Mr A Mostovoy Tarasova v Airbus Defence and Space Ltd: 3310882/2023

EMPLOYMENT TRIBUNALS

Case No 3310882/2023

Between

Mr A Mostovoy TarasovaClaimant

Airbus Defence and Space LtdRespondent

Before

Employment Judge Murdoch

In person for claimant

Mr Pincott (instructed by counsel) for respondent

Date 18 November 2024

JUDGMENT

[1]The complaint of automatic unfair dismissal for making a flexible working request is not well-founded and is dismissed.

[2]The complaints of direct discrimination on grounds of age and race are not well-founded and are dismissed.

[3]The compliant of victimisation is not well-founded and is dismissed.

REASONS

JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

Introduction

[1]The claimant was employed by the respondent as a Programme Manager from 5 July 2021 until his dismissal on 23 May 2023. Early conciliation started on 27 July 2023 and ended on 31 August 2023. The claim form was presented on 16 September 2023, presenting claims of discrimination (age and race), victimisation and automatic unfair dismissal.

[2]The claim is about the way in which the claimant says he was treated, primarily by his line manager Mr Dugo, during his employment. Matters escalated in spring 2023, and the claimant says he raised a complaint of discrimination on 2 May 2023.

[3]During this time, the respondent says that the claimant was subject to the respondent’s “Restore Performance Procedure”, which commenced on 27 January 2023, and following the first formal meeting on 7 February 2023, a Performance Action Plan was put in place.

[4]The claimant attended a final performance review meeting on 23 May 2023, at which the decision was taken to terminate his employment. He says that this dismissal was an act of victimisation following his discrimination complaint on 2 May 2023. He also says that he was dismissed because he made a request to work from home two days a week on short weeks (e.g. those with a bank holiday); this forms the basis of his automatic unfair dismissal claim under section 104c of the Employment Rights Act 1996 (“ERA”).

[5]The claimant appealed his dismissal, and an appeal hearing was held on 15 June 2023. The appeal was not upheld, and the claimant was informed of the outcome by letter dated 20 June 2023.

The hearing

[6]The hearing took place remotely via CVP from 11-18 November 2024. I explained that we were sitting as a panel and that I would be doing most of the talking as I was tasked with chairing the hearing, but that all members have an equal say in the outcome of this case.

[7]The hearing bundle was 267 pages. We read witness statements from the respondent: Mr Dugo (the claimant’s line manager), Ms Martinez (HR Business Partner,) and Mr Bingham (Appeal Officer). We heard oral evidence from the same individuals named above, and claimant himself.

[8]Counsel for the respondent sent a cast list and chronology to the panel and the claimant at the outset of the hearing. This had not yet been agreed by the claimant, but the claimant looked at this during the break and said he had no comment.

[9]I gave oral judgment on 18 November 2024. I received a request for written reasons from the claimant on 2 January 2025.

Preliminary matters

[10]The panel noted at the outset that the paperwork stated that the claimant had hearing difficulties and asked if there were any reasonable adjustments that he required. He said there was not and that he could hear everyone fine. No one else present requested any reasonable adjustments.

[11]Counsel for the respondent noted that the automatic unfair dismissal claim was set out in the latest Case Management Order dated 22 April 2024 as under section 104 ERA but that it was more accurately section 104c ERA. I said that s104c ERA also looked to me like the correct legal framework for the factual matrix in this case. Counsel dropped the link to these two provisions in the chat so that the claimant could have a look at them during the break. Upon return from the hour-long break, the claimant had looked at the provisions and confirmed that he was content with section 104c ERA as the correct legal framework for his claim. Issues for the Tribunal to decide

[12]We agreed with the parties at the outset that the claimant had three complaints as follows: a) Automatic unfair dismissal under s104c ERA; b) Direct race and age discrimination under s13 Equality Act 2010 (“EqA”); c) Victimisation under s27 EqA.

[13]I asked the claimant if he was wished to apply to amend his claim to include disability discrimination, as there were some scattered references to it in the paperwork. He confirmed that he did not.

[14]The issues that the Tribunal need to decide are set out in the Case Management Order dated 22 April 2024. Employment Judge Shastri-Hurst set out the issues as follows: 1. Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 28 April 2023 may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 2. Automatic unfair dismissal – s104 Employment Rights Act 1996

2.1 Was the reason or principal reason for dismissal that the claimant asserted a statutory right (namely a flexible working request)?

2.2 If so, the claimant will be regarded as unfairly dismissed. The respondent denies first that the claimant asserted a statutory right in the manner required and second that this was the reason for dismissal. The respondent asserts that the claimant was dismissed due to performance/capability. 3. Limited remedy issues for automatic unfair dismissal that will be dealt with at the liability hearing 3.1 If there is a compensatory award, how much should it be? The Tribunal will decide:

3.1.1 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

3.1.2 If so, should the claimant’s compensation be reduced? By how much?

3.1.3 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.1.4 Did the respondent or the claimant unreasonably fail to comply with it?

3.1.5 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? 4. Direct age and race discrimination (Equality Act 2010 section 13)

4.1 The claimant’s age group is “under 45” and he compares his treatment with people in the age group of “45 and over”.

4.2 For the purposes of the claimant’s race claim, he identifies as “nonBritish”.

4.3 Did the respondent do the following things:4.3.1 April to May 2023 – the claimant’s line manager, Mr Dugo changing the expectations he placed on the claimant. Specifically, at one meeting, Mr Dugo recorded that the claimant needed to ask more questions, be more involved and try to collaborate. At the next meeting, the claimant was told he was asking too many questions, suggesting a lack of understanding. Then he was told that he was not interacting well;

4.3.2 The claimant’s line manager being biased against him, and not accepting that the claimant had done many tasks on his own, instead attributing them to others. Specifically:4.3.2.1 In spring 2023, the claimant was creating a financial template to cover changes in finances for the project. In a meeting in April 2023 with Mr Dugo and HR regarding finance work packages, Mr Dugo said “this other person did this for you – Josh prepared it, not you”;

4.3.2.2 In the meeting of 23 May 2023, Mr Dugo said “you shouldn't ask someone else to do the work, you should do it yourself”;

4.3.2.3 Also in the meeting of 23 May 2023, Mr Dugo said “someone did this for you and it wasn't your work”;

4.3.3 Mr Dugo blaming the claimant for a project not going well. Specifically, discussing on 23 May meeting growing costs of the project. Mr Dugo blamed the claimant for these costs, despite the claimant saying that it was due to technical issues, and was not his fault;

4.3.4 Mr Paul Cornfield (Product Line Manager) patronising and undermining the claimant in his position as Programme Manager. Specifically, requiring the claimant to group folders, collect information or do another assistant’s work for others. The claimant also alleges that Mr Cornfield was reporting to Mr Perren that the claimant was not doing well;

4.3.5 Mr Cornfield saying to the claimant at the beginning of May 2023 “we are telling you to do that and that” in front of the team, in a Google Meet call;

4.3.6 Being downgraded to a lower position (around February 2022) [the claimant does not know who the ultimate decision maker was, it may have been Mr Dugo’s manager, Matthew Perren]. The claimant’s role did not formally change, but on the project side he was downgraded to report to a new project manager and had his responsibilities altered.

4.4 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 claimant’s. The claimant says they were treated worse than:4.4.1 Allison Lowder, British, Project Manager;

4.4.2 Jan Lewandowski, aged 55-60, Project Manager;

4.4.3 Rosalind Poliakoff, British and older, Work Package Manager;

4.4.4 Matthew Maxfield, British, Work Package Manager;

4.4.5 Shaun Prutton, British and aged around 45, Work Package

4.5 If so, was it because of age and race? The claimant says that he never saw the above people treated as he was, despite having their own issues on their own projects. Yet none of them were treated as he was. He also says that the reasons given for his dismissal were unfounded.

4.6 Did the respondent’s treatment amount to a detriment? 5 Victimisation (Equality Act 2010 section 27)

5.1 Did the claimant do a protected act as follows? 5.1.1 On 2 May 2023, the claimant made a complaint in writing to his manager and HR regarding age and race discrimination. The respondent denies that this is a protected act.

5.2 Did the respondent do the following things. In the meeting of 23 May 2023:5.2.1 Treat the claimant rudely;

5.2.2 Shout at the claimant;

5.2.3 Prevent the claimant from speaking;

5.2.4 Refuse to listen to the claimant’s arguments/justifications;

5.2.5 Dismiss the claimant with immediate effect, as opposed to being given the following options:

5.2.6 Given 30 days’ notice;

5.2.7 Offer another position;

5.2.8 Give the claimant time to find another job, within the respondent or elsewhere

5.2.9 Give the claimant the chance to exercise his right to appeal?

5.3 By doing so, did it subject the claimant to detriment?

5.4 If so, was it because the claimant did a protected act? 6 Remedy for discrimination or victimisation

6.1 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

6.2 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

6.3 Did the respondent or the claimant unreasonably fail to comply with it?

6.4 If so is it just and equitable to increase or decrease any award payable to the claimant?

6.5 By what proportion, up to 25%? The law Time

The law

[15]Section 123 Equality Act 2010 (EqA) states that: (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 purpose 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 treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on expiry of the period in which P might reasonably have been expected to do it. Unfair dismissal

[16]The law in relation to unfair dismissal for the reason of asserting a statutory right is set out in section 104 Employment Rights Act (ERA) 1996 as follows:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following are relevant statutory rights for the purposes of this section— (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal, […]

(5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).

[17]The law in relation to unfair dismissal for the reason that an employee made a flexible working request is set out in section 104C ERA 1996 as follows: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) made (or proposed to make) an application under section 80F, (b). . . (c) brought proceedings against the employer under section 80H, or (d) alleged the existence of any circumstance which would constitute a ground for bringing such proceedings.

[18]The law in relation to an employee making a flexible working request is set out in section 80F ERA 1996 as follows:(1) A qualifying employee may apply to his employer for a change in his terms and conditions of employment if— (a) the change relates to— (i) the hours he is required to work, (ii) the times when he is required to work, (iii) where, as between his home and a place of business of his employer, he is required to work, or (iv) such other aspect of his terms and conditions of employment as the Secretary of State may specify by regulations, ... (b). . .

(2) An application under this section must— (a) state that it is such an application, (b) specify the change applied for and the date on which it is proposed the change should become effective, and (c) explain what effect, if any, the employee thinks making the change applied for would have on his employer and how, in his opinion, any such effect might be dealt with, (5) The Secretary of State may by regulations make provision about— (a) the form of applications under this section, and (b) when such an application is to be taken as made.

[19]The law in relation to the form in which an application for flexible working must be made is set out in Regulation 4 of the Flexible Working Regulations 2014 as follows: A flexible working application must—(a) be in writing;

(b) state whether the employee has previously made any such application to the employer and, if so, when; and

[20]Section 13(1) EqA 2010 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.

[21]Section 23(1) EqA 2010 provides: 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.

[22]As was explained by Lord Scott in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[2003] IRLR 285

, ICR 337: “the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects of the victim save that he, or she, is not a member of the protected class.” Victimisation

[23]Section 27 EqA 2010 provides as follows: (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;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. 24. ‘Detriment’, is not defined by the Act but is a familiar concept in discrimination law. Courts and tribunals have generally taken the view that it covers a wide range of conduct and treatment, and the meaning of ‘detriment’ for the purposes of section 27(1) has similarly been given a broad interpretation.

[25]The EHRC Employment Code, paras 9.8 and 9.9, drawing on the case law under the previous discrimination legislation, contains a useful summary of treatment that may amount to a ‘detriment’: ‘Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards… A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment’. Burden of proof

[26]Section 136 EqA 2010 deals with the reversal of the burden of proof and states: (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.

[27]In short, the first stage requires a claimant to prove that the facts as alleged occurred and that they may have done so because of a reason prohibited by the EqA 2010. Only if a claimant meets this burden does it then fall on a respondent, at the second stage to prove that there is an explanation other than that contended for by the claimant.

Findings of fact

[28]The claimant commenced employment on 5 July 2021 as a Programme Flexible working request

[29]On 18 October 2022, the claimant sent the following message in an email to Mr Dugo: ‘In case of a short 4-day week, are we still required to be 3 days in the office and 1 can WFH, or can be 2/2/? Thank you for clarifying this.’ A further question/discussion on this topic took place on 8 December 2022 via Jabber along similar lines.

[30]The claimant says he did make a formal request for flexible working. But neither the email or the Jabber discussions meet the requirements for the making a formal request for flexible working, and neither indicate that the Claimant proposed or intended to make such an application. The claimant did not say when he wanted the new flexible arrangement to start, and he did not comment on the effect on the business of his requested change. We find that the claimant was in fact just asking for clarification as to how many days he was allowed to work from home on short weeks (e.g. where there is a bank holiday) in accordance with his current contractual provisions. In cross examination, the respondent’s counsel asked him the following question: ‘you were not saying can I have a change in my permanent working arrangements were you?’ The claimant responded as follows: ‘I was referring to four day weeks only – I did not ask about change to normal weeks.’

[31]The claimant says he did not know that a flexible working request needed to be made formally but he could have gone to the hub, the intranet of the respondent, and clicked on the HR tab, which is on the front page, and found the relevant guidance and form. The claimant said that someone should have pointed him to this formal procedure, but it is understandable that Mr Dugo did not, given that the claimant only sought clarification as to the existing understanding with regard to split of time between office and home working on short four-day weeks.

[32]On neither occasion did the claimant allege or assert that there had been an infringement of any statutory right relevant to a claim under section 104 or section 104c ERA, and he did not allege or assert any infringement of his right to request flexible working under section 80F ERA. First performance review (2021)

[33]The claimant’s first performance review (covering the calendar year of 2021) was dated 21 April 2022. The claimant scored himself as 5/5 – exceptional and outstanding achievements. The claimant’s line manager Mr Dugo scored him at 2.7, which rounded up to 3/5 – achievements fully meet expectations. Mr Dugo noted under one of the goals (namely create a sustainable Hyperion development and flight models delivery schedule) that the ‘schedule was in place but needs to be revised’. Mr Dugo also noted under another goal (namely, set up a coherent risk management process) that ‘CPG risk management should be improved, risks mitigation or avoidance plans should be refined for each risk’. Mr Dugo made clear in his oral evidence that he himself was new to the respondent at this stage and gave everyone he managed a 3/5 at this time. But even so, even at this early stage, this review shows that Mr Dugo is seeking improvement from the claimant’s performance. Second performance review (2022)

[34]The claimant’s second performance review (covering the calendar year of 2022) was dated 17 April 2023. The claimant scored himself as 4/5 – significant additional achievements. The claimant’s line manager Mr Dugo scored him at 2.18, which rounded to 2/5 – achievements mostly meet expectations (rating description as ‘some gaps to the expected level of contribution and/or demonstration of OurValues were observed). It is clear throughout the appraisal report that Mr Dugo is seeking improvement from the claimant’s performance. Examples include comments from Mr Dugo, such as: a) “he still has [communication skill] gaps that need to be resolved in the short term’ b) ‘he was supposed to drive all processes and be sure that they were applied in the correct way in the project – this driving has not been seen’ c) ‘Finances are still a big concern for Hyperion. Role of Alex was to make clarity and to share finances reports to the management. His approach is most following more than driving. He needs to drive this discussions, discover where gaps are and take corrective action, till now this approach has not been seen’ d) ‘The goal [Reconcile actual Hyperion Work Packages finances with the updated project's Work Packages and make clarity on SoW] has not properly achieved. Alex has been asked to review the SoWs and SSoWs but his contribution was just to send emails about the status of the documents without any follow up. As per the previous goals he more following than driving the activities’ Restore Performance Procedure leading to the claimant’s dismissal

[35]On 27 January 2023, the respondent sent a letter to the claimant advising that the formal performance procedure is commencing in line with Appendix 3 of the Restore Performance Policy, which is the procedure for employees with less than 2 years service. A performance meeting between claimant and Mr Dugo took place on 7 February 2023, with Ms Martinez also in attendance. We accept Mr Dugo’s contention that he had already discussed 3-4 times with the claimant why he is not achieving the targets required. Mr Dugo gives the claimant extensive feedback during this 7 February 2023 meeting, and explains to the claimant what he needs to do to improve.

[36]The next day on 8 February 2023, the performance plan is updated and provided to the claimant. It clearly and in detail sets out the areas of improvement for the claimant, such as communication, team work and technical knowledge, it sets out the expected standard of performance, the agreed improvement actions, support required, and the review dates.

[37]The 14 March 2023 was the first review date in the action plan, and there are comments in the ‘review comments’ column, where the claimant shows some improvement. He had attended training in communications, for example, but when asked about the training content, the review notes that he demonstrated gaps and wasn’t able to present clearly what he had learned. Mr Dugo also mentioned in oral evidence that the claimant did do relevant training courses, but did not then implement the learning into real life.

[38]On 18 April 2023, there was a second and final performance procedure meeting between Mr Dugo and the claimant, with Ms Martinez present again. Detailed feedback and examples were provided to the claimant. For example, Mr Dugo says that the claimant needed to take accountability. Mr Dugo says the claimant needed to be more proactive, he didn’t take ownership, and that he has done nothing to interact with the team. Mr Dugo notes that the claimant had been asking questions but the answer to the questions was already available, so explains to the claimant that he should check before asking. Mr Dugo states that the claimant is not doing what is expected of him at the level of a PMO manager. Mr Dugo makes clear that the claimant has not passed the action plan. Ms Martinez then confirms to the claimant that the next steps in the policy are to invite the claimant to a meeting to discuss his performance where Mr Dugo will decide on next steps which include extension of plan or dismissal.

[39]The next day on 19 April 2023, the claimant is sent a letter inviting him to a formal meeting on 4 May 2023. The letter states that the purpose of the next meeting is to formally address the claimant’s failure to deliver improved performance. The letter summarises what has happened to date and states that the respondent will decide at the 4 May meeting on any appropriate action, after considering alternatives, such as extending the Performance Action Plan. The letter also notes that the respondent is considering terminating the claimant’s contract, subject to any representations the claimant may make.

[40]The final formal meeting date is then moved from 4 May to 23 May. This is because HR decide to take the meeting slot booked for 4 May to discuss the discrimination allegations made, which we will come on to in the next section. The respondent sends a letter to the claimant on 16 May to confirm in writing that the 4 May meeting has been rescheduled to 23 May.

[41]At the final performance procedure meeting on 23 May 2023, the claimant’s employment was terminated. The meeting lasted over six hours (with a two hour break) and the meeting notes run to 22 pages. Mr Dugo shows the claimant a spreadsheet containing all the feedback he had collected – although without names. This spreadsheet of feedback was not provided in the bundle. Mr Dugo states in the 23 May meeting that the majority of people he had sought feedback from stated that the claimant was not communicating or interacting with the team and that the claimant demonstrated a lack of proactivity. Mr Dugo states that the claimant has not improved since the beginning of the process. Mr Dugo says that the feedback he gave the claimant at the beginning of the process is the same as the feedback now. There are numerous specific examples and evidence that is provided by Mr Dugo throughout this meeting. We accept the respondent’s submission that Mr Dugo set out in great detail why he had not achieved the individual objectives he had been set and that the claimant remained in complete denial that it was the respondent’s view that he was unable to meet the required standards. The respondent then asked the claimant to hand over his laptop, pack up his things, and leave the building. The claimant was told he would be paid his month long contractual notice pay in lieu.

[42]We think it is important to pause here to note a discrepancy between the paperwork and the oral evidence. All the respondent’s paperwork states that the ultimate decision was taken at this final meeting (which was ultimately held on 23 May), but what actually transpired in oral evidence was that Mr Dugo made the decision to dismiss the claimant somewhere between 18 April and 3 May. The respondent therefore knew potentially up to a month longer than the claimant knew that he was going to be dismissed. The claimant was kept in the dark during this period of time, clearly still believing that he was not going to be dismissed when Mr Dugo had already decided to dismiss him. Mr Dugo did not make the final decision after hearing representations from the claimant at the final meeting on 23 May, as the invitation letter had indicated. Mr Dugo admitted in oral evidence that he had in fact already made his decision, which raises a question as to the purpose of the protracted meeting on 23 May, if it was not to hear and reflect upon the claimant’s representations. It is also worth noting that if this were a normal unfair dismissal claim, which would have required over 2 years service, this admission by Mr Dugo of his pre-determined view prior to the final stage in the dismissal proceedings would be considered a significant failure in the fairness of the respondent’s procedure. It is, however, not a normal unfair dismissal case, so this finding has no impact on the legal tests that we are applying in this case.

[43]On 26 June 2023, the respondent sent a letter to the claimant confirming his dismissal. Allegation of discrimination

[44]On 2 May 2023, the claimant wrote an email to Mr Dugo and Ms Martinez alleging discrimination. The claimant says he has been thinking about the meeting on 18 April and the outcome is still not clear to him. He states that he is in fact going beyond his current PMO manager role. He also states that he has not received any constructive feedback from his line manager to help him improve. He then goes on to say that ‘this looks like a discrimination case on protected grounds’.

[45]Ms Martinez stated in her oral evidence that she responded via email to this allegation, decided to take the meeting slot already booked for 4 May to deal with the discrimination allegations, and postponed the restore performance meeting until 23 May. This email response from Ms Martinez is not in the bundle, which is surprising, given it is highly relevant in this case. When I asked Ms Martinez why her email was not in the bundle, she replied that it was an oversight. Our view as a panel is that the appropriate response to an allegation of discrimination at this stage would have been to point the claimant to all the polices and information that would have helped guide him at this stage. Ms Martinez could have sent the claimant the respondent’s internal policies on equalities, dignity at work, grievances, and appeals. She did not send him any of these policy documents. We do not make a finding on why Ms Martinez did not guide the claimant at this point in time, but we do find that Ms Martinez did not signpost the claimant in the right direction for guidance in the face of his discrimination allegations.

[46]It is also worth noting for completeness that the Restore Performance Policy states that this may be stressful time for an employee and that information and support regarding health and well-being should be made available to the employee, and that occupational health should be involved if there is risk of a discrimination claim. The claimant was not offered this support.

[47]On 4 May 2023, the claimant met with Ms Martinez to discuss his discrimination allegations. Ms Martinez sets out all the protected characteristics at the beginning of this meeting. The claimant started by raising his hearing difficulties as a potential disability discrimination, which he chose not to pursue further in these Tribunal proceedings. He said the alleged discrimination had started around the end of 2022 or beginning of 2023. When asked by Ms Martinez if there were any other disabilities, he says no, and they move on to discuss nationality. Ms Martinez asks the claimant if Mr Dugo has ever said anything to him or sent anything to him that discriminated against him on race/nationality grounds. The claimant says ‘I don’t remember him saying anything explicitly or directly’ and then mentions something about a AC0. Ms Martinez asks how out of that AC0 conversation he felt discriminated against because of his race. The claimant answers: ‘In this specific example he didn’t say anything specific, just putting me down in front of the team. I don’t want to lie, explicitly he didn’t say anything about my race.’ Ms Martinez goes on to ask ‘ever?’ and the claimant replies: ‘I don’t want to lie, just know he knows my CV and background, just want to understand why putting me down on this review...’ The claimant has added a sticky note after he has received the notes of this meeting and at this point in the minutes, he says on the sticky note: ‘I forgot to mention this but the project management team is also generally much older than me, so I’m probably the youngest manager, with the gap of 20-30 years.’ The claimant then later in the meeting says ‘age, I am younger than him, he might look at my CV. I don’t have anything specific.’ When pushed by Ms Martinez to provide any evidence or specific details in regards to age, the claimant answers ‘nothing I can remember – don’t want to lie – might be anything.’

[48]Although we have found that the claimant could have been supported by HR better in terms of being sent the relevant policies in advance of the meeting, it is clear from the meeting notes, even the ones with the claimant’s sticky notes on it, that the claimant was unable to provide any specific examples or evidence of disability, race or age discrimination, which clearly hindered the respondent’s ability to undertake further investigations. Appeal proceedings

[49]On 30 May 2023, the claimant sent his appeal letter to the respondent. The claimant had not been provided with nor read the respondent’s appeal procedure before submitting his appeal. The claimant commented under each heading why he disagreed, often citing that the action plan had not created a SMART objective. One example is that he takes issue with the phrase: ‘increase proactivity’. The claimant says that he had successfully completed the restore performance action plan and that termination of his employment was not justified.

[50]On 9 June 2023, the respondent wrote to the claimant inviting him to an appeal hearing on 15 June 2023. The appeal was held by Mr Bingham, Head of Mechanical Platform Projects, with Jacqueline Maddon (an HR Business Partner) as note taker. The appeal meeting took place on 15 June 2023 and lasted just over one hour. On 20 June 2023, the respondent wrote to the claimant, setting out the appeal officer’s view on the action plan, expectation, feedback and process. The letter informed the claimant that his appeal had been rejected. It also made clear that the other job that the claimant had applied for internally had been unsuccessful and that the recruiters were not aware of the claimant’s departure. General comment

[51]The claimant had an opportunity to review all the meeting notes, and bar the first meeting in February, he did so by amending the comments made in the meeting notes. The panel reviewed the version of notes that the claimant had amended.

Conclusions

[52]We will set out our conclusions against the list of issues: Time

[53]As set out earlier, early conciliation started on 27 July 2023 and ended on 31 August 2023, and the claim form was presented on 16 September 2023. Employment Judge Shastri-Hurst set out in the Case Management Order dated 22 April 2024 that given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 28 April 2023 may not have been brought in time.

[54]We agree. Acts that fall within the time limit set out in section 123 of the Equality Act 2010 include the claimant’s dismissal on 23 May 2023 and all acts complained of that happened from 28 April 2023. At the first stage of the test, therefore, we find that complaints occurring before 28 April 2023 are out of time.

[55]However, we find that events and evidence connected to the Restore Performance Policy are all related to the same conduct extending over a period of time. The claimant was formally notified on 27 January 2023 that he would be subject to the respondent’s Restore Performance Policy, and all meetings, action plans, reviews etc that occurred in relation to this policy are therefore all part of the same conduct.

[56]There are two allegations in the list of issues which appear to have occurred before the 27 January 2023 as follows: a) The claimant’s complaint that Mr Cornfield (Product Line Manager) patronised and undermined the claimant by asking him to do work that was below his level of qualification and seniority, and that Mr Cornfield reported to Mr Perren that the claimant was not doing well. This allegation is undated in the Case Management Order but in the claimant’s witness statement, he implies that this conduct was around the time that he joined the company in July 2021. b) The claimant’s complaint that he was downgraded to a lower position around February 2022.

[57]We find that it is not just and equitable to extend time to include conduct occurring before 27 January 2023. Our reasons are as follows: a) The claimant conceded in cross examination that the reason for his delay in bringing proceedings for conduct that had occurred before the limitation period was as a result of a conscious decision to concentrate on achieving this objective in his employment, rather than pursue claims of discrimination. The claimant also noted that he did not know of the existence of an Employment Tribunal. The claimant is an educated person with access to the internet and he was quite capable of researching this issue and/or reaching out for assistance if he so wanted to. b) Responding to the above two examples of conduct that occurred before 27 January 2023 puts the respondent at a disadvantage, especially as the behavior occurred several years ago now. c) It is also noted that both allegations of conduct occurring before 27 January 2023 have not been clearly pleaded in a way which would have allowed the respondent to gather evidence and effectively respond.

[58]Any conduct that is considered before 27 January 2023 in our findings of facts is therefore strictly only considered as background context. Unfair dismissal

[59]As set out earlier, the claim for automatic unfair dismissal in this case is under section 104c ERA, as the claimant did not have the requisite length of service to claim normal unfair dismissal.

[60]We have already found, factually, that the claimant did not actually assert his statutory right to make a flexible working request.

[61]And even if we are wrong on that point, we have no hesitation in finding that the reason or the principal reason for dismissal was not related to any flexible working request. The reason for dismissal was very clearly that of capability and performance. Direct age and race discrimination

[62]We consider first whether the list of conduct under section 4.3 of the list of issues occurred: a) 4.3.1. Mr Dugo gave the claimant feedback at the first Restore Performance meeting on 7 February that the claimant needed to be more visible, interact with the team, take more responsibility and drive the project forwards. The claimant pointed us to a section of the minutes where Mr Dugo says to the claimant that he needs to engage with colleagues, speak to people, and collate everything into a report. At the second review meeting of 18 April 2023, Mr Dugo told the claimant that when he was asking questions, he should try to make sure he is not asking questions in relation to subject matter that had already been discussed or where information was already available. The respondent explained this sufficiently, set out detailed feedback in its action plan, and reviewed it. Our view is that these two pieces of feedback can perfectly comfortably sit together concurrently, without there being any contradiction, and without there being any change in expectation. b) 4.3.2. It is not disputed that Mr Dugo told the claimant that Josh had prepared work which he had wanted and instructed the claimant to prepare. We can see this from the minutes of a meeting between the claimant, Mr Dugo and Ms Martinez, held on 18 April, which was the second review meeting for the claimant’s under the Restore Performance Policy, where Mr Dugo is explaining to the claimant how he had underperformed on a certain task, and noted that the claimant had just sent him something that ‘Josh had prepared’. The claimant (in his sticky note version of these minutes) states that he did not send Mr Dugo what Josh had prepared. We can also see from the minutes of the final meeting under the Restore Performance Policy between the claimant, Mr Dugo and Ms Martinez, held on 23 May, that Mr Dugo mentioned that he had checked and found that Josh was doing finance tasks that the claimant said he himself was doing. c) 4.3.3. We do not accept that Mr Dugo blamed the claimant for the project as a whole not going well. As recorded in the minutes of the meeting on 23 May 2023, Mr Dugo explained to the claimant that he was responsible for the processes on [project name], not the success of the project as a whole. Mr Dugo highlighted to the claimant that he needed to be more transparent for the cost overrun, and take greater responsibility for gathering financial data. Mr Dugo also explained when he was being cross-examined that he was not blaming the claimant for losing £1m, he was just picking the claimant up for missing the data figure of 1m out of a spreadsheet that the claimant was responsible for creating, and for not being precise. Mr Dugo said that thankfully another colleague spotted and corrected the claimant’s error. Mr Dugo also said that the claimant did not apologise for this mistake and offer to put it right, that he saw nothing more from the claimant on this point, and that it was an example of the claimant’s lack of proactivity. The claimant’s own interpretation may have been that he felt he was being blamed, but that was his own choice of words. There is no evidence to show that the respondent blamed the claimant for the overall financial or technical problems with the project. d) 4.3.4. We will not make a finding on the allegation with regards to Mr Cornfield patronising and undermining the claimant when he joined the company in 2021, as we have already found this is out of time. But in any event, the claimant has not particularised this complaint, did not complain about it at the time, and has not brought any evidence to this Tribunal about it. e) 4.3.5. With regards to the allegation that Mr Cornfield said to the claimant at the beginning of May 2023 “we are telling you to do that and that” in front of the team in a Google Meet call, we are unable to accept this happened in the face of such a vague assertion. The claimant was unable to pinpoint what ‘this’ and ‘that’ actually was a reference to, what meeting this comment was have alleged to have been said in, what date it occurred on, what colleagues/witnesses were present, or any other detail in relation to the allegation. The respondent was therefore unable to respond to the allegation in any meaningful way. In any event, even if Mr Cornfield did tell the claimant to do this and that, Mr Cornfield was the Project Manager and reasonably needed to direct people to get things done, so is entirely understandable that he might tell colleagues to do X or Y. f) 4.3.6. We do not need to make a finding on the claimant’s allegation of being downgraded to a lower position in February 2021, as we have already found this allegation to be out of time. But it is worth noting that Mr Dugo’s evidence was that he had been asked by senior management to remove the claimant from the Project Manager role, which is why Mr Dugo created a new PMO role for the claimant that was similar to the role he was previously doing but that had all interaction with internal and external customers removed. It is also worth noting that the claimant did not object to this at the time, as he said under cross examination that he wanted to perform well in this newly defined role, he was motivated, and in a year or so, he could perhaps take on the Project Manager role again. It is also worth noting that it is reasonable for an employer to move people around/across projects because of a client or management request. And finally, it is worth noting that it was not disputed that the claimant’s salary remained the same.

[63]None of the above constitute less favorable treatment.

[64]In any event, the claimant has not advanced any case that shows that any less favourable treatment could have been because of the protected characteristics of age or race. The Claimant was not able to identify any examples or evidence of discrimination on the grounds of age or race.

[65]The claimant says he was treated worse than: a) Allison Lowder, British, Project Manager; b) Jan Lewandowski, aged 55-60, Project Manager; c) Rosalind Poliakoff, British and older, Work Package Manager; d) Matthew Maxfield, British, Work Package Manager; e) Shaun Prutton, British and aged around 45, Work Package

[66]We are not clear on the claimant’s race, other than he is not British. We are also not clear on how the claimant created the profile of these comparators (as it sounded like he was guessing their nationality from the spelling of their name). The claimant did not provide any evidence whatsoever to show why or how he was treated worse than these comparators. These comparators include individuals such as Jan Lewandwoski, who the claimant believed was not of British national origins, and Matthew Maxfield, who the claimant accepted was younger than him. The respondent is a large employer and the profile of its workforce will have an international profile, which was illustrated by some of the respondent’s policies being in various languages. It is also worth noting that the claimant’s case relies on the idea that Mr Dugo treated British nationals more favourably than he was treated, when Mr Dugo is himself an Italian national.

[67]The claimant’s case that British nationals and older employees were treated more favourably therefore simply does not stand up to scrutiny. We accept the respondent’s explanation that the claimant was treated as he was because the respondent believed that the claimant was underperforming, not because of age or race.

[68]The respondent’s treatment of the claimant does not amount to a detriment.

[69]This case really boils down to a perception gap, in that the claimant believed himself to be much more competent and capable than his employer believed him to be. The claimant said under cross examination that he felt he was ‘treated unfairly to everyone else for the whole time’ that he worked for the respondent. This is more of an unjustified sense of grievance. And an unjustified sense of grievance is insufficient to meet the legal test of discrimination. Victimisation

[70]The respondent contends that the claimant did not do a protected act. We disagree. We find that the claimant made a protected act, and we make this finding for the following reasons:

[71]On 2 May 2023, the claimant made a complaint in writing via email to his manager Mr Dugo and his HR business partner Ms Martinez which explicitly stated that he believed he had been discriminated against. A protected act is defined in law as making an allegation (whether or not express) that a person has contravened the Equality Act 2010, which this email clearly does do.

[72]On the 4 May meeting, the claimant then mentions orally, although vaguely and without presenting any tangible examples or example, that the relevant protected characteristics could be disability, age or race.

[73]The claimant intended to make a protected act, and the respondent treated it as such.

[74]Ms Martinez said in her evidence that she priroitised the claimant’s email alleging discrimination and wrote back straight away (although her written response to this protected act was not included in the bundle despite its relevance to these issues). Ms Martinez found a meeting slot asap to discuss it with the claimant further. Ms Martinez said she considered it to be a serious allegation.

[75]This discrimination allegation was separate to the Restore Performance Procedure and was treated as such.

[76]The only treatment which the Claimant says was different to how he was treated prior to the protected act is the behaviour of Mr Dugo in the final meeting of 23 May. So we will now go on to consider whether the respondent did the things listed in section 5.2 of the list of issues in the meeting of 23 May 2023.

[77]Mr Dugo conceded that he spoke loudly in this final meeting on 23 May (having initially described this as shouting and above the line, he explained he had meant talking more loudly than normal). However, Mr Dugo’s evidence was also that the claimant had also raised his voice. We find that is consistent with the evidence from the 23 May meeting minutes, where it is after a comment by the claimant of ‘let me explain’ that Ms Martinez is noted to have said to both Mr Dugo and the claimant: ‘please can we not have raised voices’. We find that both the claimant and the Mr Dugo elevated their voices in an emotionally charged environment, which was quickly brought under control by Ms Martinez’s intervention. There is no evidence to support the claim that this occurred because the claimant had done a protected act. A far more likely explanation, as Counsel for the respondent said in his closing submissions, is that in an emotionally charged environment where the Ccaimant was being challenged about his performance and knew he was likely to be dismissed, Mr Dugo and the claimant were speaking over each other (as they did in cross examination of Mr Dugo as well) and frustrations momentarily boiled over.

[78]We do not find that the claimant was prevented from speaking. We do not find that Mr Dugo refused to listen to the claimant. We find quite the contrary, that the claimant spoke a lot and Mr Dugo was (on the whole) patient and receptive to listening to the claimant’s concerns. The claimant was given every opportunity to speak over a long meeting that spanned most of the day, and was allowed to ask lots of questions, which Mr Dugo did his best to answer fully. It seems clear to us that it was the claimant who was in fact not listening. The claimant has shown himself throughout the whole restore performance process to be unable to receive and accept any feedback from his employer whatsoever.

[79]The claimant was dismissed with immediate effect, but he was given 30 day’s notice payment in lieu of notice. We accept the respondent submission that this is standard practice in circumstances such as these, given the respondent operates in the security sector. But as we have already noted, the respondent could have and should have provided the claimant with all the relevant policies, especially as they had taken away his laptop and access to the intranet. Given the respondent was aware that the final meeting was going to result in a dismissal, they could have ensured the claimant had everything he needed and knew where to seek support.

[80]The respondent did not prevent the claimant from applying for another role within the organisation or elsewhere. The claimant did in fact apply for another position within the respondent’s company. He did not get this job, and he was provided feedback as to why. Mr Bingham, in his appeal outcome letter, as well as in oral evidence under oath, stated that he had asked the recruiting manager whether they had any knowledge of the claimant’s dismissal, and they confirmed that they did not. In any event, it is reasonable for the respondent to have decided not to offer the claimant another role in the circumstances of this case. The claimant’s role has already been redefined once after senior management decided the claimant was not to interact with any customers anymore. The claimant had also been aware from 27 January 2023 that he had been formally admitted into the Restore Performance Procedure, and the letter of 27 January 2023 also makes clear that dismissal is a possible outcome. The claimant also accepted in cross examination that he was aware that dismissal was a possible outcome. The claimant therefore had ample opportunity to apply for other jobs from January 2023 onwards, when he became aware that there was a real possibility of dismissal.

[81]The respondent did not prevent the claimant from exercising his appeal rights, as the claimant did in fact exercise his appeal rights. The claimant said he could not find someone to accompany or support him in the appeal meeting, but he raised this for the first time when cross-examining Mr Bingham. We find that the claimant could have asked the respondent to postpone the appeal meeting in order to give him time to seek representation, if he was keen to find representation. The respondent had already shown they were willing to postpone meetings for him, such as postponing the 4 May meeting to 23 May to take account the claimant’s leave dates in the middle of May.

[82]To sum up on this claim of victimisation, there is nothing which the claimant complains about which amounts to victimisation. Burden of proof

[83]The claimant has failed to meet the burden placed on him at the first stage, as he has not shown that there are facts from which the Tribunal could decide that a contravention of the Equality Act 2010 has occurred. No burden passes to the respondent in these circumstances. Approved by:

Conclusions

[1]Written reasons for the judgment were sent to the parties on 29 April 2025. The claimant’s application for reconsideration was received within the relevant time limit in accordance with Rule 69 on the Employment Tribunal’s Procedural Rules. It consists of a 12 page document entitled ‘claimant’s request for reconsideration’. This is accompanied by various attachments, including the claimant’s contract of employment, which he describes as new evidence.

[2]The claimant’s application for reconsideration was copied to the respondent. No response from the respondent was received. The claimant sought further disclosure from the respondent, which the respondent denied on the basis that the Tribunal had already reached its decision on the matter and there was no obligation or legal requirement for further evidence to be provided.

[3]The claimant applies for reconsideration on the basis that the Tribunal had ‘no evidence to support its decision’ and ‘the decision was unfairly biased towards the respondent’s side’.

[4]The claimant is a litigant in person who, being dissatisfied with the outcome, now seeks through this reconsideration application to re-argue points that were fully addressed at the hearing. The application does not raise new matters but instead revisits evidence already considered in detail by the Tribunal. By way of example, the claimant complains that his line manager gave contradictory instructions as to whether he should ask more questions or less questions. That issue was expressly dealt with at paragraph 62(a) of the written reasons. It is not appropriate for the Tribunal to reconsider evidence that has already been evaluated and determined. Case No: 3310882/2023

[5]The contract of employment could have been included in the original hearing bundle of course, but in any event, it does not change the Tribunal’s consideration of the flexible working request in any way. The Tribunal found that the claimant did not actually assert his statutory right to make a flexible working request, and noted that even if we were wrong on that point, we had no hesitation in finding that the reason or the principal reason for dismissal was not related to any flexible working request. The reason for dismissal was very clearly that of capability and performance.

[6]It is not the purpose of reconsideration to allow a party to the opportunity to rehearse the arguments that have already been made and explored. It is a fundamental requirement of litigation there is certainty and finality.

[7]If the claimant wants to argue that there was an error of law, this is a matter for appeal and not reconsideration.

[8]This application does not raise any new information or which he could not have raised at the hearing which would make reconsideration necessary in the interests of justice.

[9]In the circumstances the application for reconsideration is rejected on the basis there is no reasonable prospect of the judgment being varied or revoked. Accordingly, the application for reconsideration is refused. Approved by: