A Chinnasamy v University of Edinburgh: 4103778/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103778/2022

Between

Alegesan ChinnasamyClaimant

University of EdinburghRespondent

Before

Employment Judge M A Macleod

Date 2 July 2024

JUDGMENT

The Judgment of the Employment Tribunal is that the respondent’s application for strike-out of the claimant’s claims is refused, at this stage.

REASONS

1 . In this case, the respondent made application to the Employment Tribunal for strike-out of the claimant’s claims under Rule 37 of the Employment Tribunals Rules of Procedure 2013, on 20 December 2022. ETZ4(WR)

[2]A Preliminary Hearing was listed to take place on 23 February 2023. Owing to the claimant’s residence in Chennai, India, the Tribunal directed that the Hearing should take place by Cloud Video Platform.

[3]The Tribunal also directed that the Hearing should proceed by way of submissions only by the parties, but that if the claimant required to give evidence on any matter during the course of the Hearing, it would be necessary to adjourn the Hearing to secure the consent of the Government of India to the claimant giving evidence under oath or affirmation from India in these proceedings. As it turned out, the Hearing was able to proceed by way of submissions only.

[4]The respondent provided an electronic bundle of documents for use at the Hearing, if required, and indeed, reference was made to the documents therein during the Hearing by the respondent’s solicitor.

[5]It is appropriate, then, to set out the terms of the application, the submissions made by both parties, a short summary of the relevant law and the Tribunal’s decision, with reasons. The Application

[6]The respondent’s application was made by email by their solicitor, Ms Coutts, on 20 December 2022, and was duly intimated to the claimant. The basis of the application was said to be that(1) the claims have no reasonable prospect of success,

(2) the manner in which they have been conducted has been unreasonable, and

(3) the claimant has failed to comply with numerous Tribunal Orders.

[7]The application set out the background of the case, and referred to the Orders issued by the Tribunal to the claimant to provide further and better particulars of his claim, and his responses.

[8]She pointed out that the claimant was ordered by the Tribunal to provide further and better particulars of his claim within 21 days of 23 September 2022 (69-70). Although the claimant responded to the orders, he did not do so in a format which was satisfactory to the Tribunal. At a further Preliminary Hearing on 21 November 2022, further case management orders were issued to the claimant requiring him to answer specific questions relating to automatic unfair dismissal, by 6 December 2022.

[9]Ms Coutts said that the claimant provided emails to the Tribunal and to the respondent on 8, 12 and 13 December 2022. Those responses were late, incomplete and failed to answer the questions put to the claimant. The respondent was not content for these to be accepted as further and better particulars of the claim.

[10]With regard to the automatic unfair dismissal claim, she submitted that the claimant referred to a grievance which he claimed was lodged on 10 February immediately prior to his dismissal, but that the grievance was not received until after the dismissal. The remaining alleged qualifying disclosures were all made after the claimant’s dismissal. The respondent continued to oppose any amendment to the claimant’s claim for unfair dismissal to rely upon whistleblowing as the reason for dismissal, a substantial new cause of action, not contained in nor based upon facts pled in the ET1 .

[11]With regard to the indirect discrimination claim, she pointed out that the claimant made reference to a number of written policies but failed to specify what aspect of the policy he was relying. The PCP remains unclear. Since the claimant maintained that the respondent’s policies had a disproportionate impact upon overseas nationals, rather than those sharing the same protected characteristic as the claimant (namely, being Indian), there is no disadvantage properly pled.

[12]With regard to the victimisation claim, the claimant makes reference to alleged protected acts, not all of which amount to protected acts. He also pleads a number of detriments, but some of those were detriments for which the respondent could not be held responsible, for example relating to government policy, or events prior to the alleged protected acts.

[13]With regard to the harassment ciaim, the claimant has not, she submitted, provided any further specification in relation to this claim.

[14]Ms Courts then said that the respondent was being put to considerable expense in considering the claimant’s responses, given their scope, having attended two Preliminary Hearings to try to understand the claimant’s claims. No progress has been made despite the efforts of the 5 Tribunal.

[15]Any financial losses suffered by the claimant appear to be minimal, and a fair dismissal process was followed. As a result, she submitted that the claimant’s claims had no reasonable prospect of success. It would be consistent with the overriding objective of the Tribunal to strike out the 10 claimant’s claim in order to save expense by avoiding further unnecessary proceedings and dealing with the claim in a way which is proportionate to the complexity and importance of the issues. Submission - Respondent

[16]The Hearing before me on 23 February 2023 proceeded by CVP. The claimant appeared on his own behalf, and Ms Courts, as before, appeared for the respondent.

[17]Ms Courts presented a lengthy written submission, cross-referenced to the bundle of productions. She spoke to that submission concisely, and invited the Tribunal to strike out the claimant’s claims.

[18]A short summary of Ms Courts’ submission, which followed and expanded upon the terms of her application, is set out here.

[19]She submitted that the Tribunal had no jurisdiction to hear the claimant’s claim of automatic unfair dismissal as it had been submitted out of time. The Tribunal will address this point in its decision section below.

[20]She also argued that this claim should be struck out as it has no reasonable prospect of success. His grievance appears to be the qualifying disclosure relied upon, but the grievance was not seen by Ms Murphy before the claimant’s dismissal. The respondent had serious concerns about the claimant’s performance prior to the grievance being lodged, and he was invited to the probationary review meeting on the basis that dismissal could be the outcome of the meeting.

[21]In the alternative, she submitted that the claimant had failed to comply with the orders of the Tribunal, both the Orders issued by Employment Judge Sangster on 23 September 2022 and those issued by the sitting Judge on 22 November 2022.

[22]Finally, on this claim, Ms Coutts argued that the claimant had conducted the proceedings in an unreasonable manner, by failing to address the questions put to him by the Employment Tribunal.

[23]Again, Ms Coutts submitted that the claim of discrimination on the grounds of race should be struck out on the basis that it had no reasonable prospect of success.

[24]The claimant failed to answer the clear and concise questions issued by Employment Judge Sangster on 28 September 2022, though did provide a 14 page response. He was then asked to reformat his response, and provided a further 7 page response, but did not set out that response by reference to the Orders.

[25]He was required to provide further specification by the sitting Judge on 21 November, by 6 December. He provided specification of his claim of race discrimination on 13 December. Although he appeared to be relying upon his dismissal as an act of race discrimination, Ms Coutts argued that he had failed to answer the questions put to him by the Tribunal, and that it is not clear why he regards his dismissal as an act of direct race discrimination. The remaining acts of alleged race discrimination all relate to incidents which the claimant claimed occurred after his dismissal.

[26]His claim of direct discrimination on the grounds of race should therefore be struck out on the grounds that it has no reasonable prospect of success. He has failed to specify why he argues that the dismissal amounted to direct race discrimination, despite being afforded multiple opportunities to do so.

[27]In the alternative, the claimant has failed to comply with Orders of the Tribunal, and has conducted the proceedings unreasonably.

[28]Ms Coutts also made the same submissions in relation to the claims of indirect discrimination on the grounds of race and of victimisation on the grounds of race. In addition, she sought strike out of the claimant’s claim of harassment on the grounds of race, for the same reason. Submissions - Claimant

[29]The claimant responded to the respondent’s submissions orally before me. Again, a short summary of his submissions follows.

[30]He asked the Tribunal to consider the dates in this case, and to find that he had presented his claim to the Employment Tribunal within the statutory time limits, including the ACAS Early Conciliation process.

[31]He went on to say that every time the Tribunal had asked him for information, he had responded in time, unless there was a reason for the delays. He pointed out that living in India the time difference requires to be taken into account.

[32]With regard to the grievance email, he maintained that there is clear evidence that the respondent received that email at 10am, prior to the dismissal meeting. He said that she probably did not read it before the dismissal meeting but cannot say that she did not receive it before then. He also pointed out that he lost access to the respondent’s email portal.

[33]The respondent breached multiple probationary review policies. The claimant’s line manager said that he had raised performance issues prior to the meeting, but this was misleading. He found that Sarah Matthew had found the claimant to have been aggressive, but the claimant submitted that this could be easily dismissed. There was no indication in the meeting he had that that was the case.

[34]The claimant submitted that the respondent was trying to navigate a way to victimise him. It was all very clear. They said that he was being confrontational, but the claimant argued that people with vested interests can make up reasons. He maintained that he had substantiated line manager falsification. Susan McNeil was directly involved in his case, and based on her views the dismissal was carried out.

[35]On 2 occasions, he said, he had submitted a discrimination survey. The Institute is a small institute, and he was a single employee. He repeated that it was “all very clear”.

[36]The claimant sought to make reference to a different case in which a claimant (by the name of Putter) had raised an Employment Tribunal claim against the respondent. Ms McNeil was involved in that case, and was found to have breached some Tribunal Orders. Ms Coutts, the respondent’s solicitor, had come in defence of her actions.

[37]The claimant said that he is a foreign national, selected for the post purely due to his merits. Nobody else could be found for the post within the UK. Everything went “pear-shaped” within 2 months. His line manager raised concerns based on falsified information. He argued that the respondent will struggle with the evidence on the basis that there have been clear breaches of University policies and evidence of discrimination.

[38]Citing performance as a reason for dismissal is discrimination when there are no credible performance issues.

[39]He said that he provided simple information to the Tribunal, as much as he could. It was not easy to provide a chronology.

[40]With regard to his victimisation claim, he said that some of this was not included. To say that he was being confrontational is wrong - it can readily be seen from the meetings that he was not, having recordings of those meetings available. 41 . The claimant went on to say that he could have added more information to the detail he provided in November 2022, and that it would have been easy for the respondent to seek further clarification. In fact, they did not but simply sought, after 2 months, to apply for strike-out of his claim. Every part of the information was carefully drafted and set out by date and event mentioned. He suggested that Ms Coutts had not followed the process herself.

[42]He alleged that it was the respondent who had delayed the process. He totally denied that he was failing to comply with the Tribunal Orders. He gave specific answers to each question with well-justified information. By contrast the respondent has given very little detail apart from the ET3 presented.

[43]He pointed out that as a non-lawyer it was difficult for him to complete the online grievance form. He criticised the format relied upon by the University.

[44]He said that he was unaware of what a PCP was until he was informed of it by the Tribunal. He believes that the respondent’s probationary policies are the PCP. He could not accept that it was right to say that a breach of a statutory right would be acceptable, but the University appeal outcome did say that.

[45]He strongly objected to the application for strike-out. He spoke about NDAs and gagging orders. He said he worked loyally for the respondent, and that there is no credible argument or evidence which his line manager could use in relation to competence or performance. The claimant argued that he should be allowed to take this case further.

The Relevant Law

[46]Rule 37(1) of the Employment Tribunals Rules of Procedure 2013 provides: “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- ...(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) for non-compliance with any of these Rules or with an order of the Tribunal;. . . (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). ”

[47]Rule 37(2) provides: “A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. ”

[48]In this case, the parties were in agreement that the Tribunal may deal with the matter in writing without the requirement for a hearing.

[49]In Blockbuster Entertainment Ltd v James

2006 IRLR 630

CA, the Court of Appeal found that for a Tribunal to strike out a claim based on unreasonable conduct, it has to be satisfied that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, striking out must be a proportionate response.

[50]The court went on to say (paragraph 21): “The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact - if it is a fact - that the tribunal is ready to try the claims; or - as the case may be - that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. ” 51 . Sedley LJ, in Bennett v Southwark LBC

[2002] ICR 881

, considered the question of proportionality in the context of that appeal: “But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the descriptions scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it. Here, as elsewhere, firm case management may well afford a better solution. ...”

[52]The case of Faron Fariba v Pfizer Limited & Others

UKEAT/0605/10/CEA

was a case in which the EAT found that an Employment Judge was entitled to strike out claims by a claimant who had demonstrated by her disregard for Tribunal orders and the allegations made in correspondence against the respondent, their solicitors and the Tribunal that she was incapable of bringing her complaints to a fair and orderly trial.

[53]In reviewing the claimant’s conduct, Mr Justice Underhill noted: “Dr Fariba said at this hearing that the Tribunal was being distracted from dealing with her employment claim. I entirely agree with that statement, but in my judgment it is Dr Fariba who has not been focussing upon the specific legal claims that she wishes to have the Tribunal determine, but has consistently sought to divert attention from them by raising peripheral issues and making extensive and excessive allegations. ”

[54]At a later stage in the judgment, Mr Justice Underhill said: “This is not... a case of the (not uncommon) kind where a litigant in person fails to meet deadlines and/or behaves unreasonably or offensively but is nevertheless doing his or misguided best to comply with the directions set by the tribunal in order to get to trial. Instead, the scatter of allegations of misconduct, the applications for a stay, the pursuit of other proceedings, the threats of resort to criminal or regulatory sanctions, clearly indicated that the Appellant’s focus was entirely elsewhere and that if the case remained live she would, if I may use my own language, continue to thrash around indefinitely. That is why, and the sense in which, the Judge concluded that a fair trial was impossible. ” Discussion and Decision

[55]The respondent makes an application for strike-out of the claimant’s claims on the basis that the claims lack reasonable prospect of success, that the claimant has conducted the proceedings unreasonably and that he has failed to comply with numerous Tribunal Orders.

[56]It is important to consider the different parts of the claimant’s case separately, in the context of the applications, before reviewing the Tribunal’s conclusions and determining whether the claims or any part of them should be struck out.

[57]However, prior to addressing these points, it is important to note that at the start of her submissions, Ms Coutts raised a number of points about the responses provided by the claimant to the Tribunal and the timing of those responses, on the basis that they were outwith the statutory deadline for such claims and should therefore not be considered as the Tribunal lacked jurisdiction to hear them.

[58]The difficulty with this submission is two-fold: firstly, there was no notice given to the claimant that this Hearing would address the question of time bar; and secondly, if there had been, the Hearing could not have proceeded, on the basis that the Tribunal would have required the claimant to give evidence specifically on the question of time-bar. The claimant could not have given evidence at this Hearing, on the basis that permission has not yet been obtained from the state of India for parties or witnesses to give evidence remotely from India to a Hearing in Scotland.

[59]Accordingly, the Tribunal has not taken a view on any time-bar issues which may arise from the claimant’s responses to the Tribunal’s Orders. The decision which follows proceeds on the basis that the claims are as set out in the claim form and the additional information provided by the claimant. That does not mean that the Tribunal accepts those responses, at least to the extent that they introduce or expand upon the claims already made, but that the decision is made on the application presented and based on the full information provided by the claimant. Automatic unfair dismissal

[60]Ms Coutts’ first submission was that the claimant’s claims have no reasonable prospect of success in this case.

[61]The claimant’s claim of automatic unfair dismissal is based on the disclosure of information in his grievance, immediately prior to his dismissal, together with a number of other documents, namely, his appeal against dismissal, his probation review meeting notes with additional information and supporting documents presented to the investigation team and appeal committee members at the University, as well as the interview with the investigation officer where he had informed HN (his line manager) of wrongdoings, though without using the word “whistleblowing” (127). The respondent’s position is that the other disclosures alleged took place after the decision to dismiss him, and therefore could not form part of the reason for his dismissal.

[62]They also say that the dismissing officer did not see the grievance prior to making the decision to dismiss the claimant. The claimant accepts that this is probably true, but insists that the grievance was presented prior to the dismissal decision.

[63]In my judgment, the claimant’s grievance, if it is relied upon as the basis for the protected disclosures made by the claimant, was received by the respondent prior to the decision to dismiss him. The respondent’s position is that the dismissing officer did not see it before making the decision. If that is true, then the claimant’s grievance cannot form part of the decision-making process.

[64]However, the crucial issue here is whether this is correct. The respondent has stated that this is the position but no evidence has been led on this matter, and while the claimant accepts that it is probably true that the dismissing officer did not read the grievance before reaching a decision, he does not admit this to be the case (on the basis, presumably, that he simply cannot know). The issue cannot be resolved without hearing the witness under oath or affirmation.

[65]It does appear that the other disclosures alleged by the claimant (A)(ii)-( v) were not conveyed to the respondent until after the decision to dismiss. The dates are set out on 128 and 129 of the bundle of productions. Other than the disclosure of the grievance, the other disclosures are all said to have taken place after the dismissal of the claimant.

[66]I deal with the question of strike-out below. Indirect Discrimination

[67]The claimant provided a timeline (131ff) in response to the Tribunal’s Order under this heading.

[68]He then set out, in answer to the question “What was the relevant provision, criterion or practice (POP) applied by the respondent?” a list of 3 documents:(i) Interim Guidance for Managing Probation sent on 8 February 2022;

(ii) Summary of conditions of employment for grades 6 to 10 sent on 30 November 2021 ; and

(iii) Contract of employment sent on 30 November and 9 December 2022.

[69]The group to which the PCP was applied, he said, was "Employees on probation in grades 6 to 10”, and the protected characteristic relied upon was “Race & nationality”.

[70]He went on, when asked to identify the particular disadvantage to people of the same protected characteristic as his, to say that the documents which he referred to were not discriminatory per se, but disproportionately affected “overseas nationals with protected characteristics (nationality)” (134).

[71]He appeared to suggest, then, that due to his need to secure certain assurances from his line manager, he was more reliant or dependent on him for the renewal of his employment contract and sponsorship to work in the UK; and that any formal complaint against his line manager would bring adverse repercussions in various forms, including additional workload, unjustified insults, falsifications, references for future jobs, career loss and family consequences. He went on to describe it as “modern slavery”.

[72]Reviewing the claimant’s complaints under this heading, there are two main criticisms raised by the respondent

[73]Firstly, the respondent maintains that the protected characteristic relied upon by the claimant, of race, as an Indian citizen, is different to the protected characteristic of the group which is substantially disadvantaged by the PCP, that is, overseas nationals. The respondent submitted that his claim is bound to fail as it implies that not only does any PCP relied upon place the claimant at a particular disadvantage, but also disadvantages those who do not share the protected characteristic relied upon. As I understand it, the respondent’s argument is that the claimant is relying upon his Indian race and nationality in this case, but pointing to a disadvantage which applies to “overseas nationals”, a much wider group which includes many nationalities which do not share the same protected characteristic as he has.

[74]Secondly, the respondent argues that, in any event, the responses to the Tribunal’s Order fails to address the points therein and therefore his claim remains unclear and insufficiently specified.

[75]The claimant, while an intelligent and highly qualified person in his field, is an unqualified and unrepresented claimant. It is important to take account of this in determining the Tribunal’s response to this application. The formulation of a PCP is a complex legal matter, and while there is a limit to the latitude which can be granted to any party in proceedings such as these, the Tribunal requires to place parties, so far as possible, on an equal footing, in line with the overriding objective of the Tribunals Rules of Procedure.

[76]In my judgment, the claimant’s reference to the substantial disadvantage applying to overseas professionals, rather than those specifically sharing his nationality or race, does widen the field referred to beyond his complaint, and rather confuses matters. However, the claimant has clearly identified himself as being of Indian race and nationality, which is the foundation of his claim of race discrimination, and accordingly, it is my view that the claim of indirect discrimination should be interpreted according to that initial statement. As a result, I consider that the claimant’s complaint here is that the PCPs (to which I shall return) placed him as an Indian person by race and nationality at a substantial disadvantage when compared with British people. The difficulty about that is that he does not plead that - he identifies the disadvantage as applying to overseas nationals in general, rather than specifically to those who share his protected characteristic - and perhaps more fundamentally, that he complains that the category of people to whom the disadvantage applies is so broad that it covers many who do not share his protected characteristic.

[77]As a result, as currently formulated, the claimant’s claim is difficult to follow and very unclear, in this regard.

[78]So far as the claimant’s PCPs are concerned, he has referred to 3 documents which were sent to him. It is, in my view, reasonable to proceed on the basis that the claimant’s assertion is that the interim guidance for managing probation, the summary of conditions of employment for grades 6 to 10 and his contract of employment were PCPs which were applied by the respondent.

[79]It is possible to understand that the interim guidance was not just applied to him but to all employees on probation in grades 6 to 10 with the respondent; it is also possible to see that the terms of the conditions of employment for grades 6 to 10 were applied to people within that group; but it is not possible to see how the claimant’s contract of employment itself was applied to that group, when it is plainly designated as his own contract. The claimant does not say that his contract of employment was identical to that of others within the group he identifies, and in those circumstances it seems to me that it cannot be said to amount to a PCP which was applied to that group, but only his own personal contract of employment.

[80]The claimant went on to note that the PCPs were not discriminatory, of themselves, and that they had provisions for fairness to all employees providing that the guidance was followed. He then said that “it disproportionately affects overseas nationals with protected characteristics (nationality)”. This is vague and unclear. A claim for indirect discrimination must identify a substantial disadvantage disproportionately affecting the group to which he belongs. “Overseas nationals with protected characteristics (nationality)” is a category to which many people who do not share his protected characteristic belong. 81 . Further, it is necessary to consider the disadvantage which he is claiming.

[82]The first disadvantage he referred to was a personal one, rather than one relating to a particular group, namely that he was dependent upon his line manager for the renewal of his employment contract and sponsorship to work in the UK. He names his line manager (HN) rather than identifying that dependence on “a” line manager creates the disadvantage. It appears to me that his concern is that because he has lost trust in HN in particular, he has suffered a disadvantage. That is a personal complaint relating to the treatment accorded to him by HN, rather than an identifiable disadvantage to the group to which he belongs.

[83]The second disadvantage asserts that any complaint against HN would have an adverse outcome, in the form of repercussions and other actions taken against him. This is a personal complaint about his own treatment by HN, rather than a consequence of the application of any PCP, so far as it can be read. Essentially, the claimant is complaining that HN has treated him less favourably than he would treat others who do not share his protected characteristic.

[84]In relation to both of these points, it seems to me that the claimant is not in fact presenting a claim of indirect discrimination, but a claim more akin to direct discrimination. While it is appreciated that indirect discrimination is a complex area of the law, which may be difficult for those not legally qualified to understand, the Tribunal requires to consider whether, if the claimant’s claims were proved in fact, the legal findings which he is seeking would follow. In my judgment, a finding of indirect discrimination could not follow even if he were to prove his allegations against HN in a full hearing.

[85]Accordingly, it is my judgment that the claimant’s claim of indirect discrimination on the grounds of race is insufficiently well defined to have any reasonable prospect of success.

[86]I should clarify at this stage that I do not consider that the claimant has been guilty of failing to comply with the Tribunal’s Orders. It is quite obvious that the claimant has endeavoured to set out his answers to each of the Orders as fully as he can, and has done so with good intentions. There is no suggestion here that the claimant has disregarded the Tribunal’s Orders or treated the Tribunal with disrespect. It is perhaps more accurate to say that he has entered a very complex legal field without legal training and has been unable to present an indirect discrimination claim in a clear and specific way such as to give the respondent fair notice of that

claim.

[87]I deal below with the question of strike-out in relation to this claim. Victimisation

[88]The respondent submits that the claimant seeks to rely upon protected acts, not all of which can be so defined; and that he lists a number of detriments, for some of which the respondent cannot be held responsible.

[89]The claimant maintained that there were a number of protected acts (1 38ff) on which he sought to rely: A) He completed the Usher Institute equality diversity and inclusion survey for BMEG staff highlighting workplace racial discrimination on 24 and 28 January; B) He submitted a formal grievance on 10 February 2022 complaining of harassment, falsification and misrepresentation of information before the probation review; C) He informed Sara Murphy on 10 February 2022 in the probation io review of harassment, falsification and misrepresentation of information, by HN; D) He informed Sara Murphy on 10 February 2022, after his dismissal, that he had presented a formal grievance to HR prior to the probation review; E) He was sent a formal letter confirming his dismissal on 15 February 2022 by Sara Murphy; F) He presented additional information on 25 and 28 February 2022; G) On 8 March 2022, he presented an appeal against his dismissal based on wilfully misrepresented, falsified and baseless allegations on 20 performance and conduct, breach of employment contract, breach of “academic and research” and breach of the respondent’s probation review policy; H) He completed a declaration form (apparently relating to timesheets for particular projects); I) On 28 March 2022, he presented an “investigation officer summary of HN project work completed before and after joining the university against the globally acknowledged reference standard (comparator)”; J) On 31 March and 4 April 2022, he informed the investigation officer about wrongdoing by HN, including harassment and insulting conduct; K) On 31 March 2022, he requested clarification from Professor Andrew baker as to whether he was on garden leave and if he could travel outwith the UK; L) On 7 June 2022, he was provided with the outcome of his appeal against dismissal which was falsified and contained misrepresentations of information; M) In November 2022, HN published a systematic review without his name on the authorship.

[90]In none of the claimant’s allegations does he suggest that any of the allegations were related to his race, nor is it made clear how each of the proposed protected acts met the definition within section 27 of the Equality Act 2010, namely:(a) bringing proceedings under the 2010 Act;

(b) giving evidence or information in connection with proceedings under the Act;

(d) making an allegation, whether or not express, that the person or persons he alleges victimised him had contravened the Act.

[91]There is confusion in the drafting of this claim, in that several of the protected acts are in fact assertions of detriments following the making of protected acts, rather than assertions of protected acts themselves.

[92]A) and B) appear to be assertions that the claimant presented to the respondent, in an anonymous survey and in his grievance, complaints about the actions of the respondent. These are, potentially, protected acts, depending on the content of the submissions.

[93]C) and D) are simply statements of fact, that he told Ms Murphy about the allegations he was making about HN, and about his grievance. Of themselves, these do not appear to me to amount to protected acts.

[94]E) is not an act which he did; it was the respondent who sent him the dismissal letter.

[95]F) is entirely unclear on its terms. It is not said what the additional information was, or what it related to, or how it could be said to be a protected act.

[96]G) and H) are acts of the claimant, and therefore potentially protected acts, though there is no reference expressly made to any allegation that someone had contravened the 2010 Act.

[97]I) appears to be a reference to work submitted by the claimant following investigation into the actions of HN. That seems to amount to criticism of HN in his academic work and standing, rather than any suggestion of discriminatory acts on his part.

[98]J) does make reference to allegations of wrongdoing by HN, including insulting and harassing behaviour, though again with no express reference to discrimination.

[99]K) refers to a request for clarification rather than an allegation of wrongdoing made by the claimant. He is critical of the response, but he does not suggest anything on which it can be said to be a protected act.

[100]L) and M) are acts of the respondent, not of the claimant, and therefore cannot be said to amount to protected acts.

[101]A), B), G), H) and J) therefore may amount to protected acts under section 27 of the 2010 Act, but the others, in my view, do not and cannot. The absence of any reference to discrimination may not be a barrier to proceeding with these claims but in my judgment further specification is required in order to clarify that matter.

[102]So far as the detriments which the claimant alleges are concerned, he set these out at 142: A) HN published the systematic review without the claimant’s name as co-author; B) There were economic and other consequences of the claimant’s dismissal; C) HN “lured me” to take the position in the 1 st Zoom meeting (no date given but understood to be part of the recruitment process prior to his employment commencing); D) The career gap has given prospective employers an indication that he had done something wrong, and therefore the claimant asserts that he is “paying the price” for lies and falsifications of HR and HN; E) The investigation officer and appeal committee failed to review the documents he presented to the investigation; F) HN exploited the claimant and made a “tidy profit” at his cost; G) The claimant has not received an employer reference which has caused him disadvantage; H) HN has ruined his career with lies and falsification of information; I) He has had to change his professional approach for career progress in India; J) There is no mutual recognition of degrees in Medicine and Dentistry between India and the UK, and India and Australia, which has a crippling effect on him; K) He was forced to leave the UK on the falsehood that a new employment visa would be sponsored.

[103]It is very difficult to follow the claimant’s line of thinking here. What he was asked to do was to set out allegations about the detriments which he says were visited upon him by the respondent after he did the protected acts. He does not connect the protected acts to any of these paragraphs, and there is no coherent thread in his pleadings here. For example, asserting that he was lured into the job by HN cannot amount to a detriment arising from doing a protected act, since it took place before he was appointed and before any protected act could have been done.

[104]It is apparent that the claimant is very angry with HN and the respondent, and has sought to set out at great length all the criticisms of both which occur to him. This is not a helpful way of pleading his case, and he required to address the particular points which he wants the Tribunal to find have arisen as detriments because he did the protected act or acts he is relying upon.

[105]I assess paragraphs A), B), E) and G) as potentially identifying detriments which the claimant is asserting may have arisen from the protected acts. The others are either repetition of points made elsewhere or simply emotive criticisms of the effect of the respondent’s actions upon his career. A detriment is an act or omission, not an effect, and therefore it is necessary for the claimant to be as precise as possible in setting out what he believes were the detriments which the respondent visited upon him after he did a protected act or protected acts. Harassment

[106]The claimant sent an email to the Tribunal on 13 December 2022, in which he said he was attaching a “direct discrimination” document, and that one more document of harassment would be completed soon.

[107]No such document has been provided by the claimant. Direct Discrimination

[108]In her submissions, Ms Coutts addressed the claimant’s complaint of direct discrimination on the grounds of race, which was specified in his email of 1 3 December 2022 ( 1 45).

[109]Essentially, the claimant set out a number of events which followed his presentation of his grievance under the heading of direct discrimination. The respondent argued that all of the events relied upon in this claim took place after the claimant’s dismissal and therefore cannot have any reasonable prospect of success.

[110]However, the claimant appears to rely upon the process leading to the dismissal as being an act or acts of direct discrimination, when he states that “There was no investigation, no fair reasons or fair procedure being followed in the dismissal." He went on to state that this amounted to direct discrimination in terms of section 13(1) of the 2010 Act.

[111]The events which followed dismissal are not pled as acts of victimisation in this context, but as acts of direct discrimination, but given that his employment had ended, it is not clear how such a claim could be pursued.

[112]So far as his criticisms of the process leading to dismissal are concerned, he does not specify why he considers that these alleged failures took place on the grounds of his race, and the basis upon which he alleges that he was, or would have been, treated less favourably than another person, real or hypothetical, not sharing his protected characteristic.

[113]It is extremely unhelpful that the claimant persists in relying upon “race and nationality” as being the protected characteristics in this case. Race and nationality are, of themselves, important definitions, but the claimant has himself confirmed that he is of Indian nationality (in the Preliminary Hearing before the sitting Employment Judge), and therefore his references to race and nationality must be read in that light. Further, as identified above, it is of little value to have the claimant’s assertions made about overseas nationals, since they are too vague and inspecific in this context.

[114]Having addressed each of these claims in turn (and not forgetting the original claims and the claimant’s first attempts at specifying them), I require to consider whether or not, in general, the claimant’s conduct of these proceedings has been unreasonable, or whether he has failed to comply with the Tribunal’s Orders.

[115]On balance, I do not consider that the claimant’s conduct in these proceedings has been helpful, or constructive, in moving the proceedings forward. However, I am not persuaded that his conduct is such as to attract the criticism that it has become unreasonable. The claimant has conducted himself with courtesy, and has tried to answer the questions which have been put to him. That he has had difficulty in understanding the legal provisions surrounding his different claims is clear; but he has chosen to represent himself in legal proceedings, and must bear the consequences of his lack of understanding. It is possible for an unrepresented claimant to seek advice or even to consult the internet to obtain guidance in answering legal questions. As Ms Coutts points out, the claimant is plainly a person of considerable intelligence and academic ability, and it is difficult to avoid the conclusion that he is motivated to raise as many criticisms against his former line manager and employers as he can, rather than address what are, in the end, very specific questions put by the Tribunal.

[116]An unrepresented claimant may expect a degree of latitude from the Tribunal, but that latitude is not without limit, and there comes a point when the Tribunal may consider that the failure to specify a claim amounts to unreasonable conduct.

[117]However, as I have indicated, I have not reached that conclusion as yet in this case. It appears to me that the claimant has been trying to answer the Orders which have been presented to him, and that any difficulties which he has encountered have arisen from his limited understanding of the legal concepts involved. Strike-out

[118]It is necessary, then, to determine whether or not the claimant’s claim, or any part of it, should be struck out at this stage on the grounds set out in the respondent’s application.

[119]I have not concluded, as indicated above, that the claimant has conducted these proceedings unreasonably, nor that he has failed to comply with the Orders of the Tribunal.

[120]I am not convinced that the claimant has conducted these proceedings in a manner which is helpful or constructive, however, nor that he has fully answered the questions put to him. It is not my view that this conduct amounts to unreasonable conduct, particularly in light of the complexity of the claims made and the fact that he is an unqualified and unrepresented litigant.

[121]The major issue for me to address is whether the weaknesses in the claimant’s claims are such that they have no reasonable prospect of success.

[122]I digress slightly at this stage to point out that although Ms Coutts did say, in response to my question in this Hearing, that she would wish to apply for a deposit order as an alternative to strike-out, no such application is in fact before the Tribunal, and therefore I am not prepared to grant or even consider it.

[123]It seems to me that the claimant has sought to identify a number of claims before this Tribunal. He has done so in a somewhat piecemeal manner, sending in a number of responses to the Orders issued to him. There remain some significant concerns about the clarity of his claims, however, and at this stage I am not prepared to proceed to a Hearing on the Merits.

[124]After considerable deliberation, it is my judgment that the respondent’s application for strike-out should not be granted. I do not consider that the claims made by the claimant are wholly without merit, though, as will be seen, I am of the view that further specification is required, and that specification will demand that the claims are narrowed rather than expanded.

[125]Strike-out is the most draconian sanction to impose upon a party in Tribunal proceedings. I am not persuaded that the claimant’s case is so hopeless that it is not possible for part or all of it to be understood. However, I am not prepared to allow the claimant to proceed on the basis of broad swathes of allegations which are not clearly defined, or to have a further opportunity to introduce new allegations.

[126]I am also conscious that the respondent has stated that parts of the claim may be time-barred or may require an application to amend to be granted in order to include them within the claim.

[127]Accordingly, I am prepared to allow the claimant’s claim to proceed at this point, but only on the following basis.

[128]The claimant will be permitted to present his case based on those allegations which can properly be understood from the claim as currently presented, subject to any time-bar or amendment arguments which may be made by the respondent.

[129]Those claims are as follows: Automatic Unfair Dismissal 1. That the claimant alleges that he made a protected disclosure to the respondent in the form of his grievance dated 10 February 2022; 2. That he alleges that he was dismissed on the grounds that he had made that protected disclosure; 3. That none of the other disclosures alleged by him were made before he was dismissed, and accordingly cannot form part of his claim. Indirect Discrimination on the Grounds of Race 1. That the PCPs relied upon are that the respondent applied to him and others on probation in grades 6 to 10a. Their policy on Interim Guidance for Managing Probation sent on 8 February 2022;

b. Summary of conditions of employment for grades 6 to 10 sent on 30 November 2021 . 2. That he has not properly specified the basis upon which the PCP placed people of his particular protected characteristic (that is, of Indian race and nationality) at a substantial disadvantage when compared with others not sharing that protected characteristic, and must do so; 3. That he has not properly specified what substantial disadvantage he was thereby subjected to by the respondent on the grounds of race and nationality, and that he must do so. Victimisation 1. The claimant relies upon the following as protected acts: a. He completed the Usher Institute equality diversity and inclusion survey for BMEG staff highlighting workplace racial discrimination on 24 and 28 January; b. He submitted a formal grievance on 10 February 2022 complaining of harassment, falsification and misrepresentation of information before the probation review;

c. On 8 March 2022, he presented an appeal against his dismissal based on wilfully misrepresented, falsified and baseless allegations on performance and conduct, breach of employment contract, breach of “academic and research” and breach of the respondent’s probation review policy;

d. He completed a declaration form (apparently relating to timesheets for particular projects);

e. On 31 March and 4 April 2022, he informed the investigation officer about wrongdoing by HN, including harassment and insulting conduct. 2. The claimant has not fully specified the basis upon which he argues that these are protected acts under section 27 of the 2010 Act, and must do so. 3. The claimant relies upon the following as detriments arising from those protected acts: a. HN published the systematic review without the claimant’s name as co-author; b. There were economic and other consequences of the claimant’s dismissal; c. The investigation officer and appeal committee failed to review the documents he presented to the investigation; d. The claimant has not received an employer reference which has caused him disadvantage; 4. The claimant has not clearly identified the basis upon which he maintains that he was subjected to these detriments because he had done the protected acts he claims, and must do so. Harassment 1. The claimant has failed to specify the basis upon which he claims that he was subjected to harassment on the grounds of race. If he wishes to pursue such a claim, he must identify where it appears in his original claim, and what grounds he wishes to rely upon. Direct Discrimination 1. The claimant has identified the investigation and process leading to his dismissal, and the decision to dismiss him, as acts of direct discrimination. 2. The claimant has failed to specify the precise basis upon which he seeks to argue that the respondent treated him less favourably than it did or would treat others not sharing the same protected characteristic as his; and has not identified a comparator, whether actual or hypothetical. He must do so.

[130]Having set out my conclusions as above, it is my judgment that the respondent’s application to strike out the claimant’s claims is refused, at this stage.

[131]The Tribunal will issue to the claimant a further Order requiring him to(a) accept that the claims set out above are accurately framed, and if not, why he maintains that they are not, with specific reference to the document he relies upon; and

(b) provide further specification within a defined period of time, with which he must comply in order to move this case to the next stage of the process.

LIST OF ISSUES

[132]The claimant’s evidence was that the claim was presented one day before the date upon which ACAS informed him that it was due to be lodged. Submissions

[133]Both parties presented submissions in writing to the Tribunal, to which they spoke. The Tribunal took these submissions carefully into account. At this stage, it is not necessary to set the submissions out in detail but in the decision section below reference will be made to them as appropriate.

The Relevant Law

[134]Section 13(1) of the 2010 Act provides: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[135]We had regard to Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL, and in particular to the requirement that the Tribunal must ask “why did the alleged discriminator act as he or she did? What, consciously or unconsciously, was his or her reason?”

[136]Section 27(1) of the 2010 Act provides: “A person(a) (A) victimizes 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.”

[137]Section 43A of the Employment Rights Act 1996 (“ERA”) provides: “In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

[138]A qualifying disclosure is defined in section 43B as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:a. That a criminal offence has been committed, is being committed or is likely to be committed;

b. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

c. That a miscarriage of justice has occurred, is occurring or is likely to occur;

d. That the health or safety of any individual has been, is being or is likely to be endangered;

e. That the environment has been, is being or is likely to be damaged; or

f. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”

[139]Section 47B prohibits a worker who has made a protected disclosure from being subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker made a protected disclosure.

[140]Helpful guidance is provided in the decision of Blackbay Ventures Ltd (t/a Chemistree) v Gahir

[2014] IRLR 416

at paragraph 98: “It may be helpful if we suggest the approach that should be taken by employment tribunals considering claims by employees for victimisation for having made protected disclosures. 1. Each disclosure should be identified by reference to date and content. 2. The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be should be identified. 3. The basis upon which the disclosure is said to be protected and qualifying should be addressed. 4. Each failure or likely failure should be separately identified. 5. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the employment tribunal to simply lump together a number of complaints, some which may be culpable, but others of which may simply have been references to a check list of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the employment tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the employment tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest of act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an employment tribunal to have regard to the cumulative effect of a no of complaints providing always have been identified as protected disclosures. 6. The employment tribunal should then determine whether or not the claimant had the reasonable belief referred to in s43B(1) and under the ‘old law’ whether each disclosure was made in good faith and under the ‘new’ law whether it was made in the public interest. 7. Where it is alleged that the claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act. 8. The employment tribunal under the ‘old law; should then determine whether or not the claimant acted in good faith and under the ‘new’ law whether the disclosure was made in the public interest.”

[141]With regard to the claimant’s claim that he was subjected to a detriment or detriments as a result of having made a protected disclosure or disclosures, Section 103A of ERA provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” Observations on the Evidence

[142]In this case, the Tribunal heard evidence from a number of witnesses. In our assessment, the evidence of Professor Baker and Professor Davies was uncontroversial, except to the extent that the claimant clearly disagreed with the conclusions reached by each of them. They both gave their evidence in a straightforward and helpful manner. We had no difficulty accepting their evidence and that they sought to carry out the responsibilities which they each had in this case is a professional and diligent manner. They responded courteously and respectfully to the claimant when questioned by him.

[143]The major issues in this case arise between the claimant and Professor Nair.

[144]We found Professor Nair to be an impressive witness, truthful and clear in his evidence. It is plain that Professor Nair is a man of considerable distinction in his field, and has achieved a very senior position within the respondent’s organisation. We found him to be an entirely credible and reliable witness, both in the manner in which he spoke under questioning and also in the clear and consistent contemporaneous records which he took during the course of this process. We considered that Professor Nair, far from acting in an insulting and harassing manner towards the claimant, demonstrated considerable commitment and patience in seeking to assist the claimant to carry out his role. As he put it himself, he would not normally expect to spend more than an hour or so each week with an experienced post-doctoral researcher, but with the claimant he found himself dealing regularly with issues arising from his work.

[145]We found his evidence about the claimant’s conduct during the meeting of 7 February 2022 to be believable, and to demonstrate that the claimant had acted aggressively towards him such that he considered it necessary to send an email to his HR support immediately thereafter. Again, this was a contemporaneous adminicle of evidence supporting Professor Nair’s version of events.

[146]It was notable that throughout his evidence, Professor Nair sat in such a position as to avoid making eye contact with the claimant, even during cross-examination. He did, on occasion, show signs of irritation with the claimant during questioning, but we did not consider this to undermine his credibility, but to be a sign of genuine frustration that he was unable to persuade the claimant to carry out his set tasks in the timescales required. He did not, in our judgment, respond inappropriately to questioning, even when the claimant put provocative assertions to him.

[147]We did find that Professor Nair had a tendency to speak at considerable length at times, but that did not in any way affect our view of his credibility.

[148]The claimant gave evidence at length, largely under questioning from the Employment Judge, in the absence of a representative acting on his behalf.

[149]We found the claimant to be an intelligent and pleasant man, with an interesting career experience. However, his evidence was in a number of respects unsatisfactory. Firstly, he tended to resist answering direct questions, giving the strong impression that he was determined to make a number of points whether they were considered to be directly relevant or not to the Tribunal’s considerations; secondly, he constantly returned to the same themes despite being advised by the Tribunal that he required to focus his evidence on the issues before us, particularly given the limited time available to us in this Hearing and the need, if possible, to avoid requiring the claimant to incur the time and expense of having to return to Scotland from India to continue his evidence; thirdly, he was anxious to make very strong personal and professional criticisms of Professor Nair in particular, without clear justification for doing so, such as that he was guilty of lies, falsification of data, academic and research misconduct and insulting behaviour towards him; fourthly, he was resistant to any criticism of his own conduct or performance in the role, to the point where he described his work as “flawless”, which was in stark contrast to the evidence of his highly experienced and distinguished line manager; fifthly, when confronted with evidence about his aggressive behaviour at the meeting of 7 February, the claimant sought to suggest that it was in fact Professor Nair who had been aggressive to him; and sixthly, he was quite ready to suggest that Professor Nair’s contemporaneous notes of meetings and discussions were wholly fabricated, notwithstanding his subsequent admissions that parts of those notes may have been accurate. We were left with the sense that we could not believe the claimant’s evidence as it was inconsistent and appeared to be motivated, at least in part, by very strong antipathy towards Professor Nair.

[150]Accordingly, we concluded that where there was a difference between the evidence of Professor Nair and the claimant, the evidence of Professor Nair was to be preferred. Discussion and Decision

[151]The list of issues in this case is as follows. LIST OF ISSUES 1. Automatic Unfair Dismissal (section 103A, Employment Rights Act 1996) f. Did the respondent treat the claimant less favourably on g. The treatment relied upon by the claimant is as follows: h. Did the respondent engage in unwanted conduct: i. On 24 January 2022, when HN told him that the search strategy he had carried out in the project was work which “my daughter can do”, and that it was at the level of a “3rd year medical student”? ii. On 27 January 2022, when HN called him “unacademic” for suggesting the use of the Xe currency converter; and suggested that he would give the data to Johns Hopkins University (in the United States of America) in a threatening manner? iii. On 28 January 2022, when HN telephoned the claimant 4 or 5 times, being very rude and challenging to him. He asked the claimant why he had not wished Shanshan a happy Chinese New Year; the claimant’s own celebration of the Tamil New Year had passed without HN or anyone else wishing him the same? i. Was the conduct related to the claimant’s protected j. Did the conduct have the purpose of violating the k. If not, did the conduct have the effect of violating the l. Did the respondent take reasonable steps to prevent the 4. Victimisation Relating to the Claimant’s Race (section 27, Equality Act 2010) m. Did any of the following amount to a protected act by the n. Did the claimant suffer the following disadvantages as a o. Did the respondent take reasonable steps to prevent the 5. Remedy p. Should the Tribunal make a declaration that the claimant q. Did the claimant suffer financial loss and/or injury to r. If so, what amount of compensation does the Tribunal 145. We addressed the list of issues in turn. 1. Automatic Unfair Dismissal (section 103A, Employment Rights Act 1996)

LIST OF ISSUES

[152]We take these issues together, on the basis that the first question – whether the reason, or if more than one the principal reason, for the claimant’s dismissal was that he had made protected disclosures to the respondent – requires an analysis of whether or not the claimant had made any protected disclosures as averred by him.

[153]The first alleged disclosure was said to have been contained in an email of 13 December 2021 (592) in which he raised a concern about the flawed search strategy.

[154]The respondent admits that there was a disclosure of information in an email of 16 December 2021, and do not raise any issue about the issue referring to an email of 13 December.

[155]However, they deny that the claimant was raising a matter which was, in his reasonable belief, in the public interest, since this was simply a matter of academic discussion, which was then subject to peer review before publication.

[156]The claimant’s submissions do not assist with this legal analysis. They simply repeat the claimant’s vivid accusations of “bogus” and “falsified” information being presented by Professor Nair.

[157]It appears that the claimant categorises the disclosure as falling under section 43B(1)(b), that the respondent had failed to comply with a legal obligation.

[158]In our judgment, there is no legal obligation which is being referred to by the claimant. There is no evidence before us that the “flawed EMBASE search strategy” somehow failed to comply with any legal obligation upon the respondent. It is clear that the claimant considered the search strategy adopted by the respondent to be flawed – this was a major theme of his evidence – but at no point has he proved that there was a breach of a legal obligation by the respondent.

[159]The respondent’s position was simply that they required to follow the search strategy which had been agreed as part of the funding proposal underpinning the project. They told the claimant this on a number of occasions, and instructed him to follow their strategy. The argument between the parties as to whether or not this was suitable ran at some length throughout the claimant’s employment.

[160]The fact that the claimant thought the search strategy adopted by the respondent was simply wrong does not mean that this amounted to a protected disclosure. We concluded, on the evidence, that it did not.

[161]The second alleged protected disclosure related to the claimant’s averment that on 24 January 2022 he informed Professor Nair that the quality assurance standards required by a research study were undermined.

[162]We do not accept that the claimant did so inform Professor Nair. Professor Nair’s evidence was that no such statement was made by the claimant at that meeting, and his note (599) does not refer to it.

[163]We are aware that the claimant did raise concerns about the quality assurance standards being observed in the study had been breached. It does not appear to have been raised at this meeting, as alleged.

[164]Even if it were raised, however, at that meeting, we do not consider such a disclosure to have been made in the public interest. The reality was that there were ongoing discussions between the claimant and Professor Nair about the nature of the work which the claimant was being asked to carry out. The report which they were working on was in draft form, and their discussion led, on the evidence of Professor Nair, to a decision to remove an aspect of the study on the basis that the claimant’s concerns were well-founded. This was, as the respondent argued, part of an ongoing academic discussion seeking to refine and improve the work of the study. The claimant put forward an argument; Professor Nair reflected on it and accepted its force; the paper was therefore adapted.

[165]Again, we were unable to discern any legal obligation being breached by the respondent at any stage in these discussions. The claimant’s position was in our view somewhat overstated.

[166]Accordingly, we do not consider this to be a protected disclosure by the claimant made in the public interest, or in his reasonable belief to have been in the public interest.

[167]The third alleged disclosure was that the claimant sent an email to Professor Nair and Shanshan on 25 January 2022 requesting reasons why several Medline and Embase publications on cost of illness systematic review were removed despite having met the inclusion criteria for the study. The claimant’s argument was that the respondent was departing from the basis upon which the study had been funded.

[168]The email (600) simply confirms that the claimant was asking for clarification why the nine articles under consideration were excluded from the study – the email concluded by the claimant asking “Can you help me understand the reasons for exclusion of the nine articles colour coded in green?” This does not, in our judgment, amount to the disclosure of information, but a request for an explanation about a point relating to the project on which the claimant disagreed with the stance taken by the respondent.

[169]We accept the respondent’s argument on this point, that it did not amount to a disclosure of information and accordingly that the claimant was not making a protected disclosure in this email.

[170]Professor Nair’s position on this was, in any event, that the respondent was not departing from, but specifically complying with, the requirements set down by the funder of the project.

[171]Further, as is observed within the issue itself, the claimant has not seen the grant application nor indeed the terms upon which the funding was granted, and cannot properly assert that the respondent is acting in breach of it.

[172]The fourth alleged protected disclosure was that on 26 January 2022 the claimant raised concerns to Professor Nair by email about the risk of bias values of global researchers being undermined on the basis that the incorrect tool was being used for the project (922). The respondent accepts that this email contained a disclosure of information.

[173]Again, however, the respondent argues that this did not amount to a disclosure of information in the public interest, on the basis that the report was in draft form and this was essentially an academic discussion between the post-doctoral researcher and the principal investigator on the

[174]The claimant’s email said that “To give a risk of bias score using questions that is meant for cost benefit analysis can undermine the COI systematic review” (922), not that it had or was likely to do so. It did not, in our judgment, amount to a protected disclosure since at that stage when the disclosure was made, the claimant could not reasonably believe that the disclosure would be in the public interest. There is no clear assertion here, but more the expression of a view that there are risks about using that particular tool. In any event, Professor Nair’s response, the following day (922), indicates that the matter would be discussed and agreed if possible. Again, it is clear that this formed part of an academic discussion in relation to a process which was ongoing.

[175]This did not, in our judgment, amount to a protected disclosure for this reason.

[176]The fifth alleged disclosure was said to have been contained in an email dated 4 February 2022 outlining the incorrect categorisation of studies in a table which Professor Nair had sent to him (664).

[177]The claimant did make a disclosure of information, which is admitted by the respondent, in this email.

[178]Once again, however, it is our judgment that this did not amount to a protected disclosure made, or reasonably believed by the claimant to have been made, in the public interest. The email simply highlights a point of disagreement between the claimant and Professor Nair as to the detail of the study and the information being provided. In essence, in our judgment, which including the disclosure of information, the email was intended as a criticism of Professor Nair’s approach, and an attempt to persuade him of the error of his ways. It formed part of the ongoing discussion, or perhaps more accurately argument, which featured heavily in the correspondence between the claimant and Professor Nair, and since it related to the draft stage it formed part of the process of refinement of the work being carried on in the project.

[179]No legal obligation is identified by the claimant as having been breached, as being breached or as being likely to be breached, in the email of 4 February 2022.

[180]Accordingly, we have concluded once more that this alleged disclosure did not amount to a protected disclosure.

[181]The sixth alleged protected disclosure was said to have been made on 10 February 2022, when the claimant informed Ms Murphy and Professor Nair of incorrect values in the Quality Assessment, during his probation review, a repetition of the concern raised on 24 January 2022.

[182]Once more, we do not consider that this disclosure amounted to a protected disclosure, for the reasons given in relation to the alleged disclosure of 24 January 2022. There is, in any event, no reference to the alleged disclosure having been made in that meeting in the note completed by Ms Murphy (692-697). We were not prepared to accept the claimant’s own note of that meeting as being entirely reliable, and accordingly we have concluded that the claimant did not, in this regard, make a protected disclosure to the respondent.

[183]Accordingly, in terms of issue 1, we have concluded that none of the alleged disclosures amounted to protected disclosures within the meaning of section 43B(1) of the Employment Rights Act 1996.

[184]In these circumstances, the claimant’s claim that he was dismissed for the reason, or if more than one the principal reason, that he made protected disclosures, fails and is accordingly dismissed. s. Did the respondent treat the claimant less favourably on t. The treatment relied upon by the claimant is as follows:

[185]The claimant is of Indian nationality, and relies upon that nationality in his claim of discrimination on the grounds of race.

[186]We confess to being perplexed by the claimant’s complaint of race discrimination. He barely mentioned his race or nationality during the course of his evidence before us. He did not mention his race or nationality at all in his written submissions to the Tribunal at the conclusion of the evidence. He made no reference to his race or nationality in his letter of appeal against dismissal submitted to the respondent on 8 March 2022 (741). In the grievance which he presented to the Tribunal on 10 February 2022 (677ff), he made no reference to race or nationality.

[187]At no stage has the claimant advanced any basis for his assertion that he was treated less favourably by the respondent, and in particular by Professor Nair, on the grounds of race, in comparison to a hypothetical comparator who did not share the same race as himself.

[188]Professor Nair is of Indian nationality. While sharing the same nationality is not determinative of the attitude or actions of any individual towards another, we were entirely unconvinced that the claimant had presented any evidence which could demonstrate that the reason for his dismissal was related to his race or nationality in any way.

[189]Professor Nair, in his evidence, dismissed any such suggestion, and was adamant that the reason why he had dismissed the claimant was that he had not fulfilled the requirements of the role for which he was employed, and that he had behaved himself in an insulting and aggressive manner towards Professor Nair on 7 February 2022.

[190]In our judgment, there is simply no basis upon which it could be found that the reason for the claimant’s dismissal was related to his race or nationality.

[191]Further, he has failed entirely to prove that any hypothetical comparator performing and conducting himself as he had would be treated any differently.

[192]We considered that the reason for the claimant’s dismissal was precisely as Professor Nair had identified it. Our sense was that Professor Nair was feeling sorely tried by the constant need to answer questions and discuss points in the claimant’s work when he expected him simply to carry out the tasks set for him, as he regarded them well within the capacity of an experienced post-doctoral researcher; and that when he acted in such an aggressive manner in the meeting of 7 February, he felt that the relationship between them had completely broken down. This was, in our judgment, a credible position for Professor Nair to take in all the circumstances, and we could find no basis for any suggestion that Professor Nair dismissed the claimant because of his race or nationality.

[193]The claimant also asserted that the fact that his appeal was not upheld by Professor Davies and the panel amounted to less favourable treatment on the grounds of race. We have concluded that the claimant has entirely failed to prove such a serious assertion. Again there is no mention of this in the claimant’s submissions to us in this case. Professor Davies, who gave evidence before us about the appeal process and decision, gave clear and cogent reasons for the panel’s decision on the appeal, both in the letter of outcome and in his oral evidence to the Tribunal.

[194]When it was put to him (by the respondent’s solicitor, quite properly) that the claimant’s assertion was that his appeal was rejected on the grounds of race, Professor Davies appeared taken aback, and expressed himself surprised to hear that. He stressed that he had been taught by an Indian mentor, and denied that there was any basis for such a suggestion on the part of the claimant.

[195]It was significant, in our judgment, that the claimant did not put to Professor Davies that the reason for the rejection of the appeal was based on his race or nationality.

[196]In our judgment, therefore, the claimant’s claim that the rejection of his appeal was because of his race or nationality is simply baseless, on the evidence, and the claimant has completely failed to prove it, even on a prima facie basis.

[197]The claimant’s claim of discrimination on the grounds of race fails, and is therefore dismissed.a. Did the respondent engage in unwanted conduct: i. On 24 January 2022, when HN told him that the search strategy he had carried out in the project was work which “my daughter can do”, and that it was at the level of a “3rd year medical student”? ii. On 27 January 2022, when HN called him “unacademic” for suggesting the use of the Xe currency converter; and suggested that he would give the data to Johns Hopkins University (in the United States of America) in a threatening manner? iii. On 28 January 2022, when HN telephoned the claimant 4 or 5 times, being very rude and challenging to him. He asked the claimant why he had not wished Shanshan a happy Chinese New Year; the claimant’s own celebration of the Tamil New Year had passed without HN or anyone else wishing him the same?

b. Was the conduct related to the claimant’s protected

c. Did the conduct have the purpose of violating the

d. If not, did the conduct have the effect of violating the

e. Did the respondent take reasonable steps to prevent the

[198]We did not find, as a matter of fact, that Professor Nair ever said to the claimant that the work he had been asked to do was work which his daughter could do; nor that the work to be carried out was at the level of a 3rd year medical student. It was our conclusion that Professor Nair sought to stress to the claimant that the work he was being asked to carry out was simple work (for a post-doctoral researcher), but that he did not say that it was work his daughter could do. The reference to a 3rd year medical student may have been a reference to Polly Keeling, who carried out a project in her honours year which contributed to the work of the overall project, but we were not convinced that Professor Nair said that the work that the claimant was being asked to do was at that level.

[199]In any event, we were unable to discern any relationship between such alleged comments and the claimant’s race.

[200]We did not consider that the claimant proved that the alleged comments had been made, nor that they would have had the effect he maintained they did.

[201]We did not find that Professor Nair called the claimant unacademic for using the Xe currency converter. There was certainly a disagreement about the use of the particular currency converter proposed by the claimant, and Professor Nair said that it was not an academic tool. That is far short of using an insulting term such as unacademic directed personally at the claimant. It is our view that the claimant has overstated this exchange and has sought to alter the meaning of the conversation to the detriment of Professor Nair.

[202]As to the suggestion that Professor Nair told the claimant that he would take the data produced and send it to Johns Hopkins University in the United States of America, we did not accept this to be true. Professor Nair denied it, and said that there would be no reason for him to provide data to another institution when the respondent had secured the funding for the project, which was to be carried out by him. He had no budget to pay for any work to be carried out at an American university, and assured the Tribunal that such a university would expect to be paid if they were to be asked to participate in this project.

[203]We did not find, either, that Professor Nair had taken the claimant to task for not having wished Shanshan a happy Chinese New Year, and there was no evidence to the effect that the claimant’s own celebration of the Tamil New Year had passed without anyone wishing him the same. Accordingly, the claimant’s allegations in this regard were not proved on the balance of probabilities. In any event, we were unable to discern any reasonable basis upon which we could conclude that these alleged exchanges amounted to harassment on the grounds of race.

[204]It is our conclusion, therefore, that the claimant has failed to prove that Professor Nair acted in the ways alleged, and further that these allegations, even had they been proved, demonstrate that Professor Nair was guilty of harassment on the grounds of race.

[205]What was very striking both in his evidence and in his submissions before us was the claimant’s willingness to make wild and unsubstantiated allegations in the strongest terms against a distinguished senior colleague, and to conduct himself in an aggressive manner in meetings with him. To accuse Professor Nair of academic misconduct (though not through the appropriate channels), of falsification of data and of lies and bogus claims, as he did, suggested to us that it was not Professor Nair who was responsible for inappropriate language and behaviour, but the claimant himself, in the engagement which they had as line manager and employee.

[206]The claimant’s claims of harassment under section 26 of the Equality Act 2010 therefore fail and are dismissed. 6. Victimisation Relating to the Claimant’s Race (section 27, Equality Act 2010) u. Did any of the following amount to a protected act by the v. Did the claimant suffer the following disadvantages as a w. Did the respondent take reasonable steps to prevent the

[207]The first alleged protected act was that the claimant said he had completed an Usher Institute Survey on 24 January 2022 in relation to equality and diversity. The claimant did not give any evidence about having done so before us. No copy of the completed survey, or any correspondence relating to it, was presented to us during the Hearing. We acknowledge that the claimant was representing himself, and that he was led through his evidence by the Employment Judge rather than a representative, but the Tribunal did allow the claimant the opportunity to add anything at the conclusion of questioning, and this matter did not arise.

[208]However, even if it were correct that the submission of an equality and diversity survey could potentially amount to a protected act, there is no evidence before us as to what was said in the survey by the claimant. It is alleged by the claimant that he highlighted workplace racial discrimination on 24 and 28 January 2022. However, it appeared to us that the survey was said to have been submitted on 24 January, so could not have sought to take into account any matter arising on 28 January 2022.

[209]Without sight of the survey, or evidence from the claimant as to what he said therein, we are unable to conclude that this submission amounted, on the balance of probabilities, to a protected act in terms of section 27 of the 2010 Act.

[210]Professor Nair made it clear in his evidence (and he was not challenged on this) that he was not aware that any such survey had been completed. He would not have expected to have had sight of such a survey, as any completed response is always treated anonymously. There was no reference to this in the claimant’s grievance, nor in any correspondence sent by the claimant to the respondent produced in the Joint Bundle.

[211]In our judgment, the evidence simply does not justify any conclusion that the survey completed by the claimant, if it was so completed, contained such allegations or statements as to amount to a protected act, nor that Professor Nair had any knowledge of the matter until after he had made the decision to dismiss the claimant.

[212]Accordingly, this does not in our judgment amount to a protected act, and in any event, Professor Nair was unaware of it at the time and therefore could not have acted in response to it.

[213]The second protected act alleged to have been done by the claimant was the submission of his grievance on 10 February 2022 (677). There is no reference to race discrimination, nor any allegation that the respondent had breached the Equality Act 2010, in the claimant’s grievance. The claimant certainly set out a large number of complaints but against none of them did he attach the description of discrimination or race discrimination.

[214]Accordingly, we do not find that the claimant’s grievance submission amounted to a protected act under section 27.

[215]Thirdly, the claimant complained that his appeal against dismissal dated 8 March 2022 amounted to a protected act under section 27.

[216]In his appeal letter (741), the claimant repeated many of the criticisms of Professor Nair which he had previously made, though he did not name him in the letter other than by referring to him as his line manager. He complained that he had been harassed, insulted on a number of occasions over the phone and in in-person meetings. He referred to having completed the anonymous discrimination and harassment survey on two occasions, though provided no detail as to what was said therein. He said that “I suspect that my line manager had come to know of this, and the dismissal is the direct consequence of that.”

[217]There was no reference to race discrimination (notwithstanding the passing reference to a discrimination and harassment survey, without any content attached), nor to any allegation that any person, including Professor Nair, had contravened the Equality Act 2010.

[218]In our judgment, this was entirely consistent with the claimant’s complaints before us. He barely made any reference to race during the course of these proceedings, and none in his submissions at the conclusion of the evidence.

[219]Accordingly, in our judgment, there is no basis upon which the claimant can argue that this was a protected act under section 27: it was not, in our view.

[220]Finally, the claimant complained that he completed a declaration form apparently relating to timesheets for particular projects. He gave no date upon which he submitted such timesheets, but in his evidence complained regularly that by removing certain items from his December 2021 timesheet he had been deprived of pay and evidence of work he had done.

[221]It is not at all clear to us on what basis the claimant maintains that the submission of a timesheet (which was not included in the Joint Bundle) could be regarded as a protected act. As we understand it, the timesheet was simply a list of dates and hours in which the claimant said he had carried out work for Professor Nair. Professor Nair removed these items, or some of them, from the timesheets before submitting them to the European Union, on the basis that they would only reimburse the respondent in respect of time specifically spent on this funded project.

[222]There was no suggestion on the part of the claimant that the timesheet contained any allegation or complaint that the respondent or Professor Nair had breached the Equality Act 2010 or acted in any discriminatory manner, and accordingly the submission of the declaration form was not demonstrated by the claimant to have any bearing on these matters or any relevance to the claims made before us.

[223]The fifth protected act was said to have been that the claimant informed the investigation officer (Professor Baker) on 31 March and 4 April 2022 about wrongdoing by Professor Nair, including harassment and insulting conduct.

[224]The claimant met Professor Baker on 31 March 2022, and notes were produced relating to that meeting (752ff). The claimant was given the opportunity to add any amendments he considered appropriate and did so, but no reference appears in the notes of that meeting to the effect that the claimant raised an issue about race discrimination, or accused the respondent or Professor Nair of having breached the terms of the Equality Act 2010.

[225]He met with Professor Baker again on 4 April 2022. Notes were produced relating to that meeting (777ff). Once again, the claimant was given the opportunity to review the notes and make any amendments, but no reference appears in the notes of that meeting to the effect that the claimant raised an issue about race discrimination, or accused the respondent or Professor Nair of having breached the terms of the Equality Act 2010.

[226]We have also considered the evidence of Professor Baker before us, and he insisted that there was nothing mentioned to him about race at all by the claimant, and that there was nothing in the documents he saw about the claimant’s race. It was not a matter which came up in any of the investigatory interviews he conducted with the various people involved, including the claimant, Professor Nair and Sara Murphy.

[227]We accepted Professor Baker’s evidence, supported as it was by the documentary evidence to which we have just referred. The claimant did not, in his appeal, make any reference to race nor did he complain that any individual had discriminated against him on the grounds of race nor breached the provisions of the Equality Act 2010.

[228]In our judgment, therefore, the claimant’s claims that he was victimised under section 27 of the Equality Act 2010 must fail, and he has not proved that he did any protected act as alleged in his claim.

[229]However, we were also convinced by the evidence that the decisions which were taken by the respondent, and in particular by Professor Nair and Professor Baker, were taken on the basis that the claimant’s work performance and conduct had not been acceptable, and that there was no basis for any suggestion that they acted on the basis of the claimant’s race.

[230]Accordingly, the claimant’s claims of victimisation fail and must be dismissed. 7. Remedy p. Should the Tribunal make a declaration that the claimant q. Did the claimant suffer financial loss and/or injury to r. If so, what amount of compensation does the Tribunal

[231]In light of our findings on the merits of the claims made by the claimant, we have no findings to make on the issue of remedy. No award is appropriate in this case, as none of the claimant’s claims have been upheld.

[232]Although the issue of time bar has been raised, it did not appear in the List of Issues, and accordingly, we have not addressed this, given our findings on the merits of the claim.

[233]We would wish to record our gratitude to Ms Coutts, the solicitor for the respondent, in particular for her considerable assistance both to the Tribunal and to the claimant in the manner in which she presented her case, and prepared the documents in advance of the Hearing. We also thank the claimant for making the considerable effort to attend the Hearing in person, and to conduct himself generally in a respectful manner towards the Tribunal and his opponent. It is understood that from time to time he became frustrated or concerned about the way in which he and his work were being described, particularly by Professor Nair, since as an unrepresented party he had little experience of being in Tribunal. He also betrayed occasional frustration when the Employment Judge sought to remind him to pursue questioning with the bounds of relevance to the issues. M A Macleod