Employment Tribunals

Case No:2413565/2018 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfields Fuels Limited JUDGMENT The complaint of Age Discrimination is dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to hearing the date of which will be notified in due course. Employment Judge Holmes Dated : 7 February 2019 JUDGMENT SENT TO THE PARTIES ON 11 February 2019 ........................................................................................ ........................................................................................ FOR THE TRIBUNAL OFFICE Case No. 2413565/18 1 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfields Fuels Limited Heard at: Manchester On: 10 September 2019 Before: Employment Judge Ainscough REPRESENTATION: Claimant: Respondent: In person Mr A Moore, Solicitor JUDGMENT (a) The claimant has permission to amend his claim and rely on paragraph (xv) of the constructive dismissal issues. (b) Paragraph (xii) of the constructive dismissal issues is not an amendment but rather further detail of facts already pleaded and can be relied upon by the claimant. (c) Permission to amend is refused in respect of the constructive dismissal issues at paragraphs (ii), (x) – (xiii) and (xvi) – (xviii). (d) The claimant has permission to amend his claim and rely on paragraphs (ii) – (iv) of the race discrimination issues. (e) Permission to amend is refused in respect of the disability discrimination issue at paragraph (ii). (f) The claimant has permission to amend his claim and rely on paragraphs (i) – (iii) of the religion or belief discrimination issues. Case No. 2413565/18 2 REASONS 1. The Preliminary Hearing was an application made by the respondent to:- (a) Clarify the issues; (b) Deal with any application to amend made by the claimant in his email of 23 April 2019; (c) Deal with any time limit issue that may arise from the application to amend by the claimant; and (d) To determine whether or not some or all of the claims should be struck out on the basis of no reasonable prospect of success and/or not being actively pursued. 2. At the outset of the hearing, I explained to the claimant the application that had been made by the respondent and that it would be necessary to go through the claim form and his email of 23 April 2019 to clarify the issues in each claim he sought to bring before the Employment Tribunal. 3. Clarification of Issues a. Constructive Unfair Dismissal Claim The claimant contends that the following amount to a breach of contract for which he resigned on the 28 February 2018. (i) On 18 January 2018 the respondent drafted a letter to the claimant, which was not received until 20 February 2018, which did not accept that the grievance he had submitted was resolved; (ii) The claimant was not paid for overtime in accordance with the letter he received on 17 September 2009, until September 2010. The claimant was never paid for credit time. (iii) False allegations were made about the claimant’s use of a fork lift truck in December 2017. (iv) In December 2017, Gail Beauchamp from Human Resources made a false allegation to occupational health about the claimant’s control of a fork lift truck. Case No. 2413565/18 3 (v) In December 2017, despite the occupational health doctor confirming that the claimant was fit to drive a fork lift truck, he was still banned from doing so by Gail Beauchamp. (vi) In February 2018 the claimant looked at the personnel directory on the email address book and noted his position was that of Labourer and not Team Worker. (vii) The respondent instigated disciplinary proceedings in regard to the fork lift truck incident by way of a letter dated 18 January 2018. (viii) In October 2015 the claimant’s planning job was terminated. (ix) In October/November 2015 the claimant’s flexible working stopped. (x) In December 2015 Gail Beauchamp terminated the claimant’s flexible working for Friday prayers. (xi) On 18 March 2016, conveyed by way of letter of 11 April 2016, Andy Musgrove told the claimant that his flexible working application to attend Friday prayer had been unsuccessful. (xii) In 2014 Ian Grant made a false allegation in a performance management agreement, that the claimant had breached his employment contract and tried to dupe him into signing it. (xiii) The claimant was never paid sick pay at the pension rate once the full pay sick pay had run out despite enquiring with the Welfare Officer about this in July 2015. (xiv) Between May and July 2015, the claimant’s union subscription was not deducted from his wages despite the claimant being paid wages during these months. The claimant had to reimburse the union himself in November 2015. (xv) The claimant was subject to a performance management agreement on 15 June 2017 in which Andy Musgrove and Sam Cotton removed six skills from the claimant’s recorded skill set, which prohibited him from doing different jobs. (xvi) In 2017 a towing hitch fell on the claimant’s foot injuring him. Case No. 2413565/18 4 (xvii) In 2016 the claimant’s left hand was injured by a hand-held angle grinder. (xviii) In the middle of 2017 a false allegation was made that the claimant had entered a contaminated area without wearing a dust mask. (xix) In late 2017 the claimant and an apprentice were exposed to Asbestos in the work place and the respondent did not provide them with protection nor did they investigate the incident. b. Race Discrimination (i) In October 2015, Gail Beauchamp made a mimic of the claimant to Andy Musgrove when describing how he had been granted flexible working. The claimant contends that she would not have made this comment in regard to a white person and the same amounts to direct race discrimination and/or harassment. (ii) On various unspecified dates Steve Chippendale, a Welder, made derogatory comments about the claimant’s health and ability to work which the claimant contends he did because of the claimant’s ethnicity and would not have done so to a white person and the same amounts to direct race discrimination and/or harassment. Specifically, on 28 February 2018 Steve Chippendale ordered a cake which said “Good Fooking Riddance!” to celebrate the fact that the claimant was leaving work. (iii) There was a failure by Tim Berry, the Line Manager to deal with Steve Chippendale because he was friends and went cycling with him and the same amounts to direct race discrimination and/or harassment. (iv) In September 2017 Gary Preston told Steve Chippendale to stop being racist in the rest room and Steve Chippendale’s behaviour amounts to direct race discrimination and/or harassment. c. Disability Discrimination (i) The claimant contends he suffers from a shoulder injury that occurred in 2015 when he fell and injured the tendons in his shoulder. The claimant had to wait two months for an operation, was in a sling for six weeks and was signed off from work for six months. Case No. 2413565/18 5 (ii) The claimant also contends he suffers from a left-hand disability which was caused by the injury from the handheld angle grinder at work. (iii) The claimant contends that the respondent failed to make reasonable adjustments as recommended by the Occupational Health Unit that he be allowed to attend medical appointments for his shoulder injury and hand injury. The claimant contends that he was having medical appointments for his shoulder injury in 2015, 2016 and 2017. (iv) The claimant contends the respondent failed to make reasonable adjustments on 20 November 2015 by asking him to lift a 30kg barrel of oil despite medical advice saying that he should lift no more than 5kg. (v) The claimant contends that the respondent failed to make a reasonable adjustment of allowing him to carry on driving a fork lift truck. As a result the claimant had to do manual handling jobs which exacerbated his left-hand disability. d. Religion or Belief (i) The claimant is Muslim and contends that stopping the flexible working that accommodated his attendance at Friday prayers in December 2015 was discrimination on the grounds of religion or belief. (ii) The claimant contends that refusing his application for flexible working for attendance at Friday prayer on 18 March 2016 and 11 April 2016 was discrimination on the grounds of his religion or belief. (iii) That on an unspecified date, Steve Chippendale stated that “we live in a Christian country who has given you permission to go and pray during working hours”. The claimant contends that this amounted to discrimination on the grounds of the claimant’s religion or belief. (iv) That a referral to prevent Anti-Terrorist Police post-employment amounts to religion or belief discrimination contrary to section 108 of the Equality Act 2010. Submissions Respondent’s submission Case No. 2413565/18 6 4. The respondent’s representative contended that the majority of claims brought by the claimant were out of time. The early conciliation certificate was lodged on 8 May 2018 and therefore any act prior to 8 February 2018 was out of time. 5. The respondent is also concerned that it would be difficult for the claimant to bring the unfair constructive dismissal claim because he in fact elected for voluntary severance and was paid in accordance with that scheme. 6. On query from the Tribunal as to the last straw argument the respondent conceded that there may well be a position that the claimant could take in regard to last straw in which mutual trust and confidence could have been said to have been breached, but this would be evidentially difficult. The respondent noted that the same type of argument was not in the claim form and that the voluntary severance and possible affirmation of any breach would make it a legally difficult claim for the claimant to bring. 7. The respondent was not expecting the Tribunal to strike out on this point and noted that evidence would need to be heard by the Tribunal. 8. Instead, it was agreed that the Tribunal would deal with the amendment application. 9. The respondent submitted that the claimant’s email of 23rd April went beyond answering the respondent’s request for further and better particulars. The respondent had specifically requested further and better particulars of those acts pleaded in the claim form and anything not included in the claim form, was a new claim. 10. The respondent submitted that there were whole new facts that amounted to whole new claims that the respondent was now being asked to respond to. The respondent contends that the following amount to amendments to the claim: • Constructive Unfair Dismissal: claims (ii), (x), (xi), (xii), (xiii), (xv), (xvi), (xvii), (xviii). • Race Discrimination: claims (i), (ii) and (iii) • Disability Discrimination: Claims (ii) • Religion or Belief Discrimination: Claims (i), (ii) and (iii). 11. The respondent contends that there is a massive prejudice caused to it because these amendments are being considered some twelve months after the claim form was submitted and it is highly likely that any final hearing on these issues will be in another twelve months’ time and it contends it would have difficulty in finding any witnesses who could remember what happened. Case No. 2413565/18 7 Claimant’s Submission 12. It was the claimant’s submission that he had rushed the claim form because he had a deadline. The claimant submitted that he had included everything he could remember at the time and the reason for that was because he was rushing. 13. The claimant contends that at the time he submitted the claim form he was suffering from stress. 14. When the Tribunal queried why it had taken him until April 2019 to provide the further and better particulars requested by the respondent in September 2018, the claimant contended that he was suffering from stress, he was a litigant in person and had not quite understood what he needed to do. The Law 15. In the case of Selkent Bus Company Limited -v- Moore 1996 ICR 836, the Employment Appeal Tribunal endorsed the key principle that when exercising its discretion in an amendment application, Tribunals must have regard to all the circumstances and in particular, any injustice or hardship which would result from the amendment or refusal to make it. 16. In that case, Mr Justice Mummery outlined that a Tribunal will need to consider: - (i) The nature of the amendment: is it minor or substantial; (ii) The applicability of time limits – if a new claim is proposed by way of amendment, whether the new course of action is in time or whether time limits should be extended; (iii) The timing and manner of the application. 17. Guidance Note one of the Presidential Guidance on general case management, at paragraph 12 states “if the claimant seeks to bring a new claim, the Tribunal must consider whether the new claim is in time”. 18. However, at paragraph 11.2 Tribunals are reminded that even if no new facts are pleaded, the Tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. 19. Before any time limit issues are considered, it is incumbent on the Tribunal to consider the nature of the proposed amendment. 20. In the case of Abercrombie and Others -v- Aga Range Master Limited 2013 IRLR 953 the Court of Appeal determined that when considering a new allegation amendment, Tribunals should focus on: “not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the Case No. 2413565/18 8 difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted”. Discussion and Conclusion Constructive Unfair Dismissal 21. The application to amend to include claim (ii), that the claimant was not paid overtime from 17 September 2009 to September 2010 was not pleaded in the claim form. It amounts to a new allegation. 22. Whilst the claimant appears to contend that the series of breaches of the contract led to his eventual resignation in February 2018, I struggle to see how this failure some nine years earlier could be part of such a series. When balancing the hardship of injustice and hardship caused by not including this claim, I note that the claimant was in receipt of his overtime payment, albeit twelve months after the event. It is unlikely that the respondent would have the ability to obtain witness evidence given the duration of time and for this reason, this part of the application to amend is refused. 23. The application to amend to include claims (x) and (xi) in regard to the removal of flexible working to attend Friday prayer and the refusal of the flexible working application for Friday prayer are not included within the claim form. Whilst there is a complaint of removal of flexible working, that flexible working was provided for another reason and not Friday prayer. I take the view that this would amount to a new allegation. 24. The removal of Friday prayer flexible working occurred in December 2015 and the application was refused in March/April 2016. The respondent will have difficulty in obtaining any substantial evidence, either in witness or documentary form in regard to acts which took place over three years ago and it will thus be difficult for the respondent to fairly respond to this claim. I have weighed the injustice and hardship to the claimant in not allowing this amendment to his claim with that of the respondent, and on balance I am of the view that the respondent faces a greater hardship due to the unavailability of evidence. For this reason, I refuse the claimant’s application to amend the claim in this way. 25. The application to amend the claim to include claim (xii), the 2014 allegation that the claimant was forced to sign a performance management agreement which stated he had breached the employment contract, is included within the claim form. This is not an application to amend but rather further details and will remain within the claim. 26. The application to amend the claim to include claim (xiii), a complaint that the respondent failed to pay the claimant sick pay at the pension rate, is not within the claim form. There is no general complaint in this regard and this amounts to a new allegation. Case No. 2413565/18 9 27. The claimant contends that this took place in the Summer of 2015. The respondent makes the point that it would have difficulty obtaining any substantive evidence, either witness or documentary, to properly respond to this point. I have weighed the injustice and hardship to the claimant in not allowing this amendment to his claim with that of the respondent, and on balance I am of the view that the respondent faces a greater hardship due to the unavailability of evidence. For this reason, I refuse the claimant’s application to amend the claim in this way. 28. The application to amend to include claim (xv), that the claimant was subject to a performance management agreement on 15 June 2017 does not appear in the claim form. However, the claimant does make complaints in the claim form of similar management meetings in regard to his medical appointments. 29. Whilst this is a new allegation, when balancing the injustice and hardship caused to the parties, it would appear that the respondent will have to provide evidence in regard to its dealings with the claimant in late 2017, of which this this was one such meeting. The claimant will be subject to more prejudice if I were to deny this amendment, than there would be to the respondent in having to obtain evidence for an additional meeting. For this reason, I will allow this amendment. 30. The application to amend to include claims (xvi) and (xvii) to deal with the injuries the claimant suffered in the workplace in 2016 and 2017 respectively are new allegations and are not included in the claim form. 31. Both new allegations will require the respondent to obtain detailed evidence about the incidents themselves and the aftermath and how the respondent dealt with the same. Balancing the injustice and hardship caused to the parties, these incidents date back some years and the respondent contends that it will have difficulty in obtaining the relevant evidence to properly respond to this part of the claim. For that reason, the application to amend the claim on these two grounds is refused. 32. During the Preliminary Hearing the claimant was unable to particularise the application to amend to include claim (xviii), that a false allegation had been made that he had entered a contaminated area without a dust mask. 33. This is a new allegation that is not included in the claim form and given the generality of the amendment, the injustice and hardship caused to the respondent in trying to respond to such a general claim, will be great. It is for this reason that I refuse this amendment. 34. The Tribunal concludes that the respondent should respond to the claims detailed at points (i), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xii), (xiv), (xv) and (xix) of the constructive unfair dismissal claim. 35. It was conceded by the claimant during the Preliminary Hearing that the complaint in regard to the referral to the Anti-Terror Police occurred after his Case No. 2413565/18 10 resignation and therefore would not form any part of a breach of contract about which he could resign. Race Discrimination 36. The Tribunal takes the view that the only claim of race discrimination included within the claim form was that on 28 February 2018 when the claimant was presented with a cake with the phrase “Good Fooking Riddance!” which was his last day. This cake was bought by Stephen Chippendale who the claimant says was also responsible for numerous comments over the years which, the claimant contends, were as a result of his race. 37. The amendment sought by the claimant to include claim (i), that Gail Beauchamp mimicked him, is not included in the claim form and occurred in October 2015. This is a new allegation and is out of time. As this incident occurred almost four years ago it will be difficult for the respondent to obtain evidence to properly respond to this claim. This incident is unconnected to the other complaints of race discrimination and does not appear to form part of a series of acts. Balancing the injustice and hardship that will be caused to the respondent and the difficulty it will have in responding to the claim, permission is refused to amend the claim in this way. 38. There is an application to amend the claim to include claims (ii), (iii) and (iv) to include comments made by Stephen Chippendale, the management’s failure to deal with those comments and the challenge made in September 2017 by a colleague. The cake allegation is within time. If, as it appears, the claimant is contending that the cake allegation is the last of a series of acts, the issue of whether any such amendments are in time, must be determined by a full Tribunal having heard all the evidence. 39. The Tribunal notes the hardship that would be caused to the respondent having to respond to unspecified dates when Steve Chippendale allegedly made such comments. However, the Tribunal takes the view that the respondent would have been aware of the complaints made by the claimant in 2017 when he submitted his grievance and should be able to respond to this part of the claim. It is for this reason that the Tribunal allows those amendments to be made. Disability Discrimination 40. The amendment application in this regard relates to the lifting of a 30kg oil drum on 20 November 2015. This is not pleaded in the claim form and is a new allegation. 41. This incident took place almost four years ago. This reasonable adjustment does not relate to either the pleaded reasonable adjustments about the attendance at medical appointments or the failure to allow the claimant to carry on driving a fork lift truck. The Tribunal has considered the injustice and hardship to the parties and concludes that there would be greater Case No. 2413565/18 11 injustice and hardship to the respondent having to respond to this claim given the duration of time and the isolated nature of this claim and the disconnect with the other type of disability discrimination claim that has been pleaded. For this reason, the Tribunal refuses this application to amend. 42. Therefore, the respondent will respond to the claims (i) and (iii) of the disability discrimination part of the claim. Religion or Belief 43. The first three claims are not included within the claim form and are new allegations. The first two new claims occurred at the end of 2015 and the beginning of 2016. The claimant is unable to give a day when Stephen Chippendale made reference to a Christian country. The claim for post employment discrimination following the referral to PREVENT is contained within the claim form. 44. If, as it appears, the claimant is contending that the PREVENT allegation is the last of a series of acts, the issue of whether any such amendments are in time, must be determined by a full Tribunal having heard all the evidence and therefore permission is given to amend the claim to include all three new allegations. Strike Out Application Rule 37 45. Whilst the respondent made an application to strike out all or some of the claims following any clarification of the issues by the claimant at this Preliminary Hearing, the respondent did not detail that application further. It was agreed that the Tribunal would deal with the amendment application and provide its judgment before the respondent took stock of the claims it faced. Case Management Orders 46. The respondent is granted permission to amend the response and must do so by no later than 18th October 2019. 47. It was agreed with the parties that there would need to be a further Preliminary Hearing to case manage the remaining case to a full hearing. That Preliminary Hearing for case management purposes will take place on 30 October 2019. 48. If the respondent takes the view on having considered the remaining claims, that it would like to refresh its application to strike out any or all of the claim under Rule 37 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, it should write to the Tribunal within 14 days of this judgment being sent to the parties and apply to convert the Case Management Hearing into a Preliminary Hearing for the purposes of that application. Case No. 2413565/18 12 49. In addition, if the 30 October 2019 is an inconvenient date of either party, they should write to the Tribunal within seven days of this judgment being sent to the parties with alternative dates of availability so the matter can be relisted. _____________________________ Employment Judge Ainscough ________________________________ Date 19th September 2019 JUDGMENT AND REASONS SENT TO THE PARTIES ON 5 October 2019 FOR THE TRIBUNAL OFFICE Case No: 2413565 2018 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfield Fuels Limited Heard at: Manchester On: 7,8,9,10,11 and 14 December 2020. Before: Employment Judge Leach; Ms A. Berkeley-Hill; Mr M.Smith Representation Claimant: In person Respondent: Miss K Barry (counsel) JUDGMENT 1. The claimant’s claim of unfair (constructive) dismissal is struck out pursuant to Rule 37(1)(a) of the 2013 Employment Tribunal Rules of Procedure on the grounds that it has no reasonable prospects of success. 2. The respondent’s report to the Office of Nuclear Regulation in January 2018 was direct discrimination (protected characteristic of Religion or Belief) contrary to s13 Equality Act 2010. 3. All other complaints of discrimination (protected characteristic of Religion or Belief) fail and are dismissed. 4. All complaints of discrimination (protected characteristic of Race) fail and are dismissed. JUDGMENT – REMEDY 1. The claimant is awarded £3,500 as compensation for injury to feelings. Employment Judge Leach Date 14 December 2020 Case No: 2413565 2018 JUDGMENT SENT TO THE PARTIES ON 6 January 2021 FOR THE TRIBUNAL OFFICE Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No: 2413565 2018 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number: 2413565/2018 Name of case: Mr M Master v Springfields Fuels Limited The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding discrimination or equal pay awards or sums representing costs or expenses), shall carry interest where the sum remains unpaid on a day (“the calculation day”) 42 days after the day (“the relevant judgment day”) that the document containing the tribunal’s judgment is recorded as having been sent to the parties. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant judgment day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant judgment day" is: 6 January 2021 "the calculation day" is: 7 January 2021 "the stipulated rate of interest" is: 8% For and on Behalf of the Secretary of the Tribunals Case No. 2413565/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfield Fuels Limited Heard at: Manchester On: 7,8,9,10,11 and 14 December 2020 Before: Employment Judge Leach; Ms A. Berkeley Hill; Mr M Smith REPRESENTATION: Claimant: In person Respondent: Ms Barry JUDGMENT ON REMEDY The judgment of the Tribunal is that the claimant is entitled to an award of £3500 for injury to feelings caused by the respondent’s unlawful discrimination. REASONS 1. The claimant’s employment with the respondent terminated on 28 February 2018. The visit to the claimant’s house by Prevent took place in May 2018. 2. We have considered whether any financial losses arose from the discrimination that we have found. The claimant has said that he was unable to work for a period of time following the visit by Prevent. Whilst there is nothing in the Tribunal bundle providing any indication of attempts to find work at any stage either up to May 2018 or since then, the claimant gave evidence that he had made applications for employment and that he had provided evidence of this to Eversheds, respondent’s solicitors. The first application the claimant referred to was made on 30 September 2018. We also note at page 261 it is stated, as at December 2019, that the claimant was actively seeking full-time employment and that he had been unable to obtain paid employment even though he had made applications between September 2018 and December 2019. Case No. 2413565/2018 2 3. The claimant claims that he was too ill to apply for employment after Prevent’s visit. We have no medical evidence that indicates that he was unable to obtain alternative employment to carry out work for any period of time after the Prevent visit. . 4. There is no documentary evidence that the claimant was actively seeking work early in 2018 (before the visit by Prevent) which then stopped due to illness. There is no documentary evidence that the visit by Prevent meant that the claimant was unable to obtain work at any time before September 2018. We do not accept the claimant’s evidence provided today that he had been actively seeking work and that this active search for work was stopped or adversely affected by the visit from Prevent. 5. Our decision is that there no monetary loss arising from our finding of discrimination. 6. We then considered whether it was appropriate to make an injury to feelings award, reminding ourselves that such an award is compensatory and not punitive. 7. We considered the evidence provided by the claimant in relation to the visit by Prevent, and it is appropriate that we note the following findings. a. that there was no advance notice of this meeting. It was not something that the claimant knew was going to happen and therefore spent days or weeks with some anxiety about; b. the police officers who attended the claimant’s house were in plain clothes, thereby reducing the stigma of the visit at least outwardly to neighbours; c. the meeting was carried out respectfully by both sides (we accept the claimant’s evidence here); d. The meeting lasted about 1½ hours; e. The claimant was asked about his religious observance. He was asked about his children, including whether they were forced to fast. The claimant was asked about friendships and was required to provide some details of those friendships; f. The claimant accepted that the police officers had a right to ask questions and that he should answer their questions. The claimant has never had the police round to his house previously: this was the first and only time that this had occurred; g. The claimant's father was present and the claimant's wife was present. The claimant has provided evidence particularly that his father was upset, and we accept that that will in turn have had an impact on the claimant; Case No. 2413565/2018 3 h. The police told the claimant that the matter was resolved at the end of the meeting. The claimant’s evidence was that they went further than that, that they said that this really had been a waste of their time, and that therefore as from the end of that meeting the claimant was aware that the matters were not being taken further. 8. We have also taken into account the fact that the claimant was not aware of this discriminatory conduct whilst he was still in the respondent’s employment. There is a positive side and a negative side to this. On the positive side, the claimant has not had to endure this treatment whilst in the workplace and still under contract with the respondent; but on the negative side, the claimant was denied a workplace remedy. 9. Taking all of these matters into account we accept that the claimant's feelings were injured and that it is appropriate to make an award to him, but we have decided that this should be an award within the lower band of the Vento guidelines, and within the lower to middle range of the lower band. 10. We have decided to make an injury to feelings award of £3,500. Employment Judge Leach Date 24 February 2021 JUDGMENT AND REASONS SENT TO THE PARTIES ON 25 February 2021 FOR THE TRIBUNAL OFFICE Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No. 2413565/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfield Fuels Limited Heard at: Manchester On: 7,8,9,10,11 and 14 December 2020. Before: Employment Judge Leach; Ms A. Berkeley-Hill; Mr M.Smith REPRESENTATION: Claimant: In person Respondent: Ms K. Barry, Counsel JUDGMENT having been sent to the parties on 6 January 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided: REASONS Introduction 1. The claimant makes complaints of discrimination against the respondent and also claims that he was constructively dismissed by the respondent. 2. The respondent is in the nuclear power sector. It is part of a group of companies called Westinghouse. Its main site (where the claimant was based) is near Preston in Lancashire where it employs about 900 people (“the Site”). 3. The claimant worked for the respondent from February 1991 until 28 February 2018, a total of 28 years of continuous service. The claimant left the respondent’s employment on voluntary redundancy terms and received a voluntary redundancy payment of just over £70,000. The claimant has claimed that he opted to take voluntary redundancy terms because of the treatment that he had been subjected to at work. He has claimed that the voluntary redundancy effectively amounted to a constructive dismissal. The claimant has also claimed that he suffered direct Case No. 2413565/2018 2 discrimination because of his race and/or his religion or belief. The claimant explained that he relies on the protected characteristic of race as defined in section 9 of the Equality Act 2010 because of colour, and the protected characteristic of religion or belief under section 10 of the Equality Act 2010 because of his Muslim faith. The Hearing 4. This was an “in person” hearing. All witnesses attended to give evidence with the exception of Simon Johnson, who was required to self-isolate due to the Covid 19 Pandemic and therefore attended by CVP. 5. We thank all those attending for their compliance with the social distancing requirements during the Pandemic. 6. The claimant represented himself and attended in person throughout the hearing. The respondent was represented by Ms Barry of counsel, who also attended in person throughout. 7. The Tribunal was provided with copies of all statements and a bundle of documents which we read through on the morning of the first day. References to our page numbers in this Judgment are to the bundle. The Issues 8. The complaints and issues were clarified at the preliminary hearing (case management) in October 2019 and then more recently updated by the respondent as the claimant had, by then, withdrawn his claims of disability discrimination and age discrimination. CONSTRUCTIVE DISMISSAL Claimant’s constructive dismissal allegations 1. In 2014 Ian Grant made a false allegation in a performance management agreement, that the Claimant had breached his employment contract, and tried to dupe him into signing it. 2. Between May and July 2015, the Claimant’s union subscription was not deducted from his wages despite the Claimant being paid wages during these months. The Claimant had to reimburse the union himself in November 2015. 3. In October 2015 the Claimant’s planning job was terminated. 4. In October/November 2015 the Claimant’s flexible working stopped. 5. The Claimant was subject to a performance management agreement on 15 June 2017 in which Andy Musgrove and Sam Cottam removed six skills from the Claimant’s recorded skill set, which prohibited him from doing different jobs. 6. In late 2017 the Claimant and an apprentice were exposed to asbestos in the work place and the Respondent did not provide them with protection nor did they investigate the incident. 7. False allegations were made about the Claimant’s use of a fork lift truck in December 2017. Case No. 2413565/2018 3 8. In December 2017, Gail Beauchamp from Human Resources made a false allegation to occupational health about the Claimant’s control of a fork lift truck. 9. In December 2017, despite the occupational health doctor confirming that the Claimant was fit to drive a fork lift truck, he was still banned from doing so by Gail Beauchamp. 10. The Respondent instigated disciplinary proceedings in regard to the fork lift truck incident by way of a letter dated 18 January 2018. 11. On 18 January 2018 the Respondent drafted a letter to the Claimant, which was not received until 20 February 2018, which did not accept that the grievance he had submitted was resolved. 12. In February 2018 the Claimant looked at the personnel directory on the email address book and noted his position was that of Labourer and not Team Worker. Voluntary severance 13. The Claimant received “voluntary severance” (in the sum of 130 week’s pay) which the Claimant says he accepted after his resignation. This issue will require to be considered in light of the claims. It may affect whether or not there was a dismissal and may be relevant as to compensation (for each of the claims). Constructive dismissal 14. Was the Claimant dismissed, i.e.: (a) was there a fundamental breach of the contract of employment, in that did the Respondent breach the so-called ‘trust and confidence term’, i.e. did it, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously to damage the relationship of trust and confidence between it and the Claimant? (b) if so, did the Claimant affirm the contract of employment before resigning? (c) if not, did the Claimant resign in response to the respondent’s conduct (to put it another way, was it a reason for the Claimant’s resignation – it need not be the reason for the resignation)? 15. If the Claimant was dismissed, the Respondent accepts that there is no fair reason to dismiss. DISCRIMINATION Claimant’s discrimination allegations 16. In September 2017 Gary Preston told Steve Chippendale to stop being racist in the rest room and Steve Chippendale’s behaviour amounts to direct race discrimination and/or harassment. 17. The Claimant is Muslim and contends that stopping the flexible working that accommodated his attendance at Friday prayers in December 2015 was discrimination on the grounds of religion or belief. 18. The Claimant contends that refusing his application for flexible working for attendance at Friday prayer on 18 March 2016 and 11 April 2016 was discrimination on the grounds of his religion or belief. Case No. 2413565/2018 4 19. That on an unspecified date, Steve Chippendale stated that “we live in a Christian country who has given you permission to go and pray during working hours”. The claimant contends that this amounted to discrimination on the grounds of the claimant’s religion or belief. 20. On various unspecified dates Steve Chippendale, a Welder, made derogatory comments about the claimant’s health and ability to work which the Claimant contends he did because of the Claimant’s ethnicity and would not have done so to a white person and the same amounts to direct race discrimination and/or harassment. Specifically, on 28 February 2018 Steve Chippendale ordered a cake which said “Good Fookin Riddance!” to celebrate the fact that the Claimant was leaving work. 21. There was a failure by Tim Berry, the Line Manager to deal with Steve Chippendale because he was friends and went cycling with him and the same amounts to direct race discrimination and/or harassment. 22. That a referral to prevent Anti-Terrorist Police post-employment amounts to religion or belief discrimination contrary to section 108 of the Equality Act 2010 (albeit the Respondent argues this was done after the claimant had resigned). Time limits / limitation issues 23. The Respondent contends that the discrimination claims are out of time and this requires to be determined at the Hearing. The claimant should ensure evidence is led as to the reason why the claims were lodged when they were and why it is just and equitable to extend the time limit, if they were lodged late and any evidence that shows there was a continuing act extending over a period of time. 24. Were all of the Claimant’s discrimination complaints presented within the time limits set out in sections 123(1)(a) & (b) of the Equality Act 2010? Dealing with this issue may involve consideration of subsidiary issues including: whether there was [an act and/or conduct extending over a period, and/or a series of similar acts or failures; whether it was not reasonably practicable for a complaint to be presented within the primary time limit; whether time should be extended on a “just and equitable” basis; when the treatment complained about occurred. 25. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 8 February 2018 is potentially out of time, so that the Tribunal may not have jurisdiction to deal with it. Direct race discrimination and racial harassment 26. Has the Respondent subjected the Claimant to the alleged treatment above? 27. Was that treatment “less favourable treatment”, i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The Claimant relies on hypothetical comparators. 28. If so, was this because of the Claimant’s race, namely that he was black? 29. Does the alleged treatment also amount to unlawful racial harassment? Direct religion and belief discrimination 30. Has the Respondent subjected the Claimant to the alleged treatment above? Case No. 2413565/2018 5 31. Was that treatment “less favourable treatment”, i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on hypothetical comparators. 32. If so, was this because of the Claimant’s religion, namely Islam? REMEDY Unfair dismissal 33. While the Claimant had ticked the box at paragraph 9.1 of the ET1 stating he sought reinstatement, the Claimant confirmed that if the Claimant was unfairly dismissed he seeks compensation only: a. if the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed / have been dismissed in time anyway? See: Polkey v AE Dayton Services Ltd [1987] UKHL 8; b. would it be just and equitable to reduce the amount of the Claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2); and if so to what extent? c. did the Claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent; and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to ERA section 123(6)? Discrimination 34. If the Claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the Claimant is awarded compensation and/or damages, will decide how much should be awarded. 9. At the beginning of the hearing we raised with the parties the cut off date for time limit purposes (see 25 above). Initially the List of issues had recorded 8 March 2018 as the cut- off date. t was agreed that the correct date was 8 February 2018. Case Management 10. It is important that we note some of the case management steps taken. 11. In the claim form, only two allegations of race and/or religion or belief discrimination were detailed. The first of these is an allegation that the respondent had reported the claimant to Prevent (the anti-terrorism strategy in operation in the UK). We refer to this as “the Prevent allegation.” The second allegation relates to a cake which the claimant alleges was given to him on his resignation which bore the message “good fookin riddance.” We refer to this as “the Cake allegation”. 12. For various reasons, a case management hearing did not take place until September 2019 with a further case management hearing in October 2019. A Schedule of Issues was provided following the second of these hearings, and the List of Issues for the final hearing (as noted above) reflects this. Specific allegations Case No. 2413565/2018 6 were added at that case management stage and set out because the claimant had made an application to amend to add to the allegations. The Judge’s case management note also included the following direction to the parties: “We discussed the issues to be determined by the Tribunal. They are summarised below. The parties should consider this list carefully to make sure that it accurately records such matters. If not the Tribunal and the other party must be notified promptly.” 13. Neither party contacted the Tribunal to alter or add to the list. 14. Although directions had been given for the exchange of witness statements, the parties did not exchange statements until late November 2020 and this followed another case management hearing on 10 November 2020. It is clear from the note of this case management hearing that the Judge explained in full and clear terms to the claimant the purpose of witness statements and what should be in his statement. The Judge also required the respondent to provide the claimant with a document setting out/reminding him of all of the issues in order that he may use that as a guide when drafting his witness statement. 15. We note the directions and assistance in relation to witness statements, because the claimant's statement is lacking in detail. For example, it does not mention at all the Cake allegation and it became clear when the claimant gave his evidence and when he was asking questions of the respondent’s witnesses that he considered that there were other instances of unfair or discriminatory behaviour. No other allegations had been made and we decided and explained to the claimant during the hearing that it would not be fair and just to allow the claimant to raise further complaints and to expect the respondent to be able to respond immediately to those complaints. Strike out of the Constructive Dismissal Claim 16. On the morning of day two Ms Barry, on behalf of the respondent, applied to strike out the claimant's claim for unfair dismissal. The application for strike out was made pursuant to rule 37(1)(a) of the Employment Tribunals Rules of Procedure, on the basis that the unfair dismissal claim had no reasonable prospects of success. 17. In his claim form the claimant stated this: “I was put under immense pressure and stress and after all that nothing was resolved. Even though I had wanted to continue in working I felt I had no alternative but to resign.” 18. At the preliminary hearing (case management) in September 2019 it was clear that this claim was a constructive dismissal claim. In correspondence subsequent to that case management hearing that was the wording used by the claimant when describing his claim. 19. In his evidence provided on the afternoon of day 1 of this final hearing, the claimant denied that he had been constructively dismissed, claiming instead that he had been actually dismissed by the respondent. Case No. 2413565/2018 7 20. We took careful account of the fact that the claimant is unrepresented. We considered whether, because of this, it might be a matter of an inadequate pleading in the claim. We did not see it in that way. The pleading is very clear. The claimant stated very clearly what his case was and maintained that position through case management. 21. In considering the strike out application, we also took account of the fact that we had by then heard evidence that the claimant had been a member of a trade union recognised by the respondent and had been able to obtain legal advice either through the union or from another appropriate source. 22. On the afternoon of day one, right at the start of his evidence, the claimant accepted that he had actually been dismissed. Clearly on the undisputed facts as they were at that stage, the actual dismissal arose during a voluntary redundancy exercise. The respondent’s position is that the potentially fair reason of redundancy applied. The claimant stepped forward and volunteered. The claimant says he did so because he was unhappy about events that had taken place at work, but unhappiness with employment would not be unusual for candidates for voluntary redundancy. 23. Our decision, reached on day 2 was that the claimant’s claim of unfair dismissal had no reasonable prospects of success. The claimant that had been brought (a constructive dismissal claim) was a hopeless claim. An alternative claim that the actual dismissal was unfair also had no reasonable prospects of success. The reason for dismissal was redundancy resulting from an extensive voluntary redundancy exercise. 24. As we explained to the claimant, we make a clear distinction between the long list of issues with which the claimant was unhappy that he says gave rise to his decision to resign/accept voluntary redundancy terms and those separate matters that he claims amount to unlawful discrimination. Our decision to strike out the unfair dismissal claim did not affect the outcome of the discrimination claims which we went on to hear and determine. 25. Whilst we reached our decision to strike out the unfair dismissal claim on the basis noted above, the claimant was also informed about the provisions of section 123(7) of the Employment Rights Act 1996. 26. In this case the claimant had declined to provide a full Schedule of Loss on the basis that he did not know how to calculate it. The claimant had provided an email dated 19 December 2019 (page 260) in which he stated as such and then went on to provide some details of the amount he had been paid a month during employment with the respondent, how much he had received (on a net basis) by way of a redundancy payment and noting that he wanted to claim (without quantifying) loss of earnings and loss of pension. 27. The claimant received an enhanced redundancy payment well in excess of the basic and compensatory award that he could have recovered in relation to the unfair dismissal claim. Even if we had decided that there was some reasonable prospect of his unfair dismissal claim succeeding, and then went on to decide that the claimant succeeded in that unfair dismissal claim, the requirements of section 123(7) of the Employment Rights Act 1996 would have reduced (to nil, having regard to the claimant’s annual salary) the amount of any award for unfair dismissal. Case No. 2413565/2018 8 Findings of Fact 28. Our findings of fact as set out below, are limited to those facts that are relevant to the surviving discrimination claims. 29. We have had to make findings of fact dating back many years in some areas, and we note evidential difficulties in relation to certain of these. 30. There was a complaint of discriminatory conduct extending over a period of time for the purposes of section 123(3)(a) of the Equality Act 2010, and it was appropriate therefore to consider and make findings of fact in relation to all allegations in order to then determine whether there was such discriminatory conduct extending over a period of time. The claimant’s employment with the respondent 31. The claimant was employed in one of the respondent’s workshops at the Site. His job title on starting work there in 1991 was “General Worker.” In the years before his dismissal, the claimant’s job title and role was Engineering Team Worker which required him to carry out tasks in support of the fabricating and welding activities in the workshop. The claimant's requests for flexible working and the cessation of those arrangements in late 2015 32. The claimant and the respondent witnesses were asked for their account of events in relation to this issue from many years ago. We find that some of this evidence was unreliable and our findings rely significantly on the written evidence that we have. This effectively supports the respondent’s version of events. We find as follows. 33. In 2014 the claimant spoke with Mr Musgrave, the Workshop Manager, to inform him that he was struggling to deal with some family issues. His father was ill and being cared for by his wife, his wife could not drive but was learning, and the claimant asked for some flexibility on a temporary basis so that he could help drop his children off and pick them up from school. Mr Musgrave agreed to helping the claimant on a temporary basis. 34. We note here that Mr Musgrave impressed us as a witness. His evidence informed us that he is a responsible and caring manager. This informal arrangement was supportive of a junior colleague. 35. Mr Musgrave allowed the flexibility to continue but some 12 months later spoke to the claimant to say that the informal arrangements needed to come to an end. However, he did inform the claimant that he could make a formal flexible working request if he wanted to. The impression we have is that the claimant had used this offer of flexibility frequently, and we also note that it came at a time when the claimant's absence levels were high. We have no criticism of Mr Musgrave’s decision to draw the informal arrangement to a close. 36. We do not find that the informal arrangement in 2014 and 2015 relating at all to the claimant wishing to take part in Friday prayers (see below). There is no mention of this in email correspondence in 2014 or 2015. We do not accept the Case No. 2413565/2018 9 claimant’s evidence that he spoke about Friday prayers in 2014 a week or so after he had spoken and obtained Mr Musgrave’s agreement for some flexibility with start and finish times. We have expressed our view of Mr Musgrave, having heard his evidence. We are clear that had Friday prayers been mentioned in 2014, Mr Musgrave would have dealt with the request in the same responsible and understanding way that we find he dealt with other matters. Claimant’s request for flexible working to accommodate Friday prayers in February/March 2016 37. On 22 February 2016 the claimant sent an email to Mrs Beauchamp who is a member of the respondent’s HR team. The email was also sent to Mr Musgrave and others. The claimant asked that he be allowed an extra 25 minutes lunch break on Fridays so that he could attend Friday prayers. We find that this is the claimant's first request for flexibility to accommodate additional time to enable the claimant to attend Friday prayers. The request was considered over the following two days by the HR team and the claimant's line management. It is also clear from an email of 24 February 2016 from the claimant's supervisor, Mr Cotton (page 100) that he spoke directly with the claimant about the request. 38. Mr Musgrave became more involved in dealing with the request, and he proposed the claimant make up the time by starting 25 minutes earlier on Fridays when he should work in another workshop as the claimant's workshop was not open that early in the day. Mr Musgrave emailed the claimant with this potential solution and asked for his thoughts. Mr Musgrave also spoke directly with the managers in the other workshop and they were in agreement with the proposal. 39. The claimant did not respond to Mr Musgrave. When asked about this in cross examination he answered that he had badgered Mr Musgrave but that he was fobbed off on at least three occasions by him. Our finding is that this did not happen. Mr Musgrave put in place the means for the claimant to have an additional 25 minutes off for Friday prayers by starting work 25 minutes earlier on Fridays. The claimant did not respond further to Mr Musgrave. Ideally, perhaps, Mr Musgrave might have chased the claimant, but we note Mr Musgrave is a manager with responsibility for the whole workshop. The claimant was asked to reply to Mr Musgrave and he did not. Alleged comment made by Mr Chippendale that, “We live in a Christian country. Who has given you permission to go and pray during working hours?” 40. It is relevant to note that we did not hear evidence from Mr Chippendale, who was a former colleague of the claimant. The claimant and Mr Chippendale worked together for some 25 years, a quarter of a century. They worked alongside each other for much of that time in the respondent’s workshop. Mr Chippendale was a welder based in the same workshop as the claimant. 41. The claimant did not accept when it was put to him in questions that Mr Chippendale and the claimant were friends. They did not socialise outside of the workplace. The claimant accepted he did share food sometimes with Mr Chippendale within the workplace. The claimant explained that Mr Chippendale considered himself a bit of a cook and enjoyed tasting the food that the claimant would bring into work. Case No. 2413565/2018 10 42. Mr Chippendale, like the claimant, no longer works for the respondent. He also accepted voluntary redundancy terms in 2018, leaving a little later than the claimant. Mr Chippendale’s last day of employment was in June 2018. 43. A number of issues between the claimant and Mr Chippendale featured in the claim and at the hearing, but in relation to this alleged specific comment we note as follows. 44. The claimant was not sure about when Mr Chippendale directed the comment to him. Initially he said it was 2016 and then on being questioned considered it was probably 2014. It appears to have been made in response to the claimant turning up late for work on a Friday afternoon. Mr Chippendale appears to have made a brusque comment to the claimant because he was late. 45. There are many occasions when the term “we live in a Christian country” could not be considered as offensive. Here, if that comment was made at all, on balance it was made in response to the claimant telling Mr Chippendale he had taken time off work in order to attend Friday prayers. It may have been a comment, indicating a view (an inaccurate one, given that the working week of many employees ensures time off on Sundays) that Christians are not given time off to worship in this country so why should the claimant as a Muslim. The claimant did not complain about the comment at the time, in fact the first mention of this complaint was not even on the issue of the claim, it was made in April 2019 when the claimant applied to amend his claim. 46. We find either that the comment was not made or that the claimant was not offended by it. However the comment was long ago and we express our reservations about making a finding of fact from the evidence that we have. The claimant’s complaint in August 2017 about racist comments 47. On 23 August 2017 the claimant emailed Mr Barry raising a number of concerns or complaints. The email is at pages 112-113. These concerns centred around the claimant's recent absences and medical conditions. Whilst we have not seen a full history of the claimant's attendance or absences we have been informed, and we find, that the claimant had taken some 250 days of absence over a rolling four year period and had some 45 medical appointments over a 14 month period. Comments appear to have been made by the claimant's colleagues, and the claimant complained about these and a breach of confidentiality. It is clear, and the claimant accepted on being questioned, that the vast majority of this email related to complaints connected to the claimant's medical conditions and his alleged disability. 48. However, there was one point of the email relevant to the claim of race discrimination, where the claimant states as follows: “The member of staff who made these comments has on a number of occasions made references to my absences and his unsavoury and racist comments are well known amongst staff members.” 49. Although the claimant did not name the person either in this email or (as we note below), in subsequent internal meetings, his evidence to us was that this was a reference to Mr Chippendale. Case No. 2413565/2018 11 50. Mr Berry, who was at the time Mr Musgrave’s manager, responded to this email on 24 August 2017 to say the concerns would be investigated and invited the claimant to contact him in the meantime. The email is prompt and supportive and gave notice of the next step. 51. The claimant then received a letter dated 11 September 2017 from the respondent’s HR department inviting him to a meeting. The meeting was specifically to discuss the allegation of racist comments. The meeting took place on 22 September 2017 (notes of the meeting are at page 115). Our findings about the meeting are as follows: (1) The claimant was provided with an opportunity to attend the meeting with a union representative and declined to do so. He had plenty of time to make these arrangements had he wanted to; (2) The claimant declined to name names, to say who it was that was making racist and unsavoury comments; (3) The claimant did not provide any detail about what comments were made; (4) The claimant’s evidence to us was that it would have been obvious to those in attendance that it was Mr Chippendale. The respondent’s witnesses here deny that. We do not find that it was obvious to those in attendance who the claimant was talking about; neither do we think it would have been appropriate to guess or infer an identity in such a serious matter. 52. The claimant was then asked to sign a short statement as confirmation of what he said. The claimant has been critical of this statement in his evidence and was also critical shortly after the meeting (see his email of 22 September 2017 at page 116). 53. We find that this statement was drafted in good faith by Ms Beauchamp at or immediately following the discussion, and that it accurately records what the claimant said at the meeting but with one exception: that the claimant asked that the issues raised by him be dealt with informally by providing guidance about religion and race equality issues in staff briefings. 54. The claimant gave evidence that he felt pressurised into signing the statement, that the atmosphere of the meeting was oppressive and he just wanted it to finish, so he signed in order that he could leave. We do not find this to be the case. We find that the statement was signed willingly and is an accurate record with the one exception that we have noted. 55. Following the meeting the guidance the claimant had asked about was provided to members of the respondent’s workforce and the claimant was complimentary of this training. Findings relating to “the cake” Case No. 2413565/2018 12 56. Mr Chippendale brought a cake into work on the claimant’s last day. The claimant's evidence was Mr Chippendale told him that he had ordered the cake from Booths grocers. There was a message on the cake: “Good fookin riddance”. 57. Mr Cotton was Mr Chippendale and the claimant's supervisor. Mr Cotton gave evidence at the Tribunal and his evidence was that the cake was a shared joke for a number of people who were leaving work from the engineering department and workshop areas. It became clear from his responses to questions and from the claimant's own evidence that in fact the claimant was the only person leaving the department on or around 28 February 2018. Mr Chippendale was also going to leave but not until June 2018. 58. We find that the cake was brought into work by Mr Chippendale specifically for the claimant's leaving date. We have not heard from Mr Chippendale. The claimant received the cake on or around his last day at work and shared it with his colleagues. 59. There is no documentary evidence or evidence in pleadings or witness statements that the claimant raised a complaint about the cake. The claimant was asked questions by Ms Barry about he Cake allegation and did not then mention that he had raised a complaint. On the afternoon of day 3 of the hearing, the claimant was asking Mrs Beauchamp questions. In her evidence Mrs Beauchamp noted that the first time she had learned of the Cake allegation was after the claimant had left (which we find to have been a reference to the claim form in these proceedings). At this stage of the hearing the claimant said that this was not true and that he had made a complaint to the respondent’s HR team on the same day that he was given the cake. He said that he met with Linda Salisbury. Although this was new information, Mrs Beauchamp was willing to respond, noting that Linda Salisbury was a pensions specialist and would not have dealt with a workplace complaint such as this. 60. We make the following findings having taken everything into account: (1) The cake was not intended by Mr Chippendale to be offensive. He bought it for his colleague’s leaving day. He had worked with that colleague for some 25 years. (2) The message was a clumsy attempt at humour. It had nothing to do with the claimant's race or religion. (3) The claimant was not offended by it at the time. He did not raise a complaint. (4) The claimant did not mention the allegations at all in his witness statement. Had he been genuinely offended by the cake, he would not have overlooked it. Findings relating to the respondent’s decision and actions of reporting concerns about the claimant 61. The respondent reported the claimant to the respondent’s regulator, the Office for Nuclear Regulation (“ONR”). It is not clear what date this report was made, as there is no written report. There is no email, no paperwork at all in relation to this Case No. 2413565/2018 13 report. We find that it was made in a day in January 2018. We note here our surprise that not a single document was generated from this referral, not even an email to ONR containing the name and address details of the claimant. 62. In December 2017 Mr Berry had concerns about the claimant’s behaviour. The claimant was submitting a lot of reports, called “near miss reports”. The claimant was sending these directly to Mr Berry even though that was not the process. Mr Berry was also aware of an incident involving the unsafe use of a forklift truck which happened at the end of September 2017. As far as Mr Berry was concerned, there was clear evidence that the claimant was the driver of the forklift truck at the relevant time. Initially the claimant had claimed that he could not recall driving the forklift truck but then on returning from a period of sickness absence changed his behaviour to deny that he drove the forklift truck. 63. On 13 December 2017 the claimant refused to attend a meeting to discuss the concerns he had expressed about the meeting held to discuss racist comments (the 22 September meeting - already referred to at paragraph 51 above). Also on or shortly before 13 December 2017, a workshop meeting took place in order to discuss one of the near miss reports submitted by the claimant. The claimant had behaved out of character at this meeting, shouting and pointing his finger at colleagues. This behaviour was out of character. It was confirmed in an email to the claimant dated 14 December 2017 64. On 21 December 2017 Mr Berry met with the claimant and a trade union representative, when the claimant denied that he was driving the forklift truck. 65. Mr Berry had significant involvement, therefore, in these issues with the claimant, and was concerned that relations between the claimant and line management was breaking down. Mr Berry emailed the claimant on 3 January 2018 to inform him that he should not drive the forklift truck. Mr Berry’s email included the following comment I have concerns that you were driving the fork lift truck and I note your refusal to acknowledge this, I also note the breakdown in trust that has now developed with your line management, Due to the breakdown in trust I am no longer confident that should any FLT event occur whilst you were driving would be reported in an open / honest way. I therefore at this point will not authorise you to recommence FLT driving. You can appeal against this decision. If you wish to appeal then please let me know and I can arrange for the appeal into my decision to be heard. Regarding accusations that you have made by email regarding most recently myself and also Andy Musgrave and Gail Beauchamp. Human resources will be arranging a meeting for this to be discussed. (The reference to “accusations” was to an unresolved complaint that the claimant had about his treatment at the meeting on 22 September 2017 – see 62 above.) 66. At around the same time that these events took place, Mr Berry went to see Mr Cotton. No-one has provided a date of this meeting. We find that it was at the Case No. 2413565/2018 14 very end of 2017 or very beginning of 2018. Mr Berry recognised that he had a difficult management issue. The claimant, a longstanding member of staff, was in dispute and relations with him were fraught. His refusal to attend meetings, his denial of operating the forklift truck on a day when there appeared to be evidence that he was using it, his submission of multiple “near miss” reports, were all disruptive. Mr Berry was struggling to decide how best to deal with this difficult management issue, and wanted to discuss the claimant with Mr Cotton, the claimant's supervisor. 67. We find that Mr Berry was not, immediately prior to his meeting and discussion with Mr Cotton, contemplating reporting the claimant to security. He was handling a difficult management issue. It was the additional information that he received during his meeting with Mr Cotton that pointed him in the direction of security. The information that was received by Mr Berry from Mr Cotton 68. We find the following information was provided: (1) That Mr Cotton reported to Mr Berry that someone had mentioned to him that the claimant had made a comment along the lines of “British troops in the Middle East deserved to die” (we refer to this as the “British troops comment”); (2) Mr Cotton reported that the claimant had become more religious; (3) Mr Cotton reported that the claimant had changed and that he had behaved more aggressively. This was a reference to the meeting referred to in the letter of 14 December 2017. Mr Berry was already aware of that incident: he was the author of that letter. 69. The new information, therefore, provided by Mr Cotton to Mr Berry was (1) the alleged British troops comment and (2) the comment about the claimant becoming more religious. 70. At the Tribunal Mr Cotton was questioned about the British troops comment. He was unable to tell the Tribunal who had reported to him that the claimant had made that comment. He was unable to say when that comment had been made or provide any other detail. It is clear that no action was taken by Mr Cotton or anyone else in response to the claimant allegedly making that comment, at least until Mr Berry came to discuss the claimant with Mr Cotton. It was a rumour from an unknown source that was allowed to persist and circulate and was now being passed up the management chain. Mr Berry’s report to Mr Johnson (Head of Security) 71. As already noted, we have not seen any documentary evidence of this report. Mr Berry’s evidence, which we accept, was that this was the first such report made by Mr Berry, and Mr Johnson’s evidence was that ultimately it was the first time that he had made an external security report to ONR. 72. Mr Berry reported the claimant as a potential security risk once he and Mr Cotton had considered the line manager’s guidance, which we had at page 268. Case No. 2413565/2018 15 When deciding whether to make a report to security both Mr Berry and Mr Cotton were also aware of an email reminder sent round to line managers on an annual basis. 73. The respondent has not been able to provide a copy of the email sent round in 2017 and has provided an example from 2016 and a further example in 2019. We find that such an email was sent annually and so a version will have been sent in 2017 with wording on the same or very similar basis to that provided in December 2016 – which we note below:- This email is a reminder of your responsibilities as a line manager to personnel in the UK, please be aware this is a regulatory requirement:- Line manager responsibilities Effective personnel security is dependent on the support of line managers. Line managers are responsible for: A. maintaining the standards of security expect. B. briefing the post holder about the protection of assets and processes under their control. C. following the guidance published in the line managers guide (found on elements under security) D. Notifying the Personnel Security Team of any concerns surrounding the ongoing honesty, integrity and values of those whom they manage (including contractors). As a line manager if you have any concerns please report them immediately to the Security Department … . 74. We also note the following extracts from the line Managers Guide referred to in the email: “The following are examples of areas of concern that should be posted to Security Department: • Expressions of interest for extremist views, actions or incidents, particularly when violence is advocated. ………………….. • Sudden loss of interest in work or overreaction or prolonged response to career changes or disappointments. ………………… • Signs of stress such as excessively emotional behaviour. ………………… Case No. 2413565/2018 16 • Sudden or marked change of religious, political or social affiliation or practice that has an adverse impact on the individual’s performance of their job or attitude to security.” 75. We accept the evidence from Mr Berry and Mr Cotton that they were reminded about security concerns through these emails and that they had regard to the emails and Line managers Guide when making a referral. 76. We find that the decision made by Mr Berry to report the claimant to the respondent’s Head of Security was due to the totality of concerns that Mr Berry had, including the information provided by Mr Cotton that Mr Berry had not previously known about. We note a key part of Mr Berry’s concerns was as expressed in his witness statement when reporting what colleagues, particularly Mr Cotton, had said, as follows: “Mo [the claimant] had changed. They said that recently he had become a lot more outspoken, that he would say British troops in the Middle East deserved to die. He would be quite vocal about Allah whereas before Allah was rarely mentioned, and he was prepared to voice opinions whereas before he would be quite quiet about things.” 77. We accept Mr Berry’s evidence that it was a difficult decision for him. His report was made, by reference to the line manager’s guidance, straight to security. It was a report of a security concern not an HR concern and therefore did not involve HR. The claimant has said that Mr Berry should have had an informal discussion, or someone should have had an informal discussion about the issues. However we note that at the point that Mr Berry was contemplating the report an informal discussion would have taken Mr Berry outside of the instructions in the email. 78. There was a difference between the evidence of Mr Johnson and Mr Berry as to the manner of reporting. Mr Johnson believed that he spoke with Mr Berry on the phone; Mr Berry’s clear evidence is that he came to see Mr Johnson in person. We prefer Mr Berry’s evidence. As noted, this was a difficult decision for Mr Berry, who sat in an open plan office. Mr Berry’s clear recollection is that he met with Mr Johnson in person, and that is our finding. 79. Neither Mr Johnson nor Mr Berry kept any note of their discussion. Mr Johnson’s actions on receipt of the information 80. Mr Johnson received the information from Mr Berry and Mr Johnson’s evidence is as follows: “Mr Berry told me he was concerned by Mr Master’s behaviour. He explained he had worked with Mr Master for many years and that recently, at times in the canteen, Mr Master had started to say things that suggested that he held extreme Islamic views.” 81. We have made our findings about Mr Berry. He had more reasons than this for reporting the claimant to the Head of Security, however the key issue as far as Mr Johnson was concerned was the rumour about comments made by the claimant which indicated holding extreme views. Case No. 2413565/2018 17 82. We find the only example of such a comment was the British troops comment. Mr Johnson also received the additional information from Mr Berry, including comments that the claimant had become more religious and that he had mentioned Allah more frequently than he used to. Other information provided by Mr Berry, particularly the claimant’s behaviour in meetings, the near miss reports, was filtered out by Mr Johnson. The key points were: (1) The claimant had become more religious; and (2) The rumour about the British troops comment. 83. Mr Johnson made the decision that he should not involve the police straightaway. Instead he decided that he should make a report to the respondent’s external regulator the Office for Nuclear Regulation (“ONR”). He did this in January 2018 and did so for two reasons: (1) To obtain advice from the regulator, particularly about whether he was doing the right thing in not reporting the matter directly to the police, or whether the information should be passed to the police; and (2) Because he did not know what to do with the information himself internally. Mr Johnson decided that he could not simply sit on the information and as he was effectively at the top of the chain from an internal security point of view, his actions ensured that he “covered his back.” 84. We note that no attempts were made internally to obtain any further information, either before or after reporting matters to ONR. 85. We have no information about what advice was provided by ONR, if any, other than the evidence from Mr Johnson that he was instructed to provide the claimant’s details. 86. Whilst we accept that Mr Johnson did not take the more serious course of action of reporting the concerns directly to the police, we find that the decision was otherwise little more than a kneejerk reaction to being presented with unsubstantiated allegation about an employee making an extremist comment and information about the same employee displaying behaviour of greater religious observance. There is no suggestion that the information provided by Mr Johnson to ONR was qualified with caution about the rumour being unsubstantiated and from an unknown source. There is no suggestion that ONR was informed that the claimant had worked with the respondent without any such issues for some 27 years. 87. We note here that the claimant has denied having made the British troops comment. Based on the evidence we have, we find that the comment was not made by the claimant. Events following Mr Johnson’s report to ONR 88. The claimant was visited by Prevent in May 2018 (we provide some further details of this below). In his evidence Mr Johnson notes that he was surprised that the ONR had involved Prevent based on a single piece of information. In response to questions he speculated that the police visit might not have been based on this Case No. 2413565/2018 18 information alone and that it was possible that this was just one piece in a jigsaw that might have led Prevent to visit the claimant. We also note from Mr Johnson’s witness statement the comments as follows: “The ONR investigated and they involved the Counter terrorism Police. The conclusion reached was that there were no other indicators of concern and the matter was closed.” 89. It is clear that the conclusion referred to in Mr Johnson’s statement was not Mr Johnson’s, it was the conclusion of ONR and/or the police. It appears clear, therefore, that it was this information alone that led to the police visit. 90. The claimant was visited on one occasion by Prevent. Police officers attended his house in plain clothes. It was not obvious to neighbours or passers-by by that the claimant was receiving a visit from the police. The claimant's father and wife were at home and the claimant was required to explain to his close family, the visit and who the visitors were. 91. The police officers informed the claimant that he had been reported by his workplace. No other detail of the reporting was provided to the claimant except that the report had been made in January 2018 and the police officers expressed some disquiet about not being asked to follow up the report until May 2018. Security levels at the respondent’s site 92. Finally, we make some findings of fact about security at the respondent’s site. Nuclear sites in the UK are graded 1-4 from a security perspective, where 1 is the highest security grade. This site is at grade 3. This site is not one of the highest risk sites. There is however material on site that Mr Johnson told us could be stolen to manufacture a dirty bomb or sabotage to cause significant injury on site. The UK nuclear industry has its own police, the Civil Nuclear Constabulary, which is a police force that sometimes carries arms. In 2013 a decision was taken that the level of risk did not require the Civil Nuclear Constabulary to be armed whilst at the respondent’s premises, but arrangements had to be made for an armed response from the local police force, being Lancashire Constabulary. Submissions 93. Miss Barry provided us with a helpful written submissions document and made additional oral submissions. In her submissions, Miss Barry also referred us to passages from an earlier case management order (September 2019). 94. Initially in submissions the Claimant attempted to provide us with additional evidence about his dealings with UNITE, the trade union. We informed the claimant that it would not be fair for him to present new evidence at the submissions stage. The claimant confirmed that the hearing had dealt with all matters and asked that we reach our decision. The claimant also thanked Miss Barry for her professionalism. 95. We note in the section below a number of case authorities that Miss Barry referred us to. Case No. 2413565/2018 19 96. In relation to the Prevent Issue, Miss Barry noted a. That it was out of time – given that the report to ONR was made in before 8 February 2018. b. That the respondent did not report its concerns about the claimant directly to the police/PREVENT and therefore the issue should be dismissed. We comment on this in our conclusions below. The Law Direct Discrimination – section 13 Equality Act 2010 (“EqA”) 97. Section 13 states: “A person (A) discriminates against another if, because of a protected characteristic, A treats B less favourably7 than A treats or would treat others.” 98. An important question for us is whether the claimant’s race and/or his religion or belief was an effective cause of the treatment which we find. As was made clear in the case of O’Neill v. St Thomas More Roman Catholic School [1996] IRLR 372 the relevant protected characteristic need not be the only cause of the treatment in question. 99. We also note the following:- a. the House of Lords in Nagarajan v London Regional Transport 1999 ICR 877, HL, held “discrimination may be on racial grounds even if it is not the sole ground for the decision……..If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” (judgment of Lord Nicholls) b. Paragraph 3.11 of the EHRC Employment Code which states that ‘the characteristic needs to be a cause of the less favourable treatment, but does not need to be the only or even the main cause’ Burden of Proof 100. We are required to apply the burden of proof provisions under section 136 EqA when considering complaints raised under the EqA. 101. Section 136 states: “ (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are any facts from which a court could decide in the absence of any other explanation, that a person (A) has 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.” 102. We have also considered the guidance contained in the Court of Appeal’s decision in Wong v. Igen Limited [2005] EWCA 142. This case concerned the test as set out in discrimination legislation that pre-dated the EqA but the guidance Case No. 2413565/2018 20 provided in there remains relevant. The annex to the judgment sets out guidance. (the amended Barton guidance) 103. We are also clear that the wording of the statute itself – s136 EqA - is the key reference in relation to burden of proof when reaching decisions about whether there has been a contravention of the EqA. 104. Finally, on the issue of burden of proof, we are mindful of guidance from case law indicating that something more than less favourable treatment may be required in order to establish a prima facie case of discrimination; see for example Madarassey v. Nomura International [2007 ICR 867] where the following was noted in the judgment: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Harassment– section 26 Equality Act 2010 (“EqA”) 105. Section 26 (1) states: “ A person (A) harasses another (B) if – (b) A engages in unwanted conduct relating to a relevant protected characteristic, and (c) 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 106. The EAT decision in Richmond Pharmacology Limited v. Dhaliwal [2009] IRLR 336 emphasised the need for Employment Tribunals when deciding allegations of harassment to look at three steps, namely:- a. Whether the respondent had engaged in unwanted conduct b. Whether the conduct had the purpose or effect of violating the claimant’s dignity or creating an adverse environment c. Whether the conduct was on the grounds of the applicable protected characteristic? Time Limits 107. Section 123 EqA requires a complaint to an Employment Tribunal to be brought “within the period of 3 months starting with the date of the act to which the complaint relates.” This is subject to the following:- Case No. 2413565/2018 21 a. The right to bring a claim within such longer period “as the Employment Tribunal considers just and equitable.” b. Extensions to the time limit to comply with the ACAS early conciliation procedure (section 140B EqA). c. That conduct extending over a period of time it to be treated as done at the end of the period (section 123(3)(a) EqA). Time limits – just and equitable extension 108. Where a claim made under the EqA is out of time then it is necessary for Tribunal to consider whether it would be just and equitable to exercise a discretion so as to allow the claim. Our discretion is wide and the EqA itself does not list any factors that we are obliged to take in to account (or not take in to account). Case law does provide some guidance as to the relevant factors. 109. Southwark LBC v. Afolabi [2003] ICR 800 CA. The judgement in this case referred to a checklist set out in s33 of the Limitation Act 1980 noting that, whilst Tribunals should not slavishly follow the checklist, it may be a useful guide. S33 of the Limitation Act 1980 deals with the exercise of discretion when claimants bring personal injury claims in the civil courts and are outside of the relevant limitation period. 110. In Abertawe Bro Morgannwg University Board v. Morgan 2018 ICR 1194 the Court of Appeal noted that the language used at s123 made it clear that Parliament intended to give tribunals the widest possible discretion and it would be wrong to confine the exercise of that discretion to a specific list. Conduct extending over a period of time 111. We have considered the recent case of South West Ambulance Service v. King [2020] IRLR 168 on the application of s123(3)(a) – that conduct extending over a period is to be treated as done at the end of the period. We note the following from that judgment. 112. That the last of the series of acts must be a proven act of discrimination, not just an alleged act which is found not to amount to discrimination. 113. If any of the acts in the alleged series is found not to amount to discrimination then it cannot form part of a series of acts. The alleged series must be considered absent those acts when deciding whether the series of acts amounts to a continuing act. 114. When asserting a continuing act for the purposes of s123(3)(a) EqA a party cannot place reliance “on some floating or overarching discriminatory state of affairs without that state of affairs being anchored by specific acts of discrimination occurring over time. The claimant must still establish constituent acts of discrimination or instances of less favourable treatment that evidence that discriminatory state of affairs. If such constituent acts or instances cannot be established, either because they are not established on the facts or are not found to Case No. 2413565/2018 22 be discriminatory, then they cannot be relied upon to evidence the continuing state of affairs” (see para 36 of the Judgment of Choudhury J.) Discussion and Conclusions Was there a continuing act? 115. No. We do not find that there have been discriminatory affairs or discriminatory acts over a period of time as was required in the most recent Judgment in the South West Ambulance case. We have made findings of fact on all stated issues going back as far as 2014, and it is clear to us from the evidence that we have that the claimant was not subjected to discrimination on an ongoing basis. 116. We have found an act of discrimination in relation to the Prevent allegation. However, we have not found earlier acts of discrimination Should the claims which are out of time be allowed to proceed? 117. We have looked at whether time should be extended for those claims that are out of time. We note that all complaints of unlawful discrimination, except the Cake allegation, are out of time. 118. We have decided that it would not be just and equitable to extend time except in relation to the Prevent allegation. We note particularly: a. poor recollection of events at times, including the claimant’s own recollections; b. that the merits of many of the complaints are weak. We note from the evidence we have considered that we have made findings of fact that the claimant's complaints are unfounded other than the Prevent allegation. c. the fact that the claimant had opportunities to raise specific matters on occasions in the past and did not do so. On the one occasion that the claimant did raise allegations of race discrimination, he was asked for details and refused to provide any. 119. This then leaves the Cake allegation and the Prevent allegation. We have set out clearly what our findings of fact are in relation to the Cake allegation and why we have made those findings. We find the claimant's race and/or religion or belief was not a factor in the choice of words for the cake decoration. 120. The Prevent allegation is out of time. However we note that the claimant was not aware of the respondent’s actions until May 2018 when the claimant was visited by Prevent. We also note that the allegation was included in the claim form dated 19 July 2018. Applying section 123 EqA, we are satisfied it would be just and equitable to extend time so that the claimant can proceed with this claim. Case No. 2413565/2018 23 121. We have considered submissions by Ms Barry that there was no referral to antiterrorism police by the respondent and therefore the allegation is misconceived and should be dismissed. These are our conclusions:- a. The claimant’s allegation is that there was a referral to Prevent antiterrorism police post-employment, and that that amounts to religion or belief discrimination. We accept that it was not a direct referral by the respondent. Our findings of fact are that the respondent passed on information about the claimant to ONR, not directly to Prevent, and that the respondent did so when the claimant was still employed. A direct consequence of this was the referral to Prevent and the police visit to the claimant's home following the termination of the claimant’s employment. b. The claimant was not aware when issuing his claim that the respondent did not report him directly to the police. The respondent has responded to the allegation by providing its full evidence on the issue. If any tweaking of the amendment to the claim or the issues is required even after the evidence had been provided, there is no disadvantage caused to the respondent. c. Although the claimant can be criticised for not including a number of details and allegations initially and also not following up on details in his witness statement, this has been the one constant complaint that he has made from the outset of the claim, during case management, the references in his witness statement and at the final hearing. d. We are required to deal with claims in accordance with the overriding objective, and we are very clear that it would not be fair and just to refuse to reach a conclusion on this issue due to a technicality. We have heard all of the evidence and we are well able to reach our conclusion. So to the extent necessary, even at the late stage that we do, we amend the claim . 122. Once we decided that it was fair and just to reach a conclusion we turned to the decision in Nagarajan and particularly the phrase “significant influence”. We have also paid close attention to the revised Barton guidance. These are our conclusions. a. The unfavourable and potentially less favourable treatment was:- i. the persistence of a rumour that the claimant made the British troops comment, and: ii. the passing on of personal data, including the claimant's home address, his religion and also attributing to him the British troops comment which would lessen his standing with others even though his connection to such comment was unsubstantiated. b. We have decided that the hypothetical comparator is an employee who is not Muslim who is the subject of an unsubstantiated rumour that he made a commented: “British troops in the Middle East should die”. Case No. 2413565/2018 24 c. We have decided that there are facts from which we could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. We have decided that the facts are such that the claimant's religion could have been a significant influence on the persistence of the rumour and the respondent’s act of reporting the claimant to ONR. d. On that basis we need to assess the respondent’s explanation and whether it is adequate to discharge the burden of proof that, on the balance of probabilities, religion was not a significant influence on the treatment of question. The revised Barton guidelines say this: “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.” e. We note that there is no explanation for the circulation or persistence of the rumour. There is no evidence at all about when this comment was supposed to have been made by the claimant, where it was made, the context in which it was made, who made it, who it was made to and who reported it to Mr Cotton. The respondent has no explanation at all for the rumour. f. We find that a significant influence on that rumour persisting, that the claimant made the comment, was the claimant's religion. The claimant had become more religious. He displayed more openly his observance of Islam. That is the evidence of the claimant, of Mr Cotton and of Mr Berry. Had the claimant not been Muslim, this rumour would not have persisted to the extent that it did. g. We find that the rumour was allowed to persist as it was reported up the management reporting chain to Mr Johnson. It was then reported by Mr Johnson to the ONR; not as an unsubstantiated rumour but as a fact. We accept the series of other concerns by Mr Berry, but as we have made clear in our findings of fact the concerns were distilled down by Mr Johnson. 123. The rumour would not have persisted had the hypothetical comparator made the British troops comment. The climate which turned this from a difficult management issue to a security issue would not have existed. The rumour would not have continued up to and including the stage that the report was made to ONR and which then led to the police calling on the claimant at his home. We find therefore that that this allegation of direct discrimination (protected characteristic religion or belief) contrary to section 13 of the Equality Act 2010 succeeds. Employment Judge Leach Date 24 February 2021 Case No. 2413565/2018 25 JUDGMENT AND REASONS SENT TO THE PARTIES ON 25 February 2021 FOR THE TRIBUNAL OFFICE Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No: 2413565/19 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfield Fuels Limited JUDGMENT The claimant’s application dated 19 January 2021 for reconsideration of the judgment sent to the parties on 6 January 2021 is refused. REASONS 1. I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claims. That application is contained in a 1 page document attached to an email dated 19 January 2021. The Law 2. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70). 3. Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. 4. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.” 5. Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: Case No: 2413565/19 “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” 6. In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application 7. The points raised by the claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour. 8. There are some points made by the claimant which should be addressed specifically:- 8.1 the claimant claims to have provided documents to the respondent’s solicitors which were not then included in the bundle of documents for use at the hearing. This allegation was made by the claimant on the final day, as the Tribunal was dealing with remedy. In fact, the claimant interrupted the delivery of judgment on remedy to note that there was additional information regarding searches for employment. 8.2 We decided to pause our judgment and allow the claimant to speak. The additional information provided by the claimant was that he started to apply for alternative employment in September 2018 and that there were no job applications prior to then but that there were job applications from then. This is not disputed in the remedy judgment. 8.3 The claimant’s reference to a near miss report dated 26 February 2018 is new evidence and is not relevant to any of the issues determined by the Tribunal. 8.4 The claimant refers to an email from himself to Linda Salsbury that he has. The claimant could have provided this in the course of disclosure (in fact, he should have provided it in order to comply with his disclosure obligations – see Case Management Order 4 made at the Preliminary Hearing on 30 October 2019). Even had he attended the first day of the final hearing with a copy of the email he now claims to have, it is almost certain that the tribunal would have allowed the claimant to rely on it. He did not. It is too late to now raise the Case No: 2413565/19 existence of the email. 8.5. The claimant refers to another email which was not in the bundle but which was provided on the 6 January 2020. He does not explain the relevance of this email. It is too late to now raise the existence of the email. Conclusion 9. Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused. Employment Judge Leach DATE 24 February 2021 JUDGMENT AND REASONS SENT TO THE PARTIES ON 25 February 2021 FOR THE TRIBUNAL OFFICE Case No: 2413565/2018 11.11 Judgment on reconsideration of rule 21 Judgment – hearing - rule 70 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfield Fuels Limited Heard at: Manchester (by CVP) On: 16 March 2021 Before: Employment Judge Leach Ms Berkeley-Hill Mr M Smith REPRESENTATION: Claimant: In person Respondent: Mr L Ashwood (Solicitor) UPON a reconsideration of the judgment dated 14 December 2020 on the Tribunal’s own initiative under Rule 73 of the Employment Tribunal Rules of Procedure 2013. JUDGMENT The judgment is varied as follows:- 1. Pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (“Regulations”) interest is awarded on the amount of compensation for injury to feelings. 2. The amount of interest payable in accordance with the Regulations has been agreed by the parties and the Tribunal to be £723.33 Employment Judge Leach 19 March 2021 Case No: 2413565/2018 11.11 Judgment on reconsideration of rule 21 Judgment – hearing - rule 70 JUDGMENT SENT TO THE PARTIES ON 23 March 2021 FOR THE TRIBUNAL OFFICE Case No: 2413565/2018 11.11 Judgment on reconsideration of rule 21 Judgment – hearing - rule 70 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number: 2413565/18 Mr M Master v Springfield Fuels Limited The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 23 March 2021 "the calculation day" is: 24 March 2021 "the stipulated rate of interest" is: 8% MR S ARTINGSTALL For the Employment Tribunal Office Case No: 2413565/2018 11.11 Judgment on reconsideration of rule 21 Judgment – hearing - rule 70 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE 1. This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/collections/employment-tribunal-forms If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim. 2. The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”. 3. The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged. 4. “Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet). 5. Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal. 6. ‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. RESERVED JUDGMENT Case No. 2413565/2018 Code V 1 EMPLOYMENT TRIBUNALS Claimant: Mr M Master Respondent: Springfield Fuels Limited Heard at: Manchester (by CVP) On: 16 March 2021 Before: Employment Judge Leach Ms Berkeley-Hill Mr M Smith REPRESENTATION: Claimant: In person Respondent: Mr L Ashwood (Solicitor) JUDGMENT – RESPONDENT’S APPLICATION FOR COSTS The claimant is ordered to pay to the respondent the sum of £7,622.57 (inclusive of VAT) in costs. REASONS Introduction 1. The final hearing of this case took place over six days from 7-14 December 2020. At the end of the hearing the respondent stated that it wished to apply for a costs order against the claimant. We decided not to proceed with a costs order there and then. The claimant is a litigant in person and it was important that the RESERVED JUDGMENT Case No. 2413565/2018 Code V 2 claimant understood the terms of the application for costs and had an opportunity of considering his position and taking appropriate advice. Application for Costs 2. The respondent’s application was limited to its costs incurred in responding to two of the claims made by the claimant: (1) Constructive unfair dismissal complaint; and (2) Disability discrimination complaints. This Hearing 3. We were provided with a bundle of documents that the respondent had prepared specifically for this costs hearing. We were also provided with written submissions setting out in some detail the respondent’s position in support of the application for costs. The claimant had been provided with the bundle and submissions in advance of the hearing. 4. Before we considered the costs hearing, we informed the parties that the Tribunal proposed to reconsider its remedy judgment on its own initiative. This is dealt with in a separate reconsideration judgment. Respondent’s Letter dated 19 January 2021 5. The respondent’s submissions were in large part a repetition of the terms of a detailed letter from Eversheds (respondent’s solicitors) to the claimant dated 19 January 2021. We referred to the letter at the beginning of the hearing, noting the following at the start of the letter: (1) That Eversheds stated it was providing the detailed letter in order that the claimant could prepare for the costs hearing; (2) The inclusion of the following paragraph: “We recognise that you are representing yourself. Accordingly we urge you to get qualified, specialist legal advice as soon as you can and, in any event, before the costs hearing. If the Employment Tribunal has not done so already, it may provide you with a list of organisations that may provide that advice free of charge.” 6. We asked the claimant whether he had considered the letter. The claimant's response was that he had glanced at it but not paid any real attention to it because his wife had been poorly. We asked the claimant about whether he had considered the respondent’s submissions document and bundle (which was provided much closer to this hearing) and the response was the same: that the claimant was aware that he had received it but had not really paid any attention to it. 7. The claimant also informed us that he had not sought any legal advice in relation to the respondent’s application for costs. RESERVED JUDGMENT Case No. 2413565/2018 Code V 3 Evidence about ability to pay 8. We explained to the claimant that if we were considering making a costs order we may take into account the claimant's ability to pay (pursuant to rule 84 of the Employment Tribunals Rules of Procedure 2013). We asked the claimant whether he would want to provide any information about this. The claimant explained that he would not be able to pay any costs and said that he would like an opportunity of providing some evidence. 9. We decided that we would break for almost two hours to allow the claimant a further opportunity of considering the details of the respondent’s application, and to provide ourselves and the respondent with any information he wanted to provide about ability to pay. 10. The claimant provided three documents (to which we refer below) before we resumed the hearing. We took account of these documents. Respondent’s costs applications 11. The reasons for the application are set out in detail in the written submissions document and Mr Ashwood added to these only in respect of submissions made about the information provided by the claimant about ability to pay (see below under “Ability to Pay”). Disability discrimination 12. The basis of the respondent’s claim for costs in relation to the disability discrimination complaints was that the claimant had acted unreasonably and/or vexatiously in bringing and continuing with the claim. In support of its application the respondent set out a chronology of the proceedings. 13. We also considered the key events in the progress of this claim. We note the following: (1) 19 July 2018 – claim presented to Tribunal. The claimant’s complaints were not clear from the detail provided. (2) 26 September 2018 – respondent wrote to claimant to ask for more detail. The requests relating to the disability discrimination claim were reasonable and straightforward. • “What is the alleged disability relied upon? • From the details provided in the claim form, on what basis do you believe you were discriminated on the grounds of your disability? • From the details provided in the claim form, which acts are relied upon in support of your claim of disability discrimination? RESERVED JUDGMENT Case No. 2413565/2018 Code V 4 • If you believe the respondent should have made reasonable adjustments please confirm what adjustments should have been made and how you consider it would have assisted you.” (3) 14 December 2018 – preliminary hearing (case management). Unfortunately, the claimant did not attend this hearing. In his absence the claimant was ordered to confirm whether or not he was pursuing his claims and if so to provide the additional information requested. The claimant did not provide that information until 23 April 2019, although the information provided was still far from clear. (4) 10 September 2019 – a second preliminary hearing (case management) took place. Some time was spent at that hearing clarifying the claimant's various claims, including the claim of disability discrimination. (5) 30 October 2019 – a third preliminary hearing (case management) took place at which the claimant was ordered to provide medical information, which he did. Crucially, at this preliminary hearing the claimant was given further guidance including a recommendation that the claimant seek legal advice. We note the following from the Employment Judge Hoey’s Case Management Summary (at paragraph (14)): “I recommended the claimant seek legal advice, whether via a solicitor, Law Centre, Law Clinic or Citizens Advice Bureau, to ensure the rules of evidence and the law around the claims were fully understood and the claimant properly set out his case and what he seeks.” The claimant was also provided with links to helpful guidance and other materials. (6) The claimant provided medical information as required but then on 5 December 2019 he appeared to make an application to amend his claim. The claimant's email provided details of an injury in 2010 and appeared to provide allegations of alleged poor treatment between 2010 and 2016. (7) 9 December 2019 – the respondent wrote objecting to any application for amendment to the complaints. (8) 11 December 2019 – the respondent wrote to the Tribunal and the claimant setting out why it considered that the claimant was not disabled. The respondent’s solicitors had by this time reviewed the medical information provided by the claimant. The respondent’s correspondence included the following information: “An Occupational Health report of 10 August 2016 confirmed his shoulder injury had been resolved by that date.” “Additionally, the claimant completed numerous annual health assessment forms from 2012 in which he confirmed he was not disabled.” RESERVED JUDGMENT Case No. 2413565/2018 Code V 5 The form also asked: “Do you have any muscle/joint problems, neck, back or shoulder pain?” “On each occasion the claimant was asked the question he confirmed that he did not.” (9) The respondent made clear on 11 December 2019, that it did not accept that the claimant had a disability for the purposes of the Equality Act 2010 and had explained why. (10) On 30 January 2020 – the claimant responded to this email stating as follows: “I was not a disabled person for the purposes of the Equality Act 2010 in response to respondent’s solicitor’s email of 11 December 2019.” It appeared by that stage, therefore, that the claimant was not pursuing his claim of disability discrimination. The respondent wrote to the Tribunal and asked for that complaint to be dismissed on withdrawal. Nothing further was heard for some time. (11) 6 August 2020 – the respondent applied for the disability discrimination claim to be struck out or dismissed. (12) 11 August 2020 – the claimant asked the claimant to disregard his email of 30 January 2020 and said that he was in fact disabled. By this stage the final hearing was close (due to commence on 7 December 2020). Even so, a further and final preliminary hearing (case management) was listed. (13) 10 November 2020 – a preliminary hearing (case management) was held at which the claimant conceded that he was not disabled and withdrew his disability discrimination claim. Constructive Dismissal Claim 14. The respondent’s application for costs in relation to this claim is on two bases: (1) That it had no reasonable prospect of success; (2) That in bringing and continuing with it the claimant acted unreasonably and/or vexatiously. 15. We note here the Tribunal’s finding on day two of the final hearing that the constructive dismissal claim had no reasonable prospects of success and our decision to strike out the constructive dismissal claim. Claimant’s ability to pay RESERVED JUDGMENT Case No. 2413565/2018 Code V 6 16. In relation to the claimant's ability to pay, the three documents provided were as follows: (1) A current account summary (1 page) that showed the current account to be in credit; (2) A credit card balance/summary (1 page) that appeared to show that there was an amount outstanding on the credit card but for the previous month a payment had been made which exceeded the minimum payment due on the credit card; (3) An Amazon account balance/summary (1 page) which appeared to be called a “New Day Account” which showed a current balance (which we have taken to be an amount outstanding) of £3,185.08 and availability to spend of £814.92 (which we take to mean a credit limit – like a credit card – of £4000 in total) with a payment due in April of £78.94. 17. In relation to the claimant’s ability to pay, Mr Ashwood noted the following: (1) That a Tribunal did not have to take into account a party’s ability to pay even though it may do; (2) That the claimant had received a significant lump sum from the respondent amounting to 130 weeks’ pay when he accepted the option of voluntary redundancy in 2018 and this payment would have provided him with an ongoing income for much of the time that this case ran. Claimant’s response to the costs application. 18. The claimant noted the following: (1) That his income was now much less than when he was working; (2) He had been looking for work since he left the respondent and had not succeeded in finding it; (3) That he had an occupational pension scheme and was now in receipt of a pension of “£700 and something” per month. The claimant did not provide any evidence about any lump sum payable under the pension scheme; (4) That any amount that he might have to pay would be a great detriment as he is unable to survive on his pension income as it is; (5) That he did not consider taking legal or other appropriate advice. He had asked the union for some assistance right at the beginning of the claim but they would not support his claim; RESERVED JUDGMENT Case No. 2413565/2018 Code V 7 (6) That he has built up debts and he had creditors knocking on his door, including for payments for gas and electricity. In addition, he does not know how long he will be able to pay his rent on his house; (7) A costs order should not be paid because otherwise who would want to bring a claim to an Employment Tribunal? (8) That the respondent was motivated to bring the costs application because he was awarded £3,500 compensation. On this point the claimant was asked about the terms of the respondent’s email of 21 January 2021 which was sent without prejudice save as to costs and stated as follows: “As you know…Springfield is asking the Employment Tribunal to order you to pay Springfield’s legal costs of £17,472.10 plus VAT at the costs hearing on 16 March 2021. However, Springfield will stop its efforts to have to pay costs if you agree that Springfield does not have to pay the £3,500 compensation and to bring your claim to an end. Do you agree to that? If you do I will draw up an agreement for you to sign.” The claimant explained that he was not prepared to trade away his judgment because it was the judgment itself that was more important to him than being awarded £3,500. (9) That the claimant believed that the respondent’s HR Manager, Mrs Beauchamp, was unreasonable and was behind the respondent’s application. The Law 19. Unlike the general procedure in Civil Courts, costs do not “follow the event” in Employment Tribunals. Traditionally, Employment Tribunals have allowed employees to challenge the fairness of dismissals, raise allegations of unlawful discrimination (or other matters within the jurisdiction of Employment Tribunals) without a threat of costs in the event that a claim is unsuccessful and for employers to respond to claims, without a threat as to costs in the event that a claimant is successful. 20. The Tribunal Rules provide Tribunals with a power to award costs in the circumstances set out in those Rules. 21. The Rules which are relevant to the respondent’s costs application state as follows: “76. When a Costs Order or Preparation Time Order may or shall be made A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so where it considers that: RESERVED JUDGMENT Case No. 2413565/2018 Code V 8 (a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively 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 has no reasonable prospect of success…. ……………………… 77. Procedure 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. 78. The amount of a Costs Order (1) A Costs Order may – (a) Order the paying party to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party; (b) Order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of a detailed assessment carried out either by a County Court in accordance with the Civil Procedure Rules 1998 or by an Employment Judge applying the same principles.” ……………………………………. 84. Ability to Pay In deciding whether to make a costs …….order and if so in what amount, the Tribunal may have regard to the paying party’s….ability to pay.” 22. In relation to an application under rule 76(1)(b) (no reasonable prospect of success), this test should be considered on the basis of the information that was known or reasonably available at the start of proceedings (see paragraph 67 of the decision in Radia v Jefferies International Limited [UKEAT/007/18/JOJ] (“Radia”): “Where the Tribunal is considering a costs application at the end of, or after, a trial it has to decide whether the claims ‘had’ no reasonable prospect of success judged on the basis of the information that was known or reasonably RESERVED JUDGMENT Case No. 2413565/2018 Code V 9 available at the start, and considering how at that earlier point the prospects of success in a trial that was yet to take place would have looked. But the Tribunal is making that decision at a later point in time, when it has much more information and evidence available to it, following the trial having in fact taken place. As long as it maintains its focus on the question of how things would have looked at the time when the claim began, it may and should take account of any information it has gained and evidence it has seen by virtue of having heard the case, that may properly cast light back on that question. But it should not have regard to information or evidence which would not have been available at that earlier time.” 23. In relation to an application for costs under rule 76(1)(a) (vexatious, abusive, disruptive or unreasonable conduct) we note the following (recognising that the respondent’s application relies on what is claims is vexatious and unreasonable conduct on the part of the claimant:- (a) Vexatious. In the written submissions document from Eversheds, there is reference to the judgment in ET Marler Ltd v Robertson [1974] ICR 72 which included a description of vexatious conduct as being where “an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive”. (b) Unreasonable. We note that unreasonable in the context of rule 76(1)(a) has its ordinary meaning. 24. Where a party seeking costs makes out one or more of the grounds for costs to be awarded, then the Tribunal must consider whether to award costs. This consideration requires the Tribunal to exercise a discretion. There is no finite list of matters that Tribunals must take into account when exercising this discretion, and the relevant importance of various factors will depend on the particular circumstances of the case. In the case of Barnsley MBC v Yerrakalva [2011] EWCA Civ 1255 the Court of Appeal provided some guidance to Tribunals when considering costs applications:-. “On matters of discretion an earlier case only stands as authority for what are or what are not the principles governing the discretion and serving only as a broad steer on the factors covered by the paramount principle of relevance. A costs decision in one case will not in most cases predetermine the outcome of a costs application in another case: the facts of the cases will be different as will be the interaction of the relevant factors with one another and the varying weight to be attached to them.” 25. In the 2012 case of AQ Limited v Mr A J Holden [2012] UKEAT/0021/12 (“AQ Limited”) the Employment Appeal Tribunal noted the following in relation to costs applications against litigants in person:- RESERVED JUDGMENT Case No. 2413565/2018 Code V 10 32. The threshold tests in rule 40(3) are the same whether a litigant is or is not professionally represented. The application of those tests may, however, must take into account whether a litigant is professionally represented. A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As Mr Davies submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in rule 40(3). Further, even if the threshold tests for an order for costs are met, the Tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. 33. This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity. 26. That judgment considered an employment tribunal’s refusal to make a costs order under the previous version of the Tribunal rules (2004) which is why there is a reference to rule 40(3) rather than rule 76. However, the principles noted in the extract above in relation to litigants in person remain relevant. 27. When considering whether a claim had any reasonable prospects of success (for the purposes of Rule 76(1)(b)) Tribunals are required to assess this objectively (see for example Hamilton-Jones v Black EATS/0047/04) Where a claim, assessed objectively, has no reasonable prospects of success, it is irrelevant (for the purposes of rule 76(1)(b)) that the claim has been brought by a litigant in person. However, and as made clear by the AQ Limited case, the fact that the claim was brought by a litigant in person may be relevant when the tribunal goes on to consider whether to make a costs order once the threshold of 76(1)(b) has been met. Analysis and Conclusion Constructive Dismissal Claim 28. We have already made a finding that the claim had no reasonable prospects of success. 29. In relation to unreasonable conduct, we consider the hearing of 30 October 2019 to be significant. The proceedings had been in play for over a year by then. The claimant, as a litigant in person, had not engaged sufficiently in the process. He had not attended one hearing and had not complied with Case Management Orders RESERVED JUDGMENT Case No. 2413565/2018 Code V 11 at the time that he was required to. The claimant’s claim (including his constructive dismissal claim) was confusing. 30. We accept the claimant's submission that making a costs order against unsuccessful claimants is bound to discourage potential claimants from bringing claims even where those claims may have merit. However, when claimants choose to commence proceedings in Employment Tribunals they must be willing to engage fully in those proceedings, receive correspondence from the Tribunal and listen carefully to instructions and guidance from Judges at hearings. Significant time and costs have been taken up in dealing with these claims even by the stage of the preliminary hearing on 30 October, but it is clear that there was a strong recommendation to the claimant to take advice on his claims and ensure he understood matters. The claimant did not do that. He was not obliged to but, at that stage there was a clear “red flag” that the claims had difficulties, that they were unclear and that a good deal of careful consideration needed to be given to them. It is clear to us that the claimant did not embark himself on carefully considering his claims either. 31. The claimant appeared to have been mistaken that the decision to take an option of voluntary redundancy amounted to a resignation for which he could then raise a constructive dismissal claim. Considered objectively, that claim had no reasonable prospects from the outset. 32. Further, we regard the claimant's conduct in persisting with a constructive dismissal claim that had no reasonable prospects of success from that day onwards to be unreasonable. Disability Discrimination Claim 33. We apply the same analysis to the disability discrimination claim as we have when considering unreasonable conduct in relation to the constructive dismissal claim. 34. Discrimination claims are often far from straightforward. The claimant appeared to need assistance in formulating his claims and taking them forward or to better understand what claims he could bring and the Tribunal process. Attempts were made to clarify the claims in case management hearings. It appeared clear to the Judge by 30 October 2019 that advice was needed and that “steer” was given. The claimant did not consider taking any sort of appropriate advice and there was significant confusion with the disability discrimination claim as outlined above. Our decision is that the claimant's conduct in pursuing the disability discrimination claim following the preliminary hearing on 30 October 2019 up to the date when he withdrew his claim, was unreasonable. Should a costs order be made? 35. Having reached the conclusions above, the threshold for considering a costs order has been crossed and we have therefore considered whether to exercise our discretion in making a costs order, and if so for how much. RESERVED JUDGMENT Case No. 2413565/2018 Code V 12 Constructive dismissal claim – reasonable prospects of success applying Hamilton-Jones (see above) 36. We are required to assess this objectively. The claim had no reasonable prospect of success at the outset. However, we have taken into account the fact that the claimant is a litigant in person when deciding whether a costs order should be made, and if so how much. We have decided that it is appropriate to factor in the confusion that the claimant may have had as a litigant in person at an earlier stage of the proceedings about whether an employee’s decision to accept a voluntary redundancy package is in fact a dismissal. It is a matter that a legal adviser would have been able to assist the claimant with or the claimant could have engaged with the process and found out himself. (We note the claimant’s evidence that his Trade Union would not support him at the outset of the claim but we have not heard evidence about why and therefore have not taken this in to account). Our decision in relation to both the application (no reasonable prospects) and the application under rule 76(1)(a) (unreasonable conduct) is that we should order costs incurred from immediately following the preliminary hearing of 31 October 2019 up to the final hearing. Disability Discrimination Claim 37. We have applied the same factor to the disability discrimination claim. Claims are complicated, the claimant is a litigant in person, but by 31 October 2019 he had had the benefit of two case management hearings which he had attended, and a further one which he did not attend. Clarification of the claimant's complaints was sought in these hearings and, at the third hearing (30 October 2019) it was strongly recommended to the claimant that he obtain advice. Factoring in the claimant's status as a litigant in person we consider that it is appropriate to look at costs from the date of that hearing up to the date that his disability discrimination claim was withdrawn. How much should be awarded? 38. The respondent had provided details of the costs incurred by way of a schedule. This schedule sets out all costs in relation to work carried out on all complaints. It then notes a total of 31 complaints, including 7 for disability and 13 allegations collectively giving rise to a fundamental breach of contract and claim of constructive dismissal. The respondent was therefore looking for the following: (1) 13/31 of the total costs incurred in relation to the constructive dismissal claim; (2) 7/31 of the total costs incurred in relation to the disability discrimination claim, but only up to the date of withdrawal of that claim, being 10 November 2020. 39. The respondent was not looking for an amount in excess of £20,000 in total and did not require a detailed assessment of costs either by a County Court or by this Tribunal. Whilst the respondent’s proposal was to some extent a “rough and ready” assessment, we have been prepared to consider matters on that basis, RESERVED JUDGMENT Case No. 2413565/2018 Code V 13 limiting the period of time for the claims as noted above and applying further deductions. Taking all of this into account we consider the approach is fair and reasonable. 40. The hourly rate applied is £255. Sometimes the rate is a little less than this (£230). On one occasion (11 May 2020) a rate of £360 applied, albeit for half an hour of work. That is too much for these proceedings. We have adjusted this amount to £255. 41. This provides for the following amounts: Costs (disability discrimination) from 31 October 2019 to 10 November 2020 £1,580.08 Constructive dismissal claim £9,006.90 Total (less VAT) £10,586.98 The claimant's ability to pay 42. We have decided that it is appropriate to factor in the claimant's ability to pay. We accept some but not all of the claimant’s evidence/submissions on this. We have taken into account the following: (1) That the claimant is not employed. (2) His income is currently a pension of just over £700 per month. (3) That the claimant is 62 years old and therefore is likely to have a limited number of working years ahead; (4) That we have seen some evidence that the claimant has credit card debts; (5) On the basis of the evidence that we have seen, we do not accept the claimant's personal circumstances are anything like as difficult as he has stated; (6) The claimant is in receipt of an award for injury to feelings (now with interest following our reconsideration); (7) The claimant may well have received a pension lump sum on retirement; (8) The claimant received a significant voluntary redundancy payment. 43. We have decided to factor in the claimant's ability to pay and to reduce the amount above by 40%. This reduces the amount to £6,352.14. However, VAT is payable and this needs to be added, which makes a total amount payable of £7,622.57 inclusive of VAT. Employment Judge Leach RESERVED JUDGMENT Case No. 2413565/2018 Code V 14 Date: 19 March 2021 RESERVED JUDGMENT AND REASONS SENT TO THE PARTIES ON 23 March 2021 FOR THE TRIBUNAL OFFICE Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.