Mr G Ferguson-Haizel v Hertfordshire Partnership University NHS Foundation Trust and Others: 3304723/2024

EMPLOYMENT TRIBUNALS

Case No 3304723/2024

Between

MR GEORGE FERGUSON-HAIZELClaimant

HERTFORDSHIRE PARTNERSHIP UNIVERSITY NHS FOUNDATION TRUST AND OTHERSRespondent

Before

Employment Judge Skehan

Mr Otchie (instructed by counsel) for claimant

Ms Tharoo (instructed by counsel) for respondent

Date 6 February 2026

REASONS

Introduction

[1]The Judgment in this matter dismissed the claimant’s unfair dismissal, unauthorised deduction from wages claim and unpaid holiday pay claim upon withdrawal by the claimant. My Judgment was completed on 14 November 2024 and sent to the parties by the Employment Tribunal on 31 December 2024. These written reasons were requested by the claimant by email dated 3 February 2025. These reasons were requested outside of the permitted time period, however I consider that it would be in line with the overriding objective to provide these reasons for clarity for the claimant.

[1]The Judgment dismissing the claim for unfair dismissal and unauthorised deduction from wages and unpaid holiday pay was made following a hearing on 14 November 2024. At this hearing, the claimant was represented by Mr Otchie of counsel.

[2]During the hearing, I discussed with both representatives, the various claims brought by the claimant. The respondent had previously noted that the claimant remained employed by the respondent and questioned the basis of the claimant’s unfair dismissal claim. During the hearing, Mr Otchie confirmed that the claimant remained employed by the respondent and that the claimant wished to withdraw his claim for unfair dismissal for this reason.

[3]Mr Otchie confirmed that the claimant had had the opportunity to further consider his unauthorised deduction from wages and unpaid holiday claim and wished to withdraw both of these claims.

[4]The remainder of the claimant’s claims proceeded and are set out within my case management order prepared following the hearing. The claimant’s remaining claims which are unaffected by the dismissal Judgment are:a. Direct race discrimination

b. Direct age discrimination

c. Indirect race discrimination

d. Victimisation; and

e. Detriment on the grounds that he made a protected disclosure.

[5]The Employment Tribunal rules that were applicable at the time provide:a. Rule 51, ‘end of claim’. Where the claimant informs the tribunal… in the course of the hearing, that a claim, or part of it is withdrawn, the claim, or part, comes to an end, subject to any application the respondent may make for a costs, preparation time or wasted costs order.

b. Rule 52 ‘dismissal following withdrawal’. When a claim, or part of it, has been withdrawn under rule 51, the tribunal shall issue a Judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same claim or substantially the same, complaint) unlessi. the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that the would-be legitimate reason for doing so; or ii. the tribunal believes that issue such a Judgment would not be in the interests of justice.

The issues

[6]When the above-mentioned claims were withdrawn, there was no mention that the claimant may wish to reserve the right to bring such a further claim for any reason. Further, having discussed the background of the withdrawal with the claimant’s representative as set out above, I was unable to identify any circumstances that would have made it appropriate for the claimant to reserve the right to bring a further claim. I concluded that the issue of a Dismissal Judgment would be in the interests of justice. Approved by:

The issues

[1]Direct Race Discrimination (Equality Act 2010 Section 13)1.1 The Claimant is Black African.

1.2 Did the Respondent do the following:1.2.1 Breach its own procedures by not having a BAME individual on the interview panel for the role of Nursing Associate Band 4 on 14 December 2023.

1.2.2 Not offering the Claimant the role of Nursing Associate Band 4 following his interview on 14 December 2023.

1.3 If so, did any of the above amount to less favourable treatment? The Claimant compares himself to the successful candidates (Rob Rawlings and Aymen Labbane).

1.4 If so, was it because of race?

[2]Direct age, discrimination (Equality Act 2010 section 13)2.1 The claimant was 53 at the date of the interview and compares his treatment with people in the 30s.

2.2 Did the respondent do the following things:2.2.1 Breach its own procedures by not having a BAME individual on the interview panel for the role of Nursing Associate Band 4 on 14 December 2023.

2.2.2 Not offering the Claimant the role of Nursing Associate Band 4 following his interview on 14 December 2023.

2.3 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. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than these successful candidates.

[3]Indirect Race Discrimination (Equality Act 2010 Section 19)3.1 A “PCP” is a provision, criterion or practice. Did the Respondents have the following PCP(s):3.1.1 Including a matron (the Third Respondent) on the recruitment panel for the role of Nursing Associate Band 4;

3.1.2 Not including a BAME member on the interview panel for the role of Nursing Associate Band 4;

3.2 Did the Respondents apply any of the PCPs to the Claimant?

3.3 Did the Respondents apply any such PCP to non-Black applicants or would it have done so?

3.4 Did the PCP put persons with whom the Claimant share the characteristic of Black African race at a particular disadvantage when compared with those of White race, in that:3.4.1 the respondent’s recruitment policy was not considered during the recruitment process;

3.4.2 the applicants experience and background was not considered by somebody with a BAME background;

3.4.3 the interview panel has the wrong experience to consider the appellant’s skills and experience;

3.4.4 the applicants were disadvantaged by a panel including somebody who had previously worked with applicants.

3.5 Did the PCP put the Claimant at that disadvantage?

3.6 Was the PCP a proportionate means of achieving a legitimate aim? The Respondent says that its aims were: 3.6.1 Being able to operate the recruitment and selection process effectively and efficiently in light of staff and Service User availability.

[4]Victimisation (Equality Act 2010 section 27)4.1 It is common ground that the claimant did a protected act as follows: 4.1.1 Making a report on 7 February 2024 ?

4.2 Did the respondent do the following things: 4.2.1 Suspending the claimant between 19 June and 26 July 2024.

4.3 By doing so, did it subject the claimant to detriment?

4.4 If so, was it because the claimant did a protected act?

4.5 Was it because the respondent believed the claimant had done, or might do, a protected act?

[5]Protected disclosure5.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:5.1.1 What did the claimant say or write? When? To whom? The claimant says they made disclosures on these occasions: 5.1.1.1 report on 7 February 2024;

5.1.2 Did they disclose information?

5.1.3 Did they believe the disclosure of information was made in the public interest?

5.1.4 Was that belief reasonable?

5.1.5 Did they believe it tended to show that: 5.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation. The claimant refers to the legal obligation upon the respondent to comply with the Equality Act 2010;

5.1.6 Was that belief reasonable?

5.2 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer.

[6]Detriment (Employment Rights Act 1996 section 48)6.1 Did the respondent do the following things: 6.1.1 Suspending the claimant between 19 June and 26 July 2024.

6.2 By doing so, did it subject the claimant to detriment?

6.3 If so, was it done on the ground that they made a protected disclosure?

[7]Remedy for discrimination or victimisation7.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?

7.2 What financial losses has the discrimination caused the claimant?

7.3 Has the claimant taken reasonable steps to replace lost earnings?

7.4 If not, for what period of loss should the claimant be compensated?

7.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

7.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

7.7 Did the respondent or the claimant unreasonably fail to comply with it?

7.8 If so is it just and equitable to increase or decrease any award payable to the claimant

7.9 By what proportion, up to 25%?

7.10 Should interest be awarded? How much? Fact finding 7. The claimant was and remains employed by the first respondent as a Band 3 Healthcare Assistant. He commenced employment in August 2011. We understand he was promoted to a Band 3 role in July 2012. Throughout his employment, the claimant has been based at Beech Ward. That is a low secure forensic mental health unit for male patients.

[8]This is a claim brought against the first respondent as the claimant's employer, but also two named individuals. They are:3.1 Ms Valerie O’Dwyer, who was the interim team leader for the unit and was in charge of the day to day running of the unit, and

3.2 Ms Frances Sheehan, who was the Matron of the unit and was in charge of the operational management.

[9]The claimant’s claim arises from his application for a position as a Band 4 Nursing Associate on the ward, and we can see that application at pages 201 to 208 of the bundle. The second and third respondents were allocated as the managers responsible for shortlisting and interviewing in respect of that role.

[10]The claimant’s position is that the respondent breached its procedures by not having a BAME individual on the interview panel on 14 December 2023. As a matter of fact, there was no BAME member on the interview panel; it consisted of the second and third respondents who are both white females.

[11]The tribunal was taken to and do note the contents of the email at pages 648 and 649 of the main bundle where the respondent acknowledges that the panel was not a diverse one. Indeed, the respondent accepts that as a matter of fact in this claim.

[12]The claimant’s position was, that amounted to an admission in this claim. The tribunal does not accept that those emails amount to an admission. We consider that it is an acknowledgement of a fact; that fact being that the panel consisted of two white females and, as such, was not therefore diverse. The issue for this tribunal is whether or not the allocation of the panel as it was, and that is not including a BAME member, was because of the claimant's race and/or his age. We are not concerned with the general principle of the diversity of the panel. It is whether or not the non-appointment of the BAME member was an act of race or age discrimination.

[13]We are assisted in that regard by way of the Recruitment Policy itself. The relevant version of that is at page 518, that being version 10.1 with an issue date of 4 September 2023. The claimant’s position originally was that there were various versions of the policy in force all at the same time but, later in his evidence, he did accept that, by reason of the policies being updated, a new policy would come into existence and, further that the relevant policy at the time of his interview was that version.

[14]Page 531 of that policy is in the main bundle sets out the information on the interview panel. Page 532 goes on to state that: “All interview panels for Band 8A and above will include a BAME staff representative and an Inclusion Ambassador who has been fully trained prior to attending a panel for interview.”

[15]That is in turn supplemented by Appendix 2 which appears at page 546 of the bundle. In that appendix, in relation to the interview panel composition for a Band 4 role, there is reference to, “Team Leader (if required), Charge Nurse, Member of the Multi-disciplinary Team and Service User and Carer’s Representative.”

[16]The claimant suggests that, based on that document, there should have also been four people on the interview panel. The respondent’s position is that Appendix 2 is a guide of people who may be on the panel and not an indication of a requirement for all of those individuals to be on the panel.

[17]We consider that the respondent’s position is supported by page 531. That is clause 12.2 where there is reference in the first paragraph under that heading to the fact that the interview should never be conducted by one person. There is no separate reference in that document to the total number of people being required, and we consider that if the position was that all four individuals in the Appendix should be on the panel, there would be no need to separately state that it should never be conducted by one person. The fact that Appendix 2 is a guide is also supported at page 531 where it says, “Appendix 2 provides a guide to the interview panel constitution .”

[18]We also observe that within Appendix 2 at 546, there is the brackets around Team Leader “(if required)” which again would support that that means that the Team Leader is not always one of four members on the panel. Further, there is a reference to a Service User as being someone who could form part of the panel. And our understanding in that regard is that the service user for Beech Ward would have been an in-patient on the ward receiving mental health treatment, which we conclude would be an unlikely suitable panel member in the circumstances.

[19]Therefore, based on that evidence, we conclude that there was no requirement for there to be four panel members on the interview panel.

[20]We further conclude that the policy does not require a BAME member to be on the interview panel for a Band 4 role. Quite simply, the wording of the policy in that regard speaks for itself, and that is the relevant extract that we have already referred to being the first paragraph that we see on page 532. A BAME panel member is only required for a band 8A role and above.

[21]In those circumstances, we conclude that no BAME member was required for the interview on 14 December 2023, and it follows therefore that there has been no breach of the policy in that regard.

[22]We also make the observation that the evidence of both Ms O’Dwyer and Ms Sheehan, was that the interview panel was determined before the applications were by candidates were made or received. In those circumstances, the race or age of the applicants would not have been known to the respondent for that to have been the reason not to include a BAME member. The claimant’s case is that a BAME panel member was not included because of his age or race. But, on the evidence neither of those things were known to the respondent at the time that the panel was composed.

[23]At this stage, the Tribunal re-iterates that the issues that this tribunal are determining are the issues that are set out in the case management order from 14 November 2024 and as set out above. Those issues were confirmed at a subsequent preliminary hearing that then took place shortly before the start of this final hearing on 24 October 2025, and those are the issues that were also then subsequently confirmed by this tribunal at the outset of the final hearing.

[24]There is no suggestion within those issues that there was a failure of panel members to have recruitment training. It was not previously raised and, indeed, the tribunal notes that it was not put to Frances Sheehan by way of cross examination that took place of that witness back in December. It has been introduced through cross examination of Ms O’Dwyer and Ms Barker in the resumed hearing in February and subsequently in submissions. Although it was not a pleaded issue, we do, however, make these observations on that matter.

[25]At page 532, we acknowledge it says that one member should have been trained in a recruitment process. The claimant took the witnesses to different versions of that policy where there was reference to “must have training” but we go back to the version that is said to have been in existence at the time, and the relevant part is at page 525 which, again, does state that there must be training. The claimant says that this was a mandatory requirement because of that wording. The respondent says that effectively, although the policy was worded as such, there was no mandatory requirement and that was not reflected in the training requirements or practices of the respondent.

[26]In any event, regardless of what the position is, whether it was mandatory or not, the claimant’s position was that resulted in the process being unfair, not that that was done because of his race or age.

[27]In that regard, we go back to the observation we have already made that the panel was determined (and so that would include panel members without recruitment training) before the applicants were known, and, therefore, the composition of an untrained panel could not have been due to race or age because the protected characteristics of the candidates were not known.

[28]We want to be clear to the claimant in this regard that we are here determining complaints of race and age discrimination, rather than what he perceives as general unfairness. We also note that the evidence of Ms Cassie Barker in any event about that recruitment training was that, it is more focused on the recruitment process rather than the fairness of it. Therefore, it is the practical implications of the recruitment process rather than training around fairness that is offered through recruitment training. We note separately that both members of the panel had received equality and diversity training.

[29]We do also note the claimant’s complaint that the panel included staff that were more than two bands higher than him. The policy, at page 531, states, “It is not usual practice for staff more than two bands higher than the position being interviewed to be involved in the panel.” It goes on however, to state, “Although this might be required in a case of a small team or a department.”

[30]The respondent’s position in that regard is that it was appropriate for the second and third respondents to be on the panel, and that is for two reasons. Firstly, they had knowledge of the ward, and the appendix refers to the team leader as somebody that could be on the panel. Further, Ms Barker confirmed in evidence that Ms Sheehan was a member of the multi-disciplinary team. Again, a member of the multi-disciplinary team is referenced on the guidance at Appendix 2 at page 546 as someone who could form part of the interview panel.

[31]Therefore, in relation to Ms O’Dwyer as Team Leader, there appears to be no issue in relation to her involvement in those circumstances.

[32]With regard to Ms Sheehan, it is accepted that she is more than two bands higher than the Band 4 role but the respondent relies on the fact that there was a small team. The claimant accepted, in cross examination, that Beech Ward consists of 15 beds. There are approximately 7 to 10 members of staff for which only two to three would have been in a Band 5 or 6 role. Therefore, it would have only been two or three individuals that were two bands higher to interview for the band 4 role because anyone else would be a lower banding.

[33]The tribunal also acknowledges the nature of the unit. It is a low secure psychiatric ward, and we consider that is unique to other units within the NHS. In those circumstances, we accept the importance and relevance of knowledge of the ward and understanding the specific needs of the ward of the panel members when interviewing for the role.

[34]Turning to the claimant’s subsequent interview on 14 December 2023, we know that two other individuals were interviewed. We understand one of them was a white candidate and the other candidate was Asian, the claimant describing them as a Tunisian candidate. Both are understood to have been younger than the claimant.

[35]We can see all three candidates scoring sheets in the bundle, which includes the claimants at pages 258 to 281 of the main bundle. Those pages consist of the scoring sheets from both panel members. The claimant’s scoring sheets start at page 298.

[36]The claimant has not alleged that the scoring was unfair either by way of the scores that were given to him or by way of the scores that were given to others. In fact, in cross examination, he accepted that he may have performed badly in the interview but felt that he should have been given a chance because of his previous experience.

[37]Based on the scoring sheets within the bundle, and the lack of challenge by the claimant in relation to his score against the score of others, it is clear that the claimant scored the lowest of the three candidates at interview. The candidate that scored the highest was the individual that was offered the role. That would support the conclusion that the claimant did not get the job because he was not the best candidate during his interview on the day.

[38]In cross examination of Ms O’Dwyer, the claimant did raise the fact that the interview scores by both members of the panel were the same, and he suggested that undermined the process. That was not a position adopted by him when he was cross-examined. Ms O’Dwyer’s explanation in relation to that, was that questions are asked and answered, they are noted, after which there is a discussion between the panel, and the scoring is agreed. We conclude that that process of scoring is not an unusual practice, and it is not uncommon for there to be an analysis of an answer to see whether or not it fits in with the scoring matrix and then agree on a final score.

[39]Ultimately, however, looking at the scores, even if the claimant had been afforded an extra point by either of the panel members, it would not have made a difference overall because his scoring was significantly below the other candidates.

[40]We also note in addition that in terms of the claimant’s scoring sheet, where he does give a better answer, he is given a higher mark. Therefore, it is not the case that the claimant was given the lowest score across the board. There is an example where he clearly gives a better answer, and he is afforded with a higher mark.

[41]We do make the observation that, throughout these proceedings, the claimant has referred to a lack of an audit trail around the recruitment process. It is understood, or certainly at the hearing in December, it was understood that he asserted that there should be one document which records the process as a whole. We have not been taken to a policy or principle in law which says that there must be one document by way of an audit trail. At the resumed hearing the issue that has been taken by the claimant appears to relate to the audit trail being incomplete because there are no recruitment training records.

[42]We consider what is meant by audit trail is all of the documents as to the process as a whole, to see that the process has taken place and how it has taken place. Those documents are in the bundle as a number of documents and it is the documents combined that amount to an audit trail. We have the original job advert, we have the application, we have information in relation to the shortlisting process, and we have information in relation to the scoring. Those documents all make up part of that audit trail, and so we do not consider that any audit trail is missing. That is evidence in the bundle.

[43]The claimant’s later position, in relation to the recruitment training records being missing, meaning that there was no audit trail, is rejected because the respondent accepts that the panel members were not trained in recruitment and so, of course, we would not see their training records as part of the audit trail because they did not exist because they were not trained on the same.

[44]Following the interview, the claimant is unsuccessful. He is verbally informed of that decision on 21 December 2023 and that is supported by the evidence that we can see at page 308. It is subsequently confirmed in writing on 4 January 2024 and we can see that at 230 of the main bundle.

[45]The claimant requests feedback in relation to that, which we can see was emailed to him at page 311, and the detailed feedback itself appears at page 419 of the main bundle. In respect of that chain of evidence, we can see that Ms O’Dwyer offered to meet the claimant to discuss the outcome and that was not taken up by him.

[46]Subsequently, the claimant lodges a Datix on 7 February 2024. We can see the full version of that as in the detail at page 334 but the actual form of it is at 249 to 257. He does refer to the Equality Act within that document and, for the purposes of victimisation, the respondent does accept that as a protected act.

[47]Ms Sheehan and Ms O’Dwyer both confirmed that they saw that Datix and Ms O’Dwyer says that on receipt, she verbally told the claimant that it was being rejected because the issues that were raised in it were more appropriately pursued by way of a grievance.

[48]The tribunal understands from Ms Barker that a Datix is a way of raising concerns usually related to a patient and other staff rather than issues of a personal grievance. We do consider that that evidence is supported by the form itself, which we can see at page 249, and we note specifically the categories as identified at pages 253 and 254 all of which do not lend themselves to a personal grievance but rather concerns occurring on the ward.

[49]The tribunal do acknowledge the claimant separately produced a document that we will call the “Stand Up to Speak Up” document. That was one of the additional documents disclosed during the course of proceedings and is not paginated within either bundle. We acknowledge that document is a document which seeks to encourage concerns to be raised by way of Datix. Ultimately, however, in this case, the claimant was informed that because of the nature of what he had raised, for it to be pursued further he needed to raise it as a grievance. The claimant disputed that he was told that, but we accept the evidence of Ms O’Dwyer in relation to that because there is no subsequent correspondence from the claimant chasing up that Datix to find out the outcome which we consider suggests that, he was aware from Ms O’Dwyer having told him that it had been rejected and that is why he did not follow up the same because he knew the outcome.

[50]We then have the issue in relation to the claimant’s suspension on 19 June 2024. The claimant says he was suspended; the respondent says he was not suspended but is placed on authorised leave around an existing period of bereavement. We do note that the claimant had been off around that time for a period of bereavement and we can subsequently see at page 387 of the main bundle an email from the claimant to Ms Sheehan about a call in which he asks whether or not he was suspended and he was told that he was not.

[51]We note subsequently in that email at paragraph 6 the claimant refers to his bereavement leave but says that he had been due to return to work. We also note subsequently at page 385, human resources confirmed that the claimant is not suspended but is put on authorised leave, and that is said to be so that the investigation process could proceed as per the disciplinary policy. That is supported by the fact that there was a risk assessment that was carried out in relation to the allegations that were raised against the claimant, and a decision was taken to suspend him, which we can see at page 380 to 381. The respondent’s position is that, ultimately, although there was that decision, that then was not put into motion.

[52]The tribunal concludes that, regardless of the terminology, whether it was suspension or whether it was authorised leave, effectively, the claimant was prevented from working for that period of time. We conclude therefore that it had the same consequences as suspension. He is not able to work whether that is authorised leave or otherwise. We do conclude that was a detriment to the claimant. He wanted to return to work, that is set out in the email at page 387 where he says he was ready to return to work after his bereavement, and we do acknowledge his position that he could and may have been able to work overtime during that period and as a result of the leave he was prevented from earning that extra income. For the purposes of these reasons, we refer to the period as leave, but our findings are as above.

[53]In relation to the events that surrounded the claimants' leave, the respondent’s position is that was due to the claimant’s behaviour. The claimant’s position is that his leave was because of the submission of his Datix.

[54]When we look at the events that surrounded the claimant’s leave, we note that the respondent’s position is during the period of March, April and May 2024 the claimant refused, or failed, to undertake his supervision. That is supported by an email at page 314 to 315 which is an email from Ms O’Dwyer to the claimant where she is pointing out to the claimant on 6 February, being the day before his Datix, that his supervision is overdue and needs to be completed as soon as possible. He replies to that and says that he is adopting all previous supervisions. He takes a similar stance, we can see on 26 March 2021, and that is at page 337 of the main bundle, where the claimant again says that he is “adopting all my previous supervisions.” We can also see that Ms O’Dwyer again chases the claimant in relation to that, at page 336. She indicates that his supervision is overdue. Again, at page 344, 16 May 2024, an email from Ms O’Dwyer to the claimant saying his supervision is overdue. That is further supported by the emails at page 325 and 326 where Ms O’Dwyer seeks advice from human resources in relation to how to manage the issue.

[55]We conclude, therefore, that there is a clear chain of evidence over those months where Ms O’Dwyer is writing to the claimant and indicating that his supervision is overdue. We further note the lack of supervision records in the bundle for that period which would indicate that he had not, in fact, done them. In fact, to the contrary, the evidence from the claimant himself during that period was that he was simply adopting his pervious supervisions.

[56]The claimant did take us to his additional bundle on the issue of supervision which does contain a large number of supervision records within it. We note that none covers the period alleged, namely March to June 2024. The only one around that period is one that we can see at page 49 of his additional bundle which is from 8 February 2024. Therefore, those records do not support that the claimant was undertaking his supervision between March and June, which was the relevant period. Further even if there was a record for that period which we were not taken to, the evidence in the main bundle from the claimant himself at the time was he is adopting all other previous supervisions which support that he was not undertaking them.

[57]Around this time, the respondent also said there was an issue with the claimant wearing an item of clothing with wording on it that said, “You are not liked here.” We can see that evidenced at page 339 where Ms Sheehan writes to the claimant with the allegation, albeit, in that document we note that the wording that is used is “I’m not liked here.” The claimant replied to that email indicating that he did not wear an item of clothing with those words on it, and we can see that at page 341.

[58]As a result, Ms Sheehan looks at the CCTV of the allegation and the claimant is seen to be wearing a top which, in fact, says “You are not liked in here.” As such, Ms Sheehan corrects the position with the claimant, which we can see that at page 342, and at that time reminds him of the uniform policy. We can see a screenshot from the CCTV at page 423 in relation to that where we can see the back of the claimant wearing the item that says, “You are not liked in here.” The claimant accepts that he wore this item of clothing, but he denied that it would cause any offence. In that regard, the tribunal notes that this is a low secure mental health ward treating patients with mental health illnesses. We conclude that this was an inappropriate item of clothing to wear which, clearly, could have caused distress to the patients on the ward.

[59]The claimant also took issue with this allegation in that he said there was no CCTV of the first set of wording that is said to have been used and, indeed, pursued that both in cross examination but also as an issue in relation to disclosure. We consider that that is fully explained by the sequence of events. An allegation was made in which a set of wording was said to have been used. Ms Sheehan sets that out in the original email. That wording understood by Ms Sheehan at that stage was incorrect. She does not suggest that there was separate CCTV with wording as outlined in the original email at page 339. As a result of the claimant then saying that he did not wear an item of clothing with those words on, the CCTV, and the only copy of the CCTV, was then looked at from which the correct wording was observed, and that is subsequently set out at page 342. There was never a suggestion that there was a separate set of CCTV and it was simply the case that it was first recorded in incorrect terms and that was corrected when the CCTV was viewed.

[60]There is then subsequently an incident on 12 June 2024 where a colleague of the claimant makes a complaint about his conduct relating to a shift on 9 June 2024. We can see that at page 345 of the bundle. That included allegations of the claimant using threatening language, being aggressive, failing to inform staff when he was leaving the ward whilst he had been on security duty, taking a break outside of the allocated time, not following management instruction, not communicating appropriately with staff and using a laptop whilst carrying out a one to one observation.

[61]In evidence, the claimant accepted that where complaints of such a nature were made it would be reasonable for an employer to investigate the same. That is ultimately what occurs. There is then an investigation by Monika Tolafari, and we can see that at 345 to 349. The outcome of that investigation is then at page 392 where, ultimately, no disciplinary action is taken against the claimant, and there is a recommendation for some increased supervision. The law Burden of proof

The law

[62]Section136(2) Equality Act 2010 provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.

[63]We have taken into account the well-known guidance given by the Court of Appeal in Igen Ltd v Wong

[2005] ICR 931

which although concerned with predecessor legislation remains good law. It was approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

. Ayodele v Citylink Ltd

[2018] ICR 748

, CA confirmed that differences in the wording of the Equality Act 2010 have not changed the test or undermined the guidance in Igen Ltd.

[64]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground. The consequence is that the claimant will necessarily succeed unless the respondent can discharge the burden of proof at the second stage. However, if the claimant fails to prove a ‘‘prima facie" case in the first place then there is nothing for the respondent to address and nothing for the Tribunal to assess Ayodele and Hewage.

[65]At the first stage of the test, when determining whether the burden of proof has shifted to the respondent, the question for the Tribunal is not whether, on the basis of the facts found, it would determine that there has been discrimination, but rather whether it could properly do so.

[66]The following principles can be derived from Igen Ltd v Wong (above), Laing v Manchester City Council

[2006] ICR 1519

EAT, Madarassy v Nomura International p/c

[2007] ICR 867

, and Ayodele v City link Ltd (above); which reviewed and analysed many other authorities.

[67]At the first stage a Tribunal should consider all the evidence, from whatever source it has come. It is not confined to the evidence adduced by the claimant, and it may also properly take into account evidence adduced by the respondent when deciding whether the claimant has established a prima facie case. A respondent may, for example, adduce evidence that the allegedly discriminatory acts did not occur at all, or that they did not amount to less favourable treatment, in which case the Tribunal is entitled to have regard to that evidence.

[68]It is insufficient to pass the burden of proof to the respondent for the claimant to prove no more than the relevant protected characteristic and a difference in treatment. That would only indicate the possibility of discrimination and a mere possibility is not enough. Something more is required, see Madarassy (above).

[69]The burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. (Hewage v Grampian Health Board

[2012] IRLR 870

, SC.) Direct age/race discrimination

[70]Section 13 Equality Act 2010 states: 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. Indirect discrimination - Section 19 Equality Act 2010

[71]Section 19 of the Equality Act 2010 provides: A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s ifA applies, or would apply, it to persons with whom B does not share the characteristic, It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, It puts, or would put, B at that disadvantage, and A cannot show it to be a proportionate means of achieving a legitimate aim. Victimisation

[72]Section 27 Equality Act 2010 states: (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. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[73]If it is established that(a) the employee did a protected act and

(b) the employer subjected the employee to a detriment, the critical question will be: Why did the employer subject the employee to that detriment? Was it because they had done (or might do) the protected act? Or was it wholly for other reasons? (Chief Constable of West Yorkshire Police v. Khan

[2001] ICR 1065

) Protected Disclosure Detriments

[74]Under section 47B of the Employment Rights Act 1996: "(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

[75]In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

Sales LJ set out the following test for determining whether the information threshold had been met so as to potentially amount to a qualifying disclosure : the disclosure has to have “sufficient factual content and specificity such as is capable of tending to show” one of the five wrongdoings or deliberate concealment of the same. It is a matter “for the evaluative judgment of the tribunal in the light of all the facts of the case” (paras 35-36). 76. s.43B of the ERA provides: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the p receding paragraphs has been, is being or is likely to be deliberately concealed.

[77]There are two separate requirements –(a) a genuine belief that the disclosure tends to show a relevant failure in one of the five respects (or deliberate concealment of that wrongdoing); and

(b) that belief must be a reasonable belief. Reasonableness involves applying an objective standard to the personal circumstances of the discloser.

[78]If the disclosure has a sufficient degree of factual content and specificity, then that belief is likely to be regarded as a reasonable belief (Kilraine at paragraph 36). The belief has to be that the information in the disclosure tends to show the required wrongdoing, not just a belief that there is wrongdoing. The disclosure may still be a protected disclosure even if the information does not stand up to scrutiny. A belief may be a reasonable belief even if it is wrong: Babula v Waltham Forest College

[2007] ICR 1026

[79]There must be a reasonable belief on the part of the worker that the disclosure was in the public interest. This requirement has two components – first a subjective belief, at the time, that that the disclosure was in the public interest; and secondly, that the belief was a reasonable one.

[80]If a reasonable worker might regard the treatment as a detriment, and the claimant genuinely does so, that is sufficient to establish there has been a detriment. There does not necessarily need to be any physical or economic consequences. An unjustified sense of grievance cannot amount to a detriment (Derbyshire v St Helen’s MBC

[2007] ICR 841

[81]The statutory test is whether the worker was subjected to the detriment by the employer “on the ground that” he or she had made a protected disclosure. It is for the worker to prove, on the balance of probabilities that there was a protected disclosure, that there was a detriment and the employer subjected the claimant to the detriment. If so, then the burden shifts to the employer to show the ground on which the detrimental act was done: Section 48(2) ERA. If a Tribunal rejects the reason advanced by the employer, then it is not bound to accept the reason advanced by the worker, namely that it was on the ground of a protected disclosure: it is open to the Tribunal to find that the real reason for the detriment was a third reason.

[82]The Tribunal must consider what, consciously or unconsciously, was the employer’s reason for the detriment. Causation will be established unless the employer can show that the protected disclosure played no part whatsoever in its acts or omissions: Fecitt v NHS Manchester

[2012] ICR 372

, CA. The result is that there will be a sufficient causal connection if a protected disclosure was one of several reasons for the detriment, even if it was not the predominant reason. It is enough if it was a material influence, in the sense of being more than a trivial influence.

[83]When considering the employer’s potential liability, the tribunal must focus on the mental processes of the individual decision maker, in asking whether the employer was materially influenced by a protected disclosure. This will require the decision maker to know of the protected disclosure. If one worker influenced by a protected disclosure procures a detrimental decision by another unaware of the protected disclosure, that detrimental decision will not be on the ground that the claimant has made a protected disclosure (Malik v Centos Securities plc

UKEAT/0100/17/RN

Conclusions

[84]In addressing our conclusions, the Tribunal has reference to the list of issues at page 125 of the main bundle and as set out above and we used the same numbering. Issue 1 - Direct race discrimination

[85]Issue 1.2.1: Did the respondent breach its own procedures by not having a BAME individual on the interview panel for the role of Nursing Associate Bank 4 on 14 December 2023.

[86]We have, as a matter of fact, found that there was no policy which required a BAME representative on the interview panel, and, as such, there has been no breach of that. There is therefore no less favourable treatment and the claim fails at that hurdle. Factually, it did not occur.

[87]In any event, we reiterate the point we have made above; the undisputed evidence of Ms Sheehan and Ms O’Dwyer was that the panel composition was decided prior to the applications being received. As such, it cannot have been that no BAME member was included because of the claimant’s race, because, at the time of the decision, they did not know that he would apply in order to know his race.

[88]The claimant also relies on the comparators listed there, Rob Rawlings and Aymen Labbane. These are the two other candidates that were interviewed for the role. In that regard, there is no difference in treatment regarding the composition of the panel for those candidates as there was the composition of the panel for him. They all had the same panel with the same questions and interview process.

[89]Issue 1.2.2: Not offering the claimant the role of Nursing Associate following his interview.

[90]For the claimant to show facts from which we could conclude that discrimination has occurred, we consider that he would have to assert that either he was unfairly scored or that the other candidates were unfairly scored, and that is not his case.

[91]We conclude that the clear reason that the claimant was not offered the job was that he did not perform well enough on the day. The claimant’s own evidence was that he may not have performed well, and that is reflected in the contemporaneous scoring sheets for him and the other candidates. He scored the lowest of the three candidates.

[92]We also note that it was the same panel who shortlisted the claimant for the interview and we do consider that, if there was discrimination on the part of them, the questions arises as to why they would have shortlisted him and invited him for an interview at the outset. Again, that further supports the fact that, it was simply his performance on the day that meant that he was unsuccessful and not his race.

[93]The complaint of direct race discrimination therefore fails for those reasons. Issue 2 - Direct age discrimination

[94]Factually, this is the same allegation, as for issue 1 above but it is said to be less favourable treated because of the claimant’s age. We rely on the same findings of fact and conclusions in relation to that as we have done for the race discrimination complaint.

[95]There was no breach of the respondent's procedures. It did not happen so there is no less favourable treatment. Secondly, there is a clear reason why the claimant was not offered the job which includes his own admission that he did not perform well and him having scroed the lowest at interview.

[96]As such, that complaint fails and is dismissed. Issue 3 - Indirect race discrimination

[97]The respondent accepts the two PCPs that are outlined at issue 3.1.1 and 3.1.2. They accept that there was the inclusion of the Matron on the recruitment panel and that they did not include a BAME member on the interview panel. The claimant’s position is that both those PCPs caused all of the disadvantages that he subsequently outlines at issue 3.4.1 to 3.4.4.

[98]For the complaint to succeed there needs to be a group disadvantage, namely that the PCPs put persons with whom the claimant shares the same protected characteristic of black African race at a particular disadvantage when compared to those without the protected characteristic.

[99]In terms of the group disadvantage, the claimant does not specifically identify a pool of people that fall within that group disadvantage, but we would identify it to be those applying for a band 4 role.

[100]As to each disadvantage, the claimant relies on both PCPs causing the disadvantages identified.

[101]Issue 3.4.1: in relation to issue 3.4.1 that is the disadvantage that respondent’s recruitment policy was not considered during the recruitment process. We understand this to be, the complaint that there had been a deviation from the policy such to cause him and Black Africans a disadvantage, and that is confirmed in his witness statement paragraph 3.5.

[102]We have concluded, factually, that there has not been a deviation from the policy and therefore, we conclude that there cannot be a disadvantage here. The inclusion of a matron and not including a BAME member on the panel was not a deviation from the recruitment process such that the policy was not considered. The policy allowed for the inclusion of a Matron and not to include a BAME member. In those circumstances, no disadvantage can follow.

[103]Issue 3.4.2: The second disadvantage is issue 3.4.2 and that is that the applicants' experience and background were not considered by somebody with a BAME background.

[104]As a matter of fact, that is true. There was no BAME member on the panel, but the claimant has not established how he said he or other Black Africans are disadvantaged by that. The claimant does not say why not having a BAME member puts that group at a particular disadvantage. We note that panel members had had equality and diversity training and we note that all of the applicants were of mixed ethnicity. The two panel members worked on the ward. They had experience of the same, and, clearly, they are likely better placed to evaluate the experience of the candidates in relation to the role because they know what it involves.

[105]In cross examination, the claimant was given multiple opportunities to say why that caused him a specific disadvantage, or, indeed, a group disadvantage, and he simply could not answer. The claimant’s default position was that it was not a diverse panel. It is already accepted that it was not a diverse panel, but the claimant has the initial burden of proof and has not identified why the applicants experience and background not being considered by a person with a BAME background is a disadvantage to him or other black Africans.

[106]Issue 3.4.3: The next disadvantage is 3.4.3, that is the interview panel had the wrong experience to consider the applicants' skills and experience.

[107]It is difficult to see here how the PCP of a matron on the panel can cause that disadvantage because she is the matron of the ward. She fully understands the role, the skills and the experience required. It appears obvious in her role that she would have the right experience to consider the applicant’s skills and experience.

[108]The claimant also, again, does not identify how having the matron on the interview panel put him as a Black African or other Black Africans, at that disadvantage compared to those without his protected characteristic.

[109]In relation to the second PCP, not having the BAME member on the panel, by not having a BAME member on the interview panel instead consisted of the team leader and the matron. Team leaders are in the same position as the matron; she works on the ward, she has experience of the ward, and she knows exactly what would be required. Again, therefore it is not understood how the claimant says that those two individuals resulted in there being the wrong experience to consider the applicant’s skills and experience because it is obvious from their roles that they would in fact have the correct experience to undertake this task.

[110]The complaint therefore fails because the claimant has not identified how this places him and other black Africans at a disadvantage.

[111]Issue 3.4.4: That is that the applicants are disadvantaged by a panel including somebody who was previously worked with the applicants.

[112]This complaint is not understood in terms of the disadvantage that the claimant says is experienced by someone being interviewed by an individual that has worked with him or also how that disadvantages him and others with his protected characteristic of being black African. All of the applicants had previously worked with the interview panel, and it is not clear how the claimant says that he, or other black Africans would be disadvantaged by that.

[113]Again, we reiterate that these are points that were put to the claimant several times and he simply did not provide an answer as to why, specifically, he was put at a disadvantage or, indeed, other Black Africans are put at a disadvantage.

[114]He did refer to an historic issue with his rota, and that somebody else of a different race had received sponsorship, but that is not relevant to the disadvantages that he sets out within the list of issues that he says were caused by those PCPs.

[115]We do acknowledge that the claimant raises a general concern around the risk of unconscious bias and the panel not being sensitive to racial diversity, but he does not say why the two panel members would not have been alive to those issues. The mere fact that they are white and not from a BAME background does not, in itself, mean that they cannot assess without bias or sensitivity.

[116]The claimant was specifically asked in cross examination whether or not he suggested that it would only be a BAME member that can properly assess at interview, and his repeated answer was simply that the panel needs to be diverse. There was, however, a failure by the claimant to identify why only a diverse panel could properly assess, and that position does not take into account the fact that a BAME panel member may have had their own unconscious bias or not being sensitive to racial diversity.

[117]Therefore, the complaint of indirect race discrimination fails for those reasons.

[118]We go on to make the following observations. If we are wrong and there was a group disadvantage, and the claimant was also put at a disadvantage, the respondent relies on the justification of it being a proportionate means of achieving a legitimate aim, namely, being able to operate the recruitment and selection process effectively and efficiently in light of staff and service user availability.

[119]We accept that as a legitimate aim because we accept that Beech Ward was a relatively small unit; there was a small pool of Band 5 and 6 employees who could have interviewed the candidates. We acknowledge that both panel members had experience on the ward; they knew what was required of the role and the skills and expertise necessary in circumstances where we do consider that Beech Ward is a more unique ward to other wards that may operate within the umbrella of the NHS and that is because of the nature of their patients. As such, the applicability of those two PCPs was a proportionate means of achieving that aim and to allow for an effective and sufficient selection process. Issue 4 - Victimisation

[120]This is the allegation that the claimant did a protected act, namely the submission of his Datix on 7 February 2024. His position is that, as a result of that, he was suspended.

[121]It is accepted that the claimant raised the Datix on 7 February 2024 and the respondent accepts that it was a protected act within the meaning of section 27 of the Equality Act.

[122]We have found that the claimant was not suspended in the sense of the words “suspended” being used, but he was placed on leave to have the same effect. We conclude this was a detriment to the claimant who was first prevented from working and which in turn prevented him from earning potential overtime.

[123]Having established that there was a protected act and a detriment the critical question will is: Why did the employer subject the employee to that detriment? We therefore go on to look at whether or not the claimant being placed on leave was because of his protected act.

[124]In that regard, we note the allegations regarding the claimant’s behaviour at this time. We conclude that the trigger point for that was the complaints that were made about him by a colleague concerning events that occurred on 9 June 2024. We can see that the decision in relation to the claimant being placed on leave was set out in the risk assessment at the time. Page 380 sets out the allegations from 9 June 2024 and other reasons as to why the claimant should be placed on leave. The contemporaneous document therefore around the decision to place the claimant on leave at that time links it back to those allegations and the claimant’s non-attendance at supervision.

[125]That is further supported by page 345 where it sets out what was recorded as having occurred on 9 June 2024. The claimant’s period of leave follows shortly after those allegations were made and considered namely on 19 June 2024 which we consider supports the conclusion that it was in relation to that allegation and to allow the investigation.

[126]The claimant suggests that he was suspended immediately after his Datix, but we do not accept that as correct. The Datix was 7 February 2024. His period of enforced leave was 19 June 2024, and there is a period of over four months between the two acts occurring.

[127]The decision-making process in relation to that is outlined in the emails at page 372 to 375. There is specific reference at page 374 to the allegations as alleged in the documents that we have already identified, at page 345. The claimant ultimately accepted that it was reasonable for an investigation to be conducted in relation to those allegations, and the tribunal accepts that the decision to place him on leave in those circumstances was appropriate given the nature of the allegations.

[128]There is no reference in the contemporaneous documents around the claimant’s enforced leave to the claimant’s Datix or any of the issues that he had raised in it. At this point in time, we also note that on our findings the respondent had already rejected the Datix. We found that they had told the claimant that it was rejected and that it was not the correct form to raise his concerns, and that it needed to be pursued by way of grievance. We consider therefore that there would be no reason to suspend him in June for that Datix when, as far as the respondent was concerned, this had been rejected at the time of submission and did not remain a live issue.

[129]This is also in the context of the claimant failing to attend his supervisions. We note the first recording of there having been failure to attend the supervisions was before he submitted his Datix. Therefore, the issues around his failing to attend supervisions could not have been concocted because of his subsequent Datix. That failure to attend supervisions then remained an ongoing issue.

[130]As we have already outlined the evidence in the main bundle from the claimant himself in the period March to Juen 2024 was that he was ‘adopting all previous supervisions’. As such, he was not undertaking the same and this formed part of the risk assessment at page 380 which led to the recommendation for the period of leave.

[131]The tribunal concludes, based on that evidence therefore, that the claimant’s leave, was due to his conduct and not because of his protected act. As such, a complaint of victimisation fails for those reasons. Issue 5 - Protected disclosure detriment

[132]The claimant relies on a Datix as a protected disclosure. It is not accepted by the respondent that it amounts to a protected disclosure, and we have regard to the full Datix complaint at page 334 of the main bundle. The claimant says his Datix amounts to a protected disclosure because it showed that there had been a failure to comply with a legal obligation, namely the Equality Act.

[133]In order for there to have been a protected disclosure, first of all there has to be a disclosure of information. The respondent says there is no disclosure of information because there is a lack of factual context and specificity.

[134]Looking at the Datix itself, the claimant sets out the details of his interview. He then sets out that it was not the correct panel composition, not with reference to there not being a BAME member but instead with reference to the number of people that were on the panel. He then sets out section 39 and 40 of the Equality Act and then he goes on to make a number of general assertions in relation to what we would describe as employee/employer relationships. So, for example, it says at point 2 “We’ll pay you correctly on time”, point 3 “We’ll make sure you have a safe place to work”, and point 4 “We’ll make sure we comply with the law and the employment.”

[135]It is not entirely clear where the claimant got this information from. In cross examination, he denied that it was copied and pasted from another source and said that his Datix had been drafted by himself with the help of a friend. Ultimately, whether drafted himself or taken from another source, we conclude that the points at paragraphs 1 to 16 are all general comments lacking any specificity to anything factually that the respondent has or has not done or relating to the claimant in any way or with reference to a breach of legal obligation.

[136]Line 17 then says that “A person with a White or Asian background would have received a better treatment from Beech Ward management.” That point does not identify that anyone has or has not been treated in that way, and it does not link back to the claimant’s interview or the panel composition in any way. We also note that in the context of the document as a whole, the claimant is not alleging that no BAME person was on the panel but rather that the panel should have consisted of 4 people. As such even read as a whole, there appears to be no allegation of breach of the Equality Act. We conclude therefore that the Datix did not convey sufficient factual information such that it tended to show that a person had failed, was failing, or was likely to fail to comply with the Equality Act.

[137]We further conclude that the claimant could not have reasonably believed that it tended to show a failure or likely failure because of the very way that it is written. We also note that the claimant did not follow up on it in any way. We found that he was told he would need to raise it as a grievance, and he does not do so. We conclude, in those circumstances, that, if the claimant reasonably believed that he had reported a failure to comply with a legal obligation, he would, at the very least, have chased for a response, but he failed to do so. There is simply no evidence that he did so.

[138]Therefore, the complaint of protected disclosure detriment fails because we do not consider that there was a protected disclosure within the meaning of the legislation.

[139]In any event, even if it were a protected disclosure, the detriment is said to be the claimant’s suspension. We would rely on our findings and conclusions in relation to the victimisation complaint, that is that the claimant’s leave was not because of the Datix but because of his conduct.

[140]For those reasons, the claim is dismissed. Costs

[141]Following our decision, we went on to consider an application for costs made by the respondent by way of written application dated 27 January 2026. It was made on the basis of the claimant’s conduct being unreasonable and sought costs limited in the sum of £6,900 representing, the additional costs of the preliminary hearing that took place in October 2025 and the fact that almost two full days were used of the final hearing to dela with the claimant’s preliminary applications.

[142]The respondent then made a second application for costs orally, and that was following our decision on liability where the claim has been dismissed in its entirety. That is made on the basis that the claim had no reasonable prospect of success and the fact that those complaints were pursued was unreasonably and the respondents seeks costs up to the maximum award that the Tribunal can award on a summary basis, being £20,000.00. The Law on costs

[143]Rule 74 of the Employment Tribunal Procedure Rules 2024 states as follows:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply had no reasonable prospect of success, or (c)a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

[144]The Tribunal Rules impose a three-stage test: first, the tribunal must ask itself whether a party’s conduct falls within rule 74(2)(a) — in other words, is its costs jurisdiction engaged?; if so, secondly, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party; the third stage is the determination of the amount of any award.

[145]The test for whether the claim had no reasonable prospect of success is objective, not subjective (Vaughan v London Borough of Lewisham

[2013] IRLR 713

, EAT.

[146]It was well established under previous versions of the Rules of Procedure that the term ‘misconceived’ could cover unmeritorious claims brought by employees who, possibly because they are unrepresented, are unaware of the legal position and genuinely believe that their employers have committed illegal acts against them and that the term misconceived includes having no reasonable prospect of success.

[147]In Scott v Inland Revenue Commissioners

2004 ICR 1410

, CA: Lord Justice Sedley observed that ‘misconceived’ for the purposes of costs under the Tribunal Rules 2004 included ‘having no reasonable prospect of success’ and clarified that the key question in this regard is not whether a party thought he or she was in the right, but whether he or she had reasonable grounds for doing so. The Court of Appeal held that the employment tribunal’s decision in this particular case not to award costs against S should be reconsidered, as it was not clear that the tribunal had directed its attention to the questions of whether S’s case was doomed to failure or, if it was, from what point.

[148]Rule 82 states: ‘In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.’ Conclusions on costs

[149]Turning to the first question as to whether or not the costs jurisdiction is engaged, we conclude that it is. We conclude that the claimant did act unreasonably in his conduct within the meaning of rule 74(2)(a) in the proceedings in two respects.

[150]Firstly, there was a preliminary case management hearing where the claim was discussed. That was done so with the benefit of the claimant having legal representation. A list of issues was drawn at that hearing. The claimant subsequently, wrote to the Tribunal to identify this as incorrect as invited to do so by the case management order itself.

[151]There was a delay by the Tribunal in addressing that but ultimately an additional preliminary case management hearing was listed in October 2025. What happened at that additional preliminary hearing, however, is that, the claimant withdrew the application in respect of the list of issues being inaccurate either by way of not having included harassment or by way of adding a harassment complaint.

[152]We do note that that preliminary hearing also did look at the issue in relation to the preparation of the final hearing bundle, but bundle issues are matters that come before this tribunal on a regular basis. It is not something that we would ordinarily list a separate preliminary hearing for. As such, the reason that that additional preliminary hearing was necessary was because of the issue that arose in relation to the list of issues. Ultimately, that position was then abandoned by the claimant which meant that hearing was, an unnecessary hearing that the respondent had to attend.

[153]That process having taken place, the claimant resurrects that issue at the outset of the final hearing. The position adopted by the claimant was that no amendment application was necessary because the harassment complaint was always within the claim form, which is not correct. If that had been the case, that could have been argued either at the first preliminary hearing or, indeed, at the second preliminary hearing when the matter was listed for that to be dealt with. Instead, by consent, it is clearly recorded that there was no issue identified with the list of issues. The claimant had legal representation at both of those hearings.

[154]That resulted in this tribunal, at the outset of the final hearing, having to spend a considerable amount of time dealing with that application and, indeed, we subsequently had to deal with the same by way of a further reconsideration request that came in on the papers and which is included in our separate written reasons for the preliminary decisions.

[155]In addition to that a number of preliminary applications were pursued by the claimant, one of which was strike out of the response, which pointed to an admission that had been made within the case, and that is the email at page 648. On our findings there was no such admission.

[156]There was also the pursuit of a disclosure issue in relation to CCTV for what the claimant said was the first allegation about him wearing an item of clothing with wording on it. The Tribunal considers this unreasonable in circumstances where it was clearly identified to the claimant by the respondent that the wording first recorded had been as it had been noted by them initially. When the claimant denied wearing clothing with such wording, the CCTV, and only copy of the CCTV was looked at and the correct wording identified. This was explained to the claimant at the time.

[157]There was then a subsequent application to adjourn to obtain legal advice. We do not conclude, in itself, that the application to adjourn was unreasonable. We understand the position adopted by the claimant in relation to that in terms of the disclosure of unredacted documents albeit the Tribunal is of the view that those documents were not relevant to the issues to be determined. However, the issue that did arise with that application to adjourn is that, that application having been refused, the claimant sought to sabotage the hearing. Having asked for reconsideration of that decision which he is entitled to do, and the Tribunal having given its decision on that application, we effectively found ourselves in the position where the claimant was refusing to enter the witness box. The claimant repeatedly stated he was being denied a fair process and sought to go behind the decision of the Tribunal to delay matters.

[158]His conduct was such on that occasion that this tribunal gave an indication to the claimant about our powers to strike out under rule 38.

[159]In respect of obtaining legal advice overnight, we indicated to the claimant that, although he could not discuss his evidence because he was by then under oath, we gave him express permission to discuss the redacted documents which had prompted his application with his legal representative. The next morning, the claimant came in and asked for some additional time on the basis that he said he thought he could not discuss that evidence, despite the fact that the tribunal had given him express permission to do so. That further delayed the proceedings.

[160]For those reasons the tribunal concludes that the costs regime is engaged under rule 74(2)(a) namely that the claimant has acted unreasonably in the way the proceedings have been conducted.

[161]The respondent also says the costs regime is engaged due to the fact that the complaints were unreasonably pursued and had no reasonable prospect of success. We conclude that the regime is also engaged on that basis for the following reasons.

[162]One of the complaints pursued was that there was a policy which required a BAME interview panel member, and there had been a breach of that policy. The policy was provided to the claimant as part of the disclosure exercise if he was not already able to access it as an ongoing employee, and the policy spoke for itself. It was very clear that a BAME member was only required for a Band 8A and above, the role the claimant applied for being Band 4.

[163]That complaint, in those circumstances we consider had no reasonable prospect of success, and the claimant would have been aware of that we consider 6 weeks from disclosure when the policy was disclosed and giving him time to consider the same. We understand that the date for disclosure was 16 January 2025.

[164]The other complaint that we consider had no reasonable prospect of success was the failure to be offered the band 4 role in circumstances where the claimant accepted that he was not the best candidate and where he took no issue with the scoring. That identifies the reason for not getting the role as a non-discriminatory reason.

[165]We also make the observation that, in respect of the indirect discrimination complaint, whilst we accept that the claim is a litigant in person and it is a difficult area of law, ultimately, at the final hearing, having been given multiple opportunities to say why he said he was disadvantaged in the way he says he was because of the PCPs, he was unable to do so. In that regard, whilst we accept that he may not have necessarily understood the principles around group disadvantage, we consider that if he is pursuing a claim, he should be able to identify why he was individually disadvantaged. As such we conclude that complaint was unreasonably pursued.

[166]We now go on to look at whether or not it is appropriate to exercise our discretion to award costs. In that regard, we recognise that the claimant is a litigant in person. However, he has had the benefit of legal advice at various stages throughout these proceedings. We note that he had previously had a union representative. We note also that the respondent issued him with a costs warning letter in relation to this matter.

[167]We also note that, the claimant appears capable of producing relatively lengthy and complex legal arguments where he refers to law and different principles and is therefore a capable individual by way of conducting his own research to make an informed decision.

[168]Although we recognise that in terms of the complaints that were pursued, they may have been misconceived, we are satisfied that it is appropriate to exercise our discretion to award costs in relation to the manner in which the claimant conducted litigation.

[169]Ultimately, the conduct was such that it resulted in a further preliminary hearing that was not necessary and then subsequently resulted in nearly two full days at the outset of the hearing being lost to the preliminary applications and subsequent further conduct. The conduct was such that this tribunal had to give a strike out warning and that was in an attempt to get the claimant to engage with the claim that he was bringing in order to try and get him to give evidence in circumstances where we do consider he was trying to sabotage the proceedings and go behind the decision of the tribunal.

[170]Therefore, we do consider it is appropriate to exercise our discretion to award costs in those circumstances, and we turn therefore to amount.

[171]The respondent’s position is that the costs are significantly more than those being sought on a summary basis up to the Tribunal’s maximum award of £20,000.00 without the need to go for a detailed assessment of costs. We are not going to go line by line through what costs may have been incurred in relation to the additional hearing time or, indeed, in terms of the complaints that had no reasonable prospect of success, in circumstances where the maximum sought is significantly reduced in any event. This, is also a summary assessment and we take a broad brush approach.

[172]We also do not do so because we look at rule 82 and we do have regard to the claimant’s means and his ability to pay. We do consider that he has significant credit card debt, some £17,000. He has no current savings, investments or significant easily disposable assets. The claimant lives with his wife and says that the property is her property. The claimant says he pays monthly maintenance rather than a direct contribution to the mortgage. We understand his wife is working and that they live together as a joint household.

[173]The claimant’s average income we understand to be approximately £2,500 but overtime can be £500 per month and so it can be up to £3,000 per month. He has no dependent children. We understand he has two stepchildren who are adults. He says he also supports his two children from his previous marriage who live in Africa. We are told they are both over 18 years old. Whilst we recognise the reality of a lot of 18 year olds is that they are still living with parents and may financially be dependent on them, they are adults and those two children in Africa are not living with the claimant such for that situation to arise.

[174]As such, having regard to the claimant means we make a costs award in favour of the respondent in the sum of £3,000 which represents a proportion of the costs incurred with regards to the claimant’s means. Approved by: