Mr E Oktay v The London Borough of Haringey: 3309976/2022
EMPLOYMENT TRIBUNALS
Case No 3309976/2022
Between
Mr E OktayClaimantThe London Borough of HaringeyRespondent
Before
Employment Judge BansalIn person for claimantMr Gregson (instructed by Solicitor) for respondentDate 7 May 2024
JUDGMENT
The unanimous decision of this Tribunal is that the Claimant’s complaints of direct discrimination on the grounds of religion and/or belief are not well founded and are dismissed.
REASONS
[1]Following a period of ACAS Early Conciliation between 31 May 2022 and 11 July 2022, the claimant presented a Claim Form (ET1) on 2 August 2022, bringing a complaint of direct discrimination on the grounds of his religion or belief.[2]By a Response Form (ET3) filed on 11 September 2022, the respondent resisted the claim, and also raised a jurisdictional time issue in relation to the allegations made. The jurisdiction point is that the complaints are out of time as they date back to a period between early 2017 to August 2022, with the last act complained of dated 20 July 2022.[3]At a Preliminary Case Management Hearing held on 14 March 2023, Employment Judge Reindorf discussed and agreed with the parties the issues for determination at a final hearing. This agreed List of issues was set out in the Order dated 24 March 2023. At the start of this hearing, this List of Issues was agreed without any amendments, although during the course of the hearing some minor changes, for clarification, purposes were made. The Legal Issues[4]The agreed List of issues as determined at the hearing on 14 March 2023, are set annexed to this judgment. Hearing[5]The claimant represented himself. The respondent was represented by Mr Zaman of Counsel.[6]The Tribunal was provided with;(i) an agreed bundle of 750 pages. Two additional documents were added by the respondent which the claimant did not object to;(ii) a chronology & cast list, which was helpful to the Tribunal. The parties were informed that only documents referred to in the witness statements and in evidence will be read.[7]The claimant provided a written witness statement. This statement was not in the traditional form as usually produced by the parties. The statement lacked depth on the background facts and was written with a chronology of events. Also in support, the claimant produced a short email dated 23 January 2024 from a work colleague Ms Choi Lam. (p672) She did not attend to give live evidence. The claimant explained he asked her to write this email for the purpose of this hearing and to support his case. He did not ask Ms Lam to attend to give evidence.[8]For the respondent there were statements from;(i) Mr Jay Miah (Enterprise Security & Network Manager);(ii) Mr Paul Dooley (Chief Information Officer);(iii) Ms Annette McDermott (Head of HR Support Services)(iv) Mr Glen Mason (Head of Technology) (vi) Ms Susie Faulkner (Appeal Manager- did not attend as she resides in France)[9]All witnesses, except for Miss Lam and Ms S Faulkner gave oral evidence and were cross examined. In addition the Tribunal asked questions for clarification. Because Miss Lam and Ms S Faulkner did not attend to give evidence and could not be cross-examined, the Tribunal attached no weight to their evidence.[10]At the end of the evidence, the parties made written submissions which they expanded orally. The Tribunal considered these submissions as part of their deliberation. Credibility of witnesses[11]The Tribunal noted the key witnesses in this case was the claimant and the alleged perpetrator Mr Miah. From the evidence we heard it was clear there was conflict of evidence and difference of opinion and interpretation about events and discussions held during their working relationship.[12]As Mr Zaman pointed out in his submissions this is a case in which the Tribunal should make findings of fact taking into account the assessment of the credibility of the witnesses. The Tribunal observed that the claimant and Mr Miah, did not enjoy a healthy working relationship with each other and held ill-feelings towards each other, even during this hearing.[13]In terms of credibility, the Tribunal observed the claimant came across as a mild person and gave evidence reasonably well. He firmly believed that had been subjected to discrimination, mainly by Mr Miah. However, the Tribunal formed the opinion the claimant’s interpretation of the issues and his evidence was tainted with a mistrust of Mr Miah since 2017/2018 and the respondent, in particular from the date of suspension.[14]Miah gave his evidence selectively and was also evasive on some key issues. He judged for himself which questions were relevant for him to answer.
Findings of Fact
[15]It was not necessary and neither was it proportionate to determine each and every fact in dispute. Hence, only relevant findings of fact pertaining to the agreed legal issues and those necessary for the Tribunal to determine. Also the Tribunal has not referred to every document it read and was referred to.[16]The Tribunal having considered all of the evidence, on the balance of probabilities made the following findings of fact. Any reference to a page number is to the relevant page number in the bundle.[17]The respondent is a local authority. It is an Equal Opportunities Employer. The Claimant[18]The claimant is from Turkey. He is of Muslim religion. He informed the Tribunal he is a non-practicing Muslim and his current wife is catholic. He has two young children from his previous marriage who live in Prague with their mother.[19]The claimant’s continuous service of employment started on 1 September 2016 with Logicalis UK Ltd in the role, of Network & Security Engineer. The company provided IT network support to the respondent. On 1 July 2018 the claimant’s employment was subject of a TUPE transfer to the respondent. At the date of this hearing the claimant remained in the respondent’s employment.[20]From the commencement of the claimant’s employment until 1 December 2022, the claimant’s Line Manager was Mr Miah. During the claimant’s employment he had been awarded the Gold Status by Mr Miah, which meant that he was a competent engineer.[21]The claimant’s role was to deal with business as usual enquiries (BAU), which required him to deal with normal day-to day enquiries during working hours.[22]The claimant’s written terms of employment as issued by Logicalis UK Ltd, which was the only document disclosed in the bundle as evidence of his terms of employment. The particular terms noted, which are relevant for the issues in this case, are;a. Overtime pay for additional hours worked;b. Requirement to be on the On-Call Rota and cover out of hours.(p698)[23]The Tribunal was informed that when Mr Miah joined the size of the Team was 4 and this number grew to 7 employees in December 2022. Mr Jay Miah[24]Mr Miah himself is a Muslim. He is a practising Muslim. He too was employed by Logicalis UK Ltd. His role was that of Enterprise Security & Network Manager. His employment also transferred to the respondent in July 2018. He was the claimant’s Line Manager at Logicalis throughout the claimant’s employment.[25]Mr Miah gave notice of resignation on or about early October 2022 and left his employment as of 1 December 2022. His resignation was announced to his Team on 3 October 2022 by Glen Mason (p567) According to the email, Kevin Prior took immediate charge of the Team from this date. (i.e 3/10/2022) Chronology of Events[26]On 19 June 2020 the claimant sent an email to Mr Miah, which was copied to Glen Mason, (Mr Miah’s Line Manager) in which he raised concerns about a customer complaint and Mr Miah. In that email, the claimant stated, “…you criticised me for not practising my religion and asked me the question if my parents didn't bring me up with religious values and you even discussed it with another colleague of mine. May I remind you that we are living in a secular country and I most definitely do not appreciate my employer criticising my belief…”(p666)[27]On 23 June 2020, Glen Mason met with the claimant to discuss the concerns raised.[28]On 26 September 2020, the claimant travelled to Prague to visit his children. Claimant’s suspension[29]On 4 December 2020 the claimant was suspended at a meeting held with Glen Mason and Wasim Butt.[30]On 4 March 2021 the claimant attended an investigation meeting with Kim Burton.[31]On 10 March 2021 Mr J Miah attended an investigation meeting with Kim Burton.[32]On 16 June 2021 Kim Burton produced her Investigation Report.[33]On 21 October 2021 the claimant raised a grievance.[34]On 25 November 2021 the claimant attended a disciplinary hearing with Mr P Dooley[35]On 25 November 2021 the claimant’s suspension was lifted.[36]On 9 December 2021 the claimant attended a re-convened disciplinary hearing.[37]On 13 December 2021 the claimant was given a Final Written Warning which was to stay on record for 12 months.[38]On 16 December 2021 the claimant submitted his appeal to the outcome of disciplinary.[39]On 30 March 2022 the claimant attended the disciplinary appeal hearing.[40]On 18 May 2022, the Final Written Warning was upheld but reduced to 6 months.[41]On 31 May 2022, the claimant contacted ACAS for early conciliation.[42]On 11 July 2022, the early conciliation process ended, and a certificate was issued.[43]On 2 August 2022, the claimant presented his Claim Form (ET1). Findings of Fact The claimant’s Line Manager Mr J Miah subjected the claimant to criticism for not practising Islam[44]Sometime in 2016, when Mr Miah joined Logicalis, he admitted that he had a conversation with the claimant. He was getting to know his team. From their conversation he learnt that the claimant was from Turkey, and that the claimant was not a practising Muslim. Mr Miah was unable to confirm the religion of the other members of his team. However he recalled, one was a Christian (Felix); one was a Hindu (Nemish). He did not know Ms Lam’s Religion or belief. According to the claimant, Ms Lam was a Buddhist. The Tribunal concluded that the claimant must have been the only Muslim in the team. Had this not been the case, Mr Miah would have said.[45]Mr Miah confirmed he did not ask anyone else on the team about their religion. He explanation he asked the claimant because he mentioned he was from Turkey, which is a Muslim country. The Tribunal were not given any details of the size of the team and the background of the other team members.[46]According to the claimant his issues with Mr Miah started around Ramadan in May 2017. We understand Ramadan is a month of fasting, prayer, reflection and community observed by practising Muslims worldwide. He explained that as a Muslim he was expected to fast. He did not do so as he is not a practising Muslim. He alleged Mr Miah criticised him for not practising Islam, and he also criticised the claimant’s parents for not raising him with Muslim religious values. This criticism continued until Ramadan 2018, following which he raised a complaint to Glen Mason (GM).(page 666)[47]In evidence, Mr Miah denied that he criticised the claimant because he was not practising the Muslim faith or at all.[48]The Tribunal considered the issue of this alleged criticism, to be central to the claimant’s case. The Tribunal considered the contents of the claimant’s e-mail to Mr Miah copied to Mr G Mason of 19 June 2020. In that email the claimant stated, “there have been numerous occasions in the past you criticised my work, whereas I didn't feel appropriate and exaggerated. To start with, you criticised me for not practising my religion and asked me the question if my parents didn't bring me up with religious values and you even discussed it with another colleague of mine. May I remind you that you we are living in a secular country and I most definitely do not appreciate my employer criticising my belief.” (p666) “I had a nervous breakdown recently and we had a chat about it. At the end of the chat you left me even more worried and feel down. It was just after a divorce, was missing my kids and had just broke up with my girlfriend that we were about to get married. You accused me for being weak, you told me that you had problems but you deal with it. You sort of implied that I could even lose my job. You told me that I didn't knew my girlfriend long enough to get into a stage like that. You never involve me in DC moves and I don't have a clue what's happening most of the time I'm not being included in the e-mail correspondence most of the time. I've never been treated by my employees this way in the past ever. I have been employee of the year twice and all my employers have been more than happy with me all the time and never had criticism like this. I believe you are constantly bullying me this has to stop. You're constantly making me feel down over it about my job in my life. Best Regards”[49]The Tribunal also considered Mr Miah’s reply of the same date which is copied to Mr Mason. The reply, stated, “Thank you for your e-mail I'm really concerned with the points you have raised and quite disappointed you feel that you can't talk to me. I have always offered my support and will continue to do so as I have with all the other team members. Let’s sit down and talk about this issue you have raised next week. I will arrange this. Glen if you can let me know your availability I will schedule a face to face meeting. Kind Regards.[50]The Tribunal found that from this email exchange there were issues between the claimant and Mr Miah. The Tribunal was satisfied the claimant must have had a genuine reason to complain about Mr Miah’s conduct. The Tribunal preferred the claimant’s evidence that Mr Miah must have made some comments about the claimant not being a practising Muslim. It is noted in Mr Miah’s email reply that he did not challenge or refute the claimant’s statement about his criticising the claimant. Further, the Tribunal also noted the interview of Mr Miah’s held on 9 December 2021. In that interview, Mr Miah was questioned by the claimant’s Union Representative, Mr Damian Brennan (Unite) if he had made comments about the claimant’s religious observance in front of colleagues. Mr Miah refused to answer the question maintaining that “this is not relevant to the case”. His final reply was “I'm not going to answer that I'm not going to answer that now”. (p366) The Tribunal drew the inference from Mr Miah’s refusal to answer the questions, that he must have made some comments about the claimant not being a practicing Islam.[51]In evidence the claimant confirmed that after May 2018, Mr Miah did not make any further comments to him about the Muslim religion or any adverse comments or criticism that he was not practising his faith. Further, in reply to a question from the Judge, the confirmed that the last act of discrimination relied upon for this complaint was May 2018.[52]In support the claimant relied on an email from Ms Lam dated 23 Jan 2024. In that email, Ms Lam states, “ She heard Mr Miah saying when Ergun was going for lunch It is strange – why is Ergun going for lunch during Ramadan when I myself and Wasim fasting as a Muslim? . Ms Lam states, she cannot remember the day bit it was during Ramadan in 2018. (p672) This email is in direct contradiction to the reply given by Ms Lam in the Grievance investigation, in which she said she had not witnessed Jay criticising Ergun for “ not practising Islam” (p654) The Tribunal therefore determined that this complaint is not made out because although there may have been some discussion about religion, we were not satisfied these comments were in the context as asserted by the claimant. Between early 2017 and August 2022 Jay Miah gave the claimant less overtime than his junior colleague Choi Lam.[53]It was a term of the claimant’s employment that if he worked additional hours, he would not normally be eligible for payment for these additional hours worked. However, the contract terms provided that in certain circumstances, overtime may be paid when agreed in advance with your Line Manager. (Para 10 p698). It appears from the contract that overtime is non- contractual.[54]In evidence the claimant asserted that he received less overtime hours, compared to his junior colleague Ms Lam. This assertion was supported by Ms Lam, who was interviewed on 29 March 2022, as part of the claimant’s grievance investigation. It has been recorded in the notes of this investigation that, “she has a challenging workload. She is always asked to complete overtime but he never asked the claimant who is more senior to her. She did not understand why the claimant was not offered overtime as she feels his job title makes him more senior.”[55]On this issue the Tribunal made the following findings of fact.(i) Overtime was given to employees, to deal with, in particular “overtime projects” which were time critical and required a particular skillset;(ii) Overtime was allocated by Mr Miah who was the Line Manager based on the work and the timing of the work and the skillset required.(iii) The claimant accepted he had been given overtime once or twice a year; (although he contended not by Mr Miah and if it was up to him he would not have given him any at all. The claimant did not say who gave him this overtime)(iv) The first the claimant raised an issue about overtime work was after he was suspended. In reply to a question from the Judge, the claimant said he did not raise this until his suspension as he did not want issues or problems so he just put up with it.(v) The respondent’s Payroll Data Analysis for 2018-2021 showed the claimant did receive overtime payments. (v) In cross examination Mr Miah, conceded that Ms Lam was offered more overtime than the claimant. Also the respondent accepted that the claimant did not receive overtime or on call out payments during his suspension period.[56]The claimant was unable to give specific dates and type of work for which he should have been offered overtime. His evidence was limited to a period from early 2017 to August 2022.[57]According to Mr Miah, the overtime was allocated to projects which were critical to the service. They were time critical and had to be done during a period where there was no or minimal disruption to users of the IT network the next day. He also had to take into account the nature of the work; who had the required skill set to complete this work and which staff were available at that time.[58]Mr Miah explained the fact that Ms Lam was given more overtime had nothing to do with the claimant’s religion or not being a practising Muslim. He did not find the claimant to be receptive and wanting to do overtime. He found the claimant did not have the skill set to perform the work required and in his view he did not always want the responsibility. Between early 2017 and August 2022 Jay Miah denied the claimant opportunities for upgrade works or Data Centre moves.[59]According to the claimant during the period 2017 up to August 2022 there was a Data Centre move to a new location. This meant technical work was being done by the team to facilitate this move. According to the claimant Mr Miah was overseeing this move. Ms Lam was given tasks to do with this move. The claimant claimed that he had experience to do the work but was not given any work to do. He felt he could have been more involved. He also complained that he was not asked to do any upgrade work during this period. He said Ms Lam was asked to assist but not him.[60]In evidence the claimant admitted that he did not mention this at the time but did so after he was suspended. He said he put up with it. He also accepted that he did not in his grievance interview claim that this was an act of discrimination on the grounds of his religion/belief.[61]The claimant’s evidence on this issue was unclear. He did not specify the timeline for this move. On the claimant’s own evidence that he did not raise this issue until his suspension means that the timeline must have been between 2017 to 4 December 2020.[62]The respondent’s evidence was limited to what Mr Miah said in relation to the overtime work. His evidence was that he did give the claimant tasks to complete in upgrade works and the Data Centre which he failed to complete correctly. Given the lack of specific information relating to this the cross examination of the claimant was limited. Between early 2017 in August 2022 Jay Miah threatened the claimant that he could lose his job for sickness absence despite the claimant taken relatively little time off sick.[63]In evidence the claimant identified the date of the threats made to him was in January 2019. Therefore on this basis the relevant period should be from early 2017 to January 2019. Accordingly, this compliant was revised in the List of Issues.[64]In the hearing bundle, the only documentary evidence showing the claimant’s absence for ill health were; The relevant period is two Fit Notes for the dates; (p617) 11/07/2018 to 13/07/2018 – 3 days; 4/01/2019 for 1 day;08/01/2019 for 1 day;[65]If this information is correct, the claimant’s absence record equates to 5 days during this period. The claimant did not provide the Tribunal with any additional evidence. Mr Maih in his reply to questions from Mr Brennan (TU Rep) at his interview on 9 December 2021, he confirmed as follows; For periods – 2019-2020 – 12 days absence. For period 2020 - 9 days.)[66]In evidence Mr Miah acknowledged he did have a conversation with the claimant about his absence level. The was because his sickness absence was highest within the team. According to Mr Miah, he was not aware of the claimant’s health condition. He noted the absences were for cold, flu, headache and back pains.[67]In evidence the claimant said he challenged Mr Miah about this because his absence record was not as bad as he was making out to be. The claimant said that Mr Miah knew about his arthritis condition because he told him he may have the same condition.[68]According to the C, Mr Miah said to him, “ This is not looking good on you that “I might have to take it further up if it does not stop” The claimant found this alleged remark to be threatening. In cross examination, the claimant answered, “He knew I had a bad condition. If he knew my condition then it is a threat. He was trying to break me.”[69]Mr Miah’s response to this was that the claimant’s absence was high, and he was merely informing him as his Manager that this level of absence would trigger the respondent’s formal process. He said that he used his discretion to excuse the claimant from this formal process.[70]The Tribunal noted the respondent did provide a record of the claimant’s sickness. (p617). However this did not properly show the whether the sickness absence was a rolling calculation or calendar year or financial year. Also the Tribunal was not provided with the respondent’s Absence Policy to show how many days absence would trigger a formal process.[71]Based on the limited evidence heard, and the claimant’s own evidence that he perceived this as a threat the Tribunal concluded that there was no evidence that Mr Miah had actually threatened the claimant as alleged. This complaint therefore is not made out and fails.[72]Even, if the Tribunal concluded that Mr Miah did threaten the claimant, there is no evidence to show that it was because of the claimant’s religion.[73]The Tribunal noted that in evidence the claimant confirmed that he relied on a hypothetical comparator. The Tribunal concluded that a comparator, namely a practising Muslim in circumstances would have been treated no differently to the claimant. In 2018 Jay Miah criticised the claimant for not helping a customer when no such complaint existed.[74]This allegation troubled the Tribunal in their deliberations. In evidence there was confusion whether this allegation was about whether there was a customer who had complained or if there was a live complaint. The Tribunal noted the email correspondence on this refers to – Civica Email Delivery issue. In evidence the claimant clarified that according to his understanding Mr Miah was complaining to him about a customer that he failed to deal with. The claimant asked Mr Miah to identify the customer. He did not do so. According to the claimant he made contact with the engineer (Nin Sharma) working for the respondent who was involved in the issue. (p633)[75]The Tribunal noted from the documents in the hearing bundle that a customer complaint did exist. The claimant had been working with Nin Sharma and tried to deal with it. From the email it is clear that Mr Miah chased the claimant for a full response as his Line Manager. It was clear there was a misunderstanding and frustration on part of both Mr Miah’s and the claimant. Mr Miah’s email does criticise the claimant.[76]The Tribunal noted the complaint dates back to sometime in 2018, which is again out of time. However, the Tribunal considered the context to this email, namely Mr Miah acting as the claimant’s Line Manager and dealing with a customer issue in the performance of his duties. There is no evidence before the Tribunal to support that such criticism was made because of the claimant’s religion. Further, there is no basis for the Tribunal to conclude that a hypothetical comparator (i.e a practising muslim) would have been treated differently. In 2018 Jay Miah told the claimant he was being weak and threatened him that he could lose his job when he had a mental breakdown.[77]The claimant asserted that in 2018 he suffered a nervous breakdown due to his personal circumstances. At the point of meeting with Mr Miah, (at a unspecified date) he was feeling suicidal. In this meeting, the claimant asserted that Mr Miah said he “ was being weak”. The claimant then went to speak with Mr Glen Mason about it. The claimant gave no context to this discussion and neither was Mr Mason cross examined on this issue.[78]Mr Miah was interviewed by Ms McDermott. (p534) He explained his recollection of his conversation. He admitted that told him “try not to be weak- try to be strong”. This was in the context of their discussions about how he was feeling and given his circumstances. Mr Miah also confirmed that he offered the claimant some time off.[79]On the limited facts presented the Tribunal concluded that Mr Miah did not say the alleged words. For the avoidance of doubt, Mr Miah did not threaten him with the loss of his job either. The context of the discussions are explained in the grievance meeting interview. (p535) The Tribunal determined this allegation was not made out and fails. On 4 December 2020 the Respondent suspended the claimant until 25 November 2021 for no good reason, having been influenced by Jay Miah to do so.[80]On or about March 2020 the Government announced a national lockdown due to the Covid 19 pandemic. This meant that there was a travel restriction. During this lockdown period the claimant was identified as a “Key Worker”. He was issued with a Key Worker Status letter by the respondent dated 27 March 2020. (p109) This allowed the claimant to travel to work during this period.[81]On 20 August 2020 the claimant made a request for annual leave for 1 day (i.e 28 September 2020.) This requested was approved by Mr Miah. The claimant was due to return to work on 29th September 2020.[82]On 20 September 2020, the claimant informed Mr Miah by text message that he has a bad throat which has got worse with temperature, and that he had ordered a Covid test. He asked Mr Maih if he should go to the office tomorrow or self-isolate. Mr Miah advised him to work from home until his Covid test results are back. (p146) Based on this conversation, it was reasonable for Mr Miah to take the view the claimant should remain isolated until the outcome of his Covid result.[83]On Saturday 26 September 2020, the claimant travelled to the Czech Republic (Prague) to visit his children. He had booked this flight on 1 September 2020. He returned to the UK on 29 September 2020. He was due to return to work on 30 September 2020. (p146) The claimant confirmed he ordered the Covid test on 22 September 2020, which he sent on 24th. His test result had not arrived by the date he visited Prague.[84]According to Mr G Mason, it was Ms Lam who informed him that the claimant had travelled to Prague to visit his children. It is this information that made him make his enquiries. The claimant did not challenge Mr Mason about this and neither did he provide any evidence that Mr Miah was the person who reported this issue to Mr Mason. The Tribunal accepted Mr Mason’s evidence on this point.[85]On 2 October 2020, Mr Mason emailed the claimant asking for information about his travel abroad, and when he was likely to return to work. (p679) The claimant provided his answers to the questions asked, and in a follow up email explained that .. “ In August when I collected my kids from Prague I had to fill a form in UK Border stating that I was a key worker and exempt from self isolation. I showed the letter from the council and they accepted my form as I didn't need to self-isolate.”(p679) (p127)[86]On 6 October 2020, Mr Mason replied to the claimant’s email. He stated, “ This has presented a number of complexities. First of all, I must clarify with HR further on the particular circumstances however I feel that it is important to point out that you have not yet received test results regarding your Covid test and you travelled abroad. You then returned to the UK and should have been following current guidelines. (see Govt website for details) It is my understanding that the essential workers permit does not allow you to passage to leave and enter the UK in lieu of any government guidelines. I strongly advise you that you should look to follow up and verify the results of the tests you submitted or re-take the tests in order to establish your current status. You should at this stage be quarantining which I firmly advise until I am able to establish the full view from HR. I have copied HR who advising on this matter. (p678-9)[87]As part of the investigation process conducted by Mr Mason, Mr Miah was asked to provide background information. Mr Miah, did this by email dated 29 September 2020. This was a reasonable and appropriate line of enquiry made by Mr Mason. Annual leave 7-11 October 2020[88]On 22 September 2020, the claimant requested annual leave for dates 7-11 October 2020. These were approved the same day.[89]According to Mr Miah, he was informed by Ms Lam that the claimant was intending to travel abroad on his annual leave dates in October 2020.[90]The claimant did travel abroad on 3rd October and returned on 5 October 2020. He then travelled again on 7th October and returned on 11 October 2020. The claimant’s understanding was that at this time there was no government restrictions about travelling abroad. (p258)[91]On 9 October 2022, Mr Mason asked Mr Miah to make contact with the claimant to discuss his travel arrangements. According to Mr Miah, he was unable to contact him by tel (mobile). He also messaged him by WhatsApp. The claimant replied by voice mail and confirmed he had not travelled and was at home. Reasons for enquiries[92]The Tribunal noted, as a fact, during the period September to November 2020 there was a lockdown situation with restricted gatherings and movements. Accordingly, it was not unreasonable for the respondent to question the claimant about his travel movements during this period, in view of his discussions with Mr Miah from around 20th September 2020. Claimant’s suspension on 4 December 2020[93]On 4 December 2020 the claimant was formally suspended from his duties pending an investigation to allegations of;(i) Breach of expected Values & Behaviour;(ii) Misue of property or name;(iii) A serious breach of Health & Safety. Details of this suspension was confirmed by a letter dated 4 December 2020 which was handed to the claimant at his meeting with Mr Mason. (p254-255)[94]The Tribunal concluded, contrary to the claimant’s assertion, the respondent had reasonable cause to suspend him given the lockdown restrictions; the concerns about Health &Safety, and an integrity issue as explained by Mr Mason[95]Given the claimant’s relationship and past history with Mr Miah, he was suspicious about Mr Miah and his involvement in this matter. On the facts, there was no evidence before this Tribunal or that it could draw an inference to support the claimant’s assertion. The fact is Mr Miah, was involved in the initial fact finding process as he was involved and had held discussions with the claimant about his leave and travel. It was limited to that only. Further, the decision to suspend the claimant was that of Mr Mason and not Mr Miah.[96]In terms of the process followed by the respondent to suspend the claimant approval had been obtained from Richard Grice, Director Of Customers, Transformation & Resources. On 25 November 2021 the Respondent gave the claimant a final disciplinary warning for no good reason, having been influenced by Jay Miah to do so.[97]Following the claimant’s suspension, an investigation into the allegations was conducted by Ms Kim Burton (Service Desk Manager). By a Report dated 23 June 2021, Ms Burton recommended that the matter proceed to a Disciplinary Hearing. (p154-163) The Tribunal noted the claimant took no issue about this Report or the recommendation made. Disciplinary[98]By letter dated 16 November 2021, the claimant was invited to attend a formal Disciplinary Hearing before Mr Paul Dooley, (Chief Information Officer). This meeting was held on 25 November, and on two further days on 1 & 9 December 2021. At these hearings the claimant was represented by his Union Representative.[99]The Tribunal noted that at the request of the claimant, Mr Miah attended the hearing held on 9 December 2021, and that he was questioned by the claimant’s Union Representative. (p337-351)[100]The outcome of the disciplinary hearing was communicated by letter dated 13 December 2021. (p371-373) The claimant was issued with a Final Written Warning to remain on his file for 12 months.[101]Mr Dolley concluded that the claimant accepted that he had travelled during the two periods without a negative Covid test and that he had used the Key Worker letter to believe that self-isolation was not necessary. Further, Mr Dooley concluded the claimant had returned to work without a commitment to the self-isolation guidance.[102]The Tribunal gave consideration to the reasons given for the disciplinary sanction. The Tribunal was satisfied that on the facts it was reasonable for the R to hold the belief that the claimant had breached its disciplinary code of conduct. It was therefore reasonable to impose the sanction it did.[103]There was no evidence before the Tribunal to support the claimant’s assertion that he influenced the disciplinary process or the outcome of that process. Mr Miah’s involvement in this disciplinary process was limited to the interview held on 9 December 2021. Neither was he interviewed by Mr Dooley. The Tribunal accepted Mr Dooley’s evidence in respect of his dealings with Mr Miah. On 23 May 2022 the Respondent dismissed the claimant’s appeal against his disciplinary sanction, having been influenced by Jay Miah to do so.[104]The claimant appealed against the outcome by email dated 16 December 2021. (p374). The grounds of appeal were;a. The procedure was applied incorrectly;b. The evidence did not support the conclusion of the hearing;c. New evidence has come to light that was not available at the time of the hearing;d. The sanction given was too severe.[105]The appeal was heard by Ms Susie Faulkner (Director of Customers, Transformation & Resources) The appeal hearing was held on 30 March & 7 April 2022. In her witness statement, Ms Faulkner confirmed she only spoke with Mr P Dooley or HR. She took into account the claimant’s representations and evidence provided. Ms Faulkner did not consider it appropriate to overturn the findings made by Mr Dooley. However, she did reduce the length of the warning from 12 months to 6 months on the basis of the delays encountered in dealing with this disciplinary process and keeping the claimant suspended from work, which the Tribunal found was unnecessarily excessive and not necessary. Ms Faulkner confirmed her decision by letter dated 18 May 2022. (p558-559)[106]The Tribunal concluded there was no evidence to support the assertion that the appeal was dismissed because of any influence from Mr Miah. Although the Tribunal did not hear from Ms Faulkner, the Tribunal was satisfied that she was not involved with Mr Miah, in this process. Mr Miah was not interviewed in this process either.[107]The Tribunal also noted that as part of the appeal, the claimant did not complain that Mr Miah had influenced the disciplinary process or outcome. For the reasons stated, the Tribunal concluded this complaint has not been made out. On 20 July 2022 Jay Miah forced the claimant to take on project work which was beyond his competence, without consulting the claimant about it.[108]On or about June 2022 Mr Miah asked the claimant to be involved in some project work. The claimant replied by email dated 27 June 2022. He stated, “Thank you for inviting me in the project work, however I have been away from work for such a long time never done project work in the past. I feel I will need some training before I can get into it. I would be best to shadow you or Ashley first before I can take any kind of task like this.” (p561)[109]The Tribunal noted the email exchange between Mr Miah and the claimant. (p56-561) Mr Miah explained to the claimant that the task he was being required to do matched his competencies and experience, and that he had the skills to do. In reply, the claimant said, “ ..I do not trust you or the Council. I am very suspicious with this sudden project work. I don’t see what’s changed suddenly and I am being given project work now…… I’ve never done project work therefore please let me carry on my doing my job ……”(p560)[110]In subsequent correspondence, the claimant emailed Mr Miah, on 14 July 2022, in which he stated, “ As I informed you before, I don’t feel competent enough to take on such task. It is not something that I have done before and I simply cannot do it.” (p565)[111]By a further email dated 20 July 2022, the claimant wrote to Mr Miah, “I will be accepting this meeting with protest. I have informed you numerous times before that the work you are asking me to do is beyond my ability. This is something that I have not seen before. You did not consult/discuss with me before signing me this job. I did inform me that I would need some training before I can take on such a task. I also informed you that I am currently suffering from anxiety and stress purely from ongoing issues with you and the council. I am not able to think properly and unable to cope with any additional workload…(p564)[112]The fact is the claimant declined to do the assigned work. It is not in dispute the claimant did not do the assigned project work.[113]The claimant’s complaint is that he was forced to do some project work without being consulted. From the emails referred to the Tribunal accepted that Mr Miah did not first consult the claimant about the assigned project work. The Tribunal observed that it would have been prudent for Mr Miah to have first spoken with the claimant, however the fact he did not do so, was not because the C was a non-practising Muslim.[114]There fact is the claimant did not do any project work. In cross examination, the claimant accepted this. Therefore from the claimant’s own evidence this complaint is not made out and must therefore fail. The Law Equality Act 2010 (“EQA”)
The Law
[115]Section 13(1) provides, “An employer(a) (A) discriminates against another(b) (B) if because of a protected characteristic a treats B less favourably than he treats who would treat others.” Comparison by reference to circumstances[116]Section 23(1) EQA deals with comparisons, and provides:- “On a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case”. A comparison may be made with an actual individual or a hypothetical individual. Burden of proof[117]The burden of proof provisions are set out in section 136 EQA:-(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.[118]In Barton v Investec Henderson Crosthwaite securities Ltd (2003) IRLR 332, the EAT set out the guidance to tribunals on the burden of proof rules then contained in the Sex Discrimination Act 1975. This was approved by the Court of Appeal in Igen Ltd and others v Wong and others (2005) ICR[119]The conventional approach involves a two stage approach by the tribunal. At stage 1 the question is; can the claimant show a prima facia case? If so, then the tribunal moves onto stage 2 and asks itself; is the respondent’s explanation sufficient to show that it did not discriminate.?[120]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the tribunal’s focus should be on whether it can properly and fairly infer discrimination (Laing v Manchester City Council [2006] ICR 1519). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board [2012] UKSC 37).[121]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc [2007] IRLR 246). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society [2003] IRLR 640). Direct discrimination[122]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed [2009] IRLR 884). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor [1996] IRLR 372).[123]Bad treatment per se is not discriminatory; what needs to be shown is worse treatment than that given to a comparator.- Bahl v Law Society 2004 IRLR 799 (CA). Unreasonable behaviour alone cannot found an inference of discrimination but if there is no explanation for the unreasonableness, the absence of an explanation may give rise to this inference of discrimination. The Court of Appeal said that proof of equally unreasonable treatment of all is one way of avoiding an inference of unlawful discrimination, but it is not the only way. At paragraph 101 Gibson LJ said quoting from Elias J in the EAT in the same case; “ The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. 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 to be made.”[124]The fact that a claimant has been treated less favourably than an actual or hypothetical comparator is not enough to establish discrimination. Something more is required, In Madarassy v Nomura International Plc (2007) ICR 867, Mummery LJ said; “ The base facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, a sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”[125]In determining whether discrimination has taken place, the tribunal must enquire as to the conscious or subconscious mental processes which led the alleged discriminator to take a particular course of action in respect of the claimant, and to consider whether a protected characteristic played a significant part in the treatment. (Nagarajan v London Regional Transport and others (1999) ICR 887 (HL) Time Limits[126]Section 123 Equality Act 2010 (1) [Subject to [sections 140A and 140B],] proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[127]Where there are multiple allegations of discrimination, the later of which are in time and the earlier of which are not, the Tribunal should focus on the substance of the complaints and ask whether that is an act extending over a period as distinct from a succession of unconnected isolated specific acts, for which time would begin to run from the date when each specific act was committed. (Hendricks V Commissioner of Police for the Metropolitis (2003) IRLR 96)[128]The Tribunal can extend the time if it considers the claim was presented within “such other period as the employment tribunal thinks just and equitable” (s123(1)(b). It is for the claimant to persuade the Tribunal it is just and equitable to extend time. (Adedeji v University Hospitals Birmingham NHS Foundation Trust (2021) EWCA Civ 23)
Conclusion
[129]In order to decide the complaints of direct religious discrimination the Tribunal had to determine, first whether the respondent subjected the claimant to the treatment complained of as set out in the list of issues and then go on to decide whether this was less favourable treatment (i.e did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (i.e comparators) in not materially different circumstances. Then Tribunal had to decide whether any such less favourable treatment was because of the claimant’s religion.[130]Based on the findings of fact and the conclusions reached as set out above, the Tribunal repeats its determination below. Conclusion on each individual complaints as set out in the List of Issues; Between early 2017 and August 2022 the claimant’s Manager Jay Miah subjected the claimant to criticism for not practising Islam.[131]The Tribunal determined this complaint was not made out as set out in Paras 44-52 above. Even if this complaint had been made out, the Tribunal would have determined the complaint is hopelessly out of time, and would not have exercised its discretion to extend time. Between early 2017 and August 2022 Jay Miah gave the claimant less overtime than his junior colleague Ms Choi Lam.[132]The Tribunal determined this complaint was not made out as set out in Paras 53-58. The Tribunal was unable to determine this complaint due to lack of particularisation. The claimant made a general allegation that he believed he received less overtime than Ms Lam, asserting that this must have been because of a difference in religion and/or that he did not practice his religion. Given the lack of information and evidence the claimant has not made out a prima facia case, therefore this complaint failed. Between early 2017 and August 2022 Jay Miah denied the claimant opportunities for upgrade works or Data Center moves.[133]The Tribunal determined this complaint was not made out as set out in Paras 59-62. The claimant has not made out a prima facia case, therefore this complaint failed. Between early 2017 and August 2022 Jay Miah threatened the claimant that he could lose his job for sickness absence despite the claimant taking relatively little time off sick. The claimant confirmed the date to be in January 2019[134]The Tribunal determined this complaint was not made out for the reasons as set out in Paras 63-73. In 2018 Jay Miah criticised the claimant for not helping a customer when no such complaint existed.[135]The Tribunal determined this complaint was not made out for the reasons as set out in Paras 74-76. In 2018 Jay Miah told the Claimant he was being weak and threatened him that he could lose his job when he had a mental breakdown.[136]The Tribunal determined this complaint was not made out for the reasons as set out in Paras 77-79. On 4 December 2020 the Respondent suspended the claimant until 25 November 2021 for no good reason, having been influenced by Jay Miah to do so.[137]The Tribunal findings are set out in Paras 80-87. The Tribunal determined that the respondent had reasonable cause to suspend the claimant and that Mr Miah did not influence the decision to either investigate or suspend the claimant. Mr Miah became aware of the suspension after the suspension took place. The claimant has not shown a prima facia case. Even if the Tribunal found the claimant had shown a prima facia case, the Tribunal is satisfied that a comparator would not have been treated any differently in the same circumstances. On 25 November 2021 the Respondent gave the claimant a final disciplinary warning for no good reason, having been influenced by Jay Miah to do so.[138]The Tribunal determined this complaint was not made out for the reasons as set out in Paras 99-103. On 23 May 2022 the Respondent dismissed the claimant’s appeal against his disciplinary sanction, having been influenced by Jay Miah to do so.[139]The Tribunal determined this complaint was not made out for the reasons as set out in Paras 104-107. On 20 July 2022 Jay Miah forced the claimant to take on project work which was beyond his competence, without consulting the claimant about it.[140]The Tribunal determined this complaint was not made out for the reasons as set out in Paras 108-114.[141]For the reasons stated the claimant’s claim is not well founded and is dismissed.