Case No 4110308/2021Venue GlasgowHearing 29 November 2021
Between
Ms A KhanClaimantBrook Street (UK) LtdRespondent
Before
Employment Judge R SorrellMs S Fallone (instructed by Counsel) for respondentOPEN PRELIMINARY HEARING for respondentDate 7 September 2022
JUDGMENT
The Judgment of the Tribunal is that:-(i) The respondent’s application for strike out of the claim is dismissed.(ii) The respondent’s application for a deposit order is dismissed.(iii) It is just and equitable to extend the time limit in which to lodge the claim and therefore the Tribunal has jurisdiction to hear the claim.
REASONS
Introduction
[1]The claimant lodged a claim for race discrimination on 1 July 2021.[2]A case management preliminary hearing was held on 16 September 2021 by way of telephone conference call. At the hearing, Employment Judge Strain ordered that the case be set down for an Open Preliminary Hearing to determine the preliminary issue of time bar and just and equitable extension of time in relation to the claim.[3]Following an application made by the respondent for strike out of the claim and a deposit order on 9 November 2021, the Tribunal directed that this application also be heard at this hearing.[4]As the claimant was a party litigant, I explained the purpose and procedure for the hearing and that I was required to adhere to the Overriding Objective of dealing with cases justly and fairly and to ensure that parties were on an equal footing.[5]I further explained to parties that as it was likely I would be reserving my decision, I would firstly hear the applications for a strike out of the claim and a deposit order. This would be by way of submissions and evidence taken from the claimant as to her ability to pay any deposit order. I would then hear evidence from the claimant in respect to the time bar issue and the reasons she lodged her claim at the time she did.[6]Ms Fallone, for the respondent advised that Mr Shailesh Luximon of the respondent company was in attendance at the Tribunal in the event he was called to give evidence.[7]Parties lodged a joint bundle of productions and the claimant lodged a further document at the outset of the hearing. The importance of referring to the relevant documents was explained to the claimant. 1) Respondent’s Application for Strike Out of the claim and a Deposit[11]Ms Fallone submitted on behalf of the respondent that the claim should be struck out on the grounds that it has no reasonable prospects of success in accordance with Rule 37 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Whilst this is a high bar, it is submitted that this is met as the claim does not make out sufficient facts to support a contention of discrimination on the grounds of ethnicity. The alleged bare facts of difference between the claimant and the person she wishes to use as a comparator only indicates the possibility of discrimination. Without more than simply stating a difference in treatment, there would not be sufficient material for a tribunal to conclude on a balance of probabilities that the respondent has committed an unlawful discriminatory act.[12]The claim lacks specification and the respondent contends that it has not had fair notice in order to submit a properly formed defence. The claimant has not set out the evidence upon which she founds her contention that someone else not of her ethnicity has received different treatment. The claimant has stated that the comparator is the brother of her job coach, but she has not set out her own ethnicity or the ethnicity of the assumed comparator. Without there being a hint of something more, a claim on the basis of discrimination can be struck out; Madarassy v Nomura International plc [2007] EWCA Civ 33.[13]The facts of this case are mostly agreed. The respondent does not dispute that the copy of the birth certificate the claimant supplied to the respondent was erroneously rejected. The primary fact in dispute is that the respondent’s rejection of the claimant’s birth certificate was in any way a result of discrimination. The claimant has not provided any evidence to support a contention of any discrimination. Proof is required of any link between the birth certificate and alleged discrimination on the grounds of ethnicity. It cannot be assumed on the basis of the claimant’s sense of injustice. There must be some fact(s) the claimant can hang her hat on which would give rise to a reasonable inference that there is a link between the act complained of and her ethnicity. Without reference to concrete evidence it would not be possible for liability to be established and the tribunal would be justified in striking out the claim; Ahir v British Airways plc 2017 EWCA Civ 1392, CA. Some of the criticism of the claim may be fixed by further and better particulars, but as it stands it has no reasonable prospects of success and the respondent should not have to meet the costs of defending a claim with no such prospects.[14]If the Tribunal does not accept that the claim should be struck out, a deposit order is sought under Rule 39 1 (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 on the grounds that the claim has little reasonable prospects of success. The Tribunal has greater leeway when considering a deposit order than with a strike out application; Jansen Van Rensberg v Royal Borough of Kingston-Upon-Thames and ors EAT 0096/07. A deposit order of £1000.00 is sought as the respondent has already spent considerable time dealing with this claim and will have to put more time into it if it proceeds. The respondent has no information regarding the claimant’s ability to pay a deposit order so cannot comment on that. Claimant’s submissions in reply[15]The claimant submitted that the Tribunal is reluctant to strike out a claim when there is a dispute on the facts which there is here. The respondent states that this is down to a mistake made by a junior employee, whereas she is contending that it is down to poor working practices which has led to discriminatory treatment and that the respondent is not as careful as it should be. The respondent states the particulars are not well defined which is confusing as the case has been accepted by the Tribunal. The respondent contends that she has not explained her ethnicity or the comparators, but those are issues to be covered by the Tribunal. She does not know about the cases the respondent has quoted, but this is about a real difference in treatment as compared to a white person and she believes her case does have reasonable prospects of success. Her struggles to find work are reflected in broader society and this is well documented.[16]In respect of the application for a deposit order, this would prevent her from seeking justice and should not be imposed. She believes the respondent is taking advantage of her being unrepresented and trying to frighten her out of this case. Findings in Fact The following facts are found to be proven or admitted;[17]The claimant’s date of birth is 9 December 1969.[18]The claimant works 22.5 hours per week between the hours of 10pm-6am as an Operations Assistant for Marks and Spencer. She is paid £11.50 per hour. This employment is temporary and ends on 17 December 2021.[19]The claimant is also in receipt of universal credit which varies according to her income. The most she receives is £1,069.00 per month if she is not working at all.[20]She has four children, three of whom still live at home. She receives child benefit but does not receive any child maintenance from their father.[21]She is making efforts to secure employment once her temporary employment ends. She had an interview last week and has another one on 10 December 2021.[22]She has savings of £230.00.
Relevant Law
[23]Rule 37 (1) (a) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 provides that a Tribunal may strike out all or part of a claim or response if it is scandalous, or vexatious or has no reasonable prospect of success.[24]In Balls v Downham Market High School & College UKEAT/0343/10/DM Lady Smith considered that no reasonable prospect of success is a high test. The tribunal must first consider whether on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success.[25]In Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive and require full examination in order to make a proper determination.[26]Kwele-Siakam v Co-Operative Group Ltd EAT 0039/17 provides further support for the proposition that tribunals should avoid striking out discrimination claims where the facts of the case, including the reasons for the acts complained of, are in dispute, which would require a tribunal to make findings in fact after a full hearing.[27]In Silape v Cambridge University Hospitals NHS Foundation Trust EAT 0285/16 the EAT emphasised that before determining whether a discrimination claim has no reasonable prospect of success, it is necessary to take the claim at its highest. This means examining the pleaded facts and for the purposes of the strike out consideration, assuming that the claimant’s version of any key disputed facts is correct, unless there is a compelling reason not to. Following this approach, it was held there were sufficient facts in the claimant’s pleaded case for the protected characteristic and appropriate comparator to be established.[28]The authority of Cox v Adecco and ors 2021 ICR 1307, EAT provided guidance in relation to strike out applications against litigants in person and held that if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.[29]In determining whether to strike out a claim (or part of) on any grounds, a tribunal must also give consideration to whether a fair trial is still possible.[30]Rule 39(1) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 states that where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. Rule 39(2) provides that the Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[31]The authority of Jansen Van Rensberg v Royal Borough of Kingston- Upon-Thames and ors EAT 0096/07 held that the test for little reasonable prospect of success for a deposit order is plainly not as rigorous as the test that the claim has no reasonable prospect of success and while a tribunal has greater leeway when considering whether to make a deposit order, it must have a proper basis for doubting the likelihood of the claimant being able to establish the facts essential to the claim.[32]In Sharma v New College Nottingham EAT 0287/11 the EAT quashed the deposit order due to there being underlying factual disputes and that the claimant was asserting behind the documentation there had been behaviour towards him that constituted acts, which in the absence of an acceptable explanation, the tribunal could conclude were on the ground of his race. In reaching this view, the EAT referred to Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL where it was held that discrimination issues should as a general rule be decided only after hearing the evidence and that it would be illogical to require an employment judge to take different approaches depending on whether he or she was considering striking out or making an order for a deposit as either order was a serious and potentially fatal course of action.
Issues to be Determined
[33]Does the claim have no reasonable prospects of success?[34]If not, should the claim be struck out under Rule 37 (1) (a) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013?[35]Does the claim claim have little reasonable prospects of success?[36]If so, should a deposit order be issued under Rule 39 (1) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013?[37]If so, what should be the amount of the deposit order?
Conclusion
[38]Having considered parties’ submissions, the productions lodged and the relevant material held on the tribunal file, I have taken the view that the respondent’s application to strike out the claim on the grounds there is no reasonable prospect of success should be dismissed.[39]This is because I found that whilst most of the facts in this case are not in dispute, the central fact as to the reasons for the act complained of; namely the respondent’s rejection of the claimant’s birth certificate she supplied to them, is in dispute, which I considered would require a tribunal to make findings in fact after a full hearing.[40]In reaching this view, I have taken account of the claimant being a litigant in person, as considered in Cox v Adecco and ors 2021 ICR 1307, EAT and the fact-sensitive nature of a race discrimination claim, as discussed in the leading authority of Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL and Kwele-Siakam v Co-Operative Group Ltd EAT 0039/17.[41]I have also noted the respondent accepted that some of the concerns raised about the lack of specification in the pleadings may be resolved by way of further case management.[42]Accordingly, I did not consider that the high test identified by Lady Smith in Balls v Downham Market High School & College UKEAT/0343/10/DM has been met and am satisfied that in these circumstances, a fair trial is still possible.[43]For these reasons the respondent’s application for strike out of the claim is dismissed.[44]For the same reasons, I have taken the view that the respondent’s application for a deposit order on the ground there is little reasonable prospect of success should be dismissed. In doing so, I have had particular regard to the EAT’s decision in the case of Sharma v New College Nottingham EAT 0287/11 to quash a deposit order due to there being underlying factual disputes, as well as the leading authority of Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL, which held that the same approach should be taken in respect to the consideration of a deposit order application as a strike out application as either order was a serious and potentially fatal course of action.[45]As I have dismissed the deposit order application, I have not considered the claimant’s ability to pay such an order.[46]For these reasons the respondent’s application for a deposit order is dismissed. 2) Is it Just and Equitable to extend time in which to lodge the claim? Findings in Fact The following facts are found to be proven or admitted;[47]It was not in dispute that the claimant lodged her claim out-with the 3 month’s statutory time limit.[48]Following information given to the claimant by her work coach at DWP, the claimant applied for a temporary Customer Service Assistant role with HMRC through the respondent agency on 2 November 2020.[49]On 5 November 2020, Ms Lucie Ospalkova of the respondent agency asked the claimant to scan and email documents to her for compliance purposes in order to move her onto the next stage of the recruitment process. This included the claimant’s birth certificate.[50]On 11 November 2020 the claimant had a WhatsApp call with Ms Ospalkova at which she asked to see the same documents.[51]On 16 November 2020 Ms Ospalkova emailed the claimant to advise that her birth certificate could not be accepted as it needed to be the original one which would have been issued after her birth. (D64) As a result, the claimant was not considered further for this role.[52]The claimant was disappointed and thought it could be due to HMRC having stricter compliance requirements.[53]On 26 May 2021 the claimant was told by her new work coach, Susan, that both she and her brother had secured employment through the respondent company and that her brother had submitted the same certified birth certificate as the claimant for compliance purposes which had been accepted by the respondent.[54]The claimant was very surprised by this and wanted to have a better understanding of what had happened in relation to the rejection of her birth certificate and why.[55]On 27 May 2021 she spoke to the Equality and Advisory Support Service who said they could support her to resolve the matter informally with the respondent and directed her to their templates.[56]On 4 June 2021 the claimant wrote a formal letter of complaint to the respondent alleging direct discrimination because of her ethnicity, in that she had been treated less favourably than the brother of her work coach, who is white, as her birth certificate and therefore job application had been rejected. The claimant requested that her complaint be investigated with a view to explaining and resolving the issue. (D83-4)[57]On 11 June 2021 Mr Shailesh Luximon, HR Business Partner of the respondent company responded to the complaint. (D85-6)[58]The claimant was dissatisfied and upset with Mr Luximon’s response. There was further exchange of correspondence between them. (D85-94)[59]The claimant did not know who else she could complain to as she was not an employee of the respondent and felt like she was in a grey area.[60]On 15 June 2021 the claimant contacted ACAS to seek advice. Mr James Boffey, an ACAS conciliator emailed her on 17 June 2021 and said she should wait for a phone call from him to discuss her concerns.[61]Mr Boffey called the claimant on 1 July 2021. He advised her of her options including bringing an employment tribunal claim for race discrimination and of the time limits in which to do so.[62]After this conversation and on the same date, the claimant obtained the ACAS early conciliation certificate and lodged an employment tribunal claim. Respondent’s Submissions[63]The respondent submitted that the burden of proof of it being just and equitable to extend time lies with the claimant and the tribunal has a broad discretion in deciding that. There is not a prescribed list of factors, but case law suggests relevant factors are the prejudice that each party would suffer as a consequence of that decision. The delay in raising the discrimination claim has inhibited the respondent’s ability to fully investigate the situation. Ms Ospalkova has left the respondent employment and so it is not practicable to make any inquiries about that.[64]The respondent has been prejudiced regarding the amount of time spent in defending and preparing against a hopeless claim. The length and reason for the delay in lodging a claim is a factor that can be taken into account. The action the claimant is aggrieved about occurred on 16 November 2020, but she didn’t raise the claim until 1 July 2021 so it is substantially out of time. The respondent does not accept that the claimant has a good reason for the delay. Her only explanation is that she did not know the respondent had accepted similar documents to the one she submitted until 26 May 2021. This is not credible and she has not supplied any evidence of that. The claimant accepts that she thought it unreasonable to request an original birth certificate at the time but she chose not to query that. The claimant’s explanation seems inherently implausible and the respondent contends it should be rejected. There is also the issue of promptness with which the claimant acted once the cause of action became known. The claimant’s position is that this became known on 26 May 2021, but she then does not seek to raise a claim until 11 June 2021 which is nearly two weeks later. The claimant is an educated woman who could reasonably be expected to seek legal advice. The claimant should therefore have been more proactive once she became aware of the information that highlighted the difference in treatment. Claimant’s submissions[65]The claimant submitted that throughout this situation, Mr Luximon’s letters have blamed Ms Ospalkova for the mistakes made. However, her information was sent to other agents who she also spoke to and neither they or her work coaches flagged up that her birth certificate should have been accepted. Mr Luximon’s letters really upset her and pushed her into taking this action because he did not investigate anything. He was far removed from the application process and even though she sent letters and emails to him, he did not refer to them. It was his response that pushed her to seek a declaration of her rights.[66]Section 123 (1) of the Equality Act 2010 law allows for the extension of time when it is just and equitable. Hutchinson v Westward Television Ltd [1977] IRLR 69 held that the tribunal has a wide discretion as to what it can do in such circumstances and the tribunal is entitled to take into account anything it thinks is relevant. The case of Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 held that the two questions to consider are why has the primary time limit not been met and the reason for the delay after the expiry of the time limit. British Coal Corporation v Keeble and ors 1997 IRLR 336 set out factors a tribunal may consider in these circumstances.[67]The knowledge she gained from her work coach, Susan, was fundamental in her thinking that she had a complaint to make. She did not contact ACAS on 11 June 2021 as stated by the respondent. She spoke to ACAS on 15 June 2021 but was not able to speak to Mr Boffey until 1 July 2021. She would have submitted her claim earlier if she had been able to discuss it sooner with ACAS.
Relevant Law
[68]Section 123(1) of the Equality Act 2010 provides that proceedings on a complaint within section 120 may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable.[69]In exercising their discretion to allow out of time claims to proceed, tribunals may have regard to the checklist contained in section 33 of the Limitation Act 1980, as modified by the EAT in British Coal Corporation v Keeble and ors 1997 IRLR 336. This includes the consideration of the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case. In particular, the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued has cooperated with requests for information, the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action. Issue to be Determined by the Tribunal[70]The Tribunal identified the following issue required to be determined:- (i) Is it just and equitable in all the circumstances to extend the time in which to lodge the claim?
Conclusion
[71]Having carefully considered all the evidence in the round, I am satisfied that it is just and equitable in all the circumstances to extend the time in which to lodge the claim. In reaching this view I have taken account of a range of factors.[72]I found the claimant’s account of events in respect to the length of and reason for the delay in lodging her claim to be credible and reliable. In doing so, I noted the level of detail given in her oral evidence and its consistency with the documentary evidence lodged.[73]Although the claimant was disappointed when her birth certificate was rejected and her application could not be taken further, she was not aware there could have been a difference in the treatment of her birth certificate as compared to other applicants until the conversation with her work coach, Susan on 26 May 2021. Given that the alleged discriminatory act occurred on 16 November 2020, the statutory time limit in which to lodge a claim expired on 15 February 2021, which was more than 3 months before this information came to light. I did not therefore consider the delay between receiving this information on 26 May 2021 and the claimant lodging her claim on 1 July 2021 to be significant.[74]After speaking to her work coach on 26 May 2021, I found that the claimant acted promptly in her desire to obtain a clearer understanding of the reasons for the rejection of her birth certificate and that she had a genuine desire to resolve the issue informally, which is corroborated by her letter of 4 June 2021 to the respondent. (D83-4)[75]Following a conversation with the Equality and Advisory Support Service on 27 May 2021, the claimant wrote to the respondent on 4 June 2021. As a result of her dissatisfaction with the response she subsequently received from Mr Luximon, together with her uncertainty about her position as a nonemployee of the respondent, she contacted ACAS on 15 June 2021 who advised that an ACAS conciliator would be in touch. However, Mr Boffey, the ACAS conciliator did not contact her until 1 July 2021, at which point she was advised of her options that included bringing an employment tribunal claim for race discrimination.[76]Having been advised of her options, the claimant acted immediately by obtaining an ACAS early conciliation certificate and lodging her tribunal claim on the same date.[77]I considered that the extent to which the cogency of the evidence is likely to be affected by the delay in bringing the claim was minimal. This is because the claimant’s letter to the respondent on 4 June 2021 had in effect put the respondent on notice of her complaint and provided them with an opportunity to investigate it and gather evidence at that stage.[78]Whilst I have noted that Ms Ospalkova had already left her employment with the respondent by then and could not be asked about the claimant’s application, according to Mr Luximon’s response to the claimant on 11 June 2021, she had left her employment in January 2021. (D85) This meant the delay in the claimant bringing a claim could not have affected this evidence anyway and that the cogency of the evidence may well have been the same if the claimant had lodged a claim before the expiry of the time limit.[79]In view of the responses from Mr Luximon to the claimant’s correspondence, I considered that the respondent has cooperated with the claimant’s requests for information. (D85-94)[80]In terms of the prejudice that either party would suffer as a result of the decision reached, I found that the claimant would not suffer any prejudice if her claim was allowed to proceed, but would suffer considerable prejudice if it were not allowed to proceed as she would be prevented from seeking legal redress. In respect of the respondent, I found they would not suffer any prejudice if the claim were not allowed to proceed and would suffer little prejudice if the claim were allowed to proceed. This is because of my findings that as the respondent had been put on notice of the claimant’s complaint on 4 June 2021, there was minimal effect on the cogency of the evidence as a result of the delay in the claim being lodged.[81]Having applied British Coal Corporation v Keeble and ors 1997 IRLR 336 and weighed all the relevant factors in the round, I am satisfied that it is just and equitable to extend the time in which to lodge the claim in all the circumstances of the case.[82]For these reasons the Tribunal has jurisdiction to hear the claim.[83]A case management preliminary hearing shall proceed to be fixed in order to discuss further procedure.
Background
[84]The claimant’s average monthly Universal Credit income in the period from October 2020 to August 2021 was £1,284.08. In the three-month period after the claimant secured her role with Marks and Spencer, the claimant’s average monthly Universal Credit income reduced to £655.[85]From November 2020, the claimant continued to seek an administrative role that would fit with her parenting responsibilities while she was trying to work her way back into teaching. She had been searching for such a role since before her application to the respondent. She undertook a 10-week “Return to Teaching” course between September and December 2020 to learn about teaching in Scotland in order to apply for teacher registration in Scotland.[86]In November 2020, while applying for jobs, she worked part time for a charity.[87]On 8 December 2020, the claimant completed the course. She completed her online teacher registration with the General Teaching Council of Scotland (GTCS) in December 2020. On or about 4 December 2020, the claimant made an application for supply teaching with East Renfrewshire Council. Throughout the month of December 2020, she was in regular contact with GTCS to sort her PVG. On or about 15 December 2020, she applied for a post as a school liaison worker in Glasgow.[88]The claimant used a variety of jobs searching sites including myjobScotland, Indeed, Total jobs. She also applied directly to other employment agencies.[89]On 4 January 2021, a “stay at home order” was re-introduced. Schools closed and the claimants four children had to stay at home with her. Certain roles that were advertised during this period did not offer flexible hours compatible with parenting responsibilities. During this period, many businesses were closed, and many employees were furloughed. Job opportunities were limited. Schools reopened on 15 March 2021.[90]Between April and September 2021, the claimant applied for various teaching and non-teaching posts. She obtained an interview with South Lanarkshire Council for supply teaching but was unsuccessful.[91]At the start of September 2021, the claimant began work with Marks & Spencer, working night shifts from 10 pm to 6 am. She finished there in December 2021 and took a position as a temporary teaching assistant in January 2022. Statistical Evidence and the Respondent’s Equality, Diversity and Inclusion Policy[92]The claimant produced statistics regarding the ethnicities of HMRC employees. As at 31 March 2020, it had a total headcount of 63,839. As at that date, 77.9% of its employees made an ethnicity declaration. 10.2% declared themselves Black, Asian and Minority Ethnic (BAME). 63.4% declared themselves white. 4.4% chose not to declare their ethnicity. The Scottish headcount as at 31 March 2020 was 5,703. 73% made a positive declaration. 3.4% declared themselves BAME. 96.6% declared themselves white.[93]It is not known from the data produced whether the HMRC headcount figures included workers who were on assignment with them but employed by the respondent or through other employment agencies. It is not known from the HMRC data what percentage (if any) of the employees included in their headcount as at 31 March 2020 was recruited through the respondent.[94]The respondent produced a data snapshot as at 15 July 2021 of its employees on assignment with HMRC on that date. There were 1,845 employees in total. No declaration of ethnicity was available for 1,777 of them (96%). Of the small sample of 72 for whom a declaration was available, 47 were white British (68%) of those who declared. 20 were BAME (28% of those who declared).[95]The respondent has published an Equality Diversity and Inclusion Policy. It is not known whether Lucie Ospalkova received a copy or whether she received training on the policy. It is not known whether the individual who instructed Ms Ospalkova to reject the birth certificate did so. It is not known whether the 4th November Caller or the 17th November caller did so.[96]The policy states, among other matters, that “Brook Street maintains records of the age, race, gender, marital status, sexual orientation and religion and belief and disability of applicants and existing employees ...” The respondent maintained no such record for the claimant’s application. The policy states “Employees and job applicants will be asked to complete a form denoting their sex, sexual orientation, marital status, ethnic origin, religion and belief and disabilities.” The respondent did not send such a form to the claimant when she applied for a role with the respondent. Relevant law Time limits
Relevant law
[97]Section 123 of the EA deals with time limits for bringing discrimination claims and provides: “s.123 Time limits (1) subject to section 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of- (a) the period of three months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable… (3) for the purposes of this section - (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.”[98]Where a complaint is submitted out of time, the burden of proof in showing that it is just and equitable to allow it to be received is on the claimant (Roberson v Bexley Community Centre [2003] IRLR 434). Parliament has chosen to give the Tribunal wide discretion in determining whether it is just and equitable to extend time, having regard to the language of the provisions (Adeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23.) Direct discrimination - liability[99]Section 13 EA is concerned with direct discrimination and provides as follows: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[100]Section 9 EA deals with the protected characteristic of race. It provides: “9 Race Race includes(a) colour(b) nationality;(c) ethnic or national origins.”[101]According to section 23 EA, “on a comparison for the purposes of section 13, … there must be no material difference between the circumstances relating to each case”. The relevant “circumstances” are those factors which the respondent has taken into account in deciding to treat the claimant as it did, with the exception of the element of race (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11). A person can be an appropriate comparator even if the situations compared are not precisely the same (Hewage v Grampian Health Board [2012] UKSC 37). The claimant does not need to point to an actual comparator at all and may rely only on a hypothetical comparison. Very little direct discrimination today is overt and it is necessary to look for indicators from a time before or after a particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias (Anya v University of Oxford [2001] IRLT 377, CA). Sometimes evidence is led of so-called ‘evidential comparators’. These are actual comparators but whose material circumstances in some way differ from those of the claimant. Their evidential value is variable and is inevitably weakened by differences in material circumstances from the claimant’s (Shamoon).[102]For a direct race discrimination complaint to succeed, it must be found that any less favourable treatment was because of the claimant’s race, though the discriminatory reason need not be the sole or even the principal reason for the respondent’s treatment. In JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, CA, LJ Elias summarised the position as follows: “5 direct disability discrimination occurs where a person is treated less favourably than a similarly placed nondisabled person on grounds of disability. This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial - must be the claimants disability. …”[103]Section 136 of EA deals with the burden of proof. It provides, so far as material, as follows: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to— (a) an employment tribunal; …”[104]The effect of section 136 is that, if the claimant makes out a prima facie case of discrimination, it will be for the respondent to show a non-discriminatory explanation.[105]There are two stages. Under Stage 1, the claimant must show facts from which the Tribunal could decide there was discrimination. This means a ‘reasonable tribunal could properly conclude’ on the balance of probabilities that there was discrimination (Madarassy v Nomura International plc [2007] IRLR 246, CA). The Tribunal should take into account all facts and evidence available to it at Stage 1, not only those which the claimant has adduced or proved. If there are disputed facts, the burden of proof is on the claimant to prove those facts. The respondent’s explanation is to be left out of account in applying Stage 1. However, merely showing a protected characteristic plus less favourable treatment is not generally sufficient to shift the burden and progress to Stage 2. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed un unlawful act of discrimination. ‘Something more’ is required (Madarassy).[106]Direct evidence of direct discrimination is rare. Depending on the facts and circumstances, various types of evidence have been held in different cases to have supplied that ‘something more’ which has allowed an inference of discrimination to be drawn.[107]Statistical evidence has been acknowledged to be potentially relevant by the Courts in direct as well as indirect discrimination cases. In West Midlands Passenger Transport Executive v Singh 1988 ICR 614, CA, the Court recognised that data showing numbers of white and non-white applicants to a post might be something from which the employment tribunal could infer discrimination if it revealed a pattern of treatment towards persons of the claimant’s racial group, and might also be used to rebut the respondent’s contention that it operated an effective equal opportunities policy.[108]In some circumstances an employer’s evasiveness or refusal to provide information has been found to be relevant. Under the previous Discrimination Questionnaire Procedure, questions asked and any answers provided were admissible in evidence before an employment tribunal (S.138(3) EqA). The Tribunal was allowed to draw an inference of discrimination from a failure to answer questions within eight weeks or from an evasive or equivocal answer (s.138(4)). This statutory procedure was abolished in 2014. The explanatory notes to section 66 of the Enterprise and Regulatory Reform Act 2013 (which implemented the repeal) stated that a potential claimant may still seek information from a potential respondent without the statutory procedure, and that a court or tribunal may consider any relevant questions and answers as part of the evidence in a case. Acas has produced non-statutory guidance on how employers and workers should go about asking and responding to questions relating to a workplace equality dispute.[109]The extent to which an employer’s failure to provide information may be used to establish a prima facie case of discrimination was considered by the ECJ in Kelly v National University of Ireland (University College, Dublin) [2012] ICR, 322 ECJ. The case involved an unsuccessful application for a place on a University course. The tribunal concluded that the applicant had failed to establish a prima facie case of discrimination to shift the burden. He appealed a refusal of the Circuit Court to disclose the applications and scoring sheets. The High Court sought a preliminary ruling from the European Court of Justice as to whether the Burden of Proof Directive (No.97/80) (now incorporated into the recast Equal Treatment Directive (No.2006/54)) entitled him to this information. In answer, the ECJ stated that although the Burden of Proof Directive does not specifically entitle claimants in discrimination cases to information from the employer in order that they may adduce facts establishing a prima facie case of discrimination, it could ‘not be ruled out’ in the instant case that the refusal to disclose documents, in the context of establishing such facts, could risk compromising the achievement of the objective pursued by the Directive and thus depriving it of effectiveness.[110]Advocate General Mengozzi gave an opinion in Meister v Speech Design Carrier Systems GmbH [2012] ICR 1006 which specifically considered the position of external job applicants and the provision of information. His opinion endorsed the ECJ’s decision in Kelly. Advocate General Mengozzi discussed how a job applicant can enforce observance of the principle of equal treatment when his or her application for a job is rejected by the putative employer, who fails to provide any information whatsoever as to why the application was unsuccessful or in respect of the recruitment procedure and its outcome. He observed that an employer that refuses to disclose such information could ‘make his decisions virtually unchallengeable’, thereby jeopardising the attainment of the objective pursued by the EU rule regarding the shifting burden of proof. The job applicant is entirely dependent on the goodwill of the potential employer with regard to obtaining information capable of constituting facts from which it may be presumed that there has been discrimination, and he or she may experience genuine difficulty in obtaining such information.[111]The ECJ in Meister did not adopt the same in-depth analysis of the shifting burden of proof but it referred to the Advocate General’s Opinion and came to a similar conclusion. It concluded that ‘a [respondent’s] refusal to grant any access to information may be one of the factors to be taken into account’ in the context of establishing a prima facie case of discrimination if the national court decides, taking into account all the circumstances of the case, that that refusal risks compromising the achievement of the objectives pursed by EU law.[112]Although, at Stage 1, a tribunal must exclude the substance of the employer’s explanation, it is not excluded from drawing inferences from the fact that there are inconsistencies in an employer’s explanation (Veolia Environmental Services UK v Gumbs EAT/0487/12/BA).[113]If the claimant shows facts from which the Tribunal could decide a discriminatory act has occurred, then, under Stage 2, the respondent must prove on the balance of probabilities that the treatment was ‘in no sense whatsoever’ because of the protected characteristic or protected act (Igen v Wong [2005] IRLR 258).[114]There are cases where it is unnecessary to apply the burden of proof provisions. These provisions will require careful attention where there is room for doubt as to the facts necessary to prove discrimination but they have nothing to offer where the Tribunal is in a position to make positive findings one way or the other (Hewage). Direct discrimination – remedy (compensation)[115]Where there is a breach of the EA, compensation is considered under s.124 which refers in turn to into section 119. That section includes provision for injury to feelings. The focus is on the actual injury suffered by the claimant and not the gravity of the acts of the respondent (Komeng v Creative Support Ltd UKEAT/0275/18/JOJ). For an injury to feelings award to be made, it is not required that the claimant’s injured feelings are caused by his knowledge that he has been discriminated against. The EAT in Taylor v XLN Telecom Ltd [2010] IRLR 49 held that the calculation of the remedy for discrimination is the same as in other torts, and that knowledge of the discriminator’s motives was not necessary for recovery of injury to feelings. The EAT observed, however, that the distress and humiliation suffered by a claimant will generally be greater where the discrimination has been overt or the claimant appreciates at the time that the motivation was discriminatory.[116]Three bands were set out for injury to feelings in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 in which the Court of Appeal give guidance on the level of award that may be made. The three bands were referred to in that authority as being lower, middle and upper, with the following explanation: “1) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award made for injury to feelings exceed £25,000. 2) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. 3) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.“[117]In De Souza v Vinci Construction (UK) Ltd [2017] IRLR 844, the Court of Appeal suggested guidance be provided by the President of Employment Tribunals as to how any inflationary uplift should be calculated in future cases. The Presidents of the Employment Tribunals in England and Wales and in Scotland thereafter issued joint presidential guidance updating the Vento bands for awards for injury to feelings. In respect of claims presented on or after 6 April 2021, the Vento bands include a lower band of £900 - £9,100; a middle band of £9,100 - £27,400; and a higher band of £27,400 - £45,600.[118]An award may also be made for financial losses sustained as a result of discrimination. Where loss has occurred as a result of the discrimination, tribunals are expected to award compensation that is both adequate to compensate for the loss and proportionate to it (Wisbey v Commissioner of the City of London Police [2021] EWCA Civ 650). The aim is to put the claimant in the position, so far as is reasonable, that he or she would have been had the tort not occurred (Ministry of Defence v Wheeler [1998] IRLR 23)[119]The question is “what would have occurred if there had been no discriminatory dismissal… If there were a chance that dismissal would have occurred in any event, even if there had been no discrimination, then in the normal way that must be factored into the calculation of loss“ (Abbey National plc and anr v Chagger [2010] ICR 397). In Chief Constable of Northumbria Police v Erichsen 2015 WL 5202327, it was ruled that what was required of the Tribunal was an assessment of realistic changes, not every imaginable possibility, however remote, and doing so “taking into account any material and plausible evidence it has from any source.“[120]There is a duty of mitigation, namely to take reasonable steps to keep losses sustained by a dismissal to a reasonable minimum. That is a question of fact and degree. It is for the respondent to discharge the burden of proof where a failure to mitigate is asserted (Ministry of Defence v Hunt and ors [1996] ICR 554). It is insufficient for a respondent merely to show that the claimant failed to take a step that it was reasonable for them to take: rather, the respondent has to prove that the claimant acted unreasonably.[121]It may not be unreasonable for an employee to take himself out of the job market to pursue training or study. It will be appropriate for the Tribunal to consider whether that is a matter of personal choice and whether the loss may be considered to be too remote a consequence of the dismissal (Simrad Ltd v Scott [1997] IRLR 147, EAT, Hibiscus Housing Association Ltd v McIntosh UKEAT/0534/08).[122]The Tribunal may include interest on the sums awarded and should consider whether to do so without the need for any application by a party in the proceedings. If it does so, it shall apply a prescribed rate. The rate of interest in Scotland is prescribed by legislation and is currently 8% (The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996).[123]The Regulations on recoupment of social security benefits do not apply to compensation for discrimination. Credit should, therefore, be given, where appropriate, for certain state benefits received during the period of financial loss. Recordkeeping (Employment Businesses)[124]The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (CEAEBR) provides that employment agencies and employment businesses shall keep records for the period of at least one year from the date on which they last provide services to the applicant to whom the records relate which are sufficient to show compliance with the Employment Agencies Act 1973 and CEAEBR (Regulation 29). Such records require to include certain prescribed information listed at Schedule 4 to CEAEBR. Submissions[125]The claimant and Ms Fallone gave oral submissions. There was no material dispute as to the applicable statutory provisions and legal tests. No authorities were cited by either party.[126]Many of the submissions made related to the evidence and the facts the tribunal was invited to find. These are summarized and discussed in the ‘Observations on the Evidence’ section.[127]Other submissions concerned with how the law should be applied to this case are summarized in the section discussing the relevant issue for determination. Observations on the evidence Credibility and reliability of witnesses[128]We found the claimant’s evidence to be both credible and reliable. She gave her evidence in a straightforward way and offered a clear and detailed account of the sequence of events. Her evidence was consistent with any available contemporaneous documents to which we were referred, including emails and journal entries. Much of her evidence was not disputed by the respondent, though the claimant’s interpretation of events and the inferences she drew were strongly contested.[129]The respondent’s principal witness, Mr Luximon, is employed by the respondent as an HR Business Partner. He had no direct involvement in events surrounding the claimant’s application and its rejection on the basis of her birth certificate. He was given responsibility for investigating her complaint some six months after the events took place.[130]We had concerns both about the reliability of Mr Luximon’s evidence and the credibility of certain aspects. One example which cast doubt on the reliability of his account related to his review of relevant documents in his investigation. Mr Luximon initially maintained in evidence that he had not received a copy of the email correspondence between the claimant and Ms Ospalkova and Lilly Crawford with the claimant’s initial letter of complaint to the respondent dated 4 June 2021. He subsequently accepted this was incorrect. He similarly instructed Ms Fallone that the respondent had not retained the claimant’s compliance documents, including but not limited to her birth certificate, and that these were not available to him during his investigation. The Tribunal accepted the claimant’s evidence that, in fact, it was the respondent who produced these items for inclusion in the bundle. Ms Fallone had the opportunity to obtain instructions on the claimant’s contention during an adjournment and we noted she did not pursue any challenge to the claimant’s position when the hearing resumed the following morning.[131]Other aspects of Mr Luximon’s evidence which gave concerns are discussed below under the sub-headings ‘Who made the decision to reject the birth certificate?’, ‘Mr Luximon’s discussions with Ms Ospalkova’s Team Leader’, and ‘Evidence about other acceptances and rejections of birth certificates’.[132]Ms Ozma Khan was also called by the respondent as a witness. She was a Team Leader in the respondent’s Glasgow branch. It was the Central Resourcing function, as opposed to the respondent’s branches, who managed the HMRC recruitment drive at the material time and Ms O Khan had no direct knowledge of the events surrounding the claimant’s application or the rejection of the birth certificate. As she put it, she had been asked to attend as a “character witness” for the respondent.[133]We had concerns about the credibility of Ms O Khan’s evidence in relation to one particular issue. Osma Khan gave evidence about the temps supplied through the respondent to HMRC from the Glasgow branch where she was based. A list of 35 individuals’ surnames had been lodged in the bundle. She said she knew six of them to be from a BAME background. During cross examination, Osma Khan said that she herself had sought out the evidence in relation to the ethnicities of the 35 employees. She was clear that she compiled the list and that she identified the 6 employees of non-white background. She said this was not information she would normally have had knowledge of in her mind in the course of her job.[134]The claimant noted that the list had been supplied by the respondent on 1 April and asked how Ms Khan knew that the information remained correct as at 1 July 2022, as she had asserted in her witness statement. Ms O Khan froze. She appeared taken aback by the question. After hesitation, she said, “I don’t know the exact date or time I looked up this information”. She was questioned further by the panel on the information she said she compiled. She appeared paralysed by basic questions. She was unable to answer when, even approximately within a margin of months, she had carried out the task. She hesitated for a long time during which she looked over to Mr Luximon, as though hoping for assistance. A similar response was elicited when the Employment Judge asked how long it took to compile the information. Ms O Khan said she was “trying to recall” but if she was honest, she could not remember.[135]We did not believe Ms O Khan’s evidence regarding her involvement in compiling the document. We concluded someone else within the respondent provided the data to which she referred in her witness statement. The data in question was of limited materiality, and it was of little materiality whether Ms O Khan prepared it herself as long as she could speak to the reliability of its source. Nevertheless, Ms O Khan’s overall credibility was undermined by her evidence on this issue. Who made the decision to reject the birth certificate?[136]It was the claimant’s case that Ms Ospalkova did not make the decision to reject her birth certificate.[137]Ms Fallone said it was for the claimant to supply relevant evidence that some unknown employee behind-the-scenes may have been the person who made the decision to reject her birth certificate. Ms Fallone noted that the claimant refutes the respondent’s suggestion that Miss Ospalkova simply made a mistake. She said that the claimant founds on Ms Ospalkova’s LinkedIn CV but asserts there is no other evidence that Miss Ospalkova couldn’t have made the mistake.[138]Ms Fallone asked the tribunal to accept that a mistake by Ms Ospalkova (acting alone) was the more plausible and the more likely.[139]She referred to the witness evidence and said that Mr Luximon didn’t say for certain that it was Ms Ospalkova who concluded the birth certificate was unacceptable, but he had spoken in evidence to the normal application process which was that the consultant who started the process saw it through to the end. She referred to the fact that most of the emails regarding the claimant’s application were between the claimant and Ms Ospalkova. Ms Ospalkova owned the case, in Ms Fallone’s submission. For Mr Luximon, there was no evidence that there was any other hand at work. As far as his evidence was concerned, there was no additional step; once Miss Ospalkova had accepted the applicant, she would just go straight onto assignment.[140]She submitted Mr Luximon‘s evidence has been consistent. She submitted he has supplied documents and given oral evidence. She suggested the Tribunal should give credence to the view he came to that Ms Ospalkova simply became confused because most applicants used passports.[141]We readily accepted that Ms Ospalkova did not make the decision to reject the claimant’s birth certificate and that the reason given in her email for the decision was supplied to her by another, more senior member of the respondent’s staff, most likely Ms Ospalkova’s Team Leader.[142]The email of 16th November 2020 from Ms Ospalkova was quite clear: “I was told that the birth certificate needs to be the original one which would have been issued right after your birth so dated the 1969 year.” We did not accept that a plausible interpretation of those words was that Ms Ospalkova meant she had ‘been told’ by written guidance which she had herself consulted.[143]As well as the plain meaning of Ms Ospalkova’s email, we considered there was other evidence which tended to support the conclusion that Ms Ospalkova followed the instruction of someone else in rejecting the birth certificate. We accepted the claimant’s evidence that Ms Ospalkova told the claimant that it would not be up to her whether the claimant was going to succeed in eventually getting work early in the call on 29 October 2020. At the time of that call, Ms Ospalkova had been working with the respondent for only 10 days. It would be surprising if someone was not exercising supervision and oversight over her work. We accepted, broadly, the respondent’s evidence that it was relatively rare for candidates to tender birth certificates as opposed to passports (though that evidence had limitations as discussed later). It was plausible and perhaps likely in those circumstances that Ms Ospalkova would seek the advice of a more senior colleague when such a document was provided if she had any doubts. We noted that Ms Ospalkova received the claimant’s birth certificate on Thursday 12 November but did not return to the claimant until Monday 16th November 2020 in relation to the certificate tendered, despite having emphasized the urgency of the deadline which was: ‘today/tomorrow latest’. It would be consistent with her email to the claimant on 16 November that she had spent time in the intervening period obtaining guidance / instruction.[144]We noted that Mr Luximon, when he responded to the claimant’s complaint on 1 July 2021 said this: “…Lucie was new to our business at the time, having joined us on 19 October 2020 and was still undergoing training. This, we believe, explains why she would have sought guidance when dealing with your application. We also believe that she would have spoken to her Team Leader at the time who is an experienced member of the team …”[145]He and the respondent subsequently changed their position on this. In Mr Luximon’s witness statement, no mention is made of the likelihood of consultation with a Team Leader and likewise this possibility is not mentioned by the respondent in its response on 8 April 2022 to a question about the reason for the rejection in EJ McManus’s CMO dated 10 March 2022. We consider Mr Luximon’s initial response in July 2021 is the more natural and candid interpretation of the evidence he had reviewed. Mr Luximon’s discussions with Ms Ospalkova’s Team Leader[146]We had significant concerns about Mr Luximon’s evidence to the Tribunal in relation to his interactions or otherwise with Ms Ospalkova’s Team Leader. In his evidence in chief, Mr Luximon said little about what witness evidence he had gathered internally and from whom. He said only this, after discussing his final response to the claimant dated 1 July 2021: “I confirmed that following an investigation (telephone discussions with the Central Resourcing Function senior management) there was no evidence to suggest that Ms Ospalkova’s rejection of the claimant’s application was in any way motivated by discriminatory factors or practices.”[147]In response to a question from a panel member, he told us he had spoken to the head of the Central Resourcing Function and to the Team Leader. He said he became aware that Ms Ospalkova was no longer employed and he asked a few questions at the point when he became aware that the claimant’s birth certificate was not, as he had erroneously imagined, a photocopy certified by a solicitor, but was issued by the general register office of the local authority where she was born. The claimant’s email clarifying this was sent on 11 June 2021. During re-examination, he was asked if he knew of any disciplinary action against Ms Ospalkova and he told the Tribunal that he asked had asked the Team Leader and the Operations Manager about her and was told that “she was effective and very good”.[148]When the Employment Judge asked who Ms Ospalkova’s Team Leader was at the material time, he said that the name escaped him; that a couple of Team Leaders left, and that there was only one left. The impression given was that it was not simply that someone’s name had slipped his mind but that he purported to be confused as to which of three Team Leaders employed, or possibly no longer employed, in the Central Resourcing Team had been Team Leader to Ms Ospalkova.[149]We reviewed the contemporaneous correspondence. Mr Luximon’s next email to the claimant after her email of 11 June clarifying the type of birth certificate was sent on 25 June 2021. It made no mention of speaking to anyone but commented only that he had been unable to speak to Ms Ospalkova.[150]In his subsequent email of 1 July 202, Mr Luximon said this: “I have made further enquiries with our Resourcing Team and can confirm that Lucie was new … and was still undergoing training. This we believe explains why she would have sought guidance when dealing with your application. We also believe that she would have spoken to her Team Leader at the time who is an experienced member of the team and therefore Lucie’s submission to you may have been as a result of her own misunderstanding, either arising from her interpretation of the guidance received or the information she had provided to her Team Leader initially”[151]It is not readily apparent from this email whether Mr Luximon had, as at the 1 July 2021 (his final investigation response), spoken to Ms Ospalkova’s Team Leader. That email suggests, by the use of the present tense, that Ms Ospalkova’s Team Leader remained in the respondent’s employment at that date. In contrast to his remarks in his investigation response of 1 July 2021, Mr Luximon’s witness statement distances himself from the suggestion that Ms Ospalkova would have consulted her Team Leader. He said this: “In the event that the word “told” in Ms Ospalkova’s email [which said she was told the birth certificate was unacceptable] relates to an oral discussion there is no indication as to who told her and whether this was a peer (who would also have been an inexperienced temp) or a line manager.”[152]Overall, we found Mr Luximon’s evidence on his investigations with Ms Ospalkova’s Team Leader to be sparse and confusing. We were concerned there was a deliberate lack of forthcomingness.[153]On the evidence before us, we concluded, on balance that Mr Luximon did have a conversation with Ms Ospalkova’s Team Leader in the course of investigating the claimant’s complaint at some stage after 11 June 2021. It is probable that he would do so, in circumstances where Ms Ospalkova had left employment and it appears her Team Leader remained employed. He told the Tribunal (eventually, during panel questions) that he did so though he purported not to know the individual’s name. We do not accept Mr Luximon was unsure of the individual’s identity. We do not accept that the brief evidence provided about the content of the conversation offered a full account of it. Evidence about other acceptances and rejections of birth certificates[154]The evidence regarding other instances of the respondent rejecting or accepting birth certificates of the type tendered by the claimant (that is a certified copy issued by the Registrar) was very limited. Other than the claimant’s own experience, we heard evidence about certain individuals who were said to have tendered certificates of this kind. One was an individual with the surname Fazakerley. Another was an individual whose name is unknown but who was the brother of the claimant’s job coach, Susan MacDonald. We also heard from Mr Luximon that one of the successful applicants applying for the HMRC temp roles to start in November 2020 provided a birth certificate as evidence of the right to work.[155]In her submissions, Ms Fallone discussed the question of other applicants tendering birth certificates and said “only a couple of other applicants had used birth certificates.“ She suggested that one of these was produced in evidence of another candidate with a name suggesting non-white ethnicity had been successful in using a birth certificate of the same type that the claimant tendered. It is understood Ms Fallone was referring here to the birth certificate of Fazakerely which the respondent had included in the bundle. It is within judicial knowledge that Fazakerley is an English place name and we were not at all persuaded we could draw a conclusion of non-white ethnicity from that name alone.[156]Mr Luximon, in his evidence in chief, did not refer to Fazakerely’s birth certificate which was included in the bundle by the respondent. On the subject of other certificates from different candidates, he said, “of the successful applicants applying for the HMRC role [219-244] the Respondent’s records indicate that only one other applicant provided a birth certificate as evidence of right to work.” He did not give details of that individual’s identity or ethnicity.[157]During cross examination, the claimant asked Mr Luximon a series of questions about the list of successful applicants for the November start dates contained in the bundle. In that context, she then asked, ‘Did you count ethnic minority birth certificates?’ When answering, Mr Luximon referred to Fazakerley’s birth certificate and noted it was a birth certificate dated not in the year of birth which had been accepted and which was “probably for an ethnic minority applicant”. From this answer and he context of the question, the Tribunal may have been forgiven for forming an impression that Fazakerley was a successful applicant appointed specifically in November 2020 to the HMRC contract.[158]However, it was notable that Mr Luximon had not named Fazakerley as being the birth certificate individual from hat recruitment drive to whom he referred in his witness statement. On reviewing the list produced of successful applicants for HMRC in November 2020, we noted Fazakerley was not among them.[159]It was not elucidated why Fazakerley’s certificate came to be before us in circumstances where the certificate of the successful individual in the HMRC November 2020 drive was not. Fazakerley’s certificate was included in the bundle and had previously been sent to the Tribunal by the respondent along with a response to a Case Management Order on 1 April 2021. The Order did not require the respondent to produce any birth certificate. With reference to Fazakerley’s certificate, the respondent’s solicitor said “Brook Street have provided an example of where a birth certificate was accepted for a candidate where the certificate was a certified copy (i.e. was not from their date of birth)”. He did not suggest this certificate belonged to a successful candidate placed with HMRC in November 2020. He described it as “an example”, perhaps implying there were others. In a subsequent email to the Tribunal dated 8 April 2021, however, he said, “Aside from the applicant (Fazakerley) who applied with a birth certificate … the respondent’s checks have indicated that all other applicants have provided either a passport or biometric ID card”. The context of the paragraph seemed to suggest Fazakerely was an applicant for the HMRC November vacancy. If such was indeed the respondent’s solicitor’s understanding, the evidence before us at the hearing did not support this.[160]Mr Luximon and Ms Fallone posited that the name Fazakerley is suggestive of an ethnic minority background, though no direct evidence has been adduced of the individual’s ethnicity. We reject the proposition that the name in and of itself is suggestive of a non-white ethnicity as it is within judicial knowledge this is an English place name. It would be less than ideal to infer the individual’s ethnicity from their name alone. We have, therefore, been unable to make a finding, on the evidence before us, about the ethnicity of Fazakerley.[161]We accept on the balance of probabilities that Fazakerley was successfully placed on an assignment with some client through the respondent at some time following the provision of a certified birth certificate issued by the Registrar as opposed to a passport. Fazakerley was not, however, placed with HMRC in November 2020. There is no basis for any finding that Fazakeley was placed by Ms Ospalkova or on the instruction of the senior employee who instructed Ms Ospalkova to reject the claimant’s birth certificate.[162]The birth certificate of the successful candidate to whom Mr Luximon referred in his witness statement among the 1,227 appointed who were placed with HMRC in November 2020 was not produced in evidence and nor was he or she named. We are not able to make any findings as to that individual’s ethnicity or which consultant processed their application.[163]Turning to Susan MacDonald’s brother, the evidence regarding this candidate’s experience was also limited.[164]Ms Fallone made a number of criticisms of it. She pointed out the claimant did not see Ms McDonald’s brother’s birth certificate or speak to Ms McDonald’s brother. She only had, said Ms Fallone, third-hand evidence. Such evidence, filtered through others was inherently unreliable. It was not possible to test the comparison or to identify if there was any material difference in their circumstances. No witness statement had been tendered by Ms McDonald or by her brother.[165]We accept the claimant’s evidence that Susan MacDonald was white and find on the balance of probabilities that her brother was white. We further find on the balance of probabilities that the respondent accepted his birth certificate which was issued as a certified copy by the registrar sometime after the original registration as PORTW. It is less than ideal that we do not have a witness statement from this individual or a copy of the accepted certificate and associated correspondence between him and the respondent. However, we note that the respondent itself accepts that a birth certificate of the type he is said to have tendered is a valid document for PORTW. Such documents ought to be accepted. The respondent is a large employment agency which processes thousands of applications. It is highly probable that it has accepted valid birth certificates which accord with its guidance. We accept the claimant’s account of her conversation with Ms MacDonald which was detailed and specific as to the type of birth certificate her brother provided. On the balance of probabilities, we accept Ms MacDonald represented the position correctly to the claimant and that the respondent accepted her brother’s birth certificate which was a certified copy issued by the registrar.[166]There is no basis to find that Ms MacDonald’s brother was one of the applicants for the HMRC roles due to start in November 2020. It is not possible to identify to which client he was assigned or applied to be assigned. There is no basis for a finding that Ms MacDonald’s brother’s application was processed by Ms Ospalkova or on the instruction of the senior employee who instructed Ms Ospalkova to reject the claimant’s birth certificate.[167]There was no evidence before us about birth certificates which may have been tendered by unsuccessful applicants for the HMRC roles starting in November 2020 or their ethnicities, other than the claimant. Statistical evidence[168]Certain statistics were adduced to the Tribunal by both the claimant and the respondent.[169]Ms Fallone disputed the relevance of at least some of the statistical material. She observed that the proceedings had been protracted and it had been difficult to get to the point now reached in terms of the pleadings. The bundlewas, she said, reflective of that process. She contended it was compiled when it was thought that the claim included a complaint of indirect race discrimination which was subsequently withdrawn. Consequently, she submitted, many of the documents in the bundle were not relevant to the claim as it now stands.[170]She refuted, in particular, the relevance of the claimant’s HMRC statistics and of the claimant’s evidence criticising the respondent’s monitoring and data collection. She said the claimant had made direct and oblique references to observations about the respondent’s data. Ms Fallone observed that statistics don’t speak the truth of themselves and need to be seen in context. If they were to be used, she argued, the claimant had to identify the relevance. She said the claimant had made no causal link between the respondent’s alleged discriminately acts and its failure supply a diversity monitoring form to the claimant. In the respondent’s submission, any failure to do so did not make it any more or less likely that it committed the two alleged of discrimination. The claimant, for her part, pointed out that the respondent had sought to introduce statistics about its ethnic breakdown and EOP and she considered it was relevant to challenge the statistics and the respondent’s practices. With regard to the HMRC data, she pointed out its Scottish workforce was very non-diverse. She believed the statistical data may assist the Tribunal to draw an inference of discriminatory treatment.[171]We considered that there would be a danger of excluding the material before having heard all the evidence in the case. Having done so, we considered it necessary to make clear findings of facts about circumstantial evidence raised by the claimant so as to have material from which we could properly determine whether any inference is capable of being drawn (Anya). It is true that the use of statistical evidence to establish a presumption of discrimination is most common in claims of indirect discrimination. Nevertheless, it has the potential to be relevant in direct discrimination cases (Singh). Having made findings of fact in relation to the data, the probative value of those statistics is analysed later in the decision when Ms Fallone’s crticisms of their evidential value are considered further.[172]The exception is the data spoken to by Osma Khan. We did not accept her evidence regarding how or when that data was produced. We did not feel able to make meaningful findings in fact in circumstances where we did have credible and reliable evidence before us regarding its source, date of collation, or the date at which the data was said to be accurate. Respondent’s compliance with EJ McManus’ CMO[173]The claimant criticised in her submissions certain evidence which was produced by the respondent in response to an Order made by EJ McManus dated 10 March 2022. The relevant part of the Order was in the following terms: Documents By 1 April 2022 the respondent shall provide to the claimant and to the Tribunal their Diversity and Monitoring Information in respect of the application process for the vacancy of HMRC administrator based in Glasgow, that vacancy having been advertised in October 2020.[174]The respondent by email of 1 April 2022 supplied what it described as “Brook Street HMRC Supply Spreadsheets (one for Nov 23rd Start Date and one for November 30th Start Date) (redacted)”. This comprised two lists of surnames, one of individuals starting on 23 November and one of individuals starting on 30 November 2020. In the covering email, the respondent’s solicitor stated “Brook Street have reviewed the named temps onboarding documents and have indicated where this individual is from an ethnic minority background.” A column was included for both lists with the word “Yes” inserted for those identified as being from an ethnic minority background. No further details of the individual’s ethnicity (including whether they were BAME) was supplied. The total number of employees listed was 1,227.[175]Mr Luximon referenced the lists in his witness statement, though he did not explain who had collated the document, what geographical areas it included or how the data on ethnicities had been obtained. During cross examination, Mr Luximon gave evidence that the lists supplied related to candidates recruited across the UK and was not limited to Glasgow as the call in the Order had specified.[176]The claimant complains that the respondent could have provided the data for applicants allocated to Glasgow. She noted that as part of the process, all applicants required to submit their closest HMRC location in the subject heading of their email application. She also referred to two sample CRT forms the respondents had produced which showed a question and response about the candidate’s preferred HMRC location. The respondent had access to the data and, in the claimant’s submission, had a duty to produce the statistics for Glasgow specifically, but had failed to do so.[177]She also criticised the respondent’s approach to collating the data. Mr Luximon admitted in his evidence that not all of the employees from ethnic minority backgrounds were identified through the voluntary return of diversity monitoring forms. Some were identified because of the respondent’s knowledge or belief regarding the individuals’ ethnicities which the claimant complained was poor practice. She further criticised the failure to anonymise the data which she argued was contrary to the Equality and Human Rights Commission Code of Practice on Employment.[178]Ms Fallone hoped that the tribunal was satisfied that the respondent had attempted as best it could to comply. There had, she said, been voluminous exchanges between the respondent’s solicitor and the claimant and that they had tried to meet her expectations in providing relevant evidence.[179]We agree with the claimant that it is unsatisfactory that the respondent did not, when responding to the Order in April, make clear in its response that the data provided was not limited to the application process for the HMRC Administrator based in Glasgow as the Order had called for and that this was not clarified until Mr Luximon’s cross examination. Whether this evidence has any probative force in the drawing of an adverse inference is discussed later in the decision.[180]With respect to the claimant’s other criticisms, we consider it important to bear in mind that the information / documentation was supplied in response to an Order as opposed to being voluntarily disclosed by the respondent to a third party. The Order called for “their [i.e. the respondent’s] Diversity and Monitoring Information in respect of the application process for the vacancy … with due start date in November 2020”. It did not invite (or, arguably, permit) the respondent to restrict the information covered by the call by anonymisation or by limiting it to information derived from voluntarily returned monitoring forms. Evidence about the claimant’s past experience[181]Ms Fallone argued that much of the claimant’s evidence referred to past experience of racism generally and struggles in trying to obtain work. She submitted that the respondent is only accountable for its own behaviour.[182]We accept this submission. The claimant’s past experiences prior to her application to the respondent are not relevant to the issues which the Tribunal requires to determine. We make no criticism of the claimant in this regard. She is a litigant in person. However, we have made no findings in fact in relation to those parts of her evidence on the basis that they are not relevant. Lilly Crawford[183]The claimant criticized the respondent’s failure to investigate the matter with Lilly Crawford or to obtain a witness statement from her. She argued they had ample opportunity to do so before Ms Crawford left their employment.[184]Relevant correspondent was exchanged between the parties on this issue on 12 April 2022 and is narrated in the ‘Findings in Fact’ section at para [80-81].[185]Ms Fallone asserted the respondent was not put on notice of Lilly Crawford’s involvement until a late stage. While the respondent is not insisting on arguing the time bar point in relation to the telephone call on the 4th of November 2020, she refuted the criticisms about the failure to investigate with or call Lilly Crawford. She noted that there was an oblique reference in the ET1 about a call on 2 November but no mention of Lilly Crawford.[186]No issue involving Lilly Crawford was pleaded, said Ms Fallone, until the preliminary hearing on Case management on 22 March 2022 when the claimant supplied further and better particulars. However, it was the claimant’s witness statement, supplied in July 2022, which gave the first opportunity for the respondent to have a full understanding of Lilly Crawford’s alleged involvement. The respondent was not, said Ms Fallone, put on notice that there was a concern that another employee may be behind the acts of discrimination. By the time this was realised, Lilly Crawford had left the respondent’s employment.[187]We acknowledge Ms Fallone’s points about the pleadings and their evolution, but we don’t accept the underlying proposition that a claimant requires to have reached the stage of pleading an alleged perpetrator’s involvement in a discriminatory act before they are entitled to ask a respondent or putative respondent for more information about the circumstances of their rejection for a vacancy. The statutory Discrimination Questionnaire procedure no longer exists, but a claimant may still seek information from a respondent or potential respondent and the Tribunal may still consider any relevant questions and answers as part of the evidence in a case. Depending on the facts and circumstances, a putative employer’s refusal to grant access to information about a recruitment process may be one of the factors to be taken into account in the context of establishing a prima facie case of discrimination (Meister, Kelly).[188]Before her correspondence on 12 April 2022, the claimant had on 4 and 14 June 2021 written to the respondent saying “I believe that whoever made the decision to reject my application was unfair and this was unacceptable and I believe my application was given less favourable treatment because of my ethnicity…” It was manifest that the claimant did not accept Ms Ospalkova was the decision-maker and her subsequent questions on 12 April were asked against that backdrop. Whether the respondent’s omission to respond lends any probative value to her case is considered in the coming sections in relation to each of the alleged acts of discrimination. Discussion and decision Time bar – 4 November 2020 Call Was the claimant made within a further period (beyond the normal time limit) that the Tribunal thinks is just and equitable?[189]The claimant submitted that the tribunal has a wide discretion to extend the time limit and can take account of anything relevant. She accepted that the time limit was not met. She explained that the conversation with Susan McDonald in May 2021 was fundamental in influencing her thinking that she had a complaint to make. She submitted that she did not delay in making a complaint once she found out that she had a comparator. In the claimant’s submission, the phone call on the 4th of November 2020 and the subsequent rejection of her birth certificate on the 16th of November 2020 were intertwined, both forming part and parcel of the same application process[190]The claimant said that the knowledge she obtained from Susan McDonald about her brother’s treatment pointed to the “something more” that led her to seek a declaration in terms of her rights. She argued that, having explained the reason for the delay, the cogency of the evidence would not be affected by the delay if the matter were allowed to proceed. The respondent was placed on notice of the claims six months after the events took place.[191]The claimant pointed out that the records ought to have been retained for one year. She had taken advice promptly and contacted ACAS promptly.[192]The respondent declined to make any submissions on the time bar issue and recorded only that the evidence had been heard and it would be for the tribunal to decide, using its discretion, whether it was just and equitable to extend time.[193]The normal time limit expired on 3 February 2021. The claimant initiated the Early Conciliation process on 15 June 2021, a little over four months late. She lodged her ET1 on 1 July 2021. The original ET1 did not identify the statutory provisions relied upon but did narrate the alleged call, albeit with the erroneous date of 2 November 2020. It was clarified at a PH on 22 April 2022 that the claimant asserted this was a discriminatory act of itself.[194]We accepted the claimant’s unchallenged evidence that her conversation with Susan MacDonald on 26 May 2021 caused her to revisit and reframe events of November 2020 and that she regarded the call on 4 November 2020 as part and parcel of the same recruitment process about which she developed concerns following Ms MacDonald’s disclosures. We accepted that the claimant acted promptly thereafter in taking advice and in seeking to obtain an explanation of her treatment with respect to the birth certificate.[195]We considered whether the cogency of the evidence was likely to be affected by the delay. The respondent was on notice of that the claimant was complaining about the early November call from 1 July 2021 when she submitted her ET1. It was on notice from that date that she was complaining that she felt the caller was calling to check up on her level of English and that she was concerned that candidates with less foreign sounding names may not have received such calls.[196]If this particular complaint were not allowed to proceed, the claimant would be deprived of the opportunity to have the matter litigated and judicially determined. The respondent, on the other hand, would suffer relatively little prejudice if the claim were allowed to proceed. It required in any event to defend a claim arising from the rejection of the birth certificate for which time had previously been extended by EJ Sorrell. It had already had to prepare for and attend a final hearing in that regard. The hearing was not substantially extended by the inclusion of evidence and submissions on the 4th November Call. The claimant would be entitled to lead such evidence in any event as pleaded background the other act of discrimination she alleged.[197]Having weighed all relevant factors, we were satisfied that it is just and equitable to extend the time to lodge the complaint concerning the 4th November Call. The Tribunal, therefore, has jurisdiction to hear that complaint. 16th November Rejection of birth certificate and omission to consider her further for role On 16 November 2021, did the respondent reject the claimant’s birth certificate as evidence of her right to work in the UK and omit to consider further her application for a role with their client, HMRC?[198]The respondent did so. This is not in dispute. Were these acts or omissions less favourable treatment because of the claimant’s Pakistani ethnicity? Claimant’s submissions[199]The claimant invites the Tribunal to draw an inference of discrimination and relies on the following matters:(i) Conduct she said was equivocal or evasive by the respondent, including Mr Luximon’s failure to interview Ms Ospalkova and the respondent’s failure to obtain a witness statement from Ms Ospalkova’s Team Leader;(ii) The respondent’s failure to implement aspects of its diversity policy;(iii) The respondent’s failure to comply with EJ McManus’s call for diversity and monitoring information in Glasgow;(iv) The respondent’s failure to interview Lilly Crawford and obtain a witness statement from her;(v) The respondent’s omission to provide, when requested, information about Ms Crawford’s role in her application process(vi) The respondent’s failure to retain records Respondent’s submissions[200]Ms Fallone noted that the burden initially sat with the claimant to prove facts from which the Tribunal could properly conclude discrimination occurred. She said that the 4th November Call and the 16th November Rejection involved, to the respondent’s knowledge, two separate employees and should be analysed separately and dealt with on an individual basis for each allegation.[201]Ms Fallone said most facts were agreed with respect to the birth certificate. The respondent did not accept the certificate. It also accepts that Ms Ospalkova’s reason did not meet the required standard. She noted the claimant’s evidence that she thought it was ridiculous that her birth certificate was refused and that had not been refused for any other job application. She noted her evidence that she did not consider it discriminatory at the time but wondered if compliance for HMRC was higher than that required for other employers. It was only from a later conversation with her job coach that she suspected discrimination.[202]Ms Fallone made criticisms of the claimant’s evidence regarding Ms MacDonald’s brother as a comparator and invited the Tribunal to reject this. She further invited the Tribunal to find that Ms Ospalkova herself, without other intervention by anyone else at the respondent, made the decision to reject the birth certificate. These submissions have been discussed in the ‘Observations on the Evidence’.[203]Ms Fallone said that when the claimant first complained to Mr Luximon, it was not immediately apparent that the birth certificate she had sent to Ms Ospalkova was an original certificate. He thought she was referring to a copy certified by a solicitor. Once it became apparent that the claimant’s birth certificate was indeed acceptable, Mr Luximon said he was sorry; it shouldn’t have happened.[204]Ms Fallone noted that the claimant had been clear that she did not suggest that Ms Ospalkova had acted out of any racist motivation. The respondent’s position is that this claim is unsubstantiated and should be accorded little weight. Discussion and decision – Was the 16th November Rejection discriminatory?[205]We do not accept that we ought to analyse the two alleged acts and background evidence involving different individuals in isolation of each other. We reminded ourselves that a fragmented approach can have the effect of ‘diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds’.[206]In respect of the 16th November Rejection, we do not consider this to be a case where we were in a position to make positive findings that discrimination has been proved or disproved without resort to the provisions of section 136 on burden of proof.[207]Under Stage 1, the claimant must show facts from which a ‘reasonable tribunal could properly conclude’ on the balance of probabilities that there was a discriminatory act. We should take into account all facts and evidence available at this stage; not only those which the claimant has adduced or proved. Inferences may be drawn not only from the specific incidents and acts detailed in the claimant’s claim taken in isolation but also from the full factual background of the claim, including evidence about the conduct of the respondent. The respondent’s explanation is, however, to be left out of account.[208]Only if we conclude that such facts are proved do we move to the second stage to consider whether the respondent has proved there was no discrimination whatsoever in relation to this act.[209]Having carefully considered all relevant facts, we conclude that the claimant has succeeded in surmounting Stage 1. We consider we could properly draw an inference that the rejection of the certificate and failure to consider the claimant’s application further was discriminatory from the following matters:(i) The claimant is of Pakistani ethnicity. Her ethnicity was known to Lucie Ospalkova. It is apparent on inspection of her birth certificate and likely to be inferred from her name alone.(ii) The respondent rejected her birth certificate, which was tendered to Ms Ospalkova as PORTW and to Lilly Crawford to support of her DBS(iii) The claimant was well qualified by the role and Ms Ospalkova had commented favourably on her responses during the screening call.(iv) The respondent knew the claimant had a history of working in the UK, including for public sector employers(v) Ms Ospalkova invested not an inconsiderable commitment of time and effort in taking forward the claimant’s application between 29 October and 16 November 2020.(vi) Ms Ospalkova had told the claimant she was putting her forward to “the next stage of compliance”.(vii) The decision to reject the birth certificate was not taken by Ms Ospalkova but by another, more senior employee of the respondent, most likely her Team Leader The reason for the rejection stated by Ms Ospalkova in her email (that it had to be issued in the calendar year of the claimant’s birth) was told to Ms Ospalkova by that individual.(viii) The rejection of the birth certificate was wrong. The stated reason for it was not in accordance with the respondent’s internal guidance issued to employees who processed PORTW and DBS. The birth certificate tendered was valid for PORTW and DBS compliance.(ix) In any case, the PORTW guidance allowed the possibility of using an expired passport instead. Ignoring the birth certificate, the claimant had already satisfied the requirements of the DBS guidance with other documentation tendered.(x) At least three employees of the respondent knew of the decision to reject the claimant’s birth certificate and the reason given to the claimant for it. These were the person who instructed Ms Ospalkova, Ms Ospalkova herself, and the 17th November caller. None of them identified the incorrectness of the decision.(xi) Ms Opalkova’s email on 16 November 2022 was strangely cursory and final, having regard to the time she had invested in the claimant’s application. It did not explore alternative documents the claimant could provide when alternative routes to compliance existed. The 17th November Caller did not explore this either when the claimant narrated the birth certificate’s rejection to her.(xii) There were inconsistencies in Mr Luximon’s evidence regarding whether he believed the claimant’s Team Leader was consulted.(xiii) The only individual who had a similar type of birth certificate accepted by the respondent and whose ethnicity is known (S MacDonald’s brother) was white, albeit it is not known what role he applied for or what consultant processed his application.(xiv) Mr Luximon’s evidence’s regarding his discussions with Ms Ospalkova’s Team Leader was not found to be clear and his professed lack of certainty over the individual’s identity was not found credible.(xv) We had other concerns about certain aspects of the respondent’s evidence, as listed below. Any of these, viewed in isolation, may have been unlikely to have contributed towards our drawing an adverse inference. Cumulatively, however, we were concerned they pointed to a pattern or an approach which was neither forthcoming nor straightforward. (a) The asserted failure to retain records of the claimant’s application in apparent breach of legal obligations under the CEAEBR 2003. (b) The lack of specificity in Mr Luximon’s evidence regarding which documents were, in fact, retained and when they were first accessed. (c) The opaqueness of the respondent’s evidence surrounding other birth certificates of the same type which had been accepted and ethnicity information in relation to the applicants who tendered them. (d) The production of a significant document, the respondent’s PORTW guidance, in an illegibly small font. (e) The respondent’s refusal to respond to the claimant’s questions, asked on 12 April 2022, about whether anyone else at the respondent was consulted about her application and about Lilly Crawford’s role in processing her (f) Ms O Khan’s provision of evidence to the Tribunal which was found not to be credible about her involvement in the collation of certain data.[210]From the above facts, we concluded the Tribunal could properly infer, ignoring the respondent’s explanation, that the decision maker who instructed the rejection of the birth certificate and who, like Ms Ospalkova, put forward no alternative compliance options, was motivated consciously or unconsciously, by the claimant’s ethnicity. It is not necessary that it can be inferred this was the sole reason as long as it can be inferred it was a significant cause of the treatment. We consider it could be inferred that the decision maker treated the claimant less favourably than they would have treated a white candidate in the approach to assessing her birth certificate against the requirements of the guidance and in their failure to explore alternatives.[211]The evidence regarding the other individuals who had birth certificates accepted is sparse. The claimant has referred to Ms MacDonald’s brother but has invited us to construct a hypothetical comparator in the event he is not suitable. We consider the correct hypothetical comparator is an individual:(i) of white British ethnicity(ii) who tendered a birth certificate issued as a certified copy by the General Registrar, showing they were born in the UK, as PORTW.(iii) who applied for the same role(iv) who was equivalently qualified for the role(v) in whose application a similar amount of time had been invested by the consultant dealing with the process(vi) who similarly had a CV showing experience of working in the UK, including for public sector bodies[212]There was no evidence regarding whether Susan MacDonald’s brother had the characteristics listed, other than (i) and (ii). Neither is the evidence regarding the two other individuals who had birth certificates accepted of assistance since we do not have evidence of the circumstances of their applications or of their ethnic backgrounds.[213]We consider the Tribunal could, ignoring the respondent’s explanation, infer that a hypothetical comparator, constructed as described, would have been treated more favourably from the factors identified at paragraph [210]. We do not infer this from the unreasonableness of the respondent’s conduct alone, though we do observe that the respondent’s decision was surprising having regard to its own guidance. The respondent’s solicitor describes it as an “unusual request from Lucy Ospalkova” and argues (in the context of remedy) that the failure to query it or raise a complaint was an unreasonable failure by the claimant. It was unreasonable for the respondent’s employees whose job job roles were concerned with the processing of compliance documentation or the overseeing of that processing to reject the birth certificate and not to explore alternatives. We do not, however, infer discrimination from that alone. It is the cumulative effect of the primary facts we have identified which leads us to such an inference.[214]There a number of matters to which the claimant invited us to give weight which did not prove material, in all the circumstances of the case, to the inference drawn. The respondent’s failure to call Ms Opalkova and Lilly Crawford as witnesses did not contribute to the adverse inference drawn. We noted their employment had ended before the claim was lodged.[215]We did not ultimately find the respondent’s failures with respect to the sending out of diversity monitoring forms as envisaged by its Diversity Policy to have probative value, on the facts here. We agreed with Ms Fallone that this did not make it more or less likely that the discrimination took place, having regard to all the facts found. This was not a case where the totality of those facts pointed to a systemic rejection of BAME applicants or their documents at a company-wide or project-wide level, or even at the level of the individual consultant. We accepted that between 22 and 28% of candidates recruited for the HMRC posts were from a BAME background and that the percentage was higher for Ms Ospalkova’s recruits. There was no meaningful evidence before us to indicate those percentages were concerningly low. We accepted Ms Fallone’s concerns about the dangers of reading too much into statistical material without appropriate context.[216]Similarly, we did not ultimately find the HMRC statistics to have evidential value in the overall context of the case. It was not clear that those statistics included employees of the respondent assigned to HMRC at all and the other evidence in the case did not support any finding that HMRC had involvement in the decision to reject the claimant.[217]Although we agree it was unsatisfactory that the respondent did not clarify the data provided in response to EJ McManus’s Order was not limited to Glasgow as the Order had required, we did not consider this was a matter which tended towards the inference of prima facie discrimination in all the circumstances.[218]Turning to Stage 2, we require to determine whether the respondent has shown that the claimant’s treatment was ‘in no sense whatsoever’ because of the claimant’s ethnicity. Mr Luximon has explained his assessment of events that it was a genuine mistake, likely at by Ms Ospalkova’s instance alone, likely based on a poor reading of the guidance. We have found as a matter of fact that the rejection was not Ms Ospalkova’s decision but was on the instruction of another more senior employee.[219]We have not heard the evidence of either Ms Ospalkova or the individual who instructed her to reject the certificate. We do not know the identity of that individual. The claimant’s evidence was that she found Ms Ospalkova to be “thorough”. Ms Ospalkova described herself in her LinkedIn as including “resolving various errors and assisting other team members with her compliance knowledge”. The respondent’s evidence is that her Team Leader said she was “effective and very good”.[220]We are not satisfied that the respondent has shown, on the balance of probabilities, that the reason for the rejection was Ms Ospalkova’s (or anyone else’s error), or, even if it was, that the approach taken to the matter was free from unconscious racial bias.[221]We find, in those circumstances, that the rejection of the claimant’s birth certificate and omission to consider further her application was less favourable treatment because of the claimant’s race, contrary to section 13 EA. Was 4th November Call discriminatory? Did the respondent, on or about 4 November 2020, telephone the claimant to assess her spoken level of English?[222]The Tribunal has accepted the claimant’s evidence that the call took place on 4 November 2020 as the claimant described. The claimant’s job search journal supported her account of the call. She has consistently referred to the call in her pleadings, further particulars and witness statement. Her description to the Tribunal of the conversation was detailed.[223]The call was short and the caller only made enquiries about information already provided on the claimant’s CV and about the precise whereabouts in London of the claimant’s school, and the spelling of the place name. The caller did not elucidate the relevance of this geography to the claimant’s application. Given the call’s content and the absence of any other apparent purpose, we accept, on the balance of probabilities, that the purpose was to assess the claimant’s telephone communication skills which entails an assessment of her spoken English. Was this act less favourable treatment because of the claimant’s Pakistani ethnicity? Claimant’s submissions[224]The claimant relied on her own evidence and invited the Tribunal to draw adverse inferences from the same matters to which she referred in relation to the allegation concerning the 16th November Rejection which are listed at paragraph [200]. Respondent’s submissions[225]Mrs Fallone noted the call was short and the claimant’s evidence was unclear as to the caller’s identity. The respondent says its practice was to assess candidates to check on their standard of telephone conversation skills and that this is not discriminatory. The claimant knew the job was homeworking and would involve telephone work. It was undisputed by the claimant that this was perfectly appropriate. It was the claimant herself who had put her school details on her CV, so it was not unreasonable for the respondent to ask her about her school.[226]Ms Fallone noted the claimant relies upon a hypothetical comparison and does not accept that the process was the same for all applicants. She submitted that this should be treated as a bare assertion. She suggested that Mr Luximon’s evidence was that all applicants were treated the same. The respondent was under pressure on that particular contract, and had a substantial number of applicants to process in a tight time scale. The claimant was almost good to go, according to Ms Fallone. She referred the Tribunal to Osma Khan’s evidence that her consultants normally saw their applicants through from the beginning to the end of the process but that it could involve more than one call. She also referred to Ms O Khan’s evidence that it was the consultants who were responsible for deciding if compliance was met.[227]The claimant has not made out a prima facie case, in Ms Fallone’s submission, but, in any event, the respondent has supplied an explanation for the act. Discussion and decision – Was the 4th November Call discriminatory?[228]We accept that the purpose of the call was to assess the claimant’s spoken English as part of her telephone communication skills. The claimant has accepted that, for a telephone-based role like the one for which she had applied, this was in order. She does not assert, as we understand it, that other candidates of white ethnicity were not subjected to a screening call, part of the purpose of which was to assess their telephone communication skills. The claimant’s case, we understand, is that she was treated less favourably by being subjected to an extra screening call, over and above her initial call with Ms Ospalkova on 29 October 2021 for this purpose. We require to determine if the 4 November Call was an additional step in the because of the claimant’s ethnicity.[229]We are not in a position to make positive findings that the reason for the alleged ‘extra’ call was discriminatory or that it was not and we, therefore, require to apply the burden of proof provisions.[230]Under Stage 1, we should take into account all facts and evidence available leaving out the respondent’s explanation.[231]We considered the totality of the facts established, not just those adduced by the claimant or those which she invited us to give weight to in her submissions. We did not analyse this allegation in isolation of the facts relating to the 16th November allegation. That said, we do consider relevant Ms Fallone’s submission that there was nothing to suggest that the individual who instructed Ms Ospalkova in relation to 16th November rejection of the birth certificate was the same individual who called the claimant on 4th November.[232]We considered the correct hypothetical comparator to be an individual:(i) of white British ethnicity(ii) who applied for the same role(iii) who was equivalently qualified for the role(iv) in whose application a similar amount of time had been invested by the consultant dealing with the process(v) who had already had, and successfully progressed beyond, a screening call by one of the respondent’s consultants[233]In relation to the call, there was no evidence before us regarding treatment of any actual or an ‘evidential’ comparator whose material circumstances might differ, but whose treatment could assist in providing an indication of how a hypothetical candidate, constructed as described, would have been treated.[234]We considered whether we could infer this from all the facts and evidence. We noted that the call on 4th November 2020 appeared to sit outside the respondent’s usual process as described by Ms O Khan and Mr Luximon. Ms O Khan’s evidence, however, related to the practice working under her in the branch, not in the Central Resourcing Team. The other evidence we have heard and accepted showed, however, regardless of the respondent’s standard process in their Glasgow branch, the claimant’s application was not processed by a single consultant. This was not only manifest from the 4 November Call. There was a division of labour in the process followed in relation to the application which was dealt with remotely by the Central Resourcing Team. Some documents were to be sent to Ms Ospalkova and others to Ms Lilly Crawford (with resulting duplication in relation to the claimant’s provision of her birth certificate). There were calls from Ms Ospalkova and at least one, possibly two, other employees.[235]Where tasks are divided up in this way, there may be scope for efficiencies but also for duplication or for ‘balls to be dropped’. We make no finding that the involvement of multiple actors provides a non-discriminatory explanation for the call, but we consider that the way in which the work for this high-volume project was organised provides relevant context. It is against this backdrop that the claimant must establish facts from which we could infer she was treated differently.[236]Having regard to the facts in the round, once again, we were not persuaded that the statistical data or the respondent’s practices regarding its Diversity and Inclusion Policy provided indicators that the claimant had been treated differently in being subjected to an additional screening call. Nor did we consider the non-compliance with EJ McManus’s Order in respect of the failure to restrict the data produced to Glasgow candidates had any probative value with regard to the 4 November allegation. We were also not persuaded any inference could be drawn from the failure to call Ms Ospalkova or Ms Crawford, who had left when the claim was lodged, as witnesses.[237]We recognise that direct evidence will be rare. We considered carefully the respondent’s asserted failure to retain records of the claimant’s application including the notes of the 4 November call itself, as well as the respondent’s refusal to answer questions put by the claimant on 12 April 2022 regarding whether anyone else was involved in the process and the role of Lilly Crawford. We considered these matters within the overall context of all the other established facts including the concerns about aspects of the respondent’s evidence identified in the discussion relating to the 16th November allegation. However, on assessing the totality of the evidence, we did not conclude that the ‘something more’ has been established from which we could infer that the 4th November call was different treatment because of the claimant’s protected characteristic.[238]A prima facie case of discrimination with respect to the 4 November Call has not been established. As such, the burden of proof does not shift to the respondent to prove the absence of any discrimination in relation to it. This complaint does not succeed and is dismissed. Remedy Financial Losses
Remedy
[239]The claimant claims financial losses between November 2020 and 1 September 2021 when she obtained alternative employment. She claims the earnings she would have received ha she been appointed by the respondent to the HMRC assignment. She maintains that she has discharged her duty to mitigate her losses. In this regard, she points out that, she was in receipt of Universal Credit and her work coach at the Job Centre was satisfied with her job search efforts. She referred to her schedule of loss and documentation in the bundle supporting the applications made and her endeavours with regard to securing a return to the teaching profession.[240]She addressed the period of the lockdown between January and March 2021, when schools closed, and her children were at home. She considers her employment with HMRC would have been maintained during this time. She explained her children had always pulled together to help her manage life around work. She noted the HMRC post was home-based and that those appointed were supplied with technology for the job. She envisaged this would have assisted with the demand for devices in her household required during the period of home schooling.[241]With respect to the applications she made, she explained that she was not simply sending out the standard template application but in every case was getting her applications to the job description the in the notices.[242]Ms Fallone sought to adopt the arguments put forward by her instructing solicitor said to be in an email at page 112 of the bundle. That particular email (dated 12 April 2022) did not deal substantively with mitigation issues. We identified that two other emails produced in the bundle dated 8 April 2022 and dated 20 May 2022 which set out arguments on mitigation. These can be summarised as follows:(i) The respondent contends the number of jobs the claimant applied for in the 12-month period was low. This was suggested to average two applications per month.(ii) The claimant failed to query what the respondent’s solicitor described as an “unusual request from Lucy Ospalkova” or to “raise a complaint“. He said it would have been reasonable for her to do so and the omission was a failure to mitigate.(iii) The claimant ought to have applied for a passport as she was aware one would be accepted;(iv) The claimant’s failure to apply to the respondent’s local branch to be registered with them as a jobseeker when she discussed this with Ms Ospalkova was a failure to mitigate.(v) The respondent’s solicitor referred to documents produced showing vacancies available via the respondent in the period between 16 November 2020 and the end of September 2021. He suggested the roles were comparable and the failure to apply was a failure in the duty to mitigate.[243]As to the period of loss, Ms Fallone said the respondent does not accept ten months is reasonable in the claimant’s circumstances. She noted that she applied for a temporary role and contended that it was not a full-time contract. She pointed out it could be ended on little notice by either HMRC or the respondent, or could be subject to some other frustration. The claimant may not ultimately have been on assignment for as much as 10 months and an award for this period would be betterment.[244]Ms Fallone referred to Mr Luximon’s offer to the claimant to help her register with them for temporary work. This was a reasonable offer according to Ms Fallone. Although there are some situations where an employer’s conduct is so reprehensible that an employee should not be expected to accept employment with them, this was not such a case. If the Tribunal finds against the respondent, there were only one or two discrete incidents of discrimination and the refusal of the offer of help with job searching was unreasonable. She refuted the claimant’s argument that she did not wish to work with an employer with no integrity and pointed out supervision would not have been by the respondent but by the client with whom she was placed on assignment.[245]The duty to mitigate is not onerous and is to take reasonable steps to mitigate the loss. Before the discriminatory act, the claimant had begun a 10-week course to assist her back into teaching and her strategy was to find administrative work which would allow her to continue her efforts towards such a return. After the discriminatory act, she continued to pursue her strategy and continued her endeavours towards a teaching career in Scotland.[246]The onus to show a mitigation failure is on the respondent and it must show on the balance of probabilities that the claimant acted unreasonably in failing to take a step. We do not accept that the respondent has shown that the claimant unreasonably applied for too few roles in the relevant period. We accepted her evidence that she applied for roles additional to those which are documented in the bundle but that certain records have been lost. We accepted she worked on tailored applications. We accepted that there were limitations on the roles for which she could apply because of her family circumstances, particularly between January and March 2021 and that she was looking specifically for roles offering the flexibility to manage her working time around care for her children. We also accept her evidence that opportunities were reduced in the job market due to the pandemic.[247]We don’t accept that the claimant failed to mitigate her own losses by failing to query Ms Ospalkova’s rejection of her birth certificate. The claimant acted reasonably in accepting the respondent’s stated position on the matter. Their business is to vet candidates and deal with compliance documentation for PORTW and she acted reasonably in deferring to their decision.[248]We do not accept the claimant acted unreasonably in failing to apply for a passport as a step to mitigate. The claimant did discuss this with the Job Centre to see if funding could be obtained. She had no plans to go abroad. Her birth certificate was or ought to have been acceptable for PORTW.[249]The claimant’s conversation with Ms Ospalkova about applying to the respondent’s local branch took place on 29 October 2021 before the discriminatory act. The duty to mitigate only arises after the discrimination has occurred. In the period after the discriminatory act, we do not accept it was unreasonable of the claimant to decline to register with the respondent as part of her job seeking efforts when this was proposed by Mr Luximon or otherwise. Regardless of whether she was immediately aware of the discriminatory nature of her treatment, she had expended significant effort in applying for a position with them to be rejected in perfunctory fashion. Come May 2021, she suspected discrimination. If she applied and was recruited to a temp role via the respondent, she would enter an employment relationship with them regardless of who supervised her. In all the circumstances, it was not unreasonable for the claimant to continue to use other channels in her job search including the Job Centre and the various sites with which she was registered.[250]With respect to the list of vacancies which the respondent suggests were suitable for the claimant, we do not find it has discharged the onus to establish with respect to any vacancy on the list that applying was a reasonable step for the claimant to take or that any failure to do so was unreasonable. There was no indication when each of the vacancies arose and whether it was advertised outside the respondent or only via the respondent. The list didn’t indicate whether jobs were based in Glasgow or home working, what the hours offered were, what the pay was, or what essential criteria and qualifications were required from applicants. We accepted the claimant’s evidence that she was aware of some of the jobs mentioned on the list because they were advertised through sources and that certain of them were incompatible with her parenting responsibilities.[251]We therefore do not find that the claimant has failed in her duty to mitigate her losses.[252]As to the period of loss, there was no evidence adduced as to the average length of assignment to HMRC for candidates recruited by the respondent in November 2020. We noted that the duration of the assignments was not specified in the advert but the job description referred to them as “long-term, temporary roles“. The notice confirmed that the purpose of the roles was to support customers claiming under the various Government schemes designed to help provide financial support through the COVID-19 pandemic. It is within judicial knowledge that the various Government schemes to help with financial support through Covid including furlough continued beyond September 2021.[253]We find on the balance of probabilities, that, if appointed, the claimant would have begun her employment with the respondent on 23 November 2021 and would have continued to be employed full time as at 31 August 2021. This, we find, would most likely have been on the HMRC assignment, given its continuing purpose through those months and the description of the roles as ‘long term, temporary”. If not, we find on balance, the respondent would have managed to place the claimant on another assignment in that period on comparable hours and pay. It would have had a contractual obligation under clause 4.1 of the contract to “use its reasonable endeavours to allocate [the claimant] to suitable Assignments” in the event the HMRC assignment ended. Osma Khan displayed considerable confidence that she would have been able to find the claimant a comparable role.[254]We were unpersuaded by Ms Fallone’s submission that he claimant’s employment could have been ended by the respondent at any time on little notice or might otherwise have been frustrated.[255]What is required is an assessment of realistic changes, not every imaginable possibility, however remote, “taking into account any material and plausible evidence [the Tribunal] has from any source“ (Erichsen). There is no reason to suspect that the respondent or HMRC would have ended the claimant’s contract or assignment prematurely. We accept that the period of January to March 2021 would have been particularly challenging for the claimant as it was for many working parents up and down the country. However, we note the advertised hours were 37 hours per week, working five days out of 7, covering various working patterns between 8 am and 8 pm. The job description stated that alternative working patterns “may be considered subject to business need.“ There was therefore a degree of flexibility within the advertised arrangements including the possibility of weekend working and scope to minimise overlap with school hours in the week. We accepted the claimant’s evidence her children would pull together to support her work.[256]We, therefore, find that the period of loss was 23 November 2020 to 31 August 2021 (9 months and one week, equating to 40 weeks approximately). The lost earnings are 40 weeks x 37 hours x £10.16 per hour, equating to £15,036.80.[257]Recoupment does not apply to discrimination awards. It is necessary, when calculating the loss, to give credit for social security benefits which would not have been received if the claimant had been appointed to the respondent’s employment to work for HMRC, thus experiencing an increase in income. Identifying the amount of benefit which requires to be offset poses particular challenges when it comes to Universal Credit. The calculation of this consolidatory benefit is complex because it subsumes various other benefits including housing benefit and child tax credit. The amount received depends on an individual’s circumstances including whether they have a partner who lives with them, whether they receive child maintenance, the number of dependent children they have, their income and any capital, and any sickness or disability. Employed people on low incomes can receive the benefit and there is no limit on the number of hours they can work, though their earnings will reduce the amount of UC available.[258]We do not have the evidence or the formula to calculate with precision what the claimant’s Universal Credit entitlement would have been had she been appointed to the HMRC assignment.[259]We have, therefore, compared the evidence we have of the average Universal Credit which the claimant received while she was unemployed in the period from October 2020 to August 2021 and that which she received after securing employment with Marks and Spencer in September 2021. We acknowledge this is a crude approach, but it is the only one available on the evidence.[260]While unemployed, the average monthly payment of UC was £1,284.08. After she began earning with M&S, the average monthly payment of UC was £655. The claimant has not claimed for the period after she began work with M&S in September 2021 and it may, therefore, be inferred her earnings in that role matched, if not exceeded the earnings she would have achieved if she had been appointed by the respondent. We find that she would have remained entitled to at least the same level of UC if she had been appointed by the respondent to the HMRC role as she was entitled to when working at M&S. On that basis, the amount of benefit which falls to be set off during the period of loss is the monthly difference between the UC received out of work and that received in work. This figure is £621.08 per month (£1,284.08 minus £655). The period of loss runs from 23 November 2020 to 31 August 2021, i.e. 9.23 months. The total amount of UC which therefore falls to be offset from the claimant’s losses is £5,731 (9.23 x £655).[261]The total financial loss is therefore £9,305.80 (£15,036.80 minus £5,731). Injury to feelings[262]With respect to injury to feelings, the claimant advised that she had taken advice and had been told about the Vento bands. She said she had been advised that she should fall within the middle band.[263]Ms Fallone submitted that the tribunal should consider factors including the seriousness of the treatment, the impact on the claimant, any underlying medical conditions, the degree of upset, and the employment role of the person who committed the prohibited acts. She argued that the incidents were by low-level employees within the respondent. She pointed out that the claimant was not aware at the time that the conduct was discriminatory in nature and only became so aware six months later. It was, she said, ameliorated by the passage of time and was not a high level of upset. The claimant was not in employment relationship with the respondent and there was not a long history of involvement between them. It was a short-lived episode. She argued for a lower band Vento award, if any award at all.[264]The claimant responded that the impact on her was significant and, as she discussed in her evidence, she became withdrawn from her children, spending much time alone in her bedroom. She acknowledged that her disappointment was perhaps less enormous in November 2020, but that it was very significant in May 2021 when she discovered a white man’s birth certificate had been accepted and when she received Mr Luximon’s response to her complaint. In relation to how the impact on her manifested, she pointed out she has four children and she holds herself together for them, as she cannot afford to fall apart.[265]We focused on the actual injury suffered. The rejection in November left the claimant feeling sad, angry and weary. We acknowledge it was a one-off event and that, at the time, the claimant did not have knowledge that discrimination was relevant to her treatment. Nevertheless, it is not necessary for an injury to feelings award to be made that the claimant’s injured feelings are caused by an employee’s knowledge that they have been discriminated against (Taylor). As observed in that case, however, the immediate distress and humiliation may be greater in cases where the discrimination is overt. We have taken into account the claimant’s reaction in May 2021 on learning that she was treated differently to a white man, and accept that the injury to feeling experienced then was evoked by the original discriminatory act. We also took into account Ms Fallone’s point that this was not a case where the claimant suffered clinical psychiatric injury, though we don’t doubt her evidence that she became withdrawn. We have not found, as Ms Fallone invited us to do, that the discriminatory act was perpetrated by a low-level employee.[266]Taking all relevant factors into account, we determined that this case falls at the top end of the lower Vento band and we award the sum of £9,100 in respect of injury to feelings. Interest[267]Neither party addressed the issue of interest in their submissions. We considered whether we should use our discretion to award interest on the claimant’s losses and injury to feelings award. We have discretion as to whether to award interest but if we choose to award it, we are constrained to do so at the prescribed rate of 8%.[268]We determined not to award interest in this case. It is within judicial knowledge that the Bank of England base rate between September 2020 and September 2021 was 0.1%. If the claimant had been in receipt of the compensation at the time she incurred the losses and the injury to feelings, and if she had been able to invest it, it is unlikely she would have achieved a return of 8% on the monies or anything close to that rate.[269]We reminded ourselves that the aim is to put the claimant in the position, so far as is reasonable, that she would have been had the discriminatory act not occurred (Wheeler). We considered that to award interest on the sums would not be proportionate and would place the claimant in a better position (financially) than she would have been if the discrimination had not occurred. No interest is included on either element of the compensation.