Mr M Nakamoto v University of Aberdeen: 4111748/2018
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4111748/2018Venue AberdeenHearing 30 April, 1,2,3, 30 May & 7 June 2019
Between
Mr M NakamotoClaimantUniversity of AberdeenRespondent
Before
Employment Judge N M HosieDate 19 September 2019
JUDGMENT
The unanimous Judgment of the Tribunal is that the claim is dismissed.
REASONS
[1]The claimant advanced claims of unfair dismissal and race discrimination (comprising complaints of indirect discrimination and victimisation). The respondent admitted the dismissal but claimed that the reason was redundancy and that it was fair. The discrimination claim was denied in its entirety. E.T. Z4 (WR)
The evidence
[2]On behalf of the respondent we heard evidence from:-• Debbie Dyker, Director of People.• Professor Ian Stansfield, Deputy Director in the Institute of Medical Sciences (“IMS”).• Professor Paul Fowler, Director in the IMS.• Professor Graeme Murray, Professor of Pathology (Honorary Clinical Consultant) in the IMS.• Professor Margaret Ross, Vice-Principal and as such a member of the respondent’s Senior Management Team (“SMT”).• Lyndsey Hamilton, HR Partner. We then heard evidence from the claimant and on his behalf from: -• Professor Stefan Hoppler, Research Theme Leader in the IMS.• Regius Professor Colin McCaig, Head of the School of Medical Sciences, subsequently Medicine, Medical Sciences & Nutrition (“SMMSN”), until November 2015.[3]Each of the witnesses spoke to a written statement.[4]Three joint bundles of documentary productions were lodged (“P1/2/3”) along with a “supplementary bundle” (“P4”). These will be referred to by their volume and page numbers. Helpfully, the parties’ solicitors also lodged an “Agreed Chronology” and a “Cast List”.[5]After completing the evidence, Counsel for the parties made written submissions and the Tribunal then reconvened, on its own, on 30 May and 7 June to consider and determine the issues.
The facts
[6]Having heard the evidence and considered the documentary productions, the Tribunal was able to make the following material findings in fact. The claimant was employed by the respondent from 26 July 2006 to 31 January 2018. A statement of his terms and conditions of employment was produced (P1/67- 72).[7]The claimant is of East Asian and specifically of Japanese nationality and ethnicity.[8]He was employed as a Senior Lecturer in Cell & Development Biology in the SMMSN. As a senior academic, the claimant also held the role of Principal Investigator (“PI”), in relation to research work on which he was engaged. The IMS is a research unit within the SMMSN which has five such Institutes. The IMS is led by its Director, Professor Paul Fowler who reports to the Head of School. Between 2015 and March 2019 the Head of School was Professor Steven Heys. School Plan[9]SMMSN was created in 2015 following a review which led to reform of the respondent’s academic structure. Previously, management of academic activities and budgetary control was conducted across groups of Schools, constituted as three large Colleges. Following this reform, the management of academic activities and budgetary control was devolved to individual Schools themselves. This was necessary to address the significant financial challenges confronting the higher education sector. As part of the reform, each School prepared a School Plan, including a financial strategy.[10]The School Plan for SMMSN was one of the documentary productions (P1/18). In the year to 31 July 2016, SMMSN forecast a financial deficit of £2.1 million, increasing to £4 million for the year to 31 July 2017. SMMSN’s financial position was unsustainable and required an immediate and effective response. The SMT directed SMMSN to achieve recurring savings of £1.5 million per annum, with effect from the academic year 2016/17. The cost of “core staff” such as the claimant was known to be high in comparison with the sector average.[11]As a significant part of the deficit was attributable to IMS, the IMS Directorate decided that it was necessary to carry out a review of the academic outputs achieved by IMS staff in the preceding five years. This decision was made because the Directorate wished to properly understand how staff were contributing to critical and academic outputs. The aim of the review was to target investment to areas of proven excellence, further improving the contribution of those areas to income. Review of IMS academic output[12]Professor Stansfield was responsible for reviewing the academic outputs of IMS staff in the five year period preceding the review in November 2015.[13]The following “essential criteria” were used for the review (the core components of an academic’s work and each one “income-generating”, in one way or another): -• “Grant funding secured.• Teaching contact hours including course supervision.• Papers published.• Number of post-graduate research students supervised whether as sole or co-supervisor”.[14]Professor Stansfield produced, for illustrative purposes only, a spreadsheet showing the methodology he adopted when analysing the performance metrics across IMS (P3/135). The illustration shows 5 exemplar staff members. The column headed “Grant income” shows the total grant income secured by each member of staff in the preceding 5 year period.[15]The “Statement of Individual of Contribution” for the claimant was also produced (P1/303), along with a schedule of grant applications submitted by the claimant in the period May 2011 to September 2015 (P1/95-96).[16]The claimant had a 0.6% funded grant success (by value). A typical national funder’s grant success rate was of the order of 25%. Also, he had only published 3 papers in 5 years. The publication of high quality papers enables the respondent to secure “Research Excellence Grant” income. This requires each member of staff to have published at least 4 research papers of sufficient quality.[17]The Tribunal was of the unanimous view that each of the respondent’s witnesses gave their evidence in a measured, consistent and convincing manner and presented as credible and reliable. So far as the purpose of the review was concerned, the evidence of Professor Stansfield, which was accepted by the Tribunal, was that: - “26. In the first instance, the purpose of the analysis was never to “target” staff with poor outputs by removing them. The original intention when the data was assembled in late 2015, was to help such staff improve the level of their outputs. Nor was it thought necessary to “target” staff members in terms of their capability. It was accepted that lower levels of contribution may reflect the focus of their activities as opposed to their abilities. What we aspired to do was to re-organise the Institute so that its staff had a better chance of achieving outputs. This would be achieved by increasing our investment in areas of proven excellence in supporting staff and becoming active in those areas. This was to be done by encouraging staff to work in collaboration with colleagues who were successful in areas generating high outputs. This required the designation of areas of investment and disinvestment. The designation of areas of investment and disinvestment “27. Areas of investment were areas characterised by the excellence of their research and/or teaching, their track record in securing grant income and ability to innovate…………………………………………………………………… 29. Designation of an area of disinvestment did not mean that the activity had to stop. What was signified by the designation was that the institute would no longer support the activity with core funding.”[18]The respondent’s proposals met with resistance from the respondent’s partner trade union, the UCU. While the Tribunal was satisfied that the respondent had endeavoured to do everything reasonable to avoid compulsory redundancies, the union threatened industrial action at one stage. Consistent with its stance from the introduction of the “Consultation on Avoidance of Redundancy Policy” (P1/41-46), the union would not engage in any meaningful consultation about compulsory redundancies of “core funded” (those funded from Scottish Funding Council Grant) staff. This is reflected in Appendix A to the Policy (P1/45) which includes the following “management statement”:- “We acknowledge that it is the Policy of our recognised Campus Trades Unions not to enter into agreement on the scope of redundancy pools or the selection of staff for dismissal as a result of redundancy, therefore the following statement outlines the University’s position and is unable to be agreed by our trade Unions. The University recognises that it is important to avoid destabilising staff morale and motivation in the wider University community to the risk of staff from redundancy. Therefore, where redundancies are unavoidable, the University will adopt a position of containing the redundancy pool within the smallest appropriate unit of the University. It is anticipated that the pool will be confined to all relevant staff in a defined working group and, in practice, as a minimum this is likely to be a project team or academic disciplined/administrative section or part thereof. If a member of staff is carrying out a unique role within the University the pool may be limited to that person alone.”[19]Although at one stage the union had threatened industrial action, following discussions, facilitated by ACAS, the respondent and UCU were able to issue a Joint Statement on 27 January 2016 which included the statement that: “7. The University will aim to avoid compulsory redundancies as far as possible.” (P1/135) Voluntary Severance Scheme[20]To that end, the respondent agreed with the union that in the first instance a focused Voluntary Severance and Early Retirement Scheme (“VSS”) should be offered to all staff within the IMS. Before announcing the Scheme, and although the VSS was not considered to raise equality issues, the respondent carried out an Equality Impact Assessment (P1/157-162).[21]If the VSS was successful in achieving the necessary savings, compulsory redundancies might have been avoided. However, it was not feasible for the School to accept all applications under VSS. As Debbie Dyker, Director of People, put it:- “ 23. …………………………………………………………………………………. The objective was not to reduce the number of staff per se. The objective was to achieve financial sustainability by curtailing activity which was not achieving a satisfactory contribution to School income. Accepting VSS applications from staff in an area making a satisfactory contribution would only aggravate matters so was not a course of action open to the School. Applications from staff in areas not making a satisfactory contribution could be accepted.[24]For this reason, it was recognised that to enhance the prospect of the VSS being successful and avoiding compulsory redundancies the designated areas of disinvestment had to be identified at the same time the VSS was launched.” Launch of the VSS22. Accordingly, the Head of School, Professor Steven Heys, sent an e-mail to all staff on 18 July 2016 to invite applications for VS (P1/163-164).23. In his e-mail he defined the areas of disinvestment on the basis of those identified in the School Plan (P1/115). These included “Eph Receptor and Nel Glycoprotein Biology (“ERNGB”) which was the claimant’s area of research. It was the eighth in the list. Individual researchers could also be identified in the ninth and tenth areas in the list. They were also Japanese. 24. The following is an excerpt from Professor Heys e-mail (P1/164):- “We hope that the level of interest in early retirement and voluntary severance during this period will be sufficient for the School to achieve its savings targets. You may recall the University worked closely with ACAS and UCU in January to reach agreement with UCU that should this scheme not achieve the savings required a collective consultation process with the Campus Trades Unions as per the terms of the Consultation on Avoidance of Redundancy Policy (P1/41-46) would commence.”[25]In addition to his e-mail of 18 July 2016, Professor Heys made personal contact with all the employees working in the designated areas of disinvestment and made himself available for discussion. Each of the employees in the designated areas was also invited by the Directors of IMS to meet with a Director to discuss any queries which they might have. Each staff member had an academic line manager (“ALM”). The claimant’s ALM at the time was Professor Iain McEwan. Professor Heys met with the ALMs and briefed them on the launch of the VSS and how to deal with any queries or concerns they had.[26]Mindful that if insufficient numbers of staff left by means of VSS, to achieve the required savings, that the savings would have to be achieved by compulsory redundancy, the respondent consulted with the Unions through the Joint Consultative Committee on redundancy avoidance (“JCCRA”) as provided in its policy. There was a JCCRA meeting on 10 August 2016 (P1/165-170) when the Unions asked for information relating to age and ethnicity profile of academic staff in SMMSN and the wider University. This information was provided by the HR partners in IMS on 17 August 2016 (P1/171-172). Extension of the VSS[27]The Scheme was to be made available until 31 August 2016. However, when it appeared that there would be insufficient applications which could be accepted, the respondent decided to extend the Scheme to 30 September 2016. This was confirmed by Mrs Dyker at a JCCRA meeting on 24 August (P1/175-179).[28]At that meeting, Mrs Dyker was questioned about the way the IMS Directorate had identified designated areas of investment and disinvestment, which was a recurring theme. The Minutes recorded that Mrs Dyker replied as follows:- “Mrs Dyker stated that the school had gone through a rigorous process to develop the school plan and identify areas for disinvestment. They looked at teaching, PhDs, research outputs and income and consider items that would form the basis of criteria in a Redundancy scheme. They looked at areas without critical mass; they were comfortable with the rigour of the assessment which had taken place.”[29]When the VSS was launched, the number of staff identified as working in designated areas of disinvestment totalled 30. Of these 7 applied for VS. All of these applications were granted. That relatively small number meant that restructuring the School (and those parts of the School such as IMS responsible for the financial deficit) was unavoidable if financial stability was to be delivered.[30]Accordingly, on 23 September 2016 Professor Heys sent an e-mail to all school staff notifying them that the VSS was unlikely to deliver enough savings and that the University was, via JCCRA, to consult partner Unions regarding compulsory redundancies.[31]The restructuring of the School was discussed at a JCCRA meeting on 12 October (P1/207-210). The following is an excerpt from the Minutes:- “3. UPDATE ON VOLUNTARY SEVERANCE Mrs Dyker confirmed nine offers of Voluntary Severance had been made, seven to individuals in areas of disinvestment. Three individuals had not yet signed their agreements but had indicated that it was highly likely that they would. In addition those with deferred applications had been informed that their applications had been declined. In total the University anticipated savings of £538K. Mr Dawson asked why the academic applicant had been turned down. Professor Hannaford indicated that he had explored this in detail with the school including a range of options, but the post was critical to business continuity. Ms McGurk noted that the VS scheme was now closed and asked if the option was still open to staff as they moved to the next stages. Mrs Dyker stated that individuals would be written to after the meeting to inform them that they are risk (sic) and invite them to meet with the Head of School. At this meeting they will explore all the options, if staff want to come forward for VS at this stage they would need to think about this. They would still expect staff to finish on 31 October.”[32]As it was clear by then that the VSS would not achieve the level of savings required for the financial sustainability of the School to be achieved, consideration of compulsory redundancies became increasingly likely. An Equality Diversity Impact Assessment (“EIA”) was carried out by the HR Partners for the School (P1/195-206). The effect of the VSS was that the number of staff who were identified as being at risk of redundancy, out of the initial pool of 32, was 23 staff members as per the EIA. Within this, 5 of the staff were from a minority background – 21.7% of the overall population of staff at risk. Grievance[33]By e-mail dated 20 September 2016 (P1/181), the UCU intimated a collective grievance on behalf of 10 staff, including the claimant. The grievance related to alleged failures on the part of the respondent in relation to:- “• The targeting of individuals;• Equality issues/protected characteristics of targeted individuals;• Harassment/bullying.” Redundancy Process in respect of the claimant[34]On the same day as the JCCRA meeting on 12 October, Professor Heys wrote to the claimant to advise him that his post had been identified as being at risk of redundancy (P1/211-212). Collective grievance[35]At the same time, the respondent sought to address the collective grievance which had been submitted before any employee had formally been placed at risk of redundancy. The respondent’s Grievance Procedure was produced (P1/61-66).[36]Professor Phil Hannafor investigated and considered the grievance. He met informally with the trade union representatives and sought to address the issues which they raised in a letter of 17 October (P1/213-215).[37]The grievance was taken to stage 2 by the Unions (P1/241-246) which comprised the original three concerns which had been raised and six additional concerns. There was also included individual submissions represented by seven of the employees concerned including the claimant (P1/247-252). This contained the first written accusations by the claimant of, “targeting of individuals; lack of transparency in the procedures; damage to teaching activities at the University; concerns regarding ethnic equality; public harassment and bullying”.[38]Mrs Dyker provided a formal response to the grievance by letter dated 14 December 2016 (P1/331-336).[39]After the claimant and others had been advised by letter on 12 October 2016 that they were at risk of redundancy (P1/211-212), the respondent renewed its efforts to source additional external funding. As a consequence, as at 22 November the number of those at risk had been reduced to five (P2/487-488) and ultimately it proved possible for the respondent to avoid any compulsory redundancies as a consequence of the restructuring. Consultation with the claimant First consultation meeting on 20 October 2016[40]Minutes of the meeting Professor Heys had with the claimant and his trade union representative were produced (P1/221-225).[41]The claimant was unconvinced as to the reason why his area of work had been identified as one of disinvestment. This was addressed at the first consultation meeting and also in an e-mail which Fiona MacAskill, HR Partner, sent to the claimant on 24 October (P1/253-254). However, he remained unconvinced. He expressed his continuing concerns in his e-mail of 28 October (P1/253).[42]The issue was addressed again by Ms MacAskill in an e-mail which she sent to the claimant on 3 November (P1/255). The following is an excerpt:- “In the meantime, let me respond to the matters you have raised in your email. In no sense do I want to appear to be unhelpful and aggravate your concerns. However, I am concerned that the information which you have asked for may indicate that you are proceeding on a mistaken understanding of the approach and factors adopted in the formulation in the School Plan 2015- 2020 and the consequent need for re-organisation of the activity within the School. The need for disinvestment within the School is not an end in itself but a means to an end. The end is to take early steps to help address the School’s deficit and at the same time to improve income generation over a longer sustained period. The sustainability and future success of the School requires priority being given to activities which generate income from both teaching and research. Whilst continuing to focus on research strength and opportunities to grow the main improvement in School income in the short term is expected to come from teaching. In the course of the planning no specific area of research still less individuals working in specific areas were targeted. What was crucial in planning for sustainability was not the precise designation of scientific work being carried out or the label used to describe that work but the outcomes reasonably to be expected from activity. Generally, it can only be where those outcomes include a satisfactory level of expected income but the activity, however it is labelled, will justify future investment. As I explained in my email of 24 October the School Executive reviewed all of the research activity within the School. An essential purpose of the review was an assessment of the level of income reasonably to be expected from areas of activity. Necessarily that review was based on actual evidence and available through the use of information available from the website, PURE publications and research grants database. I completely agree that given the importance of these matters to the School and its staff that the re-organisation of the School must be conducted by processes which are objective, transparent and fair. Consistent with that requirement the assessment of anticipated income level from all areas of School activity, including your own, was based on as comprehensive and accurate information as was available to the Executive team. It is specifically in regard to that matter that you are invited to provide whatever further information you believe to be relevant.”[43]However, the claimant still remained unconvinced. He engaged the support of a number of third parties who made representations to the respondent on his behalf. These included MPs, MSPs, the Grampian Regional Equality Council (“GREC”) and his trade union. The respondent responded to all of them.[44]On 11 November 2016, the respondent received a letter from GREC (P1/257). The respondent’s Principal Employment Solicitor replied, at some length, on 23 November (P1/267-271).[45]On 1 December, the respondent received a letter from the claimant’s trade union enclosing an ACAS Discrimination Questionnaire (P1/273).[46]The respondent’s Principal Employment Solicitor replied on 7 December 2016 (P1/285-292). Further information, including statistical information was sent to the trade union by e-mail on 15 February 2017 (P2-401/405). Redeployment[47]On 5 December, the respondent’s Senior Vice-Principal, Professor Jeremy Kilburn, intimated by e-mail that, “alternative employment opportunities have been identified for the remaining four staff who were at risk of redundancy as a consequence of the restructuring” (P1/281-282). One reason the e-mail was sent then was that a day of strike action had been called by the UCU for 7 December 2016 and to give information to staff of how the respondent intended managing that situation. The position of the UCU was set out in a press release issued on 5 December 2016 (P1/283-284).[48]On 2 December 2016 Ms MacAskill, the respondent’s HR Partner, sent an email to the claimant with details of the respondent’s efforts to redeploy him (P1/279-280). There was attached to the e-mail a “Statement of Individual Contribution”, showing the assessed level of the contribution of his area of work in comparison with that being achieved in areas of investment (P1/303). The following are excerpts from the e-mail:- “Quite apart from any issue relating to the identification of your area of activity the shortfall between your recorded contribution and the benchmark of the frame work of Academic Expectations is no longer sustainable. This is by reason of the School’s financial deficit. The unsustainable level of your recorded contribution is consistent with the designation of areas of disinvestment in the School’s Plan of your inclusion in the pool of employees at risk of redundancy. It is accepted that it is not sufficient for the University merely to comply with the legal requirement that its legitimate aims are pursued by proportionate means. Our shared ambition is to achieve a caring culture in which all are fully engaged and committed to our future. For this to happen are two essential elements (sic). Firstly, our staff have to be making contributions aligned with the School Plan. Secondly, they have to be enabled to realise their full potential. That is precisely what the opportunities for redeployment are intended to achieve. If accepted you will be working in an area designated for investment in the School Plan. In addition it creates for you the opportunity with the support of the University to better realise your potential to achieve a sustainable level of contribution assuring you continued employment.” Second consultation meeting on 8 December 2016[49]Minutes of that meeting which the claimant and his trade union representative had with Professor Heys, Head of School, were produced (P1/299-301).[50]By 9 December 2016, as the claimant had still not accepted alternative employment, Professor Heys wrote to him to advise that he had recommended to the Redundancy Dismissal Panel that his employment be terminated on the ground redundancy (P1/295).[51]Professor Heys enclosed with his letter a copy of his recommendation to the Panel (P1/295-297). The following are excerpts:- “Reason for Redundancy: The financial position of the School of (sic) unsustainable and as such areas of disinvestment were identified. Dr. Nakamoto’s research area of EPH RECPOTR and NEL Glyoprotein Biology has been identified as not being an area of strategic importance, as the area does not have the critical mass in order to sustain in a research intensive University. As such research in this area will be discontinued………………………………………………………….. Redeployment opportunities The following redeployment opportunities were highlighted for Dr. Nakamoto’s consideration: 1. A Research Fellow post with Prof Graeme Murray which is funded for one year 2. A Research Fellow post funded for two years with Tau RX If appointed to either of these posts Dr. Nakamoto’s current salary will be preserved in line with University Pay Protection Policy. His current title will also be maintained. Dr. Nakamoto has also had access to redeployment vacancies across the University.”[52]On 14 December 2016, the claimant made extensive written representations to the Panel (P1/305-314). Professor Colin McCaig, the Regius Professor of Physiology and former Head of School, also submitted a letter to the Panel in support of the claimant. Collective grievance[53]In the meantime, the respondent continued to deal with the collective grievance submitted by UCU on behalf of staff. By letter dated 14 December 2016, Mrs Dyker set out the respondent’s response to the grievance (P1/331- 338). Correspondence also continued with GREC. Their General Manager wrote to the respondent’s Principal Employment Solicitor on 15 December with further questions (P1/337-338). Redundancy dismissal panel (“the Panel”)[54]The Panel met on 16 December 2016. The outcome of the Panel’s decision was communicated to the claimant by letter from Fiona MacAskill dated 20 December 2016 (P1/381-382). The claimant was advised that his current position as Senior Lecturer was redundant but that he would be allocated comparable alternative duties which would allow his employment to be continued. The following are excerpts from the letter:- “In reaching its decision the Panel gave careful consideration to your circumstances but agreed with the proposal that your current post as Senior Lecturer at the University is redundant. The Panel gave careful consideration to your circumstances and whilst it agreed that the continuation of your previous duties cannot be justified it did not agree that it was necessary that your employment with the University be terminated. Mindful of the fact that the University has an obligation to mitigate any redundancy situation it was the Panel’s decision that by allocating to you comparable alternative duties your employment by the University can be continued. The alternative duties are to be provided in the following terms and conditions: - 1. Your continuity of employment will be preserved. 2. From 1 January 2017 you will undertake a research position in Professor Graeme Murray’s research group. Your terms of employment will be protected and this includes protection of your job title, Senior Lecturer, your grade and your salary. 3. The purpose of this post is to deliver research and associated activities in the Institute of Medical Sciences, within the School of Medicine, Medical Sciences and Nutrition. These activities are expected to be completed by 31 December 2017. 4. Your basic salary will be paid at the top point (spinal point 49) on Grade 8 of the University of Aberdeen Staff Grading Structure which is currently £55,998 per annum. 5. It has been agreed that for the duration of the 12 month post (and up to a maximum of 4 years if the post is extended further), your salary will be pay protected. During this period your salary shall remain at £55,998. Throughout the pay protection period you will receive any agreed general increases to the pay scale which are negotiated but you will not subject to any further incremental progression. 6. You will commence your revised duties from 1 January 2017. If you require any additional training to deliver the full duties of this role, please ensure that you advise me of this by Friday, 6 January 2017 and I will put the necessary arrangements in place.”[55]The reason that the alternative post was time limited to the end of 2017 was the source of funding which had been secured to support the claimant’s continued employment. The source was a budget held by the Principal, known as the “Principal’s Dowry”. A budget allocated for specific activity that the Principal deemed a priority. The main aim of the redeployment was to afford the claimant the chance of applying for grants to provide research funding which would allow the continuation of his employment beyond December 2017 when the funding made available by the Principal was to cease.[56]However, on 23 December the claimant sent an e-mail to Ms MacAskill responding to the offer of alternative employment as follows (P2/386-387):- “Thank you for your letter regarding the decision of the Redundancy Dismissal Panel held on 16 December 2016 (P1/381-382). I reviewed the letter with help of my colleagues and legal advice. I would like to inform you that I do not accept your purported variation to my contract or employment (sic). I will be reporting for work from 1 January 2017 and I will be undertaking my existing duties until instructed otherwise.”[57]Ms MacAskill responded by e-mail on 5 January (P2/386) as follows:- “Thank you for your e-mail of 23 December. I was on leave when you sent it and have just returned to work, hence the delay in my response. Very considerable efforts have been made to redeploy you within the School allowing your employment by the University to continue. It is not clear on what basis you believe it to be in your interest or helpful to refuse to cooperate with these efforts. On any analysis your previous level of contribution was unsustainable. This is not to say that you personally have been targeted. No other employee with the comparable level of contribution has been treated more favourably. It is simply unrealistic to adopt that stance that others who have accepted the re-organisation of activities within the School must through their contributions sustain your employment and activities from which investment is to be withdrawn. The new opportunity extended to you aligns with areas identified for investment and in consequence directly advances your interest. Indeed, this is a key objective of the School Plan. Beyond this the School has already implemented a range of additional measures which will support you in the future. This includes a three stage grant application mentorship process designed to enhance the competitiveness of grant applications. This is further complemented by the School’s recent appointment of external consultants to deliver grant writing, training courses to staff, which the School is active and develop plans to repeat the near future. We do not consider that a legalistic approach to matters is particularly helpful. This said, in terms of your contract of employment your duties include unspecified research activities which may be changed from time to time. The new duties allocated to you fall within the ambit of your contract. Should you refuse to undertake those duties you will be in breach of your contract. To reiterate, it is not clear on what basis you believe it would be in your interest to refuse to co-operate with all the efforts made to support your continued employment by the University. Please therefore meet with Professor Graeme Murray and Prof. Paul Fowler on Monday 9 January 2pm so that your new duties and the additional support that will be provided to you in your employment can be discussed. The meeting will be held in Prof. Murray’s office which is in the Pathology Department. Graeme will meet you at 2pm at the entrance to the Pathology/Link Building on the 3rd floor of Polwarth and show you up to his office.”[58]The claimant replied to Lindsey Hamilton, HR Partner, by e-mail on 25 January as follows (P2/285):- “I refer to your offer of a research position which was offered to me on 20 December 2016 (see the attached letter from the Redundancy Dismissal Panel). I am prepared to accept the new position from 25 January 2017 only on the basis that it amounts to a dismissal from my old role and reengagement in a lower-status and insecure role. I reserve the right to take an unfair dismissal claim arising out of that dismissal and re-engagement. Further, I reserve the right to take a race discrimination claim arising out of the dismissal and re-engagement and the circumstances leading up to it.”[59]Ms Hamilton replied by e-mail later that day as follows (P2/385):- “Thank you for your e-mail. I am pleased to note that you are able to undertake the new duties. It is accepted that your decision to do so is without prejudice to your rights.”[60]Accordingly, the claimant attended for work with Professor Murray in the new post on 25 January 2017. Collective grievance – stage 3[61]On 19 January 2017, the respondent received notification from the claimant’s trade union that they wished the collective grievance to proceed to stage 3 (P2/383). GREC[62]By letter dated 25 January 2017 (P2/389-394), the respondent’s Principal Solicitor replied to the letter of 15 December 2016 from GREC (P1/337-338). Collective grievance – stage 3[63]The hearing which was conducted by Professor Peter McGeorge, one of the respondent’s Vice-Principals, took place on 22 February 2017. His report and its eight appendices were sent to the employees concerned by letter dated 23 March 2017 (P2/417-452). Appeal[64]On 3 April 2017, the UCU submitted detailed grounds of appeal against the outcome of Professor McGeorge’s report (P2/463-464).[65]In response, Debbie Dyker, Director of HR, wrote to the UCU (P2/471-472). She proposed that matters be referred to a decision of an independent person from the panel already agreed with the UCU for purposes of hearing appeals against dismissal on grounds of redundancy. An agreement was reached after discussion and this was recorded in an exchange of e-mails on 9 and 11 May (P2/491-492). Mrs Dyker understood that it had been accepted by the UCU that a further appeal to the respondent’s Grievance Procedure was not required. “Lesson learned paper”[66]In the meantime, the respondent had been reflecting on the restructuring exercise that had taken place in SMMSN. On 3 February 2017, Professor Margaret Ross, the Vice-Principal with responsibility for “people strategy”, was asked formally by the respondent’s secretary, Mrs Caroline Inglis, to conduct a “Lessons Learned” exercise which would be reported to the respondent’s Operating Board, of which Professor Ross was not a member.[67]There was referred to Professor Ross, Mrs Dyker’s “Executive Summary” which she had submitted to the Operating Board on 1 February 2017 (P2/395/396).[68]The respondent also considered the ethnic composition of staff members before and after the restructuring exercise (P2/397). Matters also continued to be discussed by the JCCRA at its meeting on 15 March (P2/413-414).[69]Having carried out further investigations, including discussions with the unions, Professor Ross submitted her final paper to the Operating Board on 9 May (P2/479-490). She attended the meeting of the Board on that date to speak to her paper.[70]At para.4.1 she concluded that while appropriate process had been followed throughout, “lessons could be learned”. Claimant at risk of redundancy again[71]In the meantime, funding had been made available through the “Principal’s Dowry” for the claimant to be redeployed for one year to work in Professor Murray’s research group. The main aim of this redeployment was to allow the claimant the opportunity of applying for research funding that would allow the continuation of his employment beyond December 2017 when the funding made available by the Principal was to cease.[72]However, the respondent’s “Consultation on avoidance of Redundancy Policy” provides that the consultation process should commence, “at least five months prior to the effective date of the proposed redundancy” (P1/43, para.4.2.2). Accordingly, on 16 March 2017 the respondent wrote to the claimant to advise him that he was again at risk of redundancy (P2/415). First stage consultation meeting[73]A meeting was convened by Professor Fowler on 28 March 2017. The claimant was in attendance with his trade union representative. Minutes of the meeting were produced (P2/453). We were satisfied that they were reasonably accurate.[74]Professor Fowler had further e-mail correspondence with the claimant and the respondent’s HR Partner from 6 April (P2/499-493). From this, Professor Fowler came to the view that the claimant did not appear to be making the most of the redeployment opportunity.[75]The claimant complained of being relieved of his responsibilities in respect of the two grants on which he was working prior to his redeployment. Professor Fowler gave evidence about these grants and the claimant’s commitment to his new role. The Tribunal was of the unanimous view that his evidence in this regard was credible and reliable. His evidence was corroborated, to a large extent, by that of Professor Murray. Professor Fowler said this in his written statement:- “30. Despite the support provided to him the claimant refused, or was unable, to accept that there was any need change (sic) the focus of their research or approach to their work. When redeployed the claimant was working on two grants. The first of these was a Bowel & Cancer Research grant entitled “How to help normal cells battle against bowel cancel cells”. This grant was a relatively small grant of £45,500 due to run for the 18-month period between September 2016-March 2018. The claimant was the PI but Professor Graeme Murray was co-applicant. The claimant’s wife Chizu Nakamoto who was also employed within IMS as a Research Fellow worked on the grant.31. The second grant was a Friends of Anchor grant entitled “How to help normal cells win the battle for survival against prostate cancer cells”. Again, this was a relatively small grant. For this grant, the claimant was PI but with two co-applicants these being Professor Iain McEwan, the claimant’s Academic Line Manager, and Professor Graeme Murray, to whose group the claimant had been redeployed.32. Given the limited funds supporting the redeployment, it was essential to free the claimant from his previous unsuccessful work constituted by the two charitable grants. This would free him to concentrate all his efforts, in collaboration with Professor Murray in securing a much larger grant supporting a continuation of his employment. It would not have been difficult to facilitate this. As of January 2017, when the claimant accepted the new post, very little of the Friends of Anchor grant had been spent. At little cost to the School the grant could have been returned to the Charity.33. We noted that the Bowel & Cancer Research grant was supporting the employment of the claimant’s wife Chizu. Out of consideration to Chizu as a University employee we thought the best solution was to complete the grant, thereby sustaining Chizu’s employment. However, having Professor Murray undertake the responsibilities of PI for the grant, including the compulsory reporting process, would relieve the claimant from that task. This then would release the claimant to devote his time to securing the much larger grant.34. Unfortunately, none of this was seen as positive or helpful by the claimant. The claimant harboured tremendous resentment against the way they had been treated, accusing the IMS directorate of targeting the claimant apparently on grounds of his race. From this stand point the claimant saw everything being done to help them as simply further evidence of unfavourable treatment. The claimant appeared to think that the steps were all to their detriment. However, this was only true if the claimant’s level of previous productivity had supported their previous employment. That was clearly not the case. In 2015 the claimant’s work was appraised by Professor Colin McCaig, then Head of School Medical Sciences and found to be unacceptable in terms of productivity. Document 12, at page 83 reference (P1/83) is an assessment of the claimant’s performance carried out in April 2015. This records nil aggregated research awards over 5 years and performance significantly below expectations in terms of research output, teaching hours and supervision of post-graduates (i.e. PhD and/or MSc students).35. The low level of outputs achieved indicated the claimant’s workload was not excessive. Furthermore, there were other problems with the claimant’s work performance which had a direct adverse impact on the finances of the school. The claimant was PI for a significant grant (Cellular and molecular functions and signaling mechanisms of NEL) awarded by the BBSRC, a government research council. This grant was awarded in October 2009 and continued, including a six month no cost extension, until March 2013. One of the standard conditions of such grants requires that a final report is submitted. As PI the claimant was responsible for the production of that report but failed to do so. The direct financial consequence for the University was that the BBSRC fined the University a sanction of £112,680. In addition the claimant overspent the grant by £7,436 so that, in total, this grant cost the University £120,116. An indirect consequence of the failure for the claimant was that in the absence of the final report future grant applications made by them as PI to BBSRC were less likely to be successful. The claimant made grant applications to BBSRC in January 2012, in September 2012 and September 2013. The amounts requested in these grants were respectively £639,797, £404,390 and £414,442. None of these applications were successful.36. The steps taken to allow the claimant to salvage their research career were not optional but necessary. As such these steps were to the benefit of and not the detriment of the claimant. None of the steps taken were actuated by the claimant’s resentment against the steps that were necessary or his assertions of being targeted on grounds of race. Had there been no resentment and no accusations the situation would have remained the same. The very same steps would have been necessary because these steps were required to salvage the claimant’s career.”[76]Professor Fowler’s view that the redeployment had failed was supported by the evidence of Professor Murray who also presented as credible and reliable. Professor Murray said that he endeavoured to be as supportive of the claimant as he could. However, as time went on, he, “detected little evidence of his significantly appreciating the potential value of the opportunity. He certainly did not grasp it as I thought he should.”[77]At the outset, he prepared a summary of the post and listed the “Key duties” (P1/265). He further advised the claimant that he should “concentrate his efforts on firstly, the existing grants already secured; secondly, by his becoming involved in a research project (of Professor Murray’s) which was already up and running and which was scheduled to conclude in 2017; and thirdly, the publication of a review of existing scientific literature relevant to this work.”[78]When giving evidence, Professor Murray referred to a document which gave details of one of his ongoing projects which he believed was a good opportunity for the claimant (P3/134). He believed that the claimant should have been able to make a material contribution to this project from which he would have derived full credit for his work. It also afforded him the opportunity of presenting a paper at an academic conference. According to Professor Murray, he failed to “grasp the opportunity”.[79]Professor Murray anticipated that as the claimant had not undertaken any new work he would be able to make quicker progress with his existing grants. However, the progress was much slower than Professor Murray would have expected from someone who previously had been a Senior Lecturer. Professor Murray formed the view that the claimant greatly resented the way he had been treated during the restructuring. He appeared to be more engaged in his dispute over this than his work with him. To support the claimant, Professor Murray arranged weekly meetings with him (P2/457-459). However, on several occasions the claimant cancelled the meetings.[80]Professor Murray voiced his concerns about the lack of progress in the first quarter of 2017 to the HR Partner, Lyndsey Hamilton, Professor Iain MacEwan, who was the claimant’s academic Line Manager, and members of the IMS Directorate. Friends of Anchor and Bowel & Cancer Research Grants[81]Professor Murray also gave evidence, which we accepted, about the two grants for which the claimant was PI, when he took up his new post with him. Around March 2017, the Directors of the IMS discussed the claimant’s responsibilities for these grants with him. They concluded that more concentrated efforts should be applied to a restricted number of grants. Of the ongoing grants, the one in which the most, albeit still limited, progress was being made was the Bowel & Cancer Research grant. This was the grant on which the claimant’s wife was engaged. The results of the grant all appeared to be recorded in her lab book. There was little apparent sign of the claimant having any direct hands on involvement and at all the meetings the claimant had with Professor Murray he was accompanied by his wife. It was decided, therefore, that Professor Murray should undertake the responsibilities of PI for the grant which would free up the claimant to secure other larger grants.[82]The IMS Directorate also reviewed the Friends of Anchor grant and felt that, as there had been little spend or progress on the grant, it was better to draw a line under it and return it. Although not the instigator of these decisions, Professor Murray thought it was the best course of action for both the claimant and the respondent .[83]The claimant was very unhappy with this change. He didn’t accept it and felt that he should remain as PI. This led to further difficulty in his relationship with Professor Murray.[84]On 18 May the claimant sent an e-mail to the Chief Executive of the Bowel & Cancer Charity (P2/501-502). The following are excerpts:- “Last Friday (12 May), I was shocked to be told by Prof Paul Fowler (Director of the Institute of Medical Sciences) (IMS) of University of Aberdeen) that the University had notified Bowel & Cancer Research (B&CR) that the Principal Investigator (PI) of the above grant is changed from me to Prof Graeme Murray (a co-investigator of the grant project) and B&CR has agreed with the change. I would like to inform you that I have not agreed or accepted the change of the PI of this grant, and the University has done this unilaterally and entirely without my consent. I believe that the change of PI would significantly impair progress of the project and prevent us from making the best use of charity funds, for the following reasons…..” 3. Concerns of institutional discrimination against ethnic minorities The University has done this as part of the “restructuring procedure”, which has been conducted in our School (School of Medical Sciences, Medicine & Nutrition; Head of School, Prof Steve Hays) since July 2016. The procedures which involved targeting of specific academic staff members for redundancies and promotions, have been highly problematic and controversial regarding transparency and fairness of the processes and are still subject to Grievance Procedure Investigation. In addition, there are serious concerns of institutional discrimination against ethnic minorities during the School “restructuring procedures”. For example: - Disproportionately high numbers of ethnic minorities were targeted for redundancy and promotion: Whereas ethnic minorities represent only less than 3% of the academic staff in the School, one-third (5 out of 15) of the targeted members were East Asians (November 2016). - Targeted ethnic minorities were demoted to lower status position. In contrast, no white staff members have been demoted to a non-PI position or deprived of their active grants.”[85]When the Charity received this communication from the claimant they advised the respondent they were going to stop providing further funding until they investigated the matter further. Professor Murray told the claimant that he thought his comments unwise and should not have been made to the Charity. He did not accept that to be so. He did not accept that admonition. Nevertheless, Professor Murray was prepared to “move on” and continue the efforts to progress the claimant’s research. However, the rate of progress, did not improve and, to Professor Murray’s mind, was never satisfactory. In his view, the claimant was unable to achieve the rate of progress he would have expected from someone with his experience. He found the claimant to have little or any appreciation of the responsibility placed on a PI to carry out effective research and he demonstrated no inclination to be held accountable for the lack of progress.[86]Professor Fowler had the same view as Professor Murray. He said this in his evidence:- “The failure of the redeployment 37. So far as I could tell, the Claimant appeared to believe that he should be allowed to devote his time and the School devote its resources to activity irrespective of its lack of academic outputs being achieved. This ignores the requirement for work to be financially sustainable.” Claimant’s conduct with regard to the Friends of Anchor and Bowel & Cancer Research Grants[87]Three allegations of misconduct by the claimant were considered (P2/551- 552): - “1) Failure to follow reasonable management instructions by continuing to spend on the Friends of Anchor Grant, despite being told that it would be returned. 2) Potentially bringing the University into disrepute by making inappropriate allegations with regards to your employment in your e-mail to Bowel & Cancer Research. 3) Acted in an inappropriate manner by failing to consult with and obtain agreement from fellow grant holders prior to submitting a grant report to a funder” (P2/519).[88]The allegations were investigated by Professor Bhattacharya (P2/565-579) on 27 July 2017. This led to a “Formal Disciplinary Investigation Meeting” with the claimant (P2/581-600) on 3 August. However, no disciplinary action was taken against the claimant. Second stage consultation meeting on 14 June 2017[89]Minutes of that meeting, which was conducted again by Professor Fowler, were produced (P2/505-506). We were satisfied that they were reasonably accurate.[90]As we recorded above, we were of the unanimous view that the evidence of Professor Fowler was both credible and reliable. He said this about the meetings which he had with the claimant:- “40. At our meetings I found the claimant excitable and hostile. It was difficult to achieve any sense of direction during the meetings or to keep to an agenda. The claimant repeatedly circled back to make the point that he should never have been at risk of redundancy and should simply be allowed to continue as before. At no point was there any acknowledgement of the underlying facts. The claimant’s approach was to seek ways of attacking the School and its decisions at the expense of any discussion about how he could be supported in salvaging his career.” Dismissal[91]By letter dated 22 June 2017, Professor Fowler wrote to the claimant to advise him that, as he had been unable to secure alternative employment, he was recommending to the Redundancy Dismissal Panel, his dismissal on grounds of redundancy, with effect from 31 December 2017 (P2/507).[92]The recommendation was included with the documentary productions (P2/508-509). The recommendation was made because the funding supporting the claimant’s redeployment post was due to cease on 31 December 2017. The Panel was advised that, “Dr. Nakamoto had been awarded additional funding to extend his appointment by 12 months so that he could work in an area of investment, strengthening his CV, publish papers and submit grant applications. There is no further funding available from core funds”. Although there was no further funding available, Professors Murray and McEwan were to continue to work with the claimant, “to encourage and support grant applications”.[93]The Panel accepted the recommendation that the claimant’s employment be terminated with notice on grounds of redundancy. This was confirmed by Fiona MacAskill, HR Partner, in her letter of 30 June 2017 to him (P2/511- 513).[94]As it appeared that the claimant had only received Professor Fowler’s letter of 22 June 2017 on 29 June, this had prevented him from making additional representations. On 7 July, therefore, Fiona MacAskill circulated a submission prepared by the claimant to the Panel members. They were asked to review the documentation and reconsider their decision (P2/517- 515). One member of the Panel was Professor Margaret Ross from whom we heard evidence at the tribunal hearing. She had completed the “Lessons Learned” exercise in May (P2/479-490). In her e-mail of 11 July, she said this by way of reply to Ms MacAskill (P2/515-516):- “I have read these again. I do not think that much of this submission is relevant, and in so far as there is the proposal that “all targeted staff” are returned to their original status that is an incompetent request. I have focused on the management of his work and expectations in the current role, and it seems to me that there is much focus on the request for clarity as to what people want him to do, and little attention to what one would expect by way of self-motivation to secure funding in an experienced academic. The list of funding successes looks modest for such a long period of employment in that field. Taking all that into account the case for redundancy at this time is still made, and of course he has another 5.5 months in which the external funding situation may change. I should say that the repeated allegations of racism, apparently in more lurid terms than before, are somewhat galling. When I was asked to review the lessons learned from the Restructuring exercise, and to look into issues of impact on minority groups the UCU could not get its members (including Dr. Nakamoto) to make specific their concerns while other processes are pending and they provided only general comments which were fed into the lessons learned report.”[95]The other members of the Panel agreed (P2/515). The decision to dismiss was unaltered. This outcome was communicated to the claimant by Ms MacAskill in a letter dated 13 July (P2/531). Appeal against dismissal[96]On 2 August 2017, the claimant intimated that he wished to appeal against his dismissal (P2/559-564).[97]On 1 August, the claimant had also intimated a formal grievance regarding the manner in which he alleged he had been treated by the “School Executive” (P2/555-557). His grievance included the fact that there was to be included an investigation into his conduct under the disciplinary procedure (P2/551-553). Mediation[98]This meant that at that time he was appealing against his dismissal, he was the subject of an investigation into his conduct and he had also submitted a formal grievance. Mindful of the limited nature of the funding support which had been made available for his redeployed role and that it would come to an end on 31 December if additional funding could not be secured, Mrs Dyker suggested that Mediation be attempted and that all formal procedures be held in abeyance. The claimant agreed. An independent accredited mediator was engaged by the respondent. The Mediation took place on 26 October but proved unsuccessful.[99]Although Professor Murray remained concerned about the claimant’s lack of progress and there was an apparent reluctance on the part of the claimant to communicate which made it difficult for him to provide effective assistance, he persisted with the weekly meetings until November 2017. The claimant cancelled a meeting scheduled for 15 November. That was Professor Murray’s last contact with him. Appeal Hearing[100]As the respondent was of the view that it would be preferable for all concerned that the appeal be heard before the effective date of termination, this was delayed for one month, with the additional salary costs being met by the School (P2/661).[101]With the agreement of the claimant, Reg Christie, Solicitor and retired Employment Judge, was engaged by the respondent to hear the appeal.[102]The claimant made detailed written representations in support of his appeal (P2/665-660).[103]As the date originally set for the appeal hearing approached, further discussions between the parties took place which it was hoped would avoid the requirement for an appeal hearing but these discussions proved unsuccessful. Ultimately, therefore, the appeal hearing proceeded before Mr Christie on 20, 21 and 28 March 2018 (P719-796).[104]The claimant’s appeal was not upheld. Mr Christie provided a Note giving detailed reasons for his decision (P2/797-814). Submissions[105]The parties’ Counsel made written submissions which are referred to for their terms.[106]In his written submissions, the claimant’s Counsel clarified his position in respect of the complaints which he wished to advance. Helpfully, he intimated that the complaints of direct race discrimination and victimisation were withdrawn, “save as in respect of the respondent’s decision, by Professor Heys, that the claimant was to return to the Friends of Anchor grant and his removal as Principal Investigator of the Bowel & Cancel Research grant”.[107]The complaints advanced, therefore, were those of unfair dismissal, indirect discrimination and victimisation (as qualified). Respondent’s Submissions[108]In support of his submissions, the respondent’s Counsel referred to the following cases:- R (Elias) v. Secretary of State for Defence [2006] 1WLR 3213; R (on the application of E) v. Governing Body of JFS and Ors [2010] IRLR 136.[109]At para. 14 of his written submissions he set out the agreed Issues:- “a. Was the respondent’s aim in achieving the financial stability of its SMMSN a legitimate aim? b. In its use of its criteria for selection for redundancy, did the respondent apply criteria such that persons of the claimant’s nationality and/or ethnic origin and/or national origin (including him) were put at a particular disadvantage when compared with those other colleagues not of the claimant’s nationality and/or ethnic origin and/or national origin? c. If the answer to question b. is in the affirmative, can the respondent’s show that its use of those criteria was a proportionate means of achieving its aim of achieving the financial stability of SMMSN? d. What is the date on which the respondent applied those criteria to the alleged detriment of the claimant? e. Has the claimant brought proceedings on this complaint within the period of 3 months starting with that date, or the last date of conduct extending over a period of time? f. If the answer to e. is no, have proceedings been brought within such further period as the Tribunal considers just and equitable?”[110]On the first Issue, it was submitted that the financial stability of the SMMSN “is self-evidently a legitimate one”.[111]Counsel referred to the projected financial deficit of £2.1 million in the then current year (P1/114) and also the evidence of Professor Fowler at para. 3 of his witness statement concerning the need to achieve financial sustainability; that the School anticipated an increase in that deficit in future years (P1/114); and that, “the debt size was such that the respondent’s Senior Management Team considered that immediate steps had to be taken (Professor Paul Fowler at paragraph 23)”.[112]So far as the second Issue was concerned, namely the use of the selection criteria, it was submitted that it was necessary to first consider the “the particular disadvantage alleged”, before considering whether the PCP relied upon caused it. In the claim form it was asserted that (P1/19):- “As a result of the application of the PCP the claimant was identified as a candidate for redundancy, removed from his original role, temporarily redeployed and ultimately dismissed.”[113]The claimant also alleged that the particular disadvantages he suffered were as follows:- “a. identified as a candidate for redundancy; b. removed from his original role; c. temporarily redeployed; d. ultimately dismissed.”[114]While these particular disadvantages were not accepted by the respondent, Counsel submitted that there was no evidence that any other relevant employees of the claimant’s nationality and/or ethnic origin and/or national origin were similarly affected.[115]Counsel submitted that there were two critical points. “First, no other East Asian colleague was dismissed. On that basis the particular disadvantage allegedly affecting them is different from that complained of by the claimant. Second, even if one accepts that he and other East Asian colleagues were treated less favourably in the redeployment process, that treatment was at the point of redeployment. In the case of the claimant, it occurred in December 2016.”[116]The respondent’s Counsel also submitted that its use of those criteria was, “a proportionate means of achieving its aim”. He invited the Tribunal to consider certain factors when determining whether the respondent’s use of these criteria was “proportionate”:- “a. The use of those criteria in the first instance was in focusing on particular areas for inviting applications for voluntary redundancy (see the e-mail of 18 July 2016, 1/163). The invitation was not limited to the areas set out there. It follows that had there been sufficient successful applicants for voluntary redundancy the respondent would have required to do no more in order to meet its aim. b. The respondent followed its own Policy on Consultation and Avoidance of Redundancy Policy (P1/46 Appendix A to the Policy). That Policy states that “………where redundancies are unavoidable, the University will adopt the position of containing the redundancy pool within the smallest appropriate unit of the University”.[117]In this regard, he referred to Professor Stansfield’s evidence at para. 54. It was submitted that this approach was that recommended by the Policy (i.e. identifying as small as possible area of disinvestment). So far as the “pool” in which the claimant was placed was concerned, this was derived from an exercise carried out by the School in late 2015 and had nothing to do with a plan to reduce staff numbers.[118]It was further submitted that the respondent (or more accurately the School) was entitled to decide the areas for investment and disinvestment. It was submitted that those decisions, “were necessary for the financial stability of the School.”[119]He invited the Tribunal to make a number of findings in fact with reference, in particular, to Professor Stansfield’s evidence about his review of academic output and how he had identified the areas for disinvestment.[120]However, as it transpired, there were fewer successful VS applicants than was required. Further steps were necessary, therefore, so as to meet the aim.[121]It was submitted that it was important that the application of the PCP resulted in the allocation by the respondent of comparable duties for the claimant, subject to certain terms and conditions contained in the letter of 20 December 2016 (P1/381/382). This was treated by the claimant as an offer of reengagement with effect from 25 January 2017 (P2/385). Accordingly, the “application of the PCP did not, in terms of causation, result in him being removed from his original role, temporarily redeployed and ultimately dismissed, a disadvantage about which the claimant complains.”[122]It was submitted that the last possible date the criteria were applied was 20 December 2016 when the claimant was “allocated” alternative duties (P1/381-2).[123]It was submitted, therefore, that the claimant had not brought proceedings within the period of three months starting with that date. Nor, it was submitted, was it possible to say that the alleged discrimination was, “conducted extending over a period of time” (Owusu v. London Fire & Civil Defence Authority [1995] IRLR 547 at paragraph 21). “Just and equitable” extension[124]It was further submitted that it would not be just and equitable to extend the period for presenting the claim which was out of time.[125]It was the claimant’s position that he had been dismissed; he was being reengaged; he endeavoured to reserve his right to claim unfair dismissal and race discrimination (P2/385). However, it was submitted that by then:- “(a) He had had the benefit of advice and assistance from his trade union (for example) see the collective grievance raised on 20 September 2016 (P1/181). (b) Before the end of 2016 the claimant’s contribution to the collective grievance including an assertion that, ‘Disproportionately high number of ethnic minorities (especially East Asians) are being placed at risk of redundancy’ (P1/250, IV-1). He was thus aware of the right to make this claim by that time. (c) His union were aware by 12 October 2016 (see JCCRA Minutes, 1/207- 210, at 1/209, paragraph 5) that the respondent acknowledged from its Equality Diversity Impact Assessment (P1/195-206, at page P1/205) that its Policy by that time had a disproportionate impact on colleagues with a Chinese or other Asian background. (d) The claimant had had legal advice from his union’s solicitors (on at least two occasions between 22 December 2016 and 25 January 2017) (see P1/387 and his witness statement at paragraph 80).”[126]It was submitted, therefore, that, “the claimant was thus by 25 January 2017 clearly aware of the basis of his claim of indirect discrimination and was expressly reserving it at that time.”[127]The respondent’s Counsel then went on in his written submissions to address a number of points which he understood the claimant was relying upon to extend the time for presenting his claim.[128]The fact that English is not the claimant’s first language, it was submitted, was not relevant. He is a fluent English speaker and those advising him knew of his right to claim.[129]It was his position that when he accepted the alternative role he had no understanding of employment law. However, it was submitted that, “he is careful to say that it is ‘the employment law issue underlying his acceptance’ that he did not understand, not the effect of the advice or its legal effect. Second, it was not suggested in his appeal (or at any earlier stage of this process, (including in the ET1 Form) that this lack of understanding was a relevant issue”. This was only made, “at the relatively late stage of this hearing and his witness statement”.[130]While it was not disputed that there were outstanding grievances and appeal proceedings, the claimant did not appear to maintain that he believed that he could not bring a claim of indirect discrimination until these proceedings had been exhausted. His express reservation of a right to claim suggests otherwise. In any event, his trade union would, or ought to have been aware of the time limit within which the “reserved claim” should have been brought.[131]While it was not disputed that the redeployed post was described as an opportunity to be retained by the respondent, it was submitted, that that in itself is not a reason to delay the exercising of his right to claim.[132]The claimant maintained that the ultimate termination was a “deferred dismissal”. His Counsel submitted that this was, “inextricably linked with the initial selection for redundancy which is asserted to be discriminatory. He acted promptly and in time in early conciliation and proceedings in respect of the ultimate dismissal”. It was submitted that this was a contradiction with the respondent’s description of the redeployed post being “an opportunity”. “The claimant’s evidence was that what occurred with the alternative post in 2017 was a sham. Even if not earlier, that must have been his understanding by June 2017 when notice to terminate his contract was given. Certainly, the respondent does not accept that(i) the ultimate termination was a “deferred dismissal” which was inextricably linked with the initial selection for redundancy or that(ii) it was reasonable for the claimant to see it as such.”[133]The respondent’s Counsel submitted that the effect of the delay on the cogency of the evidence was, “a question of fact and degree”. He drew to the Tribunal’s attention that the respondent’s witnesses at the Hearing could not recall some of the questions put to them in cross-examination.[134]The claimant’s Counsel also drew to the Tribunal’s attention, in relation to the time-bar point, that, “the claim of unfair dismissal is in time, the factual matrix of which encompasses the factual substance of the discrimination claims”. However, it was submitted that this was at odds with the claimant’s position that as at January 2016 he had been dismissed and his reservation of the right of claim.[135]In conclusion, the respondent’s Counsel said this: “Any particular disadvantage (relevant for the purposes of including persons of the claimant’s nationality and/or ethnic origin and/or national origin) had occurred by January 2016. That being so the claim is out of time, which should not be extended. Separately, there is no pecuniary loss flowing from it because the claimant’s salary and other benefits remain when he took up the alternative role. If the claimant asserts that the “particular disadvantage” included his dismissal (as he appears to do) then he has no claim under section 19 because no other person of his nationality and/or ethnic origin and/or national origin was dismissed. In any event the respondent submits that the respondent has shown that its use of its criteria was a proportionate means of achieving its aim of achieving the financial stability of the respondent’s School of Medicine, Medical Sciences and Nutrition.”[136]The respondent’s solicitor submitted that redundancy was the reason for the claimant’s dismissal. The dismissal was from the role the claimant accepted on 25 January 2017 (P2/385-386). It was submitted that it was, “important to note its terms. It:-a. was a research position in Professor Graeme Murray’s research group (term 2 on page 381)b. had as its purpose the delivery of research associated activities which were expected to be completed by 31st December 2017 (term 3 on page 381)c. anticipated the possibility of an extension beyond 31 December 2017 with pay protection until 31 December 2020 (term 4 on page 385)d. included a job description (P1/ 265 or P1/327) which set out that a key duty was to “obtain external grant funding to support the continuation of the project”.[137]Counsel also submitted that it was important to note the terms on which the new role was accepted by the claimant (P2/385). He referred to the following passages from the decision of Mr Christie who heard the claimant’s appeal (P2/811): - “77. That express acceptance of the new role and the terms and conditions upon which it was accepted do indeed constitute a “problem for Dr. Nakamoto’s case….. The qualifications contained within it do not add conditions with which the University was to comply; they merely reserve rights (which he would have had anyway) to take certain claims….. 78. In my view that made a concluded new contract which, on top of what went before, is fatal to the previous contract”.[138]Counsel drew to the Tribunal’s attention that the claimant’s acceptance, “contained no additional conditions or qualifications to the respondent’s proposal; and that Mr Christie was of the view there was no “inextricable link with the previous contract or the redundancy situation occurring there.”[139]The “Reason for Redundancy” given in the “Recommendation for Dismissal on grounds of Redundancy” (P2/508-509) was that, “the funding supporting the post will cease (on 31 December 2017) and therefore the activity can no longer continue”.[140]It was submitted, therefore, that this was a redundancy situation and redundancy, a potentially fair reason, was the reason for the claimant’s dismissal.[141]Counsel also submitted, as far as the issue of reasonableness was concerned, that the dismissal was fair, having regard to the terms of s.98(4) of the Employment Rights Act 1996 (“the 1996 Act”).[142]One of the “key duties” in the claimant’s new role as a Research Fellow working with Professor Murray was to, “obtain external grant funding to support the continuation of the project” (P1/265 or P1/327). However, the claimant did not obtain that funding.[143]Counsel then detailed the manner in which Professor Murray endeavoured to support the claimant, discussing how his C.V. could be enhanced and by having weekly meetings with him. However, according to Professor Murray, the claimant did not “grasp the opportunity” which had been afforded him.[144]Counsel also invited the Tribunal to accept that Professor Murray and Professor MacEwan were prepared to continue to work with the claimant during the notice period, “to encourage and support grant applications that would be able to fund Dr. Nakamoto’s appointment (P2/509).[145]The claimant was reminded at the meeting with Professor Fowler and others on 28 March (P2/453-455) that in order for him to continue to remain in employment with the respondent he would need to be able to secure funding for his post. The decision to return the grant to Friends of Anchor grant and for Professor Murray to take over as main PI for the other grant worked on by the claimant was to support him and allow him to focus on his work with Professor Murray.[146]The claimant had provided Professor Murray with a first draft of a publication review in October 2017 but in his view it fell well short of being ready for publication.[147]In conclusion, Counsel said this with regard to the unfair dismissal complaint:- “34. The Tribunal is invited to conclude given the reason for his dismissal, the decision to dismiss the claimant was a fair one. The purpose of the various meetings with Professor Murray was to assist him. The purpose of changing his arrangements on his existing grants was also to assist him. It is appreciated that that intention is disputed. The Tribunal will be aware that the claimant’s case is that: he was “set up to fail”; that it was always the respondent’s intention to dismiss him; and his dismissal was “deferred” in order to avoid accountability and criticisms of the flawed procedures and racial discrimination. The respondent makes the following points:-(a) Such an intention would be a very serious one and the Tribunal should look with care for evidence to support.(b) Looked at objectively, it is far-fetched. To borrow the conclusion of Mr Christie, this part of the claimant’s representations, “required some discipline to remain in touch with reality” (page 811, paragraph 76).(c) There is no credible evidence to allow the Tribunal to find that the respondent was so intentioned.(d) As noted above at paragraph 6, if the claimant’s dismissal was deferred from 2016 then the respondent would always be liable to account for it and be accountable and answer to his criticisms. Deferring that dismissal self-evidently could not, and has not, achieved the aim which the claimant attributes to the respondents. The motive attributed by the claimant to the respondents simply does not make sense.(e) For the claimant’s view to have any credibility, Professor Murray required to be part of the “sham”. His evidence suggests that his attempts to help the claimant were genuine. He was not part of the senior management team. He had no responsibility within the School for reducing staff numbers. He had no involvement in the view process conducted by Professor Stansfield. It is, put shortly, incredible that he was a party to a decision to set up the claimant to fail.(f) It was suggested to none of the respondent’s witnesses in crossexamination that they had set the claimant up in the 2017 role to fail, or that his dismissal had been deferred from 2016. 35. The Tribunal is invited to find that the dismissal was fair in terms of s.98(4))”. Victimisation complaint[148]In his written submissions, the claimant’s Counsel had clarified his position in this regard. He explained that the victimisation claim was withdrawn, “save as in respect of the respondent’s decision by Professor Heys, that the claimant was to return the Friends of Anchor grant and his removal as Principle Investigator of the Bowel & Cancer Research Grant.”[149]The respondent’s Counsel addressed this claim, as amended, in his written reply to the claimant’s submissions at paras 49 to 54 :- “The claimant seeks to draw an inference that decisions were made on the grounds that the claimant was a party to the collective agreement. The respondent makes two points: -(a) There is no evidence from which the Tribunal can make findings so as to give rise to the inference. The claimant’s argument is tenuous.(b) The acts complained of occurred on 28th March 2017 (P1/453-455, the notes of a meeting on that date). The claim to the Employment Tribunal is out of time. It is not clear either from the evidence or his submission as to the basis on which the claimant seeks to argue that time should be extended on this claim. Some of his points at paragraph 23 of the submissions are patently irrelevant. If, (as appears to be the case) the claimant was aware on 28th March 2017 that these “detriments” occurred on the grounds that he was involved in the collective grievance there was no reason why this claim could not have been made at that time.”[150]In his principal written submissions, the respondent’s Counsel also said this with regard to the issue of whether the Tribunal should exercise its discretion and extend the time limit:- “It is trite that the remedy under s.27 of the Equality Act 2010 is “stand alone” and capable of being exercised where the contract subsists. There is no suggestion that these alleged acts of victimisation are “inextricably linked” to the claimant’s dismissal.” Claimant’s submissions[151]In his written submissions, the claimant’s Counsel clarified first the complaints which were being advanced: unfair dismissal, indirect race discrimination and victimisation. He then made observations on the evidence and detailed the issues to be determined. He then proceeded to make submissions on the issue of time bar in respect of the discrimination complaints. In support of his submissions he referred to Mowlem Northern Ltd v Watson [1990] ICR 751.[152]Under the heading “Deferred Dismissal”, Counsel advanced “two constructions in respect of time bar:(1) “There was one dismissal, and the ‘redeployment’ to the temporary contract when considered objectively, was not a variation of contract (P1/47-57) rather dismissal on long notice of 12 months (then extended by agreement further to 31 January 2018);(2) If that construction is not accepted, the reason for dismissal from the temporary post with effect on 31 January 2018 was inextricably linked with the substantive decision to make the Claimant’s permanent post redundant in December 2016.” “(1) One dismissal”[153]He submitted that, “on an objective assessment of the parties actings, equipped with the knowledge of facts and circumstances of the academic ‘industry’ in this case, the purported variation of the claimant’s contract to a different, temporary post as stated by the respondent (P1/31-382) did not reflect the reality of the situation. The objective bystander equipped with knowledge of the facts and circumstances surrounding the claimant’s case at that time would have concluded that in fact the purported variation amounted to dismissal on a long period of notice of 12 months”.[154]In support of this submission, Counsel maintained that there was, “a substantial amount of evidence” that the period of 12 months was insufficient to enable the claimant to achieve sufficient grant funding to fund his continued post.[155]It was also submitted that, “the nature and scope of the purported temporary post was vague and unstructured” . In any event, his role appeared to involve substantially his “prior work project” referred to in the job description (P1/265). Further, the project detailed in the job description, “was not the same project as ultimately formed part of the claimant’s work in the post once it commenced in January 2017”.[156]Professor Fowler said in evidence that the 12 month timescale was a “challenging time period, designed by the Principal at the time Prof Diamond”.[157]In addition, the Friends of Anchor grant was returned, and the claimant was removed as PI from the Bowel & Cancer Research project. It was submitted, as Professor McCaig said, that these decisions were inconsistent with the claimant being supported in securing funding for the continuation of his post.[158]Counsel did not go as far as to maintain the claimant’s appointment to the temporary post to enable him to secure funding was “a sham”. He submitted that, “the better descriptor is whether the purported contract reflected the reality of the situation as judged by the objective, reasonable bystander”. “(2) Inextricably linked to earlier reason for dismissal”[159]Counsel submitted, in the alternative, that, “the true reason for the dismissal of the claimant’s employment with effect ultimately on 31 January 2018, by decision of 30 June 2017 as varied in respect of notice, was inexorably bound to the considerations of the decision to make the claimant’s substantive post redundant, confirmed in its decision letter of 20 December 2016 (P1/381- 382). The principal reason the claimant found himself in this position was his earlier selection for redundancy. It was, in effect, an ante-room to dismissal on the basis of the previous, substantive decision”. “Just and equitable” extension[160]In the alternative, Counsel submitted that if the Tribunal was of the view that the discrimination complaints were out of time, the Tribunal should exercise its discretion and extend the time limit on the basis that it was “just and equitable” to do so. In support of his submission in this regard he referred to:- Abertawe Bro Morgannwg University Health Board v Morgan [2018] ICR 1194 Malcolm v Dundee City Council [2012] SLT 457[161]Counsel advanced a number of reasons why the Tribunal should exercise its discretion:-• The claimant did not appreciate the significance of the language he used in his email of 25 January 2017 when he accepted the new position (P2/385).• Whilst a fluent English speaker, English is not his first language.• There were outstanding grievance and appeal proceedings; it was not unreasonable for the claimant to await the outcome of these.• The redeployed post was described as “an opportunity” to be retained by the respondent.• It was reasonable for the claimant to regard the ultimate termination as a “deferred dismissal” which was inextricably linked with the initial selection for redundancy which is asserted to be discriminatory. In respect of the ultimate termination he acted promptly and in time in raising proceedings.• There has been no erosion of the evidence of events in respect of the respondent’s witnesses.• There is no prejudice to the respondent beyond the advantage of escaping liability.• The unfair dismissal complaint is in time. This includes the factual substance of the discrimination complaints. There was no impediment to the “full ventilation of all matters of fact in respect of the issues at the final hearing”.• The discretion has been described as the “widest possible”. Indirect Discrimination complaint[162]In support of his submissions in this regard, the respondent’s Counsel referred to the following cases:- Essop v Home Office (UK Border Agency) [2017] ICR 640 University of Manchester v Jones [1993] ICR 474 Barry v Midland Bank [1999] ICR 859 British Airways v Grundy [2008] EWCA 875 Hardy & Hansons v Lax [2005] ICR 1565 Allonby v Accrington and Rossendale College and others [2001] ICR 1189 British Airways v Starmer [2005] IRLR 863 R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 Mandla v Lee [1983] ICR 390[163]He submitted that Essop was the leading case on the matter. He referred, in particular, to the observations of Lady Hale who gave the leading opinion of the Supreme Court. The PCP[164]The provision, criterion or practice (“the PCP”) relied upon by the claimant was, “the means of selection of staff within the respondent’s IMS into areas of disinvestment”.[165]Counsel submitted that the claimant had identified an appropriate racial group namely, “East Asians which is widely recognised in geographical and ethnic terms”. He submitted that, “it readily satisfies Lord Fraser of Tullybelton’s criteria in Mandla and is a far more focused grouping than that used in the Essop case, which is a far broader category of diverse groups from more than one continent”.[166]The claimant prepared, it was submitted, “a substantial analysis of the impact of the PCP as between those who were of East Asian ethnicity and those who were not (WS paragraphs 90 to 98 and Appendix 2). It was submitted that, “this forms an appropriate pool for comparison as this was the scope of Professor Stansfield’s initial scoring exercise for the Framework for Excellence (paragraph 23 of his witness statement), and thus was all staff to whom the PCP was applied. The claimant does not understand the methodology of the claimant’s statistical analysis to be questioned by the respondent. The point was perhaps most succinctly put by Professor Stansfield in his last question of re-examination when he stated ‘if dealing with 3 staff in total, the addition or subtraction of one or other shifts the percentage by 331/3% - one gets apparently large movements by moving one person. There is nothing incorrect about using percentages”.[167]It was further submitted that, “the IMS constituted a pool of 84 staff members, which is sufficiently substantial to test the impact of a PCP……………….. The size of the pool is not sufficient reason alone to discount results from a statistical analysis. Regard must also be had to the nature of the disadvantage in issue, and therefore assessment of the disadvantage contains both a quantative and a qualitative assessment. It is submitted that the current case involves one of the most substantial disadvantages in an employment context, namely that of the risk of dismissal from established and stable employment. It is a far more substantial disadvantage than the preclusion of accessing the chance of promotion found in the Essop case. It is of the utmost seriousness.”[168]Counsel submitted, therefore, that there should be no difficulty in the Tribunal finding that s.s. 19(2)(a)-(c) of the 2010 Act were satisfied. He also reminded the Tribunal that Lady Hale emphasised in Essop that, “This should not be an exacting threshold to overcome”.[169]Counsel then went on to say this in his submissions:- “37 In the event the Tribunal accepts the claimant’s submission that particular disadvantage of East Asian Staff of the IMS had been established (as the claimant submits that it should), the next consideration is objective justification and whether the respondent has established that its PCP was a proportionate means of securing a legitimate aim.” Legitimate aim[170]Counsel understood that the “legitimate aim” which the respondent sought was, “securing the financial sustainability of the School of Medicine in general or the IMS, in particular”.[171]However, he submitted that, “this must go beyond considerations of pure cost, cost savings generally considered to be insufficient on their own to provide objective justification”. While substantial deficits were identified in the School Plan (P1/114), it was submitted that the respondent’s strategy did not identify, “particular steps and particular time frames in which the savings were to be achieved”. It was also submitted that there had been, “limited evidence adduced in respect of the particular financial pressures and issues of timings for savings”. Nor did the timescale appear to be immediate.[172]It was accepted that, “matters became more immediate in 2016 when the School was directed to achieve recurring savings of £1.5 million with effect from academic year 2016 / 2017 (IS witness statement para [35])”. However, it was submitted that, “there has been no evidence adduced by the respondent providing anything other than a generic explanation of that decision”. Counsel submitted this was important, “as there must be a link between the end (the aim) and the means adopted (the PCP)”.[173]As there was sufficient money to fund temporary posts for 12 months for compulsorily redundant employees, “redundancies would not be an immediate saving as there would be payments of voluntary severance or statutory redundancy payments to be made”.[174]Mrs Dyker said that no alternative approach was considered, but Professor McCaig highlighted the possibility of alternative approaches.[175]In his witness statement (paras 102-115) the claimant identified a number of criticisms of the scoring criteria and the respondent’s approach. Counsel invited the Tribunal to accept those criticisms.[176]It was submitted that there was a “rough and ready” assessment of the IMS staff against four criteria and Counsel questioned why this was reasonably necessary in order to achieve the respondent’s aim.[177]It was submitted that, “the respondent did little more and has done little more than assert the objectivity of its criteria notwithstanding the presence of disadvantage against an ethnic group”. Policy to restrict pools[178]Counsel submitted that the respondent’s policy to restrict pools to as small a size as possible appeared, “to have been the reason why the initially broad areas of disinvestment of ‘elements of cell development and cancer biology’ (P1/115) was split into the last 3 areas of disinvestment contained in Professor Heys’ email of 18 July 2016 (P1/163-164)”.[179]Counsel also submitted that, “the designation of the 3 pools of one were clearly tailored to the 3 affected individuals, including the claimant. The descriptors for these purported areas did not make scientific sense (see the claimant’s WS at paragraphs [14] to [26]) and were readily accepted as having been cribbed from the individual web pages of the claimant, Dr Yasushi Saka and Dr Ryohei Sekido. 43. The desire to restrict pools to the smallest number possible appears to have strongly influenced the decision to carve out the claimant and his two Japanese colleagues in individual areas for disinvestment. The stated rationale for this policy is to assist staff morale and motivation (presumably not the morale and motivation of those selected into a pool of one stated in the respondent’s Policy [P1/45] and by Professor Stansfield in his witness statement (paragraph [54]). It is submitted that these considerations either do not correspond with the aim of maintaining the financial sustainability of the respondent at all, and are extraneous to it; or, if they are relevant to the aim, are entirely vague and general in their application and have in no way demonstrated the PCP of keeping redundancy pool sizes as small as possible as being a reasonably necessary means of achieving that aim. Professor Stansfield’s fear of the highest performing staff leaving if pools were cast wider is entirely anecdotal. Why couldn’t the respondent have adopted broader pools as it did for the seven other areas of disinvestment?”[180]Finally, so far as the indirect discrimination complaint was concerned, Counsel submitted that, “whilst the respondent’s evidence might have been sufficient if the test was a band of reasonable responses, or some other form of non-substitutional margin of appreciation, it has not been sufficient to establish objective justification of a prima facie discriminatory application of neutral criteria. The evidence is… entirely generalised and in some respects incomplete in that no evidence from anyone in a senior management position as to the decision making for the need for making immediate savings and casting the pools in particular ways was adduced”.[181]It was submitted, therefore, that the respondent had failed to establish the objective justification of its criteria used in the redundancy exercise within the IMS in 2016 and that the complaint of indirect discrimination should succeed.[182]In support of his submission in this regard, the claimant’s Counsel referred to the following cases:- Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337 Barclays Bank Plc v Kapur (No 2) [1995] IRLR 87 Lord Chancellor v Coker [2001] ICR 507 Protected Act[183]The “protected act” relied upon by the claimant was, “the terms of the collective grievance, and in particular that part of the collective grievance submitted by him found at (P1241-246 and 246-252), in particular at (P1/244, 250-251). This grievance contains reference to contentions of both direct and indirect discrimination. There has been no suggestion and no evidence to suggest that this grievance was made in bad faith on the part of the claimant. In any event it is clear that it was genuinely held”.[184]Counsel submitted that, “the IMS management team were aware of the grievance in general terms around the time it had been raised, and probably aware of more of the detail of the content of it, in particular allegations of race discrimination by around December 2016 but Ms Dyker, Prof Stansfield and/or Prof Fowler were all involved in preparing Ms Dyker’s grievance response on 14 December 2016 (P1/331-336). Senior management of IMS including Professor Heys, the then Head of School, were aware that the claimant as one of the co-signatories of the collective grievance was making complaints of race discrimination”. Detriments[185]The claimant maintained that he was subjected to two detriments as a consequence of the protected act. The first was the decision by Professor Heys to remove him from the Friends of Anchor grant by instructing him to return it. This decision was communicated to the claimant by Professor Fowler at the redundancy consultation meeting on 28 March 2017. It was submitted that, “the decision to return the grant was one that was highly unusual, diminished the claimant’s workload at a time when it was already, reasonably, too late to focus on other potential grant funding applications. It was a grant in respect of which he was Principal Investigator (“PI”) and thus also diminished his standing as an academic leading on a project. It is submitted that this decision readily falls within the broad concept of a ‘detriment’ as exemplified by Lord Hope in Shamoon”.[186]The second alleged detriment was the decision, of even date, to remove the claimant as PI for the Bowel & Cancer Research project. It was submitted that this was again, “highly unusual” and would normally only arise in cases where the PI had conducted himself in an inappropriate manner or had left the University. As with the first detriment, it amounted to a loss of status for the claimant and also gave rise to an “innuendo of impropriety”.[187]There had been particular monitoring of the Friends of Anchor grant spend. The claimant maintained that that was not a reliable measure of determining the extent of work being done on a project and it was unusual to monitor a grant in that way.[188]Counsel referred to evidence which Professor Stansfield gave at the hearing when he was asked if he would monitor the spending of grants for all staff. His answer, as noted, was, “I think we were aware of all the events connected to (the claimant) in 2017, every interaction was contentious and antagonistic. We therefore paid particular attention to him”. Professor Fowler had also been involved in discussions about this matter and confirmed that his reference to “antagonistic” related to the claimant’s behaviour at meetings.[189]Although Professor Heys only had contact with the claimant on a few occasions, he discussed the matter with Prof Fowler prior to his decision in March 2017, and he was aware of the allegations of antagonism and contentiousness by the claimant. Counsel submitted that these allegations were, “something of an exaggeration when the circumstances involved the claimant being advised that he was at a substantial risk of dismissal for redundancy”.[190]In conclusion Counsel submitted that:- “The inference that the decisions were made on the grounds of having done a protected act, in that they were substantially influenced by that act, can readily be drawn. This is particularly so by reference to the “elements in the room” as described by Professor Fowler and his criticism of the nature of the claimant’s complaints contained in his own witness statement. That relates directly to the Friends of Anchor grant, but it was also confirmed that the decision to remove the claimant as PI for the Bowel & Cancer Research grant took place during those same discussions and was confirmed during the same meeting. The Tribunal can, and therefore must, draw the inference as contended by the claimant. It accordingly follows that the respondent must demonstrate that it did not so discriminate. In the claimant’s submission, its difficulty is that its principal decision maker in respect of both detriments, was Professor Heys. He has not been adduced in evidence. Professor Fowler indicated that whilst he was a contributor to those discussions, the decision was Professor Heys. In the claimant’s submission in the absence of Professor Heys’ evidence the respondent has failed to show that it did not contravene section 27 EqA and has failed to discharge the reverse onus of proof. The Tribunal should accordingly find the claim of victimisation succeeds on both asserted detriments”.[191]In support of his submissions, Counsel referred to the following cases:- Williams v Compair Maxam Ltd [1982] IRLR 83 Capita Hartshead Ltd v Byard [2012] ICR 1256 Mental Health Care (UK) Ltd v Biluan UKEAT/0248/12/SM[192]Counsel accepted that this was a genuine redundancy situation. However, he submitted that the claimant had been unfairly selected for the following reasons: “● No transparency to pooling, selection criteria ● Scoring undertaken first and pools crafted around that scoring ● Scoring itself was an entirely paper exercise with no input from line managers ● Scoring was conceived in respect of a process originally intended to lead to a capability process that would extend over time (Ms Dyker) ● Ms Dyker considered that the redundancy process would be more involved than a Framework for Academic Excellence review”[193]Counsel submitted that, “there was an absence of meaningful information and consultation and an absence of transparency of approach. The claimant was at first not advised of the basis of selection, and then told different things (see claimant’s WS at paragraphs [85] to [88]) ….. It is difficult to understand what consultation was meaningfully to achieve other than the limited question of potential alternative employment ….. There was a genuine and justified confusion on the part of the claimant and others as to why they had been selected ( claimant WS, paras [85] – [88]). The reality was that there was no true consultation with the claimant or others, and scant information provided, as to the genuine basis of selection of redundant employees”.[194]Counsel also submitted that, “the pooling was itself unfair. The scoring was done before the pooling. To cast pools from pre-scored individuals, and cast certain pools deliberately to include only one person, going so far as to copy and paste generic website descriptions of their field of study to define the pools could only be fair when an employer could demonstrate that those individuals were inevitably destined to be made redundant”.[195]Counsel described the pooling exercise as, “arbitrary in that the ultimate areas for disinvestment included certain broad research areas on the one hand, and 3 individually specific areas on the other”.[196]Counsel then went on to say this:- “By applying a predetermined set of areas of disinvestment in the manner in which it did, and on the approach to scoring that it used, the respondent precluded considerations such as bumping. Pools of one require to be subject to close scrutiny by the Tribunal and cogent reasons for proceeding on such a basis are to be expected from an employer. It is submitted that no such cogent and reasonable reasons are present in this case”.[197]Counsel also challenged the scoring criteria as contained in the claimant’s evidence (his witness statement at paras [102]–[115]). The exercise undertaken by Professor Stansfield was described as, “a rough and ready desktop exercise consulting databases that was originally intended for another, and more involved, process of supporting academics”. Counsel commended the criticisms contained in the claimant’s evidence: credit was not given in the teaching criteria for certain aspects of face to face teaching time and supervision of honours students; no recognition that certain staff were not in control of their teaching commitments; Professor Stansfield accepted his approach to scoring under the publications matrix gave equal credit to co-authors and did not distinguish between quality and quantity publications, although he accepted that there is a “hierarchy of publications”; Professor Stansfield also accepted in relation to the criterion of grant funding over a 5 year window that there had been, “double counting of awards which did not reflect the proportion to which involved staff contributed; this was itself inconsistent with the stated terms of the FAE then in place (P1/81)”.[198]Counsel submitted that even if each of these criticisms individually, might not be considered unreasonable, they had, “a substantial cumulative effect on the fairness of the scoring exercise. This is further reinforced when one considers that there was no meaningful consultation with affected employees at which employees could propose alternative measures of assessing individuals from pools. In addition, there are the criticisms of the pooling exercise, the timing of the casting of pools and the absence of transparency in providing affected staff with the relevant information as to how they had been selected. The window for voluntary severance closed before scoring information was provided, for example. These are, it is submitted, substantial shortcomings across several aspects of the process of selecting individuals, and the claimant in particular, for redundancy within the IMS even when affording the respondent the usual margin of appreciation provided by reference to the band of reasonable responses open to an employer. The substance and nature of these shortcomings was not remedied on appeal, notwithstanding there was a detailed appeal process. The Tribunal is invited to so hold and to find that the claim for unfair dismissal succeeds”. Respondent’s Response[199]The respondent’s Counsel made further written submissions in response to the submissions by the claimant’s Counsel. He invited the Tribunal to, “consider the impact of the withdrawal of the claim of direct discrimination on the claimant’s case that his dismissal was an act of unlawful discrimination. The claimant’s suggested construction of there being “one dismissal” (at paragraphs 13 1) and 14-20 of his written submission is new. The respondent sets out its answer to it at the corresponding paragraph below. The Tribunal already has the respondent’s submission on the claimant’s alternative construction of his expression “deferred dismissal”. In the respondent’s submission, the claimant was dismissed by reason of redundancy from the post he accepted with effect from 25th January 2017. There is no “inextricable link” to the redundancy situation which occurred in December 2016. Absent any suggestion of discrimination in the course of 2017 it is obvious that for the claimant to succeed in his claim that his dismissal was discriminatory it is essential that it is “linked” with the application of the PCP. But in the respondent’s submission that link does not exist”.[200]Counsel then made further observations on the evidence.[201]He submitted that if there was “one dismissal on, “long notice” of 12 months that this was “an attempt to argue a new point at a late stage and with the benefit of hindsight”.[202]He also sought to distinguish the case of Mowlem, which was referred to by the claimant’s Counsel, on the basis it was only relevant if there was mutual agreement and there was no such agreement in the present case.[203]So far as the alternative construction advanced by the claimant’s Counsel was concerned, namely that the claimant’s dismissal on 31 January 2018 was “inextricably linked” with the respondent’s decision to make the claimant’s permanent post redundant in 2016, Counsel submitted that “it does not stand up to scrutiny”. He submitted that construction could only proceed on the basis that the claimant’s role and attempts to make it work in 2017 were not genuine. The evidence was to the contrary.[204]He referred to his written submissions and the decision of Mr Christie who heard the appeal (P2/811 at para 78): “In my view that made a concluded new contract which, on top of went before, is fatal to the previous contract”. It was submitted, therefore, that, “the only dismissal was from the role which the claimant took up in January 2017”.[205]In response to the issue of the exercise of the just and equitable discretion, Counsel referred to bullet points at para 23 of the claimant’s submission and said this:- “What is submitted for the claimant is not the same as his own evidence in his witness statement at paragraph 80. His evidence is that he “had no understanding of the employment law issues underlying this”. “This” is not clear, but appears to refer to “the phrase” suggested by his union’s lawyer, but “the phrase” to which he refers is not clear. Whatever that is, his evidence does not support a finding (which is now suggested that he did not appreciate the significance of the language in the email).”[206]In all other respects the Counsel referred to his written submissions.[207]Counsel submitted, with reference to page 25 of the claimant’s submissions, that the argument that the “disadvantage” was “the risk of dismissal from established and stable employment” was a new argument which had not been pled previously. He referred to the statement of claim (P1/19 para 38) in which the “particular disadvantage” was that the claimant was, “identified as a candidate for redundancy, removed from his original role, temporarily redeployed and ultimately dismissed”.[208]Counsel also disputed that the risk of dismissal from established and stable employment was, “a disadvantage of the utmost seriousness. While a number of the claimant’s colleagues were at risk, many were found acceptable and agreed alternative roles with the respondent”. Counsel then went on to say this:- “there are 3 critical components to the relevant test(1) the PCP(2) the group affected and(3) the disadvantage suffered by the group. Each component must correspond with the other. This correspondence is absent where the disadvantage (impact) on members within the group is different as is the case here”.[209]Counsel submitted that there was no evidence to enable the Tribunal to make findings to give rise to the inference submitted by the claimant.[210]Further, and in any event, the acts complained of occurred on 28 March 2017 (P2453-455) and the complaint is out of time.[211]Finally, Counsel submitted that, “The claimant’s submission proceeds on the basis that what occurred in 2016 is relevant. In the respondent’s submission it is not. The redundancy situation and the claimant’s dismissal arose in connection with the redeployed role. Reference is made to the respondent’s submission at paragraphs 26-35 of its written submission”. Claimant’s Response[212]The claimant’s Counsel responded in writing to the respondent’s written submissions.[213]Counsel did not accept that it followed from the use of the expression “deferred dismissal” that, “everything in 2017 was a sham”. In this regard, he referred to paragraphs 15-20 of his written submissions. Legitimate Aim[214]Counsel drew to the Tribunal’s attention the evidence of the respondent’s witnesses that the 2015 School Plan was not conceived with the intention of making cost savings of £1.5 million for the academic year 2017. “It is significant that the School Plan did not identify areas of disinvestment with anything like the precision of the laterally framed areas”.[215]Counsel also disputed that there had been established in evidence the legitimate aim beyond a desire to make cost savings, had been established. He submitted, with reference to Woodcock v Cumbria Primary Care Trust [2012] ICR 1126 and Cross v British Airways [2005] IRLR 423, that “cost alone is insufficient. In any event the onus is on the respondent to establish that the PCP is a proportionate means of achieving a legitimate aim “and to do so to a standard above that of the ‘band of reasonable responses test”.[216]Counsel also reiterated his contention that, “there appears to be a disconnect between the PCP as identified by the claimant at the outset of the final hearing and his written submissions at paragraph (35) and the respondent’s analysis which appears to focus solely upon the 8th, 9th and 10th areas of disinvestment contained in Professor Heys’ email of 18 July 2017” (P163/164).[217]Counsel also repeated his observation, “that the respondent’s witnesses did not challenge the basis of the analysis undertaken by the claimant and did not offer an alternative statistical analysis, but rather attempted to point to the issue of the significance of the conclusions by reference to the size of the pool, and in particular the size of the East Asian group within the pool”.[218]In addition, Counsel clarified that, “the particular disadvantage is being placed at risk of redundancy and thus placed at the risk of being dismissed”. He reminded the Tribunal that, “pleading points in the Employment Tribunal are generally to be deprecated unless they strike at a fundamental aspect of fair notice”. That was not so in the present case.[219]Counsel also submitted that it was irrelevant that no other East Asian colleagues were dismissed when the disadvantage was the risk of being dismissed. Counsel understood that the claimant’s East Asian colleagues took voluntary severance.[220]It was also submitted that the respondent’s submission, “conflates direct and indirect discrimination as there is no less favourable treatment in a claim of indirect discrimination”. Objective Justification[221]Counsel responded to paragraph 18 of the respondent’s written submissions. He submitted that the fact that the claimant’s colleagues were not dismissed did not remove the risk of dismissal. Nor did it answer the fact that the PCP placed a particular protected group at such a risk. Counsel again challenged the use of the “smallest possible pool for redundancy” and the reasoning given for this policy. He also questioned the applicability of the pool to the issue of “demonstrating the reasonable necessity of achieving the aim of financial sustainability/stability”.[222]Counsel also challenged the identification of the areas of disinvestment for a number of reasons and drew to the Tribunal’s attention the fact that the areas identified initially in the School Plan were not the same as those ultimately used.[223]Counsel further submitted that, “in large measure the considerations relied upon by the respondent in this connection appear to bear more on the question of the legitimacy of the aim as opposed to the justification of the means adopted by the respondent in this case purportedly to achieve this aim”.[224]Counsel also submitted, with reference to paragraph 19 of the respondent’s written submission, that the contention that the claimant was ultimately not dismissed with effect until 31 January 2018 meant that he was not himself placed at a disadvantage.[225]In this regard, Counsel referred to the respondent’s submissions at paragraphs 24 and 25. He understood the reference was in fact to January 2017. Counsel said this:- “Whilst the respondent relies in these paragraphs (and in the later paragraphs) to a change of duties as evidenced by the job description (P1/265/327) the claimant stated in his evidence, and it was not understood to be disputed, that certain other, prior duties such as teaching commitments continued to be in place and lends further support to the construction that the claimant’s substantive post was in place on long notice as opposed to a completely new role”.[226]Finally, he also referred to paragraph 27 of the respondent’s written submissions and advised that, “It is not accepted that the reason for the claimant’s dismissal relates solely to the consideration of a purported 12 month fixed-term contract by reference to the claimant’s written submissions at paragraphs [13] to [21]. Such an approach, drawing a veil between it and over 10 years of stable employment, is highly artificial. The ultimate dismissal has to be seen in its proper and full context and by reference to the process which led the claimant to be placed on a 12 month fixed-term contract. The claimant’s primary position as per paragraph [13] to [21] of his written submissions, is that the decision to dismiss occurred in December 2016. But even if the fairness of the claimant’s dismissal falls to include consideration of the circumstances of the fixed-term position, the claimant would dispute the characterisation of that period made in the respondent’s written submissions, with particular reference to the claimant’s criticisms of this period (see the claimant’s WS, paragraphs [53] to [72], such as the fact that the fixed-term contract role included unrealistic goals, he was in receipt of contradictory instructions particularly from Professor Fowler and detrimental treatment in the form of grants being removed from him. When one considers the circumstances as a whole, it is submitted that this period was no more than an ante-chamber to dismissal, a dismissal which was because of numerous flaws fundamentally unfair”. Discussion and Decision
List of Issues
[227]Counsel had prepared an “Agreed List of Issues” which we addressed.[228]In every unfair dismissal case where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason in terms of s.98(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. An admissible reason is a reason for which an employee may be fairly dismissed and among them is that the employee was redundant. That was the reason the respondent claimed was the reason for the claimant’s dismissal. That was not an issue between the parties. We were satisfied that the statutory definition of redundancy to be found in s.139(1)(b) of the 1996 Act was satisfied.[229]Having reached this decision, the remaining question which we had to determine under s.98(4) of the 1996 Act, was whether the respondent had acted reasonably in treating the reason for dismissing the claimant as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case. In doing so, we had regard to the authoritative starting point for Tribunals assessing the fairness of a redundancy dismissal, namely the guidance of Lord Bridge in Polkey v A E Dayton Services Limited [1987] IRLR 503:- “The employer will not normally act reasonably unless he warns or consults any employees affected or their representatives, adopts a fair basis in which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”[230]The Tribunal was also mindful of the guidance in Buchanan v Tilcon Engineering Ltd [1983] IRLR 417, that where an employee’s only complaint is that he was unfairly selected for redundancy and no other complaints are made, all the employer has to prove is that its method of selection was fair in general terms and that it was applied reasonably in the case of that employee. In doing so, it is sufficient to call witnesses of reasonable seniority to explain the circumstances in which dismissal of the employee came about. “Deferred dismissal” ?[231]There was an issue between the parties as to whether or not there was a “deferred dismissal” as the claimant’s Counsel submitted. If there was, the Tribunal would require to consider matters prior to December 2016 when the claimant’s post was made redundant. If not, the Tribunal would only be concerned with matters from 25 January 2017 when the claimant took up the research position in Professor Murray’s research group, until his dismissal with effect on 31 January 2018, as the respondent’s Counsel submitted.[232]The research position with Professor Murray was offered to the claimant by the respondent on 20 December 2016 on specified terms and conditions (P1/381-382). After rejecting the offer initially, it was accepted by the claimant on 25 January 2017 (P2/385). The claimant was made redundant from the research position, with effect on 31 January 2018, when funding for the position ceased and the activity could no longer continue (P2/508-512).[233]In his acceptance of the offer of the research position in Professor Murray’s group he said this in his email of 25 January 2017 (P2/385):- “I am prepared to accept the new position from 25 January 2017 only on the basis that it amounts to a dismissal from my old role and reengagement in a lower-status and insecure role. I reserve the right to take an unfair dismissal claim arising out of that dismissal and reengagement. Further, I reserve the right to take a race discrimination claim arising out of the dismissal and re-engagement and the circumstances leading up to it.”[234]Nothing was required of the respondent in return. That concluded a new contract. The terms of the offer and acceptance meant that the claimant was dismissed from his previous post, by reason of redundancy, and took up a new post on 25 January 2017. There was no, “dismissal on long notice of 12 months (then extended by agreement to 31 January 2018”), as the claimant’s Counsel submitted.[235]This was an issue which was addressed by Mr Christie at the Appeal. The Tribunal shares his views and reasoning (P2/811 at paras 75-78): - “75. The second additional issue put by Dr Nakamoto was (as he put it) that his “first position was never made redundant”. He said that he continued doing the same work after beginning to work with Professor Murray (and indeed he had been told to do so at one point by Professor Fowler, IMS Director). Further, he had not received a new contract of employment for the new position.76. I am afraid that consideration of this part of Dr Nakamoto’s representations required some discipline to remain in touch with reality. In the face of the whole process in 2016 – the Heys email of July 2016, the ‘at risk’ letter, the outcome of the Redundancy Dismissal Panel on 20 December 2016 with its offer of the new position and, above all, Dr Nakamoto’s express acceptance (albeit after some hesitation) of that new position on 25 January 2017 (P1/385) – it cannot sensibly be concluded that his previous position somehow still exists and “was never made redundant”.77. That express acceptance of the new role and the terms and conditions upon which it was accepted do indeed constitute a “problem for Dr Nakamoto’s case” (as Mr McConnell put it). The qualifications contained within it do not add conditions with which the University was to comply; they merely reserve rights (which he would have had anyway) to take certain claims (I assume to an employment tribunal) , which, as far as I am aware, he did not do.78. In my view that made a concluded new contract which, on top of what went before, is fatal to the previous contract; but what is perhaps meant, but not expressed as such, is that the fact of continuing at least some of the type of work in which he had been engaged in, meant there was not a genuine redundancy in the first place. I do not see how such a proposition could be sustained.”[236]Nor, for the same reasons, were we persuaded that the claimant’s dismissal from the “new position” on 31 January 2018 was, “inextricably linked with the substantive decision to make the claimant’s permanent post redundant in December 2016”, as the claimant’s Counsel submitted. He was dismissed from his previous employment on the ground of redundancy in December 2016. In January 2017 he took up a new post working with Professor Murray, on different terms and conditions, with “key duties”.[237]We noted that the claimant alleged in his witness statement that there was a “deferred dismissal” (Para 80). This was not a term that had been used previously. He did not use it when he accepted the new post (P2/385). In our view, it was something of an afterthought.[238]The redundancy situation arose, therefore, in respect of the new post with Professor Murray. The claimant accepted the new post on 25 January 2017 (P2/385) and, as there was a lack of funding, it came to an end with his dismissal with effect on 31 January 2018, by reason of redundancy.[239]We favoured the submissions by the respondent’s Counsel, therefore, that what occurred in 2016 was not relevant and that, “the redundancy situation and the claimant’s dismissal arose in connection with the redeployed role”.[240]We considered, therefore, having regard to the guidance in such cases as Polkey and Buchanan, the reasonableness of respondent’s actions in 2017 which led to the claimant’s dismissal by reason of redundancy. As we recorded above, all of the respondent’s witnesses presented as credible and reliable.[241]When he took up his new position in Professor Murray’s research group, the claimant was made aware of his “key duties”. These included, “obtaining external grant funding to support the continuation of the project” (P1/265). While the 12 months’ timescale to achieve this was “challenging”, the Tribunal was satisfied that the respondent, and Professor Murray in particular, were genuine in their desire to support the claimant as best they could with his endeavours to secure the required funding so that he could continue in the respondent’s employment. This was no “sham”. Even after he was given notice, Professor Murray and Professor McEwan continued to work with him, “to encourage and support grant applications that would be able to fund Dr Nakamoto’s appointment” (P1/509). The claimant was not “set up to fail” as he claimed. However, despite this support, it was clear to the Tribunal that rather than moving on and concentrating on the key duties in his new position, the claimant was fixated on the events of 2016 which had led to him being selected for redundancy. As Professor Murray put it, he, “failed to grasp the opportunity”. He had a continuing sense of injustice; he felt that he had been treated unfairly and discriminated against because of his nationality.[242]As it transpired, he was unable to obtain external grant funding to extend his appointment beyond 31 December 2017, as he was required to do. Indeed, in the 12 month period he made no grant applications either on his own or in conjunction with Professor Murray. Procedure/Consultation[243]What then of the procedures which the respondent followed which led to the claimant’s dismissal?[244]In accordance with its “Avoidance of Redundancy Policy” (P1/43 para 4.2.2), the respondent wrote to the claimant on 16 March 2017 to advise him that he was again at risk of redundancy (P2/415).[245]His first stage consultation meeting, convened by Professor Paul Fowler, was held on 28 March (P2/453-455). The claimant had trade union representation at that meeting. Professor Fowler came to the same view as Professor Murray that the claimant did not appear to be making the most of the redeployment opportunity. Existing grants[246]The claimant raised his concerns about how the two grants he had been working on prior to taking up his new position had been dealt with - the Bowel & Cancer Research grant and the Friends of Anchor grant.[247]The Bowel & Cancer grant was a relatively small one. However, Professor Fowler was mindful that the grant was supporting the employment of the claimant’s wife Chizu, in light of which it was thought best to complete the grant. The claimant was the PI, but Professor Murray was the co-applicant. It was decided that Professor Murray should undertake the responsibilities of PI, including the compulsory reporting process, which would then afford the claimant more time to secure a much larger grant.[248]So far as the Bowel & Cancer Research grant was concerned, limited progress had been made on this (approx. £400 spend in 7 months). It was a relatively small grant of £45,500 which was due to run from September 2016- 2018. The claimant was PI along with 2 co-applicants, namely Professor McEwan, the claimant’s academic line manager, and Professor Murray. It was decided that the grant should be returned to enable the claimant to focus on his work in the new position with Professor Murray.[249]While we were concerned that there did not appear to be any discussion with the claimant before the decisions were taken with regard to the grants, as we recorded in our findings in fact, we were satisfied that the motive for what the respondent did was to support the claimant in achieving the “key duties” in his new post. The aim was to free him up to secure further grant funding, but he continued to be diverted from this task by his resentment at the way he felt he had been treated during the restructuring. He was oblivious, it would appear, to the fact his work had to be financially sustainable. In the 12 months in the new post he made no grant applications.[250]This continuing resentment was evidenced by the terms of the e-mail he sent on 18 May 2017 to the Chief Executive of the Bowel & Cancer charity (P2/501/502) which in the view of the Tribunal was extremely ill judged, notwithstanding his strength of feeling. It could well have resulted in his dismissal. In that e-mail he not only complained about being removed as PI, but also alleged that there were, “serious concerns of institutional discrimination against ethnic minorities during the School “restructuring” procedures”. Not surprisingly, on receipt of the e-mail the Charity advised the respondent they were not prepared to provide further funding until the issue was investigated.[251]The second consultation meeting was held on 14 June 2017 (P2/505-506). It was conducted again by Professor Fowler and the claimant again had trade union representation. There was nothing to suggest that, as with the first consultation meeting, it had been conducted other than in an entirely reasonable manner.[252]As there was no further funding available to support the claimant’s post and no suitable alternative employment, on 22 June 2017 Professor Fowler wrote to the claimant to advise that he had no alternative other than to recommend his dismissal on the grounds of redundancy to the respondent’s Redundancy Dismissal Panel (P2/507). His recommendation was included with the documentary productions (P2/508-509). On 30 June Fiona MacAskill, HR Partner, wrote to the claimant to inform him that the Panel had decided his employment be terminated with effect from 31 December 2017 (P2/511-522).[253]The claimant appealed against his dismissal. The appeal was conducted by an independent, retired Employment Judge. The claimant had trade union representation. He made detailed written representations in support of his appeal. In the Tribunal’s view, the appeal was conducted in a reasonable manner and was comprehensive.[254]The procedures which the respondent followed were eminently reasonable. Not only was the claimant well aware his employment would come to an end in 12 months if funding could not be obtained, he was consulted at some length and he had trade union representation throughout. The Tribunal did not understand that he complained about the procedures as such.[255]The Tribunal was also satisfied, with reference to the guidance in Polkey, that the respondent took all reasonable steps to avoid having to make the claimant redundant. Not only was there consultation, there was also a Mediation which the respondent suggested and funded and, even after the claimant had been given notice of his dismissal, Professor Murray and Professor McEwan endeavoured to work with him, “to encourage and support grant applications that would be able to fund Dr Nakamoto’s appointment” (P2/509).[256]In our view, there was no, “overt sign of conduct which marred its fairness. The respondent did all that the law required of it” (British Aerospace Plc v Green and others [1995] IRLR 433).[257]In these circumstances, the Tribunal had little difficulty arriving at the unanimous view that the respondent had acted reasonably in terms of s.98(4) of the 1996 Act and that the claimant’s dismissal was fair. It was within the band of reasonable responses which a reasonable employer might have adopted. The complaint of unfair dismissal is, therefore, dismissed. 258. s.19 of the Equality Act 2010 “the 2010 Act” is in the following terms:- “19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which was discriminatory in relation to a relevant protected characteristic of B’s.(2) For the purposes of sub section (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim” List of Issues[259]The following were the Agreed List of Issues in respect of this complaint:- “9. Was the respondent’s aim in achieving the financial stability of its School of Medical Sciences and Nutrition (“SMMSN”) a legitimate aim?10. In its use of its criteria for selection for redundancy, did the respondent apply criteria such that persons of the claimant’s nationality and/or ethnic origin and/or national origin (including him) were put at a particular disadvantage when compared with those other colleagues not of the claimant’s nationality and/or ethnic origin and/or national origin?11. If the answer to question 10 is in the affirmative, can the respondent show that its use of those criteria was a proportionate means of achieving its aim of achieving the financial stability of the respondent’s SMMSN?12. What is the date on which the respondent applied those criteria to the alleged detriment of the claimant?13. Has the claimant brought proceedings on this complaint within the period of 3 months starting with that date, or the last date of conduct extending over a period of time?14. If the answer to question 13 is no, have the proceedings been brought within such other period as the Tribunal considers just and equitable?”[260]We addressed this issue first.[261]As we recorded above, we did not find favour with the submission by the claimant’s Counsel, in respect of time bar, that there was a “deferred dismissal”. There was not, in our view, either, “one dismissal on long notice of 12 months” or “a dismissal from the temporary post with effect on 31 January 2018 which was inextricably linked with the substantive decision to make the claimant’s permanent post redundant in December 2016”.[262]That being so, as the respondent’s Counsel submitted the last possible date when the respondent applied the criteria for selection for redundancy was 20 December 2016. That was the date on which the claimant was “allocated” alternative duties (P1/381-382). Indeed, the claimant claimed he had been discriminated against as far back as 25 January 2017 as in his email of that date (P2/385) he, “reserved the right to take a race discrimination claim arising out of the dismissal and re-engagement and the circumstances leading up to it”.[263]The answer, therefore, to Issue 12 is 20 December 2016.[264]In terms of s.123(1)(a) of the 2010 Act, a claim concerning work-related discrimination must be presented to the Employment Tribunal within the period of 3 months beginning with the date of the act complained of. As the latest possible date of the act complained of in the present case was 20 December 2016, there was no continuing act of discrimination, and the claim form was presented on 5 July 2018, it was out of time. That is the answer to Issue 13. Just and Equitable Extension[265]Having addressed Issues 12 and 13 we went on to address Issue 14.[266]The 3 month time limit for bringing a discrimination claim is not absolute. In terms of s.123(1)(b) of the 2010 Act, Employment Tribunals have discretion to extend the time limit for presenting a complaint where they think it “just and equitable” to do so. Tribunals thus have a broader discretion under discrimination law than they do in unfair dismissal cases. The 1996 Act provides that the time limit for presenting an unfair dismissal complaint can only be extended if the claimant shows that it was, “not reasonably practicable” to present the claim in time.[267]At paras 22 and 23 of his written submissions, the claimant’s Counsel invited the Tribunal to exercise its discretion. In support of his submissions he referred to the recent decision of the Court of Appeal in Abertawe and made a number of points.[268]The respondent’s Counsel submitted that it would not be just and equitable to extend the period for presenting the complaint. His submissions are to be found at paras 22-25 of his written submissions.[269]While the claimant may not have had experience of employment law or of Employment Tribunal proceedings, it was significant that he had the benefit of advice from his “union’s lawyer” (see para 80 of his statement). Indeed, it would appear that he had ready access to such advice throughout and there was no apparent impediment to him presenting a claim form in time.[270]It is clear from the terms of his email of 25 January 2017 (P2/385) that he felt he was being discriminated against and that he was aware of his right to claim at that time.[271]Whilst English is not his first language, he speaks English fluently and it was clear that he was well able to express his views in writing in an articulate and comprehensive manner.[272]In the Tribunal’s view there was no impediment to him presenting his claim timeously and yet the length of delay was very significant indeed.[273]Whilst it was not disputed that there were outstanding grievance and appeal proceedings that is not an excuse for the delay and, of course, his trade union would have been well aware of the time limits.[274]The fact remains that the claimant did not act promptly once he knew of the facts giving rise to his claim.[275]Nor was the Tribunal persuaded that the cogency of the evidence would not be affected by the delay. As the respondent’s Counsel drew to our attention, “there were a number of questions put in cross examination by the claimant’s Counsel to which the answer was that the witness could not recall”.[276]The Tribunal also accepted the submission by the respondent’s Counsel, in response to the assertion by the claimant’s Counsel that the only prejudice to the respondent will be the advantage of escaping potential liability that, “the same can be said in many cases but of itself is not a reason to extend time”. It was but one factor, therefore, which we weighed in the balance.[277]While the unfair dismissal claim was in time, the Tribunal decided, unanimously, that the claimant was not unfairly dismissed.[278]Finally, while we were mindful of the guidance of the Court of Appeal in Abertawe, we also had regard to the Court of Appeal decision in Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434 that the exercise of the just and equitable discretion is, “the exception rather than the rule”.[279]Having weighed all these factors in the balance, the Tribunal arrived at the unanimous view that, in all the circumstances of the case, it was not just and equitable to exercise its discretion and allow the complaint of indirect discrimination to proceed, although out of time.[280]Accordingly, the complaint is time-barred and is dismissed for want of jurisdiction. Merits of the Indirect Discrimination Complaint[281]For the sake of completeness, we wish to record the Tribunal’s views on the merits of the indirect discrimination complaint and the remaining Issues, 9, 10 and 11.[282]A successful claimant bringing an indirect discrimination complaint will have shown that their employer has in place a, “provision, criterion or practice” (“PCP”) which applies to all employees, but puts people with a “protected characteristic”, at a particular disadvantage when compared with other employees, and puts, or would put, the individual bringing the claim at that disadvantage. The “protected characteristic” relied on in the present case was “race”, which in terms of s.9 of the 2010 Act includes, “nationality and ethnic or national origins”. However, here, unlike in direct discrimination, an employer has the chance to show that the PCP is a, “proportionate means of achieving a legitimate aim”.[283]The claimant’s Counsel relied on the decision in Essop and Naeem. In these joined appeals, the Supreme Court reinstated the established position in indirect discrimination cases: that there is no requirement for claimants to establish what the reason is for their disadvantage arising from the PCP in question. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual.[284]The disparate impact or disadvantage can be established on the basis of statistics. The PCP may be able to be justified and there is no stigma or shame in doing so.[285]When considering this issue, we also had regard to the guidance in Chapter 4 of the EHRC: Code of Practice on Employment (2011) where indirect discrimination and “objective justification” are explained.[286]In the first instance, therefore, the burden lay with the claimant to establish the first, second and third elements of the statutory definition: that there was a PCP; that it generally disadvantaged those who were of East Asian ethnicity: and that, what was a disadvantage to the general also created a particular disadvantage to him. However, were he to discharge that burden, the indirect discrimination might still not be unlawful if the respondent could show that there was “objective justification” for it, by demonstrating that the discriminatory impact was a “proportionate means of achieving a legitimate aim. Racial Group[287]The Tribunal was satisfied that the claimant had identified an appropriate racial group namely, “East Asians”, which for the purposes of this case was the grouping for Chinese and Japanese staff within the IMS. The PCP[288]The PCP relied upon by the claimant was, “the means of selection of staff within the respondent’s IMS into areas of disinvestment”. Legitimate Aim (Issue 9)[289]There is no statutory definition of what amounts to a legitimate aim. However, according to the EHRC Code, for an aim to be legitimate it must be, “legal, should not be discriminatory in itself and it must represent a real, objective consideration” (Para 4.28).[290]In the present case the legitimate aim which was advanced by the respondent was “the financial stability of the SMMSN”.[291]The School Plan 2015-2020 (P1/105-115) forecast a substantial financial deficit. The following is a passage from the Plan (P1/114):- “Financial Strategy In parallel with the work to establish a new integrated School structure, a detailed plan to address budgetary challenges is being developed. For the current year the School is forecasting a deficit position of £2.1m with increases in future years. To address this will need cost cutting in the shorter term as well as income generation over a longer sustained period. The short term measures will include adjusting the core staff expenditure, currently high in comparison with sector average at over 60% of income. To do this, we hope to optimise the opportunities of the voluntary severance scheme, but it is becoming clearer through current levels of interest that this will not allow us to make sufficient inroads to achieve the 2015/16 savings target. Therefore the only recourse is to take further measures to reduce core staffing expenditure and move to close significantly reduce staffing in a number of specified areas in order to reduce the staffing complement of the College to a level that will enable the College to become financially stable. It may, additionally, be necessary to reduce the staffing complement in a number of other areas.”[292]A significant part of that projected deficit was attributable to IMS and an increase in the deficit was anticipated in future years unless action was taken to address the deficit and achieve financial sustainability. The SMMSN was directed by the SMT to achieve recurring annual savings of £1.5 million with effect from 2016/17. Immediate action was required.[293]Professor Fowler, a credible and reliable witness in our view, gave evidence that, “the size of the School deficit was considered by the University’s Senior Management Team to be so large that immediate steps had to be taken to reduce costs. The areas which were financially unsustainable and for which no further investment could be justified were readily identifiable in consequence of the review of all IMS research already carried out”.[294]The Tribunal was satisfied, therefore, with reference to “Issue 9”, that achieving the financial viability of the SMMSN was a “legitimate aim”. Nor was it not just a matter of “cutting costs”, as the claimant’s Counsel submitted. It was also to concentrate on the “areas of investment” and thereby generate more income to achieve financial sustainability in the future. The aim was to target areas of proven excellence and further improve the contribution of these areas generating income. It was, in our view, a “legitimate aim” to achieve financial stability, year on year, and to make decisions about the allocation of resources. In arriving at this view, we were mindful of the EAT decision in HM Land Registry v Benson and Ors [2012] ICR 627, which suggests that an employer’s decision about how to allocate financial resources will constitute a “real need” or legitimate aim, even if the employer could have afforded to make a different allocation with a lesser impact on the disadvantaged class of employee in question. However, we recognised that that is not an end to the matter as we would still need to consider “proportionality” and balance the respondent’s needs against the measures’ discriminatory impact. “Particular Disadvantage” (Issue 10)[295]We were satisfied that the submission by the claimant’s Counsel that the “particular disadvantage” was, “being placed at the risk of redundancy and thus placed at risk of being dismissed”, was well-founded.[296]The claimant produced a detailed statistical analysis of the impact of the PCP as between those who were of East Asian ethnicity and those who were not (paras 90-98 of his witness statement and Appendix 2).[297]He was well able to carry out such an exercise and his methodology was not challenged.[298]In the Tribunal’s view, his analysis was reliable and the EHRC Code makes it clear that statistical evidence can be useful (para 4.20).[299]We were satisfied, therefore, that ss.19(2)(a)-(c) of the 2010 Act were satisfied.[300]In arriving at this view, we were mindful, as the claimant’s Counsel submitted, that Lady Hale emphasised in Essop that this should not be an exacting threshold to overcome.[301]Also, in light of the “particular disadvantage” to which the claimant was subjected, we also found favour with the submission by the claimant’s Counsel that it was irrelevant that no other East Asian colleagues were dismissed. That was only because, as we understood it, they took VS. They were also, “placed at risk of redundancy and thus placed at risk of being dismissed”. “Proportionality” (Issue 11)[302]Consideration of an employer’s defence of justification in claims of indirect discrimination requires an objective balance to be struck between the discriminatory effect of the PCP and the reasonable needs of the party that applies it (see Hampson v Department of Education and Science [1989] ICR 179.[303]This balancing exercise is often referred to as the test of “proportionality” and is set out in s.19(2)(d) of the 2010 Act.[304]At para 4.30, the EHRC Employment Code gives the following guidance on the issue:- “Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. An Employment Tribunal may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the employer’s reasons for applying it, taking into account all the relevant facts.”[305]We should record, at this stage, that we were satisfied that immediate steps had to be taken by the respondent to achieve financial sustainability.[306]As the onus was on the respondent in this regard, we first considered the written submissions by the respondent’s Counsel at para 18. By and large, we considered these to be well-founded.[307]The claimant’s Counsel was critical of the respondent restricting the pools to as small a size as possible which resulted in the identification of the last 3 areas of disinvestment (which were all pools of one) as detailed in Professor Heys’ email of 18 July 2016 (P1/163/164).[308]The Tribunal was concerned that we did not hear evidence from Professor Heys. This made our task all the more difficult. However, we were in no doubt that the designation of these particular pools was not, “clearly tailored to the 3 affected individuals including the claimant”, as the claimant’s Counsel submitted. Nor were we persuaded, as the claimant’s Counsel also submitted, that, “the desire to restrict pools to the smallest number possible appears to have strongly influenced the decision to carve out the claimant and his 2 Japanese colleagues in individual areas for disinvestment”.[309]In designating the pools in this manner, the respondent followed its own “Consultation on Avoidance of Redundancy Policy” (P1/45, Appendix A). That Policy states that, “.. where redundancies are unavoidable, the University will adopt a position of containing the redundancy pool within the smallest appropriate unit of the University”. It also avoided placing all the staff in the School at risk, giving rise to a concern of how this would affect morale and motivation. Also, as Mrs Dyker said, “ it was consistent with the financial strategy of growing School income by supporting investment in financially successful areas through disinvestment in unsuccessful areas”.[310]As the respondent’s Counsel submitted:- “Professor Stansfield’s evidence (paragraph 54 of his witness statement) was that it was the responsibility of the management team to identify those areas of research in the Institute (“IMS”) that were least contributory to income, while at the same time constraining those areas to be as small as possible i.e. containing as few staff as possible. That approach (of identifying as small as possible an area of disinvestment) was recommended by that Policy.”[311]It was also significant, in relation to the allegation that the claimant and his Japanese colleagues had been “targeted”, that in the first instance the use of the criteria was aimed at inviting applications for VS. (P1/163). As it transpired, there were insufficient successful applicants. Had there been sufficient, compulsory redundancies would have been avoided. However, there would still have been an ongoing requirement to monitor and address the issue of financial sustainability of research work.[312]Further, as the respondent’s Counsel also drew to our attention, “the pool in which the claimant was placed was derived from an exercise carried out by the School which when done (late 2015) had nothing to do with a plan to reduce staff numbers” … it is submitted that the respondent (or more accurately the School) was entitled to decide the areas for future investment, and those areas in which it would no longer invest (areas of disinvestment). Those decisions were necessary for the financial stability of the School”.[313]Counsel also detailed in his submissions at para 18 how Professor Stansfield had carried out his review of academic output. As we recorded above, Professor Stansfield presented as credible and reliable. We were satisfied that the procedure which he followed, and his methodology resulted in the identification of a number of areas of investment and of disinvestment which were reasonably necessary for the financial stability of the School. It should be borne in mind that the identification of an area for disinvestment did not mean that the research activity had to stop. What was signified by the designation was that IMS could no longer support the activity with core funding. Professor Stansfield explained why the claimant’s research work was identified as one of the areas of disinvestment. We were satisfied with his explanation. It had nothing to do with his nationality. The claimant had not secured grant income sufficient to cover his costs and they had to be paid by IMS. Professor Stansfield gave, by way of example, that the claimant, in addition to his own salary, had accrued costs of some £70,000 using mice in his research. He also had the salary cost of a part time lab technician. These costs had to be met by the IMS.[314]However, as we recorded above it was not just a “cost cutting exercise” alone. By identifying not only areas of disinvestment, but also areas of investment, and focusing on those, the aim was to achieve the financial stability of the IMS in the future.[315]Having carried out the objective balancing exercise, therefore, between the discriminatory effect of the PCP and the reasonable needs of the respondent, we were satisfied that the respondent had discharged the onus of establishing “objective justification”.[316]We were of the view that the respondent had shown the PCP to be, “a proportionate means of achieving a legitimate aim”. The respondent had satisfied the terms of s.19(2)(d).[317]In arriving at this view, we were also mindful of the guidance of Lady Hale at para 29 of her Judgment in Essop:- “A final salient feature is that it is always open to the respondent to show that his PCP is justified – in other words, that there is a good reason for the particular height requirement, or the particular chess grade, or the particular CSA test. Some reluctance to reach this point can be detected in the cases, yet there should not be. There is no finding of unlawful discrimination until all four elements of the definition are met. The requirement to justify a PCP should not be seen as casting some sort of shadow or stigma upon them. There is no shame in it. There may well be a very good reason for the PCP in question – fitness levels in firefighters or policemen spring to mind, but, as Langstaff J pointed out in the EAT in Essop, a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact by achieving the desired result”.[318]The respondent, in the present case, of course, did carry out such monitoring. Equality information was provided on 17 August 2016 (P1/171- 172). An “Equality and Diversity Impact Assessment” was undertaken in respect of the VSS and Early Retirement Scheme and potential compulsory redundancy within SMMSN (P1/195-206). In February 2017, the respondent considered the ethnic composition of staff members before and after the restructuring exercise (P2/397). Statistical information was sent to the claimants’ trade union on 15 February 2017 (P2/401-405); and to the claimant’s MP on 6 March 2017 (P2/407- 410).[319]The respondent went to considerable lengths to avoid any compulsory redundancies. This is evidenced in the “Timeline of Communications” in Appendix 2 to the “Lessons Learned” exercise carried out by Professor Ross (P1/486-499). It is to the respondent’s credit that faced with such a serious financial situation which required immediate action, at the end of the day there was only one compulsory redundancy.[320]S.27 of the 2010 Act provides: “A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.” Protected Act[321]The protected act relied upon by the claimant was the terms of the collective grievance. We accepted that the grievance was made in good faith and that it was genuinely held.[322]Two detriments were alleged by the claimant’s Counsel. The first was the decision by Professor Heys to remove the claimant from the Friends of Anchor grant by instructing him to return it. This decision was communicated to the claimant by Professor Fowler at the redundancy consultation meeting on 28 March 2017.[323]The second alleged detriment was the decision, of even date, to remove the claimant as PI from the Bowel & Cancer Research Project.[324]The claimant was aware of these detriments on 28 March 2017 (P2/453-455). The claim form should have been submitted within three months from that date. It was not submitted until 5 July 2018. It is, therefore, well out of time.[325]So far as the exercise of the just and equitable discretion was concerned, by and large our reasons for not exercising the Tribunal’s discretion in relation to the indirect discrimination complaint are apposite. In particular, the claimant had the benefit of trade union advice and was well able to complete and submit a claim form in time. There was no impediment to him doing so.[326]Accordingly, this complaint is also time-barred and is dismissed for want of jurisdiction. Merits[327]In any event, we wish to record, for the sake of completeness, that even if the Tribunal did have jurisdiction to consider this complaint, in the Tribunal’s view it was not well-founded.[328]As we have already recorded, we were of the view that the reason why the respondent took this action with regard to these two grants was to support the claimant and free him up to achieve the aim of securing additional grant funding which would support his continued employment. It had nothing to do with the fact that he had been a party to the collective grievance. That was the evidence of Professor Fowler. Other than the bare facts of the claimant being a party to the collective grievance and the respondent making the decisions which they did in this regard, there was nothing to suggest that there was any link between the two.