Mr C McLean-Benjamin v Hornsey School for Girls and Edgware Associates Ltd: 3307721/2023

EMPLOYMENT TRIBUNALS

Case No 3307721/2023

Between

Mr C McLean-BenjaminClaimant

(1) Hornsey School for Girls (2) Edgware Associates LimitedRespondent

Before

Employment Judge Caiden

Date 6 January 2025

JUDGMENT

The unanimous judgment of the Tribunal is as follows:

[1]The Claimant’s complaint of direct race discrimination as against the First Respondent is not well-founded and is dismissed.

[2]The Claimant’s complaint of direct sex discrimination as against the First Respondent is not well-founded and is dismissed.

[3]The Claimant’s complaint of direct race discrimination as against the Second Respondent is not well-founded and is dismissed.

[4]The Claimant’s complaint of direct race discrimination as against the Second Respondent is not well-founded and is dismissed.

REASONS

[1]By an ET1 presented on 4 July 2023, the Claimant made claims of race and sex discrimination as against the First and Second Respondent.

[2]On 26 June 2024, the Claimant who at that hearing had been represented, attended a Preliminary Hearing at which the claims were clarified and set out as being direct race and direct sex discrimination. This and the issues in the case are dealt with in greater details at paragraph 12 below.

[3]By the time of the hearing before the Tribunal on 14-16 October 2024, the Claimant was not represented. The First Respondent was represented by Mr D Leach of Counsel and the Second Respondent by its Company Secretary Mr A Dodge. At the commencement of the hearing, the Tribunal was provided with the following documents: 3.1. A hearing bundle which had 448 pages (excluding its indices). All page references in these Reasons relate to this bundle; 3.2. witness statements on behalf of the Claimant, Andrew Dodge (who was also representing the Second Respondent), Jamie Lucas, Lian Murray, Daniel Quarcoo, Angela Rooke, Kuljit Rahelu; 3.3. a skeleton argument on behalf of the Second Respondent.

[4]In terms of witness evidence, the Tribunal heard from all seven witnesses for whom statements had been provided (see paragraph 3.1 above). Two of these witnesses, Lian Murray and Kuljit Rahelu, provided evidence via video link (CVP) and the Tribunal was satisfied they were able to participate in the giving of oral witness evidence in an equivalent manner than had they attended in person. The witness statements were all confirmed as being true to the best of the respective witnesses’ knowledge and belief having taken an oath or affirmation.

[5]The Tribunal confirms that it considered all the documents that had been provided and took particular care on pages within the hearing bundle which it was referred to during live evidence and were referred in the witness statements and in closing submissions. B) Procedural matters and issues

[6]At the commencement of the hearing on 15 October 2024, the Claimant stated he did not have a copy of the hearing bundle. The First Respondent had stated that one had been provided to him on 13 September 2024 (hard copy and electronic) and additional pages were sent on or around 30 September 2024. Moreover, the witness statements were sent referring to this on 2 October 2024. The Claimant in response complained that the changes of pagination hampered his ability to prepare and also sort out his witness statement. The Tribunal asked the Claimant if he was making an application to postpone the hearing, or any other application, and he confirmed that he wished to proceed with the hearing. To aid the Claimant a full hard copy of the bundle was provided to the Claimant and it was agreed that the Claimant would not have to undertake any cross-examination on the first day so that he could be afforded more time to consider the bundle.

[7]Another additional procedural matter that arose in the hearing was the First Respondent wishing to have Kuljit Rahelu give evidence remotely as it would not be possible, given the then agreed timetable, for all of the senior leadership to be absent from the school. When the application was made it was not opposed by the Claimant and in the circumstances it seemed proportionate and within the overriding objective to grant the application. However, on 15 October 2024 the Claimant expressed disquiet about evidence being remote. It was explained to him that the Tribunal had already allowed the application and given where things were the only option would be for the hearing to have to go partheard with potential delay. The Claimant made clear that he did not want this to occur and was not making any application to reconsider the fact that evidence was being given remotely, notwithstanding there being no material change in circumstances, but just wanted the matter noted.

[8]A further procedural issue to raise is that the Claimant raised the fact that the notes of a particularly important meeting, that occurred on the 24 February 2024 were not dated, signed or timed. In brief, the date of production of these and their accuracy was challenged. During the course of evidence, Jamie Lucas, the author of the note, explained that he took them by hand and then, as his handwriting is difficult to decipher, typed them up immediately after the meeting and sent these on the same day to his line manager. He confirmed that he did not keep any copy of the note book and so there were not handwritten notes. The First Respondent disclosed an email sent by Jamie Lucas to Angela Rooke at 12:46 on 24 February which had attachments which matched(i) pp.108-109,

(ii) pp.110-111,

(iii) p.112,

(iv) p.445 (separately it included an additional attachment called “Chris on Joe Biden” which appeared to be the complainants account of the event). Related to all this, the Claimant sought to make an application for specific disclosure of (a) CCTV evidence taking of the ‘playground’, (b) the schematics, as he called it, of the store cupboard, the ‘playground’ and the room where the meeting took place on 24 February 2024. Mr Leach stated there was no CCTV in existence anymore (it being wiped after a period and in fact a completely new system having replaced it) and opposed the relevance of these other matters. The Tribunal rejected the application on the basis that (a) it could not order disclosure of a document that did not exist and (b) the Canadian Imperial Bank of Commerce v Beck

[2009] EWCA Civ 619

test of the disclosure being (para 22 of Beck) “necessary for fairly disposing of proceedings…[t]he document must be of such relevance that the disclosure is necessary for the fair disposal of proceedings” was not met. In particular, there was no material dispute about the size / dimensions of these things and the matter could be adequately addressed in cross examination, with a delay in the hearing being disproportionate in the circumstances to allow for such material to be disclosed.

[9]By the time evidence had concluded, the Tribunal had copies of written submissions/skeletons from both First and Second Respondent. The Claimant however indicated that he needed more time and wished for submissions to occur at a later date so that he too could provide written submissions. The Tribunal applying the overriding objective allowed the application and provided oral reasons at the time which are not reproduced here. The hearing therefore continued on 6 January 2025. By that stage the Tribunal had indeed received a 33 page document entitled “Claimants Skeleton Argument” which it fully considered.

[10]The final procedural issue that is worth noting is that whilst hearings are normally recorded the Tribunal was informed, and informed the parties, that the recording equipment had failed. Accordingly, there is no audio recording or transcript from such that is possible in terms of all the evidence that was heard.

[11]Turning to the issues, the Claimant (and other parties) accepted that they were as agreed before Employment Judge Anstis at the 26 June 2024 Preliminary Hearing. In particular, the First Respondent confirmed that the jurisdictional issue it raised in its amended response that it could not be liable under the Equality Act 2010 (as the Claimant was not its employee, ‘worker’ or a contract worker for it) was not pursued – it accepted that it could be liable in the event of the alleged acts of discrimination as the Claimant fell at the very least within the definition of ‘contract worker’ in s.41 Equality Act 2010.

[12]The agreed issues – which defined the case as one of direct race and direct sex discrimination – are set out below 12.1. The Claimant states his race is “black British of West Indian origin” and asserts he was subjected to less favourable treatment because of this. For the purposes of the claim however, in addition to this entire description being his race, he was relying upon his race as being “Black”, or “nonWhite” in particular and thus for the purpose of any claim the comparator was someone who is non-Black or White. The Claimant was only relying upon a hypothetical comparator within the meaning of s.23 Equality Act 2010. 12.2. The Claimant is male and he asserts he was subjected to less favourable treatment because of this. Once again he relies only upon a hypothetical comparator within the meaning of s.23 Equality Act 2010. 12.3. Was the Claimant subject to less favourable treatment by the First Respondent? The Claimant alleged the following two acts of less favourable treatment: 12.3.1. On 24 February 2023 at the meeting, or shortly before that date potentially in so far as the complaint was made prior to the meeting, not informing him of the allegations against him; 12.3.2. On 24 February 2023, or soon thereafter, terminating the engagement which included requiring him that day to(a) leave the premises,

(b) informing the Second Respondent it needed to replace the Claimant, and

(c) not allowing the Claimant to continue working for it. 12.4. Was the Claimant subject to less favourable treatment by the Second Respondent? The Claimant alleges a sole act of less favourable treatment, namely: on 24 February 2023, Kirsty McKelvie not explaining why the Claimant had been removed by the First Respondent. 12.5. In the event the Claimant was subjected to any of the alleged less favourable treatment by either the First or Second Respondent, was that because of his race and/or sex? C) Findings of fact

[13]The Tribunal heard and considered much evidence. It made the following findings of fact on the balance of probabilities of those areas that were material to the decision it had to make.

[14]The Second Respondent is a recruitment company who supply temporary and permanent candidates to end clients in the education sector, and one of those clients is the First Respondent. The First Respondent is a secondary school in Hornsey for girls which is situated in the London Borough of Haringey (which is the relevant Local Authority responsible for the school).

[15]The Claimant was supplied by the Second Respondent to the First Respondent and worked in the role as Learning Resource Centre manager which was based in the Library from the 26 January 2023 until on or around 24 February 2023. He was ‘temporary’ staff, filling the vacancy created by the postholder departing whilst a permanent replacement was found, and the contractual agreement allowed for termination from the placement without any notice.

[16]In terms of racial make-up, the school was relatively diverse. The senior leadership, who all attended as witnesses were of White, Non-White and Black race. The Tribunal was not provided with any particular statistical breakdown but the diversity of the school was emphasised, both in terms of student population and staff members, by witnesses, in statements and documents. The Claimant at no stage challenged this and accordingly the Tribunal accepted that in general the school was relatively diverse in terms of race (although there was a skew towards women in terms of staff members, it being a girls school the student population was exclusively female).

[17]One of the colleagues the Claimant worked alongside in the Library was a permanent member of staff who the Tribunal will refer to as ZBC (this being the anonymisation given by the First Respondent in its internal process). For the avoidance of doubt, all the parties knew the identity of this individual both at the time and at the hearing, and the only reason for the continued use of the anonymisation is that ZBC did not take part in the proceedings and the present reserved judgment will be a public document.

[18]The Tribunal pauses to note that ZBC was referred to by the Claimant as being White and that the Claimant, who is Black, was engaged following a virtual meeting by Kuljit Rahelu. Accordingly, at the time of his engagement his race was known. 21 February 2023 incident

[19]On Tuesday 21 February 2023, the Claimant and ZBC were involved in a conversation that concerned President Joe Biden. It is alleged that the Claimant stated Joe Biden is a ‘dangerous man’ and questioned his cognitive abilities, the conversation continued for a short period but ZBC made clear she did not wish it to continue further. The Tribunal does not need to determine for the present claim precisely what occurred in the conversation as the material points were not disputed that(a) the conversation concerned Joe Biden and

(b) that ZBC wished to end the conversation.

[20]Later that same day, the Claimant attempted to continue the discussion with ZBC in the storeroom but once again ZBC indicated she did not want it to continue.

[21]ZBC account of the conversation, which she gave initially to an individual referred to internally in the notes as WIE on Thursday 23 February 2023, was that she found the whole interaction uncomfortable and alleged the Claimant used phrases such as “You are treating me like a child”, “[I] treat everyone with respect and you are using this against me”, “You’ve shut me down before”, “I don’t care how you speak to your husband” (pp.110-112 and pp.125-126). 24 February 2023 meetings

[22]Following the 21 February 2023 incident being raised in effect as a complaint, Lian Murray (who is Black and Female), the Acting Assistant Head Teacher at the time, had meetings with WIE, ZBC and the Claimant at which Jamie Lucas (who is White and Male) attended as notetaker.

[23]The meetings were described as being, and the Tribunal accepts, informal factfinding meetings. That is they were not part of any formal disciplinary procedure but they were taken to see if any further steps were necessary including invoking the formal disciplinary procedure – the First Respondent explaining that the procedure found at pp.132-141 – would be applied by it even to those that were agency workers and not permanent members of staff. In live witness evidence Lian Murray and Kuljit Rahelu asserted that it was relying upon “4 Preliminary Stage: Addressing Initial Concerns”. In the Tribunal’s view whilst that may well have been their belief, the wording of the policy suggests that in fact it was “Investigation” at [5.6] namely “The nature and extent of any investigation into alleged misconduct will depend on the seriousness and complexity of the matter under consideration. The individual’s nominated manager (or the headteacher, as appropriate) will carry out preliminary enquiries into what facts are known to establish whether or not there appears to be a case to answer. Based on the outcome, either no further action will be taken, or a disciplinary investigation will be initiated”. In other words, preliminary enquiries occur before the invocation of formal disciplinary investigation which would have required, as per the policy, giving of formal notice and a right to be accompanied. In any event, the Tribunal accepts that these were not intended or treated as being part of the formal disciplinary investigation process. Critically, the First Respondent stated this is exactly as has happened before and would happen irrespective of race or sex. The Claimant offered nothing to dispute that, and there was no document to the contrary either. As such, the Tribunal accepted this and makes a finding of fact that in any such cases there is such a preliminary type meeting before the more formal procedure is invoked if that proves necessary.

[24]At this stage, the Tribunal interpose that the Claimant’s case suggested that not being provided expressly with the allegation he faced at the outset or before the meeting was a breach of the policy. The Tribunal does not make such a factual finding, the policy does not support that reading (as it is only if the formal investigation process has commenced that such is required as noted above).

[25]In terms of the 24 February 2023 meeting the following material elements are common ground and so the Tribunal accepts occurred: 25.1. the precise allegation, that is what the Claimant allegedly said to ZBE was not set out; 25.2. Jamie Lucas, the note taker, was sat behind the Claimant; 25.3. the Claimant gave an account of what happened in relation to the Joe Biden conversation of the 21 February 2023 notwithstanding that the precise allegation was not put to him; 25.4. the Claimant expressed his view that the reason for all this was plainly racism.

[26]The Claimant however disputed the account that was provided in the witness statements and notes that included: 26.1. the Claimant stood up and was directing his answers to Jamie Lucas; 26.2. the Claimant stood up and was pacing in the room; 26.3. the Claimant was irate; 26.4. the Claimant asserted that ZBE considered herself to be a “superior white female”, that on another occasion she was acting “like a mad woman”; 26.5. in relation to the store room it was stated that “If she wants to say I locked the door and battered her I will go now”; 26.6. the Claimant repeatedly referred to ZBE as “that woman” rather than using her name; 26.7. the Claimant using the phrase “clown” “joker” in relation to ZBE.

[27]On balance, the Tribunal conclude that the matters that were set out at paragraph 26 above did occur, despite the Claimant asserting they did not. It reaches this conclusion for the following reasons: 27.1. Save for the last of these, at paragraph 26.7, it is corroborated by the near contemporaneous meeting notes (pp.108-109) and also the signed statement on p.445 of the same day by Jamie Lucas, as well as ZBC statement (pp.125-126). Notably even the comments at paragraph 26.7 above that are not found in the meeting notes are found in an email sent shortly after the meeting (p.443). The Tribunal repeats that it has now seen evidence that all these documents, the notes and statements, were emailed shortly after the meeting. Further still, at p.126, ZBC states “I can confirm that I wrote this account out the day it happened, 21st February, as soon as I got back from work. I shared it via email with my line manager….on Thursday, 23 February” which also corroborates that document being a near contemporaneous record; 27.2. the comments were corroborated by both Jamie Lucas and Lian Murray who gave witness statements and live evidence at which this position was maintained, the same is the case for the Claimant getting up in the meeting, pacing and seeming irate; 27.3. the general nature of the comments were corroborated also by the meeting that occurred with ZBC (pp.110-111); 27.4. the Claimant had however nothing to corroborate his account. Whilst it was fair to criticise that he did not have an opportunity to comment on the notes at the time, he was having to rely upon his recollection of an event that occurred over a year ago; 27.5. the Claimant’s account in live evidence was that he was being “assertive” and he later said he was speaking in a “forthright” manner. These words both connote someone who is being direct, and forthright even means someone being outspoken. That is consistent with someone being viewed objectively as ‘irate’ even if the individual themselves does not consider that to be the case perhaps; 27.6. the Claimant’s account in live evidence was that Lian Murray kept referring to the matter as an incident and thereafter he left and spent 30 minutes on the phone to his union. At one stage in response to crossexamination he said he was “interrogated” at the meeting conducted by Lian Murray. He stated that he spent 30 minutes with a union rep on the telephone. If that is an individual’s perception, in this case the Claimant, it supports, it is consistent with, a meeting that – before being told to leave the premises or ending his relationship with the First Respondent – caused one (in this case the Claimant) significant concern and thus it is likely that an individual (in this case the Claimant) would either ‘push back’ or ‘shut down’. Events following 24 February 2023 meeting with the Claimant

[28]Following the meeting it is agreed by the parties that the Claimant left and spent some time in the playground on the phone. The Claimant states it is 30 minutes and the Tribunal accepts that. Angela Rooke’s account is that the Claimant appeared angry by virtue of his body language, and she heard the phrase this school is racist or it is racist. The Claimant, disputes this and says he was perfectly calm and talking on the phone. The Tribunal accepts Angela Rooke’s account for the following reasons: 28.1. the Claimant had accepted he raised the prospect of racism in the meeting that occurred less than 30 minutes before he was seen by Angela Rooke. It therefore would make sense for him to set out that belief to his union; 28.2. the very nature of believing that someone had been exposed to racism is likely to make the recipient who believed that angry; 28.3. being angry is also consistent with the Claimant’s description of events that he was not provided with the allegations which he believes he should have been and he was “interrogated”; 28.4. the Claimant’s point that it makes no sense for him to be angry as he was speaking to his union rep, that is someone who is trying to help, does not necessarily hold true. It is quite likely that people ‘vent’ or express anger even to parties who are trying to help them, and it is not even directed necessarily at the person who is on the phone.

[29]Shortly thereafter, the Claimant was asked to leave the premises and was escorted from it by the security guard. He never worked for the First Respondent again and the relationship was terminated. The First Respondent gave evidence that a Caucasian woman was treated in a similar manner, and that this is in effect the process for when there is a concern of the presence of someone who works at the school. Once more there was nothing to dispute or contradict that, and the Tribunal accepts this evidence.

[30]The decision to ask the Claimant to leave was made by Angela Rooke, who was the Headteacher on Fridays when the substantive head – Kuljit Rahelu – was not working. She was not present at the 24 February 2023 meeting and therefore the basis for her decision was what she had been told by Lian Murray and Jamie Lucas. The decision to terminate was made jointly by Kuljit Rahelu and Angela Rooke, following considerations of the materials that they had, which included the notes of the 24 February 2023 meetings. Conversations with Second Respondent

[31]On 24 February 2023 at 11:30, the person providing HR support to the First Respondent contacted Kirsty McKelvie of the Second Respondent. There was a note of this call that states: Informed me that they have had to let go of Chris because of some issues. Doesn't know the details but said the Head's PA should get in touch with me today. Said to let me know if it meets the LADO threshold and we'd be willing to help with any investigations if needed. (p.437)

[32]Later that afternoon, 24 February 2023, at 14:42, Kirsty McKelvie contacted the Claimant: Called Chris about complaint from Hornsey - he kept me on the phone for 20+ mins, obviously very upset. Believes the Assistant Librarian is the one who's complained. Had some political/social differences and debates with her and feels she is trying to sabotage him in some way, perhaps to have his job. Differences in attitudes have surrounded Joe Biden and COVID vaccinations, he didn't like having these conversations in front of students and asked to speak to her directly in a store room which is part of the library. Kept mentioning that he's a black male which puts him at a disadvantage against a white female. Thinks she's being devious. Said if he is let go he will to the union. Felt confronted by the Dep Head and another member of SLT. (p.119)

[33]That same day, 24 February 2023, at 14:55 further contact was made with Kirsty McKelvie and another individual at the First Respondent: Spoke to him about chris being let go. An allegation was made by another member of staff which they then had to investigate. First step is 'fact-finding' which he was not cooperative with, and accused them of being racist. They weren't being judgemental but he made it impossible for them to follow protocol by not working with them to follow the process. Had to be let go as a result. Are covering it internally next week, beyond that he doesn't know. Said I have sent a new CV and can speak to more candidates if needed. (p.437).

[34]Later still, 24 February 2023, at 16:10, Kirsty McKelvie and the Claimant had another telephone conversation: Really angry at Hornsey, said they 'clearly have an agenda' and that this is a 'racial matter' - kept saying it would happen to a white female. Said he's sent me an email but I haven't received it. Said he'll make a statement against them etc etc. Had to cool it off by telling him I'll speak to my director - have listened to both parties and have to remain impartial as I do not know any more than I've been told. Kept talking over me and ranting (p.119).

[35]In the event that there is a safeguarding concern, it was asserted that it was the Second Respondent’s policy not to give information to the candidate lest it impede any investigation. That is accepted by the Tribunal given it is consistent with the letters and phone call of the 6 March 2023 (pp.441-442). In relation to the notes set out above as to the calls, these were not challenged and in the circumstances the Tribunal accepts they are materially accurate. D) Relevant legal principles Direct discrimination

[36]With respect to claims of direct discrimination, s.13(1) EqA provides "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.” In this case the protected characteristics are race (s.9 EqA) and sex (s.11 EqA). The comparison required by s.13(1), “treats or would treat others” is explained in s.23(1) as “On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case”. The act of direct discrimination, s.13(1) EqA, is rendered unlawful in this case (one of detriment only and not dismissal) by s.39(2)(d) EqA, “An employer (A) must not discriminate against an employee of A's (B)—(d) by subjecting B to any other detriment”. Finally, in relation to claims under the EqA, in this case direct discrimination, s.136 EqA sets out burden of proof provisions.

[37]In terms of relevant case law, the Tribunal had particular regard to the following: 37.1. race can be defined in the negative, such as non-White and nonBritish (Orphanos v Queen Mary College

[1985] IRLR 249

(HL) at [17]- [18] and R v Rogers

[2007] UKHL 8

;

[2007] 2 AC 62

at [10] and [13]); 37.2. it is usual to take a two stage approach, first deal with less favourable treatment and then whether reason why was protected characteristic, but not always necessary to do so and in some cases a composite question of what the reason for the treatment will be appropriate (Shamoon v Chief Constable of Royal Ulster Constabulary

[2003] UKHL 11

;

[2003] IRLR 285

at [8] and [11]); 37.3. the case of Igen v Wong

[2005] EWCA Civ 142

[2005] IRLR 258

which has detailed consideration of the burden of proof provisions (see [76] and Annex of its judgment in particular), which has been approved by the Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

;

[2012] IRLR 870

and expressly found to still apply to s.136 EqA in Efobi v Royal Mail

[2021] UKSC 33

[2021] IRLR 811

; 37.4. notwithstanding the burden of proof provisions and case law in relation to it, the emphasis in Hewage at [32] that their role is often for cases where there are doubts as the facts necessary to establish discrimination and it is having little to offer in cases where a tribunal can make positive findings one way or the other; 37.5. to be discriminatory race or sex need only be a cause (that is not trivial) rather than the sole or predominant cause (ie ‘a’ cause rather than ‘the’ cause is the test) – see for example O’Neill v Governors of St Thomas More Roman Catholic Upper School

[1996] IRLR 372

(EAT); Nagarajan v London Regional Transport

[1999] IRLR 572

(HL); and O'Donoghue v Redcar and Cleveland Borough Council

[2001] EWCA Civ 701

;

[2001] IRLR 615

. E) Analysis and conclusions

[38]The Tribunal sets out its analysis and conclusion on the claims, having regard to the agreed issues which are set out at in the sub-paragraphs to paragraph 12 above. Not informing the Claimant of the allegations

[39]As set out above at paragraph 12.3.1, the first allegation of discrimination as against the First Respondent is not being provided with the allegations the Claimant faced.

[40]The Tribunal first considered the matter by taking a two-staged approach (Shamoon, paragraph 37.2 above) above. It is not satisfied that in fact any less favourable treatment has been established and it concludes that anyone – irrespective or race or sex – would have been treated the same way as the Claimant, that is they would be invited to an initial ‘fact find’ meeting at which matters would be explored without revealing the precise allegation. The reasons for reaching this conclusion are as follows: 40.1. there is no direct evidence to the contrary that has been provided by the Claimant or is apparent from the documents; 40.2. the main point the Claimant made was that not providing the information was inconsistent with the policy. However, as already set out at paragraphs 23-24 above, the Tribunal does not accept that reading of the policy; 40.3. the key point is how the decision maker would act, in this case Lian Murray. She has explained in her witness statement (paragraph 18 in particular) that this is her practice, namely, to ensure that it does not influence or skew answers.

[41]Given the above, the claims of discrimination for either sex or race must fail. The Tribunal however did also consider whether the result would be different if the second ‘reason why’ question was asked, or a composite reason why approach was adopted and also whether in fact s.136 Equality Act 2010 and Igen v Wong would lead to any different result. It has concluded that is not the case for the following reasons: 41.1. the reason why on the Tribunal’s findings of fact and assessment is evidently nothing whatsoever to do with race or sex. It is simply the approach that Lian Murray adopts – that is not to set out the precise allegation at the outset but to explore in a fact find accounts by setting out limited information. The Tribunal notes that whilst some may well set out the allegation at the outset, it is also a well-recognised investigation technique to take the approach that Lian Murray adopted for the very reasons she has set out; 41.2. this does not appear to be a case where in fact s.136 Equality Act 2010 and the burden of proof provisions require much consideration. As set out in Hewage (paragraph 37.4 above) that is really only necessary where a Tribunal is not able to make positive findings which this Tribunal can in this case; 41.3. notwithstanding the above point, there would need to be sufficient material to lead to the Tribunal concluding, absent any explanation, that it could be unlawful discrimination. In this case there is not. The Claimant put before it much material pp.180-420 that set out discrimination that is suffered by Black individuals (“Black British Voices”, “Black people, racism and human rights” by the Joint Committee of Human Rights by Authority of the House of Commons and House of Lords, “Still Rigged: Racism in the UK Labour Market 2022” by the Trade Union Congress, “Equality, Diversity and Racism in the Workplace” by ESRC Centre on Dynamics of Ethnicity University of Manchester). The same was emphasised in the final few pages of his document entitled “Claimants Skeleton Argument”. The Tribunal concludes that whilst these and indeed other evidence supports that Black people have been subjected to much discriminatory treatment this material cannot in and of itself lead to a burden transferring. Ultimately, s.136 Equality Act 2010 needs to apply to the particular facts and context of the case and in this case all this material does not suffice to lead to the burden of proof transferring. The position in respect of sex discrimination is weaker still as there was scant information that related to that. Leaving premise and termination

[42]The second allegation of discrimination as against the First Respondent is terminating the engagement, which includes being asked to leave, not continuing to work and informing the Second Respondent it needed to replace the Claimant (see paragraph 12.3.2).

[43]Once more the Tribunal first considers whether any less favourable treatment has been established. It concludes there is nothing to show that someone of another race or sex would have been treated differently – let alone more favourably. Fundamentally, the Claimant’s case is premised on matters not happening in the meeting that the Tribunal has concluded did occur – that is in short that his behaviour was one that would objectively make someone uncomfortable if they were participants in the meeting (which was in effect the evidence of Jamie Lucas and Lian Murray). In this regard the factual conclusions set out at paragraph 25-30 are repeated. But in any event, the decision makers – whose mindset is key – were working off what others had said had occurred at the meeting and later on the notes provided. The Tribunal concludes that they would have behaved the same if someone had provided it with that information against anyone irrespective of race or sex.

[44]Again, the Tribunal has carefully considered whether a different result would be reached if it ignored the above and just adopted a ‘reason why’ approach, or whether s.136 Equality Act 2010 would lead to any different conclusion. The Tribunal concludes it does not: 44.1. the reason why on the Tribunal’s findings of fact and assessment is evidently nothing whatsoever to do with race or sex. In this case the critical decision maker was Angela Rooke, and later Kuljit Rahelu. It is plain that they were acting both as to what they perceived, in the case of Angela Rooke seeing the Claimant in the courtyard/playground, and as to the information they were provided (the account of the meetings and the notes from it) 44.2. once more, this does not appear to be a case where in fact s.136 Equality Act 2010 and the burden of proof provisions require much consideration. As set out in Hewage (paragraph 37.4 above) that is really only necessary where a Tribunal is not able to make positive findings which this Tribunal can; 44.3. equally there is nothing that would lead to the Tribunal concluding, absent any explanation, that it could be unlawful discrimination. The Claimant’s entire case is premised on rejecting the First Respondent’s account which the Tribunal after carefully considering matters has not. Indeed, there is evidence even of others being treated similarly of a different race and sex which points against this conclusion; 44.4. the Claimant was an agency worker and had only been there a short period of time. In these circumstances there a rational explanation for it adopting the approach it did. There was no investment in time in him as such and the very nature of the engagement was that it allowed for termination without notice and quick replacement. Kirsty McKevlie not explaining why the Claimant had been removed

[45]In respect of the Second Respondent, the only allegation is Kirsty McKelvie not explaining on 24 February 2023 why the Claimant had been removed (paragraph 12.4 above).

[46]The Tribunal rejects this claim. Fundamentally it must fail as it is based on a premise that Kirsty McKelvie as at that time knew much more information than she passed on. But as set out at paragraphs 31-34 above, the Tribunal has concluded she did not. So that was the reason for her actions, nothing to do with the Claimant’s race or sex. Equally, initially there was the potential for it to be a safeguarding matter, given the little it had been told, and so it was its policy not to disclose more – so that is the reason not sex or race. Further still, the Claimant in effect is saying that at some point the Second Respondent should have taken on the baton and probed further. Whilst that may not strictly be the agreed claim, the Tribunal concludes the reason for its actions are completely innocent and in fact in any event that does not show any prima facie case of discrimination. The First Respondent was the client of the Second Respondent, so there was no reason to upset it and further the very nature of the relationship was temporary with its primary job to find a suitable replacement. It would plainly have acted the same way for any individual irrespective of sex or race given its position in this relationship. Stepping back and looking at overall picture

[47]As will be apparent from the above, all the claims of direct race and sex discrimination failed. The Tribunal in its analysis approached each issue individually. However, sometimes there is a danger in overly strict compartmentalisation in discrimination claims. Factual evidence in one allegation, which may lead to inferences, can be ignored for example. For this reason, the Tribunal also stepped back and looked at the overall picture to see whether a different conclusion should be reached. In this case it concluded, perhaps unsurprisingly given there were in fact very few allegations in issue, that it made no difference. Employment Judge Caiden 6 January 2025