Mr K Grossett v Johnson & Johnson Ltd (T/a Kenvue): 3313475/2023
EMPLOYMENT TRIBUNALS
Case No 3313475/2023
Between
Mr K GrossettClaimantJohnson & Johnson Ltd (T/a Kenvue)Respondent
Before
Employment Judge Young
Members
Ms N DuncanMr N RamgolamIn person for claimantMr Sellwood (instructed by Counsel) for respondentMr Matthew Sellwood (instructed by Counsel) for respondentDate 2 April 2025
JUDGMENT
[1]Any claim for unlawful deduction from wages is dismissed on withdrawal by the claimant.
REASONS
[1]The Claimant was employed by the Respondent, a consumer healthcare business, as a Commercial Strategy and Planning Manager, from 12 October 2021 until his redundancy 30 September 2024. Early conciliation started on 21 September 2023 and ended on 2 November 2023. The claim form was presented on 26 November 2023. Hearing and Evidence[2]We were provided with a bundle of 589 pages and an index. On day 5 we were provided with an agreed Supplemental bundle of 8 pages and a table of statistics of the ethnic make-up of the Respondent staff and managers during the Claimant’s employment which was added as page 9 of the Supplemental bundle. We had witness statements from all the witnesses we heard from. We heard oral evidence from the Claimant, and evidence from the Respondent’s witnesses of James Killer (Business Unit Head for UK Commercial Strategy and Revenue Growth Management), Claire Silver Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 (High Street and Pharmacy Channel Director), Christine Baker (Senior Commercial Strategy and Planning Manager for Aveeno and Piz Buin) and Michael Morris (Director of Medical Affairs).[3]On day 1 of the hearing, 25 February 2025, the Employment Tribunal dealt with the Claimant’s applications which were resolved by agreement. The Respondent provided an agreed list of issues following the Claimant’s applications.[4]The Claimant said that wanted to change issue 2.2.6 to “fail to fairly assess the Claimant for promotion.” The Claimant said that he wanted to be clear that he is not complaining that he wasn’t promoted but the process. Employment Judge Young explained that the Claimant claim was a complaint about not being promoted whatever language he used unless it wasn’t. The Claimant said that it was about the failure to promoted and confirmed that he did not want to pursue the amendment.[5]The Claimant clarified that the comparator in relation to issue 2.2.6 was Joe Lanni and that there was no disclosure. The Claimant said that Joe Lanni was someone who got a promotion from level 26 to level 30. The Respondent pointed evidence must be necessary for the fair disposal of the trial and that Mr Lanni was not part of the development centre. The Claimant has the evidence of the process, but further obtaining evidence is not going to lead to an adjournment. The Employment Tribunal considered the objection to the provision of disclosure in relation to Joe Lanni and ordered that the Respondent provide that documentation. Oral reasons were given. Following the Employment Tribunal's decision In respect of specific disclosure, Mr Sellwood confirmed that the Respondent would provide all the documentation to the claimant and the employment tribunal with the appropriate number of copies the following morning.[6]The Claimant accepted that promotion of Joe Lanni was not an act of discrimination.[7]Although there were changes to the witness statement of the Respondent since exchange the Claimant had no objection to the Respondent relying on the newer statements. The Claimant initially wanted the Employment Tribunal to hear his opening statement. The Respondent objected. The Claimant said that he was happy not to read the statement. The Respondent was asked to paginate the additional pages from page 590. Mr Sellwood was also asked whether there was any documentation in respect of the development centre assessment concerning job descriptions person specification and adverts etc were in the bundle. Mr Sellwood confirmed that what was disclosed in terms of documentation was that which was in the bundle and it was the Respondent’s position that there was no further documentation.[8]On day 2, 26 February 2025, following receipt of the additional documents relevant to the promotion of Joe Lanni which were paginated from page 590 and before hearing evidence, the Employment Tribunal asked Mr Sellwood whether there Interview notes and scoring in respect of Mr Lanni’s recruitment. Mr Sellwood explained that Mr James Killer destroyed the interview notes. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025[9]Mr Sellwood was also asked whether there was any documentation in relation to the work that Eleanor Healy was doing whilst the Claimant was double hatting. Mr Salmond confirmed that there was no documentation in relation to Eleanor Healy in the bundle.[10]It was explained to the Claimant what direct race discrimination is, section 136 Equality Act 2010, and the test that the Employment Tribunal applies to determine whether there has been race discrimination.[11]On day 3, Thursday 27 February 2025, the Employment Tribunal asked James Killer what the ethnic was makeup of the Respondent. Mr Killer was not able to provide any information on this. The Respondent was asked if that information could be provided to the Employment Tribunal and who was the best person from the Respondent’s witnesses to deal with this evidence. Mr Sellwood said that Mr Michael Morris would be the best witness and they would endure that the evidence was available to the Employment Tribunal.[12]Day 4, Friday 28 February 2025. Mr Sellwood said that he was raising a concern about the judicial questioning of Mr Killer and that the Employment Tribunal was descending into the arena. The Respondent relied upon the EAT decision of Lanstaff J in Malcolm v Dundee City Council [2016] and Rymer LJ’s comments in paragraph 31 of Muschett v HM Prison Service [2010] EWCiv .[13]It was pointed out to the Respondent that the Claimant had raised in his claim form [15] that he considered that the reason he did not obtain a promotion was because all the managers in the commercial department were white, the Employment Tribunal was trying to determine this by putting the matter in context.[14]Day 5, Monday 31 March 2025, the Respondent provided statistics based upon the date of 11 March 2025. The Respondent was asked to provide statistics of when the Claimant was employed by the Respondent of how many black afro Caribbean employees in the business and the managers. The Respondent was not able to obtain the information that day but would be able to provide the data as soon as possible. The final statistics were provided during the hearing after lunch on Monday 31 March 2025 and Mr Morris was able to give evidence on the data. The Claimant did not ask any question about the statistics. Claims & Issues[15]The Claimant claim was for direct race discrimination. The issues were finally agreed on the first day of hearing. The issues were 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 22 June 2023 may not have been brought in time.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 20251.2.1 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. Direct race discrimination (Equality Act 2010 section 13)2.1 The Claimant is Black British of Afro Caribbean descent and compares his treatment with white people.2.2 Did the respondent do the following things:2.2.1 Required the Claimant to undertake significant additional responsibilities between 30 January and 17 July 2023 (the complaint is as to both the extent of the responsibilities and the length of time for which he was required to undertake them).2.2.2 Failed to provide the Claimant with adequate managerial support between 10 November 2022 and 17 July 20232.2.3 By Mr James Killer, failing to give any notification or discussion regarding the handover of managerial responsibilities for the Claimant on 17 July 20232.2.4 By Mr James Killer, failing to engage in regular connects or 1:1 meetings with the Claimant2.2.5 Failed to offer to pay the Claimant adequate enhanced pay to account for the additional responsibilities between 30 January and 5 June 20232.2.6 Failed to promote the Claimant from level 26 to level 30 on 26 May 20232.3 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. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant says he was treated worse than: As to 2.2.1, as to the extent of the responsibilities, Joe Lanni, Sini Jovicic, Chelsey Lavall, Eleanor Healy, and Jemma Price and as to the length of time, Joe Lanni, Sini Jovicic, Eleanor Healy, and Jemma Price. As to 2.2.2, Eleanor Healy As to 2.2.3, Christina Baker As to 2.2.4, Joe Lanni, Sini Jovicic and Chelsey Lavall As to 2.2.5, a hypothetical comparator Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 As to 2.2.6, Joe Lanni, James Sweeney, and Toby Webber2.4 If so, was it because of race? 3. Remedy for discrimination or victimisation (limited in light of the decision to deal with remedy separately)3.1 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.2 Did the respondent or the Claimant unreasonably fail to comply with it by not investigating thoroughly and impartially?
Findings of Fact
[16]The following findings of facts were made on a balance of probabilities. Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant.[17]We found the Claimant to be a credible witness of truth whose evidence was mostly consistent with the documentation. The Claimant conducted himself with dignity and fortitude where it was clear that the entire experience was extremely emotional for him. We found that Wiliam Runciman and Michael Morris to be predominately witnesses of truth as were Clare Silver and Christina Baker. We found that James Killer was not a credible witness and was often evasive in his answers which were often littered with meaningless phrases that did not answer the question or assist the Employment Tribunal.[18]Reference numbers in a square bracket are a reference to the main bundle. References to BS followed by a number in square brackets are a reference to the Supplemental bundle.[19]The Claimant was employed as a Commercial Strategy and Planning Manager from 12 October 2021 until he was made redundant on 30 September 2024 by Kenvue formerly a subsidiary company of Johnson & Johnson. Since May 2023 Kenvue is no longer owned by Johnson & Johnson. At the time that the Claimant was employed by the Respondent, they had 517 employees [BS9]. The number of Black Afro Caribbean as the Claimant identifies employees at the Respondent at the time of the Claimant’s employment was 2. The Claimant was one of those employees. The other Black Afro Caribbean employee was a manager. We find that Black Afro Caribbean employees represents 0.38% of the Respondent’s employee population. There are 218 managers and 0.45% of those managers are Black Afro Caribbean, which is a higher representation of managers than the percentage of Black Afro Caribbeans in the Respondent’s business. We find that the representation of black afro Caribbean management in the Respondent’s business is not represented in the commercial department. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025[20]The Claimant presented his Employment Tribunal claim on 26 November 2023 whilst he was still employed by the Respondent. The Claimant was a University of Oxford graduate and part of a graduate programme with Procter & Gamble (P&G) where he first met James Killer before he was employed by the Respondent. The Claimant’s description of their meeting was that James Killer was his trainer when the Claimant was on the presentation aspect of his graduate program. The Claimant did not recall any positive or negative feedback from James Killer in respect of his performance. The Claimant considered that he had an amicable relationship with James Killer when James Killer came to work at the Respondent in January 2023 and that they had friendly interactions in around March-April 2023 about football and F1. We find that the Claimant did not consider that James Killer disliked him on meeting or interacting with the Claimant initially. The Claimant takes on additional duties[21]On 10 November 2022 the Claimant’s line manager Camilla Young, Business unit head for commercial strategy commenced a period of sickness absence. Camilla Young had been the Claimant's line manager since the 12 October 2021 when the Claimant started employment. It was Camilla Young who assessed the Claimant’s performance in 2022. Ms Young assessed the Claimant’s performance as “exceptional/strong” [127- 131] . In the appraisal report, comments that were added by Ms Young were “For 2023 we discussed how Ky can increase his visibility in the organisation to build a broader network and how he can continue to share best practise with CS and also CD” [131] We find that the reference to visibility in Ms Young’s comment was a record of how the Claimant could move forward, not a criticism of the Claimant’s lack of visibility, we find this because of the way that Ms Young comments about visibility relates to “building a broader network”, and does not reference the network that the Claimant already has. Furthermore, Camilla Young comments on the Claimant’s past year performance as “a fantastic year” and “stakeholder feedback which consistently calls out how knowledgeable Ky is, his customer centricity, pragmatism and how easy he is to work with” [131]. There is no mention at all of the Claimant lacking in his visibility. We do not accept that Katie Morris was expressing concern about the Claimant’s visibility when she managed him and this is not what Katie Morris stated in her email dated 19 September 2023 [299-300][22]Marianne Hall, the UK Commercial Director puts in place a replacement line management for the Claimant of Katie Morris, Commercial Excellence Director in the absence of Camilla Young. However, Katie Morris worked part time at that time. The Claimant did not work in the office every day only came into the office irregularly.[23]At a CS&P meeting on 14 November 2023, Ms Morris announced to the Claimant and his team that Oliver Bradbury Commercial Strategy and Planning Manager for Aveeno and Piz Buin (who was part of the Claimant’s team) has been promoted to from a level 26, (which was the Claimant’s level) to level 30 (which was a management grade) and would be moving to a new role in January 2023. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025[24]On 16 November 2022, Rebecca Millions the Commercial Capability Director at the time attended the Claimant’s weekly CS&P team meeting [133]. At the meeting Ms Millions presented a power point presentation [115-126] setting out the new process that was to apply to talent and development in the commercial function. The presentation set out that the present situation identified that there was inconsistency in the time in a role before people were allowed to move, an inconsistency of rotations based on who your line manager was and ‘Corridor Conversations’ and over promising in relation to roles. It was identified that the processes regarding interviews or lack of were inconsistent and there was a lack of clarity on upcoming or available roles [121]. The presentation also spoke of “‘Double hatting’ for a maximum of 2 months and there being an ‘act up’ financial payment will be given if this occurs.” [122]. It also talked of new parameters for development centres which were used to find internal candidates for promotion. The presentation stated that “anyone welcome to apply who has been in the role 12 months + or minimum 18 months at level” [118] The presentation did not mention anything about equality, diversity, or discrimination.[25]On 16 November 2022 [141], the Respondent’s communications department sent an UK commercial teams news update stating that Oliver Bradbury Commercial Strategy and Planning Manager for Aveeno and Piz Buin has been promoted to Senior Customer Development Manager in the Tesco team.[26]On 27 January 2023, Mr Bradbury sent an email to members of the commercial team and others in the company [145], setting out who he had nominated to cover his vacant role in the short-term. The Claimant was named as covering Pricing & TIPPS Approvals with also Jemma Price and Eleanor Healy who were both in the Claimant’s team named as alternatives. Other people were named including Katie Morris and members of the Brand and Supply teams in relation to other activities in Mr Bradbury’s role.[27]On 30 January 2023, Oliver Bradbury left the department. The Claimant was responsible for skin health products within the Respondent and so the Claimant ended up picking up the role. This was called ‘double hatting’ as the Claimant was now covering 2 roles, his own and Oliver Bradbury’s. We find that there was no official allocation of Oliver Bradbury’s role to the Claimant. We find that the Respondent knew at least since November 2022 that Mr Bradbury was leaving the role. They were slow in filling the role. The Respondent did not consider whether the Claimant would be about to cover the role with regard to his present duties, they did not consider whether the Claimant should be paid for his additional duties nor did they consider how long the Claimant would cover the duties, the Claimant was just left to fend for himself in the first instance.[28]We find that in double hatting the Claimant was covering 6 brands. Where Joe Lanni, Eleanor Healy and Jemma Price were covering 2 brands and Sini Jovicic was covering 3 brands whilst Chelsey Lavall was covering 1 brand. However, we find the reason why the Claimant was double hatting was because he was best placed to cover Oliver Bradbury’s work. We accept the Claimant’s evidence that he was already working as a CS&P Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 manager for the other 4 skin brands and so other stakeholders of the Aveeno & Piz Brand were more familiar with the Claimant than they were with his other team members and he had a better understanding of the Aveeno and Piz Buin brand than his other colleagues. That is why the additional duties fell to him rather than him being asked to specifically cover the role.[29]The Claimant had monthly meetings but did not raise the issue of his double hatting in the February monthly meetings because the Claimant believed that the Respondent would fill the vacancy soon as indicated by Katie Morris. This was even though at the time Katie Morris was not consistently present to support the Claimant as his line manager due to illness. However, the Claimant continued to double hat until July 2023.[30]On 13 March 2023, the Claimant had a check in meeting with Katie Morris [154]. In the invitation to the meeting, Katie Morris asked the Claimant if he was ok and she was checking to see how she could help the Claimant with Aveeno. The Claimant’s evidence was that he was happy with the support provided by Katie Morris and we accept the Claimant’s evidence and find that the Claimant was being provided with some managerial support in respect of his double hatting at that stage.[31]Although the Claimant arranged with his colleague Jemma Price to have a meeting with Marianne Hall on the 23 March 2023 to discuss some strategic challenges on the Aveeno brand as well as the Claimant’s high workload and the impact of the absences of Camilla Young and Katie Morris, the Claimant continued to double hat. What Marianne Hall did tell the Claimant at the meeting [153] was that the Claimant could deprioritize Neutrogena and Clean and Clear and focus on Aveeno in the short term. However, we accept the Claimant’s evidence was that this did not affect his existing workload. No one else in the Claimant’s team was double hatting at the same time as the Claimant. The email following that meeting from Marianne Hall highlights James Killer as “ Comm strat senior support” however, James Killer did not provide any support to the Claimant. James Killer’s evidence is that he did not know that the Claimant needed support. However, we do not accept James Killer’s evidence on this point the invitation to the meeting [152] clearly set out that the Claimant and his team members were struggling and needed support. Furthermore Marianne Hall states in her email “ KY & James can I ask that you take overall leadership” [153]. However, James Killer did not do anything to lead in respect of the Aveeno strategy at all. It was left to the Claimant.[32]On 30 March 2023, the Claimant had another check in meeting with Katie Morris although the Claimant was happy with the support Katie Morris had provided him, after this meeting, Katie Morris was largely absent from the business and the Claimant had no further contact with Katie Morris in a managerial capacity. The Claimant was contacted by Claire Silver on 31 March 2023 via Teams chat. Claire Silver said that her messages to the Claimant “call me now if want to talk anything you?” was support to the Claimant. However, we find that the chat was in the context of a meeting that the Claimant was about to go into and that is how the Claimant interpreted it in his response which was “Hi Claire, thanks for checking, hope Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 you're well. We're all good to go for the meeting thanks. You shouldn't need to join” [155]. We find that this was not managerial support for the Claimant in respect of his workload.[33]Whilst it was the case that Sini Jovicic continued covering his own role from 5 February 2024- 22 April 2024 when he moved role and Jemma Price also had to cover another role of Listerine and Carefree in her CS&P role from 7 November 2023- 5 February 2024, neither Joe Lanni nor Eleanor Healy ever covered a role. It is the Claimant’s evidence which we accept that Joe Lanni moved to another role on 14 September 2023 and that Joe Lanni’s role was covered immediately and he did not have to double hat. None of the Claimant’s colleagues double hatted for as long as the Claimant did.[34]On 20 April 2023 James Killer was asked by Marianne Hall to take on additional line management responsibilities, in light of Katie Morris’s absence. James Killer became responsible for all of Katie Morris’s direct reports including the Claimant and his CS& P team members. The Claimant’s evidence was that James Killer was never the line manager for Eleanor Healy, whom he says was line managed by Jemma Price. The Claimant relies upon a presentation document of 9 May 2023, which shows a reporting line going from Eleanor’s role as a Commercial Strategy manager (Baby) to Jemma Prices’ role as a Senior Commercial Strategy Manager (essential Health) [173] However, we prefer the evidence of James Killer that he line managed all of the Claimant’s team as the presentation is labelled ‘to be’ and we find that that was not the structure at the time. However, James Killer did not tell his new direct reports that he was managing them and so the Claimant did not know in April 2023 that his line management had changed. There was no contact between the Claimant and James Killer as his line manager until later in May 2023.[35]When James Killer took on additional responsibilities he was responsible for backfilling Oliver Bradbury’s CS&P manager role. James Killer took the matter to senior leadership team (which consisted of managers at level 40 & 41) of what to do from a recruitment point of view. We find that there was no documentary evidence nor did James Killer provide any discernible answers to the questions regarding how the criteria for the development centre came about whether there was senior approval of any criteria that was eventually applied. We find that there was no approval nor was there any set criteria from the senior leadership team. James Killer accepted in evidence that he knew about the Talent Planning and Development document but did not take it into consideration regarding the Development Centre.[36]In April 2023, the Claimant received a number of awards from work colleagues and senior managers regarding the Claimant’s work across all of Skin Health [156-159]. In particular the Claimant was given a Commercial Team award [544] and an award from Marianne Hall, the Commercial Director [156].[37]On 9 May 2023, the Claimant attended a meeting with his CS&P colleagues run by Marianne Hall. Marianne Hall’s presentation provided an update of the commercial team structure [166-173]. The presentation document Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 explained that Katie Morris was now undergoing cancer treatment and that she would leave her role of Commercial Strategy, RGM and Sales Operations Director to be become Head of IBP (Integrated Business Planning) and Commercial Operation. James Killer was now to become Commercial Excellence Business Unit Head, which is a level 31 role, reporting directly to Marianne Hall as the commercial director. [168]. There was a proposal that James Killer would manage all the level 30 in the commercial excellence function who would in turn manage the Commercial Strategy managers such as the Claimant at level 26. We find that the Claimant was satisfied with the support that he received from Marianne Hall and Katie Morris before James Killer took over management responsibility.[38]By May 2023, the Claimant was still double hatting. The Claimant scheduled another meeting with Marianne Hall for 11 May 2023 in the office [182]. At the meeting, the Claimant raised his concerns about his workload with Marianne Hall. During the meeting, the Marianne Hall did not at first appear to fully acknowledge the Claimant’s concerns. However, after further reiteration and discussion, Marianne Hall told the Claimant that James Killer would be the Claimant’s go-to line manager [528]. It was also at this meeting that Marianne Hall clarified that there was to be a recruitment exercise for the vacant Aveeno CS&P role, however instead of that role being a replacement role for Oliver Bradbury, the role would now focus on Aveeno which was now to be a ‘spike’ brand and would no longer be a level 26 role but a level 30 role which was management level. There would be a Development Centre taking place in May would be used to fill the role, but at that stage no date was given for when the vacancy was intended to be filled.[39]On Thursday 11 May 2023, the Respondent’s HR system workday was updated to state that James Killer was the Claimant’s line manager. We find it was from 11 May 2023 that James Killer officially became the Claimant’s line manager. The period of 20 April 2023- 10 May 2023 was a transitional period where James Killer was unofficially responsible for the CS&P team. The Claimant went on annual leave from Monday 15 May – Wednesday 23 May 2023.[40]On 31 May 2023 Christina Baker had a career catch up with James Killer. At that meeting she told James Killer she was interested in the vacant Senior CS&P Manager (Aveeno) role. However, Christina Baker was not appointed to this role until 3 July 2023. James Killer’s evidence was that Camilla Young was responsible for skin health and she reported to Katie Morris, but both were out of the business and that technically Camilla Young was backfilling the Oliver Bradbury role. It was because Katie Morris was out of business so that is why there was a delay to filling the CS&P manager role. However we do not accept James Killer’s evidence on this point. Whilst there was a delay from January – April in recruitment because Katie Morris was out of the business. By 20 April, James Killer is responsible for recruitment to the CS&P manager role. James Killer’s evidence was that the role on 20 April 2023 was not a level 30 role but a Level 26 role which we accept. However from 9 May 2023 it becomes a level 30 role and certainly by 31 May 2023, James Killer could have recruited Christina Baker to the role immediately. But James Killer seemed in different to the Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 Claimant’s obvious stress and uncaring and inconsiderate of the Claimant’s workload. Whilst we acknowledge that Christina had not been in level 30 role for 12 months in May 2023 in accordance with the talent planning document, James Killer had ignored that document in relation to the development centre in any event, whilst James Killer stated that he considered the document in respect of rotation roles, he did not give evidence that as the reason why Christina Baker was not appointed to the Senior CS&P Manager (Aveeno) role and we find that was not the reason why he delayed. We find that the reason for the delay was James Killer was not on top of his job. We do not accept that his personal circumstances were the reason for why he was not fulfilling the responsibilities of his job though we acknowledge his wife’s condition would have caused him some stress. Development Centre: Senior CS&P Manager (Aveeno) role[41]There was no advert, nor was there any prior documentation of the process of how the Senior CS&P Manager (Aveeno) role was to be appointed to. The Claimant believed that the Talent Planning Development Document would be adhered to. The reality could not be further from the truth. By 10 May 2023, Laura Jones, another Business Head had been appointed with James Killer to manage the Development Centre to recruit to the role of Senior CS&P Manager (Aveeno) level 30. Laura Jones sent an email to all the managers who were to be involved in the Development Centre process, this included James Killer and Wiliam Runciman. It was explained in the email that there would be questions for an interview and those questions would be same for every candidate. When all candidates have been through the process they would have a ‘wash up’ with assessors and Line Managers, this was to become the calibration meeting. Laura Jones also made reference to ‘on the job weighting.’ [186]. In the email there is a list of candidates who had applied for the Senior CS&P Manager (Aveeno) Development Centre. However it stated that at that stage Toby Webber had not yet applied for the role. James Killer had a conversation with the Claimant about the Development Centre [165]. The Claimant’s evidence about that chats on 9 May 2023 were that they were formal chats. We find that the nature of the chat is what one would expect between a senior manager and his direct report. We find nothing particularly friendly about the chat but it was polite conversation by James Killer towards the Claimant. James Killer’s evidence was that approval from the candidate’s line manager was required before the candidate could apply, James Killer confirmed in evidence that he agreed to the Claimant being able to apply.[42]James Killer’s evidence was that the Development Centre consisted of three components, a case study; interview questions; and an “on-the-job” score. James Killer’s evidence was that the case study accounted for 20%, however the actual document that contained the scores stated the weighting for the case study was 25%. James Killer’s evidence was the candidate was asked 6 interview competency questions. The candidates were scored out of 4 for each question by each assessor and the overall average score out of 4 was then converted into a score out of 6. The interview questions accounted for 30% of the overall score at the Development Centre. However again the scoring document has the weighting for interview 25% [216]. James Killer’s evidence is that the weighting on the scoring document Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 for the case study and interview is incorrect. However, there is no documentation to say that it was a mistake, William Runciman who was also an interviewer supports James Killer’s evidence and we accept Wiliam Runciman’s evidence on this point.[43]The other part of the scoring was “on-the-job” score, where each candidate was given a score out of 10, which was determined by the candidate’s Business Unit Head based on the candidate’s current performance in their existing role. This accounted for 50% of the overall score at the Development Centre. In the scoring matrix there was no reference to “current” on job performance.[44]On 24 May 2023, Laura Jones sent an email to the relevant Business Unit Heads involved in the Development Centre, explaining the next steps in the process once the interviews had concluded. [185 –186], these included calibration meeting to take place on 26 May 2023 where there was a discussion regarding each candidate’s scores and where it was determined who the successful candidates should be. James Killer’s evidence was that Development Centre was not to find a candidate for the 2 level 30 positions that were available at the time (the Senior CS&P Manager (Aveeno) role and the Senior Customer Development Manager for Asda role) and fill them, but to find candidates who were “Ready now” meaning the candidate was ready to be immediately promoted to a level 30 role. Both James Killer and William Runciman’s evidence was if the candidates did not fall into the Ready now, they would fall into the categories of “Ready soon” meaning the candidate was very close to being ready to be promoted to a vacant level 30 role; or “Ready future” meaning the candidate was not ready or not very close to being ready to be promoted to a level 30 role.[45]We find there was no documentation or guidance regarding what to look for or what the criteria was for any of these categories. Neither was there any documentation to support James Killer’s oral evidence that the Development Centre was to find candidates who were ready now rather than candidates to fill the available roles.[46]The Claimant’s evidence is that at the meeting on 9 May 2023 Marianne Hall told him that the Development Centre would be used to fill the Senior CS&P Manager (Aveeno) role. We accept the Claimant’s evidence on this point. We find that it was the case that those involved in the Development Centre including both James Killer & Wiliam Runciman were looking for candidates who were ‘Ready now’ not candidates for the roles of Senior CS&P Manager (Aveeno) and Senior Customer Development Manager for Asda. However, that is not what senior management had said would happen and that is not what the Claimant was told.[47]James Killer’s evidence was to what the criteria was for Ready Soon was showing all the skills and there are a few minor developments areas. However, James Killer was not able to say how soon was ‘Ready soon’ to become ‘ready now.’ James Killer could not explain what the criteria was for ready future or how long it would take for someone who was Ready future to be Ready now. Wiliam Runciman gave no evidence as to what the criteria was. James Killer’s evidence was that he was told that they could only deem Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 2 candidates ready now. We find that there is no documentation to support James Killer’s evidence on this point and we do not accept his evidence.[48]The Claimant was on annual leave from Monday 15 May – Wednesday 23 May 2023, but at some point in May 2023 the Claimant was sent an invitation to the Development Centre for an interview for 25 May 2023 [188]. In the email the Claimant was told he would have 1 hour to prep for case study, 30 mins to share back (15 mins share 15 mins Q&A) 1 hr comp interview (including 15 mins for questions). With that invitation the Claimant was sent a case study which was to form part of the process for the Development Centre. We find that this was the only evidence that was provided to the Claimant of the process of the Development Centre. There was no evidence that the Claimant was told the weighting of parts of any of the process before the outcome of the Development Centre.[49]On 25 May 2023, the Claimant was interviewed by James Killer and Wiliam Runciman. The Claimant’s case study took place on 26 May 2023 because James Killer had to attend an urgent appointment on 25 May 2025. James Killer did not make any notes of his scoring and relied upon Wiliam Runciman who did. The Claimant was scored by Wiliam Runciman and James Killer in respect of the interview and case study, where the Claimant scored raw score 3 for the interview and 6 for the case study. The raw scores were then multiplied by the factor of the weighting which was 50%. However James Killer alone provided the Claimant’s on the job score of 6/10 and this was added as a raw score to the interview and case study weighted score to give the Claimant a score of 12.9. The Claimant got the lowest overall score. The Claimant was at work for 3 working days from the date James Killer officially became his line manager until the date James Killer made a decision about the Claimant’s development centre on the on job scoring.[50]The Respondent produced a scoring matrix for all 9 candidates who were in the Development Centre.[51]On the score matrix, James Sweeney (Customer Development Manager for Home Bargains & B&M) was assessed by Claire Silver and James Killer and got the highest overall score of 16.9. He was deemed ‘Ready now’ and was given the Senior Customer Development Manager for Asda role. Anna Barna (Customer Development Manager for Asda & Listerine) and Henry Stafford (Customer Development Manager for Tesco Listerine) were both assessed by Laura Jones and James Killer, both got the next highest score of 15.2. Anna were deemed ‘Ready soon’ but even though Henry got the same score he was deemed ‘Ready future.’ Toby Webber (Revenue Growth Manager) assessed by Laura Jones and James Killer came 7th out of 9 candidates and scored raw score of 3.7 for the interview and 7 for the case study and 6 for the on the job scoring. He was deemed ‘Ready now.’ James Killer’s evidence was that Toby Webber was a natural fit for Christina Baker’s role of Senior Customer Development Manager for Superdrug role . Christina Baker was asked to fill the Senior CS&P Manager (Aveeno) role.[52]James Killer gave evidence that he had concerns about Toby Webber’s Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 performance in his current role Revenue Growth Manager (RGM). He said Toby Webber was in the wrong job and that is why he scored Toby Webber 6 for on the job performance. He also scored Sini Jovicic on the job performance and scored him a 7 because Sini Jovicic had more effective leadership and communication skills. However, we find that James Killer was not in a position to score the Claimant at all. We find that James Killer’s scoring of the Claimant’s on the job score was not based upon any facts or experience of the Claimant’s work as he had only managed the Claimant practically for 2 weeks and the Claimant had only been in work for 3 days of those 2 weeks. James Killer’s evidence was he felt had sufficient knowledge to be able to score the Claimant and he was the most appropriate person and gave the Claimant a fair score. He said that he didn’t think that he needed to reach out to other leaders to get their views i.e. Marianne Hall or Anthony Dunn. Wiliam Runciman gave evidence that had he been in the same situation he would have sought counsel to assist him in scoring on the job for someone he had only managed for 2 weeks. We find that James Killer’s evidence on this point is not credible. No reasonable person could come to that conclusion having had experience of line managing, such as James Killer. This is particularly where Katie Morris was still in the business in May 2023 [559] and could also have provided feedback in respect of the Claimant’s ability on the job. James Killer could have also used the Claimant’s awards as evidence of his current on the job performance.[53]On 30 May 2023, there was a discussion in the Commercial Leadership Team meeting (which is essentially a meeting of the Business Units Heads at Kenvue) to decide which roles the candidates scored as “Ready now” should go to and who should give feedback to the candidates. This was the calibration meeting. there were no notes of what was discussed at this meeting. James Killer’s evidence that the meeting was all the assessor going through the scores for each candidate as set out in a spreadsheet with tabs for each candidate. The document was shared via Teams.[54]We find that if this was the case this evidence it was not contained in James Killer’s witness statement nor Wiliam Runciman’s witness statement. There was no documentation in the bundle to support this is how the process of calibration was undertaken. We find that there was a discussion about each candidate scores in the calibration but there was no sharing of documentation. We accept James Killer’s evidence no one in the calibration meeting challenged his scoring of the Claimant on the job score and that only score challenged by anyone was Henry Stafford’s.[55]We find the Claimant was not told that it was only the current year that his job performance would be assessed. James Killer’s evidence was that it was a candidate’s ‘current’ in year performance in accordance with the Talent Planning Development Document and it was not appropriate to use previous performance ratings because 2 of the candidates did not have a performance rating as they had not been with the Respondent for 12 months at the time of the Development Centre. We find that James Killer’s evidence was an example of cherry picking his justification for choosing criteria according to what he considered was relevant. On one hand he relied on the Talent Planning Development Document in respect of using ‘current’ Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 performance which he interpreted as there was no guidance in the Talent Planning Development Document as to what current was, as in the current chronological year. But then ignored the Talent Planning Development Document when it came to who should be allowed apply for the Development Centre. The Talent Planning Development Document clearly said that candidate needed a minimum of 12 months service. Yet Toby Webber only had 7 months service (10 October 2022 start date) and another candidate Sam Durham also did not have 12 months service. Notwithstanding Toby Webber was deemed “ready now.” James Killer’s evidence was that was because Toby Webber had demonstrated through his interview his extensive experience which James Killer considered meant that he was ‘Ready now.’ We find that this was extremely unfair as Toby Webber should not have been a candidate at all and his previous experience was considered relevant and determinative, yet the Claimant’s previous awards, the fact he had been doing what was now deemed a level 30 role for 5 months and had an exceptional rating from the previous year was not relevant at all. We find that James Killer’s chose the criteria according to who he wanted to get the job. The scoring of a candidate bore little to no relationship to whether the Candidate got a level 30 role. We find that the process was unfair on any analysis and was a sham. We find that Talent Planning Development Document should have been followed as that would have been a reasonable position to take. If it had been followed and the scoring was followed, Anna or Henry would have been deemed Ready now and be eligible for a level 30 role including the Senior CS&P Manager (Aveeno). The Claimant would not have been deemed ready now and although he would have probably scored higher in the on the job scoring if it had been fair, we cannot say what that score would have been.[56]On 31 May 2023, those involved in the Development Centre had a further meeting to discuss the proposed moves following the Development Centre and to formulate a communication plan regarding the moves. The Claimant was told of the result of his Development Centre assessment on 31 May 2023. The Claimant attended a meeting with Wiliam Runciman where he received feedback on the assessment. But the matrix was not produced for the Claimant on feedback nor was he given his scores.[57]We note that Christina Baker had already expressed to her line a manager her interest in career development which would align with the vacant role prior to May 2023. Christina Baker knew about the vacant role. However she did not put herself forward. We consider that it is odd that if Ms Baker was suited to the role that there was any need for the Development Centre at all. We find that the Respondent could have filled the role much earlier with Christina Baker. We find there was no reason to have the Development Centre in respect of the Senior CS&P manager (Aveeno) role.[58]James Killer accepted in evidence that he did not consider the Respondent’s diversity, equity, and inclusion global policy in the Development Centre [71]. He said that he was aware of the policy but had not seen it. We find that James Killer was not able to provide an answer that explained how he expected the policy to be applied. James Killer’s management of the Claimant Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025[59]Following James Killer becoming the Claimant’s manager, James Killer sent an email dated 19 May to all his team including the Claimant. In the email James Killer states amongst other things “Please see below some principles I believe in strongly and my commitments to you all which I will talk on further next week in our team meeting. Team Principles: Owner + growth mindset, Assume positive intent & solution focused, Own the narrative, know our numbers, Raise the bar, Work hard, play hard! My Commitments Trust, I’ve got your back!, Fulfilling careers, development, and work for everyone, My “Door is open”, phone is on and calendar up to date”. James Killer closes off the email with “Have a great weekend and catch you all next week”.[187][60]James Killer’s evidence was that the purpose of the email was to make clear his commitment to his team and his ways of working. We agree with the Claimant’s evidence that in the email James Killer does not refer to line management or his direct reports. The email is sent to the entire CS&P team. Email does nothing to address the issue of 1:1’s. We find that James Killer never made it explicit clearly to the Claimant that he would need to set up 1:1 meetings with him if he wanted 1:1 meetings. James Killer was derelict in his duties as a manager and the email is not remotely compliant with expectation that the Respondent had of its managers as set out in the Respondent’s policy. The Respondent’s policy sets out the responsibilities of people leaders [80] as including “Performance management” next to which it states “There is a standard performance management cycle, involving setting, reviewing and assessing performance goals for each member of your team. However, individual performance is your responsibility all the time, not just at certain points in the year. Make sure you are having ongoing conversations with your team and provide them with regular feedback on their performance together with support and coaching.” [80] Next to “Wellbeing” it states “Support your team so they can live healthy, positive working lives. Ensure people have the opportunity to recharge away from work and that the demands on them are not exceeding their capacity to deliver.” Next to diversity and inclusion” “Although Diversity and Inclusion is often called out separately, it is a theme which affects everything from your recruitment processes to the way you run meetings. Diversity at Johnson & Johnson is about everyone’s unique perspective. It’s about you, your colleagues and the world we care for — all backgrounds, beliefs and the entire range of human experience — coming together. Inclusion at Johnson & Johnson is about creating a deep sense of belonging. It’s about a culture where you are valued, your ideas are heard and you advance this culture for everyone. In essence, it is about giving everybody a fair opportunity – for example to apply for a role or speak up at meetings. Everybody is different, and everybody in your team should feel included.”[61]James Killer’s evidence was that he had not seen the document that contains his responsibilities as a line manager at the time he was line managing the Claimant. He did not get any management training when he came to the Respondent in January 2023. James Killer had been a manager before he started working for the Respondent in his previous role. He had managed a team in P&G of 5-6 people at any one time and over the period of employment with P&G of 8 years he had managed 20 different people. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 We accept James Killer’s evidence that he had never managed a Black Afo Caribbean employee before the Claimant but we consider that James Killer was an experienced manager and knew better, than to take a laid back approach to management.[62]Following the Development Centre, James Killer continued to be the Claimant’s line manager. However, James Killer did not schedule any 1:1 with the Claimant. Neither did James Killer have an introductory meeting with the Claimant. The Claimant had previously had regular 1:1s with his manager Camilla Young [102] and consistent meetings with Katie Morris.[63]It was James Killer’s evidence that he believed that it was the individual employee’s responsibility to have 1:1 and that he did not do an assessment of what the needs of his team were but he expected his team to come to him. James Killer first 1:1 with the Claimant was on 8 June 2023 [236], James Killer had another 1:1 with the Claimant on 9 June 2023 [237]. as well but did not have any more 1:1’s with the Claimant. We find that James Killer did not regularly connect with the Claimant before 8 June even though he had been the Claimant’s line manager for a month by then. James Killer only contacted the Claimant to have 1:1s because of the Claimant’s complaint to HR on 5 June 2023. However, we also find that James Killer did not regularly connect or have 1:1 with his other reports, in particular Joe Lanni, Sini Jovicic or Chelsey Lavell. Sini Jovicic & Joe Lanni had to put in his 1:1’s himself with James Killer [146] and Chelsey Lavall also had to put in her 1:1’s herself [147][64]On 5 June 2023, the Claimant contacted HR to raise concerns about managerial cover and the other about compensation for cover work [234]. The Claimant met with Joanne Yeung in HR on the same day and expressed that he had was not having 1:1’s with his line manager James Killer. The Claimant also raised the issue that since January he had been covering the CS&P Aveeno role but had not received an offer of compensation for those additional responsibilities.[65]The Respondent had a Temporary Responsibility & Secondment Policy which set out the circumstances in which an employee would receive compensation for additional duties. The policy referred to cover for a vacant position amounting to a temporary responsibility [64]. The policy stated that “Agreement will be sought between the Line Manager and employee regarding the ‘significant, defined and additional responsibilities’, duration including start and end dates, and confirmation that any applicable allowance will be temporary for the period of the additional responsibilities.” [64] the policy provided a formula to calculate what compensation should be paid to an employee for temporary responsibilities. The formula is Cover role base salary - Current base salary = £x/% differential against current base salary x TRA % differential.” TRA is defined as a Temporary Responsibility Allowance. TRA differentials are defined as “< 10% = consider Encore Award”, “10 – 20% = 4% p/mth”, “20%+ = 5% p/mth”. Following the Claimant’s conversation with Joanne Yeung, on 5 June 2023 the Respondent offered the Claimant 5% of the CS&P manager role salary in accordance with the policy which amounted to £1500 in June 2022. The Claimant refused this amount. We find that the amount offered was Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 consistent with the Respondent’s policy and the fact that the Claimant was covering the entirety of the CS&P manager role for 5 months and therefore entitled to £1500. We do not accept James Killer’s evidence that the amount offered was generous and was not the Claimant’s entitlement. We do accept James Killer’s evidence he was not aware until later that there was a compensation policy. No one else who covered any work was offered renumeration for that work.[66]We find that the reason the Claimant was not offered the amount sooner was because James Killer did not know about the was policy he had not been with the Respondent for very long when he took over the management of the Claimant. There was no evidence anyone else was ever paid the Temporary Responsibility Allowance either before the Claimant’s started double hatting or afterwards in the commercial department. James Killer gave evidence that he had to double hat in November 2023 and he was not paid any Temporary Responsibility Allowance.[67]By late June, the Claimant had grown frustrated and unhappy about the way in which he believed he had been treated by management within the Commercial team since January 2023. He was unhappy that the workload he had been experiencing for a prolonged period of time appeared to disadvantage him as compared to his peers. The Claimant regarded James Killer’s behaviour in this period as distant he appeared to show no interest in the Claimant but appeared to the Claimant to show interest in others in the team. We find that James Killer was distant to the Claimant as he regarded the Claimant as having made a grievance about him and we attribute any difference in treatment of the Claimant at this stage to this. We do not consider that James Killer disliked the Claimant. It was clear to us that the Claimant’s personality was more reserved than James Killer who was a more confident and forceful character.[68]On 29 June 2023, Christina Baker messaged via Microsoft Teams to inform the Claimant that she would be joining the CS&P team [242]. However, the Claimant did not realise that this message was Christina Baker telling him that she was to be the Senior CS&P Manager (Aveeno) and therefore his manager.[69]The Claimant’s dissatisfaction led the Claimant to raise a grievance on 4 July 2023. [243-244] The Claimant’s included a grievance against Katie Morris, a grievance in relation to a persistent lack of managerial support and a grievance relating to compensation for the Claimant’s additional responsibilities.[70]It was only on 10 July 2023, that the Claimant had a meeting with Christina Baker where she told him that she was to be his line manager to commence on 17 July 2023. This came as a surprise to the Claimant as he had not been told that he was to have a change of line management by James Killer. James Killer’s daughter was born on 11 July 2023 prior to which he was preparing to go on paternity leave for 2 weeks.[71]The lack of communication by James Killer concerned the Claimant and following the Claimant’s initial grievance, the Claimant added to his Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 grievance a complaint that he was not told that by James Killer that Christina Baker was to be his line manager [245][72]On 17 July 2023 Christina Baker became the Claimant’s line manager. During July and August the Claimant took time off sick [531-532]. The sick note said that the Claimant was being signed off because of stress.[73]On 17 August, the Claimant was interviewed in respect of his grievance by Claire Sliver [265-271]. James Killer admitted in his grievance interview on 31 August 2023 [279] that “….message came from Christina as based on the structure that level 30s would have 26s reporting into them. Something that I know he wasn’t happy with at the time of the change. I thought it best that she communicate that to him as his new manager. In hindsight I could have told him but did realise it meant that much to him” [283] “….could have done it differently.” [284]. We find that James Killer did not tell the Claimant about the change of management because he did not think it an issue, in line with his relaxed management style.[74]The Claimant was given the grievance outcome in a letter dated 20 September 2023, [385- 387]. In the grievance outcome it is recorded that James Killer acknowledged that he did not tell the Claimant about Christina Baker line management change and this outcome was upheld. None of the Claimant‘s other grievances were upheld.[75]In the week commencing 11 September 2023, the Claimant first obtained legal advice in respect of employment law. By this time, the Claimant was out of time in respect of his claim for race discrimination concerning the lack of promotion resulting from the Development Centre recruitment exercise in May 2023.[76]On 14 September 2023 Joe Lanni a CS&P manager for Capol & Immodium who reported to James Killer when he joined the Respondent in January 2023 was promoted to a level 30 role. The Respondent did not have any documentation regarding the promotion of Joe Lanni to a level 30 role and he did not go through a Development Centre. The Claimant did not apply for this role. We find that the corridor conversations that were warned of in the Talent Planning Development Document appear to have continued in the Respondent’s commercial business.[77]The Claimant appealed the grievance outcome on 26 September 2023 [388-389]. It was only in the Claimant’s appeal did he mention discrimination for the first time. The Claimant stated “I do not believe James Killer has afforded me a fair level of managerial support and he has not given any acknowledgement or explanation for this in his account. In this way, I believe his attitude towards me to have been prejudicial and his behavior towards me to have been discriminatory.” [389][78]Michael Morris Director of Medical Affairs who worked in the R&D department which supports the whole business but has very little to do with the commercial department was appointed to hear the Claimant’s appeal. Michael Morris was assisted by Andrew Stone in HR who he understood to have legal training and to have been a barrister. Michael Morris was an Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 experienced manager who had been in the Respondent’s business since 2007. Michael Morris sits on the senior leadership team of the Respondent. He did not know anyone involved in the Claimant’s grievance except Claire Silver who he had previously come across. Michael Morris had done recent discrimination training which included unconscious bias, understanding privilege, micro aggressions and the training was given by an outside organisation. Although Michael Morris was not provided with the grievance policy, Andrew Stone assisted Michael Morris throughout the process and advised him. Michael Morris said investigating the Claimant’s grievance he looked for any examples of discriminatory behaviour, however he did not find any bias. Race discrimination was not explicit in the appeal letter however it was alarming to him but he was not expecting to find a smoking gun. However, he considered that the recruitment process used by the commercial department was not unusual within organisation and was something that he was used to, however he explained that the process is different now and now the organisation has templates for the recruitment process. He admitted that he had only looked at the Talent Planning Development Document in the context of whether the Claimant was paid adequate compensation for double hatting. We accept Michael Morris’s evidence, and we find that the reason why Michael Morris did not consider the process used by the commercial department as unusual was because it was not unusual for the Respondent. The Talent Planning Development Document made it clear that the culture of the Respondent was “corridor conversations” and because Michael Morris had been in the organisation for such a long time, the process seemed fair because that is how things had always been done.[79]The Claimant was provided with the outcome of the appeal by letter dated 14 November 2023. [500-504] grievance not upheld. Submissions[80]Both parties provided written submissions. Both parties were given 15 minutes for oral submissions. We considered both parties oral and written submissions in our decision. The Relevant Law Burden of Proof provisions
The Relevant Law
[81]Section 136 of the Equality Act 2010 (‘EQA’) states: “(1) This Section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But sub-Section (2) does not apply if (A) shows that (A) did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or Rule. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.”[82]Pre- Equality Act 2010 House of Lords decision of Igen v Wong [2005] IRLR 258 set out a two stage test tribunals must apply when deciding discrimination claims. This two stage approach was discussed in the Court of Appeal decision of Madarassy v Normura International plc [2007] EWCA 33, with guidance being provided by Mummery LJ. Since the Equality Act 2010 (although the burden of proof provisions differs in wording to the test set out in Igen), the Appellant Courts and EAT have repeatedly approved the application of the guidance set out by Mummery LJ in Madrassy. In summary the first stage is where the burden of proof first lies with the Claimant who must prove on a balance of probabilities facts from which a Tribunal could conclude, in the absence of any other (non-discriminatory) explanation that the Respondent had discriminated against him. If the Claimant meets the burden and establishes a prima facie case (which will require the Tribunal to hear evidence from the Claimant and the Respondent, to see what proper inferences may be drawn), then the burden shifts and the Respondent must prove that it did not commit the act disproving the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The Respondent will have to show a non-discriminatory reason for the difference in treatment.[83]Tribunals must be careful, and the burden of proof provisions should not be applied in an overly mechanistic manner: see Khan v The Home Office [2008] EWCA Civ 578 (per Maurice Kay LJ at paragraph 12).[84]The approach laid down by section136 EqA requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of section136 does not come into the equation: see Martin v Devonshires Solicitors [2011] ICR 352 (per Underhill J at paragraph 39), approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 (per Lord Hope at paragraph 32).[85]It is, however, not necessary in every case for the Tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the Tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal (“EAT”) pointed out in Laing v Manchester City Council [2006] IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.[86]If an Employment Tribunal can make clear positive findings as to an employer’s motivation, we need not revert to the burden of proof at all: Martin v Devonshires Solicitors [2011] ICR 352, EAT. Direct discrimination Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025[87]Section 13 EQA 2010 sets out the statutory position in respect of claims for direct discrimination because of race. “(1) person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 39 (2) applies to employers and states: “An employer (A) must not discriminate against and employee of (A)’s (B)… (d) by subjecting B to any other detriment.”[88]When determining questions of direct discrimination there are, in essence, three questions that a Tribunal must consider:(a) Was there less favourable treatment?(b) The comparator question; and(c) Was the treatment ‘because of’ a protected characteristic?[89]The test for unfavourable treatment was formulated in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 in that case the House of Lords as it was then, said that unfavourable treatment arises where a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work.[90]Lord Hope’s judgment in Shamoon clarifies that a sense of grievance which is not justified will not be sufficient to constitute a detriment.[91]Section 23 EQA deals with comparators and states that: “There must be no material difference between the circumstances relating to each case.”[92]Shamoon held that the relevant circumstances must not be materially different between the Claimant and the comparators, so the comparator must be in the same position as the Claimant save in relation to the protected characteristic.[93]As exact comparators within the meaning of section 23 EQA are exceptional, it may be appropriate for a Tribunal to draw inferences from the actual treatment of a near-comparator to decide how an employer would have treated a hypothetical comparator: see CP Regents Park Two Ltd v Ilyas [2015] All ER[94]Although unreasonable treatment without more will not cause the burden of proof to shift (Glasgow City Council v Zafar [1998] ICR 120, HL), unexplained unreasonable treatment may: Bahl v Law Society [2003] IRLR 640, EAT.[95]Tribunals should not reach findings of discrimination as a form of punishment because they consider that the employer’s procedures or practices are unsatisfactory; or that their commitment to equality is poor; Seldon v Clarkson, Wright & Jakes [2009] IRLR 267. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 Analysis & Conclusions Burden of proof[96]The Claimant ask the Employment Tribunal to consider the difference in treatment by James Killer towards him, the Claimant’s belief that James Killer disliked him and the negative feedback that the Claimant believed that James Killer gave him as evidence of race discrimination. However, we did not make any findings that James Killer disliked the Claimant and that was to do with his race. It seems to us that if James Killer did not like the Claimant because of his race, the Claimant would have known this from the time he knew James Killer at P&G. We found that there was a time that James Killer did not like the Claimant when he behaved distantly towards him but this was because James Killer perceived that the Claimant had made a grievance against him when he complained to HR on 5 June about the lack of 1:1’s by James Killer. We did note that the Claimant did not mention race discrimination at all in his evidence or attribute any of James Killer or Marianne Hall’s actions towards him because of his race in his witness statement. Even in cross examination the Claimant asked only about bias not race. We considered whether we could draw adverse inferences from the unreasonable and unfair nature of the recruitment process. However we consider this this was a Glasgow v Zafar scenario where an employer was unreasonable to everyone and not just the Claimant as was supported by Michael Morris’s evidence. Issue 2.2.1- did the Respondent require the claimant to undertake significant additional responsibilities between 30 January and 17 July 2023 (the complaint is as to both the extent of the responsibilities and the length of time for which he was required to undertake them).[97]We have found that the Claimant did take on additional responsibilities from 30 January-5 June 2023, this was not disputed by the Respondent in covering Aveeno brand. However, what was disputed was that the reason for the extent of the responsibilities and the fact that the Claimant was required to double hat for 6 months was because the Claimant was black Afro Caribbean. We found that the Respondent was disorganised and even though they knew at an early stage that Oliver Bradbury would be leaving they did not ask the Claimant about taking on the responsibility of the Aveeno line or consider whether the Claimant should be paid for this additional responsibility. However, Mr Sellwood is correct in his submissions that the Claimant did not present any evidence that anyone else who was white received a payment for the work. The Claimant did not present any evidence that any of the comparators he relies on Joe Lanni, Sini Jovicic, Chelsey Lavall, Eleanor Healy, and Jemma Price received payment when they were double hatting either. The Claimant did present evidence that the comparators who did double hat, did so for less than the period that the Claimant double hatted for which we accepted. However, we do not accept the Respondent’s reason why there was a delay, which was because there was gaps in management. James Killer was given the responsibility of supporting the Claimant from March and from April it was his responsibility to recruit. James Killer was derelict in his duties towards the Claimant and the rest of CS&P team. James Killer could have recruited to the role at the Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 end of May 2023, when Christina Baker told him of her interest in the role. This would have relieved the Claimant some months earlier of double hatting but again James Killer was indifferent to the Claimant’s stress and uncaring and inconsiderate of what the workload the Claimant was being subjected to. However, it was not because the Claimant was black afro Caribbean but because of James Killer not being on top of his job. In those circumstances, we conclude that the Claimant complaint of direct race discrimination is not well founded and is dismissed. Issue 2.2.2 did the Respondent fail to provide the claimant with adequate managerial support between 10 November 2022 and 17 July 2023[98]Whilst we found that the Claimant was not given adequate managerial support in the period, we found that the Claimant was satisfied with the support he received from Marianne Hall and Katie Morris before James Killer took over and then we did not find that Eleanor was managed by Jemma but James Killer. Eleanor was therefore in the same situation as the Claimant regarding managerial support in this period. In those circumstances there is no difference in treatment, There is no less favourable treatment on the grounds of the Claimant race. In those circumstances, we conclude that the Claimant complaint of direct race discrimination is not well founded and is dismissed. Issue 2.2.3- did Mr James Killer, fail to give any notification or discussion regarding the handover of managerial responsibilities for the claimant on 17 July 2023[99]James Killer admitted that he did not give any notification or discussion regarding the handover of managerial responsibilities to Claimant on 17 July 2023. This was less favourable treatment. However, we do not consider Christina Baker was an appropriate comparator. She was the manager taking over the Claimant’s line management, she was not in a position where she was not being told about her line management being changed and so the circumstances were different. In any event we found that the reason why James Killer did not tell the Claimant was because he did not consider it be an issue and that was in accordance with his approach to management which was lackadaisical. In those circumstances, we conclude that the Claimant complaint of direct race discrimination is not well founded and is dismissed. Issue 2.2.4 By Mr James Killer, failing to engage in regular connects or 1:1 meetings with the Claimant[100]We found that James Killer did fail to engage in regular connects with the Claimant or one2 one meetings with the Claimant. James Killer was derelict in his duty and did not take his managerial duties with the seriousness that was required. However we conclude that he also did the same things with his other reports that the Claimant named as comparator. Joe Lanni, Sini Jovicic and Chelsey Lavall. In those circumstances, we conclude that the Claimant complaint of direct race discrimination is not well founded and is dismissed. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025 Issue 2.2.5 did the Respondent fail to offer to pay the Claimant adequate enhanced pay to account for the additional responsibilities between 30 January and 5 June 2023[101]We have found that the Respondent did not offer to pay the Claimant adequate enhanced pay between 30 January- 5 June 2023. However we found that the reason for this was because James Killer did not know about the Temporary Responsibility Allowance policy as he was new to the Respondent. There was no evidence anyone else was ever paid the Temporary Responsibility Allowance either before the Claimant’s started double hatting or afterwards in the commercial department. Although not an appropriate comparator, James Killer was not paid in when he was double hatting. The Claimant was not treated less favourably than anyone else by not being paid. We consider that a hypothetical comparator in the Claimant’s situation who was white would have been treated in the same way. In those circumstances the Claimant’s complaint is not well founded and is dismissed. Issue 2.2.6 did the Respondent fail to promote the claimant from level 26 to level 30 on 26 May 2023[102]The Respondent did fail to promote the Claimant. The process used by the Respondent was unfair on any analysis and was a sham. We have found if the Respondent had followed the Talent Planning Development Document as would have been the reasonable position to have taken, Anna or Henry would have been promoted to Level 30 not the Claimant. We accept the Claimant’s argument that he would have scored higher had his previous performance rating and awards been taken into account in his on the job rating. However, the Claimant failed to give evidence as to what that score would have then been and therefore whether he would have got the job. In any event there were no facts from which could infer that the reason why the Claimant did not get the level 30 role was because of his race. We do not accept the Respondent’s reason for why he did not get the job as he was deemed ‘Ready Future’ which was based upon his scoring in the Development Centre as we found that the scoring had nothing to do with how the Respondent decided that someone was ‘ready now.’ We do however conclude that having found that the Development Centre was unfair and shoddy procedurally, this equally applied to Anna and Henry who are white. We do not accept that James Sweeney was treated more favourably than the Claimant as he scored the highest and so if the fair procedure were applied he still would have got the job. Joe Lanni was not in the process and did not go through a Development Centre like the Claimant did, Furthermore the Claimant did not apply for the level 30 role that Joe Lanni was offered could not compare . Toby Webber is an appropriate comparator and was treated more favourably than the Claimant. But it was the case that Toby Webber was not performing in his job but got the same score as the Claimant. Furthermore, James Killer assesses Sini on the job scoring. James Killer had been Sini’s line manager for a longer period of time that the Claimant. But Sini was not deemed ready now either. We conclude that Toby was treated more favourably than all the other white candidate in the Development Centre and therefore we consider that the Claimant was not treat less favourable treatment because of his race. Case No: 3313475/2023 10.8 Reasons – rule 60(3) February 2025[103]The fact that the managers making the decisions regarding the Claimant’s promotion were all white and that there were only white managers in the commercial department were not facts that led us to infer that the lack of the Claimant’s promotion was because he was black Afro Caribbean. The reason for our conclusion are that the number of employees of the Respondent was 517. The number of Black Afro Caribbean employees at the Respondent at the time of the Claimant’s employment was 2. The statistics of provided by the Respondent demonstrate that the Respondent only had 2 black afro Caribbean employees in the business and one of those employees was a manager. A 50% representation of black afro Caribbean employees at management is a high representation of Black Afro Caribbean in management. We do not consider that fact that the representation of black afro Caribbean management in the Respondent’s business is not represented in the commercial department where there is only 2 people of black afro Caribbean ethnicity in the Respondent’s business indicates to us that the Respondent did not promote Black Afro Caribbean to management because they were Black Afro Caribbean. In those circumstances we conclude that the Claimant complaint of direct race discrimination is not well founded and is dismissed.[104]As we did not find any race discrimination, time was not an issue and neither was the ACAS grievance matters. Approved By: