Mr H Hassan v Department for Work and Pensions: 8000044/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000044/2022Venue GlasgowHearing 1 and 2 March 2023 (Expenses / Preliminary Hearing held in chambers by way of written representations from both parties)
Between
Mr Hassan HassanClaimantDepartment for Work and PensionsRespondent
Before
Employment Judge Ian McPhersonDate 30 April 2024
JUDGMENT
The Judgment of the Employment Tribunal, having considered both parties’ written representations at this in chambers Expenses / Preliminary Hearing, is that: -(1) Having considered the claimant’s application for a preparation time order against the respondents, in terms of Rules 75(2) and 79 of the Employment Tribunal Rules of Procedure 2013, and the respondents’ objection to that application, the Tribunal refuses the claimant’s application for the reasons given in the undernoted Reasons, at paragraphs 31 to 44 below; and(2) Having considered the claimant’s application for an anonymisation / privacy order by the Tribunal, in terms of Rule 50 of the Employment Tribunal Rules of Procedure 2013, and the respondents’ objection to that application, the Tribunal continued consideration of that application to a date to be hereinafter assigned by the Tribunal, to allow the respondents’ solicitor a reasonable opportunity of 7 days to respond to the claimant’s further written representations emailed to the Tribunal, during this Expenses / Preliminary Hearing, by way of a right of reply to the claimant’s further written representations, which he sent unsolicited direct to the Glasgow Employment Tribunal, and the respondents’ solicitor, by emails of 08:45 and 10:03 on 1 March 2023.
REASONS
[1]This case called again before me on the morning of Wednesday, 1 March 2023, for a one-day Expenses / Preliminary Hearing in chambers, as previously intimated to both parties by the Tribunal, on 31 January 2023, by amended Notice of Hearing, to determine the following issues, namely :(1) the claimant’s opposed application for a preparation time order under Rule 79 against the respondents, and(2) the claimant’s opposed Rule 50 application for an anonymisation / privacy order by the Tribunal.[2]Both parties had, in email correspondence with the Tribunal, agreed to this being an in chambers Hearing, on the papers only, and without the need for an attended Hearing. I have dealt with it on the basis of considering their respective written representations to the Tribunal.
Background
[3]By ET1 claim presented on 26 August 2022, the claimant complains of unlawful discrimination on the grounds of race, and religion or belief. His claim is denied by the respondents, by ET3 response presented on 26 September 2022.[4]I heard both parties at a first telephone conference call Case Management Preliminary Hearing on 25 October 2022, and my written Note and Orders, dated 26 October 2022, was issued to both parties under cover of a letter from the Tribunal dated 27 October 2022.[5]Since that date, there has been ongoing correspondence between the parties and the Tribunal, and various interlocutory orders and directions have been made by me as the allocated Employment Judge case managing this claim and response.[6]As I ordered on 25 October 2022, a one-day open Preliminary Hearing by CVP was listed, on 4 November 2022, to be heard on 1 December 2022, to determine the respondents’ application that the claim should be rejected and returned to the claimant with a notice of rejection under Rule 10(2), because the respondents’ ET3 response asserted that the claimant’s ET1 claim form had failed to supply the minimum information required as it is brought in the name of “Mr H Hassan” and it did not clarify his full first name.[7]On 15 November 2022, the respondents’ solicitor wrote to the Glasgow ET, with copy to the claimant, to withdraw the respondents’ application for the claim to be rejected under Rule 10(2), and requesting that the Preliminary Hearing on 1 December 2022 be discharged.[8]I granted that discharge, on 18 November 2022, noting that the orders I had made on 25 October 2022 otherwise remained in place, and should be complied with, and stating that the respondents’ opposed application under Rule 99 for a transfer to England & Wales (and Leeds ET in particular) would be referred to the Vice-President, Employment Judge Eccles, for her consideration. Claimant’s application for preparation time order / wasted costs order against the Respondents[9]On 23 November 2022, the claimant emailed the Glasgow ET, with copy to Ms Campbell for the respondents, with a PDF document. Included with that document, at his paragraph 6, was an application under Rule 79 for an interim preparation time order / wasted costs order against the respondents in the total sum of £318.85, reading as follows: 6. Rule 79 application for Preparation Time Order / Wasted Costs Order: “The amount of a preparation time order 79.—(1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on time spent falling within rule 75(2) above; and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.(2) The hourly rate is £33 and increases on 6 April each year by £1.(3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2).” Claimant’s application for an interim Preparation Time / Wasted Costs Order: Pro-rata full day of Claimant’s salary: £108.85 approx. Preparing evidence/response for Respondent’s Rule 10 application for rejection of entire claim; and preparing for full-day video PH Approx. 5 hours x £42.00 = £210.00 Total: £ 318.85 (subject to court approval) Respondents’ objections[10]On 24 November 2022, I ordered the respondents’ solicitor to provide her written comments / objections (if any) to the claimant’s application for a preparation time / wasted costs order against the respondents, by no later than 4pm on 30 November 2022.[11]Thereafter, at 15:35, on 30 November 2022, Ms Campbell gave notice to the Tribunal that she was providing a response, but it might be “shortly after 4pm.” Her response was sent by email to Glasgow ET, with copy to the claimant, at 22:13 that evening.[12]At her paragraphs 4 to 16, Ms Campbell, the respondents’ solicitor, replied specifically to the claimant’s Rule 79 application for a preparation time order, as follows: Response to Rule 79 Application by Claimant 4. The Claimant’s application appears to be for an order for preparation time, as opposed to wasted costs. The Respondent’s position is that none of the required grounds for a preparation time order (under Rule 76) are fulfilled. Whilst it is not entirely clear what the basis for his application is, it is understood to be in relation to the now withdrawn application from the Respondent for the claim to be rejected under Rule 10. (This application was made in the ET3 response of 26 September 2022). 5. The Preliminary Hearing which was scheduled for 1 December 2022 was to determine one narrow issue, namely whether the Claimant’s claim ought to be rejected on the basis he failed to provide his name under Rule 10. The Respondent had applied for this Preliminary Hearing in the ET3 response of 26 September 2022, having considered the Claimant’s claim at the initial stages and noting that his claim form stated his first name to simply be “H”. Assuming that this was not, in fact, the Claimant’s first name and noting that the requirement to submit a name is an essential requirement on an ET1 form under Rule 10(1)(b) (in the sense that, if the name is not provided, the claim form should be rejected by the Tribunal), the Respondent raised this as a preliminary point. It was entirely appropriate for the Respondent to do so, as it was a matter relating to the extent of the Tribunal’s jurisdiction to hear the claim. The Respondent is entitled to identify, and request that the Tribunal gives consideration to, any preliminary issue (indeed, for the Respondent’s representative to fail to identify a preliminary issue and to fail to raise that preliminary issue with the Tribunal would not be in her client’s best interests and could, of itself, be criticised not only by the Respondent but also by the Tribunal). 6. It is not at all uncommon for parties, having considered such preliminary matters as the case progresses, including considering relevant case law and legislation, to subsequently withdraw applications. Indeed, it is not at all uncommon for withdrawal of an application to occur at any stage in the progress of a case and not only at the very initial stages (as in this present case). In this case, the Respondent’s representative considered matters further and, having taken instructions, determined that the prospects of the application succeeding were lower than initially thought. As a result, she communicated to the Tribunal and the Claimant on 15 November 2022 that the Respondent wished to withdraw this application and asked for the preliminary hearing of 1 December 2022 to be discharged. This was an entirely appropriate action. The application was made at an early stage, several weeks in advance of the proposed preliminary hearing date. 7. This is not a case where the application had “no reasonable prospects of success”. It is not believed to be a fact in dispute that the Claimant did not include his name (his name being Hassan Hassan) in the ET1 and therefore there is a clear basis for the Respondent’s Rule 10 application. The Respondent chose to withdraw the application prior to the hearing, however it is disputed that the application had no reasonable prospect of success. There is no general rule that withdrawing a claim is tantamount to an admission that it is misconceived (Yerrakalva v Barnsley Metropolitan Borough Council UKEAT 0231/10 (obiter)). 8. The Respondent informed the Tribunal and the Claimant that the hearing could be discharged over 2 weeks’ prior to the date of the hearing. It would be contrary to the overriding objective to penalise the Respondent for providing fair notice that they did not wish to proceed with a preliminary application. 9. This is not a case where the Respondent has behaved unreasonably, abusively, disruptively or vexatiously. There is no evidence of this. The Respondent has responded to all of the correspondence sent to the Tribunal by the Claimant within the appropriate deadline. The Respondent denies misleading the Tribunal. In addition, the Respondent denies that “their Rule 10 application for rejection of the entire claim painfully targets the Claimant’s Muslim/Arabic name” as the origins of his name are entirely irrelevant. Rather it was the fact that he had not written his full name that was the basis for the application. 10. In respect of Rule 76(2), the Respondent has not been in breach of any order or practice direction. A hearing has not been postponed or adjourned on the application of the Respondent, but rather discharged. 11. It is highlighted that the Claimant did not provide a costs or expenses warning letter or indeed give any notice that any such application would be made. 12. In all the circumstances, the Respondent submits that there is no basis upon which the Tribunal should order a preparation time order and that to do so would be contrary to the overriding objective. Value of Preparation Time Order[13]ESTO, the Tribunal is minded to award a preparation time order, then the Respondent disputes the Claimant’s figures. Under Rule 79, it is noted that in establishing a preparation time order, the Tribunal must firstly consider the number of hours in respect of which a payment should be made. The Tribunal will be aware it must make: “an assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.”[14]The Respondent’s position is that the proceedings were to determine a simple issue. The Claimant was to be the only witness in attendance. The point in dispute is a legal point (rather than factual) and therefore the legal submissions from each party are the relevant documents for preparation purposes. The Tribunal ordered the Respondent’s solicitor to provide a skeleton written argument by no later than 24 November 2022 (one week prior to the final hearing), to the Claimant. The application was withdrawn on 15 November therefore the submissions were not sent to the Claimant. Accordingly, it is disputed that the Claimant spent 5 hours preparing a response to the Rule 10 application, prior to 15 November 2022, in circumstances in which he had not even received the Respondent’s argument. This is a disproportionate amount of time to spend at that stage.[15]In any event, the Claimant appears to be claiming for 5 hours of his salary. He has not however explained why he considers that he ought to be paid in respect of 5 hours of his salary. He has not indicated in his application, for example, that he required to take unpaid leave from work in order to prepare and, if this is the case, he has not explained why he considered it appropriate to take unpaid leave. Given that he apparently spent 5 hours preparing the case, those 5 hours could have been carried out at any time outwith working time. He has provided no evidence that he has, in fact, “lost” 5 hours of salary.[16]It is an established principle of law that a preparation time order cannot be made in relation to time spent attending the hearing (Rule 75(2) and Andrew v Eden College and others UKEAT/0438/10). Therefore it is submitted that it would not be appropriate to grant a pro-rata full day of the Claimant’s salary. In any event the Claimant had 2 weeks’ notice to apply for his day of annual leave to be cancelled. As outlined above, he has presented no evidence to indicate that he has lost any salary, or indeed any leave, as a result of the Respondent withdrawing its application. In those circumstances, to award him in respect of 5 hours’ [sic] of lost salary would be disproportionate. 13. These were parties’ written representations before me at this in chambers Hearing on the claimant’s opposed application for a preparation of time order against the respondents. I agree with Ms Campbell, as per her paragraph 4, that the claimant’s application is for a preparation time order, and not a Wasted Costs order under Rules 80 to 82. Indeed, his reference to Rule 79 supports that view. Claimant’s application for an anonymity/privacy order14. There is also pending before me, for judicial determination, this further matter.15. In issuing this written Note and Orders, dealing only with my decision on the claimant’s opposed application for a preparation time order against the respondents, I have left open, for further consideration, at a later date, the claimant’s opposed application for an anonymity / privacy order under Rule 50. 16. That is because, in the course of this Expenses / Preliminary Hearing, on 1 March 2023, a further emailed correspondence from the claimant was received by the Tribunal, which required me to defer that matter for final decision at a later date.[17]That has happened because while I did not ask for any further written representations, as made clear in the Tribunal’s letter to both parties on 23 February 2023, given the fact the claimant had done so, I considered that it was in interests of justice that the respondents’ solicitor be given the opportunity to reply, ASAP, and certainly by no later than 4pm on Wednesday, 8 March 2023.[18]I noted the claimant’s reference to the recent England & Wales High Court of Justice (KBD) judgment by Mrs Justice Steyn, in K v SSWP [2023] EWHC 233 (Admin), and the full copy of it provided by the claimant, as also his hyperlinks to commentaries by Doughty Street chambers, and the Public Law Project.[19]As such, I did not regard that as “evidence”, as the claimant’s email had described it, as I was engaged in an in chambers Hearing, without parties attending, but I did regard it as right and proper that, the claimant having sent it unsolicited direct to Glasgow ET, and the respondents’ solicitor, then the respondents’ solicitor should be afforded a right of reply.[20]Meantime, both parties were advised, by email from the Tribunal clerk sent that afternoon, that I was continuing with this in chambers Hearing, and deliberation on 2 March 2023, but I have done so only in respect of the opposed application for a preparation time order against the respondents. Relevant Law : Preparation Time Order[21]The relevant law is to be found within Rules 74 to 84. Specifically, for the purposes of the present case, I have had regard to the following statutory provisions, so far as material for present purposes, from the ET Rules of Procedure 2013, as follows: COSTS ORDERS, PREPARATION TIME ORDERS AND WASTED COSTS ORDERS Definitions 74.—(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses. Costs orders and preparation time orders 75.—(1) … (2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make. When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success; or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.(3) …(4) …(5) … Procedure 77. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. The amount of a preparation time order 79.— (1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on time spent falling within rule 75(2) above; and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £33 and increases on 6 April each year by £1. (3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2). [Note by Tribunal: The hourly rate, as of 6 April 2022, is £42.] Ability to pay 84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[22]The claimant, as an unrepresented, party litigant, has perhaps, unsurprisingly, not made any reference to case law on this subject. However, Ms Campbell, the respondents’ solicitor, has referred me to some case law, and I have considered the two EAT case law authorities cited by her, Yerrakalva and Andrew, and I comment upon them both later, in the discussion and deliberation section of these Reasons.[23]Ms Campbell did not provide the claimant, or the Tribunal, with a copy of either judgment, or an accessible hyperlink to a free to access legal resource website, for either case cited by her. Yerrakalva is, however, a well-known, and familiar authority, and I have accessed the judgment in Andrew through using the Bailli website. It is my responsibility to apply the relevant law, and I do not believe that the claimant has been prejudiced by me not inviting him to make comment on the cases cited by Ms Campbell, especially in circumstances where, given the date of her written objections, he has had plenty of time to make his own submissions on the relevant law, had he felt it appropriate to do so.[24]Moreover, I have also had regard to the further, frequently cited case law authorities, on costs / expenses in the Employment Tribunal, which I am aware of from my own judicial experience in many other cases heard before me, namely:(a) Gee v Shell UK Ltd [2002] EWCA Civ 1479; [2003] IRLR 82; [2005] ICR 1117, Court of Appeal, per Simon Brown, Sedley and Scott Baker LLJ);(b) Lodwick v London Borough of Southwark [2004] EWCA Civ 306; [2004] ICR 884; [2004] IRLR 554, Court of Appeal, per Pill LJ;(c) McPherson v BNP Paribas SA (London Branch) [2004] EWCA Civ 569 & 616; [2004] ICR 1398; and [2004] IRLR 558, Court of Appeal, per Mummery LJ;(d) Barnsley MBC v Yerrakalva [2011] EWCA Civ 1255 ; [2012] ICR 420 / [2012] IRLR 78 (Court of Appeal, per Mummery LJ, on appeal from EAT, Underhill J(P) [2010] UKEAT/0231/10, [2011] ICR D6);(e) Vaughan v London Borough of Lewisham [2013] UKEAT/0533/ 12; [20I3] IRLR 713, per Underhill J (EAT);(f) Oni v Unison [20I5] UKEAT/0370/14; [2004] ICR D17, EAT, per Simler J;(g) Daly v Newcastle upon Tyne Hospitals NHS Foundation Trust [20I9] UKEAT/0I07/I8, per HHJ Eady QC, at para 42, and the 3 cases cited there: “It is common ground that there are three stages involved in the determination of a costs application. First, the ET needs to determine whether or not its jurisdiction to make a costs award is engaged - here, whether the circumstances provided by Rule 76(1) existed. If so, second, it must consider the discretion afforded to it by the use of the word “may” at the start of that rule, and determine whether or not it considers it appropriate to make an award of costs in that case. Only then would it turn to the third stage, which is to determine how much it should award. See Abaya v Leeds Teaching Hospital NHS Trusts UKEAT/0258/16, paragraphs 14-18; Haydar v Pennine Acute Hospitals NHS Trust UKEAT/0023/18, paragraphs 25 and 37; Ayoola v St. Christophers Fellowship UKEAT/0508/13 at paragraph 17.”[25]While each case should be dealt with according to its own specific facts and circumstances, and reference to case law authorities should be cautiously approached, as identified in the Court of Appeal’s judgment in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ.1255, reported at [2012] IRLR 78, where Lord Justice Mummery, former President of the Employment Appeal Tribunal, at paragraph 39 of his judgment, stated as follows: “I begin with some words of caution, first about citation and value of authorities on costs questions and, secondly, about the dangers of adopting an over-analytical approach to the exercise of a broad discretion.”[26]The Court of Appeal, in McPherson v BNP Paribas (London Branch), held that it is not unreasonable conduct, per se, for a claimant to withdraw a claim. Further, the Court observed (per Lord Justice Mummery, at paragraph 28) that it would be unfortunate if claimants were deterred from dropping claims by the prospect of an order for costs on withdrawal in circumstances where such an order might well not be made against them if they fought on to a full Hearing and failed.[27]The Court of Appeal further commented that withdrawal could lead to a saving in costs, and that Tribunals should not adopt a practice on costs that would deter claimants from making “sensible litigation decisions”. Further, as Lord Justice Thorpe observed during argument in that case notice of withdrawal might “in some cases be the dawn of sanity.”[28]On the other hand, per Lord Justice Mummery, at paragraph 29, in McPherson, the Court of Appeal was also clear that Tribunals should not follow a practice on costs that might encourage speculative claims, allowing claimants to start cases and to pursue them down to the last week or two before the Hearing in the hope of receiving an offer to settle, and then, failing an offer, dropping the case without any risk of a costs sanction.[29]Further, at paragraph 30, Lord Justice Mummery stated that the critical question in this regard was whether the claimant withdrawing the claim has conducted the proceedings unreasonably, not whether the withdrawal of the claim is in itself unreasonable.[30]In my view, while the circumstances of the present case, and the opposed preparation time order application before me, clearly do not arise from the claimant withdrawing his claim, but from the respondents withdrawing their Rule 10 application, to have the claimant’s ET1 claim form rejected, while still defending the claim, analogous considerations come into play, when looking at the background to, and reasons for, that withdrawal by the respondents, at that earlier stage of these Tribunal proceedings. Discussion and Deliberation[31]From the case law authorities, it is trite to say that expenses orders in the Employment Tribunal remain the exception and not the rule, and that, in the majority of Employment Tribunal cases, the unsuccessful party will not be ordered to pay the successful party’s costs, and that costs are compensatory, and not punitive.[32]Here, of course, the matter before me is not an opposed application after the Tribunal has issued a final Judgment following upon a Final Hearing. To date, no evidence has been led in this case, and so the Tribunal has made no findings in fact. The case is still in early stages of case management, despite the passage of more than 6 months since the claimant’s ET1 was first presented on 26 August 2022.[33]While last minute settlements, withdrawals, and postponement applications, are still very much a regular feature of litigation before the Employment Tribunals, the important feature to note in the present case is that in opposing the claimant’s application for a preparation time order, the respondents, through Ms Campbell’s objections, have made it clear that that application is being opposed, for the various grounds stated by their solicitor, and that the Tribunal should refuse the claimant’s application.[34]As per Rule 77, the claimant’s written application for a preparation time order was made in time, and the respondents have been provided with a reasonable opportunity to make their own written representations in reply. Further, as per Rule 75(2), it is clear that the claimant is an unrepresented, party litigant, and that he is therefore entitled to seek a preparation time order against the respondents, as the potential “paying party”, and, in the event of success with his application, the claimant would be the “receiving party.”[35]Having carefully considered the claimant’s application, and Ms Campbell’s objections, I agree with her observation that it seems to arise from the respondents’ decision to abandon their application for the claim to be rejected under Rule 10.[36]Their application was on a legal point that they were entitled to take, even though the claim had been accepted by the Tribunal administration, and not referred by the Tribunal vetting clerk to a Judge for consideration, and that is why I fixed an open Preliminary Hearing for 1 December 2022. However, as the respondents withdrew their application, so that listed Preliminary Hearing was cancelled by the Tribunal.[37]I do not know exactly why the respondents decided to withdraw that particular point, but it was clearly done with the benefit of some legal advice, where they determined that their prospects were lower than they had initially thought (see Ms Campbell’s paragraph 6) and it may well have been so decided simply because, even if they had been successful, and I had decided to reject the claim, the claimant would then have been issued with a notice under Rule 10, and he could then have applied for reconsideration of that rejection under Rule 13, and sought to remedy the defect.[38]In essence, looking in on matters from my position as the independent and objective judicial decision maker, such a move may have been equivalent to one step forward, one step back, and not really progressed the litigation between the parties in any meaningful way, and simply have occasioned delay and additional cost to both parties, and to the public purse which funds the Tribunal. Viewed in that way, the respondents’ decision to withdraw might best be regarded as a “sensible litigation decision”, to use the wording from the Court of Appeal in McPherson.[39]I also agree with Ms Campbell that, as per her paragraph 6, it is not at all uncommon for parties, having considered such preliminary matters as the case progresses, including considering relevant case law and legislation, to subsequently withdraw applications; and it is not at all uncommon for withdrawal of an application to occur at any stage in the progress of a case and not only at the very initial stages.[40]The fact that the respondents withdrew their Rule 10 application does not, of itself, indicate that their application had no reasonable prospects of success. Further, in this case, the claimant suffered no prejudice by that withdrawal.[41]While, on 25 October 2022, I had ordered the respondents’ solicitor to provide a skeleton written argument to the claimant by no later than 24 November 2022 (one week prior to the listed Preliminary Hearing, and not a Final Hearing as wrongly referred to in Ms Campbell’s objections), as that application was withdrawn on 15 November therefore Ms Campbell’s submissions were not sent to the claimant, nor to the Tribunal.[42]Further, as that listed Preliminary Hearing, scheduled for 1 December 2022, was discharged by the Tribunal, with more than two weeks prior notice to the claimant, it cannot be held by me at this in chambers Hearing that the respondents have acted unreasonably, abusively, disruptively or vexatiously. That discharge of that Preliminary Hearing was a judicial order made by me in light of the changed circumstances.[43]As such, I agree with Ms Campbell, at her paragraph 12, that to grant a preparation time order against the respondents, in the circumstances of this case and the respondents’ withdrawal of their Rule 10 application, would run contrary to the Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly. Accordingly, I have decided to refuse the claimant’s application.[44]That said, I think it would be helpful for me to make a few additional points for the assistance of both parties:(a) I agree with Ms Campbell that a claim for 5 hours preparation time is wholly disproportionate, even if I had been minded to grant to claimant’s application for a preparation time order against the respondents.(b) The Rule 10 point was a relatively simple matter – was there a failure to provide minimum information on the ET1 claim form? As the respondents’ solicitor did not submit a written skeleton argument, due one week before the start of the listed Preliminary Hearing, the claimant cannot have spent any time in reviewing that. Looking up the relevant law, in Rules 8 to 13, would not have taken anything like that period of time.(c) The claimant’s application refers to “Preparing evidence/response for Respondent’s Rule 10 application for rejection of entire claim; and preparing for full-day video PH Approx. 5 hours x £42.00 = £210.00”(d) No breakdown is given by him of what actually he did in this preparation time of 5 hours. His application refers to both the Rule 10 application and preparing evidence. The Rule 10 point was a discreet, and short legal point, and it did not require any evidence other than in the briefest of terms from the claimant, if at all.(e) Even if I had been minded to grant to claimant’s application for a preparation time order against the respondents, I could not have awarded 5 hours, based on to lack of any clear and cogent explanation of what he was doing over 5 hours. Further, as Ms Campbell says, in her paragraph 15, the claimant has provided no evidence that he has, in fact, lost 5 hours salary.(f) Where I depart from Ms Campbell’s submission is where, at her paragraph 16, she states: “It is an established principle of law that a preparation time order cannot be made in relation to time spent attending the hearing (Rule 75(2) and Andrew v Eden College and others UKEAT/0438/10). Therefore it is submitted that it would not be appropriate to grant a pro-rata full day of the Claimant’s salary.”(g) I have located and read the Andrew judgment by Mr Recorder Luba QC at [2011] UKEAT/0438/10. Having done so, I see that it relates to the wording of the former ET Rules of Procedure 2004, and not the current 2013 Rules. The current Rule 75(2) refers to “except for any time spent at any final hearing”. I lay emphasis on the current word “final” – the Hearing listed for I December 2022 was not a Final Hearing, but a Preliminary Hearing. In any event, that Preliminary Hearing was discharged, and so nobody attended it.(h) Had I been minded to grant to claimant’s application for a preparation time order against the respondents, and had I been able to ascertain an appropriate period for him working on the case, which was reasonable and proportionate amount of time for preparatory work, the respondents put no information before the Tribunal about their inability to pay, as per Rule 84.(i) Given the respondents are an emanation of the State, that is perhaps unsurprising, so had I found grounds to make a preparation time order in the claimant’s favour, then I would have done so, and ordered the respondents to pay the claimant whatever sum I had determined.
Disposal
[45]Having considered the claimant’s opposed application for a preparation time order against the respondents, I have refused it for the foregoing reasons.[46]When I resume consideration of the claimant’s opposed application for an anonymity / privacy order, I will do so again, on a date to be hereinafter intimated to both parties for information only, as again it will be dealt with on the papers, and without the need for parties to attend.[47]A further written Note and Order, or Judgment as the case may be, will be issued as soon as possible thereafter, following upon my further in chambers private deliberation on that opposed application.
hearing.
[50]The appellant had contended that such an Order was necessary to protect her Article 8 ECHR rights. Her application related, however, to a Judgment reached after an open Preliminary Hearing at which the ET had considered an application to strike out the appellant's claims on the basis of her conduct at an earlier (closed) Preliminary Hearing. The matters to which the appellant objected had, therefore, been the subject of discussion at a public trial of the strike out application; Article 8 was not engaged - the appellant could have had no expectation of privacy in that regard. 44. Even if that was wrong, Judge Eady held that it was for the ET to carry out the requisite balancing exercise (see Fallows and Others v News Group Newspapers Ltd [2016] ICR 801 EAT) and, in the particular circumstances of the Ameyaw case, it had been entitled to take the view that the principles of open justice and the interests arising from Articles 6 (fair trial) and 10 (freedom of expression) were not outweighed by the appellant's interests under Article 8 ECHR such that there should be any restriction on publicity under Rule 50. 45. In reaching its decision, as an exercise of its case management discretion, the EAT held that ET in the Ameyaw case had made clear(i) its view that it had no power to exclude the Judgment from the public Register, and(ii) its conclusion on the question whether the principle of open justice should be curtailed in that case. Discussion and Deliberation 46. I turn now to consider each party’s competing submissions to me. 47. Although the claimant did not respond, by 27 March 2023, or at all, as at the date of the continued in chambers Hearing held on Friday, 14 April 2023, to the Tribunal’s invitation to him to provide any further written representations, responding only to Ms Campbell’s written comments of 13 March, I consider that, in terms of the Tribunal’s overriding objective to deal with the case fairly and justly, in terms of Rule 2 of the Employment Tribunals Rules of Procedure 2013, he was given a reasonable opportunity to do so, and, for whatever reason, he had decided not to do so. 48. Further, I note and record that the claimant made no application for any extension of time to do so, in terms of Rule 5. The disputed matter of the opposed Rule 50 application requires judicial determination, and, in terms of Rule 2, I have to have regard to avoiding delay, so far as compatible with proper consideration of the issues. 49. As such, I have proceeded to consider matters, on the papers only, and without the need for an attended Hearing, on the basis of parties’ previously given agreement to that course of action, and having careful regard to parties’ written representations as available to me, and as detailed earlier in these Reasons. 50. I have carefully considered both parties` written submissions, along with my own obligations under Rule 2, being the Tribunal’s overriding objective to deal with the case fairly and justly.[51]Having done so, and after careful consideration of the competing arguments, taking into account the relevant law, as ascertained in the legal authorities referred to earlier in these Reasons, I am not satisfied that this is one of those cases where it is appropriate to(a) order a private Hearing in the event that this case is listed in due course for a Final Hearing, nor(b) to make any anonymity or privacy order, as sought by the claimant.[52]In these circumstances, I have refused the claimant’s application. I now explain my reasoning as below.[53]Firstly, on the matter of the case being listed for a private Hearing, in the event that this case is listed in due course for a Final Hearing, the claimant’s application does not satisfy me that that is an appropriate course of action. As such, I have refused his application for a private Hearing. While he had made reference to his health and to suffering from stress, his application did not make it clear why that was relevant to a Rule 50 Order, and he has produced no medical evidence on that basis, as called for by Ms Campbell in her objections, at paragraph 15 of her email of 26 January 2023, and as referred to by her in paragraph 11 of her subsequent email of 13 March 2023.[54]The claimant did not initially ask for a private Hearing when he made his application on 16 January 2023. Ms Campbell, at paragraph 7 of her respondents’ objections intimated on 26 January 2023, as reproduced earlier in these Reasons, at my paragraph 9 above, noted that the claimant had not specified which type of order he believed was necessary under Rule 50.[55]The claimant addressed that lacuna in his subsequent email of 1 March 2023, as reproduced earlier in these Reasons, at my paragraph 13 above. Specifically, in his paragraph 7, the claimant requested either that hearings are held in private; or that information is restricted which will identify him as a DWP Universal Credit Decision Maker.[56]After careful reflection, I have come to the decision that it is not appropriate to make any Order under Rule 50(3)(a) that a Hearing that would otherwise be in public should be conducted, in whole or in part, in private.[57]That is because I regard as well-founded the respondents’ objections, as set forth by Ms Campbell in her email of 13 March 2023, as reproduced earlier in these Reasons, at my paragraph 20 above, specifically at her paragraph 16.[58]I agree with her assessment that the claimant’s Decision Maker role has no bearing upon his Tribunal claim against DWP, and that there is no basis to suggest that naming the claimant in these Tribunal proceedings will cause him to be held publicly accountable for Universal Credit decision making matters beyond his control.[59]As Ms Campbell rightly points out, the claimant’s Decision Maker work for the respondents is not referenced in his Tribunal claim, other than, as I see matters, it is his job title.[60]Secondly, on the claimant’s request that I make some form of anonymity or privacy orders, again the claimant’s application does not satisfy me that that is an appropriate course of action.[61]In the claimant’s email of 16 January 2023, as reproduced earlier in these Reasons, at my paragraph 8 above, the claimant states he has “an unusual and easily identifiable name”, and that this “can and does pose a security risk; and it must be noted the Respondent considers this case does involve a high level of government security, which requires the use of a specific Ministry of Justice csjm.net email address.”[62]I regard, as well-founded, the respondents’ objections to the claimant’s request for a privacy / anonymity order, as set forth by Ms Campbell in her email of 26 January 2023, as reproduced earlier in these Reasons, at my paragraph 9 above, where, at her paragraph 12 she stated that it is not accepted that the claimant has an unusual or easily identifiable name.[63]In her paragraph 13, she queried what the claimant meant by his reference to “this case does involve a high level of government security”, stating, in reply, that this claim involves standard discrimination claims, and there is no particular sensitivity relating to the claimant’s claims, compared with any other discrimination claim brought before the Employment Tribunal.[64]Her paragraph 14 explains the respondents’ security protocols, requiring use of the CJSM system on any ET claim, regardless of the content of the claim, and that the claimant’s case is not in any way distinguished in that regard. In my view, given that explanation, nothing turns upon that matter.[65]I agree with Ms Campbell’s observation that this claim is typical of very many regularly brought before the Tribunal against a variety of employers, public, private, and third sector. It just so happens, in this case, that the DWP, as respondent, is a department of HM Government. Claimants suing employers do not routinely seek anonymisation of their name. Given the State is a largescale public-sector employer, there are very many cases brought against Government departments in the Employment Tribunals sitting across the length and breadth of Great Britain.[66]To obtain a Rule 50 Order, the claimant needs to show why it is necessary in the interests of justice, or in order to protect his Convention rights. In his original application, the clamant did not identify any Convention right, but he did do so in his subsequent email of 1 March 2023, in particular at his paragraph 7, where he stated that he has concerns around Article 8 of the ECHR and the right to respect for private and family life.[67]In Ms Campbell’s objections of 13 March 2023, at her paragraphs 19 to 22, she argus that Article 8 is not engaged due to the lack of evidence in respect of the claimant’s position, but, even if it were engaged, the claimant’s Article 8 rights need to be balanced against the principle of open justice and the broader interests of freedom of expression under Article 10 and the right to a fair trial under Article 6 of the ECHR.[68]I agree with Ms Campbell’s submission, and with her reference, in her paragraphs 21 and 22, to the EAT’s judgment in Fallows, and her submission there that there is no basis upon which to conclude that a privacy order is required in the interests of justice and / or to protect a Convention right, for the reasons outlined by her, and that the claimant’s application ought to be dismissed.[69]While, in her objections of 26 January 2023, Ms Campbell called upon the claimant to provide evidence of his assertion that he has an unusual or easily identifiable name, and he did so, in his subsequent email of 1 March 2023, as reproduced earlier in these Reasons, at my paragraph 9 above, Ms Campbell also made the point that even if the claimant does have an uncommon name, it is not clear why this means that he faces a security risk as a result of his ET claim.[70]In his subsequent email of 1 March 2023, at his paragraph 7, the claimant explains that he requests anonymisation of his name, stating that it is in itself a very rare type of Muslim name, and that disclosure of his name will completely contradict the anonymity afforded to DWP colleagues in the High Court judgment of K v SSWP, as well as alleging that disclosure of his identity as a DWP Decision Maker will be an infringement upon his rights. He refers to, and founds upon, what he says is a fact that DWP frontline staff generally do not give their full names to claimants.[71]Ms Campbell, in her response on behalf of the respondents, on 13 March 2023, as reproduced earlier in these Reasons, at my paragraph 20 above, at her paragraphs 11 to 22, addresses the claimant’s points, and she makes it clear, at her paragraphs 12 and 13, that the High Court judgment of K v SSWP is not relevant to the claimant’s Rule 50 application to this Tribunal, and that the claimant’s day to day work as a Decision Maker has no bearing on his ET claim. I agree with her observations on both matters.[72]Likewise, I agree with her observation, at her paragraph 15, that no evidence has been provided to show that the claimant’s name is a very rare type of Muslim name, and needs anonymisation on that ground, and, more significantly in my view, she is correct to note that no evidence has been provided by the claimant to show that, even if that is the case, he is placed at any particular risk of harm due to his work occupation.[73]On the information available to me, there is no dispute between the parties that the claimant is employed by the respondents as a Decision Maker, which involves him making decisions about individual applications for State benefits, specifically Universal Credit.[74]While the claimant’s email of 16 January 2023 (reproduced earlier in these Reasons, at my paragraph 8 above) asserts that he has been “repeatedly subjected to threatening behaviour as a consequence of making legally required decisions to deny granting payments of Universal Credit” that is mere assertion on his part, and he has provided no supporting evidence to support his assertion.[75]Furthermore, as the respondents have stated, in Ms Campbell’s email of 26 January 2023, reproduced earlier in these Reasons, at my paragraph 9 above, and at her paragraph 10 in particular, it is accepted that the claimant is employed as a Decision Maker, and the respondents are not aware of the claimant having been subject to threatening behaviour, and they specifically say that he has not raised this through the respondents’ Unacceptable Customer Behaviour procedure nor report it to his line manager, per the required process.[76]Given the respondents’ reply in those terms, I can give the claimant’s bald assertion little, if any, weight. Further, and as Ms Campbell states, in that same paragraph 10 of her objections, the respondents’ position is that the content of the claimant’s day to day work as a DWP Decision Maker has no bearing on his claim, and no user of the DWP service is named in his ET1 or Scott Schedule.[77]Ms Campbell rightly observes that in the (unlikely) event that if there is a requirement to name a service user, then that service user’s name could be redacted. I agree with that observation by her, and, in appropriate cases, the Tribunal can and does make such anonymisation of service users by use of redaction, or giving Alpha ciphers. That, however, is not the situation here, in the present case, where the claimant seeks anonymisation of his own name.[78]In terms of the ET Rules of Procedure 2013, to avoid rejection under Rule 10, a ET1 claim form must include, amongst other things, certain minimum information, including each claimant’s name and address: Rule 10(1)(b). In bringing a claim, there is a requirement to name both parties, both claimant and respondent.[79]The claimant provided his name, although in the format of “Mr H Hassan”. He also provided, as required, his address. He has only sought anonymisation of his name. While parties receive Judgments with full names and addresses of both parties, any publicly available Judgment, posted online in the Employment Tribunals Decisions pages of Gov.UK does not give parties’ addresses, only their name. That practice affords a degree of privacy. Having clarified his full name, the Tribunal’s decisions have used his full name.[80]In his email of 16 January 2023, the claimant also refers to a “lifelong history of being subjected to racism and attacks”, and his “genuine concern that having an unusual and easily identifiable name can and does pose a serious security risk.” Again, without wishing to be unduly critical of the claimant, as an unrepresented party litigant, and merely as an observation on what he has provided to the Tribunal, he has made an assertion, unsupported by any supporting evidence produced to the Tribunal.[81]As the respondents have replied to that assertion, in Ms Campbell’s email of 26 January 2023, reproduced earlier in these Reasons, at paragraph 9 above, and her paragraph 10, no user of the DWP service is affected by the claimant’s Tribunal claim against the DWP as his employer, and I agree with Ms Campbell that there is “no basis for inferring that the ET claim will cause the Claimant to incur threats from service users, or anyone else”, and there is no evidence that the claimant could be at risk of harm.[82]In these circumstances, I agree with Ms Campbell’s statement, at her paragraph 11, in her objections of 26 January 2023, that “there is no basis upon which the conclude that a privacy order is required in the interests of justice and / or to protect a Convention right.”[83]So too do I agree with Ms Campbell’s statement, at her paragraphs 16 and 17, in her objections of 26 January 2023, that the claimant has not provided clear or cogent evidence to support his position that a derogation from the norm should apply here, and that the principle of open justice should prevail.[84]Further, while the claimant has said that to deny him the Rule 50 application would be to deny him his legal rights, I agree with Ms Campbell’s statement, at paragraph 17 of her response of 13 March 2023, that there is no evidence to show that, without a Rule 50 Order, there is any risk to the claimant, from any person, in proceeding with his ET claim, nor is there any evidence to show that his legal rights will be detrimentally impacted.[85]I recognise that the claimant, in paragraph 7 of his email of 1 March 2023, has stated that he is minded to consider whether or not it will be safe and practical to proceed with his claim in the event of being denied a Rule 50 Order, and by being deterred from bringing the claim, then he says that he is effectively being denied his legal rights.[86]That said, the claimant was not deterred from bringing his claim, as he has done so, and he has sought to pursue it against the DWP, by his continuing engagement in these proceedings. Article 6 of ECHR gives the right to a fair trial.[87]I would hope that the claimant will be re-assumed by that, as also by the fact that the good and orderly conduct of the proceedings rests in my hands as the allocated Judge, and, as per Rule 2, both parties have a duty to cooperate with each other and the Tribunal to ensure the overriding objective of dealing with the case fairly and justly is achieved. Disposal and Further
Procedure
[88]Having carefully considered the claimant’s opposed application for a Rule 50 Order from the Tribunal, at the continued in chambers Hearing held on Friday, 14 April 2023, I have refused it for the foregoing reasons, as set forth at paragraphs 53 to 78 of these Reasons, as above.[89]Further procedure in this case will now be determined at the further Case Management Preliminary Hearing assigned to be heard by me, in private, as an Employment Judge sitting alone, and conducted remotely by videoconferencing, using the Tribunal’s Cloud Video Platform (“CVP”) facility, on Tuesday, 16 May 2023, as previously ordered by the Tribunal, on 6 April 2023.[90]This decision is without prejudice to the claimant’s right, if so minded, to make a fresh application, at any time, for a specific Rule 50 Order, if there is a material change in circumstances, and, to that end, the usual liberty to apply is reserved to the claimant.
Evidence
[91]The respondent operates what is described as the “priority managed move register”. This is intended for people who needed a job move due a health condition or because they were at risk of redundancy. It is not in dispute that the claimant was not placed on this register.[92]In May 2022, JN moved to a new role outside the WHDM directorate. Normally this would mean that he would cease to provide the claimant with support but he continued with this in order to provide consistency and seek a resolution for the claimant.[93]In June 2022, EA became the claimant’s line manager. She had been his manager previously when he first started with the respondent. It was explained to the claimant by JN that EA would be dealing with the day-to-day management of his work and that JN would not get involved in this. EA also explained this to the claimant and asked him to contact her, and not HR, about day-to-day work issues.[94]On 23 June 2022, team leaders including EA were asked to attend an urgent meeting. At this meeting, they were advised that they would be moving to dealing claims under the EU Settlement Scheme (EUSS) with immediate effect. There would be a short amount of training on these the next day.[95]EA returned to her team and advised them of this. She also put it on the Teams chat for anyone who had already left for the day as well as sending an email detailing the training schedule.[96]The next day, EA was contacted by JN to inform her that the claimant had contacted him about the move to the EUSS claims and that the claimant did not want to move to these as it would be too much for him. EA was angry about this because the claimant had contacted JN without any attempt to speak to her first.[97]EA phoned the claimant the same day and stated that she was disappointed that he had gone to JN without discussing anything with her. She accepts that she called the claimant “discourteous” and that she raised her voice. When the claimant said that she was shouting during the call, she accepted this at the time and apologised. She stated to the claimant that she was annoyed and that he would be as well in the same situation.[98]On 29 June 2022, the claimant and JN discussed the conversation with EA of 23 June 2022. During this conversation, JN stated that he could understand why EA would consider that the claimant had been discourteous to her by contacting him about the change to EUSS claims rather than speaking to her first.[99]On 29 June 2022, PH and JN exchange chat messages over Teams regarding the claimant (p492). The discussion related to the claimant potentially moving to a different role or a different directorate. PH states to JN that she had discussed it with BW and that they were both concerned about “pushing a problem to someone else”. The chat messages saying nothing more about what is meant by “a problem”. PH’s evidence at the Tribunal was this was a badly worded reference to the fact that the claimant had made reference to being unhappy about how he had been treated and that this had never been resolved. She was concerned that he would take this view to another role and it could negatively impact on his view of the respondent generally.[100]It is not in dispute that on 28 July 2022, the claimant sent JN an email with the subject line “Breach of Equality Act 2010”. No evidence was led as to the content of the email and so no findings of fact have been made about this.[101]On the same day, JN informed the claimant that he would no longer be providing support to him. He confirmed this in an email to the claimant copied to EA of the same date (p582-583). The email explained that JN had considered for a while that he was not helping the situation and was causing confusion. He explained that he had moved roles and found it difficult to devote the time needed to support the claimant. He was no longer working in the WHDM directorate so was less aware of what was happening in the area of the organisation which ran the risk of giving incorrect advice. The email confirmed to the claimant that there was a mentor in place to support him in moving role.[102]JN had been considering moving away from supporting the claimant for some time. This could have happened when JN moved roles and ceased to be involved in HR support for the WHDM directorate but he had continued because he had built up a rapport with the claimant and felt that some consistency would be helpful in trying to resolve the claimant’s issues. However, over time JN had become concerned that no progress was being made and that his continued involvement was actually hindering matters.[103]One particular concern was the fact that the claimant would invoke his support from JN to try to avoid engaging in work that he did not want to do. The issue of the move to EUSS work was one example of this but there were other instances where the claimant sought to involve JN in his day-to-day work. For example, in May 2022 the claimant involved JN in his efforts to have the number of decisions he was expected to make each day reduced. There were also instances when HB had line managed the claimant where the claimant sought to involve JN in issues such as how many observations of his work HB would carry out (pp473-474) and an occasion when she asked him to confirm how many hours he was planning to work on a particular day (p463).[104]JN was also concerned at the fact that the claimant did not appear to want to take steps to formally resolve his concerns. JN had tried to get the claimant to engage with the respondent’s grievance processes but he did not do so. He would not provide detail of his complaints or take steps to process these. JN felt that the claimant was not listening to him.[105]In July 2022, LH was covering for EA whilst she was on holiday. On 14 July 2022, LH sent the claimant a chat message on Teams (p560) asking the claimant to undertake what are described as “full and fast decisions”. The reason for this was that another team member was off sick and LH needed to reallocate work amongst the team; he asked both the claimant and another team member to move to a different type of decision.[106]The claimant replied (p560) to say that he was updating his flexitime plans for the next day, visiting the office for part of the day and then using flexi time for the rest of that day. He made no mention of LH’s request to move to “full and fast decisions”.[107]On checking, LH identified that the claimant did no “full and fast decisions” on 14 July. He informed EA of this by email dated 18 July 2022 (p560).[108]EA had become increasingly concerned about the working relationship with the claimant. She felt that he would not comply with reasonable management instructions such as LH’s request on 14 July and EA’s attempts to arrange one-to-one meetings with him as she did for other members of the team (pp569-571). She was also concerned about his performance which she felt was below that of the other members of the team.[109]On 26 July 2022, EA contacted HR support by way of an online portal (pp572- 573) asking whether these were matters which could amount to disciplinary action. EA received a response on 27 July 2022 (pp575-576) which set out a range of options for trying to resolve the issues she had with the claimant. No disciplinary action against the claimant was pursued at that time.[110]EA took a two week holiday in August 2022. She informed staff of this in advance and who would be deputising for her. All of the team have her personal mobile number and she had previously indicated that staff could contact her when she was on leave.[111]On 21 September 2022, EA received an occupational health report in relation to the claimant. She had, for some time, sought to have him seek assistance when he complained about stress or other health issues but he had not taken up these options.[112]EA forwarded this to the claimant and phoned him later to discuss it. The claimant stated that he had not read it because he was busy completing EOIs. EA explained to the claimant that it was her understanding that staff should not be completing job applications during working time but that she would look into this. EA spoke to a grade 7 manager, Brian Fleming, who confirmed that she was correct. She confirmed this to the claimant.[113]In their ET3, the respondent raised an issue about whether the claim should have been accepted by the Tribunal in circumstances where the ET1 form did not contain the claimant’s full name. A hearing was listed to determine this issue but, on further consideration, the respondent decided not to pursue this point and it was dropped.[114]On 24 February 2023, the claimant sent an email to the respondent’s solicitor indicating that he wanted to pursue a grievance based on what was contained in his Scott Schedule prepared for the purposes of these proceedings (p655).[115]This was forward to LB who then passed it to NB. NB forwarded the grievance to the respondent’s HR Mediation and Investigation Service. This service asked the claimant to complete the respondent’s standard grievance form G1 (pp150-154) as required by the respondent’s grievance policy (p173). The reason for this is that the email from the claimant and the Scott Schedule did not set out the information which is required under the policy, for example, it does not set out the resolution sought by the claimant.[116]The claimant was asked to complete a G1 form in respect of each matter about which he complained. The reason for this is so that those who are the subject of any grievance can see what the complaint against them was said to be. This is the respondent’s standard practice where an employee seeks to grieve about more than one matter.[117]The investigation of the grievance was ongoing at the start of these proceedings. Submissions[118]Both parties lodged written submissions and had the opportunity to lodge written comments on each other’s submissions. The Tribunal has noted these but, for the sake of brevity, it does not intend to set these out in detail. It will refer to any relevant elements of the submissions in its decision below.[119]In particular, the claimant’s submissions were, for the most part, a transcript of the questions and answers asked in his cross-examination of the respondent’s witnesses. The Tribunal has made its findings of fact as set out above based on its note of the evidence.[120]The claimant did make reference to a previous Employment Tribunal judgment against the respondent from 2018. The case in question involved wholly different people and a wholly different factual matrix. It was a first instance decision of another Tribunal which is not binding on this Tribunal nor did this Tribunal consider that it was in any way persuasive or relevant to the issues to be determined in this case.
Relevant Law
[121]The Equality Act 2010 protects individuals from discrimination on the grounds of various protected characteristics. These include, for the purposes of this case, race.[122]The definition of direct discrimination in the 2010 Act is as follows: 13 Direct discrimination A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[123]These provisions do not stand on their own and any discrimination must be in the context of the provisions of the Act which makes it unlawful to discriminate in particular circumstances. The relevant provision in this case is s39 of the Act which deals with discrimination by employers to employees.[124]The burden of proof in claims under the 2010 Act is set out in s136: 136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[125]The burden of proving the facts referred to in s136(2) lies with the claimant. If this subsection is satisfied, however, then the burden shifts to the respondent to satisfy subsection 3.[126]Although the test for direct discrimination forms a single question, the caselaw indicates that it is often helpful to separate this into two elements; the less favourable treatment and the reason for that less favourable treatment.[127]In order for there to be less favourable treatment, the claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether “by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work” (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 HL).[128]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (s23 of the Equality Act 2010). In deciding how a hypothetical comparator would have been treated, the Tribunal is entitled to have regard to the treatment of real individuals (see, for example, Chief Constable of West Yorkshire Police v Vento [2001 IRLR 124).[129]However, a difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; “something more” is required (Madarassy v Nomura International [2007] IRLR 246). The Tribunal needs evidence from which it could draw an inference that race was the reason for the difference in treatment.[130]It is important to remember that unreasonable or unfair behaviour is not enough to allow for an inference of direct discrimination (Bahl v The Law Society [2004] IRLR 799).[131]It is a well-established principle that Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong [2005] ICR 931 (as approved by the Supreme Court in Hewage v Grampian Health Board [2012] IRLR 870): “(1) Pursuant to s 63A of the SDA 1975[now s136 of the Equality Act 2010], it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word 'could' in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.”[132]The Igen case was decided before the Equality Act was in force but the guidance remains authoritative, particularly in light of the Hewage case.[133]Hewage emphasised that a Tribunal should not take an overly technical approach to the burden of proof provisions per Lord Hope: “32. … it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”[134]Similar views were expressed in Laing v Manchester City Council [2006] ICR 1519, EAT where Elias P (as he then was) observed: “76… The reason for the two-stage approach is that there may be circumstances where it would be to the detriment of the employee if there were a prima facie case and no burden was placed on the employer, because they may be imposing a burden on the employee which he cannot fairly be expected to have discharged and which should evidentially have shifted to the employer. But where the tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever. 77. Indeed, it is important to emphasise that it is not the employee who will be disadvantaged if the tribunal focuses only on the second stage. Rather the risk is to an employer who may be found not to have discharged a burden which the tribunal ought not to have placed on him in the first place. That is something which tribunals will have to bear in mind if they miss out the first stage. Moreover, if the employer's evidence strongly suggests that he was in fact discriminating on grounds of race, that evidence could surely be relied on by the tribunal to reach a finding of discrimination even if the prima facie case had not been established. The tribunal cannot ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage. That would be to let form rule over substance.”[135]Harassment is defined in s26 of the Equality Act 2010: 26 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) …(3) …(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are— … race; religion or belief …[136]In Hartley v Foreign and Commonwealth Office UKEAT/0033/15 (27 May 2016, unreported) it was held that the question whether there is harassment must be considered in the light of all the circumstances of the case. Where the claim is based on things said it is not enough only to look at what the speaker may or may not have meant by the wording.[137]However, even where certain elements of the test for harassment are met (for example, unwanted conduct and the violation of the claimant’s dignity), the Tribunal must still consider the “related to” question and make clear findings as to why any conduct is related to a protected characteristic (UNITE the Union v Nailard [2018] IRLR 730; Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495, EAT).[138]The test for victimisation is set out in s27 of the Equality Act 2010:- 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.[139]It is important to distinguish between cases where the alleged detriment has a connection to the protected act but is not “because” of it from those cases where the detriment is directly because of the protected act.[140]For example, in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, it was held that a refusal of a reference did not amount to victimisation on the basis that it was not refused because of the fact that the claimant had brought a race discrimination but because of the imminence of the hearing in the case and the respondent’s desire to protect their position in the litigation.[141]In St Helens Borough Council v Derbyshire [2007] IRLR 540, the House of Lords considered the issue of victimisation in the context of communications sent to claimants by their employer seeking to persuade them to settle their equal pay claims. Although the Lords decided the communications in that case were an act of victimisation, they made the following comments in relation to what would be a “detriment” in such a scenario (Lord Neuberger at para 68): “In my judgment, a more satisfactory conclusion, which in practice would almost always involve identical considerations, and produce a result identical, to that in Khan, involves focusing on the word 'detriment' rather than on the words 'by reason that'. If, in the course of equal pay proceedings, the employer's solicitor were to write to the employee's solicitor setting out, in appropriately measured and accurate terms, the financial or employment consequences of the claim succeeding, or the risks to the employee if the claim fails, or terms of settlement which are unattractive to the employee, I do not see how any distress thereby induced in the employee could be said to constitute 'detriment' for the purposes of ss.4 and 6 of the 1975 Act, as it would not satisfy the test as formulated by Brightman LJ in Jeremiah, as considered and approved in your Lordships' House. An alleged victim cannot establish 'detriment' merely by showing that she had suffered mental distress: before she could succeed, it would have to be objectively reasonable in all the circumstances. The bringing of an equal pay claim, however strong the claim may be, carries with it, like any other litigation, inevitable distress and worry. Distress and worry which may be induced by the employer's honest and reasonable conduct in the course of his defence or in the conduct of any settlement negotiations, cannot (save, possibly, in the most unusual circumstances) constitute 'detriment' for the purposes of ss.4 and 6 of the 1975 Act.”[142]The provisions relating to the burden of proof set out above apply equally to a victimisation claim as they do to a claim for direct discrimination. Decision - introduction[143]The Tribunal intends to break its decision down into three main parts. First, it will address certain issues which apply across all of the allegations made by the claimant. Second, it will set out its decision in respect of each of the 39 allegations made by the claimant. Third, conscious of the fact that the evidence has to be considered as a whole, the Tribunal will deal with the case in the round and, in particular, whether any adverse inferences of discrimination can be drawn from the evidence as a whole. Decision – issues of general application[144]The first issue of general application relates to the question of whether the claimant carried out any protected acts in terms of s27 EqA. This is important as the claimant alleges victimisation in relation to almost all of the 39 allegations and so it is important to identify what protected acts he did (if any) and whether those were done before the alleged act of victimisation.[145]The claimant relies on four broad protected acts which are broken down further in his Scott Schedule as follows:a. Carrying out his role as a Diversity & Inclusion National Lead. i. He alleges that he sent an email to JB3, PH and NB on 11 March 2022 that he would continue in his role. ii. He alleges that he sent an email to Diversity & Inclusion colleagues on 15 March 2022 about his own lived experience of racism. iii. He alleges he sent an email to JB2 on 17 March 2022 stating that he intended to continue carrying out his role in an Equality Act compliant manner. iv. He alleges he sent an email to JB3 and PH on 25 March 2022 stating that he would continue in his role.b. Reporting LGBT+ concerns. i. He alleges that he informed BP during a telephone conversation on 26 January 2022 that JB2 had admitted lying to senior managers about plans for LGBT+ History Month. ii. He alleges that he informed NB about the same matter during a telephone conversation on 11 March 2022. iii. He alleges that he sent an email to BW on 18 March 2022 making the same allegation.c. Sending emails with the subject line “Breach of Equality Act 2010”. i. One email was sent to NB on 15 March 2022. ii. A second email was sent to JN on 27 July 2022.d. The bringing of the present proceedings.[146]The respondent concedes that the third and fourth matters are protected acts for the purpose of the Equality Act. These protected acts can only, as a matter of logic, be relevant to alleged acts of victimisation which occurred after these protected acts were done.[147]The respondent does dispute that the first two matters amount to protected acts and so the Tribunal does require to determine whether these meet the definition in s27(2).[148]In relation to the first matter, the Tribunal does not consider that simply holding a diversity and inclusion role within an organisation is a protected act. It clearly does not fall within s27(2)(a), (b) or (d). The claimant asserts that this falls within s27(2)(c) but presented no legal authority for this proposition and the Tribunal is unaware of any caselaw supporting the claimant’s position.[149]The Tribunal considers that holding such a role in and of itself does not fall with s27(2)(c) as it is not an “act” in the sense of something being done. If the Tribunal was to accept the claimant’s position, it would, in effect, be creating a new protected characteristic of holding a diversity and inclusion role. The Tribunal considers that if Parliament had intended for such roles to be protected then it would have expressly said so.[150]Of course, it could well be the case that someone in such a role could, as part of that role, do things which amount to protected acts and so the Tribunal had considered whether the individual emails on which the claimant relies could be protected acts.[151]In relation to the emails of 15, 17 and 25 March 2022, the claimant led no evidence whatsoever about these. They are not mentioned at all in his witness statement, his supplementary oral evidence or either bundle. Further, nothing was put to any of the respondent’s witnesses in cross-examination about these emails.[152]In these circumstances, the Tribunal considers that the claimant has failed to discharge the burden of proving that he did these purported acts at all, let alone that they amounted to a protected act as defined in s27(2).[153]The position is different for the email of 11 March 2022; in his witness statement, the claimant makes reference to sending an email to the people in question on this date. However, the statement says nothing more than that an email was sent with no description of its content and no reference to any document in either bundle.[154]The statement of JB3 makes reference to an exchange of email correspondence on 11 March 2022 between her and the claimant (with NB and PH copied in) which is at pp351-354. It is not clear if this includes the email on which the claimant relies but there is an email within the exchange from the claimant at 14.05 (p352) where he suggests that he continues in his diversity and inclusion role whilst having discussions with NB and HA to try to resolve the issues which had arisen between him and JB2.[155]On the assumption that this is the email relied on by the claimant then the Tribunal does not consider that this amounts to a protected act. It clearly does not fall within s27(2)(a), (b) or (d). In terms of s27(2)(c), the Tribunal does not consider that the mere fact that the claimant mentions the Equality Act in this email is sufficient to say that the email was sent for the purposes of the Act or in connection with it. Rather, the purpose of the email is simply to make the suggestion that the claimant continue in the diversity and inclusion role.[156]For these reasons, the Tribunal does not consider that the first matter is a protected act.[157]Turning to the second matter relied on by the claimant, the same issue regarding a lack of evidence arises in respect of the alleged conversation with NB and the email to BW. Neither of these matters are mentioned in the claimant’s witness statement or his oral evidence.[158]Again, neither of these matters were put to the witnesses in crossexamination. This is important as NB stated in his statement that he had no recollection of the claimant saying anything about LGBT issues during their conversation on 11 March 2022 and the claimant did not challenge this.[159]Although the claimant makes no reference in his evidence about the email to BW, she does, in her statement, refer to an email exchange on 18 March 2022 which includes an email at p393 in which the claimant alleges that JB2 “lied to Grade 6 manager in an email about LGBT+ matters”.[160]The claimant does make reference in his statement to the conversation with BP (although it should be noted that he says very little about this other than that BP did not want to comment on JB2’s “duplicity” about LGBT issue) and BP accepts in his statement that there was a discussion about LGBT issues but could not recall the detail of this. In a contemporaneous email sent by BP to HA on 28 January 2022 (pp303-304), he records that the claimant spoke about JB2 and him clashing over the theme for LGBT History Month.[161]In these circumstances, the Tribunal finds that the claimant has not discharged the burden of proof in respect of the conversation with NB and there is no evidential basis on which the Tribunal could conclude that this occurred as alleged.[162]The Tribunal does find that the claimant did discuss an issue around a dispute with JB2 in relation to the theme for LGBT History Month with BP on 26 January 2022 and made an allegation that JB2 had lied about such issues to BW in an email of 18 March 2022.[163]However, the Tribunal does not consider that these amount to protected acts. They are not allegations against JB2 of unlawful discrimination and rather refer to an email exchange at pp268-269 in which JB2 stated that there did not seem to be a plan for LGBT+ History Month in the national group and the claimant correcting him to say that the claimant had been engaged in discussions about this (which had not involved JB2). Putting aside the fact that this does not, on the face of it, suggest the JB2 was lying or being duplicitous but was simply unaware of the claimant’s actions, nothing in this involves anything which would fall within the definition of protected act in s27(2) EqA.[164]Taken at its highest, what was said by the claimant on 26 January and in his email of 18 March 2022 was a complaint that JB2 had misled a manager about there being no plans for LGBT+ History Month. This comes nowhere close to an allegation that JB2 had contravened the Equality Act.[165]For these reasons, the Tribunal does not consider that the second matter relied on by the claimant amounts to a protected act.[166]One consequence of the Tribunal’s findings that the first two matters are not protected acts is that allegations 1-17 cannot amount to victimisation at all. The claims of victimisation in respect of these allegations solely rely on the first two matters as protected acts and so cannot be victimisation if those matters are not protected acts.[167]The claimant also sets out a protected act which did not fall within the four broad headings above. He alleges that he informed JN of a racist image of HA during a Teams call on 18 May 2022; this is referenced in the claimant’s witness statement and JN accepted that the claimant informed him of such a photograph but chose not to share it with him at the time.[168]However, although this matter is listed as a protected act at the end of the claimant’s Scott Schedule, it is not mentioned at all in the substantive part of the Schedule. There is no reference to this matter at all in respect of any of the 39 allegations and so it is not part of the claimant’s case that this matter was the cause of any of the alleged victimisation.[169]In these circumstances, the Tribunal considers that, regardless of whether or not this matter amounts to a protected act, it is not relevant to the issues to be determined because the claimant does not rely on it as causing any of the alleged victimisation.[170]The second issue of general application relates to the knowledge of the alleged discriminators of the protected acts and the claimant’s protected characteristic.[171]The claimant did not establish with any of the respondent’s witnesses that they were aware of any of the matters relied on by him as protected acts in his victimisation claims. This is the case for both those matters which the respondent has conceded are protected acts and the matters which the Tribunal has found not to be protected acts.[172]In these circumstances, the Tribunal has no evidence to conclude that anyone, other than those who were the recipients of the relevant emails or involved in the relevant conversations, were aware of the alleged protected acts. It is axiomatic that if someone was unaware of a protected act then this cannot be a matter which bore on their subsequent actions.[173]This is particularly important in respect of the emails of 15 March and 27 July 2022. The only people for whom the Tribunal has evidence that they were aware of the 15 March email was NB, the recipient, as well as JN and PH who NB discussed the email with at the time as set out in a timeline document he prepared which appears at p285. In relation to the 27 July email, the evidence before the Tribunal as to who was aware of this was JN, the recipient, and no-one else.[174]For these reasons, the Tribunal concludes that where anyone else (for example, EA or LH) is alleged to have victimised the claimant because he sent the March and July emails then these claims are not well-founded because those people had no knowledge of those emails.[175]The same issue arises in respect of the protected characteristic of religion/belief. The claimant did not establish with any witness that they were aware of the claimant’s religion, either expressly or by inference. None of the respondent’s witnesses gave any evidence in their statements that they were aware of the claimant’s religion or had made any assumptions about this. A number of the respondent’s witnesses expressly denied knowing the claimant’s religion in their statement (for example, JN, PH, PS and BW) and the claimant did not challenge this in cross-examination.[176]The Tribunal considers that the absence of any evidence that the alleged discriminators expressly knew the claimant’s religion or from which the Tribunal could infer that they had a particular perception of the religion to which he may belong weighs heavily against drawing any inference that any actions by the alleged discrimination were on the grounds of religion or related to religion.[177]This is important in case such as this where there is no direct evidence that any of the alleged discrimination was on the grounds of, or related to, religion and the claimant is asking the Tribunal to draw adverse inferences that what may otherwise be “innocent” acts are unlawful discrimination. The Tribunal will address this further below.[178]There is a similar issue with the protected characteristic of race and, in particular, the element of the definition of “race” in s9 of the Equality Act relied on by the claimant. In his ET1 at paragraph f) of the paper apart, the claimant sets out that, for the purposes of race, he relies on his nationality of Asian/British.[179]Again, none of the respondent’s witness statements say anything about the witnesses knowledge of the claimant’s race or nationality being Asian/British and a number of them deny any knowledge of the claimant’s race having never met in person and noting that he would have his camera switched off in video meetings. The claimant did not challenge any of this in crossexamination by putting to the witnesses that they had express knowledge of his race or that such knowledge could be inferred in some way.[180]The Tribunal is not prepared to draw any inferences about what knowledge or perception any of the witnesses may have had about the claimant’s race (and, specifically, what is relied on in his ET1) in the absence of evidence from which it could draw such inferences. To do so would involve the Tribunal in making stereotypical and unevidenced assumptions about what those witnesses may have concluded about the claimant.[181]This is, again, something which weighs heavily against drawing any adverse inferences about any alleged discrimination being on the grounds of, or related to, race.[182]Having dealt with these two issues of general application, the Tribunal will now address each allegation.[183]The claimant alleges that, during their conversation on 26 January 2022, BP refused to take action about JB2’s LGBT discrimination and instead instructed the claimant not to contact other diversity and inclusion leads. He alleges that this amounts to harassment on the grounds of race/religion and[184]Based on the evidence before it, the Tribunal does not consider that the claimant raised any issue of discrimination by JB2 during this conversation but, rather, discussed a clash between the two of them about the theme for LGBT+ History Month. This is what is recorded in BP’s contemporaneous email to HA at p303 and the Tribunal prefers this evidence to that of the claimant.[185]This is not a matter which required BP to take any action and so the Tribunal is not surprised that he took no action. Further, there is no connection between this matter and BP’s subsequent suggestion to the claimant that he follow JB2’s advice regarding contacting other diversity and inclusion leads. They were part of the same conversation which BP described as being an hour in length and which covered a range of topics about the claimant’s interactions with JB2. There is nothing in the evidence before the Tribunal which suggests that one was a consequence of the other.[186]The evidence of both the claimant and BP was that BP suggested the claimant follow JB2’s advice and not that BP instructed the claimant to not contact other diversity leads as alleged in the Scott Schedule. The Tribunal accepts the evidence of BP that he was seeking to avoid inflaming issues whilst efforts were being made to resolve things between the claimant and JB2 as the reason why he suggested that the claimant following JB2’s advice for the moment.[187]There is certainly no evidence from which the Tribunal could draw any inference that BP’s suggestion to the claimant was related to the claimant’s race or religion. The claimant suggests that other members of the diversity and inclusion group were not treated in the same way. This confuses the test for direct discrimination (where a comparator is needed) with that for harassment (where no comparator is needed but the treatment of others may be relevant evidence). In any event, there was no evidence led by the claimant about anyone else being treated differently in the same or similar circumstances.[188]This is one of the allegations of victimisation that relies on matters which the Tribunal has held are not protected acts and so that claim fails in respect of this allegation for that reason. Allegations 2 & 3[189]These allegations can be addressed together as they both relate to the contents of a complaint made by JB2 to HA, JB3 and BP on 27 January 2024. The contents of the complaint are said to only amount to victimisation and this claim relies on matters which the Tribunal has held are not protected acts. The claim of victimisation in respect of these allegations fails for this reason. Allegation 4[190]This allegation relates to the email exchange between JB2 and the claimant at pp291-293 in which JB2 sought information about the contact the claimant had made with the United Network group within the respondent. The claimant alleges that the email correspondence amounts to harassment and[191]The Tribunal can well understand why JB2 was asking the claimant for this information. From his perspective, his invitation to attend a meeting of the United Network was withdrawn out of the blue and for no obvious reason. The email withdrawing his invitation (pp288-289) was copied to the claimant who had not been invited to the meeting as the invitation did not relate to their co-chair role but another role which JB2 held. In these circumstances, the Tribunal considers that it was not unreasonable of JB2 to ask the claimant what contact he had made with the group in order to ascertain what prompted his invitation to be withdrawn.[192]This is, on the face of the evidence, the clear reason why JB2 initiated the email exchange and has nothing to do with the claimant’s race or religion.[193]It is correct that JB2 sent a second email seeking the same information after the claimant replied to his initial email. However, the clear reason for this is that the claimant did not provide the information requested; JB2 had asked the claimant to clarify what contact the claimant had made with the group and the claimant replied that he did not know why the invitation was withdrawn. This may be correct but it is not what JB2 asked.[194]The claimant’s response was, at best, obtuse if not outright evasive and the Tribunal can well understand why JB2 repeated his request for information. The repeated request was clearly made because the claimant did not answer the question posed in the original email rather than the claimant’s race or religion.[195]Again, this is an allegation where the victimisation claim relies on matters the[196]This allegation relates to a telephone call between the claimant and PS on 2 February 2022 in which it is said that she was micro-managing the claimant and acting unreasonably by asking him to follow the respondent’s procedures.[197]The allegation relates to an expression of interest (EOI) which the claimant had issued to staff at the Leeds office to become involved in the local diversity and inclusion group at that office. PS was concerned, not with the EOI itself, but with the fact that it was drafted by the claimant without any consultation with others and had not been posted on the respondent’s intranet. She was also concerned that the claimant had asked for the EOIs to be returned to him and that this was not the proper procedure; anyone sifting EOIs had to have training for this and that there should be two people carrying out the sift with one person of a higher grade.[198]PS spoke to the claimant to explain these issues to the claimant and ask him to ensure that the proper process is followed. The Tribunal does not consider that this amounts to an unreasonable management instruction and does not amount to micro-management. Ensuring staff follow proper procedures in their work is clearly something that falls within the scope of management discretion.[199]Further, the evidence of PS, which was not disputed by the claimant, was that she spoke to him at his request. It was the claimant’s line manager at the time, HA, who initially spoke to him about the concerns which PS had and she only contacted the claimant directly when he asked to speak to her. Contact from PS was not, therefore, “unwanted conduct” in terms of the test for harassment.[200]There are clear reasons why PS spoke to the claimant about these matters (that is, her concerns about procedure not being followed and the claimant asking to speak to her) which are wholly unrelated to the claimant’s race or religion. Indeed, PS gave evidence (unchallenged by the claimant) that she was wholly unaware of his race or religion and had never spoken to him previously.[201]The claimant makes reference to other staff not being treated in the same way. Again, this confuses the test for direct discrimination with that for harassment but, in any event, the claimant led no evidence that other staff were issuing EOIs in a way that did not comply with procedure and had not been spoken to about that.[202]Again, this is an allegation where the victimisation claim relies on matters the Decision - Allegation 6[203]This allegation relates to an email which the claimant says BP and JB2 sent on 9 February 2022 to JB3 presenting a diversity and inclusion project of their own.[204]The claimant gave oral evidence about this email but he did not include it in the bundle. He described it as being sent by JB2 to JB3 copying in BP and the claimant. It was sent before People Group meeting at 11am that day. He did not describe the content.[205]Neither JB2, BP nor JB3 made reference to this email in their witness statements and the claimant did not put anything about it to them in crossexamination.[206]The Tribunal considers that the claimant has not discharged the burden of proof in establishing a case that, on the face of it, this email amounted to harassment in the grounds of race or religion.[207]The mere sending of an email by JB2 is not a detriment to the claimant without more evidence about the contents and context of the email. The claimant has led no evidence about this and so the Tribunal can make no findings that there was anything about the email which violated his dignity or created an unlawful environment for him.[208]There is certainly no evidence that this email was related to the claimant’s race or religion.[209]Again, this is an allegation where the victimisation claim relies on matters the[210]This relates to an email sent by JB2 to JB3 on 16 February 2022 (p319) in which he advises her that the claimant had told the diversity and inclusion team that JB2 had prevented him from contacting them. He also draws her attention to links to a newspaper article and a YouTube video posted by the claimant in a group chat without comment about which he had concerns.[211]The Tribunal accepts the evidence of JB2 that he had genuine concerns about these being posted without the claimant explaining the point he was trying to make because this could lead to misinterpretation.[212]This email also has to be considered in the context of the difficulties in the working relationship between JB2 and the claimant which had developed by that point. JB2 had raised a number of issues about the claimant and the claimant had raised issues about JB2. The Tribunal considers that there was clearly a difficult working relationship by this point but that this was wholly unconnected with the claimant’s protected characteristics and those of JB2.[213]There is certainly nothing in the email and the surrounding circumstances that provides any evidence that this was related to the claimant’s race or religion.[214]Again, this is an allegation where the victimisation claim relies on matters the[215]This relates to a purported email exchange between JN and JB3 on 17 February 2022 in which it is said that they discuss the email from JB2 at p319 and agree that the claimant should face disciplinary action.[216]The claimant did not reference this in his witness statement and gave very brief oral evidence about this, stating that there was criticism of his diversity and inclusion work and that he should face disciplinary action for posting the links referred to at p319. The email exchange in question was not produced in either of the bundles.[217]Neither JB3 nor JN made any reference to this email exchange in their evidence. The claimant did not put anything to either of them about this matter in cross-examination.[218]When the claimant was cross-examined, he was asked if JB3 & JN had suggested disciplinary action for posting these links and he answered no. This contradicts what is pled by the claimant.[219]Given the paucity of evidence about this issue and the concerns about the credibility and reliability of the claimant (particularly given the contradiction between his pled case and his limited evidence on this point), the Tribunal is not prepared to make any finding that this email exchange occurred as described. The Tribunal has no basis to reach any conclusion about what, if anything, was said by JB3 or JN in this exchange nor the context in which it was said.[220]There was certainly nothing from which the Tribunal could conclude that there was something related to the claimant’s race or religion in the email exchange.[221]In these circumstances, the claimant has failed to discharge the burden of proof in respect of this allegation.[222]This is a further instance of an allegation where the victimisation claim relies on matters the Tribunal has found do not amount to protected acts.[223]The claimant alleges that he was victimised when the respondent refused to alter their standard mediation agreement to remove a clause which he says would prevent him bringing a claim to the Employment Tribunal.[224]The Tribunal is satisfied that the terms of the mediation agreement (p192- 193) did not preclude the claimant from bringing Employment Tribunal proceedings. The most that it requires is that parties keep what is discussed during the mediation confidential (something which, in the Tribunal’s judicial knowledge, is a standard requirement in mediation) and that anything said at the mediation is treated as “without prejudice” meaning it cannot be used as evidence at any Tribunal proceedings. This did not preclude the claimant from bringing such proceedings.[225]In these circumstances, there was no need for the agreement to be altered. It is also worth noting that JB2 was being asked to agree to the same terms.[226]In any event, this allegation is only advanced as victimisation and relies on matters which the Tribunal has held are not protected acts. The claim of victimisation in respect of these allegations fails for this reason alone.[227]This allegation relates to an email purportedly sent by BP on 11 March 2023. The claimant led no evidence about this allegation at all. It did not feature in his statement and, although he referred to it in his oral evidence, he said no more than confirming that the email in question was not in either bundle. Further, nothing was put to BP about this in cross-examination.[228]The claimant has failed to discharge the burden of proof in respect of this allegation. In the absence of any evidence about the allegation, the Tribunal is not prepared to find that it occurred as alleged or at all. The claims made in respect of this allegation are wholly unfounded. Decision – Allegations 11 & 12[229]The Tribunal will consider these allegations together as they both relate to a telephone call between the claimant and NB on 11 March 2022. In this conversation, NB conveyed the discussion between him, JB3 and PS about the difficulties in the working relationship of the claimant and JB2 which resulted in the decision to ask the claimant to step down from his role as cochair of the Diversity & Inclusion group.[230]The claimant alleges that being asked to step down amount to harassment on the grounds of race or religion and an act of victimisation.[231]He also alleges that a comment made by NB about his parents and partner having also worked for the respondent and describing it as “the family business” amounts to direct discrimination on the grounds of race or religion, harassment on the same grounds and victimisation.[232]In respect of the request for the claimant to step down from his role as cochair, the Tribunal is satisfied that this was done for reasons wholly unrelated to the claimant’s race or religion. The decision clearly arose from the breakdown of the relationship between the claimant and JB2.[233]In terms of the decision to ask the claimant to step back rather than JB2, the Tribunal accepts the evidence of JB3 that the reasons for this related to the fact that JB2 had been involved in the group for a longer period and that the issues which had arisen stemmed from the claimant’s behaviour rather than that of JB2. Further, it had been the claimant who had stymied attempts to resolve these difficulties by way of mediation.[234]There is no evidence at all from which the Tribunal could draw the inference that the decision to ask the claimant to step down from the role was in any way related to his race or religion.[235]In relation to the comment by NB, the Tribunal accepts his evidence that this was a comment made at the start of the conversation when he and the claimant were getting to know each other. It is the sort of comment that would be unsurprising in a first conversation between a manager and a member of staff when they were getting to know each other. In the Tribunal’s view, the claimant has exaggerated the importance of this comment and sought to imply some sinister and threatening overtone which simply did not exist.[236]In any event, there was no evidence at all this comment was made on the grounds of the claimant’s race or religion or was related to those characteristics. The claimant alleges that NB did not make the same comment to people of a different race or religion to the claimant but led no evidence to support this assertion.[237]These are further allegations where the victimisation claim relies on matters the Tribunal has found do not amount to protected acts.[238]The claimant alleges that NB’s failure reply to an email he sent to him at 12.07 on 11 March 2022 (pp353-354) after their telephone conversation of the same day amounts to harassment on the grounds of race or religion as well as[239]It is true that NB did not reply to that initial email. However, it is quite clear from the whole email exchange on that day (pp351-354) that JB3 replied to the claimant’s email to NB (she had been copied into the email and the claimant specifically sought her engagement in his initial email) and then engaged in further email correspondence that same day. Given that JB3 is a more senior manager than NB, the Tribunal cannot see how the claimant had been disadvantaged by the lack of a reply from NB or how this violated his dignity or created an unlawful environment for the claimant.[240]The Tribunal accepts the evidence of NB that the reason why he did not respond directly was that JB3 had replied. This is a reason wholly unrelated to race or religion.[241]This is a further instance of an allegation where the victimisation claim relies on matters the Tribunal has found do not amount to protected acts. Decision – Allegations 14 – 22[242]The claimant led no evidence at all regarding these allegations. They were not mentioned in his witness statement and he did not give any oral evidence when the Tribunal allowed him to supplement his witness statement. A number of the allegations refer to email correspondence (either between the claimant and others or between others about the claimant), most of which do not appear in either of the bundles. There are two exceptions which the Tribunal will address below.[243]The Tribunal considers that the claimant has failed to discharge the burden of proof in respect of these allegations. He has wholly failed to present evidence which substantiated that the matters giving rise to these allegations occurred as described, let alone evidence from which the Tribunal could draw an inference that these matters amounted to unlawful discrimination.[244]There was some evidence from the respondent’s witnesses in respect of certain of the allegations which the Tribunal will address:a. JN’s witness statement refers to the email exchange between him and JB3 that forms the basis of allegations 14 & 15 with the emails appearing at pp665-666. The Tribunal considers that this is nothing more than a manager (JB3) seeking advice from an HR adviser (JN) about the content of an email from a member of staff about which she is concerned. JN then provides advice that the email is not a breach of standards but was “cack-handed” in tone and unclear as to its purpose. It is worth noting that the claimant was not copied into this exchange at the time and only became aware of it some months later when he received a response to a subject access request. There is nothing in the evidence before the Tribunal from which it could conclude that this exchange was related to the claimant’s race or religion. It was quite clearly prompted by JB3’s concerns about the claimant’s email.b. JB3’s witness statement refers to an email which she sent to the claimant on 25 March 2022 (p649) which forms the basis of allegation 22. The claimant states that he was victimised in this email because JB3 refused to reinstate him to the co-chair role. However, this is not how the email is couched; JB3 sets out conditions which she considers are required for the co-chair arrangement to continue and that if these are not met then a single chair arrangement (which exists in other strands of the People Group) would be in place. This is very different from refusing to reinstate the claimant and the Tribunal considers that, when read as a whole, the email is encouraging the claimant to find a way to resolve the issues with JB2. There is no evidence of any response from the claimant at all, let alone a response in which he engages with the conditions set out by JB3 for continuing the co-chair arrangement. There is certainly nothing on the face of the email or in the evidence about it in JB3’s statement which suggests that the terms in which it was worded was, in any way, because the claimant had sent the email to NB with the subject line “Breach of Equality Act” (which is the only matter relied on as a protected act which meets the statutory definition).[245]The Tribunal also notes that allegations 18-20 relate to matters which arose in consequence of the decision for him to step away from the co-chair role (for example, the claimant receiving cancellation notifications for meetings of the diversity and inclusion group). The Tribunal does not consider that these are separate acts of victimisation but, rather, are the consequence of the earlier decision which forms the basis of allegation 11.[246]The Tribunal has set out above the reasons why it does not consider that allegation 11 amounts to harassment and victimisation. For those same reasons, even if the claimant had led some evidence about allegations 18-20, it would have concluded that these allegations are also not well founded.[247]This allegation relates to an image of HA shared by MW on 27 April 2022 with the rest of the team managed by HA (including the claimant). The image appears at p619 and the original post appears at C34. The image of HA has been altered to add a crown, sunglasses and jewellery. It is accompanied by the text “will be a sad say. What a baller!”. The claimant alleges that this image amounts to harassment on the grounds of race or religion.[248]The Tribunal considers that the context in which the image is sent is important. HA was leaving his role as team leader at this time. The Tribunal accepts the evidence of MW (not disputed by the claimant) that HA was a popular manager with his team, having done a lot to assist many of them in securing permanent employment with the respondent and that the team was sad to see him leave.[249]The Tribunal also accepts the evidence of MW that the image was sent in tribute to HA to acknowledge his departure and how the team felt about him. This is supported by the words used in the post accompanying the image.[250]In these circumstances, the Tribunal does not consider that there is any basis to conclude that the image was shared for the purpose of violating the claimant’s dignity or creating the type of environment prohibited by s26 of the Equality Act.[251]Regardless of the purpose, the Tribunal has to consider whether the sharing of the image had the relevant effect in terms of s26. The Tribunal notes that the claimant did describe the image as “racist” to JN during a conversation on 18 May 2022. However, on his own evidence, he did not suggest to JN that this had violated his dignity or created a prohibited environment. Further, he declined to share the image with JN and raised no formal grievance about the image at the time.[252]Indeed, no-one else (including HA) raised any complaint or grievance about the image at the time or since.[253]The context in which the image was sent is also important in terms of its effect. It was clearly not being sent to denigrate or insult HA but, rather, was intended to praise him and reflect the feelings of the team about his departure.[254]Taking all of these matters into account, the Tribunal does not consider that it was reasonable for the sharing of the image to have the prohibited effect required for the claim of harassment to succeed.[255]The claimant alleges that JN had promised him a job move to another directorate such as Customer Experience throughout April to June but did not provide the claimant with such a job move. The claimant alleges that this amounts to victimisation with the relevant protected act being the claimant’s email to NB of March 2022. The Tribunal does not consider that the email to JN of July 2022 can be relevant to this allegation because it was sent after the period over which the claimant alleges he was victimised.[256]The difficulty for the claimant is that he does not give any evidence that JN promised the claimant a job move. None of the evidence about his conversations with JN set out in his witness statement record JN making such a promise. The evidence from the claimant was that there was discussion about a move to a different job and what types of job might be suitable but nothing that comes close to a promise by JN that the claimant would be found a job move. The closest discussion was JN explaining to the claimant that there were processes in place for job moves and so such moves were possible but the Tribunal does not consider that this was a promise to move the claimant.[257]There was also evidence of discussions between the claimant and JN about the difficulties in securing a job move at the time including what vacancies existed at the time (including the fact that some vacancies were at a lower grade and that higher graded jobs required an open and competitive recruitment process), redeployment occurring elsewhere in the respondent’s organisation which had to be resolved before it was clear what vacancies might exist and a recruitment freeze in the Customer Experience directorate.[258]This accords with the evidence of JN who describes similar discussions about what roles the claimant might be interested in and looking into whether there were any suitable vacancies but that there were none at the time. Nothing was put by the claimant to JN in cross-examination that JN promised a job move.[259]In these circumstances, there is no evidence from which the Tribunal could conclude that JN had made such a promise. However, conscious of the requirement to avoid undue technicality, the Tribunal has proceeded on the basis that the crux of this allegation is that JN did not secure a job move for the claimant regardless of whether or not that was promised.[260]The difficulty for the claimant is that he has led no evidence that there was any job vacancy at the time into which he could have been moved. As a result, there is nothing before the Tribunal to show that there was a job or jobs to which he could have been moved. If there was no job into which he could be moved then this is clearly the reason why there was no job move rather than the email he sent to NB in March 2022.[261]This is supported by the evidence of JN which the Tribunal accepts. He describes the difficulties in finding a suitable vacancy in both his witness statement and in his oral evidence given during cross-examination. The Tribunal notes that what JN describes in his evidence accords with the claimant’s own evidence of what was said at the time.[262]For these reasons, the Tribunal considers there is no basis to conclude that the reason why the claimant was not found a job move in the period April to June 2022 was because he carried out a protected act as alleged.[263]The claimant alleges that, during a conversation on 18 May 2022, JN refused to view the image of HA which forms the basis of allegation 23. The claimant asserts that this amounts to direct discrimination and harassment on the grounds of race or religion.[264]JN disputes the claimant’s version of events. It is his evidence that the claimant mentioned an inappropriate image of HA but would not provide any specifics. JN states that he informed that the claimant that it was the claimant’s decision if he wished to share the image and that, if he did and JN considered it breached the respondent’s values, he will have to take it forward. It was JN’s position that the claimant chose not to share the image rather than him refusing to view it.[265]The Tribunal has set out above its reasons for preferring the evidence of the respondent’s witnesses over that of the claimant and, for those same reasons, the Tribunal prefer JN’s version of events.[266]Further, this version of events describes behaviour by the claimant which is consistent with the evidence of other witnesses who describe the claimant as raising issues in vague terms, not providing specifics and not taking matters forward. For example, JB2 describes the claimant talking about “toxic teams” but not giving any detail of what he meant by this. Similarly, EA describes the claimant telling her that he heard things said at team meetings that were not right and made him feel uncomfortable but refused to give her any details.[267]In the light of the Tribunal’s finding that JN did not refuse to view the image and it was the claimant who declined to provide it, the Tribunal does not consider that the claimant was treated less favourably or subject to unwanted conduct by JN. The claims for direct discrimination and harassment fail as a result. Decision – Allegations 26 - 27[268]These are further allegations about which the claimant led no evidence at all. They were not mentioned in his witness statement and he did not give any oral evidence when the Tribunal allowed him to supplement his witness statement. They refer to email correspondence which does not appear in either bundle.[269]Neither of the respondent’s witnesses who were alleged to have sent the emails giving rise to these allegations gave any evidence about these matters in their witness statements. Further, the claimant put nothing about these allegations to the witnesses in cross-examination.[270]The Tribunal considers that the claimant has failed to discharge the burden of proof in respect of these allegations and they are dismissed as a result. He has wholly failed to present evidence which substantiated the matters giving rise to these allegations occurred as described, let alone evidence from which the Tribunal could draw an inference that these matters amounted to unlawful[271]This is an allegation that JN informed the claimant on 9 June 2022 that he had not added the claimant to the “priority managed move register”. The claimant alleges that this amounts to victimisation on the grounds that he sent the March 2022 to NB.[272]There is a lack of evidence about this allegation. The claimant’s witness statement simply says that, on 9 June 2022, JN said that he could put the claimant on the priority managed move register. Whilst this implies that the claimant had not previously been put on the register, there was no evidence from the claimant that this had been discussed previously and it had been agreed that he would be put on this register.[273]It was the evidence of JN, which the Tribunal accepted, that the priority move register was for people who needed a job move due a health condition or because they were at risk of redundancy. The claimant did not seek to challenge this in cross-examination. Neither of these criteria applied to the claimant and so he would not have been entitled to be put on the register.[274]The Tribunal considers that this is the reason why he had not been put on the priority managed move register and not because he had sent the March 2022 email to NB.[275]This allegation relates to the telephone call between the claimant and EA on 23 June 2022 in which she had expressed anger and frustration at the claimant contacting JN in relation to an instruction she had issued to her team (including the claimant) that they would be moving to dealing with claims under the EU Settlement Scheme. It is alleged that this is victimisation relying on the March 2022 email to NB (this being the only protected act which had occurred before this alleged act of victimisation).[276]The difficulty for the claimant is that there is no evidence at all that EA knew of the March 2022 email. She says nothing in her witness statement from which the Tribunal could draw any inference that she knew about the email. The claimant put nothing to her in cross-examination about her knowledge of this email.[277]It is axiomatic that EA cannot have behaved in the manner described because of an email about which she did not know. For that reason alone, the claim of victimisation in respect of this allegation must fail.[278]In any event, there is a clear and obvious reason why EA acted the way in which she did. She had issued a reasonable management instruction to her team (which had come to her from more senior management) and the claimant was seeking to avoid complying this. The Tribunal can well understand why a manager would be frustrated by this especially where there had been previous discussions with the claimant about the demarcation between JN’s support to the claimant and EA’s role as his manager.[279]It may well be the case that EA’s frustration got the better of her on the day in question (something which she very candidly accepted) but that does not take away from the fact that it was the claimant’s refusal to comply with the instruction and efforts to involve JN that were the reasons for this and not an email sent to someone else several months previously about which she had no knowledge.[280]The claimant alleges that JN victimised him during a telephone call on 29 June 2022 by refusing to comment on EA’s conduct which forms the basis of allegation 29 and saying that he could see why EA considered the claimant’s actions to be discourteous. Given the timing of events, the only relevant protected act was the March 2022 email to NB.[281]The claimant says that the detriment to him was the effect on his reputation with other staff of saying he had been discourteous. The Tribunal has some difficulty in seeing how a private conversation between JN and the claimant could have any effect on his reputation with other staff. There was certainly no evidence that the terms of this conversation were discussed with anyone else.[282]The Tribunal considers that the opinion expressed by JN was one which he was entitled to hold in all the circumstances of the case. The claimant had been given a reasonable instruction from his manager (which was being given to the whole team) and sought to avoid complying with it by invoking his involvement with JN. This was done in circumstances where it had already been explained to the claimant that EA would deal with day-to-day management issues. The Tribunal can well understand why JN would have concluded that this was discourteous to EA.[283]In any event, there was no evidence whatsoever that the email sent to NB in March 2022 had any influence on JN’s view about the claimant’s conduct in this instance.[284]The claimant led no evidence at all about this allegation. It was not mentioned in his witness statement and he did not give any oral evidence when the Tribunal allowed him to supplement his witness statement.[285]There was, however, evidence about this given by the respondent’s witnesses.[286]It refers to chat messages between PH, JN and BW (p492) in which PH says that she had spoken to BW about the claimant moving job and they were “not keen on pushing a problem to someone else”. The claimant alleges that this amounts to victimisation, again with the only relevant protected act being the email to NB in March 2022.[287]The Tribunal accepts that the evidence of PH in her witness statement that this was badly worded and referred to not wanting to move the claimant to another job without having resolved the allegations he had raised about being bullied. She considered that the problem would still exist from the claimant’s perspective and needed to be resolved. She very candidly accepted that the wording used was clumsy.[288]BW’s evidence was that she could not recall any conversation with PH when she had said something of the nature alleged.[289]Nothing was put to either of these witnesses in cross-examination regarding this allegation. In particular, PH’s explanation of what she meant by the chat message was not challenged by the claimant.[290]The Tribunal does consider that the wording was clumsy and certainly raises the question of what was meant by “the problem”. However, the Tribunal is prepared, on the basis of the evidence before it, to accept PH’s explanation.[291]In these circumstances, the Tribunal does not consider that this allegation is well-founded as there is a non-discriminatory reason for the comment that was made. Decision – Allegations 32 & 33[292]The Tribunal will deal with these together as they both relate to the same matter which was JN ceasing to provide HR support to the claimant (allegation 32) and confirming that by email (allegation 33). The claimant alleges that these amount to unlawful victimisation.[293]The Tribunal is conscious that JN informed the claimant that he was withdrawing from providing HR support on the same day that the claimant had sent him an email which amounts to a protected act. There is, therefore, a very close proximity between the protected act and the alleged victimisation.[294]However, the Tribunal was presented with no evidence about the contents of the email in question. It did not appear in either bundle, JN made no reference to it in his witness statement and the claimant simply states that he sent an email described as a “protected act EA2010 email”.[295]There was no dispute that the email was sent but the Tribunal considers that the contents are important. If it contained new allegations directed solely at JN then this would be a factor which might weigh in the claimant’s favour. On the other hand, if it was simply a repeat of the earlier email to NB in March 2022 then this is, at best, neutral given that the issues raised in that email had been known to JN for sometime.[296]The Tribunal has been left in the unsatisfactory position of knowing an email was sent which is conceded to be a protected act but not knowing what it says. The Tribunal bears in mind that the initial burden of proving facts from which an adverse inference could be drawn lies on the claimant and that this email was generated by him and so would be in his possession.[297]There are a number of relevant facts which the Tribunal has taken into account in considering whether to draw any adverse inference in relation to these allegations:a. JN had moved to a different job in a different directorate and had only continued supporting the claimant to provide a degree of consistency.b. There was a mentor in place to assist the claimant in trying to secure a job move and so the support which JN was providing had not been wholly withdrawn.c. The Tribunal accepts the evidence of JN that he felt that he was devoting a large amount of his time to trying to assist the claimant but nothing was being achieved in terms of resolving the issues.d. The Tribunal also accepts the evidence of JN that he was concerned about the claimant using his name to avoid dealing with issues in his day-to-day work. He gives examples of this involving different managers (EA and HB) and the claimant did not dispute what was said about this in JN’s witness statement.[298]The claimant alleges that JN said that he was unhappy to have received the email alleging a breach of the Equality Act. JN’s evidence was that he did not recall saying that. As noted above, the Tribunal has preferred the evidence of the respondent’s witnesses where there is a dispute between them and the claimant. The Tribunal, therefore, finds that JN did not say what is alleged by the claimant.[299]Taking account of all of the relevant facts, there is nothing, except the timing of events, which provides any basis on which the Tribunal could draw any inference that JN had stepped away from supporting the claimant because the claimant had sent the email of 27 July 2022.[300]The timing of events can be a very important factor in drawing any adverse inferences but, in this case, the Tribunal considers that it is more than outweighed by the other factors outlined above. In particular, there is an explanation, which the Tribunal accepts, why JN decided to step back from supporting the claimant that is non-discriminatory and alternative arrangements had been put in place for someone else to support the claimant in seeking a job move.[301]For these reasons, the Tribunal does not consider there is any basis on which it can draw any adverse inference that JN withdrew from his role supporting the claimant because the claimant had sent either the March or July emails.[302]The claimant alleges that he was victimised by EA when she took a 2-week holiday on 19 August 2022 without informing him.[303]As has been set out above, there was no evidence that EA was aware of the March 2022 email to NB which formed one of the protected acts relied on by the claimant. Similarly, there was no evidence that EA was aware of the July email to JN; she makes no mention of it in her witness statement and the claimant did not put anything to her in cross-examination which sought to establish that she had knowledge of his email to JN.[304]For the reasons set out above, the Tribunal is of the view that EA cannot have acted in the manner alleged because of something about which she has no knowledge.[305]The Tribunal should also say that it did not consider that EA did anything wrong in taking a holiday. She is entitled to a holiday and there is no evidence that this timed in such a way as to disadvantage the claimant. In any event, someone was deputising for her in her absence and she had also provided her personal mobile number to the team with an invitation to contact her if needed. The Tribunal cannot see how the claimant was disadvantaged in these circumstances. Decision – Allegation 35 - 37[306]These are further allegations about which the claimant led no evidence at all. They were not mentioned in his witness statement and he did not give any oral evidence when the Tribunal allowed him to supplement his witness statement. They refer to email correspondence which does not appear in either bundle.[307]The allegations are all allegations of victimisation by EA. As outlined above in terms of allegations 29 and 34, there is no evidence that EA had any knowledge of the protected acts relied upon and so, for the reasons already given in respect of allegations 29 and 34, the Tribunal considers that the claims of victimisation in relation to these allegations, insofar as they relate to EA, have no merit.[308]Allegation 35 also alleges that LH victimised the claimant. As with EA, there was no evidence that LH was aware of the protected acts relied upon and so, for the same reasons already given the Tribunal considers that the claims of victimisation in relation to this allegation, insofar as it relates to LH, has no merit.[309]Again, the Tribunal wish to be clear that it does not consider that EA and LH did anything wrong in respect of these allegations. These relate to efforts by them to manage the claimant in circumstances where, based on the evidence before the Tribunal, the claimant was refusing to obey reasonable management instructions and seeking to avoid doing the actual work that he was paid to do. In the industrial experience of the Tribunal, the actions of EA and LH are entirely unsurprising where an employee is behaving in the way in which the claimant was behaving.[310]Allegation 36 as set out in the Scott Schedule describes JN and NB as being the alleged discriminators along with EA. They obviously do have knowledge of the emails in question, being the recipients. However, the substance of the allegation is that EA was “secretly” reporting the claimant for violating the Civil Service Code. There is no actual allegation of wrongdoing by either JN or NB.[311]Further, the lack of any evidence from the claimant about this matter meant that there was nothing before the Tribunal suggesting any wrongdoing by either JN or NB.[312]The Tribunal, therefore, considers that the claimant has failed to discharge the burden of proof in respect of this allegation insofar as it relates to JN or NB. He has wholly failed to present any evidence that they had subjected him to any detriment, let alone evidence from which the Tribunal could draw an inference that this was because of his protected acts.[313]This allegation relates to the respondent’s conduct of the present proceedings and, in particular, an application for the claim to be struck-out due to a defect on the ET1 form which was ultimately not pursued.[314]This is another allegation about which the claimant led no evidence. Evidence about the reasons why the respondent made the application was given by LB in her witness statement.[315]The respondent relies on judicial proceedings immunity as their primary defence to this allegation. The claimant made no submissions as to why it might be said that this immunity would not apply.[316]Judicial proceedings immunity is the principle that legal action cannot be founded on actions taken in the course of legal proceedings. This principle applies to the proceedings in this Tribunal (Heath v Commissioner of Police of the Metropolis 2005 ICR 329, CA). It applies to evidence given at a hearing, the content of witness statements and correspondence in the course of proceedings.[317]The Tribunal is satisfied that respondent’s conduct of the proceedings is subject to judicial proceedings immunity and this allegation is dismissed for that reason.[318]This is an allegation that the claimant was subject to direct discrimination on the grounds of race or religion and/or victimised (relying on the present claim as the protected act) in respect of his grievance about the matters giving rise to these proceedings. He alleges that has been a failure to progress his grievance.[319]This is a further allegation about which the claimant led no evidence at all, either in his statement or in his oral evidence. For example, there is no evidence from the claimant as to when he says he lodged any grievance, the contents of it or what had occurred in terms of the process.[320]The Tribunal did have evidence LB about the grievance process that had been followed. The claimant did not dispute the sequence of events set out by LB and the Tribunal has accepted her evidence as an accurate description of the grievance process.[321]A consequence of this is that the Tribunal only has evidence of a grievance being raised on 24 February 2023 via the respondent’s solicitor. The claimant alleges that he had sought to raise a grievance throughout 2022 but there is no evidence of the claimant seeking to raise a grievance at any earlier stage.[322]Whilst he sent various emails outlining issues about which he was unhappy, none of these were expressly said to be a grievance nor does the Tribunal consider that they could be reasonably read as being an attempt to raise a grievance. The Tribunal notes that, as far back as 25 March 2022, JB had encouraged the claimant to formalise any complaints he had and that these would be dealt with through the correct processes (p649) but he did not do so.[323]The Tribunal does note that there is a pattern of the claimant making vague allegations of wrongdoing but not advancing these on any formal basis. For example, mentioning “toxic teams” with JB2 but being unwilling to elaborate, saying to EA that things had been said at team meetings which made him uncomfortable but refusing to say what these were or who said them and declining to show JN the image of HA which was said to be racist.[324]The only point at which the claimant clearly seeks to raise a grievance is in an email to the respondent’s solicitor dated 24 February 2023 (p655).[325]The Tribunal accepts the explanation given by LB as to why there has been a delay in progressing that grievance. Specifically there were concerns that the email in question did not comply with the respondent’s grievance process in a number of respects:a. He had sought to raise a grievance via the respondent’s solicitor in these proceedings rather than following the normal process of going through his line manager.b. He had submitted his Scott Schedule (prepared for the purposes of these proceedings) as the grievance document rather than completing the respondent’s grievance form. This meant that the issues were framed in very legalistic terms and did not include information about what resolution was sought.c. The respondent’s normal practice was to require staff raising multiple issues to complete a grievance form in respect of each issue being raised. The reason for this was so that it was clear to the person against the grievance was being raised what it was said they had done wrong.[326]In relation to the direct discrimination claim, the claimant led no evidence that someone of a different race or religion would have been treated differently in the same or similar circumstances. He relies on JB2 as a comparator but JB2 never sought to raise a formal grievance; the respondent sought to resolve those informally and the formal grievance process was never engaged.[327]There was no evidence from which the Tribunal could draw any inference that anyone else seeking to raise a grievance would not have had to follow the respondent’s normal process. This is fundamental to the direct discrimination claim as it means that there is no evidence that an actual or hypothetical comparator would have been treated any differently.[328]Although the victimisation claim does not involve a comparison exercise, the lack of any evidence that the claimant was being treated any differently to other employees seeking to raise a grievance is highly relevant to the victimisation claim. If someone who carried out a protected act is treated the same way in the same or similar circumstances as those who had not done so then this weighs heavily against drawing any inference that the protected act was the reason for any alleged detriment.[329]In all the circumstances of the case, there is no evidence from which the Tribunal could draw any inference that the handling of the claimant’s grievance was because he had carried out any protected act or on the grounds of race and/or religion. Decision – The case as a whole[330]The Tribunal is very conscious that it is not just the case that it looks at each incident in isolation and has to look at these as a whole. Whilst individual incidents, taken on their own, may not be considered as unlawful discrimination, it is possible that, when looked at together, there is a basis to draw an adverse inference.[331]However, when the evidence is looked at as a whole, the picture that emerges is not that the claimant has been discriminated against or harassed because of his race or religion nor that he has been victimised for carrying out a protected act but, rather, that the issues which have arisen from him at work have been wholly caused by his own behaviour.[332]The Tribunal considers that what emerges from the evidence is that the claimant is awkward to work with and difficult to manage with no insight or awareness into the fact that he behaves in a way which causes difficulty for colleagues and managers.[333]For example, he showed no awareness during the course of the hearing that JB2 had genuine and reasonable issues with the way in which the claimant was behaving. The claimant sought to change JB2’s biography with no permission from, or even consultation with, JB2. The claimant considered that simply because he used an alternative wording which JB2 had written for other purposes then he had done nothing wrong. This wholly ignores the fact that the simple act of making the change without any discussion was what JB2 objected to.[334]Similarly, the claimant had no understanding why JB2 would have been concerned about the sudden withdrawal of his invitation to the United Network meeting for no apparent reason (certainly nothing that JB2 had done) and why he was asking the claimant for more information about his involvement to understand what had happened.[335]It was the same with the claimant allegations against EA. The Tribunal considers that EA was doing no more than managing the claimant as she would any other employee. However, the claimant was clearly not willing to be managed in the same way as others in team. In particular, when an instruction had been made by senior management that the whole team was to move dealing with decision under the EU settlement scheme, the claimant sought to avoid this by invoking his involvement with JN when it had been made clear to him that JN was not dealing with day-to-day management issues.[336]The Tribunal considered that there was evidence that the claimant was using his involvement with JN as a “shield” when he was being asked to carry out work or tasks that he did not want to do even though this was not why JN’s support was being provided to the claimant. The claimant had no apparent insight or awareness how this was impacting on his colleagues, managers and even JN himself.[337]The various issues which the Tribunal has identified in respect of the individual allegations have to be taken into account when looking at the case as a whole. The fact that certain allegations of victimisation rely on matters which are not protected acts and the lack of knowledge of certain alleged discriminators of any protected act or the claimant’s religion/race are all matters which way weigh against drawing any inference of unlawful discrimination or victimisation.[338]Similarly, the claimant’s failure to lead evidence about a significant number of the allegations weighs against him. In a number of instances, there was no evidential basis from which the Tribunal could make findings of fact from which to draw any form of inference.[339]Further, the claimant has, for the most part, not identified matters from which he says the Tribunal could draw any adverse inference. There were a small number of matters which the claimant placed reliance and the Tribunal will address those now.[340]First, he says that he was the only person of colour on the diversity group he co-chaired with JB2 and was then removed. The respondent disputes this but, even taking the claimant’s case at its highest, this matter, on its own, is not sufficient for the Tribunal to draw an adverse inference when considered within the factual matrix as a whole. In particular, where it was clear that there were reasons why the claimant was removed from his co-chair which had nothing to do with his race.[341]Second, the claimant placed a lot of weight on a previous Employment Tribunal decision against the respondent from 2018 and an agreement he said was reached between the respondent and the Equality & Human Rights Commission after this judgment. In particular, he challenged various of the respondent’s witnesses about their awareness of the case and the agreement.[342]As the Tribunal has set out above, the previous Tribunal decision has no relevance to this case. It involved a different claimant and different factual circumstances. None of the alleged discriminators in this case were said to have any involvement in the previous case. The fact that witnesses in this case had no awareness of that previous decision is not something which gives rise to an adverse inference.[343]The alleged agreement with the ECHR was not produced in evidence and so none of the witnesses had sight of it. Again, the Tribunal does not consider that the fact that they were aware of this is something which gives rise to any adverse inference particularly as the Tribunal, not having heard any evidence about the terms of the agreement, could not make any findings as to what the agreement addressed and so could not say that it was unreasonable for any particular witness to be unaware of it.[344]Third, the claimant was very focussed in some of his cross-examination on whether certain things done by particular witnesses were allowed by any policy of the respondent. For example, when raising his concerns about the claimant’s conduct, JB2 prepared a timeline of events and the claimant asked various witnesses whether this was part of any policy.[345]The Tribunal considers that the claimant has approached this from the wrong perspective; it is not that people can only do something in the course of their work if a policy says that they can but, rather, they cannot do things which any policy prohibits or if a policy sets out a process to be followed in dealing with certain matters (for example, grievance or disciplinary matters) then that policy should be followed as far as possible.[346]In any event, the claimant did not produce any policy in evidence which he says had not been followed or which prohibited anything done by the alleged discriminators. There is, therefore, no basis on which the Tribunal can conclude that any of the alleged discriminators failed to follow any of the respondent’s policies.[347]Looking at the case as a whole, there is no evidence from which the Tribunal considers that it can draw any adverse inference that the claimant has been discriminated against, harassed or victimised.
Conclusion
[348]For all the reasons set out above, the Tribunal considers that the claimant’s claims under the Equality Act 2010 are not well-founded and are hereby dismissed.[349]The respondent has raised a defence of time bar in respect of the claims. The Tribunal has not dealt with this as it considers that its conclusion above renders any time bar issue academic. P O’Donnell