Mr N Narli v Babcock Integrated Technology Ltd: 6000127/2023

EMPLOYMENT TRIBUNALS

Case No 6000127/2023

Between

Mr N NarliClaimant

Babcock Integrated Technology LtdRespondent

Before

Employment Judge Livesey

In person for claimant

Mr Adjei (instructed by counsel) for respondent

Date 27 April 2024

JUDGMENT

[1]The Claimant’s claim was issued out of time, but it was just and equitable to proceed to hear it within the meaning of s. 123 of the Equality Act.

[2]The claim proceeds in accordance with the Case Management Order of even date.

REASONS

[1]Background1.1 By a claim form received by the tribunal on 19 January 2023, the Claimant brought complaints of discrimination on the grounds of race.

1.2 The Claimant had contacted ACAS on 12 December 2022 and been issued with his Certificate on 11 January 2023.

1.3 The Claimant had also brought the claim against JSA Group Limited t/a Workwell Solutions as a second respondent, but that claim was rejected by the tribunal on 20 February 2023 because he had not complied with the requirement pursuant to rule 10 (1)(c) of Employment Tribunals Rules of Procedure 2013 since the claim form did not contain an early conciliation number.

1.4 The Response to the claim was received on 20 March 2023. The Respondent deployed a number of arguments;1.4.1 That the Claimant was not an employee or worker of the Respondent on or at the material times and was not, therefore, able to rely on the standard ‘employment’ provisions in the Equality Act 2010. It had made no admission as to whether or not he was a contract worker pursuant to section 41;

1.4.2 Whilst it was accepted before the Regional Employment Judge in August that the Respondent had terminated the arrangement, whatever it was, due to the Claimant’s dual nationality and security issues (see paragraph 56.6), it contended that it did not contravene the Act since any purported treatment that was taken had been for the purpose of safeguarding national security and it therefore acted in accordance with s. 192 of the Act and proportionately for that purpose;

1.4.3 In the alternative, the Respondent further sought to rely on paragraph 1 of Schedule 23 of the Act which provided that there would have been no contravention of the Act if any action that was taken had been in order to comply with a requirement imposed by the Government by virtue of an enactment in pursuance of arrangements made by or with the approval of a Minister of the Crown or a condition imposed by such a Minister;

1.4.4 In the further alternative, the Respondent relied upon the occupational requirement defence within Schedule 9, paragraph 1.

1.5 The Respondent’s contentions were that, under its contract, called ‘UK Submarine’, one of the key security requirements was the need to obtain prior authorisation if it proposed to employe or engage staff who were not UK nationals, including those with dual nationality, like the Claimant. It said that it was required to obtain prior approval from the Ministry of Defence and its customer for the employment/engagement of such individuals. The Respondent said that it rarely sought to obtain such authorisation as it was aware that it was only ever provided in exceptional circumstances. It was also a lengthy process.

1.6 As part of the Respondent’s onboarding procedure, it had required the Claimant to complete its Baseline Personnel Security Standard (“BPSS”), which was the lowest level of security clearance required for all personnel working across the Babcock International Group and which provided confirmation of an individual’s right to work. He was also required to obtain a DBS clearance and provide his employment record for the past 5 years and references. The Respondent’s case was that a BPSS clearance would not have identified suitability for an individual's ability to work on a particular programme, nor would it have confirmed that an individual was or was not authorised and met the requirements of a programme.

1.7 The Respondent argued that it had asked Expleo, the recruiters it used, to only source individuals who met the criteria under the Contract. On commencement of the Claimant’s assignment with the Respondent, it said that it believed that he had met all of the necessary criteria, including having the required security clearance and being a UK national.

1.8 On or around 10 August 2022, however, one of the Respondent’s employees recognised the Claimant as they had worked together in previous employment for Rolls Royce. What that person said to Mr Kelley (Senior Mechanical Engineer), caused him to investigate the Claimant’s background. In the first instance, he checked the Claimant’s CV to confirm if he had previously worked for Rolls Royce. As part of those investigations, the Respondent’s case was that it was then discovered that the Claimant had previously studied in Turkey which led to the discovery of dual nationality.

1.9 Accordingly, the Respondent said that, on or around 11 August 2022, it informed Expleo that the Claimant could not continue to be assigned to the Contract and his assignment was terminated with immediate effect.

1.10 A Case Management Preliminary Hearing took place before Regional Employment Judge Pirani on 31 August 2023 at which the issues were clarified, agreed and recorded and this Preliminary Hearing was listed to determine the sole issue of whether the claim had been issued in time and, if not, whether it was just and equitable for it to proceed.

Introduction

[2]Evidence and factual findings2.1 The Claimant gave evidence. The Respondent called Mr Driscoll, Head of Engineering Discipline, and Mr Kelley, Engineering Lead, to give evidence.

2.2 A bundle of relevant documents was produced (R1), pages numbers to which have been referred to in square brackets below. Mr Adjei also produced a Skeleton Argument (R2), a Cast List and a Chronology (R3).

2.3 The Claimant said that he was engaged by the Respondent as a Design Engineer from 8 August 2022. He had been sourced and placed by Expleo Engineering Ltd, specialist recruiters of engineers for the sector. He was engaged through an ‘umbrella’ host organisation, JSA Group Ltd t/a Workwell.

2.4 Within the body of the Claim Form, the Claimant explained that he was interviewed and security checked for the position of Contract Design Engineer and received clearance ahead of the job commencing on 8 August 2022.

2.5 In his witness statement, he said that his BPSS check, which had completed in July, had revealed that he was British and Turkish ([72] and [75-6]). The DBS document that was supplied to the Respondent had also revealed that he had been born in Turkey and held dual nationality ([84], [87], [90] and [92]).

2.6 He then said that, during his induction process on 10 August 2022, Mr Kelley approached him and questioned his nationality. He was asked whether he was British and was told to produce his passport for it to have been checked. He produced his British passport, which Mr Kelley seemed to think was okay. Mr Kelley raised the issue with Mr Driscoll, however, and further checks were made, which then revealed his dual nationality status. Mr Driscoll then gave the instruction to Mr Kelley that he ought not to work on the Contract further.

2.7 The Claimant said that he then received a telephone call on 11 August 2022 from Mr Paszkiewicz at Expleo saying that his role had been terminated. He also received an email from Mr Kelley informing him that there was nothing further that he could have done [105].

2.8 On that basis, it was clear that the Claimant was complaining of alleged acts of discrimination by the Respondent on 10 and/or 11 August 2022. But were there later acts that could have been relied upon?

2.9 In late August, he had asked Expleo for contacts at Expleo and Babcock so that he could have issued a grievance [119]. He was advised to contact his ‘umbrella provider’ [118] and did so [149]. Workwell therefore dealt with the grievance and provided an outcome in October [125-6]. They also dealt with the appeal against [131]. The appeal outcome came on 8 February 2023.

2.10 Mr Driscoll and Mr Kelley both said in evidence that they had had no knowledge of the grievance and/or the grievance process. Mr Driscoll said that he caused enquiries to be made about whether anyone else within the Respondent had been contacted about the grievance. He checked with Mr Kelley and within HR, the Engineering Resourcing and Supply Chain Teams. He found no evidence that anyone else had been contacted.

2.11 Expleo’s Director of Commercial Contracts had also confirmed in writing that Expleo had had “no further contact with Babcock following the 11th August” [132].

2.12 The Claimant believed that Babcock had failed to co-operate with the grievance investigation. In other words, that it had taken a positive decision not to help or provide information. On the basis of the evidence presented to me, however, I accepted that it was probably the case that the Respondent had had nothing to do with the grievance investigation, outcome and/or appeal. It had not supplied information to Workwell and did not appear to have known of the process at all.

2.13 The Claimant had spoken to his union representative in late August or early September, Mr Allen (paragraph 27 of his witness statement). He said that he had only discovered the possibility of bringing a claim of discrimination from Mr Allen then. He said that he was not then advised about the time limits for such claims and had not thought to ask. Why, he said, would have asked about something about which he had no knowledge?

2.14 He initially intended to see the grievance process out but, since it had gone on so long, he decided to issue his claim in January. He was not trying to meet any time deadline, he said. He still had not known of the limitation period. He only found out much later, well into the litigation process itself.

[3]Relevant principles3.1 Under section 123 of the Equality Act 2010 a complaint of discrimination may not be brought after the end of the period of three months starting with the date of the act to which the complaint relates (s. 123 (1)(a)). For the purposes of interpreting this section, conduct extending over a period is to be treated as done at the end of the period (s. 123 (3)(a)) and this provision covers the maintenance of a continuing policy or state of affairs, as well as a continuing course of discriminatory conduct.

3.2 Should a claim have been brought outside the three month period, it was nevertheless possible for a claimant to pursue it if the tribunal considered that it was just and equitable to extend time (s. 123 (1)(b)). There was no presumption in favour of an extension. The onus remained on a claimant to prove that it was just and equitable to extend time and, if he/she advanced no case in support of an extension, he/she would not be entitled to one (Rathakrishnan-v-Pizza Express

[2016] ICR 23

and Moray Hamilton-v-Fife Council

UKEATS/0006/20/SS

3.3 Time limits were not just targets, they were ‘limits’ and were generally enforced strictly. A good reason for an extension generally had to be demonstrated (Robertson-v-Bexley College

[2003] IRLR 434

, CA), albeit that the absence of one would not necessarily be determinative. A tribunal was not bound to refuse an extension in the absence of an explanation having been provided for the delay, but such an absence was undoubtedly a relevant consideration (ABMU-v-Morgan

[2018] IRLR 1050

(CA), Concentrix CVG Ltd-v-Obi

[2022] EAT 149

and Owen-v-Network Rail

[2023] EAT 106

). Nevertheless, there must be some material upon which a tribunal can exercise its discretion in favour of the Claimant (Habinteg Housing Association-v-Holleron EAT 0274/14 and Edomobi-v-La Retraite RC Girls School EAT 0180/16, per Laing J); “In neither case, in my judgment, is there material on which the ET can exercise its discretion to extend time. If there is no explanation for the delay, it is hard to see how the supposedly strong merits of a claim can rescue a Claimant from the consequences of any delay.”

3.4 Tribunals have been encouraged to consider the factors listed within s. 33 of the Limitation Act 1980 (the Keeble factors), although it was not necessary to use the section as a framework for the approach (Adedeji-vUniversity Hospital Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

). I considered the length of and reasons for the delay, the extent to which the Claimant had sought professional help and the extent to which information, which he said that they needed, was not known by him until much later and the degree to which the Respondent should have been blamed for any late disclosure in that respect. We also had to consider whether the Claimant had dragged his feet once he knew all of the relevant information. It was thought that the touchstone, however, was the issue of prejudice; whether and to what extent the delay has caused prejudice to either side. Although certainly relevant, it was by means a determining factor (see Laing J in Miller-v-Ministry of Justice

UKEAT/0003/15

at paragraph 13).

3.5 The fact that a claimant is unaware of his or her bring a tribunal complaint is more likely to save an out of time discrimination claim than if it was an unfair dismissal claim. Although the discretion was wide, it will generally apply only where the claimant’s ignorance was reasonable (Perth and Kinross Council v Townsley EATS 0010/10). Similarly, whereas incorrect advice by a solicitor or other adviser which brings about an understandable misconception of the law is unlikely to save a late tribunal claim in an unfair dismissal case, the same is not necessarily true when the claim is one of discrimination (Hawkins v Ball and anor

[1996] IRLR 258

, EAT). In Wright v Wolverhampton City Council EAT 0117/08, for example, the EAT held that incorrect advice received from a trade union official before and after the claimant had submitted discrimination claims late should not be ascribed to the claimant and that an extension of time should be granted.

3.6 I was conscious of the fact that it was rare for a claim of discrimination to be struck out on a time point at this stage of a claim. Discrimination claims are in fact sensitive and, without hearing the facts, it was said to be difficult for a tribunal to determine whether or not a claim was or was not in time unless there was ‘a succinct, and knockout point which is capable of being decided after only a relatively short hearing’ (SCA Packaging-v-Boyle

[2009] UKHL 37

[4]Discussion and conclusions4.1 According to the Respondent, the Claimant issued his claim after the expiry of the normal time limit for presenting his complaint. The time limit in respect of the last matter about which he complained (11 August 2022), lapsed on 10 November 2022, before he had contacted ACAS. He therefore did not get the benefit of the extension of time that he would have been afforded under the early conciliation provisions and he issued the claim on 19 January 2023, over two months after time had expired. If the Respondent was right, there was therefore a succinct, knockout point on time which was capable of being determined at this stage.

4.2 The Claimant, however, considered that the Respondent had influenced or brought about Workwell’s dismissal of his grievance and/or grievance appeal either by influencing it or by its positive inaction and/or failure to cooperate (paragraphs 44 and 55 of Regional Employment Judge Pirani’s Case Summary).

4.3 I concluded that the Respondent had had no involvement in that process. Mr Driscoll and Mr Kelley had had no knowledge of the grievance and were not asked to contribute to it. Mr Driscoll found no evidence of anyone else within the Respondent having been contacted.

4.4 Accordingly, the last act that the Respondent took against the Claimant had been in 10 or 11 of August when it required Expleo to terminate the Claimant’s engagement which was, of course, the decision at the heart of the case. The claim was therefore issued out of time for the reasons set out in paragraph 4.1 above.

4.5 Was it just and equitable to extend time to allow it to continue despite the delay?

4.6 The following factors were relevant;4.6.1 The period of delay; the delay was not excessive. It was less than 10 weeks;

4.6.2 The Claimant had not just sat on his hands. He had challenged the decision with his employer, Workwell, by pursuing a grievance. He had tried to have the Respondent deal with it, but had not been supplied with a contact. He had been directed to Workwell instead. It was difficult to blame him for his actions in those circumstances. In other words, by pursuing the grievance to its end against Workwell when that had been the only avenue offered to him. He had not, however, waited for its conclusion before issuing;

4.6.3 The Claimant had sought help from Mr Allen at the Union. Whilst it was surprising that he had not been given advice about the relevant limitation period, there was no reason to doubt what the Claimant had said in that respect;

4.6.4 It was true that the Claimant had delayed further even after the ACAS Certificate had been received, but that was consistent with his evidence that, even then, he had known of the limitation date. He is an intelligent man and there is plenty of widely available information which would have helped him in relation to the limitation date, but he had taken advice from his union and that was a reasonable thing to have done in the circumstances;

4.6.5 The evidence did not appear to have been materially affected by the delay; Mr Driscoll, Mr Kelley and the Claimant seemed able to recall the material events and the documentation appeared to have been preserved. Mr Adjei had candidly accepted that the Respondent had not suffered any forensic prejudice by the delay (paragraph 25.1, R2);

4.6.6 The claim was cogent; the prejudice to a claimant was always going to have been regarded as greater in a situation in which the treatment complained of was conceded to have been influenced by a protected characteristic. The real issues here appeared to focus upon whether the Respondent could establish any one of its defences, the strengths of which also did not appear to have been materially affected by the passage of time.

4.7 For all of those reasons, but particularly the last two, it was just and equitable to extend time to hear the substantive claim against the Respondent and the matter will proceed to a final hearing in accordance with the Case Management Order of even date.

[1]The Respondent shall pay the claimant the following sums:a. Compensation for past financial losses: £11,419.56;

b. Interest on compensation for past financial losses calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £757.86;

c. Compensation for injury to feelings: £10,000;

d. Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996: £1,333.88.

[2]By a claim form received at the Tribunal on 19 January 2023, the Claimant brought a claim against the Respondent for direct nationality discrimination under s.13 Equality Act 2010. Having heard evidence and submissions on 8 - 10 April 2024, we upheld the Claimant’s complaint and found that the exceptions under s.192, Schedule 9 para 1 and Schedule 23 para 1(e) Equality Act 2010 did not apply. We further found there was a 40% likelihood that the Claimant would have been dismissed for non-discriminatory reasons two weeks after his employment in fact terminated.

[3]An oral Judgment and Reasons in respect of those matters were delivered on the morning of 11 April 2024. With the agreement of the parties, we moved on to hear evidence and submissions and to deliberate in relation to remedy that afternoon. However, there was insufficient time to provide an oral Judgment on remedy and so Judgment was reserved. Issues

[4]The Claimant confirmed he was not seeking a recommendation and nor did we consider this was a case where one would be suitable. The Respondent did not suggest this was a case where a declaration alone would be appropriate, and we did not consider it was such a case given the Claimant had suffered loss. Therefore, the issues we had to consider were limited to the amount of a financial award. The issues for us to determine were as follows:a. What financial losses has the discrimination caused the claimant? It was agreed that the Claimant’s net weekly remuneration in respect of the engagement with the Respondent was £924.97.

b. Has the claimant taken reasonable steps to mitigate his loss? If not, for what period of loss should the claimant be compensated?

c. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

d. Should the Claimant be awarded a sum for aggravated damages?

e. Did the Acas Code of Practice on Disciplinary and Grievance Procedures apply? If so: i. Did the Respondent unreasonably fail to comply with it? ii. If so, is it just and equitable to increase any award payable to the claimant? iii. By what proportion, up to 25%?

f. Should interest be awarded? How much? Procedure, documents and evidence heard

[5]We were provided with a Remedy Bundle which ran to 87 pages (this was in addition to the bundle and witness statements which we had already been provided with at the start of the liability hearing). The Claimant relied on a Schedule of Loss claiming £84,789.18. This comprised compensation for loss of earnings and injury to feelings. He also indicated in his witness statement that he was seeking compensation for aggravated damages and an Acas Uplift. The Claimant gave oral evidence and both the Claimant and Respondent’s counsel made oral submissions. Findings of fact in relation to remedy

[6]The Claimant’s engagement with the Respondent started on 8 August 2022 and ended on 11 August 2022. He had been sourced and placed with the Respondent by Expleo Engineering Ltd (‘Expleo’), specialist recruiters of engineers for the sector. He was engaged through an ‘umbrella’ employment agency, JSA Group Ltd t/a Workwell (‘JSA’).

[7]Prior to his engagement with the Respondent, the Claimant worked for Siemens Energy from June 2020 until June 2021 as a DFM Engineer. From August 2015 until May 2020, he worked for Rolls Royce as an NPI Engineer and prior to that for GE Aviation. Most of his experience was as an engineer in the aero / aero derived energy engines industry.

[8]Between June 2021 and 8 August 2022, the Claimant was not working because he had been unable to find a job. During that period, he had been seeking a job as a mechanical engineer in different industries but had been unsuccessful in obtaining one.

[9]The Claimant lived in Gloucester before and during his engagement with the Respondent and still lives there. He has lived in Bristol in the past.

[10]We were provided with documentary evidence which showed that the Claimant had applied for various engineering roles after his engagement with the Respondent ended. The number of jobs applications per month which are evidenced by the documents are as follows:a. August 2022 – 3

b. September 2022 - 0

c. October 2022 - 0

d. November 2022 - 0

e. December 2022 - 1

f. January 2023 – 5

g. February 2023 – 3

h. March 2023 – 3

i. April 2023 – 0

j. May 2023 – 4

k. June 2023 – 0

l. July 2023 – 3

m. August 2023 - 0

n. September 2023 - 0

o. October 2023 – 5

p. November 2023 – 4

q. December 2023 – 5

r. January 2024 – 4

s. February 2024 – 4

[11]The Claimant’s evidence was that in addition to those for which he could provide documentary evidence, he applied for ‘many’ more jobs. He explained that when he applied directly on a company’s web page, many did not send a confirmation or just called him straight away to either invite him to an interview or speak to him about the application. He noted that each week he had to go to Universal Credit appointments and explain what he had been doing to look for a job.

[12]We accept that there may have been a few applications that the Claimant made for which there is no documentary evidence because, as he suggests, he applied directly via a company website and heard nothing about the role in writing. However, we accept the Respondent’s case that it would have been relatively uncommon that there would be nothing in writing to either indicate that an application had been made or the outcome of that application.

[13]We also accept, as the Respondent suggested, that it is unlikely that the distribution between those applications for which there was documentary evidence and those for which there was not, would vary much from month to month. For example, we consider it is unlikely that in August 2022 and January 2023 there would be 3 / 5 applications that could be evidenced with documents but that there would be nil which could be evidenced with documents between September – December 2022 if the Claimant had applied for the same or a similar number of jobs.

[14]Accordingly, while we accept that there might have been some applications with no paper trail that were additional to those listed above, we have concluded this would have been no more than 1-2 per month.

[15]The Claimant restricted his job search for roles that were either entirely / mainly remote, or would involve no more than 1 hr of travel from his home (each way). This included North Bristol, but not the rest of Bristol. The focus of his search has been on mechanical engineering jobs. He said, and we accept, that he did also investigate a role for a logistic company delivering packages, but he would have needed to lease or buy a van which was not feasible.

[16]The Claimant said that he was hampered by the lack of a reference from the Respondent. His evidence, which we accept, is that he reached the ‘reference stage’ of an application once in 2022 and three times in 2023. Further, that he did not request a reference from the Respondent because it was only three days of employment and he did not think he would be believed when he told potential employers that there had just been a mistake in the security vetting and was concerned it would not create a good impression.

[17]The Respondent relied on a report dated March 2024 produced by a recruitment partner that the Respondent works with (Manpower). This purports to give an overview of Mechanical Design Engineer roles from September 2022 to March 2024. We were not provided with any information about the instructions given to this company, the methodology they used, or the data relied on in the report. We therefore concluded there was limited weight we could put on the report. The most we were able to ascertain from the report is that there did appear to be a fairly steady number of Mechanical Design Engineer roles over the period the report covered (i.e., there was not a sharp decrease or increase in numbers in the relevant period). Further, it appeared that Bristol was one of the top areas for those types of jobs, which the Claimant did not challenge. We did not draw any conclusions from the report on the total number of jobs advertised during the relevant period as it was unclear if, for example, Manpower had ensured they had not double counted for the same job being advertised by more than one company. The Claimant also made the point, which we accept, that not all the jobs listed in the Manpower report would have been suitable for him in terms of his specific expertise and it is also unclear how many were in the different geographical regions that were covered.

[18]The Claimant has a wife and family and we accept therefore, that if he had to move house it would involve some disruption. He also gave evidence, which we accept, that he has a mortgage and that he would not have been able to afford the costs of relocating, or obtain a mortgage on a new house immediately if he had obtained a job in a different city.

[19]After his engagement with the Respondent was terminated, the Claimant initially spoke to Expleo about an alternative role and said he would be willing to rescind his dual-nationality, but that did not progress. Thereafter he said he did not ask Expleo for an alternative role because he had raised a grievance about his engagement with the Respondent ending. While we accept this was the reason he did not ask Expleo for an alternative role after the initial discussion, we have not seen any evidence to suggest (and do not find) that Expleo was effectively poisoned against the Claimant or would not have been willing to try to place him elsewhere because he had raised the grievance.

[20]The Claimant signed up to one other recruitment agency, but did not apply to any others because he said he did not have direct contacts in any other agencies.

[21]The Claimant tried to raise a grievance with the Respondent and asked Expleo for the relevant person to whom to raise a grievance. However, Expleo directed the Claimant to JSA. Accordingly, the Claimant did not in fact raise a grievance with the Respondent and the finding of EJ Livesey at a preliminary hearing on time limits (which has not been appealed or subject to a reconsideration application) was that the Respondent had nothing to do with the grievance investigation, outcome and / or appeal and did not appear to have known of the process at all.

[22]We accept the Claimant’s evidence (which was not challenged) that after the engagement ended, he started to feel depressed and stressed and suffered from some anxiety and insomnia in the first months. Further, that this increased when he had to deal with the grievance and appeal. He also suffered a panic attack on 21 August 2023, which led him to call an ambulance. At around the same time he had a young baby and his partner was pregnant again. His partner became ill during her pregnancy and the Claimant had to take her to hospital: he said this did have a psychological impact but he was still able to look for a job during that time. The Claimant’s evidence was that his wife’s midwife kept checking whether he had obtained a job which gave rise to feelings of inadequacy and stress that he could not provide for his family.

[23]In his witness statement the Claimant said that what made the situation ‘even more bitter’ was his belief that the situation had involved Ms Bartholomew slandering him and that she had an intention to destroy his reputation and career. In both the liability part of the hearing and in the remedy hearing, the Claimant was very focussed on his perception of Ms Bartholomew’s involvement and was clearly very upset by that. It was put to him that the vast majority of his hurt feelings were caused by his perception of Ms Bartholomew’s involvement, which the Claimant denied, he said that finding out about her involvement was a shock, but he was also very upset by what happened as part of the grievance and appeal process.

[24]We find that the Claimant was very upset by his perception of Ms Bartholomew’s involvement and by how the grievance was dealt with, but he also became upset in evidence when he talked about the impact of having gone through the process of becoming a UK citizen, which was onerous, and then effectively being treated as a ‘non-UK national’ by the Respondent. We also accept that he suffered stress and upset as a result of losing the engagement when he had already been out of work for some time and at a time when his young family was growing, and he wanted to be able to provide for them.

The Law

[25]Pursuant to s.124 Equality Act 2010:(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may— (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 complainant; (c) make an appropriate recommendation.

(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate. … (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119.

[26]S.119 provides: … (2) The county court has power to grant any remedy which could be granted by the High Court—(a) in proceedings in tort;

(b) on a claim for judicial review. … (4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis). …

[27]It is for an employer to show that a claimant has acted unreasonably in failing to mitigate their financial loss and the Tribunal should not apply too demanding a standard to the victim of a wrong (Cooper Contracting Ltd v Lindsey

UKEAT/0184/15

[28]An award for injury to feelings should compensate for the employee’s injury rather than seek to punish the tortfeasor (Prison Service v Johnson

[1997] IRLR 162

[29]When assessing injury to feelings it is necessary to consider what injury to feelings has been caused by the discriminatory act, as opposed to a nontortious reason (Coleman v Skyrail Oceanic Ltd

[1981] IRLR 398

). Where there are multiple causes of injury some of which are tortious and some which are not, Tribunals should try to identify a rational basis on which the harm suffered can be apportioned between a part caused by the employer’s wrongdoing and a part which is not so caused (BAE Systems (Operations) Ltd v Konczak

[2018] ICR 1

at para 71 - 72).

[30]In the case of Vento v Chief Constable for West Yorkshire Police (No2)

[2003] ICR 31

the Court of Appeal identified three broad bands of compensation for injury to feelings award: the lower band for less serious cases, the middle band for serious cases that did not merit an award in the upper band and the upper band for the most serious cases. In accordance with the Fifth Addendum to the Presidential Guidance in respect of ‘Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd

[2017] EWCA Civ 879

’ in respect of claims presented on or after 6 April 2022, the Vento bands should be as follows: a lower band of £990 to £9,900 (less serious cases); a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band); and an upper band of £29,600 to £49,300 (the most serious cases), with the most exceptional cases capable of exceeding £49,300.

[31]A summary of the law in respect of aggravated damages is given by Underhill J in Commissioner of Police of the Metropolis v Shaw

[2012] ICR 464

at paras 13 - 28. At para 22, he notes the circumstances attracting an award of aggravated damages fall into three categories relating to:a. the manner in which the wrong was committed – where the act of discrimination was done in a ‘high-handed, malicious, insulting or oppressive manner’ (Broome v Cassell & Co Ltd

[1972] AC 1027

);

b. motive – where the conduct is based on prejudice or animosity or is intended to wound;

c. subsequent conduct – where the case at trial or after the act of discrimination is ‘unnecessarily offensive’.

[32]Aggravated damages should only be awarded to the extent that the relevant conduct increased the injury to a claimant’s feelings (HM Prison Service v Salmon

[2001] IRLR 425

, EAT).

[33]Pursuant to s207A Trade Union and Labour Relations (Consolidation) Act 1992 in proceedings which are listed under Schedule A2 of that Act (which includes claims under the Equality Act 2010): (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

[34]In Rentplus UK Ltd v Coulson

[2022] EAT 81

, HHJ Tayler, said as follows (para 19): Section 207A TULR(C)A can be broken down into a number of components, although there is, no doubt, some degree of overlap between them, and it is always important to consider a statutory provision as a whole:a. Is the claim one which raises a matter to which the Acas Code applies

b. Has there been a failure to comply with the Acas Code in relation to that matter

c. Was the failure to comply with the Acas Code unreasonable

d. Is it just and equitable to award an uplift because of the failure to comply with the Acas Code and, if so, by what percentage, up to 25%

[35]The ‘Acas Code of Practice on disciplinary and grievance procedures’ provides that the Code is designed to ‘help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace.’ Further, that: ‘Grievances are concerns, problems or complaints that employees raise with their employers.’

[36]Pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 a Tribunal may make an award of interest on sums awarded in discrimination cases. The rate of interest provided for under Reg 3(2) is currently 8%. For injury to feelings awards, it should be calculated from the date of the act of discrimination complained of ending on the day on which interest is calculated by the Tribunal (Reg 6(1)(a)). For awards for past financial loss, interest is awarded from the date half way between those two dates. Different dates can be used if there would otherwise be ‘serious injustice (Reg 6(3)). Conclusions What financial losses has the discrimination caused the claimant?

Conclusions

[37]It was agreed that the Claimant’s net weekly remuneration when he worked with the Respondent was £924.97. The Respondent’s counsel made the point that the Claimant’s original engagement was for six months with a possibility of further work. However, in submissions he said he was not in a position to aver it would have ended after six months and the Respondent led no evidence to suggest that the Claimant’s engagement would have in fact ended after six months. For example, they did not provide evidence suggesting that the Claimant’s replacement had only worked for them for six months. In those circumstances we consider any reduction for the possibility that the role would have ended after six months in any event would be too speculative and this was not, in any event, actively pursued by the Respondent. Accordingly, we consider that the Claimant’s net income from the Respondent up to the date of trial would have been £924.97 per week but for the termination of his engagement.

[38]In that period his unchallenged evidence was that the only sums he received were a notice payment of £2,776.61 and Universal Credit payments. The Claimant’s Schedule of Loss provided that as of 12 February 2024 he had received £8,656.90 in Universal Credit payments. The Claimant’s evidence was that he did not immediately start receiving payments for Universal Credit because in September he was paid his notice pay. However, after that time he had received Universal Credit throughout. We were not provided with a breakdown of the monthly sum received in respect of Universal Credit. Therefore, we have calculated the monthly average payment based on the information provided about the period for which it was paid and the total sum received. Starting from 1 October 2022 until 12 February 2024 there are 16 complete months when the Claimant received a Universal Credit payment. This is an average of £541 per month. We therefore find that from October 2022 onwards the Claimant received an average of £541 per month in Universal Credit (£124.85 per week). Has the claimant taken reasonable steps to mitigate his loss?

[39]We conclude that the Respondent has shown that the Claimant has acted unreasonably in failing to mitigate his loss. In particular, we have concluded that the following was unreasonable.

[40]First, failing to apply for more jobs: Even taking account of our finding that the Claimant may have applied for 1-2 jobs a month that were not reflected in the documentary evidence, this still means that the number of jobs he applied for overall was very low. We have found that the evidence suggests there were a fairly steady number of mechanical engineering jobs over the relevant period and in some months the Claimant applied for 6-7 jobs (taking account of those for which there is no documentary evidence). Yet in other months, for example September – December 2022, without good explanation the Claimant at most applied for 1-2 jobs.

[41]Second, restricting the geographical scope of his search to within one hour travel of his home: We accept that for a period of two months it was reasonable for him to see if he could find a job that was either predominantly remote or within one hour drive of his home. However, we are of the view that when he did not secure such a role within that period, in was unreasonable not to have expanded his search, in particular to include the whole of Bristol. This is particularly in the context of the Claimant having been unemployed for over a year prior to his very brief engagement with the Respondent. In those circumstances the Claimant was aware that it would be very difficult for him to obtain a suitable role within the parameters he had been looking, and we consider this should have led him to broaden his search more quickly than might have been the case if he had not previously had difficulties getting a role. We accept that the Claimant would not have been in a position to immediately relocate for a job that was further away. However, in the circumstances we are of the view that it was unreasonable for the Claimant not to be willing to initially undertake a longer commute and then move in due course. We also accept that this would have been disruptive for his family, but note that the Claimant had previously lived in Bristol and also consider that given the length of his period of unemployment (save for the short period of engagement with the Respondent), it would have been a reasonable step to relocate in order to secure a new role.

[42]Third, failing to ask Expleo for a new role (after the initial request) and / or only signing up with one other recruitment agency: For the reasons given above, we do not find that Expleo was poisoned against the Claimant and do not consider it was reasonable for him to have reached that conclusion or failed to ask Expleo to obtain a different role for him given that the reason the engagement with the Respondent was terminated was outside of his control. We also consider it was unreasonable for him only to sign up with one alternative recruitment agency: we do not accept that the fact that he did not have personal contacts with others was a reasonable basis to restrict himself in that manner.

[43]Finally, restricting the type of work he searched for: Again, we accept that it was reasonable for the first two months after his engagement ended for him to try to find a similar role with a similar salary. However, in light of the difficulties that he had already experienced seeking employment, we consider that after that period it was unreasonable for him not to seek other types of work, even if it was lower paid. The only reference that the Claimant made to doing so, was looking into delivery work. While we accept he was not in a position to do this kind of work without a van, we consider failing to look for other options was unreasonable. If not, for what period of loss should the claimant be compensated?

[44]We have concluded that if the Claimant had taken reasonable steps (as outlined above) to obtain alternative employment, he would have either:a. been able to secure a job with earnings equivalent to that which the Respondent had paid him within 6 months; or

b. would have been able to obtain a lower paid job within a few months of dismissal and either been promoted or moved on to a higher paid job some months later, such that his losses would only have equated to 6 months loss of the earnings he received with the Respondent.

[45]In reaching that conclusion we have considered all the relevant circumstances.

[46]These include that the Claimant did not have a recent reference for a longterm role and his role with the Respondent was terminated. We accept that a gap in the Claimant’s CV prior to the engagement with the Respondent may have affected some potential employer’s view of his application. However, we do not consider that this is a case where the way in which the Claimant’s engagement with the Respondent ended or its short duration would have given rise to particular ‘stigma’. The Claimant was not dismissed for misconduct: on any account the employment was terminated for a reason outside of his control and he did not put forward any evidence to suggest that the Respondent would not have confirmed as such if he had asked for a reference. In those circumstances we do not accept it was reasonable not to request a reference from the Respondent if one was needed. The Claimant could have also asked for a reference from a previous employer if needed. We note that despite the lack of a recent reference, the Claimant had been able to secure the role with the Respondent in August 2022 and so we do not consider the lack of a recent reference from a long-term job would have prevented him from getting a role in the industry.

[47]We also take into account that it took the Claimant over a year to find the job with the Respondent. However, the year to find the engagement with the Respondent was in circumstances where he had been looking for jobs within narrow search parameters (in terms of geographical location and type of role). We therefore do not conclude that it would have taken him the same period had he taken reasonable steps to mitigate his loss.

[48]In support of our conclusion that with reasonable steps he would have been able to fully mitigate his loss within six months we further note the evidence of there being a steady level of jobs in mechanical engineering, that Bristol was one of the top areas for those types of jobs and that the Claimant did get through to reference stage in 4 roles, despite the low number of jobs he applied for in some months and his narrow search parameters. Further that in some months he did apply for 6-7 roles (including 1-2 for which he provided no documentary evidence) and so it appears that if he had made similar efforts consistently there were likely to be plenty of jobs he could have applied for. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

[49]We have set out above our findings in respect of the injured feelings that the Claimant suffered after his engagement ended. We are of the view that there are three components to this which can be rationally divided: the stress, upset and anxiety he suffered from due to his engagement being ended by the Respondent (i.e., the discrimination); the upset and panic he suffered due to the way in which his grievance and appeal were dealt with; and, the additional upset that he suffered later when he discovered the involvement of Ms Bartholomew. While the effects of these different causes did overlap in time, we consider they are properly separable as the Claimant described particular increases in / different symptoms as a result of the latter two matters at the point they happened or he became aware of them.

[50]In respect of the injury to feelings caused by the discrimination, we do take the view that they were more than minor. As set out above, we find the Claimant was upset by being classed as a ‘non-UK national’ having gone through the steps he had to obtain citizenship and by losing the engagement he had obtained after being out of work for a long period and when he had a young family who he wanted to provide for. We accept that due to the termination of his engagement he suffered some depressive feelings, felt anxious and experienced interference with his sleeping in the first few months after the engagement was terminated and that thereafter he continued to sometimes feel stressed and have feelings of inadequacy. We also accept that this period coinciding with his partner being pregnant and ill meant those feelings may have been heightened.

[51]The Claimant claimed his award for injury to feelings should be in the middle Vento band (specifically £25,000). The Respondent argued it should fall in the upper part of the lower band or very bottom of middle band.

[52]We have concluded that an appropriate award is £10,000. While the termination of the Claimant’s employment was a one-off act, it amounted to a dismissal, and we consider that the level of the injury to feelings he experienced meant that it merits an award in the middle band. However, we have concluded an award at the bottom end of the band is appropriate because the main injury caused by the discrimination (as opposed to the other matters) lasted for a relatively short period of time and was of limited severity. In our view this is unsurprising given that the engagement itself had only lasted a few days, and therefore the injury to feelings in it ending was likely to be less than it might have been had a longer employment been terminated as an act of discrimination. Should the Claimant be awarded a sum for aggravated damages?

[53]The Claimant confirmed that the basis on which he was seeking an award for aggravated damages was as set out in his witness statement, namely:a. Ms Bartholomew’s actions in telling the Respondent the Claimant had been dismissed from his previous employment and escorted off site;

b. the Respondent’s failure to apologise for their actions;

c. the Respondent ignoring the grievance and appeal process.

[54]We do not consider any of these amount to the circumstances in which an award for aggravated damages would be engaged (see Shaw above).

[55]While, as per our findings on liability, Ms Bartholomew’s information was the context in which the Claimant’s dual nationality was discovered by Mr Driscoll, she did not make the decision to terminate the engagement. The act of discrimination which the Claimant made his claim about (the decision to terminate his engagement) was not, we find, done in a high-handed or malicious or oppressive etc., manner or with the motive of injuring the Claimant. On our findings Mr Driscoll made the decision he did because he genuinely believed that was what was required by way of the Security Aspects Letter governing the project the Claimant had been engaged to work on.

[56]Further we do not find that the Respondent’s subsequent conduct was ‘unnecessarily offensive’. As set out above, in reaching his Judgment in respect of time limits (dated 23 January 2024) Employment Judge Livesey made a finding that the Respondent had nothing to do with the grievance investigation and did not appear to have known of the process at all. Accordingly, the Respondent did not ignore the grievance and appeal process: it was unaware of it. Further, the Respondent was entitled to defend the claim the Claimant brought and in circumstances where it was averring that it had set out a legal basis for considering the termination did not amount to discrimination notwithstanding that we did not find for the Respondent, we do not find that a failure to apologise was unnecessarily offensive. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

[57]The Claimant’s case was that the failure to engage with his grievance and appeal was a breach of the ACAS Code of Practice. However, as per our findings above, although he enquired with Expleo about raising a grievance with the Respondent he did not in fact do so because Expleo directed him to JSA. Further, per Employment Judge Livesey’s findings the Respondent did not know about that grievance.

[58]Accordingly, our conclusion is that the ACAS Code of Practice did not apply and / or the Respondent did not unreasonably fail to comply with it. Should interest be awarded? How much?

[59]The Respondent’s counsel indicated that there was not a basis on which he was inviting us to decline to award interest. We have concluded an award of interest is appropriate in this case and have awarded interest at the level of 8% in accordance with Reg 3 cited above.

[60]The day of calculation is 11 April 2024, the date of the act of discrimination complained of is 11 August 2022 (when the engagement was terminated). The mid-point date is 13 June 2023. Calculation

[61]We have calculated the award as follows: Financial Losses Period 1 11/08/2022 to 25/08/2022 Weeks: 2.00 Weekly net pay: £924.97 Loss during period 1: £1,849.94 Less notice pay received: -£1,849.94 Total Period 1: £0.00 Period 2 26/08/2022 to 11/02/2023 Weeks: 24.14 Weekly net pay: £924.97 Loss during period 2: £22,331.42 Less: Remainder of notice pay: £926.67 Universal credit: Period 01/10/2022 to 11/02/2023 Weeks: 19.00 Weekly Universal Credit: £124.85 Sub-total Universal Credit: £2,372.15 Less total sums received: -£3,298.82 Sub-total: £19,032.60 Prospect engagement would have ended in any event: 40% Total Period 2: £11,419.56 Total compensation for financial loss: £11,419.56 Interest on financial loss Period 13/06/2023 to 11/04/2024 Years: 0.83 Annual interest rate: 8% Total interest rate: 6.64% Total interest on financial loss: £757.86 Injury to feelings £10,000.00 Interest on injury to feelings award: Period 11/08/2022 to 11/04/2024 Years: 1.67 Annual interest rate: 8% Total interest rate: 13.34% Total interest on injury to feelings: £1,333.88 TOTAL AWARD (inclusive of interest)* £23,511.30 *Because this award is under £30,000 and is a payment made in connection with the termination of his employment under s.401 Income Tax (Earnings and Pensions) Act 2003, it will not be subject to deductions for tax or national insurance. JUDGMENT having been sent to the parties on 18 April 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

FINDINGS OF FACT

[62]Mr Driscoll said that the entire reason the Claimant’s engagement was terminated was the Claimant’s dual nationality, which he considered was inconsistent with the requirements of the SAL for the Contract. We find that this was the complete reason for the termination. Although the Claimant was concerned about the involvement of Jay Bartholomew in raising what he considered were false reports about his former employment, we have not seen any evidence to refute the credible account of events put forward by Mr Driscoll explaining those reports were just the context for him being made aware of the Claimant’s dual-nationality. We accept his evidence as to why and in what context the engagement was terminated.

[63]The Claimant went through JSA’s grievance and appeal process; his grievance was not upheld. Dual nationality and the rules under the SAL

[64]The Respondent’s case is that the requirement in the SAL in section 2(b) that the Respondent not permit anyone who is ‘not a UK National’ to access ‘such information or assets’ and that ‘non UK nationals’ not be allowed access to the shipyard (i.e., Production Facility) amounted to a requirement that an employee with access to such information / the Production Facility must be a sole UK National (i.e., not of dual nationality) unless there was preauthorisation from the Customer.

[65]The Claimant’s position is that he is a UK national and that neither the SAL nor anything else says that the requirement is for someone to be a sole UK National.

[66]We find that the requirement in the SAL was that employees such as the Claimant who would be accessing the relevant information / assets and Production Facility must be a UK National. However, that there was no requirement that they have sole UK Nationality or, put it another way, that they not have another nationality.

[67]In reaching that conclusion we carefully considered the arguments and evidence of the Respondent.

[68]We note that the Expleo proposal for the role said that ‘nationality is to UK only to give flexibility on project tasking’, but that is the only place in the documents where the expression ‘UK only’ is used and in any event it is a document produced by Expleo, rather than the Customer. In the email of 19 July 2022, Expleo says ‘UK nationality’ rather than ‘UK only’ and no one from the Respondent responds to say the requirement is ‘UK only nationality’ or non-dual national.

[69]In their witness statements, Mr Driscoll and Mr Cunningham both say that the provision in Section 2(b) of the SAL precludes dual nationals.

[70]In oral evidence, when asked by the Judge where that understanding came from, Mr Driscoll said it was his working knowledge. When questioned further on what he meant, he said it was information he had been told by colleagues over time, but that he could not reference a location for where that information came from. Mr Driscoll said, and we accept, that he did check at the time with the Respondent’s Security Team who also told him that the provision meant no dual nationals.

[71]Mr Cunningham, who is the Respondent’s Security Director, when also asked by the Judge where his understanding came from as to the meaning of the provision, said that the D0 Contract was one of approximately 150+ within his part of the Respondent. He said that across all those contracts they used terms of ‘nationality’ in different ways for example, ‘sole UK’ or ‘non-UK’. He said that what experience had taught him was that when they were talking about nationality, he would clarify on a case by case basis with the contracting entity if there was confusion. He said there was not a consistent approach, which is why they could clarify. He said that in this case he did not believe they had clarified due to the immediate need for the work to be done. In his experience it would take around 2-3 weeks to get a response on clarification. When asked whether the response in the past on what ‘UK nationality’ means was different, he said that each contract would be quite different and it depended on the nature of the contract: some contracting authorities say absolutely no dual nationals and no foreign nationals.

[72]In closing submissions, the Respondent put emphasis on question 2.5 of the annexe to the SAL, which is part of a section asking questions about ‘Supplier Employees’. As set out above, 2.5 says: ‘Are there any employees who are Non-UK or Dual nationals?’, to which the Respondent answered ‘Not engaged on this contract’. Mr Adjei invited the Tribunal to conclude that this question was asked to ensure that ‘R was complying with the contractual requirements’. We do not accept this follows. Mr Cunningham in evidence said he thought the question at 2.5 provided some clarity in the absence of a formal response explaining what ‘non UK nationals’ means in this SAL. However, he went on to say that he thought the form was for the purpose of the Customer building a risk picture of working with the Respondent so they can understand where the risks are in the supply chain. The question itself is not specific as to whether there are any dual nationals working in the shipyard or on the relevant assets (so as to mirror the contractual provision), it is a more general question about the entire workforce, which would be consistent with it being to build a risk picture rather than confirm contractual compliance. A secondary point is there is also a separate question asking for confirmation that personnel meet nationality requirements, which supports our conclusion that is not the purpose of asking 2.5.

[73]Mr Adjei also argued that only the Respondent’s interpretation of ‘UK nationality’ (i.e., excluding dual nationals) was credible because otherwise it would mean that a dual national whose second nationality was that of a nation with whom UK had difficult or hostile relations such as Russia, China or Iran would be able to have access to the assets or classified documents. We recognise the point being made, but are of the view that if the MOD considered that the security risk of any dual nationals having access to the material was in and of itself so high it could have simply stated in the Tier 1 SAL (which we accept would be mirrored by the Tier 2 SAL) i.e., that only those with sole UK nationality or non-dual nationality could have access. We also note that employees were required to have BPSS clearance to access ‘Official-Sensitive’ material and a minimum of ‘SC’ to access ‘Secret’ material, so nationality was not the only requirement restricting access. Dual nationals, as the Claimant pointed out, have to go through an extensive process to obtain UK citizenship and can in many instances, relinquish their other nationality fairly easily. On the Respondent’s interpretation someone who had Russian / British dual nationality and relinquished the former just before starting with the Respondent could fulfil the condition. We do not consider it is self-evident, and the Respondent has not offered any evidence to support the proposition, that dual nationals pose a greater risk to national security than people who are, for example, now sole UK nationals. We also note that the Respondent has taken on two foreign nationals to work on the contract, albeit with pre-authorisation, which also suggests that in and of itself holding a none-UK nationality will not always create a security risk. We therefore do not consider it is self-evident that for reasons of national security the words ‘UK national’ in the SAL should be read as ‘sole UK national’.

[74]Further we are of the view that the following supports the Claimant’s interpretation of the requirement.

[75]First, on a plain English interpretation of the provision i.e., restricting ‘non UK nationals’ and people who are ‘not a UK national’, the requirement in our view is to be a UK national, which the Claimant was. It does not say UK nationality need be ‘sole’ or ‘non-dual’. If such a restriction was important for reasons of national security, we consider it is very surprising that it would not be explicitly included.

[76]Second, no documents were put before the Tribunal to support the Respondent’s interpretation. For example, a Governmental policy supporting the interpretation or a letter from the Customer (obtained at the time or afterwards) confirming that dual nationals were barred by those words.

[77]Third, Mr Cunningham accepted that the meaning varied from contract to contract and so although Mr Driscoll’s evidence was that he had understood from others that ‘UK national’ means ‘sole UK nationals’ it was not the case that there was an established industry standard way of understanding those terms which excludes dual nationals.

[78]For completeness we should note that we were taken by the Respondent to a Guardian article dated 15 June 2023 which referred to the chief executive of Rolls Royce, Tufan Erginbilgic, being unable to access ‘top secret’ UK government documents relating to its submarines because he holds British and Turkish citizenship (according to sources). It reports that Rolls Royce works on Vanguard submarine vessels. It says that ‘UK eyes only’ documents are typically marked ‘UK secret’. It also reports that ‘It is understood Erginbilgic has clearance to access the site, which is only open to UK citizens’. We did not consider this took us much further. We do not have access to the SAL in place in respect of the relevant contract or to the ‘Whitehall security protocols’ referred to and do not know if they use the same expressions i.e., non-UK nationals or if the refer explicitly to ‘sole UK nationals’ or ‘non-dual UK nationals’. Or what definition is given therein to ‘UK eyes only’, we note that he could apparently access the site which was apparently only open to ‘UK citizens’.

[79]Similarly, we were taken by the Claimant to a job advertisement for a ‘Contingent Senior Mechanical Engineer’ to work on various submarines for the Respondent, which the recruiter confirmed could be applied for by someone who is a dual national. The Respondent’s witnesses were not taken to this advertisement and we do not have the SAL for that role available to us. We do not consider that the fact that a different role allowed dual nationals took us further in interpreting the provisions of the SAL in the Contract with which we were concerned. Provisions in the Tier 1 / Tier 2 SAL

[80]We were not provided with the Tier 1 SAL for the Contract (between the MOD and the Customer), which the Respondent said it did not have access to. However, we accept the Respondent’s evidence that the access requirements in the Tier 2 SAL would mirror those in the Tier 1 SAL. We note that the Respondent has produced a Tier 1 SAL which they are a party to on a different contract with the MOD which refers to ‘UK Eyes Only’ information and says that anyone who is ‘not a UK National’ must not be permitted to access such information or assets. We note the Tier 2 SAL provides that subcontractors must be bound by the same terms and we consider that it would make sense for the Tier 1 SAL to require that Tier 2 contractors have the same security obligations as Tier 1 contractors. Therefore, we accept that the provision in the Respondent’s SAL for the Contract is, on the balance of probabilities, a requirement that ultimately comes from the MOD via the Tier 1 SAL. Authorisation for non-dual nationals

[81]Mr Cunningham’s evidence was that if the Respondent were to engage a foreign / dual-national on the D0 Contract they would need to try to obtain pre-authorisation from the Customer. For the reasons given above, we do not accept that dual-national British citizens were precluded from working on the contract. However, we have also considered the authorisation process.

[82]We accept Mr Cunningham’s evidence that the Respondent would normally only consider authorisation for permanent employees and that whether the Respondent was willing to go the “extra yard” (in his words) and make the request would depend on the nature of the job, the timeline to delivery and the criticality of the work involved.

[83]In oral evidence Mr Cunningham explained there was no internal policy about when to make those requests and there was no ‘easy answer’ as to when a Customer would be likely to authorise or not. He indicated that in the application to the Customer they would raise the ‘risk balance case’ and normally identify the urgent need and the unique skillset that the employee has. He said it would then normally take 2-3 weeks for a decision to be made by the contracting authority (i.e., the Tier 1 contractor), unless the questions had to be referred to the MOD. He said that in respect of the Claimant he would have expected the Customer to make the decision, rather than it being referred on. This evidence was not challenged and we accept it. Alternative work

[84]The Respondent’s evidence, which was not challenged and we accept, was that at the time the engagement was terminated, there were no alternative roles that the Claimant could have undertaken. SC clearance and the Claimant’s role

[85]The evidence of Mr Driscoll and Mr Cunningham is that even if the Claimant’s engagement had not been terminated when it was, he would not have been able to continue in role, because he did not have SC clearance.

[86]As set out above, we have found that the Claimant would have been required to attend the Production Facility occasionally as part of his role and that normally SC clearance is a requirement for unescorted access to the Production Facility.

[87]However, as already explained, the Respondent’s evidence is that the Security Team could give permission for someone awaiting SC clearance to access the Production Facility albeit that normally only happened for permanent employees. It was also possible for someone without SC clearance to be given escorted access. Mr Cunningham’s oral evidence is that the normal requirement for SC clearance to access the Production Facility unescorted was well known within the organisation.

[88]In the recruitment proposal by Expleo for the Claimant’s role, it said that ‘SC level clearance is preferred’ not mandatory and the job description says candidates must be in possession of full SC or ‘be eligible to obtaining SC’ [sic]. Further, in the email to various Respondent employees from Brian Maddrell, Expleo, on 19 July 2022 although it records the request was ‘we’d like SC clearance… to give flexibility on what work is assigned’ the table below that statement clearly indicates that in respect of the Claimant he had BPSS clearance ‘to go SC in first 6 months’ and there is no response to that email indicating it will be a problem despite, on Mr Cunningham’s evidence, it being well known within the organisation that SC was normally required to access the Production Facility. Further the Claimant’s lack of SC clearance was not identified in the first few days of his engagement. Mr Driscoll initially in oral evidence found it difficult to explain how it would have become apparent if the Claimant had continued in his role. However, then he explained that workers are issued with passes which are colour coded with their level of clearance, so it would become visually obvious. This was not challenged and we accept it.

[89]Our conclusions in respect of the likelihood that the Claimant’s role would have been terminated when his lack of SC clearance became apparent are set out below.

LEGAL FRAMEWORK

[90]Pursuant to Part 5 (s.41(1)(b)) Equality Act 2010 it is unlawful for a Principal (i.e., the Respondent) to discriminate against a contract worker (i.e., the Claimant) by not allowing them to continue to do work.

[91]Pursuant to s.13 Equality Act 2010, a person discriminates against another if because of a protected characteristic they treat the other person less favourably than they treat or would treat others. Nationality is a protected characteristic.

[92]In this case the Respondent admits that it treated the Claimant less favourably than it would treat others because of his dual nationality in terminating his engagement. Accordingly, we have not rehearsed the law on direct discrimination here.

[93]In those circumstances the termination of the Claimant’s engagement would be unlawful under the Equality Act 2010 unless it falls within an exception.

[94]The Respondent’s counsel position (following a question from the Judge) is that all exceptions to the Equality Act 2010 should be read restrictively, which we consider must be right in light of the approach taken by the courts in respect of other specific exceptions (for example Hampson v Department of Education and Science

[1991] 1 AC 171

in which the House of Lords pointed out that a wide interpretation of exceptions would run contrary to the general purpose of the predecessor legislation to the Equality Act, of outlawing discrimination). National security

[95]S.192 provides for a ‘national security exception’: 192 National security A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose. 96. ‘For the purpose of’ was considered by the Court of Appeal in Pemberton v Inwood

[2018] ICR 1291

in the context of an exception where the ‘employment is for the purposes of an organised religion under Schedule 9(1)’. The Court of Appeal concluded that there being more than one purpose (in that case, the purpose of the Trust being to provide medical services) did not prevent the purpose or focus of the employment of a chaplain within that trust being that of organised religion.

[97]In our view determining ‘the purpose of’ an act in this context, involves consideration of the subjective reasons on the part of the decision maker (as it does in other contexts under the Equality Act 2010 when considering whether an act was, for example, ‘because of’ a protected characteristic).

[98]However, when it comes to considering whether the act is ‘proportionate’ this involves, as it does where a proportionality assessment is required in other parts of the Equality Act 2010, objective consideration of whether the act was appropriate and necessary in all the circumstances (i.e., could not be achieved by less discriminatory means). We take account of the EHRC Equality Act 2010 Employment Statutory Code of Practice guidance on the meaning of ‘proportionate’ in the context of indirect discrimination at 4.30- 4.32 and note that a balancing exercise is involved. Occupational requirement

[99]Pursuant to Schedule 9(1) EqA 2010: Schedule 9(1) General (1) A person (A) does not contravene a provision mentioned in subparagraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work— (a) it is an occupational requirement, (b) the application of the requirement is a proportionate means of achieving a legitimate aim, and (c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).

(2) The provisions are— (b) section 41(1)(b);

[100]Where Schedule 9(1) applies, an act that would otherwise constitute direct discrimination is rendered lawful.

[101]The question of proportionality is approached in the same way as set out above. Condition imposed by a Minister

[102]Pursuant to Schedule 23: 1 Acts authorised by statute or the executive(1) This paragraph applies to anything done— … (e) to comply with a condition imposed (whether before or after the passing of this Act) by a Minister of the Crown.

(2) A person does not contravene Part 3, 4, 5 or 6 by doing anything to which this paragraph applies which discriminates against another because of the other's nationality. …

[103]We note that the language is that the ‘anything’ must be done ‘to comply with a condition imposed’ rather than for the purpose of such compliance or with the intention of complying with a condition which the Respondent reasonably believes to be imposed.

[104]In R. (on the application of Amicus) v Secretary of State for Trade and Industry

[2007] ICR 1176

Richards J gave guidance on the interpretation of exceptions in the Employment Equality (Sexual Orientation) Regulations 2003. In respect of the requirement under Regulation 7(3)(b)(i) that the employer must apply a requirement ‘so as to comply with the doctrines of the religion’ he held that it was: …to be read not as a subjective test concerning the motivation of the employer, but as an objective test whereby it must be shown that employment of a person not meeting the requirement would be incompatible with the doctrines of the religion. That is very narrow in scope.

[105]We consider the same approach applies in relation to the exception under Schedule 9(1)(e): it must be shown that the action would be incompatible with an actual condition imposed by a Minister of the Crown, rather than showing a subjective belief that was the case. This is particularly so given the absence of a requirement that the action must be proportionate and the risk this exception would be very wide if an employer could simply rely on a belief that the action complied with a condition imposed by a Minister of the Crown. Dismissal in any event

[106]It is open to the tribunal to consider whether there would have been a nondiscriminatory dismissal or termination at some definable point even if there had not been a discriminatory dismissal or termination.

[107]If there was a chance that, apart from the discrimination, the Claimant would have been dismissed in any event, that possibility should be reflected in the measure of loss in accordance with Abbey National plc and anor v Chagger

[2010] ICR 397

, CA. 478.

[108]In Shittu v South London and Maudsley NHS Foundation Trust [2022] ICR D1, EAT, Mrs Justice Stacey confirmed that a ‘loss of a chance’ assessed in terms of percentages was the correct approach when assessing both unfair dismissal and discrimination compensation, as opposed to an all or nothing ‘balance of probabilities’ approach by which, based on the evidence before it, the tribunal determines whether or not an event would have occurred.

[109]Stacey J held at para 95: There can therefore be an “all or nothing” result, but it will be because the tribunal is 100% satisfied that a future chance would or would not have happened. In practice there are a number of possibilities, three of which were identified in Software 2000 at [54(7)]:(1) there was a less than 100% chance of indefinite continued employment in which case the tribunal must assess the percentage chance and apply that percentage reduction;

(2) the tribunal is satisfied on the evidence there was a 100% chance that the employment would have ended anyway by a certain time or at the same time as the dismissal, in which case compensation is limited to that period and the claimant is awarded 100% of whatever that period is (or receives nothing for loss of earnings if it was the same date as the dismissal occurred);

(3) employment would have continued indefinitely in which case there is no percentage reduction applied. There is a fourth possibility identified in Zebrowski and O’Donoghue where there was a 100% chance that the employment would have continued for a certain period followed by a lesser percentage chance thereafter. There may be other possible categories. But in each category the exercise is the same - the assessment from 0 to 100 of the percentage chance of what might have been or what will be.

[110]In order to limit compensation to a period up to the date when a nondiscriminatory dismissal would have occurred, the evidence must establish that the dismissal by the particular employer would inevitably have occurred. In consequence, it is only open to a tribunal to decline to award any compensation for loss of earnings, or to limit compensation to a period (as opposed to making a percentage deduction) where the tribunal is confident that a non-discriminatory dismissal or resignation would have occurred either on the same date as the dismissal or an identified later date or period.

[111]Otherwise, the correct approach is for the tribunal to make the assessment on a percentage basis reflecting the degree of chance that non-discriminatory dismissal or resignation would have occurred.

[112]In undertaking this task, we take into account the relevant parts of guidance set out in Software 2000 Ltd v Andrews and ors

[2007] ICR 825

, including the guidance that: [The tribunal] must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. CONCLUSIONS Issue 2.5 Did the Respondent act for the purpose of safeguarding national security within the meaning of s. 192? If so, was the conduct proportionate within the meaning of that section?

CONCLUSIONS

[113]We conclude that the Claimant’s engagement was terminated ‘for the purpose of safeguarding national security’ in that Mr Driscoll believed, based on what he confirmed with the Security Team, that non-dual nationals were not able to be employed in the Claimant’s role on the D0 project due to the requirements of the SAL and that those requirements were to safeguard national security.

[114]However, as set out above, we have concluded that the provisions of the SAL did not, in fact, prevent engagement of a dual national in the Claimant’s role provided that one of their nationalities was British.

[115]Accordingly, when looking at whether the conduct was ‘proportionate’ we have concluded that it was not: in terminating the engagement the Respondent went beyond that which was required by the MOD. We do not consider that the Respondent has established, or really sought to establish, that notwithstanding what the MOD required, it was appropriate and necessary for the Claimant’s engagement to be terminated to safeguard national security.

[116]Further, even if we are wrong on that, we are of the view that the action taken was not proportionate in circumstances where the Respondent could have:a. Sought clarification from the Customer as to whether the SAL prevented engaging dual citizens, and / or

b. Sought authorisation from the Customer for the Claimant’s engagement.

[117]We note that the Respondent normally only took the latter step for permanent employees with specific skills. However, there was no policy that those were the only circumstances in which authorisation could be sought. We do not see a good reason for only taking steps to seek to avoid discrimination against permanent but not fixed-term employees or those with specific skills. We were not taken to any documents that suggested that the Customer themselves would only make an exception in such circumstances. Mr Cunningham estimated that the process would most likely take 2-3 weeks, which we consider is a reasonable time to wait in the circumstances of a recruitment process that had started in May 2022, the Respondent having pushed the Claimant’s start date back by a week themselves by an email dated 28 July 2022, a period of employment of at least six months and given it would have taken some time to find a replacement in any event. Issue 2.6 Can the Respondent rely upon Schedule 9, paragraph 1 (a) of the Act? Did it have an occupational requirement within the meaning of s. 41 (1)(b) and, if so, was the requirement a proportionate means of achieving a legitimate aim, that being national security and compliance with its contractual obligations.

[118]We find that the Respondent did apply a requirement to the Claimant to have a particular protected characteristic (i.e., sole British nationality). We find, as accepted by the Claimant, that he did not comply with that requirement at the relevant time because he has dual nationality.

[119]However, having regard to the nature and to the context of the work, we do not consider that this was an occupational requirement. The Respondent relied on it being a requirement of the SAL to establish that it was an occupational requirement which, for the reasons set out above, we do not accept. We do not accept that notwithstanding the proper interpretation of the SAL it was nonetheless an occupational requirement. We have rejected, above, the argument that it must be necessary as a matter of logic not to employ dual nationals on the kinds of work that the Claimant was engaged to do simply to avoid individuals with certain nationalities working on it.

[120]Further, we do not find that the requirement was a proportionate means of achieving the aims of national security and complying with contractual obligations.

[121]We accept safeguarding national security is a legitimate aim. We do not accept that ‘compliance with contractual obligations’ is necessarily a legitimate aim, the contractual obligation itself may be discriminatory which would involve a degree of circularity. We would think it would have to be shown that compliance with the specific contractual obligation relied on is legitimate and given the contractual provision relied on in this case and the reasons for that provision provided by the Respondent, we are of the view that it ultimately comes to the same thing: which is safeguarding national security.

[122]Was the application a proportionate means of achieving a legitimate aim, namely safeguarding national security? For the same reasons as given above in respect of s.192, we conclude it was not. For the avoidance of doubt had we accepted that ‘compliance with contractual obligations’ was a legitimate aim we also would not have found the termination of the engagement to be proportionate because we have concluded the Respondent was not contractually obliged not to engage the Claimant. Issue 2.7 Did the Respondent act in order to comply with a condition imposed by a Minister of the Crown, within the meaning of paragraph 1 (e) of Schedule 23 of the Act?

[123]We accept, for the reasons given above, that the conditions in the Tier 2 SAL are effectively conditions imposed by a Minister of the Crown (via mirror provisions in the Tier 1 SAL). However, as already explained, we have concluded that the SAL did not provide a condition that those engaged on the contract working on the assets or with access to the Production Facility had to be sole UK nationals (or non-dual nationals).

[124]Therefore, the Respondent’s action in terminating the Claimant’s engagement was not in order to comply with a condition imposed by a Minister of the Crown and we have concluded that this exception does not apply. Conclusion on exceptions

[125]We have therefore concluded that the exceptions to the Equality Act 2010 advanced by the Respondent do not apply and the Claimant was subjected to unlawful direct discrimination because of his dual nationality. Dismissal in any event:

[126]We accept that there is evidence as set out above, indicating that SC clearance was a normal requirement for those working in the Production Facility where the Claimant, as part of his role, would have had to occasionally work. We also accept Mr Driscoll’s evidence that the Claimant’s lack of SC clearance would have become clear when he got a colour-coded pass. Doing the best we can with limited evidence, we are of the view that he would have got his pass, and that Mr Driscoll/ the Respondent would have had to consider how to respond to the lack of SC clearance which had been overlooked before then, two weeks after the Claimant’s engagement was in fact terminated.

[127]However, we do not conclude that there was a 100% likelihood that the Claimant’s engagement would have been ended at that point. We have set out in our findings of fact that: the Respondent was able to make exceptions; that the Claimant’s engagement had started notwithstanding a clear indication he only had BPSS clearance; and, despite knowledge of the need for SC clearance within the Respondent, several Respondent employees (copied into the relevant email) appeared not to consider a potential delay in obtaining that clearance to be a problem. We conclude there is a reasonable chance the Respondent, having engaged the Claimant on that basis, would have facilitated an exception to the rule or escorted visits (given those visits would have only been occasional), while the Claimant sought SC clearance over a period of 1-2 months. However, in light of the evidence of Mr Cunningham on when exceptions were normally made, we also do not consider there was a 100% likelihood an exception would have been made by this employer and there is also an unknown as to whether SC clearance would have been granted.

[128]Having carefully considered all the reliable material and evidence put before us, we have concluded that there is a 40% likelihood that the Claimant’s engagement would have been terminated 2 weeks after it was because he did not have SC clearance.

CONCLUSIONS

[1]At a hearing that took place on 8-11 April 2024 the Claimant’s claim of direct nationality discrimination was found to be well-founded. Judgment in respect of liability and reasons for that judgment were given orally at the hearing, and a written judgment in respect of liability was sent to the parties on 18 April 2024. The liability judgment referred to the Claimant’s full name and at the bottom of the judgment it was explained that written reasons would be provided if requested and that judgments and written reasons are published, in full, online.

[2]By an email dated 1 May 2024, the Claimant requested written reasons for the liability judgment which were sent to the parties on 2 July 2024. The Claimant did not make any request for his first name to be omitted from the liability judgment.

[3]A reserved judgment with reasons in relation to remedy, again referring to the Claimant’s full name, was sent to the parties on 16 May 2024.

[4]On 24 May 2024 the Claimant wrote to the Tribunal in reply to the email sharing the remedy judgment and reasons asking for the judgment to be amended to refer to his name as ‘N Narli’. He further explained by email on 6 June 2024 that his reason for this request was that when prospective recruiters googled his name the only result coming up (other than his company details) is his judgment and that this caused problems in him being ‘hired ever again’. He also noted that the remedy reasons included reference to an allegation he had been dismissed from a previous workplace, which he says is not true, and that the judgment refers to a 40% chance he would have been dismissed from the Respondent’s employment in any event. The Claimant feels nobody would want to hire him in those circumstances and that he had one interview since the final hearing and the company asked him about his experience with the Respondent and have not come back to him since then.

[5]I have treated this as an application to reconsider the remedy judgment under Rule 71 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the ‘Tribunal Rules’), so as to amend the judgment and refer to the Claimant by his first initial and surname only. Law

[6]Rules 70-72 of the Tribunal Rules provide as follows: 70. Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. 71. Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72. Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.

[7]There is one ground for reconsideration under Rule 70: where it is necessary in the interests of justice.

[8]In Outasight VB Ltd v Brown [2015] ICR D11, EAT, Her Honour Judge Eady QC accepted that the wording ‘necessary in the interests of justice’ in rule 70 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances.

[9]I have concluded there are no reasonable prospects of the original decision being varied or revoked and therefore the Claimant’s application is refused.

[10]The Claimant did not raise any concerns about his full name being recorded in response to the judgment on liability being sent to the parties and requested written reasons for that judgment to be provided, despite having been informed they would appear on the website.

[11]The Claimant has put forward no evidence for his assertion that including his full name in the judgment (as opposed to his first initial and surname) has caused or is likely to cause hardship. It is noted his surname is relatively unusual and therefore it seems likely that it would be possible to find the judgment from just his surname and initial in any event.

[12]The Claimant referred to a company from Bristol not coming back to him after asking about his experience with the Respondent, but this is not indicative of him having been affected by the reference in the judgment to his first name.

[13]In terms of the potential hardship of the judgment being found, it is noted that the Claimant won his claim and the judgment on remedy makes that clear, as well as recording within the reasons that:a. the assertion he had been dismissed from his previous job was an allegation he disagreed with and considered amounted to slander;

b. the Claimant was not dismissed by the Respondent for misconduct, the termination was for circumstances outside his control and there is no indication the Respondent would not confirm that in a reference.

[14]It is also clear from the reasons for the liability judgment (also available online), that the 40% risk of dismissal related to his security clearance and that did not arise from any assertion of misconduct.

[15]The Claimant did not request that his name appear in any particular way during the hearing (despite it being explained that Judgments and Reasons would be put on the website). Even if the remedy judgment were amended, the liability judgment would still remain with his full name, which he did not challenge within 14 days of the judgment being sent to him.

[16]In the above circumstances there are no reasonable prospects of the remedy judgment being revoked or varied.