Employment Judge BrewerIn person for claimantMr C Baran (instructed by Counsel) for respondentDate 15 February 2023
JUDGMENT
The unanimous judgment of the Tribunal is that all the claimant’s claims fail and are dismissed
REASONS
[1]This case was heard over three days and an oral judgement was delivered on the third day. After the hearing concluded, and as the Tribunal members were packing up, our clerk came into the hearing room and said that the claimant had asked whether he had to attend the Tribunal on the following day (it should be explained perhaps that the case was originally listed for five days). We asked the clerk to tell the claimant that judgement had been delivered and the case was concluded. However, in the circumstances, we felt it was appropriate to provide the claimant, and therefore of course the respondent, with full written 1 of 12 reasons so that he is clear what took place and our reasons for finding against him.[2]At the hearing we heard evidence from the claimant, and, on behalf of the respondent, from Mr Gowdy, Mr Carter, Ms Field and Mr Uden. We had an agreed bundle of documents and written witness statements from all the witnesses. At the end of the evidence, we heard submissions from both parties, and we thank everyone for their assistance in coming to a conclusion in this case.
Issues
[3]The claimant brought four claims of direct race discrimination. The claimant relies on his Egyptian citizenship as the protected characteristic.[4]The four allegations of direct discrimination were set out at a preliminary hearing which the claimant attended before EJ Blackwell. Those issues are asa. Mr Carter’s refusal of the claimant’s annual leave request to travel to Egypt,b. the non-payment of holiday pay,c. Mr Gowdy asking the claimant “are you a British Citizen”, andd. delay in the grievance process.
Law
[5]We set out here the key principles in relation to claims for direct discrimination.[6]Under section 13 Equality Act 2010 (EqA), there are two issues:(a) less favourable treatment and(b) the reason for that less favourable treatment. These questions need not be answered strictly sequentially (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337).[7]Given the treatment must be “less favourable” a comparison is required, and a comparator must “be in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class” (Shamoon above).[8]The burden of proof is set out in section 136 EqA. The leading cases on the burden of proof pre-date the Equality Act (Igen Ltd v Wong 2005 EWCA Civ 142 and Madarassy v Nomura international Plc 2007 EWCA Civ 33, [2007] IRLR 246) but in Hewage v Grampian Health Board 2012 the Supreme Court approved the guidance given in Igen and Madarassy.[9]By virtue of section 136, it is for a claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, absent any explanation from the respondent, that the respondent has discriminated against the claimant. If the 2 of 12 claimant does that, the burden of proof shifts to the respondent to show it did not discriminate as alleged.[10]In Madarassy the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. This merely gives rise to the possibility of discrimination. Something more is needed. Any inference about subconscious motivation has to be based on solid evidence (South Wales Police Authority v Johnson 2014 EWCA Civ 73).
Findings of fact
[11]We make the following findings of fact. References below are to pages in the agreed bundle.[12]The respondent is a group of companies offering a wide range of business services. The claimant remains employed by the respondent at its Burton site which provides logistics services.[13]In June 2020 the claimant booked holiday for the following summer, 2021. He was due to travel to Egypt to see his family. The claimant holds dual Italian and Egyptian citizenship.[14]The claimant’s holiday scheduled for 2021 was approved by the respondent.[15]As part of its COVID-19 strategy, the UK government introduced various travel and other restrictions in the course of 2020 and 2021. In relation to foreign travel a so-called traffic light system was created. For our purposes the material issue was that there should be no travel to countries on the Red or Amber Lists unless the need was exceptional.[16]In mid-2021 Egypt was added to the Red List countries.[17]As government policy changed, so the respondent altered and updated its own holiday and travel policy. The policy relevant to this case is at [50]. The relevant section is as follows “annual leave for immediate travel to [red and amber list] countries for holiday or leisure purposes will not be approved…”[18]The policy goes on to say that if an employee has an essential travel need, they will: “need to provide proof of a negative result before returning to work at the end of the quarantine”.[19]Reference to a negative result is of course a reference to a negative COVID-19 test.[20]The updated policy was provided to the respondent’s general managers on 19 May 2021. They then cascaded it down to team leaders who in turn updated their teams. 3 of 12[21]We are satisfied that at all material times the claimant was aware of the new policy.[22]On 25 June 2021 the claimant asked the respondent if he could extend his holiday to Egypt by one day [51]. This was approved by his general manager, Mr. Carter on 25 June 2021 [52]. At this point, although Egypt had been added to the Red List of countries, Mr. Carter was unaware of that fact.[23]As part of the cascading down of the new holiday policy to staff, the respondent’s site brief made it clear that any travel plans to a Red or Amber List country should be cancelled or rearranged [55]. The brief confirmed that all holiday requests, including existing requests and pre booked holidays would be reviewed. Any travel in breach of the policy would be recorded as “unauthorised unpaid”.[24]Mr. Carter had the task of reviewing every holiday application to a Red or Amber List country by his staff at the Burton site (which included agency staff) and determining whether to approve or not approve that holiday based on the reason given by the individual for the travel.[25]On 1 July 2021 Mr. Carter became aware that Egypt was on the red list, and he advised the claimant that his leave was no longer approved. At this point the claimant’s reason for travel was to see his elderly parents.[26]On 6 July 2021 the claimant wrote a letter to the respondent which appears from [91]. This was a grievance concerning the disapproval of his leave to travel to Egypt.[27]In the grievance letter, the claimant asserted that he had what he called one of the “acceptable reasons” for travel to a Red List country and he said that evidence of that reason was attached. What was attached to that letter were three sick notes from early 2021, when the claimant was off sick with abdominal issues, and a letter from the University Hospitals of Derby and Burton NHS Trust to the claimant in response to the claimant’s GP's referral letter for an appointment at a Gastro clinic at the Trust. The letter was a standard letter informing the claimant that given the extraordinary circumstances in which the NHS then found itself, there would be a delay in finding him an appointment.[28]The respondent received the claimant’s grievance on 14 July 2021 and confirmed receipt to him on 15 July 2021 [95].[29]On 16 July 2021 Mr. Carter confirmed to the claimant that his decision in relation to the claimant’s travel plans had not changed and that therefore if the claimant did travel to Egypt he would be booked on the respondent’s system as “unauthorised unpaid” and that this would trigger an investigation [96].[30]In response to Mr. Carter, the claimant said that he had been advised by his GP to get treatment abroad [96]. The claimant relies on the letter from his GP at [166A] (which was not available to Mr Carter at the relevant time). In any event, it is entirely clear that the GP did not advise the claimant to seek treatment abroad. 4 of 12 31. 16 July 2021 was the claimant’s first day of leave although he did not travel to Egypt until the following day, 17 July 2021.[32]On 20 July 2021, Lewis Edwards, another of the respondent’s general managers, wrote to the claimant to invite him to a meeting to discuss his grievance [97].[33]The claimant did not respond to that letter and a follow up letter was sent to the claimant by Ms Field, employee relations specialist on 27 July 2021 [98]. She asked the claimant to contact his team leader or HR to update them of his then current situation. This was followed up by an e-mail on 28 July 2021 to the claimant [99].[34]In response, the claimant confirmed he was abroad but said that he would try his best to attend an online meeting [99]. That meeting was arranged for 29 July 2021 and the claimant confirmed he would attend [100].[35]Whilst in Egypt, the claimant attended a doctor for a blood test and had his blood pressure taken. He sent copies of various documents to the respondent by e-mail which included the blood test results and his tickets.[36]The respondent began an investigation and although it is unclear, it seems that because the claimant had raised a grievance, there was no separate investigation into his unauthorised absence. Instead, this was considered as part of the grievance investigation.[37]The grievance was dealt with by Mr. Edwards. He interviewed Mr. Carter on 5 August 2021 [109].[38]The claimant attempted to return to work on 31 August 2021 but was sent home as he needed to await the results of a COVID-19 test. This was in accordance with the respondent’s policy.[39]On 1 September 2021, Ms Field emailed the claimant to say that a meeting would be arranged to provide to him the grievance outcome [114]. The claimant responded that he had not had the opportunity to provide further evidence and he was then asked that if he wished to provide further evidence, he must do so by no later than 1 September 2021 [116].[40]On 1 September 2021 the claimant sent an e-mail attaching what he says was evidence of his essential reason for travelling to Egypt. He said that he is an Egyptian national and that he had not seen his “elder parents for two years” and goes on to state that “it was essential [for] me to travel for urgent medical check-up with my own doctor in Egypt” [117].[41]A grievance feedback meeting was arranged for 10 September 2021, but the claimant declined to attend [122]. In the circumstances Mr. Edwards decided to provide a written response to the claimant’s grievance [123]. In short Mr. Edwards found as follows: 5 of 12a. the claimant was going to travel to Egypt no matter what,b. the claimant was aware of the policy and was given a specific instruction to re-equest holiday and provide evidence of his need to travel,c. NHS delays were not in themselves a reason to travel to a Red List country.[42]The grievance was not upheld.[43]As part of his grievance, the claimant alleged that Mr Gowdy had asked him if he was a British citizen. Mr. Edwards found that a question was asked about the claimant’s nationality, but this was a necessary part of the consideration of the holiday request. Specifically, there was no finding that the claimant was asked whether he was a British citizen.[44]The claimant appealed against the grievance outcome [128].[45]The appeal was dealt with by Mr Uden, operations director.[46]A meeting to discuss the appeal took place on 6 October 2021 [131].[47]Mr Uden provided his outcome in a meeting and in writing on 4 November 2021. In short, he found the claimant did have an essential need to travel and he reinstated the claimant's holiday pay.[48]The claimant was paid the outstanding holiday pay in the December 2021 payroll run.[49]The claimant commenced early conciliation on 18 September 2021. The claimant received his early conciliation certificate on 22 October 2021.[50]The claimant presented his claim on 23 October 2021.
Discussion and conclusions
[51]We remind ourselves that the claims are for direct race discrimination and the claimant relies on the racial group of Egyptian citizenship. Put briefly, he says he was treated less favourably because of his Egyptian citizenship [21] asa. Mr Carter’s decision to disapprove the claimants booked holiday to Egypt,b. the withholding of holiday pay,c. Mr Gowdy’s alleged question whether the claimant was a British citizen,d. delay of the grievance process.[52]We shall deal with each of these allegations in turn. 6 of 12 Mr Carter’s decision[53]The claimant booked his trip in 2020 before the traffic light system was in place and before Egypt was a Red List country. He simply booked a holiday. This is clear from the holiday booking form [48] which was approved by the respondent on 6 August 2020.[54]Once the respondent’s new policy was in place, following changes in government policy, a system of holiday review was put in place. As part of that, all travel to Red or Amber List countries was disapproved. If an employee or agency worker still wished to travel to a Red or Amber List country, they had to reapply for the holiday with evidence of the essential need to travel. The claimant was asked to do this on 2 July 2021 which the claimant confirms on page 2 in his witness statement.[55]Thus, as with everyone else in the position of the claimant, the holiday to what was a Red List country, in this case Egypt, was disapproved. There was at this stage no less favourable treatment.[56]At the point Mr. Carter took that decision he had received no evidence from the claimant of any, let alone any essential need for the claimant to travel to a Red List country. He had simply disapproved a holiday. We accept that the claimant may have mentioned, in conversation with Mr. Carter, that he had a reason to travel, but the key point is that he had not provided evidence of that fact at the point Mr. Carter took his decision.[57]It is key to the claimant’s case that having provided his evidence of what he says was an essential need to travel, his holiday was still disapproved.[58]However, we accept the evidence of Mr. Carter that as the claimant did not reapply for holiday, and provide his evidence along with that application, but instead raised a grievance and, importantly, a grievance against his, Mr Carter's, decision, that grievance went to HR and he, Mr. Carter, did not see it at the time and thus did not see any of the evidence which the claimant says he attached to the grievance.[59]The claimant’s case is that his leave was disapproved by Mr Carter despite him providing evidence of an essential need to travel whereas non-Egyptian citizens’ leave was allowed for the same reasons.[60]This claim cannot possibly succeed. Simply put, Mr. Carter only took one decision to disapprove the claimant’s leave at which point he had not seen any evidence of any essential need to travel from the claimant. The claimant failed to reapply for the leave including all of his evidence in that application. Instead, he raised a grievance which took the matter out of Mr Carter’s hands.[61]It follows that Mr. Carter did not treat the claimant less favourably than he treated others, He treated the claimant in exactly the same way that he treated everyone who wished to travel to a Red List country.[62]We are satisfied that the claimant has not shown facts from which we could 7 of 12[63]Even if we are wrong about that we are satisfied that the respondent has Non-payment of holiday pay[64]The detailed allegation which the claimant put in relation holiday pay is as “notwithstanding that approval to travel to Egypt was refused, the claimant’s absence was treated as unauthorised and he was not paid holiday pay until some four months later”[65]The claimant names as comparators 4 employees who were given permission to travel. We find that they were not appropriate comparatives because their leave was approved whereas of course the claimant’s leave was not approved which is the reason he was not paid holiday pay. We are therefore left to construct a hypothetical comparator which we find is a non-Egyptian citizen who went to a Red List country without authorisation but was paid holiday pay within a four month period.[66]There is no evidence from which we could infer that the respondent would have treated the hypothetical comparator differently to the way the claimant was treated, but more obviously the reason why the claimant’s holiday pay was withheld was a consequence of the policy and the clear warning given generally to staff in site briefings [54] and specifically to the claimant [96] that travel to a Red List country without approval would lead to the absence being booked as “unauthorised unpaid”.[67]We are satisfied that the claimant has not shown facts from which we could[68]Even if we are wrong about that we are satisfied that the respondent has Mr Gowdy[69]This is the allegation that Mr Gowdy asked the claimant whether he was a British citizen on or about 3 July 2021.[70]There is no evidence about this allegation in the claimant’s witness statement. Under cross examination when being asked about his grievance letter, the claimant said, “Mr Gowdy did ask me what my nationality was”. That of course is not consistent with the allegation but is in fact consistent with the grievance outcome. At point 8 on [126] Mr. Edwards concluded that “a question was asked about your nationality” and he concluded that this was necessary as part of considering the alleged need to travel to a Red List country. 8 of 12[71]We accept the evidence of Mr Gowdy, who we found to be a credible witness, that he did not ask the claimant whether he was a British citizen. We accept the evidence of the grievance outcome as set out above.[72]We find that asking a person what their nationality is, as part of information gathering in order to decide whether they had an essential need to travel to a Red List country was not less favourable treatment.[73]We are satisfied that the claimant has not shown facts from which we could[74]Even if we are wrong about that we are satisfied that the respondent has Grievance delay[75]Finally, we turn to the complaint that the grievance was delayed. In his submissions the claimant confirmed that he was concerned with the delay between 29 July 2021 and the conclusion of the grievance.[76]The sequence of events for these purposes was as follows:a.29 July 2021: online discussion about the claimant’s grievance,b.5 August 2021: Mr. Carter interviewed by Mr. Edwards [109],c.10 August 2021: the claimant provided further evidence to the respondent [104],d.24 August 2021: the claimant asked for feedback of his grievance having sent all of his evidence [107],e.31 August 2021: the claimant emailed the respondent about the outcome of his grievance and said he had not had a chance to provide all of the evidence he would like to provide [115],f.1 September 2021: the respondent told the claimant that now he was back in the country a grievance outcome meeting would be arranged [114],g.1 September 2021: the claimant was told that if he had further evidence, he should send it to the respondent by 5 September 2021 [116],h.1 September 2021: the claimant provided further documentation [117].[77]An outcome meeting was arranged for 10 September 2021. The claimant said he would not attend and so the respondent decided to provide a written outcome [122 and 123 – 127]. 9 of 12[78]On 11 September 2021 the claimant appealed against the outcome of the grievance [128].[79]The claimant’s appeal was passed to Mr Uden, operations director. On 27 September 2021 Mr Uden wrote to the claimant inviting him to an appeal hearing on 6 October 2021 [131].[80]The grievance appeal hearing duly took place. Mr Uden then took time to consider the appeal and delivered the outcome at a meeting with the claimant on 4 November 2021. We do note the claimant's evidence that in fact he got the outcome on 6 October 2021 and if that is correct then the period of ‘delay’ is between 29 July 2021 and 6 October 2021 which is a period of around 10 weeks.[81]In considering this matter we keep in mind that an appeal is inevitably dealt with at a higher level of management than that under which the original decision was taken, and in particular in this case Mr Uden is one of the most senior people in the respondent. Furthermore, Mr Uden was not based in Burton and had to travel to meet the claimant.[82]In the Tribunal's experience, 10 weeks to deal with a grievance and an appeal, particularly given that the claimant was out of the country for some of the time, is not excessive. The claimant essentially asserts that the respondent could have dealt with the matter more quickly. No doubt that is correct. They could for example have given the claimant the outcome online whilst he was away. But had they done so they may not have got the extra evidence which the claimant provided after his return to the UK.[83]We also note that it is difficult to ascertain the basis upon which the claimant asserts that the reason for any delay was his Egyptian citizenship because during the hearing the claimant was notably reluctant to ask any of the respondent’s witnesses about this or to put to them directly that when they acted in relation to his grievance, first there was delay and second that it was because of his race. He had to be reminded a number of times that this was a matter he had to put to witnesses.[84]To find for the claimant in relation to this allegation requires that we find that the following all delayed dealing with the claimant’s grievance and all did so because of the claimant's race: Mr. Edwards, general manager, Ms Garner, people advice team, Ms Field, ER specialist and Mr Uden, operations director.[85]Whilst of course it is possible that they all either consciously or subconsciously delayed the grievance because of the claimant's race, we consider it inherently unlikely. We had the benefit of hearing from Ms Field and Mr Uden. They gave straightforward answers to questions, their responses were internally consistent and consistent with the contemporaneous documentation. If they did not know the answer to a question or could not recall, they said so. We found both witnesses to be credible.[86]The inference we draw from the facts we have found is that if by delay the claimant means unreasonable or unacceptable delay (as opposed to, for 10 of 12 example, simply taking a bit longer to do something than is ideal) he has not made out his case.[87]Such delay as there was, was minimal and for wholly explicable reasons such as waiting for the claimant to return from holiday to give him the grievance outcome in person, diary commitments, room unavailability and so on.[88]Furthermore, Mr Uden upheld the grievance and reinstated the claimant’s holiday pay and given the facts in this case we find that that was a generous outcome and if Mr Uden was minded to discriminate against the claimant he could have very easily dismissed the appeal.[89]The fact is that the claimant alleged that he had an essential reason for travel which he says was related to his abdominal issues, which was the reason he was off work at the beginning of 2021. He alleged that he was required to go to Egypt for a medical appointment in order to undergo tests in relation to that problem. But it is entirely clear from the evidence that he had no evidence of any appointment and no evidence that any such appointment took place. He did not have an endoscopy or any investigations or treatment in relation to his abdominals issues. He had his blood pressure taken from which it was established that he had hypertension and he had a number of blood tests most of which appear to be perfectly normal. In other words the evidence the claimant provided, which Mr Uden accepted evidenced an essentially to travel, did not relate to the medical issue which is referred to in the sick notes and indeed the GP referral letter and in those circumstances, as we say, the reinstatement of holiday pay was a decision which could easily have gone the other way and, as we have said, the inference we draw from that is that there was no discrimination at least on the part of Mr Uden and if he is taken out of the equation then the period of ‘delay’ by the claimant is between 29 July 2021 and the date he raised his grievance on 11 September and we do not consider that this can be counted as a delayed grievance.[90]We are satisfied that the claimant has not shown facts from which we could[91]Even if we are wrong about that we are satisfied that the respondent has[92]Thus, all of the allegations of direct race discrimination fail and are dismissed.