M R Binyameen v The Minister of The Cabinet Office: 8000100/2024
JUDGMENT
The judgment of the Employment Tribunal is that the claimant’s applications are dismissed.REASONS
[1]The claimant applied for a job with the respondent. On 10 October 2023, his application was rejected. The claim form is about the rejection of his application. The complaints are race discrimination, whistleblowing detriment and unfair dismissal. The respondent resists the claims.[2]At a case management preliminary hearing, the claims were identified as: direct discrimination on the ground of race (section 13 of the Equality Act 2010 (EqA)); victimisation (section 27 of the EqA); and suffering a detriment on the E.T. Z4 (WR) grounds of having made a protected disclosure (section 47 of the Employment Rights Act 1996 (ERA). The unfair dismissal claim was dismissed having been withdrawn by the claimant.[3]The final hearing took place in person. The claimant gave evidence on his own account. For the respondent, the Tribunal heard evidence from Victoria Haggie, senior account manager and Adam Slater, head of recruitment services. They gave their evidence remotely by cloud video platform. The parties prepared a joint file of documents to which the witnesses referred in their evidence. The Tribunal heard oral submission on 12 July 2024. The claimant was provided with an advanced copy of Ms McDairmant’s written submissions.[4]The Tribunal has set out facts as found that are essential to the reasons, or to an understanding of important parts of evidence. The points made in submissions are dealt with while setting out the facts, the law, and the application of the law to those facts. Findings in fact[5]The respondent is the Minister for the Cabinet Office. The Cabinet Office is the central department supporting the Prime Minister in delivering key government policy priorities of the day.[6]In 2017, the Internal Fraud Hub (IFH) was rolled out across the civil service aligning government policy on internal fraud. The definition of internal fraud includes dishonest or fraudulent conduct, in the course of employment in the civil service, with a view to gain for the employee or another person. If an employee is dismissed for an offence falling under the definition, their name, national insurance number, and date of birth is placed on the Internal Fraud Database (IFD) for five years. Anyone applying for a civil service post will be checked against the IFD by civil service resourcing. Anyone named on the IFD will be refused employment unless they can demonstrate exceptional circumstances.[7]The Government Recruitment Service (GRS) was launched in 2017, and is part of the Government People Group in the Cabinet Office. The GRS delivers around 70 percent of the recruitment across the UK civil service.[8]Appointment to the civil service is governed by the civil service Commission’s Recruitment Principles (the Recruitment Principles). There is a legal requirement for merit, fairness, and open competition. All appointees must be able to comply with the requirements of honesty, integrity, objectivity, and impartiality.[9]The claimant describes his race as British Muslim. HMRC employed the claimant, as a team manager, between June 2015 and July 2018. The claimant believed that there was racism in the department. He complained about bullying by his line manager. Around November 2017, the claimant applied for promotion and was placed on a reserve list. On 12 February 2018, the claimant applied for another promoted role. He was advised that his application was not being progressed. There was an investigation into an allegation that the claimant had falsified the application by using a competency (behaviour) statement for work where he had not completed the action described. This was considered a serious breach of HMRC guidance. The claimant denied that he had not completed the action described. Following an investigation and disciplinary hearing, the claimant was dismissed for gross misconduct on 20 July 2018. He was advised of his right of appeal.[10]As the claimant was dismissed for conduct covered by the Cabinet Office definition of internal fraud details of his dismissal was sent to the IFH for inclusion on the IFD for five years. The claimant was banned from employment in a participating department until July 2023.[11]Following his dismissal, the claimant raised employment tribunal proceedings against HMRC alleging race discrimination.[12]Adam Slater is the head of recruitment for the GRS. He has responsibility for 130 employees providing recruitment services to different government departments.[13]Victoria Haggie, senior accounts manager, reports to Mr Slater. She manages the relationship with the client department and the recruitment team administering the recruitment campaign.[14]In 2023, Mr Slater, as vacancy holder, commissioned Ms Haggie, as hiring manager, to run a campaign to recruit 10 campaign delivery officers (the role) to work in the GRS. The successful candidates would be posted to an operational area: recruitment or pre-employment checking. Most of the roles were for recruitment under Mr Slater’s line management.[15]The roles were advertised in July 2023. A candidate information pack provided additional information. The application process involved an assessment of behaviours: delivering at pace; changing and improving; and making effective decisions. In their applications, the candidates provided an example, from their own experience, of the first two behaviours. Following a sift, candidates were invited to attend a live video interview by a panel of three to assess all the behaviours. The candidates were also asked a strengthbased question. The panel then scored the candidates on behaviours and strength. The highest scorers were given provisional offers subject to preemployment checking. Candidates were told not to give notice to existing employers until receiving a formal offer. Following satisfactory preemployment checking formal offers were made.[16]On 21 August 2023, the claimant applied for the role. The application included nationality requirements and personal information. The claimant provided statements regarding his skills and experience for two of the behaviours. The recruitment team sent the claimant confirmation on 23 August 2023 that he was being invited to attend a video interview.[17]Following a video interview on 4 September 2023, the claimant was advised that he was successful at interview. A provisional offer of employment was sent to the claimant subject to pre-employment checking.[18]Around mid-September 2023, the pre-employment checking team, which does not report to Ms Haggie, issued several emails to the claimant and other candidates who were made provisional offers, regarding right to work; employment history; previous civil service employment; criminal record; internal fraud checking; and health questionnaire. The other candidates satisfactorily completed the pre-employment checking.[19]In relation to previous civil service employment, the claimant confirmed in his application that he had previously worked for the HMRC and was dismissed on 20 July 2018. He said the reason was, “They claimed I falsified a competency statement”. The claimant said that he had been bullied by his line manager. He challenged this. He said that this made his line manager’s hatred of him “and other non-white staff” more intense. The claimant referred to his line manager not appreciating his appointment to a promoted role in another department so, in a further application, it was claimed that he falsified a competence statement despite the managers having seen what he did. The claimant said that he was dismissed for allegedly falsifying a competence statement and placed on the IFD until 20 July 2023. The claimant did not believe that all white civil servants behaved like those he encountered in HMRC, and he was keen to get on with the role.[20]On 19 September 2023, the pre-employment checking team asked the claimant for further information about his previous employment. On 20 September 2023, the claimant advised that he was employed directly by HMRC, and he gave consent for them to be contacted.[21]In campaigns where pre-employment checking raise that a candidate has been previously dismissed from the civil service, the application is referred by the hiring manager to the vacancy holder to assess the risk for the client department. It is not an automatic block to being appointed. It is to allow an assessment of risk of the safety for the department employing the candidate. Each department has its own approach.[22]The claimant’s application was referred to Ms Haggie. She directed that, as standard practice, it be referred to the vacancy holder, Mr Slater, to make a risk assessment on the claimant’s previous civil service employment outcome.[23]The claimant’s application was passed to Mr Slater who had no issue about the claimant’s suitability for the role as he had been given a provisional offer. Mr Slater’s involvement was to assess the risk to the GRS in appointing the claimant to the role and to decide if the application was to progress.[24]The application identified the claimant by name implying that he may be of Asian descent. Mr Slater referred to the information provided by the claimant about the reason for his dismissal from HMRC in 2018. He observed that the claimant considered that he was bullied by his line manager because he was non-white. The claimant complained but other senior managers shared his line manager’s opinion. There had been disciplinary proceedings about the claimant allegedly falsifying a competency statement in a civil service recruitment process. The claimant denied the allegation but had been dismissed following a disciplinary process and his details placed on the IFD for five years.[25]Mr Slater did not contact HMRC. He did not consider that it was his role to reinvestigate the disciplinary decision. He checked with the internal team to ascertain if there were any precedents in the GRS and if there were any freedom of information requests on this issue. He was told that there had not been anything similar. Mr Slater concluded thata. The GRS had a responsibility to help and ensure the upholding of the Recruitment Principles. There was a clear risk in employing someone dismissed from the civil service for breaching those principles.b. There was reputational risk to the GRS in employing someone believed to be guilty and dismissed for falsifying competencies in a job application.[26]Mr Slater decided that the claimant had not passed pre-employment checking for past employment for the role, and his application would not be proceeding. There was no departmental template that Mr Slater had to complete. He conveyed his decision to the recruitment team who recorded on the system the details and justification for the decision as, “Unfortunately as the incident that has been investigated in this case related to the recruitment process and within GRS we have a key role in Government to ensure fair and openness in recruitment in line with the Commissioners Principles, we are unable to progress any further with this offer”.[27]On 10 October 2023, the claimant was advised that his application would not be proceeding. He requested reasons for this. On 11 October 2023, in the hiring manager’s absence on annual leave, the strategic operations manager advised the claimant of the rational provided by Mr Slater to the recruitment team.[28]On 20 October 2023, the claimant sent an email complaining about his continued punishment for something he did not do. The claimant believed the decision about his application was victimisation for “daring to challenge the treatment I received at tribunal.” The claimant said that he had seen what comes up when searching “Cabinet Office racism” on the internet which he felt was playing a part in the treatment he was receiving. The claimant requested a full explanation why he was being victimised.[29]On 3 November 2023, the claimant was advised that he had passed the IFD element of the pre-employment checking. The application was referred to the vacancy holder because the claimant had made a declaration that he had been dismissed from the civil service. This was standard procedure. As the nature of the dismissal was the fraudulent submission of a civil service job application and the role of the GRS is to ensure civil service recruitment is conducted in a fair and open way in line with the Recruitment Principles, the vacancy holder decided not to proceed with the appointment. The decision would not be reversed. However, it did not constitute a ban on the claimant applying for other civil service roles in the future. Each application would be judged on its merits, on a case by case basis, and other vacancy holders may be satisfied that the claimant’s previous dismissal was not a barrier to employment in the role that they have advertised.[30]On 6 November 2023, the claimant asked for his complaint to be further investigated as he continued to be punished for the fact that he was “bullied based on my skin colour”.[31]On 8 November 2023, the claimant was sent a letter from the head of service for the GRS who advised that he had reviewed the complaint and had not found evidence that the claimant had been unfairly treated or that the civil service Recruitment Principles have not been upheld. It was acknowledged that the claimant felt that the allegation he fraudulently completed a job application was false. However, that had been fully investigated at the time and a full appeals procedure was open to the claimant. The GRS could not reinvestigate the findings nor could it disregard the outcome. The claimant was informed that he was not prevented from applying for other civil service roles, however it was unlikely, given the nature of the dismissal, that an application for a role in the GRS would be successful.[32]The report on diversity and inclusion for the role recorded that of 424 applications, 75.7 percent were white; 10.8 percent were Asian/Asian British; 8 percent were Black/African/Caribbean/Black British); 0.5 percent were other ethnic group; and 2.8 percent preferred not to disclose. Of those 27 candidates ultimately appointed 7.4 percent preferred not to disclose; 77.8 percent were white; 11.1 percent were Asian/Asian British; 3.7 percent were Black/African/Caribbean/Black British; and 0 percent were other ethnic group.[33]The role was scheduled to start in October 2023, with a salary of £27,500. The claimant has employment on a fixed term basis. He calculated the difference in salary to be around £40 per month. Observations on witnesses and conflict of evidence[34]The claimant gave his evidence honestly based on his perception of events. The Tribunal considered that his concerns were genuinely held and based on his experience of working in HMRC.[35]The respondent’s witnesses were senior managers in the GRS. For Ms Haggie this was a routine campaign, but unusually her department was the client department, and the vacancy holder was her line manager. Mr Slater had no previous experience as a vacancy holder for the GRS and did not expect to be involved in the selection process.[36]There was disputed evidence about when the claimant provided information about his previous dismissal from HMRC. He recalled doing so after the interview. Ms Haggie said that all information was provided when the application was submitted. The pre-employment checking team only get involved after provisional offers are made. At that stage, the claimant provided some additional clarification and consent to contact HMRC. From the documents, the Tribunal considered that Ms Haggie’s evidence was more plausible.[37]There was conflicting evidence about Ms Haggie’s involvement once the claimant’s application was referred to Mr Slater. Ms Haggie said she had no further involvement. She also said that Mr Slater was the decision maker; she was not aware of anyone else being involved. Mr Slater said that Ms Haggie shared the claimant’s application and explained that he needed to decide if the GRS was to continue with the provisional offer. The Tribunal considered that it was more likely than not that Ms Haggie did speak to Mr Slater about the process as he was unfamiliar with it and until then his only involvement had been to commission her to run the campaign. The Tribunal did not consider that Ms Haggie was involved in the decision making or conveying that decision to the recruitment team or the claimant. The hiring manager was on annual leave on 10 October 2023 when the claimant asked why his preemployment checking was unsuccessful[38]The claimant gave evidence about five white colleagues all of whom used the same content in applications for a mass recruitment campaign in 2018. The claimant said that they were not dismissed. Ms Haggie and Mr Slater were unaware of the cases. There was no suggestion that the GRS or the respondent’s witnesses were involved in that campaign which related to another department. The Tribunal had difficulty using these colleagues as comparators as they were internal candidates who had not been dismissed. They may have been comparators in the claimant’s case against HMRC but that was not the case that this Tribunal was considering.[39]The claimant referred to information that he obtained when undertaking an internet search. This related a report following a civil service people survey which prompted a report into discrimination in the Cabinet Office and subsequent comments made by the PCS union. This documentation was not produced. Mr Slater and Ms Haggie commented on what the claimant said he had read online. Ms Haggie accepted that the GRS was part of the Cabinet Office, but she could not comment on discrimination in the wider Cabinet Office. She said that she had a fantastic working environment and was part of a diverse team. Mr Slater acknowledged unconscious bias existed. He said that it was important to call out behaviours as this was the only way to improve. Mr Slater was unaware of any discriminatory complaints within his team.[40]The Tribunal had no reason to doubt what the claimant said he read online. The Tribunal accepted that Mr Slater and Ms Haggie had not experienced discrimination nor had they dealt with complaints from their team about discriminatory conduct or behaviour.[41]The claimant gave evidence about the civil service prison leaver recruitment where the civil service welcomes applications from people who have recently left prison or have an unspent conviction. The claimant said that this policy went against the way that he was treated. His conduct was alleged yet he was put behind someone who had been convicted of fraud. Mr Slater was aware of the policy which he described as a positive action policy, like the disability policy, allowing people to progress to an interview stage.[42]The Tribunal agreed with Mr Slater’s description and noted that the prison leaver recruitment policy anticipated that if a candidate was successful at interview there would be pre-employment checking in the usual way. At that stage it also involved the vacancy holder undertaking a risk assessment involving consideration of any conviction.Deliberations
[43]The Tribunal referred to the parties’ submissions. There were three broad issues: direct race discrimination; victimisation; and whistleblowing. Direct race discrimination[44]The Tribunal referred to section 13 of the EqA. Direct discrimination occurs where, because of the protected characteristic, A treats B less favourably than A treats or would treat others.[45]It is an objective test. In terms of less favourable treatment, it is not enough for the claimant to simply show that he had been treated differently. There must also be a quality in the treatment that enables the complainant reasonably to complain about it.[46]In this case the claimant relies on the protected characteristic of race. Section 9 of the EqA defines race as including colour, nationality, ethnic or national origin. The claimant described his race as British Muslim. He also refers to being non-white. The Tribunal agreed with Ms McDairmant’s submission that Muslims as a group unified by their religious belief do not constitute a race to which direct race discrimination applies. The Tribunal therefore considered the direct race discrimination claim based on colour.[47]The Tribunal asked if the claimant was treated less favourably: was the claimant treated worse that someone else whose circumstances were not materially different to his. The respondent agreed that it did not appoint the claimant to the role. As there was no one in the same circumstances as the claimant the Tribunal considered who was the hypothetical comparator.[48]The Tribunal decided that the hypothetical comparator was a white candidate appointed to the role, who had been dismissed from their previous civil service department for falsifying a competency statement and placed on the IFD for five years.[49]The Tribunal then asked whether the less favourable treatment was “because of” race. The Tribunal approached this question by focussing on why the respondent acted as it did. This involved the Tribunal considering Mr Slater’s subjective motivations to determine if the less favourable treatment was in any way influenced by race.[50]The Tribunal found that the claimant had been given a provisional offer. Mr Slater’s involvement was during pre-employment checking. The only reason for the claimant’s application being referred to him was the claimant’s previous dismissal from the civil service. The risk to the GRS was that in 2018, the claimant had been dismissed due to a fraudulent submission of a civil service job application and he had been place on the IFD. Mr Slater’s role, as vacancy holder, was to make a risk assessment of the safety of the GRS appointing the claimant to the role. It is standard procedure for the vacancy holder to make the risk assessment.[51]While the claimant referred to a report on discrimination in the Cabinet Office, the Tribunal did not consider that this made it more likely that Mr Slater was motivated by race discrimination. There was no information specific to the GRS. The Tribunal also did not consider that the profiles of those candidates appointed to the role of was helpful in considering motive as Mr Slater was not involved in the decision making in those applications as none was referred to him during pre-employment checking. The Tribunal accepted that there were non-white people appointed to the role which supported the evidence of Ms Haggie and Mr Slater of diversity in their team.[52]The Tribunal considered that Mr Slater was aware that everyone had unconscious bias. He read the claimant’s application which implied that the claimant is of Asian descent and non-white. Mr Slater observed the claimant’s view that he was bullied by his line manager at HMRC because he was nonwhite. Mr Slater was, in the Tribunal’s view, aware of the claimant’s race. He also knew that in 2018, the claimant had been dismissed due to a fraudulent submission of a civil service job application and he had been placed on the IFD. The claimant disputed this conduct.[53]It was open to Mr Slater to decide to proceed with the claimant’s application. The role was in the team under Mr Slater’s line management. He knew that the claimant would be undertaking recruitment in the civil service and ensuring that it was in line with the Recruitment Principles. The conduct for which the claimant was dismissed was alleged falsifying a competency statement during a civil service recruitment exercise. While the conduct was disputed by the claimant, Mr Slater could not reinvestigate the matter. Mr Slater checked for precedents within the GRS and considered the potential reputational damage to the GRS if the claimant was appointed to the role.[54]The Tribunal’s impression was that had the conduct been unrelated to the civic service recruitment process, the risks to the GRS would have been such it was likely that the claimant would have passed pre-employment checking. The Tribunal also considered that Mr Slater was not precluding the claimant from applying for other roles in the civil service.[55]The Tribunal noted that the head of service for GRS confirmed to the claimant following his complaint that, given the nature of his dismissal, it was unlikely that any future application to GRS would be successful. While Mr Slater’s decision may have been harsh, the Tribunal considered it was one which the head of service appeared to concur.[56]The Tribunal thought that forefront in Mr Slater’s mind was the conduct for which the claimant had been dismissed and how that would be perceived if he was appointed to the role. The Tribunal was not satisfied that Mr Slater would have treated the hypothetic comparator differently.[57]Having reached the conclusion that the reason Mr Slater’s decided not to appoint the claimant to the role was not because of his race, the Tribunal dismissed the claim of direct discrimination. Victimisation[58]The Tribunal then turned to section 27 of the EqA which provides that victimisation occurs where a person(a) (A) subjects another(b) (B) to a detriment because either B has done a protected act or A believed that B had done or may do a protected act.[59]The claimant said that he did two protected acts: he raised a grievance around February/March 2018 with HMRC alleging that he had been bullied because of his race; and following his dismissal in 2018, he raised employment tribunal proceedings against HMRC under the EqA. The respondent did not challenge the claimant on this evidence. Accordingly, the Tribunal accepted that the claimant had done the protected acts.[60]The respondent accepted that a reasonable worker would take the view that the claimant had been disadvantaged by not being appointed to the role and as such he suffered a detriment. Accordingly, the Tribunal focussed on whether not being appointed to the role was on the grounds of the protected acts. Were they the real reason for not being appointed.[61]The Tribunal again considered the motivation for the detriment. As set out above, the Tribunal’s conclusion was that this related to the conduct (falsifying a competency statement) for which the claimant was dismissed.[62]While the Tribunal accepted the claimant’s evidence about the grievance that he raised in 2018, that was not in the Tribunal’s view information that was available to Mr Slater when he made his decision. Mr Slater did not speak to the claimant or HMRC. The only information available to him was in the claimant's application that stated that the claimant “raised genuine complaints”. It did not state that those complaints contained allegations of race discrimination. The claimant mentioned “tribunal proceedings”, but this was after Mr Slater had made his decision. It was not suggested to Mr Slater that he was aware of the protected acts and that they were the real reason for his decision.[63]The Tribunal was satisfied that the respondent had shown that the real reason for the decision not to appoint the claimant to the role, was that he had been dismissed from his previous employment with HMRC for falsifying a competency statement and placed on the internal fraud register for five years. Accordingly, the Tribunal dismissed the victimisation claim. Whistleblowing[64]The Tribunal referred to section 47(B)(1) of the ERA. It provides that a worker has the right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker made a protected disclosure.[65]The claimant gave evidence that in February/March 2018 he raised a grievance with HMRC alleging that he had been bullied and treated differently because of his race. He did not elaborate on what information was provided and why that showed that a miscarriage of justice occurred which is what he had assert during case management. The claimant did not provide further evidence about the information that he provided and why that tended to show a miscarriage of justice had occurred. The Tribunal was therefore not satisfied that there was disclosure of the information showing or tending to show a miscarriage of justice and that it was in the public interest.[66]In any event, as explained above while Mr Slater knew that the claimant had “raised genuine complaints” the details of these complaints were unknown to him. There was no evidence before the Tribunal that Mr Slater had knowledge of any disclosure (protected or otherwise) made by the claimant to HMRC in 2018. The Tribunal was unable to make any findings about Mr Slater’s knowledge.[67]While the claimant suffered a detriment in not being appointed to the role, there was no evidence that the claimant’s grievance had any significant influence on the decision. The Tribunal had concluded that the reason was as outlined above. Accordingly, the Tribunal dismissed the whistleblowing claim.Remedy
[68]Having reached the conclusions that, it did the Tribunal did not need to consider the issue of remedy.