Mr D TaheriClaimantPerry Motor Sales LtdRespondent
Before
Employment Judge HorneIn person for claimantMr A Sugarman (instructed by Counsel) for respondentDate 12 February 2019
JUDGMENT
[1]The respondent did not discriminate against the claimant because of race.[2]The respondent did not discriminate against the claimant because of age.[3]The claimant is ordered to pay the respondent’s costs assessed in the sum of £1,000.00 on the ground that:3.1 the claim had no reasonable prospect of success; and3.2 the complaint of direct race discrimination was vexatious.
REASONS
[1]By a claim form presented on 28 February 2018, the claimant raised two complaints: 1.1. direct discrimination against an applicant for employment because of race, contrary to sections 13 and 39 of the Equality Act 2010 (“EqA”); and 1.2. direct discrimination against such an applicant because of age, also contrary to sections 13 and 39 of EqA.[2]Both complaints arose out of the claimant's application for employment with the respondent. He was invited to an Assessment Centre, the first stage of which involved a group exercise. Following the group exercise the claimant was told he was unsuccessful in his application and was not given an opportunity to progress to the second stage. In that respect he was treated less favourably than others.[3]The issues that we had to decide were set out in a helpful case management order prepared by Employment Judge Franey following a preliminary hearing on 24 August 2018. At Annex A, paragraph 8, the order stated: “…the issues for determination appear to be as follows:(1) Are the facts such that the Tribunal could conclude that in refusing his application for employment the respondent treated the claimant less favourably because of race?(2) If so, can the respondent nevertheless show that there was no contravention of section 13 Equality Act 2010?(3) Are the facts such that the Tribunal could conclude that in refusing his application for employment the respondent treated the claimant less favourably because of age?(4) If so, can the respondent nevertheless show that it did not contravene section 13? The respondent does not rely on the justification defence in section 13(2).(5) If either of the above complaints succeed, what is the appropriate remedy?”[4]At the start of the hearing the parties confirmed that the list of issues was agreed.
Evidence
[5]The parties gave us a hearing bundle which we marked “CR1”. In general we read all the documents in the bundle to which the parties had drawn our attention, either in witness statements or orally during the course of the hearing.[6]There were two exceptions. The first related to page 118 onwards. The respondent asked us to read those pages, but the claimant objected. The parties agreed that, to help us reach a decision on that point, the respondent’s counsel could summarise the broad nature of the documents, which he did. We ruled in favour of the claimant. Not only did we refuse to read the disputed pages, we also undertook to put (and did put) the respondent’s summary of them out of our mind. We gave oral reasons at the time. Written reasons will not be provided unless a party makes a further request in writing.[7]The second exception related to an e-mail thread dated 18 April 2018. Initially there appeared to be no dispute about whether this document should appear in the bundle. When, during cross-examination, Mr Sugarman started asking the claimant questions about the document, the claimant objected on the ground that it was covered by “without prejudice” privilege. Whilst maintaining the respondent’s stance that no such privilege applied, Mr Sugarman was content for the tribunal to ignore the document for the purposes of determining whether or not the claim was well founded. Accordingly we put it out of our minds.[8]We heard oral evidence from the claimant on his own behalf. The respondent called Mr Hallam, Mr Buckley and Mr Hughes as witnesses. They all confirmed the truth of their written witness statements and answered questions.[9]We also read the witness statement of Ms Leah Kentish-Beard. At the start of the hearing there was a discussion about whether or not Ms Kentish-Beard should be called as a witness. The respondent was prepared to call her, but only wished to do so if it was necessary. As part of that discussion, the claimant confirmed that he did not challenge Ms Kentish-Beard’s evidence, nor would he seek to hold it against the respondent if they did not call her. On that basis the respondent chose not to call Ms Kentish-Beard. Against that background we regarded her witness statement as reliable.[10]That now brings us to the credibility and reliability of the witnesses who did give evidence before us.[11]We will start with the claimant. We decided that we needed to take a cautious approach to the reliability of the claimant's evidence. There were three matters that in our view affected its reliability: 11.1. The first was that some of the claimant’s answers appeared to have been given in a way designed to fit his case more than his recollection. For example, when the claimant was asked why he thought the assessors had taken against him from the start, his answer was that he was a “strong personality” and had asked “pertinent questions” during the initial presentation. In the same vein, he said, “I got the impression that they were looking for sheep and I wasn’t one of those sheep”. According to the claimant, the respondent “felt he would take a lot of controlling”. Apparently as an afterthought, he then added that the respondent also viewed him as older and Middle Eastern. As Mr Sugarman pointed out, it looked as if the claimant had realised at the last moment that his answers had not helped his case and needed correcting. 11.2. The second point that we had to be wary of was that we found an inconsistency in the claimant's evidence about when he telephoned Ms Kentish-Beard. Initially he told us that he had not done it on the same day as the Assessment Centre and had done so after an email. That piece of evidence appeared to be inconsistent with an email from Ms Kentish-Beard on 21 December 2017 (the day after the Assessment Centre) referring to a telephone call the previous day. Moreover, if there had been no phone call between the claimant and Ms Kentish-Beard the day of the Assessment Centre, then another part of the claimant's evidence could not have been right. He told us that he only contacted ACAS after it had been made clear to him by the respondent that they were not going to reconsider their decision or pay his expenses. It is clear from the email trail that that position had not been made clear in any emails by the time the claimant had contacted ACAS. There must have been a telephone call prior to that time otherwise the respondent could not have outlined that stance. When the claimant was asked about the timing of his contacting ACAS, he changed his evidence to say that he may in fact have called Leah Kentish-Beard on the same day as the Assessment Centre. 11.3. The third point which we thought did affect his reliability was that he had sent a deliberately misleading CV to the respondent. He sent his CV in support of a job application in 2018 for a position in Burnley. The CV indicated that the claimant was employed by a particular employer up to the present time. At the time of sending his CV, that statement was incorrect. His employment with that employer had ceased in 2017. The claimant described that as a “difference in formatting”, in that his CV had been correct at the time he prepared it but he had not updated it. His reason for not updating the CV was that he already felt that he was at a disadvantage by being Middle Eastern and 59 years old and did not want to put himself to further disadvantage by indicating on his CV that he was currently out of work. Although we could sympathise with the claimant’s perception that he faced disadvantages in the job market, we could not ignore the fact that he had deliberately chosen not to tell the truth.[12]We turn now to the evidence of the respondent’s witnesses. In general terms we found their evidence to be relatively straightforward and we were able to place a good deal of reliance on what they said.[13]The claimant submitted that we should take a contrary view. As a factor affecting their reliability, he pointed us to an alleged inconsistency between two documents. The first document was an answer given by the respondent’s solicitor to the claimant’s questionnaire under the Equality Act 2010. In answer to a question about how many non-white sales staff worked for the respondent, the solicitors had stated that the respondent did not retain such data. The second document was a set of data prepared by Ms Kentish-Beard and confirmed by her in her witness statement. The document set out a detailed breakdown of the ethnicity of candidates in the particular recruitment exercise about which the claimant complains. According to Ms Kentish-Beard’s agreed statement, she obtained those data from Mr Emerson of Steer Solutions who organised the Assessment Centre.[14]In our view there was no inconsistency between the two documents. It is quite possible, and indeed understandable, that Steer Solutions would keep data on the applicants who had been involved in a recruitment exercise that they had organised. The fact that the respondent might not retain data about its existing employees would not affect in any way whether Steer Solutions would keep the data that they kept.
Facts
[15]The respondent is a large multi-site franchise car dealer with approximately 2,000 employees. Surprisingly, in our view, it has no centralised record of the ethnicity of its employees, although we accept that at least some dealerships keep local data of that kind.[16]The breakdown of age profiles shows that there is a spread of ages across the sales force. The majority belongs to younger age groups, but employees over the age of 55 still make up approximately 13% of the sales force.[17]The claimant describes himself as being of Middle Eastern origin and Iranian ancestry. He describes himself as not looking British. He was 58 years at the time with which we are concerned, and he is now 59.[18]In 2017 the respondent identified a number of vacancies for sales executives in the North West. The respondent had two methods of recruiting sales executives. The first we may describe as the traditional method. It involved applicants sending in their CVs. If the CV was attractive, they were invited to interview, possibly followed by a second interview. The second method did not involve preparation of a CV, or any other kind of document setting out their qualifications and experience. Instead, all candidates who expressed an interest were invited to an Assessment Centre organised by an outsourced provider. As we know, the provider in this case was Steer Solutions. The main advantage of the Assessment Centre method was that it gave applicants a chance to show what they could do without necessarily having experience in the trade. It was not without its challenges, however. Assessors were presented with a large field of candidates which they had to narrow down based on their observations of the candidates’ performance. In practice this meant making relatively swift decisions with limited opportunity to articulate their reasons.[19]Steer Solutions invited 190 candidates to an Assessment Centre which took place on 20 December 2017. Of these, 110 were white. The ethnicity of the remaining 80 candidates was “BAME”, by which we mean Black, Asian and Minority Ethnic. Put another way, the BAME candidates made up 42% of the cohort of 190. Of those 190 candidates, 60 confirmed that they would attend. As it turned out, only 39 actually turned up on the day. Of the 39 who attended 17 were white and 22 were BAME.[20]One of the candidates who attended the Assessment Centre was the claimant. Before describing how the claimant fared, we continue with our overview.[21]The Assessment Centre took place in a country house hotel. The 39 candidates assembled in a large dining room. There was an introductory presentation during which the candidates were given information about the Sales Executive role. There followed a series of exercises in which the candidates were assessed. The exercises included a group session, an individual presentation and a negotiation role-play. After each exercise, a number of candidates was eliminated. Following the final exercise, the successful candidates would be invited to a separate interview with a view to offering them the role. All the assessors involved in the exercise were white.[22]As it turned out, the Assessment Centre on 20 December 2017 resulted in eight offers of employment. Three of the eight (37.5%) were BAME and the remaining five were white. This percentage is very close to the 42% of successful candidates who were BAME. Steer Solutions did not keep data on the age profile of the candidates involved in the Assessment Centre. Most of the candidates were significantly younger than the claimant. One of the 8 candidates who were ultimately offered a role, one was aged between 50 and 54.[23]The group session was the first exercise in the selection process. Candidates were presented with an imaginary scenario, set in the “jungle” of the Central African Republic. Their group was confronted with an emergency, and they were given a list of items of equipment which might come in useful. Their task was, first, to make their own list of items in private, and then to discuss in a group setting what the list of items should be and to try and get as many items as possible from their own list onto the group list. The real purpose of the exercise was not so much to see who was the most persuasive in getting their items on the list, but to see how people interacted with others in a group discussion. The assessors were on the alert for people who were overbearing and unprepared to listen to the opinions of others. People who displayed those tendencies were not allowed to progress to the second stage. In total, 21 candidates passed the group exercise. Ten of them were BAME and 11 were white.[24]We now rewind the clock to describe how the claimant got on. He first came to the attention of the assessors during the initial presentation. Mr Hallam was identifying some of the less attractive aspects of the role, with a view to contrasting them with the “great positives”. One of the drawbacks was that candidates would routinely be expected to work regular Saturdays and occasional Sundays. As Mr Hallam explained the working pattern, the claimant asked a question along the lines of “So is it a six-day week, then?”. The claimant’s impression, in his own words, was that by asking this question, and other “pertinent questions” of this nature, he “ruffled a few feathers”. There is a dispute about whether, at the time of asking that particular question the claimant rolled his eyes, but nothing very significant turns on that dispute. The impression that was gained by the assessors was that the claimant appeared disgruntled.[25]The candidates then separated into groups for the first exercise. Eight of them sat around a table and discussed the Africa scenario whilst the assessors stood nearby with their clipboards.[26]There is a difference of opinion between the parties as to how well the claimant performed during the course of this exercise. Here is how the claimant saw it. He saw himself as ideally placed to lead the group discussion. He had served in the armed forces, he had been to Africa and he had received survival training. He was older than the other candidates in the group, who, in his opinion, seemed “immature”. He thought they would benefit from his guidance and advice. This was one of the times, he believed, where “one has to act like an officer and lead”. He therefore decided to “lead from the front”.[27]The assessors noticed that the claimant was dominating the discussion. In their view, his participation was overbearing. He did not seem prepared to listen to the views of others and appeared to be frustrated when they expressed a different point of view. This was the kind of negative behaviour that the exercise had been designed to expose.[28]Following the group exercise, the assessors met to discuss their impressions of the candidates. They unanimously agreed that the claimant was unsuitable to progress to the next stage. They each marked their decision on their list of candidates without writing down the reasons. We are not especially surprised at the lack of written reasoning – this was the first stage of the assessment process and there was still a large field to narrow down. Their record-keeping became more detailed as the size of the field diminished throughout the day.[29]Meanwhile the candidates were waiting in the dining room to find out who would go forward to the next stage. One of the assessors came into the room and informed them. It was at this point that the claimant learned that he had been eliminated.[30]The same afternoon, after the claimant had left the hotel, he telephoned Ms Kentish-Beard to complain about the Assessment Centre. He complained of age discrimination. He did not mention anything to do with race or ethnicity. In order to reach this finding, we compared the unchallenged evidence of Ms KentishBeard, supported by her contemporaneous e-mail, with the claimant’s oral evidence that he “may have mentioned it”. We preferred Ms Kentish-Beard’s account.[31]This brings us back into the dining room at the moment when the results of the first exercise were announced. There is a dispute as to what happened. The claimant's version is that it was the list of successful candidates that was read out (as opposed to the list of unsuccessful candidates). According to the claimant, none of the people whose names were read out were BAME. We find that piece of evidence impossible to accept, for a number of reasons: 31.1. First, if the claimant’s evidence were correct, he would have very strong grounds for believing that ethnicity had been a factor, if not the main factor, in deciding who should go through the second stage. He has brought between 20 and 30 tribunal claims complaining of discrimination in relation to a number of different protected characteristics, including race. The claims all stem from unsuccessful job applications. The claimant was well practised in spotting facts from which discrimination could be inferred. On the claimant’s version of the facts, race discrimination would have been at the top of his agenda for his conversation with Ms Kentish-Beard. Yet he did not mention race at all. 31.2. The second reason we have for preferring the respondent’s evidence is that it is supported by the assessors’ contemporaneous records. The candidate lists from each assessor’s clipboard show who progressed to which stage of the exercise. What is clear is that there are a number of people with Muslim first names who passed the first round. Needless to say, we must not draw stereotypical assumptions about their ethnic origin simply from their names. We do, however, have a certain amount of general knowledge about the ethnic origins of large sections of the Muslim population in the North West of England. We thought it appropriate to draw on our general knowledge. It lends support to the other evidence about the ethnicity of the candidates who progressed. 31.3. The third reason for preferring the respondent’s version to the claimant’s, is that the claimant did not challenge Ms Kentish-Beard’s evidence about the profile of candidates who progressed beyond the first round. 31.4. Fourth, we accept the evidence of Ms Kentish-Beard and the oral evidence of Mr Hallam about the identity of the people who were offered the role. As we have already recorded, 3 of the 8 successful candidates were BAME. They included a person whose first name was Arnold. He is visibly black, being of Afro-Caribbean ethnic origin. There was another person whose first name was Hamza. Not only was she visibly of Asian ancestry, but her name stands out as one that is likely to belong to someone of BAME origin. Neither of these candidates could have been offered the role unless they had passed the first exercise.[32]On 5 March 2018, about a week after the claimant presented his claim, he emailed Ms Kentish-Beard with a discrimination questionnaire. We have referred already to the questionnaire at paragraph 13. The respondent’s solicitors provided a reply by letter dated 19 April 2018.[33]The claimant’s disappointing experience at the Assessment Centre did not put him off applying for employment with the respondent. Shortly before the tribunal hearing, the claimant applied for a role in the respondent’s Burnley dealership. He submitted his CV (about which we have already commented) and was invited for interview, followed by a second interview. At the time of the tribunal hearing he was waiting to hear the outcome. These facts tend to show that the claimant was capable of giving a good account of his skills and experience in an interview setting. They do not, in our view, shake the reliability of the respondent’s witnesses’ evidence about how the claimant performed at the Assessment Centre. The group exercise was quite different in nature from a traditional job interview and called for a different set of skills. Relevant Law Direct discrimination
Relevant Law
[34]Section 13(1) of EqA provides: (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.[35]Section 23(1) of EqA provides: (1) On a comparison of cases for the purposes of section 13…there must be no material difference between the circumstances relating to each case.[36]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 because of the protected characteristic? That will call for an examination of all the facts of the case. Or was it for some other reason? If it was the latter, the claim fails. These words are taken from paragraph 11 of the opinion of Lord Nicholls in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, updated to reflect the language of EqA.[37]Less favourable treatment is “because” of the protected characteristic if either it is inherently discriminatory (the classic example being the facts of James v. Eastleigh Borough Council, where free swimming was offered for women over the age of 60) or if the characteristic significantly influenced the mental processes of the decision-maker. It does not have to be the sole or principal reason. Nor does it have to have been consciously in the decision-maker’s mind: Nagarajan v London Regional Transport [1999] IRLR 572.[38]Tribunals dealing with complaints of direct discrimination must be careful to identify the person or persons (“the decision-makers”) who decided upon the less favourable treatment. Where a decision has been made jointly, the motivation of all the joint decision-makers is relevant: CLFIS (UK) Ltd v. Reynolds [2015] EWCA Civ 439.[39]Section 136 of EqA applies to any proceedings relating to a contravention of EqA. By section 136(2) and (3), if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A shows that A did not contravene the provision.[40]In Igen v. Wong [2005] EWCA Civ 142, the Court of Appeal issued guidance to tribunals as to the approach to be followed to the burden of proof provisions in legislation preceding EqA. They warned that the guidance was no substitute for the statutory language:(1) … it is for the claimant who complains of … discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination ... These are referred to below as "such facts".(2) If the claimant does not prove such facts he or she will fail.(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of … discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in".(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.(5) It is important to note the word "could" in s. 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw …from an evasive or equivocal reply to a [statutory questionnaire].(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts…This means that inferences may also be drawn from any failure to comply with any relevant code of practice.(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.[41]The initial burden of proof is on the claimant: Ayodele v. Citylink Ltd [2017] EWCA 1913[42]It is good practice to follow the two-stage approach to the burden of proof, in accordance with the guidance in Igen v. Wong, but a tribunal will not fall into error if, in an appropriate case, it proceeds directly to the second stage. Tribunals proceeding in this manner must be careful not to overlook the possibility of subconscious motivation: Geller v. Yeshrun Hebrew Congregation [2016] UKEAT 0190/15.[43]For the burden of proof to shift, it is not enough for a claimant to show a difference in treatment and a difference in characteristic. Something more is required. There must be facts from which the tribunal could conclude that it was the difference in characteristic that materially influenced the less favourable treatment: Madarassy v. Nomura International plc [2007] ICR 867.[44]We are reminded by the Supreme Court in Hewage v. Grampian Health Board [2012] UKSC 37 not to make too much of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.
Conclusions
[45]Applying the law to the facts we unanimously reached the following conclusions. Race discrimination[46]We accept the respondent’s submission that the claimant has failed to discharge the initial burden of proof. In coming to this view, we have considered the claimant’s submission that the burden shifts to the respondent because of the respondent’s inadequate record-keeping of ethnicity information in relation to its employees. We are bound to observe that it is not particularly impressive for such a large organisation as the respondent to fail to hold a central database of ethnic monitoring information. Data such as this helps to identify disadvantages and areas where subconscious bias may have affected decision-making. But this observation does not help us conclude that race was a factor in this case. Whatever the adequacy of record-keeping in relation to the established workforce, the fact is that precise and detailed ethnicity data was kept by Steer Solutions in relation to this particular recruitment exercise. There is an almost exact correlation between the BAME make-up of the initial Assessment Centre invitees and the BAME make-up of the successful candidates. There is nothing else, in our view, that would shift the burden. In particular, we have rejected the evidence that it was only the white candidates who were allowed to progress beyond the first stage.[47]If we are wrong about that and the burden does shift to the respondent, we accept the explanation given by the respondent on the balance of probabilities that the reason why the claimant did not progress to the second stage was because of his manner that he demonstrated during the group exercise as it appeared to them. Considerations of the claimant's race, whether Middle Eastern or Iranian origin or any other aspect of his race, simply did not enter into their thinking, either consciously or subconsciously. Age discrimination[48]We now turn to the age discrimination complaint. In our view there are no facts from which we could conclude that the claimant’s age was taken into account when deciding that the claimant should not progress. We looked not just at the events of the Assessment Centre itself, but at surrounding circumstances such as the general age profile of the respondent’s sales force. Whilst younger age groups were over-represented, the difference was not stark. We also bore in mind that one of the ultimately successful candidates was over 50 years old.[49]If we are wrong in our application of the burden of proof, we would go on to say that respondent has in any event proved to us that the claimant’s age had nothing to do with the selection decision. The claimant was rejected after the first round because the assessors believed, based on their observation of his performance in the group exercise, that he was overbearing and unlikely to work well as part of a team. The claimant’s age was neither a conscious nor a sub-conscious part of their thinking.
Disposal
[50]It follows from these conclusions that the less favourable treatment was not because of age or race. The claim is not well-founded and must therefore be dismissed.
Conclusions
[51]Employment tribunals exist to adjudicate on claims brought by people with a genuine belief that their employment rights have been contravened. The purpose of the claimant’s race discrimination claim was quite different. It was an abuse of the tribunal’s process.[52]In reaching this conclusion we took into account the claimant’s e-mail of 18 April 2019. But even if we had completely ignored this e-mail, our conclusion would have been the same. It was one example of the claimant putting pressure on the respondent to settle for reasons other than the merits of his claim. But it was not the only example: see his e-mail copied to Watchdog.[53]We therefore have additional power under rule 76(1)(a). Age discrimination complaint not vexatious[54]We did not go as far as to consider that the claimant’s complaint of age discrimination was vexatious. As we have found, he did think that his age had been a factor in the respondent’s decision-making. His motives, though mixed, included a desire to use the tribunal for its proper purpose: see paragraph 25. Age discrimination complaint – no reasonable prospect[55]The remaining strand of the application is under rule 76(1)(b). In our view, it has force. The complaint of age discrimination had no reasonable prospect of success. His claim form and witness statement asserted little more than a difference in age and a difference in treatment. The “something more”, that might have shifted the burden to the respondent, emerged in the hearing before Employment Judge Franey, when the claimant contended that nobody over the age of 35 had made it past the first round. But that assertion was incorrect. The claimant ought to have known that he had no reasonable prospect of challenging the respondent’s assertion that at least one of the successful candidates was over 50. In the event, he did not challenge that assertion at the hearing. Discretion to award costs[56]Just because we have the power to make a costs order does not mean that we should necessarily do so. Our power is discretionary.[57]Before exercising our discretion we consider the claimant’s arguments as to why a costs order should not be granted: 57.1. Genuine belief - We have already dealt with his argument that he genuinely believed that he had a well-founded claim. As regards race discrimination, he did not. 57.2. Respondent should have applied to strike out the claim – In our view, the respondent is not to blame for its decision not to pursue a strike-out application. It is only in rare cases that discrimination cases can be struck out, especially where there is a central core of disputed fact. Here, the claimant had made an important factual allegation that only the white people had progressed to the second round. That allegation was hard to debunk without hearing the evidence. It would be difficult at a preliminary hearing to establish that the complaint of race discrimination had been vexatious, since it would have involved exploring the evidence as to whether the claimant genuinely believed he had been discriminated against or not. Moreover, the respondent was entitled to keep proportionality in mind. The final hearing lasted only two days. It will have been more expensive than a two-hour preliminary hearing, but the difference in cost could quite reasonably be thought to be insufficient to justify a speculative strike-out application. 57.3. The claimant’s health – The claimant did not explain how his health had caused him to bring the race discrimination complaint (in which he did not believe), or to overestimate the prospects of success. He demonstrated an ability to engage with the respondent and its representatives and to participate in a case management hearing. We did not see why his health was a reason for refusing to make a costs order. 57.4. Ability to pay – We thought that this consideration was highly relevant to the amount of a costs order. It was less important to the question of whether a costs order should be granted at all.[58]Looking at the whole case in the round, our view is that the claimant should be ordered to make a payment towards the respondent’s costs. His actions in bringing a hopeless claim and abusing the tribunal’s procedures have put the respondent to considerable expense. The claimant should at the very least make a contribution to putting matters right. Amount of costs[59]We first considered whether or not the respondent’s costs were proportionate. In our view they were. Allegations of discrimination need to be taken seriously. Claimants cannot complain if respondents instruct counsel in these sorts of cases. In our experience, £7,000 is by no means an excessive amount of money to spend on a case that involved a preliminary hearing and a two-day final hearing.[60]This just leaves the claimant’s ability to pay. On the facts we have found, we think that the claimant, for the foreseeable future, will have a very limited income that will not substantially exceed his outgoings. He is unlikely to acquire substantial savings. It is unlikely that in the foreseeable future he will obtain employment that will make him significantly better off than he would be on benefits.[61]We think it would be unreasonable to make a costs order that would require him immediately to sell his house. We also think it would be unreasonable to make a costs order that could only be satisfied on the sale of his house, even a delayed sale, if there was no prospect of the claimant acquiring either savings or a substantial income in the meantime. We do not think it would be reasonable to expect the claimant to sell his car without buying a replacement. If he is to obtain employment at all, it is likely to be in a field-based role. Selling his car would make it even more difficult for him to find employment.[62]We do, however, think that it is possible for the claimant to satisfy a costs order in the sum of £1,000. He can either dip further into his current account and continue to pay interest on his credit card, or he could afford to sell his car and buy a cheaper one. We think that there is sufficient value in his car to enable him to obtain £1,000 in disposable capital.[63]For these reasons the amount of the costs order is for £1,000. It would have been considerably more but for the claimant's limited ability to pay.
Conclusions
[1]At a hearing on 19 and 20 December 2018, and in a judgment sent to the parties on 9 January 2019, the tribunal dismissed the claimant’s complaints of direct race discrimination and direct age discrimination. The same judgment contained an order that the claimant pay the sum of £1,000.00 towards the respondent’s costs. On 25 January 2019, the tribunal sent two sets of written reasons for that judgment, which I shall call the “Liability Reasons” and the “Costs Reasons”.[2]By e-mail dated 7 January 2019 the claimant applied for reconsideration of the judgment. His grounds were: “
Conclusions
[1]I was ill during the hearing and the case should have been adjourned is my illness impaired my judgement. Medical evidence is attached.[2]Introduction of Bad Character by Mr Sugarman prejudiced The Panel.[3]Respondents witnesses lied as “Arnold” does not exist no one at Mr Hallam dealerships have [ever] heard of a Black Arnold. Arbaz is not of Asian descent he is Albanian.[5]Panel member was seen talking to Mr Hallam so collusion is suspected.[6]All people present at the hearing or white so this again violated my Article 6 human rights.[7]The hearing was procedurally incorrect and the law was not applied correctly.[8]To say I lied about my CV is evidence of the Panel’s bias. I was working part-time at the time of my application to the Respondent.[9]As I was Litigant-in-Person and Respondent was represented by Counsel this tip the scales of justice in favour of The Respondent.[10]Cost application was fraudulent as costs have not been properly formatted.[11]Emails from Toni Haynes were “Without Prejudice” as they were CC to ACAS. Counsel failed to give the Tribunal the full picture.[12]Mr Sugarman behaviour was unprofessional and racist.” 3. Attached to the email with the following documents: 3.1. a general practitioner fit note addressed to the claimant dated 24 December 2018 stating, “I assessed your case on 24/12/2018 and, because of … Anxiety with depression I advise you that you are not fit for work… from 17/12/2018 to 17/1/2019”. 3.2. An NHS specimen label dated 7 January 2019. 3.3. A chain of e-mails between 22 March 2018 and 18 April 2018. Most of the chain already appears at pages 111 to 113 of the hearing bundle. Additionally, the chain contains two e-mails sent by the respondent to the tribunal on 22 March 2018 and 9 April 2018, and an e-mail sent by the claimant at 4.34pm on 9 April 2018 to Mr Haynes, copied to ACAS. That email states “At this late stage I am willing to accept settlement via ACAS”. 3.4. An almost identical e-mail chain, but containing a further e-mail sent by Mr Haynes at 12.02pm on 18 April 2018. The e-mail asked for an extension of time to respond to the claimant’s latest offer. 4. On reading the application, I thought that it contained insufficient information to demonstrate any reasonable prospect of the judgement being revoked or varied. I bore in mind, however, that the claimant was representing himself and may not have appreciated what information he would need to provide in support of his application. Rather than dismissing the application, therefore, I decided to defer my preliminary consideration and give the claimant an opportunity to provide further information. Accordingly, on 1 February 2019, the tribunal wrote to the claimant in these terms: “Employment Judge Horne has read the claimant’s reconsideration application dated 7 January 2019. He has decided to defer his preliminary consideration of the application and to seek further information from the claimant in the meantime. The further information required from the claimant is as follows: 1. In relation to Ground 1 (adjournment on medical grounds), the claimant is required to state in full what his arguments would have been at an adjourned hearing had an adjournment been granted. These arguments must be set out in writing in as much detail as the claimant would have provided at the adjourned hearing. 2. In relation to Ground 2 (“Bad Character”), the claimant must state whether the claimant is referring here to the documents contained at pages 118 onwards of the bundle. 3. In relation to Ground 3 (Arnold), the claimant must set out his basis for making this assertion. If he has heard it from somebody else, he must say who that person is. If it is based on a document, he must provide a copy of that document. 4. In relation to Ground 5 (collusion with Mr Hallam), the claimant must name, or otherwise identify, the person who allegedly saw a member of the tribunal talking to Mr Hallam and full details of what that person saw. 5. In relation to Ground 7 (incorrect law and procedure), the claimant must identify the relevant legal principles and rules of procedure. 6. In relation to Ground 12 (Mr Sugarman’s behaviour), the claimant must set out what behaviour he alleges was unprofessional and racist. …” 5. The claimant replied by email on 6 February 2019. Adopting the same paragraph numbering as in the tribunal’s letter, he provided the following further information: “ 1. Medical adjournment I would have cross-examined all witnesses and called them “liars” as Arnold never existed and The Respondents defence was a Tissue of lies. If Arnold had existed surely he would have given evidence! Arbaz was a male from Albania and he was never employed again why didn’t he give evidence? 2. Bad character As I dont have the bundle I can only presume you are referring to incident in 2008. To say you simply put this out of your minds has violated my Article 6 Human rights. 3. Arnold I have made exhaustive enquiries about Arnold that no one of Mr Hallam dealerships has ever heard of him or Arbaz. Crucially yesterday I met Eddie who used to work for Perrys at Burnley with Dave Hallam he is a black guy and told me he was the only black Salesperson in this area and there were no Asian Salespeople he further told me that Arnold did not exist and if he had why didn’t The Respondent produce him as a witness. I asked Eddie if he would make statement on my behalf but he was worried that The Respondent would attack his character as he was sacked due to violent racist incident at the Burnley showroom. 4. David Hallam I saw Mr Hallam outside the Tribunal building talking to Panel member and shaking hands I suspect they had made a deal to get my case thrown out 5. The law The Judge has been deliberately bias towards me and not used the law correctly to allow a fair and impartial hearing thus violating my Article 6 Human rights. The Costs Order is totally illegal and this whole matter is a total travesty of justice. 6. Mr Sugarman Mr Sugarman attempts to undermine my defence were illegal and he omitted crucial evidence eg Without Predudice emails via ACAS also his actions were racist and totally illegal. 7. Judge’s conduct The Judges conduct and subsequent written reasons just show how biased the Tribunal was and in my opinion racist as I was the only non white person at the hearing. My case was Prima facie and I have faced substantial discrimination by many potential employees this is just attempt to try and teach me a lesson. I did not “Storm out” I left and did not return as I was ill and did not want to hear the findings of the racist file awarding an illegal Costs Order against me.” Relevant law 6. Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”. 7. Rule 71 sets out the procedure for reconsideration applications. 8. By rule 72(1), “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked… the application shall be refused…” 9. The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. Dealing with cases fairly and justly, to my mind, includes allowing, where possible, parties to rely on all the evidence upon which they wish to rely that is relevant to the issues to be decided. It also, by rule 2, includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues. 10. Article 6(1) of the European Convention on Human Rights provides: “In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…” Further enquiries 11. Ground 5 of the application alleged that a member of the panel was seen talking to Mr Hallam. It is vitally important that panel members are not only impartial but also seen to be impartial. I was therefore keen to find out from both lay members of the tribunal whether they had spoken to Mr Hallam and, if so, the full detail of what happened. Accordingly, the assistant to the Regional Employment Judge asked both lay members to provide this information in writing. They separately confirmed very clearly that they had no such conversation. Conclusions 12. I start by reviewing each of the grounds for reconsideration: Ground 1 – ill health[13]There is no contemporaneous medical evidence about the claimant’s state of health during the hearing. His GP fit note was retrospective. Moreover, it did not comment on the claimant’s ability to attend a tribunal hearing. As the Costs Reasons relate at paragraphs 5 to 8, at no stage did the claimant say that he was unwell, although he did say during the costs hearing that the “personal attacks” had “brought out a lot of hurt”.[14]The claimant’s health did not prevent him from participating fully in the liability hearing. He presented clear and detailed arguments, some of which we accepted (see, for example, our decision at Liability Reasons paragraph 6 to refuse to admit documents into evidence). He asked questions of witnesses and was able to make oral submissions. At no stage did he ask for an adjournment before the respondent applied for costs.[15]The claimant did ask for an adjournment during the costs hearing. But even if the claimant’s health had, by that time, prevented him from participating effectively, there is still no reasonable prospect of the Costs Judgment being revoked. This is because I now know what the claimant would have argued if he had been well enough to argue it. His full argument is set out under the heading, “Medical Adjournment”. Dealing with the points he now says he would have made: 15.1. Calling the witnesses “liars” would have been unlikely to make a significant difference to the reliability of their evidence. 15.2. The claimant’s decision not to cross-examine Ms Kentish-Beard was made at the start of the hearing, about 45 minutes before the claimant made his successful submission and the day before he asked for an adjournment. He still has not put forward any basis for arguing that Ms Kentish-Beard’s evidence was inaccurate. 15.3. It is highly unlikely that the claimant’s evidence about Arnold (had he given it) would have swayed us. At its very highest, it would be evidence that a former employee of the respondent (“Eddie”) had told the claimant that Arnold did not exist. But that evidence (assuming it to be true) would have to be weighed against the oral evidence of Mr Hallam that Arnold did indeed exist. Mr Hallam gave evidence on oath and had his version of events tested by questioning. Eddie’s evidence could not have been tested in that way. 15.4. The existence, and national origin, of Arbaz did not feature significantly in our reasoning, so evidence that he was from Albania would not have altered our findings. 15.5. Had the claimant asked us to draw an adverse inference from the respondent’s omission to call Arnold and Arbaz, it is highly unlikely that we would have drawn such an inference. It would only be in a very rare case that an employer would need to call an employee as a witness in order to prove the fact of his existence. 15.6. We had many reasons for concluding that the complaint of race discrimination was vexatious and lacking in prospects. The existence or otherwise of Arnold was relevant to one of those reasons (namely whether the claimant had any basis for believing that it was only the white candidates who had progressed beyond the first stage). But there were many other reasons for our conclusion: see Costs Reasons 26, 27 and 50 to 52. Ground 2 – “Bad Character”[16]It is now reasonably clear that, by “Bad Character”, the claimant is referring to the matters described at pages 118 onwards of the bundle. We did not read them and did not allow Mr Sugarman’s summary of them to influence our decision. The claimant consented to this approach (see Liability Reasons, paragraph 6). I do not see how his right to a fair hearing was adversely affected. Ground 3 - Arnold[17]We accepted Mr Hallam’s evidence about Arnold. There was no evidence to contradict it. As I have explained under Ground 1 – it is highly unlikely that new evidence about what Eddie said about Arnold would cause us to alter our findings of fact. Ground 4 – Arbaz[18]See under Ground 1 – The national origin of Arbaz was not a factor in our decision. Ground 5 – Collusion with Mr Hallam[19]The lay members of the tribunal have confirmed that they did not speak to Mr Hallam outside the hearing. I can assure the claimant that I did not do so either. In these circumstances there is no prospect that the tribunal will find that any of its members colluded with Mr Hallam. If the claimant wishes to pursue this point, he will have to do so on appeal. Ground 6 - Demographic of the hearing room[20]The claimant’s right to a fair hearing was not violated by the fact that everyone else in the room was white. Article 6 does not require the tribunal, or any member of it, to share the same protected characteristics as the parties to the hearing. Ground 7 – Incorrect application of law and procedure[21]In the light of the claimant’s e-mail of 6 February 2019, this now appears to be an allegation of bias. I was not deliberately biased either “towards” the claimant or against him.[22]I remain open to persuasion that I have “not used the law correctly”, but in order to engage with this argument I would need to know which point of law I allegedly misapplied or got wrong. The claimant has had an opportunity to point out any errors of law and has not done so.[23]The costs order was not illegal. The Costs Reasons set out the legal power to award costs. Ground 8 – The claimant’s CV[24]In Liability Reasons paragraph 11.3 we explained our finding that the claimant had submitted a misleading CV. The claimant’s reconsideration application states, “I was working part-time at the time of my application to the respondent”. That assertion is different from his oral evidence to us. He sent his CV to the respondent on 26 November 2018. He told us, in December 2018, that he had been on Employment Support Allowance for over a year and that he had last been in work “some time last year”. There is no reasonable prospect of our now finding that the claimant’s CV was accurate. Ground 9 – Imbalance in legal representation[25]Self-represented parties can be put at a disadvantage compared to a party who is legally represented. The overriding objective requires tribunals, so far as practicable, to ensure that the parties are on an equal footing. This is what we tried to do in the claimant’s case. We explained aspects of the procedure to him (such as “re-examination”) as we went along. We also reminded the claimant, once he had told us he had finished asking questions in cross-examination, of the need to put his case to the witnesses, so he would not be disadvantaged by a failure to do so.[26]Placing the parties on an equal footing does not mean finding in favour of the unrepresented party. The claimant is not suggesting that he is about to be legally represented and has not explained how, if he were legally represented, the tribunal’s conclusions would be any different. I cannot therefore see any prospect of the judgment being varied or revoked. Ground 10 – costs application “fraudulent”[27]There is no evidence of any fraud at all in the costs application. It was not supported by a costs schedule, but it did not need to be. It was obvious from the documents in the bundle and the presence of counsel at a two-day hearing that the respondent had incurred more than £1,000 in costs. Ground 11 – “without prejudice” e-mails[28]We explained (Costs Reasons paragraphs 37 to 44) why we admitted the disputed e-mails into evidence.[29]The claimant’s point now appears to be that the respondent should also have informed us about further “without prejudice” e-mails. (This is the opposite of the point that the claimant was making at the hearing, which was that we should not consider the e-mails at all.) It would have been open to the claimant at the hearing to draw our attention to the e-mails himself. Other than saying that the further e-mails are “crucial”, he has not stated what those further e-mails say, or how they might alter our findings. Ground 12 – Mr Sugarman’s behaviour[30]The claimant’s e-mail identifies two ways in which Mr Sugarman is alleged to have behaved inappropriately: 30.1. His “attempts to undermine my defence were illegal”; and 30.2. “he omitted crucial evidence eg Without Prejudice e-mails…”[31]Although it is not entirely clear what the claimant’s first point means, I take it to be a reference to Mr Sugarman’s attempt to rely on page 118 onwards in the bundle. To be clear, Mr Sugarman himself was not breaking the law, but on the respondent’s behalf he was inviting the tribunal to take a course which (in our view) would have contravened a statutory provision. That is why we refused to admit the documents. There is no prospect of persuading us to alter the judgment simply by reminding us that the respondent should not tried to rely on those documents.[32]I have dealt with the claimant’s point about “without prejudice” e-mails.[33]The remainder of the claimant’s points under this heading are simply bare assertions and there is no reasonable prospect of the tribunal agreeing with them. “Judge’s conduct”[34]This ground for reconsideration did not feature in the claimant’s original application, but was introduced in his e-mail of 6 February 2019. Although headed, “Judge’s conduct”, it actually alleges that the entire panel was racist.[35]There is no reasonable prospect of me, or the lay members of the tribunal, agreeing with the claimant that we discriminated against the claimant because of race, or are “racist” in any other way. Nor were we trying to teach the claimant a lesson. It was the respondent, not the tribunal, who applied for costs. We had to decide whether or not his claim was vexatious, or stood no reasonable prospect of success. Otherwise we would not know whether or not we had the power to make the costs order which the respondent sought.[36]If the claimant wishes to pursue these points, his better course would be to raise them on appeal to the Employment Appeal Tribunal.
Disposal
[37]Looking at the whole application I cannot see any reasonable prospect of the judgment being varied or revoked. The application is therefore dismissed.