Dr O Iourin v The Chancellor, Masters and Scholars of the University of Oxford: 3305245/2018 and 3312662/2019
EMPLOYMENT TRIBUNALS
Case No 3305245/2018, 3312662/2019
Between
Dr O IourinClaimantThe Chancellor, Masters and Scholars of the University of OxfordRespondent
Before
Employment Judge VowlesIn person for claimantMs J Danvers (instructed by counsel) for respondentDate 13 February 2025
JUDGMENT
Made under rule 37 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013[1]The Tribunal heard submissions and read documents from both parties and determined as follows.[2]Claim number 3312662/2019 is both an abuse of process and a duplication of claim number 3305245/2018. It is unreasonable and has no reasonable prospect of success.[3]Accordingly, claim Number 3312662/2019 is struck out.[4]Reasons for this judgment were given orally at the hearing. Written reasons will not be provided unless a written request is presented within 14 days of the date this judgment is sent to the parties.[5]All judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the Claimant and Respondent.
REASONS
FOR THE JUDGMENT SENT TO THE PARTIES ON 6 NOVEMBER 2019 AND REQUESTED BY THE CLAIMANT[1]On 11 July 2019 I made case management orders in respect of this public preliminary hearing today. The case management orders said that this hearing would be held to consider the following:(a) Whether the cases should be consolidated to be heard together;(b) Whether any claims should be struck out as having no reasonable prospect of success or made the subject of a deposit order if they have little prospect of success;(c) Whether the tribunal has jurisdiction to consider any claims which have been presented out of time;(d) The Claimant’s application dated 27 February 2019 for reconsideration in case number 3305245/2018;(e) Any other applications by either party; and(f) Whether any further case management orders are necessary for the future conduct of the proceedings.[2]At an earlier preliminary hearing on 12 February 2019 I considered two applications by the Claimant to amend his first claim presented on 27 March 2018. The case management order which records my decisions in (R) Page 1 of 4 that respect are as follows:(1) The application dated 23 October 2018, that is the blue amendment to amend the claim by adding further detail and claims, which was not resisted by the Respondent, was granted;(2) The application dated 12 February 2019, that is the red amendment to further amend the claim by adding further detail and claims, was refused[3]Reasons for those decisions were given orally at the hearing.[4]On 27 February 2019 the Claimant made an application to reconsider my refusal to allow the red amendments and that document is set out at page 68 of the bundle prepared by the Respondent for this hearing.[5]On 7 May 2019 the Respondent objected to the application for reconsideration and that is set out at page 220 of the bundle before me today.[6]So far as the application for reconsideration is concerned which is before me today, but for one matter which I shall come to shortly, that application is refused on the grounds set out in the Respondent’s objection. The objection, which I accept, is largely as follows – that there are no interests of justice requiring a reconsideration of the refusal of the red amendments.[7]On 12 February 2019 I conducted a balancing exercise of the relevant factors. I took into account the interests of justice and the relevant hardships caused to the parties by granting or refusing the application. I took account of the principles set out in the leading case of Selkent Bus Company Ltd v Moore [1996] and I took account of the nature of the amendment, the applicability of time limits, and the timing and manner of the application. There is nothing in the Claimant’s application for me to reconsider the red amendments apart from the one matter, which I will come to, which persuades me today to change that decision.[8]The new claim is a claim which was presented by the Claimant on 14 March 2019 and so it came after my decision on 12 February 2019. I find that that new claim and, in particular paragraphs 123.1 to 123.7 which were gone through in detail today, are seeking to reintroduce the red amendments which were refused on 12 February 2019. The rest of that new claim effectively repeats the original claim presented on 27 March 2018 and is to that extent a duplication. All the matters but for the training event which took place on 18 December 2018 are now out of time. Any new documents seen by the Claimant on or before 23 October 2018 could have been included in his 23 October 2018 amendment which was allowed.[9]I find that the new claim is as claimed by the Respondent an abuse of process. It is seeking to reintroduce matters which have been excluded. The matters referred to, apart from the 18 December 2018 event, are all out of time. It is, as I have said, a duplication and I have taken account of (R) Page 2 of 4 the case referred to by the Respondent of Agbenowossi-Koffi v Donvand Ltd [2014] Court of Appeal which stated: “The question was whether it was oppressive or otherwise an abuse of the process of a court for the Claimant to raise in second proceedings a claim which he could have raised in the first proceedings. The very fact that a defendant is faced with two claims where one could and should have sufficed will often of itself constitute oppression. It is not necessary to show that there has been harassment beyond that which is inherent in the fact of having to face further proceedings.”[10]On that basis, the new claim having been an abuse of process and a duplication of the original claim, is struck out. It is unreasonable and has no reasonable prospect of success.[11]The one matter on which I have decided it is in the interests of justice to allow the application for reconsideration is the allegation regarding the training event on 18 December 2018 and I revoke my decision to refuse the red amendment relating to that matter. That matter was in the red amendment at paragraph 110.6 and it read as follows: “Intensive one to one training about harassment was chosen for Claimant to ensure to avoid misinterpretation of any physical contacts after 23 years of spotless employment at 63 years old of age instead of apologies to the innocent person. Claimant who proved his innocence from allegations of harassment and suffered severe injustice during the investigation was subjected to mobbing with request to undertake humiliating and insulting him training about harassment. That training was provided by HR officers who were subordinates to Mrs Dawn McNish, accused by Claimant in this claim while [Ms A] did not go through such training after her false statements.”[12]Unlike the other red amendments which could have been included in the 23 October 2018 amendment, the requirement to undergo training, is already in the list of issues at paragraph 1.10 but here the Claimant’s claim is about the nature and the manner of the training. He says it was training about harassment, not about equality and diversity and that is different to the allegation in paragraph 1.10 of the list of issues. That was an allegation that the Claimant had to undergo training and that [Ms A] did not have to go through such training.[13]Additionally, I find that the complaint regarding the 18 December 2018 event was not out of time as at 29 February 2019. I also find that there would be no hardship or no significant hardship to the Respondent by including that amendment because of course the training course attended by the Claimant on 18 December will be documented and the content of such a training course will be available to the Respondent and to those who conducted the training.[14]It follows that paragraph 110.16 of the red amendment will be added to the list of issues as paragraph 1.11. (R) Page 3 of 4[15]Lastly, the Respondent’s application for an anonymity order in respect of [Ms A]. …………………………………………. 16. ……………………………………………………[17]I therefore make an order under Rule 50(1)(iii)(b) that the identity of [Ms A] shall not be disclosed to the public at any hearing or in any listing and I also make a restricted reporting order regarding her identity under section 11(6) of the Employment Tribunals Act 1996. That latter provision reads as follows: “A restricted reporting order means an order-(a) Made in exercise of a power conferred by regulations made by virtue of this section; and(b) Prohibiting the publication in Great Britain of identifying matters in a written publication available to the public or in its inclusion in a relevant programme for reception in Great Britain.
FINDINGS OF FACT
[18]The investigation report was presented to a Divisional Panel and both the Claimant and Ms A were invited to hearings before the panel. On 4 April 2017 Miss McNish wrote to the Claimant (page 917) to confirm that: “The panel have concluded that there is no conclusive evidence to support [Ms A]’s claims of sexual harassment against you and to this end the complaint is not proven.”[19]Ms A was also informed of the outcome and on 13 April 2017 lodged an appeal against the outcome. Meanwhile, on 12 April 2017 the Claimant had returned to work.[20]On 25 July 2017 the Claimant submitted a written grievance.[21]Because Ms A’s appeal and the Claimant’s grievance were closely related, it was decided that both matters would be considered by the same Grievance Committee and that the Committee would seek to hold the hearings in close succession and to make a decision on both matters at the same time, although following separate hearings.[22]On 26 April 2018 the Grievance Committee had provided an outcome of the Claimant’s grievance which pertained to the matter in which Ms A’s complaint of sexual harassment against the Claimant had been handled. In the “summary of findings” it was stated. “For the reasons set out below, the Committee finds that three elements of OI’s grievance are well found; 1) In respect of the communication surrounding the need to remain away from work (and the lack of clarity in respect of that requirement); 2) As to the lack of communication in respect of the progress of the investigation and delays; and 3) In respect of the information provided to OI at the outset of the investigation process into [Ms A]’s complaint. The Committee find that the remaining complaints are not well found.”[23]On 8 May 2018 the Claimant appealed against the outcome of his grievance. He was invited to an appeal hearing on 7 June 2018 and his appeal was dismissed on the 27 July 2018.[24]Meanwhile, on 20 June 2018 the Grievance Committee produced an appeal outcome report in respect of Ms A’s appeal. The report included the following: Page 5 of 20 “The chocolates and note from OI indicate a degree of remorse and embarrassment consistent with an attempted “clumsy” kiss and also indicate a personality that is not likely to be aggressive in our view; and (5) in OI’s own defence documents in the proceedings, he has posed rhetorical questions such as “Can an attempt to kiss your friend after providing lift home be harassment?” [E3] and “the list of allegations against me should be viewed as good will gestures between friends… The allegations were: an attempt to kiss at “bye bye” moment between two friends after giving a lift home” [E2]. We consider that these documents produced by him reveal the truth about the event, despite his denial that he ever attempted to touch [Ms A], even as a good will gesture. In summary, we find, on balance of probabilities, that there was an attempted hug and kiss and that OI most likely did hold or touch [MS A] on her shoulder when he moved to kiss or hug her. We do not find that this was forceful or aggressive. [Ms A] explained that she was in a “fragile state” due to the pain and injury to her shoulder [D159]. We consider that her perception of the degree of force OI used when touching her shoulder could have been affected by this. We accept [Ms A]’s evidence that this was unwanted conduct, but we do not find that it was of a sexual nature. Both parties describe their relationship in familial terms, with OI suggesting that [Ms A] was “like a daughter” [D114] and [Ms A] stating she regarded OI as “a grandfatherly type person” [D44]. Further, whilst we do consider that a kiss or even an attempted kiss can amount to sexual harassment in some situations, on the facts of this complaint, we do not consider it to amount to such. This is because in the context of the relationship we have found it to be, OI may have felt it appropriate to demonstrate affection in this way. We do not consider that the attempted hug or kiss that we have determined took place (and which is a different from [MS A]’s perception of events) could be described as a “violation of dignity, or creating and intimidating, hostile, degrading, humiliating or offensive environment”, adopting the vernacular of the Bullying and Harassment Policy. Accordingly, whilst we overturn the findings of fact and uphold [MS A]’s version of event to a degree, we do not make a finding that these actions amount to harassment or sexual harassment.”[25]The summary of findings was as follows: “For the reasons set out below, the Committee finds that three elements of [Ms A]’s appeal are upheld and, having considered matters on the balance of probabilities, decides as follows: 1) The finding in respect of events of 22 January 2018 be substituted with a finding that Dr Oleg Iourin (“OI”) attempted to kiss and/or embrace [Ms A] in the car outside her home after Page 6 of 20 having driven her home. However, we do not find that this act meets the concept of sexual harassment or harassment; 2) OI did leave the note with the chocolates on 25 January 2016, but we do not find that this act constitutes sexual harassment or harassment; and 3) The University should have implemented interim measures within days of the written grievance of 21 April 2016. All other elements of the appeal are not upheld.”[26]Following the outcome of Ms A’s appeal Professor Conlan wrote to the Claimant on 4 July 2018 regarding the decision of the Grievance Committee in relation to Ms A’s appeal and set out his expectations that the Claimant would not contact Ms A and that the Claimant would undertake equality and diversity training. The Claimant objected to having to undertake the training but Professor Conlan told him he had to attend the training. The Claimant subsequently undertook the training on 18 December 2018.[27]Those are the background facts. DIRECT SEX DISCRIMINATION – Section 13 Equality Act 2010[28]Section 13 (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[29]Section 23 - Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14 or 19, there must be no material difference between the circumstances relating to each case.[30]Section 136 – Burden of Proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[31]There is guidance from the Court of Appeal in Madarassy v Nomura International plc [2007] IRLR 246. The burden of proof does not shift to the employer simply on the Claimant establishing a difference in status and a Page 7 of 20 difference in treatment. Those bare facts only indicate a possibility of discrimination, they are not without more sufficient material from which a Tribunal could conclude that on the balance of probabilities the Respondent had committed an unlawful act of discrimination. The Claimant must show in support of the allegations of discrimination a difference in status, a difference in treatment and the reason for the differential treatment.[32]If the burden of proof does shift to the Respondent, in Igen v Wong [2005] IRLR 258 the Court of Appeal said that it is then for the Respondent to prove that he did not commit or is not to be treated as having committed the act of discrimination. Since the facts necessary to prove an explanation would normally be in the possession of the Respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof and to prove that the treatment was in no sense whatsoever on the prohibited ground.[33]In Ayodele v Citylink Ltd [2017] the Court of Appeal held that the burden of showing a prima facie case of discrimination under section 136 remains on the Claimant. There is no reason why a Respondent should have to discharge the burden of proof unless and until the Claimant has shown a prima facie case of discrimination that needs to be answered. Accordingly, there is nothing unfair about requiring a Claimant to bear the burden of proof at the first stage.[34]In Law Society and others v Bahl [2003] IRLR 640 EAT it was said that: “Tribunals may find it helpful to consider whether they should postpone the question of less favourable treatment until after they have decided why the particular treatment was afforded to the Claimant. Once it is shown that the protected characteristic had a causative effect on the way the complainant was treated, it is almost inevitable that the effect will have been adverse and therefore the treatment will have been less favourable than that which an appropriate comparator would have received. Similarly, if it is shown that the protected characteristic played no part in the decision-making, then the complainant cannot succeed and there is no need to construct a comparator.[35]In respect of all the allegations of sex discrimination the Claimant relied upon Ms A as an actual comparator and also a hypothetical comparator.[36]The allegations of direct sex discrimination were set down in the agreed List of Issues as follows: “1.1 On 18 May 2016, did the Respondent introduce restrictions on the Claimant’s access to his place of work without sufficient evidence? 1.3 Did the Respondent fail to re-evaluate the justification for the interim measures applied to the Claimant during the internal investigation? Page 8 of 20 1.6 Did the Respondent keep the Claimant away from his place of work for 6 months after the outcome of the investigation report?”[37]The Tribunal found allegation 1.1 factually proved. Ms A’s complaint was a serious complaint and is quoted extensively above. It is a fact that both the Claimant and Ms A worked in close proximity in the laboratory area. The Respondent’s harassment complaints procedure states that if the alleged perpetrator and the complainant are in the same college or department, contact between them will need to be managed.[38]Ms A had requested that the Claimant be moved out of the vicinity of her laboratory/office space. Various options were considered but eventually Professor Conlan decided that the Claimant should work from home until the investigation was complete and that he should not have contact with Ms A until that was done. Accordingly, the Claimant stayed at home (from 18 May 2016 to 12 April 2017) for the duration of the investigation and until Ms A’s complaint against him had been determined by the Grievance Panel.[39]Clearly the circumstances related to the Claimant and Ms A were materially different. She was the complainant and he was the alleged perpetrator. In the circumstances of the complaint by Ms A one of them had to be moved and it was not unreasonable for the Respondent to decide, bearing in the mind the nature of the Claimant’s work, and the fact that he could not be employed elsewhere in the Respondent’s premises, that he should have to work from home.[40]There was no evidence to indicate that this was motivated by the Claimant’s sex. Professor Conlan and Dr Stewart both confirmed that a woman in the same circumstances would have been treated no differently and there was no reason to doubt their testimony. It is clear that there was a difference in gender between the Claimant and Ms A but no evidence to provide a causal link between the treatment of the Claimant and gender. There was no evidence upon which the Tribunal could find or infer less favourable treatment because of gender.[41]The Tribunal found allegation 1.3 not factually proved. It is clear that both Professor Conlan and Dr Stewart were constantly assessing and reevaluating the Claimant’s circumstances in being away from the work place and expressed concern on several occasions about that matter and about the delay in conclusion of the investigations and the outcomes of the respective Panel and Committee. Professor Conlan kept in touch with the Claimant during May and June 2016 and met with him on 24 June 2016. He met with the Claimant again on the 11 October 2016 and again on 21 November 2016. He wrote to the Claimant on 25 November 2016 explaining that the investigation had been complicated and had taken time but assured him that at that point it had been completed and the report was provided but no decision yet made. At that time Professor Conlan was no longer the decision maker but he explained to the Claimant that until a decision was made he should remain working from home because the outcome of Ms A’s complaint against him had not yet been decided. Page 9 of 20[42]Professor Shepperd wrote to the Claimant on 28 November 2016 confirming that she, rather than Professor Conlan, was now the decision maker and invited him to a formal meeting on 8 December 2016.[43]There was no indication that the Claimant had been treated any differently to Ms A. Although the delay and the requirement to work from home was extensive, there was no evidence to suggest that it was in any way motivated by the Claimant’s gender. There was no evidence that a female in the same circumstances would have been treated any differently.[44]The Tribunal found allegation 1.6 factually proved. Miss Small had produced her investigation report on 14 October 2016 but her conclusions had to be considered and decided by the Grievance Panel chaired by Professor Shepperd. There is no doubt that the Respondent’s processes in this respect were cumbersome, lengthy and delayed, not least due to the difficulty in convening the Grievance Panel. However, as stated above, the Claimant was informed by Professor Conlan of progress, or lack of it, in the investigation and in the procedure. Once again there was no indication that the Claimant was being treated any differently to Ms A or that he was being treated differently because of gender. 1.2 Before the Claimant’s investigatory interviews of 23 May and 25 August 2016, did the Respondent fail to provide an adequate description of the allegations against the Claimant?[45]The Tribunal found allegation 1.2 not factually proved.[46]The description of the allegations were provided to the Claimant by Miss Small in the letter dated 16 May 2016 which is quoted above. It clearly reflects those matters which were set out in Ms A’s grievance dated 21 April 2016. In the course of his interview on 23 May 2016, the Claimant was provided with a copy of the note said to have accompanied the chocolates given to Ms A on 25 January 2016. Two later additional allegations regarding the “canteen” and “kitchen” incidents were dismissed. Although the Grievance Committee found that a copy of the original complaint by Ms A and the notes of her interview should have been provided to the Claimant there was no evidence that in the same circumstances a woman would have been treated any differently.[47]The Grievance Committee considered the Claimant had been provided with sufficient detail to understand the allegations against him and to enable him to discuss matters at the various interviews.[48]Miss Small said that she had not sent Ms A’s full complaint letter to the Claimant because it contained complaints against the HR departments but she sent a summary of the allegations against the Claimant. The Tribunal found that the Claimant had been provided with an adequate description of the allegations in advance of the investigatory interviews on the 23 May and 25 August 2016. Page 10 of 20 1.4 Did the Respondent fail to provide the Claimant with proper updates on the investigation?[49]The Tribunal found allegation 1.4 factually proved.[50]The Respondent’s witnesses confirmed and the Tribunal accepted, as did the Grievance Committee, that updates to the Claimant were adequate in MayJune 2016. The Grievance Committee found updates were inadequate thereafter but it is clear that there were updates provided to the Claimant on 5 July 2016 and 18 and 19 August 2016 by Ben Powish and Miss McNish.[51]Both the Claimant and Ms A were informed at the same time that the investigation was complete by Mr Gutteridge on 11 October 2016. In that respect the Claimant and Ms A were treated the same.[52]During this period May to October 2016 there was no evidence that the Claimant was treated any differently in this respect to Ms A or a woman would have been treated. 1.5 On 25 November 2016 did the Respondent inform the Claimant about the content of the investigation report with no explanation of the delay?[53]The Tribunal found allegation 1.5 factually proved.[54]As stated above the Claimant was informed of the content of the investigation report at the same time as Ms A by Professor Shepperd who enclosed a copy of the investigation report by Miss Small dated 14 October 2016.[55]Miss McNish explained that it was necessary to have the additional panel appointed it was Professor Shepperd who appointed and to inform both the Claimant and Ms A at the same time of the outcome of the investigation report. There was no evidence of any difference in treatment of the Claimant and Ms A or that a woman would have been treated any differently in the Claimant’s circumstances. 1.7 did the Respondent hear Ms A’s grievances in breach of its procedures placing the Claimant in a significant disadvantage?[56]The Claimant’s claims under this heading were: a That he should not have had to attend a second investigatory meeting with Miss McNish on 25 August 2016. b That Professor Conlan should have taken the decision whether or not to uphold Ms A’s complaint rather than the matter being referred to a divisional panel. c That the Divisional Panel should have made its determination without holding further meetings with the Claimant and Ms A, and Page 11 of 20 d That the Claimant and Ms A should have attended a meeting together rather than separately.[57]As the Respondent submitted, the Respondent’s harassment policy states: “If a complaint falls across more than one university procedure, the university will deal with the matter as flexibly fairly and proportionately as possible”.[58]The Respondent’s harassment policy does not stipulate that only one investigatory meeting may be held. Indeed, fairness requires that where further meetings are required to investigate particular matters then those involved should the opportunity to attend in person to be able to respond to those matters.[59]It was Ms A who requested that Professor Conlan be removed as the decision maker. Miss McNish advised that the Claimant’s complaints would be referred to a divisional panel led by Professor Shepperd and the in division agreed and followed the suggested approach. As Ms A had indicated that she would present a further grievance which Ms McNish considered would delay proceedings even further, it was reasonable for Miss McNish and the Divisional Panel to agree to this course. Ms A’s grievance against the HR department was also referred to the Divisional Panel.[60]In view of the nature of the grievances presented by both the Claimant and Ms A, it was decided that separate hearings would be conducted but each party was given an opportunity to attend and to provide evidence and respond to the panels questions. Accordingly both the Claimant and Ms A were treated the same. In the event, the Divisional Panel dismissed the complaints made by Ms A against the Claimant after considering the evidence from both parties.[61]The Tribunal did not find any element of unreasonableness or discrimination in taking this course. Indeed, the course was entirely pragmatic to avoid a further grievance and further delay. Eventually, the Divisional Panel found in the Claimant’s favour.[62]There was no evidence of any less favourable treatment by reason of the Claimant’s gender. There was nothing to suggest that a female person would have been treated any differently. 1.8 did the Claimant make complaints on the 24 June, 21 November and 19 December 2016 and on 2 February and 6 March 2017 and if so, did the Respondent not address such complaints?[63]The Tribunal found allegation 1.8 not factually proved.64.24 June 2016. The Claimant said that he showed Professor Conlan his letter of that date on his computer but did not send a copy of it to him. The Claimant’s complaints were discussed during the meeting on 24 June 2016 but the complaint was never put in writing. The Tribunal found that the Page 12 of 20 Respondent did in these circumstances, albeit not in writing, respond to this complaint.65.21 November 2016. Professor Conlan met the Claimant to discuss the concerns raised in this letter and also responded in writing on 25 November 2016. The complaint was about the length of time that the investigation had taken. Professor Conlan explained that he was no longer in a position of being the decision maker and that the decision had been referred to a divisional board but he was not aware of the date for the Divisional Panel to meet and make a final decision. He confirmed that until a decision was made the interim arrangements whereby the Claimant had to work at home and not enter the Respondent’s premises would have to remain in place. Accordingly, the Tribunal found that this complaint was responded to.[66]The complaints of 19 December 2016, 2 February 2017 and 6 March 2017 were addressed to the Tribunal regarding Ms A’s Employment Tribunal proceedings. They were not complaints made to the Respondents and no response was requested from the Respondent. 1.9 was the Respondent able to arrange a hearing of the Claimant’s grievances for more than 300 days without adequate explanation?[67]The Tribunal found that allegation 1.9 was factually proved.[68]The hearing of the Claimant’s grievances was extensively delayed as alleged. There was an explanation for the delay although the Tribunal found that it was not adequate and there could have been more explanation at an earlier stage.[69]The Claimant pursued his grievance formally on 25 July 2017. The Respondent considered that it was appropriate for both the Claimant’s grievance and Ms A’s appeal to be dealt with by the Grievance Committee set out on 18 August 2017 in a letter from Mr Ducksfield. Ms A was absent on maternity leave and this caused further delay. However, the Claimant was given regular updates on the progress of the Grievance Committee in arranging the relevant meetings on 22 and 28 September 2017, 10 October 2017, 23 November 2017 and 21 December 2017. The grievance hearing eventually took place on 12 March 2018.[70]The delay was excessive and unacceptable. There was, however, no evidence that a woman in the same circumstances would have been treated any differently. As stated above the Respondent’s procedures were complex and cumbersome.[71]Additionally, Ms A’s complaints regarding the delay in dealing with her grievances also took almost a year to be considered and finally determined. In that respect the Claimant and Ms A were treated the same. Page 13 of 20 1.10 did the Respondent require the Claimant, but not Ms A to undertake one-to-one training following the outcome of Ms A’s internal grievance appeal when this was not justified but that outcome? 1.11 intensive one-to-one training about harassment was chosen for the Claimant to ensure to avoid misinterpretation of any physical contacts after 23 years of spotless employment at 63 year old of age instead of apologies to the innocent person. The Claimant, who proved his innocence from allegations of harassment and suffered severe injustice during the investigation, was subject to mobbing with request to undertake humiliating and insulting him training about harassment. That training was provided by HR officers who were subordinates to Miss Dawn McNish accused by the Claimant in this claim, while Ms A did not go through such training after her false statements.[72]As set out above, the Grievance Committee had found that the Claimant had attempted to kiss and embrace Ms A in his car on 22 January 2016 and that on 25 January 2016 he had left a note saying “I have been a bit clumsy. Sorry. Hope you are not irritated.” Together with chocolates. The Grievance Committee found that conduct was unwanted but did not amount to sexual harassment. No sanction was posed or recommended.[73]Professor Conlan said in his evidence: “I had to consider, in the light of the Committee’s findings, whether there should be disciplinary action against the Claimant. I decided this was not appropriate taking into account the Committee’s findings regarding the Claimant’s own complaint. However, I had to make clear to the Claimant that he was not to communicate with Ms A or seek to contact her in any way. I also believed it appropriate for the Claimant to undertake equality and diversity training so that he understood appropriate boundaries with work colleagues. This can be arranged with HR and I expect it to cover equality and diversity and harassment training.”[74]Professor Conlan confirmed this in a formal letter dated 4 July 2018 to the Claimant. It summarised the findings of the Grievance Committee which had confirmed that the conduct proved to not amount to sexual harassment, but it did call into question his behaviour towards Ms A which caused her upset.[75]The Tribunal found that the requirement to undertake equality and diversity training, including training on harassment, was justified by the appeal outcome. Harassment is commonly a part of equality and diversity training, and appropriate in this case as the Grievance Committee had found that there was harassment, though not amounting to sexual harassment[76]Ms A was not required to undergo such training as her circumstances were materially different than that of the Claimant. There was no finding of unacceptable conduct on her part, as there was in respect of the Claimant’s conduct. Page 14 of 20[77]The findings of the Grievance Committee were based on the evidence presented to it by both Ms A and the Claimant. The findings were clearly explained in the lengthy and detailed outcome.[78]The Tribunal accepted Miss McNish’s explanation that the training provided to the Claimant, by Miss Morris was appropriate and that Miss Morris was not subordinate to Miss McNish.[79]Importantly there was no evidence to support the suggestion that a woman in similar circumstances would be treated any differently and would not have been required to undergo equality and diversity/harassment training.[80]In summary, the Tribunal found that although the Respondent’s treatment of the Claimant may have been unfair because of the excessive delay dealing with Ms A’s grievance against him and his grievance about the Respondent’s conduct towards him, it was not discriminatory. Unfair conduct, without more, cannot by itself amount to discriminatory treatment. There was no link between the difference in treatment between the Claimant and Ms A and the difference in gender. The Respondent has shown, through the evidence of its witnesses, that there was a plausible non-discriminatory reason and explanation for the treatment of the Claimant at each step.[81]There was no evidence of less favourable treatment because of the protected characteristic of sex.[82]The claims of direct sex discrimination therefore fail. VICTIMISATION – Section 27 Equality Act 2010 Victimisation – section 27 Equality Act 2010[83]Section 27 – Victimisation(1) A person (A) victimises another person (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 about 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.[84]The protected acts relied upon by the Claimant were as follows: Page 15 of 20 A letter dated 24 June 2016 (page 584).[85]The Tribunal found that although this letter included the words “victimised by heavy hammer of interim measures without any necessity” this did not amount to a protected act within the meaning of S.27 of the Act. The word “victimised” was used in its colloquial sense rather than in terms of an allegation of contravention of the Equality Act 2010. It was not a protected act. A letter given to Sarah Oliver of the Respondent on 2 June 2017 (page 982).[86]The Respondent accepted, and the Tribunal found, that this letter contained an allegation of a breach of the Equality Act 2010. It included the following “Either his discriminated status served as a justification of investigators “vigilant” against harassment of innocent victims (and university report to ET confirms this point) or he suffered a sex discrimination connected to manhood in cases of such outrageous feminine complaints or some other reason for discrimination.”[87]The Tribunal found that this was a protected act within the meaning of section 27 of the Equality Act 2010. The Claimant’s grievance dated 25 July 2017.[88]The Tribunal found that this did not amount to a protected act as it did not include a complaint about a breach of the Equality Act 2010. The Claimant’s emails of 19 August 2017 (page 1042), 29 September 2017 (page 1089) and 13 October 2017 (page 1100).[89]These complaints are very similar and refer to “discrimination against me”. The Tribunal found that these also amounted to a protected acts within section 27 of the Equality Act 2010. Detriments[90]The detriments relied upon by the Claimant as acts of victimisation are the same as those set out as allegations of direct sex discrimination at paragraphs 1.1 to 1.11 dealt with above.[91]The first protected act, found by the Tribunal to be a protected act under section 27, was on 2 June 2017. It follows that none of the earlier events described at paragraphs 1.1 to 1.6 could have been done because of any protected act.[92]So far as allegations 1.7 to 1.11 were concerned there was no evidence whatsoever that these events, as far as found proved, were because the Claimant had made the protected acts referred to above. There was no Page 16 of 20 evidence whatsoever of any causal link between the protected acts and the events described by the Claimant.[93]As stated above the Respondent has shown, through the evidence of its witnesses, that there was a plausible non-discriminatory reason and explanation for the treatment of the Claimant at each step.[94]The complaint of victimisation therefore fails. DISABILITY- section 6 Equality Act 2010[95]Equality Act 2010 Section 6 (1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) The impairment has a substantial and long term adverse effect on P’s ability to carry out normal day-to-day activities. Section 212: (1) – “substantial” means more than minor or trivial. Schedule 1 paragraph 2(1): (1) – The effect of an impairment is long-term if- (a) It has lasted for at least 12 months, (b) It is likely to last for at least 12 months, or (c) It is likely to last for the rest of the life of the person affected.[96]As well as the statutory definition of disability, the Tribunal also took account of the guidance on matters to be taken into account in determining questions relating to the definition of disability issued by the Secretary of State in 2011, in particular the following: B1 - Meaning of substantial adverse effect - The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect. D3 – Meaning of normal day-to-day activities – In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related Page 17 of 20 activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents and keeping to a timetable or a shift pattern.[97]The disability relied upon by the Claimant is Transient Ischaemic Attack (TIA).[98]The complaint of Failure to Make Reasonable Adjustments under section 20 Equality Act 2010 was set out at paragraph 8 of the List of Issues. This claim was limited to the period of suspension from 18 May 2016 to 12 April 2017. In order that this claim could succeed, the Claimant would have to show, and the Tribunal would have to find, that the Claimant was a disabled person during this period.[99]The Claimant provided a disability impact statement on 29 April 2019 (pages 1801-1802).[100]The Claimant also described his TIA condition and Ischaemic Heart Disease (IHD) at paragraphs 120-124 of his witness statement.[101]The Claimant confirmed in his witness statement that he suffered a TIA on 14 February 2012 but he has not suffered any subsequent TIA.[102]In the disability impact statement at pages 1081-1082 there is no reference to day-to-day activities. The Claimant’s medical records are set out in the bundle at pages 1801-1828.[103]The Claimant describes on-going symptoms from his original TIA as facial numbness in the left cheek, dizziness, visual disturbances and blindness. However, there is no reference to these on-going symptoms in the medical records he has provided.[104]In the medical report dated 15 February 2012 (one day after the TIA on 14 February 2012) it is recorded as follows: “While he was still having the symptoms he was brave enough to drive home. Half way through he had to stop driving because he could not see the lines of the road clearly. About an hour later his visual symptoms started to resolve. He managed to get home and parked his car and went to bed at 3.45am. He was still ataxic when he went to bed. When he woke up in the morning at about 8 o’clock his symptoms had almost resolved. He attended the A&E department on the same day. He had had a CT scan of the brain which did not show an acute infarct or bleed… On examination he is well there is no evidence of dysarthria or dysphasia. His blood pressure was 150/90 mmhg and the heart rate was 60 beats per minute and regular. He did not have any focal neurology. The heart sounds were normal and there is a soft ejection systolic murmur. The rest of the examination was unremarkable.”[105]In a medical report dated 5 April 2012 it was reported: Page 18 of 20 “Thank you for attending your TIA assessment for secondary prevention advice. I note that you have been symptom free since your first event.”[106]In a medical report 3 December 2018 it was reported that he had: “Ocular migraine in both eyes, no alarming sounds. Had TIA in the past. Might be basilar arteries constricted. Plan – if comes back refer to neurologist.”[107]After 2012 there is no evidence of any substantial adverse effect resulting from the TIA in February 2012 or his ability to perform normal day-to-day activities.[108]In January 2017 the Claimant was diagnosed with ischaemic heart disease but the medical records do not state that this heart condition was caused by the previous TIA. The Claimant had operations on 19 January and 1 March 2017 when two stents were inserted.[109]In an occupational health report dated 20 May 2016 it was reported: “There is no formal report as such but with Oleg Iourin’s consent I am writing to confirm that I saw him yesterday and we have spoken in depth about his health and well-being. I have given him advice about sources of support and he can contact the occupational health service again directly if he requires our further support.”[110]In a further occupational health report dated 17 May 2017 it was reported: “What led him to be absent from work in May 2016 was an investigation relating to him which took some time to conclude but reportedly led to his being cleared of any wrong-doing. He was, however, profoundly uncomfortable with the whole situation and as these matters take time this was a key issue for him. Then during his absence from work he developed an acute and potentially very serious form of ill-health which happily was recognised and medically managed promptly with benefit. This condition requires on-going treatment and he is receiving a supportive rehabilitation program which is undoubtedly going to prove helpful. Happily his health seems largely recovered from this although he considers that this is not quite as it was. I understand that he has been in the department for 17-18 years, undertaking post-doctoral research working in both a lab and an office. In general he feels well supported by the leading people in the department and by colleagues.”[111]So far as adjustments were concerned it was stated: “He therefore would currently appear to have no reason for any longer term or permanent work-related adjustments.” Page 19 of 20[112]There was an absence of any medical evidence connecting the TIA in February 2012 with the heart operations in January and March 2017. In May 2017 the Claimant’s health is recorded as having largely recovered.[113]There was no evidence that the Claimant’s condition of TIA had any substantial adverse effect or that any effect was long-term. There was no evidence that the effect of the TIA had lasted for at least 12 months or was at least likely to last 12 months or was likely to last for the rest of the Claimant’s life.[114]The Tribunal found that the physical impairment of TIA did not amount to a disability within the meaning of section 6 and Schedule 1 of the Equality Act 2010 during the period of suspension from 18 May 2016 to 12 April 2017.[115]It follows that the complaint of failure to make reasonable adjustments during this period set out in paragraph 8.1 of the List of Issues must fail. TIME LIMITS – section 123 Equality Act 2010[116]In view of the substantive findings above, the Tribunal did not consider in detail whether any particular event occurred outside the statutory time limits. However, as the events were all well documented, it is likely that if there was any failure to comply with time limits the Tribunal would have found it to be just and equitable to extend the time limit. I confirm that this is the Unanimous Reserved Judgment in the case of Dr O Iourin v The Chancellor, Masters and Scholars of the University of Oxford case no. 3305245/2018 and that I have dated and signed by electronic signature.
Findings of fact
[117]Furthermore, some of those points at [C/WS/81a-l] were specifically alleged to have been discriminatory acts before the Vowles Tribunal: for example, the point at [C/WS/81a] encompasses the allegations at paragraphs 1.1, 1.3 and 1.6 of the Vowles List of Issues. Those claims were rejected. As such, the claimant cannot rely on them to show a discriminatory context, as they were not found to be discriminatory.[118]However, we consider that there are some facts that we need to address in considering whether the claimant has overcome the initial burden of proof. In other words, do the following matters provide something more than just a difference in treatment and a difference in status between the claimant and a hypothetical comparator? Those facts are as follows: 118.1. Ms Morris told us that the one-to-one training has, so far, only been delivered by Ms Morris to male employees of the respondent; 118.2. The title of the one-to-one training the claimant was required to undertake was “Anti-Harassment and Bullying in the Workplace”, despite the allegations of harassment and sexual harassment against the claimant being rejected; 118.3. It could be seen (and was seen by the claimant) as unnecessarily onerous to have required the claimant to undertake a two-hour one-toone session, as well as the one-hour online session, which contained a section on harassment in any event.[119]Out of those three points, we consider that the first point, coupled with the third point, is sufficient to be something more so as to shift the burden of proof. The respondent’s case is that the one-to-one training covered a broadchurch of behaviour, which is supported by the slides. We specifically note the examples given at [5/1796E]: “Offensive comments or body language Verbal or physical threats Humiliating, intimidating, and/or demeaning criticism Isolation from normal workplace, conversations, or social events; Unwanted physical contact, ranging from invasion of space to a serious assault”.[120]Given the breadth of scenarios this training covers, we consider the fact this one-to-one training has only be delivered by Ms Morris to men within MSD could lead us to decide, in the absence of any other explanation, that the respondent discriminated against the claimant by imposing the requirement to undertake that one-to-one session. This is particularly so when harassment is covered, at least to an extent, within the online training.[121]In terms of the labelling of the training as “Anti-Harassment and Bullying in the Workplace” we consider that this may be a clumsy title. This is particularly so in the context of the claimant having been explicitly acquitted of acts of harassment (and sexual harassment). However, it does not demonstrate to us something more from which we could draw an inference of discrimination, given that the nature of the training is, as we have said, much broader.[122]As such, we consider that the burden of proof has shifted to the respondent. We therefore turn to the respondent for a non-discriminatory explanation.[123]We have accepted that the reason the claimant was required to do E&D training by Professor Conlon, was non-discriminatory – see paragraphs 34-38. As such, we are satisfied that the respondent has established that the reason for E&D training was in no way tainted by discrimination.[124]Regarding the specific nature of the training being one-to-one, as per Allegation 1, we have found that the reason for it being on a one-to-one basis was supportive and to retain the claimant’s privacy – see paragraphs 42-43 above. As such, we are satisfied that the respondent has established that the reason for the treatment was in no way tainted by discrimination.[125]Therefore, the treatment set out at Allegation 1 was not because of sex. As such, the claim of direct sex discrimination in relation to Allegation 1 fails.[126]We turn then to the part of Allegation 4 we have upheld, namely that it was Ms Cole as Ms McNish’s subordinate who organised the training. We have found at paragraph 88 above the reason why Ms Cole was the individual organizing the claimant’s training: she was named in Professor Conlon’s letter and was an HR Business Partner within the Medical Sciences Division. Hence she was an appropriate person to arrange the training. We accept this is a nondiscriminatory reason for Ms Cole’s involvement.[127]As such, the treatment set out at Allegation 4 was not because of sex. Therefore, the claim of direct sex discrimination relating to Allegation 4 fails.[128]We need not consider Allegations 2 and 3 as they have failed on their facts and so those claims of direct sex discrimination fail. Paragraph 1.4 List of Issues If so, did that treatment amount to a detriment?[129]For completeness, we will consider whether Allegations 1 and 4 amount to detriments.[130]In terms of Allegation 1, it was the respondent’s submission that requiring the claimant to attend one-to-one training that was being rolled out to groups could not be a detriment. The claimant would, at some time in the future, be required to undertake the same level of training.[131]We do not agree with the respondent on this point. We consider all the circumstances relevant to this issue, and note: 131.1. The claimant was the first to undertake Ms Morris’ training on a one-toone basis; 131.2. The requirement for him to do the training was directly due to the finding of unwanted conduct against him. It was not a requirement that arose as a consequence of the training being rolled out to a group of whom the claimant was a member; 131.3. The requirement to undertake training came over two years after the original complaint by Ms A was raised. The claimant had been back at work since April 2017 without any further issues being raised against him (as far as we are aware). There was a huge delay (which the respondent accepts) in concluding Ms A’s complaint (April 2016 to June 2018).[132]In those circumstances, we find that a reasonable worker would consider him/herself to be at a detriment in having to undertake the one-to-one training. We therefore find Allegation 1 is a detriment (albeit not discriminatory).[133]In terms of Allegation 4, we have upheld this allegation on the facts to a limited extent, in that organisation of the training was done by a subordinate of Ms McNish, Ms Cole. However, we did not accept the underlying complaint that MS McNish’s involvement was for malicious purposes. There is no good evidence as to Ms McNish having a malign intent in relation to the implementation of training for the claimant. As such, we conclude that there was no detriment in a subordinate of Ms McNish organising the training for the claimant. Allegation 4, to the extent we upheld it on the facts, is not a detriment. Conclusions – victimisation Paragraph 2.2 Did the matters set out in paragraphs1.1.1 and1.1.2 amount to detriments?[134]We repeat our findings set out above as to whether the Allegations we have upheld (to some extent) are detriments. In summary: 134.1. Allegation 1 – this amounts to a detriment; 134.2. Allegation 2 – this was not upheld on the facts; 134.3. Allegation 3 – this was not upheld on the facts; 134.4. Allegation 4 – this does not amount to a detriment. Paragraph 2.3 Did such events occur because the claimant had made protected acts?[135]In his cross-examination of the respondent’s witnesses, the claimant did not ask any questions on this issue. As such, the Tribunal asked questions on this topic instead.[136]The Tribunal asked all three of the respondent’s witnesses whether they were aware of the four pieces of correspondence amounting to protected acts as set out at paragraph 2.1 of the List of Issues. All three witnesses answered that they were unaware of, or could not remember, these communications from the claimant at the time they were involved in Allegations 1 to 4. There is no good evidence to undermine this witness evidence, and, as we have mentioned, this was not challenged in cross-examination. We therefore accept the respondent’s witnesses’ evidence on this point.[137]There is also no good evidence to demonstrate that the protected acts significantly influenced any of the respondent’s witnesses.[138]We are therefore not satisfied that the protected acts significantly influenced the alleged perpetrators. In any event, we have made findings as to the reasons for the treatment in Allegations 1 and 4, which are reasons whole unrelated to the protected acts.[139]As such the victimisation claims fail. Approved by