Case No 4112445/2019Venue GlasgowHearing 1 May 2020 (Preliminary Hearing held remotely by Kinly cloud video platform)
Between
Mr David OdigieClaimantRenfrewshire CouncilRespondent
Before
Employment Judge Ian McPhersonMs Eilidh Clements (instructed by Solicitor) for claimantDate 19 May 2021
JUDGMENT
The Judgment of the Employment Tribunal is that:-(1) Having heard evidence, and thereafter considered parties’ closing submissions in private deliberation following close of the Preliminary Hearing, the Tribunal finds that the claim, presented on 9 November 2019, was presented out of time, but that it is just and equitable, in terms of Section 123 of the Equality Act 2010, to extend the time for lodging the claimant’s ET1 claim form with the Tribunal.(2) In these circumstances, the Tribunal does therefore have jurisdiction to consider the claimant’s complaint of alleged unlawful direct racial discrimination against him by the respondents, and the Tribunal refuses the respondents’ application to strike out the claim, under Rule 37 of the Employment Tribunals Rules of Procedure 2013, as having no reasonable prospects of success.(3) Having allowed the claim to proceed, although lodged late, the Tribunal orders the claim and response to be listed, in due course, for a Final Hearing before a full Tribunal for full disposal, including remedy, if appropriate, and instructs the clerk to the Tribunal to issue date listing stencils to both parties for that purpose, with a view to a Final Hearing to be held, on dates to be hereinafter fixed by the Tribunal, within the proposed listing period of October, November or December 2020.(4) When responding to the date listing stencils, the Tribunal further orders that both parties shall advise the Tribunal whether they are content for that Final Hearing to proceed by way of video evidence from both parties, again using the Kinly cloud video platform, and after the preparation and mutual exchange of witness statements prior to the start of that Final Hearing, or whether, instead, they seek to have an in-person Hearing at the Glasgow Employment Tribunal, and, if so, to clarify whether with or without the use of witness statements.(5) Further, the Tribunal orders that the respondents’ solicitor shall, within no more than 28 days from date of issue of this Judgment, lodge with the Tribunal, by email, with copy sent at the same time to the claimant, detailed grounds of resistance to the merits of the claim brought against them, by way of further and better particulars fully answering the claimant’s complaint, as set forth in the ET1 claim form, and so augmenting the ET3 response previously lodged with the Tribunal in skeletal form, denying the discrimination allegation, but otherwise only addressing the time-bar argument.(6) The Tribunal also orders that the claimant shall, within no more than 28 days from date of issue of this Judgment, lodge with the Tribunal, by email, with copy sent at the same time to the respondents’ solicitor, a detailed Schedule of Loss setting forth the amount of compensation he seeks from the respondents, in the event that his complaint against them is to be upheld by the Tribunal after determination at a Final Hearing, together with an explanation for how he has calculated the amount claimed, and he shall also clarify whether or not he still seeks a recommendation from the Tribunal, in terms of Section 124 of the Equality Act 2010, as previously indicated in his ET1 claim form, and, if so, in what terms, allowing the respondents’ solicitor a period, not exceeding 14 days from intimation of such Schedule of Loss, to make written comment or objection to the Tribunal, with copy sent at the same time to the claimant, including any Counter- Schedule.
REASONS
[1]This case called before me again on the morning of Friday, 1 May 2020, for a public Preliminary Hearing before me as an Employment Judge sitting alone, to consider the respondents’ opposed application for Strike Out, under Rule 37 of the Employment Tribunal Rules of Procedure 2013, on the basis that the respondents submit that the claim is time-barred, and thus it has no reasonable prospects of success, as it would not be just and equitable to grant any extension of time to the claimant, in terms of Section 123 of the Equality Act 2010.[2]On account of the ongoing Covid-19 pandemic, and joint Presidential Guidance issued by the Presidents of Employment Tribunals in Scotland, and England & Wales, in March 2020, and on account of there currently being no in person Hearings conducted, and both parties notified accordingly, this listed Preliminary Hearing took place remotely given the implications of the pandemic. It was a video (V) hearing held entirely by Kinly CVP, and parties did not object to that format.
Background
[3]The case had first called before me on Thursday, 19 March 2020, for an inperson Case Management Preliminary Hearing, conducted in private, at the Glasgow Tribunal office, but with social distancing measures put in place in the Tribunal hearing room, on account of Covid-19. My written Note and Orders, dated 23 March 2020, was issued to both parties under cover of a letter from the Tribunal dated 31 March 2020.[4]At that earlier Hearing, having heard from both parties, and taking account of the Presidential Guidance in connection with the Conduct of Employment Tribunal Proceedings during the Covid-19 Pandemic, I ordered that the case was to be listed for a one day Preliminary Hearing to be held in public before me (if available), which failing another Judge, at the Glasgow Employment Tribunal, on Friday, 1 May 2020, as mutually agreed as convenient to parties, their witnesses and representatives, commencing at 10.00am, or as soon after that time as the Employment Judge could hear it, to hear evidence from the claimant first, then his wife, and then closing submissions thereafter by both parties, respondents first, then claimant, on the disputed preliminary issue of time-bar.[5]My written Note and Orders made necessary case management orders and directions in that regard, in exercise of my general case management powers under Rule 29, and, in particular, it was recorded that this Preliminary Hearing would be conducted by use of electronic communications (by video conferencing, or Skype, or equivalent, if possible), which failing by telephone conference call, all as per Rule 46 of the Employment Tribunals Rules of Procedure 2013.[6]Further, and, as per Rule 43, parties mutually agreed that the evidence of the claimant and his wife, restricted to the disputed preliminary issue of time-bar, and not the merits of the complaint against the respondents, would be provided by way of previously written witness statements, format and content as provided for in paragraph 20 of my written Note, ordered to be intimated within 4 weeks, i.e. by no later than 16 April 2020, which witness statements would shall stand as their evidence in chief, and be taken as read at this Preliminary Hearing.[7]At that earlier Hearing, I also ordered that, within 2 weeks, i.e. by no later than 2 April 2020, the respondents' representative should intimate to the Glasgow Tribunal office, by e-mail, with copy sent at the same time to the claimant, an outline written skeleton argument of their submissions to the Tribunal, together with a hyperlink to all legal authorities which the respondents’ representative intended to refer to or rely upon in the course of her submissions at this Preliminary Hearing. Their skeleton was to identify relevant statutory provisions and case law to be relied upon in argument at that Preliminary Hearing on time-bar, identifying clearly the relevant legal principle being relied upon, with full citation of page / paragraph number of the judgment relied upon, so as to give the claimant, as an unrepresented party litigant, advance fair notice of the factual and legal arguments being presented to the Tribunal by the respondents’ representative.[8]The respondents’ representative timeously intimated her outline written skeleton argument, and list of seven case law authorities, on 2 April 2020, sending a copy to the claimant. I detail these later, at paragraph 30 of these Reasons below. The claimant did not, however, lodge witness statements by 16 April 2020, nor seek an extension of time to do so. He wrote to the Tribunal, on 1 April 2020, stating that he wished to include his GP, The Barony Practice, Paisley, as an expert witness in this matter, as he had seen several doctors in his GP, and he proposed either Dr John Hislop or Dr Lorna Corfield. He asked the Tribunal what he needed to do next, did he get in contact with his GP or would the Tribunal get in contact with the GP? Nor did he intimate any additional case law authorities that he wished to rely upon, by 24 April 2020, as previously ordered by the Tribunal, but he did so in advance of the start of this Hearing, as I detail later, at paragraph 12 of these Reasons below.[9]When the claimant’s enquiry was passed to me, on 16 April 2020, the Tribunal clerk replied to him, on my instructions, stating that it was his responsibility to contact his GP but the Tribunal understood, from the Hearing on 19 March 2020, that there was only going to be evidence from him, and his wife, and not a medical witness, although his witness statement might have included any supporting medical evidence that he sought to rely upon. Nothing further was heard from the claimant about calling a medical witness, although at this Hearing, he appeared to suggest that the Tribunal should have ordered a medical report from his GP as he would have been unable to pay for such a report privately. It is parties’ responsibility to arrange for the attendance of witnesses, and, further, the claimant made no request to the Tribunal for a Witness Order to be granted to compel the attendance of his GP.[10]Most recently, on 23 April 2020, when he intimated two “personal statements”, one from himself, and the other from his wife, the claimant indicated to the Tribunal that he was seeking advice from the Strathclyde University Law Clinic, but he was not sure if they would be able to represent him. No application was made to postpone this listed Preliminary Hearing, and the claimant sent to the Tribunal, with copy to the respondents’ representative, the two personal statements which, although undated and unsigned, have been received and placed on the casefile as the witness statements previously ordered by the Tribunal.[11]At the start of this Hearing, it emerged that the claimant had re-submitted his witness statements by email to the Tribunal, and copied to the respondents’ solicitor, in the early hours at 02:59 on Friday, 1 May 2020. He had made what he described as “slight and insignificant changes” to the witness statements, to conform to the Tribunal’s earlier directions, and certifying that the information provided in the statements is true and accurate to the best of the witness’s knowledge. They retained the same dates as before, but they were still unsigned. Ms Clements confirmed that she had received them, and I had the clerk to the Tribunal send me a copy, by email, for my use at this Hearing.[12]The claimant’s email confirmed that the Law Clinic had emailed him the previous day to advise that they would not be able to represent him at this Hearing, as they are in the middle of exam diet and working remotely, with limited resources and student availability, but they would be applying for more time to represent him if they were to take on his case going forward. His email to the Tribunal, copied to Ms Clements, at 23:55 on Thursday, 30 April 2020, further advised that he would be relying on two cases, which he identified (without any legal citation) as being Norbert Dentressangle Logistics Ltd v Mr Hutton, and Robinson v Fairhill Medical Practice. Ms Clements advised me that they were both EAT judgments, and available on the Bailli website, so I was able to access them online and read them, albeit the claimant had not provided copy judgments to the Tribunal. Claim and Response[13]The claimant, acting on his own behalf, presented his ET1 claim form in this case to the Tribunal, on 9 November 2019, following ACAS early conciliation between 2 and 13 June 2019. It was accepted by the Tribunal administration, and served on the respondents by Notice of Claim issued by the Tribunal on 12 November 2019. Their ET3 response was due by no later than 10 December 2019.[14]In his ET1 claim form, having ticked in section 8.1 that he was discriminated against on the grounds of race, and indicating no other type of complaint against the respondents, the claimant stated his case, in a separate paper apart enclosed with his claim, reading as follows:
Background
[1]The reasons why I delayed at brining (sic) this case before the tribunal was that I had some other cases put before the tribunals, as of when those cases were put before the tribunal, I don’t have a lawyer and I was handling the case management alone. The management of the cases by myself had put enormous pressure on me and my family and my relationship with my wife.[2]As a result of what I was going through, I was frequently having panic attach (sic) ; I could hardly sleep at night and l was diagnosed of anxiety.[3]My wife is a student and had recently given birth to a bouncing baby boy on the 15th 0f December 2018, he is just about eleven months old, I had to take care of my boy to allow my wife to study.[4]I was recently writing my dissertation and I had a deadline to meet, despite all what I am going through, I had to encourage myself and find the strength to write the dissertation.[5]The above are some of the reasons why I delayed putting the case forward despite the fact that the Acas Certificate was issued at on the 13th of June 2019.[6]I received an email inviting me for an interview on the 15th of April, the email stated that "Dear D We are pleased to advise you that your application has successfully progressed to the next stage of our recruitment process. Please ensure you read the full email before booking your interview slot. Please select one of the timeslots below for your interview. Your interview will include a presentation. The presentation should last no longer than 10 minutes and be based on the following: "Describe your role in implementing a new recycling initiative, highlighting the key components of the project and any problems you overcame" Equipment will be available to carry out your presentation. Please email your presentation to lindsey.hepburn@renfrewshire.gov.uk by no later than 12pm on Wednesday 12 April.”[7]After booking my interview slot, I received the second email stating that ” Dear D Thank you for your application for the position of Waste Operations Team Lead (Permanent). We are delighted to confirm your interview details as shown below: Date: 18/04/2019 Time: 15:00 Location: Customer Service Centre, Renfrewshire House, Cotton Street, Paisley, PA1 1LQ ".[8]The interviewers comprise of a male and two females, one of the females happen to be Lindsey Hepburn. The interview went on very smoothly and I was told they would get back to me before the end of the next day.[9]Two weeks after the interview, they still had not get back to me about the outcome of the interview, I then sent an email on the 30th of April, 2019, stating that[10]”Dear Lindsey, I just want to remind you that l have not heard from you concerning the outcome of my interview for the post of Waste Operations Team Leader. I would be looking forward to hearing from you. Thanks.”[11]On the 2nd of May I received an email stating that l was not successful. The email stated that[12]Dear D Thank you for attending the recent interview for the above post with Environment & Communities. After careful consideration, I write to advise that on this occasion we will not be taking your application further. If you have not done so already, we recommend that you take advantage of our email job alert service so that you can receive the latest vacancies as they arise. You can register at our website once you have carried out a search. We would like to take this opportunity to thank you for the interest you have shown in this post and to wish you every success in the future. Many thanks, Renfrewshire Council myjobscotland.gov.uk[13]I also received a call from the male interviewer, he told me that l was not successful and I asked why, but he could not tell me why I was not successful, I decided to request for a detail feedback concerning my interview, in which he replied that people don’t normally ask for detail feedback, you tell them they are unsuccessful and they say ok and you end the call.[14]I insisted that I want detail feedback to know what my weakness and put things in place to improve. He then told me that one of the interviewers is on holiday, that when she comes back, they would have a conference call with me to give me the feedback I requested.[15]On the 3rd of May I sent an email to Linsey Hepburn requesting formally for a detail feedback. I also sent a remainder (sic) on the 10th of May. On the 14th of May. I was given the feedback.[16]I was told that I had a very good presentation but the presentation was not scored.[17]I was asked 9 questions in which I had the top mark (Highest mark) in five of the questions and very high mark in the remaining four questions.[18]I was informed that they don’t have any area I should improve on since I had a very good interview.[19]I asked Linsey,” what the successfully candidate did different to get the job" She said they were internal and they gave examples specific to Renfrewshire Council.[20]On the 23rd of May, I sent this an email accusing Renfrewshire Council of Racial discrimination, the email stated that ” Dear Lindsay, I would like to thank you for the feedback you gave me regarding my interview with you, having fully regurgitated over and over about it, I believe I was racially discriminated against. The only issue you had with my interview was that internal staff were specific in highlighting issues facing waste management operation in Renfrewshire Council. You have every opportunity to have advertised this job internally but you never did. Advertising it to the public, you should have put everybody on a level playing field. I have worked in at least 3 councils and I would like to point it out to you that every council has a similar issue related to waste management. You also said you did not score the presentation because it’s not part of the interview, I totally disagree with you, the presentation is the hardest part of the interview and should have been scored. You are trying to cut every leverage I have for the interview in order to deny me the post. I have decided to take legal action against Renfrewshire Council for racial discrimination. Thanks.[21]I believe not getting the job was racially motivated, no matter how good I am, they will always make up excuses to disenfranchise me from getting the job. This has become a common practice.[22]If I was a white person, I would have been offered the job based on my interview.15. When the Tribunal issued the standard “Claim Accepted Out of Time” letter on 12 November 2019, along with Notice of Claim served upon the respondents, they were advised that they might wish to submit a skeleton response at that stage dealing only with the time-bar issue, and provide a full response dealing with the merits of the case at a later stage, if the Tribunal decided that it could consider the claim. On 10 December 2019, an ET3 response, defending the claim, was lodged by Mr Nairn Young, in-house solicitor with the respondent Council, and that ET3 response was accepted by the Tribunal administration, on 12 December 2019, and a copy sent to the claimant and ACAS. It denied the allegation of racial discrimination, and submitted that the claim was time-barred, and it should be held to be outwith the jurisdiction of the Tribunal, submitting that it was not just and equitable to grant the claimant an extension of time.16. In particular, section 6.1 of that ET3 response submitted as follows: “This response is limited only to the issue of timebar, which is to be dealt with at the preliminary hearing fixed for 2pm on 19 March 2020. Should the Tribunal decide it can consider the claim, the Respondent would request further time to address the merits of the case. For the avoidance of doubt, the Respondent denies having discriminated against the Claimant in any way. The Claimant accepts, and the Tribunal has already identified, that this claim has been brought outside of the time limit imposed by s.123(1)(a) of the Equality Act 2010 (‘the Act”). The Tribunal may therefore only consider it if it deems it just and equitable to do so. The Respondent submits that that test is not met, for the following reasons: 1. The claim is significantly late. The Claimant was turned down for employment by the Respondent on 2 May 2019. He referred the matter to ACAS for early conciliation on 2 June 2019. An early conciliation certificate was issued by ACAS on 13 June 2019. The Claimant therefore required to bring his claim to the Tribunal by 13 August 2019, in order to comply with the three month time limit imposed by the Act. He did not raise this claim until 9 November 2019: almost fully another three months after the expiry of the time limit. The Court of Appeal has observed that, "It is… of importance to note that the time limits are exercised strictly in employment and industrial cases." (LJ Auld, in Bexley Community Centre v Robertson [2003] IRLR 434 CA, para.25.) 2. The Claimant is well aware of the time limit that applies, having raised the further claims he refers to, which the Respondent understands were themselves raised out of time. It is not just or equitable for a Claimant to be allowed continually to pay no heed to the time limits set in primary legislation. 3. Against that background of familiarity with the law in regard to the time limit, no sufficient explanation for lateness is offered by the Claimant. The vague reasons advanced amount, at best, only to the ordinary pressures of day-today life and should not therefore be considered as establishing sufficient grounds to treat this case as an exception to the general rule that claims must be brought in time. There is no indication as to why any reason given specifically prevented compliance with the requirements of the law, at the relevant time. 4. Allowing the claim to be heard, although late, will be significantly prejudicial to the Respondent. By the time of any hearing, at least a year will have passed since the events that the hearing will be considering. The Respondent will therefore be hampered in presenting its case by the fading memories of officers in regard to the precise content of statements they may have made to the Claimant. In addition, the burden of having to defend a claim made out of time, with the implications that has for resources and the use of officers’ time, constitutes significant prejudice. 5. On the other hand, any prejudice the Claimant will suffer In the claim not being allowed to proceed is minimal, on the basis that it is any event without merit The averments made in the claim, even if they were taken as being entirely true, do not constitute a factual basis upon which a Tribunal could conclude that there was a potentially discriminatory act. On the contrary, the Claimant’s issue appears to be with the criteria used to score the interview process and with the judgement of the interview panel that the ability to provide answers specific to the Respondent’s circumstances merited a higher score. The claim does not disclose any basis upon which a Tribunal could conclude that a white individual performing similarly in the interview would have received different treatment from the Claimant.”17. Thereafter, on 13 December 2019, Employment Judge Frances Eccles, having considered the file, at Initial Consideration, ordered that the case proceed to the already listed Case Management Preliminary Hearing on 19 March 2020, which is when this case first called before me. The claimant’s completed PH agenda was due by 27 February 2020, and the respondents by 12 March 2020. The completed PH Agenda for the respondents was submitted by Ms Eilidh Clements, solicitor, on 11 March 2020, but the claimant only intimated his completed PH Agenda at 04:07 am on Wednesday, 18 March 2020.18. Attached to the claimant’s PH Agenda was a medical report, dated 4 February 2020, from his GP, Dr Lorna Corfield, The Barony Practice, Paisley, to the Ethnic Minorities Law Centre, who he advised me had represented him earlier in another Tribunal case against another respondent, and his completed PH Agenda referred to the “impact of discrimination on his mental health”, but without any further elaboration, other than to state he felt medical or other expert evidence was required. While he stated that he had received legal aid, through ABWOR, to pay the £100 fee for that medical report, the claimant stated at that earlier Case Management Preliminary Hearing held before me that he could not afford to pay for any further medical report, and he was not proposing to call his GP as a witness at any future Tribunal Hearing.19. A copy of that GP report by Dr Lorna Corfield dated 4 February 2020 was, however, available at this Preliminary Hearing, and Ms Clements, the respondents’ solicitor, cross-examined the claimant about its terms, and the absence of any other medical evidence supporting the claimant’s assertions in his ET1 claim form, as also in his witness statement that he had been diagnosed with depression, anxiety and insomnia.20. It is convenient, at this stage, to note the specific terms of the GP’s report, reading as follows: “Dear Sir/Madam l am writing following your request for a medical report for the above named patient. l can indeed can confirm that Mr Odigie sought medical assistance at the surgery on 24th June 2019. He was not given a diagnosis at the time. The symptoms he complained of were of not sleeping for the preceding 2-3 weeks, due to anxiety regarding a pending court case. He described feeling agitated and anxious throughout the day and also of being unable to sleep at night time. He described the insomnia as his main problem. We discussed the possibility of introducing a trial of a beta-blocker for as and when required to treat anxiety throughout the day, but agreed we would start with some night sedation. With this in mind he was given a prescription for Phenergan 25mg (a sedating anti-histamine tablet). it was noted at this appointment that he had failed to attend an appointment with our community link worker, this had been arranged to provide him with some support around trying to gain employment etc. It was strongly suggested at this appointment that he rearrange the community link worker session for support. It was agreed that he would return to the surgery if he did not feel that the medication we had given him had been helping. He then contacted the surgery again 2 days later requesting a letter to state that he was unfit to attend court. This was letter was not generated, as it had been requested at very short notice. There is nothing documented in his notes as to whether he was considered to be either fit or unfit to attend a hearing. I am therefore unable to comment on his fitness, as it is not documented in his notes.”21. As I explained to the claimant, and set forth in my written Note & Orders issued after that Hearing on 19 March 2020, production by him of medical evidence was clearly a matter for the claimant to reflect upon, given, as I understood matters, he sought to rely upon his mental health as a factor in explaining why his ET1 claim form was not presented until 9 November 2019, when he had obtained an ACAS Early Conciliation Certificate on 13 June 2019, following his notification to ACAS on 2 June 2019, after he had received an email from the respondent Council on 2 May 2019 stating that he was not successful in his application for a job with them, and he had emailed the respondents on 23 May 2019 complaining of racial discrimination. 22. The claimant also handed to the clerk, on 19 March 2020, with copy for Ms Clements, a 4-page set of photographs and labels for his current medication, being Mirtazapine 15mg and Sumatriptan 50mg tablets, prescribed on 10 February 2020, and Amitriptyline 10mg tablets, prescribed on 5 March 2020. These productions were put to him, in cross-examination at this Preliminary Hearing, by Ms Clements, the respondents’ solicitor. Preliminary Hearing before this Tribunal[23]When this Preliminary Hearing started, just after 10.00am, on Friday, 1 May 2020, it was conducted remotely, by prior agreement with both parties and the Tribunal, by the use of the Kinly CVP video conferencing facility, having been listed on the publicly available CourtServe website as a public Hearing that any interested party could join by contacting the Glasgow ET office.[24]There was no public or Press attendance at this remote Hearing. Parties were both provided with the opportunity, the previous day, by the Tribunal administration, to test their ability to join the CVP, and shown how to participate in the Hearing, where we could see and hear each other, although all joining from separate locations.[25]The chat room function was also used when there was an issue with audibility, at one point, with the claimant, and for me to draw both parties’ attention to a reported EAT case law authority that I wanted them to consider when addressing the relevant law on extensions of time in a discrimination complaint before the Tribunal. They were able, during the lunch time adjournment, to access it by use of the Bailli hyperlink which I posted on the chat room function message to them.[26]At this Preliminary Hearing, the claimant was in attendance, unrepresented, and unaccompanied. His wife attended as a witness, they both being in the family home. Ms Clements, solicitor, appeared for the respondents, unaccompanied, and calling in from her home, rather than the Council offices, which she advised were closed. Given the claimant’s situation, as an unrepresented, party litigant, I explained to him the procedure that was going to be followed, as previously set out in my earlier written Note and Orders, and we agreed that, to minimise inconvenience to his wife, who was in their house, with family responsibilities, we would hear her sworn evidence first, followed by his, then closing submissions by Ms Clements, followed by him in reply. Findings in Fact[27]On the basis of the sworn oral evidence from the claimant and his wife, subject of cross-examination by the respondents’ solicitor, and questions of clarification asked by me as the Judge, and the documents available to the Tribunal at this Preliminary Hearing, I have found the following essential facts established:-(a) The claimant, who is a black, Nigerian national, is aged 46. He lives in Paisley, Renfrewshire, with his wife (aged 35) and family of 4 children, aged from 1 to 13 years.(b) On 2 May 2019, the claimant received an email from the respondents stating that he was not successful in his application for a job with them. On 18 April 2019, he had been interviewed by a panel for the post of Waste Operations Team Leader with the respondents(c) On 3 May 2019, the claimant asked the respondents for feedback on his interview, and this was provided to him on 14 May 2019. Thereafter, on 23 May 2019, the claimant sent an email accusing the respondents of racial discrimination arising from his non-appointment to the post applied for, in the terms set forth at paragraph 20 of the paper apart to his ET1 claim form presented to the Tribunal, as reproduced above at paragraph 14 of these Reasons.(d) Thereafter, on 2 June 2019, the claimant referred the matter to ACAS for early conciliation with the respondents, and an early conciliation certificate was issued by ACAS to the claimant on 13 June 2019. The claimant presented his ET1 claim form to the Tribunal on 9 November 2019. He did so as soon as he was able to manage his emotional trauma arising from the respondents’ rejection of his application for employment.(e) In the period from 2 May 2019, when he was advised his application for the post had been unsuccessful, and 9 November 2019, when he presented his ET1 claim form, the claimant was unemployed, living at home with his wife and family. As his wife was studying, and working 15 hours per week, as a social carer, his family was his priority.(f) He was able during that period to instruct solicitors to act for him in connection with other Employment Tribunal proceedings which he had brought against other respondents, all alleging unlawful racial discrimination when he was unsuccessful in obtaining advertised posts with those other potential employers, but he advised the Tribunal that he had been unable to get legal representation for this case, despite attempts to do so. Having met with the Citizens Advice Bureau, the claimant was unable to secure legal representation to pursue this claim against these respondents. As soon as he was able to do so, the claimant drafted his own ET1 claim form, and that without any assistance.(g) When asked about his other Tribunal claims, the claimant gave some vague evidence, but no documentary evidence was provided to the Tribunal, by either party, as to those other Tribunal proceedings, when they had been brought, whether or not the claimant was represented, and whether or not his claims were late, etc.(h) Further, there was no clear evidence before the Tribunal about the sequencing of the other Tribunal claims in relation to date of presentation of this claim. What was clear, from the claimant’s evidence, was that he was aware of Tribunal time limits, as at the time relevant for bringing a case against these respondents.(i) However, during that same period, June to November 2019, the claimant was not functioning well, as noted by his wife, and he was referred for help to RAMH (Recovery Across Mental Health), and he had appointments with a Tom McAuley, a mental health adviser. On the claimant’s account, he was handing this case without a lawyer, and that was putting pressure on him and his family, and his relationship with his wife.(j) He spoke of panic attacks, insomnia, and being anxious. He had some suicidal thoughts. He had to look after his youngest child to allow his wife to study. He was also himself trying to complete a University dissertation, which he only completed in mid-September 2019, having obtained extensions of time due to extenuating circumstances.(k) His wife was concerned about his health and well-being during this same period. The claimant described himself in evidence to this Tribunal as being “in a very bad place”, and “emotionally fragile”. According to his evidence, he could hardly sleep, he was not coordinated, and he was on medication.(l) The claimant consulted with his GP, on 24 June 2019, according to the medical report, dated 4 February 2020, from his GP, Dr Lorna Corfield, The Barony Practice, Paisley, to the Ethnic Minorities Law Centre, who he advised had represented him earlier in another Tribunal case against another respondent, as referred to earlier in these Reasons, at paragraph 20 above. As per the GP’s report, the claimant was not given any diagnosis at that time.(m) No further medical reports were provided to the Tribunal by the claimant, nor any reports or documents supporting his reference to and support provided by RAMH, nor the nature, extent and frequency of that support for his mental health, including his referral to the mental health practitioner at Abbey Mill around August 2019. As per the claimant’s evidence to this Tribunal, he had an emotional trauma, and experienced all of anxiety, depression, and insomnia, for which he was prescribed medication by his GP. Tribunal’s assessment of the evidence heard at this Preliminary Hearing[28]In considering the evidence led before the Tribunal, I have had to carefully assess the evidence given by both the claimant and his wife, and to consider it against their written witness statements, and their answers to points of clarification asked by me as the presiding Judge, and their answers in response to their cross-examination by Ms Clements on behalf of the respondents. I now set out my assessment of their evidence in the following sub-paragraphs: -(1) Mrs Mary Odigie (a) In her evidence to the Tribunal, Mrs Odigie confirmed that this was her witness statement, dated 23 April 2020, and resubmitted on 1 May 2020, and she confirmed its terms as follows: 1. My name is Mary Olayemi Odigie, I am the wife of David Odigie. 2. I had two major operation on December, 2018 during the birthday of my youngest child. Due to this, I was not able to work full time and I am also a full-time student. During this period, we were unable to pay our bills especially the house rent and the electric and gas bills which are the bulk of our bills. My husband was doing all he can to get a job since he detests collecting benefit. When we were on the verge of becoming homeless after the housing association took us to court to evict us, we were then advice to collected universal credit. 3. David is a very good man, upright and intelligent, he always wants to be a good role model for his children, he talks to our children the important of hard work and education and try to lead by example. 4. The racial discrimination treatment of Renfrewshire Council towards him affected him badly, I was very much concern about his health and wellbeing. He could hardly sleep despite the fact that he takes his medication meticulously, I know this because I was monitoring him. It also had an effect on me too that, I was placed on medication and referred to RAHM (Recovery Across mental health), each time I have an appointment with Tom McAuley, all I do is cry and talk about my husband, I was afraid he was going to kill himself. Tom had to personally called him and persuaded him to book an appointment with him. 5. David like hiding his emotion and want to be strong for his family, I have heard him on several occasion go to the toilet to cry, lost in thought and even talk to himself. I had to call his mother to help me talk to him because I know he love and adore his mother. David was like a time bomb that could explode at any time. How is his pulling through the situation is a miracle to me. 6. David is the person that is always trying to get out positive outcome out of a negative situation, he is a motivator and my backbone, and stood by me, even when I tried to drop out of school because of the difficulty the family was going through. He gives me reason to be moving on even at his detriment. 7. I don’t even want him to fight the case because the case is taking a lot from him and our family. But he says if he doesn’t fight it, it will continue to happen and might even happen to our children in future. 8. I believe his mental state must have been part of the reasons why he could not start fighting this case earlier. (b) In giving her evidence in chief, Mrs Odigie confirmed that her evidence in chief was as per her written witness statement, and nothing needed to be changed, and in answer to certain points of clarification raised by me, as presiding Judge, she further stated that she is aged 35, and a social carer, and she has been married to the claimant for 13 years, with them having a family of 4 children. She spoke of her husband keeping things to himself, and her being worried, and she spoke also of him having appointments with Tom McAuley at RAMH, but that she did not go with him to them. (c) When cross-examined by Ms Clements, solicitor for the respondents, the claimant’s wife stated that the period from December 2018 was very difficult for her and her family, and it was around February / March 2019 that they got a letter from Sanctuary Scotland, their landlords, about court proceedings for eviction. They had the prospect of losing their home, and Mr Odigie getting an interview with the respondents, in April 2019, she described that as something for him to hope for, and get their family help. (d) When her husband didn’t get the job, he had applied for with the respondents, she described that as a real blow, and that things were made worse. At that time, June 2019, she stated that, having been on maternity leave since 2018, she was returning to working 15 hours per week, as a social carer, while studying in her 3rd year in HR Management at the University of the West of Scotland. (e) Overall, Mrs Odigie’s evidence to the Tribunal was supportive of her husband’s position, and explained her concerns about his health and wellbeing, and why she believed his mental state must have been part of the reasons why her husband could not start “fighting his case” earlier. In that regard, it was complimentary to the evidence given by Mr Odigie in his own evidence to the Tribunal. (f) I had no issues with her credibility as a witness, and while I was conscious that she is the claimant’s spouse, there was no suggestion that her evidence was other than genuinely stated as reflecting her belief and understanding of matters. (g) Her narration of her medical circumstances in December 2018, as spoken of in paragraph 2 of her witness statement, were irrelevant to the period of time I was looking at, from 2 May to 9 November 2019, but she did confirm that apart from the family and financial responsibilities there were for her and her husband, she was a full-time student, and the family was living on State benefits, having nearly been evicted and made homeless by their landlords, a housing association. (h) Her evidence about RAMH was more related to her own referrals and help there, than the claimant’s appointments with Mr McAuley, but her evidence to the Tribunal did vouch that she had been instrumental in her husband going to RAMH for help too.(2) Mr David Odigie: Claimant (a) In his evidence to the Tribunal, Mr Odigie confirmed that this was his witness statement, dated 21 April 2020, and resubmitted on 1 May 2020, and he confirmed its terms as follows: 1) My name is David Odigie, I wish to certify that the information provided in this statement is the truth and it is accurate to the best of my knowledge. 2) This claim is not time-barred, as alleged by the respondents for the following reasons, which are as follow: 3) I was emotionally disturbed and distressed by what Renfrewshire Council did, that trying to remember what had happened bring a wave of disturbing emotion that bring about suicidal thoughts. The best way I dealt with it was to try and avoid anything concerning the case until I am able to manage the emotion. As of when I put in the case to the tribunal on the 9th of November, 2019, I was able to manage the emotion that comes with the case. 4) As a result of what had happened, I do have panic attach (sic) and sleeplessness, which further resulted in serious headache. I was initially diagnosed with anxiety and mild depression and further diagnosed with migraine. Despite the medication that was prescribes, it has no effect on me, though the medication makes me sleepy but I could not sleep. I have terrible headache that bedridden me for the rest of the day. With this situation I was unable to compose myself to put in the case to the tribunal. 5) We had a bouncing baby boy on the 15th of December, 2018. Apart from him we had three other children with age 6,11 and 12 years old as of when the application was put in before the tribunal. My wife is a student, all my energy was directed to support my wife so that she could study and also help with the children. My family is my priority, they are the reason I am still standing and fighting. They are my world and I won’t let them go through what I am going through. 6) During this period, I was also writing my dissertation, I had missed the deadline on several occasion because of what I was going through and I had put in several extenuation circumstance to extend my submission date and I still missed it. It had affected my grade seriously that It dropped. 7) I had looked for a lawyer to take over the case so that most of the pressure of the case will be off my shoulder, I have had several appointment with Citizen Advice Bureau , with Tom McAuley and his boss at RAMH (Recovery Across Mental Health), I had met with several law firm who on their website says they deal with employment cases, on approaching them, they say they are not specialise on racial discrimination cases. 8) I believed that I have done everything possible a reasonable person could have done but the circumstance before me prevented me from putting in the case to the tribunal within three months period. 9) If the Tribunal finds this claim to be time-barred, It will be just and equitable for the tribunal to allow for an extension of time for the above stated reasons and the injustices I had suffered from Renfrewshire Council. (b) In giving his evidence in chief, the claimant, aged 46, confirmed that his evidence in chief was as per his written witness statement, and in answer to certain points of clarification raised by me, as presiding Judge, he further stated that, as at the date of this Hearing, he was unemployed, and in receipt of State benefits, namely Universal Credit, for his family. He confirmed the key dates from the ET1 claim form as being 2 May 2019, when he was advised he was unsuccessful in his application for employment with the respondents, advising them, on 23 May 2019, that he believed he had been the subject of racial discrimination, and then going to ACAS on 2 June 2019, receiving their early conciliation certificate on 13 June 2019. He also agreed that he had lodged his ET1 claim form on 9 November 2019. (c) When I asked him about the respondents’ ET3 response, the claimant stated that he did not have a copy there to look at, so the Hearing was adjourned, for about ½ hour, to allow me to have the Tribunal clerk scan a copy of the ET3 and email it to the claimant. When we resumed, and he had that email, I then asked him to clarify certain points arising from what he had stated in his ET1 claim form, specifically the 22 points narrated in the separate, paper apart, referred to at section 8.1 of his claim form. He advised me that when he lodged this claim, he knew that it was late, which is why he explained the delay at paragraph 1 of his paper apart. (d) Further, the claimant advised that the first Tribunal claim he had brought, against North Ayrshire Council, was lodged on 3 January 2019, when he didn’t know anything about Tribunals, and it was after that he learned of the 3-month time limit for bring a claim. Just prior to the Case Management Preliminary Hearing, in this case, on the afternoon of 19 March 2020, the claimant had been at the Glasgow ET in connection with a time-bar point in another case, against Argyll Community Housing Association, where that claim was dismissed as lodged out of time, and the Judge there had not found it just and equitable to extend time. (e) The claimant further advised me that, as at the date of this Hearing, he had brought 6 claims to the Employment Tribunal, excluding this present case. He stated that he had drafted the ET1 claim form in the present case on his own, and without assistance from anybody. When I asked him about the terms of the respondents’ ET3 response, at section 6, and the reasons given there for arguing that his claim in this case was significantly late, and that it was not just and equitable to allow him an extension of time, the claimant stated that he was aware of those reasons, but he had not dealt with them specifically in his witness statement prepared for this Hearing. (f) I invited him to give me his comments on the 5 points advanced by the respondents’ solicitor, Mr Young, in that ET3 response. In reply to my enquiry, the claimant stated that he did not accept that his claim was “significantly late”, but he accepted it was late, and he accepted the chronology of dates given between 2 May and 9 November 2019. He then stated that the period between those dates would not result in faded memory for the respondents’ personnel, as what was asked in the interview was well documented, so there was, in his view, no way the delay in bringing the claim could impact on him or on the Council in having a fair hearing at the Tribunal. (g) The claimant accepted that he was aware of the time limit for bringing a Tribunal claim, having become aware of that after lodging his claim against North Ayrshire Council in January 2019. He stated that he was allowed permission to proceed with that case, although it was late. He disputed the respondents’ assertion that he “pays no heed to time limits”, and stated that the situation in this case was quite different from that earlier case, as in this case, he was “emotionally totally down”, and there was “no way I could have put in the claim.” (h) Further, the claimant disputed the respondents’ further assertion that he was “familiar with the law in regard to the time limit”, and he further disputed their assertion that he had advanced “vague reasons”, that, at best, only relate to the ordinary pressures of day to day life. He stated he had spelt it out, and given evidence about his diagnosis with anxiety and depression, and with insomnia, and panic attacks, and how he had been put on very strong medication which rendered him totally incapacitated , and he could not function on such drugs. (i) Next, the claimant rejected the respondents’ assertion that they were “significantly prejudiced” if the claim were allowed to proceed although late. He stated that the interviews were well-documented, and every correspondence was through email, and phone calls referred to in those emails, so he felt matters were well-documented, and there is no way the time difference can relate to loss of memory of the facts of the case, and that the delay will not affect a fair trial of this case. (j) The claimant also rejected the respondents’ argument that prejudice to him is “minimal”. He explained that he had come to the Tribunal as he felt it is “the best place to get justice”, and he felt that this case not being heard at all would make him lose full confidence in the Tribunal, and hamper him to take it to a Tribunal to get an outcome of this case. He described it as having been an “emotional trauma” for him and his family, which he stated was “so tough and unbearable”, so that he lost confidence in people, and it had made him question everything. He added that it had affected him badly, and also his whole family. (k) Turning then to his own written personal statement for the Tribunal, the claimant stated that he had made several efforts to get legal advice, and a lawyer, but those attempts had not been fruitful, he having been to over 10 legal firms, which say on their websites they deal with employment cases, but, when he made enquiries, they told him they were not specialists in racial discrimination claims. (l) When I asked him about his attempts to get advice / representation, the claimant stated that he had several appointments with the Citizens Advice Bureau, and that he tried, between November 2018 and June 2019, to get legal advice about his various claims. He thought it was around April 2019 that he had got the Ethnic Minorities Law Centre to act for him to do with the North Ayrshire Council case. (m) Further, the claimant advised, he started seeing Tom McAuley at RAMH (Recovery across Mental Health), and he referred him to the CAB, sometime after May 2019, but the CAB could not get him a lawyer, but sent him to several lawyers’ offices for advice. He added that he had legal representatives in some of his other cases, of which there were 6 claims against various companies and local authorities. (n) When cross-examined by Ms Clements, solicitor for the respondents, the claimant was asked about paragraph 3 of his witness statement, and about being “emotionally disturbed and distressed”, and about having suicidal thoughts. In reply, he stated that he has such thoughts at any time he thinks about this case, although he added that he dies try, as much as possible, not to think about, but he still has these thoughts.. He stated that he had been referred to a mental health practitioner at Abbey Mill around August 2019. (o) Asked about his reference to being diagnosed with anxiety and depression, the claimant stated that was in August 2019, rather than June 2019, and he had been certified as not fit for work between 15 and 22 August 2019, as per a sick leave certificate that he said had been produced for the North Ayrshire Council case. Whatever document he was referring to, it was not produced to this Tribunal. (p) Further, the claimant stated that he did not have legal representation in this case, and he was trying to lodge a case against Renfrewshire Council, which meant him remembering what actually took place and that process, he explained, put him under a lot of pressure, and affected him badly, as all he wanted to do was to forget about it.. He further stated that he had no medical reports to lodge with the Tribunal, as that would have required him to pay for such a report, and he does not have the means to get a medical report. He added that he did not want to put his family in jeopardy. He stated that he had been on medication for depression, insomnia, and anxiety, and that medication made him sleepy.. He had produced pictures of his tablet boxes prescribed on 10 February and 5 March 2020 at the last Hearing on 19 March 2020. (q) Between May and November 2019, the claimant stated that he was on medication for anxiety, depression and insomnia. He stated he had not been on medication at the time of his interview with the respondents, which was in April 2019. He recalled tablets first being prescribed from around June or July 2019, and stated that these were the same tablets as he had given the Tribunal pictures in March 2020. He further stated that there were costs involved for him to get medical evidence, and he had asked the Tribunal to order his GP to be a witness. He further stated that Dr Corfield’s GP report of 4 February 2020, to the Ethnic Minorities Law Centre, was produced for another case, most likely the North Ayrshire Council case, but he was not sure. (r) The claimant stated that while Dr Corfield’s report says no diagnosis was given, when he went to see her on 24 June 2019, he had all those symptoms of anxiety, depression and insomnia, and he went to the GP after much pressure from his wife, whereas he had trying to be strong. He then stated that the GP receptionist had told him that if the Court required any information, the Court would get in touch. His lawyer in the North Ayrshire Council case had been funded by legal aid to get the GP report for that case. (s) When asked about the late lodging of his ET1 claim form in this case, the claimant stated that “my family is my utmost concern”, and that he needed to be strong for his family, and to give his wife necessary support. During the period from May to November 2019, he stated that he was supporting his wife, while she was studying, and he was trying his best for her and their children. He also stated that he was writing a dissertation, for his Environmental Health degree from the University of the West of Scotland. While he had written the bulk of it before November 2018, and he just needed to do interpretation of data, for it to be submitted when due in March 2019, he stated that he didn’t do that, and it was not submitted until mid-September 2019, after he got 5 extensions to complete it, granted by the University on the basis of extenuating circumstances. (t) When asked by Ms Clements why he had been able to apply for ACAS early conciliation on time, but not present his Tribunal claim, the claimant advised that the ACAS process is quite straightforward, and you don’t need a thorough explanation of what has actually happened to you, but to put it down in writing, as the detail of his claim, was “an emotional task” for him to do, and “Cross my heart, I’d have loved to do it earlier, but I was in a very bad place, and it was affecting my family.” (u) Further explaining his position, the claimant stated that “To keep my sanity, I needed to keep away from it. I was emotionally down, and I couldn’t go through the case. I could hardly sleep, and not coordinated, and on medication, which incapacitated me for almost all day.” While he stated he did not take the drugs every day, as it had effects, he would take his tablets when matters were serious, but throughout he was “emotionally fragile”. (v) Ms Clements then asked the claimant about the other Tribunal cases which are still current.. He agreed that all 6 were direct race discrimination claims, like this case, but he stated that they are all different cases, and not related to this one. January 2019, against North Ayrshire Council, was his first case, and he thought it, most likely, that the other cases were lodged prior to April 2019. He agreed he had lawyers in other cases. He stated that he could not remember what Tribunal Hearings he had attended between May and November 2019, but he had the Ethnic Minorities Law Centre acting for him, against North Ayrshire Council he thought, but later clarified that it was maybe against Falkirk Council, and that McNeil & Wilson, solicitors, Paisley , acted for him against Stirling Council. (w) In further explanation of his other Tribunal claims, in answer to Ms Clements’ cross-examination, the claimant stated that he had withdrawn one of the 6 claims, and that his lawyer had contacted him to discuss those other cases, and he agreed that he had given his lawyer information and instructions about what he wanted them to do, and he had attended some Tribunal Hearings – he recalled attending the Tribunal in Glasgow, and also Edinburgh, for a case against the City Council there, and also against Falkirk Council. In those other cases, the claimant stated that the burden of preparing and presenting his case fell upon his lawyer, and not upon himself. He added that, if he had got a lawyer here, it would have been different. (x) By way of further clarification of his position, the claimant then stated that thoughts came into his mind, and only he understood matters, and there was the “emotional trauma” he went through each time, but it would be an injustice if he left matters unchallenged, as if left unchallenged that would be what his children would face in the future.. He added that “this is not made up stuff, but a common picture that needs not to go on”, where he feels disenfranchised just because of the colour of his skin. He further stated that he felt it was high time someone did something about it, and he was motivated to stand up and fight. (y) Overall, I found Mr Odigie to be a plain-speaking witness, who spoke clearly, but softly, to the terms of his witness statement. He did not seek to embellish what was in his witness statement, and he did not evade questions asked of him in clarification by myself, or in cross-examination by Ms Clements. That said, his evidence about his other Tribunal claims was vague, and being given from memory, and as such I could not be sure how reliable that part of his evidence actually was, there being no documentary productions before the Tribunal, from either party, about those other Tribunal claims. (z) Subject to that caveat about the reliability of his evidence, I found him to be a credible witness, who spoke convincingly about how events post 2 May 2019, when he was advised by the respondents that he was unsuccessful in the post applied for, had “emotionally disturbed and distressed” him, and why it was only on 9 November 2019, almost 3 months after he had obtained his ACAS early conciliation certificate, that he was finally able to manage his emotions, compose himself, and put forward his case by presenting his ET1 claim form to the Tribunal(3) Medical Evidence before the Tribunal (a) As detailed earlier in these Reasons, the claimant did not provide any further medical evidence to what he had produced at the Case Management Preliminary Hearing held on 19 March 2020, being Dr Corfield’s GP report of 4 February 2020, and the set of photographs and labels for his medication as at that time. It is of note that the GP’s report, reproduced above at paragraph 20 of these Reasons, although dated 4 February 2020, only refers to the claimant having sought medical assistance from the surgery on 24th June 2019, and nothing at any later date, in the period up to 9 November 2019, when his ET1 claim form was lodged with the Tribunal. (b) That was so , despite the terms of paragraph 41 of my earlier written Note and Orders, issued to him on 31 March 2020, stating that if he sought to rely upon any medical evidence, then he should seek to obtain any supporting documentary evidence to support, and paragraph 20 of that same Note stated that, as regards his witness statement, it should contain all of the evidence in chief to be given by him relating to why his Tribunal claim was lodged on 9 November 2019, and not before, and should cross-refer, where appropriate, to the page number in any Bundle of Documents which he appended to his witness statement, being any documents relied upon or to be referred to by him in connection with the time-bar argument. (c) Despite that clear and unequivocal direction by the Tribunal, the claimant lodged no Bundle, and his witness statement referred to no documents, not even those provided by him on 19 March 2020 at the previous Hearing. He was, however, cross-examined on those documents by the respondents’ solicitor, who specifically put them to the claimant, and asked him questions about them. Closing Submissions for the Respondents[30]On 2 April 2020, Ms Clements intimated to the Tribunal, with copy to the claimant, as an unrepresented, party litigant, to give him advance fair notice of the factual and legal arguments being presented to the Tribunal by her as the respondents’ representative, her outline written skeleton argument submissions, reading as follows: Skeletal argument for the Respondent The Respondent will argue that the Claimant’s claim is time barred. The claim was lodged out-with the time limit set by section 123(1)(a) of the Equality Act 2010, as extended by section 140B(3) of the same Act. In terms of section 123(1)(b) of the 2010 Act it is not just and equitable to allow the Claimant’s claim to proceed. This is on the basis that: 1. The Claimant has had at least three other cases at Tribunal and as such, has knowledge of the timescales and the Tribunal process. Of particular relevance is the fact that the Claimant’s other claims were lodged late. The Respondent will refer to paragraph 25 of Robertson v Bexley Community Centre [2003] IRLR 434 CA, in respect of the discretion that the Tribunal has to allow a late claim if it is just and equitable to do so and the fact that exercise of the discretion is the exception, not the rule. The Respondent will also refer to paragraphs 26 and 32 of Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 which provides that the burden of persuading the Tribunal to exercise its discretion to extend time is on the Claimant and that whether a Claimant has succeeded in displacing the statutory time limits is a question of fact and judgement. 2. In terms of section 123(1)(a) of the Equality Act 2010 (hereinafter “the 2010 Act”) the claim was lodged late. The claim should have been lodged by 13 August 2019 and was not lodged until 9 November 2019. The Claimant has provided no sufficient justification for the claim being lodged late. The reasons advanced amount to, at best, the ordinary pressures of day-to-day life. The Respondent will refer to para 19 of De Souza v Manpower UK Ltd [2013] EWCA Civ 1794 in respect of the adequacy of the reasons advanced by the Claimant. 3. There would be prejudice to the Respondent should the claim proceed as a result of the fact that, by the time the Claim is heard, it is likely that almost a year will have passed. This would hamper the Respondent’s case presentation as a result of fading memories. 4. The prejudice to the Claimant if the claim were not to proceed is minimal on the basis that he has failed to advance a factual basis for the claim and accordingly, the claim is without merit. The Claimant has failed to disclose any basis upon which a Tribunal could conclude that he was treated less favourably as a result of his race. This is a claim for direct discrimination under section 13 of the Equality Act 2010. Accordingly, the burden of proof in such cases is underpinned by section 136 of the Equality Act 2010. In effect, there is a two-stage process in such claims. The burden of proof is firstly on the Claimant and then moves to the Respondent. The Respondent will refer to paragraphs 55-58 of Madarassy v Nomura International Plc [2007] I.C.R. 867 in respect of the burden of proof in actions such as this, specifically that the Claimant must establish a prima facie case that the respondent committed an act of unlawful discrimination. We will then refer to paragraphs 103 and 106 of Ayodele v Citylink Ltd [2017] EWCA Civ 1913 in so far as it confirms the Court’s interpretation in Madarassy and the proposition in respect of the burden of proof. We will also refer to paragraphs 62 and 93 of the Ayodele judgement in respect of the proposition that in discrimination claims, the Claimant must be able to advance a prima facie case of discrimination before they can discharge the burden of proof. The Respondent will then refer to paragraphs 19 and 20 of Chandhok and another v Tirkey [2015] ICR 527 showing that a claim for discrimination can be struck out where there is time bar to jurisdiction or the claim form makes no more than an assertion of a difference of treatment and a difference of protected characteristic without more, sufficient material from which a tribunal could conclude that on the balance of probabilities, the respondent had committed an unlawful act of discrimination. The Respondent will refer to Rule 37(1)(1)(a) of the Tribunal Rules in this respect.[31]Ms Clements also intimated a list of authorities for the respondents, as follows, similarly intimated to the claimant. She had previously provided hard copies of all of the above cases to the claimant in advance of the Case Management Preliminary Hearing held on 19 March 2020. List of legal authorities 1. Robertson v Bexley Community Centre [2003] IRLR 434 CA 2. Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 3. De Souza v Manpower UK Ltd [2013] EWCA Civ 1794 4. Madarassy v Nomura International Plc [2007] ICR 867 5. Ayodele v Citylink Limited [2017] EWCA Civ 1913 6. Royal Mail Group Ltd v Efobi [2019] ICR 750 7. Chandhok and another v Tirkey [2015] ICR 527[32]In delivering her oral closing submissions to the Tribunal, at this Preliminary Hearing, after the lunchtime adjournment, Ms Clements did so by reference to her written skeleton, and her list of authorities, as well as addressing me on why, in her view, the two additional case law authorities, cited by the claimant, could be distinguished. Although cited in the respondents’ list of authorities, Ms Clements written submissions, as also her oral submissions at this Preliminary Hearing, made no reference to the Court of Appeal’s judgment, delivered by Sir Patrick Elias, in Efobi, quoting from Ayodele, on the matter of the burden of proof. In particular, Ms Clements, speaking from her written skeleton, added some comments as she did so, but essentially she kept to her written submission. She invited me to(1) find it is not just and equitable to accept the claim though late, and(2) to strike it out as having no reasonable prospects of success, on the basis of time-bar.[33]She referred to the key dates in the chronology, and stated that the claimant accepts his claim is late, and, by his own admission, he was aware of the time limit from his other cases. She submitted that the reasons he has advanced are ordinary pressures of day to day life, and that some of his evidence at this Hearing had been contradictory as to his justification for failing to lodge his claim on time. She submitted his claim is without merit, and should be dismissed, any prejudice to the claimant being minimal, compared to the prejudice that the respondents would suffer if the case were allowed to proceed.[34]Having had the opportunity, over the lunch adjournment, to read the O’Neill judgment that I had referred both parties to, Ms Clements addressed me on the legal cases produced in her list, and submitted that the claimant accepts his claim is late, but he had failed to provide any medical evidence to vouch what he was saying, and how things had affected his ability to lodge his claim in time. She felt he had picked and chosen what things he was able to deal with, over the relevant period, and that he did so, knowing the 3-month time frame, when he could and should have lodged his claim. In her submission, the reasons advanced by the claimant do not justify an extension of time. To allow the claim, the respondents would be prejudiced, by having to meet a claim which would otherwise be defeated by a limitation defence, and with the passage of time, there was also prejudice to the respondents. As to the two cases cited by the claimant, she submitted that they be distinguished, as being on different facts and circumstances to the present case Closing Submission by the Claimant[35]Having heard Ms Clements’ oral submissions, I then invited the claimant to reply, and tell me what he wanted the Tribunal to do. In response, the claimant addressed me. He made the opening point that his case is not timebarred, and that he was emotionally down and unstable, having been diagnosed with anxiety, depression, and migraine. He could hardly sleep, and he was constantly having panic attacks, and he was under serious medication which made him incapacitated. He had presented evidence about his prescribed medication, and the February 2020 GP report. He denied the respondents’ assertion that his other claims had been put in late, and described that as totally untrue. It was only the North Ayrshire case he stated. He addressed me on the two cases he had mentioned, and submitted that if the Tribunal were to find his claim time-barred, it would be just and equitable to extend time, as, contrary to the respondents’ position, the length of time is not sufficient to warrant fading memories.[36]He added that as soon as he was able to manage his emotional trauma, and he submitted that it is evident the case will not be affected by delay. He had tried as much as he could to get a legal representative, but he could not do so, but as a result of the delay, he submitted a fair trial is still possible, and only one of his earlier cases had been put in late, the others being put in on time, a fact which, he suggested, “should ring bells in the mind of the Tribunal” about his emotional trauma in this case. He stated he had got his ACAS early conciliation certificate, but due to his emotional state, he could not present his Tribunal claim. He referred to how he had been fighting voices to avoid suicide, and how that had had an effect on him, and only he could put in his claim. He asked the Tribunal to allow this case to move forward, and not dash his hopes, but ensure that justice prevails, and allow him to proceed with his case against the Council. Clarification sought from the Respondents’ Solicitor[37]Having heard both parties’ closing submissions, I stated that I wished to clarify with Ms Clements what was the respondents’ position about prejudice to them if the claim was allowed to proceed, although late. In reply, she advised me that there would be “actual forensic prejudice”, given the claimant’s interview was on 18 April 2019, over a year ago. Further, while the claimant was correct in saying that the respondents have notes taken at the interview, and there was thereafter e-mail correspondence between the claimant and relevant personnel at the respondents, she submitted that that was “not the whole story”, and that people’s ability to recall matters should be borne in mind, given over a year ago is a long time ago.[38]Ms Clements then stated that she could not comment on what steps the respondents had taken to capture the memory of the interview panel, as the original solicitor allocated to deal with the case went on maternity leave, and the file then passed to Mr Young, her line manager, and now she was acting for the respondents. In a frank and candid admission, Ms Clements stated that she had not taken any steps to precognosce the respondents’ staff on the interview panel by taking a witness statement, as she was awaiting the result of this Preliminary Hearing on time-bar.[39]In these circumstances, Ms Clements accepted that her written submission point about prejudice to the respondents was an assertion based on purely over a year having passed, and she further accepted that it was an assertion she was making based on no enquiry of potential witnesses from the respondents. She referred to having had conversations with them, but not precognosing them, nor had she asked them for their recollection of the interview with the claimant. Her submission was, she clarified, based principally on the passage of time, and the fact that a year had passed.[40]Having noted Ms Clements’ response, as just detailed, I asked the claimant if he had anything further to add, to which he stated he had nothing further to say. As such, I intimated that I was reserving Judgment, to be issued in writing, with Reasons, and I concluded proceedings. Issues for the Tribunal[41]The issues before the Tribunal, for determination at this Preliminary Hearing, were whether or not the claim was presented late and, if so, whether or not an extension of time should be granted to the claimant, to allow the case to proceed further, as also to consider whether the claim should be struck out, at this stage, as having no reasonable prospects of success.
Relevant Law
[42]Ms Clements’ written skeleton, and list of authorities for the respondents, cited certain statutory provisions, and referred to some 7 case law authorities, and the claimant himself referred me to two additional case law authorities. I have noted these above, earlier in these Reasons. He advised me that he had looked at the case law, and statutory provisions, but he had found it all “a bit confusing”.[43]I explained to him that, as per Rule 2 and the overriding objective, I had to ensure, so far as possible, that parties are on an equal footing, and that as Judge I had to apply the relevant law to the facts as I might find them to be, but he was entitled to comment on what Ms Clements had said in her submissions where, as a solicitor, she has a professional obligation to assist the Tribunal in identifying relevant law.[44]I have considered oral submissions, and case law authorities, cited by both Ms Clements and the claimant, and I have given myself a detailed selfdirection on the relevant law, which I narrate in the following paragraphs of these Reasons. Discrimination and Time-Bar / Strike Out[45]This claim proceeds against the respondents as a complaint of alleged unlawful racial discrimination. Section 39 (1) of the Equality Act 2010 (Employees and applicants) provides that “An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.[46]Race is a “protected characteristic” under Section 4. Race, as defined in Section 9(1), includes—(a) colour; (b) nationality; and (c) ethnic or national origins. The claimant here relies upon his black colour, and, as he indicated at the Case Management Preliminary Hearing on 19 March 2020, his complaint of race discrimination is also based on his Nigerian nationality, but not on his ethnic or national origins.[47]The claimant complains of direct discrimination, which is defined in Section 13(1) as where: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[48]Section 123 of the Equality Act 2010, which specifies time limits for bringing employment claims, provides so far as relevant that: "(1) … proceedings on a complaint … may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.”[49]The burden of proof is addressed at Section 136, which provides that: (1)This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. (5) This section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to— (a) an employment tribunal;[50]Section 140B deals with extension of time limits to facilitate conciliation before institution of proceedings. It states as follows: “(1) This section applies where a time limit is set by section 123(1)(a) or 129(3) or (4). (2) In this section—(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4)If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5)The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section.”[51]In considering whether it is just and equitable to extend time, the Tribunal should have regard to the fact that the time limits are relatively short. Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434 is commonly cited as authority for the proposition that exercise of the discretion to apply a longer time limit than three months is the exception rather than the rule. At paragraph 25, Lord Justice Auld stated: "25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule."[52]In Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 Lord Justice Wall noted that the comments in Robertson were not to be read as encouraging Tribunals to exercise their discretion in a liberal or restrictive manner. The Tribunal should take all relevant circumstances into account and consider the balance of prejudice of allowing or refusing the extension. As succinctly stated by him, at paragraph 17: “…the discretion under the Statute is at large. It falls to be exercised “in all the circumstances of the case” and the only qualification is that the EJ has to consider that it is “just and equitable to exercise it in the claimant’s favour.”[53]When a claim is brought out of time and the Employment Tribunal is considering whether it is just and equitable to extend time, the relevant principles are as set out by the EAT in British Coal Corporation v Keeble [1997] IRLR 336 EAT: “8. … It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any requests for information;(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”[54]However, as per Mr Justice Langstaff, a former President of the EAT, in Abertawe Bro Morgannwg University Local Health Board v Morgan [2014] UKEAT/0305/13/LA, at paragraphs 49 to 52, those principles are to be read as guidance and not a statement of statutory requirements. It has, further, been held to be necessary for Tribunals, when considering the exercise of such a discretion, to identify the cause of the claimant’s failure to bring the claim in time, as referred to by Mr Justice Langstaff at paragraph 52 in Morgan, reading as follows:- “52. Though there is no principle of law which dictates how sparingly or generously the power to enlarge time is to be exercised (see Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 at para 25, per Sedley LJ) a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to do so, and the exercise of discretion is therefore the exception rather than the rule (per Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 CA). A litigant can hardly hope to satisfy this burden unless he provides an answer to two questions, as part of the entirety of the circumstances which the tribunal must consider. The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is reason why after the expiry of the primary time limit the claim was not brought sooner than it was.”[55]On the matter of time-bar, as the Employment Appeal Tribunal recognised in Miller and others v Ministry of Justice [2016] UKEAT/003/15, per Mrs Justice Elisabeth Laing DBE, at paragraph 12: “….There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses…”[56]Section 123(1)(b) gives the Employment Tribunal a wide discretion to do what it thinks is just and equitable in the circumstances, as the Court of Appeal, per Lord Justice Leggatt held, at paragraphs 18 to 20, in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050, on appeal from the judgment of HHJ Shanks in UKEAT/0320/15, and not Langstaff J’s judgment in the EAT in the other Morgan case (referred to above, at paragraph 50 of these Reasons): "18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under s 7(5) of the Human Rights Act 1998: see Dunn v Parole Board [2008] EWCA Civ 374; [2009] 1 WLR 728, paras [30]-[32], [43],[ 48]; and Rabone v Pennine Care NHS Trust [2012] UKSC 2; [2012] 2 AC 72, para [75]. 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). 20. The second point to note is that, because of the width of the discretion given to the employment tribunal to proceed in accordance with what it thinks just and equitable, there is very limited scope for challenging the tribunal's exercise of its discretion on an appeal. It is axiomatic that an appellate court or tribunal should not substitute its own view of what is just and equitable for that of the tribunal charged with the decision. It should only disturb the tribunal's decision if the tribunal has erred in principle – for example, by failing to have regard to a factor which is plainly relevant and significant or by giving significant weight to a factor which is plainly irrelevant – or if the tribunal's conclusion is outside the very wide ambit within which different views may reasonably be taken about what is just and equitable: see Robertson v Bexley Community Centre t/a Leisure Link [2003] EWCA Civ 576; [2003] IRLR 434, para [24]."[57]I referred both parties, using the chat room facility on CVP, to the judgment of His Honour Judge Auerbach, in the Employment Appeal Tribunal on 1 November 2019, in O’Neill v Jaeger Retail Limited [2019] UKEAT/0026/19, at paragraph 29, reading as follows: “29. As to the guiding principles in relation to the just and equitable test, there is a well-established body of authority familiar to practitioners in the field. As I have noted, there is no dispute, as such, that the Tribunal correctly directed itself by reference to the key authorities. I for my part cannot improve on the overview given in a decision mentioned by Mr Gorasia, that of Elisabeth Laing J in Miller v The Ministry of Justice [2016] UKEAT/0003/15, which I gratefully adopt: "10. There are five points which are relevant to the issues in these appeals. i. The discretion to extend time is a wide one: Robertson v Bexley Community Centre [2003] EWCA Civ 576; [2003] IRLR 434, paragraphs 23 and 24. ii. Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule (ibid, paragraph 25). In Chief Constable of Lincolnshire v Caston [2010] EWCA Civ 1298; [2010] IRLR 327 Wall LJ (with whom Longmore LJ agreed), at paragraph 25, put a gloss on that passage in Robertson, but did not, in my judgment, overrule it. It follows that I reject Mr Allen's submission that, in Caston, the Court of Appeal "corrected" paragraph 25 of Robertson. Be that as it may, the EJ in any event directed himself, in the first appeal, in accordance with Sedley LJ's gloss (at paragraph 31 of Caston), which is more favourable to the Claimants than the gloss by the majority. iii. If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, "perverse", that is, if no reasonable ET properly directing itself in law could have reached it, or the ET failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence. No authority is needed for that proposition. iv. What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET (DCA v Jones [2007] EWCA Civ 894; [2007] IRLR 128). The prejudice which a Respondent will suffer from facing a claim which would otherwise be time barred is "customarily" relevant in such cases (ibid, paragraph 44). v. The ET may find the checklist of factors in section 33 of the Limitation Act 1980 ("the 1980 Act") helpful (British Coal Corporation v Keeble [1997] IRLR 336 EAT; the EAT (presided over by Holland J) on an earlier appeal in that case had suggested this, and Smith J (as she then was) recorded, at paragraph 8 of her Judgment, that nobody had suggested that this was wrong. This is not a requirement, however, and an ET will only err in law if it omits something significant: Afolabi v Southwark London Borough Council [2003] ICR 800;[2003] EWCA Civ 15, at paragraph 33. 11.DCA v Jones was an unsuccessful appeal against a decision by an ET to extend time in a disability discrimination claim. The Claimant had not made such a claim during the limitation period as he did not want to admit to himself that he had a disability. At paragraph 50, Pill LJ said this: "The guidelines expressed in Keeble are a valuable reminder of factors which may be taken into account. Their relevance depends on the facts of the particular case. The factors which have to be taken into account depend on the facts and the selfdirections which need to be given must be tailored to the facts of the case as found. It is inconceivable in my judgment that when he used the word "pertinent" the Chairman, who had reasoned the whole issue very carefully, was saying that the state of mind of the respondent and the reason for the delay was not a relevant factor in the situation."12. I should also say a little more about points 10(iii)-(v). There are two types of prejudice which a Respondent may suffer if the limitation period is extended. They are the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and the forensic prejudice which a Respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses. As I understood their arguments, neither Mr Allen nor Mr Sugarman suggested that a lack of forensic prejudice to a Respondent was a decisive factor, by itself, in favour of an extension of time. But both argued, in slightly different ways, that the ET was bound in every case, in Mr Allen's phrase, "to balance off" the relative prejudice to the parties, and that, if the ET did not do so expressly, that was an error of law, even if there was, otherwise, no good reason to extend time.13. It seems to me that it is not necessary for me to deal with that bald submission, because, as I explain below, the EJ did, to the extent that he was required to, take into account prejudice to both sides. But if I had needed to, I would have rejected that submission. It is clear from paragraph 50 of Pill LJ's judgment in DCA v Jones that it is for the ET to decide, on the facts of any particular case, which potentially relevant factor or factors is or are actually relevant to the exercise of its discretion in any case. DCA v Jones also makes clear (at paragraph 44) that the prejudice to a Respondent of losing a limitation defence is "customarily relevant" to the exercise of this discretion. It is obvious that if there is forensic prejudice to a Respondent, that will be "crucially relevant" in the exercise of the discretion, telling against an extension of time. It may well be decisive. But, as Mr Bourne put it in his oral submissions in the second appeal, the converse does not follow. In other words, if there is no forensic prejudice to the Respondent, that is (a) not decisive in favour of an extension, and (b), depending on the ET's assessment of the facts, may well not be relevant at all. It will very much depend on the way in which the ET sees the facts; and the facts are for the ET. I do not read the decision of the EAT in DPP v Marshall [1998] ICR 518 (and in particular pages 527H-528G, which were relied on by Mr Allen and Mr Sugarman) as contradicting this approach; but if it does, I bear in mind that the observations relied on are from the EAT, and pre-date DCA v Jones."[58]While my citation from O’Neill refers to Keeble, I pause here to note and record that the Limitation Act 1980 to which Keeble refers does not apply in Scotland, the equivalent legislation being the Prescription and Limitation Scotland Act 1973. However, the 1973 Act does not offer an equivalent codified list of factors to be considered, Section 19 A simply stating: “19A Power of court to override time-limits etc. (1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”[59]Section 123 of Equality Act 2010 does not make reference to either the Limitation Act 1980 or the 1973 Act. It does not seek to define itself by reference to either statutory model.[60]Within the Employment Tribunal Rules of Procedure 2013, Schedule 1, the relevant provisions about Strike Out are to be found within Rule 37 , while, clearly, the other Rule that is relevant is Rule 2, the Tribunal’s “overriding objective”, to deal with the case fairly and justly. While both parties have cited some case law authorities for my consideration, as per their lists of authorities, detailed earlier in these Reasons, I have given myself this selfdirection on the relevant law, as many of the usual authorities on Strike Out of a discrimination case were not cited to me by Ms Clements for the respondents, or by the claimant.[61]I make that comment as an observation, and not a criticism, and I also note and record here that there was no application by Ms Clements that, in the event her application for Strike Out was refused, then the Tribunal should consider making a Deposit Order under Rule 39. Under Rule 39(1), at a Preliminary Hearing, if an Employment Judge considers that any specific allegation or argument in a claim or response has “little reasonable prospect of success”, the Judge can make an order requiring the party to pay a deposit to the Tribunal, as a condition of being permitted to continue to advance that allegation or argument.[62]In fact, it is fairly commonplace before the Tribunal for a party making an application for Strike Out on the basis that the other party's case has “no reasonable prospect of success” to make an application for a Deposit Order to be made in the alternative if the ‘little reasonable prospect' test is satisfied.[63]The test of ‘little prospect of success' is plainly not as rigorous as the test of ‘no reasonable prospect'. It follows that a Tribunal accordingly has a greater leeway when considering whether or not to order a deposit. But it must still have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim. Ms Clements’ application before me was very much based on the claim being time-barred, and it not being just and equitable to extend time, and not anything else.[64]Rule 37 entitles an Employment Tribunal to strike out a claim in certain defined circumstances. Even if the Tribunal so determines, it retains a discretion not to strike out the claim. As the Court of Session held, in Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755, the power to strike out should only be exercised in rare circumstances.[65]A Tribunal can exercise its power to strike out a claim (or part of a claim) ‘at any stage of the proceedings' - Rule 37(1). However, the power must be exercised in accordance with “reason, relevance, principle and justice”: Williams v Real Care Agency Ltd [2012] UKEATS/0051/11 (13 March 2012), [2012] ICR D27, per Mr Justice Langstaff at paragraph 18.[66]In Abertawe Bro Morgannwg University Health Board v Ferguson UKEAT/0044/13, [2014] IRLR. 14, the learned EAT President, Mr Justice Langstaff, at paragraph 33 of the judgment, remarked in the course of giving judgment that, in suitable cases, applications for strike-out may save time, expense and anxiety.[67]However, in cases that are likely to be heavily fact-sensitive, such as those involving discrimination, the circumstances in which a claim will be struck out are likely to be rare. In general, it is better to proceed to determine a case on the evidence in light of all the facts. At the conclusion of the evidence gathering it is likely to be much clearer whether there is truly a point of law in issue or not.[68]Special considerations arise if a Tribunal is asked to strike out a claim of discrimination on the ground that it has no reasonable prospect of success. In Anyanwu and anor v South Bank Students' Union and anor 2001 ICR 391, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive and require full examination to make a proper determination.[69]In Ezsias v North Glamorgan NHS Trust 2007 ICR 1126, the Court of Appeal held that the same or a similar approach should generally inform whistleblowing cases, which have much in common with discrimination cases, in that they involve an investigation into why an employer took a particular step. It stressed that it will only be in an exceptional case that an application will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant are totally and inexplicably inconsistent with the undisputed contemporaneous documentation.[70]Lady Smith in the Employment Appeal Tribunal expanded on the guidance given in Ezsias in Balls v Downham Market High School and College [2011] IRLR 217, stating that where strike-out is sought or contemplated on the ground that the claim has no reasonable prospect of success, the Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success.[71]The test is not whether the claim is likely to fail; nor is it a matter of asking whether it is possible that the claim will fail. It is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test.[72]In Balls, at paragraph 4, Lady Smith emphasised the need for caution in exercising the power, as follows: "to state the obvious, if a Claimant's claim is struck out, that is an end of it. He cannot take it any further forward. From an employee Claimant's perspective, his employer 'won' without there ever having been a hearing on the merits of his claim. The chances of him being left with a distinct feeling of dissatisfaction must be high. If his claim had proceeded to a hearing on the merits, it might have been shown to be well founded and he may feel, whatever the circumstances, that he has been deprived of a fair chance to achieve that. It is for such reasons that 'strike-out' is often referred to as a draconian power. It is. There are of course, cases where fairness as between parties and the proper regulation of access to Employment Tribunals justify the use of this important weapon in an Employment Judge's available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached."[73]I recognise, of course, that the second stage exercise of discretion under Rule 37(1) is important, as commented upon by the then EAT Judge, Lady Wise, in Hasan v Tesco Stores Ltd [2016] UKEAT/0098/16, an unreported Judgment of 22 June 2016, where at paragraph 19, the learned EAT Judge refers to “a fundamental cross-check to avoid the bringing to an end of a claim that may yet have merit.”[74]Rule 39(1) allows a Tribunal to use a Deposit Order as a less draconian alternative to Strike Out where a claim (or part) is perceived to be weak but could not necessarily be described by a Tribunal as having no reasonable prospect of success. In the present case, however, there was no such application made to the Tribunal by the respondents. Discussion and Deliberation[75]Having now carefully considered the evidence before the Tribunal, and both parties` written and oral submissions, along with my own obligations under Rule 2 of the Employment Tribunals Rules of Procedure 2013, being the Tribunal’s overriding objective to deal with the case fairly and justly, I consider that, in terms of Rule 37(2), the claimant has been given a reasonable opportunity at this Preliminary Hearing to make his own representations opposing the respondents’ written application for Strike Out of the claim[76]Rule 37 entitles an Employment Tribunal to strike out a claim in certain defined circumstances, (a) to (e). Here, the respondents’ submissions focus their application for Strike Out of the claim under Rule 37(1) (a) on the basis that the claim has no reasonable prospect of success.[77]After careful consideration of the competing arguments, taking into account the relevant law, as ascertained in the legal authorities referred to earlier in these Reasons, I am not satisfied that this is one of those cases where it is appropriate to Strike Out the claim, which I have decided should proceed to be determined on its merits at a Final Hearing. I have decided that it is appropriate in all the circumstances of the present case to grant the claimant an extension of time, and so, I have refused the respondents’ application for Strike Out.[78]It is not disputed that the claim is late. The length of the delay is a relevant, but not a determining, factor. The reason for the delay is related to the claimant’s mental state, and his inability to lodge a claim until he did so on 9 November 2019. The claimant referred to two judgments from the EAT. I have considered each of them : Norbert Dentressangle Logistics Ltd v Hutton [2013] UKEATS/0011/13, a judgment by Mr Justice Langstaff, then EAT President, and Robinson v Bowskill & Others (p/a Fairhill Medical Practice) [2013] UKEAT/0313/12, a judgment by His Honour Jeffrey Burke QC, also reported at [2014] ICR D7.[79]I agree with Ms Clements that the facts and circumstances of both these cases are different from the facts and circumstances of the present case, and I found them of little assistance to me in determining my decision in the present case. Instead, I relied upon the statutory provisions about extension of time, and Strike Out, and how they have been interpreted by the higher Tribunals and Courts, as discussed above under Relevant Law.[80]The obvious prejudice to the claimant, if his claim is struck out, is that his claim against the respondents will be stopped in its tracks, and there will be no evidentiary Hearing. Put simply, his claim will be at an end. The respondents will, in that event, also still have hanging over them, an allegation of racial discrimination, which they deny.[81]I am not satisfied that it is in the interests of justice to Strike Out the claim, without hearing evidence, when the respondents have not satisfied me that the claim has no reasonable prospects of success. The claimant’s submissions, written and oral, as set forth earlier in these Reasons, have persuaded me that, in the exercise of my judicial discretion, I should not Strike Out the claim, but allow it to go forward to a Final Hearing, where evidence from both parties can be tried and tested. I regard as well-founded the claimant’s arguments against a Strike Out.[82]Further, it seems to me to be not in the interests of justice, and thus inconsistent with Tribunal’s overriding objective to deal with the case fairly and justly, that this case is brought to an end, and brought to an end now, and that is why I have decided to refuse the respondents’ application for Strike Out, and instead decided to list the case for a full merits Hearing in due course.[83]In the written skeleton argument for the respondents, building upon the groundworks laid by Mr Young, in the ET3 response and its 5 points, Ms Clements founded upon the claim being lodged outwith the time limit, a matter not in dispute, given the relevant dates in the chronology of events in this case, and why, in the respondents’ view, it is not just and equitable to allow the claim to proceed. She wrote and spoke of “prejudice” to the respondents, rather than the “significant prejudice” referred to by Mr Young.[84]She averred that: “The Claimant has had at least three other cases at Tribunal and as such, has knowledge of the timescales and the Tribunal process. Of particular relevance is the fact that the Claimant’s other claims were lodged late.” While she referred to at least 3 other cases, they were not identified by the respondents, and the only information I had laid before me was what I managed to glean from the claimant himself, by asking him some questions to clarify the position about other Tribunal claims he had put before the Tribunals, as he had mentioned in paragraph 1 of his details of claim, and so try to clarify his knowledge of timebar, and what additional information Ms Clements gleaned from him in her later cross-examination. It was all very vague. In any event, it was clear from the claimant’s own evidence that, in regard to the present case, he was aware of the 3-month statutory time limit, before he raised this claim.[85]Secondly, Ms Clements stated that: “… the claim was lodged late. The claim should have been lodged by 13 August 2019 and was not lodged until 9 November 2019. The Claimant has provided no sufficient justification for the claim being lodged late. The reasons advanced amount to, at best, the ordinary pressures of day-to-day life.”[86]She referred to paragraph 19 of De Souza v Manpower UK Ltd [2013] EWCA Civ 1794 in respect of the adequacy of the reasons advanced by the claimant. I have considered that judgment, but the facts and circumstances of that case were markedly different from those in the present case. Again, I relied upon the statutory provisions about extension of time, and Strike Out, and how they have been interpreted by the higher Tribunals and Courts, as discussed above under Relevant Law, and applied that law to the facts as I found them to be.[87]The claimant in the present case was clearly in some turmoil, over the relevant period, as spoken to in his own evidence to the Tribunal and his graphic description of his inability to function normally, as supported by his wife’s evidence.[88]There was joint reference by him and his wife to him seeking assistance from RAMH, and while there was no supporting, documentary evidence to vouch that, there was, for its worth, the GP’s report produced to this Tribunal, but obtained for the claimant by his EMLC representative in another case. The absence of oral evidence from the claimant’s GP is addressed, in part, by there being the written GP report produced at this Hearing, but while no other evidence from any medical practitioner, or RAHM adviser, or Abbey Mill, I am satisfied, on the basis of the oral evidence from the claimant and his wife, that the claimant’s circumstances over the affected period, in particular his mental health state, prevented him from lodging his ET1 earlier than he did.[89]While Ms Clements founded on the fact that the claim should have been lodged by 13 August 2019, and by being lodged on 9 November 2019, it was late, it is not transparently clear why she, like Mr Young before her, when submitting the ET3 response, took the view that the claimant required to bring his claim to the Tribunal by 13 August 2019.[90]The respondents state that the claimant was “turned down for employment” on 2 May 2019. Rather than look at that date as the start of the usual 3- month period to bring a claim to the Tribunal, meaning a claim had to be lodged by 1 August 2019, subject to any ACAS early conciliation period, they both would appear to have added in the days spent on ACAS early conciliation, between 2 and 13 June, being Days A & B for the purposes of Section 140B of the Equality Act 2010, and by that route arrived at 13 August 2019 as the due date for a timeous Tribunal claim.[91]Thirdly, Ms Clements founds on: “There would be prejudice to the Respondent should the claim proceed as a result of the fact that, by the time the Claim is heard, it is likely that almost a year will have passed. This would hamper the Respondent’s case presentation as a result of fading memories.”[92]In light of her clarifications to me, at the close of the Hearing, about what steps had been taken by the respondents, I am not at all satisfied that the respondents have shown any actual forensic prejudice. They have known, since at earliest, the claimant’s email of 23 May 2019 that he regarded himself as having been subjected to racial discrimination. She did not dispute the claimant’s assertion in submission that the respondents’ personnel will have relevant paperwork from the interviews, so this is not a case where a fair hearing might be prejudiced by the absence of contemporary records. Nor am I satisfied that the cogency of evidence from either party is likely to be affected by the delay in bringing the claim.[93]When the respondents received the ACAS notification, about early conciliation, on or after 13 June 2019, they must have been alerted at that stage too, so while Ms Clements says it will be difficult for witnesses to recall what happened at and after the claimant’s interview, on 18 April 2019, that is a matter which will likewise impact on the claimant, and his ability to recall matters. It is not a matter which, in my view, impacts in any greater way on the respondents than it does on the claimant.[94]Fourthly, Ms Clements also founds on: “The prejudice to the Claimant if the claim were not to proceed is minimal on the basis that he has failed to advance a factual basis for the claim and accordingly, the claim is without merit.” It will be for a Tribunal, deliberating after a Final Hearing, to determine whether or not the claim has merit. I reject, as disingenuous, the respondents’ suggestion that the prejudice to the claim if the claim were not to proceed would be “minimal.” If the claim were to be struck out, that would be the end of the matter – that impact is fatal, rather than minimal.[95]To have struck out the claim now would have been draconian, and a barrier to justice for the claimant, where he has persistently argued that there is an arguable case against these respondents, and the claimant offers to prove that case, with a view to obtaining Judgment against these respondents. While Ms Clements has identified, in her written and oral submissions for the respondents, that there are certain aspects of the claim as pled by the claimant, as an unrepresented, party litigant, which suggest to her that the claim has no reasonable prospects of success, those matters are best addressed by the leading of witness evidence in the case, from both parties, being tried and tested at an evidential enquiry conducted at a Final Hearing of the claim and response, after both parties have put all their cards on the table.[96]I have no doubt, based on the evidence of the claimant and his wife, at this Preliminary Hearing, that the claimant’s mental health issues were severe and debilitating, and there was a very real mental health impediment to him pursuing his claim against the respondents at an earlier stage. He gave a full and candid explanation of what had happened on and after he obtained the ACAS early conciliation certificate on 12 June 2019, up to and including him presenting his ET1 claim form on 9 November 2019.[97]Having carefully considered that evidence, I am satisfied that all of the distractions of life spoken of by the claimant and his wife, related to their family life, and his mental health state at the time, are, in the particular circumstances of this case, sufficient to provide a good and sufficient reason to justify granting him an extension of time.[98]I can readily understand why the respondents’ solicitors, in presenting their arguments to the Tribunal, may have felt sceptical about all of what the claimant has prayed in aid to support his application for an extension of time but, after careful consideration, I am satisfied that it is just and equitable to allow the claim to proceed to be determined on its merits.[99]I am satisfied that there is enough in the ET1 claim form to set out the broad basis of the claim, albeit the respondents may wish to seek further particularisation from the claimant. There being a blanket denial that the claimant has been discriminated against in any way by the respondents, and, in the absence of any detailed reply by the respondents to the specific complaints that the claimant makes about the recruitment and selection procedure, including the interview, and feedback, there are undoubtedly significant disputed facts as between the parties.[100]On that basis, I take the view that the case should proceed to a Final Hearing. I am satisfied that there being a core factual dispute, the dispute between the parties in this Tribunal is best resolved at a full Merits Hearing where evidence is tried and tested. A Final Hearing will allow for there to be evidence led by both parties as to what was said and done, or not, by whom, when, and for what reason, at the times complained of by the claimant.[101]This case, in my view, is clearly a matter for proof, where the claimant can give his evidence as to why be believes he suffered unlawful racial discrimination, and the respondents can lead whatever evidence they feel is appropriate to resist the claim brought against them. In my view, this is not an issue that can be resolved on the papers and it is one which requires oral evidence to enable a proper judicial determination to be made, after hearing evidence led from both parties.[102]As the respondents lodged only a skeleton ET3 response, as they were invited to do by the Tribunal, their position is yet to be further particularised. There are many factors to be taken into account, and, it will be of assistance to the Tribunal, if the respondents set out in detail the recruitment and selection process followed in this job application process, identifying the claimant and successful applicant, and explaining why the successful applicant was appointed, but the claimant was not. A factual enquiry being for another day, at a Final Hearing to be fixed sometime in the proposed listing period of October, November or December 2020, I am of the view that this case is best addressed by both parties leading evidence, from relevant and necessary witnesses, at that Final Hearing.[103]By convening a Final Hearing, I consider that that Hearing will allow a full Tribunal to come to a judicial determination, with the benefit of evidence led by both parties, tried and tested through cross-examination in the usual way, any necessary clarifications of that evidence by the Tribunal, and both parties then making closing submissions to the Tribunal on the basis of the evidence as led, and their submissions on the factual and legal issues arising in this claim.[104]The claimant may be assisted in this process if, as he indicated prior to this Preliminary Hearing, the students from Strathclyde University Law Clinic are able to act as his representatives going forward. Further Procedure[105]Given my decision not to Strike Out the claim, there is now further procedure to be determined by the Tribunal.[106]Having refused the respondents’ application for Strike Out of the claim, I have instead ordered that the case now be listed for a Final Hearing for full disposal, including remedy, if appropriate, before a full Tribunal on dates to be hereinafter assigned by the Tribunal, following the standard date listing process, further to receipt of completed date listing stencils from parties’ representatives, those stencils being issued by the clerk to the Tribunal, along with this Judgment.[107]Further, I have ordered that both parties shall advise the Tribunal whether they are content for that Final Hearing to proceed by way of video evidence from both parties, again using the Kinly cloud video platform, and after the preparation and mutual exchange of witness statements prior to the start of that Final Hearing, or whether, instead, they seek to have an in-person Hearing at the Glasgow Employment Tribunal, and, if so, to clarify whether with or without the use of witness statements.[108]To allow the respondents to further particularise their grounds for resisting the claim, and to detail the recruitment and selection process used, and answer the claimant’s concerns about the process, as identified in his particulars of claim, as also identify who was selected for interview, and who was appointed, and why, I have also ordered them, within 4 weeks, to lodge with the Tribunal, detailed grounds of resistance to the merits of the claim brought against them, by way of further and better particulars fully answering the claimant’s complaint, as set forth in the ET1 claim form, and so augmenting the ET3 response previously lodged with the Tribunal in skeletal form, denying the discrimination allegation, but otherwise only addressing the time-bar argument.[109]Finally, so that the respondents and Tribunal can be clear about what remedy the claimant seeks from the Tribunal, in the event that he is to be successful in his claim, and establish that he has been the subject of unlawful discrimination by the respondents, I have ordered him, within the same 4 week period, to lodge with the Tribunal, a detailed Schedule of Loss, and whether or not he still seeks a recommendation from the Tribunal. I have allowed the respondents, 2 weeks thereafter, to reply to whatever might be lodged by the claimant.[110]Any further procedure will be addressed by correspondence with the Tribunal, in the first instance. Should any other matters arise between now and whatever dates are to be assigned for that Final Hearing, then written case management application should be intimated, in the normal way to the Tribunal, by e-mail, with copy to the other party’s representative, sent at the same time, and evidencing compliance with Rule 92, for comment / objection within seven days.[111]Dependent upon subject matter, and any objection / comment by the other party’s representative, any such case management application may be dealt with on paper by me as the allocated Employment Judge, or a Preliminary Hearing fixed, either in person, or by telephone conference call, as might be most appropriate.
Introduction
[1]This case first called before the full Tribunal, on Monday, 30 November 2020, for a 4-day Final Hearing in person, for full disposal, including remedy, if appropriate, as per Notice of Final Hearing issued to both parties representatives by the Tribunal on 29 October 2020 assigning 3 days, being Monday, 30 November to Wednesday, 2 December 2020, for hearing of evidence, and Tuesday, 15 December 2020, for closing submissions from both parties.[2]In the event, over those first 3 days, the Tribunal only heard evidence from the claimant, proceedings having been impacted by time spent on 30 November 2020 addressing the claimant’s opposed application for leave to amend his ET claim form, which, despite opposition by the respondents, was allowed by the Tribunal, for the reasons given orally at the time, and later confirmed in writing.[3]Specifically, we allowed the claimant’s amendment to add into his claim those points previously articulated by him in his Preliminary Hearing Agenda intimated to the Tribunal and copied to the respondents on 18 March 2020, in answer to questions S.4(i) and (ii), as per his email to the Tribunal on 26 November 2020 @ 09:41, detailing his direct discrimination complaint, and in particular the less favourable treatment which he alleged he had suffered, and why he considered this treatment to have been because of race as the protected characteristic relied upon by him. We shall return to the terms of the amendment allowed later in these Reasons, under our Discussion and Deliberation section, at paragraph 77 below.[4]As a further point, it is convenient to note and record here that, at his answer to question S.1 of his Preliminary Hearing Agenda, the claimant then specified his specific racial group as “Black.” At the first Case Management Preliminary Hearing, held on 19 March 2020, before Employment Judge Ian McPherson, the claimant confirmed he was relying on his Black colour, as per his Agenda, and, further, indicated orally at that Hearing (as recorded by the Judge in his written Note & Orders at Order 1) that his complaint of alleged unlawful discrimination was also based on his Nigerian nationality, but not on his ethnic or national origins. In his subsequent sworn evidence to the Judge, at the timebar Preliminary Hearing held on 1 May 2020, the claimant described himself as a black Nigerian national, and the Judge made a finding in fact to that effect, at paragraph 27(a) of the Reasons to that Judgment.[5]Reverting again to this Final Hearing, proceedings were yet further impacted by the claimant producing, on 1 December 2020, a covert audio recording of a telephone conversation with one of the respondents’ witnesses, Mrs Lindsey Hepburn, to which the respondents did not object to it forming part of the evidence, but sought to adjourn the claimant’s cross examination part heard, to resume in spring 2021 at a Continued Final Hearing. We refused the respondents’ application to adjourn, for the reasons given orally at the time, and later confirmed in writing.[6]Thereafter, we heard the claimant’s further evidence and, having done so, adjourned the case to fresh dates for Continued Final Hearing on 1, 2 and 3 March 2021. Further, we ordered parties to cooperate and agree, if possible, a full and corrected version of the claimant’s transcript of that audio recording, and provide it to the Tribunal, allowing the respondents to cross-examine the claimant on its terms, by way of further evidence at the Continued Final Hearing. We also issued a fresh, updated Timetabling Order, in that regard for the Continued Final Hearing, made in terms of Rule 45 of the Employment Tribunals Rules of Procedure 2013.[7]In all, over those first 3 days, we issued 4 separate written Notes and Orders of the Tribunal, the first dated 1 December 2020, and copied to both parties on that date; the second, dated 2 December 2020, and copied to parties on that date; the third, dated 4 December 2020, and copied to parties on 14 December 2020, along with our fourth Note, dated 7 December 2020, which included our updated Timetabling Order.[8]Notice of Continued Final Hearing for 1, 2 and 3 March 2021 was issued by the Tribunal to both parties on 4 February 2021. When, on account of one of the respondents’ witnesses, Mr Kenneth Gray, having to self-isolate, on account of a Covid-19 situation within his household, an application was made by the respondents to hear his evidence on the Tribunal’s Cloud Video Platform (“CVP”), via video link, this was agreed by the Tribunal, and not objected to by the claimant.[9]The Judge had, at an earlier stage in proceedings, refused the claimant’s application for the Final Hearing to be wholly conducted remotely, by CVP, instead ordering an in person Final Hearing before a full panel at the Glasgow Tribunal Centre, and directing that the preparation and mutual exchange of witness statements was not required by the Tribunal, all for the reasons more fully detailed in the Tribunal’s letter to both parties sent by email on 16 October 2020.[10]While it had been intended to conclude the evidence, along with closing submissions, within the 3 further days in March 2021, in the event, that did not happen, and closing submissions from both parties required to be assigned to a further Hearing date, arranged, with their co-operation, as a hybrid Hearing, on Friday 12 March 2021, with both parties attending remotely by CVP, with the full Tribunal in attendance in person at the Glasgow Tribunal Centre, as previously.[11]Notice of Continued Final Hearing by CVP on 12 March 2021 was issued to both parties by email from the Tribunal on 3 March 2021. Further, fresh case management orders regarding that hybrid Hearing on Submissions were issued to both parties under cover of a letter dated 4 March 2021 issued by the Tribunal to both parties by email.[12]Having heard oral closing submissions from both parties, on 12 March 2021, each speaking to their own written closing submission, and answering points of clarification raised by the Tribunal, the full Tribunal had initial private deliberation in chambers that Friday afternoon, but we did not conclude our deliberations.[13]As per the Tribunal’s update letter sent to both parties, sent by email on 15 March 2021, we planned to meet again for further private deliberation in early course. Unfortunately, due to the Judge’s sick leave absence from the office from 18 March to 3 May 2021, we were unable to meet again to finalise our decision, until recently, and the Judge apologises to both parties for this unavoidable delay. On the Judge’s behalf, the Tribunal wrote to both parties explaining the situation, and clarifying that the finalised Judgment and Reasons would be issued as soon as reasonably practicable. Claim and Response[14]The claimant, acting on his own behalf, presented his ET1 claim form in this case to the Tribunal, on 9 November 2019, following ACAS early conciliation between 2 and 13 June 2019. He complained of discrimination on grounds of race, having been unsuccessful in his application for a post with the respondents, for which he was interviewed, but not offered the job. His claim was accepted by the Tribunal administration, and served on the respondents by Notice of Claim issued by the Tribunal on 12 November 2019. Their ET3 response was due by no later than 10 December 2019.[15]On 10 December 2019, an ET3 response, defending the claim, was lodged by Mr Nairn Young, in-house solicitor with the respondents, and that ET3 response was accepted by the Tribunal administration, on 12 December 2019, and a copy sent to the claimant and ACAS. In their response, it was stated, for the avoidance of doubt, that the respondents denied having discriminated against the claimant in any way, and their response was limited only to the issue of time bar, which they sought to have dealt with at the Preliminary Hearing then fixed for 19 March 2020, stating that, should the Tribunal decide it could consider the claim against them, then they would request further time to address the merits of the case brought against them.[16]When the case called, on 19 March 2020, before Employment Judge Ian McPherson, for a Case Management Preliminary Hearing held in private, the claimant was in attendance, in person, representing himself, while the respondents were represented by their solicitor, Ms Eilidh Clements. The respondents insisted upon their preliminary issue of time bar, and their argument that the claim should be dismissed or struck out for that reason.[17]Accordingly, the case was listed for a public Preliminary Hearing to consider the respondents’ opposed application for strike out, under Rule 37 of the Employment Tribunals Rules of Procedure 2013, on the basis that the claim was time barred, and it had no reasonable prospects of success, as it was argued that it would not be just and equitable to grant any extension of time to the claimant, in terms of Section 123 of the Equality Act 2010.[18]The Judge’s written Note and Orders, dated 23 March 2020, were issued to both parties under cover of a letter from the Tribunal on 31 March 2020. The case was thereafter listed for that time bar public Preliminary Hearing, which was held remotely by CVP on 1 May 2020, the claimant attending, again representing himself, and the respondents again represented by Ms Clements, their in-house solicitor. Preliminary Hearing Judgment, and listing for Final Hearing[19]Having heard evidence, and thereafter considered parties’ closing submissions, in private deliberation following close of that Preliminary Hearing on 1 May 2020, Employment Judge Ian McPherson found that the claim, presented on 9 November 2019, was presented out of time, but that it was just and equitable, in terms of Section 123 of the Equality Act 2010, to extend the time for lodging the claimant’s ET1 claim form with the Tribunal.[20]In these circumstances, the Judge held that the Tribunal did therefore have jurisdiction to consider the claimant’s complaint of alleged unlawful direct racial discrimination against him by the respondents, and the Judge refused the respondents’ application to strike out the claim. His detailed written Judgment, with Reasons, extending to some 111 paragraphs, over 62 pages, dated 27 July 2020, was issued to both parties on 30 July 2020.[21]In terms of the Case Management Orders made by Employment Judge McPherson, as part of that Judgment of the Tribunal, the respondents were ordered, within no more than 28 days from date of issue of that Judgment, to lodge detailed Grounds of Resistance to the merits of the claim brought against them, by way of Further and Better Particulars fully answering the claimant’s complaint, as set forth in the ET1 claim form, and so augmenting the ET3 response previously lodged by the Tribunal in skeletal form, denying the discrimination allegation, but otherwise only addressing the time bar argument. The claimant was ordered, within the same 28-day period, to lodge a detailed Schedule of Loss, with the respondents allowed 14 days after intimation to lodge any Counter Schedule.[22]Thereafter, on 27 August 2020, the claimant intimated his Schedule of Loss seeking total compensation of £106,752.19 from the respondents, in the event that he was to be successful in his claim against them. On that same date, Ms Laura Lilburn, in-house solicitor with the respondents, intimated to the Tribunal, with copy to the claimant, the respondents’ Further and Better Particulars, with detailed grounds of defence.[23]She referred to the successful candidate after interview as being “LM”, and submitted that it was not necessary or in the interests of justice for the name of the successful candidate to be disclosed, and highlighted that the claimant was seeking to advance a claim of direct race discrimination, where he had not identified an appropriate comparator (whether hypothetical or otherwise) in his ET1 claim form.[24]Ms Lilburn also took, as a preliminary point, that she felt the claimant’s direct race discrimination claim was unclear, and she requested further specification in order to provide the respondents with fair notice of this claim. Further, she called upon the claimant to provide full details and evidence of his efforts to find other work to mitigate his losses, and any subsequent earnings and / or benefits received. On 10 September 2020, Ms Lilburn intimated the respondents’ Counter Schedule to the Glasgow Tribunal, with copy to the claimant. Further Specification of the Claim[25]On 13 September 2020, the claimant, in writing to the Glasgow Tribunal, with copy to Ms Lilburn, confirmed that he was requesting to use the successful candidate (LM) as the appropriate comparator, and he provided further specification of his claim, in answer to Ms Lilburn’s point 1, that further specification was required, as follows:- 1. I was discriminated against by the interviewers by not offering me the job because of I am black. 2. The offering of the job to the successful candidate (LM) was not based on the interview conducted by the respondent for the purpose of selection. 3. The claimant was not given a plain level field to compete for the job based on the colour of his skin. 4. Before the interview, before the interviewer knew that the claimant was black, the claimant received five emails and two phone calls, two weeks after the interview the claimant was still chasing after the outcome of the interview by emails. If not, that claimant chased after the outcome of the interview he would not have been contacted. 5. The claimant was informed after the interview that the interviewer would get back to the claimant before the end of the next day, but the respondent interviewers never got back to the claimant as promised. 6. Even though the claimant presentation was the best among the applicants and the claimant had five top marks (the highest mark) and 4 high mark (second highest mark), the claimant was not given the job because he is Black.[26]Thereafter, on 16 October 2020, Employment Judge McPherson issued various Case Management Orders, via letter from the Tribunal emailed to both parties. He accepted that the claimant’s answers (of 13 September 2020) to Ms Lilburn’s preliminary points in the ET3 grounds of defence (of 27 August 2020) as Further and Better Particulars of the claim. Also, he noted the claimant’s request that witness statements should be used by both parties, and that the claimant would prefer a CVP Final Hearing, whereas the respondents had submitted that there should be an in person Final Hearing, and that witness statements should not be used.[27]Having carefully considered both parties’ positions, the Judge directed that the preparation and mutual exchange of witness statements was not required by the Tribunal and that evidence would be heard in person, and would not be taken remotely by use of CVP video conferencing. Both parties were so advised in the Tribunal’s letter of 16 October 2020.[28]Further, the claimant having made no comment or objection in his email of 13 September 2020 to the respondents’ request that the successful candidate be referred to as “LM”, the Judge made an Anonymisation Order of that person in terms of Rule 50(3)(b) of the Employment Tribunals Rules of Procedure 2013. That Order, dated and signed by the Judge on 12 October 2020, was issued to both parties, as an attachment sent by email with the Tribunal’s letter of 16 October 2020. Final Hearing before this Tribunal[29]When this case first called before us, as a full Tribunal, on the morning of Monday, 30 November 2020, the claimant was in attendance, as an unrepresented, party litigant, while the respondents were represented by their in-house solicitor, Ms Lilburn.[30]There was provided to the Tribunal, an agreed Joint Bundle of Documents, duly indexed, and containing 46 separate documents, extending over 244 pages. In the course of the ongoing Final Hearing, the Tribunal allowed a further 4 documents to be received, and added to the Joint Bundle, as follows:-• Document 47 – candidate pack for LM - pages 245-255.• Document 48 - claimant’s email of 26 November 2020 at 09:41 – pages 256 to 258 – allowed by the Tribunal as the claimant’s amendment to his ET1 claim form.• Document 49 – jointly agreed transcript of interview feedback call between Lindsey Hepburn and David Odigie: 14 May 2019 – pages 259 to 264.• Document 50 – updated Schedule of Loss for the claimant dated 3 March 2021 – pages 265 to 268 – seeking £89,026.53 total compensation from the respondents, but restricted to his alleged losses up to 30 November 2020.[31]On Monday, 30 November 2020, the Tribunal having allowed the claimant’s amendment to the ET1 claim form, for the reasons given at that time, and set forth in writing in our written note and Orders, the Judge noted the Freudian slip by Ms Lilburn when she identified LM as being a female, but provided no further information.[32]In those circumstances, the Tribunal invited Ms Lilburn to consider voluntary disclosure of further information about the successful candidate LM. The following morning, Tuesday, 1 December 2020, Ms Lilburn, as a preliminary matter, stated that she had taken instructions, and she was in a position to provide additional information to the Tribunal, and Mr Odigie, as claimant, about the successful candidate, LM, namely that she is white, female and Scottish, whereas the claimant is a black, male Nigerian.[33]As agreed with both parties, the claimant’s evidence in chief was elicited by a series of structured and focused questions asked of him by the presiding Employment Judge, following which he was cross examined, in the usual manner, by Ms Lilburn, as solicitor for the respondents. Arising from her cross examination, a matter emerged, which took the Tribunal, and respondents’ representative, by surprise, when the claimant stated that he had a recording of his telephone feedback interview with Mrs Lindsey Hepburn on 14 May 2019.[34]On Tuesday, 1 December 2020, the Tribunal, on parties’ joint application, decided to adjourn the claimant’s cross-examination part heard, to allow for the respondents to consider their position in respect of the audio recording which the claimant wished to produce and rely upon. During the claimant’s crossexamination by Ms Lilburn, the claimant had answered her question why he was “100% certain” about what Mrs Hepburn had said to him, during a telephone call feedback on his unsuccessful interview, when he disclosed to the Tribunal, and the respondents, for the first time in the course of these proceedings, that he had an audio recording of that conversation, which he asserted showed that he was telling the truth.[35]When the case called again before us the following morning, Wednesday 2 December 2020, Ms Lilburn made an application to the Tribunal to adjourn the claimant’s cross-examination part heard, and to resume in spring 2021, at the continued Final Hearing, to allow for parties to agree a full and corrected transcript of the audio recording which the claimant had produced, and which the respondents did not object to it forming part of the evidence before the Tribunal, despite the lateness of its production in these proceedings by the claimant.[36]However, we refused Ms Lilburn’s application, for the reasons we gave then, and confirmed in our written Note, including our collective view, that it was a proper use of the allocated judicial resource that we proceed that day, as otherwise the Hearing room, which is a precious commodity for in person Hearings at this difficult time during the Covid pandemic, would lie unused, in circumstances where the panel, Ms Lilburn, and the claimant were all present, and the claimant wished to finish his evidence, given the delays already earlier that week.[37]We stated that the respondents would not be prejudiced by our refusal of Ms Lilburn’s application to adjourn there, then, and go part heard, as we had the audio recording and, if necessary, it could be played in the public Hearing from the Judge’s laptop, and that is what duly happened. We also allowed Ms Lilburn a further 20 minutes maximum cross-examination of the claimant, on the ring-fenced matter of the transcript ,and we built that in to our fresh, updated Timetabling Order for the 3 further days assigned for 1, 2 and 3 March 2021. Findings in Fact[38]We have not sought to set out every detail of evidence which we heard nor to resolve every difference between the parties, but only those which appear to us to be material. Our material findings, relevant to the issues before us for judicial determination, based on the balance of probability, are as set out below, in a way that is proportionate to the complexity and importance of the relevant issues before the Tribunal.[39]While Ms Lilburn, in her written skeleton closing submissions for the respondents, presented to us her suggested findings in fact, we have had regard to that, but not considered ourselves bound by it, as her proposed findings in fact are not sufficiently detailed and, in any event, were, in certain respects, disputed by the claimant in his oral reply to her written skeleton. In these circumstances, and as is our primary, fact finding role, we have made the following findings in fact, on the basis of the evidence heard from the various witnesses led before us over the course of this Final Hearing, and the various documents in the Joint Bundle of Documents provided to us, so far as spoken to in evidence.[40]The Tribunal has found the following essential facts established:-
Introduction
[1]The claimant is a black, male Nigerian. His comparator, LM, the successful candidate appointed to the advertised vacant post with the respondents, is white, female, and Scottish.[2]The respondents are a Scottish local authority, who employ around 8,000 employees across various Directorates and associated bodies, including their Environment and Infrastructure Directorate.[3]In terms of Section 7 of the Local Government and Housing Act 1989, the respondents, as a local authority, are obliged to make every appointment of a person to a paid office or employment on merit.[4]Within the Environment and Infrastructure Directorate, sits the respondents’ Operations and Infrastructure Service, within which sits the Waste Operations Service.[5]Around March 2019, the respondents required to recruit a Waste Operations Team Leader within the Waste Operations Service, and their Operations Manager, Mr Lyall Rennie, sought the required internal approvals within the respondents in order to recruit and advertise for the post of Waste Operations Team Leader.[6]The Tribunal was advised, in the respondents’ Further and Better Particulars, and in the evidence from its officers led as witnesses at this Final Hearing, that the post of Waste Operations Team Leader was advertised online via “myjobscotland”, which is the national shared recruitment portal for Scottish local authorities and some other public sector bodies.[7]Further, the Tribunal was advised that the advertisement for the post went live on the “myjobscotland” website on 25 March 2019, and the closing date for applications was 7 April 2019. The Tribunal was provided with a copy of the job advertisement as document 22, at page 122 of the Joint Bundle.[8]What was provided there, as a production lodged by parties for use at this Final Hearing, was the text of the advertisement, rather than a true copy of what was published on the “myjobscotland” website.[9]Nonetheless, it was a matter of agreement between the parties at this Final Hearing that the job advertisement included the following text:- “As a member of the Operations and Infrastructure Management Team this role provides an exciting and challenging opportunity to lead, manage and influence the operational delivery of the Council’s waste collection and disposal service. You will be highly motivated and an effective leader with experience of delivering frontline operational services within a large and complex organisation, you will work collaboratively with key partners to develop and deliver services, leading and supporting operational change, service delivery and service improvements. You will have knowledge of the statutory and legislative requirements of the service and relevant national and local programmes and frameworks, knowledge and understanding of route optimisation systems and resource management and have effective communication, presentation, written, influencing and negotiation skills at all levels. You will possess a relevant degree or professional qualification or have evidence of professional competence and continuing professional development. A driving licence is also essential. For an informal discussion about this post please contact Lyall Rennie, Operations Manager”.[10]While the job advertisement outlined some of the requirements for the post, the Tribunal was advised, as per the respondents’ Further and Better Particulars, and in the evidence from its officers led as witnesses at this Final Hearing, that the advertisement also attached a copy of the Job Outline and Person Specification for the post, and these documents outlined what the roles and responsibilities of the post were and the objective essential and desirable criteria for the post, which was advertised as grade K on the respondents’ pay and grading structure.[11]A copy of the Waste Operations Team Leader Job Outline and Person Specification was produced to the Tribunal as document 23, in the Joint Bundle, at pages 123 to 125 for the Job Outline, and pages 126 to 129 for the Person Specification.[12]The Job Outline described the post’s principal role as having responsibility “for the operational leadership, development and management of Renfrewshire Council’s Waste Services Operation, including Refuse Collection, Refuse Disposal and Household Waste and Recycling Centres, to ensure optimal operational performance and delivery of a high quality, cost effective Service for the Council”.[13]Further, the Job Outline detailed 18 key responsibilities, indicative of the nature and level of responsibilities associated with this job, which was graded K, and was to report to the respondents’ Waste Operations Manager.[14]As regards the Person Specification for the job, it highlighted a number of factors, being education; relevant experience; special knowledge and skills; personal features/qualities; management competencies; and other (driving licence).[15]For the relevant experience, special knowledge and skills, personal features/qualities, and management competencies, the Person Specification stated that the method of assessment would be application form, and interview.[16]As at the time of the selection interviews, the respondents had in place policies relating to Equality and Diversity at Work, and Recruitment. A copy of the respondents’ equality and diversity at work policy, dated November 2010, was produced to the Tribunal as document 20, at pages 109 to 115 of the Joint Bundle.[17]In terms of that Equality and Diversity at Work policy, and so far as material for present purposes, it is provided as follows:- “1.2 The Council strives to embrace a positive attitude towards the promotion of equality and diversity and to create a working environment which is inclusive of everyone regardless of ethnic origin, religion or belief, disability, age, sex, gender reassignment, sexual orientation, marriage and civil partnership, pregnancy and maternity, carer responsibility, race, nationality, social or economic status, trade union membership or activity. 1.3 This policy is consistent and in accordance with the current legislative requirements and the Equality Act 2010 and it is the responsibility of all employees to comply with this policy and be familiar with its content and principles.2.1 The purpose of this policy is to set out the Council’s vision and commitment to equality and diversity in the workplace. It aims to promote equality and diversity in all aspects of the Council’s work and encourages a working environment which is free from all forms of discrimination and harassment, where all employees can fulfil their full potential.2.2 The Council is committed to ensuring that equality and diversity is embedded in all aspects of service delivery, and strives to ensure that all employees, customers and partners are treated fairly and with respect at all times. 6.1 This policy should be read in conjunction with other relevant Council policies, procedures and training materials as appropriate, including:• Recruitment and Selection Procedures• …• Code of Conduct for Employees• ...[18]At sections 8.1.3, 8.1.4 and 8.1.5 of that Equality and Diversity at Work policy, various responsibilities are set forth for line managers, employees, and the respondents’ HR and Organisational Development Service. As regards disciplinary action, it is provided that: “10.2 Concerns or complaints from employees, partners/external agencies, contractors and agency workers will be investigated and any breach of this policy may result in disciplinary action.”[19]Further, as regards monitoring and review, it is stated that: “13.1 This policy will be monitored and reviewed regularly as it is applied, and in line with any legislative changes relating to equality and diversity in the workplace. “[20]Notwithstanding the reference to monitoring and review, the Tribunal was advised by the respondents’ witnesses that the Equality and Diversity at Work policy has not been reviewed since its introduction in November 2010.[21]There was also produced to the Tribunal, as document 21, at pages 116 to 121 of the Joint Bundle, a copy of the respondent’s Recruitment Policy issued in June 2018, for review in June 2019, by the HR and Organisational Development Service.[22]The Recruitment Policy contains the following provisions, which so far as material for the present purposes, state as follows:- “1.3 The Council will strive to reach out to all community groups through its recruitment campaigns and targeted activities to attract from the widest and most diverse pool of candidates. Appointments will be made on merit and best-fit with the Council’s organisational competencies, goals and values whilst meeting best practice and legislative requirements. 1.4 As required by the Equality Act 2010, the Council will ensure that all potential applicants are treated fairly and given equal opportunity, regardless of ethnic origin, religion or belief, disability, age, sex, gender reassignment, sexual orientation, marriage or civil partnership status, pregnancy or maternity, carer responsibility, race, nationality, social or economic status, or trade union membership or activity.2.1 The purpose of this policy is to support the Council to manage all recruitment effectively through the provision of a clear, fair, transparent, legal and lean process.2.2 The policy aims to:-• Build and appoint our workforce of the future based on merit;• Meet all legislative employment requirements;• Implement fair, inclusive and consistent recruitment ensuring recruiting managers are appropriately developed in the process;• Support the achievement of the Council’s equality, diversity and gender pay outcomes. 3.1 The principles of this policy apply to all potential and existing employees of the Council.”[23]In terms of the respondents’ recruitment policy, there are 5 stages to the recruitment process, as follows:- Stage 1 – Vacancy Management; Stage 2 – Preparing to Recruit; Stage 3 – The Selection Process; Stage 4 – Pre-Employment Checks; and Stage 5 – Offer of Appointment and Induction[24]Stage 3 – the Selection Process – provides as follows:- “A variety of selection methods may be utilised such as assessment centres, competency based interviews including the use of digital resources where appropriate and/or recruitment open days. It is good practice that the selection panel should have a gender equality balance where possible through the selection process.”[25]At Stage 5 – Offer of Appointment and Induction, it is provided as follows:- “Following interview and assessment outcomes, an offer of appointment subject to satisfactory pre-employment checks can be made to the preferred candidate. An offer of feedback to unsuccessful candidates should also be provided as best practice.”[26]At section 9.1 of the Recruitment Policy, provision is made for “recruitment complaints”. It is there provided as follows:- “If an applicant considers they have been unfairly treated in the application of this policy, a complaint can be made to the Head of Transformation & OD who will thoroughly investigate the matter and take any appropriate actions.”[27]On the evidence provided to the Tribunal, while the claimant entered into correspondence with the respondents, in particular his email of 23 May 2019 to Mrs Hepburn, as detailed later in these findings, and he later brought his Tribunal complaint against the respondents, there was no formal investigation by the respondents, and the matter progressed as their defence of the Tribunal proceedings brought against them by the claimant.[28]Notwithstanding section 12.1 of the Recruitment Policy (monitoring and review), and that the policy will be “reviewed regularly and in line with any legislative changes and best practice relating to recruitment activities”, the Tribunal was advised by the respondents’ witnesses that the Recruitment Policy has not been updated since it was introduced in June 2018.[29]The claimant submitted his application for the post on 7 April 2019, and a copy of his candidate pack was produced to the Tribunal as document 24, at pages 130 to 137 of the Joint Bundle. According to the respondents’ Further and Better Particulars, a total of 26 applications for the post were received by the respondents.[30]After the closing date, the respondents carried out a short-listing process to assess which applicants for the post were to be shortlisted for interview, based on the essential and desirable criteria for the post, as set forth in the Job Outline and Person Specification.[31]Seven candidates were shortlisted for interview, one of whom was the claimant, and another was LM who was the preferred and successful candidate, appointed by the respondents on merit after the interview process.[32]These 7 applicants were those who appeared to the short-listing panel of Mrs Lindsey Hepburn (Waste Operations Manager) and Mr Ken Gray (Street Scene Manager) to meet both the essential and some of the desirable criteria for the vacant post, and so merited proceeding to competitive interview.[33]A copy of the respondents’ short-listing matrix form, completed by Mrs Hepburn and Mr Gray, was produced to the Tribunal as document 25, at page 138 of the Joint Bundle. In terms of that short-listing form, candidates were scored 0 if they did not meet the criteria; 1 if they met some of the criteria; and 2 if they met all the criteria.[34]At that short-listing stage, the claimant scored a total of 9 for essential criteria, and 3 for desirable criteria, giving him an overall total of 12. The successful candidate, LM, scored an essential total of 8, and a desirable total of 3, giving her an overall total of 11. Both were shortlisted for competitive interview, along with the other 5 short-listed applicants.[35]By email from Mrs Lindsey Hepburn, the respondents’ Waste Operations Manager, sent to the claimant on 11 April 2019, he was invited to interview on Thursday, 18 April 2019.[36]In her invite email to the claimant, a copy of which was produced to the Tribunal as document 26, at page 139 of the Joint Bundle, Mrs Hepburn stated that: “As the interviews are next Thursday, I was keen to contact you to give you as much notice as possible as you will be required to do a presentation as part of the interview process. The presentation should last no longer than 10 minutes and on the following topic:- “Describe your role in implementing a new recycling initiative, highlighting the key components of the project and any problems you overcame”. I would be grateful if you could email your presentation to me by Wednesday 17th April at 12 noon.”[37]Further, by email on 15 April 2019, from myjobscotland to the claimant, copy produced at page 140 of the Joint Bundle, the claimant was called for interview at 15:00 hours on 18 April 2019 and advised that he should email his presentation to Lindsey Hepburn.[38]The claimant anticipated that his presentation would form part of the formal interview process, and so be taken into account by the interview panel.[39]All interviews were held before a panel comprising of Mrs Lindsey Hepburn (Waste Operations Manager) and Mr Ken Gray (Street Scene Manager), and a Mrs Kathleen Clark (Principal HR Advisor) also attended each of the interviews held on 18 April 2019 within the respondents’ headquarters at Renfrewshire House, Paisley.[40]Mrs Clark was there in order to provide HR support to the interview panel to ensure a fair and consistent recruitment process was followed. She was not an interviewer, despite being so described on the respondents’ pro-forma interview assessment sheets.[41]Mrs Hepburn chaired the interview panel, comprising herself and Mr Gray, with Mrs Clark as HR adviser, and the interview process was structured as follows:-(a) introduction;(b) a prepared presentation given by each candidate, which was not scored, and regarded by the panel as an icebreaker for the candidates to ease themselves into the interview;(c) set questions were asked of each candidate; and(d) questions, if required, from each candidate.[42]All interviews held were similar in terms of length, being around three quarters of an hour, with the respondents allocating one-hour slots for each interview. The claimant’s interview was the second last interview of the day, on 18 April 2019.[43]Each candidate presented their presentation, and they were thereafter asked the same set of questions and the same structured process was followed for each and every candidate interviewed by the panel.[44]Mr Gray and Mrs Hepburn each completed interview assessment sheets in respect of each candidate that was interviewed on 18 April 2019, including the claimant, and the successful candidate, LM.[45]A copy of the claimant’s interview presentation was produced to the Tribunal as document 30, at pages 146 to 153 of the Joint Bundle. He made his presentation to the interview panel.[46]A copy of the successful candidate, LM’s presentation was not produced to the Tribunal, as the respondents stated that presentations were not scored, but designed to be an icebreaker for the candidates to put themselves at ease at the start of the interview process.[47]While no copy presentation for LM was produced to the Tribunal, the respondents’ witnesses confirmed that LM, as with all other candidates, made a presentation to the interview panel.[48]Mrs Hepburn, as chair of the interview panel, as well as Mr Gray, as the other member of the interview panel, completed separate interview assessment forms for all of the candidates, including the claimant, and LM.[49]The interview assessment sheets were based on a template document drafted by the respondents’ recruitment team in August 2016, with a document header “per/rec 24”.[50]The completed interview assessment sheets for the claimant were produced to the Tribunal as document 34, at pages 168 to 170 of the Joint Bundle for the form completed by Mr Gray, and at pages 171 to 173 for the form completed by Mrs Hepburn.[51]For the successful candidate, LM, Mr Gray’s completed interview assessment sheet was produced to the Tribunal at document 35, pages 177 to 179, while Mrs Hepburn’s completed interview assessment sheet for LM was produced at pages 174 to 176.[52]In completing her interview assessment sheets, Mrs Hepburn wrote a brief description of the candidate’s response to each of the set questions asked at the interview, whereas Mr Gray took separate handwritten notes, a copy of which were produced to the Tribunal at document 31 (pages 151 to 157) for the claimant, and document 32, at pages 158 to 161, for LM.[53]For the Tribunal’s ease of reference only, a typed-up version of Mr Gray’s interview notes for the claimant and LM were produced to the Tribunal as document 33, at pages 162 to 167.[54]On his interview assessment sheet for the claimant, Mr Gray scored the claimant, in regard to the questions asked at interview, as 5, 4, 3, 4, 3, 4, 4, and 3. He did not indicate any candidate response to the questions, nor indicate that they were on his attached notes.[55]In answer to the quality of presentation, and quality of responses to questions, his completed interview assessment sheet contained no entry. For the interviewer’s comments, Mr Gray stated “Answers to some questions require greater detail to own role & qualities.” He gave the claimant an overall assessment of 4, and recommended “Do not appoint”, giving as his reason: “Other stronger candidate” (unidentified). His form was signed, and dated 25 April 2019.[56]In completing her interview assessment sheet for the claimant, Mrs Hepburn briefly noted the candidate responses to the questions asked at interview, and scored him as 5, 4, 3, 4, 3, 4, 4, and 3. In scoring the claimant’s answer to the supplementary question on “forward thinking”, Mrs Hepburn appears to have initially marked that as a 5, the same as the mark allocated for the principal question on that factor, but then scored that out, and ticked a score of 4.[57]She made no entry on quality of presentation, or quality of responses to questions and, as regards her recorded interviewer’s comments, she stated “lacked leadership (his role) within responses”. She gave the claimant an overall assessment of 4, and her recommendation was “Do not appoint”, the reason given being “Failed to provide enough detail in relation to his role. Other stronger candidate.” The other candidate is not identified. She signed her interview assessment sheet for the claimant on 24 April 2019.[58]When it came to completing his interview assessment sheet for the successful candidate LM, Mr Gray made no entry under candidate responses (nor did he refer to his handwritten notes), and he scored her answers to the questions as 4, 4, 5, 4, 4, 3, 4, and 5. He made no entry for quality of presentation, or quality of responses to questions.[59]In his interviewer’s comments, he stated “strong interview with positive & detailed examples to demonstrate competence.” He gave LM an overall assessment of 4, and recommended that she be appointed, the reason given being stated as “strongest candidate & met essential criteria.” He signed the interview assessment sheet on 25 April 2019.[60]For the successful candidate LM, Mrs Hepburn’s completed interview assessment sheet briefly recorded the candidate response to the questions asked at interview, and she scored her as 4, 4, 5, 4, 4, 3, 4, and 5. She made no entry under quality of presentation, or quality of responses to questions.[61]As regards her interviewer comments, she stated “interviewed well, gave good examples, described her role within examples.” She gave LM an overall assessment of 4, and recommended that she be appointed, giving as her reason: “strongest candidate and met essential criteria”. She signed the interview assessment sheet on 25 April 2019.[62]Albeit Mrs Kathleen Clark had been the HR advisor at the interview, and not a decision maker on the interview panel, Mrs Clark signed LM’s interview assessment sheet (prepared by Mrs Hepburn) on 2 May 2019, to confirm that LM was the preferred candidate to be offered the post, which LM did, being appointed thereafter.[63]Following all 7 interviews that took place on 18 April 2019, Mr Gray and Mrs Hepburn weighed up the skills, qualifications, experience, and responses to interview questions of all candidates that were interviewed. A scoring process was carried out in relation to each of the interviewed candidates, based on their responses to the questions at interview.[64]As a result of the scoring process, the claimant received a total score of 30, whereas LM, the successful candidate, received a score of 33. The claimant performed well at interview, and the interview panel scored LM and the claimant very closely, being just 3 points apart.[65]LM received a better score than the claimant in two key areas of the interview questions on “Leads and Engages”, and “Transformational Change”. Mr Gray and Mrs Hepburn were of the view that LM provided more detailed answers to some of the questions asked compared to the claimant, and that LM was able to demonstrate better their skills, experience in these key areas of the role.[66]As LM received the highest score, and therefore she was objectively the best candidate, she was identified by the interview panel as the preferred candidate, and recommended to be appointed to the role. Her appointment is in accordance with the legal provision which provides that every appointment of a person to a paid office or employment under a local authority in Scotland shall be on merit. The claimant was not appointed because he was not identified as the best candidate performing at the competitive interview process. He was the runner up, and, had LM not accepted the post, then it would have been offered to the claimant, as next highest scoring candidate, subject always to preemployment checks, as per the respondents’ recruitment process.[67]On 2 May 2019, the claimant received an email from myjobscotland advising him that he had not been successful in his application for the post. Also, on that day, Mr Gray called the claimant by telephone and informed him that he had not been successful, and that another candidate had been appointed to the post.[68]During that telephone call, Mr Gray advised the claimant that Mrs Hepburn was on annual leave and that she could provide feedback to the claimant on her return from annual leave, if he wished.[69]The respondents’ Recruitment Policy provides that an offer of feedback to unsuccessful candidates should be provided as best practice and, in accordance with the respondents’ policy, Mr Gray offered the claimant the opportunity to receive feedback from Mrs Hepburn.[70]On 3 May 2019, the claimant emailed Mrs Hepburn to ask her to arrange a call to provide feedback to him. A copy of his email was produced to the Tribunal at document 37, at page 181 of the Joint Bundle, where he stated: “Ken called me yesterday regarding the outcome of my interview, he asked if I needed feedback in which I replied yes. He stated that you are on holiday, that when you came back, we are going to have a conference call in order to give me the feedback. I will be looking forward to the call, in order to get the feedback so as to know my areas of weakness.”[71]Mrs Hepburn was on annual leave from 29 April to 6 May 2019. On her return from annual leave, she scheduled a telephone call with the claimant in order to give him feedback on his interview. She arranged to call the claimant on 10 May 2019, however, this call had to be rescheduled to 13 May 2019, because the claimant was unable to take the call on 10 May 2019.[72]On 13 May 2019, Mrs Hepburn called the claimant, but his telephone was not working and therefore the call was rescheduled again to 14 May 2019. Mrs Hepburn spoke with the claimant on the telephone on 14 May 2019.[73]During this telephone call, Mrs Hepburn provided detailed feedback to the claimant about his interview and explained why he had been unsuccessful. The claimant was advised, after he pressed Mrs Hepburn about whether LM was internal or external, that LM was an internal candidate, i.e. an existing employee of the respondents.[74]At no point during this call was any personal information about LM discussed. The claimant was not informed, nor did he ask about LM’s race. No details about LM were provided to the claimant, other than that they were an internal candidate. Mrs Hepburn did not disclose the sex, race, ethnicity, or any personal information about LM to the claimant.[75]Unknown to Mrs Hepburn, the claimant covertly recorded that feedback call that took place between himself and herself on 14 May 2019. She had not given her permission for this call to be recorded, and the claimant did not make her aware that he was recording the call.[76]There was produced to the Tribunal, and accepted as document 49 at the continued Final Hearing, on 1 March 2021, at pages 259 to 264 of the Joint Bundle, a jointly agreed transcript of the interview feedback call between Lindsey Hepburn and the claimant on 14 May 2019.[77]It is clear, from the terms of the agreed transcript, that detailed feedback was given to the claimant by Mrs Hepburn, that she did not tell him he had received “5 top marks”, that the claimant never asked what race LM was on this call; and that the claimant was advised that the presentation was an icebreaker and not scored.[78]On 23 May 2019, Mrs Hepburn received an email from the claimant regarding his disappointment at not being appointed to the post. A copy of this email was produced to the Tribunal as document 43, at page 190 of the Joint Bundle, and it was in the following terms:- “I would like to thank you for the feedback you gave me regarding my interview with you, having fully regurgitated over and over about it, I believe I was racially discriminated against. The only issue you had with my interview was that internal staff were specific in highlighting issues facing waste management operation in Renfrewshire Council. You have every opportunity to have advertised this job internally but you never did. Advertising it to the public, you should have put everybody on a level playing field. I have worked in at least 3 Councils and I would like to point it out to you that every Council has a similar issue related to waste management. You also said you did not score the presentation because it’s not part of the interview. I totally disagree with you, the presentation is the hardest part of the interview and it should have been scored. You are trying to cut every leverage I have for the interview in order to deny me the post. I have decided to take legal action against Renfrewshire Council for racial discrimination.”[79]On 29 May 2019, Mrs Hepburn acknowledged receipt of the claimant’s email dated 23 May 2019, and advised that she would respond the following week. The respondents sought legal advice from their in-house solicitors in relation to this email. Thereafter, on 7 June 2019, Mrs Hepburn responded to the claimant’s email, a copy of which was provided to the Tribunal as document 43, at page 189 of the Joint Bundle.[80]In that email, the claimant was advised as follows by Mrs Hepburn: “In response to your email received on 23rd May 2019, I would like to provide you with further feedback on your interview for the post of Waste Operations Team Leader. The first part of the process included a presentation. The presentation was intended to be an ice-breaker to allow candidates the opportunity to open up and engage with the recruitment panel. The presentation was not formally assessed however as a panel we thought your topic of presentation was very interesting and we enjoyed hearing about the new recycling initiative at North Lanarkshire Council. In terms of the delivery of the presentation, I would highlight the importance of making good eye contact as this allows you to connect and build a rapport with the panel however during the presentation and throughout your interview you tended to focus on one member of the panel only when providing your responses. With reference to your interview, we were impressed with your knowledge and experience within the waste industry and this was reflected within your responses. However there were areas in which your answers lacked depth, particularly in relation to your role as a leader and we felt that you did not make your role within the examples clear as you tended to be more descriptive and we would have liked to have heard more about what you personally achieved and how you went about it, you often refer to “we” instead of “I”. In addition, we felt your responses in relation to transformational change were also descriptive and tended to focus on operational processes. The role of Operations Team Leader requires a high level of strategic thinking and we were looking for examples which highlighted the importance of leadership when implementing new service changes, how to manage barriers to change and your specific role in delivering this. We felt that your response to transformational change was slightly negative towards your existing employer and we would emphasise the importance of trying to highlight the positives as well as the negatives in your responses. The post was advertised externally to ensure we were able to select from a wider pool of candidates and I can confirm that 3 external candidates and 4 internal candidates were interviewed. Overall you performed well in the interview and scored 30 out of a possible 40. As the successful candidate scored higher than you, this candidate was appointed. The assertion that you make below that the reason why you were not appointed was on the basis of race discrimination is completely unfounded. Renfrewshire Council is committed to ensuring that all employees, customers and partners and other parties are treated fairly and with respect at all times. The Council promotes and encourages a culture whereby equality of opportunity exists for everyone regardless of race, sex, gender identity, disability, age, religion or belief, sexual orientation, pregnancy and maternal status or marriage or civil partnership status. I do hope the above information is helpful to you and I wish you all the best with any future job applications.”[81]In connection with these Tribunal proceedings, the claimant provided a Schedule of Loss on 27 August 2020, a copy of which was produced to the Tribunal as document 4, at pages 30 and 31 of the Joint Bundle. He sought compensation in the total sum of £106,752.19.[82]This comprised loss of salary for 90 weeks, at £785.88 per week (£70,729.20), plus loss of pension for 90 weeks @ 8.5% (£6,011.99), and compensation for injury to feelings @ £44,000, totalling £120,741.18, less income from benefits from 22 May 2019 to December 2020 (@ £12,488.99), money earned (through mitigation) @ £1,500, totalling deductions of £13,899.99, producing the total claimed at £106, 752.19.[83]It was a matter of agreement between the parties at this Final Hearing that, as per the respondents’ Counter Schedule of Loss, as at 10 September 2020, copy produced to the Tribunal as document 5, at pages 32 and 33 of the Joint Bundle, if the claimant had been appointed to the post, gross weekly pay would have been £743.40 per week, producing £571.28 per week. Had he joined the Local Government Pension Scheme, employee contributions would have been 6.3%, with employer contribution 19.3%.[84]Thereafter, on 15 November 2020, the claimant produced an updated Schedule of Loss, a copy of which was produced to the Tribunal as document 12, at pages 52 and 53 of the Joint Bundle. On the basis of losses from 18 April 2019 to 31 December 2020, the claimant’s total financial loss was assessed at £91,061.04. That included a sum of £45,000 for injury to feelings using the upper “Vento” band. He disclosed his mitigation earnings of £1,200 from Tapzino Consulting, and his total benefits though Universal Credit.[85]Finally, at the continued Final Hearing, on 3 March 2021, the claimant provided a final, revised Schedule of Loss, which the Tribunal received as document 50, at pages 265 to 268 of the Joint Bundle. The claimant recalculated his losses from 18 April 2019 to 30 November 2020, showing a total financial loss now at £89,026.53, inclusive of injury to feelings at £45,000.[86]In cross-examination, the claimant accepted, in principle, that his calculations required further revisal, and that any losses accrued from 2 May 2019, when he was informed that he was unsuccessful in getting the post.[87]The respondents included in the Joint Bundle, at documents 44 and 45, at pages 191 to 203, various copy Employment Tribunal judgments in claims brought by the claimant against other respondents, namely Argyll Community Housing Association (4112456/2019, issued 20 March 2020), and Argyll & Bute Council (4107178/2019, issued 20 April 2020).[88]While the claimant accepted, in cross-examination before this Final Hearing, that these were judgments on the public record, on the Gov.UK website, where his race discrimination complaints against those respondents had been dismissed by another Tribunal, this Tribunal has noted them, but given them no weight as they are not binding on this Tribunal, and, in any event, related to the particular facts and circumstances of those other cases.[89]At the continued Final Hearing before this Tribunal, late on in the afternoon of Tuesday, 2 March 2021, the claimant gave oral evidence that he had secured new employment, as an Environmental Health Officer with Carlisle City Council, starting on 4 January 2021, and he gave further evidence in chief, on 3 March 2021, but he declined to produce, as requested by the respondents, any supporting documentation, stating that it was private and confidential, and not relevant. He declined to produce any documentation to the respondents, for personal reasons, and he restricted his claim for financial compensation against the respondents to 30 November 2020.[90]While the claimant had never mentioned, in the first diet of Final Hearing, in December 2020, that he had been offered a new job with another employer, at the Continued Final Hearing on 3 March 2021, he admitted, in oral evidence, that he had been offered this job with Carlisle City Council on 12 November 2020, that he accepted that offer on 12 December 2020, as a 12 months contract, he started induction around 19 December 2020, and that employment was now to terminate on 26 March 2021, as he stated funds are no longer available as planned, and funding for his post will be ending. Tribunal’s assessment of the evidence heard at the Final Hearing 41. In considering the evidence led before the Tribunal, we have had to carefully assess the whole evidence heard from the various witnesses led before us, and to consider the many documents produced to the Tribunal in the agreed Joint Bundle lodged and used at this Final Hearing, so far as spoken to in evidence, which evidence and our assessment we now set out in the following sub-paragraphs:-(1) Mr David Odigie: claimant (a) The claimant was the first witness to be heard by the Tribunal on Tuesday, 1 December 2020, and continued to the following day. We heard from him again, on the first day of the continued Final Hearing, on Monday, 1 March 2021, as regards the agreed transcript of the telephone feedback call on 14 May 2019. (b) Further, on the last day of the continued Final Hearing, on Wednesday 3 March 2021, we heard further evidence in chief, from the claimant, again elicited by the Employment Judge, followed by cross-examination by Ms Lilburn for the respondents, on the claimant’s Schedule of Loss, its updating in the new document accepted as document 50, and his attempts to mitigate his losses, and in particular his new employment with Carlisle City Council, which he had disclosed to the Tribunal, and the respondents, for the first time, at the close of proceedings the previous afternoon, Tuesday 2 March 2021. (c) In giving his evidence in chief to the Tribunal, the claimant did so, answering a series of structured and focused questions asked by the presiding Employment Judge, a process as agreed by both parties. In answering, the claimant did so under reference to various documents lodged with the Tribunal, and in the Joint Bundle, identifying points of concern to him, arising from the respondents’ recruitment and selection process, and his unsuccessful application for the vacant post. (d) In doing so, he spoke to the terms of the updated Schedule of Loss, intimated on 15 November 2020, and confirmed that he was still unemployed, but looking for employment, and he was seeking financial compensation from the respondents, including an award for injury to feelings, as per his Schedule of Loss intimated to the Tribunal, and copied to the respondents. (e) When the claimant came to be cross-examined by Ms Lilburn, acting for the respondents, his answers to her questions in cross-examination were more difficult to comprehend, and it appeared to the Tribunal that the claimant was being both evasive and ambiguous, and seeking to add new areas of concern to his claim, that were not part of the original, pled ET1 claim form. (f) Indeed, even after his amendment was allowed, on Monday 30 November 2020, the claimant continued, in the course of giving his answers, and particularly in the course of cross-examining the respondent’s witnesses, to raise new matters, which had not been pled in the original ET1 claim form, nor foreshadowed in the amended ET1 claim form allowed by the Tribunal. (g) Further, despite the Judge’s clear, and often repeated, guidance to the claimant, as an unrepresented party litigant, that he needed to cross-examine the respondent’s witnesses on the terms of their evidence in chief, and raise with them matters that he disputed, and put to them points in his pled case, the claimant frequently disregarded the judicial guidance offered to him, as an aid to putting him on an equal footing with the respondents’ solicitor. (h) Further, it is noted and recorded here that the claimant ignored the oft repeated guidance from the Judge for him to ask bite size questions, not give evidence, or make statements, and to refer the witness to the relevant document, and the relevant page number, in the Joint Bundle, if he was asking them a specific question. (i) Overall, we found the claimant to be a confused, and confusing witness, who despite having a deep passion for his cause, and belief that he has been the victim of unlawful racial discrimination by the respondents, lacked both credibility, and reliability. The Tribunal was not convinced that the claimant had a genuine belief that he had been discriminated against by the respondents on grounds of his protected characteristic, as it is clear from the evidence before us that at the time he first complained of “racial discrimination” on 23 May 2019, and presented his ET1 thereafter, he did not know the race of the successful candidate LM, and the focus of his complaint was about an internal candidate being appointed.(2) Mrs Lindsey Hepburn: respondent’s Waste Operations Manager (a) Mrs Hepburn was the first witness for the respondents to be heard by the Tribunal on day 1 of the continued Final Hearing, on Monday, 1 March 2021. In giving her evidence to the Tribunal, she did so under reference to various documents lodged with the Tribunal, and in the Joint Bundle, explaining her role in the short-listing process, and thereafter the interview panel, and her involvement in the selection decision to appoint LM as the preferred candidate, with the claimant as the next highest scorer after the interview process. (b) She gave her evidence clearly and confidently, under reference to the relevant productions contained within the Joint Bundle used at the Final Hearing, and she was fairly clear and articulate in answering questions put to her in examination in chief by Ms Lilburn, solicitor for the respondents. (c) Further, Mrs Hepburn was subject to cross-examination by the claimant, but her evidence in chief was not undermined, as it was generally in accord with the contemporary records taken at the time of the interview process. Overall, Mrs Hepburn’s evidence relating to her role as chair of the interview panel satisfied us that she was giving the Tribunal a full recollection of events, as best she could remember them, and she came across to the Tribunal as a credible and reliable witness.(3) Mr Ken Gray:- respondent’s Street Scene Manager (a) Mr Gray was the second witness led on behalf of the respondents and, on account of him being in self-isolation, due to COVID 19 positive testing for a member of his family, he gave his evidence remotely, on Tuesday, 2 March 2021, joining the in person Final Hearing through use of the CVP. He had available to him, at his home, a full set of the Joint Bundle, as he would have had had he been in attendance personally and giving his evidence from the witness box in the Glasgow Tribunal Centre. (b) In giving his evidence to the Tribunal, Mr Gray did so under reference to the various documents contained within the Joint Bundle, identifying those which he had access to at the time of his involvement in the short listing process, and the interview process, and he generally explained his role, and his reasons for preferring LM’s interview performance to the claimant’s, and for LM being the preferred candidate from the interview selection process. Again, his evidence was generally in accord with the contemporary records taken at the time. (c) Overall, Mr Gray was a witness who satisfied us that he was recounting events as best he could recall, and he too came across to the Tribunal as a credible and reliable witness speaking clearly, and confidently, to his role as a decision maker on the interview selection panel.(4) Mrs Kathleen Clark: respondents’ Principal HR Advisor (a) The final witness heard by the Tribunal was Mrs Clark, and her evidence was taken on Wednesday, 3 March 2021, when she was examined in chief by the respondents’ solicitor, Ms Lilburn, and thereafter cross-examined by the claimant. (b) While described on the interview assessment sheets as a member of the interview panel, Mrs Clark made it clear, as had Mrs Hepburn and Mr Gray before her, that Mrs Clark was an HR advisor, and not a decision maker on the selection panel. (c) Giving her evidence to the Tribunal, she did so under reference to various documents contained within the Joint Bundle, speaking to the respondents’ practices and policies, and her participation in the interviews, on 18 April 2019, she having had no involvement in the shortlisting process carried out previously by Mrs Hepburn and Mr Gray. (d) In giving her evidence to the Tribunal, Mrs Clark gave an overview of the respondents as a corporate public sector organisation, and the role that she, and her team, play in providing a full HR function to the Council. She also spoke to the Equality and Diversity, and Recruitment Policies, included within the Joint Bundle provided to the Tribunal for use at this Final Hearing. (e) She was clear that the Equality and Diversity Policy, issued in November 2010, was that still currently in use within the respondents, and available on their intranet site, and that she had not seen any other document, only this November 2010 version. She further stated that it had not been reviewed in 10 years, and that she would raise that matter within the organisation. (f) Similarly, Mrs Clark confirmed that the Recruitment Policy, introduced in June 2018, and due for revision in June 2019, was still the current document used within the respondents, and that they were still working to it. She also spoke to the recruitment process, and the use of myjobscotland. (g) Unfortunately, while she referred the Tribunal to the Job Outline, and Person Specification, the witness could not say if the Person Specification was posted on the myjobscotland website, and she went further, and stated that she would not put a Person Specification on that job site, but she did not know whether that had happened in this case, or not. (h) The impression gleaned by the Tribunal, from the evidence of Mrs Hepburn and Mr Gray, was that both the Job Outline and Person Specification were posted on the myjobscotland website, but, in the event, the matter could have been clarified beyond any doubt if the respondents had lodged, in the Joint Bundle, the actual advert placed on myjobscotland, rather than simply the text for that advert. (i) Mrs Clark was also asked questions, in evidence in chief by Ms Lilburn, about the short-listing process, and the use of presentations at interviews. As an HR professional, she stated that if you asked an applicant for a presentation, then you should include it as part of the process, and it should be scored. (j) While she was not part of the interview panel, merely an advisor, Mrs Clark in giving her evidence to us was crystal clear in her recollection that none of the presentations made were scored, and that was applied consistently throughout all of the interviews carried out on 18 April 2019. (k) She had seen the interview assessment sheets completed by Mrs Hepburn and Mr Gray for both LM, and the claimant, and she stated that it was Mrs Hepburn and Mr Gray, as panel members, who marked the candidates and gave scores for the questions answered. She explained that she had signed the interview assessment sheet for LM, at Mrs Hepburn’s request, as she had requested that she take all the sheets to tally up the scores given, for the final score, as Mrs Hepburn had not done that before, being a recent joiner with the Council, and that she signed that sheet to endorse LM as having the highest score. (l) While Mrs Clark spoke to the overall assessment, on page 3 of the interview assessment form template, she explained that you look at the interview assessment sheets, and count up the individual scores of 5, 4, 3, 2 and 1, and whatever has the majority is the overall assessment. As both LM and the claimant each had 4 scores of 4, that was their overall assessment, but the interview panel then count up the total scores, and that gives the final score. (m) Mrs Clark accepted it would be very useful if the template document used by the respondents for interviews had been updated, to provide space for an overall score box, and she stated that she would draw that to the attention of the Recruitment Team when she got back to the office after having given her evidence to this Tribunal. (n) Mrs Clark was clear that, in her professional HR view, both LM and the claimant got consistent treatment, and everything at the interview was fair and consistent, and that nobody was treated less favourably than any other candidate. (o) Having read the agreed transcript of the feedback interview with Mrs Hepburn, Mrs Clark stated that she thought it was more than satisfactory feedback to the claimant, and, in her opinion, it was feedback at a high level to the claimant. (p) When it came to Mrs Clark being asked questions about the ET1 claim form served on the Council, her evidence was confused, and she initially thought she had seen it in August 2020, rather than after it was served in November 2019, but she then stated she was sure she would have seen it before December 2019, when the Council’s ET3 response was put in by Mr Nairn Young, solicitor with the Council, although she could not recall specifically. (q) She strongly refuted that the claimant’s treatment, in not being selected for the post, was racially motivated and she stated that the claimant’s race had no bearing at all on the process followed by the respondents. She emphasised how Council officers have a legal duty to appoint the person with the highest score, and who therefore merits the offer of the post. (r) Overall, while Mrs Clark was a generally credible witness, speaking to the Council’s policies and practices, and her involvement in the interview panels for this selection exercise, the reliability of parts of her evidence did not impact on the fact that, generally speaking, her evidence about the interview process, and the methodology adopted, was consistent with that of Mrs Hepburn and Mr Gray as the decision makers on the panel. Parties’ Closing Submissions 42. While, in assigning the 3 days for the continued Final Hearing, it was timetabled that the Tribunal would hear closing submissions from both parties, on the afternoon of Wednesday, 3 March 2021, in the event, that did not happen, as the Tribunal was hearing evidence from the respondents’ final witness, Mrs Clark, and so a further day required to be identified for the purpose of closing submissions from both parties. 43. Case Management Orders for that purpose were given orally by the Judge at the close of proceedings on 3 March 2021, and followed up, in writing, by letter from the Tribunal on 4 March 2021. Ms Lilburn was ordered to intimate her written skeleton argument by no later than 12 noon on Thursday 11 March 2021, with the claimant to intimate an annotated version of his list of 9 case law authorities, identifying clearly the relevant legal principle being relied upon, with full citation of page/paragraph number of the Judgment relied upon, as per his list intimated to the Tribunal by email on 25 February 2021, so as to give the Tribunal, and the respondents’ representative, clear specification and fair notice of the legal arguments being presented to the Tribunal by the claimant. 44. The respondents had previously, on 29 January 2021, provided their list of authorities, to the Tribunal, copied to the claimant, as follows: Legislation•S.9 Equality Act 2010•s.13 Equality Act 2010•s.23 Equality Act 2010•s.39 Equality Act 2010•s.136 Equality Act 2010 Case Law 1. Barton v Investec Henderson Crosthwaite Securities Ltd [2003] I.C.R. 1205 2. Shamoon v. Chief Constable of The Royal Ulster Constabulary [2003] ICR. 33 3. Madarassy v Nomura International [2007] ICR 86 4. Bahl v The Law Society [2004] EWCA Civ 1070 5. Igen v Wong [2005] ICR 931 6. Hewage v Grampian Health Board [2012] I.C.R. 1054 7. Ayodele v Citylink Ltd [2018] I.C.R. 748 8. Laing v Manchester City Council [2006] I.C.R. 1519 9. Chairman and Governors of Amwell School v Dougherty [2007] I.C.R. 135 10. Fleming v East of England Ambulance Service NHS Trust 2017 WL 08148372 or UKEAT/0054/17/BA 11. Phoenix House Ltd v Stockman [2019] WL 02914014 or UKEAT/0058/18/OO 12. Vento v Chief Constable of West Yorkshire, [2003] I.C.R. 318 13. Cadogan Hotel Partners Ltd v Ozog [2014] WL 3925328 or UK 14. Komeng v Creative Support 2019 WL 05102724 or UKEAT/0275/18/JOJ 45. Further, the claimant, in his email of 25 February 2021, at that time intimated his list of 9 case law authorities, as follows:- 1. Macdonald v Advocate General for Scotland (2003) UKHL 34 2. R. v Birmingham City Council, ex parte EOC, (1989) A.C. 1155 (CA and HL) 3. Owen and Briggs v James (1982) I.C.R. 618 (CA) 4. Chief Constable of West Yorkshire v Khan (2002) I. W. L. R. 1947 5. Simon v Brimham Associates (1987) I. C. R. 596. CA 6. Case C-54/07 Feryn (2008) ECR 1-05187 (ECJ) 7. King v Great Britain-China Centre (1992) I. C. R. 516 (CA) 8. Re Equal Opportunities Commission for Northern Ireland’s Application (1989) I.R.I.R 64 (NI High Court) A case brought on the sex Discrimination (Norther Ireland) Order1976 9. R V Birmingham City Council, ex parte Equal Opportunities Commission (1989) I.A.C. 1156 (HL), 1194, citing R.v Commission for Racial Equality ex parte Westminster City Council (1985) I.C.R. 827 (CA). 46. The claimant did not provide an annotated list of his authorities as per the Judge’s Order dated 4 March 2021. It appears that he was confused as to what was required by the Tribunal. Following an email exchange with Ms Lilburn, on the afternoon of 11 March 2021, after she had provided the respondents’ skeletal written submission to the claimant and Tribunal by email at 12:06 pm, the claimant emailed Ms Lilburn at 22:51 pm that evening, stating he had provided the cases and legal principles he would be relying on, and attached a document entitled “Court cases”, identifying the 5 cases he was now relying upon. 47. The claimant did so with some highlighted passages from some of those cited judgments marked up for emphasis. He did that for 4 of the 5 cases he cited, being (1) Ms L. Barton v Investec Henderson Crosthwaite Securities Limited; (2) Madarassy v Nomura International Plc; (3) Kamlesh Bahl v The Law Society, Robert Sayer, Jane Betts, and (4) Hewage v Grampian Health Board. While he cited a further case (being Ayodele v Citylink Limited and another), no highlighted paragraphs from that judgment were provided in his document intimated to Ms Lilburn, and forwarded by her to the Tribunal on the morning of Friday, 12 March 2021. 48. Thereafter, while the Tribunal had received Ms Lilburn’s written skeleton closing submissions for the respondents, the claimant intimated, before replying to her oral submissions, that he had his own written submission, which he was asked to, and did, then email in to the Tribunal, at 11:26 am, on the morning of Friday, 12 March 2021, with an attached document entitled “Skeletial Statement”, comprising 6 typewritten, but unnumbered, and unparagraphed, pages of text, some of which was highlighted text from relevant sections of productions contained within the Joint Bundle. 49. It was not, however, a comprehensive response to Ms Lilburn’s detailed, written skeleton for the respondents and, in that regard, and to give the claimant a fair opportunity to respond to her detailed written submissions, the Judge asked the claimant certain questions of clarification, when he had concluded his own oral submissions to the Tribunal. 50. Ms Lilburn’s written skeleton submissions on behalf of the respondent ran to 18 typewritten pages of text, extending to some 74 paragraphs in total. She invited the Tribunal to make certain, specified findings in fact, and she described the relevant law in relation to direct discrimination, comparator, alleged less favourable treatment, and the burden of proof in discrimination cases, at paragraphs 3 to 34 inclusive, before then addressing the issue of the claimant’s covert recording, at paragraphs 35 to 44, followed by her views on witness credibility and reliability at paragraphs 45 to 48. 51. She concluded with her submissions on the issue of remedy, at paragraphs 49 to 71, stating that the claimant was not entitled to any compensation or other remedy from the Tribunal but, in the event the Tribunal was minded to make an award of compensation in this claim, requesting that we consider her detailed submissions. In that regard, Ms Lilburn addressed the claimant’s position on financial loss, providing proposed amendments to his updated Schedule of Loss, as well as outlining the respondents’ position on the claimant’s asserted financial loss, before addressing injury to feelings, and the claimant’s failure to mitigate his losses. 52. Ms Lilburn’s written skeleton submissions on behalf of the respondents are held on the Tribunal’s case file, so it is not necessary to repeat their full terms verbatim here but, for present purposes, it will suffice to note her conclusion, at paragraphs 72 to 74, as follows:- “72. The Respondent submits that the reality of the situation in this case was that the Claimant was not the best candidate for the job. Unfortunately, this can be a common issue for any jobseeker. 73. The Respondent submits that in this case, the Claimant has not proven any facts from which a Tribunal could conclude that the Respondent had committed an act of discrimination. In the absence of the Claimant proving such facts, the claim should fail. 74. The Respondent submits that none of the assertions made by the Claimant in his claim amount to discrimination and therefore it is submitted that the Tribunal should dismiss the Claimant’s claim in full.” 53. The claimant’s own skeletal written statement is again held on the Tribunal’s case file, so it is not necessary to repeat its full terms verbatim here but, for present purposes, it is sufficient to note that, after a brief chronology of events, and cross reference to relevant documents in the Joint Bundle, at page 1 of 6 of his written submission, the claimant stated that having received the detailed feedback from Mrs Hepburn, on 14 May 2019, which date he erroneously misstated as 14 April 2019, the nature of the feedback confirmed his suspicion that if he were a white person, he would have been scored 5 for those questions where he was scored either 3 or 4. 54. Further, on page 4 of 6 of his written submission, the claimant stated as follows:- “The Feedback did not actually represent what happened during the interview and it didn’t reflect my score. On the 23rd of May, I sent an email accusing Renfrewshire of racial discrimination (page 190). I strongly believe that I was not offered the job because of my race, if I were a white person, I would have gotten the job. I strongly believe that the offering of the job was not based on the interview. I strongly believe that I was not given a level playing field to compete for the job. Before the interview I received 5 emails and 2 phone calls, two weeks after the interview I was still chasing after the outcome of the interview. I was informed after the interview that they would get back to me before the end of the next day and they never got back to me as promised. Despite that my presentation was the best and I had impressive score, I was not given the job. The delay in given (sic) me feedback was discriminating.” Reserved Judgment 55. When proceedings concluded, on the afternoon of Friday, 12 March 2021, the claimant and Ms Lilburn were advised that Judgment was being reserved, and it would be issued in writing, with reasons, in due course, after private deliberation by the Tribunal. With limited opportunity that afternoon, further private deliberation has only taken place recently, by further, remote discussion with the lay members of the Tribunal. This unanimous Judgment represents the final product from our private deliberations, and reflects our unanimous views as the specialist judicial panel brought together as an industrial jury from our disparate experiences. Issues for the Tribunal 56. This case called before the full Tribunal for full disposal, including remedy, if appropriate. The principal issue before the Tribunal was to consider the respondents’ liability, if any, for the claimant’s complaint of alleged unlawful direct discrimination on grounds of race and, if the Tribunal found the claimant to have been unlawfully directed discriminated against by the respondents, on grounds of race, then it would be for the Tribunal to go on and consider the further issue arising of determining the appropriate remedy for any established discrimination. Relevant Law 57. While the Tribunal has received submissions from Ms Lilburn, and some case law references from the claimant, it has required to give itself a self-direction on the relevant law. 58. The Equality Act 2010 covers unlawful discrimination both in employment, and other fields, and the key concepts are to be found in Part 2 of the Act, while for present purposes, Part 5 of the Act is relevant, as it deals with work and employment, with Part 9 dealing with enforcement, including complaints to Employment Tribunals. 59. Race is one of the protected characteristics identified in Section 4 of the Equality Act 2010. Race is further defined at Section 9(1) as including (a) colour; (b) nationality, and (c) ethnic or national origins. 60. In terms of Section 39(1) of the Equality Act 2010, an employer (A) must not discriminate against a person (B) – (a) if the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; and (c) by not offering B employment. 61. Further, direct discrimination is defined at Section 13(1) of the Equality Act 2010 as follows:- “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 62. In terms of Section 23(1) of the Equality Act 2010, on a comparison of cases for the purposes of, amongst others, direct discrimination, contrary to Section 13, there must be no material difference between the circumstances relating to each case. The claimant relies upon the successful candidate, LM, as his comparator. 63. Section 120 of the Equality Act 2010 provides that an Employment Tribunal has jurisdiction to determine a complaint relating to a contravention of Part 5 (work) of that Act and, subject to the time limit provisions of Section 123 (which, in the present case, are inapplicable, the Tribunal having previously decided, at an earlier stage, that the complaint, although late, it is just and equitable to allow it to proceed to be heard on its merits), are subject to the remedies set forth in Section 124, if an Employment Tribunal finds that there has been a contravention of the Equality Act 2010. 64. In that event, the Tribunal may, as per Section 124(2), (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the claimant; and (c) make an appropriate recommendation, as defined in Section 124(3). 65. In the present case, the claimant seeks a declaration, and an award of compensation, but not any recommendation from the Tribunal. Finally, in terms of Section 124(6) of the Equality Act 2010, the amount of compensation which may be awarded under section 124(2)(b) corresponds to the amount that could be awarded by the Sheriff under Section 119 and, as per Section 119(4), an award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis). 66. The burden of proof provisions in relation to discrimination claims are found in Section 136 of the Equality Act 2010. Section 136(2) provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, Section 136(3) goes on to provide that: “But sub section (2) does not apply if A shows that A did not contravene the provision. Finally, in terms of Section 136(6), a reference to “the court” includes a reference to an Employment Tribunal. The burden of proving facts lies with the claimant. Only if that is satisfied, does the burden then shift to the respondents to show that they did not discriminate against him. 67. The Court of Appeal, in Igen Limited v Wong [2005] ICR 931 (CA), set out the position with regard to the drawing of inferences in discrimination cases. In the later Court of Appeal Judgment, in Madarassy v Nomura International Plc [2007] ICR 867 (CA), the Court of Appeal found that the words “could conclude” must mean “a reasonable Tribunal could properly conclude” from all the evidence before it, meaning that the claimant had to “set up a prima facie case”. That done, the burden of proof shifted to the respondent (employer) who had to show that they did not commit (or is not to be treated as having committed) the unlawful act. 68. The Supreme Court, in Hewage v Grampian Health Board [2012] ICR 1054 (SC), held that Tribunals should be careful not to approach the Igen guidelines in too mechanistic a fashion, and the Court of Appeal has confirmed that approach under the Equality Act 2010 in its Judgment in Ayodele v Citylink [2018] IRLR 114 (CA). 69. In addition to the statutory provisions, the Tribunal has had regard to the Equality and Human Rights Commission: Code of Practice on Employment 2011, which sets out helpful guidance. 70. At paragraph 3.2 it states:- “Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.” 71. In answering the question “What is “less favourable” treatment?”, the Code of Practice states, at paragraph 3.4, that: “To decide whether an employer has treated a worker “less favourably”, a comparison must be made with how they have treated other workers or would have treated them in similar circumstances. If the employer’s treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity.” 72. At paragraph 3.11 of the Code, it is provided that: “because of” a protected characteristic has the same meaning as the phrase “on grounds of” (a protected characteristic) in previous equality legislation. The new wording does not change the legal meaning of what amounts to direct discrimination. The characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause. 73. Continuing, paragraph 3.13 of the Code then states: “In other cases, the link between the protected characteristic and the treatment will be less clear and it will be necessary to look at why the employer treated the worker less favourably to determine whether this was because of a protected characteristic.” Discussion and Deliberation 74. In coming to our final decision in this case, the Tribunal has carefully reviewed and analysed the whole evidence led before it, both orally in sworn evidence, and within the various documents spoken to in evidence at the Final Hearing. 75. Having done so, and reflected on the whole evidence, and both parties’ closing submissions, during our private deliberations, we have come to the clear view that the claimant has not proven any facts from which the Tribunal could conclude that the respondents had committed an act of direct race discrimination against him, arising from his non-appointment to the post of Waste Operations Team Leader, following upon his interview for that post by the respondents on 18 April 2019. 76. In these circumstances, we have decided that his complaint of unlawful discrimination by the respondents fails, and accordingly we have dismissed it for that reason. 77. In coming to our decision, and as referred to earlier in these Reasons (at paragraph 3 above), we reminded ourselves of the amended basis of his ET1 claim, detailing the points previously made by him in his Preliminary Hearing Agenda, which set forth matters as follows: S.4 If you complain about direct discrimination: (i) What is the less favourable treatment which you say you suffered. (including the date or dates of the treatments and the person or person responsible.)• I was not offered the job• The offering of the job was not based on the interview• I was not given a plain level field to compete for the Job• Before the interview I received five emails and two phone calls, two weeks after the interview I was still chasing after the outcome of the interview• I was informed after the interview that they would get back to me before the end of the next day and they never got back to me as promised• Despite the fact that my presentation was the best and I had five top mark (the highest) and 4 high mark, I was still not given the job• Delay in given feedback (ii) Why do you consider this treatment to have been because a protective characteristic?• I had experience and qualification in the job I applied for, my presentation was the best, my interview was very good, If I was to be of same race with the interviewers, they would have offered me the job. 78. So too have we referred back to the claimant’s further specification of claim, on 13 September 2020, as detailed at paragraph 25 of these Reasons above, where he stated that: 1. I was discriminated against by the interviewers by not offering me the job because of I am black. 2. The offering of the job to the successful candidate (LM) was not based on the interview conducted by the respondent for the purpose of selection. 3. The claimant was not given a plain level field to compete for the job based on the colour of his skin. 4. Before the interview, before the interviewer knew that the claimant was black, the claimant received five emails and two phone calls, two weeks after the interview the claimant was still chasing after the outcome of the interview by emails. If not, that claimant chased after the outcome of the interview he would not have been contacted. 5. The claimant was informed after the interview that the interviewer would get back to the claimant before the end of the next day, but the respondent interviewers never got back to the claimant as promised. 6. Even though the claimant presentation was the best among the applicants and the claimant had five top marks (the highest mark) and 4 high mark (second highest mark), the claimant was not given the job because he is Black. 79. On the evidence before us, we are satisfied that the claimant was on a level playing field with the other short-listed candidates, and that he was not appointed because he was not considered to be the best candidate. We had no information before us about the race, or other personal characteristics, of the others interviewed, except for LM. There was no evidence before us that his presentation was the best, and, indeed, he was the second last applicant to be interviewed, so how he could know he was the best is unclear to us. In any event, the respondents did not score the presentations from any applicant called for interview. His feedback, from Mrs Hepburn, as per the agreed transcript, is clear in its terms. 80. Put simply, we are satisfied that the claimant was not appointed because he was not identified as the best candidate performing at the competitive interview process. He was the runner up, and, had LM not accepted the post, then we are satisfied, based on the evidence given by the respondents’ witnesses, that it would have been offered to the claimant, as next highest scoring candidate, subject always to pre-employment checks, as per the respondents’ recruitment process. 81. We do not accept, on the evidence we heard, that the claimant, or any applicant was advised they would hear the outcome the next day, and we are equally clear that the claimant and others were contacted on 2 May 2019. Any delay was thus common to all who were interviewed, and not discriminatory as regards the claimant only. 82. It is unfortunate that the claimant anticipated the presentation forming part of the interview process, whereas the respondents did not score it, but used it as an ice-breaker, and the Tribunal trusts that, in future interviews, the respondents will make it clear to candidates called for interview what is the process, and whether any presentation is to be taken into account. 83. From her evidence to us, it was clear that Mrs Hepburn had reflected, since issuing her letter of invitation to applicants, and we trust that, in reviewing their recruitment practices, processes and procedures, including the interview assessment sheets, and how they are drafted, the respondents may take the organisational learning from this case into account in reviewing, and updating their internal procedures. 84. Further, and in any event, we are satisfied, on the evidence led before us, that the claimant was fairly and competitively interviewed for that vacant post, but he was not offered the post, as he was not the best candidate based on interview performance on 18 April 2019. We are satisfied that LM was identified by the interview panel as the best candidate, and that it was she who was appointed based on merit. There is nothing at all in the evidence before us to show that the claimant was treated less favourably, and discriminated against, on racial grounds. 85. Indeed, it is of note that while the less favourable treatment complained of by the claimant was that he was not appointed to the post because he is black, in his evidence to this Tribunal, the claimant accepted that he did not ask Mrs Hepburn, on the phone call feedback of 14 May 2019, what race the successful candidate was, and he made no reference to the successful candidate’s race or any other personal information during that feedback, nor within the email correspondence with Mrs Hepburn between 23 May and 7 June 2019. 86. Further, prior to the first diet of Final Hearing before this Tribunal, between 30 November and 2 December 2020, the claimant did not know what race LM was. Notwithstanding Mrs Hepburn’s denial, on 7 June 2019, that the respondents had in any way discriminated against the claimant, he continued to insist upon his claim against them, and to accuse them of racial discrimination against him. 87. At this Final Hearing, the claimant sought to raise points not part of his pled case, including a complaint that LM should not have been short-listed. He stated that he understood LM had since left the respondents’ employment, and he sought to make a point from that, but her circumstances, and whether or not still employed in the role, were not confirmed or denied by the respondents’ solicitor, or their witnesses. The Judge made it clear the Tribunal was considering the claimant’s case, and not looking at LM, other than as a comparator. 88. We declined to allow the claimant to further expand his pled case, into new matters not previously foreshadowed by him, the Judge reminding him to stick to his pled case, unless he was seeking to further amend it, which he did not seek to do. He was often reminded by the Judge of the guidance from the Employment Appeal Tribunal in Chandhok v Tirkey [2015] IRLR 195, about the importance of the ET1 claim form and ET3 response, where each party requires to know in essence what the other party is saying, so they can properly meet that case, and that the giving of fair, advance notice is at the heart of the Tribunal system. 89. While “pleadings” are relatively informal in this Tribunal, as compared to the civil courts, the ET1 should set the parameters of the dispute before the Tribunal. It is not appropriate to allow a claimant, even an unrepresented, party litigant, to build a case on shifting sands, and raise the case which best seems to suit the moment from their perspective. In conducting the Hearing, we were conscious of that, and that there is always a balance to be struck between avoiding unnecessary formalism and ensuring the fairness of the Tribunal process to both parties. Closing Remarks 90. As we have dismissed the claim, we need not address the disputed submissions that we received on the matter of remedy. Given the dismissal, the Tribunal does not make any award of compensation to the claimant.
Relevant Law
[91]Had we found in his favour, it is right and proper that we say here that in awarding him any sum by way of injury to feelings, we would not have been minded to do so, on the basis of the evidence led before us, at the high level of £45,000 suggested by the claimant. Such an amount, in the Vento highest band, would have been excessive, and we would have, as invited by the respondents, looked at an award at the low end of the lowest Vento band, having regard to the factors set out in Komeng.[92]Finally, we close by stating that we recognise that our Judgment will not be well received by the claimant, because, even during the course of the Final Hearing, it was clear to us that he still bears a deep sense of grievance and injustice at the way he perceives he was treated by the respondents.[93]We appreciate that that is his perception, and so his reality, but, as the independent and objective fact finding Tribunal, applying the relevant law to the facts of this case as we have found them to be, based on the evidence led before us from both parties, we hope that in reading our Judgment, and these Reasons, the claimant will come to understand our reasons for dismissing his complaint.[94]Further, we also hope that the claimant will note and act upon our suggestion that, having secured employment with Carlisle City Council, his first employment in many years, he will now turn his efforts towards seeking further new employment, with another employer, and try to rebuild his employment experience for the benefit of a prospective new employer, and his own selfconfidence and personal esteem, as well as the security of himself and his family.