturers. They provide a flexible resource to allow the respondent to meet specific demands in each academic year to supplement its substantive lecturing workforce.

2.4 The respondent will say that VT’s are given a contract for the specific lecturing tasks to be undertaken which may involve student contact or non-contact or both. A VT may have more than one such contract at any one time or in any one year. In order to claim and be paid for their hours, there must be a corresponding contract for VT hours.

2.5 Despite his appointment, the claimant was not given a specific allocation of work for the academic year 2017/18. A white VT tutor, John Ingoldsby, was given teaching hours. The claimant chased the respondent to find out if there was any work for him. There is an area of fact finding needed to understand why the claimant was added to the VT pool but not given any work for that year. The respondent will say his skills were not needed in that particular year on the undergraduate course, but his higher academic qualifications meant he was being considered for contributing to an MA course that did not run that year.

2.6 The claimant was invited to an induction course which was held on 22 November 2017. He was entitled to be paid for attending that and needed a contract against which payment could be authorised. A written contract was belatedly issued in mid-December, signed and returned to the respondent on 19 December 2017. The relevant terms of that contract are, at best, confusing. There are substantial findings to be made to determine the objective intentions of the terms of this contract. There is a real prospect that both parties are wrong in their respective assertions about what it provides for. So far as commencement and termination is concerned, it provides: - Your employment commences on 22/11/2017 and will terminate on 31/07/2018.

2.7 It is not contentious that the end date was the end of the academic year. So far as hours of work were concerned it says: - You are employed for a maximum of 6 hours. Details are determined by the Head of School and will be made available to you. Your total scheduled teaching responsibilities should not exceed 18 hours in any week or 550 in the teaching year.

2.8 The claimant says this, together with verbal representations given at the induction course reflected a contractual entitlement for him to work 6 hours per week. The respondent says it is a maximum of 6 hours per week. The contract says neither and may in due course be found to be more likely to reflect the fact that the only paid “work” the claimant had was for 6 hours (in total, not per week) to attend the induction day on 22 November 2017.

2.9 The claimant alleges one of the attendees on the course, Lois or Louise Connolly, was appointed as a VT but unlike the claimant had not had to go through any form of interview of selection process to be used in that academic year.

2.10 Following the induction, the claimant sent various chasing emails through January, February and March about the possibility of work. Findings will be needed to understand exactly what was happening then and why there was a failure to respond to the claimant’s queries then or, for that matter, to communicate to him earlier that he would not be needed that academic year. Further findings in respect of why he was invited to the induction course may shed light on what was happening at the time. His chasing correspondence will also likely inform findings about the claimant’s own subjective belief about his contractual status at the time which may well not support a contention that he believed he had a contract for 6 hours per week from 22 November 2017.

2.11 In March 2018, the claimant commenced alternative salaried employment.

2.12 The only written contract in place ended on 31 July 2018.

2.13 In June 2018 the respondent advertised for more VT’s. The claimant says this was for his “work”. The respondent will say it was for different work. The claimant enquired about the advert and was informed that he would need to reapply. He did not apply.

2.14 I find between 4 August and 4 September 2018, the claimant was abroad on holiday, as advised by his GP in order to rest and recuperate.

2.15 I find as a fact that in September 2018, the claimant and/or his wife on his behalf visited CAB with a view to advancing his dispute with the respondent.

2.16 On 29 September 2018 the claimant, through his wife, lodged a written complaint with the respondent alleging race discrimination. He supplemented his complaint with further specific allegations on 5 October 2018. The respondent investigated the allegations and responded in terms which rejected the complaint but also offered some conciliatory proposals. It explained how the claimant had not been used for the undergraduate course as other existing VT’s had a better fit for that work. Equally, he was seen as a better fit for a planned MA course and there was still an option for him to work on that if he wished.

2.17 The respondent also accepted that its communication with the claimant had not been acceptable.

2.18 I find around late November / early December, the claimant’s wife visited a lawyer on behalf of the claimant in respect of his complaint against the respondent. Around the same time, I find the claimant had been able to undertake his own research and “reading around” the subject of advancing an employment dispute with an employer and the role of ACAS. He had access to relevant support organisations, SET and EASS, who provide general advice on such complaints and when SET were asked about his complaint, they were quick to respond.

2.19 On 15 January 2019, the claimant “escalated” his complaint. There are facts to be found about what happened. The claimant says he was frustrated by the respondent’s lack of a formal process appropriate to him and decided not to wait for an outcome. For its part, the respondent recognised he was no longer an employee and was not a student. Neither of its formal policies fitted the situation but it sought to engage to resolve the dispute. Before it could do so, the claim was initiated.

2.20 The claimant commenced early conciliation on 22 January 2019. His certificate was issued on 31 January 2019. His claim was presented on 4 February 2019.

[3]The Breach of Contract Claim.3.1 The claim of breach of contract relates to the allegation of non-payment of contractual wages throughout the duration of the contract. The claimant argues the written terms should be interpreted alongside what he says were oral representations made at the induction day. There are difficulties in law of such an approach to interpretation.

3.2 The claim is brought under article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Articles 7(a), 7(c) and 8B define the time within which such a claim must be presented. Articles 7(a) and (c) provide: -

[7]An Employment Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented— (a)within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or (b).., or (c)where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable 3.3 Article 8B modifies the time limit set by that provision by applying the standard statutory formula for not counting certain time spent in early conciliation. 3.4 I have considered the relevant authorities in this area of law. In particular, Dedman v British Building and Engineering Appliances Ltd

[1973] IRLR 379

, Walls Meat Company Ltd v Khan

[1978] IRLR 499

, Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

and Marks & Spencer plc v Williams-Ryan

[2005] IRLR 562

. 3.5 The principals they give rise to are to start with the words of the statute, and not any gloss applied to it by authorities which may be fact specific. The provision should be given a liberal construction in favour of the employee. In accordance with that approach it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time limit if he was, reasonably, in ignorance of that time limit. In Dedman the Court of Appeal appeared to hold categorically that an applicant could not claim to be in reasonable ignorance of the time limit if he had consulted a skilled adviser, even if that adviser had failed to advise him correctly. Concluding internal procedures does not, in itself, render it not reasonably practicable to present a claim in time. The question of reasonable practicability is one of fact for the tribunal and falls to be decided by the particular circumstances of the case. Discussion 3.6 For these purposes, the effective date of termination is agreed as being 31 July 2018. The time limit for presenting a claim of breach of contract under article 7(a) therefore expired on 30 October 2018. Early conciliation was not commenced during this period and there is therefore no period “not to be counted” which may modify that time limit. The claim was presented on 4 February 2019, a little over 3 months after the time limit expired. The claimant must therefore satisfy me that the facts engage the test in article 7(c). 3.7 In support of an extension, the claimant asserts he was unwell and, in any event, ignorant of his rights to claim race discrimination in the employment tribunal. 3.8 I do not accept he was unwell to the extent that he could not address his mind to the claim. I have seen no supporting evidence of incapacity beyond that he was stressed by the situation and his doctor advised him to take a holiday. He did and was out of the country for one month from August to September 2018. He had been working in other employment since March 2018 and that employment continues to this day. I do not regard the evidence of ill health, such as it is, to be sufficient to amount to render the presentation of the claim before October 2018 not reasonably practicable. 3.9 As to his knowledge of a right to bring a claim, I am also not satisfied that there was the necessary level of ignorance of his rights to render a timeous claim not reasonably practicable. The claimant was aware of his position throughout the relevant chronology yet there was no challenge to his alleged contractual rights either within the time of the contract or the 3 months’ time limit following the effective date of termination. He was aware of a basis of complaint from September 2018 as he and his wife began making enquiries of advice agencies and an initial complaint was made alleging race discrimination. The claimant holds high academic qualifications and accepted in evidence he was well able to research and read around a subject such as the role of ACAS in employment disputes. There was nothing I heard which suggested there was the necessary ignorance of rights. In any event it is not a question of the actual knowledge the claimant had, but what he ought reasonably to have had in the circumstances. This is a claimant who has sufficient intellect to understand the broad basis of a grievance and to take his research further. 3.10 I also have regard to the fact that the claimant had other points of advice and support available to him. Firstly, he had available to him the quasi professional support of two industry bodies, SET and EASS. Their support was readily available throughout the time limit and when SET were asked about his complaint, they were quick to respond. Secondly, at all times his wife was available to support him and actively progress his complaints. She had enough awareness of his rights and grounds for employment disputes to draft his initial complaint alleging race discrimination, she had sufficient insight to know to visit CAB. She had sufficient insight to seek legal advice from solicitors. It seems highly doubtful that an intelligent claimant would be aware of legal rights without being in a position to very quickly establish the necessary steps to enforce them. As he said himself, he was able to read around the subject. 3.11 That leads me to the conclusion that even if I accept that the visit to CAB in September 2018 was limited to the issue of the internal complaint, and the unlikely absence of any further discussion about enforcing the rights that complaint asserted, I still cannot conclude that any remaining ignorance that there was in fact was itself a reasonable state of affairs. That is reinforced by the visit to solicitors. Even if that went no further because of the cost, the very fact that the claimant and his wife were of the view that they may need the assistance of lawyers is itself indicative of the true state of knowledge. 3.12 Those matters lead me to the conclusion that the claimant has not satisfied me of the necessary ignorance of his rights. I accept there are many aspects of employment tribunal practice and procedure that he may not have been aware of. However, I am satisfied that there was a sufficient level of understanding of the existence of rights, some form of enforcement and, if nothing else, where to go to find out more. He has not established the first limb of the test. It was reasonably practicable to present a claim within time. If I am wrong in that conclusion, I am not satisfied that the further 3 months taken to present a claim was itself a reasonable further period. The three separate points of advice sought in October, November and December 2018 all mean a reasonable further period would expire around November or December 2018 and it is not a reasonable further period to extend time under the second limb to 4 February 2019. 3.13 The claim of breach of contract is therefore struck out, as it was presented out of time in circumstances where it was reasonably practicable for it to be presented in time. It is not necessary to consider the merits of the claim. 4. The Race Discrimination Claims4.1 It is necessary to start by summarising the 4 claims of direct race discrimination under s.13 of the Equality Act 2010 advanced by the claimant.

4.2 The first allegation – not being given any work. a) The treatment amounting to a detriment is not being deployed to teach or given any VT work to do. b) The comparator relied on is an actual comparator called John Ingoldsby, a white VT tutor who was given hours of teaching during that academic year. c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the conduct of his subsequent complaint; the evidence found in the internal investigation and the acknowledgment of poor communication; and the circumstances of the 2018 advert to appoint additional VT staff.

4.3 The second allegation – “deliberate Silence” / not responding to the claimant’s concerns. a) The treatment amounting to a detriment is the failure of the respondent to reply to his messages and telephone calls and to address his concerns about getting VT work. b) The comparator relied on is a hypothetical comparator. c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the conduct of his subsequent complaints and the evidence in the later emails about not offering him any hours.

4.4 The third allegation – Having to go through a selection process / be interviewed . a) The treatment amounting to a detriment is the claimant having to go through an interview / selection process to be considered for VT work. b) The comparator relied on is an actual comparator called Lois (or Louise) Connolly who was appointed to the VT pool for that year without having to undergo an interview of selection process. c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the handling of his subsequent complaints and the fact that he was later required to re-apply to re-join the VT pool for a second year.

4.5 The fourth allegation – Failure to formally investigate his complaints and/or treat them seriously and genuinely. a) The treatment amounting to a detriment is the respondent not having a formal complaints policy relevant to his complaints as an ex-employee and its failure to investigate his complaints both in September 2018 and January 2019 at all or seriously / genuinely. b) The comparator relied on is a hypothetical comparator. c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the handling of his complaints as set out in his schedule. 5. Time limits

5.1 Section 123 of the Equality Act 2010 provides, so far as is relevant: -

(1) Subject to sections 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.

(2) . . .

(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

5.2 By those provisions, the time limit for presenting a claim of race discrimination is calculated first by identifying the act or omission that is alleged to form the act of discrimination. Where it continues over a period of time, time starts to run from the end of that period. In considering the meaning of conduct extending over a period of time I have had regard to Hendricks v Metropolitan Police Commission

[2002] EWCA Civ 1686

and Pugh v National Assembly for Wales

UKEAT/0251/106

as submitted by the respondent.

5.3 The cause of action behind the four allegations therefore crystallise on the following dates and gives rise to the following time limits. a) The alleged failure to provide work continued throughout the existence of the apparent contract until it ended on 31 July 2018. The time limit for presenting the first allegation expired on 30 October 2018. The time spent in early conciliation started after this date does not modify this date. It is prima facie out of time. b) The alleged failure to respond to the claimant’s messages continues through the period his messages were not being responded to. That is said to start some time shortly after the induction day on 22 November 2017 and continue until a reasonable period after the last such message within which it may be reasonable to expect a response. The respondent suggests up to 4 weeks is a period after which it may be clear there is no such response coming. It may well be much sooner than that. In any event, that takes the period to 5 April 2018 based on the last such message being sent on 8 March 2018. The time limit for presenting the second allegation expired on 4 July 2018. The time spent in early conciliation started after this date does not modify this date. It is prima facie out of time. c) The allegation of having to go through a selection process gives rise to a detriment both in the process that was undertaken in March 2017 and the one that the claimant did not proceed with in 2018. There is no exact date of the first detriment but in view of its age, the principals to be applied are unlikely to lead to a different conclusion whether it was, say, the 10th or 31st of the month. The detriment occurs again on 29 June 2018 when the claimant sees the further advert for VT’s and he is told to reapply. The time limit for presenting the third allegation expires on 28 September 2018. The time spent in early conciliation started after this date does not modify this date. It is prima facie out of time. d) The allegations of failure to formally investigate the complaints arise after a reasonable period of time following the presentation of the complaint. This is an artificial analysis as it seems there was an investigation and a response. The time limit for presenting the fourth allegation expired after a reasonable period within which the complaint could have been investigated and responded to. The exact dates when that occurred are not determinative as the date of the second complaint on 15 January 2019 is itself in time in respect of a claim presented on 4 February 2019 and there is a potential issue of conduct extending over a period insofar as the claim alleges the respondent’s failed to investigate and respond to the complaints which, in isolation, would be an issue that I would leave for the final hearing if that allegation proceeds.

5.4 The claimant offers no explicit pleading on the question of conduct extending over a period that may provide a basis for a state of affairs which overarches the four discrete allegations and so as to bring ostensibly out of time matters, within time. It is therefore necessary to consider the three allegations which are out of time against the just and equitable test for extending time in der s.123(1)(b) set out above. The respondent reminds me of London Borough of Southward v Afolabi

[2003] IRLR 220

which provides guidance on the approach to a just and equitable extension and Bexley Community Centre v Robertson

[2003] EWCA Civ 576

that the burden rests with the claimant to establish a just and equitable extension.

5.5 There clearly has been delay in the claimant advancing his rights. This was firstly within the contractual period although much of this was time the claimant was faced with silence and understandably focused on obtaining other paid employment. There is some evidence of him suffering some mental ill health which, although not of a sufficient duration or magnitude to explain delay in itself, is one small factor in the chronology. He embarked on an internal resolution at the end of September which has had the advantage of securing the contemporaneous documentation and the respondent’s reasons for acting have been crystallised in its responses. He sought to resurrect the internal complaint in January 2019 but took the view that he needed to formalise that in these proceedings at the end of January.

5.6 The delay on the part of the claimant which is in part answered by the respondent’s initial silence. There is delay of around 3 months from the time limit based on the termination of the contract on 31 July 2018. Of course, before that time limit expired, the claimant did launch his first internal complaint and although a claim did not promptly follow the outcome of that, the parties were engaged with the issues. I am satisfied the delay is explained in the claimant’s evidence albeit not excused so as to render an extension just and equitable in itself. The fact of the delay therefore falls to be considered in the round, as an exercise in the balance of justice between the parties. The single biggest feature of that exercise is the extent to which the respondent is disadvantaged if the claim proceeds, beyond, that is, the limitation defence. In this case there is next to no adverse effect on the available contemporary documentation.

5.7 The argument of the respondent which found the greatest traction appeared to be the fact that two of its witnesses were no longer in its employment. In the case of Mr Graham Meeson, who I accept played a key role in this matter, he has not in fact left the respondent’s employment as initially argued but is in fact still in employment albeit on a sabbatical break which ends soon. Another individual was also identified as having left, that is Sabah Holmes. There is nothing before me to say she will not give evidence or that a witness attendance order would not be appropriate if sought. In any event, her involvement is well documented in the contemporaneous documentation. I am not satisfied that there is any, or certainly any significant, disadvantage to the respondent by her change of employment or Mr Meeson’s sabbatical.

5.8 Consequently, I am satisfied that the balance within the just and equitable test is in the claimant’s favour. There would be injustice to the claimant if the claims were denied by the delay alone and it is just and equitable to extend time for the presentation of the claims identified as allegations 1, 2 and 3 to 4 February 2019. 6. Reasonable Prospects of Success

6.1 Rule 37 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides, so far as is relevant: - (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 …… has no reasonable prospect of success

6.2 Rule 39 provides a power to impose a deposit as a condition of a claimant continuing with an allegation or argument where the tribunal has determined that it has little reasonable prospect of success.

6.3 Both tests engage a power, not a duty. Meeting the relevant test is therefore only the first of two stages to engaging the relevant consequence. In both cases there is an additional stage after the initial test is made out which is for the tribunal to decide whether to exercise the power then engaged. That must be done judicially.

6.4 I remind myself that this is a preliminary hearing and caution should be exercised in making orders which may, either directly or indirectly, restrict a party’s case being brought to justice.

6.5 When considering the prospects on a strike out application under rule 37, the claimant’s case is to be considered at its highest. It is not my purpose to resolve disputes of fact at all, but especially where oral evidence is required to be heard to resolve it, nor is it appropriate to seek to assess the likely outcome. It is a draconian order and where cases are fact sensitive, as in discrimination cases, it should only be used in the plainest and most obvious cases. (Anyanwu v South Bank Students’ Union

[2001] IRLR 305

6.6 In applying the tests of no, or little, reasonable prospect of success, it is of course essential to have regard to the legal tests to be applied in the substantive claim. In the case of a claim of direct discrimination under s.13 of the Equality Act 2010, the claimant must broadly establish two things. They are:- a) That he has been subject to some detriment capable of amounting to less favourable treatment. b) That he can point to some evidence sufficient to show a prima facie case that the reason for that detrimental treatment is, in part at least, because of his race. Except where the protected characteristic, or a proxy for it, arises clearly in the treatment itself, that test arises in two parts. First, that an actual comparator was, or a hypothetical comparator would be, treated more favourable than the claimant was in materially similar circumstances. That difference in treatment and difference in characteristic in itself is not enough. The second, crucial, part is that the claimant must be able to point to some evidence which establishes “something more” from which the tribunal could decide the reason for the treatment was race.

6.7 The reference to “could decide” is drawn from s.136 of the 2010 Act which provides:- (1) This section applies to any proceedings relating to a contravention of this Act. (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 (2) does not apply if A shows that A did not contravene the provision

6.8 It is therefore sufficient for the claimant to establish evidence that could point to race as the reason. Discussion

6.9 The respondent made detailed submissions on each of the allegations as are now understood in the claimant’s claim of direct discrimination. Mr Fahy, on its behalf, has provided a fair summary of the law in full, largely for the claimant’s benefit. There are elements of those submissions which seek to demonstrate a non-discriminatory reason for the alleged treatment from the contemporary documentation. From that, I am invited to conclude this is a case which, plainly and obviously, has no reasonable prospects of success and to strike it out or at least impose a deposit.

6.10 There are aspects of those submissions which I accept invite a conclusion that none of the claimant’s allegations is a particularly strong one and I am inclined towards a conclusion that each may well fail. However, that is not the test.

6.11 As to allegations 1, 2 and 3, they each advance something which is properly capable of amounting to a detriment. Of those, the main issue in this case is allegation 1 and why the claimant did not get work as a VT following his appointment (at least, to the pool of available VT’s). The other allegations whilst arguably proper detriments are secondary to this allegation but, nevertheless, stand as part of the surrounding evidential landscape relevant to allegation 1. I therefore take a step back when viewing allegations 1, 2 and 3. I am satisfied that there is either an actual comparator which, on the face of it, is a proper comparison, at least to warrant testing by a full tribunal, or a basis for advancing a hypothetical comparator which is at least not a fanciful contention. Secondly, the claimant does identify points in the evidence from which he can properly advance a case to establish the necessary something more from which a tribunal may draw inferences that could be sufficient to shift the burden. Whether it does or not is a matter for it. As to the rest of allegation 3, were it not for the clear requirement to re-apply, I might have taken a more determinative approach to that part of the allegation. Overall, I have concluded these allegations are not in the category of having no reasonable prospect of success.

6.12 Turning to whether they are, nonetheless, in the category of little reasonable prospect of success, I have concluded they are not. The fact that my sense is that they may each fail in the final analysis is not sufficient grounds for imposing a deposit. That they may not be strong cases is not the same as having little reasonable prospect of success. I am satisfied that there are questions within the allegations that demand an answer which must be properly understood through testing evidence. Why wasn’t he offered work? Why didn’t he get a response to the messages he left? Why was he viewed the way he was when he chased for an answer? Why did he have to reapply to be in the VT pool when his understanding is that others were given VT work without having to apply? I sense that those questions may well end up being answered by the respondent in terms which show race was in no way whatsoever the reason for the treatment, but if the claims are in time, that must happen at a final hearing.

6.13 The fourth allegation faces more significant problems, and particularly so insofar as there is an allegation that the absence of a formal procedure for dealing with an exemployee’s complaints amounts to a detriment because of the claimant’s race. There is no basis on which the claimant will show less favourable treatment at all, still less any sense whatsoever that state of affairs was in anyway influenced by the claimant’s race. There is no reasonable prospect of that specific part of the allegation succeeding and so much of it will be struck out. The remaining detriments in allegation 4 allege that the respondent failed to investigate his complaints and (this must be in the alternative) did not take them seriously. The first part of that allegation, that the respondent did not investigate the complaints, does not stand up to scrutiny where it is common ground that the respondent did investigate the first complaint and respond to the claimant with its findings and made recommendations for a way forward. Further findings are necessary to understand what took place in January 2019. If the allegation was in respect of the September 2018 complaints, I would have been inclined to strike out that part of it also. However, the allegation that the complaint was not taken seriously or genuinely is potentially a proper detriment, particularly to the extent it concluded that there was no race discrimination. However, in practice it seems to me he will have difficulty establishing that the alleged detriment arose in fact, particularly as the respondent’s investigation concluded that there were deficiencies in the communication with the claimant and was conciliatory in its proposals for going forward. I can see similar difficulties in the other elements of this allegation. In particular, I have doubts over whether the claimant will establish the basis for a hypothetical comparator being treated more favourably. If he does, he then faces another difficult hurdle. He has set out various aspects of the investigation process from which he will invite the tribunal to draw an adverse inference that his treatment was because of his race and the possibility of such inferences being available to the tribunal is why this element is not in the category of no reasonable prospects of success. However, the examples shown, if accepted as facts, are in parts indicative of a positive response to the claimant. Overall, therefore, I have concluded that this allegation falls into the category of little reasonable prospect of success which engages the power to impose a deposit as a condition of the claimant being permitted to continue with this allegation. If this were the only allegation, or if taking it out of the analysis would have a significant effect on narrowing the issues or reducing the time and costs of the final hearing I would make such an order. However, in this case I decline to make any further orders. My reasons are, firstly, that the allegations stand as part of the relevant factual landscape that the parties and tribunal will be required to consider in any event. That is so even if the discrete allegation is not maintained. The second, and related, reason is that if the final consequence of a costs order were to be considered, it is difficult to conceive how the respondent’s costs of that allegation in isolation could be meaningfully separated from the costs it otherwise incurred and even an assessment on the basis of a proportion would be artificial. I do not place a great deal of weight on this second reason but it is relevant to have regard to the utility of any order, especially one which may serve to prevent a claim being heard.

6.14 Separate case management orders follow.

[1]Dr Masunga represented himself and gave evidence on his own behalf. Mr Salter of Counsel represented the Respondents (the University) and he called Dr G Meeson, Mrs J Lindley-Baker, Mrs V Burrows (formerly Thorn) and Professor S Fleming. There was an agreed bundle of documents and references are to page numbers in that bundle. We are also grateful to both parties for providing us with skeleton arguments which also form the basis of their final submissions. Preliminary point

[2]It is the unanimous decision of the Tribunal that Dr Masunga’s application to amend so as to include complaints of indirect discrimination as set out at pages 66 and 67 of the trial bundle is refused. Page 1 of 16

[3]The history of the matter is as follows. At page 63 of the bundle Dr Masunga filed a document making reference to two claims of indirect discrimination. That led to Employment Judge Heap writing to the parties on 19 December 2019 as follows: “Your letter has been referred to Employment Judge Heap. She says that the contents will be discussed at the forthcoming Preliminary Hearing. However it is noted that you are advancing your fourth complaint as one of indirect discrimination rather than direct discrimination as was previously understood to be the case. Further information will be needed about the legal basis on which you are advancing that complaint. A table is therefore attached for you to provide the details of that claim and you must complete that and provide a copy to the Tribunal and to the Respondent by no later than 8 January 2020. The complaint will then be considered at the Preliminary Hearing on 15 January 2020 including whether it should be struck out (whether on jurisdictional grounds or by reason of prospects of success) or made subject to a deposit order).”

[4]Dr Masunga by way of an e-mail of 6 December forwarded the documents referred to above at page 66 and 67. He makes two complaints of indirect discrimination; the first with an alleged provision, criterion or practice of “being placed in the visiting tutor pool”. The second PCP is said to be re-advertising the same job under the heading Perm 196/2018.

[5]There then followed on Friday 5 March 2021 Dr Masunga’s skeleton argument at which he refers at page 6, 7 and 8 to indirect discrimination. The first allegation is recognisable as being the first allegation on page 66.

[6]The second allegation on page 8 is an entirely new allegation of indirect discrimination which Dr Masunga accepted a few minutes ago that he did not wish to pursue. He did However wish to pursue the two allegations on pages 66 and 67 which I have set out. Firstly I accept that Dr Masunga is a litigant in person. I also accept that Employment Judge Clark in his decision beginning at page 70 makes no specific reference to indirect discrimination. However he does at paragraph 4 set out what he understood to be the allegations and they are all of direct discrimination.

[7]Thus we are faced with an application to amend because Dr Masunga does wish to pursue the claims of direct discrimination. That means that there are a number of factors that we need to consider; the first of which is the nature of the amendment. As Mr Salter correctly submits a claim of indirect discrimination is an entirely different claim to one of direct discrimination involving a different legal framework.

[8]The second matter is whether the claim of indirect discrimination would be out of time and the answer to that is plainly they certainly are today and they were well out of time in December 2019.

[9]The third point is the nature and timing of the application and it was made during the opening minutes of the full hearing today. Page 2 of 16

[10]We also have to consider the balance of hardship. For Dr Masunga that means he cannot pursue claims of indirect discrimination. However we are entitled to take into account the merits of those claims. It seems to us that there are considerable difficulties with them in particular establishing in either case a provision, criterion or practice. We also note that Dr Masunga has not brought any evidence that is specifically directed at the claim of indirect discrimination. The hardship to the Respondent is are faced with an entirely different claim which would require additional evidence. Inevitably that would mean that we would have to adjourn the hearing and there would be a considerable delay as a consequence.

[11]Dr Masunga submitted that Employment Judge Clark was only dealing with matters of time. In other words whether the Tribunal had jurisdiction to hear Dr Masunga’s claims were they brought within the relative time frames. That is plainly not true. At paragraph 1.2 at page 71 Employment Judge Clark says: “Before I could consider the issues for this hearing it was necessary to spend some time ensuring the individual allegations were fully understood.”

[12]So it is clear that Employment Judge Clark did understand the allegations to be ones of direct discrimination.

[13]There was of course a further case management discussion held before Employment Judge Butler on 22 June, see page 89 and it is clear from paragraph 3 on page 90 that what was being advanced were claims of direct discrimination.

[14]In our view then the balance is overwhelmingly in favour of refusing Dr Masunga’s application. Issues and

The law

[15]These were determined by Employment Judge Clark in a reserved as follows:- “4. The Race Discrimination Claims4.1 It is necessary to start by summarising the 4 claims of direct race discrimination under s. 13 of the Equality Act 2010 advanced by the claimant.

4.2 The first allegation – not being given any work. a) The treatment amounting to a detriment is not being deployed to teach or given any VT work to do. b) The comparator relied on is an actual comparator called John Ingoldsby, a white VT tutor who was given hours of teaching during that academic year. Page 3 of 16 c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the conduct of his subsequent complaint; the evidence found in the internal investigation and the acknowledgement of poor communication; and the circumstances of the 2018 advert to appoint additional VT staff.

4.4 The third allegation – Having to go through a selection process / be interviewed. a) The treatment amounting to a detriment is the claimant having to go through an interview / selection process to be considered for VT work. b) The comparator relied on is an actual comparator called Lois (or Louise) Connolly who was appointed to the VT pool for that year without having to undergo an interview selection process. c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the handling of his subsequent complaints and the fact that he was later required to re-apply to re-join the VT pool for a second year.

4.5 The fourth allegation – Failure to formally investigate his complaints and/or treat them seriously and genuinely. a) The treatment amounting to a detriment is the respondents failure to investigate his complaints both in September 2018 and January 2019 at all or seriously / genuinely. b) The comparator relied on is a hypothetical comparator. c) The claimant seeks to shift the burden to show the difference in treatment was influenced by race relying on inferences being drawn from the handling of his complaints as set out in his schedule.” Page 4 of 16

[16]In relation to the fourth allegation as a consequence of paragraph 2 of Employment Judge Clark’s reserved decision it was agreed that the fourth allegation at 4.5(a) should read as follows: “the treatment amounting to a detriment is the Respondent’s failure to investigate his complaints both in September 2018 and January 2019 at all or seriously/genuinely. Otherwise the allegations are as Employment Judge Clark sets out above. The law

[17]Section 13 Equality Rights Act 2010 - Direct discrimination:- “(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. (2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim. (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. (4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner. (5) If the protected characteristic is race, less favourable treatment includes segregating B from others. (6) If the protected characteristic is sex:- (a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth. (7) Subsection (6)(a) does not apply for the purposes of Part 5 (work). (8) This section is subject to sections 17(6) and 18(7).”

[18]Section 136 Equality Rights Act 2010 - Burden of proof:-(1) This section applies to any proceedings relating to a contravention of this Act.

(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. Page 5 of 16

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to:- (a) an employment tribunal; (b) the Asylum and Immigration Tribunal; (c) the Special Immigration Appeals Commission; (d) the First-tier Tribunal; (e) the Special Educational Needs Tribunal for Wales; (f) an Additional Support Needs Tribunal for Scotland.”

[19]We further bear in mind the guidance given by Lord Nicholls in the case of Nagarajan v London Regional Transport

[1999] ICR 877

:- “Many people are unable or unwilling to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim, members of an Employment Tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.”

[20]At the root of every case like this a Tribunal must ask “why did the alleged discriminator act as he or she did? What consciously or unconsciously was his or her reason”.

Findings of fact

[21]Dr Masunga is Black. He is a PHD educationalist.

[22]The University is a small university having about 150 staff and some 1500 students.

[23]Dr Masunga applied for a post at the University in early March 2017. He says and we accept that he applied in response to the document which is at page 121. That document has a number of inconsistencies for example it is described as a permanent job with full time hours yet it also described the post as a visiting tutor and it is common ground that a visiting tutor is neither a full time post nor does it have a permanent contract. Page 6 of 16

[24]Mrs Burrows (formerly Ms Thorn) asserts, which we accept that the advertisement at page 121 is a document concocted by a third party, probably an employment platform or recruiter and that the official advertisement is that at page 120. Amongst other things it refers to standard VT rates and begins as follows:- “Bishop Grosseteste University Lincoln is seeking to recruit additional visiting tutors to support teaching in the area of Special Educational Needs and Inclusion and Disability.”

[25]It also says:- “It is essential that you are research active and a practitioner and willing to support the growth of research in your area of expertise.”

[26]The parties were therefore at cross purposes and this gave rise to a dispute which led to Dr Masunga bringing a claim for breach of contract based on the contention that reading the contract he entered into in December 2017 and verbal representations he was entitled to be paid for a minimum of six hours per week. That claim was struck out as being out of time by Employment Judge Clark.

[27]There are three types of tutor at the University, the first being full time permanent tutors who teach, undertake teaching related work and conduct research; the second are fixed term tutors with temporary contracts for around ten months with full teaching responsibilities during that term and they are described as Associate Tutors. And the third category is visiting tutors (VT’s). VT’s are used as essentially supply teachers with responsibility for teaching a module, a series of lectures, marking or supervision of individual assignments. VT’s are also used to support full time tutors where there are absences, sometimes this can be at short notice. In other contexts VT’s would be described as being on a bank system or as casual workers or on zero hour contracts.

[28]Alongside Dr Masunga five further candidates were shortlisted for interview. They were Ms S McFarlane, Ms S Farrell, Mrs B Goddard, Mr C Bridges and Dr M Bagshaw. Other than Dr Masunga all the candidates were white. Dr Bagshaw did not attend for interview.

[29]The interviews took place on 23 March. In accordance with the University’s usual policy the notes taken by the two interviewers, Dr Meeson and Mrs Lindley-Baker, the head of the SENDI department (Special Educational Needs, Disability and Inclusion) were destroyed in September 2017 and are thus not available to us.

[30]After the interviews Dr Meeson e-mailed Dr Masunga to inform him that he would be entered into the pool of VT’s. That e-mail has been lost but we know it was sent because Dr Masunga refers to it in his e-mail of 22 September 2017 at page 141 in which he enquires about being entered upon an induction course.

[31]As well as Dr Masunga, Ms McFarlane, Ms Farrell, Mrs Goddard and Mr Bridge were all added to the VT list and Ms McFarlane, Ms Farrell and Mr Bridge were all allocated hours of work. Mrs Goddard went on maternity leave and as a consequence was not allocated any hours but she too was placed in the VT pool. Page 7 of 16

[32]As well as the formal approach which was applied to Dr Masunga as above, there was an informal route by which people were added to the VT list. Such were appointed either because they had already supplied services or were otherwise known to the University.

[33]Mr Sean or John Ingoldsby was appointed in that way and was allocated work by Ms Lindley-Baker. Mr Ingoldsby was recommended by Ms Murphy, Ms Lindley-Baker’s peer and fellow Programme Leader. His CV is at pages 104/105. He was appointed to a specific task, namely to deliver sessions as part of the “inclusion international/cultural perspectives course”.

[34]The other example of an informal appointment ie without interview is Ms L Connolly who was recommended to Mrs Lindley-Baker by Dr Meeson. She was not appointed to carry out a specific task but because of her experience in SEND. Her CV is at pages 394-397. Both Mr Ingoldsby and Ms Connolly are white.

[35]As a consequence of the interview with Dr Masunga Mrs Lindley-Baker determined that he was not suitable to be deployed as a VT in her programme. However Dr Meeson considered that in the light of Dr Masunga’s expertise and research in governance matters he would enter him onto the list of VT’s.

[36]There was an induction course for VT’s held in June 2017 but Dr Masunga was not included because Mrs Lindley-Baker who was organising the course did not do so because she had concluded that she would not offer Dr Masunga any work.

[37]After the e-mail at 141 Dr Masunga corresponded with Ms Thorn in HR and was eventually entered onto an induction course held on 22 November 2017.

[38]Dr Masunga was entitled to be paid for his attendance but the only route to do so entailed there being a contract in place and one was sent to Dr Masunga (see pages 188-192) which he returned duly signed on 19 December 2017. To put it charitably its drafting is confusing and as we have said above it led to Dr Masunga’s contract claim.

[39]On 12 January Dr Masunga e-mailed Ms Lindley-Baker at page 198 informing her that he had been on campus but had not met her. He enquired whether there was “any plan going forward”. The response he received is at 199 and was an out of office reply.

[40]The out of office reply gave an alternative address to which Dr Masunga wrote on 19 January at 2:03 again enquiring if there was any work for him. There was no reply. He was also in correspondence with the University concerning joining an associate fellow programme.

[41]Towards the end of January Dr Masunga was paid for the six hours he spent attending the induction course in November 2017.

[42]At 212 Dr Masunga e-mailed both Mr Meeson and Ms Lindley-Baker again enquiring about work. He got an out of office reply from both addressees. Page 8 of 16

[43]At page 215 is a rather testy e-mail from Ms Lindley-Baker to Ms Thorn responding to an enquiry by Ms Thorn as to which VT’s would return in the next academic year. Ms Lindley-Baker indicates that Dr Masunga would be one of those not returning.

[44]On 29 June at page 220 Dr Masunga e-mailed the University as follows: “I have just came across an advert for Visiting Tutors on the University website and wondered if I needed to apply if I am already in your VT pool?”

[45]The response was in the affirmative.

[46]On 29 September 2018 Dr Masunga’s wife sent an e-mail of complaint to Ms Thorn at 235. The complaint did not identify the identity of the aggrieved person. That was however done in an e-mail of 2 October identifying Dr Masunga as the complainant.

[47]There followed some internal correspondence and Dr Meeson and Ms Lindley-Baker approved a response which was sent to Dr Masunga on 15 October at pages 248 and 249. The reply is sent from Sabah Homes the Senior people and OD business partner for the University.

[48]The response is courteous and well drafted. In summary it indicates that Dr Masunga was not allocated work by Ms Lindley-Baker as follows: “As the initial planning was for under graduate courses it was decided to use VT’s with greater school experience/professional practice. On this occasion you were not found to be the best fit for available work for the under graduate courses. The team were reluctant to give an outright reject as an MA course was in the process of validation. This would involve a different skill set for that of the UG course – where it was felt you may potentially be a better fit.”

[49]It also said as follows: “We do not believe there was discriminatory treatment or unfair practice present here. We recognise that communication and feedback could have been much better, more timely and more thorough/comprehensive offering you a better explanation at the time as to why work was not offered on this occasion while you were part of a pool of VT candidates. We sincerely apologise for this and have taken on board this learning to improve upon future interactions with our candidates.”

[50]The response concluded by inviting Dr Masunga to respond by way of either correspondence or a meeting.

[51]Dr Masunga responded on 17 October at 251 rejecting the response, maintaining that there was discriminatory treatment. He stated that he wished to make a formal complaint. There was considerable e-mail correspondence between Dr Masunga and Ms Holmes. At one point Dr Masunga indicating that he remained eager to work for the University. Page 9 of 16

[52]Because the parties were exploring whether there was a resolution to Dr Masunga’s continuing complaint on 5 November at 261 Dr Masunga indicated that the complaint process could be paused so as to explore the potential solution of available work.

[53]It is clear from the internal correspondence that Ms Holmes worked hard with Dr Meeson to explore potential solutions. It is equally clear that Ms Holmes was aware that the University faced a potential claim of race discrimination.

[54]On 5 December at 269 Dr Masunga expressed his impatience but agreed to speak to Dr Meeson.

[55]At 270 is an e-mail from Ms Holmes of 7 December seeking to ensure that both parties understood each other. As with all her correspondence it is written with courtesy and common sense.

[56]It is apparent that Ms Holmes tried to speak to Dr Masunga over the telephone but that failed (see page 272).

[57]On 14 December at 274 Dr Meeson made a proposal of work in an attempt at compromise.

[58]Dr Meeson and Dr Masunga also spoke over the telephone on 14 December.

[59]On 6 January 2019 at page 281 Dr Masunga indicated that he was looking for “something more solid” and Dr Meeson responded on 7 January at page 283 indicating that the hours proposed are for a visiting tutor.

[60]On 8 January 2019 at page 284 Dr Masunga indicated that he would not be taking up the University’s offer and he wished to proceed with his formal complaint.

[61]Dr Meeson passed the matter to the Deputy Vice Chancellor, Professor Fleming.

[62]Professor Fleming invited Dr Masunga whom he unfortunately misdescribed to proceed by way of the student complaint procedure.

[63]By e-mail of 15 January Dr Masunga understandably rejected the student complaint procedure as inappropriate.

[64]Professor Fleming then went away to devise a complaints procedure which would fit the particular bill of Dr Masunga. Unfortunately he did not inform Dr Masunga that that was what he was doing. Understandably the procedure required internal approval. That was achieved and by an e-mail of 4 February Professor Fleming wrote to Dr Masunga enclosing the new procedure and inviting him to use it. Dr Masunga did not respond because on that date he had commenced these proceedings. Page 10 of 16

Conclusions

[65]We remind ourselves of the statutory burden of proof provision set out above. We also accept Mr Salter’s submission based on the case of Madarassy v Nomura International Plc

[2007] ICR 867

as follows: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the Respondent had committed an unlawful act of discrimination.”

[66]Returning to the issues to be determined it seems to us to be logical to consider the third allegation first because it is the one that occurred first in time. The less favourable treatment is Dr Masunga having to go through an interview selection process to be considered for VT work. That statement is not in dispute. Dr Masunga relies on Ms Connolly as the comparator. He could equally well rely on Mr Ingoldsby who was also given VT work without having to go through an interview process.

[67]We are also invited to draw inferences from the handling of his subsequent complaints and the fact that he was later required to reapply to re-join the VT pool for a second year. In regard to that complaint that is indeed so, see the exchange of e-mails at page 220. It is clear however that such a response would have been sent to any VT in the circumstances described by Dr Masunga.

[68]Pursuant to section 23 of the 2010 Act:- Section 23 - Comparison by reference to circumstances:-(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

(2) The circumstances relating to a case include a person's abilities if:- (a) on a comparison for the purposes of section 13, the protected characteristic is disability; (b) on a comparison for the purposes of section 14, one of the protected characteristics in the combination is disability.”

[69]We must therefore look at the material we have on the experience and qualifications of both Ms Connolly and Mr Ingoldsby. Ms Connolly’s CV is set out at pages 394 to 397. She was a graduate of the University. She has some 20 years’ teaching experience of which 13 years is direct experience in relation to SEND. She has spent 8 years heading a school’s SEND programme. She also has the responsibility for auditing and monitoring safeguard and SEND provision across academies within the Trust she was employed by. She was thus highly experienced in both practical teaching and at management level in SEND. Page 11 of 16

[70]As to Mr Ingoldsby his CV is at pages 104 and 105. His CV is also to be looked at in the context of the role Ms Lindley-Baker wished him to perform, namely an international IT role. As to the international element Mr Ingoldsby had taught in Kenya, Brunei and the UAE with a total of some 23 years international experience. He had also taught in the UK including holding the position of a primary school Special Educational Needs Coordinator.

[71]Turning now to Dr Masunga’s CV which begins at page 391 we note that as with most CV’s it is generally drafted. Dr Masunga’s experience is with secondary school pupils and adults. He is highly qualified academically having a Doctorate in Education and amongst other things a level 3 diploma in Health and Social Care. He has held 5 posts between the period of June 2009 and March 2017. He has not remained in any post for more than 2 years.

[72]As Dr Masunga pointed out in his cross examination his CV is generally drafted and in his application beginning at 338 he amplifies his experience for the particular post. We need to remind ourselves what the University were looking for. This is set out at page 120 for example: “The post requires flexibility, excellent inter-personnel skills and a lively and informed engagement with current issues in the field (ie Special Educational Needs and inclusion and disability). It is essential that you are research active and a practitioner and willing to support the growth of research in your area of expertise.”

[73]As to research Dr Masunga makes reference to this at paragraph 2 on page 338. However we see nothing in his CV to support his assertion that he is broadening his research skills in areas surrounding inclusive educational and special educational needs. None of the research in his CV supports that contention.

[74]At paragraph 4 on page 339 he makes reference to his “excellent knowledge of my experience of international education”. Again his CV does not support that assertion. At paragraph 6 also on page 339 Dr Masunga says: “I have got a merit in inclusive education in its social context at Masters level and a level 3 diploma in health and social care. I also have 8 years of experience working with learners with SEN as a secondary school teacher as well as working with service users who have learning disabilities in residential homes. I believe the unique combination of having relevant qualifications and my experience of working with SEN learners and LD clients is extremely relevant for the visiting lecturer post in focus and therefore makes me suitable for this role.”

[75]Again apart from the Masters degree and the level 3 diploma there is nothing in his CV to support that contention. For example his experience in secondary schools is less than 4 years over 3 different posts.

[76]In relation to the third allegation we are also invited to consider the handling of his complaints and to draw inferences from that. Page 12 of 16

[77]In this context the second allegation is also relevant. So we shall consider those two allegations in chronological order ie the second allegation first and consider what inferences can be drawn. The second allegation

[78]This is described as deliberate silence and the less favourable treatment is the failure of the University to reply to Dr Masunga’s messages and telephone calls and to address his concerns about getting VT work.

[79]The facts we have set out above in summary Dr Masunga sent 3 e-mails at pages 198, 203 and 212 to which he received no substantive response. As to telephone calls Dr Masunga asserts that he made a number of such calls to Dr Meeson and Ms Lindley-Baker. There is however no documentary evidence to support that contention and we find it surprising that there is no such evidence given the concerns that Dr Masunga now expresses about the “deliberate silence”.

[80]Dr Meeson’s explanation in cross examination was in effect that he was too busy and that he had overlooked Dr Masunga’s e-mails. Ms Lindley-Baker evidence was to the effect that it was Dr Meeson’s responsibility to respond because:-(a) He was the head of the department.

(b) It was he who had included Dr Masunga on the VT list, she having decided that he did not fit her requirements. She also said that she did not wish to get into a dialogue with Dr Masunga because that might give him false hopes. We accept those explanations. Fourth allegation

[81]We have set out above in The Findings of Fact the chronology. In summary the original complaint was dealt with within 11 working days, ie between 2 October 2018 and 15 October 2018. There then followed from a period of some 3½ months from 17 October, the point at which Dr Masunga rejected the University’s response to the original complaint and 4 February 2019, the date on which a complaints procedure was sent to him and also the date on which he began these proceedings. Much of this period was taken up by the parties seeking to compromise a potential race discrimination claim. Some of the delay is at Dr Masunga’s door, for example between 14 December 2018 when Dr Meeson made a formal offer and 8 January 2019 when Dr Masunga rejected that offer.

[82]Overall we consider that Dr Masunga’s complaints were dealt with timeously. They were certainly taken seriously and Ms Holmes and Dr Meeson genuinely attempted to reach a compromise with Dr Masunga.

[83]Therefore in relation to the fourth allegation we find that there was no less favourable treatment because the complaints were dealt with both promptly and, objectively viewed, seriously and genuinely. Page 13 of 16 The first allegation

[84]It is not disputed that all of the candidates who attended for interview alongside Dr Masunga were white and that 3, namely Ms McFarlane, Ms Farrell and Mr Bridge were given VT work to do. As we have said above Mrs Goddard would also have been given work but was prevented from doing so by her maternity leave. Again in our view it is necessary to look at the experience and qualifications of these candidates in the context of the University’s requirements as set out at page 120. Mrs S McFarlane

[85]Her application form begins at page 347 and her CV at page 351. Academically she has an MSC in psychology and a number of other post graduate qualifications all directly relevant to SEND. She has 3 years direct teaching experience in SEND and a further 3 years’ experience of working for Nottingham City Council advising and supporting local mainstream schools in the Inclusion, Education and Supports for Students identified with learning difficulties. She oversees 15 schools. She has attended specialist courses organised by the British Dyslexia Association and the Downs Syndrome Association. She is responsible for the operational running of the City Council’s SEN/Learning Support Department and managing 5 SEN specialist staff. Ms Farrell

[86]Her application begins at page 356 and her CV at page 360. Academically she has a Master of Education degree, an advanced diploma in Special Educational Needs, an Advance Certificate in Special Education. In terms of experience she has 25 years’ teaching experience of which some 20 years’ is experience of working in the field of SEN both within schools and within a training and consultancy role. She has a particular specialism in Autism and has developed Relationship and Sex education programs for learners with complex needs. Ms B Goddard

[87]Her application form begins at page 365 and her CV at page 369. In academic terms she is a qualified teacher and has a Masters degree in Child Law. She has 10 years’ experience direct teaching experience in the SEND field and currently works with Lincolnshire County Council managing a team of case workers and assistant case workers and is responsible for overseeing approximately 1,000 children and young people with statements of Special Educational Needs. She is also involved with the preparation and hearing of Tribunal cases in the SEND field. Mr C Bridge

[88]His application form begins at page 374 and his CV is at page 378. Mr Bridge is an educational psychologist with an MSC in that field. He has 6 years’ classroom experience. He is currently employed by Lincolnshire County Council as an educational psychologist working with families. His work is rooted heavily in special needs and young people 0-25. He is also the father of a child with cerebral palsy and has been the recipient of services around special needs. Page 14 of 16

[89]It was Ms Lindley-Baker’s decision to select these 4 candidates for work and not to select Dr Masunga. Her evidence was that in interview Dr Masunga did not provide strong responses to the questions put. She commented on the fact that there was little continuity in his employment history. She further commented Dr Masunga could not provide an example of where he had identified implemented and evaluated effective SEN teaching.

[90]For the reasons set out above we do not have the interview notes. However we have carefully considered their respective applications and CV’s of the five candidates including Dr Masunga who were interviewed on 23 March 2017. Set against the selection criteria set out at page 120 we are of the view that objectively judged Ms Lindley-Baker’s conclusions are supported by the documentary evidence to which we have referred. In our view all four of the selected white candidates are a much better fit. We accept that Dr Masunga is the only candidate with a doctorate but it seems to us that this is far outweighed by the direct experience of the other candidates.

[91]We accept therefore Ms Lindley-Baker’s rationale for not selecting Dr Masunga because it is supported by the facts. In summary therefore our conclusions are as follows:- First allegation

[92]There was less favourable treatment but Dr Masunga has not proven facts from which we could decide in the absence of any other explanation that the University has contravened section 13 of the 2010 Act. Second allegation

[93]There was less favourable treatment in that the University through Dr Meeson and Ms Lindley-Baker should have explained to Dr Masunga in response to his e-mails why he was not to be offered work. However there is no evidence from which an inference could be drawn that the failure to communicate was influenced by Dr Masunga’s race. We accept Dr Meeson’s evidence that he simply overlooked the e-mails and Ms Lindley-Baker’s evidence that she regarded it as Dr Meeson’s responsibility. Third allegation

[94]There was less favourable treatment in that Dr Masunga did have to go through an application and interview process when Mr Ingoldsby and Ms Connolly, both white, did not. We accept that there was an informal route to appointment where candidates were known to the University. Again it can be seen from their respective CV’s that they were both better suited to roles within the SEND department than Dr Masunga. Again there are no facts from which an inference can be drawn that the decision to appoint Ms Connolly and Mr Ingoldsby by an informal process and not Dr Masunga was influenced by their respective race. Page 15 of 16 Fourth allegation

[95]We have found that there was no less favourable treatment at all.

[96]It follows therefore that all of Dr Masunga’s claims of direct race discrimination fail and are dismissed.

[1]Following a 3 day hearing a reserved Judgment with Reserved Reasons dismissing all of Dr Masunga’s claims of direct discrimination was sent to the parties on 30 March 2021.

[2]By an application by email of 12 April 2021 Dr Masunga applied for a reconsideration. There are 3 parts to that application. The first is headed new evidence and relates to a schedule indicating that between 19 January 2018 and 11 May 2018 Dr Masunga made 5 telephone calls to the Respondent’s telephone number. Dr Masunga was cross examined as to the telephone calls he said he made because his evidence was “I made several phone calls and contacted (CSIC) Juliette Lindley Baker by email on 12 January 2018, 8 March 2018 and Graham Meeson on 8 March 2018 but did not get any response, see bundles pages 198, 203 and 212”.

[3]At paragraph 78 to 80 of the original decision we set out as follows: “78. This is described as deliberate silence and the less favorable treatment is the failure of the University to reply to Dr Masunga’s messages and telephone calls and to address his concerns about getting VT work. 79. The facts we have set out above in summary Dr Masunga sent 3 e-mails at pages 198, 203 and 212 to which he received no substantive response. As to telephone calls Dr Masunga asserts that he made a number of such calls to Dr Meeson and Ms Lindley-Baker. There is however no documentary evidence to support that contention and we find it surprising that there is no such evidence given the concerns that Dr Masunga now expresses about the “deliberate silence”. 80. Dr Meeson’s explanation in cross examination was in effect that he was too busy and that he had overlooked Dr Masunga’s e-mails. Ms Lindley-Baker evidence was to the effect that it was Dr Meeson’s responsibility to respond because:-(a) He was the head of the department.

[4]Dr Masunga in evidence did not suggest that any of the calls to which he referred in his evidence in chief were with either Ms Lindley Baker or Dr Meeson. Nor was it put to either them that they had failed to respond to telephone conversations rather that they had failed to respond to emails as indeed we found that they had so failed.

[5]Dr Masunga asserts that the schedule of telephone calls should have been included within the bundle and was not despite an assurance from the Respondent’s solicitor. I note that was in regard to the preliminary hearing held on 15 January 2020, but I accept that the schedule is relevant to the second allegation which the Tribunal determined.

[6]At no stage did Dr Masunga refer to the schedule of telephone calls nor to the fact that it was missing from the trial bundle. We also note that the trial bundle was accepted as agreed by both parties at the beginning of the hearing.

[7]The second matter raised by Dr Masunga in his application is that he says “on day three of the final hearing something horribly went wrong during the hearing process, such that I could not take to my concluding remark script. I had chest pains and a debilitating headache that distracted my attention and I lost orientation but had to persevere to the end because I did not want to disturb the proceedings.”

[8]The Tribunal were not made aware of Dr Masunga’s indisposition and so could not react to it. The point which Dr Masunga says he would have made had he been able to was that it was unfair to compare Dr Masunga’s CV to those of Sean Ingoldsby and Louise Connelly. We referred to that material so as to see whether an inference could be drawn of race discrimination. Such an inference could have been drawn if the CV’s revealed for example that Mr Ingoldsby and Miss Connelly did not have relevant experience. We set out our conclusions in that regard at paragraph 94: “94. There was less favorable treatment in that Dr Masunga did have to go through an application and interview process when Mr Ingoldsby and Ms Connolly, both white, did not. We accept that there was an informal route to appointment where candidates were known to the University. Again, it can be seen from their respective CV’s that they were both better suited to roles within the SEND department than Dr Masunga. Again, there are no facts from which an inference can be drawn that the decision to appoint Ms Connolly and Mr Ingoldsby by an informal process and not Dr Masunga was influenced by their respective race”.

[9]The third and final matter raised by Dr Masunga is that the Tribunal allowed the Respondents to get away with failure to comply with Tribunal directions in regard to disclosure. This was a matter which was discussed at the beginning of the hearing. It was made clear to Dr Masunga that if he felt he was disadvantaged by the admitted late disclosure it was open to him to make an application for a postponement. He did not do so.

Conclusions

[10]The test in respect of the application is “Is it necessary in the interests of justice to do so”, the phrase interests of justice is a very wide application and requires the consideration of the overriding objective set out in Rule 2 of the said referred schedule.

[11]With that in mind as to the first issue raised in the application it seems to me that it would not have affected the conclusion we reached which relied on the admitted failure to respond to a series of emails. We accepted Dr Meeson and Miss Lindley Baker’s evidence as to why they had not responded.

[12]As to the second matter since Dr Masunga did not raise his indisposition it could not be dealt with. Further the matters he does raise are covered in our decision and effectively as Dr Masunga says he’s dissatisfied with the conclusions that we drew.

[13]As to the third matter it was open to Dr Masunga to apply for a postponement on the first day of the hearing and he did not do so. Further I am satisfied that Dr Masunga, having regard to his conduct of the case and his cross examination was in command of the documentary evidence and was not disadvantaged by the admitted late disclosure. For all those reasons I refuse the application because there is no reasonable prospect of the original decision being varied or revoked.