Mr P M Singh v Colchester Borough Council: 3200170/2019

EMPLOYMENT TRIBUNALS

Case No 3200170/2019

Between

Mr P M SinghClaimant

Colchester Borough CouncilRespondent

Before

Employment Judge M Warren

Ms McLaughlin (instructed by counsel) for claimant

Ms Cullen (instructed by counsel) for respondent

Date 28 July 2020

JUDGMENT

[1]The Claimant’s claims of harassment related to sex and of direct sex discrimination are dismissed upon having been withdrawn. RESERVED JUDGMENT

[2]The judgment of the Tribunal is that: 1. the Tribunal lacks jurisdiction to hear the Claimant’s claims of direct race discrimination and harassment related to race in relation to Issues A, B(i)-(iii) and (F), because they were presented out of time, and it is not just and equitable to extend time; 2. the Claimant’s claims of direct race discrimination succeed in relation to Issues (D), (H) and (I); 3. the Claimant’s remaining claims of direct race discrimination, and all his claims of harassment related to race, are not well-founded and are

REASONS

[1]By a claim form presented on 18 January 2019, after an ACAS early conciliation period between 5 November and 19 December 2018, the Claimant complained of race and sex discrimination.

[2]The Claimant’s sex discrimination claim was withdrawn at a Preliminary Hearing on 13 May 2019, and dismissed by a Judgment sent to the parties on 25 May 2019.

[3]A preliminary hearing took place on 13 May 2019 before EJ Warren. A draft list of issues had been prepared for that hearing, but important elements, including dates, were missing. The Judge ordered the Claimant to provide further information by 3 June 2019; the parties were ordered to lodge a final, agreed list of issues by no later than 24 June 2019; they did not comply with those orders. The Hearing

[4]At the beginning of the hearing, it was agreed that the three days allocated to the case would be sufficient to hear only the evidence and submissions on liability, and to allow the Tribunal some time on the last day for deliberations. A hearing timetable was agreed and complied with. The Tribunal then planned to meet later in March 2020 to complete its deliberations. However, the sudden lockdown, caused by the Covid-19 pandemic, led to the postponement of that chambers day. The earliest date on which it could then be rearranged was 22 May 2020, when the panel was able to conduct the majority of its deliberations remotely by telephone conference call; the panel reconvened for final deliberations on 14 July 2020. The Tribunal apologises to the parties for the delay in providing this judgment.

[5]We spent some time at the beginning of the hearing establishing a definitive list of issues; the final, agreed list is appended to this Judgment. Ms Rokad, Counsel for the Respondent, was instructed to object to issue (A) on the basis that, although referred to in the ET1, it was framed there in a slightly different way, and not explicitly as an act of discrimination; moreover, it was not in the original list of issues. The Tribunal decided that, although the circumstances of the clarification were unsatisfactory, it was right to allow the matter to go forward. There was no prejudice to the Respondent: Ms Rokad did not maintain that she could not deal with the allegation as now clarified; indeed, she confirmed that the Respondent was able to deal with all the allegations.

[6]We had an agreed bundle of documents on issues of liability, running to some 530 pages; there was a separate mitigation bundle. We asked the parties to provide us with an agreed, essential reading list, and explained that we would not read other documents, unless taken to them in oral evidence or submissions.

[7]The Claimant gave evidence. For the Respondent, we heard from Ms Jessica Douglas (Strategic People and Performance Manager), Mr Vaughan Johnson (ICT Business Services Manager), and Mr Kieran Johnston (Strategic ICT Manager). Because of the similarity of the names of two of the Respondent’s witnesses, and a third person, Mr Neil Johnstone (the account manager of one of the Respondent’s suppliers, Idox), we have used both their first name and surnames at certain points in the judgment, to avoid confusion.

[8]Ms Rokad explained that the Respondent had hoped to call Mr Wayne Murray, who was the Claimant’s line manager in his first role, but he has been suffering from serious ill-health.

[9]Issue (F) in the original list of issues named Ms Sarah Taylor (ICT Manager) as the alleged discriminator. In clarifying the issues, it emerged that she was also the decision-maker in relation to other allegations. The Respondent did not call her to give evidence. Although she no longer works for the Respondent, the Tribunal pointed out that that is no bar to calling a witness. There was no application for a witness order. The Tribunal observed that we may be invited to draw an inference from the non-attendance of a relevant witness, and that the Respondent might wish to give a more detailed explanation as to why Ms Taylor did not attend the hearing; none was provided. Findings of fact The composition of the ICT team

[10]The Claimant worked in the Respondent’s Information and Communication Technology (‘ICT’) team. He defines his racial group as ‘Asian and non-white’. His evidence was that he was the only person of colour in the ICT team. In her statement, Ms Douglas took issue with this and named Jurgita Armonaite and Bogdan Stanclu as other minority ethnic employees in the department. Although both are of Eastern European heritage, both are white. Mention was also made of an apprentice, Mr Aminur Rashid, who is BAME; he was

[11]Ms Douglas was asked in cross-examination what specific steps were taken to ensure that there was no discrimination in the organisation. She replied that all managers were trained in the Equality Act, and the importance of not discriminating against people with protected characteristics was explained to them. However, Mr Johnson confirmed that he had had no specific training in race discrimination, and Ms Douglas confirmed that no employees were given training in unconscious bias. No evidence was led as to training received by Ms Taylor.

[12]According to statistics to which we were referred, only 4% of the Respondent’s workforce is BAME, but 16% of dismissals are of BAME employees. Ms Douglas acknowledged that this painted a worrying picture. Although she said in oral evidence that it would be something which the Respondent ‘would need to look at’, she could not identify any specific steps taken to address, or even further to investigate, this disparity.

[13]The independent investigator who dealt with the Claimant’s grievance (Ms Karen Barnes) found that there was a ‘culture of close friendships in ICT’, which two other leavers had raised as a concern. She also recorded that ICT managers preferred to deal with personnel matters themselves, without involving HR. In her interview, Ms Loraine Cook of HR noted that ‘HR has had difficulty keeping tabs on who is appointed and why within ICT.’ The Claimant’s interview in July 2017

[14]The Claimant has worked in IT for more than 20 years. In May 2017 he applied for the position of ICT Business Partner, a full-time, permanent position with the Respondent. He attended an interview on 6 July 2017 and was interviewed by Ms Taylor and Mr Vaughan Johnson. He was unsuccessful. There were five other candidates; three scored higher than him; the candidate who was appointed, Ms Amanda Howard, scored 116 out of 150, the Claimant 98.

[15]There was a dispute as to what Mr Vaughan Johnson said to the Claimant after the interview. According to the Claimant, as Mr Johnson accompanied him out of the interview room, he told him that he was ‘the best candidate, but as I was highly technical, he would like to consider me for a more technical and better role’. Mr Johnson denied telling the Claimant he was the ‘best candidate’ and we accept his evidence; not all the candidates had been interviewed at that point, and Mr Johnson would not have had an opportunity to discuss their respective merits with Ms Taylor. We find it more likely that Mr Johnson simply complimented the Claimant on his technical skills, which the Claimant later interpreted in the way that he did, in the light of the offer subsequently made to him.

[16]According to Mr Johnson, Ms Taylor recognised that, while the Claimant had not been successful for the Business Partner role, there may be another, more technical role better suited to his skills, that of Technical Programme Specialist (‘TPS’). He phoned the Claimant later the same day, told him informally that he had not been successful in the Business Partner role, and asked if he might be interested in the other role; the Claimant said that he would.

[17]On 13 July 2017 the Claimant was formally notified by HR of the outcome in relation to the Business Partner role. He asked for feedback, which Mr Johnson did not provide. Mr Johnson’s explanation was that, because he had approached him about the TPS role and explained why it was considered more suitable, the feedback had already been given. When the Claimant accepted the TPS role, he assumed that he no longer wanted formal feedback. We accept that explanation.

[18]The Claimant alleges that Mr Johnson told him in October 2017 that Ms Taylor had said that she specifically wanted to hire a female candidate for the Business Partner role. We accept Mr Johnson’s evidence that Ms Taylor had merely commented that Ms Howard was a very able candidate, and it was good that the gender balance would be improved within the team. The appointment of the Claimant to the TPS role in August 2017 (Issue A)

[19]The Respondent had earlier advertised the TPS role as a permanent position at an annual salary of £35-40,000, with a closing date of 31 May 2017. That advert went out, was live and expired before the Claimant applied for the Business Partner role.

[20]On 19 July 2017 Mr Christopher Wall emailed the Claimant as follows: ‘I am the Technology Services Manager at Colchester Borough Council and currently have an opening for a Technical Programme Specialist. Vaughan has sent me your CV and on the back of reading this I would like to see if you would like to come to Rowan House next week to have a chat and find out more about the role?’

[21]The Tribunal notes that there is no suggestion that the position was fixed-term, rather than permanent. We heard no evidence as to when that change was decided upon. There does not appear to be an obvious explanation for it; although there was an organisational review, it was not published until November 2018, more than a year later, and well into the new financial year. This leaves open the possibility that the change was connected in some way with the fact that it was being offered to the Claimant. On the other hand, none of the other unsuccessful Business Partner candidates were offered roles with the Respondent.

[22]The Claimant was interviewed for the TPS role on 21 July 2017 by Ms Taylor and Mr Wall, and was offered it by a letter of 23 August 2017 as a six-month fixed term contract from 29 August 2017 to 28 February 2018 at a grade of CMG7. That was a higher salary than was offered for the Business Partner role. The letter states: ‘the post has been specifically funded for a limited period. Should the funding be withdrawn before the final date above, your appointment will cease with due notice.’

[23]The Claimant said in his statement that the offer was made ‘with a promise that I would be offered the role on a permanent basis in the future’. His oral evidence, however, was that he was told there was a possibility of permanent appointment, but no guarantee. That is consistent with his grievance, in which he wrote that he was ‘given an impression that after six months this role will be converted to a permanent role’. When she was interviewed for the Claimant’s grievance Ms Taylor said: ‘that they could only offer a fixed term role to see if it would fit into the establishment. [Ms Taylor] said that she had the strategic view that we may not need perm[anent] role’.

[24]The Claimant accepted the TPS role and signed the contract; he started on 29 August 2017. The 11-week review

[25]Initially the Claimant’s line manager in the TPS role was Mr Wall, who was succeeded by Mr Murray. The Claimant had an 11-week review, dated 20 November 2017, in which Mr Murray commented as follows [original format retained in all quotations from contemporaneous documents]: ‘Strong working relationships have been built in this time that is starting to spread outside of the team which is really important. His ability to own and complete tasks is a genuine asset to the team which I can really rely on.… Not only does he conduct himself with professionalism in the office but he can also have a laugh and socialises with the team outside of the work which is important.’

[26]The Claimant commented as follows: ‘since my joining at the CBC, each day has brought me great confidence and pleasure. I have recently been assigned some very exciting and challenging projects and in fact, with the greater responsibility given I am enjoying my role even more than earlier. I am really appreciating growing with Wayne supporting my day-to-day working. In his role of my line manager, Wayne by giving the ownership of my jobs has made my daily tasks rather achievable. I feel more empowered now and I strongly believe that I can make a difference and support my team more effectively.’

[27]The Claimant accepted in cross-examination that he had ‘no issues’ with Mr Murray before 14 November 2017’. The probation review

[28]A probation review took place on 14 November 2017. The Claimant originally alleged that Mr Wayne Murray ‘falsified’ the probation review document. The two versions are set out in the grievance report. An amendment was agreed at the meeting, but was not incorporated. Ms Douglas explained that this was an oversight; the Claimant did not pursue the matter as an allegation of discrimination, and we make no findings about it. The alleged exclusion from Technical Design Authority (“TDA”) during the TPS role (Issue B(i)) and later during the Project Manager role (Issue C(i))

[29]From time to time in the course of both roles, ‘technical design authority’ (‘TDA’) meetings took place, to which the Claimant was not invited. Mr Vaughan Johnson’s evidence was that these were strategic meetings, at a managerial level, to assess the whole programme of work, whereas the Claimant’s role was to deliver discrete IT projects. The Claimant observed that Mr Ben Pyett who, like the Claimant, reported to Mr Murray and was not a manager, attended from time to time; the Claimant did not, even though he asked to do so, both verbally and in writing. The technical programme meeting on the 29 January 2018 (Issue (B)(ii))

[30]On 29 January 2018, a technical programme meeting took place, which the Claimant was not asked to attend. Ms Taylor summarised the meeting in an email dated 29 January 2018. Although Ms Taylor sent that email to fellow managers, it was also copied to Mr Pyett, but not to the Claimant. The Claimant identified this as a further example of his being excluded. He relied on the reference in that email to ‘Idox moving to Azure’ and explained to the Tribunal that this was a project that was ‘eventually handed over to me’; he accepted that it was not his project as at the date of the meeting. The MFD project (Issue (B)(iii))

[31]In an email to Mr Murray of 8 March 2018, the Claimant wrote: ‘Although I have not been involved in MFD project, I will appreciate if I can be involved as I can make useful contribution to this project.’

[32]The MFD project related to the rolling out of new multifunctional devices, such as large photocopier/printers. The Claimant agreed in cross-examination that, as of 8 March 2018, this was not his project. Nonetheless, he maintained that he ‘could have assisted’. The appointment to the Project Manager role in April 2018

[33]By email dated 16 January 2018, Ms Laura Crimmins of HR wrote to the Claimant to confirm that the TPS role would be extended by a month to 31 March 2018, following discussions with his managers.

[34]On 27 February 2018 the Claimant attended a 26-week review. He wrote as follows: ‘I realise I might have gone beyond the ‘central focus’ of my job role to get various jobs done. I now understand that I need to get the tasks completed by only advising and making recommendations to the business partners in future. I also feel I would need to request again being a part of various technical meetings which took place since I was given the role. On various occasions I was uninvolved and hence unaware about various ongoing projects and the expectations from me and other project resources, which limited me in some ways in defining my range of responsibilities.’

[35]On 7 March 2018 Mr Jason Granger wrote an email asking if a vacancy could be found for the Claimant: ‘he explained to me his fixed term contract was coming to an end, extended once and they are not renewing as he was brought in for the Wi-Fi project which is now delivered. He wants to stay at CBC. He had noted the ben [sic] processing managers job. I explained I would need experience etc. I mentioned that he should look at MJ area or keep his eye open in the customers area over the next month.’

[36]A role as ICT Project Manager was identified. Mr Vaughan Johnson was asked about the circumstances of this when he was interviewed for the Claimant’s grievance: ‘this all happened at late notice with a matter of hours or days to get this in place. We would normally plan this over a longer period of time. It was confusion over emails, because of this that meant the salary got confused as it was a mistake. ST suggested a fixed term PM role and I wondered if this was a temp PM role that PS could help with. Joanne Clark had handed in her notice and was leaving and not being replaced because of the ICT review and David Kay was leaving so it would have been helpful to have help over the next 6 months because we did not have any definite idea of what the future holds because of the ICT review’.

[37]The Respondent offered the Claimant a six-month fixed-term contract as an ICT Project Manager from 1 April 2018 until 30 September 2018. The same rubric was included in the offer letter about the post being ‘funded for a limited period’. In an email of 29 March 2018 the Claimant thanked Mr Johnson ‘for organising this on such short notice’. The Claimant’s salary on appointment to the Project Manager role in April 2018 (Issue (E))

[38]There was an issue about the salary for this role. The Claimant contended that he was assured that his pay would be matched at its current level. In fact, it was some £2,700 p.a. less, but he accepted the role because he needed the work.

[39]Mr Vaughan Johnson’s evidence was that a quick decision was needed, in order to avoid the Claimant leaving the organisation, and he wrongly assumed that the Project Manager role was graded CMG8. An email from him to Ms Cook of HR on 26 March 2018 confirms that he tried to arrange for the Claimant to be offered the role on that grade, but was told by her that: ‘this was evaluated at CMG9 [a lower band CMG8] in 2016. If Preet has been offered the role and you have the budget you could offer it at the top of the grade CMG9 in order to keep him. Any changes need to be looked at and the post re-evaluated.’

[40]Mr Johnson emailed the Claimant on 29 March to say that, having liaised with HR, the role would be offered to the Claimant at CMG9 and a case then put forward for it to be re-valued at CMG8, although no promise could be made. In an email of 12 June 2018 the Claimant wrote to Ms Taylor, making the point that he had ‘shown my complete dedication towards CBC and have even accepted a pay cut to continue this relationship’. The alleged ‘dressing down’ by Sarah Taylor in March 2018 (Issue (F))

[41]Around 27/29 March 2018 the Claimant spoke to Mr Vaughan Johnson and said to him words to the effect that he (the Claimant) worked very hard. He alleges that when he saw Ms Taylor a day or two later, she pulled him aside into the kitchen and gave him what he describes as a ‘dressing down’. He alleges that she said: ‘how dare you say that you work hard?’.

[42]In his contemporaneous interview as part of his grievance, he gave a slightly different account: ‘Sarah Taylor said to me “you said that you work the hardest – that means that you are saying that others do not work hard.” This is not what I was suggesting when I said to [Mr Johnson] that I worked hard. I got a real dressing down by [Ms Taylor] in kitchen regarding this.’

[43]Ms Taylor was asked about this incident in the course of the Claimant’s grievance. She said this: ‘[Ms Taylor] said in a meeting on 14 June, [the Claimant] was taking on some of the tech tasks of [the Business Partner] role. It was his decision to take on the [Project Manager] role. [Sarah Taylor] said I don’t see [Business Partners] taking credit for [the Claimant’s] work. [Vaughan Johnson] talked about [the Claimant] saying he worked harder than others in the team. KBE asked if [Ms Taylor] spoke to [the Claimant] about this comment. [Ms Taylor] said yes, in the kitchen and I said – I understand you said you work harder than anyone. It was an off-the-cuff comment in the kitchen. [the Claimant] replied – I wouldn’t say this, but yes, I do.’

[44]Ms Taylor’s account suggests that she understood the Claimant to be saying that he worked harder than other employees, and was implicitly being critical of their work rate. We note that, even on the Claimant’s account, Ms Taylor took him to one side to have this discussion with him; it was not overheard by others. The decision not to permit the Claimant to apply for the Business Partner in or around May 2018 (Issue (D))

[45]On 25 April 2018, the ICT Business Partner role was readvertised through the Respondent’s ‘Job News’. The closing date was 9 May 2018. The advertisement specified that ‘previous candidates need not apply’. The Claimant was interested in the role, but Mr Vaughan Johnson told him that he could not apply for it. On 1 May 2018 the Claimant wrote to Mr Johnson, asking how he could be considered for it.

[46]The Respondent’s pleaded case was that its ‘normal policy’ was not to allow people who had applied for a role unsuccessfully to reapply for the same role within six months of the initial application. The only written policy to which we were referred was contained in an Organisational Change Management policy. In the Tribunal’s view it did not apply in these circumstances; the Respondent was not in a period of formal organisational change.

[47]In his witness statement Mr Johnson said that he told the Claimant that it was the Respondent’s policy not to reinterview a recent unsuccessful applicant. However, his statement then went on to explain that the decision was made by Ms Taylor: ‘because previous candidates had been identified as not having the skills and experience of the role, she felt it reasonable to apply the policy to not allow previous applicants to apply’. The second part of that sentence suggested that it was a discretion exercised by Ms Taylor in this particular case, rather than the consistent application of a general policy.

[48]Ms Douglas in her statement asserted that managers: ‘have a discretion to disallow a person who unsuccessfully applied for a role from reapplying the same job again. This usually applies for a sixmonth period from the initial application. It is considered that this saves time and resources because applicants going through the same application and selection process within a short period of time is likely to result in the applicant not being successful. This policy is applied to all applicants who have previously applied for the same job.’

[49]This too appeared to us to be somewhat contradictory: on the one hand Ms Douglas was saying that it was a manager’s discretion; on the other hand, that it was applied to all applicants.

[50]The matter was looked into the course of the Claimant’s grievance: ‘there was a clear wish not to have previous applicants applying for the BP role. The HR service desk produced information that the request was specifically made by [Ms Taylor] in an email dated 17/4/18 saying it was ‘quite important to us that in both cases (BP & Technical Analyst), previous applicants cannot apply, so please let me know if that is a problem’ and this was actioned by HR. [The Claimant] had applied for the role a year ago as an external candidate and had been unsuccessful. If he was unsuitable for the BP role a year later, when expressing an interest as an internal candidate it is [Loraine Cook’s] view that he should have been told this with reasons given. However, it appears that this did not happen, and [the Claimant] was purely told he could not apply because the advert said previous applicants could not apply. … HR said that [the Claimant] did not approach them. [Ms Cook] said that if he did she would have counselled ICT managers to allow an internal applicant who had gained more experience since applying a year ago.’

[51]The grievance outcome partly upheld the Claimant’s complaint in relation to this issues: it found that: ‘managers have the right to request previous applicants not to apply, however in your circumstances if you had raised this with HR they may have advised that you should have been given the opportunity to apply’. It continued: ‘our current internal recruitment practice does not allow internal staff to reapply for a job within 6 months of an application… This reapplication period seems to have been extended beyond the 6 months period incorrectly in this instance. You should have been allowed to make an application on your application would then have followed the selection process’. That conclusion appears to have settled on characterising the six-month rule as a ‘practice’, rather than a policy.

[52]There was only one applicant for the role and that was Mr Steve Gleadell. Mr Gleadell was Ms Taylor’s fiancé. Mr Vaughan Johnson accepted in crossexamination that he was also a ‘work friend’ of his. Mr Gleadell came to a barbecue at his house, to which Ms Taylor and Mr Murray were also invited. Mr Toms suggested to Mr Johnson that this was a ‘little group of white employees in a close friendship team sorting out jobs for themselves’, and that the Claimant was excluded because of race; Mr Johnson disagreed. Mr Gleadell was appointed on a temporary secondment basis.

[53]The Tribunal finds that this was a decision of Ms Taylor’s, not Mr Johnson’s; he was merely the messenger. It was over a year since the Claimant had previously applied for the role and been rejected, and so the decision was inconsistent with both the informal practice, described in evidence before us, and the only written policy to which we were referred. The conversation with Vaughan Johnson on or around 4 July 2018 (Issue (G))

[54]The Claimant states that on 4 July 2018 he was asked to meet Mr Vaughan Johnson at short notice. He says that Mr Johnson told him at that meeting that he ‘lacked empathy’ and accused him of ‘insubordination’. According to the Claimant, Mr Johnson was ‘extremely rude and aggressive’ towards him. He regarded the use of the word insubordination as significant, indicating to him that, as a BAME person, he should know his place.

[55]Mr Johnson accepted that he mentioned a ‘lack of empathy’ and that the word ‘insubordination’ was used.

[56]The Claimant’s initial evidence was that Mr Johnson simply used the expressions to ‘target’ him. It was suggested to him that there must have been some context for their use. He then explained that he had chased some advisers, who he thought were not dealing with requests from him quickly enough. The Claimant said Mr Johnson suggested that they had told him they were unhappy about being chased.

[57]As for the use of the term ‘insubordination’, Mr Johnson, in his interview as part of the Claimant’s grievance, and in his statement for the hearing, gave his own account of the context. He explained that there had been a meeting the previous day to discuss team objectives, at which the Claimant had said that he did not feel that he should have team objectives, and was not happy sharing information until it got to a certain stage. Mr Johnson thought that the meeting had not gone well, and wanted to pick the discussion up as soon as possible. At the meeting on 4 July 2018, the Claimant again said that a team approach was not part of his role, as he was a project manager. Mr Johnson stressed the importance of supporting others. He says that the Claimant replied by saying: ‘do you want a slave, or someone that questions your decisions if they feel that was required?’ Mr Johnson questioned the use of the word ‘slave’, and said that it was inappropriate. He asked the Claimant how he would feel if he was a manager and his managerial decisions were constantly being questioned. The Claimant replied: ‘so you want me to just obey orders? I’m not going to agree to something just because you tell me to do it’. The Claimant said that he would not take on tasks for the Business Partners, as Mr Johnson had asked him to do. Mr Johnson said, in a flippant manner and referring back to the Claimant’s reference to obeying orders that, if they were in the army, that would be called insubordination, However, since they were not in the army, but in ICT, he felt the Claimant should ‘give it a go’, as it would help everyone.

[58]The Claimant said in cross-examination that he ‘could not recall’ the conversation taking place in this way, but he did not reject the account. Mr Johnson’s account is detailed and coherent; the Claimant’s account is generalised and lacks context. In relation to this incident, we prefer the evidence of Mr Johnson. Further, we find that he was neither rude nor aggressive.

[59]As for the mention of a ‘lack of empathy’, in the grievance interview Mr Johnson explained that two advisers had approached him to say that the Claimant had been putting pressure on them, saying: ‘where are my laptops for the customers? I need to deliver for my customers’ and banging the desk for emphasis. Mr Johnson said that he asked the Claimant to be aware of the pressure advisers were under and explained that he needed to have empathy. Again, we accept his evidence on this issue, which is consistent with the account he gave in the course of the Claimant’s grievance. The non-renewal of the Claimant’s contract and the conversations with Mr Vaughan Johnson on 7 and 8 August 2018 (Issues (H) and (I))

[60]On 17 August 2018 Ms Laura Crimmins (Payroll and Operational HR Manager) wrote to the Claimant, confirming that his post would terminate on 30 September 2018. Her letter stated that the Claimant would be included in the redeployment pool and that he would receive emails informing him of vacancies.

[61]There is no doubt that the Respondent’s ICT service/team was under review; the Council was under pressure to implement cost savings. We were referred to a document entitled the Central Support Futures Review, dated 6 November 2018, so just over a month after the termination of the Claimant’s contract. It proposed the streamlining of the department. The proposal was to create a Senior ICT Advisor post and an ICT Business Development post; it was proposed that vacant ICT Manager and ICT Business Partner posts would be removed. Although we were referred to organograms which showed the existing structure and the proposed new structure, we did not hear extensive evidence as to what the actual structure was post-restructure.

[62]Ms Rokad submitted that the effect of the review would be felt long before it came into effect and she put to the Claimant that the reason why fixed-term roles had been offered was because no one knew what the final outcome of the restructure would be and the Respondent could not commit to long-term arrangements. The Claimant disagreed and maintained that it was only in his case that this was happening.

[63]In addition to the substantive decision not to renew the Claimant’s contract, the Claimant also complained about the way in which Mr Vaughan Johnson communicated it to him on 7 and 8 August 2018. He maintains that Mr Johnson told him that he could renew the contract if he wanted to, but he did not want to; he alleges that Mr Johnson said that the Claimant’s family would now ‘have to live on beans on toast’.

[64]In his witness statement Mr Johnson said the following: ‘Preet says on 7 or 8 August 2018 that I told him that his contract could be extended but I was not going to extend it. This is not true. The requirement for an ICT Project Manager came to an end. I had told Preet, if there was a requirement for a Project Manager, his contract could be extended, but there was no longer need for a Project Manager.’

[65]In his grievance interview, Mr Johnson said this: ‘I explained the context of the ICT review and said that this is a tough call and it is my decision at the end of the day but it doesn’t make sense in the climate.’

[66]In his oral evidence, Mr Johnson gave a somewhat different account: he stated that the decision was not his, but Ms Taylor’s, and that he told the Claimant that: ‘I could push to extend the contract if I wanted to, but it does not make sense in the climate. I went into the fact that I tried to speak to Ms Taylor about it, but she said it was a fixed-term contract. I could not push back. I had tried’.

[67]Later in his evidence Mr Johnson said: ‘I could push to say I need more resource, I just felt there was no point’.

[68]On the balance of probabilities, the Tribunal prefers the evidence of the Claimant as to what Mr Johnson said about the contract at this meeting. Mr Johnson’s account of what he said changed over time; by contrast the Claimant’s account was consistent. We find that Mr Johnson told the Claimant that he could have extended the Claimant’s contract, but had decided not to.

[69]However, although that was what Mr Johnson said, we find on the balance of probabilities that that the most he could have done was to ‘push’ for an extension. The evidence that we heard suggested that recruitment decisions were taken by Ms Taylor; ultimately, it was her decision whether the Claimant’s contract would be renewed, not Mr Johnson’s.

[70]As for the ‘beans on toast’ remark, the two accounts are irreconcilable.We have already recorded above Mr Johnson’s shifting account as to what he said about the non-extension of the contract. On the other hand, we noted that the Claimant’s account of the August meeting was wrong in another respect: in his statement he alleged that it was at these meetings that he told Mr Johnson that he was treating him like a slave; the Tribunal has already found that this remark was made at the meeting on 4 July 2018 and that is consistent with the evidence the Claimant gave in the course of this grievance.

[71]On other matters Mr Johnson had been willing to make concessions against his own interest; the Claimant did so rarely and reluctantly. On this issue, Mr Johnson was adamant that he did not make the remark, and the Tribunal believed him. We find that the remark was not made. The alleged exclusion from the Idox project (Issue C(ii))

[72]The Claimant alleged that he was excluded from the Idox project at a time when he was Project Manager, that Mr Vaughan Johnson bypassed him and liaised directly with Idox. In support of this allegation, he relied on an email of 31 August 2018; it needs to be seen in context.

[73]In an email of 30 August 2018, Ms Taylor wrote to Mr Neil Johnstone, Idox’s Account Manager: ‘I’m sure you’ve had this conversation with Preet [the Claimant], but is there any wriggle room in the costs if we clear some categories in corporate?’ Ms Taylor copied Mr Wayne Murray into that email, but not the Claimant.

[74]Mr Neil Johnstone replied to Ms Taylor on 31 August 2018, copying in Mr Murray, but not the Claimant. This is the email the Claimant relies on to illustrate the alleged exclusion by Mr Vaughan Johnson. We immediately note that it is an email from Mr Neil Johnstone, not from Mr Vaughan Johnson. Mr Neil Johnstone wrote: ‘if you are able to place the purchase order today (31st August) I am able to further reduce the total costs to £17,800 as I have authorisation to reduce the daily services rate. Please can you let me know how you would like to proceed, as if I can proceed today I will need to update the quotation?’

[75]Later the same day Mr Neil Johnstone sent another email to Ms Taylor, copying in Mr Murray, but not the Claimant: ‘as you are aware I have been having detailed discussions with Preet about the scope of your DMS upgrade, resulting in the attached quotation. I have just tried to contact Preet, although have received his out of office noting that he will not be back until 5th September. Please can you advise where you are with your conversations booked to fit into your timescales et cetera.’

[76]The footer from another of the Claimant’s emails records that, in fact, he had been on leave from 29 August 2018.

[77]Ms Taylor replied swiftly to Mr Neil Johnstone, copying in Mr Murray, Mr Vaughan Johnson and Mr Kieran Johnston, but not the Claimant: ‘your offer and the reduced a daily services rate is much appreciated, but I need a decision from Kieran Johnston and he is on leave today so I’m going to have to pass it up at this point’.

[78]On 7 September 2018 the Claimant emailed Mr Neil Johnstone, copying in Ms Taylor, Mr Murray and Mr Vaughan Johnson: ‘I had a meeting with Sarah yesterday and have got the approval in principle and I’m just waiting for the cost codes, before we can raise a PO and agree on dates and project deliverables.’

[79]It is apparent from this that, on his return from leave, a meeting had taken place at which Ms Taylor had updated him as to the position at a meeting on 6 September 2018.

[80]It would appear that the matter still had not been signed off by 12 September 2018, because on that date Mr Vaughan Johnson wrote to Mr Neil Johnstone, asking if the quote for £17,800 was still on the table. He copied the Claimant into that email.

[81]It will be apparent from this narrative that there were occasions on which the Claimant was not included in emails; our conclusions as to why that was are set out below. The Claimant’s grievance

[82]On 12 September 2018 the Claimant raised a grievance. An independent investigator, Ms Karen Barnes of Blue Star Human Resources, was appointed to investigate

[83]Ms Barnes met the Claimant on 23 September 2018. She interviewed eleven other witnesses, including Mr Vaughan Johnson and Ms Taylor. She also spoke to Mr David Kay and Ms Amanda Howard, ex-employees, to whom the Claimant asked her to speak.

[84]Ms Barnes produced a draft report. After reviewing the report, Mr Dan Gascoyne (Assistant Director Policy and Corporate) held a meeting with the Claimant on 13 December 2018 and communicated his outcome to him in a letter dated 20 December 2018. Parts of the Claimant’s grievance were upheld, for example that he should have been offered feedback when he was not successful in his initial application in 2017; it was also accepted that there was confusion about the salary offered in respect of the project manager role; the findings in relation to the decision not to permit him to apply for the Business Partner role have already been set out above.

[85]Ms Douglas said in her witness statement that Ms Barnes had found that there was ‘no evidence’ of discrimination. In fact, Ms Barnes made a more equivocal finding: ‘for the reasons above it is inconclusive as to whether discrimination on the grounds of race has occurred against PS. Due to the experience of others who have left ICT, it would appear that the experience PS has had in working ICT is not due to his race/ethnicity but due to a difference in working styles and the lack of formalised feedback on performance’.

[86]Ms Douglas commented that Ms Barnes presented the draft to management ‘thinking there were some uncomfortable messages we might want to change’, but that she (Ms Douglas) did not propose any changes to the draft. It is unclear to the Tribunal what aspects of Ms Barnes’s findings the Respondent could legitimately have changed, if the only basis for changing them was that they were ‘uncomfortable’.

[87]It then emerged that the Claimant had not been given a copy of Ms Barnes’ report until it was disclosed to him in these proceedings. Thus, he did not have access to any of the interviews which Ms Barnes had carried out when preparing his appeal against the outcome, which Mr Gascoyne communicated to him. It also emerged that not all of the appendices to Ms Barnes’s report had been disclosed to the Claimant, even in the course of these proceedings. For example, Mr Vaughan Johnson mentioned that he had given Ms Barnes a detailed statement; it was not in the bundle.

[88]In response to a question from Mr Blanco as to what actions had been taken as a consequence of the report, Ms Douglas said that nothing had been done. In response to a follow-up question from Ms Berry, Ms Douglas said that there were ‘conversations between Mr Johnson and Ms Taylor and conversations about whether Ms Taylor was right for the organisation. She left the organisation and resigned’. A reference in the notes of the grievance interview with the Claimant on 23 September 2018 confirms that Ms Taylor had already handed her notice in by then.

[89]The Claimant appealed the grievance outcome by letter dated 9 January 2019. An appeal meeting was held on 24 January 2019. The outcome was set out in a letter dated 6 February 2019: the appeal was not upheld.

[90]It was not disputed that, although the Claimant’s last day at work was Friday, 26 September 2018, he was paid up to Sunday 30 September 2018, which was the effective date of termination. The law Time Limits

[91]S.123(1)(a) Equality Act 2020 (‘EqA’) provides that a claim of discrimination must be brought within three months, starting with the date of the act (or omission) to which the complaint relates.

[92]The three-month time limit is paused during ACAS early conciliation: the period starting with the day after conciliation is initiated, and ending with the day of the ACAS certificate, does not count (s.140B(3) EqA). If the ordinary time limit would expire during the period beginning with the date on which the employee contacts ACAS and ending one month after the the day of the ACAS certificate, then the time limit is extended, so that it expires one month after the day of the ACAS certificate (s.140B(4) EqA).

[93]S.123(3)(a) EqA provides that conduct extending over a period is to be treated as done at the end of the period. In Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

, the Court of Appeal held that Tribunals should not take too literal an approach to determining whether there has been conduct extending over a period: the focus should be on the substance of the complaint that the employer was responsible for an ongoing situation, or a continuing state of affairs, in which an employee was treated in a discriminatory manner.

[94]The Tribunal may extend the three-month limitation period for discrimination claims under s.123(1)(b) EqA, where it considers it just and equitable to do so. That is a very broad discretion. In exercising that discretion, the Tribunal should have regard to all the relevant circumstances, which will usually include: the reason for the delay; whether the Claimant was aware of his rights to claim and/or of the time limits; whether he acted promptly when he became aware of his rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

[95]There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. There are statutory time limits, which will shut out an otherwise valid claim unless the Claimant can displace them. Whether a Claimant has succeeded in doing so in any one case is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the Tribunal of first instance which is empowered to answer it (Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

per Sedley LJ at [31-32]).

[96]Failure to provide a good excuse for the delay in bringing the relevant claim will not inevitably result in an extension of time being refused (Morgan at [25]). There is no requirement for exceptional circumstances to justify an extension (Pathan v South London Islamic Centre,

UKEAT/0312/13/DM

at [17]).

[97]Awaiting the outcome of an internal grievance procedure before making a complaint is a matter which may be taken into account by the Tribunal, although it is not determinative (Apelogun-Gabriels v Lambeth London Borough Council

[2002] ICR 713

CA at 719).

[98]In the context of discrimination cases, the importance of recalling not only what is done but the thought processes involved make it all the more difficult, and more likely that memory fade will have an impact on the cogency of the evidence (Redhead v London Borough of Hounslow

UKEAT/0086/13/LA

per Simler J at [70]). The burden of proof

[99]The burden of proof provisions are contained in s.136(1)-(3) EqA:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

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

[100]The effect of these provisions was conveniently summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi

[2019] EWCA Civ 1648

at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.1 He explained the two stages of the process required by the statute as follows:(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”

(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’

[101]In Deman v Commission for Equality and Human Rights

[2010] EWCA Civ 1279

, Sedley LJ observed at [19]: ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.’ 1 Madarassy v Nomura International plc

[2007] ICR 867

, CA

[102]The Court of Appeal in Anya v University of Oxford

[2001] ICR 847

at [2, 9 and 11] held that, in a discrimination case, the employee is often faced with the difficulty of discharging the burden of proof in the absence of direct evidence on the issue of the causative link between the protected characteristics on which he relies and the discriminatory acts of which he complains. The Tribunal must avoid adopting a ‘fragmentary approach’ and must consider the direct oral and documentary evidence available and what inferences may be drawn from all the primary facts.

[103]In Hewage v Grampian Health Board

[2012] ICR 1054

at [32], the Supreme Court held that the burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other. Harassment related to race

[104]Harassment related to race is defined by s.26 EqA, which provides, so far as relevant: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are— … race …

[105]The use of the wording ‘unwanted conduct related to a relevant protected characteristic’ was intended to ensure that the definition covered cases where the acts complained of were associated with the prescribed factor as well as those where they were caused by it. It is a broader test than that which applies in a claim of direct discrimination (Unite the Union v Nailard

[2018] IRLR 730

[106]The test for whether conduct achieved the requisite degree of seriousness to amount to harassment was considered by the EAT in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

at [22]: ‘We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’

[107]Although intention is not determinative, it can be a factor (Dhaliwal at [15]): ‘One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.’

[108]Elias LJ in Land Registry v Grant

[2011] ICR 1390

at [47] held that sufficient seriousness should be accorded to the terms ‘violation of dignity’ and ‘intimidating, hostile, degrading, humiliating or offensive environment’. ‘Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’

[109]The EAT in Betsi Cadwaladr University Health Board v Hughes [2014]

UKEAT/0179/13/JOJ

at [12], referring to the above, stated: ‘We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.’

[110]S.212(1) EqA provides that the concept of ‘detriment’ does not include conduct that amounts to harassment. Thus, an employee cannot succeed in a claim of both harassment and direct discrimination in respect of the same conduct. However, there is nothing in the statutory language to prevent him from advancing claims in respect of the same conduct by reference to these causes of action in the alternative. Direct discrimination because of race

[111]S.13(1) EqA provides: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[112]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is subjective (Nagarajan v London Regional Transport

[2000] ICR 501

, per Lord Nicholls at 511). Lord Nicholls considered the distinction between the ‘reason why’ question from the ordinary test of causation in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

at [29]: ‘Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.’

[113]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of; it need not be the sole ground for the decision (Nagarajan per Lord Nicholls at 513).

[114]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion.

[115]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at [11-12], Lord Nicholls questioned the need for a two-stage approach, particularly in cases where no actual comparator was identified: ‘[…] employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the Claimant […]’

[116]Since Shamoon, the appellate courts have encouraged Tribunals to address both stages of the statutory test by considering the single ‘reason why’ question: was it on the proscribed ground, or was it for some other reason? Underhill J summarised this line of authority in Martin v Devonshire’s Solicitors

[2011] ICR 352

at [30]: ‘Elias J (President) in Islington London Borough Council v Ladele (Liberty intervening)

[2009] ICR 387

developed this point, describing the purpose of considering the hypothetical or actual treatment of comparators as essentially evidential, and indeed doubting the value of the exercise for that purpose in most cases-see at paras 35–37. Other cases in this Tribunal have repeated these messages- see, eg, D'Silva v NATFHE

[2008] IRLR 412

, para 30 and City of Edinburgh v Dickson (unreported), 2 December 2009 , para 37; though there seems so far to have been little impact on the hold that “the hypothetical comparator” appears to have on the imaginations of practitioners and Tribunals.’

[117]It is an essential element of a direct discrimination claim that the less favourable treatment must give rise to a detriment (s.39(2)(d) EqA). There is a detriment if ‘a reasonable worker would or might take the view that [the treatment was] in all the circumstances to his detriment’, per Lord Hope of Craighead in Shamoon at [35]. An unjustified sense of grievance does not fall into that category. Compensation

[118]In assessing compensation for discriminatory acts, it is necessary to ask what would have occurred had there been no unlawful discrimination. In a dismissal case, if there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss (Chagger v Abbey National PLC and another

[2010] IRLR 47

). Submissions

[119]Both representatives provided helpful skeleton arguments, which the Tribunal has taken into consideration. We mean no disrespect to Counsel by not summarising them in what is already a lengthy judgment; their content is a matter of record. Conclusions: time limits

[120]The parties agreed that any act or omission which took place before 6 August 2018 is prima facie out of time, unless it forms ‘conduct extending over a period’ with an in-time allegation, or the Tribunal considers it just and equitable to extend time.

[121]The Tribunal gave the Claimant permission to lead additional oral evidence as to why he issued his claim when he did. He explained that he did not issue earlier because he preferred to avoid confrontation; he had faith in the Respondent’s HR resolving the grievance properly; he was expecting them to acknowledge that he been discriminated against them and to apologise to him; that did not happen and accordingly he decided to issue proceedings.

[122]The Claimant confirmed that he is a member of a trade union and had access to advice during the relevant period. He was familiar with his right to bring Tribunal proceedings from previous experience as a line manager. For the same reason, he was familiar with the applicable time limits; his union reminded him of them in September/October 2018. Time limits: the allegations in relation to the period of the first role: August 2017 to March 2018: Issues A, B(i)-(iii) and (F).

[123]There are five allegations of discrimination arising out of the period of the Claimant’s employment in the first role: the appointment to the TPS role (A); the alleged exclusion by Mr Murray from meetings ((B)(i)-(iii)); and the alleged dressing-down by Sarah Taylor in late March 2018 (F).

[124]The Tribunal considers that the matters relating to the first role, which are long out of time, do not form a continuum with the matters relating to the second role: the Claimant’s line management changed; there was a very substantial break between the appointment decision in relation to the TPS role (August 2017) and the allegations relating to the Project Manager role (April 2018 onwards); although Ms Taylor was involved in a number of the allegations, we find that both the TPS appointment and the alleged ‘dressing-down’ were discrete acts, the latter of a very different character to the other alleged acts of discrimination.

[125]As for the alleged exclusion from the meetings, a different individual took the decisions in the first period (Mr Murray). The Claimant made no contemporaneous grievance about his time in the first role when he moved to the second. We note also the evidence that there was significant periods during in the first period, when the Claimant worked happily and without apparent difficulty. We are not satisfied that there was a continuum (or ‘ongoing state of affairs’) within the first period, and then between the first and second periods. We conclude that these allegations do not amount to ‘conduct extending over a period’.

[126]We then considered whether it would be just and equitable to extend time in relation to the first period. The length of the delay is very substantial. Insofar as he was unhappy with the way that he was treated during the first period, we conclude that the Claimant made a choice to put it behind him, and to accept a second offer of employment from the Respondent. He knew about his right to bring proceedings, and he was familiar with the time limits. Moreover, he had access to advice from his trade union. We find that there is clear prejudice to the Respondent in terms of its ability to deal with these matters comprehensively. The effect of the passage time would inevitably have an impact on the cogency of the evidence. Furthermore, Mr Murray’s ability to participate in these proceedings is compromised by serious ill-health. Although the Claimant would suffer prejudice by not being able to pursue these matters, he is, for reasons set out below, still able to pursue complaints in relation to the second period.

[127]Weighing these factors in balance, in particular the length of the delay, our conclusion that the Claimant chose to put this period behind him, and our assessment of the balance of prejudice, we conclude that it is not just and equitable to extend time in relation to the claims arising out of the first period.

[128]Consequently, the Tribunal lacks jurisdiction to hear them, and they are The allegations in relation to the second role: April 2018 onwards

[129]We find it more likely that the matters relating to the second role form part of a continuum (an ‘ongoing state of affairs’ to use the language of Hendricks), up to and including the matters which are in time: all the conduct occurred during the currency of his period as Project Manager; the management structure above him during this period remained the same; it is the Respondent’s own case that all its decisions during this period were influenced by the proposed restructure, and that its decisions were all of a piece. Consequently, we conclude that in relation to the second period those matters, which are on the face of it out of time, do amount to ‘conduct extending over a period’, and are in time by reference to the last act complained of.

[130]If we are wrong about that, we considered whether it it would be just and equitable to extend time in respect of those allegations which would otherwise be out of time. Although some of the same factors set out above still apply, there are very significant differences: in particular, the length of the delay in issuing proceedings is much shorter. The Claimant did not make the same election not to complain in the second period, indeed he lodged a grievance part-way through the limitation period, and while still in employment; although not determinative, we accept his evidence that part of the reason he delayed in issuing proceedings was because he wished to see whether the matter might be resolved internally; we consider that to be a reasonable explanation in these circumstances.

[131]Because the delay is less, the extent to which the Respondent might be prejudiced by an extension of time by reason of ‘memory fade’, is less of a concern. In any event, such prejudice as there was to the Respondent was largely of its own making, caused by its decision not to call Ms Taylor. The only explanation for this was that she was an ex-employee; no explanation was offered as to why no application for a witness order was made. Mr Johnson did not say that he had any difficulty in dealing with the matters which related to his management of the Claimant. By contrast, the prejudice to the Claimant, if time were not extended, would be very significant: it would greatly limit the ambit of his claims. We also had regard to our view (set out below) as to the meritorious nature of a number of the complaints the complaints. On balance, we concluded that the prejudice to the Claimant, if time were not extended, outweighed any prejudice to the Respondent, if it were.

[132]Weighing these factors in balance, in particular the shorter delay and our conclusion as to the balance of prejudice, we conclude that it would be just and equitable to extend time in relation to the claims arising out of the second period. Conclusions in relation to the second period

[133]The following allegations remain to be determined. 133.1. Issue (E): when appointed as PM in April 2018 the Claimant was not paid the equivalent salary to what he was receiving for the TPS role, despite this being initially agreed with Mr Vaughan Johnson. 133.2. Issue (C)(i): Mr Vaughan Johnson not inviting the Claimant to TDA meetings, while working in the Project Manager role. 133.3. Issue (D): Ms Taylor/Mr Vaughan Johnson prevented the Claimant from applying for the role of Business Partner in or around May 2018. 133.4. Issue (G): Mr Vaughan Johnson told the Claimant on or around the 4 July 2018 that he ‘lacked empathy’, and accused him of being ‘insubordinate’. 133.5. Issue (I): Mr Vaughan Johnson telling the Claimant on 8 August 2018 that he could extend his contract if he chose to [and that his family would ‘have to survive on beans on toast’]. 133.6. Issue (H): the decision not to renew the Claimant’s fixed-term contract. 133.7. Issue (C)(ii): Mr Vaughan Johnson liaised directly with the supplier on the Idox project in late August 2018, excluding the Claimant.

[134]The second part of Issue (I), marked in square brackets, has fallen away, because the Tribunal has found (at para 71) that it did not occur. Unwanted conduct/detriment

[135]Each of these claims has been pursued as an allegation of harassment related to race, alternatively direct discrimination because of race.

[136]We accept that the Claimant was aggrieved in respect of all of them, and that his subjective sense of grievance is enough to satisfy the test for ‘unwanted conduct’ in relation to the harassment claim. However, it is not necessarily sufficient to amount to a ‘detriment’ for the purposes of the direct discrimination claim: there is an objective element to that test, as an unjustified sense of grievance will not be a detriment. Whether his perception was justified in relation to all of these matters is dealt with below. Was there evidence from which a reasonable Tribunal could properly conclude that the Respondent had committed an act of unlawful discrimination?

[137]We went on to consider whether there was evidence from which we could reasonably conclude that the conduct set out above at para 132 could be ‘related to’ race, or ‘because of’ race, so as to require an explanation from the Respondent. In deciding whether the burden of proof should shift to the Respondent, we had regard to the following factors. 137.1. The Claimant was the only person of colour in the ICT team. The independent investigation report concluded that there was evidence of a culture of close friendships within the management team in ICT, which included Mr Vaughan and Ms Taylor, and which was all white. These factors might suggest that people of colour were marginalised. 137.2. The grievance investigator, Ms Barnes, also recorded evidence from HR that ICT tended to exclude it from key personnel decisions. The clear implication of this was that recruitment decisions lacked transparency and oversight. This too suggested a lack of commitment on the part of the Respondent, and in particular the ICT management, to equality and diversity. 137.3. There was a significant disparity between the low percentage of BAME employees within the organisation (4%) and the substantially higher percentage of dismissals of BAME employees (16%). No action had been taken by the Respondent further to investigate this disparity, which Ms Douglas agreed was ‘worrying’. The disparity might itself suggest the existence of racial bias within the organisation; the failure to take steps to address it suggested that the Respondent did not follow through in practice on its commitment to equality and diversity. 137.4. Although there was a generalised reference to equalities training, no detailed evidence was led in relation to it. Mr Vaughan Johnson had had no specific training in race discrimination, and there was no training in unconscious bias. We heard no evidence that Ms Taylor had received equalities training. 137.5. The fact that Ms Taylor did not attend to give evidence, and the Respondent did not seek a witness order for her, was a striking feature of the case. If a failure to respond, or an evasive response, to requests for information about an allegation of discrimination can contribute to shifting the burden of proof, the decision not to call any evidence from a central witness is, in our view, a relevant matter. We infer from it that the Respondent took the view that her evidence might not assist it in resisting these claims. 137.6. In her investigation report, Ms Barnes found that the issue of whether there had been discrimination was ‘inconclusive’. In reaching that view, she had the advantage of having met most of the protagonists, including Ms Taylor. The fact that the outcome letter which was sent to the Claimant made no reference to that ‘inconclusive’ finding was also a factor to which we had regard. 137.7. The non-disclosure of the grievance report to the Claimant during his employment was a factor to which we had regard; it was not suggested, either in evidence or submissions, that the report was withheld from the Claimant for valid reasons. 137.8. The fact that part of the supporting documentation relating to the report was not disclosed in the course these proceedings was another factor to which we had regard. It suggested that the Respondent knew that some of the evidence contained in it would not assist it in resisting the Claimant’s grievance, or these proceedings.

[138]The Tribunal concluded that these factors, taken together, amounted to sufficient material from which we could conclude, absent an adequate explanation from the Respondent, that the Claimant’s race was a material factor in the matters complained of.

[139]We went on to consider whether the Respondent had provided an adequate, non-discriminatory explanation for the conduct. Has the Respondent provided an adequate, non-discriminatory explanation for the treatment? Issue (E): when appointed as PM in April 2018 the Claimant was not paid the equivalent salary to that which he was receiving for TPS despite this being initially agreed with Vaughan Johnson

[140]In cross-examination, the Claimant was taken to the emails referred to above (at paras 39 and 40), and accepted that he had no reason to doubt that the grading evaluation referred to in them was genuine; he accepted that it appeared that Mr Vaughan Johnson had simply made a mistake, which HR had then corrected; he also accepted that it appeared that Mr Johnson was genuinely pushing for a better outcome for him. However, he then went on to say that the emails were ‘a sham to hide the true position’. The Tribunal rejects that suggestion as fanciful.

[141]What the emails do suggest is a certain amount of disorganisation and confusion, which we find was understandable, given the last-minute nature of the appointment. However, we are satisfied that there had been a formal evaluation of the Project Manager role in 2016, that it had been graded CMG9. Moreover, we conclude that there was a genuine willingness on the part of both Mr Johnson and HR to give the Claimant the best package that was permissible within that grade, but their hands were tied. We are satisfied that this provides a complete, non-discriminatory explanation for the Claimant’s salary; his race played no part in the decision.

[142]Accordingly, both claims are dismissed. Issue (C)(i): Mr Vaughan Johnson not inviting the Claimant to TDA meetings while working in the Project Manager role

[143]The Claimant himself acknowledged a tendency to want to go beyond the ‘central focus’ of his role in the 26-week review, which we have quoted above (at para 34). We note that, in relation to the meeting on 29 January 2018 and the MFD project, the Claimant also complained of not being involved in projects which were not (or were not yet) his projects. There appeared to be a pattern: because the Claimant believed (possibly with justification) that he had the expertise to make a useful contribution to a project, he considered that he was entitled to be included in all discussions about that project, and was frustrated when he was not.

[144]The Tribunal was satisfied that there was a non-discriminatory reason why the Claimant was not invited to the TDA meetings: they were meetings operating at a strategic level above the Claimant’s, and his presence was not required. In any event, there was no evidence that the alleged discriminator, Mr Johnson, took the decision as to who should, or should not, be invited to TDA meetings during the second period. If there was any unlawful discrimination, he was not responsible for it.

[145]Accordingly, both claims are dismissed. Issue (D): Ms Taylor/Mr Vaughan Johnson prevented the Claimant from applying for the role of Business Partner in or around May 2018.

[146]The Tribunal considers that this allegation is more naturally one of direct race discrimination: the Claimant was treated less favourably than Mr Gleadell, who is white/not Asian, in not being permitted to apply for the role of Business Partner. That is self-evidently a detriment. The Tribunal observes that preventing candidates from applying for a job is a serious step, which requires cogent justification. That is especially the case in an area of work where people develop their skills over time, for example by way of training or continuous professional development, and where they may well be in a position to make a fresh, successful application for a role for which they might not have been suited only months earlier

[147]The Tribunal found the Respondent’s explanation, or rather explanations, entirely unsatisfactory. There was a striking lack of consistency and coherence in its evidence. The pleaded case was that ‘policy’ dictated that the Claimant could not apply, but the only policy to which we were referred was one which we have found was not applicable outside a change management process, which this was not. It was then suggested that it was a ‘practice’ that employees would not be permitted to re-apply within six months of a previous application; however, the Claimant’s previous application was a year earlier.

[148]We have found (at para 53) that it was a decision of Ms Taylor’s, not Mr Johnson’s. For that reason, the allegation of race discrimination against Mr Johnson fails and is dismissed.

[149]Ms Taylor did not attend to give evidence to the Tribunal about why she decided to prevent the Claimant from applying for the role. For the avoidance of doubt, the Respondent did not advance a case that this was an act of nepotism (Ms Taylor favouring her fiancé), rather than an act of discrimination. In the absence of an explanation from her, and in view of the incoherent explanations advanced by the witnesses who did attend, the Respondent has failed to discharge the burden on it to show that the Claimant’s race played no part in the decision.

[150]Accordingly, this claim of direct race discrimination succeeds. Issue (G): Mr Vaughan Johnson told the Claimant on or around the 4 July 2018 that he ‘lacked empathy’ and accused him of being ‘insubordinate’

[151]The Tribunal accepted Mr Vaughan Johnson’s account of the meeting. We are satisfied that it provides a complete, non-discriminatory explanation for the use of the two expressions, which was entirely uninfluenced by considerations of race. We conclude that the Claimant has relied on the two expressions in isolation, without explaining the context. Further, we conclude that insofar as the Claimant was aggrieved by the conversation, his sense of grievance was not justified, and there was no detriment for the purposes of his direct discrimination claim. We also reject the Claimant’s suggestion that Mr Johnson’s words created the proscribed environment; the conduct was not sufficiently serious to cross the threshold into harassment.

[152]Accordingly, both claims fail. Issue (I): Vaughan Johnson telling the Claimant on 8 August 2018 that he could extend his contract if he chose to, and that his family would have to survive on beans on toast

[153]Issue (H) concerns the actual decision not to extend the Claimant’s contract; Issue (I) concerns the manner in which Mr Vaughan Johnson communicated it to the Claimant.

[154]We have already found that Mr Johnson did not tell the Claimant that his family would have to survive on baked beans.

[155]As for the allegation about what Mr Johnson said, we have accepted that Mr Johnson said that that he could ‘extend the contract if he chose to, but had decided not to’. Mr Johnson did not provide a cogent explanation for saying this; rather, he gave a number of different, contradictory explanations. We are not satisfied that he provided an adequate, non-dscriminatory explantion as to the ‘reason why’ he made this comment.

[156]However, that is not the end of the matter. We went on to consider whether the remark was sufficiently serious to amount to harassment, and concluded that it was not. We concluded that it was not Mr Johnson’s purpose to violate the Claimant’s dignity or create the proscribed environment. While we took into account the Claimant’s perception that it had that effect, we concluded that it was not objectively reasonable for it to be regarded as having that effect. The remark was undoubtedly upsetting and insensitive, but viewed objectively it was not more than that; it was not sufficiently serious to cross the threshold into harassment.

[157]By contrast, we concluded that the Claimant’s subjective feelings of hurt did amount to a detriment for the purposes of his direct discrimination claim. His sense of grievance was justified: the remark was insensitive in the circumstances, and failed to take into account the power imbalance between manager and employee.

[158]Accordingly, because the Respondent has not discharged the burden on it to show that the treatment was in no sense because of the Claimant’s race, his claim of direct discrimination in relation to this remark succeeds. Issue (H): the decision not to renew the Claimant’s fixed-term contract

[159]The Tribunal regards this complaint as more naturally a complaint of direct discrimination: that the Claimant was treated less favourably than he would have been treated, had he been white, and had he not been Asian.

[160]The Tribunal had regard to our findings in relation to Mr Vaughan Johnson’s evidence. We concluded from that evidence that there was at least a possibility of the Claimant being given an extension to his contract, and that Mr Johnson could have pushed for it, but decided not to. The Tribunal cannot conclude that Mr Johnson’s evidence provided an adequate, nondiscriminatory explanation for the decision: we have already recorded, and commented on, the shifting nature of Mr Johnson’s explanation for the decision not to extend (even as to who made that decision).

[161]The person who decided that his contract should not be extended, Ms Taylor, and the only person who could provide a truly adequate, non-discriminatory explanation for the decision, did not attend.

[162]Consequently, the Tribunal is not satisfied that the Respondent has shown that the decision not to extend the Claimant’s contract was in no sense whatsoever because of his race. Accordingly, his claim of direct discrimination succeeds.

[163]Both Mr Vaughan Johnson and Ms Douglas said that there was no further work that the Claimant could have done, and that his role was eliminated in the subsequent restructure. However, as we have already observed, we heard little detailed evidence as to the structure after the restructuring, which had not happened at the point when the decision was taken not to extend the Claimant’s contract, and no evidence at all as to whether steps were taken to redeploy the Claimant.

[164]This leaves open the question as to whether the Claimant’s employment would have been extended, and if so for how long, had there been no discrimination (the Chagger question). The Tribunal will hear further evidence and submissions on that question at the remedy hearing, which will follow in due course. Issue (C)(ii): Vaughan Johnson liaised directly with the supplier on the Idox project in late August 2018, excluding the Claimant.

[165]It is right that Ms Taylor did not copy the Claimant into her email of 30 August 2018 to Mr Neil Johnstone. However, the allegation of exclusion was made not against her, but against Mr Vaughan Johnson, who (as Ms Rokad pointed out) was the person who brought the Claimant back into the email conversation. For that reason alone, this allegation must fail.

[166]In any event, we infer that Ms Taylor did not copy the Claimant in because she knew that he had been on leave since the day before.

[167]We have already recorded that the email of 31 August 2018, which the Claimant relied on in support of this allegation, was an email from Mr Neil Johnstone (replying to Ms Taylor’s email), not Mr Vaughan Johnson. There is no allegation made against Mr Johnstone, nor could there be, given that he was not an employee or agent of the Respondent. In any event, it is clear from Mr Johnstone’s second email of 31 August 2018 that, had the Claimant not been on leave, Mr Johnstone would have continued to liaise with him: he had emailed him and received an out-of-office reply.

[168]Again, we infer that the reason why the Claimant was not copied into Ms Taylor’s reply to Mr Neil Johnstone was because the Claimant was absent on leave; Mr Kieran Johnston was copied in, even though he too was on leave, but this was because he was the person who would sign the decision off when he returned.

[169]Given that the negotiation gave rise to a reduction in cost to the Respondent, it is difficult to imagine how the Claimant could have taken exception to what had happened in his absence. Mr Vaughan Johnson copied the Claimant into his email of 12 September 2018, because by then the Claimant was back at work.

[170]This incident did not occur as alleged and, insofar as the Claimant was not included in emails on 30 and 31 August 2018 (none of which are from Mr Vaughan Johnson), we are satisfied that the fact that the Claimant was on leave provides a complete explanation. Remedy

[171]There will be a remedy hearing to determine the amount of compensation to which the Claimant is entitled. By no later than 14 days from the date on which this judgment is sent to the parties, they shall provide their dates to avoid for a one-day remedy hearing in the six months from October 2020 onwards, which is realistically the earliest point at which it might be listed, having regard to the restrictions arising out of the Covid-19 pandemic.

[172]The parties must also set out their respective positions as to whether the remedy hearing would be suitable for remote hearing by video (CVP).

[173]The hearing will then be listed and directions given. If the parties consider that one day is not sufficient, they should explain why when providing their dates to avoid. Employment Judge Massarella Date: 28 July 2020 APPENDIX: FINAL LIST OF ISSUES Direct race discrimination and harassment related to race

[1]The Claimant defines his racial group as ‘Asian and non-white’.

[2]The unwanted conduct and/or less favourable treatment relied on by the Claimant for his claims under Section 13 EA and Section 26 EA is as follows:(a) C being offered only a fixed term appointment as Technical Programme Specialist (“TPS”) on or around the 23rd August 2017 (ET1 para 10) (Comparator: Amanda Howard or hypothetical comparator)) (C considers Sarah Taylor may have been responsible for this decision but cannot be certain; see page 336N/O)

(b) Whilst working in the role of TPS C was excluded by his manager, Wayne Murray, from technical meetings and projects as follows (ET1 para 24): (i) C was not invited to Technical Design Authority (“TDA”) meetings at any point despite requesting to attend on a number of occasions (Comparator: Ben Pyett or hypothetical comparator); (ii) the technical programme meeting on the 29th January 2018) (page 402) (Comparator: Ben Pyett or hypothetical comparator); (iii) the MFD project (see email of 8th March 2018 at page 248) (Comparator: Ben Pyett or hypothetical comparator);

(c) Whilst working in the role of ICT Project Manager (“PM”) C was excluded by his manager, Vaughan Johnson, from technical meetings and work with suppliers as follows (ET1 para 23): (i) C was not invited to Technical Design Authority (“TDA”) meetings at any point despite requesting to attend on a number of occasions (Comparator: Ben Pyett or hypothetical comparator); (ii) the IDOX project where C was PM and yet Vaughan Johnson would liaise directly with suppliers whilst excluding C (Comparator: hypothetical) (see email of 31st August 2018 at page 308-9);

(d) C was prevented by Sarah Taylor/Vaughan Johnson from applying for the role of Business Partner in or around May 2018 (ET1 para 22) (Comparator: Steve Gleadell or hypothetical comparator);

(e) When appointed as PM in April 2018 C was not paid the equivalent salary to that he was receiving for TPS despite this being initially agreed with Vaughan Johnson (ET1 para 16-18) (Comparator: hypothetical) (C believes the person(s) responsible for this decision was Sarah Taylor and/or Vaughan Johnson);

(f) Sarah Taylor giving C a dressing down ridiculing his suggestion that he worked hard on or around the 29th March 2018-3rd April 2018 (ET1 para 19) (Comparator: hypothetical);

(g) C being told by Vaughan Johnson on or around the 4th July 2018 that he lacked empathy and being accused by him of being insubordinate (ET1 para 25) (Comparator: hypothetical);

(h) C being told by Vaughan Johnson on the 7th & 8th August 2018 that his fixed term contract as PM was not being renewed (ET1 para 26) (Comparator: hypothetical);

(i) C being told by Vaughan Johnson on the 8th August 2018 that his contract was not being extended although it could be extended if he so chose and that his family would have to survive on beans on toast (ET1 para 26) (Comparator: hypothetical). Jurisdiction

[3]C applied to ACAS on the 5th November 2018. The certificate was issued on the 19th December 2018. C presented his claim to the ET on the 18th January 2019.

[4]Consequently, any allegation prior to the 6th August 2018 is out of time unless it forms part of an ongoing course of conduct with allegations that are in time; or the ET considers it just and equitable to extend time.