Mr B Sackey and Others v Royal Mail Group Ltd: 3305766/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 3305766/2022
Between
Mr Bedford Sackey Mr Louis Ndingane Mr Michael Beharry Mr Abdirisaq Osman Miss Gifty Kollman Mr Mayawa Kolawole Mr Hussein Kahia Mr Robie Hussein Mr Felix Homa Mr Areas Birie Mr Omer Ahmed Mr Fuaad AhmedClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge HutchingsMr Otchie (instructed by counsel) for claimantMr Franklin (instructed by counsel) for respondentDate 25 March 2025
JUDGMENT
It is the unanimous judgment of this Employment Tribunal that:[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of victimisation is not well-founded and is dismissed.
REASONS
[1]The claimants are all employed by Angard Staffing Solutions Ltd (“Angard”), a wholly owned subsidiary of the respondent which provides agency workers to the respondent as and when they are required. The respondent is a postal service and courier company. All claimants are employed by Angard in the role of mail processor, working different shift patterns (weekends, part time, early shift and/or late shift). They undertake work for the respondent at the National Distribution Centre (“NDC”) at Crick in Northamptonshire.[2]These proceedings are brought by 12 claimants. Pursuant to rule 37 of the Employment Tribunal Rules 2024, which provides that where the Tribunal considers that two or more claims give rise to common or related issues of fact or law, the Tribunal may make an order specifying one or more of those claims as a lead case and staying the other claims (“the related cases”) pending judgment in the lead claims.[3]The lead cases and claimants in these proceedings are: 3.1. Mr Bedford Sackey: 3305766/2022; 3.2. Mr Louis Ndingane: 3305768/2022; and 3.3. Mr Michael Beharry: 3305775/2022, the “lead claimants”.[4]The related cases and claimants in these proceedings are: 4.1. Mr Abdirisaq Osman: 3305767/2022; 4.2. Miss Gifty Kollman: 3305769/2022; 4.3. Mr Mayawa Kolawole: 3305770/2022; 4.4. Mr Hussein Kahia: 3305771/2022; 4.5. Mr Robie Hussein: 3305772/2022; 4.6. Mr Felix Homa: 3305773/2022; 4.7. Mr Areas Birie: 3305774/2022; 4.8. Mr Omer Ahmed: 3305776/2022; and 4.9. Mr Fuaad Ahmed: 3305777/2022.[5]The Tribunal will send a copy of this reserved judgment to all claimants by post.[6]ACAS consultation started on 25 March 2022 and a certificate was issued on 6 May 2022.[7]By an ET1 claim form dated 19 May 2022 and undated amended Particulars of Claim filed the claimants make the following claims: 7.1. Section 13 of the Equality Act 2010: direct race discrimination; and 7.2. Section 27 of the Equality Act 2010: victimisation.[8]In summary the claimants allege: 8.1. that they were treated less favourably than a non-Black agency worker in the role of mail processor because of their race in that the scores they received following their completion of online tests taken in November 2021 as part of their applications for a permanent mail processor role were incorrect; and 8.2. these scores had been falsified by someone employed by the respondent. The claimants’ race is Black. The claimants rely on a hypothetical nonBlack agency worker employed as a mail processor. 8.3. That as a result of a 2019 and 2021 petition (signed by some of the claimants) and communications in 2019 with Mark Pawsey MP the claimants were victimised, alleging that they were subject to the following behaviour: that they were given incorrect scores in the November 2021 test and as a consequence were not invited for interview; or that they were not given permanent posts with the respondent.[9]By an ET3 response form and Grounds of Resistance dated 17 June 2022 and amended Grounds of Resistance dated 9 January 2023 the respondent denies all allegations, asserting that the claimants received the correct scores.[10]Parties agree that the claims are brought in the time limit set out in section 123 of the Equality Act 2010. Evidence and procedure[11]The case was listed for 6 days in February 2025.[12]We considered the following documents which the parties submitted in evidence: 12.1. An agreed hearing file of 316 pages; 12.2. A chronology; and 12.3. The respondent’s cast list.[13]On day 1 of the hearing Mr Otchie sought our permission to admit an email dated 15 December 2021 from a generic Royal Mail job notification email address to Mr Sackey. Noting that the respondent could not see the relevance of the email, Mr Franklin did not object to the email being admitted. We admitted the email in evidence.[14]During questioning of Mr Sackey on day 1, Mr Franklin referred to tables at pages 248 to 253 of the hearing file. The respondent says these tables record the online test scores for the November 2021 recruitment exercise. Mr Franklin sought to identify the scores for roles by reference to the job requirement number. Given the length of these tables, it was agreed that Mr Franklin would identify the particular rows for each job role to which he wanted to refer Mr Sackey by a colour code to facilitate identification of a particular job and candidate result. He did so and on day 2 we admitted the revised table.[15]The claimant was represented by Mr Otchie of counsel, who called sworn evidence from the leading claimants as follows: 15.1. Mr Bedford Sackey, mail processor weekends and late shift; 15.2. Mr Louis Ndingane, mail processor late shift; and 15.3. Mr Michael Beharry, mail processor early shift.[16]The respondent was represented by Mr Franklin of counsel who called sworn evidence from: 16.1. Dr Alan Redman, Chartered Occupational Psychologist and Chief Science Officer at Clevry Ltd; and 16.2. Ms Aimee Foulkes (who confirmed her name has subsequently changed to Mrs Crow), Recruitment Team Leader.[17]Case management hearings took place before Employment Judge Ord on 11 November 2022 and 26 February 2024. Hearing Timetable[18]On 10 February 2025 the respondent’s solicitor made a written application to the Tribunal to secure the attendance of its witness, Dr Alan Redman, who is not employed by the respondent, on 18 February 2025. The Tribunal granted the order as Dr Redman’s evidence is relevant to the issues in dispute.[19]At the start of the hearing we agreed the order of witnesses with Mr Otchie and Mr Franklin as follows. It was not possible to conclude Mr Sackey’s evidence on day 1. Therefore, as the witness order had been issued for Dr Redman on day 2, we interjected Mr Sackey’s evidence with the evidence of Dr Redman. We gave all witnesses the usual directions as a witness under oath during breaks and overnight, when required. 19.1. 17 February: preliminary matters and applications, Tribunal reading time (2 hours) and Mr Sackey’s evidence; 19.2. 18 February: Dr Redman’s evidence; Mr Sackey’s evidence; 19.3. 19 February: Mr Sackey’s evidence; Mr Beharry’s evidence; Mr Louis Ndingane’s evidence; Mrs Crow’s evidence; 19.4. 20 February: Mrs Crow’s evidence; closing statements from Mr Franklin and Mr Otchie; 19.5. 21 February: deliberation; and 19.6. 24 February: deliberation / written judgment.[20]The Tribunal took regular breaks, starting at 10am (except when the claimant was delayed) and finishing around 4pm each day. None of the witnesses required reasonable adjustments to be made to enable them to participate in the hearing. Preliminary matters[21]On day 1 Mr Otchie sought to clarify the factual claims before the Tribunal, telling us that the claimants allege that the loss of shifts was a detriment. He told us loss of shifts should be included in the list of issues as it was referred to in the amended Particulars of Claim at paragraph 14 and was addressed by the respondent in the amended Grounds of Resistance (January 2023) at paragraph 36.[22]We note that the ET1 dated 19 May 2022 does not include a complaint about loss of shifts. We have considered paragraph 14 and note that it states: “….and the Claimant’s further aver that they have suffered detriments by not being offered shifts as a result of their protected act.” The amended Particulars of Claim are not dated.[23]A second case management hearing took place before Employment Judge Ord on 26 February 2024, at which Mr Otchie again represented the claimants. The list of issues for this hearing was finalised and a copy of the case management orders, including the list of issues, sent to parties on 7 March 2023. The list of issues does not include loss of shifts as a detriment. Furthermore, the case record of this case management hearing expressly states, at paragraph 5, that: “There was no complaint about a lack of shifts being given to any or all of the Claimants. No Application to Amend has been made. Any such complaint is not before the Tribunal.”[24]It follows that as lack of shifts is not referenced in the ET1 claim, but is referenced in the Amended Particulars of Claim in January 2022, for this alleged detriment to be considered at a final hearing it would need to have been accepted by the Tribunal. The proper process is for the claimants to make an application to amend, which Employment Judge Ord’s record of case management hearing confirms they did not do. An application to amend can be made by any party at any stage in the proceedings until the Tribunal promulgates its judgment. The claimants have not made an application to amend their claim to include a detriment of loss of shift patterns in these proceedings. Therefore, we agree with Employment Judge Ord’s statement that there is no complaint about the lack of shifts been given before this Tribunal.[25]We conclude that the loss of shifts is not a claim before us for the following reasons: 25.1. Section 6 of Employment Judge Ord’s record of preliminary hearing (sent to parties on 7 March 2024) states: “The parties must inform each other and the Tribunal in writing within 14 days of the date this [record of case management hearing] is sent to them, providing full details, if what is set out in the Case Management Summary section above about the case and issues that arise is inaccurate and / or incomplete in any important way.” 25.2. The claimants did not raise any concerns about the list of issues finalised by Employment Judge Ord or his statement that a complaint about loss of shifts is not a complaint before the Tribunal. Therefore, applying the guidance of the Employment Appeal Tribunal in the case of Serco v Wells UKEAT/0330/15/RN which guides this Tribunal that, to uphold the principles of certainty and finality, challenges to case management orders should ordinarily only be addressed by a higher jurisdiction, this Tribunal cannot vary the case management order of Employment Judge Ord unless it is "necessary in the interests of justice". This means there is evidence before the Tribunal that there has been a material change of circumstances since the original order was made or the original order was based on a misstatement. This decision aligns with Rule 30(3) of the Employment Tribunal Procedure Rules 2024 which states that a “case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.” 25.3. There is no material change in circumstances identified to this Tribunal. Parties agree that paragraph 14 of the Amended Particulars of Claim predates this case management hearing. The complaint about shifts is not included in the original claim. Guidance in the case of Chandok v Tirkey UKEAT/0130/14/KN which reminds Tribunals and parties that the ET1 is not “something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so……It sets out the essential case. It is that to which a Respondent is required to respond.” For this reason, complaints not identified at the outset, which do not fall within the category of the provision of further information about a claim (the who did or said what when how regarding an allegation made in the ET1 and any Particulars of Complaint) require an application to amend the claimant, which must be considered by a Judge once a respondent has had the opportunity to reply to any application. 25.4. The inclusion of this alleged detriment would require the claimants to make an application to amend the claim. Employment Judge Ord expressly records that no such application was made at the case management hearing. The claimants have not made an application to amend their claim at any time since that hearing, nor did they do so at this final hearing.[26]For these reasons we conclude that given the clear wording in Employment Judge Ord’s case management order, the fact parties were on notice that they had 14 days from receipt of the order to challenge it and the fact that the claimants have not made an application to amend the claim to include a detriment relating to shift patterns, we must conclude, as Employment Judge Ord stated, that this complaint is not before the Tribunal. List of issues[27]The list of issues was finalised at the case management hearing before Employment Judge Ord on 26 February 2024. The issues we must decide are: Direct discrimination section 13 Equality Act 2010[28]The claimants’ race is Black / Black Caribbean and they compare themselves with non-Black agency workers. 28.1. Did the respondent do the following things: 28.1.1. give scores to the claimants in the test process which took place in or around November 2021 for full time / permanent employment with the respondent that were incorrect? 28.1.2. Give scores to the claimants in the test process which took place in or around November 2021 for full time / permanent employment with the respondent that were falsified? 28.2. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants’. The claimants have not named anyone in particular who they say was treated better than they were. The claimants’ race is Black / Black Caribbean. The claimants rely on a hypothetical non-Black agency worker employed as a mail processor. 28.3. If so, was it because of race? Victimisation section 27 Equality Act 2010[29]Did the claimant do a protected act as follows: 29.1. A petition in October 2019 (page 293 of the hearing file); 29.2. A petition in September 2021 (page 293 of the hearing file); and 29.3. Correspondence from Mr Sackey to Mark Pawsey MP (pages 115 - 130 of the hearing file); At the start of the hearing on day 1 Mr Franklin confirmed that the respondent accepts that the 2019 petition, 2021 petition and the correspondence to Mark Pawsey MP satisfy the legal test of a protected act.[30]Did the respondent do the following things (detriments relied on): 30.1. incorrect scoring in the November 2021 test and as a consequence; 30.2. not being invited for interview; or 30.3. not being given permanent posts with the Respondent.[31]By doing so, did it subject the claimant to detriment?[32]If so, was it because the claimant did a protected act?[33]Was it because the respondent believed the claimant had done, or might do, a protected act? Findings of fact
Credibility
[34]We found all witnesses keen to assist the Tribunal in giving their evidence. All responses from witnesses were clear: witnesses gave full answers and explanations which aligned with their written evidence, were open in making concessions and transparent when the information was not within their knowledge. Factual findings[35]It is agreed that the claimants are all employed in the role of mail processor by Angard Staffing Solutions Ltd (“Angard”), a wholly owned subsidiary of the respondent which provides agency workers to the respondent as and when they are required at the National Distribution Centre (“NDC”) at Crick in Northamptonshire. The claimants work on zero hours contracts, working different shift patterns (weekends, part time, early shift and/or late shift). It is accepted by the respondent that some of the claimants had made several applications for permanent roles prior to the applications in November 2021 which all claimants made and are complaining about in these proceedings. Communications from claimants[36]In October 2019 the following claimants signed a petition which circulated at the NDC: Mr Sackey, Mr Ndingane, Mr Osman, Miss Kollman, Mr Kahia, Mr Hussein, Mr Birie and Mr Ahmed. We make this finding based on our identifying in deliberations the signatures of these claimants in the copy of the petition before us, noting the copy is unclear in places, or that a lead claimant stated in their witness statement that they had signed the petition and this is not disputed.[37]The petition does not identify its purpose. In the hearing file it is filed alongside a letter dated 10 October 2019 sent by / on behalf of Angard staff alleging managers at the NDC engage in discriminatory behaviour against Somli and Black staff. The letter does not refer specifically to the petition nor identify to whom it was sent. Mr Sackey told us that the 2019 petition “was made in respect of racial discrimination to black workers in relation to their application for permanent positions”. This was not disputed by the respondent. Therefore, we find that the purpose of the petition was this.[38]In October 2019 Mr Sackey and Mr Ndingane attended the surgery of Mark Pawsey MP. There is no evidence that they expressed their concerns in writing. On 14 October 2019 Mr Pawsey wrote to the respondent’s CEO that Mr Sackey had raised concerns about racial discrimination in the employment practices at NDC, alleging “that very few applicants who are black are being accepted for full time positions, and ….. are experiencing difficulties in the internal recruitment processes.”[39]We were not directed to any evidence that the other claimants communicated at a surgery or in writing with their MP. We find that, on the evidence presented to us at the hearing, it was only Mr Sackey and Mr Ndingane who made surgery appointments and expressed their concerns about racial discrimination in the respondent’s recruitment processes at the NDC to their MP.[40]However during our deliberations we noticed an email Miss Kollman sent to Jeremey White MP in February 2022 (page 141). As we were not directed to this document during the hearing, and it is not referenced in the lead claimants’ witness statements, it is not clear to the Tribunal whether this is correspondence on which the claimants rely in their complaint of victimisation. Of course, a Tribunal cannot consider evidence before it if parties have not had the opportunity to comment on the evidence. We considered inviting parties to make written representations about this email. We concluded that the question as to whether it is proportionate to do so depends on whether the Tribunal upholds as a matter of fact the alleged detriments. We address our findings on the allegations that the test scores were falsified below. For the reasons stated below we conclude that it is not proportionate or in the interests of justice to invite representations from parties on this email.[41]In September 2021 the following claimants signed a second petition (again we have either identified their names on the petition in deliberation or the lead claimant has told us they signed the petition in their evidence): Mr Sackey, Mr Osman, Miss Kollman and Mr Ahmed. The petition states its purpose as a complaint by Angard employees about losing their priority for shifts at the NDC. The petition seeks to give Angard workers back their priority over shifts. Applications for permanent mail processor roles[42]In November 2021 it is agreed that the respondent launched a recruitment process to fill 281 (initial) vacancies in the role of mail processor (various shift patterns) at the NDC. All claimants applied for permanent positions (various shift patterns) as part of this process.[43]It is also agreed that the first step in the application process was to register and then complete an online test administered by an external test provider, Clevry. We have seen the email communications for this process for each of the lead claimants. We find the first stage of the recruitment process was administered as follows: 43.1. Applicant registers and receives an email from the respondent confirming their registration. The lead claimants received these emails: Mr Ndingane, 3 November 2021; Mr Sackey, 4 November 2021; and Mr Beharry, 4 November 2021. The respondent’s email tells the applicant that some roles require the applicant to complete an online test, and, if so, they will receive separate email confirmation with this. 43.2. All claimants applied for roles requiring completion of the online test. They received an email the same day as their application with a link to the test and instructions to complete it within 24 hours of receipt. All did, receiving a further email at point of completion of the test confirming they had done so. Dr Redman told us the test is completed via Clevry’s online portal. The claimants do not dispute this.[44]Mrs Crow told us that at the first stage applicants are required to input their personal information, including ethnicity. Dr Redman told us that this information was not passed to Clevry and that this was not information the claimant’s inputted when they clinked the link to complete the test. We find that the link was supplied by Clevry (the links we have seen for the lead claimants reference “psycruit” which Dr Redman told us was Clevry’s name at that time) to the respondent, which automatically emailed the link to the claimants from its generic recruitment email address, having already collected their personal information as the registration stage.[45]We have considered the sample online test in the hearing file. We find that clicking on the link takes the applicant to a welcome page where a candidate’s name and user number appears with instructions about the test. There is no request for personal information at this stage. We find this aligns with Dr Redman’s explanation that ethnicity information is collected by the respondent at the registration stage and not at point of completion of the test; we find it follows that this personal information is stored by the respondent and not by Clevry.[46]All claimants recall completing 16 questions; the sample test accords, stating “there are 16 questions in the test…There are 16 items of information in this test which you must check for errors.” The sample test does not state the test will be marked out of 16. There is no mark guidance on the test. We find that the sample test is a reflection of a final test (there is no challenge from the claimants that the sample differs in format from the tests they completed). For this reason, we find that the claimants have assumed that they would be assigned a mark out of 16 because they answered 16 questions. At no time was it indicated by the respondent, Clevry, or the test that this would be the case. Application outcomes[47]The outcomes of the claimants’ applications were emailed to the claimants on 11 February 2022. They were all informed that: “Unfortunately on this particular occasion your application has been unsuccessful”. We have seen the email notifications from the lead claimants. They are sent from the same generic email address (recruitment@royalmail.com) from which they received confirmation of their application and the link to the online test. The following is stated at the bottom of all emails from this address: “Please note: This email address is unable to accept incoming mail, please do not reply to this address.” We find that this was an automated email. As the lead claimants received identical emails but for their name and different job references for which they applied, we find that all unsuccessful applicants at this stage in this process received the same standard worded email.[48]The email does not include a mark for the test or any feedback on an applicant’s performance. Dr Redman told us that Clevry does not provide feedback about applicants’ performance. Mrs Crow told us that no-one receives a mark or feedback for the online test, explaining that the respondent does not get sight of a test score (out of 16 or any mark) as this information does not exist of the respondent’s system. Applicants are not given a mark (as confirmed by the contents of the email we have seen for the lead claimants) as Mrs Crow told us “it is not useful to share a mark with no context”. When asked what feedback is available to applicants she told us they would be told to do the practice tests which identifies areas to focus on should they wish to apply again.[49]We find that no applicant who did not proceed to interview received a mark or feedback about their performance in the online test. Mr Sackey told us that there was no way to request feedback or query the result. We find that it was possible to obtain feedback (in the manner described by Mrs Crow), but this process was not apparent from the 11 February email nor from any of the documents before us. We find that the respondent did not do anything to actively support applicants to understand their performance in the recruitment process.[50]In this context we make the observation that it is not unreasonable for the claimants to conclude that they were being treated unfairly, and seek a reason why, particularly as many had been doing the job for which they were applying for several years, had failed the test several times and were, it is apparent to us, at a loss to understand why and how they could improve. The respondent did not give agency workers employed through Angard any support when, after having worked at the NDC for several years, they sought to obtain some job security by applying for a permanent position. Feedback[51]It was suggested to Mr Sackey by Mr Franklin that he sought feedback by sending an email to recruitment@royalmail.com, notwithstanding it was clear on the face of the emails he had received from this address that it could not accept incoming emails. Mr Sackey did not recall doing so. His witness statement states that on receipt of the 11 February email he forwarded the email to his MP. We find that at this stage in the process Mr Sackey did not request feedback directly from the respondent through this email address or at all. When Mr Ndingane was asked whether he sought clarification on receipt of the 11 February email, he told us he “did not send an email but spoke to one of [his] managers to say received bad news again, [the manager] told [he] I should speak to the HR, but [he] did not go to the HR as an individual as we started the Tribunal proceedings and I thought it was better that we started as a group”. We find that the claimants did not pursue feedback from the respondent on receipt of the outcome email in February 2022.[52]It is Mr Sackey’s undisputed evidence that the MP contacted ACAS, telling Mr Sackey that someone at ACAS would contact him. On 27 April 2022 ACAS sent Mr Sackey an email in which the respondent provided the application scores. A table records the “[t]otal score” for each claimant (except Mr Kolawole) as “1”. The “[t]otal score” score recorded for Mr Kolawole is “3”. The email also states: “The pass mark to reach interview was 4.” There is no context provided as to how the mark is calculated or how it relates to the test. We find that in this context, given the claimants had completed a test with 16 questions, it was reasonable for them to conclude that this was a mark out of 16.[53]Mrs Crow told us that the respondent prioritised agency workers in this recruitment process. At the hearing she clarified that priority only applied to applicants who reached the interview stage. We find that the practice of prioritising agency workers has no bearing on the calculation of the test marks.[54]On receipt of this information all claimants concluded the mark was out of 16, as this was the number of questions they had been required to answer in the test. They allege that they cannot all have received a mark of 1 out of 16 so have conclude that they have not received the correct test mark and that the marks have been falsified by an (unidentified) manager at the NDC. The claimants say the reason for falsification is that they are Black.[55]The claimants say that the length of time from completion of the test (early November 2021) to receiving the result (February 2022) led to their conclusion that the respondent was engaging in discriminatory behaviours. Mrs Crow told us that no-one received a final rejection communication until all the interviews were done, even if they were not progressed to interview, so that the respondent can ensure that all vacancies are filled before any rejection letters are sent out. We accept this explanation; it is common practice in recruitment. We find the claimants’ allegation that the length of time evidences discriminatory practices unfounded. Calculation of test mark[56]The claimants allege that they have not been provided with the correct test results and that these have been falsified by an unidentified manager at the NDC because they are Black. They consider the marks they receive to be a mark out of 16 as they answered 16 questions in the test.[57]In his witness statement and at the hearing Dr Redman explained how the marks (of 1 and 3) sent by ACAS were derived.[58]Dr Redman told us that the November 2021 test process was hosted on an online platform Applicant Tracking System called SuccessFactors, which links to Clevry’s system to share test data, avoiding the need for manual communication. When an applicant applies for a role on the online portal, an email is sent from SuccessFactors to the candidate which includes the link to the test which is stored on Clevry’s online portal. Having seen the email trail to the lead claimants from recruitment@royalmail.com we find this is the system used in the November 2021 recruitment exercise.[59]Dr Redman explained that when a candidate completed the test, candidate results are automatically returned to the SuccessFactor platform using an encrypted web-based communication tool. Dr Redman told us that the marks the candidates received via ACAS cannot be a mark out of 16 because the system does not store this information: “Clevry does not store individual candidate answers to questions in a personally identifiable way. Clevry users have no way of viewing the answers that a candidate has given to each question in the test”. On completion of the test the data from the online test is instantaneously processed through an algorithm to compare the performance in the test to a norm group. Dr Redman told us the comparison norm group for the November 2021 tests was a group of 5300 people who had completed the test from a range of employers in 2019.[60]The claimants have not produced any evidence to the Tribunal to contest this explanation. Not least as, by Mr Sackey’s admission, they were not aware that this was the grading process until Dr Redman’s initial explanation in his May 2024 witness statement, clarified at this hearing.[61]Therefore, we accept Dr Redman’s explanation of the grading process and find that the system did not record a score out of 16 for any of the claimants or any of the applicants in the November 2021 recruitment round. When each applicant completed the test, the data from that test (which was not stored by reference to candidate name or number) is processed by the Clevry system to produce what is known as a “Sten score”. We find that the marks received by the claimants via ACAS are their Sten scores. When the algorithm processed their performance data at the end of the test, it calculated that, with the exception of Mr Kollman, each claimant’s individual performance was in the bottom 10% of individuals who had completed the test in 2019 (the norm group). We find this is the reason they received a Sten score of 1. For these reasons, we find that neither Clevry nor the respondent stored a mark out of 16 for the claimants.[62]We make the observation that the use of a numerical grading system seems to have caused confusion. Therefore at the hearing we used alphabetical references (ie “Grade”) for the Sten score to distinguish it from the claimant’s conclusion that the grading was a mark by reference to the number of questions on the test.[63]Based on Dr Redman’s explanation of the SuccessFactors system we find that once the algorithm had processed the Sten score, this was automatically sent to the respondent’s SuccessFactor system and stored against candidates’ names. We also find that it was the respondent who stored applicants ethnicity data, as the candidates only provided this information at the point at which they registered for the test, which was on the respondent’s system not Clevry’s. This was confirmed by Dr Redman, who told us the only information Clevry stored was the Sten score. From this record the respondent identified applicants with a mark of 4 of more for interview. As none of the claimants had a Sten score of 4 or more, they were not called for interview.[64]The claimants have not produced any evidence to the Tribunal that this is not how the process works not least as Mr Sackey telling us the claimants did not have an explanation until now. “I was just told I scored 1 and have asked for feedback for 3 years to clarify and first received explanation was yesterday [hearing day 1] and I am still confused and don’t believe I was in the bottom 10%.... When I went to the Union and Royal Mail none of this was explained…..at least give me an email telling me I was in the bottom 10% and why”[65]We have found that the claimants did not receive a score when they received the February 2022 outcome and the earliest explanation they received of the Sten score (received in April 2022) was May 2024 (Dr Redman’s second witness statement which confirmed that the explanation provided in his first witness statement applied to the mail processor role). In these circumstances, we make the observation that it is not unreasonable that the claimants feel they have been treated unfairly[66]Having heard this explanation, the claimants maintained their position that the mark had been falsified by a manager at the NDC. Mrs Crow told us that this information is held by the recruitment team based in Sheffield where employees who administer the SuccessFactor system (known as SuccessFactor Authorised Users). Mrs Crow confirmed that there are no SuccessFactor Authorised Users based at the NDC and that managers there do not have access to the SuccessFactor system. We accept this explanation: the recruitment team is distinct from operations at the NDC where mangers are overseeing mail distribution teams. There is no reason or evidence before us supporting the claimants’ contention that managers at the NDC can access the SuccessFactor system, something they would need to be able to do to change the Sten score. Comparative Effect of marks within the November 2021 applicant cohort[67]The claimants claim that they were treated less favourably than non-Black agency workers who applied for mail processor roles in the November 2021 NDC recruitment round. The evidence the respondent presented to the Tribunal recorded the number of applicants, number proceeding to interview and the number of successful applicants for each race group (page 316). However, it did not differentiate between agency and non-agency workers. At the hearing Mrs Crow told us that of the 1844 applicants “1,122 were from agency workers” (paragraph 17 of her statement). This evidence was not challenged by the claimants.[68]Taking the claimant’s case at its highest, assuming in the November 2021 recruitment round all Black applicants were agency workers (i.e.104), then based on Mrs Crow’s evidence, there must have been 1018 non-Black agency workers. This enables the Tribunal to make a rough potential comparison of the outcomes for Black agency workers as compared to non-Black agency workers who applied for a permanent position at the NDC in November 2021. In so doing, we remind ourselves that this is not a claim of indirect race discrimination, as expressly stated by the claimants in their amended Particulars of Claim.[69]From the 2021 statistical evidence, we find that: 69.1. Of the 104 Black applicants, 28/104 (26.9%) were interviewed, (27 of whom scored 4 or more) and 13/104 (12.5%) were appointed; and 69.2. Of the 1740 non-Black applicants, 557/1740 (32%) were interviewed, (having scored 4 or more) and 269/1740 (15.4%) appointed.[70]In pursuance of their claim for direct race discrimination, the claimants compare themselves to a “hypothetical non-black agency worker” applicant. Unfortunately, the respondent’s statistical breakdown of the 2021 recruitment process (page 316) does not differentiate between agency and non-agency applicants. Nevertheless, from the evidence presented, it can easily be established that a large number of non-Black agency applicants must have been unsuccessful in being invited for interview as a result of scoring less than a Sten score of 4, as follows: 70.1. There were 1122 agency staff out of 1844 applicants. Consequently, in the (albeit unlikely) event that all Black applicants (104) and all non-Black applicants who made it to interview (i.e. scored 4 or more) (557) were agency workers, it can be calculated that at least 461 non-Black agency applicants were not called for interview and must have scored 3 or less in the assessment test. (1122 minus 104, minus 557 equals 461). 70.2. Consequently, there were at least 461 of the claimant’s comparators that were equally unsuccessful in scoring enough to be called to interview.[71]From this “worst case” analysis, we find that at least 45% of non-Black agency workers attained a mark of 3 or less and were not invited to interview. We find that is consistent with Mrs Crow’s evidence that of a large proportion of the nonBlack agency staff did not progress to an interview.[72]In his closing statement Mr Otchie suggested to us that the fact that the respondent has not disclosed each claimant’s mark out of 16 switches the burden to the respondent to show a non-discriminatory reason for its treatment of the claimants in the November 2021 recruitment exercise. For the reasons stated above we have found that the claimants are misconceived in their assumption that the online tests they completed were marked out of 16 and the mark they received was out of 16. A mark out of 16 was never recorded by Clevry or the respondent. Relevant law Section 13 of the Equality Act 2010: Direct Discrimination – race
Relevant law
[73]Section 13 of the Equality Act 2010 provides for a race discrimination claim: (1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ……. (5)If the protected characteristic is race, less favourable treatment includes segregating B from others. ….. (8)This section is subject to sections 17(6) and 18(7).[74]Lord Nicholls in Nagarajan v London Regional Transport [1999] ICR 877 (at 886), notes that it is not necessary for the claimant’s religion or any protected act to be the sole reason for any established less favourable treatment, unwanted conduct or detriment and noting that liability may be established if a protected characteristic (or a protected act) is a significant influence/more than trivial reason for the treatment complained of. Section 27 of the Equality Act 2010: Victimisation[75]Section 27 of the Equality Act 2010 provides: (1)A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[76]The acts that are protected by the victimisation provisions are set out in section 27(2) of the Equality Act 2010. They are: bringing proceedings; giving evidence or information in connection with proceedings under the; doing any other thing for the purposes of or in connection with the Equality Act; and making an allegation (whether or not express) that A or another person has contravened the Equality Act.[77]A detrimental act will not constitute victimisation, if the reason for it was not the protected act itself, but some properly separable feature of it. There is no requirement that the circumstances be exceptional for such a case to arise: Page v Lord Chancellor and anor [2021] IRLR 377 (CA), per Underhill LJ at paragraphs.55-56.[78]A claimant seeking to establish victimisation must show two things: 78.1. That they have been subjected to a detriment; and 78.2. That he or she was subjected to that detriment because of a protected act. 78.3. There is no need for the claimant to show that the treatment was less favourable than that which would have been afforded to a comparator who had not done a protected act.[79]To succeed in a claim of victimisation the claimant must show that he or she was subjected to the detriment because of doing a protected act or because the employer believed the claimant had done or might do a protected act. Where there has been a detriment and a protected act, but the detrimental treatment was due to another reason, a claim of victimisation will not succeed.[80]The essential question in determining the reason for the claimant’s treatment is: what, consciously or subconsciously, motivated the employer to subject the claimant to the detriment? This will require an inquiry into the mental processes of the employer. If the necessary link between the detriment suffered and the protected act can be established, the claim of victimisation will succeed.[81]Mr Franklin referred us to the case of Nagarajan v London Regional Transport 1999 ICR 877, HL in which Lord Nicholls indicated if protected acts have a ‘significant influence’ on the employer’s decision-making, discrimination will be made out. Significant does not have to be of great importance [Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931, CA].[82]The case of Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL is relevant to our test. The House of Lords guides that a tribunal must identify “the real reason, the core reason, the causa causans, the motive” for the treatment complained of. What is the real reason for the detriment? The “but for” test is not relevant. Knowledge, or inference of knowledge, of the protected act is a precondition for finding victimisation [Scott v London Borough of Hillingdon 2001 EWCA Civ 2005, CA, Essex County Council v Jarrett EAT 0045/15].[83]The case of Chief Constable of Greater Manchester Police v Bailey 2017 EWCA Civ 425, CA provides guidance on how a Tribunal should apply the reason why test and reiterates the well-established legal test for victimisation that an act will be done "because of" a protected characteristic, or "because" the claimant has done a protected act, as long as that had a significant influence on the outcome. The case cautions an Employment Tribunal from making an error of law, reminding (and perhaps cautioning us) that: “It is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act….”[84]The case is helpful to this Tribunal not least as Underhill LJ recites the key statutory provisions, noting that in section 27 of the Equality Act 2010 the question is whether a detriment was done ‘because of a protected act. The decision directs us that ‘because’ is the key word. Crucially, this is not identical to a ‘but for’ test; Ahmed v Amnesty International [2009] ICR 1450. One is looking for the ‘reason why’ the treatment occurred. Where treatment is not inherently discriminatory, one must look into the ‘mental processes’ of the decision maker. We must be satisfied, and have sufficient evidence before us, that the decision-maker’s ‘mental processes’ were discriminatory if we make a finding of victimisation. It was held that the correct test we must apply is that the detriment occurred “because of” the protected act. A tribunal must first decide whether a claimant has established a prima facie case of unlawful victimisation; if he has, the burden shifts to the respondent to prove a non-discriminatory explanation.[85]It is important that a Tribunal has the burden of proof foremost in its mind when making a decision about a victimisation complaint. The victimisation claim is subject to the provisions of section 136 of the Equality Act 2010 relating to the burden of proof: this is set out below. Burden of proof: section 136 Equality Act 2010[86]Section 136 of the Equality Act 2010 provides: (1)This section applies to any proceedings relating to a contravention of this Act. (2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3)But subsection (2) does not apply if A shows that A did not contravene the provision. (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; (b)the Asylum and Immigration Tribunal; (c)the Special Immigration Appeals Commission; (d)the First-tier Tribunal; (e)the Education Tribunal for Wales; (f)the First-tier Tribunal for Scotland Health and Education Chamber .[87]Mr Franklin referred us to the case of Ayodele v City Link Ltd [2018] ICR 748, [34-59], [106] as a summary of the authorities on burden of proof in discrimination claims. Mr Franklin also referred us to the guidance of the Court of Appeal in Madarassy v Nomura International Plc [2007] ICR 867. We note the guidance of Mummery LJ, who stated: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[88]We have considered the guidance of His Honour Judge Shanks in Talbot v Costain Oil, Gas and Process Ltd and ors 2017 ICR D11, EAT which guides us as to the principles we must consider when deciding what inferences of discrimination can be drawn.[89]In reaching our decision, we must be mindful that it is not sufficient for the complainant to prove facts from which the Tribunal could conclude that the respondent ‘could have’ committed unlawful discrimination. The words ‘could conclude’ (or ‘could decide’ (s.136(2) Equality Act 2010)) mean that a reasonable Tribunal could properly conclude. We note the example Mr Franklin provided in the case of Hammonds LLP and ors v Mwitta EAT 0026/10. We must take an objective approach in identifying discrimination: it is not sufficient for the complainant to think or perceive that they have been treated less favourably, there must be some objective evidence to support their conclusion. The case of Baldwin v Brighton and Hove City Council 2007 ICR 680, EAT illustrates this point.[90]Mr Otchie and Mr Franklin both referred us to the case of Court in Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC, to assist the Tribunal in identifying the “something more” to shift the burden of proof from the claimant to the respondent. The court commented that: “Whether the employer has in fact offered an explanation and, if so, what that explanation is must… be left out of account. It follows that… no adverse inference can be drawn at the first stage from the fact that the employer has not provided an explanation.”[91]We note that unreasonable treatment in and of itself is not sufficient to give rise to an inference of discrimination or victimisation; employers ‘will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination. Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason’ (Bahl v The Law Society [2004] IRLR 799 (CA) at paragraph 101). Analysis and conclusion[92]Taking the facts as we have found them, we have applied the legal tests to the claims before us, by reference to the list of issues. Below are our conclusions. Direct discrimination section 13 Equality Act 2010[93]The claimants’ race is Black / Black Caribbean and they compare themselves with non-Black agency workers. Incorrect online test scores[94]They allege that in the November 2021 recruitment round for permanent mail processor roles at the NDC the scores the respondent gave the claimants for the online tests were incorrect. They allege that the mark they received was a mark out of 16 and, based on their experiences of several years in the role of agency mail processors and own recollections of the test, it is simply not feasible that all but one of them scored 1 out of 16. They allege that the failure to produce evidence that the mark is out of 16 (Mr Otchie referred to this as the “raw data”) is the “something more” to shift the burden of proof from the claimant to the respondent.[95]We consider the case of Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC relevant to Mr Otchie’s submission, where the Supreme Court commented: “Whether the employer has in fact offered an explanation and, if so, what that explanation is must… be left out of account. It follows that… no adverse inference can be drawn at the first stage from the fact that the employer has not provided an explanation.”[96]Therefore, it follows that a lack of explanation as to how the mark of 1 was derived cannot, as a matter of law, be the “something more” to switch the burden of proof from the claimants to the respondent. We conclude that the absence of an explanation about the marks the claimants received does not switch the burden of proof from the claimants to the respondent. Other than their race the claimants have not offered any other reason they say the Tribunal should switch the burden of proof to the respondents.[97]In any event, we have found that the mark was not out of 16. We have found that the mark the claimants received via ACAS in April 2022 was a Sten score. We have found that this derived from an online analysis of each claimant’s performance in the online test. Immediately they submitted the test, which an algorithm processed, the algorithm calculated that, with the exception of Mr Kollman, each claimant’s individual performance was in the bottom 10% of individuals who had completed the test in 2019 (the norm group). We have found this is the reason the mark they received was a score of 1. For these reasons, we find that neither Clevry nor the respondent stored a mark out of 16 for the claimants.[98]We have also found that statistical analysis of the applicants in November 2021 does not evidence less favourable treatment (page 316) 26.9% of Black applicants did get an interview compared to 32% of non-Black applicants; and 12.5% of Black applicants were hired compared to 15.4% of non-Black applicants. Given the relatively small number of total Black applicants, we conclude the differences in these results are not significant. Considering these statistics and those we have estimated in terms of the proportion that could have been agency workers (see paragraphs 69 – 71 above). A significant proportion of the non-Black agency workers (the claimant’s comparators) never got an interview. Therefore, we conclude that there was no less favourable between Black agency applicants and non-Black agency applicants in the November 2021 NDC recruitment round. i.e. at least 45% and must have scored 3 or less in the assessment test..[99]As a matter of law, the “something more” cannot be a belief or a perception. Therefore, the claimants believe that they had performance in the online test was better than the Sten score of 1 (or 3 for Mr Kollman) does not switch the burden of proof to the respondent to explain any difference if treatment between Black agency workers and non-Black agency workers. Falsified online test scores[100]The claimants alleged that given the score they received in the November 2021 recruitment round for permanent mail processor roles at the NDC, the scores the respondent gave the claimant for the online tests were falsified by a manager at the NDC. The claimants could not identify a particular manager who they allege altered the scores. The basis of this allegation is their perception that managers at the NDC send home more Black workers than non-Black workers during the shift, if there is no more work to do. We note that loss of shift hours is not an allegation before this Tribunal.[101]The claimants have not presented any evidence to the Tribunal to support their suggestion that Black agency workers are the first to be sent home. This is a perception which, as a matter of law, cannot shift the burden of proof to the respondent to prove that the marks the claimants received via ACAS in April 2022 were not falsified. Therefore, we conclude that the claimants have not shifted identified the “something more” required to shift the burden of proof to the respondent.[102]In any event, we have found that any information the respondent received pertaining to the November 2021 online test was held by the recruitment team based in Sheffield on an online SuccessFactor system. We have found that employees with access to that system (SuccessFactor Authorised Users) were based in Sheffield, operating independently and separately from managers located at the NDC in Northamptonshire, whose role was to oversee the mail distribution teams. We have found that the claimants have not provided any reason or evidence supporting their contention a manager at the NDC interfered with the scores. We conclude that managers at the NDC did not have the access, opportunity or knowledge to enable them to access the SuccessFactor system to change the scores. The allegation is speculative. We conclude that the Scores the claimants received via ACAS in April 2022 had not been falsified; they were the claimants’ accurate Sten scores.[103]As we have found the scores were not falsified, it follows there was no less favourable treatment. Victimisation section 27 Equality Act 2010[104]The claimants alleged they did three protected acts. At the start of the hearing on day 1 Mr Franklin confirmed that the respondent accepts that the 2019 petition, 2021 petition and the correspondence to Mark Pawsey MP satisfy the legal test of a protected act. The relevant definition of protected act in the circumstance of this case is: a communication which does something in connection with the Equality Act 2010; and/or a communication which makes an allegation (whether or not express) that a person has contravened the Equality Act 2010. October 2019 petition[105]We agree with both parties that the signatories to the October 2019 petition engaged in a protected act. We have found that the purpose of the October 2019 petition was to raise concerns about racial discrimination to black workers in relation to their application for permanent positions, which satisfies the legal test of a communication which does something in connection with the Equality Act 2010. Therefore, we conclude Mr Sackey, Mr Ndingane, Mr Osman, Miss Kollman, Mr Kahia, Mr Hussein, Mr Birie and Mr Ahmed (who we have found as the claimants who signed the October 2021 petition) engaged in a protected act by signing it. Communications with Mark Pawsey MP[106]We have found that, in October 2019 Mr Sackey and Mr Ndingane attended the surgery of Mark Pawsey MP and expressed their concerns that very few applicants who are black were being accepted for full time positions, and are experiencing difficulties in the internal recruitment processes. We agree with the parties that 2019 Mr Sackey and Mr Ndingane engaged in a protected act by making an (implied) allegation that the respondent has contravened the Equality Act 2010. Therefore, we conclude Mr Sackey and Mr Ndingane engaged in a protected act by raising these concerns with the MP. September 2021 petition[107]However, we disagree with both parties that the September 2021 petition is a protected act. We have found that the purpose of this petition was to give Angard workers back their priority over shifts. There is no mention of race discrimination in this petition. It does not raise concerns about contravention of the Equality Act 2010. Therefore, we conclude that the signatories to this petition (Mr Sackey, Mr Osman, Miss Kollman and Mr Ahmed) did not engage in a protected act. Alleged detriments[108]The claimant’s allege that as a result of the protected acts (as we have found them to be – October 2019 petition and communications with Mark Pawsey MP) the respondent incorrectly scored the claimants in the November 2021 test, did not invite them for interview and did not given them permanent posts. Based on our findings about the respondent’s November 2021 recruitment process (that a mark of 4 was required to progress to interview) it follows that if the mark allocated was incorrect this would be a barrier to being invited to interview and securing a permanent position. Therefore, the key fact is whether the scores are incorrect, having been falsified.[109]We have found they were not. For the reasons stated above we have found that the marks the claimants received via ACAS in April 2022 were their correct Sten scores (as explained above) and not a mark out of 16. As the alleged detriment did not take place as alleged, it follows that there is no victimisation of Mr Sackey, Mr Ndingane, Mr Osman, Miss Kollman, Mr Kahia, Mr Hussein, Mr Birie and Mr Ahmed as a result of their signing the 2019 petition or of Mr Sackey and Mr Ndingane as a result of their communications with Mark Pawsey MP.[110]In any event, there is no evidence before us that the SuccessFactor Users (the respondent’s employees we have found had access to the online test data) had any knowledge of the October 2019 petition or communications with Mark Pawsey MP. While an examination of the SuccessFactor Users mental processes (as the employees with access to the online test results) is not necessary as we have found the alleged detriments did not take place), we make the observation that there is no factual connection in this case between these employees and the claimants.[111]We note that unreasonable treatment in and of itself is not sufficient to give rise to an inference of discrimination or victimisation. We have made the observation that it was reasonable for the claimants to express their concerns about their results given they received no feedback or explanation as to why they had (repeatedly) not succeeded in the online test process for a permanent position. We have no doubt that this was disappointing and frustrating for the claimants, many of whom had carried out the role of mail processor at the NDC for several years. While there is no discriminatory behaviour of the respondents before the Tribunal, it does rather beg the question as to the respondents approach to recruitment in this failure to offer any explanation or feedback to loyal agency workers repeatedly seeking to secure permanent employment.[112]For these reasons, it is the unanimous judgment of this Employment Tribunal that: 112.1. The complaint of direct race discrimination is not well-founded and is dismissed. 112.2. The complaint of victimisation is not well-founded and is dismissed. APPROVED BY: