Mr G Mboko v Partnerships In Care Ltd: 3304934/2023
EMPLOYMENT TRIBUNALS
Case No 3304934/2023
Between
Mr G MbokoClaimantPartnerships In Care Limited RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge T Brown
Members
Mrs F Betts and Ms J CameronMr J Nthini (instructed by representative) for claimantMs N Willson (instructed by representative) for respondentMr Nthini (instructed by lay representative) for claimantMs J Duane (instructed by counsel) for respondentDate 15 January 2025
JUDGMENT
[1](1) The Claimant’s complaint of unfair dismissal is dismissed on the ground that he had not been continuously employed for two years ending with the effective date of termination and therefore did not have the right not to be unfairly dismissed.(2) The Claimant’s eight complaints that the respondent’s alleged failures to comply with his data subject access requests were direct race and sex discrimination were presented in time and the Tribunal has jurisdiction (in relation to time limits) to hear them.(3) The Claimant’s remaining complaints under the Equality Act 2010 were presented out of time and it is not just and equitable to extend time. Accordingly, the Tribunal has no jurisdiction to consider them.(4) The Claimant’s complaint of wrongful dismissal was presented out of time and it was reasonably practicable for the claimant to have presented that complaint in time. Accordingly, the Tribunal has no jurisdiction to consider it. Employment Judge T Brown 05 August 2024 Case Number: 3304934/23 2 of 2 Sent to the parties on: 8 August 2024 For the Tribunal: L TAYLOR-HIBBERD Reasons for the Employment Tribunal’s decision having been given orally on 29 July 2024, and no request for written reasons having been made at the hearing, written reasons will not be provided unless a written request is presented by a party within 14 days of the sending of this written record of the decision.[2]Case No: 3304934.2023 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: Mr G Mboko Respondent: Partnerships in Care Limited Heard at: Reading by CVP On: 13-15 January 2025 Before: Employment Judge Findlay and Members: Mrs F Betts and Ms J Cameron Representation Claimant: Mr Nthini, lay representative Respondent: Ms J Duane, counsel[4]The claimant’s complaints of direct race and sex discrimination are dismissed Approved by:
REASONS
[1]Following a hearing on the 29th of July 2024, the issues were set out as follows by Employment Judge T Brown in an order which was sent to the parties on the 8th of August 2024: 1.1The claimant complains that the respondent failed to comply with eight data subject access requests he claims that he made on the following dates:(i)9 December 2022(ii)12 December 2022(iii)19 December 2022(iv)29 December 2022(v)1 February 2023(vi)7 March 2023(vii)22 March 2023(viii)19 April 2023 1.2 In respect of each data subject access request, the issues for the Tribunal will be: (i) Did the claimant make a data subject access request? (ii) If so, did the respondent fail to comply with it? (iii) If so, was that failure detrimental to the claimant? 2 (iv) If so, was the failure less favourable treatment of the claimant because of sex and/or race than the treatment of a hypothetical comparator? 1.3 If so, did the discrimination arise out of, and was it closely connected to, an employment relationship which used to exist between the parties (there being no dispute that an employment relationship used to exist between the parties)? 1.4 If so, would conduct of that description have contravened the Equality Act 2010 if it had occurred during the employment relationship between the parties? 1.5 If so, what is the claimant’s loss and what remedy (if any) should be awarded? 2 The tribunal was mindful of the fact that we need to compare these issues to those set out in the relevant paragraphs of the claimants claim form, which are paragraphs 26 and 27 of the attachment to the claim form in this case. 3 Paragraph 26 says that the claimant made several subject access requests spanning the period of a year. He says that the respondent did not respond positively. 4 At paragraph 27, the claimant says that the respondent did not provide him with the information he requested, including his supervision reports and the disciplinary records he needed to defend himself in the context of a referral of the claimant to the Nursing and Midwifery Council by the respondent. 5 So we concluded that the nature of the claimant’s complaint, reading the list of issues in the context of the claim form itself, was broadly a complaint, as more specifically articulated in Judge Brown's list of issues, about the manner in which the respondent dealt with his requests for it to provide information to him after the termination of his employment and in the context of an NMC referral it had made. The claimant alleges that the manner in which these requests were dealt with amounted to direct sex and/ or race discrimination. The claimant is male and relies on his colour, which he describes as black, as his protected characteristic for the race discrimination claim. 6 Looking at the claim form and the list of issues in the case management order objectively, we do not think that we are being asked to make any kind of formal ruling as to whether the respondent failed to comply with its statutory obligations under the Data Protection Act 2018 or the GDPR. That is not our function. Neither party referred us to the specific provisions of that legislation. Rather, it seems to us that we are being asked to consider if, on an objective reading, the claimant was requesting personal data from the respondent on any of the occasions referred to, and if so, did the respondent fail to supply any of the information requested? If so, did they treat the claimant less favourably in that respect than they would treat a hypothetical comparator who was not black or who was female? The hearing 7 The final hearing initially commenced on the 10th of October 2024 but had to be adjourned for reasons reflected in the case management order dated 11th of October 2024. The claimant had commenced giving his evidence on the 11th of October, and was re sworn, having received a hard copy of the bundle, at the start of the hearing on the 13th of January. 8 The claimant provided 2 statements, the first dated the 7th of October and a supplementary statement dated the 11th of October 2024, the second 3 statement being provided after a disclosure of documents by the respondent on the 10th of October 2024. The additional documents amounted to additional e-mail chains which, we accept, had been misfiled by the respondent. 9 Ultimately, we had a bundle of 535 pages, and heard from the claimant and Ms S Hurd, a Senior Solicitor and Data Protection Officer employed by Priory Central Services Limited, who gave evidence about how the respondent generally deals with subject access requests. 10 We received an opening note from the respondents and written closing submissions from Mr Nthini, both of which we have carefully considered. 11 On the 14th of January 2025, both the claimant and his representative had some technical difficulties in joining the hearing, but this was resolved. During the morning of the 14th of January, at one point Mr Nthini was disconnected from the hearing, but this was noticed promptly and the tribunal waited until he returned and checked what he had last heard, and re-commenced from that point. We asked at the commencement of the hearing that everyone present let us know if they were having difficulties seeing or hearing the other party or the tribunal. Findings of Fact 12 It is agreed that the claimant was employed by the respondent from the 4th of January 2020 until the 12th of August 2021 when he resigned. Initially, he was an acting ward manager at Kneesworth House hospital which was managed by the respondent, and that position was made permanent from the 7th of April 2020. 13 In or about May 2021, the respondent began to investigate allegations against the claimant. An investigation was carried out by the claimant's then line manager, Laura Herdman (LH). 14 Eleven staff members were interviewed by LH and a number of allegations were made against the claimant, to the effect that he had sexually harassed junior staff. Apparently, the staff members who were interviewed had been given assurances by LH that they could remain anonymous. 15 The claimant was suspended during the investigation. His health suffered due to the stress of the investigation. He denied all the allegations but was not told who was making them. In the end, he resigned, giving the reason that the allegations and the investigation were having an adverse effect on his health. 16 Due to the nature of the allegations, a paper review of the evidence was then carried out by Dr Marguerite Horgan, who recommended that the claimant should be referred to the Nursing and Midwifery Council (NMC). 17 There is evidence in the bundle that the claimant was aware that a reference would be made to the NMC as early as October 2021, but we accept that he did not actually see the NMC referral completed by the hospital director, Priscilla Masvipurwa (PM), until on or about the 24th of November 2022. 18 Shortly afterwards, on the 7th of December 2022, the NMC made an interim order suspending the claimant from practising for 18 months. The claimant was invited to but did not attend the hearing at which the order was made. 19 Two days later, on the 9th of December 2022, the claimant wrote to PM requesting information. This is on page 79 in our bundle. The claimant says: “ I received your statement a few days ago from the NMC in which you reported that it was for the second time for me to be investigated for the same nature of the allegation of sexual harassments. You reported that in 2020 it happened and a warning was issued and I continued repeating with the same 4 behaviour that leads to the last year June 2021 allegation. I'm still in shock because I don't have any record with me and I had never had any issues raised during all my monthly supervisions with Gary and Laura to indicate there were concerns.” The claimant continued: “I have spoken with my legal team and we are requesting for the evidence documents signed by myself when the investigation and warning were issued in 2020 and all copies of my monthly supervisions I had with both Gary and Laura showing evidence of concerns… I hope you are able to post the documents for me or I can come and collect when they are ready because they are needed urgently with my legal team.”[sic]. This was signed “Godwin”. 20 The respondent says that in this e-mail the claimant did not properly identify himself because his e-mail address did not give his full name, and he simply signed it “Godwin”. The e-mail clearly refers to the NMC referral however, and to the 2021 investigation, and it is evident from the bundle that the claimant and PM had a good working relationship until he left the previous year. In our view, it should have been and was apparent to PM who was making the request, and that he was seeking personal data. 21 Ms Duane says that this e-mail could be interpreted as saying that the claimant would be making a request for personal data in the future, but given the reference to urgency in the last paragraph of the e-mail, and that the claimant is offering to collect the documents himself, we consider that the respondent and PM should have realised that the claimant was requesting personal data in that document. 22 There are some significant points that we need to deal with at this stage. The claimant said that he was shocked at the allegation that he sexually harassed someone in 2020, and that a warning had been issued on that occasion. He says that his line managers had not raised any such issues with him at the time. 23 This is, apparently, a reference to the NMC referral which starts at page 127 of our bundle. This is a copy of the online submission. It is said to be made by PM, who was the hospital director. Relevantly, on page 131 it says that the relevant incident, refer to as incident 2, happens between the 9th of January 2020 and the 31st of July 2021. It says that the claimant was reported to have sexually harassed junior members of staff and was reported to have used his position as ward manager to initiate contact with female staff with a view to starting personal relationships. 24 We find that the claimant knew that there had been an investigation about these matters in 2021, just before he resigned, although he had not been supplied with the names of those making allegations at the time and he denied making the allegations. 25 On page 135, at point N16 in the online submission, the referral states that “the claimant had a similar allegation last year and reflective supervision was prescribed but not delivered”. 26 Following this, on page 137, it is stated that there were previous concerns between the 1st of July 2020 and the 31st of July 2020. It is stated that the claimant was reported to be engaging inappropriately with female staff, and this was investigated. 27 The claimant accepts that in or about May 2020, there were grievances raised about him that resulted in an investigation. A report about this matter is exhibited to PM's later statement to the NMC, which appears at page 268 in the bundle. The report is dated 13th of May 2020. The first complaint is an allegation about the claimant making inappropriate comments to a junior female staff member leaving them feeling uncomfortable and discriminated 5 against (see page 270), and there was a second allegation that he made unprofessional comments to another staff member who is also female. These incidents were such to have taken place in February and March 2020. 28 The management report concluded that the first matter amounted to one person's word against the other. The second allegation (p271-273) dealt with in the report was that the claimant had mentioned a mark which was on a colleague's nose, and that a discussion had followed in which the claimant had suggested that the complainant's boyfriend had assaulted her, and had gone on to say that he would have a word with her boyfriend. The claimant contested this and said that the staff member volunteered that she had problems with her boyfriend. The claimant was not this person's line manager. 29 The conclusion of the report, which was exhibit PM 4 to Ms Masvipurwa’s subsequent statement to the NMC, was that the claimant had made unprofessional comments, and that the claimant had not considered the potential negative impact of these comments on colleagues. The recommendation in the report was for the claimant to receive reflective and professional supervision by his line manager, amongst other points.It is noteworthy that the recommendation for reflective supervision is exactly what is referred to in the NMC referral at page 135 at point N16. 30 There is no reference in the NMC referral to any warning being issued in respect of the allegations in 2020. We gave Mr Nthini time on the second last day of the hearing to check whether or not it had been suggested that the claimant had received a disciplinary warning within the NMC referral. He said that he could not identify any reference to a disciplinary warning in the NMC referral, but said that the claimant had seen the word warning “somewhere else” that he was unable to identify. The issue of whether PM suggested to the NMC that the claimant had received a disciplinary warning in 2020 is important because the central theme of the claimant’s case, and indeed, of his request for information from the respondent, is that PM had misled the NMC into believing that he had received a formal disciplinary warning in respect of complaints of sexual harassment in 2020. 31 We find that PM had not told the NMC, in her referral or subsequent statement to it, that the claimant had received a disciplinary warning for matters of sexual harassment in 2020. She said, at page 135, that the claimant had been prescribed reflective supervision after a “similar” matter was raised in 2020. The claimant interpreted those comments as suggesting that there had been a formal warning given in 2020, but that is not what is stated. 32 The claimant accepts that he received the document exhibited as PM 4 from the respondent no later than the 1st February 2023 when he sent a copy of it to the NMC. 33 As the sanction for the behaviour referred to at point and 16 on Page 135 is identical to the sanction recommended in the management report from May 2020 at PM 4, and there is a reference to “inappropriate behaviour” in 2020 both in PM4 and at page 137 In the NMC referral, we find on the balance of probabilities that the date on page 137 is incorrect, and that the previous concerns that PM was intending to refer to were the matters in set out in PM 4 rather than any other investigation. There are other incorrect dates in the NMC referral, such as the reference to an incident alleged to have occurred on the 3rd of September 2021 to the 3rd of October 2021 on page 130, that is after the claimant had resigned. The allegation on page 130, referred to as incident one, was not an allegation of sexual harassment at all, although the claimant accepts that there was such an allegation made whilst he was still 6 employed . As his employment had ended by the 3rd of September, this date must be incorrect. 34 In her witness statement provided to the NMC in April 2024, dealing with earlier concerns, PM only referred to the matters set out in PM 4, the May 2020 report, not to any other investigation. In this later statement, at paragraph 9, Ms Masvipurwa explains that she was not working at the hospital in 2020 – she commenced her role in February 2021 – but says that LH had mentioned to her that “there had been similar investigations in the past” in relation to the claimant, “around abuse of power”, and that she had “come across an old management report that explored complaints of two colleagues.” This reinforces our view that the matters referred to at point N16 on page 135, and on page 137 under “Previous Concerns” both refer only to the matters set out in the report dated 13.05.20 exhibited at PM4. In other words, the wrong date was used under the reference “Previous Concerns” on page 137. The NMC subsequently decided that the matters referred to in PM4 were not sexual in nature. 35 On the 12th of December 2022, at page 82 in the file, the claimant emailed PM again asking for all the documents he had previously requested as soon as possible. If we needed to decide this, we would not consider this to be a separate personal data request, as it was simply a follow-up inquiry about the progress of the request the claimant had made on the 9th of December 2022. The claimant did not in fact have a legal team or solicitor at this time, and he admits that what he said about that was therefore untrue. He says he made those comments to try to speed up the process. This is a factor which is relevant to, but not determinative of, the claimant’s credibility in other matters. 36 PM replied on the 15th of December 2022, see page 84, to say that she had forwarded his request to human resources, who would respond. She said that staff records were not stored on site and had been requested from Priory central storage. The claimant had attended the site without warning to try to obtain the documents. She asked him not to come to the site without an appointment and said that all requests for information should be forwarded to the human resources team. She asked for the claimant to be patient as the process was managed by the respondent's GDPR team who needed to check the relevant documents. So, it is obvious that by this stage, PM knew who the claimant was and understood that he had made a request for personal data, because she refers to the “GDPR team”. 37 We accept the evidence of Ms Hurd that whilst the “site” – Kneesworth House – is responsible for providing personal data if a subject access request is made, the Personal Data Team should be informed within 48 hours, and no documents are sent out until that team has confirmed that the data requested can be provided. 38 Despite PM's request for the claimant to be patient, we see that on page 87 the claimant emailed the central Priory complaints team giving his name and former place of work. He wrote to request information from his personal file, In general terms. He mentioned the NMC referral and PM's reference to another investigation, as he put it, between the 1st of July under 31st of July 2020. He says: “she wrote in her statement that I was subjected to another investigation between the 1st of July and the 31st of July 2020 and that I had a warning issued before the case was closed.” As we have seen, PM did not refer to the claimant being given a warning in the NMC referral. He said that he had not known of any investigation or warning in 2020. In fact, he has subsequently accepted that he did know about the allegations made which are referred to in PM 4. Indeed, he participated in that grievance investigation 7 – see for example page 273. In his e-mail, he says that he wants signed documents and signed warning papers and letters sent during the 2020 investigation. He said that he also wanted to see his personal monthly supervisions since he started on Clopton ward until he resigned. 39 The respondent points out that this e-mail was sent on the 20th of December 2022, and not the 19th of December as set out in the list of issues. The respondent was plainly aware of the 20th of December e-mail at the time, however, and there is a discrepancy of only one day. The subject of the e-mail is clear, and the respondent has not identified any disadvantage it may face from having to deal with this matter. We consider that this amounts to a typographical error in the list of issues and if an amendment was required to correct the date, we would make it. The contents of this e-mail are capable of being an additional request for data as, in addition to the documents requested on the 9th of December 2022, the claimant is asking for his personal file. Claire Spinks, the Group Complaints Manager, forwarded this e-mail to the Data Protection Team of the respondent, and informed the claimant that the team would be in touch soon, all on the same day - that is, the 20th of December 2022, see page 87. 40 The next alleged data request is at page 92 in the file and is dated the 29th of December 2022. The claimant wrote again to CS to remind her that he had not yet had the documents he requested, and he said he had a deadline to meet. He said: “the honest truth I know is that you don't have any documents in my folder reported by your hospital director Priscilla to the NMC that in July 2020 I had another investigation and warning. This is completely false information.” He goes on to suggest that PM had lied in her report to the NMC. In fact, as we have seen, in the referral at page 135 PM had simply referred to a similar allegation being raised and had said that reflective supervision had been prescribed. She does not refer to there being a warning at all, although we can understand why the claimant was confused by the reference to July 2020, when the management report was completed by May 2020. 41 We find that in this e-mail the claimant did not make a new request for data. It is a further example of the claimant, understandably, seeking to expedite the production of the documents he requested by repeating his request. The urgency is understandable, as the claimant had been suspended from practise and therefore was unable to work. 42 We can see from page 45 that on the 29th of December 2022, the Personal Data Team contacted the claimant and asked him to provide proof of his identity. This e-mail was from Rosalind Mitchell (“RM”) . We can also see from page 443 to 444 that on the 30th of December 2022 Julie Czernenkyj (“JC”), The regional HR advisor, wrote to PM to say that the Personal Data Team had confirmed that they had received proof of identity from the claimant she said that PM would need to collate the data requested and said that if sensitive data was involved, the data would need to be assessed by the Personal Data Team before it was sent to the claimant. Third party data would also need to be redacted. 43 JC had copied in the Personal Data Team who, she said, could provide support to PM. JC said that she thought that the claimant had not brought an employment tribunal claim, but that she was copying HR in case. 44 We accept that this was simply a sensible precaution by JC to ensure that everyone in the respondent’s organisation who needed to know about the claimant's request for information was aware of it. She mentioned, but did not specify, that subject access requests needed to be dealt with by a time limit. 8 45 It appears that at this point, the personal data log at pages 521 to 522 was commenced. It provides few details but says that on the 29th of December 2022 identity confirmation was received from the claimant and that HR had instructed the site to proceed with the request. This is consistent with what JC was reporting to PM the following day, the 30th of December 2022. 46 There is a reference in the data log to a management report being partly redacted and that further redaction was required. Consent was given for this to happen on the 23rd of January 2023. The data log was opened on the 30th of December 2022, but no date is given for its closure. We consider that it does not take matters much further forward, as it only reflects what we can see from the emails that have now been disclosed. 47 On the 29th of December 2022, CS, who was the Group Complaints Manager, emailed the claimant to say that she had forwarded his most recent e-mail to the data protection team. She apologised for the lack of a response but reminded him that due to the festive season it had only been 4 working days since the request was received (this is a reference to the 20th of December e-mail). She said that she hoped someone would be in touch soon to explain the process. 48 We see from page 442 that on the 27th of January 2023, RM, from the Personal Data Team, wrote to PM regarding the managers’ report saying that this document had been checked for redaction. RM recommended that there should be further redactions. She had highlighted some parts of the report in question which was said to be negative to the respondent and copied in Lisa Liddell. The claimant's representative placed some emphasis on the fact that RM had highlighted those matters, but we do not consider that this has any great significance for the claimants claim, as RM was recommending that the claimant should be given the report, admittedly redacted to comply with data protection rules protecting the identity of others. 49 The claimant accepted that he did not know RM, and that she was unlikely to be aware of his racial origin or colour. On the same day, the 27th of January 2023, we can see from page 93 that the claimant asked for an update as he was waiting to receive the documents. He repeated that he believed that PM had given false information regarding his behaviour and about there being a warning in July 2020. He explained the urgency. 50 We do not consider that this was a fresh data request, it was an example of the claimant chasing up his previous request for documents. On the same day, CS said that she was sorry to hear this and would forward his request to the data protection team, see page 97. We note that this was not the first time that CS had told the claimant that it was the data protection team that was dealing with his request. On this occasion, she also provided the claimant with an e-mail address so that he could contact the data protection team direct - see page 95. There are further emails addressing the same issue at pages 96 and 97. 51 On the 30th of January 2023, the claimant also asked CS for a further copy of the disciplinary outcome letter from October 2021 that had been signed by Doctor Horgan. The claimant had already received a copy of the letter at that time. CS said that she would copy his request to the Personal Data Team. The claimant subsequently received a copy of this outcome letter and does not complain about that. 52 At 1423 on the 1st of February 2023, Debbie Thayre, (DT) a Human Resources coordinator, sent the claimant a copy of “the evidence” - page 106 to 107. She does not explain what the evidence was, but at 15.05 that day, the claimant replied: “Thank you Debbie, I'm waiting for all the other 9 documents requested please, all my supervisions and the final letter of the disciplinary done by Horgan.” This is a reference to the disciplinary outcome letter by Doctor Horgan mentioned above. This is not a new or fresh request for data, simply repetition by the claimant of what he considers to be outstanding at that time. 53 The claimant accepted in evidence that there must have been included in the evidence received on the 1st of February the management report dated 13th of May 2020 which became exhibit PM 4, as he sent that report to the NMC that day - see page 204. In his e-mail to the NMC, the claimant gave his account of the matters referred to in the May 2020 reports and says that these matters were never linked to any sexual harassment allegations. He concludes: “That's the whole story about the 2020 incident” which suggests that at the time he accepted that what PM was referring to in the NMC referral was the contents of the May 2020 report, and that there was not any later report. That would be a sensible conclusion, as he was being sent the May 2020 report in response to his request for details of the 2020 allegations referred to in the NMC submission. 54 On the 6th of February 2023, the claimant wrote to DT again asking for the remaining requested documents, See page 106. He said that what was outstanding were his monthly supervisions and the outcome letter sent by Dr Horgan in 2021 (of which he had received a copy in 2021 but had misplaced). 55 On the same day, DT replied, stating that she was just awaiting authority to resend the letter from Dr Horgan to the claimant. She said that she had not received the claimants supervision notes yet as” everything was done on PCR” . This was a reference to a computer system used by the respondent at the relevant time. She went on to say that the respondent was checking to see if they could get the notes from that system. 56 On the 9th of February 2023, page 104, the claimant replied saying he was running out of time and that he was struggling to understand what the problem with their systems was. We can see from emails on page 494 sent on the 6th of February 2023 that DT was seeking authorization to resend the outcome letter to the claimant and that she was not able to access supervision records. On the 7th of February at page 491, DT wrote to PM and the Personal Data Team and JC to say that she wanted to send out the copy of Doctor Horgan’s letter and that she could not send the supervisions as there was nothing on file. At page 490, PM confirmed that the supervision documents could not be located. On the 8th of February, page 489, DT asked JC, PM and the Personal Data Team if she should confirm that there were no supervision records, but she received no answer at that time. RM from the data protection team agreed that as the claimant had already received Doctor Horgan’s outcome letter unredacted, it should be fine to send him another copy. The claimant accepts that Dr Horgan’s letter was then sent to him, but he was not told at that time that the supervision records could not be located. 57 Taking account of the claimant’s e-mail of the 6th of February, therefore, the only documents he complained were outstanding at that time were the monthly supervision records. 58 On the 7th of March 2023, see page 112, the claimant sent a formal letter to the respondent referring to the Data Protection Act 2018. He then asked for all his supervision records, as previously requested, all the information on his personal file, unredacted statements from the 2021 investigation and “the warning letter from 2020”. In addition, he asked for copies of grievances that he had raised against Laura Herdman when she was his line manager. 59 The respondent accepts that this was a fresh data access request, and it 10 clearly involved a request for additional documents. The claimant was still asking for what he referred to as the warning letter from 2020, although the word “warning” is not referred to in the NMC referral. 60 On the 8th of March 2023, see page 400, the Personal Data Team wrote to DT and others asking for confirmation that all personal data requested had now been sent to the claimant. RM of the Personal Data Team confirmed that unredacted copies of statements could not be sent in accordance with the Data Protection Act 2018. 61 The next relevant exchange of emails occurred on the 15th of March 2023, see page 463. RM asked whether the monthly supervisions had been located and suggested that the files may be at Central Human Resources. DT said in response, on the same day, that she had looked through the claimant’s folder and that there were no supervisions there and that no records had been located on site. It had also not been possible to find anything about the grievances against Laura Herdman. By this time, March 2023, the claimant had not been employed by the respondent for more than 18 months, and Laura Herdman had also left. DT said that the team at Kneesworth House had also asked JC to check for the documents “at her end” also. 62 On the 17th of March, DT attached the claimant’s HR file for RM to look through -see page 420. 63 On the 22nd of March, see page 119, the claimant followed up his letter of the 7th of March. He alleged that the respondent was in breach of the Data Protection Act and said he would be contacting the Information Commissioner's Office. He also said that the respondent was in breach of the Equality Act 2010 for treating him “less favourably as a black man”. 64 By the 22nd of March, David Watts, the respondent's Director of Risk Management was asking if the claimant’s matter had been dealt with - see page 418. RM said that she thought it had been dealt with, but would seek an update as the claimant was still saying that it had not been complied with -see page 475. 65 Also on the 23rd of March 2023, we can see that RM was saying that the respondent was still trying to find the supervision notes and appraisals. She asked if they had been stored as hard copies in LH’s office. As we have noted, LH had left the respondents employment by then. RM also asked JC to check if there was any information stored centrally. Then on the 24th of March see page 461, Lennor Derrick, the Director of Clinical Services who was based at Kneesworth House, said that they would do another search of LH’s Office, but she thought this had been done previously. 66 On the 3rd of April, see page 396, RM asked LD for an update regarding the supervision notes. She had clearly received some additional documentation from Ms Derrick as she inquires whether someone called Karen Stone, who had apparently taken some supervision notes, still worked for the respondent. She listed the documents which had already been provided to the claimant. Further documents were then sent to the claimant on the 3rd of April 2023. 67 On the 25th of April 2023, see page 125, the claimant wrote to remind RM that his monthly supervision notes and appraisals, together with any supporting documents regarding the allegations from July 2020, and what he again refers to as “the warning letter”, had not been provided. The claimant said at this point that he thought the allegation referred to as occurring in July 2020 must be a separate incident from what he refers to as the “March” incident (a reference to the incidents in the May 2020 management report). 68 The claimant additionally asked for all documents relating to concerns 11 regarding his practise at work from 2020 to 2021. He also asked for a “Relationships at work” policy, which he accepts was provided promptly. 69 This date, the 25th of April 2023, does not appear in the list of issues, and there has been no application on the part of the claimant to amend his claim. It is a different situation from that relating to the 20th of December 2022, when there was a difference of only one day and it was clear which e-mail was being referred to. We will, however, take account of this request as background information when considering his other claims. 70 On the following day, the 26th of April 2023, Ros Mitchell (RM) wrote to DT and others attaching the claimant’s letter from the previous day. She asked if they would have to inform the claimant that they did not have the supervision records. She asked if the incident on the 7th of July 2020 was a separate incident to that alleged in July 2021. She asked if everything in the personal file has been redacted in accordance with the Data Protection Act and sent off to the claimant. 71 On the same day, JC confirmed that the Central HR team did not hold the supervision records and that they would usually be held at Kneesworth House. On the 26th of April also, PM confirmed that no files were handed over by LH when she left and that a search of her room had found nothing, but that perhaps LH’s emails and home drive could be checked. This is at page 506. On the same day, RM requested that there be an e-mail and network search for LH’s emails and drive by the IT department. 72 RM send the claimant a copy of his contract of employment and the “Relationships at Work” policy that he had requested the previous day. She also dealt with the claimant’s request for copies of his pay slips, and the claimant accepts that these were provided promptly. At this time, RM told the claimant that the monthly supervisions and appraisal records would be sent as soon as possible. At the very least, this was extremely optimistic of her in the circumstances that she had been told that searches had been done but these documents had not been found up to that point. 73 The claimant was asked to identify any other documents from his personal file that he thought had not been provided, because the respondent believed that everything else had been sent apart from the appraisals and supervision notes. 74 On the 19th of May 2023, after the IT department had conducted its searches, RM sent the claimant his 2021 PDR report. She said that they had been able to identify that 3 calendar meetings had been scheduled to deal with supervision by the claimants line managers, in June and July 2020 and in June 2021, but following an extensive search the respondent had not been able to locate notes or documents relating to these meetings, and they were therefore of the view that all information had now been provided to the claimant. 75 So to summarise our findings, we find that the claimant made requests for personal data on the 9th of December 2022, with 20th of December 2022, the 1st of February 2023 on the 7th of March 2023, and that he repeated those requests on the other dates in the list of issues (apart from the 19th of April 2023). The claimant also made a request for personal data on the 25th of April 2023, but that date is not on the list of issues, and no application has been made to amend that. We have, however, taking that request into account as background evidence to see if any inferences of discrimination could be drawn from it. 76 The information which the claimant alleges was not supplied was evidence regarding allegations against him in July 2020 (as opposed to earlier in 2020), 12 including what he refers to as a warning letter, and documents relating to the claimant's monthly supervisions in 2020 to 2021 and any other documents on his personal file. 77 Regarding any disciplinary investigation and/or warning in July 2020, we have set out our finding above that, in fact, the date of July 2020 in the NMC referral was an error and that the reference was intended to be to the allegations in the management report (“PM 4”) dated 13th of May 2020. The claimant was sent a copy of the management report exhibited at PM4 no later than the 1st of February 2023, when he forwarded it to the NMC. PM never said that a disciplinary warning had been given to the claimant in 2020 and for those reasons we find that there are no documents relating to any incidents in July 2020, nor any disciplinary warning from that time. As the management report relating to the complaints earlier in 2020 was sent to the claimant by 1 February 2023, on the claimant’s own case there was no breach of the data protection legislation – see p75, the claimant says that the documents should have been provided no later than 9 March 2023. The only documents which existed in relation to the complaints in 2020 were provided more than a month earlier, see above. 78 We accept the respondent's evidence that despite extensive searches, they were unable to find any records of the claimant’s monthly supervisions for the period of his employment and so were unable to provide them to him. Likewise, we accept that the only other document from the personal file which the respondent was able to locate, after searching its IT system, was the claimant’s 2021 PDR, which it provided on 19 May 2023, see page 121. The claimant had requested the contents of his personal file on 7 March 2023, after telling DT on 6/2/23 that the only outstanding documents from his initial request were the supervision notes and a further copy of Dr Horgan’s letter from October 2022. His case is that his request of 7 March 2023 should have been complied with by 7 June 2023 (page 108). We find that the respondent complied, as far as it was able to, by 19 May 2023 when it provided the PDR. We accept that it was unable to find any other documents from the claimant’s personal file. 79 We do consider that the respondent should have communicated to the claimant more promptly that it could not find his supervision notes – Debbie Thayre was asking the Personal Data Team if she could do so as early as 8 February 2023, see p489, and she did inform him on 8 February 2023 that they were trying to find them via the respondent’s PCR system – but we accept that, when the claimant requested his monthly supervision records and the contents of his personal file more than fifteen months after his resignation, they were simply no longer available to the respondent, and so could not be provided. RELEVANT LAW 79 According to section 13 of the Equality Act 2010, a person (A) discriminates against another person (B) if, because of a protected characteristic, a treats B less favourably than a treats or would treat others. 80 The protected characteristics here, as indicated above, are race (colour) and sex. 81 Section 23 of the 2010 Act provides that for a comparison for the purpose of, here, section 13, there must be no material difference between the circumstances relating to each case. 82 Section 39(2)(d) provides that an employer must not discriminate against 13 an employee by subjecting them to detriment. 83 Section 108 provides that a person, A, must not discriminate against another person, B, if (a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene the Equality Act. 84 Section 136(2) provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. Subsection (2) does not apply if A shows that A did not contravene the provision (subsection 3). A reference to the court includes a reference to an Employment Tribunal. 85 A comparison for the purposes of section 13 and section 23 may be hypothetical. The comparator must not share the claimant's protected characteristic. In the case of Shamoon v RUC, [2003] UKHL 11 Lord Scott held that the comparator must be the same as the alleged victim of discrimination in all respects save only that they are not a member of the protected class. The circumstances relevant to the treatment must be the same or nearly the same in each case. 86 The claimant has not referred to the treatment of any other person as an actual comparator, and the only comparison put forward is a hypothetical one in this case. 87 We should look at all the material before us before concluding whether there has been less favourable treatment. Where an employer behaves unreasonably, that does not mean there has been discrimination. There must be some evidential basis for the drawing of an adverse inference that the claimant has been differently and less favourably treated and that this is because of race or sex (in this case). 88 In the case of Madarassy v Nomura International plc, [2007] EWCA Civ 33, Lord Justice Mummery said that a difference in status and a difference in treatment is not sufficient to shift the burden of proof. It is necessary for the claimant prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed an unlawful act of discrimination, not just that the respondent could have committed such an act (emphasis added). A difference in status and a difference in treatment only indicates a possibility of discrimination. The absence of an explanation by the respondent is only relevant when the claimant has established a prima facie case. 89 We took account of the caselaw referred to by the parties, including the case of Nagarajan v LRT [2000] 1 AC 501 cited by Mr Nthini, but reminded ourselves of the need for evidence from which we could conclude that discrimination has occurred. Application of Law to Facts 90 The respondent argued that the tribunal does not have jurisdiction over the claimant's claims because, it says, questions of whether or not there has been compliance with data protection legislation is a matter for the Information Commissioner's Office, not the Employment Tribunal. But here, the claimant is alleging that he was less favourably treated than a white person or a woman would have been in respect of the way in which the respondent handled his personal data requests. Whilst the Information Commissioner's Office has jurisdiction over whether or not there had been 14 breaches of the Data Protection Act 2018, it cannot deal with complaints of sex or race discrimination made on the basis that employees who make such requests of their employer, or former employees where relevant, are treated differentially because of sex or race. Discriminatory treatment of such requests made by employees by their employer is, in our view capable of being a detriment. 91 In addition, for the reasons set out below, if the claimant’s complaints had been substantiated, in our view we would have had jurisdiction under section 108 of the Equality Act 2010. 92 So, has the claimant proved facts from which we could conclude that the respondent’s failure to provide him with his supervision records from 2020-2021, additional (unspecified) documents from his personal file and/or any materials from any investigation in July 2020 were because of his colour or his sex? 93 We found as a fact that the reference to previous concerns on pages 135 and 137 of our bundle, within the NMC referral, refer to the subject matter of the management report dated the 13th of May 2020 relating to events in February and March 2023. This report was provided to the claimant on the 1st of February 2023 and later exhibited to PM’s 2024 statement to the NMC. The referral to the NMC made by PM does not mention a disciplinary warning, and the claimant accepts that there was, indeed, an investigation into complaints against him which concluded in May 2020. The management report includes his response to those allegations. The outcome of the 2020 investigation referred to in the NMC referral on page 135 was the same as that in the management report dated 13th May 2020. This strongly supports our view that it was the allegations in the May 2020 management report that were referred to in the NMC referral and that the date of July 2020 in that referral is simply an error. If, as we found, there was no investigation or warning in July 2020, the respondent cannot have treated the claimant less favourably by failing to provide him with documents relating to them timeously, and that complaint therefore fails. 94 In relation to the complaint of failure to provide supervision records or other unspecified material from his personal file, unfortunately, although the claimant has asserted many times that his treatment was because of his sex or his race (see for example his witness statement dated 7 October 2024 paragraphs 21 and 22, 25,31, 32, 43, 44, 46, 58,64) he has not provided evidence from which we could reach such a conclusion. In particular, he has not provided any evidence from which we could conclude that PM deliberately falsified the NMC referral by referring to previous complaints in July rather than February/March 2020, or that by saying that the allegations in the management report dated May 2020 were similar to the allegations of sexual harassment against the claimant in 2021, or referring to July rather than earlier in 2020, she was influenced by his sex or race. 95 Whilst those allegations against PM do not form part of the list of issues before us, the claimant sought to persuade us that this was the case, and that as a result we could draw an inference that PM had delayed or obstructed the production of his supervision records, other unspecified material from his personal file or any material relating to complaints in July 2020 because of his sex or race. In paragraph 72 of his October 2024 statement, the claimant said: “this group of white women ganged up on me with PM, the black woman, in the frontline doing the dirty work. None of them were objective. None of them considered my rights in the same way that they considered the 15 rights of white female staff. This is discrimination .” However, simply repeating that treatment is discriminatory does not provide evidence that it was. 96 As we have noted, the claimant has not provided any evidence about whether white male nurses, or any female nurses, at Kneesworth House were subject to similar allegations of sexual harassment to those that he faced in 2021, if so whether or not they were referred to the NMC, or how subject access requests or other requests for information in connection with an NMC referral from any other former employee has been dealt with, whatever their race or sex. 97 He has asserted that black male nurses are disproportionately likely to be referred to the NMC. That may be so, but we have to consider the evidence in this case, and there clearly were allegations of sexual harassment in 2021 which caused the respondent to be so concerned as to report the claimant to the NMC. 98 We accept that the decision to refer to the claimant to the NMC was initiated by Doctor Horgan after she conducted a paper review of the evidence in relation to the 2021 allegations of sexual harassment. There was no evidence whatsoever from which we could conclude that in deciding that such a referral should be made Dr Horgan was influenced by the claimant’s race or sex. Allegations of sexual harassment, particularly where an abuse of power is alleged, are matters that must be dealt with seriously by employers. We were told that there were 11 statements that had been gathered in respect of the allegations against the claimant in 2021 and that the allegations of sexual harassment came from more than one source. There is no evidence from which we could conclude that Dr Horgan would not have thought it necessary to refer the claimant to the NMC if the claimant had been white or if he had been a female against whom the same sort of allegations had been made, or indeed that PM would not have carried out the decision to make an NMC referral in those circumstances. 99 The claimant provided no evidence at all from which we could conclude that Dr Horgan, or any of the HR advisors or other individuals who were involved in dealing with his requests that he refers to in his statements, treated him less favourably because of his sex or race. 100 The allegation made by the claimant that PM was treating him less favourably because of his sex or race, or that she was colluding with white females to do so, is also rendered less credible by the claimant’s own comments about her in his response to the NMC at page 160 in the bundle. He says: “I think my problem started when a new hospital director [PM] from my country was appointed. We had a lot of members of team who left and not feeling comfortable working under her. My line manager [LH] wasn't also happy because of my connection with her professional because at the time she [PM] was starting mentoring me to support me with my development to become the director of clinical services.”[sic]. The claimant’s evidence to us was that his line manager Laura Herdman had been unhappy because he had a good working relationship with PM, who was of the same nationality and colour as he was, and who was supportive to him. It is therefore difficult to understand why PM would subsequently treat the claimant adversely for reasons influenced by his colour or sex. The claimant asserts that PM did what he refers to as a group of “white females” wanted in order to hold on to her position as Hospital Director, but we were shown no evidence to substantiate that allegation at all. 101 Indeed, PM made a number of positive comments about the claimant within the NMC referral itself. For example, at page 133/4 she mentioned that 16 the claimant had worked through the pandemic despite a heart condition and despite the fact that he had a “shielding” letter. She says that he “turned his ward around” after a negative CQC rating and managed a very challenging ward. At page 134, she described him as very dedicated. 102 So we are unable to draw any inferences of sex or race discrimination from the fact that a referral to the NMC was made, or from the fact that there were some errors in the referral relating to dates or the comment that the complaints dealt with in the May 2020 report were “similar” to those made in 2021 against the claimant. Indeed, while the complaints that were subject to the May 2020 report were found not to be complaints of sexual harassment, we observe that the complaints in each case did relate to inappropriate behaviour by the claimant towards more junior female members of staff. PM explained in her later statement to the NMC that she had been told by LH that the 2020 complaints involved an element of abuse of power. So, from her perspective, there was some similarity in that respect. 103 In relation to the respondent's failure to provide the claimant with his supervision records, appraisal records or other unspecified material from his personal file promptly, well over a year after he had left their employment, we do not consider that there is any evidence from which we could infer that the claimant was less favourably treated than anyone else would have been in the circumstances that a referral to the NMC had been made, more than a year had passed since the employee’s employment had terminated, and the employee’s line manager (LH) had also left the business by the time the request for documents was made. 104 The claimant’s initial requests for documents were made around the festive period, and the Personal Data Team had to be involved by the respondent, but searches had been carried out and the claimant was provided with at least some of the documentation he requested, including the management report from May 2020, by the 1st of February 2023. So far as the dates in the list of issues are concerned, the claimant, as we have noted, has primarily alleged that any warning or disciplinary investigation that might relate to events in July 2020 was never supplied, and that his appraisals were provided tardily and that his supervision notes were not provided at all. 105 We have concluded that there never was a disciplinary investigation or warning in July 2020, that the NMC referral related to the matters in the May 2020 management report and the claimant was provided with that document within the necessary period, even on his own case. 106 We agree that the respondent should have communicated more openly and effectively with the claimant regarding whether or not there were any more documents relating to the allegations about 2020 in the NMC referral, but there is no evidence from which we could conclude that their failure to do so has anything to do with his race or sex. The claimant accepts that RM would not be aware of his race and has provided no evidence from which we could conclude that anyone else involved, such as DT, Lennor Derrick or PM, would have treated anyone who was not black or who was female differently in those circumstances. 107 So far as the supervision records, appraisals and any other documents from the claimant’s personal file are concerned, we have found that that the reason that the supervision documents and any other documents that may have been on the claimant’s personal file were not provided was that the claimant’s line manager (LH) had left the business by the time his requests were made, and those documents simply could not be found. Despite extensive physical and IT searches, the supervision records were never 17 found, and it was only after The IT searches were complete that the claimant was given his appraisal from 2021.We accept that this was the only additional document that the respondent was able to find. 108 Again, we can be critical of the respondent for not communicating more clearly with the claimant, for example for not informing him more promptly that they were having difficulty in locating the supervision notes, or for not asking IT to search LH’s emails and home drive at an earlier stage, but we accept that the supervision records could not be found, and therefore that the respondent was not in breach of its responsibilities in failing to provide them to the claimant, and that because the claimants line manager had also left the business, this led to delays. 109 There is simply no evidence from which we could conclude that someone of different colour or sex would have been treated differently in respect of these matters. 110 It seems obvious to us from the emails that we have seen that DT, in particular, was telling the Personal Data Team by early in February 2020 that the supervision records could not be found. DT could not send anything to the claimant without clearance from the Personal Data Team. The claimant accepted that RM, the contact at the Personal Data Team, would not have known anything about his race. Again, there is no evidence from which we would conclude the either the Personal Data Team or the team at Kneesworth House would have treated anyone of different colour or sex differently in respect of these requests for documentation and information. 111 To be clear, the hypothetical comparator in respect of the race claim would be a white male or female in respect of whom allegations of sexual harassment were made in 2021 and in respect of whom there had previously been a grievance investigation for inappropriate but nonsexual comments to junior staff of different sex, and who had been referred by the respondent to the NMC. In respect of the sex discrimination claim, the comparator would be a female nurse against whom allegations of the nature made against the claimant in 2020 and 2021 were made, and who had again been referred by the respondent to the NMC, and in the case of both race or sex discrimination, where the hypothetical comparator made similar requests for documents and information more than 15 months after their employment ended, in the context of an NMC referral. 112 There is just no evidence from which we could infer that such individuals would be more favourably treated than the claimant was. 113 In respect of section 108, if we had needed to determine that issue, we would have found that we had jurisdiction to deal with this case. 114 The alleged discrimination arose out of the claimant's former employment with the respondent and their subsequent referral of him to the NMC because of his alleged behaviour during his employment. It was therefore closely connected with the former employment relationship. The claimant was asking for the documents and information because of that employment relationship and the subsequent referral to the NMC arising out of his employment. 115 If the conduct alleged to amount to discrimination had happened during the claimant’s employment it would, in our view, have been capable of contravening the Equality Act 2010; but for the reasons given above, the claimant has not established that the alleged discrimination occurred. 116 For the reasons given above, therefore, the claimants claims fail and are dismissed, 18 Approved by: