Employment Judge Shastri-HurstMr D Hobbs (instructed by counsel) for respondentDate 16 February 2024
JUDGMENT
[1]The following claims are struck out under rule 37(1)(c), for non-compliance with Tribunal orders: 1.1. The holiday pay claim; 1.2. Direct race/religion discrimination regarding three specific allegations as follows: 1.2.1. (issue 1) Being subjected to a Final Written Warning; 1.2.2. (issue 2) The handling of the appeal against the Final Written Warning; and 1.2.3. (issue 14) Partnership Services failing to make an adequate referral to Occupational Health prior to the disciplinary hearing. For the avoidance of doubt, the claimant’s other allegations of direct race/religion discrimination, and his claims of unfair dismissal, notice pay, reasonable adjustments and victimisation remain live and listed for a final hearing on 16 to 20 October 2023.[1]Paragraph 20(iii) of the Revised List of Issues (the alleged reasonable adjustment of “allowing the Claimant full access to pending medical treatment prior to the holding the disciplinary hearing”) is struck out as having no reasonable prospect of success;[2]Paragraph 21(iii) of the Revised List of Issues (the alleged protected act of attending a Black Lives Matter event on 26 October 2020) is not struck out.
REASONS
Introduction
[1]The claimant was employed by the respondent from 16 August 2004 to 20 April 2021 as a Warehouse Partner at the Waitrose & Partners warehouse in Bracknell. He was dismissed: the respondent says that the reason for dismissal was conduct.[2]Early conciliation started on 29 June 2021 and ended on 10 August 2021. The claim form was presented on 9 September 2021. The claimant brought claims of: 2.1. Unfair dismissal – s98 Employment Rights Act 1996 (“ERA”); 2.2. Holiday pay – Working Time Regulations 1998 (“WTR”); 2.3. Direct race/religious belief discrimination – s13 Equality Act 2010 (“EqA”); 2.4. Failure to make reasonable adjustments – ss20/21 EqA 2.5. Victimisation – s27 EqA.[3]The claimant relies upon alleged disabilities of depression and a shoulder injury. All relevant disclosure of medical evidence has been made, and an impact statement has been provided. The respondent denies that the claimant satisfied the definition of disability within s6 EqA at the relevant time, on 30 April 2021.[4]The final hearing in this matter is listed for 16 to 20 October 2023.[5]On one matter of nomenclature, where pages are referenced below, they are page references to the agreed bundle prepared for 3 April 2023 hearing, and retained by the Judge. Issues[6]The issues to be dealt with at this hearing were set out in the notice of hearing and are as follows: 6.1. Whether the allegations at paragraph 20(iii) and paragraph 21(ii) of the revised list of issues should be struck out, or made subject to a deposit order, due to having no or little reasonable prospect of success; 6.2. Whether the allegations at items 7 and 15 of the direct race and religious belief discrimination claim in the revised list of issues are in the original claim form and, if not, has an application to amend been made in relation to them; 6.3. Whether any other application to amend has been made and, if so, that application will be dealt with; 6.4. To finalise the list of issues; 6.5. To make case management orders leading to the final hearing.[7]All issues other than the strike out application are dealt with in a separate case management order. Law Strike out 7. At the last hearing, on 3 April 2023, I indicated that I would consider at today’s hearing whether two allegations made by the claimant had no or little reasonable prospects of success. Those two allegations are: 7.1. Failure to make reasonable adjustments – paragraph 20(iii) of the Revised List of Issues; “Allowing the Claimant full access to pending medical treatment prior to the holding the disciplinary hearing.” 7.2. Victimisation – paragraph 21(ii) of the revised list of issues; “Did the claimant undertake a protected act... in 2020 when he participated in a Black Lives Matter event?”.[8]The relevant ground for strike out is found within r37(1) of Sch 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”). R37 provides as follows: “37(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim on any of the following grounds – a. That it is scandalous or vexatious or has no reasonable prospect of success;”[9]The Tribunal has the power to make deposit orders against any specific allegations or arguments that it considers have little reasonable prospect of success under r39 of the Rules: “39(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim…has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. 39(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[10]For discrimination claims, the starting point regarding case-law is Anyanwu and anor v South Bank Student Union and anor [2011] ICR 391 UKHL. Here, the House of Lords emphasised that discrimination claims are often fact-sensitive and require close examination of the evidence at a full merits hearing.[11]I am also assisted by the case of Balls v Downham Market High School and College [2011] IRLR 217, in which Lady Smith held: “When strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether there written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.”[12]Mitting J in Mecharov v Citibank NA [2016] ICR 1121 EAT provided the following guidance at paragraph 14: “…the approach that should be taken in a strike out application in a discrimination case is as follows: 1. Only in the clearest case should a discrimination claim be struck out; 2. Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; 3. The claimant’s case must ordinarily be taken at its highest; 4. If the claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and, 5. A tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[13]However, there are some caveats to the general approach of caution towards strike out applications. In Ahir v British Airways plc [2017] EWCA Civ 1392 CA, it was held that, when a tribunal is satisfied that there are no reasonable prospects of the facts needed to find liability being established, strike out may be appropriate. This is caveated by the need to be aware of the danger of reaching that conclusion without having heard all the evidence. Findings of fact Procedural background[14]The claimant commenced the ACAS early conciliation process on 29 June 2021. This process concluded on 10 August 2021, and the claim form was presented on 9 September 2021. The respondent defends the claim, and presented its response on 10 January 2022.[15]On 26 April 2022, the Tribunal sent out case management orders requiring the claimant to produce a disability impact statement and any medical evidence upon which he wished to rely by 25 May 2022. No response was received from the claimant in line with this order.[16]By letter of 13 June 2022, the respondent made an application to strike out claims for non-compliance or in the alternative failure to actively pursue his claim. By email of 20 June 2022 the claimant’s representative responded in writing to the respondent’s application to strike out.[17]On 2 August 2022, the order requiring the claimant’s disability evidence to be served by 25 May 2022 was extended to 18 July 2022.[18]The matter was listed for a preliminary hearing on 2 September 2022. The 2 September 2022 hearing[19]The matter was listed for a private case management hearing on 2 September 2022, at which Employment Judge Tynan was presiding. In advance of that hearing, Mr Hobbs, for the respondent, had produced a draft list of issues to assist the progression of the case. That draft included six allegations of direct race/religious belief discrimination pursuant to s13 of the Equality Act 2010 (“EqA”). Although this document was provided to Mr Ogbonmwan in advance of the hearing, he did not provide any comments on it or seek to agree its contents in advance of this hearing.[20]At the hearing, following discussion with the parties and the Judge, it was apparent that Mr Ogbonmwan sought to suggest that there were in fact 21 allegations of direct race/religious belief discrimination that the claimant wished to pursue.[21]The judge at that hearing did not have the time to establish whether all of the additional 15 allegations were apparent on the ET1 or whether an application to amend was required. It was recorded by the Judge at this hearing that no application to amend had been made as at 2 September 2022. The Judge ordered that any application to amend was to be made by 23 September 2022 and listed the matter for a preliminary hearing to deal with any application and to clarify the list of issues, on 3 April 2023.[22]At this hearing, Mr Ogbonmwan indicated that he may wish to make an application to amend the claim to add a post-termination discrimination claim. However, the Judge specifically noted that there was, as at 2 September 2022, no application to amend the claim; particualrly he noted that the email of 1 September 2022 cannot be regarded as an application to amend.[23]At this stage in proceedings, the claimant had still not complied with the order for him to provide his disability documents/statement (order originally made on 16 April, varied on 2 August 2022). Although the claimatn had provided an impact statement the day prior to this hearing, it was 16 pages and 341 paragraphs of single-spaced typing, and the respondent had not had the chance to consider this.[24]At the hearing on 2 September 2022, the Judge also made orders for the claimant to provide further and better particulars at paragraphs 1.1.1 to 1.1.5 of his Order by 26 September 2022. The claimant failed to do this.[25]The Judge also ordered that any application to amend must be presented by 23 September 2022 (paragraph 4.1 of the Order). Aftermath of the 2 September 2022 hearing[26]As a result of the claimant’s failure to comply with the order requiring him to provide further and better particulars by 26 September 2022, the respondent applied to strike out the claimant’s claim for disability discrimination on the ground of non-compliance, or in the alternative underground of the claim had no or little reasonable prospect of success.[27]By letter of 29 September 2022, the respondent applied for an unless order requiring the claimant to provide the respondent with the further and better particulars as ordered to be providedby 26 September 2022.[28]On 10 October 2022, the Tribunal required that the claimant “must confirm that he has now provided the information at paragraphs 1.1.1 to 1.1.5 of the 2 September order or explain why he has failed to do so”.[29]On 14 October 2022, the respondent wrote to the Tribunal, confirming that it maintained its position that the claimant’s disability status was denied.[30]In response to this, on 17 October 2022, the claimant sent a document that perported to be the further and better particulars as well as an application to amend. This was followed by a schedule of loss on 21 October 2022.[31]On 4 November 2022, the respondent applied to the Tribunal for a preliminary hearing in order to: 31.1. Deal with the claimant’s application to amend; and 31.2. Attempt to finalise a list of issues between the parties, as the document provided by the claimant on 17 October 2022 did not take matters further.[32]By letter of 29 November 2022, the Tribunal stated that the document presented by the claimant on 17 October 2022 were “not in a form acceptable to the Tribunal”. The Tribunal stated that, if the claimant failed to comply with the Tribunal’s order within a further 14 days (13 December 2022), then consideration would be given to striking out those parts of the claim to which the order refers.[33]On 13 December 2022, the claimant sent an email attaching an 11-page document purporting to be particulars.[34]On 22 December 2022, the respondent applied to strike out various aspects of the claimant’s claim, on the basis of non-compliance with the Tribunal’s order. The claims/allegations subject to that application were as follows: 34.1. The holiday pay claim; 34.2. Allegations of direct race/religious belief discrimination (Issues 1, 2 and 14 on the Revised List of Issues): 34.3. Part of the reasonable adjustments claim (paragraph 20(iii) on the Revised List of Issues); 34.4. Part of the victimisation claim (paragraph 21(ii) on the Revised List of Issues).[35]Furthermore, in relation to the direct discrimination claim, the respondent did not accept that allegations 7 and 15 of the Revised List of Issues were apparent from the claim form, and were of the view that an application to amend needed to be made if the claimant sought to include these specific allegations.[36]I should explain the term “Revised List of Issues”. Following the hearing on 2 September 2022, the respondent’s legal team analysed the ET1 and accepted that most of the 21 allegations set out at the 2 September 2022 hearing were (even if just obliquely) in the ET1. Mr Hobbs produced a Revised Draft List of Issues to reflect all the additions that had been identified by Mr Ogbonmwan in the 2 September 2022 hearing. It was however made clear by the respondent that inclusion of all 21 did not mean that the respondent accepted that all the additional 21 claims were within the ET1.[37]The 3 April 2023 hearing was therefore listed, before me, to consider the respondent’s application to strike out, any applications to amend, and a list of issues. The 3 April 2023 hearing[38]On the morning of 3 April 2023, at 0930hrs, Mr Ogbonmwan sent another document to the Tribunal that he said provided the further and better particulars.[39]Having looked at the various correspondence on file, I made the parties aware that the only document/part of document that I considered could be an application to amend is the last two pages of the document sent by the claimant on 17 October 2022, that relates to post-termination victimisation and discrimination.[40]I asked Mr Ogbonmwan whether he thought he had made any applications to amend. He said that he was applying to amend to include claims that were out of time, as well as the post-termination discrimination/victimisation. I could not find any other document that could be understood to be an application to amend. Mr Ogbonmwan said that he had not sent in an application, as he had prepared a document in advance of the 2 September hearing, that the Judge had accepted as being, to all intents and purposes, an application to amend.[41]I explained to Mr Ogbonmwan that the Judge’s order is very clear: he did not consider that there was, as at 2 September 2022, any application to amend in front of him. He then ordered that any application to amend be presented by 23 September 2023. Mr Ogbonmwan confirmed that he had not sent in any other application to amend, as he did not want to cause the Tribunal more work.[42]My decision at the 3 April 2023 hearing was as follows: 42.1. The holiday pay claim was struck out for non-compliance; 42.2. Allegations 1, 2 and 14 of the direct discrimination claim as set out in the Revised List of Issues were struck out for non-compliance; 42.3. Issues at paragraphs 20(iii) and 21(iii) of the Revised List of Issues were not struck out for non-compliance;[43]Unfortunately, we ran out of time to deal with the other issues before the Tribunal, and so I postponed the matter as part-heard, and re-listed it for 15 May 2023 for 3 hours, to deal with the following issues: 43.1. (On the Tribunal’s own initiative) whether the allegations at paragraphs 20(iii) and paragraph 21(ii) of the Revised List of Issues should be struck out, or made the subject of a deposit order, due to having no or little reasonable prospect of success; 43.2. Whether the allegations at items 7 and 15 of the direct race/religion claim in the Revised List of Issues are in the original claim form and, if not, has an application to amend been made in relation to them; 43.3. Whether any other application to amend has been made, and, if so, that application was to be dealt with. At the hearing on 3 April 2023, I identified that there may be an application to amend in relation to posttermination discrimination/victimisation, as set out at the end of the document submitted by the claimant on 17 October 2022. I made it clear that I was not at that stage aware of any other application to amend; 43.4. To finalise the list of issues; 43.5. To make case management orders leading to the final hearing. The 15 May 2023 hearing[44]The claimant’s representative had made two applications to postpone the hearing today, on 14 April 2023 and 12 May 2023: both of these were rejected for reasons set out in response to those applications at the time.[45]The hearing was therefore reconvened today. The issues to be dealt with were repeated at the beginning of the hearing, and were those as set out in my Case Management Order from 3 April 2023.[46]In advance of this hearing, this morning, Mr Ogbonmwan sent to the respondent’s solicitors and to the Tribunal two documents, labelled as: 46.1. “Note for Employment Judge Conducting the preliminary Hearing 3rd April 2023” (9 pages). This in fact was the respondent’s note prepared for use at the 3 April 2023 hearing; and, 46.2. “Note for Employment Judge Conducting Open Preliminary Hearing Request for Amendment and Defence to the Respondent’s Strike Out Application”, referred to below as “Note” (11 pages).[47]During the course of the hearing, Mr Ogbonmwn also handed up a document that he said had been given to the Tribunal in advance of the 2 September 2022 hearing (this is the 16 page, 341 paragraph document referred to above). I have now read this document, and his “Note”. It must be said that these documents are not easy to read; they are dense and unclear.[48]I heard submissions from both parties on all issues, and heard evidence from the claimant in relation to his financial situation, in case I determined that a deposit order was appropriate. Given the time constraints, I was unable to give a decision today, and so reserved my decision. I made it clear to the parties that, in terms of a finalised List of Issues, I would amend the Revised List of Issues to reflect my decisions following today’s hearing, and attach that finalised List of Issues to my case management orders. Those orders, with that finalised List of Issues are contained within a separate document. Conclusion Strike out: Paragraph 20(iii) of the Revised List of Issues[49]Paragraph 20(iii) is part of the reasonable adjustments claim, and sets out one of the adjustments that the claimant alleges would have been reasonable. That paragraph reads as follows: “allowing the Claimant full access to pending medical treatment prior to the holding the disciplinary hearing”.[50]The claimant’s case, as established today, is that the claimant had a GP appointment on 21 April 2021 (before the disciplinary hearing) and a course of physiotherapy sessions due to start on 25 April 2021, in relation to his shoulder injury.[51]The claimant did not miss any prearranged appointments by attending the disciplinary hearing on 30 April 2021. The claimant’s point was that he had not completed his course of physiotherapy at the time the disciplinary hearing took place. He was also subject to a fit note that signed him off as unfit to work on the basis of depression and functional issues. 52. in terms of his claim that he should have been permitted to conclude his medical treatment, he can therefore only be referring to the ongoing course of physiotherapy regarding his shoulder issue.[53]In terms of a substantial disadvantage suffered by the claimant as a result of not having finished his medical treatment, the claimant’s case appears to be that his mental health was exacerbated and he suffered injury to feelings. It was not said that any symptom relating to his shoulder injury caused him problems at the 30 April hearing.[54]Reading paragraph 20(iii), and combining it with what I learned today, the suggestion by the claimant is that the disciplinary hearing should have been delayed until such time as his physiotherapy course had finished. In other words, the claimant says the disciplinary hearing should have been delayed. This is a repetition of the issue recorded at paragraph 20(i).[55]From what Mr Ogbonmwan told me today, I understand that the substantial disadvantage allegedly suffered is an exacerbation of the claimant’s mental health. There appears to be no substantial disadvantage related to the shoulder injury. Therefore, the completion of a physiotherapy course related to the claimant shoulder is not causative of any substantial disadvantage.[56]Instead, the substantial disadvantage of which is complained (exacerbation of mental health) is much more directly connected to the question of whether the disciplinary hearing should have been delayed until such time as the claimant fills that he mentally would be in a position to deal with hearing.[57]Given that there is no substantial disadvantage that was highlighted to me that is said to have arisen specifically from a failure to allow full access to medical treatment (i.e. physiotherapy), I find that there is no reasonable prospect of this part of the reasonable adjustments claim succeeding. This is because the facts which I understand the claimant seeks to rely upon, taken at their highest, have no reasonable prospect of leading to a finding of liability.[58]I therefore strike out paragraph 20(iii) of the claim. Strike out: Paragraph 21(ii) of the Revised List of Issues[59]This paragraph seeks to claim that the claimant did a protected act by attending a Black Lives Matter (“BLM”) event. According to the claimant’s Note, the event is said to have occurred on 26 October 2020. The respondent argues that this activity cannot fall within any of the four definitions of protected act, as set out at section 27(2) EqA. That section states as follows: “Each of the following is a protected act:(a) bringing proceedings under this Act;(b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.”[60]It is the claimant’s position that attending a BLM event could fall within s27(2)(c).[61]Looking at the legal test for what falls within the scope of s27(2)(c), I have the following guidance: 61.1. The case of Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 held that making tape recordings of conversations amounted to doing something “under or by reference” to the Race Relations Act 1976 (“RRA” the applicable legislation of the time). In that case, it was held that something could be done “under or by reference” to the RRA, even in a situation where the individual does not have his mind on any particular part of the RRA. 61.2. In the case of British Airways Engine Overhaul Ltd v Francis [1981] IRLR 9, the claimant’s assertion that she had done a protected act failed. She alleged that the protected act was making a statement to the press that she (as shop steward) was disappointed that the union was not seeking equal pay for women. She relied on the definition of protected act of “by reference to”. This allegation failed, as the claimant had not alleged that either her employer or the union had acted in breach of the Sex Discrimination Act 1975 (“SDA”, the relevant legislation at the time).[62]In the index case, there is not an assertion of the respondent’s failure to comply with the Equality Act 2010. However, the definition of “doing any other thing for the purposes of or in connection with” the EqA is a broad one; I am therefore not satisfied that there are no reasonable prospects.[63]I therefore refuse the application to strike out this part of the claim.
Conclusions
[1]The respondent has two trading divisions, those being John Lewis and partners department stores and Waitrose and partners supermarkets. The business is run on co-ownership principles and all partners are eligible to participate in a share of the respondent’s annual profits.[2]The claimant was employed by the respondent as Warehouse Partner from 16 August 2004 to 20 April 2021. He worked at the Waitrose and partners warehouse in Bracknell. The respondent says that it dismissed the claimant by reason of misconduct.[3]The claimant commenced the ACAS early conciliation process on 29 June 2021. This process completed on 10 August 2021, following which the claimant presented his claim form to the tribunal on 9 September 2021.[4]In the claim form, the claimant sought to present claims of unfair dismissal, disability discrimination, race discrimination, and discrimination on the grounds of religion or belief. He also brought pay claims, ticking all the boxes relating to all types of pay claims. The respondent provided a response to the claim denying all the claims in their entirety. Preliminary hearings[5]This claim has been subject of three preliminary hearings: 5.1. On 2 September 2022, before Employment Judge Tynan. At this hearing it became apparent that the claimant had not complied with certain orders of the tribunal. Furthermore no list of issues was capable of agreement, despite the fact that the respondent’s solicitors had produced a draft list of issues in advance of the hearing to the claimant’s representative. Further Case Management orders were made at this hearing. 5.2. On 3 April 2023, before Employment Judge Shastri-Hurst. At that hearing the claimant’s claim for holiday pay and three allegations of direct race/religion discrimination were struck out on the basis that there had been non-compliance with case management orders. This hearing ended up being part heard. 5.3. On 15 May 2023, before Employment Judge Shastri-Hurst. At this reconvened hearing, the tribunal considered whether to strike out certain allegations or, in the alternative, whether to make a deposit order in relation to those allegations.[6]Following that hearing on 15 May 2023, the list of issues was finalised to reflect the outcome of the various matters dealt with at that hearing, and now appears at [176-179]. The claims were clarified as being as follows: 6.1. unfair dismissal under s98 of the Employment Rights Act 1996 (“ERA”); 6.2. breach of contract/notice pay; 6.3. direct race/religious discrimination under s13 of the Equality Act 2010 (“EqA”); 6.4. failure to make reasonable adjustments under ss20 and 21 EqA; 6.5. victimisation under s27 EqA. Final hearing[7]The tribunal had before it the main bundle of 820 pages (references to “[X]”). It was also provided with the claimant’s additional bundle of 21 pages (references to “[C/X]”). The respondent did not object to the admissibility of that additional bundle.[8]We also had the benefit of witness statements from the claimant and Michael Ibe (“MI”) in support of the claimant, as well as Jimmy Craske (“JC”), Operational Manager, and Tracy McCreadie (“TM”), a manager in the appeals office within the respondent’s People Department. JC was the investigation officer, and TM was the appeal officer regarding the disciplinary process that led to the claimant’s dismissal. The dismissing officer was Bill Mansfield (“BM”), who has since retired from the respondent, and did not give evidence in this matter. References to witness statements are “[AB/WS/X]”, where AB are the initials of the witness, and X is the paragraph number to which is referred.[9]We were provided with a skeleton argument from the respondent which had been served on the claimant and his representative by email the day before the hearing on Sunday 15 October 2023. From the claimant’s representative we had three additional documents: 9.1. a cast list; 9.2. a document entitled Brief Claimant Case Summary; and 9.3. a document entitled Legality and Alternative Sanctions to Strike Out application. List of Issues[10]The list of issues is found at [176-179], and is annexed to this Judgment. We clarified with Mr Ogbonmwan that the substantial disadvantages alleged in relation to the reasonable adjustments claim were as follows: 10.1. The claimant was compelled to attend the hearing on 30 April 2021; 10.2. The claimant was unable to prepare fully for that hearing; 10.3. Exacerbation of the claimant’s mental health. Timetable[11]Unfortunately, there was a delay in starting the evidence in this case. The claimant’s representative raised numerous issues and applications which required our attention and therefore we did not commence the claimant’s evidence until 1255hrs on Day Two.[12]In total, the claimant was at the witness table being cross-examined for just short of 9 hours. However, there were, during this period, numerous interjections and interruptions lasting several minutes at a time from Mr Ogbonmwan. The claimant was re-examined by Mr Ogbonmwan for 2 hours.[13]Although the Tribunal agreed with the parties to start at 0930hrs on Day Four and Day Five, unfortunately Mr Ogbonmwan was delayed in his attendance. This meant that we lost the hour. We did on several of the sitting days take shorter lunch breaks in an attempt to catch up some time.[14]We commenced the respondent’s evidence on Day Five. We had, on Day Four, warned the parties that the Tribunal would have to rise at 1445hrs on Day Five.[15]On Day Five, we heard evidence from TM. She was cross-examined by Mr Ognbonmwan, with a couple of interjections from Mr Hobbs lasting a few seconds each. At 1230hrs, we informed Mr Ogbonmwan that we wanted TM’s evidence to be concluded by 1300hrs. By 1300hrs, the cross-examination was not finished. We took a shorter lunch break, from 1310hrs to 1340hrs, and on return it was agreed that we would list the case for a further day with the parties on 18 December 2023: all parties confirmed that they were free to attend.[16]We reminded the claimant’s representative that we needed to finish TM’s evidence “today” and by 1445hrs: there was no need for her to be under oath for the next 8 weeks, when there had been plenty of time for cross-examination on the relevant issues.[17]Mr Ogbonmwan was then given a 10 minute warning, a five minute warning, and a warning that he could have two more questions. He was in fact permitted to ask a third question following that last warning. At that stage, the Tribunal guillotined Mr Ogbonmwan’s cross-examination of TM: this meant that TM had been cross-examined for 3 hours and 30 minutes.[18]The hearing was then postponed part-heard, to return on 18 December 2023 for JC’s evidence and submissions. Parties were informed that they were welcome to provide written submissions, if that would assist in ensuring that we got through everything on that remaining day.[19]In advance of the 18 December 2023, the Judge sent out a proposed timetable for the final day, to ensure that all matters could be concluded on Day 6. The proposed timetable was as follows: Cross-examination of James Craske 1000 – 1300 Lunch 1300 – 1400 Cross-examination of James Craske 1400 - 1430 Tribunal’s questions and re-examination 1430 – 1450 Break 1450 – 1500 Respondent’s submissions 1500 - 1530 Claimant’s submissions 1530 – 1600[20]This allowed 3.5 hours for JC’s cross-examination. We were delayed by 15 or so minutes on Day 6, and so took a shorted lunch break to ensure that Mr Ogbonmwan still had 3.5 hours for his cross-examination. Unfortunately, Mr Ogbonmwan was still seeking to ask questions at 1430, despite being reminded of the timetable throughout the day, and being given a 15 minute and 5 minute warning, and in fact being given until 1436hrs in the end.[21]Despite the timetable, Mr Ogbonmwan requested some time to consider his closing submissions. In light of Mr Hobbs’ indication that he would not need the allotted 30 minutes in closing, we altered the timetable, so that the parties could have a 20 minute break, followed by 20 minutes each for submissions. For the record, Mr Hobbs’ submissions were 22 minutes, Mr Ogbonmwan’s were 25 minutes. Mr Hobbs had handed up written closing submissions, which had been given to Mr Ogbonmwan in advance of Mr Ogbonmwan’s submissions. Mr Ogbonmwan also handed up submissions, but at a time which meant that Mr Hobbs did not have an opportunity to respond to them; we took this into account when reading them. Day One Issues[22]At the commencement of the hearing, the Tribunal raised the issue that the Judge had previously made a deposit order in this case and that she was obviously also listed to deal with the final hearing, which was not usual. This was raised by the Tribunal for full transparency, given that the claimant’s representative is not legally qualified.[23]The Judge made it clear to the claimant that it was open to him to apply for her to recuse herself and that there was the possibility that a second judge may be available if the application went in his favour. However, she stated that she did not consider there was a difficulty with her hearing the case, given that the deposit order was on a minor part of one of the claimant’s several claims: namely, the deposit order was made against one of two of the claimant’s alleged protected acts for his victimisation claim (now recorded at issue 17(ii) of the List of Issues at [176]).[24]The claimant’s representative made an application to postpone the hearing. The Judge enquired as to whether any application for recusal should be dealt with before the postponement application, however the claimant’s representative wished to proceed with the postponement application before the current tribunal. We therefore dealt with that application first.[25]The claimant made an application to postpone the hearing on four grounds: 25.1. that there was an outstanding application for disclosure that the respondent had not met; 25.2. that the CCTV footage of the incident leading to the claimant’s dismissal had not been disclosed; 25.3. that the respondent’s skeleton argument, served on 15 October 2023, ambushed the claimant and sought to dictate the timetable of the hearing; 25.4. that the bundle the respondent sent to the claimant’s representative was not compliant with Tribunal guidance. Disclosure issue[26]The Tribunal heard submissions from the claimant’s representative on the disclosure issue first. This related to a disclosure request sent to the respondent containing 68 paragraphs. The respondent had responded to this email on 5 October 2023 by commenting on each paragraph where necessary. We used the email of 5 October 2023 as a reference point whilst dealing with the disclosure issue.[27]We went through each of the requests for disclosure to make sure that the tribunal understood what was being asked for, why it was said to be disclosable and what the respondent’s response was.[28]Having gone through this exercise with the claimant’s representative, we made the decision that there were four categories of disclosure that we considered admissible, should any documents exist that fell within those categories. Those categories were as follows: 28.1. human resources (“HR”) telephone logs – if there were any further entries between the claimant and HR regarding the dismissal process, we considered those of relevance and admissible; 28.2. occupational health reports (“OHRs”) – if there were any further OHRs relevant to the disciplinary process in 2020, other than the one we have in the bundle dated 11 March 2021, then we considered those relevant and admissible; 28.3. redeployment rejection – it was said by the claimant’s representative that JC had sent correspondence to the claimant rejecting him for a redeployment role in 2021. If there were such correspondence, that would be relevant and admissible; 28.4. GP diagnosis – we had been told by the claimant’s representative that there was a document from the claimant’s GP containing a diagnosis of depression, and that this was not in the final bundle. We considered that if there was a diagnosis from the GP in a document that was currently not in the bundle, that would be admissible and relevant, and should be produced by either side to us.[29]There was also the matter of the disclosure of relevant CCTV. The position was that the respondent’s representative had sent a link to the claimant’s representative in August 2023. The link should have led through to 2 videos of CCTV evidence. The claimant’s representative tells us that he was unable to use the link to see the videos and therefore he and his client had not seen any CCTV evidence, despite it being referenced in the respondent’s index to the final hearing bundle. The respondent’s representatives managed, during Day 1, to obtain two USB sticks, and copied the CCTV evidence onto those sticks, one for the claimant’s representative and one for the Tribunal. We gave the claimant time on the first afternoon to watch the video. In fact we finished the hearing on the first day at 1450, the idea being that we would commence evidence at 1000 on Day Two, having had a chance to read the statements and documents to which they refer.[30]The respondent had the opportunity before we broke on Day One to make enquiries about the four categories of disclosure set out above. It was the respondent’s position that there was nothing further to disclose, and that no further documents were in the possession or control of the respondent that fell within those four categories. In terms of the GP evidence, it transpired that in fact we have the relevant document in the claimant’s additional bundle of 21 pages. Remaining postponement points[31]In terms of the other three grounds on which the claimant requested a postponement, we set out each below: Claimant’s bundle[32]Mr Ogbonmwan’s position was that the final bundle that was sent to the claimant in line with the case management orders was not compliant with Tribunal guidance. He was unable to point the Tribunal to any specific guidance to which he was referring. The Tribunal inspected Mr Ogbonmwan’s bundle on his invitation: the bundle was exactly the same as the bundle provided to the Tribunal, other than it was double-sided. Mr Ogbonmwan stated that the double-sided nature of the bundle made it difficult for him to digest. Mr Ogbonmwan had mentioned this to the respondent on the first morning, and Mr Hobbs gave Mr Ogbonmwan his (Mr Hobbs’) own (clean) hard copy of the bundle: Mr Hobbs was working from an electronic bundle.[33]We found that there was nothing in the way in which the bundle sent to the claimant was formatted that prevented a fair trial, or in any way prejudiced the Respondent’s skeleton argument[34]We considered that there was nothing unusual about a professional representative providing an opening skeleton argument. These are often exchanged/provided on the first morning of a hearing, if not in advance. To have a skeleton argument provided is in fact helpful not only to the Tribunal but to the receiving party, as it indicates what the sending party’s key arguments will be. There was nothing at all unprofessional about Mr Hobbs sending his skeleton to the claimant’s side the day before the hearing: it does not amount to an ambush.[35]In terms of the suggested timetable, it was just that: a suggestion. Again, it is not unusual, and is often helpful, for one or both parties to set out how they envisage the hearing panning out in terms of time for cross-examination and so on. Ultimately, the timetable is a matter for the Tribunal to discuss with the parties and finalise. Mr Hobbs did not attempt to, and could not in any event, bind the Tribunal in terms of a timetable for the week ahead. CCTV[36]Given our discussion regarding disclosure, set out above, by close of Day One the claimant had the CCTV videos in his possession. We gave him permission to provide a supplementary witness statement dealing with just the CCTV.[37]We record that the CCTV was not in fact disclosed late, as was submitted by Mr Ogbonmwan: it was disclosed by the respondent in August 2023. The fact was that the claimant’s representative could not access it. However, we have seen no evidence to show that the claimant’s representative raised this problem with the respondent’s representative. Decision on postponement[38]When an application is made to postpone a hearing less than 7 days before the commencement of that hearing, rule 30A of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Rules”) applies. R30A provides as follows:(1) An application by a party for the postponement of a hearing shall be presented to the Tribunal and communicated to the other parties as soon as possible after the need for a postponement becomes known.(2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where— (a)all other parties consent to the postponement and— (i)it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii)it is otherwise in accordance with the overriding objective; (b)the application was necessitated by an act or omission of another party or the Tribunal; or (c)there are exceptional circumstances.[39]In this case, the only one of the above three grounds for postponement that could apply was the “exceptional circumstances” limb. The Tribunal found that none of the grounds set out by the claimant upon which he based his application amounted to exceptional circumstances.[40]Dealing with each of the grounds, briefly, in turn: 40.1. Disclosure – no further disclosure was produced following the Tribunal’s decision on the disclosure application. Therefore, there was no new documentation that required the claimant to have a postponement in order for him to be able to consider it; 40.2. CCTV – a further copy of the two videos of CCTV that had previously been disclosed by the respondent were provided to the claimant on Day One. He had time on the afternoon of Day One to consider those videos with his representative. He also had permission to provide a supplementary statement dealing with the contents of the CCTV. There was no prejudice to the claimant in those circumstances in continuing with the hearing; we found that a fair hearing could still proceed this week; 40.3. Claimant’s bundle – there was absolutely nothing wrong with the respondent sending to the claimant a double-sided bundle. There was no need for the claimant to have an adjournment in order to familiarise himself with the single-sided version; 40.4. Respondent’s skeleton – we found that the claimant and his representative were not “ambushed” by the skeleton. There was nothing in it that required a postponement in order for the claimant to be able to address it. The suggested timetable was nothing more than a suggestion, and was not seeking to dictate to the Tribunal.[41]There was nothing within the claimant’s application that led the Tribunal to find exceptional circumstances existed in this case that meant a postponement was appropriate.[42]The postponement application was therefore rejected. Application to recuse[43]Following the Tribunal’s decision not to postpone the hearing, the Tribunal returned to the issue as to whether the claimant wished to apply for the Judge to recuse herself, or whether he was happy to continue with the current composition of the Tribunal.[44]Mr Ogbonmwan took the opportunity to take instructions, and applied for the Judge to recuse herself, given that she had made a deposit order on 15 May 2023.[45]The respondent’s position was that it simply wanted to get on with the hearing. Mr Hobbs submitted that there was nothing that required the Judge to recuse herself. There was nothing in the deposit order itself that would lead the public to perceive that at fair hearing could not take place.[46]The Tribunal rejected the claimant’s application for the following reasons: 46.1. There has been a change to the law in the 2013 Rules. Under the 2004 Rules, there was an express provision that prohibited a Judge making a deposit order from hearing the final hearing. That rule has been expressly removed from the 2013 Rules, thereby lifting that prohibition; 46.2. Looking at the deposit order made on 15 May 2023, the reason for it was that the Judge had a concern that the facts relied upon as equating to a protected act would not fulfil the statutory definition of a protected act under s27(2) EqA. The order was not made on the ground that the Judge had found the claimant or part of his case incredible, nor had she made any finding or conclusion on the claimant’s credibility (negative or otherwise) or anything of that nature. In other words, the deposit order was a matter of legal interpretation, not credibility; 46.3. The deposit order was made against one component part of the victimisation claim, which is one of six distinct claims. The deposit order does not threaten the victimisation claim in its entirety, as there is a second protected act upon which the claimant relies.[47]In light of the above points, the Tribunal concluded that there was nothing in this case that could give the public a perception that a fair hearing was not possible.[48]As stated above, the Tribunal released the parties at 1450hrs, in order for the claimant to have time to consider the CCTV with his representative, and prepare a supplementary witness statement. This time also gave the Tribunal time to read the witness statements and the documents to which they referred. Day Two Issues[49]On the morning of Day 2, the Tribunal received three emails from Mr Ogbonmwan. The contents can be summarised as follows: 49.1. An application for reconsideration of the Tribunal’s decision regarding the CCTV evidence made on Day One; 49.2. An application for reconsideration of the Tribunal’s rejection of the claimant’s recusal application on Day One; and, 49.3. An application to strike out the respondent’s Response to the claim.[50]Mr Ogbonmwan also applied in his emails for the Tribunal to take Day Two to deal with these issues, and use the day for case management accordingly. The Tribunal determined that this was not a good use of the Tribunal’s time, given the timetable for the hearing and our desire to hear all the evidence and submissions within the allotted five day window.[51]We determined that the two reconsideration applications had no reasonable prospects of succeeding and therefore, under r72 of the 2013 Rules, we did not need to have a “hearing” on the application. Those reconsideration applications were rejected (reasons set out more fully below).[52]We considered it proportionate to allow Mr Ogbonmwan 15 minutes to make submissions on his strike out application, and permit Mr Hobbs 15 minutes to respond. We proceeded to hear from both parties on that basis. Initially, however, Mr Ogbonmwan sought to address us as to the need to take the day to deal with his applications, stating that to refuse to grant that request would be to prejudice the hearing and give a perception of bias. He then continued to make his submissions on his application to strike out the Response, followed by brief submissions from Mr Hobbs. Again, details are set out more fully below. Reconsideration application re: CCTV[53]Rule 70 of the 2013 Rules provides: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[54]Rule 72 of the 2013 Rules provides: “(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.”[55]The relevance of the CCTV as we had dealt with it on Day One was that the claimant and Mr Ogbonmwan said that they had not been able to access it via the link the respondent had sent. Therefore, they sought a postponement of the final hearing.[56]As set out above under “Preliminary Issues – Day One”, this matter was remedied so that the claimant and his representative had a copy of the CCTV and an opportunity to view and discuss it prior to anyone giving any evidence. The CCTV was clearly relevant and admissible.[57]No points had been advanced in support of the reconsideration application as to why it was necessary in the interests of justice for us to reconsider our decision. We therefore found that our decision not to postpone (as relevant to the CCTV) had no reasonable prospect of being set aside or varied. As such, the application was refused, effectively on the papers.[58]In fact, the framing of this application as a reconsideration application was incorrect, given that the Tribunal’s management of issues regarding the CCTV on Day One did not result in a judgment, but a case management order. Technically, the correct procedure would have been for Mr Ogbonmwan to apply to set aside or vary the decision to admit the CCTV and not to postpone the hearing because of the CCTV. If the application had been framed in this way, it would still have been rejected, on the basis that it was not necessary in the interests of justice to so vary/set aside the earlier orders regarding admission of the CCTV, and refusal of the postponement application. Reconsideration application re: recusal[59]Again, no points had been advanced as to why it was necessary in the interests of justice to reconsider the decision not to recuse Employment Judge ShastriHurst.[60]As such, the Tribunal found that there were no reasonable prospects of the decision being set aside or varied. Nothing new was advanced by the claimant, and nothing to suggest that the interests of justice demanded the decision to be reconsidered. Therefore, the reconsideration application was rejected.[61]Again, the correct framing of this application by the claimant should have been an application to set aside or vary a case management order, rather than a judgment. The result would have been the same in any event, given that it was not necessary in the interests of justice to vary or set aside the order refusing the application to recuse. Claimant’s strike out application[62]This application was made under rule 37(1)(b); that the manner in which the respondent had conducted the claim was unreasonable or vexatious. The claimant relied upon three grounds: 62.1. Ground 1 – late disclosure of significant evidence (namely the CCTV footage); 62.2. Ground 2 – the low quality and unreliability of the CCTV evidence, which is said to prejudice the claimant; and 62.3. Ground 3 – the “intimidation” of MI, given the contents of Mr Hobbs’ skeleton argument in relation to MI (at paragraph 11).[63]In terms of Ground 1, we had already found that there had been no late disclosure of significant evidence. In particular, the CCTV was disclosed in good time, in August 2023. As set out already above, we had remedied the fact that the claimant and his representative had not seen the video in any event.[64]In terms of Ground 2, we considered that the appropriate way in which to deal with issues as to the quality and reliability of the CCTV footage was for the parties to address us in closing submissions when the time came.[65]In terms of Ground 3, the concern Mr Ogbonmwan had raised was in relation to a section of Mr Hobbs’ skeleton regarding MI. Mr Ogbonmwan’s submission was that Mr Hobbs had breached his professional duty, had fallen below the standard expected of a barrister in line with the Bar Code of Conduct and had “demoralised and dehumanised” MI deliberately.[66]In summary, paragraph 11 of Mr Hobbs’ skeleton submits that MI’s evidence to the Tribunal is irrelevant. This is because he had been dismissed some two years prior to the claimant’s dismissal, and so MI was not employed by the respondent at the time of the facts that the Tribunal needed to deal with in this claim. Mr Hobbs also set out that MI has his own claim in the Tribunal, listed for 2024, against the respondent, and therefore has an axe to grind. Mr Hobbs included in his skeleton the respondent’s reason for dismissing MI: we do not repeat it here as it is not relevant to the issues we need to determine.[67]In the alternative, if strike out was not considered appropriate, Mr Ogbonmwan invited us to place some kind of sanction on the respondent that we deemed appropriate.[68]In determining an application under rule 37(1)(b), there are four steps to consider: 68.1. Whether there has been scandalous, unreasonable or vexatious conduct of proceedings; 68.2. Whether a fair trial is no longer possible; 68.3. Whether strike out is a proportionate response to the conduct in question; 68.4. If the claim is struck out, what further consequences might follow.[69]We rejected the application to strike out, and the application for a lesser sanction. We found that there had been no vexatious, unreasonable or scandalous conduct for the following reasons: 69.1. The only evidence that was late to be seen by the claimant was the CCTV, which was disclosed in good time. The only issue was that the claimant’s representative could not access it; 69.2. We heard nothing that suggests that the respondent did anything unreasonable or vexatious in the manner in which they disclosed the CCTV; 69.3. We have seen no correspondence between the parties’ representatives that shows the respondent or its representative acting unreasonably or vexatiously; 69.4. We had by this time seen the CCTV. The image is clear. As to what it shows, the witnesses and the claimant would be able to give evidence as to what they say it shows; 69.5. It is ultimately a question for us as to what we make of the CCTV; 69.6. Paragraph 11 of Mr Hobbs’ skeleton is partly fact and partly submission. As to the facts, those had not been challenged by the claimant. As to the submission that MI has his own axe to grind, that is a submission that does not fall below any standards or breach any professional code that Mr Hobbs is bound by; 69.7. In any event, MI was dismissed some time before the claimant’s dismissal, and was not present for any of the allegations that are before us to determine.[70]Furthermore, we considered that a fair trial was still possible. The issue regarding the claimant’s inability to view the CCTV had been rectified and he had prepared a supplementary statement to respond to the CCTV. Furthermore, nothing written by Mr Hobbs in relation to MI had in any way fallen below the professional threshold and so the skeleton did not endanger the fairness of the trial.[71]In any event, it would be wholly disproportionate to strike out the Response in reaction to the conduct of which was complained, given that it would mean the respondent would be denied the ability to defend serious claims made against it.[72]We then considered the claimant’s representative’s alternative application, that some form of sanction be imposed on the respondent in light of its conduct. As set out above, we did not find any conduct by the respondent or its representative to come close to the threshold required by rule 37. Indeed, we found no blameworthy conduct that would necessitate a sanction being put in place.[73]The claimant’s applications were therefore rejected. Day 3 Issues New CCTV evidence[74]On the third morning of the hearing, Mr Ogbonmwan made an application which effectively asked us to “restrict Mr Hobbs’ authority” to produce new evidence. He made allegations against Mr Hobbs, and accused him of acting in a way that was intimidating to him (Mr Ogbonmwan), and in a manner that fell below the standards of the Bar. Mr Ogbonmwan said he would be making a complaint to the Bar Council about Mr Hobbs’ conduct.[75]The conduct that was said to be the issue was that Mr Hobbs had asked Mr Ogbonmwan for “a word”, and invited him into the respondent’s waiting room. Once in the room, Mr Hobbs attempted to show Mr Ogbonmwan a zoomed in clip of the CCTV video we had been shown on Day One of the hearing that lasted 30 seconds. Mr Ogbonmwan stated to Mr Hobbs that he did not wish to see anything without his client, and without being able to talk to his client.[76]We find that nothing in what Mr Ogbonmwan reported to us comes anywhere close to Mr Hobbs acting in a manner that is unprofessional, let alone intimidatory, or against the standards expected of a barrister at the Bar of England and Wales. In fact, we find that Mr Hobbs has been extremely professional throughout this hearing. We have no concerns whatsoever about his professionalism.[77]Mr Hobbs applied for us to admit the 30 second interview. Mr Ogbonmwan’s objection to the CCTV was that he believed that it had been manipulated.[78]We found that the new CCTV clip was relevant and admissible, and could potentially help the Tribunal. Any submissions that Mr Ogonmwan had as to the quality or veracity of the CCTV are points that can validly be made in closing submissions.[79]In terms of Mr Ogbonmwan’s submission that we should place a blanket restriction on Mr Hobbs’ “authority”, we concluded that we would not make any such blanket restriction on either side, but would deal with each and every application that we were asked to deal with on its own merit. Allegations against the respondent’s counsel[80]Following a morning break the Tribunal reconvened, at which point Mr Ogbonmwan made some very serious allegations against Mr Hobbs. Mr Ogbonmwan told us that, just before the parties had entered the Tribunal room and in the presence of witnesses, Mr Hobbs had “lashed” at him, saying “do you know that you should not be talking to the claimant or the witness”. We were told that Mr Hobbs was holding his laptop, waving his body and head, and that his whole body was shaking.[81]In his statement to us, Mr Ogbonmwan stated, amongst other things, the following: 81.1. “I want this to be considered white supremacist tactics”; 81.2. “I need you to rescue me so that I may not be assassinated outside this building, a lot of people have been killed”; 81.3. “I want reassurance and protection against any physical harm – I am afraid and worried”; 81.4. “If he had had a gun he would have used it”; 81.5. “I don’t understand his [Mr Hobbs’] mental health situation”.[82]When asked what Mr Ogbonmwan was asking the Tribunal to do, he asked that we provide him with security and “rescue him”.[83]We asked Mr Hobbs to briefly recount his version of events to us. He told us that he had seen the claimant’s representative gesticulating and communicating with his client in the claimant’s waiting room. Mr Hobbs said to Mr Ogbonmwan “you do know that you’re not supposed to speak to witnesses”. We point out that this was at a stage at which the claimant was part way through his cross-examination, and the warning about speaking to others about his evidence had been given to him. Mr Hobbs told us that he was standing still while saying these words. Mr Ogbonmwan had at that point said that this was another example of white supremacy and that he would report Mr Hobbs to the Bar Council.[84]The tribunal took five minutes to consider the submissions we had heard from both representatives. We gave the following decision: The claimant’s representative’s application is for us to rescue him. He has the security guards at the Tribunal at his disposal, as do all members of and visitors to the Tribunal: that is the most protection we can offer him. In terms of Mr Hobbs’ conduct, there is nothing on what we have heard from either representative, or seen from Mr Hobbs, to suggest that he has done anything other than act professionally. He has not even reacted to being accused of assassination or shooting a gun. There is nothing at all that gives us any cause for concern about his conduct and nothing that comes close to intimidation or falling below the standards of the Bar of England and Wales. In fact there is nothing wrong with professional representatives reminding others of witness warnings given by the Tribunal. There is nothing that suggests to us any white supremacist behaviour at all. We repeat that Mr Hobbs has been nothing but an example of professionalism.[85]At this point, we took a lunch break. At the point of reconvening after lunch the Tribunal of its own volition made the following statement: Following matters before lunch, we wish to raise with the parties the provision in r37(1)(b) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which provides: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a)… (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)… (d)… (e)… We have serious concerns about Mr Ogbonmwan’s conduct based on the allegations he made against Mr Hobbs before lunch, for example: That “he [Mr Hobbs] lashed at me”; Reference to white supremacy; That “if he [Mr Hobbs] had had a gun, he would have used it”; That Mr Ogbonmwan “needed [us] to rescue [him] so that [he] may be not be assassinated outside this tribunal - a lot of people are being killed”; “I don’t understand his [Mr Hobbs’] mental health situation”. We have found these allegations to be baseless. The allegations amount to a suggestion that Mr Hobbs may seek to physically harm, if not kill, Mr Ogbonmwan. The ultimate relevant question under r37(1)(b) is whether a fair trial can still be held. We have concerns that Mr Hobbs is faced with continuing to defend the claim in the face of the most shocking and unmerited allegations that this Tribunal has heard made against a professional representative. This is far beyond the normal crossing of swords that professional representatives can expect during a final hearing. Parties and representatives who come to this Tribunal should not be expected to withstand such baseless accusations. We make the point now, so that all present are aware of our current position.[86]No further allegations of this extreme type were made against Mr Hobbs for the remainder of the proceedings. Distinct Issue – Michael Ibe’s Evidence[87]On Day One, Mr Ogbonmwan asked for an indication as to which day MI would be required to attend to give evidence. This led to us having a conversation as to whether Mr Hobbs had any cross-examination questions for MI, given MI’s evidence did not go to the facts with which we are concerned: the evidence does not go to anything within the List of Issues. Mr Hobbs clarified that he would probably not have any cross-examination questions for MI. It was envisaged that Mr Hobbs would probably take a day cross-examining the[88]With those indications in mind, we told MI that he need not attend on Day Two, but could come on Day Three to give his evidence.[89]In the event, MI attended on Day Two. The Tribunal confirmed with Mr Hobbs that he did indeed have no cross-examination for MI. As such, we explained to Mr Ogbonmwan that the right to re-examine would not arise. Furthermore, given that MI’s evidence related to matters that occurred before the facts with which we are concerned, there could be no relevant supplementary questions. We therefore suggested that MI swore to the truth of his statement on Day Two, to avoid the need for him to attend again on Day Three.[90]Mr Ogbonmwan sought an adjournment for a “meeting” with MI. Given that we had already spent the morning of Day Two dealing with the applications set out above, the Tribunal determined it appropriate to move on to taking MI’s evidence instead of adjourning. This was due to the fact that MI’s evidence would be limited to swearing to the truth of his statement, therefore there could no benefit to or need for a meeting with Mr Ogbonmwan.[91]Mr Ogbonmwan made the point that MI’s statement set out that there was further evidence to be adduced. The Tribunal pointed Mr Ogbonmwan to the case management orders made in September 2022 regarding witness statements. The order is at [74] and states: “The claimant and the respondent shall prepare full written statements containing all of the evidence they and their witnesses intend to give at the final hearing…No additional witness evidence will be allowed at the final hearing without the Tribunal’s permission…”[92]Mr Ogbonmwan then sought to argue that MI should be permitted to respond to paragraph 11 of Mr Hobbs’ skeleton argument. He further submitted that MI’s Article 6 rights (of the European Convention of Human Rights) would be infringed if he was not permitted to be asked any questions.[93]The Tribunal stated that a response to Mr Hobbs’ skeleton would not help us to determine the claimant’s claims, and the questions set out in the list of issues. We assured MI that we would not be making any findings about his dismissal or his conduct, in case that was of concern to him. In terms of Article 6, this is the right to a fair hearing: we pointed out that this was the hearing of the claimant’s claim, not MI’s claim. MI has his own hearing coming up, as we understood it.[94]In the event, the Tribunal called MI to give evidence at 1157hrs on Day Two. MI was initially confused as to why he was not going to be asked any questions. We explained again that it was Mr Hobbs’ choice as to whether he asked questions or not. He had chosen not to do so; that meant that there was no right to re-examination by Mr Ognbonmwan. MI swore to the truth of his evidence and was thanked for his time. Although he was told he did not need to attend for the rest of the week, he chose to do so.[95]On Day Three, Mr Ogbonmwan had intimated that he wished to recall MI in order to give him the chance to respond to the perceived aspersions cast on his character by Mr Hobbs’ opening skeleton argument. Due to time constraints, the argument had to continue on the morning of Day Four.[96]On Day Four, the Tribunal received from MI an email, also sent to the respondent’s representative. To summarise, the email contained his rebuttal to the comments made in Mr Hobbs’ skeleton. We thanked MI for taking the time to write the email, and informed him that we had read his email. In light of this, Mr Ogbonmwan did not seek to recall MI again.
Findings of fact
[97]The claimant was employed by the respondent from 16 August 2004 to 30 April 2021, when he was dismissed on the grounds of serious misconduct. He worked at the Waitrose & Partners warehouse in Bracknell as a Warehouse Partner. His contract of employment is at [218]. At the time of his dismissal, his line manager was JC. Use of the respondent’s trucks[98]Employees (or “Partners”) in the position of Warehouse Assistant use pallet trucks for moving items around the warehouse.[99]The claimant worked the morning (“AM”) shift in the Ambient Warehouse. Part of his role involved driving the pallet trucks onto trailers/lorries that are driven to the doors of the warehouse. The trailers are reversed so that their back door is level with a gateway from outside to the warehouse receiving area. These gateways have numbers. To the side of each gateway is a separate, smaller door, which allows the driver of the trailers/lorries to enter into the warehouse to, for example, use the facilities. The drivers are not employees of the respondent.[100]Warehouse Assistants are required to drive a pallet truck from the warehouse, through a gateway and onto a trailer, in order to lift the goods from the trailer and move them into the warehouse on the truck. Each truck is fitted with a pallet guard that stands perpendicular to the ground: its purpose is to protect the driver from items on his truck falling towards him.[101]Each truck has a unique number, and each Partner has a fob that allows him/her access only to machines that they have authority to use. The technology associated with the fob means that, on looking at the data relating to each fob, one can see which Partners have had access to and used which vehicles, at what times.[102]At the beginning of a Warehouse Assistant’s shift, they are expected to complete a pre-use check book for their allocated truck – for example, [292/293].[103]At some point in 2020, the claimant attended a Black Lives Matter (“BLM”) event remotely. This event was organised internally by the respondent; the claimant attended remotely online, during work hours. Given that this event was organised by the respondent, it was clearly permitted that its employees attend.[104]At another point in 2020, during Ramadan, JC asked the claimant if he was a Muslim. The claimant alleges that JC laughed at this point. This conversation was not put to JC during his cross-examination.[105]This incident is noted by the claimant in his appeal meeting notes at [426], however in this note there is no reference to JC having laughed: “Before Ramadan he asked me whether [I] am a Muslim. I replied to him I said I yes [sic] am a Muslim and he walked off”.[106]Given that this conversation happened in the course of Ramadan, we do not consider that this was anything other than an innocuous question. We find that JC did not laugh: we find that this would have been mentioned by the claimant in the appeal had JC laughed. Discrimination Allegation 4 – giving the claimant a pay rise equivalent to 3p per hour (2020) – perpetrator JC[107]The claimant’s pay increases are recorded at [641], which shows as follows: Date Hourly pay (£) Pay increase (£) 1 April 2012 10.01 -- 1 April 2013 10.17 0.16 1 April 2014 10.37 0.20 1 April 2015 10.53 0.16 1 April 2018 10.53 0.00 1 April 2020 10.55 0.02[108]Partnership pay was performance related, meaning that the pay rise that could be achieved depended directly on the performance grading a partner obtained each year. The salary structure for partners is set out within set pay bands. It is possible for partners to move up a pay band, or increase their salary within a pay band, based on their performance grading.[109]In terms of JC’s involvement, we accept his evidence that he sat down with the rest of the management team to consider whether each partner merited the pay rise that they were eligible to receive, and to confirm whether that pay rise was recommended for each partner. Ultimately, the decision on any one partner’s pay rise rested with their shift manager. For the claimant, the shift manager was EB or BM, not JC.[110]For the year 2020, the claimant’s performance was graded as “very good” – [246/237]. We can see he was awarded a pay rise of 2p. We find that this is in keeping with the pay increases received in previous years.[111]The claimant was not entitled to a pay rise in the 2021 pay review, due to him being subject to a final written warning (see below). The claimant accepted that this was the respondent’s policy, as set out at [334]. July 2020[112]On Thursday 9 July 2020, the claimant had an issue with his car and had needed to take it to the garage. In order to accommodate this, JC agreed to a rest day swap, so that the claimant would be off work on Thursday 9 July, and working Saturday 11 July 2020 instead.[113]On Friday 10 July 2020, the claimant telephoned into work and spoke to JC. JC reported the conversation in notes included within the log on the claimant, kept by the managers (“Managers’ Record”) – [273]: Took a phone call at 10:00 saying that [the claimant] may not be able to come to work tomorrow and Sunday because he was still having car trouble and he needed to go to the garage. He would need it unpaid if he couldn't get to work. I informed him that anytime [sic] away from work would be discussed when he returned and that he must inform me if he couldn't come to work on Saturday or Sunday.[114]We accept this log entry as being accurate: it is contemporaneous evidence of the discussion between the two men, at a time when there was no reason at all for JC to record anything other than the truth.[115]On 20 July 2020, the claimant had a rest-day change granted in order to allow the claimant to partake in a religious festival - [273][116]On 22 July 2020, the claimant received a final written warning that was to be kept on his personnel record for 12 months– [251]: Serious misconduct, namely your unauthorised absence and failure to follow correct absence reporting procedures[117]A note on the Managers’ Record. We find that this is a record pursuant to a system that had been in place for over 20 years. Each partner has a log, in which factual matters are recorded by that partner’s managers. It does not include opinions/commentary on a partner, it is not an appraisal document. It appears to us logical for managers to keep such a log, to ensure consistency and good communication should a manager be away from work for any period and the line management of a partner need to be covered by another. The record is neutral in tone. The claimant complains to us that the managers who made entries in this Record did so in bad faith. We find that there is no evidence before us of bad faith, or collusion or conspiracy between the four managers for whom we have entries in this record. Discrimination Allegation 3 – failure to redeploy the claimant following raising a grievance against JC for issuing a final written warning (2020)[118]On examining the chronology of this case, it is clear that this Allegation 3 is confused. It was not JC who imposed a final written warning on the claimant (this happened in 2020, as set out above). Furthermore, the claimant explained that when this allegation refers to raising a grievance, he meant an oral complaint he raised with Elliott Blair (“EB”), a shift manager. The only oral complaints to EB that we have heard any evidence about were made in 2019.[119]It is common ground that, in 2019, the claimant spoke to EB requesting a change in line manager from JC. The best evidence we have as to dates of these conversations is from the claimant’s disciplinary appeal interview on 28 May 2021 – [425]. In that interview, the claimant said that: “I asked [EB] twice for a new line manager – 2019 in Dec was the second time. It was not listened to. First time was Oct 2019”.[120]It is the claimant’s case that it was in these conversations that he made a complaint of discrimination about JC.[121]EB’s evidence in the appeal interview was that the claimant told EB that – [435]: “JC wasn’t giving him what he needed, no indication about an issue. [The claimant] was one of the nicest people, very friendly, I would have remembered if it was [negative] about JC…He didn’t say anything [negative] around [JC]…No cause for concern about his relationship with [JC]…Discrimination: no.”[122]We find that, as at June 2021, EB would have no reason at all to withhold any information, or lie about what the claimant had said to him. We accept EB’s recollection of the conversation with the claimant as accurate, for the following reasons: 122.1. This recollection is nearer in time to the 2019 conversation than the claimant’s witness statement, or the claimant’s oral evidence to us; 122.2. During cross-examination, the claimant was asked to give examples that he gave to EB in 2019 of JC’s discriminatory behaviour: he was unable to give us any such examples; 122.3. The claimant was unable to give us any clear evidence as to what he told to EB about JC discriminating against him; 122.4. The claimant’s own recollection recorded in the appeal notes on 28 May 2021 made no mention of complaining to EB about discriminatory behaviour. He simply stated that he asked EB for a new line manager – [425]; 122.5. There is no contemporaneous documentary evidence to support the claimant’s assertion that he complained to EB about discriminatory behaviour in 2019.[123]We find that the claimant did not make a complaint of discrimination by JC to EB in October or December 2019 (or at any other time).[124]Factually, it is correct to say that the claimant was not redeployed to a different manager: EB refused the claimant’s request. EB’s evidence to the appeal panel (TM) was that it was common for Partners to ask to change line managers, and that he would always ask the reason for the request. He also explained that he often moved Partners around in terms of their management anyway, and that he would have told the claimant that he tends to move people in January and February. At that time, in the beginning of 2020, no Partners ended up moving to a different line manager due to COVID-19. The claimant had given EB no good reason why he should be moved, and so he was treated the same as everyone else and not moved. March 2021 – issue regarding storage of a pallet[125]Prior to the incident with which we are primarily concerned (8 April 2021), the claimant was being investigated for another matter (“the prior incident”) regarding a pallet that had not been stored in the pallet racking safely.[126]Although this matter was originally dealt with by JC (as the claimant’s manager), it was then passed onto Christina Northellini (“CN”).[127]We note that there is reference to this investigation at [454], in which PPA (the respondent’s HR function) recorded that “Partner is already being investigated for an accident to another truck which he also didn’t report”. JC was very clear that this prior incident was not of the same nature as the 8 April incident: we accept that this is a reporting error by HR, as JC is likely to have better knowledge of matters involving the claimant than HR.[128]Furthermore, on [455], there is an entry from HR recording “a breach of procedure and negligence with potential serious health and safety consequences” on 29 March 2021. This matter, which was not reported by the perpetrator, related to improper storage of a pallet, leading to damage to that pallet, and stock falling out from height. This entry was confirmed by JC in his evidence to be the prior incident. In this HR entry, it is recorded that JC’s view was that he wanted to “move to a case to answer”. March 2021 – occupational health involvement[129]On 4 March 2021, the claimant told JC about the pain he was experiencing in both shoulders – [277]. As a result of this conversation, the claimant was referred to Occupational Health (“OH”).[130]On 11 March 2021, an OH referral was undertaken. The claimant spoke to JC following that referral, on 15 March 2021: JC recorded in the claimant’s employee notes that – [277]: 15/03/21 [The claimant] has decided to go against the referral dated 11/03/21. He has a physio appointment booked for Tues 23 March. I will be meeting with him weekly to discuss redeployment as stated on the referral. [The claimant] also requested information regarding GIP insurance and long term sickness. This was printed and given to him. 16/03/21 [The claimant] has spoken to me this morning and informed me that he doesn't want to look at redeployment and is happy to carry on working as he is on normal duties.[131]The claimant complains to us now that he was refused the option of redeployment – see [C/WS/107] and Issue 16(ii) (part of the reasonable adjustments claim). We accept the contemporaneous note made by JC as an accurate reflection of the conversation between the two men. This is not only contemporaneous, but is supported by JC’s written and oral evidence to us. We also note that Mr Ogbonmwan made the suggestion to JC in cross-examination that “because the claimant refused redeployment, you sacked him”. This suggests that in fact the claimant was the one who refused redeployment. April 2021[132]On 8 April 2021, the claimant was working his usual AM shift. Part way through his shift, he decided to use truck number 202 (“the Truck”) to perform his duties in the receiving area. We have the front cover of the pre-use checklist for this vehicle at [292]. [293] is the page that is said by the respondent to have been completed on the morning of 8 April 2021. Unfortunately, the contents is illegible. However, the claimant told us that he had filled in the pre-use checklist for the Truck and that there was no damage to the Truck on his inspection of it in the morning of 8 April 2021. We can see on [293] that there is a specific check required for the pallet guard.[133]Emil Grabowski (“EG”), a Warehouse Partner, reported to JC, the First Line Manager, that the guard on the Truck had been bent, saying words to the effect of “I am not taking the blame for what that idiot has done”. 134. [JC/WS/27] records that EG approached him at 1115hrs. At the beginning of his evidence, JC corrected this time to 1315hrs: Mr Hobbs had made us aware towards the beginning of the case that this error was to be corrected in JC’s evidence. We accept that this was a genuine typographical error.[135]The claimant seeks to say that JC is lying to us now in saying that the conversation happened at 1315hrs, as JC has realised that the accident had not happened by 1115hrs. It is alleged that JC realised his mistake and so changed the time in his statement to support the respondent’s case.[136]This does not make sense to us. Had JC been attempting to deliberately mislead us as to the timing (or even the existence) of this conversation, he would more likely than not have done so in his original statement. He would be highly unlikely to make a mistake of this nature if he had set out deliberately to mislead.[137]JC went to inspect the Truck which was still in the receiving area, by which time the driver of the trailer that the claimant had been attempting to unload had left the site.[138]JC then went to the “goods in” department and told the claimant and EG to stand down from using any equipment. He then started the procedure of investigating, in order to get to the bottom of the damaged Truck. This included: 138.1. Asking the claimant and EG to write a statement regarding their use of the Truck that day; 138.2. Checking the pre-use check book; 138.3. Placing a “VOR” (vehicle off road) sign on the damaged Truck; 138.4. Requesting the relevant CCTV footage; 138.5. Requesting the key fob log on data for the claimant and others’ key fobs, to see who had accessed the Truck.[139]The claimant has attempted to cast some doubt on whether the Truck was in fact the one that was damaged. It is the respondent’s case that the Truck was truck number 202. We find that this is the case for the following reasons: 139.1. We have a photo of the Truck, taken by JC, on 8 April 2021 shortly after the accident was reported to him – [297]. Although there is no date on this photograph, and although the claimant challenges its authenticity, we have no good reason to doubt JC’s evidence that he took this photo on 8 April 2021 after EG told him of the damage; 139.2. There are two trucks in this photo. The one nearest the camera is said by the respondent to be the Truck (202) with a VOR (“Vehicle Off Road”) sign attached. This is denied by the claimant. By zooming in on the electronic copy of the bundle, we can see the “VOR” sign attached to the truck nearest to the camera has the number 202 on it. We can also see from that photograph that the pallet guard is not vertical, but is at (very approximately) a 75-80 degree angle from the floor, as opposed to the truck immediately behind it in the photograph, whose pallet guard appears to be perpendicular to the floor.[140]We therefore conclude that the truck that the claimant used that morning, truck 202, was one and the same as the Truck that suffered damage on that day.[141]It was JC’s responsibility to investigate the damage to the Truck, as the matter had been reported to him as manager. It is part of a manager’s remit, when informed of an accident/damage, to then undertake an investigation to understand what occurred. JC told us that this is not something that he, as a manager, would pass on to someone else to deal with: to do so would mean he was not doing his job properly.[142]Both the claimant and EG provided a written statement regarding their knowledge of any damage to the Truck – [307/300]. The claimant complains that these statements were not done on the correct prescribed form/in the correct format. We find that this made no difference to the information contained within the statements: it is purely a cosmetic matter that has no bearing on the fairness of the investigation process.[143]The salient parts of the claimant’s statement are as follows: 143.1. He did the pre-use checklist for the Truck at around 0605hrs; 143.2. The Truck was fine, and the claimant did not notice any damage; 143.3. He drove the Truck between lanes 54 and 56, then back to the goods in area; 143.4. EG then turned to him and said that the Truck was bent.[144]The salient parts of EG’s statement are as follows: 144.1. EG did a pre-use checklist at 1038hrs and the Truck was fully operational; 144.2. He used the Truck for around 30 minutes, at which point it was still functional; 144.3. When the claimant came back from a break, EG noticed that there was damage to the Truck, specifically the pallet guard was bent; 144.4. The claimant told EG that it had been bent since the morning, but EG was 100% sure that this was not the case. Discrimination allegation 11 – line manager (JC) and disciplinary hearing manager (BM) colluded to persuade EG to provide false evidence (April 2021) – alleged perpetrators JC and BM[145]We find that there was no collusion as alleged, nor was there any inappropriate interference in the preparation of EG’s statement by JC. We find this for the following reasons: 145.1. We have seen and heard no good evidence to suggest that BM spoke to EG at any stage of the internal process. In any event, at this stage, BM had not been identified as the disciplinary manager, so he would have no incentive to collude as suggested by the claimant; 145.2. The evidence of JC at [JC/WS/27-31] was not challenged in crossexamination. Specifically, in [JC/WS/31], JC denies colluding as alleged; 145.3. During the appeal, TM interviewed EG, who confirmed that no-one had helped him with the contents of his statement written on 8 April 2021 – [441].[146]On 9 April 2021, JC was sent the relevant CCTV footage. At [406], we have an email from Om Gurung at 1057 hours, sending a video file to JC: the title of that file is “360 Bay 211-210_uuid-5ee0a7b0-a174-4de9-840- ffffcd8d2731_2021-04-08_11-58-52(1).mp4”.[147]The claimant and Mr Ogbonmwan both argued that it was not clear what video clip this email was sending, and that this was all part of a conspiracy to manufacture evidence to push the claimant out.[148]We are satisfied that the video attached to that email from Mr Gurung is CCTV footage of 8 April 2021 at around 1158hrs, as demonstrated by the title of the video, which includes “2021-04-08” and “11-58-52” both of which we find are references to the time and date of the attached footage. We find that the video footage shows what is described in the body of Mr Gurung’s email: there is no good evidence to suggest that he has fabricated any of the contents within his email, nor has any good reason been proffered as to why he may invent evidence. The body of his email states: “The CCTV footage was reviewed and camera 809 captures the Material Handling Unit [Truck] at 11:35, the machinery appearance [sic] to be functioning as normal. However, when the time approaches 11:55 to 12:00 [the claimant] has gone into the lorry to unload his goods and he comes out at 11:58 with a dented grill on his Material Handling Unit. The Material Handling Unit is then parked at 12:00 and the damage is clearly visible on camera 806”.[149]JC watched the CCTV footage and concluded that it had been the claimant driving the Truck when it became damaged. On that basis, EG was cleared from the investigation and returned to work in the department. What does the CCTV footage show us?[150]We have seen this CCTV footage, and it shows the following: Time on video Action (min:sec) 00:20 Pallet driver (“PD”) enters shot on foot 01:32 PD gets onto a truck 01:33 The pallet guard on the truck is straight 01:44 PD drives truck towards a gateway 01:47 PD and truck disappear from view (onto a trailer parked at the gateway) At the same time, the lorry driver appears through the side door at the gateway and walks away from the gateway and out of shot 02:37 PD and truck exit the trailer, returning into view. The truck is empty 02:40 The pallet guard of the truck is now clearly bent, now at an angle of (very roughly) 75-80 degrees 02:55 PD drives the truck clear of the trailer, then dismounts and shakes the pallet guard. He tries to use another truck but returns to the original truck 03:47 PD on the truck moves out of view 03:50 PD momentarily comes back into view, but then disappears out of shot again 04:15 The lorry driver comes into view and returns to the trailer 04:30 Another PD drives onto the trailer with a different truck and unloads the goods on the trailer 05:00 Video ends[151]Watching this CCTV footage in the Tribunal room, the claimant denied that the PD in the video was him. We find that the PD was indeed the claimant for the following reasons: 151.1. On observing the claimant in the Tribunal and the build and gait of the PD on the CCTV, we find that they are one in the same; 151.2. Mr Hobbs managed to enlarge the CCTV footage. Mr Ogbonmwan objected to the inclusion of the enlarged footage, but we admitted it on the basis that it was of assistance to the Tribunal. Although not crystal clear, this footage gives a closer picture of the PD’s face shape and body shape. From this, we are satisfied further that the claimant is the PD in the video; 151.3. On first being asked about the CCTV in the investigation meeting that followed on 12 April 2021, the claimant did not deny that the PD was him. He answered questions on the assumption that the PD was him. In fact, throughout the internal process, the claimant did not once deny that the PD in the CCTV was him. 151.4. The claimant informed us that there was only one other black employee on his AM shift in the Ambient Warehouse, and that, on 8 April 2021, that other employee was not working at the time of the CCTV footage.[152]From viewing the CCTV footage ourselves, the Tribunal makes the following findings: 152.1. At the time of the claimant driving the Truck onto the lorry trailer at, the pallet guard was perpendicular to the floor and undamaged; 152.2. Around 50 seconds later, the claimant drove the Truck off the trailer: it was still empty. We find that something happened on the trailer prior to the claimant loading the Truck, that made the claimant disembark from the trailer; 152.3. Whilst the Truck was on the trailer, the trailer driver exited the trailer and was not present whilst the claimant was on the trailer; 152.4. Upon the claimant driving off the trailer, the pallet guard was no longer perpendicular to the ground, but was bent at an angle away from the driver; 152.5. The claimant dismounted from the Truck, inspected and pushed on the vertical guard. We find that the only rational explanation for such action was that the claimant was aware he had hit something, and was checking whether the guard had been damaged.[153]The CCTV footage referred to above was labelled “CCTV (2)” before the Tribunal. We also had sight of another CCTV video, 6 minutes in duration, labelled “CCTV (1)”. This showed us the following: Time on video Action (min:sec) 00:45 PD enters shot on truck 00:51 It is clear from this angle that the pallet guard of the truck has been damaged 01:00 Again, it is clear from this angle that the pallet guard of the truck has been damaged 01:40 PD dismounts and inspects the pallet guard 02:07 PD stops his inspection and leaves the truck 06:00 Video ends[154]We make the following findings, having seen CCTV (1): 154.1. Again, from the gait and appearance of the PD, we are satisfied that this is the same PD as in CCTV (2), namely the claimant; 154.2. The truck on which the claimant appears in CCTV (1) is the same damaged truck (which is the Truck) as that viewed in CCTV (2). This is clear from the angle at which the pallet guard is leaning in CCTV (1); that being the same, approximately 75-80 degrees, away from the driver; 154.3. The claimant inspected the truck in order to assess the damage to the pallet guard. There is no other good explanation as to why the claimant would act in this manner; 154.4. The claimant abandoned the truck. Aftermath of incident[155]When JC received the key fob data, it showed that it had been the claimant who had accessed the Truck at the relevant time. This evidence from JC was not challenged, and we accept it.[156]On 9 April 2021, JC telephoned the HR department and spoke to Jane Bell (“JB”). He reported to JB that CCTV showed a driver driving onto a trailer with a straight guard, then coming off the trailer with a bent guard, and failing to report any damage or accident – [454].[157]It is recorded that “[JC] has said that he feels that the first incident is NCA [no case to answer]”. This refers to the prior incident referenced above in March Discrimination allegation 9 – failure to provide the claimant with details of the other vehicle (the trailer) involved in the accident (April 2021) – alleged perpetrator JC and BM Discrimination allegation 10 – failing to take a statement from the driver of the trailer (in which the accident occurred) – alleged perpetrators JC and BM[158]The claimant complained later in the process that no evidence was obtained from the lorry driver at the gateway onto whose trailer the claimant had driven the Truck. We find that this was because, by the time of JC’s attendance on the site, the lorry and lorry driver had departed from the respondent’s grounds.[159]The claimant says that steps should have been taken to obtain information about the driver, in order to get his evidence. We accept that the driver was not an employee of the respondent, and that it would have been difficult to trace the identity of the driver.[160]In any event, we are satisfied that the driver would not have added anything to the investigation. First, he was not present throughout the time that the claimant and the Truck were on the lorry trailer. Second, the CCTV clearly shows that, when the claimant entered the trailer, the pallet guard was undamaged, then on his leaving the trailer it was damaged. Investigation meeting on 12 April 2021[161]On 12 April 2021, JC held an investigation meeting with the claimant. This meeting was to investigate the damage to the Truck that had been reported to JC on 8 April 2021. JC told us, and we accept his unchallenged evidence, that if an accident is reported to a manager, it is that manager’s responsibility to investigate. Technically, this was a health and safety investigation into an accident, and was not a disciplinary investigation meeting; this makes no material difference. Discrimination Allegation 8 – line manager asked the claimant to attend an investigation meeting without a representative present (12 April 2021) – perpetrator JC[162]The claimant complains that he was not allowed to be accompanied to this meeting. JC told us that this was an informal meeting, and so the claimant was not offered the right to a companion: his evidence was that this only occurs at formal meetings. JC’s evidence on this was unchallenged: we accept this as the reason why the claimant was not offered a companion.[163]There is no statutory right to be accompanied to any meeting other than a disciplinary or grievance meeting: the meeting on 12 April 2021 was neither of these. Although the claimant was not offered the chance to be accompanied, neither did he request a companion. We accept that it was an informal meeting, and we find that the lack of offer of a companion was not a disadvantage to the[164]The notes of the investigation meeting are at [311-319]; they were signed by the claimant and JC on 12 April 2021. The important parts of those notes are as follows: 164.1. The claimant was given the opportunity to add to his statement written on 8 April 2021; 164.2. The claimant was shown the CCTV from 8 April 2021 from 1130- 1135hrs; 164.3. After seeing the CCTV footage, the claimant accepted that the pallet guard had been straight before he entered the trailer, and then was bent on the claimant coming out of the trailer; 164.4. The claimant accepted that it was him driving the Truck onto the trailer, with a straight pallet guard; 164.5. The claimant stated that he “didn't think it was a heavy touch”. He accepted touching something but did not at the time think that the Truck was damaged; 164.6. He believed that he had had an accident in the trailer, but that it was not a “heavy touch" and he did not notice the damage; 164.7. He apologised; 164.8. The claimant had checked to see if the pallet guard was damaged by trying to shake it; 164.9. The claimant accepted that it was a mistake not to report the accident at the time. Discrimination Allegation 5 – permitting JC to become involved in the disciplinary process leading up to the claimant’s dismissal (given that the claimant had raised a grievance against him in 2020) (April 2021) – perpetrator EB[165]The claimant avers further to this allegation that JC should not have dealt with this investigation, as JC did not like the claimant, and JC was already the investigating officer on the prior investigation.[166]On this discrete point, we find as follows. In relation to the prior incident investigation, JC in fact transferred the responsibility of that investigation to “Christine” (another manager). In any event, he had indicated that he considered that there should be no case to answer on that matter: far from demonstrating a dislike of the claimant, we find that this shows JC considered each matter that came before him fairly and on its merits.[167]Regarding Allegation 5, t is not correct that EB permitted JC to be involved in the claimant’s disciplinary process. As above, JC undertook the investigation into the damage as he was the manager to whom the damage was reported. To leave it to another manager would have been to shirk his managerial responsibilities.[168]As mentioned above, technically, the investigation done by JC was not a disciplinary investigation in any event. It was an investigation into damage caused to one of the respondent’s trucks. The matter became a disciplinary matter at the point that JC sought HR advice and it was agreed that the matter should be referred for a disciplinary process. For completeness, we find that the investigation conducted by JC at this point was sufficient to mean that no separate formal disciplinary investigation needed to be done. All relevant and reasonable enquiries were covered by JC in his investigation.[169]In any event, no grievance had been raised against JC by April 2021, whether in 2020 or at all. Furthermore, the claimant accepted in crossexamination that he had never objected to JC undertaking the investigation.[170]Factually therefore, this allegation did not occur as pleaded. JC, of his own volition, undertook an investigation into damage, and then passed it on to others to pursue a disciplinary process. We find that JC’s involvement at this stage was of no detriment to the claimant; we have no good evidence to the contrary.[171]We find that JC was an appropriate person to deal with this investigation. Discrimination Allegation 6 – line manager put pressure on the claimant to admit causing vehicle damage and/or not reporting it on the basis that it would not then be pursued as potentially dismissible misconduct (8-12 April 2021) – perpetrator JC[172]The claimant’s case to us was that the only reason he accepted fault in the investigation meeting was that there had been a “gentlemen’s agreement” in place between himself and JC. That agreement set out that, if he accepted fault, he would not be dismissed.[173]We reject the allegation that there was such a gentlemen’s agreement, or that any pressure was applied by JC, for the following reasons: 173.1. The claimant’s evidence on this altered during the course of his evidence to us. He started by alleging that JC placed him under pressure; however by the end of his evidence the claimant told us that this was nothing more than a “gentlemen’s agreement” and that in fact he could not really remember it; 173.2. Whether JC suggested or told the claimant to say that the accident was his fault, and he would not be fired, was not a point that was put to JC in cross-examination; 173.3. We have a note of the investigation hearing; the time at which this gentlemen’s agreement was said to have occurred by the claimant was prior to the investigation meeting. At the beginning of the meeting, the claimant denied an accident. According to the notes it was following sight of the CCTV that the claimant changed his account, accepting that there had been an accident. The timing of the change in the claimant’s account makes no sense if the reason for the claimant’s admission was a conversation that happened before the meeting. On the face of it, if there had been a gentlemen’s agreement, the claimant had not initially upheld his end of that agreement. We note again that the claimant signed the investigation notes as accurate; 173.4. The logical reason for the claimant’s change of account, his admission and apology, is that he saw the CCTV, recognised himself, saw there was damage to the Truck and realised there was no point in denying an accident had occurred. This explanation is consistent with the timing of his change in account, which is straight after his viewing of the CCTV during the investigation meeting.[174]The claimant now alleges that he did not see the CCTV in this meeting (or at all during the course of the internal process). We do not accept this. We find that he was shown the CCTV at this investigation meeting for the following reasons: 174.1. The notes of the meeting record not only the showing of the CCTV, but a discussion around the CCTV. These notes were signed by the claimant at the time of the meeting; 174.2. The claimant’s evidence to us was that he could not remember the investigation meeting at all. JC’s evidence was clear, that the CCTV had been viewed during that meeting; 174.3. The claimant never raised an issue about not having seen the CCTV in writing to the respondent, or in any meeting (the appeal meeting, for example).[175]Following this meeting with the claimant, JC reported back to HR; see entry in the HR log of 12 April 2021 at [454]. That note by HR recorded that: “[JC] has held the inv mtg. James shared the CCTV with P. P was dishonest about his involvement in the accident. [JC went over training records relating to reporting accidents. P said he didn't remember and didn’t know but did then present full awareness of what he needed to do if he had an accident. When they discussed the accident and watched the footage, P was visibly involved and gave multiple versions of what happened but could not explain the reason why he did not report it. No mitigation. [JC] is looking to pass on to disciplinary. Adv: this is fine – cannot see any risk at this stage by doing so.”[176]At 13.31hrs on 12 April, JC sent Bill Mansfield (“BM”) (Shift Manager) the CCTV footage he had received from Mr Gurung – [408]. April 2021 – claimant commences sick leave[177]The day following the investigation meeting, 13 April 2021, the claimant went home from work due to sickness. He reported to JC that he was “going home sick due to stress and he could not concentrate”: this again appears in the employee notes – [278]. This was the first time that the claimant had reported to the respondent that he was suffering from stress.[178]On 14 April 2021, BM contacted HR to seek advice as to what to do in light of the claimant going on sick leave for stress. The advice received was that the claimant could be asked if he was fit to have a meeting, or that a referral to Occupational Health be made to ask the same question – [453].[179]On 20 April 2021, JC sent a management referral to Occupational Health in order to establish whether the claimant was fit to attend a disciplinary hearing – [320]. The OH physician recommended that - [321]: “Concentration and focus appears [sic] to be affected due to the current situation and related stress. Management to contact the partner to arrange a telephone meeting”[180]In the clinical assessment of the OH physician - [744]; “it would be better for [the claimant’s] mental and physical health to take part in the meeting, at least by telephone. [The claimant] has agreed to a telephone meeting to try and resolve the issue and improve his health”.[181]Also on 20 April 2021, the claimant called the HR department at 1646hrs. The conversation is recorded as follows: “[the claimant] already has a final warning is worried about closure as he is being investigated due to damage to a pallet truck. Is wondering if both fall under misconduct. Advice: Potentially yes both fall under misconduct need to follow process and after outcome delivered have the opportunity to appeal the decision".[182]The claimant was reviewed by his GP on 21 April 2021 and was signed off as unfit to work due to stress and shoulder pain until 20 May 2021 – [340] Discrimination allegation 13 – disciplinary hearing manager convened a disciplinary hearing despite the claimant being signed off work by his GP with stress and a shoulder injury (30 April 2021) – alleged perpetrator BM[183]Factually, this allegation is correct: BM did go ahead with the disciplinary hearing on 30 April 2021, despite the claimant having a live fit note stating that he was not fit for work.[184]We find that the reason BM went ahead with the meeting was that he had taken advice from the OH physician, which is set out above. Further, the OH Physician reported not only that their view was that going ahead with the meeting was in the best interest of the claimant, but also that the claimant had agreed to attend by telephone.[185]On 21 April 2021, the claimant was sent an invitation letter to a disciplinary meeting to be held on 30 April 2021 - [327]. The claimant was also emailed witness statements, investigation notes and CCTV. Discrimination allegation 12 – disciplinary hearing manager denied the claimant access to the relevant CCTV footage prior to the disciplinary hearing (April 2021) – alleged perpetrator BM[186]The clamant denies that he was able to access the CCTV in the format it was sent to him, and told us that he called BM about this numerous times to no avail.[187]We do not accept this. We find it unlikely that, if the claimant was having difficulty in viewing the CCTV, and was getting nowhere with his calls to BM, he would not have put something in writing, and would not have raised it at his disciplinary meeting. Furthermore, the claimant did not mention in his appeal meeting that he had not been able to access the CCTV. We find that he had access to the CCTV in advance of the disciplinary hearing.[188]On 30 April 2021, the claimant attended a disciplinary meeting chaired by BM. That meeting took place by video. Discrimination allegation 17 – conducting the disciplinary meeting by zoom so that the claimant had difficulty participating (30 April 2021) – alleged The disciplinary meeting took place by video.[190]We find that this did not place the claimant in any difficulty in terms of his participation for the following reasons: 190.1. The claimant did not raise the format of the hearing as being a problem for him, whether before, during or after the meeting; 190.2. When asked in cross-examination what the disadvantage to the claimant was, he said that he was unable to see the note taker. We do not find that this impeded the claimant’s participation in the meeting; 190.3. From the minutes of the meeting, we find that the claimant was able to fully engage in the meeting.[191]Furthermore, we find that the reason for the format of the meeting being by video was that, in April 2021, we were in the midst of the COVID0-19 pandemic; the respondent had determined that it would have a policy during the pandemic, whereby it would continue to hear disciplinary matters, but that they would be by video. Discrimination allegation 18 – proceeding with a disciplinary hearing in a pandemic (30 April 2021) – alleged perpetrator BM[192]Evidently, the hearing did go ahead during the pandemic.[193]The claimant told us in cross-examination that: “I wasn’t fit to attend. I had a sick note. The pandemic lasted a long time. I don’t say they had to wait to the end of the pandemic but they didn’t need to rush. Instead of zoom, they should have waited until meetings were allowed face to face”[194]This suggests that in fact the claimant’s complaint here refers back to Allegation 17, in that he says he should have had a face to face meeting, presumably because he maintains it was disadvantageous for him to have a video hearing.[195]We therefore refer back to our findings above regarding Allegation 17: that the video format of the hearing was in no way disadvantageous to the claimant, and did not impact his ability to participate in that hearing. Disciplinary hearing 30 April 2021[196]The meeting notes are at [344-354]. These notes are not signed by the claimant. The important points from this hearing are as follows: 196.1. The claimant was able to explain the reason why accidents need to be reported, in order that a damaged truck be taken out of action, as it may cause an accident; 196.2. The claimant had pushed against the pallet guard to see if it was safe to use, but did not notice it was damaged; 196.3. He thought there had only been a “soft touch” and that the Truck was still safe to use; 196.4. The claimant, once in the trailer, realised it was too low to get the pallets out of the trailer. He thought that the Truck may have hit the top bar in the trailer; 196.5. The claimant said sorry, and that he needed this job.[197]There was a break in the meeting from 1035hrs to 1115hrs. During that break, BM spoke to the respondent’s HR department. The entry at [304] records that BM said the following at 1055hrs: “Disciplinary manager calling - [the claimant] now acknowledges it was him due to the CCTV footage. [The claimant] said didn’t really feel the cash or hear it and did no [sic] think to report it due to him not thinking there was a need to. Manager spoke through potential consequences of not reporting the accident, and [the claimant] understood that it could be a serious risk if [the claimant] chose not to report the accident as others may use machinery which could potentiall [sic] cause a serious accident”.[198]The meeting was then reconvened at 1115hrs, at which point the claimant said he was “so sorry" and that “it won’t happen again” but had nothing else to add.[199]At this juncture, we note that the claimant complained to us that there was no break during the disciplinary hearing. This is clearly not the case. Not only is a break recorded in the minutes of the meeting [352/353], but we have the HR record, detailed above, that shows BM talking to HR part way through the disciplinary hearing. These pieces of evidence all corroborate each other, and we find that there was a break between 1035hrs and 1115hrs.[200]BM then delivered his decision, that the claimant’s contract would be closed for serious misconduct. This decision was confirmed in writing by letter of 30 April 2021 - [355]. Discrimination allegation 19 – dismissal (30 April 2021) – alleged[201]We find that BM held a genuine belief that the claimant was guilty of both causing damage to the Truck and failing to report the accident. Although the claimant had initially alleged that the reason for his dismissal was his race/religion, he confirmed in evidence that he did not believe BM had discriminated against him. Therefore, there was no sustained challenge to BM’s belief.[202]We accept that BM’s reason for dismissing the claimant was his belief that the claimant was guilty of the misconduct of which he was accused.[203]On the evidence we have seen and heard, including the claimant’s inconsistencies throughout the internal process and before us, we find that the reason for dismissal was his misconduct as alleged by the respondent.[204]The key evidence before BM was: 204.1. The CCTV that showed the claimant on the Truck, going onto the trailer undamaged, and coming off the trailer damaged; 204.2. The fact that the Truck was damaged and that the key fob data demonstrated that it was the claimant’s fob that had been used at the relevant time; 204.3. The claimant’s failure to report the accident, leaving it to be reported by EG; 204.4. The claimant’s repeated reference to having a light touch in the trailer with the Truck, and his admissions and apologies within the internal meetings.[205]On that evidence, BM had reasonable grounds for holding the belief that the claimant was guilty of the misconduct alleged against him. Discrimination allegation 16 – disciplinary officer did not have material available to him to conduct the disciplinary hearing appropriately (30 April 2021) – alleged perpetrator BM[206]We find that BM had all the material at the time of making his decision that was required in order to deal with the disciplinary hearing fairly. The specific criticism made of BM is that he did not have information from the lorry driver who was driving the trailer onto which the claimant drove the Truck on 8 April 2021, and that he did not have the CCTV.[207]We have found the lorry driver’s evidence would not have added anything to the investigation/disciplinary process, given: 207.1. He was not present throughout the time that the claimant and the pallet truck were on the lorry trailer; and, 207.2. The CCTV clearly shows that, when the claimant entered the trailer, the pallet guard was undamaged, then on his leaving the trailer it was damaged.[208]We have also found that BM did have the CCTV at the time of making his decision (as did the claimant).[209]Therefore, we find that BM did have all material available to him in order to deal with the hearing appropriately. Appeal[210]On 4 May 2021, the claimant sent an email to Reuben Kogo (“RK”), who became his companion through the appeal process – [819]. That email was a draft letter of appeal. Within that draft, the claimant set out that he denied that there had been an accident, but that there was just a touch to the pallet. The draft also dealt with the disciplinary matter of the claimant taking unauthorised leave to get his car from the garage that led to his final written warning. He set out that he considered that the matter regarding damage to the Truck had been made a big issue because he is a “black man”.[211]On 6 May 2021, the claimant sent an email (different to the draft) appealing his dismissal, and stating that he was disabled - [370].[212]In that appeal, he stated: “I want to state categorically that I did not cause nor was I involved in an accident while riding a ride-on truck”. “I also wish to state that my line manager Jimmy [JC] told me to accept that i caused an accident"[213]The claimant was invited to attend a telephone appeal with Tracy McCreadie (“TM”) on 17 May 2021, by email of 10 May 2021 - [385]. This hearing was rescheduled to 24 May 2021 due to the claimant’s companion not being able to attend – [409/413].[214]On 12 May 2021, BM forwarded Mr Gurung’s email attaching the CCTV footage to the appeals office email address - [408].[215]On 19 May 2021, the claimant applied to have a face-to-face meeting and to reschedule the appeal once more, as his companion was still not available to attend - [389]. TM converted the appeal hearing to a video hearing - [397]. The claimant complains about the lack of face-to-face hearing, however he gave no reason (such as a need for reasonable adjustments) as to why faceto-face was necessary. The respondent asked him to set out the reason why he would prefer a face-to-face meeting; the claimant’s only reason was that “I will feel more comfortable than the telephone meeting” – [398]. TM gave evidence that the appeal told place during the COVID-19 pandemic, at a stage when the government advice was to work from home if at all possible. She deemed that it was not necessary, particularly in light of no good reason from the claimant, to have the hearing in person, particularly when video facilities were available. We accept this evidence as to the rationale behind TM’s decision-making. The claimant has not told us that there was any disadvantage to him in holding the hearing by video rather than in person: we find that there was no such disadvantage.[216]On 20 May 2021, the claimant emailed the appeal office to ask for “the internal and external picture and video dimension of the lorry trailer” that was said to have been involved in the accident leading to damage to the Truck. June Pritchard in the Appeals Office responded, stating that the claimant had already been sent copies of the CCTV footage, statements and investigation notes – [420].[217]The appeal ended up taking place on 28 May 2021, as the claimant’s companion, RK, was again not available on 24 May 2021. The notes of the appeal meeting are at [420]. The salient points are as follows: 217.1. The claimant raised complaints that JC “doesn’t like black people”, giving examples of when he (the claimant) felt overly scrutinised by JC - [425]; 217.2. The claimant gave TM several names of people to interview who would support his case – [425/429]; 217.3. The claimant told TM that JC has, before Ramadan, asked whether the claimant was a Muslim and, when the claimant replied in the affirmative, walked off - [426]; 217.4. The claimant gave the specific example of JC’s alleged conduct, that JC said “I will give you a pay rise – he gave [the claimant] 3p – he laughed when he told [the claimant]” - [426]; 217.5. The claimant suggested that JC had told him to take the blame for the damage to the Truck, which is why the claimant said there had been an accident in the investigation meeting, and apologised. If he accepted fault JC told the claimant it would not be a “sackable offence” – [426]; 217.6. The claimant made the point that he was not provided with the details of the trailer that he entered on the Truck, the trailer driver was not interviewed, and there was no damage to that trailer - [425]; 217.7. His companion stated that “the accident didn’t happen” - [425]; 217.8. The claimant pointed out that no-one heard the Truck hit the trailer – [426]; 217.9. JC had mentioned to the claimant that he (the claimant) should leave the respondent. The claimant told TM that JC had printed out some forms that would lead to the claimant’s contract being closed, and had showed them to the claimant. The claimant stated to TM that these forms were in his locker - [428]; 217.10. Following the claimant attending a BLM event organised by the respondent, “managers who used to joke and talk to [him] just said “hello”. They didn’t talk about football, ... they changed” - [428]; 217.11. The claimant stated that the reason he had been sacked was that JC does not like black people or Muslims – [429].[218]On 28 May 2021, TM sent the claimant the notes of the appeal meeting and permitted him to edit them – [403]. The changes that the claimant (or his companion) made were adopted by TM – [431]. TM also gave the claimant the opportunity to set out what resolution he sought from his appeal: he replied that he wanted to return to work (the AM ambient shift) with a different manager – [431].[219]Following her interview with the claimant, TM interviewed various witnesses: 219.1. BM – [434]; 219.2. Elliott Blair – [435]; 219.3. JC – [436] 219.4. Fred Gasasira – [437] 219.5. Satish Sookha – [438]; 219.6. Nathan Robinson – [438]; 219.7. Reda Bouaou – [440]; 219.8. John Ababio – [441]; 219.9. Emile Grabowski – [441].[220]The claimant relies on the evidence of some of the above named people in support of his race claim, to demonstrate that JC acted against him due to his race.[221]We find that the evidence gleaned during the appeal investigation does not support the claimant’s contention that JC discriminated against him on the grounds of his race: 221.1. Fred Gasasira (“FG”) [437] – FG is African. The only specific information FG gives about conduct suffered by the claimant is that which the claimant has reported to him; he was not an eye witness. Otherwise, FG’s comments are very generic, about minorities being treated unfairly by managers, with nothing specific about JC first hand. In fact, FG notes that JC always smiles at him. In fact, FG has never worked with JC, and never been on the same shift with him. 221.2. Satish Sookha (“SS”) [438] – SS gives evidence that he considers that some partners are treated unfairly, possibly because of the colour of their skin. Again, in terms of the claimant specifically, SS only reports what the claimant has told him, saying “he told me he was targeted. I don’t know why he thought he was targeted”. 221.3. Nathan Robinson (“NR”) [439] – NR reports a personal issue between himself and JC, but states specifically “[n]ot seen racial discrimination but I can see a pattern”. 221.4. Reda Bouaou (“RB”) [440] – RB expressly states “[the claimant] has been picked on. [The claimant’s] manager is a Millwall supporter and [the claimant] is black and African and Muslim”. However, RB gives no specific examples, or why it is that he considers the claimant being black is a reason for any targeting. 221.5. Jon Ababio (“JA”) [441] – Although JA complains about treatment from JC, he does not attach that treatment to race as a cause of the treatment.[222]TM sent her decision letter regarding the appeal to the claimant on 29 June 2021 – [456]. We find that TM had a genuine belief that the claimant was guilty of damaging the Truck and failing to report it. As with BM, although the claimant initially stated that the manner in which the appeal was conducted was because of his race/religion, he stated to us that he did not think that TM had discriminated against him. As such, there was no sustained challenge to her genuine belief in his guilt.[223]In light of all the steps she took above, we find that TM conducted a reasonable investigation into the claimant’s appeal. Discrimination allegation 20 – failure to review the evidence on appeal (May/June 2021) – TM[224]In view of all the steps taken by TM in her appeal process, as set out above, we find that there was no failure by her to review any evidence relevant to the appeal. She interviewed all the people the claimant had asked her to, as well as all other relevant people. She had given the claimant every opportunity to go through his appeal. There is no evidence to suggest that, having had all that information and evidence, TM did not give it fair consideration.[225]We find that TM had reasonable grounds for holding her genuine belief that the claimant was guilty of the misconduct for which he was dismissed. Discrimination allegation 21 – failure to comply with provisions of the disciplinary procedure (paragraphs 3.3.1, 3.3.6, 3.5.1, 3.5.1.1, 3.5.8 (April to June 2021) – BM and TM[226]We set out each paragraph referred to in this allegation immediately below: 226.1. Paragraph 3.3.1 – “before you decide if you should use a formal procedure, an appropriate manager must carry out a full and fair investigation to establish the facts. Investigations are not formal disciplinary hearing meetings so the partner does not have the right to be accompanied by a work colleague or trade union official/representative”; 226.2. Paragraph 3.3.6 – “If a partner’s sickness absence is due to genuine medical reasons, managers should refer to the Absence Management Standard”; 226.3. Paragraph 3.5.1 – “the partnership must demonstrate that it has followed a fair procedure if it considers dismissing a Partner”; 226.4. Paragraph 3.5.1.1 – this paragraph does not exist within the policy. We considered whether the reference may be to 3.5.11, which states – “any sanction will depend on the nature of the offence or performance issue and other relevant circumstances, and could include one or a combination of the following: warnings, demotion or transfer (as an alternative to dismissal), dismissal without notice, or summary dismissal”; 226.5. Paragraph 3.5.8 – “After the meeting has explored the issue and the evidence, and after the Partner has had every opportunity to put their case forward, the manager must call a break for a reasonable amount of time”.[227]In relation to each alleged breach, we find as follows: 227.1. Paragraph 3.3.1 – JC was an appropriate manager, and carried out a reasonable investigation. There was no breach of this paragraph; 227.2. Paragraph 3.3.6 – OH advice was obtained before going ahead with the disciplinary meeting. We find that this was sufficient in the circumstances. There was no breach of this paragraph; 227.3. Paragraph 3.5.1 – we have found that the procedure followed by the respondent was a reasonable one. There was no breach of this paragraph; 227.4. Paragraph 3.5.1.1 – this does not exist. If we assume it is a reference to 3.5.11, this paragraph sets out possible sanctions. There is no duty within this paragraph that is capable of being breached; 227.5. Paragraph 3.5.8 – we have found that BM did call a break in the disciplinary hearing. There was no breach of this paragraph. Emptying the claimant’s lockers[228]Although not the subject of a specific allegation, the claimant contends that the emptying of the claimant’s lockers was in some way underhand. We find that, on the balance of probabilities, nothing untoward occurred during the process of the claimant’s lockers being emptied.[229]During the appeal, the claimant told TM that he had not been given his personal property in his locker, and so she set in motion the process for his personal locker to be emptied.[230]Following the claimant raising concerns about information within his locker during the appeal meeting, TM asked JC about the situation in relation to the claimant’s lockers – [446].[231]JC replied, explaining that the claimant had two lockers, a personal locker and an equipment locker – [446]. JC arranged for security to empty the contents of both lockers and take them to the Security Office for the claimant to collect. He told TM that the contents would be ready for collection from 1300hrs on 25 June 2021.[232]TM reported this information back to the claimant, and stated that if, as he had suggested at the appeal hearing, that the claimant had some evidence in his personal locker that he wanted TM to consider, then he could send a copy on to her by 30 June 2021 – [450].[233]JC told us that he was not present at the point when the security guards emptied both of the claimant’s lockers. There is no good evidence to suggest he was present: the claimant was not there when his lockers were emptied and so cannot shed any light on this first hand.[234]It is fair to say that the claimant showed us video footage of his visit to the security office to collect his items. In that video, the security guard told the claimant that it was his manager who had requested that his lockers be emptied. The security guard in the video also stated that he himself was not present when the lockers were emptied and that “it has nothing to do with us, the manager did everything”. When the claimant asked “it was the manager that brought it [his box of belongings] here?” the security guard said “yeah”.[235]We are not satisfied that this evidence is sufficiently robust to rebut JC’s evidence that he was not present on the emptying of the claimant’s lockers. The security guard seemed fairly equivocal and uninterested in the conversation, keen to make it clear that the emptying of lockers was nothing to do with him. JC is not named in the conversation specifically and, given that the security guard was not present when the lockers were emptied, he could not assist with whether or not JC was present at that point either.[236]There is no good evidence to support the claimant’s assertion that there was some kind of collusion or plot related to the emptying of his lockers. Disability status – stress[237]We have spent some time considering the medical evidence regarding the claimant’s stress available to us in the bundle: it all relates to April 2021 and is as follows: 237.1. GP note – [340]; 237.2. PHQ-9 and GAD-7 test results– [761]; 237.3. GP records – [768]; 237.4. Occupational Health Clinical Assessment – [739].[238]These documents tell us that, following a telephone consultation with his GP, the claimant was signed off work due to stress at work on 21 April 2021 for a month. On the same day he undertook the standard PHQ- and GAD-7 tests, scoring high scores on both. The only other mention of stress is in the claimant’s GP records, following a telephone call to the claimant on 21 September 2021, in which the claimant reported being very depressed due to losing his job. He wanted antidepressants and was given information about Talking Therapies and the Crisis Team.[239]There is no good evidence before us that the claimant suffered stress prior to April 2021. Although the claimant stated in his disability impact statement that he had suffered clinical depression since 2009, there is no medical evidence to support this assertion. If this were the case, we would expect to see some medical evidence at least from a GP, but we have nothing.[240]Although there is reference to Talking Therapies within the GP record, we have no evidence to show us that the claimant was in fact referred for their services: we have a list of referrals at [786], and there are none for Talking Therapies, or indeed the Crisis Team.[241]The claimant referred to the managers’ notes at [277] as evidence that he had informed his manager of his stress prior to 13 April 2021. However, on inspection of that page, the entries pre-13 April 2021 relate solely to the claimant’s shoulder injury, there is no mention of stress.[242]There is a contemporaneous record of the claimant’s own view of his stress in the OH report of 20 April 2021 at [741], in which it is recorded that he “felt stressed by the issue and subsequent potential disciplinary action”.[243]For the purposes of the disability discrimination claim, the question for us is whether the claimant’s stress was a disability under s6 of the EqA as at 30 April[244]Our findings of fact, based on the medical evidence and the claimant’s evidence, are as follows: 244.1. Prior to 13 April 2021, the claimant had not experienced stress; 244.2. The claimant only started to experience stress on 13 April 2021, following the investigation meeting on 12 April 2021; 244.3. The 13 April 2021 was the first time he told the respondent that he was experiencing stress; 244.4. As at 30 April 2021, the medical evidence was that the claimant was signed off with stress until 20 May 2021; 244.5. The claimant experienced reactionary stress due to the disciplinary situation at work; 244.6. As at 30 April 2021, the stress had not lasted for one year; 244.7. As at 30 April 2021, we have no good evidence to support a case that the stress was likely to last for a year, or was likely to recur, given the fact that this was reactionary and the claimant had not suffered stress before. Disability status – shoulder injury[245]The Tribunal has much more evidence regarding the claimant’s shoulder injury that he suffered in 2009 – from [657]. We have had sight of numerous fit notes spanning the years since 2009 stating that the claimant’s shoulder made him unfit to work without adjustments for various periods. Occupational Health (“OH”) at the respondent had also been involved in the claimant’s case for some years prior to his dismissal, due to his shoulder injury – see [693] onwards. We also have hospital documentation within the bundle that demonstrates a long history of shoulder pain and complications requiring surgery.[246]On 8 March 2021, management made a referral to OH, which was requested by the claimant due to his shoulder pain – [730]. That referral set out the respondent’s knowledge of the history of the claimant’s shoulder pain, spanning from 2011 to date.[247]This referral was dealt with on 11 March 2021, following which the OH Physician recommended that adjustments be made to the claimant’s role due to his shoulder issues, including lighter duties and alternative roles/redeployment – [733].[248]We accept, on the evidence we have, that 248.1. As at 30 April 2021, the claimant had a physical impairment, namely a shoulder injury; 248.2. That injury had been in existence since 2009; 248.3. There had been a substantial level of medical involvement, including from the respondent’s OH department; 248.4. Adjustments had been considered, and made, on several occasions over the years of the claimant’s employment; 248.5. The effects of the claimant’s shoulder injury had lasted more than 12 months by 30 April 2021; 248.6. They had a more than trivial or minor effect on his ability to perform day to day activities, including his job which required a certain level of manual labour/lifting.[249]In light of the OH department’s involvement with the claimant’s case, and the management referrals up to and including 2021, we find that the respondent knew of the level of effect that the claimant’s shoulder injury had on his day to day tasks. This is further demonstrated by the respondent’s willingness to make reasonable adjustments to the claimant’s role. Law Unfair dismissal – s98 ERA Reason for dismissal[250]The relevant legislation is found at s98(1), (2) and (4) ERA:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[251]It is for the employer to show the reason for dismissal and that it is a potentially fair one, such as conduct: this is not a high threshold for a respondent. In Gilham and Ors v Kent County Council (No2) 1985 ICR 233, the Court of Appeal held as follows: “The hurdle over which the employer has to jump at this stage of an inquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the inquiry moves on to [s98(4)] and the question of reasonableness.” Substantive fairness[252]Regarding conduct cases, the case of British Home Stores Ltd V Burchell [1978] IRLR 379 encompasses the relevant test for fairness: 252.1. Did the Respondent have a genuine belief that the Claimant was guilty of the misconduct alleged by the Respondent? 252.2. If so, were there reasonable grounds for the Respondent in reaching that genuine belief? and, 252.3. Was this following an investigation that was reasonable in all the circumstances?[253]In all aspects of such a case, including consideration of sanction, in deciding whether an employer has acted reasonably or unreasonably within s98(4) ERA, the tribunal must decide whether the employer acted within the band of reasonable responses open to an employer in the circumstances. Whether the tribunal would have dealt with the matter in the same way or otherwise is irrelevant, and the tribunal must not substitute its view for that of a reasonable employer – Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, London Ambulance Service NHS Trust v Small [2009] IRLR 563. Procedural fairness[254]Following the case of Polkey v AE Dayton Services Ltd [1988] ICR 142, it is well established that fairness in procedure is a vital part of the test for reasonableness under s98(4) ERA. It is not relevant at this (the liability) stage to consider whether any procedural unfairness would have made a difference to the outcome: that is a matter for remedy (the issue in Polkey is set out below).[255]If there is a failure to adopt a fair procedure, whether by the ACAS Code’s standards, or the employer’s own internal standards, this will render a dismissal procedurally unfair.[256]Regarding dismissal for conduct issues, the reasonableness of the procedure rests fairly heavily on the reasonableness of the investigation, and the provision of opportunity for the employee to make his position, explanation and mitigation heard and understood.[257]Procedural and substantive fairness do not stand as separate tests to be dealt with in isolation – Taylor v OCS Group Ltd [2006] ICR 1602. It is, ultimately, a view to be taken by the tribunal as to whether, in all the circumstances, the employer was reasonable in treating the reason for dismissal as a sufficient reason to dismiss. It may therefore be that in a serious case of misconduct, it may be fair to dismiss, even if there are slight procedural imperfections. On the other hand, where the conduct charge is less serious, it may be that a procedural issue is sufficient to tip the balance to make the dismissal unfair. Wrongful dismissal/breach of contract[258]This claim requires the Tribunal to perform a different exercise when compared to the test under s98 ERA. Here, the question is, as a matter of fact, was there a breach of contract in that the employer failed to pay the employee their contractual notice pay?[259]This requires the Tribunal to consider first whether the employee acted in a way so as to fundamentally breach their contract to enable the employer to summarily terminate the employment contract.[260]Unlike under a claim for unfair dismissal, regarding a wrongful dismissal claim, it is for the tribunal to make findings of fact as to the nature and extent of the employee’s conduct. The reasonableness of actions by the employer is irrelevant.[261]Therefore, a wrongful dismissal is not necessarily unfair, and an unfair dismissal is not necessarily wrongful – Enable Care and Home Support Ltd v Pearson EAT 0366/09. Limited remedy issues Polkey reduction[262]The decision in Polkey v AE Dayton Services Ltd [1987] UKHL 8 permits the reduction of compensation when, even if a fair procedure had been followed, the Claimant would have been dismissed in any event.[263]Compensation can be reduced as a percentage, if a tribunal considers that there was a percentage chance of the employee being dismissed in any event. Alternatively, where it is found that a fair procedure would have delayed dismissal, compensation should reflect this by compensating the employee only for the length of time for which dismissal is found to have been delayed.[264]The Tribunal has to consider what difference a fair procedure would have made, if any. It is for the Respondent to adduce evidence on this point. It is always the case that a degree of uncertainty is inevitable, unless the process was so unreliable it would be unsafe to reconstruct events. However, the Tribunal should not be reluctant to undertake the exercise just because it requires speculation – Software 2000 Ltd v Andrews [2007] ICR 825. Contribution[265]Under s123(6) ERA, the test is whether any of the claimant’s conduct prior to dismissal was “culpable or blameworthy” – Nelson v BBC (No.2) 1980 ICR 110, CA. This requires the Tribunal to look at what the claimant in fact did, as opposed to being constrained to what the respondent’s assessment of the claimant’s culpability was – Steen v ASP Packaging Ltd [2014] ICR 56.[266]The Employment Appeal Tribunal (“EAT”) in Steen summarised the approach to be taken under s122(2) and s123(6) ERA, at paragraphs 8-14: 266.1. Identify the conduct which is said to give rise to possible contributory fault; 266.2. Ask whether that conduct was blameworthy, irrespective of the Respondent’s view on the matter; 266.3. Ask, for the purposes of s123(6), whether the conduct which is considered blameworthy caused or contributed to the dismissal; and, if so, 266.4. Ask to what extent the award should be reduced and to what extent it was just and equitable to reduce it.[267]Under s122(2) ERA, the relevant test is whether it is just and equitable to reduce compensation in light of conduct of the Claimant prior to the dismissal. The conduct need not contribute to the dismissal. The EAT has confirmed that the same test of “culpable or blameworthy” applies to the s122(2) reduction question as to s123(6) ERA – Langston v Department for Business, Enterprise and Regulatory Reform UKEAT/0534/09. Direct race/religious discrimination – s13 EqA[268]Employees are protected from discrimination by s39 EqA: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) - … (d) by subjecting B to any other detriment.[269]Direct discrimination is set out in s13 EqA: (1) a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[270]There are two parts of direct discrimination:(a) the less favourable treatment and(b) the reason for that treatment. Sometimes however it is difficult to separate these two issues so neatly. The Tribunal can decide what the reason for any treatment was first: if the reason is the protected characteristic, then it is likely that the claim will succeed – Shamoon v Constable of the Royal Ulster Constabulary [2003] UKHL 11. “Because of”: reason for less favourable treatment[271]In terms of the required link between the claimant’s race and the less favourable treatment she alleges, the two must be “ inextricably linked” - Jyske Finands A/S v Ligebehandlingsnaevnet acting on behalf of Huskic: ECLI:EU:C:2017:278.[272]The test is not the “but for” test, in other words it is not sufficient that, but for the protected characteristic, the treatment would not have occurred – James v Eastleigh Borough Council [1990] IRLR 288.[273]The correct approach is to determine whether the protected characteristic, here race, had a “significant influence” on the treatment – Nagarajan v London Regional Transport [1999] IRLR 572. The ultimate question to ask is “what was the reason why the alleged perpetrator acted as they did? What, consciously or unconsciously, was the reason?” - Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48. This is a question of fact for the Tribunal to determine, and is a different question to the question of motivation, which is irrelevant. The Tribunal can draw inferences from the behaviour of the alleged perpetrator as well as taking surrounding circumstances into account.[274]If there is more than one reason for the treatment complained of, the question is whether the protected characteristic (in this case, race) was an effective cause of the treatment – O’Neill v Governors of ST Thomas More Roman Catholic Voluntary Aided Upper School [1996] IRLR 372. Failure to make reasonable adjustments – ss20/21 EqA[275]Sections 20/21 EqA provide: “20(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. (4)… (5)… (6)... (7)... (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. … 21(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” Provision, criterion or practice[276]The first requirement of this claim is that there be a PCP. The terms “provision, criterion or practice” (“PCP”) are not defined within the legislation, and are to be given their ordinary meaning; they are broad and overlapping terms and should not be narrowly construed – Ishola v Transport for London [2020] EWCA Civ 112. A PCP can cover informal as well as formal arrangements.[277]The finding of a PCP is a matter of fact for the Tribunal – Jones v University of Manchester [1993] IRLR 218. Substantial disadvantage[278]There is no requirement under ss20/21 for a comparator to be considered regarding the alleged disadvantage suffered – Sheikholeslami v University of Edinburgh [2018] IRLR 1090: ''It is well established that the duty to make reasonable adjustments arises where a PCP puts a disabled person at a substantial disadvantage compared with people who are not disabled. The purpose of the comparison exercise with people who are not disabled is to test whether the PCP has the effect of producing the relevant disadvantage as between those who are and those who are not disabled, and whether what causes the disadvantage is the PCP. That is not a causation question … For this reason also, there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person's circumstances.”[279]The definition of “substantial” is at s212(1) EqA, which provides that substantial means more than minor or trivial. Reasonableness of adjustments[280]The ECHR Code of Practice on Employment (2011) sets out various factors that may be relevant when considering the reasonableness of any proposed adjustments: “whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer's financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.”[281]There is no requirement that adjustments suggested by a claimant should remove the substantial disadvantage in its entirety – Noor v Foreign and Commonwealth Office [2011] ICR 695. The statute states that the reasonable adjustment should “avoid” the disadvantage. Therefore, a respondent will not avoid liability solely by demonstrating that the disadvantage would have been suffered even with the adjustment. If the adjustment would have acted to avoid the disadvantage, that is sufficient for liability to attach under ss20/21. Respondent’s knowledge[282]The knowledge required of respondents under ss20/21 is that they are aware that(a) the claimant is disabled and(b) that the claimant would likely be placed at the substantial disadvantage in question. The issue of knowledge covers both constructive and actual knowledge. In other words, as set out in Eastern and Coastal Kent Primary Care Trust v Grey [2009] IRLR 429, at para 11, a respondent will escape liability if it: “(i) does not know that the disabled person has a disability; (ii) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled; (iii) could not reasonably be expected to know that the disabled person had a disability; and (iv) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.” Victimisation – s27 EqA[283]S27 EqA sets out: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because: (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act;(c) Doing any other thing for the purposes of or in connection with this Act;(d) Making an allegation (whether or not express) that A or another person has contravened this Act. …”[284]The relevant subsections in the present claim are ss27(2)(c)&(d).[285]Regarding “doing any other thing for the purposes or in connection with this Act”, this is the catch-all provision. Under pre-Equality Act legislation, it was held that the requirement that something be done “in reference to” the Race Relations Act would be met if it was done by reference to that Act “in the broad sense, even though the doer does not focus his mind specifically on any provision of the Act” – Aziz v Trinity Street Taxis Ltd and ors [1988] ICR 534.[286]In terms of “making an allegation...”, although it is not necessary for the Equality Act to be mentioned, it is vital that the facts as set out by the claimant would be capable of amounting to a breach of that Act.[287]The meaning of detriment is set out above. For a detriment to be because of a protected act, it is necessary that it had a significant influence on the perpetrator, where significant simply means “more than trivial” – Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases [2005] ICR 931. Conclusions Unfair dismissal Reason for dismissal
Conclusions
[288]We are satisfied that the reason for the claimant’s dismissal was conduct. Given that the claimant stated that neither BM nor TM had discriminated against him, there was no real challenge to their genuine belief of his guilt. Reasonable grounds following a reasonable investigation[289]The claimant raises several criticisms of the investigation; criticisms which he says must mean that the respondent did not have reasonable grounds for its finding of guilt against him. Lack of evidence from trailer driver[290]The claimant states that the investigation was flawed in that there was no evidence from the driver of the trailer onto which the claimant drove the Truck, upon which the accident was said to have occurred.[291]The claimant alleges that the driver should have been interviewed, as he would have been able to say that he felt and heard nothing during the claimant’s time on the trailer.[292]We have found that it was reasonable for the respondent not to attempt to seek this evidence, and that in any event it would have added nothing to the investigation. As such, this factor does not make the investigation unreasonable. Different treatment[293]The claimant alleges that he was treated differently during the course of the investigation process to his colleague EG. Factually this is true, but this is because by the time the claimant had reviewed all the evidence at the point of his investigation, he was satisfied that it was the claimant that was the driver of the Truck at the time it was damaged, not EG. This was on the basis of the key fob information and the CCTV. We accept that this was the reason for any difference in treatment (namely, EG was released to return to his duties). We are not satisfied that this is evidence of a biased or flawed investigation process. Sham disciplinary[294]The claimant argues that JC put in place some form of conspiracy to push him out. This on the basis of two main points: 294.1. [JC/WS/27] states that EG reported the accident to JC at 1115hrs. The accident is said to have happened between 1155hrs and 1200hrs and therefore JC must be lying, and manufacturing that conversation; and 294.2. The claimant challenges the time and date of the CCTV, and argues that the CCTV is not genuinely of the events of 8 April 2021.[295]We have made findings about both these issues: 295.1. We have found that the time recorded in JC’s witness statement was a genuine mistake, and that the time at which EG reported the accident to JC was around 1315hrs; 295.2. We have found that the CCTV footage is that of 8 April 2021, showing the claimant with a truck that, at the beginning, was undamaged, and at the end was damaged.[296]We conclude that there is no good evidence that JC was attempting to push the claimant out, or that he was attempting to mount a sham disciplinary process. Identity of the Truck driver[297]During these proceedings, the claimant has argued that the driver of the Truck seen in the CCTV is not in fact him. We have found that this is not the case. In any event, we note that this point was not raised by him at any stage during the internal process. Therefore, the respondent had no reason to investigate or question the identity of the Truck driver. It was reasonable of the respondent to conclude that the driver was the claimant.[298]We conclude that there was a reasonable investigation done in all the circumstances. Just to recap the key points: 298.1. The respondent had CCTV of the claimant causing damage to the Truck; 298.2. The only reason the damage came to light was because EG reported it to JC; 298.3. The claimant had admitted that an accident had occurred and it was his fault during the investigation process; 298.4. The claimant never denied that he was the driver in the CCTV; 298.5. The key fob information supported the fact that the driver of the Truck was the claimant.[299]In light of the above, no further investigation was necessary.[300]In relation to the appeal, we have found that all of the claimant’s witnesses were interviewed, and provided no direct evidence that JC had been discriminating against the claimant. In terms of the claimant’s new allegation at appeal that JC had told him to say that he had caused an accident, TM explored this with JC as part of the appeal process: he vehemently denied this allegation. TM also interviewed BM to explore his reasons for dismissing the claimant.[301]Taking into account all the circumstances, this was a reasonable investigation. The above points also provided reasonable grounds upon which BM and TM could base their genuine belief of the claimant’s guilt. We refer back to paragraphs 201-205 and 222-223 above. Unfair process[302]The claimant has raised various complaints about the process to us, such as: 302.1. The failure by the respondent to provide the CCTV during the internal process; 302.2. The appointment of JC as the investigator; 302.3. The failure of the decision makers to review the evidence before them properly; 302.4. The format of the meetings being by video.[303]We have made findings in relation to these points as follows: 303.1. The respondent did show the CCTV to the claimant; 303.2. JC was an appropriate investigator; 303.3. The evidence was reviewed properly at both the disciplinary and appeal stage; 303.4. There was no detriment to the claimant in holding the meetings remotely by video.[304]We conclude that a full and fair process was conducted. Sanction[305]We are not able to look behind the final written warning that was imposed on the claimant in July 2020. As such, we accept that the starting point for BM to consider in the index disciplinary process was that the claimant had a live final written warning on his record.[306]Within the respondent’s Disciplinary Standard, at paragraph 3.5.1.4, it provides – [334]: “The Partnership may take a more serious sanction (up to and including dismissal) if: The same (or similar) issue resulted in a warning happens against during the warning period; or, If the Partner’s performance does not improve within the set period”.[307]In light of the existence of the final written warning, we accept that dismissal for damaging the employer’s equipment and failing to report it was a sanction that fell within the range of reasonable responses available to a reasonable employer. In other words, with the facts before the respondent as we have found them to have been, we do not conclude that no reasonable employer would have dismissed the claimant. The test for us is not whether a lesser sanction could have been imposed, but whether dismissal was an appropriate sanction in all the circumstances: we conclude it was. Breach of contract/notice pay[308]We have found that the claimant was dismissed for conduct, and that in fact he was guilty of that conduct, namely damaging the Truck and not reporting it.[309]We are satisfied that this level of misconduct is such as to amount to a fundamental breach of the claimant’s employment contract, particularly in light of the extant final written warning.[310]As such, the respondent was entitled to treat itself as released from its obligations under the contract of employment. As such there was no obligation to pay the claimant notice pay.[311]The respondent was therefore not in breach of contract by summarily dismissing the claimant. Disability status[312]We conclude that the claimant did not, as at 30 April 2021, meet the definition of disability within s6 of the EqA in relation to his alleged mental impairment of stress. It had not lasted, nor was it likely to last 12 months as at 30 April 2021, nor was it likely to recur.[313]The claimant was however disabled as at 30 April 2021 by reason of his shoulder injury. This was a physical impairment, the effects of which were substantial and adverse, as well as lasting for more than 12 months by 30 April Respondent’s knowledge of disability[314]We have found that the respondent had knowledge of the claimant’s shoulder impairment, and the effects that this shoulder issue caused him over several years prior to his dismissal.[315]We conclude that the respondent had the requisite knowledge of the claimant’s disability (namely his shoulder), as required by s20/21 EqA. Failure to make reasonable adjustments[316]The respondent accepts that the disciplinary process amounts to a provision, criterion or practice (“PCP”) at law. Substantial disadvantage[317]The claimant relies on three substantial disadvantages: 317.1. He was compelled to attend a hearing on 30 April 2021; 317.2. He was unable to prepare fully for that hearing due to his disability; 317.3. He suffered an exacerbation of his mental health.[318]In relation to each of these alleged disadvantages, the claimant alleges that it was his stress that was the disability that meant the PCP placed him at a disadvantage. However, we have concluded that the claimant was not disabled by way of stress at the relevant time. As such, this claim must fail.[319]In any event, we conclude as follows: 319.1. The claimant was assessed as fit to attend a meeting by telephone, when the specific question was asked regarding the disciplinary process – [737]. As such, we conclude that the claimant suffered no substantial disadvantage in being compelled to attend the meeting on 30 April 2021. 319.2. The claimant was fully able to engage in the disciplinary hearing on 30 April 2021. We have seen and heard no good evidence to show that he was in any way disadvantaged in the manner in which he was able to prepare for the hearing. The claimant suffered no substantial disadvantage in his ability to prepare for the hearing. 319.3. In relation to the claimant’s mental health, we accept that disciplinary processes generally cause stress for those involved. However, we have heard and seen no good evidence to demonstrate that the claimant’s level of stress experienced was any greater than anyone else’s who finds themselves subject to a disciplinary process. All references to the claimant’s stress relate solely to the disciplinary hearing in any event. Therefore this is not a case where the process exacerbated an already existing condition.[320]The reasonable adjustments claim therefore fails at this stage. However, we will go on to consider the alleged reasonable adjustments in any event. 320.1. Delaying the disciplinary hearing. As above, the claimant was assessed as fit to participate in the disciplinary process – [739]. As such there was no need to make any adjustment to the hearing. Therefore delaying the hearing would not have been reasonable. 320.2. Redeployment. We have found that the claimant was offered the option of discussing redeployment but rejected that option, preferring to stay with his normal duties. This adjustment was therefore offered, but refused by the claimant.[321]The reasonable adjustments claim therefore fails. Victimisation Protected acts[322]The claimant alleges that he did two protected acts that led to him suffering detriments.[323]First, the claimant asserts that his discussion with EB in 2019, in which he asked to be assigned to a different manager, was a protected act. His case is that, in 2019, he reported to EB that JC was discriminating against him, and that this was the reason he wanted a change in manager.[324]We have found that the claimant did not mention discrimination to EB in 2019. As such, this conversation was not a protected act, as the claimant did not make an allegation that JC had discriminated, nor did the claimant do any other thing for the purposes of or in connection with the Equality Act in that conversation.[325]Second, he alleges that his attendance at the BLM event in 2020, organised by the respondent, amounts to a protected act. We reject this assertion. The event does not fall within any of the four definitions of protected act found at s27(2). The widest definition of protected act is found at s27(2)(c), which provides that a protected act is: “Doing any other thing for the purposes of or in connection with this Act.”[326]We are not satisfied that the act of attending such an event is connected with the Equality Act so as to lead to all attendees of that event gaining protection against victimisation. To find that mere attendance at such events was a protected act would be to interpret the legislation too broadly, and lead to an opening of the floodgates, going beyond the purpose of the legislation.[327]The claimant’s victimisation claim therefore fails on the basis that there were no protected acts. We will however go on to consider whether there were any detriments suffered due to the alleged protected disclosures in any event. Detriment[328]The claimant relies upon his dismissal as being a detriment. Evidently, being dismissed is in fact a detriment. However the question is whether the protected acts significantly influenced the decision to dismiss.[329]We have found that BM’s reason for dismissal was the claimant’s conduct, namely damaging the Truck and not reporting it. There is no good evidence to show that BM even knew: 329.1. that the claimant had attended the BLM event; and/or, 329.2. that the claimant had approached EB to ask for a transfer from JC’s management in 2019.[330]Furthermore, there is no good evidence to suggest that these two factors in any way influenced BM’s decision to dismiss the claimant.[331]As such, we reject this claim of victimisation. Race discrimination[332]First, we considered whether the burden of proof had shifted from the claimant to the respondent.[333]Taking an overview of the evidence in front of us, we are not satisfied that there is sufficient evidence to demonstrate that JC’s conduct towards the claimant, in relation to the specific allegations of race discrimination, without further explanation, was discriminatory on the grounds of race. We so conclude for the following reasons: 333.1. The evidence obtained from the claimant’s own witnesses during the appeal ([437-441]) and summarised in our findings, does not actually go to demonstrate that JC’s treatment towards the claimant was racially motivated; 333.2. Although the claimant told us that other partners had informed him to be wary of JC as he does not like black people, this is hearsay evidence, and does not assist us; 333.3. Although the claimant made a complaint to EB and asked to switch managers from JC, we have found that the claimant did not raise race discrimination when discussing JC’s line management of him; 333.4. The claimant never made a written complaint of race discrimination (until the appeal in this matter); 333.5. The claimant argues that JC must be racially motivated, as the claimant had a clean disciplinary record for years, until JC took over management of him. However, of the three disciplinary matters the claimant faced during his management by JC: 333.5.1. JC was not the one who decided to give the claimant a final written warning in July 2020; 333.5.2. JC handed over the disciplinary regarding the prior incident, indicating that he considered there was no case to answer; 333.5.3. JC was entitled to investigate the damage to the Truck in April 2021, quite properly sought HR advice, and then handed it to BM to take a disciplinary process forward. We are therefore not satisfied that the disparity in the claimant’s disciplinary record before and after JC’s line management of him implies any racial motivation in JC’s actions. In fact, JC’s indication on the prior incident, of no case to answer, points away from a suggestion of JC targeting the claimant. 333.6. The claimant relies upon the Managers’ Record, stating that it was completed in bad faith by four managers – [272]. We have found that there is no evidence of such bad faith, and so the Managers’ Record does not provide evidence from which we could infer discrimination.[334]As such, we conclude that the burden of proof has not shifted to the respondent to demonstrate a non-discriminatory reason for the alleged acts of discrimination. As such the race discrimination claim fails. However, we will address each allegation in turn in any event further below. Religious belief discrimination[335]The claimant also alleges that the alleged acts of race discrimination are also acts of religious belief discrimination. We again considered whether the burden of proof has shifted to the respondent in relation to this specific head of claim.[336]The sole evidence that the claimant relies upon from which he asks us to infer religious belief discrimination is that JC asked if he (the claimant) was Muslim, and then laughed when the claimant answered “yes”.[337]We have found that JC did not in fact laugh, and that this question was asked in the context of it being Ramadan.[338]We conclude that this is not sufficient evidence from which, without an adequate explanation, we could infer religious belief discrimination. Furthermore, we note that the claimant was in fact given time off work for a religious festival, as marked in the Managers’ Record – [273]. This tends to point away from the claimant suffering less favourable treatment because of his religion.[339]As such, the burden of proof has not shifted to the respondent, and the claim of religious belief discrimination fails. We will, in any event, address each specific discrimination allegation in turn below. Individual race/religion discrimination allegations Allegation 3 – failure to redeploy the claimant following his raising a grievance against JC for issuing a final written warning (2020) – perpetrator unspecified[340]Factually, this allegation is confused, as we have set out in our findings. In fact, this allegation is that EB failed to change the claimant’s line manager after two conversations with the claimant in October and December 2019.[341]We have found that, as a matter of fact, EB did not change the claimant’s line manager. The reason for that lack of change was that COVID-19 hit, no Partners changed managers, and the claimant had offered no good reason (certainly not a complaint of discrimination) as to why he should be moved.[342]We accept this rationale: there is no good evidence to rebut it. We are satisfied that in no way did the claimant’s race or religion influence EB’s decision not to change the claimant’s line manager.[343]This allegation is rejected. Allegation 4 – giving the claimant a pay rise equivalent to 3p per hour (2020) – perpetrator JC[344]Factually, the claimant received a pay rise of 2p for the year 2020. We find that this was because that was the appropriate raise for that year, and is in line with the raises in previous years.[345]In any event, JC is not the ultimate decision maker on pay increases: for the claimant that was EB or BM.[346]There is no good evidence from which we could infer that the claimant’s pay increase in 2020 was influenced in any way by his race or religion.[347]This allegation is rejected. Allegation 5 – permitting JC to become involved in the disciplinary process leading up to the claimant's dismissal (given that the claimant had raised a grievance against him in 2020) (April 2021) – perpetrator EB[348]Factually, we have found that this allegation did not occur. EB did not permit JC to be a part of the disciplinary process. JC undertook, of his own volition, an investigation into an accident. He then sought advice from HR and handed the matter on for a disciplinary process.[349]We accept the reason why JC undertook the investigation was that it was his managerial responsibility given that the damage had been reported to him.[350]We therefore conclude that the claimant’s race and/or religion had no influence on JC undertaking the investigation.[351]We reject this allegation Allegation 6 – line manager put pressure on the claimant to admit causing vehicle damage and/or not reporting it on the basis that it would not then be pursued as potentially dismissible misconduct (8-12 April 2021) – perpetrator JC[352]We have rejected this allegation on its facts, and have found that no such pressure was applied to the claimant.[353]As such, we reject this allegation. Allegation 8 – line manager asked the claimant to attend an investigation meeting without a representative present (12 April 2021) – perpetrator JC[354]Factually, it is correct that the claimant was asked to attend the investigation without a representative. However, we have accepted the respondent’s explanation for this, namely that this was an informal meeting, to which representatives are not invited.[355]This is a non-discriminatory reason for this treatment, and as such this allegation is rejected. The claimant’s race and/or religion did not in any way influence JC’s decision on this point. Allegation 9 – failure to provide the claimant with details of the other vehicle (the trailer) involved in the accident (April 2021) – alleged perpetrator JC and BM Allegation 10 – failing to take a statement from the driver of the trailer (in which the accident occurred) – alleged perpetrators JC and BM[356]We have found that there was no requirement for the respondent to obtain information about/from the trailer driver, as he was not present at the time of the accident, and the CCTV clearly shows that the damage to the Truck occurred whilst the Truck was on the trailer.[357]We have found that the reason for the lack of evidence from the trailer driver was that he had left the respondent’s premises prior to JC being made aware of the damage to the Truck. Further, it would have been disproportionate/difficult to attempt to track down the driver, given that he was not an employee of the respondent.[358]Therefore, the reason for the lack of evidence from the driver is no in any way connected to the claimant’s race or religion.[359]The claimant repeatedly made it clear that he did not accuse BM of discrimination. In relation to JC, the reason for his not tracking down the driver and obtaining evidence is as set out above. There is no good evidence from which we could conclude that JC was influenced in any way by the claimant’s race/religion. Allegation 11 – line manager (JC) and disciplinary hearing manager (BM) colluded to persuade EG to provide false evidence (April 2021) – alleged perpetrators JC and BM[360]We have found as a fact that this allegation did not occur; there was no collusion. As such, this allegation is rejected.[361]In any event, in terms of BM, the claimant confirmed repeatedly in his evidence that he did not accuse BM of discrimination. Allegation 12 – disciplinary hearing manager denied the claimant access to the relevant CCTV footage prior to the disciplinary hearing (April 2021) – alleged[362]We have found that BM did not deny the claimant access to the CCTV in advance of the disciplinary hearing. Therefore, this allegation fails.[363]In any event, the claimant confirmed repeatedly in his evidence that he did not accuse BM of discrimination. Specifically in relation to this allegation, he stated “I don’t say I wasn’t shown that information because I am Black or Muslim. I don’t know what they didn’t do certain things”. Allegation 13 – disciplinary hearing manager convened a disciplinary hearing despite the claimant being signed off work by his GP with stress and a shoulder injury (30 April 2021) – alleged perpetrator BM[364]We have found that, factually, the meeting did go ahead at a time when the claimant had a live fit note from his GP.[365]However, there is no good evidence from which we could infer that the reason for BM going ahead with the meeting was in any way connected to the claimant’s race or religion. BM went ahead with the meeting in reliance upon the advice obtained from the OH Physician.[366]In any event, the claimant confirmed repeatedly in his evidence that he did not accuse BM of discrimination. Allegation 16 – disciplinary officer did not have material available to him to conduct the disciplinary hearing appropriately (30 April 2021) – alleged perpetrator BM[367]We have found that this allegation is not made out on the facts. The allegation therefore fails.[368]In any event, the claimant confirmed repeatedly in his evidence that he did not accuse BM of discrimination. Allegation 17 – conducting the disciplinary meeting by zoom so that the claimant had difficulty participating (30 April 2021) – alleged perpetrator BM[369]We have found that the claimant did not have any difficulty participating in the disciplinary meeting because it was conducted by video.[370]In any event, there is no good evidence to suggest that the decision to hold the meeting by video was in any way connected to the claimant’s race or religion.[371]In any event, the claimant confirmed repeatedly in his evidence that he did not accuse BM of discrimination.[372]This allegation therefore fails. Allegation 18 – proceeding with a disciplinary hearing in a pandemic (30 April 2021) – alleged perpetrator BM[373]The disciplinary hearing did proceed during a pandemic. However, the fact it proceeded, in the format of a video hearing rather than in person, was of no disadvantage to the claimant, on our findings.[374]The reason that the meeting went ahead, by video, was that this was the respondent’s policy for managing disciplinary hearing during the pandemic.[375]There is no good evidence from which it could be found that the decision to go ahead with the hearing, in person, was in any way influenced by the claimant’s race or religion.[376]In any event, the claimant confirmed repeatedly in his evidence that he did not accuse BM of discrimination.[377]This allegation therefore fails. Allegation 19 – dismissal (30 April 2021) – alleged perpetrator BM[378]We have concluded that the reason for the claimant’s dismissal was his conduct, and that this was a fair reason. We therefore reject the allegation that the reason for dismissal was the claimant’s race or religion.[379]In any event, the claimant’s own evidence on BM’s motivation was inconsistent. During his evidence, he said the following: 379.1. “I don’t’ claim race discrimination against BM”; 379.2. “I don’t know [BM], I cant say I was dismissed because of my skin colour or because I am Muslim”; and, 379.3. “I do say he dismissed me because I am black”.[380]When it was put to the claimant that he did not raised BM’s discriminatory dismissal in the appeal, the claimant said: “I didn’t’ accuse BM of discrimination in the appeal. Now, I say it’s because of my skin colour. Because he didn’t do the process correctly, as a human being, before accusing someone he should have made sure he could see my face on the CCTV”[381]The claimant was effectively saying that, because he considered that the disciplinary had not been dealt with fairly, that must have been because of his race/religion. This is an baseless allegation without any supportive evidence. There is no good evidence from which we could infer that BM’s decision to dismiss was in any way influenced by the claimant’s race or religion.[382]We reject this allegation. Allegation 20 – failure to review the evidence on appeal (May/June 2021) – TM[383]On the facts, we have found that there was no failure to review any evidence at the appeal stage.[384]In any event, the claimant stated several times in cross-examination that he did not claim that TM had acted in a discriminatory way towards him. Further, there is no good evidence from which we would draw an inference that TM was influenced in any way by the claimant’s race or religion in the manner in which she dealt with that appeal.[385]This allegation fails. Allegation 21 – failure to comply with provisions of the disciplinary procedure (paragraphs 3.3.1, 3.3.6, 3.5.1, 3.5.1.1, 3.5.8 (April to June 2021) – BM and TM[386]We have found that there was no failure to comply with any of the provisions cited within this allegation.[387]In any event, the claimant said several times during the course of his crossexamination that he did not accuse TM and BM of discrimination.[388]There is no good evidence from which we could infer that the manner in which BM and TM conducted their respective parts of the disciplinary process was in any way influenced by the claimant’s race or religion.
Introduction
[1]The respondent’s application for costs to be paid by the claimant is successful. The claimant is ordered to pay to the respondent the sum of £15,750.[2]The respondent’s application for wasted costs against Mr Ogbonmwan is successful. Mr Ogbonmwan is ordered to pay to the respondent the sum of £7,650.[1]The respondent has two trading divisions, those being John Lewis and partners department stores and Waitrose and partners supermarkets. The business is run on co-ownership principles and all partners are eligible to participate in a share of the respondent’s annual profits.[2]The claimant was employed by the respondent as warehouse partner from 16 August 2004 to 20 April 2021. He worked at the Waitrose and partners warehouse in Bracknell. The respondent alleged that it dismissed the claimant by reason of misconduct: this was found to be the case at the final hearing.[3]The claimant commenced the ACAS early conciliation process on 29 June 2021. This process completed on 10 August 2021, following which the claimant presented his claim form to the tribunal on 9 September 2021.[4]In the claim form, the claimant sought to present claims of unfair dismissal, disability discrimination, race discrimination, and discrimination on the grounds of religion or belief. He also brought pay claims, ticking all the boxes relating to all types of pay claims. The respondent provided a response to the claim denying all the claims in their entirety.[5]Following a six day final hearing, all the claimant’s claims were rejected. Following receipt of the Tribunal’s Reserved Judgment, the respondent made an application for costs against both the claimant and his representative, Mr[6]In order to fairly and fully address this application and its decision, the Tribunal considers it necessary to set out a detailed history of this litigation. Preliminary hearings[7]This claim was subject of three preliminary hearings. Preliminary hearing 1 – 2 September 2022[8]On 2 September 2022, a standard case management preliminary hearing was held by telephone before Employment Judge Tynan. The events in advance of and during that hearing are summarised by Employment Judge Tynan at paragraph 3 of his Record of Preliminary Hearing: “I record my concern that there was no agreed List of Issues for the Preliminary Hearing. The Respondent’s solicitors provided a draft List of Issues to Mr Ogbonmwan in advance of the Hearing, but he did not provide any comments on it to them or otherwise seek to agree its contents with them. Indeed, he came to the Hearing with an insufficient understanding of the claimant’s case and unprepared to discuss the List of Issues. It took me approximately one and a half hours to secure from Mr Ogbonmwan the details of 14 matters, in addition to the 6 matters already identified in the Respondent's draft List of Issues, relied upon by the claimant as alleged acts of direct race discrimination, albeit even then it has been necessary for me to make an Order below for the claimant to provide further and better particulars of certain aspects of those 14 matters. During the hearing I impressed upon Mr Ogbonmwan the need for greater focus in future. The further consequence of the claimant/Mr Ogbonmwan’s failure to address the issues in advance of the Preliminary Hearing is that there is no time available to the Respondent/Mr Hobbs, and indeed the Tribunal, to give consideration to whether the 14 matters identified by Mr Ogbonmwan in the course of the hearing are all included within the Particulars of Claim or will require that the Claim is amended to include any such complaints. I record here that there has been no application by the claimant to amend his claim and that such an application will be required if new complaints are sought to be introduced by virtue of any of the 14 matters referred to. Otherwise, I have made an Order below for the parties to co-operate to agree the Final List of Issues once the Claimant has provided outstanding information regarding his complaints.”[9]The Judge went on to remark that he had concerns about the claimant's failure to comply with orders regarding disclosure of medical evidence as ordered around 5 months prior (on 16 April 2022 and varied on 2 August 2022). The Judge gave a clear warning to Mr Ogbonmwan that, if the claimant did not comply with the orders made on 2 September 2022, there was a risk that the discrimination claims could be struck out on the basis of there being no reasonable prospect of success, or for failure to comply. The Judge made numerous orders, including that any amendment application had to be made by 23 September 2022 and made it clear that, as at 2 September 2022, there was no application to amend before the Tribunal.[10]Regarding the List of Issues, the Judge made the order that the parties were to agree the List of Issues by 21 October 2022. The respondent was ordered to rework the existing List of Issues by 14 October 2022, then the claimant was to make any comments. If no comments were made by the claimant by 21 October 2022, the respondent’s list was to stand as the List of Issues for the final hearing. Orders were also made regarding the claimant providing further and better particulars.[11]At the conclusion of this preliminary hearing, no further preliminary hearing was listed. The final hearing had already been listed; the dates were communicated to the parties by letter of 26 April 2022. Aftermath of Preliminary Hearing 1[12]The claimant sent in various communications that were said to be further and better particulars. The matter was referred to Employment Judge Tynan, who determined that they were “not in a form acceptable to the Tribunal” - see the Tribunal’s letter of 29 November 2022. The claimant was given a further 14 days to provide a “focused and intelligible” response to the order for further and better particulars. He was warned that, if he did not do this, the Tribunal would consider striking out the parts of the claim to which the order related. Preliminary hearing 2 – 3 April 2023[13]Following correspondence from the parties, the case was listed for a public preliminary hearing to consider: 13.1. A strike out application; 13.2. Clarification of the issues; 13.3. Any amendment application; 13.4. Any case management orders.[14]In response to the Tribunal’s order of 29 November 2022, Mr Ogbonmwan had sent in a document on 13 December 2022 which did not assist in making matters clearer. An additional document was sent on the morning of 3 April 2023 which again was said to provide the relevant particulars.[15]In advance of the hearing, the respondent had prepared an updated List of Issues to reflect the (now) 21 allegations of direct discrimination, and other claims. Mr Ogbonmwan had not contributed or provided comments on that document, as required by Employment Judge Tynan’s orders.[16]The case was listed in front of Employment Judge Shastri-Hurst on 3 April 2023. It is recorded in the Record of Preliminary Hearing that Mr Ogbonmwan attended this hearing without a copy of the bundle that had been prepared by the respondent.[17]At the hearing, the Judge struck out the holiday pay claim and three allegations of direct discrimination.[18]The respondent made it clear at this stage that, in light of the strike out decision, the only allegations of discrimination which it said were not in the Claim Form (however obliquely) were Allegations 7 and 15. Mr Ogbonmwan was given the opportunity to highlight to the Judge where he said those two allegations could be found in the Claim Form. The Judge disagreed with his reading of the Claim Form in relation to the highlighted passages.[19]The Tribunal ran out of time to deal with all the matters for which the preliminary hearing had been listed. As such the matter was relisted as partheard.[20]On the Judge’s own initiative, and in light of the lack of clarity on the claims as at 3 April 2023, the Judge indicated that she would consider whether to strike out or make a deposit order against part of the reasonable adjustments claim and part of the victimisation claim at the reconvened hearing.[21]In relation to any application to amend, the Judge explained to the parties that she had identified one part of one piece of correspondence that could be an application to amend. That related solely to post-termination victimisation. The discussion on this is recorded at paragraphs 38 and 39 of the record of Preliminary Hearing: “Mr Ogbonmwan said that he had not sent in an application, as he had prepared a document in advance of the 2 September hearing, that the Judge had accepted as being, to all intents and purposes, an application to amend. I explained to Mr Ogbonmwan that the Judge’s order is very clear: he did not consider that there was, as at 2 September 2022, any application to amend in front of him. He then ordered that any application to amend be presented by 23 September 2023 [sic - 2022]. Mr Ogbonmwan confirmed that he had not sent in any other application to amend, as he did not want to cause the Tribunal more work”.[22]This is one example of an occasion on which Mr Ogbonmwan has stated something that is clearly untrue and flies in the face of contemporaneous documentation. Preliminary hearing 3 – 15 May 2023[23]The reconvened preliminary hearing took place on 15 May 2023. At this hearing, the Tribunal considered any amendment to the claimant’s claim, and strike out/deposit order. There was insufficient time for the Judge to give her decision at the hearing, and so she reserved her decision. The Judge made the following decisions: 23.1. To strike out an element of the reasonable adjustments claim; 23.2. To make a deposit order against part of the victimisation claim, namely whether one of the two alleged protected acts was in fact a protected act; 23.3. To reject the application to amend the claim to include Allegations 7 and 15.[24]Following this hearing on 15 May 2023, the List of Issues was finalised to reflect the outcome of the various matters dealt with at that hearing. The claims were clarified as being as follows: 24.1. Unfair dismissal under s98 of the Employment Rights Act 1996 (“ERA”); 24.2. Breach of contract/notice pay; 24.3. Direct race/religious discrimination under s13 of the Equality Act 2010 (“EqA”); 24.4. Failure to make reasonable adjustments under ss20 and 21 EqA; 24.5. Victimisation under s27 EqA.[25]We find that Mr Ogbonmwan’s conduct directly led to the second and third preliminary hearings in this matter, for the following reasons: 25.1. His failure to engage with the list of issues and attend the first preliminary hearing prepared to deal with the case and explain the issues meant that the first preliminary hearing was not as effective as we would reasonably expect it to have been; 25.2. His failure to comply with the case management orders from the first hearing, his failure to engage with the preparation of the list of issues for a second time and his failure to fully engage, review and get to grips with his client’s claim led to the need for a second and third preliminary hearing. Final hearing[26]The final hearing was listed to take place over five days, from 16 to 20 October 2023. The Tribunal in the event had to reconvene on 18 December 2023 due to the matter being part-heard. The parties are referred to the Reserved Judgment on liability at paragraphs 11 to 21 which sets out in detail the timetable of the initial five days, the reason why the five day listing was exceeded and an additional day for evidence and submissions was required. In fact, paragraphs 22 to 96 set out the issues that the Tribunal was required to deal with during the course of the final hearing as preliminary or interlocutory matters.[27]In short, we find that Mr Ogbonmwan’s conduct of his client’s case directly led to the need for an additional day on 18 December 2024, for example: 27.1. On Day 1, making unmeritorious applications that meant we did not start evidence until 1255hrs on Day 2; 27.2. Interrupting and interjecting during his client’s cross-examination by Mr Hobbs. The vast majority of those interjections (if not all of them) were unmerited and not sustained; 27.3. Being repeatedly late for the agreed start time on numerous days of the final hearing; 27.4. Repeated failure to comply with the Tribunal’s timetabling of the final hearing; 27.5. Making numerous unmeritorious applications through the course of the final hearing, as recorded in the Reserved Judgment on liability; 27.6. Making spurious and wholly unfounded allegations against Mr Hobbs, including accusing him of white supremacy and threatening to report him to the Bar Council (see paragraphs 74 to 86 of the Reserved Judgment).[28]The Tribunal then met to deliberate, without parties, on 19 December 2023. A Reserved Judgment was sent to the parties on 27 February 2024, rejecting all the claims. Parties are referred to the Reserved Judgment as to the Tribunal’s full reasons for rejecting the claims. A few points are highlighted here as being relevant to the costs application. Findings at the final hearing Unfair dismissal and notice pay claims[29]The claimant’s claim fundamentally revolved around his summary dismissal from the respondent on 30 April 2021. We found that the claimant was fairly dismissed for the reason of conduct, and that he had acted in a way that amounted to a repudiatory breach of his employment contract, hence the respondent was right not to pay him notice pay.[30]The claimant worked at the Waitrose & Partners warehouse in Bracknell as a Warehouse Partner. As part of his duties, the claimant used a pallet truck to move items around the warehouse. This would include driving onto a lorry trailer in order to lift goods from the trailer and move them into the warehouse on the pallet truck, and vice versa. Each truck has a pallet guard that stands perpendicular to the ground, in order to protect the driver from items on his truck falling towards him and causing injury.[31]The act for which the claimant was dismissed occurred on 8 April 2021. He was dismissed for damaging a pallet truck and then not reporting the damage.[32]The claimant had been using pallet truck 202 during his shift on 8 April 2021. We found that the claimant drove Truck 202 onto a trailer with an undamaged, straight pallet guard. However, when he drove off the trailer, the pallet guard was clearly bent. As such the pallet truck was damaged by the claimant during the course of that manoeuvre. We found as a fact that he did not report the damage; it only came to light when a colleague reported it later on 8 April 2021.[33]Part of the evidence we used in reaching these findings was CCTV evidence. The summary of what that CCTV shows is at paragraph 150 of the Reserved Judgment on liability.[34]In the internal investigation, the claimant initially denied that he had damaged Truck 202. However, once confronted with the CCTV, he accepted responsibility. He latterly altered his evidence in the internal investigation, stating that he had been coerced into admitting fault by Mr Jimmy Crask (the investigating officer). That remained his case before us. Furthermore, before us, and for the first time, he denied that the man in the CCTV driving Truck 202 on and off the trailer was him. We found that the man in the CCTV was plainly the claimant.[35]On our findings, the logical conclusion is that the claimant lied in internal proceedings when he changed his account again to deny fault and lied when he asserted the Mr Crask put pressure on him to change his “plea”. It also means he lied to us when he denied damaging Truck 202 and denied that the man in the CCTV was him. Furthermore, this means that his claims regarding his dismissal were based on lies, and that the claimant knew that he was guilty of the misconduct alleged by the respondent at the time of mounting his claim. This in turn means that he knew (or at least should reasonably have known) he was not entitled to notice pay at the point of entering his claim form. Direct discrimination claims[36]The claim of direct discrimination on the grounds of race and religion consisted of 16 allegations. The alleged perpetrators were as follows: 36.1. Jimmy Crask (investigating officer); 36.2. Bill Mansfield (dismissing officer); 36.3. Tracy McCreadie (appeal officer).[37]In relation to some of the allegations, the claimant and his representative were unable to identify who the alleged perpetrator was at the time of the commencement of the hearing. By the end of the hearing, Elliott Blair had also been identified as an alleged perpetrator in relation to two allegations.[38]There were six allegations against Mr Crask. One (Allegation 4) related to “giving the claimant a pay rise equivalent to 3pm per hour in 2020”. The remaining allegations related to the internal disciplinary process (Allegations 6, 8, 9, 10, 11).[39]There were two allegations against Ms McCreadie and ten allegations against Mr Mansfield.[40]At the final hearing, during the course of the claimant’s cross-examination, he admitted that he did not believe that Ms McCreadie or Mr Mansfield were discriminating against him by their actions. This was simply a change in the claimant’s belief with no good or clear explanation for that change.[41]In relation to the discrimination claims against Mr Crask and Mr Blair, our conclusion on each and every one of the allegations against these individuals was that there was no good evidence to shift the burden of proof from the claimant to the respondent (see paragraph 332-339 of the Reserved Judgment). Victimisation[42]We found that the two alleged protected acts were not protected acts: the victimisation claim therefore failed at that point.[43]In any event, the detriment relied upon was the act of dismissal. We found that the reason for dismissal was conduct. Further, we found that there was no good evidence that the alleged protected acts significantly influenced the decision makers’ minds in any event.[44]Given that the claimant knew the real reason for dismissal was the fact that he had damaged the pallet truck and not reported the damage, he would have been aware that the dismissal was not due to any protected act. Failure to make reasonable adjustments[45]We found that the claimant was disabled by way of a shoulder injury, but that he was not disabled due to stress. His reasonable adjustments claim related to substantial disadvantages he said were induced because of his stress. None of his complaints related to his shoulder.[46]In terms of his stress, we found that this was not a disability as it had not lasted for 12 months and was not likely to do so – see paragraph 244 of our Reserved Judgment.[47]Furthermore, and in terms of the alleged substantial disadvantages, they were as follows: 47.1. He was compelled to attend a disciplinary hearing on 30 April 2021; 47.2. He was unable to prepare fully for that hearing due to his disability; 47.3. He suffered an exacerbation of his mental health a a result of the disciplinary process.[48]As above, the claimant alleged that these were all substantial disadvantages related to his stress, not his shoulder. Our findings on the substantial disadvantages are at paragraph 319 of the Reserved Judgment. We note particularly that, regarding his attendance at the 30 April 2021 hearing, the respondent sought medical advice, which came back saying that the claimant was fit to attend a telephone hearing. In relation to the two other substantial disadvantages, we found that there was no good evidence to support these claims. In advance of the costs hearing
Conclusion
[49]On 14 August 2024, the Tribunal sent a Notice of Hearing in preparation of the costs hearing listed for 14 November 2024. A separate document was sent by the Tribunal on the same date containing Case Management Orders for the costs hearing. Those orders included the following: “1.8 The claimant is to provide a witness statement:1.8.1 setting out whether or not Mr Ogbonmwan is acting in pursuit of profit with regard to these proceedings.1.8.2 setting out his financial position at the moment, including monthly/weekly income from any/all sources, and monthly/weekly expenditure. This information must include any savings the claimant has. 1.9 Mr Ogbonmwan is also to provide a witness statement setting out whether or not Mr Ogbonmwan is acting in pursuit of profit with regard to these proceedings. 1.10 The witness statements from the claimant and Mr Ogbonmwan must be sent to the respondent within 10 weeks of the date on which this order is sent to the parties [23 October 2024]. 1.11 The claimant must bring 4 copies of his and Mr Ogbonmwan’s statement to the Tribunal on the morning of the costs hearing.”[50]No witness statements were received from either the claimant or Mr Ogbonmwan in advance of, or at, the costs hearing.[51]In inter-partes correspondence attached to an application to postpone the costs hearing, the Judge had sight of an email from the claimant's representative of 23 September 2024 in which he made it clear that the claimant intended to provide a witness statement, but that Mr Ogbonmwan had no intention of so doing. We find that this demonstrated a willing breach of the Tribunal’s order of 14 August 2024. Procedure at the costs hearing[52]In advance of the hearing, the claimant’s representative made an application to postpone, dated 8 November 2024. The Judge determined to refuse the application for reasons given in a letter from the Tribunal, sent to the parties on 13 November 2024. Mr Ogbonmwan also applied at 1859hrs on 13 November 2024 for the Judge to recuse herself; this application was also rejected at the commencement of the hearing.[53]On the morning of the costs hearing, Mr Hobbs attended to start the hearing at the scheduled time of 1000hrs. Neither the claimant nor Mr Ogbonmwan were present at the Tribunal for a 1000hrs start. Having been asked by us to telephone the claimant and his representative, at 1013hrs the clerk informed us that the only telephone number on record was one for Mr Ogbonmwan and that when called the number rang off as being “no longer available”. On our instruction, the clerk emailed the claimant’s representative to inform him that the application to postpone had been refused and enquired as to when he and the claimant would be attending. The Tribunal proposed to start at 1030hrs, with or without the claimant and his representative, as is permitted under rule 47 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (as were then in force).[54]The hearing therefore commenced at 1030hrs without the claimant and his representative, the Tribunal having heard nothing from either individual. Mr Hobbs made his submissions on the respondent’s costs application. Part way through his submissions, the clerk informed the Tribunal that the claimant’s representative was on his way. The respondent’s submissions concluded at 1111hrs, at which point we adjourned to wait for Mr Ogbonmwan’s arrival: he arrived at 1120hrs and we recommenced the hearing at 1134.[55]Mr Ogbonmwan was given the opportunity to explain his lateness; he told us that he had been at the wrong bus stop, and that his normal bus stop had been cancelled. He told us that “it was not practicable to get the claimant to consent to attend”. This caused the Tribunal concern: the case had been listed for three months and, even if Mr Ogbonmwan had not received the refusal to postpone until late in the day, the assumption must have been (or should have been) that the claimant and his representative would need to attend the costs hearing unless and until they expressly heard from the Tribunal to the contrary.[56]Mr Ogbonman then, and only at this stage, explained that the claimant was “very uncomfortable to sit before this Tribunal”. This was purportedly because the Judge during the final hearing had said “by hook or by crook we are going to get through the case in the time allotted” (or words to that effect, the key phrase being “by hook or by crook”). The Tribunal acknowledges that the Judge used this phrase during the final hearing. Mr Ogbonmwan informed the Tribunal that this was a matter that had been appealed to the Employment Appeal Tribunal. At the time of the costs hearing, permission to appeal had been denied on the paper sift, and the claimant had exercised his right to a Rule 3(10) hearing, an oral hearing to seek permission to appeal. The matter is listed for a 1-hour hearing on 15 July 2025.[57]The “by hook or by crook” comment was also part of the basis for the application to recuse. It was said by Mr Ogbonmwan that this phrase was “derogatory and indicative of potential bias” and was “particularly concerning given the racial and ethnic backgrounds of both the claimant and his representative” - cited from the application for recusal. In short, it was understood by this Tribunal that the Judge was being accused of racial bias.[58]When directly asked by the Tribunal why the claimant was not in attendance, his representative said, “since I got the information [that the costs hearing was going ahead and the postponement application was rejected] I haven’t been able to get hold of him”. This concerned the Tribunal further. As above, it must have been the working assumption of both the claimant and his representative that the hearing was going ahead. Mr Ogbonmwan’s answer to this question from the Tribunal necessarily leads to the conclusion that, prior to receiving an answer to the application to postpone, the claimant and his representative between them had determined that the claimant would not attend the costs hearing.[59]To save the respondent's representative from repeating his submissions, the Judge read back her near verbatim notes of his submissions and asked Mr Hobbs at the end whether he agreed with her account: he did.[60]When asked by the Tribunal whether he would like some time to consider his response to Mr Hobbs’ submissions, Mr Ogbonmwan applied for the Tribunal to reconsider its decision on the recusal and postponement applications. During these applications, the Tribunal asked the claimant’s representative to explain what he understood to be the racial connotation of the expression “by hook or by crook”, given this formed a large part of his applications. The Tribunal had used the search engine Google to find an explanation of the origin of the phrase, which was as follows: “A widely held theory is that it comes from the custom of allowing commoners to take as much wood from royal forests as they could reach with a shepherd’s crook and cut down with a billhook”.[61]On Mr Ogbonmwan’s request, this phrase was read out several times, slowly, in order that he could record it for his note. He also requested that various words were spelt out to him, which was done on his request.[62]Unfortunately, Mr Ogbonmwan was not able to explain what he said the racial connotation of the expression was and, instead, requested a break, which was duly granted to him for 15 minutes from 1230 to 1245. At 1247hrs, the Tribunal was informed by the clerk that Mr Ogbonmwan was on the telephone, then at 1257 the Tribunal was handed an email from the claimant, sent at 1253. This email was entitled "Representation Regarding Judge’s Use of “Hook or Crook” and Related Concerns of Bias and Procedural Irregularity”. The Tribunal read the email and took its contents into account.[63]We recommenced the hearing at 1300hrs. In answering the Tribunal’s question as to the racial connotation of the “by hook or by crook” expression, Mr Ogbonmwan stated: “The King was seen as very oppressive, that is why there were a lot of suffragettes, and it is not a good period that is to be referred to, to connect that to modern times, it was not an appropriate word to have been used in the theatre of the Tribunal...”[64]The claimant’s representative finished his submissions at 1312hrs. The respondent was given the opportunity to respond, which he did briefly. We then took lunch from 1315 to 1415 during which time the Tribunal reached the decision to reject the reconsideration application for reasons given at the time. The claimant’s representative was then given one hour to respond to the respondent’s application for costs. With some questions from the Tribunal, the claimant’s submissions concluded at 1539hrs, having started at 1428hrs. During the course of those submissions, the Tribunal asked Mr Ogbonmwan why there was no witness statement from the claimant. We were told that the claimant had hoped that the respondent would agree to a postponement of the costs hearing. We note that the Tribunal’s Order was for service of witness statements by 23 October 2024. We understand from inter-partes correspondence that the possibility of an application to postpone was mooted by the claimant and his representative prior to that date, but the actual application to postpone came after 23 October 2024. We consider therefore that this rationale for not providing a witness statement is weak, unfounded, and disingenuous.[65]The parties' submissions are outlined in detail below. However, at this stage we record that Mr Ogbonmwan’s submissions as to whether he was acting in pursuit of profit were to deny that suggestion vehemently.[66]At the end of his submissions, Mr Ogbonmwan was given the opportunity to confirm what he had told us about his relationship with the claimant being pro bono on a religious oath or non-religious affirmation. Mr Ogbonmwan refused, stating that he was not willing to “go under oath and be ambushed by crossexamination”. The Tribunal then clarified that, given he had breached the Tribunal order and not provided a witness statement, he was being given the opportunity simply to take the oath or affirmation and to confirm the truth of what he had already told us. Mr Ogbonmwan refused, stating: “We think you are impartial and I will not be swearing an oath until the outcome of the Employment Appeal Tribunal and if necessary we will then do so. I do not think I need an oath, I am not a witness, I am a representative...”[67]Mr Hobbs’ reply to the submissions on behalf of the claimant lasted five minutes. Mr Ogbonmwan wished to give a response to that reply, which he was allowed to do; his reply lasted 9 minutes. We concluded the hearing, reserving our judgment, at 1553hrs.[68]We have summarised the parties’ submissions below. This is not intended to be a complete record of the submissions of both parties, but a detailed summary of the key points. Respondent’s submissions No reasonable prospects of success[69]The respondent’s position was that the entire claim never had any reasonable prospects of succeeding.[70]In terms of the unfair dismissal claim, the respondent’s position was that there was CCTV which showed the claimant driving an undamaged pallet truck onto a lorry, then driving out with the front grill bent. It was said that it was inevitable that the Tribunal would return a finding that dismissal had been fair when on the CCTV evidence it was clear that the claimant had damaged the respondent’s property and not reported it.[71]Furthermore, on the documentary evidence of the internal investigation, the claimant initially denied the incident. He was then shown the CCTV at which point he admitted fault. However, at the Tribunal final hearing, the claimant told the Tribunal that it was not him on the CCTV (this was the first time this was mentioned by the claimant). He also said that the only reason he confessed was because he was placed under pressure. The Tribunal rejected the claimant’s evidence on these two points. The respondent averred that these claims were based on lies.[72]Regarding the direct discrimination claims on the grounds of race and/or religion, the alleged perpetrators were Jimmy Crask, Bill Mansfield and Tracy McCreadie. The claimant raised a total of 21 allegations all relating to the investigation and disciplinary process.[73]During the claimant’s cross-examination, the claimant admitted that he did not think that either Tract McCreadie or Bill Mansfield had discriminated against him. That meant that instantly two thirds of the s13 Equality Act 2010 (“EqA”) claim fell away. It is fair to point out at this point that this analysis by the respondent neglected to mention the two allegations against Mr Elliott.[74]Finally, the respondent dealt with the claimant’s victimisation claim under s27 EqA. This claim was subject to a deposit order, the basis of which was the basis on which the claimant’s claim failed at the final hearing. Again, we must point out that it was not quite that straight forward. The deposit order was made against one of two protected acts and was not therefore made against the entire basis of the victimisation claim.[75]Furthermore, we note that the respondent did not specifically address in oral submissions the claims of failure to make reasonable adjustments and breach of contract (notice pay).[76]The respondent submitted that it had sent a letter, being “without prejudice subject to costs”, on 6 September 2023. In terms of relative chronology, this was after the preliminary hearings, but before the final hearing. This letter highlighted the weaknesses in the claimant’s claims; in the event, the main points raised by the respondent were points found by the Tribunal.[77]At paragraph 2 of that letter was a costs warning, with a settlement proposal. That proposal was for the respondent to pay the claimant £4000 in full and final settlement on the basis that the claimant withdrew his claim. This was proposed as a commercial settlement, rather than being any indication that the respondent admitted any weakness in its case. The respondent says that, in being faced with the weaknesses of his claim, the claimant should have realised that his claims had no reasonable prospect of succeeding. Unreasonable conduct by the claimant[78]In any event, the respondent argued that the claimant’s conduct in rejecting the 6 September 2023 offer and forcing the respondent to defend the claims through to a final hearing was unreasonable conduct that merits a costs order. Wasted costs – pursuit of profit[79]Mr Hobbs stated that Mr Ogbonmwan had been given a fair chance and fair warning; he invited us to draw an inference from Mr Ogbonmwan’s failure to provide a witness statement that he was not acting with a charitable status.[80]Mr Hobbs raised that Mr Ogbonmwan has recently begun to sign off his emails with the signature “Howard Ogbonmwan CAMC CHARITY”. This was not the case during litigation until just before the costs hearing. He also averred that the reason that we are unable to ascertain the nature of any retainer between Mr Ogbonmwan and the claimant is due to the lack of evidence forthcoming from both individuals.[81]It was further highlighted that Mr Ogbonmwan is known to be providing assistance to other employees of the respondent, and that the Tribunal can take judicial notice of the fact that Mr Ogbonmwan is a regular attendee at Reading Tribunal. Mr Hobbs stated that “it beggars belief that he is acting in a status of charity”; as such, he invited us to conclude that Mr Ogbonmwan is pursuing a profit in this case. Representative’s improper/unreasonable/negligent conduct[82]In summary, the respondent’s submission was that this case did not need three preliminary hearings and should not have required a sixth day for evidence and submissions.[83]The respondent set out the history of those three preliminary claims, which broadly matched the summary as set out herein above. We will not repeat it here.[84]The respondent’s point was that this was a claim that should reasonably only have required one preliminary hearing at which the issues in the claim should have been capable of identification.[85]There were numerous breaches of Tribunal orders, which were set out in more detail in the respondent’s written costs application dated 24 March 2024.[86]In summary, regarding the preliminary hearings, the respondent averred that the reason why this case required an additional two preliminary hearings was purely down to Mr Ogbonmwan’s conduct. This was conduct that continued into the final hearing, given that even at that stage the claimant’s representative still did not accept the List of Issues as produced by the Judge following 15 May 2023 hearing.[87]Regarding the final hearing, the respondent highlighted the conduct relied upon to equate to improper, unreasonable or negligent: 87.1. Attending late every day; 87.2. Making repeated unmeritorious applications; 87.3. Interjecting on the grounds of white supremacy and racism against Mr Hobbs and the Judge; 87.4. Interrupting cross-examination (on some occasions before the question had even been asked).[88]The respondent’s position is that this conduct directly led to the need for a sixth additional day. Costs claimed[89]The respondent’s costs application was capped at £20,000. The costs schedule set out the figures claimed as follows: Costs incurred Amount Burgess Salmon Fixed Fee £5,000 + VAT Counsel’s fee for preliminary £1,250 + VAT hearing 2 September 2022 Counsel’s fee for preliminary £2,250 + VAT hearing 3 April 2023 Counsel’s fee for preliminary £1,500 + VAT hearing 15 May 2023 Counsel’s fee for the final £15,750 + VAT hearing Total £25,750 + VAT[90]In terms purely of the amount of the costs as set out above, the Tribunal finds that the fees set out above are reasonable in light of the preparation and work required by solicitors and counsel in this matter. Mr Ogbonmwan did not make any representations as to the amounts claimed. Claimant’s submissions[91]Mr Ogbonmwan commenced by reiterating his and his client’s concerns about our impartiality and “procedural inconsistency”, which affected the claimant’s trust in the Tribunal.[92]The claimant’s representative reminded us that the Tribunal is designed to allow access to justice, and that costs are only typically awarded in cases in which the conduct has been extremely unreasonable. He stated that any challenge to procedure during the final hearing had been about the “racism claims” rather than any “intention to disrupt”. He also highlighted the complexity and importance of this case.[93]It was submitted that in fact any confusion and delays were caused by the respondent’s failure to comply with its disclosure duties. This failure, and the respondent’s being “economical with the truth” led to various of the claimant’s applications being necessary. Mr Ogbonmwan asserted that the “pattern of behaviour by the respondent was classic of class and influence on the claimant” and suggested that the respondent had ignored all rules and procedures that are in place to ensure the efficient running of the Tribunal. For clarity, we reject this assertion; we find that the respondent’s conduct has been perfectly proper. In particular, we highlight Mr Hobbs’ extremely reasonable and professional conduct in the face of accusations of white supremacy and assassination attempts that were made against him at the final hearing by Mr ogbonmwan.[94]Mr Ogbonmwan revisited the postponement application made in advance of one of the preliminary hearings, on the basis of the claimant having suffered a bereavement. He highlighted that that application was dismissed.[95]The Tribunal must state that, on occasion, it was difficult to follow the claimant’s representative’s submissions. As an example, below are two passages of his oral submissions (taken from the Judge’s note): “It is quite astonishing to find that those processes were processes that have been put in place by the impartial Employment Tribunal Rules of Procedure upon which any disputed party can have remedy and have remedy which is consistent with the law. The issue of the claimant acting unreasonably did not really exist, it was an issue that was created, given the influential authority of Mr Hobbs. He was willing to use those opportunities to drive his own agenda and not that of his client”; “There was nothing evidential in the use of process which the claimant’s representative followed in the context of managing the claimant's interests. This is quite common. There was no abusive communication, this is not even close to where people have jumped over the table to attack a Judge or a respondent or something. None of these issues, other than the actual confrontation that happened which I raised a complaint about that you have said today was dismissed – the fact that they were dismissed, it [Mr Hobbs’ conduct] was in fact much closer to the behaviour which would lead to a costs order”.[96]Mr Ogbonmwan repeatedly raised the alleged impartiality of the Tribunal in his submissions, despite the application to recuse, and the application to reconsider our decision on the recusal application, being rejected.
Findings of fact
[97]In terms of the CCTV evidence, the claimant’s representative submitted: “You [the Judge] admitted that you could not see the claimant in the CCTV. Also, the [non-legal members] did not take the position that the claimant was the individual in the CCTV”.[98]We note at this stage that evidently Mr Ogbonmwan is wrong on this statement, and we refer back to our findings on this point within our Reserved Judgment on liability as summarised above. This is another example of Mr Ogbonmwan simply misrepresenting past events, despite documentary evidence to the contrary. Given that he has misrepresented matters in one way that can be proven on the documents to be clearly otherwise, we find that we are unable to rely on his representations as being credible.[99]Mr Ogbonmwan continued to argue, even at this stage, that the CCTV evidence was contested, defective and unreliable. He continued to argue, at this stage, post-liability judgment, that the dismissal was unfair. At this point we note that Mr Ogbonmwan by his behaviour demonstrated throughout both the final hearing and the costs hearing, no willingness to accept the Tribunal’s decision, and would repeatedly continue to argue matters that had been determined and exhausted within the jurisdiction of the Tribunal.[100]He went on to submit that, for the purposes of a costs application, it was not sufficient to say that, just because a claim failed, it must have lacked merit at the beginning. We agree with this principle.[101]It was argued that there was no evidence of any conduct that reached the threshold under the costs rules, and that the alleged breaches of orders were in fact due to the respondent’s conduct. Furthermore, it was said on the claimant’s behalf that the implementation of a deposit order on one minor part of the claim should not be taken as an indication that the whole case was unreasonable. In terms of the alleged protected act that was the subject of the deposit order, Mr Ogbonmwan submitted that “the claimant was not given the opportunity to prove his case, which leads to the question of impartiality and bias”. This last assertion is simply not true; we had a six day hearing, with documentary and oral evidence, and submissions from both sides, at which the claimant had every opportunity to put forward his case. Again, this leads us to the conclusion that we cannot rely on Mr Ogbonmwan’s representations as being credible, or indeed true.[102]In terms of a wasted costs order, Mr Ogbonmwan told us that “no money exchanged hands”, that he has known the claimant’s family for a long time, and that he is “someone they run to when people need support”. He said that the respondent’s request for a witness statement and detailed financial disclosure was “premature and unnecessary”.[103]His position was that the alleged breaches were due to procedural difficulties and were not deliberate but was a response to the respondent’s lack of transparency and co-operation. In terms of the numerous applications made by Mr Ogbonmwan, he stated that these were not obstructive, but procedural, were conducted in good faith and in line with the Tribunal rules. We find to the contrary, that the applications made, albeit permitted by the Tribunal Rules, were obstructive to the hearing. We make no finding as to whether they were done in good faith or not.[104]He went on to say that “it was Mr Hobbs who ran the CCTV for two days, intentionally eating into the time allowed for the claimant”. As above, the timetable for the final hearing is set out in our reserved judgment on liability, and will demonstrate that Mr Hobbs did not run the CCTV for two days. This is a further misrepresentation and untruth.[105]Mr Ogbonmwan made further submissions, accusing the Tribunal of bias. He stated as follows: “all of Mr Hobbs’ behaviour was tolerated by the Tribunal. This is one other reason why we consider this case should not have been heard by this Tribunal; because of what happened, on reflection it is very difficult to approach the Tribunal and understand the Tribunal would be fair in this case and we have seen that being demonstrated in the way the Tribunal heard the applications from the claimant today. Proper and fair mechanisms were not put in place to manage Mr Hobbs; he is too powerful, he has all the knowledge and the approach. Everything he said was admitted by the Tribunal; that is played out in the Tribunal”.[106]We consider that this is emblematic of how parties who act in an obstructive or unreasonable manner, who may not understand the rules and procedures as well as others, view Tribunals. Their opinion is that the Tribunal must be biased, as everything they say is dismissed, whereas everything said by the other side is accepted. However, the reality to an objective bystander is that everything one side says is rejected because it is misguided and without merit, whereas the other side’s arguments are cogent and meritorious.[107]At one point, Mr Ogbonmwan accused Mr Hobbs of being dishonest and misleading the Tribunal, in order to “make money for him and his family”. These were further unfounded, absurd allegations to make against an officer of the court.[108]One thread that ran throughout Mr Ogbonmwan’s submissions was that black people are disadvantaged in the justice system and that: “the justice system is not in [black people’s] interests. These individuals approach the Citizens’ Advice Bureau and unfortunately he did not get representation. The CAB gives representation to white folks...We have seen in the parliamentary investigation that was conducted by parliament, within the last 5 to 8 years, it was established that white lawyers don’t wish to take on black cases”.[109]At this point, the Tribunal did query this, as it was not an investigation with which the Tribunal was familiar. The Tribunal’s view is that Mr Ogbonmwan has his own agenda, and his own views on the Tribunal system and wider justice system being inherently racist. He used this hearing as an opportunity to air those views, despite those views not being relevant to the issues at hand.[110]Mr Ogbonmwan explained that he represented people “as a charitable channel” and that the charity is CAMC. He told us that he is recommended amongst the Black Christian community, but also that White people recommend him too. Despite a steer from the Tribunal that we wished Mr Ogbonmwan to stick to matters involved in this case, as opposed to others of his cases, he told us that the barrister in one of his other clients’ cases attempted the same type of behaviour of which he accused Mr Hobbs of being guilty.[111]Mr Ogbonmwan told us about work he had done in the Immigration Tribunal. He told us that the court in one case ended up apologising to him and stating that it was clear that he was kind and compassionate, and that there was no truth in the assertion that he was working for a profit. At this point, Mr Ogbonmwan started talking about Russia, stating that “we should not kill people”. The Tribunal attempted to bring Mr Ogbonmwan back to the matter in hand, specifically the point he had been making about not being paid by his clients.[112]Mr Ogbonmwan explained that his clients do provide him with food and pay for his transport and photocopying.[113]In ending his submissions, he stated to the Tribunal: “You made an example of defining the comments of by hook or by crook, but that was a statement being used as oppressive. In every circumstance, given the classist position that you and Mr Hobbs sat in, it was very easy to buy into whatever he was saying”.[114]Mr Ogbonmwan was directly asked again why there was no witness statement from the claimant. The Tribunal was told that the claimant had hoped that the postponement of this hearing would be agreed to by the respondent.[115]As outlined above, the Tribunal gave Mr Ogbonmwan the opportunity to swear to the truth of his submissions regarding the pro bono relationship between himself and the claimant, on oath or affirmation, given that he had failed to provide a witness statement, as ordered. Mr Ogbonmwan declined, stating that he was not willing to go under oath and be “ambushed” by crossexamination. At that stage, the Tribunal clarified that he was simply being asked whether he wanted to affirm or swear an oath that what he had already told us was true. Again, he declined, stating that he would not swear an oath until the outcome of the appeal was known. He also stated that he did not think it necessary to take an oath, given that he was not a witness but a representative. Respondent’s reply[116]Mr Hobbs was given the right to reply, given that he had made submissions first.[117]Mr Hobbs told us of another first instance case, Mrs L Oyebisi v Hyde Housing Association Ltd (2306525/2020 & 2305977/2020), in London South Employment Tribunal, heard by Employment Judge Wright. In that case, a £20,000 costs order was made against Mr Ogbonmwan’s client. One notable remark from the Judge was as follows: “unfortunately, and not for the first time, the claimant’s representative has misrepresented the discussion that has taken place and therefore the Tribunal cannot rely on anything Mr Ogbonmwan can say, but Mr Ogbonmwan cannot be trusted to tell the truth.”[118]In that case, the Judge recorded that Mr Ogbonmwan had made certain assertions about the respondent’ counsel that were repeated against Mr Hobbs in this case.[119]At paragraph 79 of that decision, it was recorded that Mr Ogbonmwan’s conduct was “unreasonable” and that there had been a “disregard for standards of reasonable behaviour”.[120]At paragraph 94, the Tribunal held that “furthermore, it was not clear whether Mr Ogbonmwan was acting in pursuit of profit. Neither the claimant nor his representative came prepared to answer that question”; much like in the index case. The Judge did record that the claimant had informed him that she had paid Mr Ogbonmwan around £5000, whereas Mr Ogbonmwan denied this assertion.[121]Mr Hobbs’ position was that “we have been here before” and that Mr Ogbonwan “leaves behind him a trail of unsuccessful claimants who foot the costs bill which he sidesteps by suggesting that he is not pursuing a profit. That needs to stop today”. Claimant’s reply[122]In relation to the Oyebisi case, Mr Ogbonmwan stated that the decision had been to conclude that he was not acting for profit. He went on to state that the Judge in that case “did not come to this conclusion honourably”, but that Mr Ogbonmwan had been added as an interested party but was not sent the correspondence, and was not given a chance to defend the costs order. We note that this is blatantly not the case: we explore the Oyebisi case in more detail below, but it is evident that Mr Ogbonmwan was aware of the hearing by very nature of having attended, and he was clearly given the chance to make representations.[123]He told us that he only saw the Oyebisi judgment three months ago and that “this is what they want the narrative to be of a black man”. He explained that the question the claimant in that case had been asked by the Tribunal was not “how much did you pay Mr Ogbonmwan” but “how much have you spent on the case”. Mr Ogbonmwan made reference to the Employment Judge finding that he (Mr Ogbonmwan) was on a “crusade”. The case of Oyebisi[124]In light of Mr Ogbonmwan’s reference to previous clients of his, the specific reference then of Mr Hobbs to the case of Oyebisi, and MR Ogbonmwan’s specific reply, we have considered the Costs decision, and underlying Strike Out Judgment and Reasons.[125]This was a case that was heard at London South Tribunal. The claims were struck out by order of 8 October 2021, on the grounds of: 125.1. The manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious; and, 125.2. The claimant had not complied with the Order of the Tribunal dated 9 April 2021.[126]This was following a public preliminary hearing on 8 October 2021. The reference to a crusade mentioned by Mr Ogbonmwan is as follows, at paragraph 4 of the Written Reasons sent to the parties on 12 May 2022: “The Tribunal was satisfied and as had been demonstrated over the two day hearing, that Mr Ogbonmwan sees this case as a crusade. He is not acting in the claimant’s best interests and is pursuing his own agenda against the respondent. His conduct has been disrespectful and that was evidence [sic] by him laughing and smiling when [Respondent’s counsel] was making his application. There has been a persistent disregard of the Tribunal’s orders and during the course of the hearing and flagrant breaches of protocol...”[127]The Written Reasons go on to state: “7. ...Even with the threat of the two claims being struck out, Mr Ogbonman continued to make scurrilous allegations, entirely without foundation. Furthermore he would not engage with the Tribunal when attempting to identify the issues, which was a matter which this hearing was clearly listed to consider. 9. The Tribunal accept the submission made about Mr Ogbonmwan’s repeated outrageous allegations and was taken to various examples in the bundle. He was warned, referring to the exchange the previous day when it was said that the Interim Relief application was concluded, it having been reconsidered and there had been no appeal. Mr Ogbonmwan was asked to move on and to respond to the application to reject the ET1 and he replied that the Tribunal was biased and had pre-judged matters. Despite that warning, he continued to make allegations against Judges and on this occasion [the respondent’s counsel]... 10 Mr Ogbonmwan repeatedly made misleading statements. He said for example Judge Andres agreed the claimant had made protected disclosures, she clearly said the opposite...15. Due to Mr Ogbonmwan’s disruptive and therefore unreasonable conduct, what should have been more than ample time of two days to deal with the five matters listed, resulted in unsuccessfully attempting to identify the issues at 1135am on the second day, when Mr Ogbonmwan did not rejoin and did not provide any explanation after a break (which was granted to assist the claimant).16. To conclude, Mr Ogbonmwan has demonstrated contempt towards the Tribunal and the processes to be followed...”.[128]In terms of the costs application. A hearing took place by CVP on 5 June 2023. The judgment sets out that the claimant was ordered to pay to the respondent the sum of £20,000. The respondent’s application for wasted costs against Mr Ogbonmwan failed and was dismissed. The Judgment and Reasons in that matter are twenty three pages long.[129]We highlight the following parts of the Judge’s reasons: 129.1. It was common ground between Mr Ogbonmwan and the respondent that, “although he is a lay representative, he had acted and continues to act for a number of claimants and as such, he is familiar with Tribunal proceedings and the standard of conduct required of representatives” - paragraph 8; 129.2. Mr Ogbonmwan told the Tribunal that he was acting via a charity called “CAMC” (Christ Ambassadors Miracle Centre) - paragraph 9; 129.3. “[Mr Ogbonmwan] said that he represented the claimant as a family friend of over 20-plus years. He said that he was not paid, but that he received expenses for things such as photocopying, taxis and hotels. The claimant said that she had paid Mr Ogbonmwan a sum of approximately £5,000 or just under that sum” - paragraph 10; 129.4. Mr Ogbonmwan accused the Tribunal and the Judge of bias and “an orchestrated conspiracy to avoid a fair hearing and entrenched white privilege” - paragraph 12; 129.5. In relation to an exchange about costs that had taken place at the previous hearing, “[u]nfortunately and not for the first time, Mr Ogbonmwan has completely misrepresented the discussion which actually took place. The result of that is that the Tribunal cannot rely upon anything Mr Ogbonmwan has to say” - paragraph 18; 129.6. The Judge found, in relation to the wasted costs order, that Mr Ogbonmwan’s conduct was unreasonable so as to be vexatious and that the conduct caused the respondent to incur additional costs. The application for wasted costs fell down on the third limb as to whether it would be just to make a wasted costs order. This was on the basis of litigation privilege, as the claimant did not waive privilege and it was not clear whether Mr Ogbonmwan in his conduct was acting on instructions. As such, the Tribunal gave him the benefit of the doubt – paragraphs 92 and 93; 129.7. The Tribunal was also unclear as to whether Mr Ogbonmwan was acting in pursuit of profit, as neither Mr Ogbonmwan nor the claimant attended prepared to cover this matter – paragraph 94. Legal framework[130]The applicable rules are as follows, under the new Employment Tribunal Rules 2024 (which mirror the rules under Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, rules 75 to 84: 73 –(1) A costs order is an order that the paying party make a payment to – (a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or (b) ... ... 74 - (1) The Tribunal may make a costs order ...on the application of a party ...(2) The Tribunal must consider making a costs order...where it considers that – (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim...had no reasonable prospect of success, or (c) ... 75 - (1) A party may apply for a costs order...at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order). 76 - (1) A costs order may order the paying party to pay (a) the receiving party a specified amount, not exceeding £20,000, in respect of th costs of the receiving party; (b) ... 78 – (1) A wasted costs order is an order against a representative in favour of any party where that party has incurred wasted costs. (2) The Tribunal may make a wasted costs order in favour of a party, whether or not that party is represented, and may also make such an order in favour of a representative’s own client.(3) A wasted costs order may not be made against a representative where that representative is representing a party in their capacity as an employee of that party.(4) In this rule, and in rules 79 (effect of a wasted costs order), 80 (procedure) and 82 (ability to pay), “representative” means a party’s legal representative or lay representative or any employee of such representative, but it does not include a person who is not acting in pursuit of profit with regard to the proceedings, A person acting on a contingency or conditional fee agreement is considered to be acting in pursuit of profit.(5) “Wasted costs” means costs incurred – (a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative, or (b) which, in the light of any such act or omission occurring, after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. 79 A wasted costs order may order a representative to pay the whole or part of any wasted costs of the party in whose favour the order has been made, or to disallow any wasted costs otherwise payable to the representative, including an order that the representative repay to their client any costs which have already been paid. The amount to be paid, disallowed or repaid must in each case be specified in the order. 80 - (1) The Tribunal may make a wasted costs order...on the application of a party. (2) A party may apply for a wasted costs order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (3) The Tribunal must not make a wasted costs order unless the representative has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in respect of the application or proposal. (4) The Tribunal must inform the representative’s client in writing of any proceedings under this rule and of any order made against the representative. 82 In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. Law – costs against a party[131]The relevant Rules are set out above. There are three stages to a costs application: 131.1. The Tribunal will determine whether or not the relevant threshold has been reached. In other words, the Tribunal will determine whether the claimant acted unreasonably in pursuing litigation through to a final hearing, and whether the claim had no reasonable prospect of success (“Stage 1”); 131.2. If at least one of the thresholds is met, the Tribunal will decide whether to exercise its discretion to make a costs order (“Stage 2”); 131.3. If the Tribunal decides to make a costs order, it will then determine the amount of any award (“Stage 3”). Stage 1 – the relevant thresholds[132]The burden of proof is on the applying party (here, the respondent) to prove that the Tribunal’s jurisdiction at Stage 1 is engaged – Haydar v Pennine Acute NHS Trust EAT 0141/17. Unreasonable conduct[133]The term “unreasonable” is to be given its normal meaning, and will not be interpreted as a synonym for vexatious – Dyer v Secretary of State for Employment EAT 183/83.[134]The Tribunal will need to give consideration to the “nature, gravity and effect” of a party’s unreasonable conduct – McPherson v BNP Paribas (London Branch) [2004] ICR 1398, CA. However, it is important not to lose sight of the wood for the trees, and to take an overarching view of the case – Yerrakalva v Barnsley Metropolitan Borough Council and anor [2010] ICR 420, CA (paragraph 41): “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been any unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had...”[135]Regarding an application against a party, it is not necessary for the Tribunal to limit itself to awarding costs caused by the conduct that is held to be unreasonable – McPherson, paragraph 41. No reasonable prospect of success[136]The focus under this ground is on the claim itself, judged on the information that was known or reasonably available at the commencement of litigation – Radia v Jefferies International Ltd EAT 0007/18. This is not a retrospective test: the Tribunal must consider how prospects looked before all the evidence and submissions were heard at the final hearing, and what view the claimant should reasonably have taken about his prospects in light of what he knew or ought to have known about the facts. Stage 2 – factors relevant to exercising discretion[137]It will be an error of law to miss out the second stage, and jump straight from establishing that a relevant threshold is met to determining the amount of any award.[138]The purpose of a costs order is to compensate the receiving party, not to punish the paying party – Lodwick v Southwark London Borough Council [2004] ICR 884.[139]In the case of Kopel v Safeway Stores plc [2003] IRLR 753, the EAT held that the rule of the Calderbank letter that applies in civil litigation has no place in the Tribunal. A party facing a costs application will not automatically be liable for costs just because the purported receiving party had written a letter alleged to have the effect of a Calderbank letter. The refusal of an offer to settle is however a factor to weigh into the melting pot at this second stage.[140]Conversely, the fact that a respondent has made an offer to settle shall not be taken as an indication that it considers the claim has some reasonable prospects – Vaughan v London Borough of Lewisham and ors [2013] IRLR 713.[141]Whether or not the purported receiving party has applied to strike out a claim on the basis that it had no reasonable prospects of success can be a factor to add into the balance at this second stage, although it is not determinative – AQ Ltd v Holden [2012] IRLR 648.[142]Under r82, the Tribunal may take into account a paying party’s ability to pay. However, it is permissible to weigh this against the need to compensate a receiving party who are left (unreasonably) out of pocket – Howman v Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12, paragraph 13: “In the final analysis, if the Tribunal decides to have regard to someone’s ability to pay in deciding what order for costs it should make, what it needs to do is to balance the need to compensate the litigant who has unreasonable been put to expense against the other litigant’s ability to pay. The latter does not necessarily trump the former, but it may do so”. Stage 3 – amount of costs order[143]The Tribunal may take into account a paying party’s ability to pay, however there is no obligation to do so under r82. It is however wise for a Tribunal to at least enquire as to the paying party’s means – Ono v NHS Leicester City [2013] ICR 91.[144]The Tribunal is not limited to consideration of a paying party’s ability to pay as at the date of the costs hearing. In Vaughan v London Borough of Lewisham [2013] IRLR 713, EAT, it was held that a Tribunal would not necessarily be wrong to make a costs order that a paying party could not, at the date of the order, afford to pay, if the Tribunal considered that at some point in the future, they may be able to pay.[145]If the Tribunal decides not to take into account a paying party’s ability to pay, it should explain why – Jilley v Birmingham and Solihull Mental Health NHS Trust and others UKEAT/0584/06 paragraph 44. Law – wasted costs against a representative[146]Wasted costs orders are not limited to legally qualified representatives; their remit covers lay representatives also. However, a wasted costs order may only be made against a representative acting in pursuit of profit.[147]In this scenario there is a separate three-stage test to apply, from Ridehalgh v Horsefield and Anor [1994] Ch 205: 147.1. Has the representative acted improperly, unreasonably or negligently? 147.2. If so, did that conduct cause the applicant to incur unnecessary costs? 147.3. If so, is it just, in all the circumstances of the case, to make a costs order for all or some of those costs?[148]The definitions for each of these three terms were set out in Ridehalgh as follows – page 232: ““Improper” means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty...Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. “Unreasonable” ... aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive...The acid test is whether the conduct permits of a reasonable explanation. ... ...we are clear that “negligent” should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession”[149]The threshold for making a wasted costs order, in particular the definition of unreasonable, is higher than the threshold for a costs order against a party. Another difference is that, for a wasted costs order, there must be a causal link between the costs and the conduct; as opposed to a costs order, in which this is a factor for consideration only.[150]If the case relates to pursuing a claim or defence that has no prospects, the question will be whether that was because the party insisted and the representative was simply following instructions, or whether the case was pursued because of the representative’s negligence or improper/unreasonable conduct. The former will merit a costs order, the latter is more likely to warrant a wasted costs order. Due to the effect of legal/litigation privilege, it will rarely be clear into which category a certain case falls and so applications are made against both a party and their representative. In such cases where there is lack of clarity due to legal privilege, the benefit of the doubt is to be given to the representative, and a costs order, not a wasted costs order, made.[151]In Ratcliffe Duce and Gammer v Mrs L Binns T/A Parc Ferme, Mr N Mcdonald UKEAT/0100/08/CEA at paragraph 19, Elias J held: “The notion that a wasted costs order can be made against a lawyer simply because his client is pursuing a hopeless case is entirely erroneous. Such conduct does not of itself demonstrate that their representative has acted improperly or unreasonably. Clients frequently insist on pursuing a case against the best advice of their lawyers”.[152]At paragraph 20 of Ratcliffe, Lord Hobhouse’s decision in Medcalf v Mardell [2003] 1 AC 120 was cited: “...The litigant is entitled to be heard: to penalise the advocate for presenting his client’s case to the court would be contrary to the constitutional principle to which I have referred. The position is different if the court concludes that there has been improper time wasting by the advocate or the advocate has knowingly lent himself to an abuse of process”.[153]At paragraph 21 of Ratcliffe, following on from the words of Lord Hobhouse, it was held that: “The distinction therefore is between conduct which is an abuse of process and conduct falling short of that.”[154]Rule 74(2)(a) provides a route to make a costs order against a party for their representative's conduct where that conduct is vexatious, abusive, disruptive or otherwise unreasonable. Conclusions – costs application Stage 1a – did the claim have no reasonable prospects of success[155]We will consider each claim in turn. First, we make a general point. The respondent sent to the claimant a “without prejudice save as to costs” letter dated 6 September 2023. It set out therein a summary analysis of the claimant’s claims and why they were bound to fail. At this stage, we consider that, had the claimant reasonably reviewed his prospects with his representative (as he should have done) he would and should have reached the conclusion that his claims had no reasonable prospect of success. Broadly, the analysis given within the respondent’s letter was the same as the analysis of the Tribunal following the final hearing.[156]As at 6 September 2023, the claimant had all the evidence disclosed that formed the bundle used at the final hearing. He knew therefore what all the relevant contemporaneous documentary evidence stated, and had seen the CCTV footage. Even without the documentation received following the disclosure exercise, had he reasonably examined his own knowledge of events, he should reasonably have reached the conclusion that his claims were without merit. Unfair dismissal and breach of contract (notice pay)[157]We accept that this claim never had any reasonable prospect of success. It was based on lies, given that the claimant knew that he was guilty of the conduct for which he was dismissed. Furthermore, he should have known that his conduct was sufficient to amount to conduct meriting summary dismissal. Direct discrimination[158]The claims against Ms McCreadie and Mr Mansfield clearly never had any prospect of success. The reason they failed was because of the claimant’s view, given freely in cross-examination, that those two individuals had not discriminated against him. No evidence was given as to the reason for the claimant’s change of heart on this issue. We therefore conclude that the claims against those two individuals had no reasonable prospect of success from the get go.[159]In terms of the claims against Mr Crask and Mr Elliott, we concluded at the final hearing that the allegations did not get past the initial burden of proof. In other words, the claimant had not put any good evidence before us from which we could have concluded that Mr Crask or Mr Elliott had contravened the Equality Act 2010.[160]We consider that the claimant should have reviewed his case at the latest on 6 September 2023, and ought to have reached the conclusion that he had no good evidence to put before the Tribunal on this matter. This is particularly so given he had an experienced lay representative advising him. The claimant ought to have come to the conclusion that these claims were bound to fail and had no reasonable prospect of success, particularly on receipt of the 6 September 2023 letter from the respondent. Victimisation[161]We consider that the claimant should have been aware, with advice from Mr Ogbonmwan, that the alleged protected acts were unlikely to amount to protected acts at law. This is particularly true given that a deposit order was made on this point in relation to one of the two alleged protected acts.[162]In any event, and more importantly, as we have set out above, the claimant knew of the reason for his dismissal. He knew he was guilty of the misconduct alleged. As such, he knew that his dismissal (the only pleaded detriment under the s27 EqA claim) was not because of any protected act. As such, he knew that this claim had no merit. Failure to make reasonable adjustments[163]We conclude that, had the claimant reasonably reviewed his prospects on this claim, he ought to have come to the conclusion that he would not be found to be disabled by way of his stress, and therefore this claim would fail.[164]Furthermore, on the documentary evidence, that evidence being disclosed prior to 6 September 2023, and with his knowledge of the facts, the claimant ought to have concluded that this claim had no prospects of success. This assessment should have occurred, at the latest, on receipt of the 6 September 2023 letter from the respondent. Stage 1b – did the claimant act unreasonably in pursing the litigation[165]The conduct relied upon by the respondent was the failure of the claimant to accept the offer of 6 September 2023, and to walk away from litigation.[166]The refusal of an offer, in and of itself, does not automatically mean that a claimant has acted unreasonably and a costs order will be made (Kopel). We understand that when such costs warning letters are received, they are not always considered to be sent in good faith and the analysis of the merits not always trusted by the recipient. It cannot be said that the rejection of the letter in and of itself was unreasonable so as to reach the threshold required by this limb of the test. Stage 2 – should we exercise discretion[167]We consider that this is a case in which we should exercise our discretion to make a costs order. We take into account the following matters: 167.1. The respondent had sent a costs warning letter, and attempted to strike out/obtain a deposit order in relation to certain of the claims; 167.2. The Judge of her own volition considered certain of the claims for strike out and deposit order at a preliminary hearing; 167.3. We take into account that the unfair dismissal claim was mounted on lies, specifically the untruths that the claimant was not the individual in the CCTV and that he was not guilty of damaging the pallet truck; 167.4. We take into account that the majority of the discrimination claim should never have been brought, on the basis of the claimant’s own evidence that Ms McCreadie and Mr Mansfield had not discriminated against him. To accuse individuals of discrimination when that accusation is not believed in by the claimant is to put those individuals to the stress and burden of such allegations wholly unnecessarily.[168]We have not exercised our discretion to consider the claimant’s ability to pay any costs order. This is because we gave the claimant the opportunity to provide a witness statement and he failed to do so in breach of our order. As such, we have no evidence of his financial means or ability to pay, and do not wish to speculate on such matters. The claimant was given the chance to provide evidence by way of a statement, and he had a representative to make any representations or produce any documentary evidence as to the claimant’s means. However, the Tribunal has seen nothing. Further, the claimant failed to attend today. Had he attended, and despite not providing a witness statement, he may well have been given the opportunity to give evidence on oath as to his means. Whether he was advised to stay away on the basis that this would inhibit us making a costs order, decided to stay away on his own volition, or there was a miscommunication about the postponement between him and Mr Ogbonmwan, we find to be irrelevant and in any event to determine the reason behind his absence would be to speculate. The point is that we have no evidence before us of the claimant’s ability to pay, and as such do not take that ability into account. Stage 3 – amount of the order[169]The respondent seeks its full costs of this litigation. We are not satisfied that this would be just. We have found that, at the latest, the claimant should have reasonably reviewed his claim and concluded it had no merits on receipt of the letter from the respondent dated 6 September 2023. We understand that, by that time, the respondent’s solicitors’ fixed fee was incurred in full, and as such we do not award that figure.[170]We do however consider that, on a reasonable review, the claimant should not have proceeded to the final hearing. As such, we are satisfied that it is appropriate to award the respondent the costs incurred as counsel’s fees for the final hearing. We will return to the point as to whether the claimant should pay for the initially envisaged five day trial, or whether he should also be liable for the sixth day too, once we have considered the application against Mr Conclusions – wasted costs In pursuit of profit[171]In total, Mr Ogbonmwan was given three opportunities to swear to the truth of the information he gave us about working for the claimant for no pay: 171.1. In the form of a witness statement, as per the order of 14 August 2024; 171.2. In the hearing, when the Tribunal asked if he wished to swear to the truth of his submissions on this point; 171.3. In the hearing, when the Tribunal clarified that he could simply swear to the truth of what he had already told the Tribunal, in other words, without being cross-examined.[172]Mr Ogbonmwan willingly refused to take up each of those three opportunities.[173]We find that this is sufficient basis on which to draw the inference that Mr Ogbonmwan is not being truthful to this Tribunal. We see no good reason why he would otherwise refuse to swear to the truth of his submissions. This conclusion is supported by the occasions, cited in the course of our judgment above, on which Mr Ogbonmwan has misrepresented matters that are plain from the documentation or simply misrecord what happened when this Tribunal was present and aware of the facts.[174]We have no evidence from the claimant as to the funding relationship or lack thereof between himself and Mr Ogbonmwan, despite having the opportunity to provide us with the same by way of a witness statement (an order that was not complied with) and by attendance at the costs hearing.[175]The only information (notably not in the form of evidence but as submissions) that we have is from Mr Ogbonmwan which, as above, we do not accept as truthful.[176]We set out above in some detail the decision in the case of Oyebisi. The purpose is not to conflate this case with that, but to demonstrate that there appears to be a modus operandi to Mr Ogbonmwan in his representation of his clients. There also appears to be similarity in the account he gave in that case and this, as to the relationship between him and his client.[177]Mr Ogbonmwan made the same submissions at the Oyebisi hearing as at the index one: namely that he had been friends with the claimant’s family for years, and that he was reimbursed for items such as food and transport. Moreover, in the Oyebisi case, Mr Ogbonmwan made similar baseless allegations against the respondent’s counsel and judiciary as he did against Mr Hobbs and the Judge in the case before us.[178]In short, we consider that the account of Mr Ogbonmwan’s conduct and submissions in the Oyebisi case only goes to support our decision to draw an inference from his conduct before us at the costs hearing.[179]We are concerned that Mr Ogbonmwan’s conduct in the proceedings before us is not unique or novel, but is a general modus operandi. The pattern is that his clients’ claims fail, the respondent makes an application for costs and, at the costs hearing, Mr Ogbonmwan is absolved of any risk of being the subject of a wasted costs order as there is no evidence that he is being paid for his services. This means that any unreasonable conduct by Mr Ogbonmwan is paid for under a regular costs order against his client, and he escapes being the subject of a wasted costs order.[180]However, we consider that this case is different, in that we have sufficient facts before us from which we can draw an inference that Mr Ogbonmwan was being paid. We find this to have been the case and conclude that Mr Ogbonmwan acted in pursuit of profit in the index matter.[181]As such, we are able to make a costs order against Mr Ogbonmwan, if appropriate to do so, under rule 78(4) of the 2024 Rules.[182]We therefore turn to the question of whether Mr Ogbonmwan’s conduct in his representation of the claimant reached the threshold required of improper, unreasonable or negligent conduct. Improper, unreasonable or negligent[183]We conclude that Mr Ogbonmwan’s conduct at various stages of this litigation has reached the heightened definition of “unreasonable”. We need not determine the motivation behind his conduct: even if he is right, and his conduct comes from excessive zeal, this does not preclude a finding of unreasonableness. We cannot see that there is any reasonable explanation for some of his conduct. Causation[184]In terms of the second and third preliminary hearing, we refer to our findings at paragraphs 25 above. There has been no evidence, and no submissions, to the effect that Mr Ogbonmwan’s preparation for these hearings was inhibited by the conduct of his client. For example, there is nothing to suggest that Mr Ogbonmwan was unable to get clear instructions from his client in relation to the List of Issues.[185]In any event, we take into account that Mr Ogbonmwan’s lack of preparation and lack of clear understanding of his client's case at the first preliminary hearing can only be from a lack of case preparation on his part. His client had completed the claim form with his assistance: Mr Ogbonmwan’s job as representative then was to work with the other side to produce a list of issues to reflect the claims within that claim form. Although we understand that a representative may need final “sign off” from his client, he should be in a position to work with the other side to disseminate the claim form into a workable List of Issues, even if it is subject to final approval from the client. As such we are satisfied that the unreasonable conduct leading to the need for a second and third preliminary hearing is not affected by litigation privilege and was caused by Mr Ogbonmwan himself.[186]In terms of the sixth day of the final hearing, time was added to the final hearing by Mr Ogbonmwan’s conduct, as we have set out at paragraph 27 above.[187]In terms of litigation privilege, we reach the following conclusions: 187.1. On Day 1, making unmeritorious applications that meant we did not start evidence until 1255hrs on Day 2. We accept that we do not and cannot know whether these applications were made on the claimant’s instructions, or of Mr Ogbonmwan’s own volition; 187.2. Interrupting and interjecting during his client’s cross-examination by Mr Hobbs. The vast majority of those interjections (if not all of them) were unmerited and not sustained. This cannot have been on his client’s instructions, as his client and Mr Ogbonmwan would have been unable to discuss the case whilst the claimant was giving evidence and being cross-examined; 187.3. Being repeatedly late for the agreed start time on numerous days of the final hearing. We consider it beggars belief that the claimant would have instructed Mr Ogbonmwan to be deliberately late repeatedly as a tactic. We consider that this lateness was the responsibility solely of Mr Ogbonmwan; 187.4. Repeated failure to comply with the Tribunal’s timetabling of the final hearing. Again, we consider that it would beggar belief that the claimant would have specifically instructed Mr Ogbonmwan to have flouted the Tribunal’s timetables. We consider that it is for a representative to manage the time allocated to them for questioning of witnesses; 187.5. Making numerous unmeritorious applications through the course of the final hearing, as recorded in the Reserved Judgment on liability. We once more accept that we cannot be clear as to whether these applications were made on the instructions of the claimant or of Mr Ogbonmwan’s own volition; 187.6. Making spurious and wholly unfounded allegations against Mr Hobbs, including accusing him of white supremacy and threatening to report him to the Bar Council (see paragraphs 74 to 86 of the Reserved Judgment). Even if Mr Ogbonmwan was instructed to make such damaging and insulting assertions, we consider that Mr Ogbonmwan has sufficient experience as a lay representative to understand that he has a duty to the Tribunal to follow and further the overriding objective as a representative of a party to litigation. We consider it highly unlikely that the claimant instructed Mr Ogbonmwan to make these spurious allegations of his own volition.[188]Taking all the facts of this litigation in the round we conclude that Mr Ogbonmwan’s conduct, which directly led to more Tribunal time and more costs being spent, was an abuse of process. Just in all the circumstances[189]We consider that it is just in all the circumstances to make a wasted costs order against Mr Ogbonmwan for the following reasons: 189.1. He has a modus operandi which, unless a wasted costs order is made, would lead to his client paying for conduct which we consider is the fault of Mr Ogbonmwan; 189.2. His conduct throughout this litigation has fallen dramatically below the standard we would expect from any lay representative, particularly one who is experienced in that role and familiar with Tribunal process; 189.3. Mr Ogbonmwan needs to understand that he cannot act in this manner with impunity and without consequences.[190]We have not taken Mr Ogbonmwan’s ability to pay into account on making this order. We did not have any evidence before us of his current means or his current or future ability to pay.[191]Although Mr Ogbonmwan was not specifically asked by the Tribunal to address the issue of ability to pay, he had the reasonable opportunity to address us in response to the wasted costs application in any way he felt fit. In any event, he refused to give evidence on oath or affirmation, or to provide a witness statement. Both modes would have been capable of being used to put before the Tribunal evidence of his means, had he chosen to do so. He did not, as such we are without any such evidence. Conclusion – amount of awards[192]As above, in principle, we consider that the claimant should pay the respondent’s costs of the final hearing. However, we have concluded that the reason it expanded from a five day to a six day hearing was the fault of Mr[193]We therefore conclude that the claimant should pay for the first five days of trial, as that was the planned length of the hearing. Mr Ogbonmwan should pay for the sixth day of trial.[194]Mr Hobbs’ trial fee did not change with the addition of an extra day. As such, we calculate the daily fee for Mr Hobbs as being (£15,750 + VAT)/6 = £2625 + VAT = £3,150.[195]Therefore, in relation to the final hearing fee; 195.1. The claimant will be liable for (5 x £3,150 =) £15,750 for Days 1 to 5 of the final hearing; and, 195.2. Mr Ogbonmwan will be liable for £3,150 for Day 6 of the final hearing.[196]Mr Ogbonmwan is also liable, we conclude, for the respondent’s costs of the second and third preliminary hearings, that being (£2,250 + £1,500) + VAT. That equates to £4,500.[197]In total therefore, the wasted costs order against Mr Ogbonmwan stands at (£3,150 + £4,500 =) £7,650. Approved by