Mr E Kumordji v Royal Mail Group Ltd and S Hibbert: 3301215/2024
EMPLOYMENT TRIBUNALS
Case No 3301215/2024
Between
Mr E KumordjiClaimantRoyal Mail Group Ltd and S HibbertRespondent
Before
Employment Judge Shastri-Hurst, Mrs A Brown and Ms HMs Z Tahir (instructed by solicitor) for respondentDate 14 March 2025
JUDGMENT
[1]The claim of direct race discrimination is not well-founded and fails;[2]The claim of victimisation is not well-founded and fails. Approved by JUDGMENT having been sent to the parties on 29 March 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The claimant worked as an Operational Postal Grade (“OPG”) based at Heathrow Worldwide Distribution Centre (“HWDC”). He commenced his employment on 4 November 2013 and was still employed at the date at which he presented the claim.[2]The claimant commenced the ACAS early conciliation process against both respondents on 6 December 2023. That process ended on 17 January 2024, and the claim form was presented on 24 January 2024. The claim form was originally presented against seven respondents. However, following a preliminary hearing held on 7 October 2024, the parties agreed that the third, fourth, fifth, sixth and seventh respondents would be dismissed from the proceedings. The claim therefore only continued as against the two now named respondents who will be referred to as “RMG” and “Mr Hibbert”.[3]The claimant presented claims of direct race discrimination and victimisation. At the case management hearing in October 2024 with Employment Judge Anstis, the two claims were set out very clearly. This Tribunal converted the narrative within that case management order into a List of Issues which was produced and given to the parties on the morning of Day 1. When we reconvened to begin evidence at noon, the parties confirmed that they agreed to the Tribunal’s list of issues.[4]The Tribunal had the benefit of a bundle of 243 pages (and index): page references are denoted as [X] for page X. We also had witness statements from: 4.1. The claimant; 4.2. Raymond Thomas – a colleague of the claimant who was also affected by the revision; 4.3. Julie Forde – Independent Case Manager based at Greenford Mail Centre (for RMG); 4.4. Stephen Hibbert – Productions Control Manager at HWDC - alleged perpetrator of both claims, and the second respondent.[5]References to witness statements are denoted by AB/WS/X, in which AB are the witness’ initials, and X is the paragraph number.
Introduction
[6]In September 2023, a revision of RMG's shift patterns was undertaken within the HWDC (“the revision”). This was due to the shifting demands of the postal service. The revision affected all permanent employees of RMG within HWDC.[7]Over the course of the months preceding September 2023, the respondent’s management and senior members of the Communications Workers Union (“CWU”) consulted and arrived at an agreed revision process.[8]Around the time of the revision, the claimant worked on the late shift, Monday to Friday. He did just over half of his daily shift in the Linear Parcel Sortation System (“LPSS”) and the remaining balance of his shift in the Amalgamation Department. One of the claimant’s colleagues was a Mr Audrius Palaima: Mr Palaima worked just over half his daily shift alongside the claimant in LPSS, then he worked the remainder of his shift in “Gen 3”.[9]Focusing on the late shift only, before the revision, there were Monday to Friday late shifts, as well as a Tuesday to Saturday late shift pattern. Following the revision, a third shift pattern was introduced to the late shift, that being Thursday to Monday.[10]As a result of the revision, the number of duties available for the late shift Monday to Friday reduced from 69 duties to 20 duties.[11]For certain employees, there was a possibility for “flowthrough”. This is defined at SH/WS/17 as “a duty that has not been altered in the resign or realignment by more than 29 minutes (start or finish times) or more than 20% of its duty content. Once a duty is unaltered or altered by less than these two factors, the incumbent duty holder has the right to remain on that duty in the new realignment/revision if they so wish or they can relinquish the duty and enter the re-pick of duties”.[12]The claimant complains that he was not given a “flowthrough” role, whereas Mr Palaima was given such a role. He says that this was an act of direct race discrimination by Mr Hibbert and RMG.[13]The claimant then entered a grievance regarding the lack of flowthrough for him. This is said (and accepted) to be a protected act for the purposes of the claimant’s victimisation claim. The claimant alleges that, as a result of making this protected act, the claimant was subjected to the detriment of being placed on the “surplus” list.[14]The surplus list was compiled of those employees who did not get a specific allocated or flowthrough job following the revision or did not accept the new duty that they were offered. There were 1200 front line employees affected by the revision, and approximately 1150 duties following the revision. This meant that it was anticipated that around 50 employees would be on the surplus list following the revision.[15]When we refer to “duties” above, we do not simply mean the tasks to be undertaken within any given role. A “duty” in this context refers to a specific duty number connected to an individual employee and their individual shift pattern.[16]Whilst on the surplus list, individuals worked mainly on their pre-existing shift. The claimant worked on his Monday to Friday late shift, as a “floating reserve” meaning that he would undertake a number of tasks and roles on that shift at HWDC.[17]At the initial stages of the revision, it was envisaged that those who ended up on the surplus list may need to apply and accept jobs in buildings other than HWDC. In the event, all those on the surplus list obtained jobs either in the HWDC or in the International Logistics Centre (“ILC”).[18]For the claimant, in November 2023, he began the new duty numbered LH344 in the External Transit Storage Facility (“ETFS”). This role was a Monday to Friday late shift, 1424hrs to 2148 hrs. Issues[19]As above, the Tribunal prepared its own list of issues (regarding liability only) from the narrative set out by Employment Judge Anstis. This list was agreed by the parties on Day One of the hearing and is recorded below for completeness. 1. Direct race discrimination (Equality Act 2010 section 13)1.1 The claimant identifies his race for the purposes of his claim as “black”.1.2 Did the respondent (Mr Hibbert) do the following things: 1.2.1 Fail to give the claimant a “flow-through” job on the 2023 revision/resign.1.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. The Tribunal will decide whether the claimant was treated worse than someone else would have been treated (“hypothetical comparator”). The claimant says he was treated worse than Audrius Palaima. The Tribunal will decide whether the claimant was treated worse than Audrius Palaima (“actual comparator”).1.4 If so, was it because of race? 2. Victimisation (Equality Act 2010 section 27)2.1 It is accepted by the respondents that the claimant did a protected act, namely raised his grievance of 2 October 2023.2.2 Did the respondent (Mr Hibbert) do the following things: 2.2.1 Give the claimant a job (Surplus) that he should not have been given, at a different part of the company, and tell the claimant that he may therefore lose his job (in fact this did not happen).2.3 By doing so, did the respondents subject the claimant to detriment?2.4 If so, was it because the claimant did a protected act? Findings of Fact Framework for revisions
Findings of Fact
[20]RMG has various collective agreements with the CWU. The claimant is a member of the CWU and accepted before us that he is bound by any collective agreements between RMG and the union.[21]Two of the relevant policies in relation to revisions are: 21.1. Way of Working Agreement - [80]; and, 21.2. Resourcing Jobs as a Result of Major Change - [230].[22]Mr Hibbert, along with the Deputy Area CWU representative, Paul Allen, was responsible for the realignment of duties under the 2023 revision (SH/WS/35).[23]We heard from Mr Hibbert that there were several policies, agreed with the CWU over the years, that formed the framework, or Terms of Reference (“TOR”) for the revision. Mr Hibbert was unable to give us a finite list of policies that constituted the TOR. He however told us that he had been responsible for a revision in 2022 and in September 2024 as well as the one with which we are concerned: he said he used the same logic and framework for each of them, in partnership with the CWU.[24]Of particular relevance are the following passages from the two policies we have already mentioned:[25]Way of Working Agreement – [86/87]: “16.2 Major change is defined as: ... ... Delivery revisions, which involve significant replotting of walks or significant restructuring of attendance patterns (e.g. full-time/part-time mix, five-day weeks, “longs and shorts” or “night plus a first delivery”, where they are agreed) ... 16.4 Where there is a major change as defined above, the key principles for dealing with the re-sign are: ... ... Employees taking part in the re-sign will be given the opportunity to advise of any personal circumstances, which necessitate a particular duty type or attendance pattern and, where practical, this will be accommodated. Where this happens, there will be prior discussion with the local CWU rep; ... ... The re-sign will be run using a national standard procedure based on seniority, and not take more than four weeks to complete...”.[26]Resourcing Jobs as a Result of Major Change – [233]: “4. DUTY ALLOCATION ...4.1 The Resourcing Unit Manager should allocate the duties by choice, in seniority order.4.2 The only exception to this will be where it has been agreed that there are personal circumstances that need to be taken into account (in accordance with the Way of Working Agreement, Section 16.4, third paragraph)”.[27]Mr Hibbert also told us of a Flowthrough Policy agreed between RMG's management and the CWU. We have not been taken to such a written policy in the bundle. Mr Hibbert in his witness statement describes flowthrough – SH/WS/17: “a duty that has not been altered in the resign or realignment by more than 29 minutes (start or finish times) or more than 20% of its duty content. Once a duty is unaltered or altered by less than these two factors, the incumbent duty holder has the right to remain on that duty in the new realignment/revision if they so wish or they can relinquish the duty and enter the re-pick of duties”.[28]Under this definition of “flowthrough”, it is common ground that Mr Palaima’s roles before and after the revision were more than 29 minutes or 20% different. As such, Mr Palaima did not qualify for flowthrough in the above meaning of the phrase.[29]Mr Hibbert however explained that, in this context, flowthrough was given an expanded meaning and taken to also mean the position for someone who was allocated a specific role due to personal circumstances such as a disability (or a possible disability) requiring reasonable adjustments.[30]In terms of priorities for duties following the revision, SH/WS/28 explained that people with disabilities (labelled as “Equality Act” cases) are given priority, to ensure that they are capable of fulfilling the role allocated to them under the revision. These “personal circumstances” are the only exception to the seniority rule.[31]The most senior employee within the revision is given “number 1” and is given first choice of the job/duty he or she wants following the revision. As above, there were 1200 involved in this revision: the claimant had a seniority number of 1044 (towards the lower end of the seniority scale). Mr Palaima had a seniority number of 751 – SH/WS/29. Placing the claimant on surplus (the alleged detriment under s27 EqA)[32]During the course of the revision process, employees were asked to provide a list of their duty preferences: the claimant’s list is at [239]. That document allowed an employee to write up to 271 duties as preferences: Mr Hibbert told us that there were 500 jobs on display that could be recorded in this type of document as a preference. The document stated: “Please select all of the duties that you are able to perform in order of preference. Please ensure you select sufficient number of duties, otherwise a duty may be selected for you”.[33]That document for the claimant recorded that he put forward 32 duties that he was willing to undertake. In evidence he told us that: “You have to know you are going to enjoy your job – these are the roles I was comfortable with”.[34]Mr Hibbert went through each person in order of seniority and spoke to them with Paul Allen on speakerphone. The claimant was telephoned on 18 September 2023 at 0854hrs – SH/WS/38 and noted on [239] in Mr Hibbert’s manuscript. By the time that Mr Hibbert came to talk to the claimant, given that he was 1044 in seniority, it transpired that the claimant’s preferred 32 duties had already been allocated.[35]The purpose of the call was to discuss the claimant’s preference regarding the duties which were still available at that point, to explain which duties remained and the duty content where appropriate.[36]Mr Hibbert’s evidence was that the claimant accepted the duty “EH250”, as recorded on [239]. This was a weekend early duty based at LPSS, Friday to Tuesday, 0620-1344hrs.[37]Mr Hibbert’s evidence in his witness statement, supported by the contemporaneous note at [239], is that the claimant then called him back at around 0930hrs, changing his mind and cancelling the EH250 duty. Mr Hibbert’s account is that the claimant asked to be placed on the surplus list rather than select one of the vacant duties. This is therefore what happened.[38]The claimant’s case is that Mr Hibbert told him that the only role available was one on a different shift to his original Monday to Friday role. He went on to explain to the Tribunal that Mr Hibbert said that going on the surplus list was the only option if he (the claimant) rejected the EH250 role.[39]We accept that the note on [239] is a contemporaneous and accurate note of the conversation between the claimant and Mr Hibbert. Furthermore, it was recorded at a time at which there was no contemplation of any litigation, and so there would have been no reason for Mr Hibbert to make up the detail recorded on [239].[40]We find that Mr Hibbert called the claimant at 0854hrs on 18 September 2023 and offered him the EH250 duty which the claimant initially accepted. The claimant then called back at around 093hrs to reject the EH250 role. There is then a dispute between the parties about who mentioned “surplus” first. We find that the reality is that, given the claimant’s 32 preferred duties had already been assigned, and he had rejected the role offered by RMG’s management, the only real option left was for the claimant to go on the surplus list. We do not accept that the claimant actively asked to go on the surplus list, but find that there was simply no other alternative and this was the only option left: it was therefore not really an option at all.[41]It follows that we find that the reasons for the claimant being placed on the surplus list were, as set out above: 41.1. The claimant’s preferred 32 duties had been filled by the time RMG reached their discussion with him, due to his seniority level placing him some way towards the bottom of the list of employees with whom roles needed to be discussed; and, 41.2. He then rejected the role he had initially chosen, following Mr Hibbert’s explanation of the remaining duties available by the time of the claimant’s conversation with him.[42]In the event, the claimant was offered and accepted a duty in the External Transit Storage Facility. He was on the surplus list for 2 months, during which time he worked on the late shift as directed, working at either ILC or HWDC[43]The claimant commenced his duty in the ETSF in November 2023 – the duty was LH344 (late shift duty 1424-2148hrs Monday, Tuesday, Thursday, Friday, Saturday). Mr Palaima[44]Mr Palaima was given a position working a late shift Monday to Friday in LPSS. Mr Hibbert explained that this was due to Mr Palaima having a medical condition relating to his back. Mr Hibbert’s evidence was that an employee, Elnara Sadykova, was tasked with producing a list of all those employees affected by the revision who had health issues that required them to be considered under the Equality Act 2010 (“EqA”): in other words, a list of employees who may need reasonable adjustments. Those employees then were seen by Occupational Health (“OH”), who provided advice as to what duties those individuals could and could not do. The OH report regarding Mr Palaima recorded that he would be able to stay in the LPSS and undertake LPSS duties.[45]There is some dispute on this point. Mr Duodo argued that a role within LPSS required that an employee be capable of pushing a container called a “york” weighing 250kg. Mr Hibbert told us that there were many duties and tasks that fell to be done by those in LPSS. The number of employees on duty at LPSS at any given time of day fell between 20 and 33. The fact that Mr Palaima was assigned an LPSS role did not mean that he was required to perform 100% of all the job tasks associated with being on an LPSS duty. We remind ourselves that we heard no evidence regarding the practical tasks that Mr Palaima in fact undertook (and presumably still undertakes) in his LPSS role. We heard no evidence that he was/is required to, or does, undertake the moving of a fully loaded york with a weight of 250kg.[46]The reason given by RMG and Mr Hibbert as to why Mr Palaima was given an LPSS role is that he fell to be considered under the EqA and so was given priority due to those personal circumstances. Although Mr Palaima has been referred to as “flowing through”, it was accepted by Mr Hibbert that Mr Palaima’s old and new roles do not fulfil the definition of flowthrough of being different by only up to 29 minutes or 20%. Mr Hibbert explained, as we have already set out above at paragraphs 29 and 30, that the term “flow-through” was also used for “EqA employees”. Grievance[47]The claimant raised a grievance on 2 October 2023 [147], alleging that the failure to give him a flow-through duty was an act of race discrimination. He compared his treatment to the treatment experienced by Mr Palaima.[48]Ms Forde, as an Independent Case Manager, invited the claimant to a grievance meeting on 10 November 2023 – [152]. The meeting took place on the assigned day, at which the claimant was supported by his CWU rep, Muhammad Ali. The claimant was sent RMG’s notes of the meeting on 13 November 2023, to provide any comments or changes – [153]. The copy of the notes of the meeting at [164] to [172] have been signed by the claimant and we therefore find that those notes accurately reflect his recollection of the meeting. In the meeting, Mr Ali raised the complaint that it appeared that Mr Palaima had been given flow-through when he did not fit the flow-through requirements – [167]. It also appears from the notes that Mr Ali understood that those with disabilities would be select for their roles as a priority – [166].[49]Ms Forde also spoke to Mr Hibbert on 14 November 2023, and had email exchanges with him on 13 November 2023. A note of their conversation is at [174]. The account that Mr Hibbert gave to Ms Forde regarding the manner in which EqA employees were dealt with is consistent in this note when compared to Mr Hibbert’s evidence to us in the Tribunal: Mr Hibbert’s words to Ms Forde are recorded as follows: “[Mr Palaima] is an Equality Act placement and his seniority is 751 and [the claimant] is over 1000. A 293 difference. Equality Act would supersede seniority”. Raymond Thomas[50]Mr Thomas gave evidence in support of the claimant. He told us in his statement that the 2023 revision denied him a flowthrough role, but did give a flowthrough role to his white colleague, Barry McEwan.[51]Mr Hibbert was asked about the circumstances of Mr Thomas and Mr McEwan. His evidence was that the two gentlemen had swapped duties a month or so prior to the revision. Had they not swapped roles, it would have been Mr Thomas who was granted the flowthrough. As it was, because of the swap, the duty that Mr Thomas had been on ceased to exist.[52]Although we are not here to determine a race claim on behalf of Mr Thomas, we do note that he and Mr McEwan were not in the materially same circumstances for the purposes of a comparator exercise under s23 EqA. They evidently were not on the same shift pattern, otherwise there would have been no benefit in swapping, or indeed a need to swap. As such, those two gentlemen cannot be said to be comparators with each other within the meaning of the EqA. Demographics – race and seniority of the Twenty[53]As set out initially, the number of jobs available on late shift Monday to Friday had reduced from 69 to 20. Seniority and ethnicity of the individuals who filled the remaining 20 roles (“the Twenty”) are set out in SH/WS. In summary: 53.1. Two individuals flowed through due to being prioritised due to personal circumstances falling within the EqA. One was Asian and one was White European (Mr Palaima); 53.2. Of the remaining eighteen individuals; 53.2.1. Nine were Asian; 53.2.2. Three were White European; 53.2.3. Five were Black; 53.2.4. One was Black (Other). 53.3. The claimant’s evidence was, taking RMG’s workforce as a whole, the largest ethnic group is Asian, followed by White. The minority group is Black. We accept this evidence; it was not challenged by the respondents. 53.4. Looking then at the numbers of those three ethnicities within the Twenty: 53.4.1. Those identifying as Black (including Black Other) make up 30%; 53.4.2. Those identifying as Asian make up 50%; 53.4.3. Those identifying as White European make up 20%.[54]As such, therefore, it appears that the representation of Black employees in the Twenty in fact surpasses the representation of Black employees across the respondent’s workforce as a whole.[55]In terms of seniority, the most junior in seniority to be appointed as one of the Twenty had a seniority number of 958. This individual was one of two employees who had a lower seniority number to Mr Palaima. This means that, even if Mr Palaima had not been flowed through, he was of such a seniority level that he would still have been high enough up to choose to be one of the Twenty.[56]We note that there were 95 other employees between the claimant and the most junior person who was allocated as of the Twenty. Terms of reference[57]There was a discrete point of concern that the claimant raised with us in his evidence. That is the fact that the respondent was unable or unwilling to provide him with a comprehensive document that set out the TOR that the respondent used in dealing with the revision in 2023. This is not relevant to the issues before us but, due to its importance to the claimant, we make the following findings.[58]The claimant did not understand the revision process: that is no criticism of him at all, just a statement of fact. His understanding was not aided by the lack of dissemination of clear information. We accept that RMG did make available to the claimant (and the rest of the work force) various documentation and information, however it was not done in a digestible and clear manner.[59]We understand that RMG’s management and the CWU had agreed the revision process and that this agreement was binding on the claimant. However, the documents and the process for the revision were not transparent to the individuals affected.[60]We also understand that Ms Forde could not get to the bottom of the question of what precisely the TOR were during the course of her investigation of the claimant’s grievance either. She, rightly in our findings, concluded that there was no one conclusive document that covered the TOR for this 2023 revision.[61]The claimant’s real underlying concern here was that, due to the lack of transparency in the process, it was wrong for Ms Forde to simply accept Mr Hibbert’s explanation without much further (if any) investigation.[62]This point does not affect our decision on the claimant’s claims, however we acknowledge that this may have left the claimant with the impression that Ms Forde accepted Mr Hibbert’s word without question and deferred to him. Legal framework – direct race discrimination[63]Employees are protected from discrimination by s39 EqA: “(2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) - … (d) by subjecting B to any other detriment.”[64]Direct discrimination is set out in s13 EqA: “(1) a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[65]There are two parts of direct discrimination:(a) the less favourable treatment and(b) the reason for that treatment. Sometimes, however, it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – Shamoon v Constable of the Royal Ulster Constabulary [2003] UKHL 11. Reason for less favourable treatment[66]The correct approach to the issue of causation under s13 EqA is to determine whether the protected characteristic, here race, had a “significant influence” on the treatment – Nagarajan v London Regional Transport [1999] IRLR 572. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.[67]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic (in this case, race) was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School [1996] IRLR 372. Burden of proof under the Equality Act 2010[68]The burden of proof for discrimination claims is set out in s136 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”.[69]In Laing v Manchester City Council and anor [2006] ICR 1519, Mr Justice Elias held that: “the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn”.[70]It is not enough for the claimant to show that there has been a difference in treatment between him and a comparator, there must be something more. In Madarassy v Nomura International plc [2007] ICR 867, Lord Justice Mummery held: “56. The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. 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”.[71]At this first stage, the Tribunal is required to consider all the material facts without considering the respondent’s explanation. However, this does not mean that evidence from the respondent undermining the claimant’s case can be ignored at stage one – Efobi v Royal Mail Group Ltd [2021] ICR 1263.[72]In terms of comparators, the definition is at s23 EqA: “(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case”.[73]In Virgin Active Ltd v Hughes [2023] EAT 130 (specifically paragraph 65), it was highlighted by the EAT that the consideration of whether there are material differences in the circumstances of an actual comparator compared to those of the claimant needs to take place before applying the shift in the burden of proof. The EAT gave the following example at paragraph 68: “For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation”.[74]Regarding a hypothetical comparator, the claimant must show that the comparator would have been treated more favourably. This requires the Tribunal to be able to draw inferences of likely treatment of a hypothetical comparator from the evidence before it.[75]It is only if the initial burden of proof is reached that the burden shifts to the respondent to prove to the Tribunal that the conduct in question was in no sense whatsoever based on the protected characteristic – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases [2005] ICR 931.[76]Overall, however, the courts caution against placing too much emphasis on the burden of proof provisions. This was emphasised in Martin v Devonshires Solicitors [2011] ICR 352 when the EAT held that: “39. …[The burden of proof] provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination – generally, that is, facts about the respondent’s motivation (…) because of the notorious difficulty of knowing what goes on inside someone else’s’ head (…). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or another, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law”. Legal framework – victimisation[77]S27 EqA sets out: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because: (a) B does a protected act; or, (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act;(c) Doing any other thing for the purposes of or in connection with this Act;(d) Making an allegation (whether or not express) that A or another person has contravened this Act.”[78]It has been accepted by the respondent that the claimant’s grievance dated 2 October 2023 was a protected act.[79]In terms of the meaning of detriment, the Court of Appeal in Ministry of Defence v Jeremiah [1980] ICR 13 held that a detriment exists: “if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment”.[80]In other words, if the claimant has suffered a disadvantage compared to other employees (whether real or hypothetical), they will have suffered a detriment. Despite this, there is no strict need for a comparator in cases of detriment.[81]For a detriment to be because of a protected act, it is necessary that it had a significant influence on the perpetrator. It is not necessary for the Tribunal to identify conscious or subconscious motivation – Nagarajan v London Regional Transport [2000] 1 AC 501 at p512-513. The meaning of “significant” has been held to mean “more than trivial” – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases [2005] ICR 931. Conclusions Direct race discrimination Actual comparator
Conclusions
[82]We conclude that Mr Palaima is not an appropriate comparator under s23 EqA. There were material differences between him and the claimant, primarily two factors: 82.1. Their respective seniority numbers; and, 82.2. Mr Palaima’s need for adjustments due to his health.[83]As such, we cannot consider Mr Palaima as an actual comparator. We therefore move on to consider a hypothetical comparator. Hypothetical comparator[84]A hypothetical comparator is someone whose circumstances are not materially different to those of the claimant. Specifically, the comparator would be of a seniority number of 1044 on the late shift Monday to Friday at LPSS and Amalgamation, who had filled in the preferences sheet in the same manner with the same content as the claimant at [239].[85]We turn to the next question as to whether there is any evidence from which we could conclude that a hypothetical comparator would have been treated more favourably than the claimant.[86]The Tribunal asked the claimant what he relied on, other than the fact that he is black and Mr Palaima is white, to demonstrate that not giving him a flow through job was race discrimination. The claimant said that this had happened to another black colleague, namely Mr Thomas. As we have set out above, we are not here to determine whether Mr Thomas suffered race discrimination. However, we have heard sufficient evidence to demonstrate that Mr Thomas was not in the same situation as the white individual to whom he compared himself (Mr McEwan). As such, the Tribunal considered that it would be unsafe to draw any inferences from the manner in which Mr Thomas was treated.[87]The Tribunal is therefore in the position in which the only matter that the claimant relies upon regarding a hypothetical comparator is the suggestion that a white comparator in materially the same circumstances as the claimant would be treated more favourably than him. There is no good evidence before us to support this contention. In any event, the claimant has not presented us with the “something more” envisaged by the Tribunal in Madarassy.[88]As such, we are not satisfied that the claimant has placed before us evidence from which we could conclude that Mr Hibbert’s treatment of him was discriminatory. Therefore, we conclude that the burden of proof has not shifted. Reason for treatment of the claimant[89]In any event, we are satisfied that the lack of flow-through for the claimant was due to the application of the Resourcing Jobs as a Result of Major Change Policy, specifically that duties will be allocated in order of seniority with the only exception being regarding the need of an employee due to personal circumstances (such as a disability).[90]In this case, we are satisfied that the reason why the claimant did not flowthrough and get one of the twenty Monday to Friday late shift duties was: 90.1. The claimant did not fall within the exception to the seniority rule (he had no health issues for which adjustments needed to be made). He would therefore be subject to the seniority rule; and, 90.2. His seniority of 1044 meant that he was too far down the list of employees to be given one of the twenty Monday to Friday late attendance shift duties available.[91]The direct race discrimination claim is therefore dismissed. We are satisfied that the reason for the lack of flow-through was in no sense because of the claimant’s race. Victimisation[92]Factually, the alleged detriment of being placed on the surplus list occurred on 18 September 2023. The protected act was done on 2 October 2023. Therefore, the protected act could not have caused the detriment, simply on the chronology.[93]We discussed this point with Mr Duodo at the end of his submissions, making it clear that the only pleaded protected act, as set out in the agreed List of Issues, was the grievance of 2 October 2023.[94]We gave Mr Duodo the opportunity to amend the claim to include other protected acts, having taken some time to discuss the matter with the claimant. He told us that he now said the detrimental treatment was because of several emails in the bundle - [137, 138, 139, 140, 141 and 182]. Looking at these documents and going through them with Mr Duodo, we noted the following: 94.1. [137] is an email dated 22 September 2023. Although this email does contain an allegation of discrimination that could amount to a protected act, it too post-dates the date on which the claimant was placed on surplus, and so cannot have caused the alleged detriment; 94.2. [138] is an email of 21 August 2023 sent to Richard Tilling. There is nothing within that email that could arguably constitute a protected act; 94.3. [139] and [140] bear the same email from the claimant, dated 15 September 2023 at 2011hrs. There is nothing within that email that could arguably constitute a protected act; 94.4. [141] is an email from the claimant to Mr Sagoo, Mr Tilling and Mr Ali dated 1 September 2023. There is nothing within that email that could arguably constitute a protected act; 94.5. [182] is an email of 22 September 2023 from the claimant to various individuals including Mr Hibbert. There is nothing within that email that could arguably constitute a protected act. Furthermore, this email postdates the date on which the claimant was placed on surplus, and so cannot have caused the alleged detriment;[95]When asked by the Tribunal how he said those emails amount to protected acts, Mr Duodo told us that it is really difficult to discuss race in emails. When asked about any verbal discussions, Mr Duodo told us that the claimant had been afraid to use the word “racism” and that he did not in fact intimate that there had been any discriminatory behaviour during any verbal conversations. Mr Duodo therefore conceded during these discussions that there were in fact no further protected acts that he was able to rely upon. As such, he made no formal application to amend the claim to include any further protected acts.[96]We therefore remained in the position in which the one alleged protected act could not factually and chronologically have caused the alleged detriment.[97]In any event we have already determined the reason why the claimant was placed on surplus. Our findings on this point are set out at paragraph 41 above. The reason was in no sense influenced by the protected act.[98]As such, the victimisation claim fails. Approved by: