Ms H A Olayiwola v Newham Training and Education Centre: 3202403/2019
EMPLOYMENT TRIBUNALS
Case No 3202403/2019
Between
Ms H A OlayiwolaClaimantNewham Training and Education CentreRespondent
Before
Employment Judge A. RossIn person for claimantMiss R Owusu-Agyei (instructed by Counsel) for respondentDate 10 May 2021
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear the complaints of unfair dismissal, breach of contract nor unlawful deduction from wages. These complaints are struck out.[2]The Tribunal has jurisdiction to hear the complaints direct race discrimination and direct age discrimination. These complaints will proceed to hearing.
REASONS
Conclusions
[1]Between 18 April 2014 and 10 May 2019, the Claimant was employed by the Respondent as a maths tutor providing training to apprentices. By a Claim form presented on 9 October 2019, the Claimant presented complaints of direct race discrimination, direct age discrimination, unfair dismissal, unlawful deduction from wages, and breach of contract.[2]The Respondent’s case was that the Claimant was dismissed for the fair reason of redundancy or some other substantial reason entitling it to dismiss, there had been no discrimination, and no sums were owed to her. The Respondent also raised the issue of jurisdiction, because, on its face, the ET1 Claim form had been presented out of time.[3]At 10am, the Claimant had not attended this hearing. However, on checking the file, I considered that there may be good reason for that: the Claimant had been sent, on different occasions, both a Notice that this hearing was due to start at 2pm today, and that it was due to take place on an entirely separate date. In those circumstances, I asked the Tribunal staff to make enquiries of the Claimant. Having received contact from the Tribunal, and to her credit, she arrived at 12.10pm.[4]After her arrival, I confirmed that the Claimant’s complaints were those set out above. I sought particulars about the Claimant’s case, which were as follows: 4.1. In respect of the direct discrimination complaints, the less favourable treatment was(a) the failure to re-deploy her to suitable employment and(b) her dismissal on 10 May 2019. 4.2. This treatment was because of race or ethnicity, or age. The comparator relied upon, SA, was a younger colleague of Eastern European ethnicity. This tutor, SA, was a comparator because she had also been listed as someone whose post was redundant, but she had been re-deployed. 4.3. Other factors relied upon by the Claimant as showing that a reason for the treatment was race or age were the following: a) The Claimant had been teaching maths; SA had not been teaching maths; b) The Claimant had been longer in her post; c) The Claimant was told that the colleague who would be redeployed to her role would be teaching maths with H&S Care – but she believed that this was not true because the H&S Care teacher continued in their role; d) The Claimant believed that a job role existed in another department which needed a maths teacher. She had taught Young Learners before; and there was an opportunity to transfer there. 4.4. The breach of contract and unlawful deduction from wages complaints related to payments for Time off in Lieu (“TOIL”) and travel expenses which the Claimant stated that she was entitled to. The Claimant stated that this should have been paid to her on 31 May 2019, with her redundancy money. 4.5. The Claimant admitted the following: she received notice of redundancy on 29 April 2019; on 7 May 2019 she had an individual consultation meeting (when she raised about her days off in lieu and her travel expenses); she submitted her TOIL and travel expenses to Human Resources department (“HR”) after this, having been told to do so by the Respondent; when she received her payslip on 24 May 2019, which showed what she was to be paid on 31 May 2019, she could see that her TOIL and travel expenses were not paid.[5]Having gone through the complaints with the Claimant, I checked that the Claimant had the Respondent’s Skeleton Argument, and told her to read it. I adjourned to 13.45 and explained that she would give evidence on her return from lunch.[6]After hearing evidence and submissions, I reserved Judgment because this hearing had only been listed for the morning and I had matters to deal with in a multi-day case due to begin the following day. The Issues for the Preliminary Hearing[7]This issues for determination at this Preliminary Hearing were identified for the Claimant. These were as follows: 7.1. Were each of the Claimant’s discrimination complaints presented within the three month time limit set out in section 123(1)(a) Equality Act 2010 (“EQA”)? 7.2. If not, was each complaint of discrimination presented within such further time as was just and equitable? 7.3. Was the Claimant’s complaint of unfair dismissal presented within the three month time limit set out in section 111(2)(a) Employment Rights Act 1996 (“ERA”)? If not:(a) Was it reasonably practicable for the complaint to be presented before the end of 3 months beginning with the earliest date of termination?(b) If not, was it presented within such further period as the Tribunal considers reasonable? 7.4. Was the Claimant’s complaint of unlawful deduction from wages presented within the three month time limit set out in sections 23(2) Employment Rights Act 1996? This requires consideration of: (a) Was it presented before the end of 3 months beginning with the date of payment of wages from which the deduction was made? (b) If the complaint is in respect of a series of deductions, was it presented before the end of 3 months beginning with the date of payment of wages from which the last in the series of deductions was made?(c) If not, was it reasonably practicable to present the complaint within that three month period?(d) If not, was it presented within such further period as the Tribunal considers reasonable? 7.5. Was the Claimant’s complaint of breach of contract presented within the three month time limit set out in Art. 7 Employment Tribunals (Extension of Jurisdiction) Order 1994? This requires consideration of: (a) was it presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; (b) if not, was it reasonably practicable for the complaint to be presented within that period? (c) If not reasonably practicable to do so, was it presented within such further period as the Tribunal considers reasonable?
Findings of Fact
[8]The Claimant gave oral evidence. She had not prepared a witness statement; I make no criticism of her for that. She also relied on a document, being an email 4 September 2019 from ACAS which I marked “C1”. The Claimant was dismissed on 10 May 2019.[10]The Claimant appealed the decision to dismiss on about 22 May 2019. At the time, she believed that the Respondent had discriminated against her because of her ethnicity and age.[11]The appeal was heard on 13 June 2019, at which the Claimant was represented by a trade union representative.[12]The Claimant received the appeal decision (marked “R1”) on about 12 July 2019. Because she was not happy about the decision, she contacted ACAS towards the end of July 2019.[13]The Claimant confirmed in evidence that she contacted ACAS so that she could bring an Employment Tribunal claim in respect of each of the above complaints; and she knew that the first stage for bringing a claim was to contact ACAS. She knew ACAS was an advisory service for both employers and employees. The Claimant did not, however, know, prior to presenting her ET1 Claim form, what the time limits for presentation of claims were.[14]Although the Claimant is no longer a member of a trade union, which is due to the cost involved, she was a member at the time that she approached ACAS.[15]The Claimant experienced a delay in being able to communicate with ACAS. She spoke to them first on 1 August 2019. She was told to complete an Early Conciliation form, which the Claimant could do because she had access to the internet. When she spoke to them, ACAS asked her if it was more than three months since her dismissal. Although she stated that she did not know why they asked this, I found that the Claimant must have realised from that conversation that the three months was significant in bringing an Employment Tribunal claim and that she should have investigated this time period further.[16]Although the Claimant’s Early Conciliation Certificate is dated 17 August 2019, for some technical reason, the Claimant did not receive it by email until 4 Sept 2019; her evidence is corroborated by the email at C1. However, this email stated (my emphasis added): “ACAS cannot advise you about when a tribunal claim should be submitted. It is your responsibility to ensure that any tribunal claim is submitted on time.”[17]The Claimant’s evidence as to the reason why she did not present her Claim before 9 October 2019 was inconsistent. On the one hand, she said that, had she known of the three month time limit, she would have presented the Claim in time. But the Claimant also gave various reasons why she had emotional and health problems and could not present the Claim despite the receipt of the above email: 17.1. She was depressed since her dismissal; 17.2. Her mother had had a stroke; 17.3. Her brother passed away; 17.4. She had diabetes which affected her ability to go out so that she could not go out.[18]The last reason was given right at the end of her evidence, which I found was inconsistent, if the disability had the effect contended for it, and which I found was irrelevant in its practical effect given her access to the internet.[19]There was no medical evidence in support of the evidence of illness relied upon (although the Claimant stated this could be obtained from her GP).[20]The evidence of the Claimant did not demonstrate that she could not have put in the Claim within the limitation period. After commencing Early Conciliation, the Claimant had been able to attend at a CAB (even though they could offer no employment law advice). In any event, the Claimant could do the Claim form online before 9 October 2019; her evidence was that she had started it before that date.[21]However, I found that the Claimant’s emotional and mental state did have the effect of making it more difficult for her to deal with the formulation of her Employment Tribunal claim. I accepted that these factors did mean that she failed to make the necessary inquiries of ACAS or other sources so as to learn of the time limits for presenting her claim.[22]In respect of the sums claimed for unpaid wages or breach of contract, there was nothing in the Claimant’s contract about payment for time off in lieu.[23]I asked when should TOIL have been paid. The Claimant contended that the Respondent should have paid this at the end of May 2019, with rest of her redundancy benefits (that is, on 31 May 2019).[24]The Claimant stated that her travel expenses should also have been paid on 31 May 2019. Her case was that during the consultation period, on 7 May 2019, she was told to submit everything to HR which the Claimant did after that date.[25]When the Claimant got her final payslip, she could see that these sums were not paid; the Claimant got the relevant payslip on 24 May 2019, which showed what she would be paid on 31 May 2019. Jurisdiction: Time Limits Extension of time: Unfair dismissal, Section 111 Employment Rights Act 1996; Breach of contract Reg 7(c) ETs Extension of Jurisdiction Order 1994; Section 23(4) ERA 1996[26]The relevant statutory provisions are within section 111 ERA 1996, Section 23(4) ERA 1996, Reg 7(c) ETs Extension of Jurisdiction Order 1994; which I incorporate into this judgment.[27]In respect of unfair dismissal and breach of contract, the primary limitation period runs from the effective date of termination.[28]In respect of unlawful deduction from wages, the limitation period runs from the last in a series of deductions.[29]The burden is on the Claimant to show that it was not reasonably practicable to present the Claim in time. Reasonably practicable does not mean “reasonable” nor “physically possible”. It means “reasonably feasible”: Palmer v Southend on Sea BC [1984] ICR 372.
The law
[30]In Palmer, May LJ explained that the test was an issue of fact for the Tribunal and gave examples of facts that may be relevant in certain cases: see p.385B-F. This concludes: “Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the industrial tribunal taking all the circumstances of the given case into account.”[31]I also remind myself that the fact that an appeal is pending does not, of itself, delay the running of the three month period: see Palmer v Southend-on-Sea Borough Council [1984] 1 WLR 1129. This was not, in any event, an argument made by the Claimant.[32]Delay in the appeal process does not do so either: see Community Integrated Care v Peacock [2010] UKEATS/0015/10. The question of reasonable practicability[33]The law is well-summarised in Northamptonshire CC v Entwhistle [2010] IRLR and Lowri Beck Services Limited v Brophy [2019] EWCA Civ:(1) Section 111(2)(b) should be given 'a liberal construction in favour of the employee'. This was first established in Dedman. There have been some changes to the legislation since but this principle has remained: see paragraph 20 in the judgment of Lord Phillips MR in Williams-Ryan, at p.565; see more recently Lowri Beck Services Ltd v Brophy;(2) In accordance with that approach it has consistently been held to be not reasonably practicable for an employee to present a claim within the primary time limit if he was, reasonably, in ignorance of that time limit: see paragraph 21 Williams-Ryan and, in particular, the passage from the judgment of Brandon LJ in Walls there quoted, at p.565 (followed in Lowri Beck Services v Brophy).(3) In Dedman the Court of Appeal appeared to hold categorically that an applicant could not claim to be in reasonable ignorance of the time limit if he had consulted a skilled adviser, even if that adviser had failed to advise him correctly.(4) Subject to the Dedman point, the trend of the authorities is to emphasise that the question of reasonable practicability is one of fact for the tribunal and falls to be decided by close attention to the particular circumstances of the particular case: see, for example, the judgment of May LJ in Palmer at p.125. I should refer also to the comment by Stephenson LJ in Riley, at p.108 that: 'When judges elaborate or qualify the plain words of a statute by gloss upon gloss, the meaning of the words may be changed, the intention of Parliament not carried out but defeated and injustice done instead of justice.' Jurisdiction: Time limits in discrimination cases[34]Section 123 EQA 2010 provides so far as relevant that: "(1) … proceedings on a complaint … may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when a person does an act inconsistent with doing it, or (b) if a person does no inconsistent act, on the expiry of the period in which the person might reasonably have been expected to do it."[35]The principles to be applied in the application of section 123 EQA 2010 are as follows: 35.1. The Tribunal’s discretion to extend time under the “just and equitable” test is the widest possible discretion: Abertawe Bro Morgannwg University Local Health Board v Morgan, paragraph 17. 35.2. Unlike section 33 Limitation Act 1980, section 123(1) EQA 2010 does not specify any list of factors to which the Tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a Tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the Tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800 , paragraph 33. 35.3. There is no justification for reading into the statutory language any requirement that the Tribunal must be satisfied that there was a good reason for the delay, nor that time cannot be extended in the absence of an explanation of the delay from the Claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the Tribunal must have regard. If a Claimant gives no direct evidence about why she did not bring her claims sooner a Tribunal is not obliged to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason that would inevitably mean that time should not be extended: Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraph 25. 35.4. Factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). See Abertawe Bro Morgannwg University Local Health Board v Morgan at paragraph 19.[36]I remind myself that the exercise of the power to extend time is the exception, not the rule: see Robertson v Bexley Community Centre [2003] IRLR 434. Submissions[37]I read the written submissions prepared by the Respondent. I heard oral submissions from Counsel and the Claimant.
Conclusions
[38]There was no evidence from the Respondent that it would suffer any prejudice by the extension of time sought in respect of the complaints of race discrimination. However, Counsel argued that delay beyond the limitation period, and an extension of time, would be inherently prejudicial. This point I accepted.[39]Counsel went on to argue that two key witnesses for the Respondent no longer worked “in the business”, as she put it. However, there was no evidence of prejudice (as opposed to the submission that this would occur) to the Respondent caused by this, such as a statement that these witnesses could not or would not attend the Tribunal hearing.
Conclusions
[40]Applying the above law to the findings of fact made and the issues outlined at the outset of this judgment, I have reached the following conclusions. Unfair dismissal, unlawful deduction from wages, breach of contract[41]These complaints were presented outside the primary limitation period of three months. The EDT was 10 May 2019.[43]The date on which the wages allegedly due should have been paid was 31 May 2019.[44]Therefore, the factual issues are: 44.1. was it reasonably practicable for Claimant to present each of these complaints within the primary three month time limit? 44.2. if not, was each presented within a reasonable time thereafter?[45]The burden is on the Claimant to show that it was not reasonably practicable to present these complaints in time. Reasonably practicable does not mean “reasonable” nor “physically possible”.[46]From all the findings of fact, I concluded that it was reasonably practicable for this Claimant to present these complaints in time for the following reasons: 46.1. Although I took into account that s.111(b) ERA is to be given a liberal construction in favour of the employee, the first statutory question is that of reasonable practicability. 46.2. In this case, although the Claimant did not instruct an adviser, which is a factor that I took into account in her favour, I found that she ought reasonably to have known from or about 1 August 2019 that there was a three month time limit during which she could submit her complaints. She learned the significance of the three month period from her conversation with ACAS on that date, and, given her access to the internet and her capability as a teacher, she could have looked up the relevant time limit on the internet. 46.3. The Claimant could have spoken with her trade union, either at the date of her dismissal, or the date of her appeal, or on 1 August 2019, in order to find out how she presented these complaints to the Employment Tribunal and what if any limitation period existed. 46.4. The Claimant was able to seek advice from a CAB. 46.5. The email at C1, received 4 September 2019, made it clear to the Claimant that there was a time limit within which she had to submit her Claim form. 46.6. Despite the absence of medical evidence, I accepted that the Claimant’s abilities were to some extent affected due to the matters set out above in Paragraph 17. However, I concluded that those matters did not have such an effect as to make it not reasonably practicable for her to present her Claim within the three month period. I have referred above to the inherent inconsistency in the Claimant’s evidence; she stated that she could have submitted her Claim had she known of the time limit. The Claimant did, after all, have access to the internet from her home, and she had been able to correspond with ACAS.[47]Accordingly, the Tribunal has no jurisdiction to hear the complaints of unfair dismissal, unlawful deduction from wages or breach of contract. Direct discrimination[48]I reminded myself that the reasons for the delay (and if none, the absence of good reason) are an important factor for me to take into account. In addition, I took into account the relevant facts and matters set out above, including those identified at paragraph 46.2 to 46.6.[49]In this case, however, there was at least some good reason for the delay.[50]To begin with, the Claimant did wait for the outcome of her appeal, which she received on 12 July 2019, over two months after her dismissal.[51]On the facts in this case, the Claimant’s emotional and mental states did suffer due to the facts and matters set out at paragraph 17.1 to 17.3 above. I accept that these contributed to her failure to present her Claim in time. Moreover, the Claimant explained in evidence was that these matters affected her ability to complete the Claim form. The absence of medical evidence is a factor to be weighed in the balance against her evidence being accepted; but there is no requirement in law for a Claimant to produce medical evidence to prove such a matter.[52]Also, I accepted that the Claimant did not know of the three month time limit when she contacted ACAS. The Claimant was shattered due to her emotional state at the time that the email of 4 September 2019 from ACAS was received. I concluded that she did not appreciate the significance of the warning in that email at that time.[53]In Morgan, the length of the delay is also identified as a relevant factor in most cases. In this case, the length of the delay is short enough (being about three weeks) that it was most unlikely that it had affected either the cogency of the oral evidence nor that it had jeopardised the existence of documentary evidence.[54]Moreover, the length of the delay must be seen in the context of what, if any, prejudice this delay may cause to the Respondent. In this case, I concluded that the delay would be unlikely to cause much if any prejudice.[55]Although I take into account that there is inherent prejudice to the Respondent in the cost of being required to defend claims that would otherwise be out of time, in this case, the Respondent’s case is likely to rest largely on documentary evidence drawn from the redundancy exercise and selection process. Those documents are very likely to remain in existence; and it is very likely that one or more managers within the Respondent College can explain what they state and their significance.[56]Furthermore, experience shows that, in a case of this nature, where there has been a redundancy exercise, it is unlikely that many primary facts will be in dispute once all the documents have been examined.[57]In contrast, in terms of prejudice, if the extension of time required is not granted, the Claimant’s claim will be struck out in its entirety.[58]In conclusion, having weighed all the relevant facts, I determined that, although the complaints of direct discrimination were presented outside the three month limitation period, it was just and equitable to extend time to permit those complaints to proceed. The Tribunal has jurisdiction to hear the complaints of direct race discrimination and direct age discrimination.[1]The Claimant’s direct age discrimination complaint is not well founded and accordingly is dismissed.[2]The Claimant’s direct race discrimination complaint is not well founded and accordingly is dismissed.[3]The Respondent’s costs application is dismissed. JUDGMENT was sent to the parties on 11 May 2021. The Claimant wrote to the Tribunal on 25 May 2021 requesting written reasons.[1]The Claimant, Ms Hidiat Olayiwola, is of Black African ethnicity. She was employed by Newham Training and Education Centre, known as NEWTEC. She was dismissed with effect from 10 May 2019 as part of a business reorganisation. At the time, she was aged 58.[2]Her complaint in these Employment Tribunal proceedings is that her race and her age is at least part of the reason why she was not redeployed but instead was dismissed. She says this was direct race and age discrimination. NEWTEC denies these allegations.[3]When these proceedings were originally issued, Ms Olayiwola also brought other complaints. These were that her dismissal was an unfair dismissal, and that she had suffered an unlawful deduction of wages, and a breach of contract.[4]At this Final Hearing, the Claimant has represented herself. Mr Liberadzki, counsel, has represented NEWTEC, the Respondent. Only two witnesses gave evidence by reference to their witness statements. This was the Claimant herself, and Mrs Jennifer Marshall, who at the time was the Head of Young People and Higher Education. In that role she was a member of NEWTEC’s Senior Leadership Team. Both witnesses were cross examined and answered questions from the Tribunal. Reference was made to pages in an agreed bundle, which was 217 pages in length. At the end of the evidence both sides made oral closing submissions. Factual findings The Respondent’s structure[5]At the beginning of 2019, NEWTEC provided both childcare services and vocational training in care for young people, adults and employers. As set out in a document at page 111, there were 19 members of staff who were engaged in Adult Learning. The Claimant had been employed on the teaching staff since 18 August 2014. Her original role, as described in her employment contract, was that of Maths Teacher. Originally, she taught students enrolled on GCSE Maths courses. Subsequently, NEWTEC did not enrol students on GCSE Maths courses and her role was restricted to teaching Functional Skills Maths. In that role, she taught maths to students engaged on vocational courses and apprenticeships, to enable them to pass the maths elements of these qualifications. There was also a Functional Skills English Teacher, Chhavi Dhatti, who was still within her probation period. She had an equivalent role to that of the Claimant, but in relation to assisting learners with the English requirements of the qualifications. The Claimant reported to a Team Leader (Functional Skills).[6]There were two Health & Social Care Teacher/Assessors. They had experience in the Health and Social Care Field and were engaged by the Respondent to teach the vocational skills that were integral to the vocational qualifications being provided. It was an essential requirement of the role that they had a Level 3 qualification or higher in the subject area in which they were teaching [99]. The Teacher/Assessors were line managed by a Team Leader (Professional Services).[7]These roles were positioned within the Adult Learning department. The Head of Adult Learning was Ms Bola Stevens. Ms Stevens’ ethnicity was Black African. The Respondent’s decision to restructure[8]The Respondent’s income was dependent on the number of students that enrolled on its programmes. It would receive funding for its Apprenticeship and Professional Services learners within Adult Learning through third party contracts. The funding would only continue for the period in which the students were expected to achieve their qualifications. As Mrs Marshall described in her evidence, by early 2019 NEWTEC was experiencing significant financial difficulties. This was because it had only been able to recruit a small proportion of the target numbers of students for each of its courses. Those students who had been recruited were not at the standard expected from students on these courses. As a result, the students took longer to achieve their qualifications, but NEWTEC was not provided with additional funding to reflect this additional time.[9]A further feature in relation to the length of time that students took to complete their qualifications may have been a restriction placed on the Respondent entering students for exams, given past conduct by the Respondent in relation to certificates. We do not need to make specific findings as to the extent to which this may have prolonged the duration of student’s courses. We do not make any criticisms of the Claimant for the length of time that students took to complete their courses. In addition, those students were often recruited through external recruitment companies who would charge a recruitment fee. This had a further negative impact on the Respondent’s finances.[10]As a result, the senior leadership team at the Respondent reviewed its staffing structure. It came up with a proposal to reduce staffing expenditure by a minimum of £100,000. This was to be done by removing roles or reducing hours.[11]The senior leadership team decided that the functional skills required in both Maths and in English as part of the vocational qualifications offered by the Respondent should no longer be taught by specialist Maths and English teachers. Instead, they would be taught by the Teacher/Assessors who were providing vocational training. This was possible because Teacher/Assessors only needed to have the equivalent of a GCSE pass in Maths and English to be able to teach the necessary functional skills in Maths and in English. It was proposed that the Claimant’s role and that of the Functional Skills English Teacher would be deleted. It was part of the skills and abilities listed in the Personal Specification for Teacher/Assessors that they would be able to support learners in gaining Functional Skills qualifications [99].[12]Before the proposed restructure, the Respondent had the role of “Team Leader (Professional Services)”. This role was occupied by Ms Stefka Appostolova, who is of White Eastern European Ethnicity. Ms Appostolova was aged 58. She had joined the Respondent’s staff in January 2017 [105] as a Teacher/Assessor as a result of a transfer from another training provider. However, in January 2019 she had been assigned the role of Team Leader under a temporary contract. This role started on 21 January 2019 and was expressed to continue until the end of 19 July 2019 “or if your services are no longer required, whichever is the sooner”. Her contract said, “At which time, you will revert back to your substantive post and terms and conditions”.[13]As part of the proposed restructure, it was proposed that Ms Appostolova’s role of Team Leader would be deleted. As a result, Ms Appostolova would not continue in this role until 19 July 2019. She would revert back to her substantive post of Teacher/Assessor as was envisaged in her temporary contract.[14]It was also proposed that all posts that were currently vacant would be deleted and there would be a freeze on any further recruitment. Implementation of reorganisation[15]The proposed reorganisation was set out in a Business Alignment Paper which was sent to those affected, by email on 29 April 2019. The email was sent by Ms Marshall. Her evidence to the Tribunal was that this reorganisation would normally have been supervised by Ms Bola Stevens, given her role as Head of Adult Learning. Unlike Ms Marshall, Ms Stevens had never led on such a reorganisation in the past. As a result, Ms Marshall was asked by the senior leadership team to lead on the reorganisation, with Ms Stevens shadowing her.[16]Following this email on 29 April 2019, there was a series of consultation meetings. Ms Marshall led the first meeting on 30 April and Ms Stevens led the second meeting on 1 May 2019 for those who could not attend the first meeting. The Claimant attended this second meeting.[17]On 2 May 2019, the Claimant emailed John Marchington with the subject “Feedback”. She mentioned that she was going to be 63 in October and said that she needed “to know the exact date that [the reorganisation] will take effect. My mum is over 90 years old and her day-to-day expenses depend on me. As age is not on my side, I need to readdress a lot of things”. She did not suggest that the decision to delete her post was taken because of her age or her race.[18]There were further meetings held on 3 May 2019 and on 7 May 2019. At the meeting on 7 May 2019, the Claimant explained she did not want to attend any one-to-one meetings. She wanted to know when her last day of employment would be so she could leave.[19]On 10 May 2019, the Claimant was sent a letter headed “Notice of termination of your employment by reason of redundancy” [128]. She was told that her employment would end on 10 May 2019, and she would be paid in lieu of notice. The letter offered her a right of appeal. It was signed by Bola Stevens.[20]The Claimant had a meeting with John Marchington from HR on 16 May 2019. She did not suggest that her dismissal had been an act of race or age discrimination. The discussion focused on the financial payments to which she was entitled following her termination.[21]In Ms Appostolova’s case, she was sent a letter dated 16 May 2019 confirming that as from 13 May 2019 she would revert to her substantive post of Tutor/Assessor. There was a factual dispute as to whether Ms Appostolova was subsequently engaged in teaching vocational qualifications. The Claimant has argued that the signature on the timesheets on pages 171-175 is not that of Ms Appostolova. We do not need to decide this signature issue. We are prepared to accept the evidence of Mrs Marshall that, having reverted to her substantive position of Teacher/Assessor, Ms Appostolova did carry out the duties associated with that role. The paperwork in the bundle is only a small sample of all the timesheets of all the students who were taught at this time. We consider that Ms Appostolova was engaged in teaching Maths during a limited number of revision classes for those students on vocational courses.[22]On 22 May 2019, the Claimant exercised her right to appeal against the decision to dismiss her. She was asked to clarify the grounds of her appeal. In a second email sent on 24 May 2019 she listed four grounds of appeal [150]. Three concerned the financial payments she had received following the ending of her employment. The first argued that it was wrong to make her redundant “when the role still existed”.[23]An appeal hearing took place on 13 June 2019. It was chaired by Pat Edwards, the Respondent’s CEO. Mr Edwards is of Black African Ethnicity. She attended the appeal meeting with a union representative. Ms Stevens attended the appeal meeting to present the management case. At no point during the appeal meeting did the Claimant allege that the failure to redeploy her to another role or the decision to dismiss her was an act of discrimination. At one point, Ms Stevens said that there were eight learners who should have finished their courses by now. She said that she had a duty of care to learners to get them through and for them to complete their courses. For this reason, she had had to utilise the skills of her existing teachers that are available. This was a reference to the skills of the Teacher/Assessors who were also covering the maths elements of the courses.[24]The appeal was partially successful, in that the financial sums she received following the termination of her employment were increased. However, her appeal against the decision that she should be dismissed by way of redundancy was rejected. The appeal outcome letter stated that the maths element of the courses was covered by a Health & Social Care Teacher embedding Maths and did not require a specific Maths Teacher.[25]The Claimant has argued that she ought to have been offered the vacant position of Functional Skills Maths Teacher [115]. This position had been vacant since the holder had been dismissed in January 2019. The teaching requirements associated with this role had been carried out a trainee teacher placed at the school during her teacher training course at Greenwich University. The trainee was not paid by the Respondent and was treated as being a volunteer. The substantive role was deleted in the reorganisation, although the evidence was that the trainee teacher continued teaching until December 2019.[26]There was no other role to which the Claimant could be redeployed. She could not be redeployed to the role of Teacher/Assessor because she did not have the vocational experience or qualifications required for the role.[27]There was a further reorganisation at the end of 2019, prompted by the need to achieve further savings in the Respondent’s operating costs. As a result of this reorganisation, Ms Appostolova was made redundant with effect from 14 January 2020.[28]The Tribunal has been presented with evidence as to the ethnicities of the staff at the Respondent, both before and after the reorganisation. This shows that white staff were in a minority, both before and after the reorganisation. Before the reorganisation, there were 33% black/Black British staff. After the reorganisation it was 32% black/black British. We have also had evidence that at least one of those made redundant in the reorganisation was white – Faith Bolitho.[29]The data indicate that the proportion of staff who were aged over 55% was 16% before the restructure and the same percentage after the restructure [195/191]. The law[30]Section 13 of the Equality Act 2010 is worded as follows: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[31]The Claimant seeks to compare herself against the treatment of Ms Appostolova. Ms Appostolova must in all respects other than her race or her age be in a comparable position to the Claimant.[32]The focus is on the mental processes of the person that took the decision said to amount to discrimination. The Tribunal should consider whether the decision maker consciously or unconsciously was influenced to a significant (ie a non-trivial) extent by the Claimant’s age or race. Their motive is irrelevant.[33]Section 136(2) of the Equality Act 2010 is worded as follows: (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.[34]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. This guidance has subsequently been approved by the Court of Appeal in Madarassay v Nomura International plc [2007] ICR 867 and by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (at paras 22- 32).[35]The burden of proof starts with the Claimant. It is for the Claimant to prove facts from which the Tribunal could infer, in the absence of a satisfactory explanation, that the Claimant’s failure to be offered another role and the decision to dismiss her was in part the result of her age or her race.[36]In order for the burden of proof to transfer from the Claimant to the Respondent, it is well established that it is insufficient for the Claimant merely to show a difference in status and detriment treatment (see Madarassay at paragraph 54). In Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865, Elias J at paragraph 15 said that the mere fact that a unsuccessful candidate was a black woman and successful candidates were white men would be insufficient to be capable of leading to an inference of discrimination in the absence of a satisfactory nondiscriminatory explanation. To shift the burden of proof a claimant must also prove something more. That is, in the present case the Claimant must prove facts from which the Tribunal could infer that there is a connection between the protected characteristics of age or race and the detrimental treatment, in the absence of a non-discriminatory explanation.[37]If such facts are established, then the burden of proof transfers to the Respondent to establish on the balance of probabilities that the protected characteristics formed no part of the reasoning for the decision not to offer the Claimant an alternative role but instead to dismiss her.
Conclusions
[38]The Claimant has chosen to restrict her case to a comparison with the treatment received by Ms Appostolova. She clarified in the course of closing submissions that she is not arguing she was treated unfavourably by comparison with how a hypothetical younger or White British Maths teacher would have been treated.[39]As a result, we need to consider first whether Ms Appostolova is an actual comparator for the purposes of a discrimination claim. This requires that she is in the same position or an equivalent position to that of the Claimant. The tribunal finds that Ms Appostolova is not an actual comparator. Both she and the Claimant had had a role in teaching Functional Skills in Maths to students on vocational courses. However, Ms Appostolova was engaged in a different role at the time of the restructure to that of the Claimant. Her role, albeit on a temporary basis, was that of Team Leader. Her teaching area was different to that of the Claimant. She was qualified and experienced as a Teacher/Assessor teaching vocational skills in the area of Health and Care. The Claimant did not have any teaching experience or qualifications to teach vocational skills in this area. The Claimant had a superior level of qualifications and experience in teaching Maths. This meant that Ms Appostolova was potentially of more assistance to the Respondent in its future teaching. Unlike the Claimant she could teach all aspects of the vocational courses offered by the Respondent.[40]As a result, it is not necessary for us to consider the extent to which there are facts from which we could infer that the reason for any difference in treatment was the Claimant’s race or her age. However, for completeness, we consider whether there are any such facts. We do not consider that there are any facts established here from which the Tribunal could infer race or age discrimination in the absence of a non-discriminatory explanation from the Respondent. The caselaw makes it clear that there must be something more than difference in status and difference in treatment. Here there is nothing more.[41]In relation to race, we have found that white members of staff were a smaller proportion of the staff than black members of staff. There is no evidence that the reorganisation had a detrimental impact on the proportion of black members of staff on the staffing team. There is no evidence in particular that Ms Appostolova’s white ethnicity was potentially a factor in her retention or that the Claimant’s black African ethnicity was a factor in her dismissal. The letter dismissing the Claimant was written by Ms Stevens, who herself is of Black African ethnicity. The appeal against her dismissal was rejected by Mr Edwards, who is also of Black African ethnicity.[42]So far as age is concerned, there is no evidence that the Claimant’s age was referred to, still less taken into account in the decision that she should be dismissed. The age gap between the Claimant and Ms Appostolova was only four years. No evidence has been advanced, still less established that these four years would have been any basis for differentiating between Ms Appostolova and the Claimant. The only reference to her age was made by the Claimant herself in drawing the Respondent’s attention to the potential impact it would have on her and her ability to provide for her elderly mother.[43]Finally, we consider the explanation provided by the Respondent. We are wholly persuaded by the explanation advanced by the Respondent that the business reorganisation was carried out in order to redress a significant budget deficit by making significant reductions to the staffing costs. This restructuring decision was taken by the Senior Leadership team, although the final decision in relation to redundancies was taken by Mr Edwards, the CEO. There is no evidence that the ethnicities or the age of the Claimant was a factor in designing the reorganisation in the way that it was designed or removing the Claimant. Mr Edwards shares the same ethnicity as the Claimant – Black African. There was an evident logic to retaining those staff able to teach the vocational courses as well as the maths elements to these courses, rather than specialist Maths or English teachers.[44]We do not need to consider whether there was any unfairness in not offering the Claimant the teaching role carried out by the trainee teacher placed by Greenwich University. This may have been relevant on an unfair dismissal claim. When asked by the Tribunal why this trainee was retained in this role, Mrs Marshall said that it was not uncommon to use a trainee teacher in this role and that one advantage of doing this was that it saved the Respondent money in terms of staffing costs. We accept that, on balance, this was the explanation for this decision. Therefore, we accept the evidence of the Respondent that there was a non-discriminatory reason for not offering the Claimant this teaching role at the time of the reorganisation.[45]As a result, for these reasons, the Claimant’s age and race discrimination claims fail. Costs[46]The Respondent has made a costs application. The amount which is sought to be awarded is £6250 plus VAT, making a total of £7500. These are counsel’s brief fees which have been incurred since the date on which a commercial settlement of £1000 was rejected. The basis of the application is the refusal of the offer and the unreasonable pursuit of the discrimination claim once the unfair dismissal and wages elements have been struck out. The lack of merit in the discrimination claim was explained in the email making the offer. It also warned her that the Respondent would be seeking costs in the event that the Claimant was unsuccessful at the final hearing.[47]We find that it was unreasonable for the Claimant to have continued the claim once the other elements had been struck out. There was limited factual dispute and no plausible basis for drawing an inference of discrimination based on the disparity of treatment between her and Mr Appostolova. It was not a claim that had any reasonable prospects of success. Therefore, we have jurisdiction to make a costs order if we consider that this would be an appropriate exercise of our discretion.[48]However, we have decided that it would not be an appropriate exercise of our discretion to make a costs order here. Very briefly, we have taken this view based on the length of the Claimant’s employment with the Respondent, which included a period of at least a year at the start when she was working as a volunteer; the Claimant’s genuine belief that she had been treated unfairly in being dismissed in circumstances where there was still a need for maths tuition and the Respondent had chosen to supply that need with a trainee teacher rather than herself as a qualified teacher; the admitted mistake made by the Respondent in the calculation of her termination payment; the Claimant’s ill health since the date of her dismissal as set out in her witness statement, which we accept; the fact that the Claimant has never had legal advice and was not able to get any detailed advice from the CAB; her current lack of work, which has been the case for the last 2 years; and her current finances in that the Claimant’s only source of income is monthly state benefits, and she currently has an overdraft of almost £5000 on which she is having to make interest payments. Were we to have exercised our discretion, then the amount of any costs award would have been so small, relative to the amount of the costs incurred that it would not have made a significant impact on the Respondent’s finances; but would potentially have been a further burden on the Claimant. Enforcement of any award is likely to be wholly disproportionate.[49]In rejecting the costs application, we do not criticise the Respondent for making it. As a charity it must do all it can to maximise its revenue and to reduce its expenditure. It is a sad tragedy of this case that the Claimant did not accept the commercial offer when it was made. Had she done so, then she and the Respondent would have been able to move on, which would have been to the advantage of everyone.