Mr E A Ofoniama v London Underground Ltd and others: 3305299/2022 and others
EMPLOYMENT TRIBUNALS
Case No 3305299/2022
Between
Mr E A OfoniamaClaimant(1) London Underground Limited (2) Mr N Dent (3) Ms T Simms (4) Mr R Orphanides (5) Ms K Whitehouse (6) Mr S Abdullah (7) Ms A Owodunni (8) Ms A Ademoye (9) Ms A Jones (10) Ms J Downey RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge Tuck KCMr P O’Callaghan (instructed by Counsel) for claimantMs Thomas (instructed by Counsel) for respondentDate 6 January 2026
JUDGMENT
Ms A Jones is dismissed as a party from these proceedings. The claim against her is struck out.
REASONS
[1]The background to the three claims presented by the Claimant are set out in the case management orders of EJ George following a PH on 16 January 2024, and the case management order I prepared following today’s Hearing.[2]In his third of three claims (case no: 3311702/23) the Claimant presented complaints against his employer, London Underground Limited and also against two named Respondents, firstly Ms A Jones who is a senior manager in the Employee Relations team of the First Respondent, and secondly against Ms J Downy who is an Nurse Practitioner within TfL’s Occupational Health Team.[3]In clarifying the issues the claimant stated that his claim against Ms Jones was for direct sex discrimination, direct race discrimination and victimisation. All related to an allegation that she had lied to the police about the Claimant. He told me that he had raised a complaint with the police about being discriminated against at work in mid 2021, and that he received a letter from the police on 29 June 2022 setting out that they had been told by London Underground Limited that the Claimant had been found guilty of harassing and bullying Ms Ollibacce. He telephoned the police and they said that the information had been provided by Ms Jones. The claimant alleges that this was a deliberate lie by Ms Jones because of his sex and race and to victimise him.[4]The claimant was fully aware of the facts of this allegation by the end of June 2022. He applied to amend his first ET claim in January 2023 – but did not seek to include this allegation, and nor did he include this allegation in his second claim which was presented on 16 August 2023.[5]The claimant commenced ACAS EC against Ms Jones on 19 September 2023 and received an ACAS EC Certificate on 21 September 2023. He presented his third ET1 on the same date, 21 September 2023. Any act or omission occurring after 20 June 2023 are, on their face, in time.[6]The claimant does not complain about any other acts / omissions of Ms Jones before or after June 2022. The complaint against her is therefore 12 months out of time. Application and Response:[7]Ms Thomas submitted that the claim against Ms Jones should be struck out as having no reasonable prospects of success because the claim is on its face out of time and she submitted that there were no reasonable prospects of success in persuading the tribunal either that it was part of a course of conduct extending over a period, nor that it would be just and equitable to extend the time period. Whilst she submitted that the claims in the second ET1 appeared to be out of time, she did not seek to pursue any deposit or strike out applications in relation to the allegations therein in circumstances where the Claimant said that he had not become aware of the matters until he received disclosure for the first claim in July 2023.[8]Mr O’Callaghan submitted that the claimant had good prospects either of establishing that the conduct of Ms Jones was part of a course of conduct or alternatively that it would be just and equitable to extend time. No obligation to given an explanation or reason for the delay, and that as the complaint is about correspondence there would be little prejudice. Mr O’Callaghan was instructed that the Claimant did not realise the extent of what Ms Jones had said to the police until disclosure had taken place; this was at odds with what the claimant told me directly when clarifying the issues when he said that he had received correspondence from the police on 29 June 2022 and that day or very soon thereafter, he telephoned the police and was told that the information in the letter was from Ms Jones. Mr O’Callaghan further submitted that this was just one issue within wider litigation – he however did accept that it was the only allegation against Ms Jones who was named as an individual respondent. Law:[9]Rule 37 of the ET (Constitution and Rules of Procedure) Regulations 2013 provide that a case may be struck out if it has no reasonable prospects of success. Whilst one must be slow to strike out discrimination claims where facts are in dispute – as submitted by Ms Thomas – the application is not about the substantive claim per se, rather about the fact that the claim is out of time.[10]Ms Thomas referred me to the case of Jones v Secretary of State for Health and Social Care 2024 EAT 2, and in particular the summary of the law relating to extensions of time limits under section 123 EqA in discrimination claims set out by HHJ Taylor at paragraphs 27 - 37. I have read those paragraphs and the cases referred to therein carefully. Conclusions:[11]The claim against Ms Jones has been presented 12 months outside the primary limitation period. It is not alleged to be part of a course of conduct as it is the only allegation involving her. It is a discrete matter about what information she gave to the police.[12]No explanation has been offered as to why the claim was not presented within three months of the claimant finding out about it in June 2022. Nor has any explanation been given as to why he did not seek to include the allegation when applications to amend were made by counsel on his behalf in January 2023, nor as to why it was not part of the second claim in July 2022.[13]The delay is lengthy and there are no reasons given for it. The claimant clearly well knew about how to make a claim – having done so in May 2022.[14]The prejudice to Ms Jones of having to defend a stale allegation is considerable. On the other hand, I do not consider that the claimant suffers any great prejudice by this single issue being removed from his claims against many other parties.[15]I have therefore concluded that the claimant has no reasonable prospect of showing that it would be just and equitable to extend the limitation period, and therefore strikeout the claim against Ms Jones.[1]The Claimant was employed by the First Respondent as a Train Operator from 28 September 1992. The Claimant resigned his employment on 15 September 2023, and his employment terminated on 19 October 2023. Early conciliation started on 11 March 2022 and ended on 22 April 2022. The Claimant’s first claim form was presented on 1 May 2022 and was accepted against a total of five Respondents (Nick Dent, Mike Smith, Tracy Simms, Russell Orphanides and the London Underground Limited). The Claimant contacted ACAS again on 10 August 2023. The Claimant presented his second claim form (3310295/2023) on 16 August 2023. In that claim form, the Claimant named 5 Respondents (LUL, Kate Whitehouse, Sal Abdullah, Adesimisola Owodunni, Oluyemi Ademoye). The Claimant contacted ACAS a final time on 21 September 2023 (in relation to these proceedings) and presented his third claim (3311072/2023) on 21 September 2023. That claim form named 3 Respondents (LUL, Angie Jones and Jane Downey). Following withdrawal by the Claimant, the claim against Mike Smith was dismissed on 2 July 2023 by EJ George [63]. Following an application to strike out the claim against Angie Jones by the Respondent, EJ Tuck QC struck out the claim against Angie Jones on 14 May 2024 [135-138] Claims & Issues[2]The Claimant’s complaints in respect of all 3 claim forms are direct sex discrimination (claim 1 against R1, R2 & R4 & claim 3 against R9), direct race discrimination (claim 2 against R1, R5, R6 & claim 3 against R9), harassment related to sex (claim 1 against R1, R2, R3), harassment related race (claim 1 against R1, R2, R3 & R4), victimisation (claim 1 against R1, R2, R3, claim 2 against R1, R5, R6, R8 & R9 and claim 3 against R1 & R9).[3]The list of issues was agreed at the start of the hearing, and the revised list is contained in the appendix of this judgment. Hearing & Evidence[4]We received a redacted bundle initially of 1923 pages and then, after the Third Respondent’s rule 50 application was dismissed, we received an unredacted bundle of 1923 pages to which we added 1924-1927. Ms Thomas also provided a cast list (which was updated later and provided with the Respondents’ submissions), a chronology (which was not agreed). We were also provided with video footage from the Claimant, which we watched.[5]We received witness statements from the Claimant and his witnesses. We heard evidence from the Claimant and his witnesses first. Mr Baldev Singh Sidhu, Mr Kevin D’Souza, and Mr Uchenna Duru (Trains Manager).[6]We were in receipt of witness statements from Tim Howard, Patrick Wegner (for whom the Respondents had no cross examination), Nathan Pond (for whom the Respondents had no cross examination), Ms Lola Fanponle (for whom the Respondents had no cross examination), Charles Ayabina (for whom the Respondents had no cross examination), Tony Nash and Cassius Powell. We were supposed to hear from Mr Tony Nash; however, although he was present on Tuesday 2 December 2025 he did not give evidence, and we were told he was not returning to give evidence.[7]We heard from all names Respondents and their witnesses: Nick Dent (Second Respondent, Director of Customer Operations), Tracy Simms (Third Respondent, Train Operations Manager), Russell Orphanides (Fourth Respondent, currently seconded Trains Operation Manager at Arnos Grove Depot but at the relevant time Trains Manager), Ms Alero Abbey (Network Area Manager), Ms Adesimisola Owodunni (Seventh Respondent, Train Manager), Ms Jane Downey (Ninth Respondent, Occupational Health Advisor), Mr Joe Brown (Strategic Delivery & Change Manager), Ms Kate Whitehouse (Fifth Respondent, currently Chief of Staff to Chief People Officer but at the relevant time Senior HRBP Continuous Improvement), Ms Annamarie Olivacci (Instructor Operator), Ms Oluyemi Ademoye (Eighth Respondent, Train Operator), Allan Gardner (Senior Stations Delivery Manager), Peter Tollington (Head of Modernisation, line operations), Alistair Montgomery (Strategic Delivery and Change Manager), Mr Sal Abdullah (Sixth Respondent, Train Operator), Mr Lee Stuart (Senior Trains Delivery Manager) and Ms Amy Owen (Head of Customer Operations).[8]On day 1 (Tuesday 25 November 2025), the Respondent made an application under rule 50 to redact the Third Respondent’s name from the proceedings. Ms Thomas provided a skeleton argument that was exchanged with the Claimant on the morning of the hearing. The Employment Tribunal refused that application and provided oral reasons at the time, which will not be repeated here. Following the application, the Claimant made a request to the Respondents for disclosure of an apology letter to Ms Ademoye. The Respondents agreed to provide that document, and they did so on Friday 28 September 2025 with the accompanying email. The Claimant did not object to the additional email, and all the documents were added to the bundle as pages 1924-1927.[9]Day 2 (Wednesday 26 November 2023) was a reading day. Day 3 (Thursday 27 November 2023), the Employment Tribunal did not sit due to panel unavailability.[10]Day 4 (Friday 28 November 2025). The Employment Tribunal went through the list of issues. The parties agreed the new list that changed the labels for the Respondents and consolidated all the issues in different claims. The parties were provided with a revised list of issues on the morning Monday 1 December 2025. We also received a video on Friday 28 November 2025 from the Claimant. The Claimant made an application for a witness order in relation Mr D’Souza. We granted that application and gave oral reasons, which we will not repeat here.[11]The Claimant made a further disclosure request from the Respondents for a CDI interview that Ms Simms did for Andy Crossley in 2011. Ms Thomas explained that Ms Simms did not chair the meeting with Mr Crossley, so there was no such document. The Claimant started his evidence on Friday 28 November 2025.[12]On day 5 (Monday 1 December 2025), the Claimant made an application for another witness order for Ruth Onwardi. The Employment Tribunal refused the order and gave oral reasons at the time. The Claimant continued giving evidence under oath. However, at approximately 11:42 after the morning break at 11:22-11:40, Ms Thomas said that the Respondents had a concern that the Claimant was discussing his evidence with Mr Wenger. Ms Thomas stated that her instructions solicitor “13 years, where did it come from”. The Claimant said that it did happen and it was in the corridor outside the Employment Tribunal room. Mr Wenger confirmed that the Claimant did say that, but he didn’t reply to it. Ms Thomas also raised that the Claimant had notes with him on the witness stand. The Claimant confirmed that he did, and they were notes from long ago. The Employment Tribunal gave the Claimant a warning that he was not to discuss his evidence at all, whether by making a statement within the earshot of other witnesses and or the Respondents and that he was not to have notes that he had written prior to giving evidence with him on the witness stand.[13]At the end of the day, the Employment Tribunal received an email from Mr D’Souza and an email from Mr Duru. Mr D'Souza made a request for the witness order that had been issued to be amended, as he had child care responsibilities and could not attend until 11:30 and had to leave at 13:30. Mr Duru’s application was for his evidence to be heard by CVP because, due to a bereavement, he was unable to attend in person. The Employment Tribunal granted Mr D’Souza’s request and refused Mr Duru’s request. The Claimant was asked to ask Mr Duru to attend on a different day, and this is what happened.[14]On day 6 Tuesday 2 December 2025, during the Claimant’s cross examination, the Claimant said that the document in the bundle at page 1313, which was a letter to the Claimant inviting him to attend a disciplinary hearing, was not the same letter that he had received. The Claimant said that he had disclosed the copy that he had received from the Respondent to the Respondent’s solicitors during disclosure. The Claimant was asked to provide a copy that he had received via email during the lunchtime break. The Respondent said that they would also check their documents to see if they could find the disclosure. After the lunchtime recess, the Claimant said that he couldn’t find it. the Respondent said that they could not find the Claimant’s disclosure, but they found the original email that the Claimant was sent from Mr Joe Brown; that copy was sent to the Employment Tribunal. The Employment Tribunal was able to confirm to the Claimant that the version sent to him was exactly the same version as contained in the bundle.[15]At around 14:45 on Wednesday 3 December 2025, day 6, the Claimant applied for an adjournment because he was not feeling well and said that he was diabetic. We had a break so that the Claimant could feel better. The Claimant did feel better and was content to proceed on.
Findings of Fact
[16]We make these findings of fact on a balance of probabilities. Only findings of fact relevant to the issues and those necessary for the Tribunal to determine have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if it was referenced in the witness statements/evidence and considered relevant.[17]References to numbers in square brackets are a reference to the agreed bundle page numbers. References in a square bracket with the prefix that contains “WS” then the number is a reference to the witness statement of the person to whom the initials that are prefixed WS apply. Headings given in the findings of facts are not findings but are merely illustrative.[18]We found the Claimant not to be a credible witness. This was because the Claimant made allegations against Respondents based upon his ‘belief’, and when asked in evidence what the basis was for that belief was the Claimant admitted that he had no evidential basis for his belief. This was particularly acute when documentation was put to him that indicated his belief was erroneous, yet the Claimant would maintain his erroneous position. He alleged breaches of policy without naming the policy or the breach of the provision of the policy, which we found particularly surprising when the Claimant had been a workplace colleague for years. He failed to give evidence on multiple allegations against multiple Respondents and omitted to challenge the evidence of witnesses in respect of key parts of his case. We considered that the Claimant was a litigant in person, but even with this consideration, was found the Claimant’s evidence to be unreliable, inaccurate full of generalisations without any specific examples.[19]We found the Claimant’s witnesses also to be unreliable. At least two of the witnesses (Mr Duru and Mr D’Souza) appeared to have axes to grind against the First Respondent because of their own grievances against the First Respondent. This was exemplified by the fact that Mr D’Souza gave evidence he didn’t even know what the claim was about when he wrote his statement, and he was just told to write about Tracy Simms in particular. After taking the oath, Mr Siddhu told the Employment Tribunal that he had written the statement himself, yet pointed out that his name was spelt incorrectly in his statement. He also admitted that he did not know what the proceedings were about until he attended the Employment Tribunal. Sufficient to say, we found his evidence not to be his own. Mr Duru gave evidence that he did not record the outcome hearing of the Claimant’s grievance against Ms Simms, but he was made aware of it. However, the Claimant gave evidence that he did not record the outcome but that Mr Duru did. There were only 3 people at the meeting: Mr Gardener, who heard the grievance, the Claimant and Mr Duru, as his workplace colleague. It was the Claimant who provided the recording to the Respondent as part of these proceedings. We accept Mr Gardner’s evidence that he didn’t record it and consider that both Mr Duru and the Claimant were not telling the truth by blaming each other for the recording. We gave no weight to the witness statements that the Claimant provided to support him, which, for the most part, were completely irrelevant to the issues that we had to decide.[20]We found the Respondents and their witnesses to be witnesses of truth whose evidence was consistent with the contemporaneous documentation, with the exception of Mr Abdullah. Mr Abdullah we found to be a predominantly truthful witness, but whose accuracy as regards timings was problematic. We were particularly impressed with Ms Olivacce and Ms Ademoye, who were clear, precise and compelling as witnesses. We found Ms Simms to be an honest and fair witness to the Claimant considering the allegations that were being made against her.[21]The Claimant worked as a Train Operator from 28 September 1992 to 19 October 2023 [1829]. The Claimant started working at the Arnos Grove Depot on 16 April 1997 [1829]. Ms Simms was an acting Train Operator Manager on the Piccadilly line from October 2017 and then became the Train Operating Manager (‘TOM’) for the Arnos Grove depot (‘Depot’) from January 2018. Ms Simms was not a direct line manager of the Claimant, but managed the Train managers at the Depot who managed the Claimant. Therefore, Ms Simms did not have day to day contact with the Claimant at all.[22]The Arnos Depot was mentioned by a number of witnesses, Ms Ademoye, Mr Abdullah, Mr D’Souza and Mr Sidhu, as a place where gossip was rife. Mr D’Souza went so far as to describe in his evidence that if anything happened at the depot, it would come out to be discussed by all.[23]Ms Simms, by her own evidence, is someone who sticks to policy. Ms Simms’ evidence was that when she joined the Depot, it was a bit like the “Wild West”; management was not in charge, and Ms Simms said that she was there to change that, to ensure that frameworks and policies were followed and to create a nice depot. Ms Simms accepted that she had no doubt that she had upset the apple cart, but maintained that her actions had always been guided by company policies and the need to maintain a fair and safe working environment. We accept Ms Simms’ evidence and find that she had summed up the culture at the Depot as we see it perfectly.[24]The Claimant gave evidence that he did not know of any time limits in relation to Employment Tribunal claims until his complaint in respect of Angie Jones was struck out by EJ Tuck on 12 April 2024 [135- 138]. The Claimant accepted in evidence that he had received legal advice in relation to his complaint in 2011, which was the basis of his COT3 [235-237]. However, the Claimant said that his union, the RMT, had conduct of the matter and therefore he wasn’t aware of any time limits. He said that he did not do any research into the law regarding time limits at all and that, although he was a regular workplace colleague, he did not have any legal knowledge and was not legally minded. The Claimant admitted that he had instructed lawyers in November 2021. We found the Claimant’s evidence to be less than credible; the Claimant had been advising staff as regards discrimination complaints and had been advised on his own race discrimination complaint in 2011. We find that the Claimant was fully aware of the time limits for bringing an Employment Tribunal complaint in relation to discrimination and harassment since 2011. Culture of Depot[25]The Claimant’s evidence was that there was a culture of racism at the Depot when he came to work there in 1997, and in his witness statement, he referred to being asked “what are you eating monkey meat” by way of example. However, the Claimant accepted in evidence that if this happened, it must have happened before 2008. The Claimant also referenced being told that he looked like the man on blackcurrant jam in his witness statement; he said that at the time, he didn’t understand what this meant. The Claimant accepted in evidence that he didn’t complain about these incidents at the time, but said that he couldn’t complain, although the Claimant didn’t explain why he couldn’t complain. The Claimant also referred in his witness statement to a message sent in 2008 that stated that all ethnic minorities were "chimpanzees." The driver who read the message aloud was Gary Wyld, a union representative, and the sender was identified as Andy Crossley. The Claimant did complain about this comment; however, we note that the complaint against Mr Crossley and Mr Wyld was not a complaint made by the Claimant on his own behalf, as the letter indicates that he was not present when the joke was read out but was told about it by others. [206][26]Furthermore, the Claimant accepted in evidence that he was not saying that any of the Respondents to the claims were involved in any of the alleged acts of racism that he had referred to in his witness statement prior to 2008. We find that whilst in the 1990s and early 2000s there may have been incidents that the Claimant experienced which he regarded as incidents of racism, we do not accept that any such incident took place by 2017 when Ms Simms came to the Depot. Mr D’Souza, Mr Abdullah, and Ms Ademoye stated in oral evidence that they did not believe that Ms Simms was racist. We accept their evidence on this point. Mr Abdullah gave evidence that he did not mention race at all in relation to his complaint about a sidings error. Ms Ademoye also stated that she did not mention race in respect of her complaint about the circumstances surrounding the use of her husband’s pass.[27]In fact, the evidence suggested otherwise. In October 2020, the Claimant wanted to speak to Ms Simms about an employee he was a workplace colleague for. The Claimant followed Ms Simms into her office and had to be asked to leave by both Ms Simms and another manager present at the time. Ms Simms wrote a memo setting out what occurred and referred to the Claimant ‘letting off steam’ [303] even though she would have been entitled to take action against the Claimant, but she took no action in respect of this incident. The Claimant referred to a number of incidents in his witness statement that he said indicated that Ms Simms was racist related to his workplace colleague work. However, when the Claimant was asked what it was that Ms Simms did that was racist, the Claimant was not able to point to any specific incident in relation to him where he provided any facts that pointed to Ms Simms' behaviour towards him being based upon the Claimant’s race; the Claimant did not have an answer. Furthermore, Mr Abdullah, Ms Ademoye and Mr D’Souza, who were assisted by the Claimant as a workplace colleague, gave evidence that they did not mention race in relation to the complaints they made where Ms Simms was involved. Ms Ademoye confirmed in evidence that she was not aware of any complaints of race discrimination against Ms Simms during the time that she was at the Depot. We find that the incidents mentioned in the Claimant’s witness statement that formed the background related to his role as a workplace colleague to the Claimant’s complaints did not refer to any facts that were related to the Claimant’s race. Audit -May 2020[28]In May 2020, Ms Simms undertook an audit of the Train Operators at the Depot that she was responsible for. The Depot operated a ‘syndicate’ (also referred to by the Claimant as the ‘mafia’), which is a local arrangement between staff, whereby Train Operators put their allocated rostered duties into a pot to be distributed between all the syndicate members. This arrangement was in place during the Claimant’s employment.[29]The point of the syndicate is to provide for flexibility in the Train Operators roster where Train Operators' shifts are scheduled up to 12 months in advance. The Syndicate allowed Train Operators to swap their rostered duties with those in the syndicate. The Train Operators would request their chosen duty through the syndicate leader, who was Xavier (‘Sandy’) Francis (during the time of Claimant’s employment), who would re-allocate duties according to various rules of the syndicate [187-193]. Mr Francis carried out this role as a full-time job. Anyone could belong to the syndicate as long as they were signed up. The First Respondent applied guidelines on how syndicates should be run [187-193]. One of the guidelines was that the syndicate was to be periodically audited [192]. However, no one in management would dictate or make the decisions about who was allocated which duties for those in the syndicate.[30]Whilst it was the case no witness who worked at Arnos Grove before Ms Simms joined the Depot could recall there having been an audit, Ms Simms’s evidence was that the previous TOM did not apply the rules and procedures as he should have. We find that the syndicate compliance and guidance document agreed by the unions in 2015 clearly states that an audit was part of the monitoring process of the syndicate and, in particular, the fair and transparent allocation of duties [192].[31]In May 2020, Ms Simms took on responsibility for undertaking a random audit on the syndicate at Arnos Grove. In Ms Simms’s evidence, she explained that the audit involved identifying a number of Train Operators in the syndicate, by reference to their duty numbers, whose syndicate hours would be looked at to ensure compliance with the Guidance. Ms Simms explained in oral evidence that she would look at 11 rota lines and pick them until all the lines were allocated to randomly picked Train Operators. The Arnos Grove depot is a ‘fixed link’ depot, which means that staff are part of one of the following ‘links’ – Early link, Inside late link, Night link, Mixed link and pool. For each ‘link’, there is a rota with lines. Each week the Train Operator rotates on the rota through the lines within the ‘link’. Ms Simms was assisted in collating Train Operators' rota lines to assess [297] as compared to the actual hours being worked by that employee by assistants. We find that Ms Simms did not know who the Train Operators were when she picked the numbers.[32]Every full-time Train Operator had target hours. Ms Simms’s evidence was that the Claimant had target hours of 432 over a twelve week period. From the table that with all the audited Train Operators' hours, it was clear that Employee F was working below their target hours due to constantly being allocated a specific duty [300]. Employee F was the Claimant. Two of the duties undertaken by the Claimant were different to those that had been allocated, resulting in the Claimant working fewer hours than he should have. The Claimant had worked circa 35 hours less than his contractual hours, which included the First Respondent giving him the benefit of the doubt in relation to some shift swaps that had been arranged by management (as opposed to the Syndicate) [298 – 300].[33]Ms Simms spoke to the Syndicate leader, Sandy and told him that the Claimant needed to pay his hours back over the following 24 weeks. Ms Simms’s evidence was it was necessary for the Claimant to work additional shifts in order to give back to others who had covered his duties. It was clear to Ms Simms that the Claimant was unhappy with the audit and the effect on his working hours. She said that she was made aware of this by a Train Manager and the admin team. They explained that the Claimant was upset that his name had been generated by the audit and that he didn’t accept that his duties were generated randomly and anonymously. Ms Simms said that she was told that the Claimant suggested that Ms Simms had victimised him and that she was vindictive. The Claimant’s evidence was that the audit took place as a result of a meeting that took place on 14 August 2020 with Ms Simms, where the Claimant was representing another member of staff, Ms Onwardi. The Claimant said that the audit was an attempt to undermine him. The documentation demonstrates that the audit started in May 2020 [310], and so we do not accept the Claimant’s evidence as the reason for the audit. We accept Ms Simms’s evidence. We find that it was this incident regarding the audit that led to the Claimant mounting a campaign against Ms Simms without any foundation. The Claimant’s fixation on Ms Simms after this incident, leading to grievances against her and attributing Ms Simms to be behind any action that was in the Claimant’s mind to his detriment, was exemplified by the Claimant’s reaction to the audit. Ms Simms was not being vindictive or victimising the Claimant, but she was doing her job. The Claimant’s grievance against Ms Simms- July 2021[34]On 13 July 2021, the Claimant sent his grievance addressed to Nick Dent, the Director of Customer Operations of the First Respondent [309-311]. In summary, the Claimant’s grievance was that Ms Simms victimised and discriminated against him, and the Claimant mentioned what he called the illegal audit as one of his grievances against Ms Simms. The Claimant complained of incidents dating back to 2018 as examples of Ms Simms’s alleged victimisation and racial discrimination against him. However, in evidence, the Claimant did not provide any details of what it was that he said that Ms Simms actually did to undermine him.[35]On 16 July 2021, Anne-Marie Costigan, an ER Partner, reviewed the Claimant’s 13 July 2021 complaint and determined, in her capacity as an Accredited Manager, that the Claimant’s complaint did not fall under the harassment and bullying procedure [313-314]. Ms Costigan set out her reasons in detail in her email to another HR advisor, that in essence the allegations raised were historical (some dating back to 2018) and the 2018 allegations did not demonstrate either harassment and/or bullying towards the Claimant personally.[36]The Claimant complained in evidence that his grievance was downgraded because it was not classed as a harassment and bullying complaint, and this was a breach of policy. But when the Claimant was asked what part of the policy was breached, the Claimant could not answer or refer the Employment Tribunal to the part of any policy that had been breached in relation to Ms Costigan’s assessment of his complaint. We find that Ms Costigan made the decision in respect of whether the Claimant’s complaint was to be dealt with under the grievance rather than the harassment and bullying policy, not Nick Dent. Mr Dent just sent an email to Mr Duru telling him (as the representative for the Claimant) of Ms Costigan’s decision [327]. We find Ms Costigan’s decision was a well-reasoned and fair decision based upon the information before her at the time.[37]Around the time that the Claimant submitted his grievance dated 13 July 2021, the Claimant had a conversation with Ms Ademoye about his grievance. The Claimant’s evidence was that he often asked Ms Ademoye to review his documents to check spellings, and this was one such time. The Claimant sent a copy of his grievance to her for review. Ms Ademoye was not happy about being mentioned in the grievance and told the Claimant to remove her name and the facts about her in his grievance. The Claimant’s response was that it was too late. Ms Ademoye spoke to Annie Olivacce, who is also a friend/confidant of hers and expressed how she was feeling and that she felt that her name needed to be removed from it. Ms Ademoye then decided to contact Ms Simms directly to let her know that she did not support the Claimant’s grievance, despite being named in it in an email dated 16 July 2021 [316]. That email did not have attached to it the Claimant’s grievance, but Ms Ademoye did ask Ms Simms in the email to share her email with whoever was dealing with the Claimant’s grievance.[38]Ms Simms’s evidence was that she did not have the Claimant’s grievance when she received Ms Ademoye’s email dated 16 July 2021, and so didn’t know what the Claimant’s grievance was. On 6 August 2021, acting on the advice of her trade union representative, she submitted a Business As Usual Data Subject Access Request to Brian O’Dea, Employee Relations Advisor, in an effort to obtain a copy of the grievance. The Claimant did not challenge this evidence. However, this request was refused. Ms Simms’s evidence was that it was not until 7 October 2021, when Ms Simms received an email from Mr Gardner, who was dealing with the grievance, did she receive a copy of the Claimant’s grievance as attached to Mr Gardner’s email [405], and she was surprised to see the contents of the Claimant’s grievance. Mr Dent’s evidence was that he did not share the Claimant’s grievance with Ms Simms. This evidence was unchallenged by the Claimant, and we accept Mr Dent’s evidence on this point. COT3 incident[39]When Ms Olivacce heard from Ms Ademoye that the Claimant had mentioned her in his grievance, Ms Olivacce’s evidence was that it was a breaking point for her. Ms Olivacce gave evidence that the reason for this was that some years ago, she had been told by a good friend of hers at the time, Andy Crossley, that she had signed a “cause for concern letter” written by the Claimant, making allegations that Andy Crossley was racist. The Claimant alleged in the letter that Mr Crossley had sent a racist joke to Gary Wylde, a Train Operator. The Claimant alleged in the cause of concern letter that he had received several complaints about Mr Crossley’s conduct towards ethnic minority members of staff. Ms Olivacce did not give evidence about her ethnic background. We find that there was no way for the Employment Tribunal to determine whether Ms Olivacce was black or not. The Claimant enclosed with the letter a list of signatures (‘the petition’), who he said were from members of staff who were not happy with the way that Mr Crossley and Mr Wylde were being dealt with; suggesting that members of staff were demoralised with the company’s approach [207].[40]The list of signatures included a signature next to Ms Olivacce’s name. Ms Olivacce was not in the country when the document was signed. Ms Olivacce explained that she did sign another petition at some point, but that was a generic petition relating to racism within the Depot. Around 2008- 2010, Ms Olivacce noticed that Mr Crossley was not being friendly towards her, even though they had been in the same intake of Train Operators many years prior and had a good friendship up to that point. Ms Olivacce asked Mr Crossley what she had done to offend him, and that is when he told her that she had signed the petition. Ms Olivacce asked the Claimant for a copy of the petition but referred to it as the “thing”. The Claimant told her that he had forged her signature and agreed to give her a copy, but the copy did not materialise. Over the years, the Claimant told Ms Olivacce repeatedly that he would get her a copy but did not produce a copy. Due to some other incident, Ms Olivacce decided that she no longer wanted to be friends with the Claimant and deleted his number.[41]Ms Olivacce’s evidence was that when she heard about Ms Ademoye’s issue with the Claimant not removing her name from his grievance, it reminded her of her issue with the Claimant regarding him forging her name and not giving her a copy of the petition. She said in oral evidence that she had given the Claimant years, but his behaviour had not changed, nor his conduct towards people he claimed to be his friends; his behaviour was detrimental to his “friends”. Ms Olivacce realised that the Claimant had put Ms Ademoye in a similar position to her, and she thought that she could not deal with this any longer, and that is why she decided to pursue the Claimant regarding the petition and an apology for the forging of her signature.[42]The Claimant gave evidence that Ms Olivacce had never asked him for the cause of concern letter, and he said that it was not a petition. He denied that he had forged Ms Olivacce’s signature.[43]Ms Ademoye gave evidence that she recollected Ms Olivacce telling her that she wanted to obtain the petition from the Claimant before the Claimant submitted his grievance, and we accept her evidence.[44]Ms Olivacce no longer had the Claimant’s phone number, so on 16 July 2021, she asked Ms Ademoye to send the Claimant a text message on her behalf, essentially asking for a copy of the petition and if the Claimant did not comply that she would have no choice but to raise a grievance by 22 July 2021 [317-318]. Ms Ademoye’s evidence was that her reason for sending the WhatsApp at the time was because she thought ‘let’s nip this in the bud’ and deal with it quickly, as both Ms Olivacce and the Claimant were her friends at the time. We accept her evidence. We find that Ms Ademoye’s reason for sending on WhatsApp was to try and resolve any issues Ms Olivacce had with the Claimant as soon as possible. The Claimant did not give evidence that the reason why Ms Olivacce or Ms Ademoye sent the WhatsApp was because he had made a protected act, nor did the Claimant challenge either Ms Olivacce’s evidence that she did not pursue the Claimant because she was victimising him or Ms Ademoye’s evidence that she was not victimising the Claimant when she sent the WhatsApp .[45]The Claimant’s response to the text was to tell Ms Ademoye to tell Ms Olivacce to “put it in writing” [318]. On 30 July 2021, Ms Olivacce then sent a letter asking for the same thing and asked Train Manager (TM), William Lott, to pass it on to the Claimant. Notwithstanding, the Claimant did not respond.[46]Ms Olivacce then managed to get hold of Mr Crossley’s contact details as he had left the First Respondent’s employment in 2021. Ms Olivacce met with Mr Crossley outside work in around August 2021, and he gave Ms Olivacce the cause for concern letter dated 21 May 2008 with a petition and accompanying memo (‘the petition documents’). Ms Olivacce gave evidence that it was then she realised what the Claimant had done, and she was able to verify that the signature on the petition was not hers. It was signed in 2011, and it contained the personal title “Miss”, whilst at the time in 2008, Ms Olivacce had been married for 4 years by then. Ms Olivacce wrote the Claimant another letter, this time with copies of the cause for concern letter, petition and memo included and put these documents in an envelope. 6 September 2021 incident at Cockfosters[47]On 6 September 2021, Ms Olivacce tried to pass the envelope to TM Lott. But TM Lott told her that the Claimant had instructed him that he was not to pass on any letters or leave them in the Claimant’s pigeon hole.[48]On the same date, Ms Olivacce found out that the Claimant was working as a spare driver at Cockfosters and so drove to Cockfosters and saw the Claimant speaking to a female driver, Ms Lola Fanponle. Ms Olivacce approached them and spoke to the Claimant, and provided him with the envelope containing the cause of concern letter, etc. Ms Olivacce requested that the Claimant provide her with a written apology by 9 September 2021 and explained that if he failed to do so, she would refer the matter to Tracey Simms as a formal grievance.[49]The Claimant’s evidence was that Ms Olivacce confronted him when he was talking to Ms Fanponle and threw 3 documents down in front of him and demanded that he apologise for forging her signature giving him three days to comply. We find that Ms Olivacce did not throw down 3 documents because her documents were in an envelope. In the interview with Ms Abbey, Ms Olivacce said that she pursued the Claimant because until she had a copy of the petition, she had no proof of his admission. Once she got the copy of the petition, she wanted him to apologise for what he had done and do the right thing. In her evidence, Ms Olivacce said that she pursued the matter to try and rectify her relationship with Mr Crossley, which had affected her deeply. Ms Olivacce was unhappy with the Claimant’s refusal to engage with her. Her evidence was that she attended on 6 September 2021, once having received the petition documents, because she wanted an apology.[50]We find that the reason why Ms Olivacce pursued the Claimant on 6 September 2021 regarding her apology was because he had not engaged with her and she wanted him to be accountable for his behaviour in forging her signature now that she had proof. We found Ms Olivacce to be a forthright and clear, and credible witness and accept in entirety Ms Olivacce’s version of events and her evidence on the petition documents and that the Claimant told her that he had forged her signature. The Claimant did not ask Ms Olivacce whether race was the reason why she made allegations or allegedly threw documents at him, although he did mention sex. The Claimant did not mention race or sex in his 21 September 2021 complaint of harassment against Ms Olivacce. We find that Ms Olivacce was entitled to ask the Claimant to be accountable for his actions and apologise, and provide a copy of the petition.[51]The Claimant’s evidence was that the cause for concern letter was his personal letter and that it should not have been in his personnel file, and that Ms Simms enlisted Ms Olivacce to fabricate accusations against him. He accepted in evidence that he did not have any evidence to support his allegation, but that it was his belief. He said that everyone was lying about where the petition came from. The Claimant’s grievance against Ms Olivacce referred to Ms Simms obtaining the petition. However, Alero Abbey’s evidence was that Andy Crossley did not provide the document to Ms Simms. This is further supported by Ms Abbey’s report [1265], which indicated that she believed that Andy Crossley did provide the documents to Ms Olivacce, but she was not concerned with where Mr Crossley obtained the documents. Ms Abbey did not uphold the Claimant’s grievance in this respect [1266]. We find that Ms Simms had nothing to do with Ms Olivacce obtaining the petition documents, and in the complete absence of any evidence whatsoever from the Claimant or even any challenge to Ms Olivacce’s version of how she obtained the petition or Ms Simms’s denial of any involvement in her evidence, we could not come to any other possible finding. There was no retaliation at all by Ms Simms towards the Claimant.[52]All Train Operators' shift patterns, including instructor operators like Ms Olivacce, have their roster determined around 12 months in advance. Ms Olivacce’s roster meant that she predominantly worked on the night link shift from 21:00-07:30 [1844-1845]. Whilst the Claimant at the time was on early duties working from 04:30-14:30 [1852-1854 ] during the same kind of period from August-September 2021.[53]The Claimant’s evidence was that Ms Simms altered Ms Olivacce’s permanent night duties and reassigned Ms Olivacce to shifts that coincided with the Claimant’s during the day to provoke a confrontation between the Claimant and Ms Olivacce. However, in evidence, when the Claimant was asked to explain the basis of his allegation, he could not, he said that he saw Ms Olivacce and that was his evidence. Ms Olivacce’s evidence was that it was a figment of the Claimant’s imagination that Ms Simms changed her shifts.[54]We find that as the Claimant’s and Ms Olivacce’s shifts overlapped, there was always a possibility they would meet. The actual shifts done between August-September 2021 by Ms Olivacce did not change at all [1851]. Grievance process[55]By letter dated 20 August 2021, Mr Duru [325] raised an additional complaint on behalf of the Claimant in respect of the unauthorised disclosure of the 3 documents that Ms Olivacce had provided the Claimant on 6 September 2021 and stated that these documents were part of the Claimant’s COT3 of 2011. However, we considered the 2011 COT3 document and find that the petition documents were not part of the COT3 and were not the Claimant’s 2011 COT3, and they were not referred to in the COT3. Ms Olivacce was not a signatory to the 2011 COT3 agreement, and there was no reference to Ms Olivacce or the petition in the 2011 COT3 document.[56]Mr Dent wrote to Mr Duru on 1 September 2021 informing him that the complaint did not meet the harassment and bullying criteria to be dealt with under that process [327]. Neither Mr Duru nor the Claimant raised any concerns about this decision. In fact, on 9 September 2021, Mr Duru wrote to Mr Dent stating, “[I] acknowledge that an AMH manager has reviewed my letter to you, however H&B was though a part of not the main thrust of my correspondence or Mr Ofoniama’s complaint.” [1817-1818][57]We find there was nothing to suggest that Ms Costigan’s assessment of the Claimant’s complaint as a grievance and not falling under the harassment and bullying was in any way detrimental. The First Respondent’s grievance policy [175- 182] refers to mediation as a possible outcome [178] and so does the First Respondent’s harassment and bullying policy [194-201], [199]. There is no reference to any other possible outcomes in either policy.[58]When the Claimant was asked in evidence why it was a “downgrade” as he termed it, he said it was a breach of policy. However, when asked what policy the Claimant could not point the Employment Tribunal to either the policy that applied or what provision was breached. The Claimant’s oral evidence was in essence that it meant that the grievance was dealt with by a lesser manager who was not accredited for harassment and bullying, but then accepted that he wasn’t too familiar with the harassment and bullying procedure or grievance procedure. Although Mr Gardner who dealt with the Claimant’s grievance was not an accredited manager at the time of dealing with the grievance, Mr Tollington who dealt with the appeal was an accredited manager in harassment and bullying and gave evidence that he didn’t think there were any remedies or outcomes in respect of the grievance process that was not available in the harassment and bullying process. We therefore find that the classing of the Claimant’s complaint as a grievance was not detrimental to him. Furthermore, neither the Claimant nor his representative, Mr Duru, made any complaint about the classification of the complaint at the time it was assessed or even at the appeal.[59]Ms Abbey determined that the Claimant’s grievance against Ms Olivacce was to be dealt with under the harassment and bullying policy because “The incidents described in the complaint meet the definition of Harassment as the respondent actions could be deemed as creating an offensive, intimidating, and hostile environment for C. Their redress being sought by the respondent is over ten years old and it’s reasonable for C to question the respondent’s intention in pursuing her claim as this within LU reporting parameters have timeout. There is no information to suggest that the respondent had pursued the matter in line with LU Grievance or Harassment & Bully procedures. I find that this complaint meets the definition of bullying” [398] Ms Abbey sent her rationale for treating the Claimant’s grievance against Ms Olivacce as under the harassment and bullying policy to HR on 7 October 2021 [448-450] The Claimant was not able to point to any breach of policy in respect of how his grievance was dealt with and we find there was no breach of any policy as regards the Claimant’s grievance.[60]On or around 13 September 2021, Mr Gardner received a call from the Claimant in which he said that he considered his complaint should be investigated by someone external and independent of the First Respondent. The Claimant had also raised concerns regarding his contact with Ms Simms whilst the grievance investigation was ongoing. Mr Gardner wrote to the Claimant on 20 September 2021, explaining that he had met Ms Simms in passing a few times and that he was experienced in investigating grievances, and his independence and impartiality had never previously been questioned. Mr Gardner therefore confirmed that he would continue to investigate the Claimant’s grievance rather than an external company. Mr Gardner discussed the matter with the ER team to address the Claimant’s concerns. Mr Gardner set out a number of temporary arrangements to be put in place to limit any contact between the Claimant and Ms Simms during the grievance investigation [383].[61]On 15 September 2021, Ms Olivacce sent a formal grievance to Ms Simms [381-382]. Ms Olivacce stated in her grievance that several years previously, she had been told by Andy Crossley that she had signed a petition to get him sacked; however, she told him that she had not done so. As a result of the alleged forged signature, her relationship with Andy Crossley broke down. Ms Olivacce said that she confronted the Claimant, who admitted at that time that he had forged her signature. She asked him for a copy, but he did not provide it at that time. Ms Olivacce had recently got in touch with Andy Crossley and wanted to pursue this matter again. She approached the Claimant again about the document, but this time he denied forging her signature. Ms Olivacce explained that it was a “cause for concern letter dated 21 May 2008 with a list of names and signatures attached that the Claimant had forged her signature on. [381] In Ms Olivacce’s grievance, she also stated that she requested an apology letter from the Claimant, but the Claimant refused.[62]On 21 September 2021, the Claimant submitted his grievance against Ms Olivacce to Mr Orphanides. The grievance was a complaint of harassment about Ms Olivacce’s conduct towards him and recited the chronology from Ms Olivacce’s text message via Ms Ademoye to the confrontation on 6 September 2021 [386-387].[63]On 6 October 2021, the Claimant attended a grievance meeting with Mr Gardner regarding his grievance against Ms Simms. He was accompanied by a workplace colleague, Ismail Odewale [406-412]. In the meeting, when Mr Gardner asked the Claimant what a satisfactory outcome looked like to him, he responded that “all he wanted was the victimisation to stop”. The essence of the Claimant’s grievance was that Ms Simms would seek to undermine and victimise the Claimant and the people he was representing. The Claimant was sent a copy of the notes of the meeting on 6 October 2021. The Claimant did produce an amended version of the document on 11 October 2021 [430]. Mr Gardner’s evidence was that at this stage, no concerns were raised about the matter being dealt with as a grievance and not a harassment and bullying complaint, and we accept this evidence.[64]On 7 October 2021, Mr Gardner, the investigator of the Claimant’s 13 July 2021 grievance, wrote to Ms Simms to explain what the grievance was against her. Mr Gardner explained that the Claimant was saying that “He believes that the issue stems back to the fact that he was the rep for a case relating to a Mr Truman which you were the AMH for. The way in which he feels you have dealt with a Mr Sealy's recent health issues which he believes is because he has been representing him He also believes that a manager has recently provided confidential information from his record to a Ms Ollivacce and that this was done because he had put in a complaint about you. This issue is not yet clear in my mind as Ebizimo related this matter to a previous issue from 2008 which is apparently covered to a nondisclosure agreement. I will be making some further enquiries on this matter before we meet.” [405] Ms Simms was invited to attend an interview on 2 November 2021 [523-534][65]By letter dated 27 October 2021, Ms Abbey invited the Claimant to attend a grievance investigation meeting for 2 November 2021 in respect of his complaint against Ms Olivacce [461]. Ms Olivacce was interviewed in relation to her grievance against the Claimant on 1 November 2021 [468- 472]. On 2 November 2021, the Claimant was interviewed by Ms Abbey in relation to his 21 September grievance regarding Ms Olivacce on [475-479]. Ms Olivacce’s grievance[66]On 17 November 2021, Mr Orphanides, who was investigating Ms Olivacce’s grievance against the Claimant [556-567], interviewed the Claimant. The Claimant attended with his workplace colleague, Mr Duru. The Claimant refused to answer any questions because he said that the questions he was being asked by Mr Orphanides were in relation to an NDA that he signed in 2008. However, Mr Orphanides responded that he had legal advice from TFL, which said that the documents did not fall under an NDA [556]. The Claimant and Mr Duru requested the name of the person in legal that Mr Orphanides spoke to and he refused to give a name. The Claimant was asked by Mr Orphanides if he forged Ms Olivacce’s signature on the petition and the Claimant said no. In the meeting Mr Duru said, “people sign annual leave and MCO behalf of others what makes this document any different?” [559][67]In evidence Claimant was asked what the hostile intimidation and wholly inappropriate behaviour by Mr Orphanides in the 17 November 2021 meeting was, the Claimant said that it was the fact that Mr Orphanides had the petition and when asked, would not tell him or Mr Duru who he had received legal advice from. When the Claimant was asked what the discrimination against Mr Orphanides was, he said that Mr Orphanides was helping someone (Ms Olivacce) literally make false statements and lying about him by giving the Claimant a different outcome after the investigation then giving the Claimant suitable management advice. The Claimant added that the investigation into the forgery had nothing to do with what Mr Orphanides was investigating him for.[68]The Claimant’s evidence was that the sex discrimination was that Mr Orphanides helped a female member discriminate against the Claimant and lie about the Claimant. When the Claimant asked in cross examination if that was the entirety of the complaint, he said, “he believed that was the best way he could explain it”. We find that there was nothing in the notes of the meeting on 17 November 2021, nor asserted by the Claimant to suggest that Mr Orphanides behaved in a hostile, intimidatory and wholly inappropriate manner. We find that Mr Orphanides did not say in the meeting that he had permission from legal to violate the terms of the COT3 in terms of confidentiality, and whilst he did not give a name to the Claimant in the meeting of the person who advised him in legal, he was under no obligation to and we do not consider that it amounted to hostile, intimidatory and wholly inappropriate behaviour. Notwithstanding, Mr Orphanides did not have a copy of the COT3 with him on 17 November 2021. We find there was no breach of confidentiality in respect of Mr Orphanides having the petition documents, as there was no confidentiality associated with the documents. They had been circulated at the time in 2008 to multiple train operators, which is why there were 20 signatures on the documents. There was nothing about the document that was confidential.[69]On 28 January 2022, Mr Gardner held a grievance outcome meeting with the Claimant [648-657]. Mr Gardner produced an outcome letter dated 31 January 2022 [718-733] sent to the Claimant on 31 January 2022 [717] where there Claimant’s grievance was not upheld. By email dated 1 February 2022, the Claimant appealed Mr Gardner's decision [735]. The Claimant’s appeal did not mention any complaint about the grievance being dealt with as a grievance rather than a harassment and bullying complaint. The Claimant attended an appeal meeting with Mr Tollington on 23 March 2022, where the Claimant was accompanied by Mr Duru [1033-1039]. Mr Tollington sent the Claimant his appeal outcome letter dated 24 June 2022 [1235-147].[70]The Claimant’s appeal was not successful. Mr Tollington confirmed in evidence that he was satisfied that there had been no race discrimination or victimisation of the Claimant by Ms Simms. He had requested statistics of complaints made by all staff from all the Depots on the Piccadilly line as well as staff satisfaction surveys from the Arnos Grove depot. Mr Tollington gave evidence that Ms Simms had been at the Depot long enough for there to be data regarding complaints in 2021, but it looked like the other depots had more complaints than Arnos Grove. He said that Mr Duru and the Claimant had said that the colleagues for whom the Claimant acted as a workplace representative were Train Operators of ethnic minorities, adding that 14% of Arnos Grove depot are from this group, a proportion which they told Mr Tollington was ‘heavy’ in comparison to other depots. However, having considered the statistics [1221-1226], he found that the proportion of Train Operators who had declared themselves to be of an ethnic minority at Arnos Grove depot was approximately 40% and the average across the First Respondent was 44%, which did not tally with the Claimant and Mr Duru’s assertions. Between 2016 and the end of 2018, so before Ms Simms had become the Train Operations Manager at Arnos Grove towards the end of 2018, twenty-one grievances and one complaint of harassment and bullying were recorded at Arnos Grove depot. By the end of 2021, thirteen grievances and two complaints of harassment and bullying had been submitted there. These numbers were by no means exceptional across the Piccadilly line and across the network more generally. In oral evidence, Mr Tollington said there should have been clues from the statistics if one depot had a particular issue, but there were none for Arnos Grove. He therefore took the view that there was no need to ask for any more data. We accept Mr Tollington’s evidence and find that there was no evidence supporting the Claimant’s allegations of cultural racism at the Depot since Ms Simms became the TOM. Claimant’s sickness January 2022[71]The Claimant went off sick from 12 January 2022 [1834 & 664]. The Claimant was off work due to work-related stress. Ms Owodunni was the Train Manager tasked with managing the Claimant’s sickness absence. Ms Owodunni made an Occupational Health (OH) referral on 15 February 2022 [1809-1810] to obtain advice from Occupational Health regarding the Claimant’s fitness to return to his role or any work and attend discipline/grievance/performance meetings [1809]. The Claimant attended the OH appointment on 28 February 2022 with Tinu Ladapo, the OH clinician who produced a report [1807-1808]. However, the Claimant withheld his consent for the report to be disclosed to the First Respondent.[72]On 28 March 2022, Mr Joe Brown took over conduct of the Claimant’s sickness management because the Claimant made allegations against Ms Owodunni in March 2022. Mr Brown referred the Claimant again to OH on 18 July 2022 [1804-1805]. The referral asked the same questions as the first referral and in addition, asked further questions. The Claimant was off sick from 12 January 2022- 29 August 2022 for work-related stress [1129, 1179, 1268]. Outcome of Ms Olivacce’s grievance[73]In around the end of February 2022, Mr Orphanides sent Ms Olivacce the outcome of her grievance [216-217]. Mr Orphanides upheld Ms Olivacce’s grievance and found that Ms Olivacce didn’t sign the petition and her name was either taken from the generic petition that Ms Olivacce had previously signed or was signed by someone else [216]. The Claimant was informed of the outcome of Ms Olivacce’s grievance and given a suitable management advice letter dated 22 February 2022 [743-744]. The Claimant said that he received this letter on or around 24 February 2022 and we accept the Claimant’s evidence on this point as the Claimant was not in the workplace at the time, as he was on sick leave.[74]In the suitable management advice letter, Mr Orphanides stated “The finding of the grievance was that you had submitted a letter and petition to LUL and the trades unions and you had either added the signature of the complainant or you had attached a petition which she had signed to the letter without her knowledge or consent.” [743]. The Claimant was told in the letter that “As a result of the evidence and your non-cooperation, I have made a decision that on the balance of probabilities your behaviour towards another Instructor Operator, Anna-Marie Olivacce, has been deemed inappropriate/unacceptable and fell below the standards of the company’s expectations….” [743] The letter set out the standard of the company’s expectations in the letter. Mr Orphanides explained his reasons for the decision as “Ms Olivacce has been open about what she believes she did and did not do at the time. However, despite your assertion that Ms Olivacce had signed the petition you refused to provide any more information either to her or me. To avoid doing so you referred to the GDPR and also alleged that saying anything would place you in breach of a legal agreement you had signed with LUL” [214] The Claimant’s evidence was convoluted and contradictory as he seems to be suggesting that if Mr Orphanides made the decision in relation to his grievance, which was actually decided by Ms Abbey. We find that in light of Mr Orphanides’s findings the suitable management advice was warranted.[75]The Claimant was unhappy about the suitable management advice letter and wrote to Mr Orphanides and repeatedly alleged that Mr Orphanides was lying. In cross-examination, the Claimant was unable to explain why, if his grievance postdated Ms Olivacce’s grievance, it should have been dealt with before her grievance. We find that Ms Olivacce’s grievance was submitted first before the Claimant’s. The harassment and bullying policy did not refer to the order of when a reciprocal complaint should be dealt with. The Claimant was unable to tell the Employment Tribunal where and what policy had been breached in relation to how his grievance was dealt with. We find that it was correct that Ms Olivacce received her outcome before the Claimant received his outcome, which in February 2022, he had not yet received and did not receive until 22 July 2022 [1252-1267] Ms Whitehouse's investigation -February 2022[76]In February 2022, Ms Whitehouse was asked to hear a grievance raised by Soydul Alom against Tracey Simms. Ms Whitehouse had not heard of the Claimant before she was asked to investigate Mr Alom’s grievance. Ms Whitehouse gave evidence that she did not know Ms Simms or anyone involved in the grievance she was investigating. Mr Alom was being represented by Mr Duru in respect of his grievance. In that grievance Mr Alom alleged that “Ms Simms has used her position as TOM to harass intimidate and bully me and has treated me differently from anyone else not white” [1650]. In that grievance, Mr Alom also stated that one of the reasons why Ms Simms was victimising him was because of his association with the Claimant [1652].[77]On 1 March 2022, Mr Alom had made a request for 2 workplace colleagues to attend his grievance investigation meeting [787], which was the Claimant and Mr Duru. However, by email dated 2 March 2022, Ms Whitehouse explained to Mr Alom that he could only have one [776]. Ms Whitehouse interviewed Mr Alom on 3 March 2022, where he was accompanied by Mr Duru, and produced interview notes which were not verbatim [822-837]. We therefore find the Claimant was not Mr Alom as a workplace colleague, as he never attended any meeting with Mr Alom in relation to this grievance. Ms Whitehouse interviewed Mr Alom again on 12 May 2022 [1130-1135], and neither Mr Duru nor the Claimant attended with him. Ms Whitehouse interviewed a number of other people in relation to this grievance (Ms Simms on 7 April 2022 [925-938], Sean Mobb on 8 April 2022 [1005-1012], Russell Orphanides, Trains Manager on 19 April 2022 [1055- 059], Aisha Zareen, Train Operations Manager 1109-1111] and Mr Abdullah on 6 May 2022 [1107-1108]). Ms Whitehouse did not interview Ms Ademoye. Ms Ademoye confirmed this in evidence, which we accept.[78]On 24 February 2022, Mr Gardner invited the Claimant to a grievance outcome meeting [747-749]. The Claimant produced a recording of that meeting. The Claimant’s evidence was that he did not record the meeting, and it was the Claimant, Mr Duru. Mr Duru gave evidence he did not make the recording, but he got to know about it. We find Mr Gardner did not record that meeting, and there were no notetakers because Mr Duru and the Claimant agreed in their evidence that there were only 3 people at the meeting. We find that when Mr Duru got to know about the recording, he was saying that the Claimant told him. We find that neither the Claimant nor Mr Duru were telling the truth on this matter.[79]On 6 May 2022, Ms Whitehouse interviewed Mr Abdullah. Mr Abdullah gave evidence that he came to be a witness in the grievance of Mr Alom because after observing a number of people saying that they were making allegations against Ms Simms. Mr Abdullah explained in oral evidence that, in addition, the Claimant was quite open about the allegations against Ms Simms that he was making. Mr Abdullah’s evidence was that he felt that he had to do something. Mr Abdullah’s evidence was that he had seen no evidence that Ms Simms treated people differently due to their colour. On the contrary, he had observed her helping many people of colour progress through the grades within the First Respondent. In particular, Mr Abdullah gave evidence that she helped Aisha Zareen, an Asian manager, get promoted to TOM. She also helped Keldoon Mangeroo, and in around 2016, she helped a black gentleman to become an Instructor Operator. Mr Abdullah stated that he felt that it was ridiculous to even suggest that Ms Simms was racist. Mr Abdullah gave evidence that he approached Ms Simms in early Spring 2022 and explained that he had heard a lot about the things that were going on, and he felt it was important that he do something. Ms Simms told Mr Abdullah that she would pass his details on and that they would be in touch. Ms Simms did not ask Mr Abdullah what evidence he wanted to give, and she wasn’t in any way involved in his decision to come forward. We accept Mr Abdullah’s evidence on this point.[80]At the interview with Ms Whitehouse, Mr Abdullah stated in relation to the Claimant, “he has another grievance put in against Tracy that has been going on for quite a long time. Everyone is still talking about it, asking what is happening with it, so I am aware of the allegations that Tracy is racist. I am a person of colour so I wanted to let you know that the allegations are rubbish, absolutely rubbish. I had an issue at work which was dealt with badly by the trains managers, not Tracy. Ofinama approached me and told me that you will be interviewed and I want you to tell them that all of the problems you have had, is because Tracy is racist.” [1107] He also added when asked by Ms Whitehouse what the Claimant said to him “he said you'll be interviewed and I want you to say that Tracy has treated you badly and it is because you are a person of colour. I didn't give any answer I didn't say yes or no, I know the difference between right and wrong.“ [1107]. Mr Abdullah confirmed in the interview that the interview referred to by the Claimant never took place.[81]We find that Mr Abdullah’s oral evidence was not entirely consistent as to what he was saying at Ms Whitehouse's interview. Whilst in his oral evidence, he said that the Claimant asked him to lie 3 or 4 years before his interview with PWC, which could not be in respect of the Claimant’s 2021 grievance against Ms Simms, which Mr Abdullah refers to in the interview [1107]. Yet in oral evidence he said it was in relation to his own grievance in 2019 and that he recalls this because Mr Higgins rang him 20 minutes after he had spoken to the Claimant and confirmed to him that the Claimant had told him that he has asked Mr Abdullah to make a complaint that Ms Simms was racist but he couldn’t ask Mr Higgins to do that because Mr Higgins is white. Whilst in Mr Abdullah’s witness statement, he is clear that he made a mistake regarding the timing of when the Claimant asked him to lie, he does not clarify whether it was in relation to the Claimant’s own grievance or his grievance in 2019. Mr Abdullah’s evidence was that the Claimant was telling everyone, including Mr Abdullah at the time, that he had a grievance against Ms Simms. We find that this was in 2019. We do not consider that we need to find whether there was a grievance against Ms Simms in 2019; it is only relevant that Mr Abdullah believed there was. We find the Claimant led Mr Abdullah to believe he had a grievance against him at that time, and that is why he told Mr Abdullah that he would be interviewed in 2019. We find this is the reason why Mr Abdullah’s evidence seems confused, but we find that Mr Abdullah was telling the truth when he explained that the Claimant tried to coerce him in his 6 May interview with Ms Whitehouse. We accept Mr Abdullah’s evidence that he was referring to 2019, not 2021, in that interview.[82]Mr Abdullah states in the interview “he believed that to be the problem, however, I have never said that because that is untrue. He just believed that I had problem with Tracy because of my race. There was nothing said, no conversation had that it was because of my race, he just assumed that. I won't lie for somebody else though. He knew that my issue had nothing to do with Tracy and had nothing to do with race, he knew, of course he knew. I never spoke to Ofinama at all about my case and at no point did I ever mention to anyone that it was about race, because it wasn't. it's ridiculous, it's just a ridiculous thing to say but he wanted me to say it because it strengthened his grievance. Everyone knew that he had put a grievance in because he's very vocal about it.” then when Ms Whitehouse asked if Mr Abdullah respond “ I didn't actually say a lot. Like I said he can be quite an imposing figure and he was barking at me saying I need you to this, you need to do this. So I didn't say anything either way.” [1108] We find that Mr Abdullah is suggesting that the Claimant tried to coerce into saying that Ms Simms discriminated against him on the grounds of race.[83]The Claimant’s evidence was that Mr Abdullah also accused him of coercing other individuals into making false claims against Ms Simms, and that this was a baseless allegation was then weaponised by Ms Kate Whitehouse involving PricewaterhouseCoopers (PwC). The Claimant never gave evidence in relation to whether he told Mr Abdullah to lie and say Ms Simms was a racist in 2019 and did not challenge Mr Abdullah’s evidence that he told Mr Abdullah to lie and say Ms Simms was a racist in 2019. We find that Mr Abdullah believed that referring to Ms Simms as a racist was a lie because he did not believe that Ms Simms was a racist, as he explained in his Ms Whitehouse interview. Mr Abdullah accepted in evidence that he considered that Ms Simms was nasty in 2019 before he received the decision from Lee Stewart [295], explaining as to why Ms Simms had reviewed Tony Nash’s decision that nothing should be recorded about an incident when Mr Abdullah waited in the sidings with his train for 45 minutes which was too long and put it on record. But he did not mention race at all in respect of his complaint about that issue. Mr Abdullah explained that once the unions had explained it to him that there was no punishment and that Ms Simms had made the correct decision, he realised that Ms Simms was just doing her job and putting things right.[84]We considered the text messages from Mr Abdullah in 2019 [292-294] where Mr Abdullah refers to making a complaint against Ms Simms for harassment and victimisation. However, we find that these comments were made before Mr Abdullah had an explanation from the Union regarding Ms Simms’s conduct, which he confirmed in evidence he accepted. We accept Mr Abdullah’s evidence that the Claimant asked him to lie, and we find that Mr Abdullah did not make a false statement that the Claimant sought to coerce him into saying that Ms Simms is a racist at the Ms Whitehouse interview on 6 May 2022. We further accept Mr Abdullah’s evidence that he had experienced false allegations about himself before, and that is why he put himself above the parapet to give evidence about the Claimant’s conduct, because he believed that the allegations against Ms Simms were untrue.[85]On 15 June 2022, Ms Whitehouse provided her decision on Mr Alom’s grievance [1184-1198] as a report. In that report, Ms Whitehouse made a number of recommendations [1194]. On 23 June 2023, the Respondents submitted their ET3 in response to the Claimant’s first ET1 claim dated 1 May 2022. On 11 July 2022 [1277-1278] the Claimant wrote an email to Ms Whitehouse saying that Ms Whitehouse needed to withdraw false statements made in the conclusion of her 15 June 2022 report. The Claimant did not give evidence about the specific recommendation in Ms Whitehouse’s report that he considered to be discriminatory but said that Ms Whitehouse made a recommendation and accused the Claimant of coercing Mr Alom and telling untruths in her report. We find that there was no evidence that Ms Whitehouse knew about the Claimant’s first claim form, and we find there was no reason why she could have known about the Claimant’s first claim form, as the claim form did not involve her in any shape or form. The Claimant’s first claim form named Nick Dent, Mike Smith, Tracy Simms, Russell Orphanides and the London Underground Limited as Respondents.[86]On 15 July 2022, Ms Whitehouse responded to the Claimant’s 11 July 2022 email and stated, “Thank you for your email. I have read it with interest and have reflected on what you have said and I write to inform you that I shall not be retracting any statement that I have made in my outcome to Mr Alom.” We find that this was a refusal to retract the 15 June 2022 report.[87]The Claimant’s oral evidence was that Ms Whitehouse’s recommendation that he be investigated and allegation that the Claimant coerced Mr Alom was an act of discrimination because those things were untruths and were contained in her report. We find that the Claimant’s evidence that Ms Whitehouse made a recommendation that he be investigated for coercing Mr Alom is not made out by the documentation. Ms Whitehouse referred to the Claimant “gaslighting Mr Alom” and allegations by Mr Abdullah that he asked Mr Abdullah to lie and claim that Ms Simms was racist, but neither of these is a recommendation that the Claimant be investigated for coercing Mr Alom. The Claimant was unable to identify when asked what the breach of policy or procedure was that he alleged Ms Whitehouse had made. It is also the case that whilst at the time Ms Whitehouse made her recommendation that the Claimant should be investigated in respect of Mr Abdullah’s allegations of coercion, later Mr Alom did confirm in an interview on 12 January 2023 that he was passed on to the Claimant and Mr Duru in around October 2021 [1475] and said “was a pawn, like in a game of chess. They were using and abusing me as a “muslim and ethnic lad” [1475]. He said in respect of the Claimant, “EO threatened me about money and he would shut down anything I said. He would shout. He said “if you don’t want to be with anyone, just go” and if I would say “okay” he would say “you’re f*cking up the case. You’re ruining it with your own two hands”. [1479][88]We find there were no false statements by Ms Whitehouse nor any breaches of policies or procedures. Ms Whitehouse never met the Claimant; we didn’t hear evidence that she knew whether the Claimant was black. Ms Whitehouse was relatively new to the organisation and did not know any of the people involved in the complaint. She didn’t know Ms Simms. The Claimant did not ask Ms Whitehouse whether she was aware of his grievance by the time she completed her report. We find that Ms Whitehouse was not aware of the contents or the existence of the Claimant’s grievance against Ms Simms. We find that Ms Simms had nothing to do with Ms Whitehouse’s conclusions or recommendations and that Ms Whitehouse was diligent in her report and drew the conclusions and made the recommendations that she found in her report based upon her observations and the evidence before her.[89]Ms Abbey sent the Claimant the outcome of her report on or around 22 July 2022. Ms Abbey notified the Claimant that there was a case to answer with respect to one element of his complaint. Ms Abbey’s finding in her report stated, “I do consider that R was “entitled to approach people as long as that behaviour does not become bullying or harassing”. In this case I do think that some of her behaviour does meet the threshold for bullying or harassment. R whilst entitled to approach her colleague (in this case C) should have taken care to make sure that she did that appropriately”. The Claimant met with Ms Abbey to discuss the outcome. Ms Abbey’s evidence was that overall, the Claimant seemed satisfied with her findings and wanted to understand what action would be taken against Ms Olivacce. Ms Abbey confirmed to the Claimant that she could not discuss that with him. Ms Abbey’s report recommends that Ms Olivacce be referred to disciplinary and be given suitable management advice. Ms Olivacce confirmed in evidence that she was referred to a disciplinary, but the allegation against her was not upheld, and she received no punishment. We find that being referred to a disciplinary was a greater punishment than receiving an informal suitable management advice. The Claimant did not put to Mr Orphanides that his reason for giving the Claimant suitable management advice was that he was siding with Ms Olivacce because of her sex and therefore discriminating against the Claimant because of his sex. Mr Orphanides’s evidence that he would have treated the Claimant the same way if the Claimant were female. We accept that evidence.[90]Mr Orphanides’s letter makes clear that suitable management advice is informal and does not constitute a warning. It does not form part of the First Respondent’s disciplinary procedure [170-174] Mr Orphanides’s letter states, “While there are no adverse consequences of you receiving this advice, future occurrences of this behaviour (or relevant breach) that falls short of the company’s standards may result in an investigation and disciplinary action being taken. A copy of this letter of advice will be placed on your personal file and may be referred to in the future, if appropriate.” [744] Notwithstanding, we find that the allegation against the Claimant was more serious than the allegation of against Ms Olivacce. The Claimant accepted himself in his own witness statement that matters needed to be serious enough to be referred to a disciplinary [see paragraph 1.4 of the Claimant’s witness statement ][91]Ms Abbey also wrote to Ms Olivacce on 22 July 2022 to notify her that there was a case to answer in respect of one element of the Claimant’s complaint. Ms Abbey set out her decision in writing in a letter dated 14 October 2022. The letter notified Ms Olivacce of the referral for a disciplinary and gave the suitable management advice.[92]Following Ms Whitehouse’s recommendation that the Claimant be investigated in relation to Mr Abdullah's allegations, Ms Amy Owen was appointed to carry out that investigation. After receiving advice from HR, Ms Owen appointed PWC to carry out the investigation to ensure impartiality. Ms Owen gave evidence that she did not know Ms Simms personally and that they were not friends, and we accept that evidence.[93]On 26 August 2022, Ms Owen wrote to the Claimant to advise him that PWC would be undertaking an investigation [1312- 1313]. The Claimant was confused by the letter because it made a reference to a grievance appeal stating that he was not involved in Ms Whitehouse's investigation, and so did not understand what he could contribute to the PWC investigation. The Claimant wrote to Ms Owen to ask for clarification [1316-1317]. Ms Owen responded by email dated 31 August 2022 and clarified that there were allegations against the Claimant that he had “solicited another employee to put in false claims that a manager has treated them differently on the ground of race” [1316][94]PWC interviewed the Claimant on 31 August 2022; Mr Abdullah (who was the anonymous witness on 15 September 2022); Ms Tracey Simms on 23 September 2022; Soydul Alom on 30 September 2022 [1388-1399 & 1439]; Adesimisola Owodunni on 17 October 2022; and Oluyemi Ademoye on 19 October 2022.[95]The Claimant’s evidence was that Mr Abdullah also accused him of coercing other individuals into making false claims against Ms Simms, and that this was a baseless allegation, which was then weaponised by Ms Kate Whitehouse involving PricewaterhouseCoopers (PwC).[96]At the PWC interview on 15 September 2022, whilst Mr Abdullah said in that interview in response to the question “We've been instructed by TfL to undertake an investigation into some concerns raised in relation to Mr Ebizimo Ofoniama (EO), specifically that he has been coercing people into raising grievances against Tracey Simms (Ms Simms), Trains Operations Manager (TOM) at Arnos Grove.” [1355]. Mr Abdullah responded, “Yes and it has probably gotten worse in the last few weeks”.[97]This statement is the closest thing we could see that relates to allegations of coercion. However, we find that it was not coercion being alleged against the Claimant in relation to Mr Abdullah, but in relation to others, because after saying yes, there was coercion against Mr Abdullah, he then says, “I'm not 100% sure, but it's what I've heard. And at TfL, once something has happened it's only a period of time before everyone knows and it travels down the line.” [1355] We find that there was no false statement that stated that the Claimant sought to coerce him into saying that Ms Simms is a racist. We accept Mr Abdullah’s evidence as to why he went to Ms Whitehouse and then PWC, to state that the Claimant had asked him in 2019 to say Ms Simms was racist because he wanted the truth to be known and because of the seriousness of the allegations against Ms Simms. We found no other credible reason why Mr Abdullah would have lied. We do not accept the Claimant’s evidence that Mr Abdullah was motivated to lie about him because he knew that the Claimant was taking over the syndicate and that it was because of the Claimant’s race, because we accept the evidence Mr Abdullah that he did not know that the Claimant was taking over the syndicate as he had not received the text message that the Claimant sent to a number of Train Operators including Ms Ademoye who gave evidence that she received such a text message.[98]We do not accept that Mr Abdullah shared Golliwog sweets and was laughing in 2022. In submissions, the Claimant said that this incident happened in 2019/2020, not 2022, and that there was a golliwog on the wrapper, which is why it was a golliwog sweet. However, the Claimant gave no evidence on the point at all and did not put it to Mr Abdullah. Mr Abdullah denied it in his evidence, and we accept his evidence on this point. We do not accept that this incident happened at all, as there was no evidence of it, and the Claimant never mentioned the name of an alleged witness. Furthermore, the Claimant’s explanation is inconsistent with issue 10.1 as it refers to “The Claimant said that Mr Abdullah “made bad comments”, about the Claimant’s ethnicity in the last – sharing “Golliwog sweets and laughing” in 2022.” Not 2019/2020. OH appointment – 5 September 2022[99]The Claimant attended another OH appointment on 5 September with Ms Tinu Lapapo, who again produced a report [1790-1791]. Again, the Claimant withheld consent in respect of the report to be disclosed to the First Respondent. The Claimant attended OH again on 10 October 2022 [1801-1802]. The Claimant returned from sickness on or around 10 October 2022 and then went on annual leave from 18 December 2022- 4 February 2023. However, the Claimant went off sick again on 2 February 2023. Ms Ademoye’s interview with PWC[100]On 19 October 2022, Ms Ademoye attended an interview with PWC [1423- 1431]. In that interview, when asked if she knew that the Claimant had encouraged others to raise grievances, Ms Ademoye responded that she had heard rumours. She then expanded on this in the interview and stated, “the rumour I heard was he’d encourage them to say it was because of their skin colour, and that’s why it didn’t favour them. It was rumours. I haven’t heard him actually say it to people.” [1426][101]Ms Ademoye gave evidence that she also explained in the interview that generally such rumours came from the mess room. In her evidence, Ms Ademoye referred to one particular case that she had in mind when referring to the rumours. Ms Ademoye said that she was thinking of Bilal Abdul, whom the Claimant represented. She said in evidence that she had heard the rumour that Mr Ofoniama was bombarding Mr Abdul, a Muslim, with phone calls to tell him what to put in his grievance. We find that Ms Ademoye made it clear that what she was telling PWC was that there were rumours she had heard, not statements of fact. In response to the question of whether rumours were all grievances that related to Ms Simms, she said in the interview, “I couldn’t say a definite yes or no to your question.” [1426] We find that Ms Ademoye’s statements were statements of rumour, not of facts and that Ms Ademoye was telling the truth when she said she had heard the rumours and stated that she heard the rumours because she was answering a question asked. We accept Ms Ademoye’s evidence (which was unchallenged), her statement to PWC regarding the rumours had nothing to do with the Claimant’s grievance against Ms Simms.[102]On 16 August 2022, the Claimant issued his second claim form. The Respondents named in this claim form were LUL, Kate Whitehouse, Sal Abdullah, Adesimisola Owodunni, and Oluyemi Ademoye.[103]On 4 September 2022, the Claimant responded to Ms Owen’s 31 August 2022 email and accused her of victimising him for the pleasure of Ms Simms [1333][104]On 28 October 2022, PWC produced their investigation report [1444-1452]. The report concluded that there was sufficient evidence to suggest that the Claimant had directly or indirectly asked, encouraged or coerced others to raise grievances against Ms Simms in relation to race and religious discrimination.[105]On 3 November 2022 [1454] Ms Owen wrote to the Claimant suspending him from work [1454]. The letter stated that suspension was not disciplinary action.[106]On 4 November 2022, the Claimant wrote to Ms Owen and alleged that Ms Owen was taking action in respect of him because Ms Owen wanted to “support her friend” and “use her waning days in her current position to victimise” the Claimant [1456]. We find there is no reference to the Claimant’s Employment Tribunal complaint in this correspondence. We find that the Claimant believed that Ms Owen was suspending him to support Ms Simms.[107]On 14 December 2022 [1471-1472] Ms Owen wrote to the Claimant to inform him of her decision to refer the Claimant to a company disciplinary interview (CDI). Ms Owen then went on maternity leave from 10 February 2023- April 2024. Ms Owen gave evidence that it was only on her return from maternity leave in 2024 that she became aware of the Claimant’s Employment Tribunal complaint, and she received the documentation. Ms Owen’s evidence was that her reason for suspending and referring the Claimant to a CDI was based upon the PWC report findings and nothing else. The Claimant did challenge Ms Owen’s evidence that she did not victimise the Claimant. He put it to her, and she wanted to support her colleague, Ms Simms. We find that the Claimant did not genuinely believe that the reason why Ms Owen suspended him and or referred him to a CDI was because of his Employment Tribunal claim, as he never mentioned it at all. Claimant’s sickness from February 2023[108]The Claimant was off sick from 2 February 2023 by reason of “extreme stress at work” [1488]. So Mr Brown referred the Claimant to OH on 27 March 2023 [1799-1800]. Again, the question for the OH clinician was whether the Claimant was fit to attend discipline/grievance/performance meetings [1770]. This time, the Claimant attended an appointment with Ms Downey on 4 April 2023. Claimant’s interactions with Ms Downey[109]Ms Downey produced a report dated 5 April 2023 [1772-1773]. In the report that was sent to the Claimant on 5 April, Ms Downey stated in the report that she would request a report from the Claimant’s GP and that the Claimant would need to provide consent for this. She advised that the Claimant was not currently fit for work. She also added that an OH appointment would be arranged on receipt of the GP report. Following receipt of the report, the Claimant provided consent dated 20 June 2023 [1743] for Ms Downey to obtain a GP report.[110]Ms Downey wrote to the Claimant’s GP on 27 June 2023 [1513 -1514] and did not mention in the letter that the Claimant had been suspended or was being subjected to a disciplinary. The Claimant’s GP produced his report dated 4 August 2023. The Claimant reviewed the GP report and signed that he was happy for the report to be released [1717]. Ms Downey received the report on around 22 August 2023 [1698].[111]It was only on 18 August 2022, when the Claimant wrote to Ms Downey’s manager, Kate Bass, that he complained to her about the content of Ms Downey’s letter to the GP. In that correspondence, the Claimant mentioned that he had brought a tribunal complaint against his employer [1704] and stated that the OH office was “now being used as a weapon to continue with the harassment and bullying campaign by these individuals and would therefore request that you recuse yourself from any further involvement.” [1704]. Ms Downey was forwarded that email on 21 August 2023 [1705]. We accept Ms Downey’s evidence that she was aware that the Claimant had a grievance against his line manager, Ms Simms, because he had told her during the April consultation.[112]The Claimant’s evidence was that Ms Downey went as far as attempting to deceive the Claimant’s GP by stating how critical his role at work was but failed to mention the unethical meetings she and the management were attempting to entrap the Claimant into. Moreover, Ms Downey did not inform the Claimant’s GP of the specific questions regarding his mental fitness to attend their meetings.[113]Ms Downey’s evidence was that the Claimant did refer to the ET proceedings during the April and August consultations she had with him, but she was not told any details of what or whom they were concerned with. Ms Downey did not know Ms Simms, and to the best of her knowledge and belief, Ms Downey had never met her. Ms Downey’s clear evidence was that she did not take any action against the Claimant or subject him to a detriment because he had made a complaint against Ms Simms. The reason she took the actions she undertook, or gave advice she gave or letters she wrote, was in connection with her professional role as an OH advisor and in accordance with her professional requirements. We accept Ms Downey’s evidence on this point and find that at all times Ms Downey acted professionally towards and in respect of the Claimant.[114]Furthermore, we accept Ms Downey’s evidence that it is not her usual practice to consult the employee on the contents of such a letter and that she would not usually mention disciplinary proceedings. Ms Downey’s evidence was that she assumed that the Claimant had told his GP that he had been suspended and was going to disciplinary action because the Claimant’s fit note said workplace stress. Ms Downey’s evidence was that she did not tell the Claimant that it was an automatically generated letter, but that it was a standard letter which generally included the same list of questions. She denied that the content of the letter had anything to do with the Claimant’s race or sex and that she would have written the letter the same way in respect of a female patient of a different ethnicity. We find that there was nothing untoward about Ms Downey not mentioning the fact that the Claimant was suspended or being referred to a disciplinary process where extreme stress at work was mentioned on the sick certificate [1488, 1495, 1509] and therefore it was perfectly reasonable for her to assume that the Claimant told his GP about the suspension and disciplinary as what else was he complaining of to his GP other than the suspension in November 2022 [1454] and impending disciplinary in December 2022 [1472].[115]We find there was nothing misleading about Ms Downey’s letter to the Claimant’s GP. We can see no reason why Ms Downey would have changed the letter depending on the sex or ethnicity of the patient she was asking the GP about. We accept her evidence that she didn’t. The Claimant’s evidence was that Ms Downey's role was to look after his health. We find he did not know what OH’s role was and therefore could not make any assessment of what the contents of the letter to his GP should contain. Ms Downey only ever spoke to the Claimant on the phone. The Claimant was therefore not in a position to criticise Ms Downey’s professionalism.[116]On receipt of the GP report, Ms Downey set up another appointment with the Claimant, and the Claimant attended a telephone consultation with Ms Downey on 31 August 2023.[117]Prior to the Claimant attending the 31 August 2023 OH appointment, on 27 August 2023, the Claimant declared that he was taking annual leave 1-25 September 2023 [1545]. Mr Brown responded on 29 August 2023 and stated “the TOM’s Assistant at Arnos Grove has confirmed your next leave is 24 September until 7 October so you do not have Annual leave from the 1 September. Could you please clarify why you believe you’re on Annual leave from 1 September onwards?” [1545][118]The Claimant’s response the same day was in essence that because he was on suspension, he could take the time off [1560-1561]. Mr Brown confirmed in his next email on 30 August 2023, that he would like the “assurance that you are fit to return to work in their opinion, so that I can grant the outstanding Annual leave you have requested from 1 September to 23 September 2023 inclusive (preceding your next block Annual leave 24 September to 7 October inclusive).” [1560].[119]Following the Claimant’s attendance at the OH appointment with Ms Downey on 31 August 2023, the Claimant wrote to Mr Brown on 1 September 2023 stating, “OH is done could I please have my outstanding annual leave confirmed please” [1560]. Mr Brown responded the same day and explained that he had been told that the Claimant had refused consent to release the OH report and that he “cannot confirm for definite until I have seen it, as if their opinion is that you remain unfit for any work then you cannot return to Annual leave and would need to obtain a further ‘fit note’”. [1559][120]Ms Downey produced another OH report dated 31 August 2023 [1691- 1693]. In this OH report, Ms Downey’s opinion was that the Claimant could now attend meetings. Ms Downey’s report explained that the Claimant had already told Ms Downey that she was wrong and was adamant in this view. The report also said that Ms Downey considered that the Claimant was fit to attend work with adjustments [1692]. Ms Downey’s evidence was that her assessment that the Claimant could now attend meetings was based upon the GP report, which dealt with the Claimant’s physical health and wellbeing and her own assessment that the Claimant was fully competent. Ms Downey’s evidence was that on 1 September the Claimant wrote to her [1685] advising her that he was not consenting to the release of the report because it was “biased” against him and that the referral was concerned with fitness for present duties, not attendance at meetings. The Claimant forwarded the report to Mr Brown and then immediately followed it up with an email to Mr Brown stating, “After reading your last letter it comes across as if you are really trying so hard to stop my wages so I am sending you this report under duress" [1555]. Mr Brown’s evidence was that he did not apply any duress to the Claimant to disclose the report. He had referred the Claimant to OH and said that he would consider the Claimant’s return to work and his leave when he received the report. This is a normal approach and one that he would have taken with anyone else. Had the Claimant continued to withhold the report, he would have made decisions on the basis of the information he had, but that was necessary in this case. We accept Mr Brown’s evidence on this point.[121]Mr Brown responded to the Claimant’s email and explained that he could not see the OH report and asked the Claimant to WhatsApp the report to him. The Claimant WhatsApp messaged Mr Brown his OH report at approximately 10:00 on 1 September 2023 [1557-1558]. On receipt of the WhatsApp, Mr Brown confirmed to the Claimant by email that the Claimant could take the annual leave [1554].[122]The Claimant resigned by email dated 15 September 2023 [1562-1563]. The Claimant set out his last day of service as 19 October 2023. In the resignation email Claimant stated, “It is with great sadness that I am informing you that I shall be retiring from the job on 19th October 2023. This is following a systematic campaign of targeted bullying and harassment in an effort to have me dismissed, from various levels of management within London Underground, encompassing LUOH and third party contractors i.e. Price Waterhouse Coopers and others” [1562]. The Claimant admitted that he decided to resign after Ms Downey cleared him to be able to attend disciplinary meetings. The Claimant’s evidence as to why he resigned was that it all stemmed from the 13 July 2021 grievance, as after that, Ms Simms weaponised the management against him, it never stopped until he left. He said that whoever he came into contact with her whether or not they were more senior than Ms Simms, was part of her nexus and that she was able to influence them.[123]In the Claimant’s written evidence, he stated, “After much pressure, Mr. Dent allocated the investigation to Allister Montgomery, who ultimately did nothing. Faced with this continued mistreatment, I had no choice but to submit my constructive retirement notice”. [paragraph 4.7] Mr Montgomery’s evidence was that he had been tasked with dealing with a complaint that the Claimant had made about Mr Orphanides dated 3 October 2022 [1400- 1401]. Mr Montgomery invited the Claimant to attend an investigation meeting on 14 November 2022. The Claimant attended, but at the meeting, the Claimant explained he would not be engaging with Mr Montgomery in the process because he was in dispute with the First Respondent, and he thought the matter should be referred to an independent investigation. Mr Montgomery was advised that he was independent and so decided to conduct the investigation on the papers. He told the Claimant that he would conduct the investigation on the papers by email dated 27 February 2023 [1648]. Mr Montgomery’s evidence was that he had not completed the report when he found out that the Claimant had resigned in September 2023. Mr Montgomery admitted in evidence that he had not prioritised the Claimant’s grievance outcome as a result.[124]The Claimant’s evidence was that Mr Montgomery closed down the investigation into his grievance against Mr Orphanides. When the allegation was put to Mr Montgomery in oral evidence, Mr Montgomery said that he did not close down the investigation. We find he did not. We do not accept the Claimant’s evidence that the failure of Mr Montgomery to provide his outcome report until June 2024 [1611-1615] amounted to the investigation being closed down. The Claimant had been told that the investigation would be carried out on the papers. The Claimant did not pursue the matter or contact Mr Montgomery to find out what was going on. He did not refer to it in his resignation letter or his third claim form, in which he presented his unfair dismissal claim. We find that the failure of Mr Montgomery to provide an outcome before the Claimant resigned had nothing to do with the Claimant’s resignation. The Claimant’s evidence was that there was no last straw, but it was everything. We do not accept this evidence because in submissions, the Claimant told the Employment Tribunal that he asked for answers, and nobody wanted to hear him talk. He argued that they weaponised the process against him in that he was being sent to CDI, and he had no choice but to save his reputation and his health. We find that this is what the Claimant really believed. What the Claimant says in his third claim form was that it is Ms Downey who cost him his livelihood [110]. The fact that the Claimant’s admitted in evidence that he decided to resign when Ms Downey cleared him to go to disciplinary meeting and that he resigned so close to being told that he was fit to attend disciplinary meetings when all the other matters he complained happened over a period of 2 years leads the Employment Tribunal to find that the Claimant resigned because he did not want to attend a disciplinary meeting at which he believed he would be[125]On 21 September 2023, the Claimant issued his third claim form, which named LUL, Angie Jones and Ms Downey as Respondents.
The Relevant Law
[126]Section 123 Equality Act 2010 (‘EQA’) sets out the time limits in respect of discrimination claims brought under the EQA. Section 123 EQA says: “(1) [Subject to [[section 140B]]] proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.[…..] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[127]When exercising their discretion to allow out-of-time claims to proceed under section 123 EQA, Tribunals may also have regard to the checklist contained in Section 33 of the Limitation Act 1980 (as adapted by the Employment Appeal Tribunal (‘EAT’) in British Coal Corporation v Keeble and ors [1997] IRLR 336.[128]Keeble takes the Section 33 factors listed as: considering the prejudice that each party would suffer if the claim were allowed or not, and to have regard to all the circumstances of the case — in particular, (a). the length of, and reasons for, the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued as cooperated with any requests for information; (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the Claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[129]In Department of Constitutional Affairs v Jones [2008] IRLR 128, the Court of Appeal (‘CA’) emphasised that these factors are a ‘valuable reminder’ of what may be taken into account, but their relevance depends on the facts of the individual cases, and tribunals do not need to consider all the factors in each and every case.[130]Although a tribunal is not obliged to go through every factor in the Keeble list, a tribunal will make an error of law if a significant factor is left out of account: London Borough of Southwark v Afolabi [2003] ICR 800, CA.[131]A tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the Claimant ought to have submitted his or her claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the Respondent on the one hand and to the Claimant on the other.[132]In the more recent decision of Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the Court of Appeal warned tribunals not to take the Keeble factors as the starting point for the tribunal’s approach to the just & equitable extension. The best approach for a tribunal in exercising the discretion is to assess all the factors in the particular case that it considers relevant, including in particular the length of and the reasons for the delay.[133]The EAT in South Western Ambulance Service NHS Foundation Trust v King IRLR 168 EAT, establishes that where a Claimant wishes to assert that there is a continuing act or an act extending over a period of time, there must be findings made that there had been discriminatory acts committed by the Respondent in order to form part of an act extending over a period of time or a continuing state of affairs,[134]Aziz v FDA [2010] EWCA Civ 304, CA: In deciding whether separate incidents constitute part of a continuous act, “one has regard to whether the same individuals or different individuals were involved. This is a relevant factor but not conclusive” [see paragraph 43, per Jackson LJ] Burden of Proof provisions[135]Section 136 of EQA states: “(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 sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.”[136]Pre- Equality Act 2010 House of Lords decision of Igen v Wong [2005] IRLR 258 set out a two stage test that tribunals must apply when deciding discrimination claims. This two stage approach was discussed in the Court of Appeal decision of Madarassy v Normura International plc [2007] EWCA 33, with guidance being provided by Mummery LJ. Since the Equality Act 2010 (although the burden of proof provisions differs in wording to the test set out in Igen), the Appellant Courts and EAT have repeatedly approved the application of the guidance set out by Mummery LJ in Madrassy. In summary, the first stage is where the burden of proof first lies with the Claimant, who must prove on a balance of probabilities facts from which a Tribunal could conclude, in the absence of any other (non-discriminatory) explanation, that the Respondent had discriminated against him. If the Claimant meets the burden and establishes a prima facie case (which will require the Tribunal to hear evidence from the Claimant and the Respondent, to see what proper inferences may be drawn), then the burden shifts and the Respondent must prove that it did not commit the act disproving the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The Respondent will have to show a non-discriminatory reason for the difference in treatment.[137]Tribunals must be careful, and the burden of proof provisions should not be applied in an overly mechanistic manner: see Khan v The Home Office [2008] EWCA Civ 578 (per Maurice Kay LJ at paragraph 12).[138]The approach laid down by section136 EQA requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of section136 does not come into the equation: see Martin v Devonshires Solicitors [2011] ICR 352 (per Underhill J at paragraph 39), approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (per Lord Hope at paragraph 32).[139]It is, however, not necessary in every case for the Tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the Tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal (“EAT”) pointed out in Laing v Manchester City Council [2006] IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.[140]If an Employment Tribunal can make clear positive findings as to an employer’s motivation, we need not revert to the burden of proof at all: Martin v Devonshires Solicitors [2011] ICR 352, EAT. Direct discrimination[141]Section 13 EQA 2010 sets out the statutory position in respect of claims for direct discrimination because of race. “(1) person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[142]Section 39 (2) applies to employers and states: “An employer (A) must not discriminate against and employee of (A)’s (B)… (d) by subjecting B to any other detriment.”[143]When determining questions of direct discrimination, there are, in essence, three questions that a Tribunal must consider:(a) Was there less favourable treatment?(b) The comparator question, and(c) Was the treatment ‘because of’ a protected characteristic?[144]The test for unfavourable treatment was formulated in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 in that case the House of Lords as it was then, said that unfavourable treatment arises where a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work.[145]Lord Hope’s judgment in Shamoon clarifies that a sense of grievance which is not justified will not be sufficient to constitute a detriment.[146]Section 23 EQA deals with comparators and states that: “There must be no material difference between the circumstances relating to each case.”[147]Shamoon held that the relevant circumstances must not be materially different between the Claimant and the comparators, so the comparator must be in the same position as the Claimant, save in relation to the protected characteristic.[148]As exact comparators within the meaning of section 23 EQA are exceptional, it may be appropriate for a Tribunal to draw inferences from the actual treatment of a near-comparator to decide how an employer would have treated a hypothetical comparator: see CP Regents Park Two Ltd v Ilyas [2015] All ER[149]Although unreasonable treatment without more will not cause the burden of proof to shift (Glasgow City Council v Zafar [1998] ICR 120, HL), unexplained unreasonable treatment may: Bahl v Law Society [2003] IRLR 640, EAT.[150]Tribunals should not reach findings of discrimination as a form of punishment because they consider that the employer’s procedures or practices are unsatisfactory, or that their commitment to equality is poor; Seldon v Clarkson, Wright & Jakes [2009] IRLR 267. Victimisation[151]Section 27 EQA sets out the relevant statutory provisions in respect of claims for 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 in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.”[152]Section 39(4) EQA provides that an employer (A) must not victimise an employee of A’s (B): by subjecting B to any other detriment — s.39(4)(d).[153]The issue of causation is fundamental to proving victimisation. In the seminal case of Nagarajan v London Regional Transport 1999 ICR 877, HL: The House of Lords ruled that victimisation will be made out, even if the discriminator did not consciously realise that he or she was prejudiced against the complainant because the latter had done a protected act.[154]Lord Nicholls put it like this in Nagarajan “Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances”.[155]The Code explains that at paragraph 9.11- 9.12. “9.11 Victimisation does not require a comparator. The worker need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act. 9.12 There is no time limit within which victimisation must occur after a person has done a protected act. However, a complainant will need to show a link between the detriment and the protected act.”[156]A considerable length of time may elapse between the protected act being done and the detriment being suffered. (See Chambers v Abbey National plc ET Case No.2200567/98).[157]The Tribunal must determine whether the relevant decision was materially influenced by the doing of a protected act. This is not a ‘but for’ test; it is a subjective test. The focus is on the ‘reason why’ the alleged discriminator acted as s/he did (See West Yorkshire Police v Khan [2001] IRLR 830) Constructive unfair dismissal- section 94 Employment Rights Act 1996 (ERA)[158]Section 95 ERA states: “(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if) –(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”[159]Section 95(1) (c) ERA is colloquially referred to as constructive unfair dismissal or constructive dismissal. Lord Denning in the authoritative Court of Appeal decision of Western Excavation Limited v Sharp [1978] IRLR 27 best summarises the test for constructive dismissal as “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed." (See paragraph 15). Thus, the question is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment.[160]The House of Lords in the case of Malik v Bank of Credit and Commerce International [1998] AC 20 established that it is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee: (See Malik at paragraphs 34h -35d and 45c-46e).[161]At paragraph 35c of Malik, Lord Nicolls sets out that the test of whether there has been a breach of the implied term of trust and confidence is objective. The conduct relied on as constituting the breach must impinge on the relationship that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence that the employee is reasonably entitled to have in their employer. A breach occurs when the proscribed conduct takes place.[162]Nottinghamshire County Council v Meikle [2004] IRLR 703: In that case the Court of Appeal held that what was necessary was that the employee resigned in response, at least in part, to the fundamental breach by the employer; as Keene LJ put it: ''The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by the employer.''[163]Building on Meikle, Elias P in Abbeycars (West Horndon) Ltd v Ford UKEAT/0472/07 (23 May 2008, unreported) said that the true question is whether the breach 'played a part in the dismissal' and this means that if the employee resigns in response to several complaints about the conduct of the employer (some of which were not contractual breaches) it will not be necessary for the Tribunal to consider which was the principal reason for leaving.[164]Langstaff J sitting in the Scottish division of EAT in Wright v North Ayrshire Council [2014] ICR 77 provides further clarity on the Meikle point, where he says “Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause” (see paragraph 20) Analysis and Conclusions[165]We received written submissions from both parties. We read and considered the written submissions, which we found to be very helpful. We heard oral submissions from both parties of approximately 30 minutes each. We took both parties' submissions into consideration in respect of our judgment Direct race discrimination (Equality Act 2010 section 13) Claim 2.[166]The Claimant’s race is black. However, the Claimant did not provide the Employment Tribunal with any facts from which we could conclude that the Respondents (except in respect of Mr Abdullah, which we will deal with later) had discriminated against the Claimant because of his race. The Claimant referred in his written submissions to incidents that took place in the 1990s to assert that there was a culture of racism. However, the Claimant’s argument here didn’t stack up. The Claimant's case was that it was Ms Simms who was racist and therefore introduced the culture of racism, not that there had always been a culture of racism. The Claimant made no allegations against the previous TOM or previous managers to suggest that they were racist. Furthermore, the Claimant’s evidence was that he did not raise a complaint of racism in relation to the various complaints of racism that he had alleged over the years. Even the complaint against Mr Crossley and Mr Wyld was not a complaint on his own behalf, but a cause for concern letter which indicated that the Claimant was not there when Mr Wylde was heard reading out a racist joke, but that it had been reported to him. We consider that it is highly relevant that the Claimant used Mr Abdullah. Ms Ademoye and Mr D’Souza’s examples of interaction with Ms Simms in his grievance to say that Ms Simms was racist, yet none of those witnesses agreed that they had raised the issue of race in respect of their complaints or that Ms Simms was racist. Direct race discrimination (Section 13 Equality Act 2010) Issue 10.1.1 On 6th May 2022 and 15 September 2022, did Mr Abdullah make false statements about the Claimant in an investigation that was held on that day in respect of the following (in italics): The Claimant said that Mr Abdullah was directed first to Kate Whitehouse by Ms Simms and second to PWC stating that the Claimant sought to coerce him into saying that Ms Simms is a racist. The Claimant says that this is a lie. Claimant says Mr Abdullah who he says is white Muslim would not have lied about an employee who was not black African. The Claimant said that Mr Abdullah “made bad comments” about the Claimant’s ethnicity in the last – sharing “Golliwog sweets and laughing” in 2022. This was said to be witnessed by the Claimant declined to say by whom as he said individuals were afraid. He made no contemporaneous complaint. (Claim against London Underground Limited and Mr Sal Abdullah).[167]We found that Mr Abdullah did not make the false statement asserted by the Claimant in the list of issues. We found Mr Abdullah was telling the truth. The Claimant never gave any evidence about what it was that Mr Abdullah was alleged to have said in the interview on 6 May 2022, and did not refer the Employment Tribunal to any section of Ms Whitehouse's interview which would accord with the alleged “false statement”. Neither were we told what Mr Abdullah said on 15 September 2022, which amounted to a false statement; there was no evidence at all on this issue from the Claimant, and we were not told by the Claimant where to look in terms of the documents or evidence. We conclude that, as Mr Abdullah was not making false statements, there was no unfavourable treatment. Even if we are wrong about that, and the statements made 6 May & 15 September 2021 interviews were false, they were not made because of the Claimant’s race. We accept that Mr Abdullah made the statements because he believed it to be the truth, and because of his own experience, he thought it was wrong that Ms Simms was being pursued for false allegations. We did not accept the Claimants’ evidence regarding the allegation that Mr Abdullah handed out golliwog sweets and laughed. We accepted Mr Abdullah’s evidence that he did not, and so there were no facts from which we could infer that the reason why Mr Abdullah made statements at the 6 May & 15 September interviews was because of the Claimant’s race. We consider that Mr Abdullah would have made the same statements in relation to a hypothetical comparator in similar circumstances as the Claimant but of a different race. in those circumstances, we conclude that there has been no race discrimination and the Claimant’s complaint is not well-founded and is Issue 10.1.2 On 6th May 2022, Ms Whitehouse made false statements about the Claimant (in relation to the following in italics) Between March and July 2022 Ms Whitehouse was told to investigate complaint by a third party, Mr Soydul Alum who was being assisted by the Claimant as a workplace colleague, against Ms Simms . Ms Whitehouse breached policies and procedures by making a recommendation to investigate the Claimant for coercing Mr Alum, even though Mr Alum said it did not happen. I wrote to Ms Whitehouse in July 2022 telling her to retract her statement that I had coerced Mr Alum – she refused. This is said to be an act of race discrimination and victimisation because of the protected act of presenting the first ET1 on 23 June 2022. (Claim against London Underground Limited and Kate Whitehouse).[168]We found that Ms Whitehouse did not make any false statements in her report or conclusions, nor were there any breaches of policies. Furthermore, Ms Whitehouse’s report was not made on 6 May 2022. Ms Whitehouse interviewed Mr Abdullah on 6 May 2022. Her report was produced on 15 June 2022. We found that she was diligent in producing her report. There were no facts from which we could draw an inference that the reason why Ms Whitehouse made the conclusions and recommendations was because of the Claimant was black. We accepted Ms Whitehouse's evidence that she did not know Ms Simms personally. Even if we accepted the Claimant’s position that Ms Whitehouse made statements that the Claimant did not like because she was supporting Ms Simms, it still did not provide the Employment Tribunal with any facts from which we could conclude that the reason why Ms Whitehouse made her statements was because of the Claimant’s race. We conclude that Ms Whitehouse would have reached the same conclusions and made the same recommendations in respect of a hypothetical comparator in similar circumstances who was not black. The Direct Race Discrimination (Section 13 Equality Act 2010) 3rd Claim against Ms Jane Downey & London Underground Limited: Issue 12.1-Did Ms Jane Downey write to the Claimant’s GP on 27 June 2023 and mislead him by omitting reference to the Claimant’s suspension and disciplinary proceedings?[169]We found that Ms Downey did not write to the Claimant’s GP and misled him by omitting reference to the Claimant’s suspension and disciplinary proceedings. We found that Ms Downey didn’t mention the Claimant’s suspension and disciplinary proceedings because she assumed that the GP knew about it, and that was a reasonable assumption to make in light of the Claimant’s GP's sick notes. As there was nothing misleading, there was no less favourable treatment. We accepted Ms Downey’s evidence that race had nothing to do with the contents of her letter to the Claimant’s GP. Therefore, we conclude that Ms Downey would have treated a hypothetical comparator of a different race in exactly the same way as the Claimant. In those circumstances, there could be no facts from which we could infer the reason for Ms Downey’s acts was because of the Claimant’s race. There was therefore no direct race discrimination. The Claimant’s complaint is not well-founded and is dismissed. Issue 12.2 Ms Jane Downey lied to the Claimant on 31 August 2023 by telling him that the letter had been automatically generated.[170]We found that Ms Downey did not say that the letter to the Claimant’s GP was automatically generated. We accepted Ms Downey’s evidence that she told him that it was a standard letter. There was therefore no less favourable treatment. The Claimant’s complaint is not well-founded and is dismissed. Harassment related to race (Equality Act 2010 section 26) Issue 3.1.1- Did the First & Second Respondents fail to deal with the Claimant’s grievance of 13 July 2021 as a bullying and harassment complaint, in breach of policy and procedures?[171]We found that the Claimant’s grievance was not dealt with as a harassment and bullying complaint, but that was well reasoned and fair decision that the Claimant never complained about at the time. We therefore conclude that it was not unwanted conduct and was not in any way related to the Claimant’s race. Nick Dent did not make the decision; in any event, we found it was the decision of Ms Costigan. There was therefore no harassment by either Mr Dent or the First Respondent, and therefore the Claimant’s complaint is not well founded and is dismissed. Issue 3.1.2 On 13 July 2021, did Nick Dent share the Claimant’s grievance with Tracy Simms?[172]We found that Mr Dent did not share the Claimant’s grievance with Ms Simms, as Mr Dent's evidence that he did not share it was unchallenged, Gardner. In those circumstances, there was no harassment, and the Issue 3.1.3 - Did Tracy Simms retaliate to that grievance by investigating the Claimant’s personnel file and locating confidential documents, including a COT3 from 2008?[173]We found that there was no retaliation by Ms Simms in looking at the the petition. It was a COT3, and the petition was not confidential. In those circumstances, there was no unwanted conduct and therefore no Issue 3.1.4- On 16 July 2021, did Ms Olivacce send a WhatsApp message[174]We found that Ms Olivacce did send a WhatsApp message to the Claimant Olivacce’s signature in 2008. We accepted Ms Olivacce's evidence that the Claimant had told her that he had forged her signature at around the time she found out why Mr Crossley was not speaking to her. We therefore consider it was perfectly reasonable for Ms Olivacce to ask the Claimant for a copy of the petition and an apology. We conclude that such actions were unwanted conduct as the Claimant refused to engage with Ms Olivacce however, the reason Ms Olivacce sent the WhatsApp and made the allegation was not in any way related to the Claimant’s race, as there were no facts from which we could infer that there was either a difference in race between the Claimant and Ms Olivacce or that race was the reason for Ms Olivacce’s treatment of Claimant. We accepted Ms Olivacce’s reasons for her allegations against the Claimant; Ms Olivacce was never challenged by the Claimant that her reason for her behaviour related to race. We therefore conclude that there was no harassment. The Claimant’s complaint is therefore not well-founded and is dismissed. Issue 3.1.5 -Did Tracy Simms, between 1 August and 20 September 2021, coordinate Ms Olivacce’s shifts to coincide with the Claimant’s to provoke a[175]We found that Ms Simms did not coordinate Ms Olivacce’s shifts with the Claimant. Ms Olivacce’s shifts did not change at all in 12 months. In those circumstances, there was no unwanted conduct, and so there can be no harassment. The Claimant’s complaint is not well-founded and is dismissed. Issue 3.1.6 On 6 September 2021, did Ms Olivacce attend the Cockfosters depot, throw a number of documents at the Claimant and tell him that he had three days to apologise for forging her signature?[176]We found that Ms Olivacce did attend Cockfosters depot, but we did not find that Ms Olivacce threw the documents. We found the documents were in an envelope and so could not be thrown as documents. We found that she did tell him that he had 3 days to apologise for forging her signature. We conclude that it was unwanted conduct that Ms Olivacce attended Cockfosters depot and told the Claimant that he had three days to apologise for forging her signature. However, these comments were not related in any way to the Claimant’s race. It was perfectly reasonable for Ms Olivacce to attend the Cockfosters depot and tell him that he had three days to apologise for forging her signature. The reason Ms Olivacce did this was because the Claimant had not been accountable for his actions. There were no other facts from which we could conclude that the reason for Ms Olivacce’s behaviour was the Claimant’s race; there was no evidence that there was even a difference in race. We therefore conclude that there was no harassment. The Claimant’s complaint is therefore not well-founded and Issue 3.1.7 On 17 November 2021, did Russell Orphanides behave in a hostile, intimidatory and wholly inappropriate manner by stating that he had permission from legal to violate the terms of the COT3 in terms of confidentiality and failing to provide the names of those who had allegedly permitted the breach of confidentiality?[177]We found that Russell Orphanides did not behave in a hostile, intimidating and wholly inappropriate manner by stating that he had permission from legal to violate the terms of the COT3 in terms of confidentiality and failing to provide the names of those who had allegedly permitted the breach of confidentiality. In those circumstances, there was no unwanted conduct and therefore no harassment. The Claimant’s complaint is therefore not wellDirect sex discrimination (Equality Act 2010 section 13)[178]The Claimant was asked in submissions what he said were the facts that suggested that there was a difference in treatment and or harassment related to sex. The Claimant said that all he relied upon was the difference in sex between himself of the Respondents that he alleged sex discrimination against. We conclude that there are no facts from which we could infer discrimination on the grounds of sex as applying to Madarassy, the difference of sex was not sufficient to draw the conclusion that the reason for the treatment was because the Claimant was a male. Issue 2.1.1 On 21 September 2021 fast track Annie Olivacce’s grievance and hear it before the Claimant’s harassment claim of 15th September 2021, contrary to the First Respondent’s policy?[179]We found that the Claimant submitted his grievance after Ms Olivacce’s grievance on 21 September 2021. It was Ms Olivacce who submitted her complaint on 15 September 2021. We therefore conclude that there was no fast tracking of Ms Olivacce’s complaint over the Claimant’s. There was no breach of any of the First Respondent’s policy. In those circumstances, there was no less favourable treatment and therefore no direct sex discrimination. The Claimant’s complaint is therefore not well-founded and Issue 2.1.2 On 13 July 2021 did Nick Dent downgrade the Claimant’s harassment & bullying complaint to a grievance, in breach of policy?[180]We found that there was no such thing as a downgrade in relation to the grievance policy as compared to the harassment and bullying policy. As applied to the Claimant’s grievance, contrary to the Claimant’s evidence, we found that the Claimant did have an accredited manager in respect of harassment and bullying who dealt with his grievance at the appeal stage. There was no breach of policy as an accredited manager had assessed that the Claimant’s complaint did not fall within the criteria of the harassment and bullying policy. In those circumstances, there was no less favourable treatment and therefore no direct sex discrimination. The Claimant’s Issue 2.1.3 On 24 February 2022, by a letter from Russell Orphanides tell the Claimant that Anni Olivacce had not knowingly signed the 2008 COT3 agreement[181]We found that a letter by Mr Orphanides dated 22 February 2022 was received by the Claimant on or around 24 February 2022. However, the letter did not state that Anni Olivacce had not knowingly signed the 2008 COT3 agreement. The Claimant referred to the petition document, which we found was not the 2008 COT3 agreement, of which Ms Olivacce was not a signatory. In those circumstances, there was no less favourable treatment of a letter from Russell Orphanides telling the Claimant that Anni Olivacce had not knowingly signed the 2008 COT3 agreement. If there was no less favourable treatment, there could be no direct sex discrimination, and the Claimant’s complaint is not well founded and is dismissed. Issue 2.1.4 Did the London Underground Limited breach the COT3 by permitting Russell Orphanides to have the COT3 on 17 November 2021[182]We found that Mr Orphanides did not have a copy of COT3 on 17 November 2021. In those circumstances, there was no less favourable treatment; there could be no direct sex discrimination, and the Claimant’s complaint is not well founded and is dismissed. Issue 2.1.5 On 24 February 2022, did Russell Orphanides give the Claimant a warranted ‘suitable advice letter’, which is an informal action within the disciplinary policy?[183]We found that Mr Orphanides did give the Claimant a suitable advice letter. We also found that the letter was warranted. We consider that Ms Olivacce was not an appropriate comparator, as what was alleged against Ms Olivacce was not similar in seriousness or content to that which was alleged against the Claimant. In any event, we found that it was more detrimental to Ms Olivacce to be referred to a disciplinary than it was for the Claimant to receive an informal action that was not a warning nor did it form part of the disciplinary policy. There were 2 different individuals who made the decision about the Claimant’s grievance and Ms Olivacce’s grievance. There were no facts upon which we could infer that the reason why the Claimant was given an informal suitable management advice was because of his sex. The Claimant was, in any event, not treated less favourably than Ms Olivacce by being given the informal suitable management advice, not least because Ms Olivacce also received a suitable management advice in addition to being referred to a disciplinary. Furthermore, there were no facts from which we could infer that the reason for the Claimant’s treatment was because of his sex. In those circumstances, there was no direct sex discrimination, and the Claimant’s complaint is not well-founded and is dismissed. Harassment related to sex (Equality Act 2010 section 26) Issue 4.1.1- Did First & Second Respondents fail to deal with the Claimant’s grievance of 13 July 2021 as a bullying and harassment complaint, in breach of policy and procedures?[184]We found that the Claimant’s grievance was not dealt with as a harassment and bullying complaint, but that was well reasoned and fair decision that the Claimant never complained about at the time. We therefore conclude that it was not unwanted conduct and was not in any way related to the Claimant’s sex. In any event, Nick Dent was the same sex as the Claimant and did not make the decision. We found it was the decision of Ms Costigan. There were no facts from which we could infer that Ms Costigan’s decision was related to the Claimant’s sex. There was therefore no harassment by either Mr Dent or the First Respondent and therefore the Claimant’s complaint is not well Issue 4.1.2- On 13 July 2021 did Nick Dent share the Claimant’s grievance with Tracy Simms?[185]We found that Mr Dent did not share the Claimant’s grievance with Ms Simms, as Mr Dent’s evidence that he did not share it was unchallenged, Gardner. In those circumstances, there was no unwanted conduct and no harassment, and the Claimant’s complaint is not well-founded and is Issue 4.1.3- Did Tracy Simms retaliate to that grievance by investigating the Claimant’s personnel file and locating confidential documents, including a[186]We found that there was no retaliation by Ms Simms in looking at the the petition. It was not a COT3, and the petition was not confidential. In those circumstances, there was no unwanted conduct and therefore no Issue 4.1.4 On 16 July 2021, did Ms Olivacce send a WhatsApp message[187]We found that Ms Olivacce did send a WhatsApp message to the Claimant Olivacce’s signature in 2008. We accepted Ms Olivacce's evidence that the Claimant had told her that he had forged her signature at around that time. We therefore consider it was perfectly reasonable for Ms Olivacce to ask the Claimant for a copy of the petition and an apology. We conclude that such actions were unwanted conduct as the Claimant refused to engage with Ms Olivacce however, the reason Ms Olivacce sent the WhatsApp and made the allegation was not in any way related to the Claimant’s race, as there were no facts from which we could infer that there was either a difference in sex between the Claimant was the reason for Ms Olivacce’s treatment of Claimant. We accepted Ms Olivacce’s & Ms Ademoye's reasons for their allegations against the Claimant. Ms Olivacce was never challenged by the Claimant that her reason for her behaviour related to sex. We therefore conclude that there was no harassment. The Claimant’s Issue 4.1.5 Did Tracy Simms, between 1 August and 20 September 2021, co- coordinate Ms Olivacce’s shifts to coincide with the Claimant’s shifts to provoke a confrontation with the Claimant?[188]We found that Ms Simms did not coordinate Ms Olivacce’s shifts with the Claimant. Ms Olivacce’s shifts did not change at all in 12 months. In those circumstances, there was no unwanted conduct, and so there can be no harassment. The Claimant’s complaint is not well-founded and is dismissed. Issue 4.1.6 On 6 September 2021, did Ms Olivacce attend the Cockfosters[189]We found that Ms Olivacce did attend Cockfosters depot, but we did not find that Ms Olivacce threw the documents. We found the documents were in an envelope and so could not be thrown as documents. We found that she did tell him that he had 3 days to apologise for forging her signature. We conclude that it was unwanted conduct that Ms Olivacce attended Cockfosters depot and told the Claimant that he had three days to apologise for forging her signature. However, these comments were not related in any way to the Claimant’s sex. It was perfectly reasonable for Ms Olivacce to attend the Cockfosters depot and tell him that he had three days to apologise for forging her signature. The reason Ms Olivacce did this was because the Claimant had not been accountable for his actions. There were no facts other than the difference in sex between the Claimant and Ms Olivacce reason for her actions. We therefore conclude that there was no Direct Sex Discrimination 3rd Claim against Ms Jane Downey & London Underground Limited: Issue 15.1-Did Ms Jane Downey write to the Claimant’s GP on 27 June 2023 and mislead him by omitting reference to suspension and disciplinary proceedings?[190]We found that Ms Downey did not write to the Claimant’s GP and misled him by omitting reference to the Claimant’s suspension and disciplinary proceedings. We found that Ms Downey didn’t mention the Claimant’s suspension and disciplinary proceedings because she assumed that the GP knew about it, and that was a reasonable assumption to make in light of the Claimant’s GP's sick notes. We accepted Ms Downey’s explanation for the content of the letter to the GP and why she did not mention the Claimant’s suspension and disciplinary proceedings, as she assumed the Claimant’s GP already knew. As there was no misleading by Ms Downey, there could be no less favourable treatment. We accepted Ms Downey’s evidence that she would have treated the Claimant the same way if he were female; therefore, we conclude we consider that Ms Downey would have treated a hypothetical comparator of a different sex in exactly the same way as the Claimant. There were no facts from which we could infer that the reason for Ms Downey’s conduct was the Claimant’s sex. The Claimant’s complaint is not well-founded and is dismissed. Issue 15.2 -Did Ms Jane Downey lie to the Claimant on 31 August 2023 by telling him that the letter had been automatically generated?[191]We found that Ms Downey did not say that the letter to the Claimant’s GP was automatically generated. We accepted Ms Downey’s evidence that she told him that it was a standard letter. There was therefore no less favourable treatment. The Claimant’s complaint is not well-founded and is dismissed. Victimisation (Equality Act 2010 section 27)[192]All the Respondents accepted that the Claimant did carry out protected acts of (issue5.1.1 ) complaining of harassment by Tracy Simms in a grievance presented to Nick Dent on 13 July 2021, (issue5.1.2 ) bringing these proceedings on 1 May 2022 against Tracy Simms, (Issue5.1.3 ) providing Further and Better Particulars of the Claimant’s complaints within these proceedings on 14 October 2022.[193]During the submissions, the Claimant said that he was dismissed because of a protected act. The Employment Tribunal confirmed to him that there was no claim before the Employment Tribunal suggested that he was presenting a claim for dismissal by reason of victimisation, which the Claimant accepted. Although there was no claim before the Employment Tribunal of dismissal by reason of victimisation. If there was such a claim with the facts that were presented to us, we would have found that there was no such victimisation. We found that the Claimant resigned because he didn’t want to attend a CDI meeting; it was Ms Downey’s advice that led the Claimant to resign. Ms Downey was professional in her advice, and so we would not have found that Ms Downey’s advice was not a result of any of the Claimant’s protected acts. Issue 5.2.1- Did the First & Second Respondents fail to deal with the Claimant’s grievance of 13 July 2021 as a bullying and harassment complaint, in breach of policy and procedures?[194]We found that the Claimant did not provide any indication of a breach of policy in the way that the Claimant’s grievance was dealt with as a grievance rather than a harassment and bullying. We found that it was not detrimental, and therefore we conclude that it was not a detriment and there can be no victimisation. In the circumstances, the Claimant’s complaint is not wellIssue 5.2.2- First & Second Respondents- on 13 July 2021, did Nick Dent share the Claimant’s grievance with Tracy Simms?[195]We found that Mr Dent did not share the Claimant’s grievance with Ms Simms, as Mr Dent's evidence that he did not share it was unchallenged, Gardner. In those circumstances, there was no detriment, so there could be no victimisation, and the Claimant’s complaint is not well founded and is Issue 5.2.3 Did Tracy Simms retaliate to that grievance by investigating the Claimant’s personnel file and locating confidential documents including a COT3 from 2008?[196]We found that there was no retaliation by Ms Simms in looking at the the petition. It was a COT3, and the petition was not confidential. In those circumstances, there was no detriment and therefore no victimisation. The Claimant’s complaint is therefore not well-founded and is dismissed. Issue 5.2.4 On 16 July 2021, did Ms Olivacce, send a WhatsApp message[197]We found that Ms Olivacce did send a WhatsApp message to the Claimant Olivacce’s signature in 2011. Ms Olivacce knew about the Claimant’s grievance against Ms Simms. However, we accepted Ms Olivacce's reason for why she asked Ms Ademoye to send the text and the content of it, because she believed that the Claimant was getting away with detrimental conduct. We conclude that it was not a detriment to the Claimant to have received the WhatsApp. We also found that the reason Ms Ademoye sent the message on to the Claimant was because of her friendship with both and that she wanted to nip the matter in the bud. Furthermore, we found that the Claimant did not give evidence that the reason why Ms Olivacce or Ms Ademoye sent the WhatsApp was because he had made a protected act, nor did he challenge either Ms Olivacce or Ms Ademoye's evidence that they did not victimise him. We conclude that the Claimant’s grievance did not have a material influence on either Ms Olivacce’s or Ms Ademoye's reason for sending the Claimant the text message. We accepted Ms Olivacce’s reasons for her allegations against the Claimant. Ms Olivacce was never challenged by the Claimant about her reason for her behaviour. We therefore conclude that there was no victimisation. The Claimant’s Issue 5.2.5 - Did Tracy Simms, between 1 August and 20 September 2021, coordinate Ms Olivacce’s shifts to coincide with the Claimant’s to provoke a[198]We found that there was no coordination by Ms Simms in looking at the Claimant’s file to obtain the COT3, as Ms Olivacce's shifts were not changed. In those circumstances, there was no detriment and therefore no victimisation. The Claimant’s complaint is therefore not well-founded and is Issue 5.2.6 -On 6 September 2021, did Ms Olivacce attend the Cockfosters[199]We found that Ms Olivacce did attend the Cockfosters depot and tell the Claimant he had 3 days to apologise. We conclude that this was a detriment because by attending, Ms Olivacce was challenging the Claimant in a public forum and referring to 3 days created some pressure on the Claimant, although we found that Ms Olivacce was entitled to make the request as the Claimant had admitted to her that he had forged her signature. Ms Olivacce did know about the Claimant’s grievance against Ms Simms but there was no evidence that Ms Olivacce knew about the Claimant’s Employment Tribunal claim dated 1 May 2022 at that time. Notwithstanding, we accepted Ms Olivacce’s reason for why she attended the Cockfosters depot and asked the Claimant to apologise as the Claimant had not engaged with her and she wanted him to be accountable for his behaviour in forging her signature now that she had proof. We therefore conclude that the Claimant’s protected act of making a grievance about Ms Simms had no material influence on Ms Olivacce’s decision to attend the Cockfosters depot and tell the Claimant he had 3 days to apologise for forging her signature. The Issue 5.2.7 - On 3 November 2022 did Amy Owen suspend the Claimant and subject him to a disciplinary investigation (CDI). The Claimant alleges that Ms Owen acted in that way because he brought these proceedings against the fourth Respondent (and others) and, in particular, because he served Further and Better Particulars on 14 October 2022.[200]We found that the Claimant was suspended and referred to a CDI by Ms Owen. We conclude that both amounted to detriments. However, the Claimant was alleging victimisation against Ms Owen before she suspended the Claimant or referred him to a CDI. The Claimant asserted then that the reason she suspended him was because to support Ms Simms. We found that Ms Owen did not know Ms Simms personally and was not her friend. We conclude that the protected acts of the Claimant’s Employment Tribunal claim and the further and better particulars could not have had a material effect on Ms Owen in suspending the Claimant and referring him to a CDI, as Ms Owen did not know about the Employment Tribunal claim until after she had both suspended the Claimant and referred him to a CDI. Furthermore, we found that the Claimant didn’t genuinely believe that Ms Owen took the action she took because of his Employment Tribunal claim, but rather to support Ms Simms. We didn’t accept that was the reason but accepted Ms Owen's evidence that her reason was based upon the findings of the PWC report. In the circumstances, there has been no victimisation, and the Claimant’s complaint is not well-founded and is dismissed Issue 11.2.1 On 6th May 2022 and 15 September 2022 Mr Abdullah making false statements about the Claimant in investigations. The Claimant said that Mr Abdullah reported first to Kate Whitehouse and secondly to PWC that the Claimant sought to coerce him into saying that Ms Simms is a racist. The Claimant says that this is a lie and that he never coerced Mr Abdullah.[201]We found that Mr Abdullah did not make a false statement that the Claimant sought to coerce him into saying that Ms Simms is a racist at the Ms Whitehouse interview on 6 May 2022. We found that Mr Abdullah believed that to call Ms Simms racist was a lie. Furthermore, Mr Abdullah did not say at any time in his interview with PWC that the Claimant sought to coerce him into saying that Ms Simms is a racist. Mr Abdullah only referred to the possible coercion of others in that interview. We found that Mr Abdullah did know about the Claimant’s 13 July 2021, but we accepted that his reason for stating that the Claimant tried to coerce him to lie and say that Ms Simms was racist he had experienced false allegations about himself before, and he believed that the allegations against Ms Simms were untrue. In those circumstances, there is no detriment, and so there can be no victimisation. Material influence. The Claimant’s complaint is not well-founded and is Issue 11.2.2 On 6th May 2022, Ms Whitehouse made false statements about the Claimant. The Claimant explained that between March and July 2022 Ms Whitehouse was told to investigate a complaint by a third party, Mr Soydul Alum who was being assisted by the Claimant as a workplace colleague, against Ms Simms. Ms Whitehouse breached policies and procedures by making a recommendation to investigate the Claimant for coercing Mr Alum, even though Mr Alum said it did not happen. I wrote to Ms Whitehouse in July 2022, telling her to retract her statement that I had coerced Mr Alum – she refused. This is said to be an act of race discrimination and victimisation because of the protected act of presenting the first ET1 on 23 June 2022.[202]We found that Ms Whitehouse did not make any false statements in her report or conclusions, nor were there any breaches of policies. Furthermore, Ms Whitehouse's report was not made on 6 May 2022. Ms Whitehouse interviewed Mr Abdullah on 6 May 2022. We found that she was diligent in producing her report. Her report is 15 June. We also found that the Claimant did not submit an ET1 on 23 June 2022; the Claimant’s first ET1 was submitted on 1 May, and Ms Whitehouse did not know of the Claimant's claim form dated 1 May 2022 [gap in findings]. In those circumstances, the outcome of her report and recommendations could not have been materially influenced by the Claimant’s protected act. The Claimant’s complaint is not well-founded and is dismissed. Issues 11.2.3- On or after July 2022 (upon receipt of the Claimant’s letter) did Ms Whitehouse refuse to retract the statement of 6 May 2022.[203]We found that Ms Whitehouse was asked to retract her report of 15 June 2022. We therefore conclude that Ms Whitehouse was not asked to retract a statement on 6 May 2022. In those circumstances, there is no detriment. Even if we had found that the statement 6 May 2022 referred to was a case of the Claimant having got his dates mixed up and he really meant the 15 June 2022 report, whilst would have concluded that was a detriment we would have also concluded that there was no victimisation as there was no evidence that by 15 July 2022 Ms Whitehouse knew of the Claimant’s claim dated 1 May 2022 or that it material influenced her. The Claimant’s complaint is not well-founded and is dismissed. Issue 11.2.4 On 6th May 2022 did Ms Ademoye make false statements about the Claimant. The Claimant said that in the PWC Report – 19/10/22 – Ms Ademoye told the investigator – “I heard Mr Ofoniama encourages people to say for example that it was because of their skin colour and that’s why it didn’t favour them”. She was interviewed by Kate Whitehouse prior to this date and said the same thing. The Claimant said that he had represented Ms Ademoye in 2018/19. The Claimant denies ever saying that he encouraged people to say treatment was because of skin colour. (Claim against London Underground Limited and Ms Oluyemi Ademoye)[204]We found that Ms Ademoye did state “I heard Mr Ofoniama encourages people to say, for example that it was because of their skin colour and that’s why it didn’t favour them” in her interview with PWC, however, this interview was on 1 October 2022, not the 6 May 2022. Furthermore, Ms Ademoye was not interviewed by Ms Whitehouse, so she did not repeat this statement to Ms Whitehouse. We conclude that Ms Ademoye did not make a false statement when she stated I heard Mr Ofoniama encourages people to say, for example, that it was because of their skin colour and that’s why it didn’t favour them. She was not making a statement of fact but repeating a rumour. Objectively, no reasonable employee would have a grievance against someone regarding answering a question about rumours that were heard in the context of a place of work, such as the Depot, where rumours were the norm and explaining what rumours were heard. In those circumstances, it was not a detriment. Even if we are wrong and it was a detriment, we accepted Ms Ademoye’s evidence that she did not repeat the rumours because of the Claimant’s grievance against Ms Simms. In those circumstances, we conclude that the Claimant’s grievance had no material influence on Ms Ademoye’s decision to repeat that the Claimant encourages people to say, for example, that it was because of their skin colour and that’s why it didn’t favour them. The Claimant’s complaint is not well-founded and Issue 11.2.5 On 6th May 2022 did Ms Owodunni make the following false statements about the Claimant:[205]The Claimant withdrew this complaint, and it is dismissed upon withdrawal. Victimisation (Claim 3) against London Underground and Ms Jane Downey[206]The Claimant alleged, in respect of his allegations against Ms Doney, as protected acts, the complaint of harassment against Ms Simms in a grievance presented on 13 July 2021 and the bringing of proceedings on 1 May 2022 against Ms Simms. Issue 19.1 In August 2023 Ms Downey misleading the Claimant’s doctor and lying to the Claimant. Ms Downey wrote to the Claimant’s doctor on 27 June 2023 asking for information about his health, without stating that he was suspended facing a disciplinary meeting. The Claimant’s GP showed this letter to him in late July / early August 2023 – prior to his consultation on 31 August 2023.[207]Whilst it was the case that Ms Downey did know about the Claimant’s grievance against Ms Simms and his Employment Tribunal proceedings, we found that Ms Downey did not mislead the Claimant’s GP. We considered that the Claimant had an unjustified sense of grievance and that, objectively, not telling the Claimant’s GP about his suspension and disciplinary meeting was not a detriment. Furthermore, we found that the Claimant says that Ms Downey did not lie to the Claimant in stating that she had not written the letter, but that it had been automatically generated. Notwithstanding, we also found that Ms Downey acted professionally at all times and so conclude that Ms Downey was not materially influenced to write her 27 June 2023 letter to the Claimant’s GP without mentioning the Claimant’s suspension and disciplinary meeting, because of the Claimant’s protected acts. We conclude that there had been no victimisation of the Claimant by Ms Downey, and the Claimant’s complaint is not well-founded and is dismissed. Unfair dismissal Issue 8.1- Did the London Underground Limited commit acts of direct discrimination, harassment and victimisation from July 2021 until September 2023, as identified in the three tribunal claims he has presented and set out in the lists of issues.[208]We have concluded that none of the Respondents carried out any acts of discrimination, harassment or victimisation against the Claimant from July 2021 – September 2023 and in those circumstances, there can be no breach of contract that amounted to fundamental breach of contract. It follows that if there were no fundamental breach or breaches of contract, there was no dismissal.[209]In any event, even if we had found that there was a fundamental breach of contract, we would have concluded that the Claimant did not resign in response to the breach because we found that the reason for the Claimant’s resignation was because he did not want to face a CDI because he was convinced that he would have been found guilty and dismissed. The Claimant confirmed this during his submissions in any event. The Claimant was not dismissed unfairly or at all. The Claimant’s complaint is therefore not well-founded and is dismissed.[210]Given that we did not find any acts of discrimination, harassment or victimisation, we do not need to consider whether the Claimant’s complaints are in time. However, in relation to claim 1, only issues 2.1.3 & 2.1.5 are in time, as any acts before 12 December 2022 are out of time. In relation to Claim 2, any acts before 9 May 2023 are out of time, and every act alleged is out of time. In respect of claim 3, any acts before 20 June 2023 are out of time. The Claimant's written submissions argue that the Employment Tribunal should look at his claim holistically and that there was a nexus of people (the Claimant lists Tracy Simms, Nick Dent, Mike Smith, Alan Gardner, Joe Brown, Amy Owens, Jane Downey, Russell Orphanides and Annie Ollivacci and others) involved with increased escalation that demonstrates a pattern. However, we did not find that. Some of the names mentioned in the Claimant’s list of people that were the factual nexus, as he refers to, did not know each other, for example, Amy Owen and Jane Downey did not know anyone at the Depot. The Claimant asserted that his list of people was acting in coordination with each other. Again, we didn’t find that. We found that the Claimant was mounting a campaign against TS. The only reason there was any nexus was because the Claimant believed that everyone was acting in support of TS. They clearly were not. In those circumstances, we would not have found that there was a continuing act. Furthermore, we would not have exercised our discretion to extend time because the Claimant was aware of the time limits since 2011 and provided no reason to us why he did not bring his claims in time. Costs Application[211]After oral judgment was given, the Respondents applied for costs against the Claimant. Ms Thomas provided a schedule of costs of £103k with a skeleton argument, a costs warning email sent on 11 December 2025 to the Claimant (the day before the costs application), which was provided to the Claimant. Ms Thomas explained that the Respondents were limiting their costs from £103,000 to £20,000 so that the Employment Tribunal could award summary costs.[212]In summary, Ms Thomas’ oral submissions on behalf of the Respondents were that the Claimant behaved unreasonably and vexatiously. The Claimant could not have had any reasonable belief in the allegations he was making. Ms Thomas referred to all the points set out in the judgment (as read out) where the Employment Tribunal found that the Claimant was not telling the truth. Ms Thomas acknowledged that the Claimant was a litigant in person but considered that it was not an excuse for his conduct. The Claimant had 4 preliminary hearings and was represented by counsel at all 3.[213]The Claimant had told the Employment Tribunal that he attended Ms McGibbons’ Employment Tribunal. The Claimant singularly refused to refer to documents in this case. He insisted on including Respondents where there was no issue of vicarious liability; the First Respondent had accepted vicarious liability. The Claimant must have known early on that his claim was not supported by evidence, e.g. the findings of Mr Gardner in respect of his grievance, disclosure and even when witness statements were disclosed. He advanced different arguments in his witness statement but didn’t address them. He often didn’t know his case was. He persisted in claims where there was no evidence. He put forward things that were contrary to his case and in relation to findings in the previous ET proceeding (Ms Gibbons). This is clearly a campaign against Ms Simms. This is the second set of proceedings that Ms Simms subjected to, proceedings that he knows an Employment Tribunal has rejected a race discrimination complaint against Ms Simms. It is a public sector organisation it has been put to vast expenses. The Claims were not properly pursued when it came to it. The Claimant was not put on a costs warning earlier. It was felt that unlikely that the Claimant would take heed. The Solicitor’s Regulation guidance is broader than not to give costs warnings when the person is employed.[214]The Claimant’s response to the costs application, in summary, was that his claim was justified. He knew what he went through. He included Respondents as named Respondents because they were involved they acted detrimentally to him. The Claimant admitted that he did not research the law and said it was because he had things to do and referred to his family. He argued that he brought a genuine claim.[215]The summary of the information that the Claimant provided regarding his means was that he had no employment and was retired. He initially said that his pension income was one number, but when pushed admitted that it was more and stated that it was gross £1601 per month. The Claimant said that he had to pay child maintenance out of his pension for his 16 year old son, who does not live with him but lives with his mother. The Claimant has 3 children at home, ages 9, 5 (a son with autism) and 3. The Claimant stated that his wife doesn’t work. He has no mortgage but pays rent to a housing association of £550 pcm. When asked if there was anything else he wanted to tell us about his financial situation, the Claimant said no. When asked if he was looking for other work, he said that, being diagnosed with diabetes, his health was not too good; he said that it was affecting his eyes, and he does not sleep properly and has sores on his legs that are not healing. He admitted that he has recently applied for benefits, but doesn’t know yet what he will get. He accepted that his wife receives benefits for the children, but he said he did not know what they were. Ms Thomas raised the issue of the Claimant having received a lump sum on retirement in 2023. The Claimant admitted that he received a lump sum of £134,000 but said he received it 18 months ago and that it had gone. When asked what it was spent on, the Claimant said that he tried to do an investment but it didn’t work out. Law on costs[216]In the Employment Tribunal Procedure Rules, the section on Costs Orders and Preparation Time Orders is contained in rules 72 to 82 of The Employment Tribunal Procedure Rules 2024 (‘ETPR’). Rule 74 deals with when a costs order may or should be made. Rule 74 states: “74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or […..] (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned….”[217]When an application for costs is made, the Employment Tribunal should follow through three stages to make the decision. The first stage has one (or more) of the criteria (for costs to potentially be awarded) as set out in the rules been met. In this particular case, the Respondents rely upon rule 74(2) (a) and rule 74(2) (b). If there is no criterion in the rules that is met, there can be no order for costs. But if there is a criteria that is met, the Employment Tribunal must identify which rule or rules contain the criteria which has been satisfied (and why). The Employment Tribunal must ask if the rule that is met is one which requires the Tribunal to consider making an award, or is it one which says the Tribunal “may” consider making an award. Either way, if the criteria for a costs order are met, that means that the Tribunal has discretion to make an award, but it is not obliged to. Then the Employment Tribunal should identify what the relevant factors are to be taken into consideration in the case, and, taking into account all of the relevant factors (and ignoring anything which is irrelevant), ask itself should an award be made.[218]If the Employment Tribunal decides that an award is to be made, then the question is what is the amount of the award? (And what is the time for payment, etc).[219]Where the argument is that the party has acted “vexatiously, abusively, disruptively or otherwise unreasonably” then the only conduct that is taken into account is that which is (either the bringing of the proceedings or) the way that the litigation has been conducted. The conduct in question will be relevant to whether the criteria in Rule 74(2)(a) are met and/or whether, in all the circumstances, the Tribunal should exercise its discretion to make a costs order.[220]For conduct to be vexatious, there must be evidence of some spite or desire to harass the other side, or the existence of some other improper motive. Simply being ‘misguided’ is not sufficient to establish vexatious conduct (See AQ Ltd v Holden [2012] IRLR 648, EAT)[221]Costs are the exception rather than the rule (see Yerrakalva v Barnsley [2011] EWCA Civ 1255). Thus, the mere fact alone that the criteria under the rules have been met does not establish that there is a general rule that an Employment Tribunal is to make a costs order in such circumstances.[222]Costs, if awarded, must be compensatory, not punitive. If the argument that there has been unreasonable conduct is made, then the whole picture of what happened in the case is potentially relevant. The Court of Appeal in McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA suggests that Employment Tribunals should have regard to the nature, gravity, and effect of a party’s unreasonable conduct. However, it is necessary to identify the specific conduct, and decide what, specifically, was unreasonable about it and analyse what effects it had. Some causal link between the conduct and the costs sought by the other party is required. (See Yerrakalva v Barnsley ).[223]The fact that a costs warning was made, even one which is clear, detailed, and well-timed, and which identifies the precise basis on which the application was later made, does not guarantee that an order will be made.[224]A relevant factor is what advice did the party have? And from whom? When was the advice given? It can be a double-edged sword that a party to have taken legal advice. If they seek to argue that, since a lawyer advised them that the claim had merit, it was not unreasonable to pursue it, in all likelihood, they will have to waive privilege over the legal advice to make such an argument. On the other hand, the opposing party might seek to argue that the fact that the paying party had legal advice available shows that they ought to have understood the claim was hopeless, and/or that their conduct was inappropriate, and/or that a settlement offer that had been made was a good one. However, there is no requirement to do so to defend itself against the latter inference; where privilege is not waived, the Tribunal will not make assumptions that the party specifically received advice that they were acting unreasonably, but the fact that advice was available to them is likely to undermine an argument that, as a litigant in person, they could not reasonably have been expected to anticipate the arguments being raised by the costs application.[225]Rule 82 ETPR states: “Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.”[226]As per rule 82 “ability to pay” is something that “may” be taken into account at each of the last two stages of the decision-making. That is: should an award be made at all; if so, what is the size of the award (and the timetable for payment). The Tribunal is not obliged to take “ability to pay” into account but should specify whether it has done so or not (and, if not, why not). Generally speaking, where a party wants the Tribunal to decide that they do not have the ability to pay, then the onus is on them to firstly raise the point and then provide evidence to back up the argument.
Conclusion
[227]We had regard to the authorities as set out in Ms Thomas’ skeleton. The application for costs against the Claimant was made on the basis of rule 74(2) (a) and 74(2) (b). Dealing first with rule 74(2)(a), we find the threshold has been reached as regards vexatious behaviour. Our reasons are that the Claimant attended the Tribunal of Ms McGibbon and knew that no findings had been made against her, yet submitted evidence of Mr Duru that the McGibbon matter was evidence of her racism. Furthermore, we made a finding that the Claimant mounted a campaign against Ms Simms, finding that she was behind everything that happened to him that he did not like and raising grievances when Ms Simms was doing her job and he knew she was doing her job. He brought proceedings against her out of spite. So we consider that he did this vexatiously.[228]We consider that the threshold of no reasonable prospects of success under rule 74(2) (b) and unreasonable behaviour (under rule 74(2)(a)) has been met (we recognise these are different tests, but in this case the same evidence supports both). The Claimant did not do any research himself but had been advised by lawyers until recently, he introduced the issue of the legal advice as a reason why he should not have costs awarded against him and then was unable to tell us that he was advised his prospects were good. It is notable that he was not legally represented at these proceedings. The Claimant was reckless as to whether his claim had any chance of success. He made little to no effort to put his case forward or challenge evidence; he rarely, if ever, looked at or referred to documentation, relying entirely on Ms Thomas for document references. We considered he was a litigant in person, but that did not mean that it was for the Respondents' counsel or the Employment Tribunal to put forward his case. He didn’t have any evidence to support a significant number of his allegations at all.[229]Having met the criteria, we exercise our discretion to make an award of costs of £20k. The Claimant has a monthly income of £1600 and outgoings of approximately £700. He had a £134,000 lump sum 2 years ago that he says he has spent. He is not looking for work because he says his health is not good, although he had diabetes when he was working. We do not accept that he has spent all of £134k; the Claimant had no credibility in telling us this, he gave no detail as to how the money was spent until pushed and then came up with a generic excuse as an investment going bad, which we do not accept. Furthermore, he initially insisted that he had no income until he was reminded that he had a pension, and then he was reluctant to provide us with details of his pension income, giving us a lower number and then, when challenged, only then admitted his pension income was higher. We simply do not believe that he has less than £20k of the lump sum remaining. Furthermore, he has £500 disposable income per month.[230]We order payment within 28 days. Approved by: