Mr F Kabengele v Amazon UK Services Ltd: 2600569/2018

EMPLOYMENT TRIBUNALS

Case No 2600569/2018

Between

Mr F KabengeleClaimant

Amazon UK Services LtdRespondent

Before

Employment Judge P Britton

In person for claimant

Mr S Lewinski (instructed by Counsel) for respondent

Date 20 January 2020

JUDGMENT

[1]The following are dismissed as allegations of direct race discrimination pursuant to s13 of the Equality Act 2010 on the basis that they have no reasonable prospect of success. The numbering is as per the list at paragraph (8) in the record of Employment Judge Camp’s lengthy telephone preliminary hearing heard on 31 July 2018:

[10]Failure to investigate properly and undertaking an unreasonably long time: perpetrator – Wes Griffiths. Objectively the evidence does not sustain such an allegation. The investigation was reasonably thorough and was undertaken in a reasonable period of time.

[14]Failure of Stephen Lumsden, who dealt with the Claimant’s grievance on appeal, to also fail to get evidence from people who supported the Claimant is untenable. All the Claimant’s colleagues appear to have been interviewed.

[15]Failure of Mr Lumsden to meet the Claimant face to face on 9 February 2018 to give his grievance appeal outcome. This was not unreasonable as Mr Lumsden is based in Edinburgh. What I can conclude is that there was a most detailed meeting (presumably by Skype or video link) when Mr Lumsden went through with the Claimant his reasoning.

[17]Casper Sorensen, who dealt with the Claimant’s appeal against the termination of his employment, unreasonably delayed from 17 January to 5 March 2018, in giving his decision. I do not find there is evidence which would sustain on the face of the papers an unreasonable delay. The timescale is not unreasonable.

[18]Casper Sorensen (who was based in the USA) failed/refused to come to England on 5 March 2018 to msimialr the reasons as per 15 above that claim is also untenable. Under paragraph (9) of EJ Camp’s record 2. (9). The allegation of the deduction from wages as being a deliberate act of victimisation pursuant to s27 of the Equality Act 2010, it being the only “protected act” as defined by EJ Camp that is relied upon, is dismissed for the reasons as set out below there being no link on the papers at all between it and the discriminatory treatment where I find there is a prima facie case to answer. The following claims are made the subject of deposit orders 3. In relation to the following accusations, I find that there is only little reasonable prospect of success and I order therefore that the Claimant will pay a deposit as a condition precedent of pursuing each of the same. Given his means, I am going to order that in respect of each one he pays a deposit of £5. What that means is that if he does not want to proceed with any one of them, he does not pay the £5 in respect of it. But in relation to any one that he wants to proceed with, he has to pay by the deadline that is hereinafter set out and as per the notice that is attached. These allegations are not all on the list of EJ Camp but have emerged via the further and better particularisation and the Claimant’s additional clarification of his claims today. Thus:

[1]That in the time before 15 October 2017, Karolina Jablonska (“KJ”) made a directly discriminatory remark about him to the effect that he was a big and tall black man and she feared that he might break her back. This is a claim of direct race discrimination.

[2]That Alex Ali made up allegations – this relates to telling KJ that the Claimant would sexually harass him. As there is no claim based upon sex discrimination it is treated as a claim of victimisation pursuant to s27 for the reasons as set out below. Then as per the Employment Judge Camp list at (8): Item 1: Removal of his name from the email distribution list by KJ on 16 October 2017. This is a claim of direct race discrimination pursuant to s13. Item 2: Not providing him with the probation forms to complete circa 19 October 2017.Also a claim of direct race discrimination. Item 3: The extension of his probation period after only 78 days. Also a claim of direct race discrimination. Item 5: The arranging of the 3 month review meeting only 2 weeks or so after his 2 month probationary review meeting and when he had been on holiday for one of those 2 weeks. Also a claim of direct race discrimination. Item 8: Suspension on 7 November 2017, which includes for the purposes of this decision, KJ deliberately ordering a security guard to remove him from the shelter where he was sheltering from the rain. A claim of direct discrimination and also of victimisation pursuant to s27. Item 11: The decision by Wes Griffiths to dismiss the Claimant with effect from 20 December 2017. A claim of direct discrimination and also of victimisation pursuant to s27. Item 12: The failure of Lee Cooke to deal with the Claimant’s grievance properly by getting evidence “from people who supported the Claimant”. A claim of direct discrimination and also of victimisation pursuant to s27. Item12: On 20 December 2017, Lee Cooke did not uphold the Claimant’s grievance. A claim of direct discrimination and also of victimisation pursuant to s27. Item 16: On 9 February 2018, Stephen Lumsden not upholding the Claimant’s grievance appeal. A claim of direct discrimination and also of victimisation pursuant to s27. Item 19: On 5 March 2018, Casper Sorensen “did not overturn the decision to terminate the Claimant’s employment”. A claim of direct discrimination and also of victimisation pursuant to s27.

[4]The Claimant must make the deposit payments or a deposit payment where he intends only to rely on that particular allegation, not later than 28 days from the issuing of this decision and reasons.

[5]For the avoidance of doubt, subject to the payment of the deposits, these are the only claims proceeding. Additional directions

[6]All current directions for the main hearing were stayed by EJ Camp. As I have already said, the fixture (namely 3 days of hearing 23 – 25 April 2019) currently remains. For the purposes of the next telephone case management discussion, I would invite the Respondent’s solicitors to consider what directions are needed for the main hearing and their view on the current time estimate, and including on the face of it that there clearly should be one day of reading in. They will then share their proposed directions with the Claimant so that he knows what they are proposing. The Claimant of course then needs to consider his own time estimate in terms of whether or not he is calling any witnesses to support his case. This can then all be looked at the resumed case management discussion.

[7]Assuming the Claimant pays all or some of the deposits, there will now be listed a further telephone case management discussion to give final directions for the main hearing currently scheduled for 23 – 25 April 2019.

REASONS

[1]I am seized with the task, consequent upon the orders of Employment Judge Camp, sitting as he did on 31 July 2018, to determine first whether all or part of the claim before the tribunal should be stuck out as per rule 37(1) (a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) on the basis that the claim (or some of it ) has no reasonable prospect of success. In the alternative, I am to decide as per rule 39(1) as to whether the claim (or some of it) has little reasonable prospect of success. In which case, I can order the Claimant to pay a deposit not exceeding £1,000 as a condition on continuing to advance the relevant sub claim.

[2]I should make plain that Employment Judge Camp thoroughly rehearsed the issues as he saw them to be in what was a lengthy telephone case management discussion as held on 31 July and to which I have referred. He identified what he saw, with the agreement of the Claimant, to be the claims of direct race discrimination pursuant to s13 of the Equality Act 2010 (the EqA)1 at paragraph (8) 1 – 19 of his adjudication.

[3]At paragraph 9 he set out what the Claimant was saying was the allegation of a deliberate act of victimisation pursuant to s27 of the EqA: “relying on his grievances of October 2017 as the relevant protected acts… 1 I have inserted the reference to the appropriate section of the EqA. 1. Making deductions from wages – allegation 5 above2.

[4]The Claimant had also brought a claim for unpaid wages. Employment Judge Camp made an unless order in respect of that. Subsequently my colleague Employment Judge Heap struck out that element of the claim for non-compliance with the unless order.

[5]Then what EJ Camp did at his paragraph (12)(i) – (iv) was to set out what the Claimant saw as being the factual allegations to support his case in terms of the direct discrimination and the very limited victimisation claim. I stress that in respect of the latter claim at paragraph (13) Employment Judge Camp stated: “No facts at all are alleged from which it could be inferred that the reason for any mistreatment was that the claimant did a protected act. In relation to this, he appears to be relying entirely on his belief that this was the reason and, as with the discrimination claim, on the [alleged] unreasonableness and unfairness of the respondent’s actions and on the fact that he was [allegedly] the only one subjected to the particular mistreatment he is complaining about.”

The law

[6]As per the Claim Form (ET1), it is clear that primarily the Claimant brings a claim based upon direct race discrimination pursuant to the provision at section 13 of the EqA. Thus, it is essential to set out what he needs to show in terms of providing a prima facie case. Thus, I will refer to the section: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[7]It follows that there has to be a comparator not sharing the same relevant protected characteristic who is treated more favourably. In this particular case, the Claimant relies upon his protected characteristic of being a black Congolese, having been born in the Democratic Republic of the Congo although he is now a naturalised British Citizen.

[8]The second limited claim as set out above is based upon victimisation. The definition is set out at section 27 of the EqA. It reads: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— 2 This as per the list at paragraph (8) (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(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.”

[9]So there has to be a protected act which comes within the definition in order for the claim to get off the ground.

[10]As to strike out/deposit orders, I am very grateful for the jurisprudence that has been put before me by Mr Lewinski and the very fair way in which he has put the Respondent’s case, bearing in mind that the Claimant is unrepresented.

[11]I approach the task of striking out with the utmost caution: In essence, of course flowing through from the jurisprudence before me and for instance Glasgow City Council v Zafar

[1998] IRLR 36

, HL and thence by way of example, the observations of Langstaff J (the then President of the EAT) in Ukegheson v Haringey London Borough Council

[2015] ICR 1285

, EAT.

[12]Essentially, I adopt the dicta as given by Mr Justice Langstaff because it accurately reflects the jurisprudence. The correct approach to strike is to take the allegations in the claim at their highest: unless upon analysis, namely that undertaken by me today, they are conclusively disproved as demonstrably untrue. And whilst there is no blanket ban on the use of strike out in any particular class of case, the discretion to do so should be used sparingly and cautiously based on the Claim Form.3 Of course in a case such as this of an unrepresented claimant whose original claim may be somewhat sparing in the particularisation, one should take into account subsequent particularisation and argument, as I have in this case. Thus taking that collective narrative if it sets out the essential facts the respondent is required to answer and which are disputed that should not result in a case being dismissed by strike out on the grounds of no reasonable prospect of success. But if there are parts of a case which are plainly simply based on an assertion or belief and in a context where the actual documented factual history it being incontrovertible, flies in the face of that assertion, then a claim, for which read where engaged the 3 For that read the elaboration by Mrs Justice Simler in particular in the case of Hemdan v Ishmail and another

[2017] IRLR 228

. specific claim, can be safely struck out. However, if there are issues that would require findings of fact, then the matter should be allowed to proceed.

[13]That brings me onto the approach to making deposit orders. This is accurately set out by Mrs Justice Simler DBE in the Hemdan case to which I have referred. The purpose of the deposit order is to identify at an early stage claims with little prospect of success and to discourage pursuit of those claims. Albeit it is a lesser test than for strike out ie less rigorous (as to which see her paragraph 12), nevertheless “…there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim…. The fact that a tribunal is required to give reasons for reaching such a conclusion serves to emphasise the fact that there must be such a proper basis”.

[14]The last point I wish to make apropos Hemdan is that I am well aware that if a deposit order is made and thus a claimant has to pay a sum as a condition precedent of continuing, it should not set at a level such as to mean that he cannot pay and thus stops his access to the justice seat by the back door. The deposit order must reflect the ability to pay. The significance of the deposit order of course is the potential cost consequences for a claimant who loses on the issues in respect of which he/she has been made to pay a deposit. The scenario and my analysis

[15]Having considered all the documentation before me at considerable length and heard the submissions, for the purposes only of today I find the following to be the scenario. I should make absolutely clear that my findings do not bind the tribunal at the main hearing in terms of their findings of fact.

[16]The Claimant started to work for Amazon at its very large installation at Coalville in Leicestershire on 14 September 2016 as an agency worker. I find the Claimant to be a very intelligent man, most articulate in both spoken and English language. Employment Judge Camp had indicated that he thought that nevertheless as a safeguard, the Claimant should have an interpreter for the purposes of this hearing. Unfortunately, the clerks failed to book one. The Claimant was prepared to continue. He has been able to acquit himself before me well and I think he will agree with me that he has not been disadvantaged. He speaks five languages.

[17]On 23 July 2017, he became an established employee of Amazon. He worked in a department of French speakers who handle calls from both van drivers delivering Amazon products and from Amazon customers in French speaking countries, ie in particular France. They also deal with English language calls on an overspill basis. There are other teams in Amazon at Coalville who deal with, for instance, queries in German or queries in Italian and Spanish. This was a small team in which the Claimant worked of about 25 French speakers.

[18]Coinciding with the Claimant becoming a permanent employee into the picture enters his direct line manager, Karoline Jablonska (KJ). She is Polish. She in turn appears to have reported at the material time to Nicola Reynish (NR). KJ worked alongside Alexandre Aly (AA) and Vicky Allen. The picture the Claimant paints is that AA, KJ and Vicky were too close a management coterie.

[19]The Claimant was in a probationary period. His contract of employment at clause 1.3 made plain that on commencement of the permanent role on 23 July 2017, he would be subject to a 3 month probationary period. In that context, on 22 August 2017, KJ held a 30 day review with him. I have read that document and as far as I can see, there is nothing wrong with the process. It is an objective generically created template for scoring the call handlers and it includes random listening into their calls. I am well aware of how call centres work having heard many cases in relation to them over my many years as an employment judge.

[20]There were good things about the Claimant’s performance and there were things that needed improvement. Taking the totality of the evidence and all the interviews eventually conducted with the team, I am persuaded for the purposes of today that the Claimant was not being treated inconsistently with his colleagues in a way that might raise any inference of race discrimination.

[21]On 3 October 2017, he had his 60day review with KJ. The same observations by me apply. Shortly thereafter, the Claimant had a holiday of about a week. The reason that becomes important is that the 3 months is classed as 90 days, so if this is meant to mean that in the 90 day window thus there remains 30 working days left on 3 October (which is 5 weeks), then should that not mean that the Claimant has 25 working days in which to improve. The Claimant’s point being that in the period up to the next review which took place on 18 October 2017 (being the 90 day all-important one), because of his leave, he in fact only had 5 working days in which to perform.

[22]During the period between 3 and 15 October, the rest of the team raised what I would describe as a petition against KJ. It was about her management style and included the way in which she was handling changes in the rota. To cut a long story short and taking by the end of the investigations conducted in particular in the early stages of 2018 by Casper Sorensen (“CS”) and Stephen Lumsden (“SL”), the picture becomes that there were indeed management failings by KJ directed at everybody. The team has a significant ethnic minority but again to cut a long story short, none of the staff when interviewed said that they themselves ever considered that her treatment of them, which was poor, was by reason of their race. The issue in terms of this allegation therefore confines itself to the Claimant.

[23]In this period, once she knew about the ‘petition’, KJ had taken her team to task, but not including the Claimant because he was on leave, accusing them of “stabbing her in the back”. That she should not have said was a conclusion reached in due course by both CS and SL. It can be again noted, this is not singling out of anybody, it is the collective team.

[24]On 15 October, KJ asked to see the Claimant to sign off the record of the 3 October probationary review assessment meeting. In the meeting, the Claimant says that she accused him also of being a party to the petition and thus being one of those who had “stabbed her in the back”. In that respect, the Claimant says that the following day he went and complained to Nicola Reynish (NR) and that KJ must have learnt about that because at around that time, the Claimant was on 16 October not copied into a circular to all his other colleagues asking them to complete their 90 day review forms.

[25]Prior to this, he also seems to have been not circulated another document but I cannot see a causal link in that respect because it is before any complaint was made to him by KJ viz the stabbing in the back.

[26]Absent what I am about to come to and therefore so far, I see no race discrimination engaged in this issue at all just taking the papers on the face of them and the extensive interviews/investigations which eventually took place in this case to which I have referred.

[27]But, says the Claimant, he had by now learnt that KJ had referred to him by way of talking to another employee as a big black man of whom she felt frightened and who could break her back. That of course is on the face of it a specifically racial stereotyping remark. I do not need to explain why, it is self-evident. If said, it would of course be deeply offensive to the Claimant and it would be a remark which could be used as direct discrimination pursuant to section 13 on the basis of the stereotyping would be confined to him as the largest person and the only big black male in the team.

[28]But was it said? The Claimant says that he went along and told NR accompanied by a work colleague who he did not name at any stage in the internal proceedings despite being invited to do so – that person is Mbayo Kisempla. In the context of the latter Sorensen and Lumsden investigations, he was seen at least twice. Once this matter had come more fully to light: specifically at page Bp4166 on 23 January 2018 asked in the context of race discrimination as alleged by the Claimant – CS not having spelt out what the accusation was perhaps because if he did he would have been leading - was asked this “… anything else you would like to share?” MK: “No. The way Karolina came to him …” This is a reference to the 3 November 2017 and the probation issue and that the Claimant did not have sufficient time to improve. He had otherwise nothing to offer.

[29]That mirrors all the other staff who were interviewed, with the exception of Samia Zouanat5: “Do you think any behaviours of KJ demonstrated racial discrimination? Answer: “With FK, yes”. Question: “Can you give me specific examples please? Answer: “Way she speaks to FK is different. He was extended without good reason. First person to be told. The way she was behaving with him”. This is all a reference to the probation issue.

[30]What it means is that in two very extensive sets of interviews, none of his colleagues corroborated that which I am going to come back to, ie the ‘big black man 4 Bp=bundle page. 5 This is in her interview with SL on 22 January 2018. It is one of many additional documents put before during the hearing and is not numbered. break my back’ issue. The Claimant says to me that they would have all been too frightened to say anything. For the purposes of today, that flies in the face of what I have now referred to. Everyone one of them was not backward in coming forward. They were highly critical of KJ. They had signed the petition to which I have referred; and in the course of events relating to the Claimant, they signed a statement in support of him. This did not by the way raise race discrimination. It was about the treatment of KJ in relation to him on the issue of the extended probationary period. So this very serious allegation is already looking somewhat thin.

[31]Going back to material events, I come to 18 October 2017. The Claimant was seen by KJ. She came in off leave to do his 90 day review. She found that there were still issues with his performance albeit he had improved. The Claimant says that she was unfair. But looking objectively at what she was doing, it does not look like she was behaving in an inconsistent way. If the Claimant did yawn during a phone call with a service user, then she is entitled to record it.

[32]Also by now there was an issue involving Vicky. The Claimant had asked to change his lunch break so it came more in the middle of his working day. Vicky refused him that adjusted break, albeit the Claimant had agreed it with another employee. But is this just not further evidence of an employer who is perhaps unreasonable in the way that via its line managers it deals with its staff? In other words, tough, possibly uncommunicative and insensitive. Of course that does not support in itself race discrimination as my colleague Employment Judge Camp observed and is of course made plain the case of Zafar6. There has to be more than just that.

[33]As to the 18th October, it was clearly a difficult meeting and I have read the extensive note of it. The Claimant was deeply upset that he was going to be extended on probation rather than simply signed off as satisfactory. What he therefore did was on 24 October to raise three grievances, which I have read. Do they constitute a protected act? For the purposes of today (and no more) as there was a reference to “equality” in the first of them and then a regurgitation in the second of the extracts of the Respondent’s equality of opportunity policy and then a detailed complaint in the third grievance, for the purpose of today, I would treat them as collectively possibly constituting a protected act apropos section 27.

[34]To turn it around another way and of course there will have to be a finding of fact, if the Claimant had not raised a protected act prior thereto and I am talking about making a complaint to VR on the ‘big black’ issue, then I cannot see how causatively the Claimant will be able to argue that the treatment by KJ of him on 18 October 2017 is either direct race discrimination and that is because she treated everybody else in the same over bearing manner so to speak, or victimisation as per s27. I should add in one other factor on that part of the exercise. The Claimant says why did she come in off her holiday to do his review? Is it not indicative of victimising him? I use that word more loosely. But the investigations showed that she was under huge pressure, along with other line managers, to review a very 6 Zafar v Glasgow City Council

(1998) IRLR 36

HL. substantial number of people on probationary periods. She had two priorities for probationary assessment at this stage; the Claimant and an employee called Mo. The Mo assessment could not go ahead because an HR officer could not be found. That with the Claimant could because Terri-Ann Boxall (TAB) from HR was available.

[35]There is of course the issue of the Claimant not being on the feedback list as at 21 October 2017. This is because of what had happened on the 18th. but where is it linked to race discrimination? In other words, it is back to, absent the remark to which I have now referred several times having been made, no evidence of race discrimination. There might possibly be a victimisation claim however arising out of the 21 October if she had seen the grievance before the feedback list email went out. Otherwise, it will not engage.

[36]What is obviously now self-evident is that the Respondent decided to treat these emails from the Claimant as a grievance and utilise its grievance procedure. But on 3 November an event overtook events. My take on this from reading all the documentation in front of me is as follows. The Claimant had two short spells of absence over the preceding days. On each occasion, it was just taking an hour or so early. By this stage, from what I heard from him today, he was beginning to suffer from the effects of possible depression. He certainly was to refer to feeling under stress and depressed in the subsequent interviews. Amazon has a return to work policy. Incidentally the Claimant’s record so far had been first-rate and he had an unblemished disciplinary record. Should KJ have therefore dealt with the return to work interview on the 3rd November as she attempted to do that day? Add in, should she in any event have been doing it given the difficult working relationship and the criticisms of her made by all the team in the “petition” which should have been addressed by now by Amazon and had not been, and therefore perhaps an understandable feeling of paranoia in that respect and distrust by inter alia the Claimant.

[37]Suffice it to say she went ahead because that was the process. She therefore wanted the Claimant to come and see her in a side room. The totality of the evidence by the end of the Lumsden and Sorensen investigations does not on the weight of the evidence on the face of it support that it was the Claimant who was then aggressive in refusing to go with her. There are three witnesses in the investigation pack who speak to the contrary. AA at the time alleged the Claimant had told him that he was not prepared to go into a meeting in a side room alone with KJ least she might accuse him of something like sexual harassment. Of course, if she had said the words about “big black” at some stage previously and the Claimant was aware of that, then of course the Claimant would have justification for not wanting to go into a side room with her. There is some evidence that even so, KJ found him to be physically intimidating from the bundle. That is without giving it any discriminative nomenclature such as black.

[38]So, objectively speaking it is to me understandable that things became very difficult. The Claimant would not go into a meeting with her without knowing why and wanted a witness. KJ told him it was about his absence the day before and said he could have AA. The Claimant did not trust AA as being part of the coterie, as indeed so did others, and therefore wanted somebody independent. The situation became very difficult. The weight of the evidence steers towards that KJ shouted at the Claimant rather than the other way around. In the context was she told by AA what the Claimant was alleged to have said to him on the issue of sexual harassment? The evidence is weak for the Respondent: indeed AA became equivocal when interviewed by CS.

[39]As it is, the Claimant was then seen by another manager, Matt Spott, because he had asked TAB at HR for help, and there was a perfectly reasonable RTW meeting. As it is, this this incident was complained about by KJ and AA and as a result, the Claimant was suspended on 7 November. The act of suspension is said to be a direct discrimination act. Of course it will have to go to the main hearing, but on the face of the evidence where is the evidence that the Claimant was treated less favourably than a white employee might have been in the same circumstances? The Claimant produces no evidence to support the proposition and has not provided comparators. So, if this case proceeds, I shall expect Amazon to produce disciplinary records for let’s say 6 months either side of the suspension setting out the number of suspensions made at Amazon and the ethnicity or colour of the persons concerned.

[40]As a consequence, the Claimant was then the subject of a disciplinary investigation by Wes Griffiths and at the same time there was a grievance investigation into his grievances by Lee Cooke. The two of them reached conclusions by the end of the year. I now know from the additional documentation put before me that Wes Griffiths did reasonably investigate the issues: his investigation meets ACAS CP best practice in terms of an unfair dismissal case. But of course, the Claimant has not got 2 years’ qualifying service for that. In the context of what he was doing, in came the collective letter of support for the Claimant from his colleagues to which I have referred. Mr Cooke did his investigation. As to the extent of it, I may not have all the paperwork. It would seem that in any event (as I have already said) that any shortcomings were cured by the subsequent investigation by SL.

[41]The Claimant was dismissed by Mr Griffiths following a hearing on 20 December 2017 and on the same day, Mr Cooke dismissed his grievance. I stop there. The Claimant suggests this is an inordinate delay such as to raise the inference that this was a further act of race discrimination. I will add in for the sake of completeness on what I have heard from him, that he is relying upon it being victimisation because of raising the grievance. I do not conclude, as a Judge of extensive experience, that there was an inordinate delay such as to raise an inference. The whole exercise has been completed in under 2 months. That is not an inordinate delay. Furthermore in neither of those investigations during which he was extensively interviewed did he raise the “big black” issue at all. I observe that if the Claimant could start to raise, as he was at this time, the treatment of him over a year previous by another by now departed employee including the use of the words “little old monkey”, why did he not remember this all-important remark and indeed that he had been to NR about it? It begs the question.

[42]The Claimant appealed on both fronts. The appeal into the dismissal was undertaken Casper Sorensen (CS), who is based in the USA. The Claimant says that a further act of discrimination is that he did not come across to the UK for the purposes of the appeal. But we live in an age of high tech and Amazon is at the forefront. It is to my knowledge that many international companies these days hold hearings and ensuing investigations using such as video conferencing or Skype. Indeed many court hearings are now conducted using video links and which will increase as new technology rolls out. It follows that I fail to see that this supports in the slightest the accusations of race discrimination. The same applies to the hearing of the grievance appeal by Mr Lumsden (SL) who is based in Scotland.

[43]Also, despite what the Claimant may say, they both undertook extensive investigations. I have already said that the evidence from his colleagues just did not support his accusation that there was a racist environment.

[44]That therefore leaves me with the “big black” issue. I repeat that at no time in 2017 in the context of events, and the bundle to this effect is quite plain, had the Claimant raised the issue. Thus, he first flagged it up in his appeals. Thus to SL (Bp 126) : “It’s clear that it is a prove of race discrimination. I’m aware of how she said to some members of staff that I’m too big and I look intimidating just the way I am. I was the tallest and biggest black agent in the French team but that is the way I am. …”

[45]He did not raise the sexual stereotyping part of any such remark, to which I have referred. He did not say that immediately learnt about this, he raised it with NR or that in so doing he had taken along with him MK.

[46]He first raised the stereotyping remark at the actual appeal hearing (Bp145b) “ Someone from the team did not want his name revealed to protect his job. On the first time Karolina saw me on the floor she said: “ this one is too big, he looks intimidating and can break my back” (Bp 188).

[47]And as to the appeal against dismissal (Bp119) initially just: ” Am I intimidating because of my size, or how I look? As I was the tallest and biggest black agent into the French team” . This was then limited to the 3 November incident and what AA had alleged; and that his witnesses were being discounted “as they are black.”

[48]Take the latter point first, I do not see any evidence to that effect. Each was fairly asked to give their account on the environment they were working and the interface to KJ; and they answered very frankly indeed and in a way that did not help KJ. They were asked otherwise about race discrimination and answered in the negative with the limited exception of SZ and I have dealt with that.

[49]When interviewed by SL on 22 January 2018 at which he had present a work colleague, and incidentally at some of these meetings he had a trade union official, he went further and the point became engaged (see Bp 145b): “… Another colleague she said that Karolina Jablonska (KJ) said the way I look is that I look intimidating, I could break her back. I heard this after these things. That’s what she said.

[50]He was asked who made the comment and he said: “A colleague at work, another colleague heard this and told me, she said he is too big and he looks intimidating. He was asked if he had a name and he said that they did not want to give their name but he said that he will go and see if they were happy to speak.

[51]That then brings me back, taking it full square, to that every one of the team was interviewed and this would in fact be for the second time and not one of them corroborated what he said. Most important, I come back to MK and what I observed early on. That is a summary of the position.

[52]It follows that although I am not going to strike out this allegation as of course the tribunal at the main hearing will have hear particularly KJ and the Claimant to make findings of fact, I am of the view that this allegation is very thin and therefore I am ordering a deposit. Of course, the Claimant must be aware that he will need to get MK to come and give evidence and if he is not willing but would support the Claimant otherwise, then he will have to obtain a witness summons.

[53]That leads me on to what then happened. SL upheld the grievance in part in the sense that he reiterated that he agreed that there were shortcomings in the management by KJ. But by now Amazon had taken steps to cure that situation and it is self-evident from the interviews by then with the members of the team, and as I have already said mainly these were second interviews; they were confirming that the steps the management had taken were working and it was a much happier place. On the face of it, and no more than that, it follows that the conclusion of SL who otherwise found that there was no race discrimination is objectively sustainable.

[54]However, when this case comes back before the main hearing, both SL and CS will need to explain why KJ was not pushed at least a little harder on the issue of the alleged remarks. It is very much a one line question – have you discriminated or words to that effect. The specifics are not put to her. Why not? Is there an inference to be drawn that they did not want to? Is that because of sensitivity for KJ’s feelings or is there some other reason, ie that as the Claimant did not have qualifying service, they could in that sense simply cure the problem by dismissing him. Of course, I do not know the answer but it is an articulated part of the bullet points that the Claimant raised before EJ Camp. That is going to need answering.

[55]CS upheld the dismissal. What concerns me is that he now of course did what should have been done before by WG and evaluated the shortcomings in the evidence as to whether or not the Claimant was the one who had behaved in an aggressive fashion on 3 November and whether in fact he had actually made the sexual harassing remark. One of the reasons why he needed to evaluate was that AA had watered down his evidence, albeit I note Mr Lewinski’s observation that AA was saying that it was a long time ago and that his earlier statement was in effect his best recollection. Be that as it may. There was of course the evidence of the three witnesses in corroboration of the Claimant. Therefore, SL concluded that the evidence that the Claimant had behaved in this way towards KJ was “inconclusive”.

[56]So that could no longer be a disciplinary finding. It had been a reason for the dismissal. That left of course the Claimant’s refusal to agree to the instruction of KJ to go into the side room with her to discuss his sickness absence as per the policy. On the face of it, CS did not fully evaluate the mitigation in that respect which had been made clear by the Claimant and advocated by his trade union official.

[57]To turn it around another way, did CS not see that there was a possible element of provocation by KJ. Did he not link that on the face of it she could have known about the grievances that the Claimant had raised on 23 October? Should she therefore have backed off on the basis that the Claimant might have reasonable grounds for his stance. Given the Claimant cooperated with Matt, should that not have been an end of the matter? Thus should CS have upheld the decision to dismiss?

[58]Of course, the Claimant has not got the 2 years’ QS to bring a claim for unfair dismissal per se. So in that respect the Respondent does not have to behave fairly. And I am well aware as per the point made by Mr that an unreasonable employer is not necessarily a discriminatory one. It requires more than that; but nevertheless CS will need to explain why he still decided that the Claimant should be dismissed. What was the reason? On the face of it, the reason he gives does not stack up once he made the inconclusive finding. But is it such as to raise an inference of race discrimination? Overall on my analysis the evidence to support the Claimant is very thin. But that is a matter for the tribunal on the next occasion. 59.That leaves the allegation at paragraph 8(6) of EJ Camp’s list linking underpayment of wages to direct race discrimination. From the documentation it is clear that the primary problem was tax coding changes by HMRC for the purposes of the Claimant and thus PAYE. This Amazon itself cannot change the code and that is obvious from the correspondence before me. Otherwise shortfalls in payment for a short period was a payroll error and it was corrected. I see no link between this issue and the other remaining alleged discriminatory acts. Overall conclusion

[60]It follows that although I am not going to strike out other than those aspects of this claim which are simply not supported as a contention on the face of the papers, that I am going to make deposit orders as I conclude that which remains has only little reasonable prospect of success. Means

[61]The Claimant is in a parlous financial situation. Since losing his job with Amazon I accept, that he went downhill mentally very fast. His wife has separated from him, because of the difficulty of living with him because of his mental health, and gone to Manchester with their two children, including a new arrival. The Claimant is being prescribed anti-depressants and has been for some months. Although a highly intelligent man with a degree obtained in this country, he has not therefore been able to intellectually hold down doing such an interpreter’s job. He is therefore doing the job of a weekend security guard. The work is intermittent and he is dependent on Universal Credit. He may of course have earning prospects for the future but that is not a matter for me today, that would become engaged if at the main hearing a costs order was made against him.

[62]Finally, he does not own his own home and lives in Council property. He has substantial debts given his limited income of some £7,000. He has been discussing a CVA with debt advisers. It follows that I cannot order substantial deposits in this matter. If I did, I would be simply preventing him from the justice seat by the back door. But I do remind him, and it will be set out in the notice he gets regarding the deposits orders, that there are potential costs consequences should he lose his case.

[63]Thus I am making deposit orders requiring the payment of £5 per claim to be continued with.

Introduction

[1]After a period of working for the respondent through an agency, the claimant was employed by the respondent at its Coalville site from July to 20 December 2017 as the Customer Services Associate. His employment ended by dismissal. The given reason for dismissal was misconduct. By a claim form presented on 2 March 2018, following a period of early conciliation from 3 January to 3 February 2018, the claimant brought complaints of direct race discrimination, victimisation and unauthorised deductions from wages. Complaints & issues

[2]A case management preliminary hearing took place on 31 July 2018, coincidentally before Employment Judge Camp. The Employment Judge set out within the written record of that preliminary hearing what was intended to be a definitive statement of the claims and the issues. Included was a list of the things relied on by the claimant in support of the allegation that the reason for his mistreatment was that he is black. The Employment Judge made what is his usual case management order: that if the statement of complaints and issues was inaccurate and/or incomplete in any important way, the parties had to notify the tribunal of this within 21 days of the date the written record of the case management hearing was sent out. Neither side wrote to the tribunal pursuant to that case management order.

[3]In November 2018, there was a preliminary hearing to deal with preliminary issues before Employment Judge Britton. Employment Judge Britton struck out five allegations of direct race discrimination and one allegation of victimisation. The Employment Judge also effectively gave permission to the claimant to amend to add one complaint of victimisation and one of direct discrimination. The direct discrimination complaint that was added related to a remark allegedly made by the claimant’s line manager, Miss K Jablonska (“KJ”), to the effect that the claimant was a big and tall black man and she feared that he might break her back.

[4]The additional complaint of victimisation that Employment Judge Britton permitted the claimant to pursue was put by the Employment Judge in the following way, “That Alex Ali [his surname is actually spelt “Aly”] made up allegations – this relates to telling KJ that the claimant would sexually harass him”. This appears to us to be an error by Employment Judge Britton. It has never been alleged in these proceedings that Mr Aly told Miss Jablonska that the claimant would sexually harass him. The actual allegation is (from the list of issues in the written record of the preliminary hearing of July 2018): “KJ and (at KJ’s instigation) a colleague called [Mr Aly] made up allegations against the claimant on the basis of which he was suspended and ultimately dismissed”. Our understanding of the situation is therefore that Employment Judge Britton gave the claimant permission to pursue that allegation as an allegation of victimisation, in circumstances where he was already pursuing it as an allegation of direct race discrimination.

[5]After the preliminary hearing before Employment Judge Britton, there was a further case management preliminary hearing before Employment Judge Dyal, on 15 January 2019. It is evident from the written record of that hearing that Judge Dyal found it difficult to work out which of the claimant’s complaints remained, in light of Judge Britton’s decision.

[6]Within the written record of the hearing before Employment Judge Dyal, he set out what he understood the complaints being made were. The complaints of direct race discrimination are set out, we think entirely accurately, in subparagraphs (a) to (o) of paragraph 7 of the written record of that hearing. He also set out, under paragraph 8 of the written record of the hearing, what he understood the claimant’s remaining victimisation complaints to be. At the start of day two of the final hearing before us (day one was a reading day), both parties – the respondent through counsel – agreed that Judge Dyal had accurately set out all the remaining complaints, including those of victimisation. Nevertheless, we think Judge Dyal fell into error.

[7]The result of the case management preliminary hearing of July 2018 was that the claimant had one and only one victimisation complaint. This was about the respondent allegedly making deductions from the claimant’s wages. That complaint was struck out by Employment Judge Britton. As explained above, Judge Britton allowed the claimant to add one further complaint of victimisation: the complaint relating to Mr Aly allegedly making up allegations. Employment Judge Britton did not give any further permission to amend or add to the claim, and the claimant has not asked us, and did not ask Employment Judge Dyal, for permission to do so. It follows that the only complaint of victimisation that is still before the tribunal is that complaint relating to Mr Aly allegedly making up allegations.

[8]However, Employment Judge Dyal identified a number of additional victimisation complaints. It is clear to us that these were identified because of something that was written in the written record of the hearing that had taken place before Employment Judge Britton. When setting out the complaints which he made subject to deposit orders, Employment Judge Britton referred to the list of complaints that Employment Judge Camp had prepared. That was a list of complaints of direct race discrimination. However, when referring to them, Employment Judge Britton labelled some of them complaints of victimisation as well. As Employment Judge Britton did not suggest he was giving permission to amend and nor did he say why, if he was giving permission to amend, he thought it was in accordance with the overriding objective to allow the amendment, we can only assume that Employment Judge Britton made a mistake in this respect.

[9]In conclusion on this point, only one victimisation complaint is before the tribunal. Nevertheless, for the sake of completeness, we shall within this decision briefly address the other victimisation complaints identified by Employment Judge Dyal as if they were before the tribunal.

[10]With those qualifications, the complaints are as set out by Employment Judge Dyal and they are as follows: Direct discrimination10.1 Miss Jablonska’s alleged comment that the claimant is a big and tall black man and that she feared he might break her back;

10.2 on or about 16 October 2017, Miss Jablonska removed the claimant’s name from an email distribution list;

10.3 on the same day, Miss Jablonska did not provide him with the form that staff on probation filled in at the end of each month;

10.4 his probation period was extended;

10.5 his probation period was extended after only 78 days, sooner than anyone else’s;

10.6 his 3 month probation review meeting was arranged only two weeks or so after his 2 month probation review meeting, in circumstances where he was on holiday for one of those two weeks;

10.7 he was underpaid on 3 November 2017 by 8 hours’ worth of pay: £81.20. These underpayments were never corrected. He was also underpaid by £81.20 on 1 December 2017 and this underpayment was corrected, but not until 2 weeks’ later;

10.8 Miss Jablonska and (at Miss Jablonska's instigation) Mr Aly made up allegations against the claimant on the basis of which he was suspended and ultimately dismissed;

10.9 he was suspended from work from 7 November 2017;

10.10 his suspension was unreasonably prolonged – 43 days;

10.11 a Mr W Griffith decided that the claimant’s employment should be terminated, with effect on 20 December 2017 (on the respondent’s case, he took the decision, albeit the claimant’s case seems to be that Miss Jablonska was responsible for him taking it);

10.12 Mr L Cooke, who dealt with the claimant’s grievance, failed to get evidence from people who supported the claimant;

10.13 on 20 December 2017, Mr Cooke did not uphold the claimant’s grievance;

10.14 on 9 February 2018, Mr S Lumsden, who dealt with the grievance appeal, did not uphold the claimant’s grievance;

10.15 on 5 March 2018, Mr C Sorensen, who dealt with the appeal against dismissal, did not overturn the decision to terminate the claimant’s employment. Victimisation

10.16 Miss Jablonska and (at Miss Jablonska’s instigation) Mr Aly made up allegations against the claimant on the basis of which he was suspended and ultimately dismissed;

10.17 he was suspended from work from 7 November 2017;

10.18 Mr Griffith decided that the claimant’s employment should be terminated, with effect on 20 December 2017;

10.19 Mr Cooke failed to get evidence from people who supported the claimant;

10.20 on 20 December 2017, Mr Cooke did not uphold the claimant’s grievance;

10.21 on 9 February 2018, Mr Lumsden did not uphold the claimant’s grievance;

10.22 on 5 March 2018, Mr Sorensen did not overturn the decision to terminate the claimant’s employment.

[11]The issues are listed in the written record of the preliminary hearing before Employment Judge Camp (the relevant part of which should be deemed to be incorporated into these Reasons), with one slight change: Judge Camp identified two particular documents as being the things relied on by the claimant as protected acts for the purposes of the victimisation claim. It was accepted by both sides (and by us) at this final hearing that, in fact, the claimant was relying on a series of written communications with the respondent in October 2017 as the relevant protected act or acts, and not just on those two particular documents.

The law

[12]In terms of the relevant law, this is to be found, first and foremost, in the wording of the relevant sections of the Equality Act 2010 (“EQA”), in particular sections 13, 23, 27, and 136.

[13]In terms of case law, our starting point is paragraph 17, part of the speech of Lord Nicholls, of the House of Lords’s decision in Nagarajan v London Regional Transport

[1999] ICR 877

. We also note the contents of paragraphs 9, 10 and 25 of the judgment of Sedley LJ in Anya v University of Oxford

[2007] ICR 1451

[14]So far as concerns the burden of proof, there is a helpful summary of how [the predecessor to] EQA section 136 (“section 136”) operates in Islington Borough Council v Ladele

[2009] ICR 387

, at paragraph 40(3), which we adopt.

[15]Section 136 invites us to look for, “facts from which the court could decide, in the absence of any other explanation” that unlawful discrimination or victimisation has taken place. The threshold to cross before the burden of proof is reversed under section 136 is a relatively low one: “facts from which the court could decide”. However, it is not reversed simply by: unexplained or inadequately explained unreasonable conduct; a difference in treatment and a difference in status1; apparent incompetence. See: Quereshi v London Borough of Newham

[1991] IRLR 264

; Glasgow City Council v Zafar

[1998] ICR 120

HL; Igen v Wong

[2005] IRLR 258

; Madarassy v Nomura International Plc

[2007] EWCA Civ 33

; Chief Constable of Kent Police v Bowler

[2017] UKEAT 0214_16_2203

. Further, section 136 involves the tribunal looking for facts from which it could be decided not simply that discrimination is a possibility, but that it has in fact occurred: see South Wales Police Authority v Johnson

[2014] EWCA Civ 73

, at paragraph 23.

[16]Another way of dealing with the burden of proof in relation to a direct discrimination or victimisation complaint is effectively to ignore the burden of proof altogether and simply to ask: “why was the claimant treated in the manner complained of”, i.e. what was the ‘reason for the treatment’? See: Ladele at paragraph 40(5); paragraphs 60, 71, 72 and 75 of the decision of the EAT in Laing v Manchester City Council

[2006] ICR 1519

. For every complaint, we have tried to make a decision as to what the reason for the treatment in question was.

[17]Generally, in relation to the burden of proof, we have applied the law as set out in paragraphs 36 to 54 of the decision of the Court of Appeal in Ayodele v Citylink Ltd & Anor

[2017] EWCA Civ 1913

[18]Finally, we note that in a direct discrimination complaint, there must be less favourable treatment and not merely unfavourable treatment. Subject to section 136, we have to be satisfied that the claimant was treated worse than someone else in the same circumstances – a ‘comparator’ in accordance with EQA section 23 – was or would have been treated. Merely proving that the respondent treated the claimant badly is, by itself, not enough.

The facts

[19]Many of our findings of fact are not contained in this section of the Reasons but are contained, instead, in the section of the Reasons where we specifically address the issues and individual complaints.

[20]By way background, we refer to the cast list and chronology prepared by the respondent, both of which should be deemed to be incorporated into these 1 i.e. the claimant can point to someone in a similar situation who was treated more favourably and who is different in terms of the particular protected characteristic that is relevant, e.g. is a different age, race, sex etc., or, in a victimisation case, who did not do a protected act. Reasons. At the start of the hearing, we had a bundle containing 13 witness statements and an email which was being relied on by the claimant as a witness statement. The majority of the claimant’s proposed witnesses did not, though, give oral evidence before us.

[21]For the claimant, we had oral evidence from: the claimant himself; and from former colleagues of his called Mr Conte, Mr Aden and Mr Mawhassa. On the third day of the hearing, the claimant asked whether he could call as a witness, another former colleague: Mr G Dixon. No witness statement from Mr Dixon had been prepared. We asked the claimant and Mr Dixon to prepare one so that the respondent could see what evidence Mr Dixon was intending to give and to decide whether or not it was going to object to him giving evidence. A short written statement from Mr Dixon was then prepared and, having seen that statement, the respondent did not object to Mr Dixon giving evidence. Indeed, counsel did not cross-examine him at all.

[22]For the respondent, we heard oral evidence: from Miss Jablonska, Mr Cooke, and Mr Lumsden; via video link, from Mr Griffith; and from Mr Sorensen, who no longer works for the respondent and who also gave evidence via video link.

[23]The claimant started working at the respondent’s Coalville site – a call centre – in September 2016. At the time, it was a new site for the respondent. Everyone, or almost everyone, the claimant included, started off as agency workers. Staff at the claimant’s level were, as we understand it, dealing with queries from delivery drivers rather than from customers. The claimant was in the “French” team, taking queries from, predominantly, French drivers, in French. There was also, possibly amongst other teams, a “German” team and a “British” or “English” team.

[24]All staff at the claimant’s level went through what amounted to a trial period, working through an agency, before, if the trial was successful, being made permanent staff, with contracts of employment with the respondent. For the claimant and five of his colleagues in the French team, the conversion from being agency staff to permanent staff occurred on 23 July 2017, with the rest of the team converting during August 2017. The contracts of employment of the claimant and his colleagues with the respondent included a probation period. There was what was described as a “30 day”, a “60 day” and a “90 day” review, however they would not necessarily take place exactly on day 30, on day 60 and on day 90.

[25]At the 90 day review, staff would either be dismissed, their probationary period would be extended, or they would be deemed to have passed probation. The understanding of the respondent’s relevant managers at the time was that if a member of staff got to 91 days after the commencement of their employment, they would automatically be deemed to have passed their probation period unless there had previously been a probation review meeting at which they were either dismissed or had had their probationary period extended.

[26]In October/November 2017, nine out of the eleven members of the French team were black, the remaining two being, respectively, what is described as “Moroccan” and white. The composition of the German team is also relevant because Miss Jablonska was responsible for that team too at the time. There were six members of that team: three were black, two white and one is described as “Sri Lankan”.

[27]Nothing of very much significance happened before October 2017. The claimant’s 30 day probationary review meeting was on 22 August 2017; his 60 day probationary review meeting was on 3 October 2017. Both passed off without apparent incident. The one potentially relevant thing that happened around late September/early October 2017 was that the whole, or most, of the French and German teams raised a complaint about how Miss Jablonska was dealing with rotas. Miss Jablonska was upset at the way that this had been raised and referred to the team members, including the claimant, as having ‘stabbed her in the back’.

[28]The 90 day probation review included an assessment, against set criteria, of three telephone calls, conducted in the normal course of their work, by the employee being reviewed. The calls chosen for assessment in the claimant’s case were on 16 October 2017. Another part of the assessment was looking at whether the employee carried out a particular task at the end of the call, known as “wrap-up compliance”. Employees were expected to meet or exceed a percentage target for wrap-up compliance. Whether or not there was wrap-up compliance in relation to a particular call was assessed completely objectively, by computer.

[29]Ninety days from the claimant’s start date of 23 July 2017 was 21 October 2017. Miss Jablonska was on holiday from 17 October 2017. On 16 October 2017, Miss Jablonska emailed the claimant to tell him that the two of them would be having a meeting – which was understood to be the 90 day probation review meeting – on Wednesday, 18 October 2017, i.e. that Miss Jablonska would be coming in during her holiday in order to have this meeting.

[30]Also on 16 October 2017, Miss Jablonska emailed the claimant and the other members of the French and German teams telling them that she would be on annual leave from 17 to 30 October 2017. That email about annual leave includes the following: “I will be in the office twice this week for urgent meetings, otherwise I will see you in a few weeks!”. The urgent meetings she was referring to were the 90 day meeting with the claimant and, we think, a proposed 90 day probation review meeting with Mr Conte, which did not in the end take place. Of the six individuals whose probationary periods expired on 21 October 2017, the claimant and Mr Conte were the only ones who had their probation periods extended. The other four passed.

[31]On 16 October 2017, between emailing the claimant about their meeting and emailing the whole of the team about her annual leave, Miss Jablonska emailed all relevant members of the French and German team apart from the claimant. The subject of the email was “Probation Review”. The relevant part of the body of the email is as follows: “… Please start completing this form again with your next review in mind. I will start another round when I’m back from vacation at the end of the month. Please ensure ALL forms are back to me by 29th October. …”

[32]Although it is not clear whether she actually did so, Miss Jablonska’s intention was clearly to send with that email a particular form. The form was a form that staff filled in with their own comments in preparation for a 90 day probation review meeting. The same form was used at 30 day and 60 day review meetings. It was a form the claimant was familiar with. He could easily have obtained a copy of it for himself.

[33]The claimant’s 90 day meeting took place on 18 October 2017. We refer to the detailed meeting note, which we have no good reason to doubt the substantial accuracy of. In short, the claimant’s probationary period was extended, primarily because he had not performed satisfactorily in relation to the three calls of his which had been assessed for the purposes of the review and because he had failed to meet the 95 percent wrap-up compliance target.

[34]Almost immediately after that meeting, the claimant raised a complaint or grievance about the fact that his probationary period had been extended. He did this in various telephone calls with and emails to HR. His complaints were detailed in emails of 18, 24 and 26 October 2017 in particular.

[35]The claimant’s grievance was in the first instance dealt with by Mr Cooke. By a letter of 2 November 2017, Mr Cooke summarised the claimant’s grievance (incorporating in his summary some additional points that had been raised by the claimant in response to an earlier written attempt to summarise it) and invited the claimant to a grievance meeting, which took place on 6 November 2017. We refer to the grievance meeting notes.

[36]A few days earlier, on 3 November 2017, there was allegedly an incident involving the claimant, Miss Jablonska, and Mr Aly. This is the alleged incident that ultimately led to the claimant’s dismissal.

[37]It is common ground that an incident of sorts occurred. The claimant was returning to work from a short period of sickness absence and Miss Jablonska wanted to have a meeting with him. The claimant did not want to be in the meeting by himself with Miss Jablonska and said that he wanted a companion as a witness. Mr Aly said that if the claimant really needed one, he would be the witness, but the claimant refused to go into the meeting without a companion of his own choice. Evidently, something out of the ordinary happened because the claimant emailed HR about it some half an hour or so afterwards.

[38]Later that day, Mr Aly voiced his own concerns about the incident, in an email of 3 November 2017, sent at 10:23 hrs: “… Felly [the claimant] came to my desk telling me that his refusal was not against me, but that he should be choosing his witness. He then told me that he has something going on against Karolina [Miss Jablonska] at the minute and being in a room with her, she could take advantage of it, with her being a woman and him being a man e.g. she could pretend he sexually harass [sic] her…”.

[39]Mr Aly’s allegations were deemed to be allegations of misconduct which needed to be investigated. The claimant was suspended from work on 7 November 2017. The suspension letter of that date stated the allegation was: “…that the following conduct and behavioural issues have been demonstrated during your probationary review process and this requires investigation: Intimidating tone, behaviour and conduct used during probationary period towards members of the leadership team; Refusal to follow reasonable requests”.

[40]The individual in charge of the disciplinary process, which was referred to as a probation review process, was Mr Griffith. A probation review meeting between Mr Griffith and the claimant took place on 13 November 2017. Again, there are meeting notes, to which we refer. We also take into account and refer to the claimant’s comments on those notes, contained in an email from him of 22 November 2017. Following the meeting, Mr Griffith interviewed various people in relation to the claimant’s situation, including most of his colleagues in the French team.

[41]Mr Cooke used Mr Griffith’s notes for the purposes of dealing with the claimant’s grievance. By a letter of 15 December 2017, Mr Cooke informed the claimant that he had made a decision relating to the claimant’s grievance and that he wanted to discuss that decision with the claimant on 20 December 2017. The detailed outcome of the grievance, set out in a letter dated 20 December 2017, was delivered by hand on or about that date. Small parts of the grievance were upheld, particularly complaints relating to Miss Jablonska’s management, but the grievance as a whole was substantially rejected.

[42]Also on 20 December 2017, the claimant was dismissed. The reasons for dismissal were set out in a letter of that date from Mr Griffith, which states: “The reasons for your termination are set out below and relate to your actions on 3 November 2017.” They were, in summary:42.1 that the claimant had inappropriately commented to Mr Aly that if he was left in a room alone with Miss Jablonska, she could claim that he had sexually harassed her;

42.2 that the claimant had refused to follow a reasonable request, namely that he attend a meeting with Miss Jablonska;

42.3 that he continued to refuse the request for the meeting with Miss Jablonska even when offered Mr Aly as a companion;

42.4 that he was intimidating in tone and behaviour and conduct during the incident on 3 November 2017.

[43]The claimant appealed both his dismissal and the grievance outcome. The appeal against dismissal was contained in a document of 28 December 2017 and the grievance appeal in a document of 1 January 2018. We refer to both of those documents. As already mentioned, the grievance appeal was dealt with by Mr Lumsden and the dismissal appeal by Mr Sorensen.

[44]Mr Sorensen met with the claimant on 17 January 2018. Mr Sorensen interviewed 15 people on about 23 January 2018. Mr Lumsden interviewed 7 people on 22 and 23 January 2018 and also met with the claimant on 22 January 2018. Mr Lumsden and Mr Sorensen interviewed various other people during late January and early February 2018.

[45]The outcome of the grievance appeal was that the appeal was dismissed. Mr Lumsden’s decision is set out in a letter from him dated 7 February 2018.

[46]Mr Sorensen held an appeal outcome meeting with the claimant on 5 March 2018. Once again there are meeting notes. The outcome was that the claimant’s appeal was unsuccessful overall, although, unlike Mr Griffith, Mr Sorensen felt unable to reach a conclusion as to whether or not the claimant had made the statement Mr Aly alleged he had made about Miss Jablonska potentially fabricating allegations against the claimant. Mr Sorensen’s detailed reasons are set out in a letter dated 29 February 2018. Decision on particular issues & complaints

[47]Before we deal with some individual issues, we would like to make some general comments.

[48]This claim arose against a background of general discontent at the Coalville site, within the French and German teams in particular. As the respondent recognises, and to a significant extent realised at the time, there were problems which stemmed from the fact that the site was a new set-up, that the managers on site lacked experience, and that at the time HR and senior managerial support was provided remotely.

[49]On the evidence, those problems were problems for everyone – or at least everyone within the French and German teams. In the claimant’s case, they have become problems that have ultimately produced this tribunal claim, because he took deeply personally the fact that his probation period was extended. He has come to convince himself that the things he did not like that happened to him happened because of his race. It is clear he genuinely believes this is so.

[50]However, this case is not about what the claimant believed or believes, nor is it even, really, about what happened. It is much more about why things happened: what was going on inside the heads of the people who did the things and made the decisions that the claimant is complaining about. Neither the claimant, nor any of his witnesses, know why things happened, or what was going on in other people’s heads. The claimant can tell us what he thinks and feels, but to prove his case he must point to some evidence that people may have acted against him because of racial prejudice.

[51]Part of the claimant’s case is that the respondent rejected his evidence and that of his black colleagues and accepted all the evidence of white managers. That is simply wrong. In most respects, there was little or no dispute as to what happened as a matter of fact. The question for the respondent (and it is much the same for us) was about people’s motives. In not ascribing a racially discriminatory motive to individuals’ actions, the respondent was not rejecting the claimant’s or anyone else’s evidence, it was merely deciding that that evidence did not prove unlawful discrimination.

[52]We note that there has been some evolution of the claimant’s discrimination case. It started with straightforward allegations that he had been mistreated because he is black. As it has developed, it has become about being mistreated because, specifically, he is (in his own words) a “large black man”.

[53]In theory, this could work as a race discrimination claim. If the claimant was mistreated in a particular way because he is a large black man, in circumstances where a large white man would not have been similarly mistreated, that would potentially be race discrimination. However, upon analysis and on the evidence, this alternative claim based upon his race and his sex and his size does not work either, for reasons we shall now explain.

[54]It seems to us that, looked at objectively, the claimant’s case is not actually one of race discrimination at all. It is, instead, all about how, regardless of his race, the claimant as an individual was treated. For example, in closing submissions the claimant was at pains to emphasise how Mr Conte – someone the claimant identified at times during the hearing as another mistreated “large black man” – had a different case from his own and was not a valid comparator. The claimant had to do this because most of his case is about things that happened to him and to him only. He complains about being singled out compared to his colleagues, the majority of whom are also black, and some of whom are also – according to the claimant himself – “large” black men. If he has been treated less favourably than a group of individuals most of whom are the same race as him, that is very unlikely to be race discrimination.

[55]From the first preliminary hearing in this case, the claimant has been asked to explain how, if most of his potential comparators are the same race as him, his race discrimination claim could succeed. His answer has always been that he could be being singled out because of his race on a particular occasion, even though black colleagues were not, on that occasion, mistreated in the same way that he was. That is a theoretical possibility. But for us to be satisfied that it was actually what happened, there would have to be some evidence of racially discriminatory mistreatment, either of the claimant or of others, on at least one occasion, and, with one possible exception which we shall address, there is simply no such evidence.

[56]During the course of the hearing, the claimant made allegations to the effect that management within the respondent is disproportionately and overwhelmingly white. We are not satisfied that that is so. We note that the respondent was ambushed by those allegations and could not reasonably have been expected to deal with them. But even if it were the case that, within the respondent generally, there are disproportionately few black managers, that fact alone would take the claimant’s case no further.

[57]The claimant makes no tribunal complaint about not being promoted to a managerial position. Moreover, there is no substantial evidence that any of the individuals against whom the claimant makes allegations of race discrimination were themselves involved in recruitment to any significant extent. Certainly, Miss Jablonska was not involved in recruitment. If it is part of the claimant’s case, which it seems to be, that Miss Jablonska was appointed to her position because of her race, we note that the fact that somebody may be the beneficiary of discrimination does not make them a discriminator themselves.

[58]In a case like this one, it does not help the claimant’s case even if he is able (and he isn’t) to show that the respondent is racist at a corporate level. He has to satisfy us that particular things, done by particular individuals, were done for racist motives. That requires us to look at the evidence against those individuals.

[59]With those observations in mind, we turn to the claimant’s specific allegations.

[60]It is convenient to deal first with the allegation that Miss Jablonska said of the claimant that he is, “a big and tall black man”, and that she feared that “he might break my back”. The claimant alleges that somebody (who the claimant will not name) told him that Miss Jablonska had said this.

[61]We start by thinking about the inherent probabilities of the situation. In our experience, in modern workplaces, and particularly in diverse workplaces like that in which Miss Jablonska and the claimant worked, racists do not generally vocalise their racism. In addition, even if Miss Jablonska were foolish enough to make such an obviously racist comment openly in the workplace, the alleged comment itself is a strange one. Miss Jablonska is a fluent British English speaker. In British English “break my back” is not a phrase that is used in connection with the fear of violence.

[62]We also note that, as mentioned above, the alleged comment was not something the claimant himself overheard Miss Jablonska saying. We have to consider not only the evidence surrounding what the claimant was allegedly told had been said, but also the evidence around what, if anything, the person who passed on the information to the claimant actually heard Miss Jablonska say. There is, it seems to us, no real evidence at all that Miss Jablonska said anything. We do not know who it was who allegedly overheard her making the comment; we do not know when and in what circumstances she allegedly made it and it was overheard; we can have no idea how much scope there was for the unnamed person who allegedly overheard it to mishear or misunderstand anything that was said, or to have invented the comment for their own reasons.

[63]Moving on to what was allegedly said to the claimant, we don’t know anything of the circumstances in which he was told about the comment. We had no detailed evidence about that at all. Again, we cannot assess the scope for the claimant to mishear or misunderstand. The claimant’s own approach to this part of the case and evidence on the point has been inconsistent. In relation to this, we refer to paragraphs 31 and 32 of respondent’s counsel’s written outline submissions.

[64]In conclusion on this point, we are not satisfied that the claimant’s present recollection of what he was told about the comment is accurate. Moreover, we are not remotely satisfied that the alleged comment, or anything along those lines, was actually said by Miss Jablonska.

[65]The alleged comment was the only piece of evidence from which an inference of race discrimination against any of the people accused of it could potentially be drawn.

[66]During the grievance and probation review/disciplinary process, witnesses, including almost all of the claimant’s black colleagues, were asked to identify examples of racially discriminatory treatment. Most of them came up with nothing, and none of them came up with anything other than the treatment the claimant complains about. Unfortunately for the claimant, what he complains about is simply what he perceives as unfair treatment. Unlawful discrimination cannot be inferred from unreasonable or unfair treatment by itself. There has to be something more – something that in and of itself is suggestive of a racist motive – and there is nothing in that category.

[67]As we are not satisfied that the alleged comment was made, we take it out of account. When we do so, the claimant’s case becomes, essentially that the mistreatment (as he perceives it) that he suffered was to do with his race because it was mistreatment and he is a black man. We are sure that that is genuinely how he feels; but it is not, objectively assessed, support for a race discrimination claim.

[68]In his written closing submissions, the claimant stated: “How can it be 9 people of colour were dismissed between May 2017 and May 2018 in customer service department alone, and 5 other black people left because of bullying, discrimination.” Those allegations were not made in any evidence that was before us. Moreover, the things the claimant said he was relying on to support his case that his mistreatment was because of his race were set out in the written record of the preliminary hearing in front of Employment Judge Camp in July 2018. None of these allegations was mentioned. As explained above, the claimant was ordered to inform the respondent and the tribunal in writing within 21 days from the date that written record was sent to him, providing full details, if he was relying on anything else in this respect. He did not respond to that order.

[69]Given we are not satisfied that the alleged comment was made, the claimant’s discrimination complaints cannot succeed, because there are no facts from which we could decide, even in the absence of any other explanation, that the respondent breached EQA section 13. But we shall nevertheless consider all of the complaints.

[70]The next allegation is: “On or about 16 October 2017, Miss Jablonska removed the claimant’s name from an email distribution list”. This is a reference to the email sent to everyone other than the claimant that may have had a probation review form attached to it.

[71]There is no dispute that the claimant was not sent the email. On the evidence, this was not a case of Miss Jablonska removing the claimant’s name from an email distribution list or prepopulated address field, but of her neglecting to add his name to a list of names to which the email was to be sent.

[72]The email in question was not relevant to the claimant. It was for those who were going to have their probation reviews after her holiday and after 29 October 2017, the date by which Miss Jablonska wanted the forms returned to her. The claimant’s probation review was going to be before she got back. Had it been sent to the claimant, it could have been positively misleading. Arguably, Miss Jablonska’s mistake was not the failure to include the claimant’s name, it was including the name of his colleague, Mr Conte, who, like the claimant, was having this probation review meeting before 29 October 2017.

[73]The claimant was specifically asked by the tribunal whether there was any prejudice caused to him by the email not being sent to him, over and above the psychological effect on him of discovering it hadn’t been. He could not identify any. He did not complain at or before the meeting that he had with Miss Jablonska that he was disadvantaged by not having the form in advance. It was, as we have already mentioned, the same form that had been used for the 30 and 60 day probation review meetings. No one from the management side took him to task for not having filled it in before the 90 day meeting. The first time the claimant complained about anything to do with the email or the form was, we note, after his probationary period was extended.

[74]We also note that if Miss Jablonska had wanted to ‘get at’ the claimant in some way, then not sending him this email was a bizarre way to go about doing so, given that he was not disadvantaged by this, nor was there any evidence that Miss Jablonska sought to cause him disadvantage.

[75]Technically there are two issues here: was there less favourable treatment?; if there was, was it because of race?

[76]Although we appreciate that ‘less favourable’ means something different from ‘unfavourable’ or detrimental, we are not satisfied that this was even unfavourable or detrimental, let alone less favourable, treatment.

[77]Miss Jablonska could not say why she had not sent the email to the claimant. (This is something that does not surprise us in the slightest; why would she remember?). We think the most likely reasons for what happened were either: oversight, of the kind that happens every day, in businesses up and down the land (we note there is no allegation of the claimant or other black colleagues being repeatedly missed out of email communications – on the evidence, this only happened once to the claimant); alternatively, the claimant was deliberately not included because that email did not apply to him, because his probation review meeting was going to be before 29 October 2017.

[78]As to the suggestion that this was, or might have been, to do with race, this is an example of something we mentioned above: that the claimant’s real complaint is about him being singled out as an individual. The majority of the recipients of that email were black. We can see no logical basis for saying that the reason the claimant was not included, when they were included, was something to do with race.

[79]The next allegation is that: on the same day, Miss Jablonska did not provide the claimant with the form that staff on probation filled in at the end of each month. The “form that staff on probation filled in at the end of each month” means the probation review form, filled in at roughly 30 day intervals.

[80]If this is a separate allegation from the one that we have just dealt with, it is not made out on the facts. The evidence suggested that the claimant had a copy of the form, or at least had access to one. In any event, this was not race discrimination, for the same reason that failing to send the email to the claimant wasn’t.

[81]The next allegation is: the claimant’s probation period was extended.

[82]The claimant’s probation period was extended because he failed to meet a performance target which was computer monitored and which, we accept, could not be manipulated by any relevant manager, and because the claimant failed three out of four calls that were assessed.

[83]The claimant all but accepted that he was fairly judged to have failed those three calls. Whether he accepts that or not, we do. Given this, the only way in which a manager could have been responsible for his failure would be if his worst calls were deliberately chosen for assessment, or something like that. There is no evidence to support the claimant’s allegation that the calls to be assessed were deliberately chosen in this way. The respondent’s evidence was that they were chosen at random and were not chosen by the manager(s) to whom this complaint relates: Miss Joblonska and (possibly) Mr Aly. That allegation is anyway fanciful, as it would require a manager to devote many hours of their time, to the exclusion of all their other duties, listening into the claimant’s calls; and it would have to be a manager who was French speaking, which rules out Miss Jablonska.

[84]Moreover, all the evidence around this whole probation process contradicts the claimant’s case that management, and Miss Jablonska in particular, wanted him to fail. First, had they wanted him to fail, why extend his probation period rather than just have him fail it and dismiss him? Secondly, when we look at what Miss Jablonska said to the claimant at and in connection with the 90 day probation review meeting, she comes across as doing her best to be positive and encouraging and to have the claimant look at the extension of the probation period as an opportunity. Thirdly, why on earth would the respondent want to ‘get rid’ of an employee who was performing as well as the claimant believes himself to have been, and have to recruit someone else, and train them up?

[85]In addition, this is yet another example of alleged discrimination where most of the obvious comparators – those in the French teams who passed their probation periods at the first attempt – are the same race as the claimant. The evidence is that of the ten individuals who started as employees around the same time as the claimant, eight or nine (including the claimant) were black, and five of those eight or nine passed.

[86]In summary, there was no less favourable treatment here and nothing that happened was anything to do with race.

[87]The next allegation is: the claimant’s probation period was extended after only 78 days, sooner than anyone else’s.

[88]This allegation is factually incorrect. His probation period was extended after 87 days, not 78. Even if we take out of account an individual identified, in a document produced by Mr Lumsden showing what happened to members of the claimant’s team at their 90 day probation reviews, as “Associate 7” (someone who the claimant seems to be alleging has been invented), we still have two individuals whose probation periods were extended prior to the 90 days, one on day 84 and one on day 87, as well as the claimant’s colleague Mr Conte who was supposed have had his probation review meeting on day 87, but whose meeting was put off to day 90 only because of the unavailability of HR.

[89]There was, then, no less favourable treatment here. And as with all other allegations, not only is there no basis for inferring a discriminatory motive, there is evidence positively suggesting that race was not a factor – in this instance, the fact that a number of the claimant’s black colleagues had their probation meetings on day 90 or later.

[90]The next allegation is: the claimant’s 90 day probation review meeting was arranged only two weeks or so after his 60 day meeting, in circumstances where he was on holiday for one of those two weeks.

[91]There were fifteen days between the meetings. This was due to the lateness of the 60 day meeting, not because the 90 day meeting was early. The claimant has made no allegations, let alone put forward any evidence, about the 60 day meeting being deliberately held late. As explained above, managers at the time believed 90 day meetings had to be on day 90 at the latest where someone’s probationary period was going to be extended. The claimant’s meeting was not on day 90 because Miss Jablonska was going on holiday. Even if it had been on day 90, there would still only have been 18 days between the two meetings. The extra three days could not have made any difference.

[92]We do not think the closeness of the two meetings would have been a problem had the claimant passed his probation. The key issue for him was that he did not pass. We have already explained why the probationary period was extended and why we think race had nothing to do with it.

[93]The next allegation is: the claimant was underpaid on 3 November 2017 by 8 hours worth of pay: £81.20. That underpayment was never corrected. He was also underpaid by £81.20 on 1 December 2017 and this underpayment was corrected, but not until 2 weeks later.

[94]This is a confused and confusing complaint, which seems to have been put slightly differently every time it has been advanced. Before us, the claimant was alleging that two deductions had been made, although whether they were the same deductions referred to in the list of issues was unclear.

[95]The first alleged deduction the claimant raised with us stemmed from a tax code issue. The claimant believed he had been told by HMRC that tax code issues were a matter between him and the respondent. If that is what he was told, it is incorrect. The claimant’s tax code is a matter between him and HMRC. The respondent is obliged to make particular deductions of PAYE based on the tax code given to it by HMRC. If the tax code is wrong, then the claimant can claim the money back on a tax return. It is nothing to do with the respondent.

[96]The second allegation of a deduction, as explained to us, was about the twoweek period between the respondent’s payroll department making a mistake and that mistake being corrected. There is no evidence whatsoever that this was anything other than a payroll mistake – the kind of thing that happens within large companies and organisations from time to time, due to ordinary human and/or computer errors. The claimant has not identified any individual within payroll, or not in payroll but who might have had power over payroll, who might have wanted to deny him £81.20 for two weeks out of racially motivated spite. Anyway, we find the idea that such an individual might have existed almost preposterous.

[97]The next allegation is: Miss Jablonska and (at Miss Jablonska’s instigation) Mr Aly made up allegations against the claimant on the basis of which he was suspended and, ultimately, dismissed.

[98]There is no evidence at all that the allegations made by Mr Aly came from Miss Jablonska. The only evidence is that they came from Mr Aly himself. The sole basis for making this as an allegation against Miss Jablonska is the claimant’s apparent belief that it is so; and he seems to believe this because he thinks, without evidence, that she was the architect of a conspiracy to do him down.

[99]We note it is the claimant’s own case that: he did not want to be alone in a room with Miss Jablonska (or, indeed, with Miss Jablonska and Mr Aly); the reason for this was that she (or they) might make something up about what happened. He may not at the time have said this in terms, but that is what it amounted to. We also note the lack of any evidence to the effect that Mr Aly had anything personally against the claimant, to do with the claimant’s race or otherwise. We also note that it was not just Mr Aly who suggested there was a conversation between the claimant and him during which the claimant said something about why he had not wanted to have a private meeting with Miss Jablonska. For example, Mr A Aden told Mr Sorensen that the claimant had said, “he didn’t want to go with her because anything can happen”.

[100]In the absence of direct evidence from Mr Aly, we are not satisfied that the claimant specifically mentioned sexual harassment. We note that Mr Aly himself changed his account a little in relation to this, in that what he told Mr Sorensen was that the claimant had said “she could make anything up”, and that he merely believed this to be a reference to sexual harassment. However, Mr Aly had no discernible reason completely to invent something.

[101]We also ask ourselves why it was that the claimant did not want to be in a room with Miss Jablonska, if it was not because he feared that she would make something up to his detriment.

[102]In all the circumstances, we think the claimant did say something to the effect that he did not want to be alone in a room with Miss Jablonska because of the fear that she would invent allegations, of some kind, against him.

[103]Addressing the claimant’s complaint specifically:103.1 nobody made anything up;

103.2 Miss Jablonska had nothing to do with it;

103.3 Mr Aly made his allegation, probably, because he thought that is what had occurred. He may have misunderstood or misheard or jumped to the wrong conclusions, but that is not the same as making it up;

103.4 the key to this for us is that the claimant refused to comply with a management instruction because he thought, without any objective basis, that his managers would conspire against him to make allegations up about him;

103.5 whether the allegations that he thought were going to be made up about him were to do with sexual harassment or something else, it remains a very serious matter that, it seems to us, the respondent could not, as a reasonable employer, ignore.

[104]We might not ourselves have done as the respondent did, but this is not an unfair dismissal case and there is no reason at all in the evidence to think that race had anything to do with it, nor, indeed, to think that a relevant comparator in accordance with EQA section 23 would have been treated any differently.

[105]The next allegation is: that the claimant was suspended from work from 7 November 2017.

[106]On the evidence, what the respondent did here was to follow its standard practice. Perhaps it should not be the standard practice and perhaps it was not necessary to suspend the claimant, but there is no evidence that it was racially motivated, nor that the claimant was being less favourably treated in this respect. We also accept that, around this time, other employees, of different races, were also suspended.

[107]There was, in summary, no less favourable treatment and the claimant was not suspended because of anything to do with race.

[108]The next allegation is that the claimant’s suspension was unreasonably prolonged, in that it was 43 days’ duration.

[109]Although we entirely understand why it felt to the claimant like an unreasonably long period of suspension, a 43-day suspension is not remotely out of the ordinary in our experience. Again, there is no evidence of less favourable treatment, nor of any possible racist motivation by anyone.

[110]The next allegation that has not been struck out is about the decision to terminate the claimant’s employment.

[111]Rightly or wrongly, fairly or unfairly, Mr Griffith decided the claimant’s employment should be terminated for the reasons he gave, outlined in the letter of dismissal. The claimant’s case against him, and against all of the other decision-makers, boils down to a conviction that they should have made a different decision.

[112]If and to the extent the claimant is pursuing any allegation that Miss Jablonska maliciously manipulated Mr Griffith into deciding to dismiss the claimant, we reject it as completely unfounded.

[113]As already mentioned, the claimant suggests against Mr Griffith, and various others, that they ignored his black witnesses and only listened to white managers, but that is not the case. The fact is that the claimant’s witnesses did not support the claimant’s case to the extent the claimant believes they did. Moreover, Mr Griffith (and other managers) took into account, and indeed accepted, most of what the claimant’s witnesses had to say about things which they could speak to from their own knowledge, e.g. about Miss Jablonska’s weaknesses as a manager, brought about by inexperience.

[114]Again, there was no relevant less favourable treatment, nor anything that had anything to do with race.

[115]The next allegation is: Mr Cooke failed to get evidence from people who supported the claimant.

[116]There is no dispute that Mr Cooke did not interview a number of people, and relied instead on the interviews that Mr Griffith had carried out. He conceded that with hindsight it might have been fairer had he spoken directly to those individuals himself. He only interviewed the claimant and Miss Jablonska.

[117]It seems to us that if Mr Cooke’s investigations were inadequate, the inadequacies were not biased one way or the other. He had evidence from most of the claimant’s colleagues. To an extent, that evidence, collected by Mr Griffith, supported the claimant. To accept the claimant’s case that there was unlawful discrimination, we would have to assume Mr Cooke thought that if he spoke to the claimant’s colleagues himself, they would support the claimant and not support Miss Jablonska, and would say something materially different from what they had said to Mr Griffith. Why would Mr Cooke have thought this?

[118]In any event, there is no basis at all in the evidence for us to conclude that the reason Mr Cooke decided not to interview people himself, but simply to rely on the notes of Mr Griffith’s interviews (which had been passed on by HR), was anything other than expediency, or had anything to do with race. Equally, we have no good reason for thinking that there was any relevant less favourable treatment, i.e. for thinking that Mr Cooke would have acted differently in connection with a similar grievance from someone else.

[119]The next allegation is about Mr Cooke not upholding the claimant’s grievance.

[120]Mr Cooke partly upheld the claimant’s grievance. The parts of the grievance that were not upheld are, to the extent they form complaints in these proceedings, allegations we have not upheld either. On the evidence that was before him, we do not find it at all surprising that Mr Cooke made the decision he did. On that evidence, we would have found any other decision surprising.

[121]The claimant believed and believes the evidence of direct discrimination to be overwhelming. Objectively, that is not so; the truth is the opposite; the evidence of direct discrimination was and is non-existent.

[122]There was no less favourable treatment and, again, nothing here to do with race.

[123]The next allegation that has not been struck out is about Mr Lumsden not upholding the claimant’s grievance on appeal.

[124]What we have just said in relation to Mr Cooke’s decision not to uphold the grievance applies at least equally to Mr Lumsden’s decision. Mr Lumsden was a very senior and experienced manager who did not know any of the individuals involved in the claimant’s grievance. He undertook what was, in relation to an employee with less than 2 years’ service and whose employment had ended, a very thorough investigation. He produced a detailed, reasoned outcome letter. We can find nothing worthy of criticism in what he did or how he did it. Again, the claimant’s case against him is simply that the claimant disagrees with his conclusions. But his conclusions seem to us to have been fair and reasonable, based on the evidence he had gathered. It is simply not the case that he ignored the claimant’s points, or the claimant’s witnesses, or the claimant’s own evidence. Once again, there was no less favourable treatment, nor any treatment that had anything to do with race.

[125]The final direct discrimination complaint that has not already been struck out is about Mr Sorensen not overturning the decision to dismiss the claimant.

[126]Mr Sorensen flew across North America and the Atlantic to deal with the claimant’s appeal, and dealt with it extremely conscientiously. Again, we note that the claimant was a member of staff who had been on their probation period and had had less than 2 years’ service. In many companies, such an individual would simply have been summarily dismissed with pay in lieu of notice and without appeal. That would not have been fair in the claimant’s case, but it would have been perfectly lawful.

[127]We cannot identify anything specific that the claimant says Mr Sorensen should have done differently other than reach a different conclusion about dismissal. Although we might not ourselves have concluded dismissal was appropriate, it was an understandable and not unreasonable decision to make, given the claimant’s allegations of conspiracy against Miss Jablonska and Mr Aly.

[128]Mr Sorensen, just like all the other decision-makers, made the decision he made in good faith, simply because he thought it was the correct one, based purely on the merits of the issue he was dealing with. On the evidence, he did not treat the claimant less favourably than he would have treated anyone else in the same position, and his decision was not materially influenced by the claimant’s race, or by racial considerations more generally. Victimisation

[129]We have already noted our view that there is, in fact, only a single complaint of victimisation, but that we are going to proceed as if all of the complaints identified by Employment Judge Dyal as victimisation complaints are before the tribunal, even though we do not think they are.

[130]The first issue is whether the claimant did one or more protected acts. The alleged protected acts are his grievances of October 2017. We find that the claimant did do a protected act, if only because of the fifth potentially relevant email, sent by him on 26 October 2017, at 22:11 hours, to a Ms Boxall. In that email there is reference to someone making a comment about “common little monkeys”. That comment has obvious potentially racist connotations in the context and what the claimant seems to us to have been complaining about in relation to the comment was those connotations.

[131]The first victimisation allegation we need to deal with is about Miss Jablonska and Mr Aly making up allegations against the claimant on the basis of which he was suspended and ultimately dismissed.

[132]In relation to the identical direct discrimination complaint, we have already made findings about what happened and have already identified the reasons things happened as they did. Those reasons had no more to do with the claimant’s grievances than they had to do with his race. In addition, there is no evidence that on or before 3 November 2017, the date Mr Aly made the allegations, he or Miss Jablonska were even aware of the grievance or grievances, let alone that they were about race discrimination.

[133]The next potential victimisation complaint is about the claimant’s suspension. Again, we have already dealt with this as a complaint of direct race discrimination and made relevant findings.

[134]The decision to suspend was made by Mr Griffith. He told us he was not aware of the grievances at all at the time of the suspension. The evidence around this is inconclusive, in that Mr Cooke suggested he was appointed to investigate the grievance(s) by Mr Griffith. We are, though, satisfied that Mr Griffith, even if he knew the claimant had raised a grievance, did not know the details of it, nor that it involved allegations of unlawful discrimination.

[135]In any event, the sole reason the claimant was suspended was that that was the standard process when there were allegations of misconduct of this kind. There is no basis in the evidence for an inference that the suspension had anything to do with the fact that the claimant had raised a grievance of discrimination.

[136]The potential victimisation complaint about underpayments of wages has been struck out.

[137]The remaining potential victimisation complaints all duplicate direct discrimination complaints that we have already dealt with. They concern dismissal, Mr Cooke’s handling and decision not to uphold the claimant’s grievance, and Mr Lumsden’s and Mr Sorensen’s decisions. In relation to these potential complaints, we refer to everything stated above in connection with the identical discrimination complaints, in particular about why they took the decisions they took.

[138]Further, none of Mr Cooke, Mr Lumsden, and Mr Sorensen, was aware of the grievance or grievances of discrimination relied on as the protected act or acts by the claimant. Even if there were some evidence suggesting their decisions might have had something to do with the claimant’s grievances of October 2017 – and there is no such evidence – we would be entirely satisfied that, in fact, they had nothing to do with them.

[139]For all these reasons, the claimant’s entire claim fails and is dismissed. RECONSIDERATION JUDGMENT The claimant’s application for reconsideration is refused.

The facts

[1]This decision has been made without a hearing, in accordance with rule 72(1). The claimant’s reconsideration application is refused because there is no reasonable prospect of the original decision being varied or revoked.

[2]The final hearing in this case took place in Leicester and Nottingham in late April 2019 before a full tribunal (me – Employment Judge Camp – sitting with Mr Robbins and Dr Looker). Our reserved decision, with full written Reasons, was limit – the claimant made a written reconsideration application. I refer both to the tribunal’s decision and the application.

[3]Where practicable – and it is practicable here – any application for reconsideration must in the first instance be considered by the Employment Judge who chaired the tribunal that made the original decision, i.e., in this instance, by me.

[4]I don’t intend to address each and every point the claimant makes in his reconsideration application. Generally:4.1 almost all of the points made are points that were raised during the hearing, and which we took into account but in relation to which we disagreed with the claimant’s analysis, or which could reasonably have been raised during the hearing but weren’t and which, had they been raised, would not have made any difference to anything;

4.2 any points not raised during the hearing and which could not reasonably have been raised there provide no proper basis for altering our decision;

4.3 looking back through the decision and taking into account everything the claimant has put in the reconsideration application, I cannot see anything that, even arguably, is an error of law;

4.4 the way in which we approached the evidence and the findings that we made was an approach and were findings that it was open to us to take 1 of 4 and make. The fact that the claimant may disagree, and the fact it is conceivable that a different tribunal might have done things differently, do not provide any grounds for reconsideration. Similarly, our decision is fully reasoned and the fact that the claimant disagrees with our reasoning does not make it inadequate;

4.5 the claimant’s reconsideration application does not engage to any significant extent with one of the fundamental points that led to him losing this case, namely that there was nothing of substance supporting a finding that race – or him having complained of discrimination – was a factor in any of the relevant decision-making (and, moreover, that in many instances, the evidence positively suggested that race was very unlikely to be a factor). See, in particular, paragraphs 50 to 58 and 65 to 69 of the Reasons. Even if there are some mistakes in our decision – and I don’t think there are – and they were corrected, that fundamental point would still be there;

4.6 connected to the previous point, in the reconsideration application itself, the claimant repeats the allegations he made during the hearing to the effect that he was singled out. Even if he was singled out – and we made findings about the extent to which he was – this would not help his race discrimination case. This is because most of his relevant former colleagues are also black; if he was less favourably treated, most of the potentially valid comparators are the same race as him.

[5]Dealing specifically with some of the claimant’s points:5.1 we considered and dealt with all of the victimisation complaints the claimant wanted to pursue even though most of them were not, in our view, properly before the tribunal (see paragraph 9 of the Reasons);

5.2 Employment Judge Britton did not make separate deposit orders for victimisation and direct discrimination complaints. He set out a list of claims, some of which were just direct discrimination complaints and some of which were said to be both direct discrimination and victimisation complaints, and ordered a £5 deposit per claim;

5.3 what we identified as mistakes in previous decisions were mistakes in the claimant’s favour;

5.4 the claimant writes, “there is no evidence showing that Mr. Griffiths was not aware of Felly’s grievance or its contents and why did he manage to send all his interviews with Felly’s witnesses to Mr Lee Cook?” We dealt with Mr Griffith’s state of knowledge in paragraph 134 of the Reasons. As set out in paragraph 118, the material was sent to Mr Cooke by HR, not by Mr Griffith;

5.5 the claimant seems to be suggesting that a former colleague who gave evidence on his behalf has, since the hearing, been mistreated by one of the individuals who the claimant was accusing of direct race discrimination and victimisation: Miss Jablonska. Even if there were evidence of victimisation of this former colleague by Miss Jablonska, I don’t see how that would be relevant to the claimant’s case. If the allegation is that she is inclined to victimise people, I note that we decided she could not have victimised the claimant because she was unaware of any relevant 2 of 4 grievance about discrimination at the relevant time (see paragraph 132 of our decision);

5.6 the claimant also suggests that since the hearing, someone else has complained about Miss Jablonska. He writes, “investigation involves Mafine Sylla...who is also black and she is going against KJ [Miss Jablonska] and her bullying/racism”. Even if I assume that Mafine Sylla has recently made an allegation of racism against Miss Jablonska – and this is not an assumption I would necessarily make because it may well be that her complaint is about bullying and that it is the claimant and not Mafine Sylla who is alleging that the bullying was racist – there is no significant chance that this information would cause us to alter our decision. A bare, unproven allegation of race discrimination by a third party in 2019 is evidentially insignificant in relation to w

5.7 hat the reason was for particular treatment of the claimant 18 months or so earlier. Further, if there had been some evidence before us that Miss Jablonska was racially prejudiced in general terms (and there was not), this would not change the findings we made as to what happened and why things happened. Moreover: the main thing the claimant’s claim was about – his suspension and dismissal – was not something for which, on our findings, Miss Jablonska was at all responsible (see paragraphs 98 & 112); in relation to the claimant’s other principal complaint – about his probationary period being extended – we decided, on the evidence, that it had been extended because, objectively, he had not achieved the requisite standard (see paragraph 82);

5.8 following on from the previous point, there has to be finality in litigation. It is not appropriate to re-open a race discrimination case just because, after trial, someone else alleges race discrimination against one of the alleged discriminators. I can envisage a case where a finding that a particular individual was not racially prejudiced was so central to a decision in the respondent’s favour, and where after the decision evidence emerges that that individual is in fact racially prejudiced that is so compelling, that it would be appropriate to set aside the decision on reconsideration, but this is very far from being such a case;

5.9 I am not sure what the claimant’s argument is about the disciplinary action taken against Miss Jablonska and an alleged refusal to include in the bundle the written record of a formal warning. The respondent all along accepted that some of the criticism of her management was legitimate and that she had been spoken to formally. The claimant’s claim was about whether she (and others) were discriminators, not whether she was a good manager. There was nothing in the evidence to suggest that she had been formally or informally taken to task because of discriminatory behaviour;

5.10 finally, the claimant asks, “Why there were so many inconsistencies in Lee Cook, Karolina and Wess Griffiths testimonies?”. There weren’t. There were a handful of unimportant inconsistencies, stemming from genuine differences and/or changes in recollection, of the kind that are present in almost every case. 3 of 4

The facts

[1]This is the written version of the reasons given orally at the hearing for the decision that the claimant should pay some of the respondent’s costs, written reasons having been requested by both parties within the 14 day time limit.

[2]This is a costs hearing. The claimant is not here. I don’t know why.

[3]The main basis of the respondent’s costs application is rule 76(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;

[4]I dealt with this case at a final hearing with Members in Leicester and Nottingham in late April 2019. Our reserved decision, with full written reasons, was sent to the parties on 29 July 2019. The claimant’s claim failed entirely.

[5]The claimant had intimated that he was going to appeal the judgment, but it seems no appeal has been made. He did apply for reconsideration, on 12 August 2019, and my decision dismissing the reconsideration application (without a hearing in accordance with rule 72(1) on the basis that there was no reasonable prospect of the original decision being varied or revoked) was sent to the parties on 15 August 2019.

[6]I refer to both the original reserved judgment, and the reconsideration judgment, and the reasons for them, by way of background.

[7]By way of further background, there was a preliminary hearing before Employment Judge Britton on 12 and 16 November 2018 at which the Employment Judge struck out a couple of complaints and ordered deposits in relation to all of the claimant’s other complaints. The deposit order was dated 4 December 2018 and was sent to the parties on 6 December 2018. The claimant was ordered to pay a £5 deposit in relation to each allegation not later than 28 days from the date the order was sent and he did so.

[8]The reasons for making the deposit orders include, around paragraph 28 of Judge Britton’s Reasons, the assertion that the claim had little reasonable prospect of success, essentially, because:8.1 the one thing that the claimant might rely on in order to prove that the reason for the treatment was race was that somebody had told him that the woman identified as the main perpetrator of discrimination had made a particular comment;

8.2 there seemed to be scant evidence that she made that comment.

[9]One of the bases upon which we ultimately decided the case against the claimant was the same: we were not satisfied that that comment was made; we decided that that comment was the only thing that might conceivably have reversed the burden of proof pursuant to section 136 of the Equality Act 2010 – it was the only thing that might have satisfied us that the reason the claimant was treated in the way he was treated was his race.

[10]So far as concerns the rest of Employment Judge Britton’s decision in relation to deposits, suffice it to say that the reasons why the claimant ultimately lost at the final hearing mirrored, to a substantial extent, the reasons why Judge Britton made the deposit order.

[11]We are therefore in a situation where, in accordance with rule 39(5)(a), “the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown”, the “paying party” here being the claimant, the “specific allegation or argument” being the allegations in relation to which the deposit order was made, and the allegations in relation to which the deposit order was made being every single allegation of discrimination or victimisation that was not struck out by Employment Judge Britton.

[12]In other words, because the claimant has persevered with the claim after the deposit order had been made and has lost on essentially the same basis the deposit order was made (or, at least, a significant part of the reasons why the claimant lost included the reasons for which the deposit order was made), then the claimant is deemed to have acted unreasonably for the purposes of rule 76 – unless the contrary is shown – and a costs order may be made under rule 76. The Tribunal still has a discretion as to whether or not to make a costs order, but what is normally the biggest hurdle in the way of obtaining a costs order – showing unreasonable conduct – has been overcome.

[13]The “contrary is” not “shown”; I know of nothing making it reasonable for the claimant to continue with this claim in the teeth of the deposit orders.

[14]The respondent made an application for costs under cover of an email of 13 August 2019. The application was made on a number of different bases, the most straightforward of which is the basis upon which I have actually made the deposit order, namely unreasonable conduct because of rule 39(5).

[15]At the start of the hearing, I indicated to Mr Harris, respondent’s counsel, that provisionally, based on what I had read, my view was that a deposit order should be made on that basis; but that no other costs should be ordered. My provisional view ended up being my final view.

[16]I have a discretion to make a costs order or, even where the claimant has acted in the most unreasonable way possible, not to make a costs order. To explain why I think it is appropriate for me to exercise my discretion in the respondent’s favour and make a costs order, it is necessary to set out some of the procedural history of the costs application itself.

[17]The email applying for costs was referred to me and I directed that the following orders should be made: 1. within 28 days [by 12 September 2019; these orders were made on 15 August 2019] the claimant must provide his written response to the application, setting out in detail his reasons for why a costs order should not be made, including any relevant information as to his financial means; 2. within a further 14 days, i.e. within 6 weeks of the date of this order, both parties must let the tribunal know in writing what their views are: as to how long any costs hearing should be; as to whether the costs hearing should be dealt with by the full tribunal that dealt with the final hearing or whether they are content for it to be dealt with by Employment Judge Camp sitting alone; as to what further case management orders, if any, should be made to deal with the respondent's costs application.

[18]The reason for suggesting that costs could be dealt with by me sitting without Members was purely practical. There is no impediment in the Rules. However, all other things being equal, a costs hearing following a final hearing would normally be dealt with by the full tribunal that dealt with the final hearing. But getting a date when me and both members can attend which is also convenient to the claimant and respondent can sometimes be quite tricky. It seemed to me we would probably get a costs hearing sooner if it was just dealt with by me alone. Had the claimant written saying he was not happy for it to be dealt with by me alone, I would have directed that it be heard by the three of us who dealt with the final hearing.

[19]Nothing came from the claimant in response to that order; he completely failed to comply with it.

[20]There was a small amount of delay in referring the claimant’s non-compliance with the application to me. The respondent’s solicitors wrote to the tribunal on 1 October 2019 highlighting the claimant’s non-compliance and saying that they were happy for the costs application to be dealt with by me sitting alone. I then decided to make an unless order against the claimant, in these terms: Unless the claimant complies within 10 days with orders 1 and 2 of 15 August 2019 he will be debarred from defending the respondent’s costs application without further order, i.e. the costs hearing will still take place, but he will not be permitted to rely on any evidence at that hearing and will only be entitled to participate in that hearing to the extent permitted by the tribunal. Amongst other things, the claimant must state whether he objects to the costs hearing taking place before Employment Judge Camp sitting alone and, if he does, what his objections are.

[21]The unless order was emailed out on 9 October 2019, so the 10 days would have expired on 19 October 2019. The claimant did not comply and accordingly the unless order took effect. The matter was unfortunately not referred to me for a little while, but on 26 November 2019, at my direction, the parties were written to in the following terms on 26 November 2019, in accordance with the second sentence of rule 38(1): 1. my order has not been complied with, within the 10-day time limit or at all, and the unless order therefore takes effect; 2. this means that the claimant is debarred from defending the respondent’s costs application, i.e. the costs hearing will still take place, and he can still come to it, but he will not be permitted to rely on any evidence at that hearing and will only be entitled to participate in that hearing to the extent permitted by the Tribunal; 3. given that no one has objected, the hearing will be before Employment Judge Camp sitting alone.

[22]The claimant has not attended today. I do wonder whether he is actually still at the address which he originally gave, but we have not had any returned post from that address, or any bounce-back from the email address that we were using. It may be that he has gone back to France. Be that as it may, I can only deal with this on the basis of the evidence that I have. The evidence I have in relation to costs from the claimant’s side is non-existent.

[23]Had the claimant come along to this hearing, notwithstanding his noncompliance with the unless order, I would very likely have been willing to consider any evidence he presented, at least as to his financial means. His financial means are relevant and although the Rules say I “may have regard to” them, I am, in practice, in accordance with EAT case law, obliged to take them into account.

[24]As to why it is appropriate for me to make a costs order, I first think about the claimant’s ability to pay. There is, though, no evidence at all, or even information, about his financial means. The claimant has twice been asked for this. He simply failed to respond. He has managed to get himself effectively debarred from defending. It is his choice not to provide information, evidence and submissions. I therefore assume that his means are reasonable and that his ability to pay affects neither whether a costs order should be made nor the amount of any costs order (although the amount of the costs order is going to be a matter for another day).

[25]Secondly, the claimant pursued all of his claim that he could in the teeth of the deposit order. A deposit order is supposed to make somebody think twice about their case; to make somebody think really very carefully as to whether or not it is worthwhile continuing to pursue a claim or part of a claim that is very weak indeed. In these proceedings, the preliminary hearing where the deposit order was made followed a preliminary hearing (coincidentally in front of me) where I identified potential weaknesses in the claimant’s case and where, if memory serves, I set up a deposit / strike out hearing on the basis that there did not seem to be very much in what the claimant told me from which a Tribunal could infer that discrimination or victimisation had taken place. The claimant had, then, already been warned about the weaknesses of his case before the deposit order was made and that order was a further ‘shot across the bows’.

[26]Unfortunately, it appeared during the final hearing and from his reconsideration application that that claimant had still not got his head around the fundamentals of the claim. The problem he had is that what he was complaining about was that he had been singled out. That was what he kept saying, in various different ways. The overwhelming majority of his colleagues – most of the people he was saying had been more favourably treated than him – were also black. This made it improbable that the reason for any less favourable treatment was that he is black. If almost all of the comparators, or potential comparators, are the same race as you, then the reason why they are more favourably treated than you is unlikely to be race. It is not impossible, but highly unlikely. A race discrimination case is not about an individual being treated badly for some reason peculiar to themselves. The reason for the treatment has to be that individual’s race. The claimant just did not – would not – get this.

[27]As for the victimisation claim, there really was nothing to that at all other than the claimant’s belief that the reason for particular treatment was him complaining of discrimination. That is how it emerged at trial. It was hopeless.

[28]It was not that the claimant did not understand what he was being told, I do not think. He is clearly an intelligent and knowledgeable man. It was that he was not prepared to accept that there could be any good reason for him being – in his eyes – mistreated other than the fact of his race. So, he stubbornly pursued the claim. He was given costs warning letters from the respondent – I shall go into these in a moment; a deposit order was made; he had been warned at a previous preliminary hearing that he needed to address this part of his case and did not really do so.

[29]By rule 39(5)(a), the claimant is deemed to have acted unreasonably. He has chosen not to provide information and evidence to the effect that he would be unable to pay if a costs order were made. In all the circumstances, I can see no good reason not to exercise my discretion to award costs in the respondent’s favour against the claimant. So that is what I do.

[30]I shall now explain why I am not accepting the rest of the respondent’s costs application.

[31]The respondent is seeking its entire costs of the proceedings, or least its costs from the date when it sent its first costs warning letter. The case that has been put forward on the respondent’s behalf by Mr Harris of counsel as to why additional costs should be awarded over and above those I have in fact awarded is, essentially, that it was unreasonable conduct for the claimant to pursue the claim, at least after the first costs warning letter.

[32]The first costs warning letter was 31 August 2018. It refers to what I said at the preliminary hearing. It offered a plain ‘drop hands’ settlement. It is not a very detailed letter, but there is nothing wrong with it. It says, essentially, that, for the reasons highlighted by me at the preliminary hearing, the claim is just not going to succeed.

[33]There was a second costs warning letter, sent on 23 October 2018. It goes through the claim in more detail; it also highlights various things which I said during the preliminary hearing and it sets out in clear terms why, in the respondent’s solicitors’ submission, the claim has no reasonable prospect of success. It warns the claimant that the respondent will be seeking its costs and it offers to ‘drop hands’, but also says that if the claimant withdraws the respondent will write off a debt of £3,977.94 plus interest, which the claimant allegedly owed the respondent.

[34]Both costs warning letters were sent before the deposit and strike out hearing. If the decision of Employment Judge Britton at that hearing had been that the entire claim should be struck out on the basis that it had no reasonable prospect of success, then I think the respondent would have been in a strong position to argue that they should have their costs from 31 August 2018 onwards because of the costs warning letter of that date. But the default position in the Tribunal is no costs; we have a no costs regime. The costs rules envisage that people can get their costs if a claim has no reasonable prospects of success. I think that what the respondent is trying to do here – and I am not criticising the respondent for attempting this – is to persuade me that it is unreasonable conduct to pursue a claim that has little reasonable prospect of success where a costs warning letter has been sent. That is not what the Rules say.

[35]It does not follow from the fact that someone has lost and lost badly that their claim was misconceived from the start. I have to think about costs and prospects of success without the benefit of hindsight. Another Judge – Employment Judge Britton – looked at the case without that benefit in 2018 and he decided that only small parts of it had no reasonable prospect success and that most of it did have little reasonable prospects of success. Except where rule 39(5) applies, it is not unreasonable conduct to pursue a claim with little reasonable prospect of success and pursuing a claim with little reasonable prospect of success does not in and of itself trigger a liability for costs.

[36]I appreciate that the respondent would rather the employment tribunal rules on costs were not as they are, but I cannot say that it was unreasonable for the claimant to continue with the claim up to the point where the deposit order was made. The deposit order resulted from a thorough assessment of the prospects of success by an independent Employment Judge. It told the claimant, or should have told him, that, in all probability, he was not going to win. At that point, it became unreasonable for the claimant to continue, but not before, it seems to me. Before the deposit order was made, this was no different from any other case where a claimant is pursuing a weak but not completely hopeless claim.

[37]Given the costs rules and regime we have, I do not think it is appropriate, in my discretion, to award costs against the claimant before the point in time when the deposit order was made and took effect. That is why I made the order that I have made.

[38]Addendum [not part of the Reasons given orally]:38.1 Rule 39(5)(b) requires the deposits to be paid to the respondent.

38.2 The costs order relates to costs from 3 January 2019 onwards because that is the date when claim would have been struck out in accordance with rule 39(4) had the claimant not paid the deposits. My thinking was, as above, that the claimant ought to have taken stock after the deposit order was made and that the reasonable thing for him to do would have been not to have paid them.

38.3 As discussed during the hearing, I have sent this to the County Court for detailed assessment because it was impracticable, given the material I had, for me to do any kind of proper assessment of costs from 3 January 2019 onwards, because the respondent was unwilling to limit its costs claim to £20,000, and because I think the County Court is better equipped than the Tribunal to carry out the detailed assessment of costs.