Case number: 2207821/2017
EMPLOYMENT TRIBUNALS
Claimant: Mr C Hughes
Respondent: Virgin Active Limited
Heard at: London (Central) On: 23, 24, 25, 26 & 30 July 2019; 3 September
2019; 11 & 25 October 2019; 23 & 24 January
2020 (in chambers); 16 & 18 February 2021
(in chambers via MS Teams)
Employment Judge: Professor A C Neal
Members: Mrs H Craik
Mr J Ballard
Representation
Claimant: In Person
Respondent: Ms R Kennedy (of Counsel)
RESERVED JUDGMENT
The judgment of the Tribunal is that:
(1) the Claimant was unfairly dismissed by reason of having made a
protected disclosure;
(2) the Claimant was unfairly dismissed by reference to Section 98(4) of the
Employment Rights Act 1996;
(3) the Claimant’s claim alleging unlawful discrimination by reference to
the protected characteristic of age is dismissed;
(4) the Claimant’s claim alleging unlawful discrimination by reference to
the protected characteristic of sex is dismissed; and
(5) the Claimant was unlawfully discriminated against by reference to the
protected characteristic of race.
If required a hearing will be listed for a future date to determine the remedies
in relation to claims (1), (2) and (5) and the claimant should write in to request
one is agreement between the parties cannot be reached.
REASONS
THE CLAIMS
1 In this case the Claimant brings five claims. (1) He alleges that he has been
unfairly dismissed by the Respondent; (2) He alleges that he has been unfairly
dismissed by reason of having made protected disclosures; (3) He alleges that he
has been subjected to unlawful discrimination by reference to the protected
characteristic of race; (4) He alleges that he has been subjected to unlawful
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discrimination by reference to the protected characteristic of sex; and (5) He
alleges that he has been subjected to unlawful discrimination by reference to the
protected characteristic of age.
THE ISSUES
2 In the course of a Case Management hearing before Employment Judge
Tayler on 21 May 2018 the parties agreed that the following issues fell to be
determined:
Qualifying Disclosure
1. Did the Claimant make disclosures of information:
1.1 Disclosure 1: By email in August 2017, reporting to Hilary Tysoe, Rowena
Smith, Emma Thomas (‘the HR team’) the threat made by Roya Arasp and
Darrell Giovanni that ‘If Virgin Active don’t get him, we will’. Further, by
informing the respondents later in August that he had also told the police.
1.2 Disclosure 2: In June or July 2017, telling the HR team that Mr Giovanni
had committed direct debit fraud.
1.3 Disclosure 3: During his grievance following his disciplinary suspension
telling the respondents that he had suffered a heart attack in November
2016 because of the way they had been treating him.
2. Did the disclosures in the reasonable belief of the Claimant tend to show that:
2.1 a criminal offence had been committed, was being committed or was likely
to be committed?
2.2 a person had failed, was failing or was likely to fail to comply with any legal
obligation to which he is subject?
2.3 the health or safety of any individual had been, was being or was likely to
be endangered?
3. In the reasonable belief of Claimant were the disclosures made in the public
interest?
Protected Disclosures
4. If the Claimant made protected disclosures were they protected disclosures being
made to the Claimant’s employer?
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Detriment, automatic unfair dismissal and causation
5. Was the Claimant subject to detriment by reason of having made the protected
disclosures by the manner in which grievances, disciplinary and appeal were
handled, including the outcomes of the disciplinary process and grievance?
6. Was the principal reason for the Claimant’s dismissal the making of the protected
disclosures?
Unfair Dismissal
7. What was the reason for the dismissal of the Claimant? The Respondent relies
on conduct in that the Respondent alleges that the Claimant made a racist remark
to a member of staff, bullied another member of staff and was aggressive in his
approach to managing the sales team.
8. Did the Respondent have a genuine belief that the Claimant was guilty of the
conduct found against him?
9. Was any such belief formed on reasonable grounds?
10. Did the Respondent conduct a reasonable investigation?
11. Was the dismissal fair?
Direct age and/or sex and/or race discrimination
12. Was the handling of the Claimant’s disciplinary and grievances as set out in his
tribunal claim and/or his dismissal direct age and/or sex and/or race
discrimination?
Compensation
13. If successful what compensation should the Claimant be awarded: including any
deduction that should be made if the Claimant caused or contributed to his
dismissal or to take account of the chance he would, or might, have been
dismissed absent any unfair process?
3 In relation to the discrimination allegations (Point 12 of the Case Management
Notes), the parties co-operated on the first day of the hearing to facilitate an agreed
statement of Further Particulars to be produced with a view to clarifying more
specifically the matters being relied upon by the Claimant. Those Further
Particulars were expressed as follows:
WHISTLEBLOWING
1. Reporting crime to Respondent of Direct Debit fraud being committed by Darrell
Giovanni.
Detriment suffered: Disciplinary action.
2. Reporting crime – Threats to safety – to the Respondent and police.
Detriment suffered: Dismissal.
DISCRIMINATION
1. Reported a racist, ageist comment "you are only doing this to me as I am old,
black and fat" made towards me by Jannett George.
Treated differently due to age and race.
Detriment: grievance ignored, precedent set.
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2. Grievance above ignored and dismissed by Denise MacKenzie.
Age – Told to be "more mature".
Detriment: grievance ignored and Denise MacKenzie became investigating
officer – impartial treatment.
3. Roya Arasp raised concerns to have me removed as disciplinary officer – HR
investigated and put her disciplinary on hold.
I raised concerns about Denise MacKenzie and was ignored. Investigation
continued.
Age, Race, Gender
Detriment: grievance ignored, suspension and disciplinary action taken.
4. My grievances were not heard in line with Policy. Roya Arasp, Jannett George
and Darrell Giovanni all had grievance hearings and investigations into theirs,
without a dictated scope. Grievances treated differently.
Due to Race, Age and Gender.
Detriment: grievances not heard separately. No grievance
meetings/investigations leading to unfair disciplinary process. Lead to unfair
dismissal.
5. Treated differently in disciplinary process regarding racial allegation compared to
Jannett George.
Age, Race, Gender
Detriment: led to dismissal.
6. Inconsistent disciplinary sanctions applied by Respondent
Fraud – Darrell Giovanni – not dismissal
Racist comment – Jannett George – not dismissal
Malicious rumours/bullying – Roya Arasp no action taken
Treated differently age, race, gender
Detriment: Dismissal.
7. Grievance meetings were handled differently and their grievances taken at face
value with no set agenda.
Comparators: Roya Arasp, Jannett George and Darrell Giovanni
Age, Race and Gender
Detriment: led to dismissal.
8. Threat to safety not taken seriously by the Respondent. There was a witness
statement provided to the Respondent confirming the threat.
Roya Arasp denied the allegation despite a witness confirming the threat.
Respondent took no further action with her.
In comparison, I denied making the racial allegation. Roya Arasp also had a
witness to her allegation. The Respondent dismissed me.
Due to Race and Gender.
Detriment: Led to dismissal.
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9. Disciplinary officer made discriminatory comment "young gent out of his depth"
and confirms "he's exactly what he thinks he is being discriminated against".
Due to age and gender
Detriment: Led to dismissal.
10. Racial allegation changed by Malcolm Armstrong/Respondent (3
June) (evidence
provided showed it could not have happened).
Comparator: Jannett George admitted to making racist, ageist comment – no
action taken by Respondent.
Due to age, race and gender.
Detriment: Dismissal.
CONDUCT OF THE PROCEEDINGS
4 The hearing of this case was listed for five days commencing on 23 July 2019.
5 On Day 1 of that listed hearing the matter had initially been included in the
list of hearings at the London Central Employment Tribunal to be heard before an
Employment Judge sitting alone. However, given that the Claimant’s claims
included an allegation of detriment and unfair dismissal by reason of having made
a protected disclosure (what is often described as a “whistleblowing” complaint) it
had been ordered at a Preliminary Hearing (Case Management) held on 21 May
2018 before Employment Judge Tayler that the matter should be heard by a full
panel in accordance with the provisions of the Employment Tribunals Act 1996
(as amended).
6 Non-Legal Members were eventually assembled to join the Employment
Judge, but half a day was lost before proceedings could get under way.
7 Thereafter, the case proceeded on 23 – 30 July 2019, and additional listed
sittings were held on 3 September and 11 October 2019. Following a hearing on
25 October 2019 at which final submissions were made on behalf of each of the
parties, the Tribunal adjourned to consider their decision in chambers on 23 & 24
January 2020. Shortly following the initial chambers discussions Covid-19 struck,
with a lockdown of the Employment Tribunal premises. Notwithstanding the
closure of the London Central Employment Tribunal building, which has continued
up until the time of completing this judgment, arrangements were eventually made
for a “virtual” chambers hearing to take place, using “MS Teams”. This duly took
place on 16 & 18 February 2021. The Tribunal is grateful to solicitors acting on
behalf of the Respondent for their assistance in accessing electronic versions of
the trial bundles.
8 The Tribunal heard oral evidence from the Claimant, and from five witnesses
on behalf of the Respondent – namely Ms Morag Alabaster (on Day 4); Mr Malcolm
Armstrong (on Days 4 and 5); Ms Emma Thomas (on Days 5, 6 and 7); Mr James
Archibald (on Day 5); and Ms Hilary Tysoe (on Day 6). It was noted that Ms Tysoe
attended to give evidence notwithstanding that she had by the time of the hearing
left the employment of the Respondent. In the course of his evidence, Mr
Armstrong confirmed that a number of other individuals who featured in the
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narrative had also left the employment of the Respondent, but were not appearing
to give evidence. Those former employees were Ms Roya Arasp, Ms Wynny
Asiegbu, Ms Jannett George, Mr Darrell Giovanni, Mr Tristan Laubscher, Ms
Denise Mackenzie, Ms Rowena Smith and Mr Simon Stokes.
9 Oral evidence was given on the basis of written Witness Statements, and the
evidence-in-chief was then subjected to cross-examination and questioning from
the panel.
10 Documentary evidence was also received in the form of an agreed Bundle of
documents, which was supplemented by additional documents produced by both
the Claimant and the Respondent during the course of the hearing.
11 At the outset of the hearing the Tribunal dealt with a matter concerning covert
recordings made by or on behalf of the Claimant which contained conversations
between members of the Respondent’s management team during the course of
(1) a “disciplinary hearing” held in relation to the Claimant on 22 August 2017 (Mr
Armstrong and Ms Thomas) [Bundle p.546A ff.], and (2) a “disciplinary appeal
hearing” held in relation to the Claimant on 9 October 2017 (Mr Stokes and Ms
Thomas).
12 At a hearing before Employment Judge Tayler on 21 May 2018 the
Respondent had made application for the covert recordings to be excluded from
the evidence in this case. That application was refused.
13 In consequence the Tribunal received both the recordings made and
transcripts prepared from those. It was common ground between the parties that
the transcripts produced to the Tribunal accurately reflected the content of the
original recordings.
THE LAW
(1) Unfair Dismissal
14 Section 94(1) of the Employment Rights Act 1996 states that, subject to
any other provision in Part X of the Act:
An employee has the right not to be unfairly dismissed by his employer.
15 Section 98 of the Employment Rights Act 1996 provides that:
(1) In determining for the purposes of this Part whether the dismissal of an
employee is fair or unfair, it is for the employer to show —
(a) the reason (or, if more than one, the principal reason) for the
dismissal, and
(b) that it is either a reason falling within subsection (2) or some other
substantial reason of a kind such as to justify the dismissal of an
employee holding the position which the employee held.
(2) A reason falls within this subsection if it —
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(a) relates to the capability or qualifications of the employee for
performing work of the kind which he was employed by the employer
to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which
he held without contravention (either on his part or on that of his
employer) of a duty or restriction imposed by or under an enactment.
…
(4) Where the employer has fulfilled the requirements of subsection (1), the
determination of the question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer) —
(a) depends on whether in the circumstances (including the size and
administrative resources of the employer’s undertaking) the
employer acted reasonably or unreasonably in treating it as a
sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial
merits of the case.
16 Section 207 of the Trade Union and Labour Relations Act 1992 provides
that:
(1) A failure on the part of any person to observe any provision of a Code of
Practice issued under this Chapter shall not of itself render him liable to
any proceedings.
(2) In any proceedings before an employment tribunal or the Central
Arbitration Committee any Code of Practice issued under this Chapter by
ACAS shall be admissible in evidence, and any provision of the Code which
appears to the tribunal or Committee to be relevant to any question arising
in the proceedings shall be taken into account in determining that question.
(3) In any proceedings before a court or employment tribunal or the Central
Arbitration Committee any Code of Practice issued under this Chapter by
the Secretary of State shall be admissible in evidence, and any provision of
the Code which appears to the court, tribunal or Committee to be relevant
to any question arising in the proceedings shall be taken into account in
determining that question.
17 In the context of that provision, the Tribunal has had regard to the ACAS
Code of Practice No.1 on Disciplinary and Grievance Procedures (latest
version 11 March 2015).
(2) Unfair Dismissal by Reason of Having Made a Protected Disclosure
18 Section 103A of the Employment Rights Act 1996 provides that:
An employee who is dismissed shall be regarded for the purposes of this Part as
unfairly dismissed if the reason (or, if more than one, the principal reason) for the
dismissal is that the employee made a protected disclosure.
19 Section 43A of the Employment Rights Act 1996 provides that:
In this Act a “protected disclosure” means a qualifying disclosure (as defined by
section 43B) which is made by a worker in accordance with any of sections 43C
to 43H.
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20 Section 43B of the Employment Rights Act 1996 provides that:
(1) In this Part a “ qualifying disclosure ” means any disclosure of information
which, in the reasonable belief of the worker making the disclosure, is made
in the public interest and tends to show one or more of the following —
(a) that a criminal offence has been committed, is being committed or is
likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any
legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to
occur,
(d) that the health or safety of any individual has been, is being or is likely
to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of
the preceding paragraphs has been, is being or is likely to be
deliberately concealed.
(2) For the purposes of subsection (1), it is immaterial whether the relevant
failure occurred, occurs or would occur in the United Kingdom or
elsewhere, and whether the law applying to it is that of the United Kingdom
or of any other country or territory.
(3) A disclosure of information is not a qualifying disclosure if the person
making the disclosure commits an offence by making it.
(4) A disclosure of information in respect of which a claim to legal professional
privilege (or, in Scotland, to confidentiality as between client and
professional legal adviser) could be maintained in legal proceedings is not
a qualifying disclosure if it is made by a person to whom the information
had been disclosed in the course of obtaining legal advice.
(5) In this Part “ the relevant failure ”, in relation to a qualifying disclosure,
means the matter falling within paragraphs (a) to (f) of subsection (1).
21 Section 43C of the Employment Rights Act 1996 provides that:
(1) A qualifying disclosure is made in accordance with this section if the
worker makes the disclosure —
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates
solely or mainly to —
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer
has legal responsibility,
to that other person.
(2) A worker who, in accordance with a procedure whose use by him is
authorised by his employer, makes a qualifying disclosure to a person
other than his employer, is to be treated for the purposes of this Part as
making the qualifying disclosure to his employer.
22 Section 43G of the Employment Rights Act 1996 provides that:
(1) A qualifying disclosure is made in accordance with this section if —
(a) …
(b) the worker reasonably believes that the information disclosed, and
any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
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(d) any of the conditions in subsection (2) is met, and
(e) in all the circumstances of the case, it is reasonable for him to make
the disclosure.
(2) The conditions referred to in subsection (1)(d) are —
(a) that, at the time he makes the disclosure, the worker reasonably
believes that he will be subjected to a detriment by his employer if he
makes a disclosure to his employer or in accordance with section
43F,
(b) that, in a case where no person is prescribed for the purposes of
section 43F in relation to the relevant failure, the worker reasonably
believes that it is likely that evidence relating to the relevant failure
will be concealed or destroyed if he makes a disclosure to his
employer, or
(c) that the worker has previously made a disclosure of substantially the
same information —
(i) to his employer, or
(ii) in accordance with section 43F.
(3) In determining for the purposes of subsection (1)(e) whether it is
reasonable for the worker to make the disclosure, regard shall be had, in
particular, to —
(a) the identity of the person to whom the disclosure is made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is likely to occur in the
future,
(d) whether the disclosure is made in breach of a duty of confidentiality
owed by the employer to any other person,
(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the
employer or the person to whom the previous disclosure in
accordance with section 43F was made has taken or might
reasonably be expected to have taken as a result of the previous
disclosure, and
(f) in a case falling within subsection (2)(c)(i), whether in making the
disclosure to the employer the worker complied with any procedure
whose use by him was authorised by the employer.
(4) For the purposes of this section a subsequent disclosure may be regarded
as a disclosure of substantially the same information as that disclosed by
a previous disclosure as mentioned in subsection (2)(c) even though the
subsequent disclosure extends to information about action taken or not
taken by any person as a result of the previous disclosure.
23 Section 43H of the Employment Rights Act 1996 provides that:
(1) A qualifying disclosure is made in accordance with this section if —
(a) …
(b) the worker reasonably believes that the information disclosed, and
any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) the relevant failure is of an exceptionally serious nature, and
(e) in all the circumstances of the case, it is reasonable for him to make
the disclosure.
(2) In determining for the purposes of subsection (1)(e) whether it is
reasonable for the worker to make the disclosure, regard shall be had, in
particular, to the identity of the person to whom the disclosure is made.
24 Section 43J of the Employment Rights Act 1996 provides that:
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(1) Any provision in an agreement to which this section applies is void in so
far as it purports to preclude the worker from making a protected
disclosure.
(2) This section applies to any agreement between a worker and his employer
(whether a worker’s contract or not), including an agreement to refrain from
instituting or continuing any proceedings under this Act or any
proceedings for breach of contract.
25 Section 43L of the Employment Rights Act 1996 provides that:
(1) In this Part —
- “qualifying disclosure” has the meaning given by section 43B;
- “the relevant failure”, in relation to a qualifying disclosure, has the
meaning given by section 43B(5).
(2) In determining for the purposes of this Part whether a person makes a
disclosure for purposes of personal gain, there shall be disregarded any
reward payable by or under any enactment.
(3) Any reference in this Part to the disclosure of information shall have effect,
in relation to any case where the person receiving the information is already
aware of it, as a reference to bringing the information to his attention.
26 Section 47B of the Employment Rights Act 1996 provides that:
(1) A worker has the right not to be subjected to any detriment by any act, or
any deliberate failure to act, by his employer done on the ground that the
worker has made a protected disclosure.
…
(2) This section does not apply where —
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning
of Part X).
…
(3) The Discrimination Claims (Age, Sex and Race)
27 The allegations made by the Claimant by reference to the Equality Act 2010
are agreed to be allegations of “direct” discrimination.
28 Section 4 of the Equality Act 2010 provides that:
The following characteristics are protected characteristics —
• age; …
• race; …
• sex; …
29 Section 13 of the same Act deals with “direct discrimination” and provides
that:
(1) A person (A) discriminates against another (B) if, because of a protected
characteristic, A treats B less favourably than A treats or would treat others.
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…
30 Section 23 provides that:
(1) On a comparison of cases for the purposes of section 13, 14, or 19 there
must be no material difference between the circumstances relating to each
case.
31 The relevant parts of Section 25 provide that:
(1) Age discrimination is —
(a) discrimination within section 13 because of age;
(b) discrimination within section 19 where the relevant protected
characteristic is age.
…
(6) Race discrimination is —
(a) discrimination within section 13 because of race;
(b) discrimination within section 19 where the relevant protected
characteristic is race.
…
(8) Sex discrimination is —
(a) discrimination within section 13 because of sex;
(b) discrimination within section 19 where the relevant protected
characteristic is sex.
…
32 Section 120 of the Equality Act 2010 provides that:
(1) An employment tribunal has, subject to section 121, jurisdiction to
determine a complaint relating to —
(a) a contravention of Part 5 (work);
(b) a contravention of section 108, 111 or 112 that relates to Part 5.
…
33 Section 136 of the same Act, which is concerned with the burden of proof,
provides that:
(1) This section applies to any proceedings relating to a contravention of this
Act.
(2) If there are facts from which the court could decide, in the absence of any
other explanation, that a person (A) contravened the provision concerned,
the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the
provision.
(4) The reference to a contravention of this Act includes a reference to a breach
of an equality clause or rule.
(5) …
(6) A reference to the court includes a reference to —
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(a) an employment tribunal;
(b) …
PRIMARY FINDINGS OF FACT
34 Having heard evidence from the witnesses as set out above, and on
consideration of documents contained in the Agreed Bundle, the Tribunal makes
the following findings of fact:
A. Background and events leading to the Claimant’s move to Mayfair
(1) The Claimant commenced employment with the Respondent – which
operates a number of fitness centres (“Clubs”) – on 8
May 2012 as an Assistant
General Manager at the Respondent’s Chelmsford Club. Subsequently, he
progressed to the position of General Manager and eventually also managed the
Respondent’s Harlow, Hemel Hempstead, and Repton Park Clubs.
(2) The Claimant’s evidence is not challenged that he had good relationships
with his work colleagues. In addition, there is evidence in the Bundle that he
received good feedback from Management about his performance. The evidence
also shows that he achieved various awards throughout his career – and he points
particularly to the Repton Park being nominated for Club of the Year under his
management.
(3) Having shown himself to be capable of high levels of performance in relation
to a broad range of management areas, the Claimant was gradually trusted with
additional responsibilities, including sensitive and confidential areas of the
Respondent’s operations. He was also called upon to support various Clubs in
relation to health and safety matters, as well as with ensuring Club standards.
Latterly, he was given tasks involving what he has described as “HR support” for
the London region of the Respondent’s activities, which included carrying out
investigations and conducting disciplinary hearings for Clubs within that region.
(4) In January 2017, the Claimant was approached by the Respondent’s
Regional Director (Mrs Renee Bowman) about a vacancy at the organisation’s
Mayfair Club. The Claimant told us that Mrs Bowman had described that Club as
“the biggest money-making club in London”. He was subsequently interviewed for
the Mayfair position, and, having performed successfully, was offered a “dual role”
as manager of the Mayfair Club while at the same time continuing to be responsible
for the management of the Repton Park Club. The Claimant accepted the offer and
was rewarded with a significant salary increase together with a work travel package
[B/55].
(5) At around the time of commencing his expanded duties in relation to the
Mayfair Club the Claimant became the subject of a formal grievance lodged by an
employee at the Repton Park Club. The person lodging the grievance was Mr
David Amroon (a Membership Consultant) against the Claimant, as his General
Manager [B/56 for revised grounds of grievance]. The employee lodging the
grievance had previously been subjected to a disciplinary procedure, resulting in
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warnings and a “final written warning” (issued on 14 June 2016 for “under-
performance”). Those disciplinary sanctions had been appealed by the employee,
and had been upheld by the Claimant.
(6) A grievance process was put in place by Ms Wynny Asiegbu of the
Respondent’s People Hub, in conjunction with Ms Jen Russell (Head of Safety).
An investigation meeting to deal with Mr Amroon’s grievance was set up for 22
March 2017. An outcome letter, which did not uphold the grievance, was sent to
Mr Amroon by Ms Russell on 6 April 2017 [B/73] [B/146-8].
(7) Following receipt of that outcome Mr Amroon indicated in an email dated 10
April 2017 that he intended to appeal against the result through his solicitor [B/74].
Eventually Mr Amroon lodged an appeal as intimated [B/203-4], at the same time
as initiating the early conciliation procedure through ACAS. An appeal took place
at a meeting on 15 May 2017. The outcome of that appeal hearing was
communicated to Mr Amroon by letter signed by Mr Andy Birch (Product & Fitness
Director) dated 15 June 2017 [B/245-5]. The result was that the appeal was not
upheld.
B. Line management by the Claimant after joining the Mayfair Club
(8) The Claimant told the Tribunal that, when he took over the management of
the Mayfair Club at the end of January 2017, he was alerted to what he described
as “serious concerns”, causing him immediately to request Health & Safety and
Financial Audit information. At about the same time (6 February 2017) important
changes were implemented in relation to the management line for the Mayfair Club,
including the removal of Mrs Bowman from the business with immediate effect.
Following that, Mr Glen Heidke replaced Mrs Bowman as Regional Director, and
thereby became the Claimant’s new Line Manager. The “dual role” continued until
the Claimant handed over the management of the Repton Park in June 2017, to
be replaced by another General Manager.
(9) The Claimant took on responsibility for the Mayfair Club with effect from 26
January 2017. He received what were described as “handover documents” from
Mr Daniel Dean (General Manager) in relation to the Mayfair Club on the evening
of 26 January 2017 [B/55 – B/55III]. Almost immediately after this, on 8 February
2017, the Claimant was informed by Mr Nav Dari (Audit Team Leader) that there
was to be a “club audit” on 8 February 2017 [B/55BBBB-CCCC].
(10) Following this audit, the metric reported in relation to the financial audit was
68%, set against a “pass rate” of 90%. The Claimant concluded that this indicated
what he described as “a huge risk” for him as the new General Manager. In
particular, he felt that it raised “concerns” about Ms Jannett George (the Member
Services Manager) whose role encompassed responsibility for passing the
financial audit.
(11) In the light of the audit result, the Claimant took both general action and
commenced specific action in relation to Ms George. His action in relation to Ms
George included the setting out of “expectations and actions” in order to resolve
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(1) various Health and Safety audit issues and (2) the financial audit situation. The
Claimant discussed and reviewed these with Ms George by way of “regular 1-1
meetings”.
(12) This action adopted by the Claimant was undertaken in consultation with his
line manager and under advice from the Respondent’s “People Hub”, which it is
agreed deals with HR issues and provides support and expert HR advice to
General Managers.
(13) Following advice from the People Hub, Ms George was suspended from work
pending investigation.
(14) On 8 March 2017, the Claimant sent the outcome of his Investigation
Meeting in relation to Ms George, with a recommendation to proceed to a
disciplinary hearing, to Ms Wynny Asiegbu (an Advisor in the People Hub).
Thereafter, the advice from the People Hub was to proceed to a disciplinary
procedure in relation to Ms George.
(15) Separately, on 27 March 2017 the Claimant had been asked by Mr Andre Orr
(Operations Manager Mayfair) to conduct a disciplinary meeting with Ms Roya
Arasp. The issues involved dated back to 2016, and concerned Ms Arasp’s non-
adherence to procedures concerning a so-called “change freeze”, and non-
compliance with procedures relating to the issuing of guest passes. Mr Orr had
conducted an investigation in that case under the oversight of the People Hub
team.
(16) Before that disciplinary meeting could take place, the Claimant was informed
by Mr Orr [B/144-5] by email dated 6 April 2017 that a recommendation had been
received from the People Hub team (Ms Wynny Asigegbu and her manager Ms
Emma Thomas) that no further action be taken in the case. Mr Orr thus advised
that there was no need for a disciplinary meeting. This outcome contrasted with
the view of the Claimant and Mr Orr that there should have been a progression to
a disciplinary process [B/143].
(17) In a communication to Ms Denise Mackenzie (Head of People Operations)
dated 10 April 2017 Ms Wynny Asiegbu set out what she described as “Craig
Hughes – HR update” [B/149-153], in which she outlined the situation as she
understood it in relation to Ms George, Ms Asarp and Mr Amroon, as well as an
additional employee, Mr Michael Akande, who had also been subject to an
investigation procedure conducted by the Claimant. That communication was not
copied to the Claimant.
(18) Shortly after this, on 20 April 2017 the Claimant had his first formal “one to
one” meeting with his immediate line manager, Mr Glen Heidke. During the course
of that meeting the case of Ms George was discussed, and it was agreed that there
should be a “weekly 1-1” on the basis of new documentation setting out
expectations, as well as a weekly review of a “PIP” (Personal Improvement Plan)
for Ms George. It was also agreed that the Claimant should send to Mr Heidke (1)
weekly HOD scorecard, and (2) copies of PIPs. The Claimant confirmed those
agreements in an email sent at the end of the afternoon of 20 April 2017 [B/172],
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including specific reference to the fact that the PIP for Ms George would be set in
train from the next Monday.
(19) By this stage, in addition to the PIP for Ms George [B/184-186] [B214-216],
there were PIPs in place for Mr Darrell Giovanni [B/181-183], Mr Kenny Solly
[B/197-189], and Ms Roya Arasp [B/190-192]. All of these latter three employees
were under the management of Ms Helen Ashdown.
(20) On 5 May 2017 the Claimant sent an email to Mr Heidke reporting various
matters which had been dealt with in the light of the agreements made at the 1-1
on 20 April 2017 [B/205].
(21) On 9 June 2017 the Claimant sent an email to Ms Wynny Asigegbu under the
heading “PIP Reviews and Advice Needed” [B/241-2]. That message included
attachments with three of the “live” PIPs, with a promise of completion of the fourth
(for Ms Roya Asarp, which had been delayed by her taking annual leave), along
with notes relating to the achievement of set objectives on the parts of the subjects
of the PIPs. A brief note acknowledging receipt and promising that “I’ll go through
your email and advise you accordingly” was sent on 12 June 2017 [B/252]. This
was followed by a communication from Mr Heidke to the Claimant on 13 June
2017, in which Mr Heidke indicated that he had met with Ms Asigegbu in relation
to the PIP reports, and went on to comment that: “I am happy with them, thorough
and well detailed” [B/241].
(22) Following a message from Mr Heidke to Ms Asigegbu on 14 June 2017,
“nudging” her to get back to the Claimant “so he can move forward” [B/243], and a
message on the same date from the Claimant making the same enquiry [B/251-2],
Ms Asigegbu sent an email on 15 June apologising for the delay in responding and
asking for copies of the “121 meeting forms” for the 3 employees in respect of
whom she had initially received PIP reports. The Claimant replied on the same
afternoon, attaching the information requested, along with the documentation in
relation to Ms Roya Asarp [B/248].
(23) Shortly thereafter, on the same afternoon, Mr Heidke emailed the Claimant
under the heading “Re: Roya Arasp PIP Review”, to ask if Ms Asigegbu had “come
back on the other PIP’s” [B/248], to which the Claimant responded an hour later
[B/247], in the following terms:
“Just spoken to her now, shes advised that i now hold a formal investigation
to go over the PIP’s again. Seems a bit long winded given the reviews have
already taken place with communications around reasons why standards not
met.”
(24) The Claimant undertook to issue invitations for investigation meetings on the
following Monday, with a view to holding these on the following day. An immediate
response was sent by Mr Heidke, in which he stated:
“I assume the formal investigation leads to a disciplinary outcome as the PIP’s
are signed and agreed by both parties – that is the normal process post PIP.”
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(25) It is common ground that the Claimant held an investigation meeting with Ms
George on 21 June 2017, and that he undertook a similar meeting with Mr Darrell
Giovanni on the same day. It is also agreed that an investigation meeting was held
with Ms Roya Arasp on the following day, 22 June 2017.
(26) On 26 June 2017 the Claimant wrote to Mr Richard Downs (Dual General
Manager) attaching notes of an investigatory meeting which he had held with Ms
George [B/261-263]. These related to a disciplinary meeting to be conducted by
Mr Downs on 3 July 2017. At almost exactly the same time, the Claimant emailed
Mr Barry Gillard (Regional Sales Manager) attaching copies of “Investigation Notes
Key Points” in relation to Mr Darrell Giovanni, Mr Kenny Solly, and Ms Roya Arasp
[B/264-268].
(27) In the event, Mr Downs was unable to undertake conduct of the disciplinary
meeting on 3 July 2017, so the Claimant sought the assistance of Mr Tristan
Laubscher (General Manager, Swiss Cottage & Cricklewood) to stand in for Mr
Downs [B/282]. Mr Laubscher undertook to perform the task, and the Claimant
then emailed him a copy of his Investigation Notes for Ms George [B/278-9],
together with a “follow on” email setting out further details [B/280].
(28) Mr Laubscher held the meeting with Ms George on 3 July 2017, following
which he sent an email to the Claimant on 4 July 2017 seeking a number of
“clarifications” [B/290-1]. The Claimant responded on the same day setting out
responses to the questions raised by Mr Laubscher [B/288-290], including copies
of Ms George’s PIPs since 24 April 2017. Mr Laubscher also wrote to Ms Emma
Thomas in the People Hub, enquiring whether additional documentation might be
available, to which the response was that there was nothing beyond outcome
letters relating to 2016 [B/292].
(29) An enquiry from the Claimant to Mr David Long (Senior General Manager) by
email dated 4 July 2017 [B/294] sought confirmation of what had been the outcome
in respect of an earlier disciplinary hearing for Ms George. Mr Long’s response
stated that, to his memory, the outcome had been a final written warning [B/293].
C. Grievances raised against the Claimant
(a) Mr Darrell Giovanni
(30) On 26 June 2017 Mr Giovanni raised a grievance against the Claimant. This
was set out in a document addressed to the People Hub under the title “Grievance
against General Manager Craig Hughes” [B/915-916A].
(31) The matters set out in Mr Giovanni’s grievance communication reflected a
generalised complaint about the Claimant’s management style and approach (his
“attitude”), which were summed up towards the end as leaving the complainant
(and, it was alleged, other managed staff) “unsupported, picked on and
mistreated”.
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(32) Those matters were linked to an “investigation meeting” relating to Mr
Giovanni which took place on 21 June 2017.
(33) Mr Giovanni further set out the names of Ms Roya Arasp (Sales Consultant),
Mr Kenny Solly (Sales Consultant), Ms Jannette George (Membership Service
Manager) and Mr Leon Carr (Front of House) as members of staff who it was said
could “inform you of their experience with Craig Hughes and support my claims”.
(b) Ms Roya Arasp
(34) On 2 July 2017 Ms Roya Arasp sent an email to Ms Wynny Asigegbu
[B/295] which contained a “formal grievance” against the Claimant. The complaints
were set out as being that the Claimant:
“… has harassed me based on my sexual orientation and race/nationality, and
further that he has engaged in bullying practices against me since arriving as
General Manager at the club.”
No further detail was included, other than for Ms Arasp to assert that:
“… I feel unsafe in the club with Mr Hughes as General Manager and request that
immediate action is taken.”
Ms Arasp expressly requested that her grievance be:
“… kept in the utmost confidence to the maximum possible extent given the
sensitive nature of the complaint and the effect his behaviour has had on me.”
(c) Ms Jannett George
(35) By communication dated 3 July 2017 – the day scheduled for her to attend
an “investigation meeting” which was to be conducted by Mr Laubscher – Ms
George wrote to the Respondent’s HR People Hub, setting out a formal grievance
directed against the Claimant [B/285-7] [B/299].
(36) This communication was also set out in broad terms, alleging “being treated
as an outcast in my place of work”; being “unfairly targeted”; and “setting almost
impossible expectations as if he’s deliberately setting me up to fail instead of
managing me to do well”. The statement culminated in the proposition that:
“I strongly believe that Mr Hughes is only concerned about how he could get me
out of my job.”
(37) Specific reference was also made to the handling of a request for the taking
of annual leave to visit Jamaica along with an issue over certification of First Aid
training.
D. Treatment of the grievances against the Claimant
(38) All of the three grievances were dealt with together by Ms Denise Mackenzie.
(39) On 20 July 2017 the Claimant attended a meeting with Ms Mackenzie at Head
Office. A note-taker (Ms Smith) was also brought in for that meeting. The Claimant
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was informed that this was to question him “regarding the three grievances raised
against me”. The Claimant told the Tribunal [W/S para.54] that he was not aware
of the contents of these grievances or the allegations made towards him.
(40) A substantial document [B/336-361] is set out in the Bundle as containing
notes made of an investigation meeting held on 20 July 2017. The timings indicate
that the meeting commenced at 10:30 and ended at 13:50.
(41) An account of Ms Mackenzie’s investigation and her conclusions in the light
of that investigation was set out in a document entitled “Investigation Outcome”
[B/885-898]. A second copy of that document was also included in the Bundle
[B/899-912], which included a further two pages [B/913-914] containing an Annex
setting out a “List of Documents” which Ms Mackenzie indicated were “all of the
investigation documents relevant to the case”.
(42) Ms Mackenzie’s conclusions were that:
“Following my investigation I have a reasonable belief based on the evidence
gathered that Craig Hughes should face a disciplinary hearing for the following
reasons:
• That, following the issuing of the PIP's to Darrell Giovanni and Roya Arasp he
failed to adequately support the team to success due to insufficient follow up
and assessment of progress; that he didn't adequately support the team ln the
absence of a SM. Even though the majority of MC's in VA are not achieving
these are the only 2 MC's on a PIP. This would support the assertion by Darrell
Giovanni that he is setting them up to fail.
• That he made a comment of a racist nature on 3rd
June; "We had better watch
out in the office, you're lranian aren't you?"
• That he has a tendency towards disciplinary investigation/action rather than
having a conversation and supporting as demonstrated by the fact that both
Darrell Giovanni and Roya Arasp were given an outcome of no further action
for the PIP disciplinary cases and in Darrell's case the use of another members
bank details: the fact that the outcome of Jannett George disciplinary case
relating to the freeze resulted in no further action and him asking whether he
should carry out an investigation due to her failing to attend competency
training even though she was suspended at the time, which gives me a
reasonable belief that Craig Hughes had an ulterior motive.
• That he treats Jannett George unfairly as demonstrated by his requirement of
her to email following her club walk arounds; that he insisted, unreasonably
that she get a certificate which wouldn't be issued; he excludes her from
conversations or doesn't speak to her.
• That he tried to influence the outcome of the latest disciplinary case against
Jannett George to dismissal as through the text discussion with Tristan
Laubscher, This would support Jannett George's assertion that "I strongly
believe that Mr Hughes is only concerned about how he could get me out of
my job.”
E. Disciplinary measures in relation to the Claimant
(43) In the wake of the “Investigation Outcome” prepared by Ms Mackenzie, and
at the instigation of Ms Rowena Smith (People Advisor) [B/316] a letter suspending
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the Claimant from work for investigation to take place [B/330-1] was drawn up.
That letter, which carried the date of 17 July 2021, stated:
“I write in relation to the following allegation discussed your alleged breach of
the Company’s rules and policies, in particular that it is alleged:
• That you have made an inappropriate comment of a racist nature to Roya
Arasp.
• That you have made an inappropriate comment about an employees (Roya
Arasp) sexual orientation.
• That you have treated unfairly and allegedly harassed and bullied Jannette
George, Roya Arasp and Darrell Giovanni.”
The letter went on to state that:
“… as the allegations appear to involve a serious matter of potential gross
misconduct, they need to be investigated further, and you will be suspended from
work during the investigation or for as long as is appropriate. The allegations may
require us to hold a formal disciplinary meeting with you once the investigation
is complete.”
(44) There had been some difficulty in getting a finalised version of the “pending
investigation letter” in the Respondent’s HR People Hub. On 17 July 2017 Ms
Smith wrote to Mr Heidke [B/332-3] to say:
“Attached is the suspension letter to issue Craig following the meeting today.
I am unsure of the allegation that was stated at this meeting, please can you
assist with this?
Denise – I have cc’d you for support on the allegation if needed”
(45) On 19 July 2017 Mr Heidke responded to Ms Smith and Ms Mackenzie
[B/332], to say:
“… any chance I could pls have some support on getting this put together and
out?
Denise can you pls confirm the exact allegation(s).”
(46) A copy of the initial “template” letter drawn up for the Claimant was included
in the Bundle at pages B/334-5, in which the operative paragraph read:
“I write in relation to the following allegation discussed your alleged breach of
the Company’s rules and policies, in particular that it is alleged:
• That you were seen taking a <insert item> without paying. You were
seen on CCTV to of taken the item(s) from the fridge in the club lounge
area and leaving without making payment. From the evidence available
it is apparent that no payment was processed for the item(s), meaning
you are in breach of the Company Disciplinary Policy.”
(47) The Claimant told the Tribunal that he received the “suspension pending
investigation” letter by email on 24 July 2017 and that it had been backdated to 17
July 2017. Given the circumstances revealed by the available evidence the
Tribunal accepts the Claimant’s evidence in that regard.
(48) Thereafter, under the guidance of Ms Mackenzie [B/318], on 3 August 2017
Ms Smith issued the Claimant with an “Invite to Disciplinary Meeting” over the
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signature of Ms Mackenzie to what was described as an “investigation hearing”
which was to be held on 7 August 2017 [B/363-4].
(49) On 3 August 2017 Ms Smith emailed the Claimant at 18:00 [B/320-1], to
inform him that:
“Denise has now completed her investigation and she has progressed the matter
to disciplinary stage; therefore, you have been invited to attend a disciplinary
meeting, details of which are included in the attached invite to disciplinary letter.”
(50) In that email Ms Smith indicated that she had also sent a signed copy of the
letter by post, along with “the investigation report and all the supporting evidence.
The signed “Invite to Disciplinary Meeting” letter [B/363-4] included the following:
“I write following the meeting held on 20th
July at BSO with myself Denise
Mackenzie at which we discussed the three grievances that had been raised by
Darrell Giovanni, Roya Arasp and Jannett George.
The investigation is now completed and having now considered this matter I
believe that it should be dealt with formally as a disciplinary matter.
Therefore, I am writing to you to ask you to attend a meeting on Monday 7th
August at 12.00pm at BSO, Training Room 3 with Malcolm Armstrong, Regional
Director & Emma Thomas, Head of People Services who will attend as my witness
and note-taker.
The purpose of the meeting will be to discuss the following matters:
The details of the allegation are detailed below:
• That, following the issuing of the PlP's to Darrell Giovanni and Roya Arasp you
failed to adequately support the team to success due to insufficient follow up
and assessment of progress; that you didn't adequately support the team in
the absence of a SM. Even though the majority of MC's in VA are not achieving
these are the only 2 MC's on a PIP. This would support the assertion by Darrell
Giovanni that you are setting them up to fail.
• That you made a comment of a racist nature on 3rd
June; "We had better watch
out in the office, you're Iranian aren't you?"
• That you have a tendency towards disciplinary investigation/action rather than
having a conversation and supporting as demonstrated by the fact that both
Darrell Giovanni and Roya Arasp were given an outcome of no further action
for the PIP disciplinary cases and in Darrell's case the use of another members
bank details; the fact that the outcome of Jannett George's disciplinary case
relating to the freeze resulted in no further action and you asking whether you
should carry out an investigation due to her failing to attend competency
training even though she was suspended at the time, which gives me a
reasonable belief that you had an ulterior motive.
• That you treat Jannett George unfairly as demonstrated by your requirement
of her to email following her club walk arounds; that you insisted,
unreasonably that she get a certificate which wouldn't be issued; that you
exclude her from conversations or don't speak to her.
• That you tried to influence the outcome of the latest disciplinary case against
Jannett George to dismissal as demonstrated through the text discussion with
Tristan Laubscher. This would support Jannett George's assertion that ‘I
strongly believe that Mr Hughes is only concerned about how he could get me
out of my job.’”
(51) The letter concluded by stating that:
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“Malcolm Armstrong will reach a decision about the most appropriate action to
take once he is satisfied that the allegations have been investigated fully and that
he has had an opportunity to discuss the evidence with you and listened to your
comments. You will of course be given every opportunity to give your views and
comments at the meeting.
Due to the nature of the allegations against you, you should be aware that this
could lead to a dismissal without notice (gross misconduct).”
(52) On 11 August 2017, Ms Thomas wrote to the Claimant rescheduling the
“Disciplinary Hearing” to 14 August 2017 [B418-9]. A further communication dated
14 August 2017 was sent by Ms Thomas rescheduling the “Disciplinary Hearing”
to 22 August 2017 [B/422].
(53) The meeting duly went ahead on 22 August 2017, conducted by Mr Malcolm
Armstrong and Ms Emma Thomas. The Claimant was accompanied by his
representative Mr Paul Forsey. A “briefing note” prepared for use by Mr Armstrong
was produced [B/473-5]. Handwritten notes were made during the meeting by Ms
Thomas [B/476-507] and a typed-up copy of those notes was subsequently
produced [B/508-535].
(54) In addition, it emerged later that, unbeknown to either Mr Armstrong or Ms
Thomas, a covert recording of the meeting on 22 August 2017 had been made and
has since been transcribed [B/546A-F]. The admissibility of the content of that
covert recording has been the subject of preliminary proceedings in this case
before Employment Judge Taylor.
(55) Subsequent to the meeting on 22 August 2017 a further meeting was held
between Mr Armstrong, Ms Thomas, the Claimant and Mr Forsey on 19 September
2017. Handwritten notes were made by Ms Thomas [B/635-643] and a typed copy
of those notes was then produced [B/644-648].
(56) The eventual outcome of the disciplinary meetings was communicated to
the Claimant by letter, over the signature of Mr Armstrong, dated 21 September
2017 [B/653A-656]. That stated that:
“… this letter is to confirm the outcome of the disciplinary proceedings is that
you have been summarily dismissed, meaning your contract of employment has
immediately ended without notice and without pay in lieu of notice, in line with
the disciplinary procedure.”
There then followed a recital of the allegations which were said to have been
addressed by Mr Armstrong and an account of what he put forward as constituting
his reasoning behind the decision to dismiss.
(57) The letter of 21 September 2017 reminded the Claimant that he had a right
of appeal against Mr Armstrong’s decision. In reliance upon that right of appeal,
on 27 September 2017 the Claimant duly lodged an appeal against his dismissal
[B/667-670]. This set out “grounds for appeal” under headings of:
(1) The investigation carried out was not reasonable and Virgin Active has
failed to carry out as much investigation as was reasonable, and necessary
in the circumstances.
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(2) Virgin Active has failed to follow their own policies and there are no
reasonable grounds for Virgin Active to believe I am guilty of the alleged
gross misconduct.
(3) Virgin Active has breached their own grievance policies and discriminated
against me by failing to address my grievances raised on 27th
July, 4th
August, 7th
August and 9th
August Virgin Active has failed to carry out a
reasonable investigation in respect of my grievances.
(4) Virgin Active is inconsistent with their disciplinary sanctions and process.
(58) In summary, the Claimant set out his appeal grounds in terms of:
• Investigative failures;
• the sanction imposed was too severe or disproportionate to the alleged
misconduct;
• the sanction was inconsistent with one imposed for similar misconduct
committed by another employee;
• there was unfairness or bias among the original decision-makers;
• VA has not taken into account a previously exemplary disciplinary record; and
• Procedural failings in relation to failure to follow its own policies and
procedures and ACAS Code.
(59) Upon receipt of the appeal, Ms Hilary Tysoe arranged for Mr Simon Stokes
(UK Operations Director) to conduct the appeal hearing, accompanied by Ms
Emma Thomas [B/676]. A letter of invitation was sent by Ms Smith by email, with
a date for the hearing on 6 October 2017.
(60) Subsequently, Ms Smith wrote to the Claimant to say that Mr Stokes would,
after all, be out of the country on 6 October, and that the meeting would have to
be rearranged. After some considerable “chopping and changing” over the date
the hearing was eventually re-scheduled for 9 October 2017 [B/700].
(61) On 9 October 2017, the Disciplinary Appeal Meeting took place. Mr Stokes
was accompanied by Ms Thomas, and the Claimant was accompanied by Mr
Forsey. Handwritten notes were made during the course of the meeting by Ms
Thomas [B/713-736] and a typed-up version was subsequently made available
[B/737-753]. Once again, and unknown to either Mr Stokes or Ms Thomas, a covert
recording had also been made and a transcript produced [B/546F-K].
(62) The outcome of the appeal hearing was communicated to the Claimant by Mr
Stokes in a letter dated 24 October 2017 [B/820-826] in terms that:
“At the appeal meeting on 9 October 2017, your appeal against your summary
dismissal for making a racist comment towards Roya Arasp and bullying Jannett
George was considered. I am writing to confirm the decision made at the appeal
hearing.
Your appeal was unsuccessful and the decision that was confirmed to you in
writing on 21 September 2017 to summarily dismiss you stands.”
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(63) Mr Stokes then listed each of the grounds of appeal and set out what he said
was an explanation of his findings. He ended by confirming in unequivocal terms
that:
“This decision is final.”
(64) The Claimant’s last day of employment was confirmed as 21 September 2017
[B/656]. Subsequently, having entered into early conciliation through ACAS, the
Claimant served a Claim Form ET1 on 22 November 2017.
F. Grievances raised by the Claimant
(65) The Claimant’s response to the events unfolding in July 2017 was to lodge a
number of “serious concerns” which have been treated by the Respondent during
this hearing as “grievances”.
(66) The first instance of this was on 27 July 2017 (further to receipt of the
suspension letter on 24 July 2017) [B/362AA-FF, repeated at B/1231-1236]. This
communication, addressed to Ms Smith, set out a lengthy list of concerns touching
both substantive matters and procedural issues. The Claimant told the Tribunal
[WS para.58] that he received no response or acknowledgement from Ms Smith to
his communication.
(67) The second occasion was in an email to Ms Smith dated 4 August 2017
[B/366-368, repeated at B/370-371], which also complained about the lack of
response to the Claimant’s communication of 27 July 2017 and sought to “escalate
this original grievance to senior management”.
(68) The third occasion was in an email dated 7 August 2017 [B/372], which set
out a very much more detailed set of concerns in an appended letter [B/373-387].
(69) The Claimant then sent a letter to Ms Tysoe dated 9 August 2017, setting out
a further list of concerns by way of grievance [B/390-406], constituting a fourth
phase (what he described as “my fourth formal written grievance letter”) in relation
to grievances being raised by the Claimant (described in WS para.69 as
constituting his “final” grievance).
(70) In addition to the narrative setting out his immediate grievances, the Claimant
indicated in his letter of 9 August 2017 that he had reported certain matters (what
were described as “serious threats” and an incident in which his locked personal
drawers in the office had been “smashed open and broken in to”) to the
Metropolitan Police and Essex Police [B/397].
(71) It is also clear that, almost from the outset, the Claimant was on record as
challenging the process adopted in relation to him, and in setting out his case that
the process had been stacked against him and the individuals involved were not
acting independently in accordance with the formal procedures of the Respondent.
(72) The Tribunal has been provided with copies of the following procedures: (1)
a Disciplinary Policy [B/1324-1329]; (2) a Grievance Policy [B/1330-1332]; (3) an
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Anti-Harassment and Bullying Policy [B/1333-1338]; (4) a Whistleblowing Policy
[B/1339-1341]; (5) an Equal Opportunities policy [B/1342-13443]; and (6) the
Respondent’s “People Handbook” [B/1344-1400]. It is common ground that these
documents reflect the relevant policies in place at the time of the events under
consideration. On 18 August 2017 the requested policies were sent to the Claimant
by Ms Smith.
(73) On 27 July 2017, in his “first grievance” [B/362AA-362FF], he complained
about:
“… concerns I have regarding the process and conduct relating to the
investigation so far.”
In particular, there was a complaint about:
“… the conduct of The People Hub/Denise during the investigation to date”
[B/362EE]
focusing upon the actions of Ms Mackenzie.
(74) Thereafter, in his “second grievance” of 4 August 2017 [B/365-8], following
receipt of the “Invite to Disciplinary Meeting” dated 3 August 2017, the Claimant
again expressed his “concerns”. In particular, he stated that:
“I do not wish Denise Mackenzie to be involved with the meeting to discuss these
concerns, as her personal involvement and conduct has already been highlighted
in the attached document.
One of the serious concerns highlighted in the original grievance email dated
Thursday 27th July was towards the conduct of Denise Mackenzie and my opinion
that she is unable to remain impartial, in addition to her prior involvement in cases
that includes Roya Arasp, Darrell Giovanni, Jannett George and I.
I have raised concerns formally in a grievance letter about Denise Mackenzie.
These concerns have been ignored and in my opinion, she should not have been
allowed to continue with the investigating until my concerns have been at the
minimum been acknowledged or discussed formally in a meeting.”
(75) On 7 August 2017 the Claimant wrote to Ms Tysoe [B/373-378] with another
“written formal grievance”, in the course of which he stated that:
“8. I believe this investigation and disciplinary process has been unreasonable
and not followed the company grievance policy process (identified on previous
concern email dated Thursday 27th July 2017).” [B/374]
(76) He then proceeded to express much broader concerns that just those made
in relation to Ms Mackenzie:
“Further to my initial concern emailed on Thursday 28th
July 2017, it is my
opinion that Denise Mackenzie is unable to remain impartial on this investigation
as several times she included her own opinion on the case. Denise included a
private conversation between her and me from 16th
March 2017 into questioning,
which is not relevant to this investigation. … It is my opinion that this
investigation is no longer impartial or being conducted thoroughly - as such I
would like Denise Mackenzie, Rowena Smith, Emma Thomas and Wynny Asiegbu
removed from this process going forward.
It is my belief that this investigation should be reopened and reinvestigated - with
an impartial member of staff, who has had no involvement with prior
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investigations or disciplinaries regarding Jannett George, Roya Arsap, Darrell
Giovanni.
Denise Mackenzie, Emma Thomas, Rowena Smith and Wynny Asiegbu were all
involved in influencing or taking notes in the outcomes at each of the above
disciplinaries.” [B/375]
(77) Two days later, on 9 August 2017, the Claimant wrote further to Ms Tysoe
[B/390-406]. After rehearsing various issues raised in his previous
correspondence, his complaints culminated in the allegations that:
“I have been unlawfully harassed by Denise Mackenzie, Jannett George and Roya
Arasp pursuant to s.26(1)(a)(b)(i)(ii)(4)(5) of the Equality Act 2010.”
and:
“I have been subjected to a systematic campaign of bullying by Denise
Mackenzie, Wynny Asiegbu, Jannett George, Roya Arasp and Darrell Giovanni.
The bullying by the above individuals is unwanted, uninvited and unwelcome. It
is making me feel ill.”
(78) These “formal” grievances followed a number of concerns which had already
been raised by the Claimant. Thus, late in the afternoon of 13 July 2017 the
Claimant had written to Ms Wynny Asiegbu in the following terms under the
heading “Concern/Update” [B/312]:
“Spoke to Glen via email earlier who advised to send the below over to you…
Just wanted to update you around Jannett George MSM.
I was informed by my Head Coach, George Hopkins today that Jannett has
been approaching staff in the office asking them to sign a statement to say I
am bullying her.
George told me that she refused to sign as she did not believe this to be true
but wanted to make me aware this type of behaviour had been happening and
instigated by Jannett.”
(79) This followed an earlier message sent to Mr Heidke on the same afternoon
[B/314], in which the Claimant had stated that:
“Just wanted to give a heads up/update I have been informed on today.
George HC was approached by Jannett asking her to sign a statement stating
I had been bullying her in the office.
George said she refused as this was not the case, I wanted to make you aware
of Jannett’s actions.
(80) On 14 July 2017 the Claimant wrote again to Mr Heidke [B/315], following a
call between the two:
“Just caught up with Cleopatra after her training session at BSO this morning.
She informed me that Roya was in BSO for her meeting with Barry earlier and
was informing people in BSO that I was kicking and banging doors in the club
this morning.
As discussed this morning this is fabricated and untrue and now being
communicated to new management in the club through Roya who was not in
the club with only one member of the staff in the office at the time I picked up
my diary and popped out.
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Further addition to that; Roya informed Cleopatra that the reason I was moved
to Mayfair and not promoted was because I had got the SM at Repton Park
pregnant and had multiple disciplinary’s against me.
I will make Denise aware of this on Monday when she visits the club, just
wanted to make you aware.”
(81) The Claimant’s raising of these concerns has also to be seen alongside a
recognition that other issues relating to the Claimant had given rise to expressions
of concern on the part of Mr Michael Cawthorn (Service Manager, Mayfair) who
then had an extensive exchange of messages with Ms Mackenzie. Those
messages were in relation to matters that had come to Mr Cawthorn’s attention
and his personal fears for his safety in the light of those. There was no suggestion
that Mr Cawthorn’s actions were co-ordinated with, or even known to, the Claimant.
(82) This exchange of messages followed a telephone conversation in which Mr
Cawthorn had participated, conducted by Ms Mackenzie on 25 July 2017. Notes
of that conversation were set out in a document headed “Investigation Meeting”
[B/362]. Following the conclusion of that conversation Mr Cawthorn wrote to Ms
Mackenzie at 16:53 setting out “the notes you have requested”:
“Further to our phone call today please find the notes you have requested.
- Sayed (PT) told me that Fabian and Cleopatra slept together when they went for
drinks one night after work. When I asked how he knew, he told me that Roya told
him and to not say anything as Roya would never tell him anything again. Now I
am hearing that Sayed has told Fabian that I had started the rumour by telling him
which is not true. The next day I told Craig as I felt whether this was true or not,
it is not the right thing to have spreading around the club.
- Roya said in the office that she had got Kas (BST) to write a grievance against
Craig because Craig didn't listen to him with a problem he had and that she would
process the Grievance.
- In the office I have multiple threats against Craig. One of which is when Janett
come back from a disciplinary and started crying in the office saying that all of
this is unfair and that she hadn't done nothing wrong. Roya then responded with
"don't worry Craig will get what’s coming to him".
- She also said to me on a separate occasion that "If Virgin don't sort this out then
Darrell will sort him out". To that I responded "I don't like violence and I don't
think that violence is the right way to solve something whether someone is on the
wrong or not. She replied with "Everyone has different ways of dealing this
things".
- Just before i went on annual leave Roya was laughing and when I asked she
responded with "Craig is Fucked because 4 people are putting grievances against
him for racism and bullying". I walked away from that.
- I have also heard from a member of the Mayfair HOD team that when she was in
BSO a lady named Whynny come and spoke to her about Mayfair and said "Do
you want to write a statement about Craig pressuring two sales people to leave",
to which the Mayfair employee responded "No I'm not writing anything, I don't
want to get involved".
Like I previously said, I perceived that as threatening and intimidating behaviour
and I never wanted to get involved in the first place as I don't want to feel
threatened in my place of work. I understand how easy it is for someone to get
my details off exerp and I didn't want to get involved as I can't have something
coming to my doorstep when most of the time is my mum at home on her own.
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I already feel threatened as they will know I've said this now when it comes up. I
don't want to be fearing for my own safety when going to and from work. I feel
that all the threats that have been said had a lot of truth and intention behind
them.”
(83) Ms Mackenzie responded on 28 July 2017 [B/362DDD] with a revised version
of Mr Cawthorn’s notes, excluding reference to Ms Whynny Asiegbu:
“The notes do not include what you told me about Wynny as you didn't want to
disclose the HOD and I am therefore unable to investigate further.
Can you please confirm which of the statements below you would like me to
include?
Can you also let me know whether there were any witnesses to the threats made
by Roya?”
(84) This elicited a prompt response from Mr Cawthorn [B/362CCC-DDD] stating
that:
“… I am happy for the issue is Wynny to be followed up with Cleopatra as I
feel that if it is true then it is important for the issue to follow the correct
procedure.”
(85) Later that same afternoon Mr Cawthorn wrote in response to a further request
for “details of any witnesses to the threats made by Roya” [B/362BBB-CCC]:
“The threat about Craig getting what comes to him, Jannett was there as Roya
said it to Jannett. The other times she has said it only to me. this is why I'm
worried to go back to work as Roya will know that is me that said it.”
(86) Ms Mackenzie’s immediate response [B/362BBB] was:
“She doesn't know anything at the moment so there is nothing to worry about.
In order to investigate further I would have to meet with Roya and discuss the
threats with her so you will have to decide whether this is what you want me to
do.
Regarding Wynny, I have spoken to her line manager who tells a completely
different storey to Cleopatra. She is aware that Wynny spoke to Cleopatra but it
is not in the way that you describe or using the words that she told you. Please
confirm whether you want me to pursue this further with Cleopatra?”
(87) Mr Cawthorn then responded [B/362AAA-BBB]:
“That’s fine to pursue with Cleopatra. Regarding the Roya situation I feel it needs
to be investigated. But I also know that if anything does come back to me from
her and I don't feel safe then I would no longer be able to work in that club, as I
don't want anything happening to me.”
(88) Finally, it should be noted that the Claimant repeatedly expressed
dissatisfaction in relation to provision of what he considered necessary
documentation from the Respondent. In consequence of that dissatisfaction, the
Claimant made a Subject Access Request (SAR) on 20 August 2017 [B/551]. The
Respondent acknowledged receipt of that SAR in a communication from Ms Smith
on 5 September 2017 [B/553]. The Claimant followed this up by email on 7
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September 2017 to Ms Tysoe [B/601], to which a response was made on the
following day [B/600]. Thereafter, Ms Smith sent an email to the Claimant on 2
October 2017 in relation to a memory stick said to have been provided as part of
the SAR response [B/758-9], acknowledging that:
“The data that we have sent is not the full access request. This is due to the
size of the data that was pulled from the system.”
There was then a letter from Ms Asiegu on 13 October 2017 requesting courier
service to deliver material to the Claimant [B/761], which followed a communication
from the Claimant on 10 October 2017 complaining about the Respondent’s failure
to comply with the SAR [B/763-4]. On 17 October 2017 Ms Tysoe then wrote to
the Claimant acknowledging the failure of the Respondent to comply with the
deadline for disclosure in relation to his SAR [B/785A-B].
(89) Having received what he described as “5 boxes of information in the post,
which pertained to my five year career at Virgin Active Limited”, the Claimant then
sent an email to Ms Tysoe on 26 October 2017 confirming that he had “escalated
a formal complaint with the Information Commissioner’s Office (ICO) as the
Respondent was not complying with the SAR Request or Deadlines”.
(90) On 1 November 2017 the Claimant issued a second SAR to Ms Tysoe
[B/847]. He explained the reason for this second request as:
“… due to the problems with the Respondent sending the original date within
the deadlines, plus I felt that specific information was being withheld …”
An exchange of correspondence then took place between the Claimant and Ms
Tysoe, in the course of which the Claimant expressed his dissatisfaction with the
treatment of his SAR [B/880A-C]. Having not received what he considered to be
an adequate response to this, the Claimant indicated that he had again
approached the ICO, and had been advised to send a “final written request” for
missing information. This he did on 13 December 2017 [B/880BBB]. Eventually,
the Claimant’s email of that date was responded to by Ms Tysoe in a
communication dated 15 December 2017 [B/880AAA-880DDD].
G. Treatment of the grievances raised by the Claimant
(91) On 10 August 2017, under the heading “Response to Grievance”, Ms Tysoe
wrote to the Claimant [B/407-8] in the following terms:
“I can confirm that I have received both your letters, dated Monday 7th August
2017 and Wednesday 9th August 2017, raising a formal grievance.
The issue raised by you in the letters are as follows:
1. That you are suffering from work related stress and that Virgin Active have
not taken steps to prevent this and have not taken your concerns seriously;
2. That you do not feel your recent suspension and the investigation into the
allegations which resulted in this suspension have been handled
appropriately;
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3. That you have been bullied, harassed and discriminated against by named
members of the People Team and named members of your team at the
Mayfair Club;
4. You dispute some of the information contained in some of the documents
resulting from the investigation and provided to you in preparation for the
disciplinary hearing.
I understand you are aware that you will be invited to a disciplinary hearing, in
line with the company's Disciplinary Policy, in due course. The purpose of the
Disciplinary Hearing is for you to respond to the allegations and explain your
case. The meeting can be adjourned and re-convened to allow any necessary
further investigations to take place. Malcolm Armstrong, Regional Director -
Provincial, will Chair the Disciplinary Hearing, accompanied by Emma Thomas,
Head of People Services. You will be invited to this meeting under separate cover.
Having reviewed your case it is clear that the majority of the Grievance you have
presented to me (points 2, 3 and 4) is related to the matters that will be discussed
in this Disciplinary Hearing and is, in fact, your defence against the allegations
being made. As such, you should present this information at your forthcoming
disciplinary hearing to ensure a fair and meaningful consideration of your case,
rather than a separate grievance hearing being convened.
In the relation to the matter of your alleged work related stress I am satisfied that
this is a separate matter and not related to the content of the Disciplinary Process.
As such I have asked for a Grievance Hearing to be arranged. Morag Alabaster,
Sales Director, will hear your Grievance accompanied by Emma Thomas, Head of
People Services. You will be invited to this meeting under separate cover.
In order to assist with the preparation for this meeting please forward any medical
documentation to Emma Thomas (emma.thomas@virginactive.co.uk) prior to the
meeting.
I have noted that you have named Emma Thomas in your Grievance letters
relating to the handling of your case so far. However, having reviewed the case I
can find no evidence to support your claims that Emma has been involved in the
case other than as the line manager of members of the People Team you have
named in your Grievance. Emma will act as note taker in both hearings and will
provide advice on process and employment legislation rather than to influence
the outcome in any way.
As these two issues are separate, I believe that the two processes can run
concurrently so every effort will be made to ensure that they are scheduled within
a reasonable timescale.”
(92) In consequence of this decision by Ms Tysoe, no separate “grievance
process” was instigated in relation to the Claimant’s grievances other than that
concerning work-related stress.
(93) In relation to that single matter of grievance, a letter of invitation was issued
by Ms Emma Thomas on 11 August 2017 for a grievance hearing meeting to be
held on 16 August 2017.
(94) That hearing duly took place on 16 August 2017, with the Claimant being
accompanied by Mr Forsey and Ms Alabaster, the hearing officer, being
accompanied by Ms Thomas. Handwritten notes were made by Ms Thomas during
the course of the meeting [B/441-450] and a typed-up version was then produced
[B/451-459].
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(95) Thereafter, the outcome of the “work related stress” grievance was
communicated to the Claimant in a letter signed by Ms Morag Alabaster dated 28
September 2017 [B/683-4]. Her conclusion was that:
“Having considered your points at length, I have decided that there is no case
for any further action to be taken at this time. I understand that the disciplinary
process has been a stressful time for you. Support has been offered to you in
the form of the employee assistance programme and Occupational Health. I am
not sure if you have used the employee assistance programme as this is
confidential but I am aware you haven’t asked to be referred to Occupational
Health.”
(96) Ms Alabaster concluded by reminding the Claimant of his right to appeal
against the outcome in relation to his grievance. In reliance upon that right,
therefore, the Claimant lodged an “Appeal Notice against Grievance Hearing
Outcome” on 4 October 2017. His grounds for appeal were summarised in terms
that:
• VA has failed to follow policies and breached ACAS code of practice
• VA has breached statutory laws including Health and Safety at Work Act 1974
• VA did not take what I said at Face Value
• VA has failed to “take steps” that are reasonable in the circumstances
(97) A “Grievance Appeal Meeting” was eventually arranged to take place on 7
November 2017 and notice of this was sent to the Claimant by Ms Thomas on 17
October 2017 [B/781]. Mr James Archibald (UK Legal Director) was assigned the
task of conducting that appeal meeting.
(98) Following the meeting the Claimant was eventually furnished with a letter
headed “Outcome of grievance appeal” [B/872-8], setting out reasons, and
concluding that:
“I am of the opinion that the grievance you have raised in relation to work
related stress have been fairly considered as part of the grievance process
and that the grievances you raised in relation to other matters have been fairly
considered as part of the disciplinary process. You have been given
reasonable opportunity to discuss all of your grievances and to provide
evidence in relation to them, and appropriate investigations have been carried
out.
…
For these reasons, I agree with Morag Alabaster’s decision that there is no
case for further action to be taken in relation to your grievances. This decision
is final.”
DISCUSSION
35 The case management notes [B/38L] set out the complaints and the issues
agreed between the parties at a hearing before Employment Judge Tayler on 21
May 2018. The order of the complaints is: (1) dismissal by reason of making a
protected disclosure; (2) unfair dismissal; (3) direct discrimination by reference to
the protected characteristic of age; (4) direct discrimination by reference to the
protected characteristic of sex; and (5) direct discrimination by reference to the
protected characteristic of race.
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(1) Dismissal by Reason of Making a Protected Disclosure
36 The Tribunal turns first to the allegation arising out of the alleged protected
disclosure. The allegation is that the Claimant was dismissed by reason of having
made a protected disclosure (or disclosures).
37 The disclosures originally relied upon were recorded in the Case
Management Notes as being three: (1) in relation to a threat that “if Virgin Active
don’t get him, we will”; (2) the report in relation to Mr Giovanni of direct debit fraud;
and (3) a heart attack suffered by the Claimant.
38 On the morning of Day 2 of the hearing the Claimant made clear that he was
not relying upon the third of those alleged disclosures (the heart attack). His
complaint therefore rests upon what he claims to have been two protected
disclosures.
39 In relation to the first of these (the threat of violence), the background was
that there had been reported threats made by Ms Arasp in relation to the Claimant.
These had, in particular, been reported by Mr Cawthorne in his communication to
Ms Mackenzie and were also said to have been known to Ms Asiegbu. Those
threats had allegedly been articulated in terms that “…don't worry Craig will get
what’s coming to him" and "If Virgin don't sort this out then Darrell will sort him out".
In addition, there had been an incident in which the Claimant’s locked personal
drawers in the office had been “smashed open and broken in to” [See photos at
B/371A-E]. It is not disputed that the Claimant had made a report of these matters
to the Metropolitan Police and Essex Police, for which a Police Crime Reference
(477/07082017) had been given [B/397].
40 The Tribunal has had regard to the provisions of section 43A onwards of the
Employment Rights Act 1996 as amended, and we find that this disclosure was
made as described in the case management notes (indeed, it has not been
challenged). We further find that it falls both within section 43B(1)(a) – ie.
commission of a crime – as well as section 43B(1)(d) – ie. the health and safety of
a person involved.
41 So far as the second of these (the direct debit fraud) is concerned, the
circumstances were that, in the course of the Claimant’s investigation into alleged
wrongdoing by Mr Giovanni, it emerged that a member had informed Mr Giovanni
that she would be using somebody else’s bank details for the purposes of a
transaction with the Respondent. Mr Giovanni had admitted that he had permitted
the member to sign a direct debit agreement for someone else’s bank details, and
had further admitted that he had done this previously. The Claimant characterised
this in his “Darrell Giovanni – Investigation Notes Key Points” [B/265] as
“fraudulent”, and noted that “Darrell admitted he knew who should sign for the DD”.
42 We find that this was also made as described and that it falls within section
43B(1)(a) – ie. commission of a crime.
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43 The Tribunal is satisfied, therefore, that both disclosures are “qualifying
disclosures” as provided for by section 43A of the 1996 Act. The question then is
whether those disclosures were made in circumstances falling within sections 43C
to 43H of the 1996 Act.
44 The Tribunal has had regard to section 43C of the 1996 Act. We find that the
first disclosure (threat of violence) was made to the Respondent employer on 17
August 2017. We further find that the second disclosure (the direct debit fraud) was
made in the report made of the investigation carried out by the Claimant [B/265
with covering email at B/264], spelling out that Mr Giovanni had admitted doing
certain things and appending various observations made by the Claimant to his
employer.
45 We find that both disclosures were of information and were made to the
employer. It has already been noted that a separate disclosure was also made to
the police in respect of the first matter. They therefore fall within the provisions of
section 43C(1)(a) of the 1996 Act. In reaching that conclusion the Tribunal has
reminded itself of the changing state of the case law in this area, and, in particular,
has noted the reconsideration and clarification by the Court of Appeal in Kilraine
v London Borough of Wandsworth [2018] EWCA Civ 1436, of the judgment
given by the Employment Appeal Tribunal in Cavendish Munro Professional
Risks Management Limited v Geduld [2010] ICR 325 [see per Sales L.J. at
paragraphs 34-36 of his judgment].
46 The question for us thus becomes whether there was a reasonable belief on
the part of the Claimant that these disclosures were made in the public interest. In
this regard the evidence is consistent to the effect that the Claimant regarded these
matters as serious and their disclosure as being in the public interest. This was
confirmed to the satisfaction of the Tribunal during the course of the Claimant’s
evidence and under cross-examination during the hearing. It is our view that there
was a reasonable belief on the part of the Claimant that these were made in the
public interest.
47 The question then arises as to causation – in other words, whether the
protected act was something which led to the dismissal of the Claimant by reason
of having made the disclosure or disclosures. Our evidence in relation to this is
drawn substantially from the disciplinary hearing transcript derived from the covert
recording made by or on behalf of the Claimant, which involves the voices of Mr
Armstrong and Ms Thomas. The transcript is not challenged (there having been a
tape recording behind it), and it is common ground that this is a record of a
disciplinary meeting in relation to the Claimant held on 22 August 2017. [B/546A,
see in particular B/546E and B/546F]
48 It is clear that, in discussing some of the background [B/546E], Ms Thomas
draws the attention of Mr Armstrong to the fact that, “He's gone to the police for
support. He’s reported", at which Mr Armstrong indicates that he was unaware of
that previously, queries this in a concerned manner, and is told by Ms Thomas that,
“He’s reported this as a crime". Ms Thomas also says that (the Claimant) is “scared
that someone is going to attack him outside of work".
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49 The Tribunal finds the response of Mr Armstrong to this revelation to have
completely changed the trajectory of the proceedings on the part of the
Respondent. The verbatim quotation from Mr Armstrong is:
“Fucking Christ. What’s the outcome here Emma? [referring to Ms Thomas]. This
is your baby (laughs), what do we do here?”
To this Ms Thomas replies:
“He can't come back now. Let's be honest.”
50 Close attention was drawn to that exchange on frequent occasions during the
course of cross-examination. The Tribunal is satisfied – and Mr Armstrong did not
seek to deny this – that there was, indeed, a “change in the wind” at this stage,
and that this indicated very clearly an inevitability that the Claimant should leave
the Respondent organisation. When the point was put directly to him in cross-
examination on the afternoon of Day 4, Mr Armstrong answered:
“There was a notable change in attitude, yes.”
51 The Tribunal finds, from the evidence before them and taking into account
the cross-examination that they have heard, that the reason for this “change in
attitude” was triggered by the discovery on Mr Armstrong’s part that the Claimant
had gone to the police in respect of the incident disclosed.
52 A follow-up meeting was held on 19 September 2017, and the eventual
outcome of the disciplinary procedure was set out in a letter dated 21 September
2017 which informed the Claimant that he was to be dismissed summarily. The
purported reasons given by the Respondent for that dismissal are set out in
extensive form over four pages [B/653A-657]. Those reasons are challenged by
the Claimant as not being the true reasons for his dismissal.
53 The Tribunal has had regard to the record of the disciplinary hearing held on
19 September 2017 [B/649] and is satisfied that the primary purpose of that
meeting was to "tie up loose ends" in constructing a set of “reasons for dismissal”
in order to justify the already pre-determined decision of the panel – as indicated
by Mr Armstrong and the statement by Ms Thomas that the Claimant would be
parting company with the Respondent organisation.
54 Subsequent to that letter of termination the Claimant exercised his right of
appeal. A transcript of comments made and recorded during an appeal meeting
convened on 10 October 2017 was produced for the hearing [B/546F onwards]
and that supplements the formal record of the meeting.
55 Once again, the picture painted by the covert recording of the discussions
between members of the appeal panel indicates to the Tribunal that there was an
inevitability about the Claimant being required to leave the Respondent
organisation. Indeed, this is so to such an extent that the Tribunal has formed the
view that this “appeal meeting” would appear to have been a complete sham. In
particular, regard is had to observations by Mr Simon Stokes, who was chairing
that meeting [B/546I-546J].
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56 With the benefit of hindsight it can clearly be seen that neither Ms Thomas
nor Mr Armstrong (at the disciplinary hearing) nor Ms Thomas and Mr Stokes (at
the appeal hearing) had any inkling that a covert recording of various parts of the
procedure had been and was being made by, or on behalf of, the Claimant. A
number of examples can be seen at B/546E onwards.
57 The Tribunal finds that the covert recordings demonstrate very sharply a clear
difference between the version being put forward by the Respondent witnesses Mr
Armstrong and Ms Thomas and the actual transactions between the participants
during the discussions at that meeting. The same conclusion is drawn in relation
to the appeal hearing involving Mr Stokes and Ms Thomas.
58 Counsel for the Respondent, in her submissions to the Tribunal, makes a
valiant effort to play down the significance of the covert recordings evidence,
suggesting that they do nothing more than to reflect “a few comments” which the
participants have “no recollection of making”.
59 The Tribunal, however, is of the view that it is not acceptable to say that these
were “a few comments which the makers have no recollection of making”. What
was said is incontrovertible and was not challenged in evidence. The Tribunal is
entitled to, and does, take the words uttered at face value.
60 Furthermore, the conscious intention of Mr Stokes, as the chair of the appeal
committee, can clearly be gathered (from comments at B/546I and elsewhere) that
he was content to “put matters into confusion”, in order that the Claimant should
not really focus upon particular matters of appeal for determination at that hearing.
By way of example, there is an exchange [at B/546I] where Mr Thomas said:
“… this is the thing. He keeps throwing bits. He is very muddled in the way he is
presenting everything.”
to which Mr Stokes replied:
“I know, which is good for us.”
Ms Thomas then responded:
“So, because he's just throwing so much that bits are getting lost.”
Ms Thomas continued:
“It's just very haphazard.”
Whereupon Mr Stokes interrupted by saying:
“That's good … that's what I'm kind of letting him do.”
and Mr Stokes then went on to make the telling comment:
“Because I want him to be muddled, I want him to admit that he's covered
everything off, I want him to, and then we can hit him with the hard stuff.”
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61 Having due regard to these matters, setting them in the context of the totality
of the available evidence, and having particular regard to the cross-examination of
Mr Armstrong, Mr Stokes and Ms Thomas, the Tribunal finds, in relation to the
allegation of dismissal by reason of having made a protected disclosure (so-called
“whistleblowing”), that (1) disclosures of information were made by the Claimant to
his employer; and (2) they were disclosures in relation to two matters – the
perception of fear for the Claimant’s physical integrity and the allegation of a crime
committed by way of the direct debit fraud. The circumstances relating to those
disclosures satisfied the requirements of Section 43B of the Employment Rights
Act 1996 and were therefore “protected disclosures”.
62 Focusing solely upon the allegation in relation to the alleged threats and
sense of fear on the part of the Claimant, the Tribunal finds that this particular
disclosure clearly influenced the minds of Mr Armstrong and Mr Thomas at a point
in the disciplinary hearing where they were unaware that their exchanges were
being covertly recorded.
63 The Tribunal finds that the formal record of that meeting fails properly (indeed,
almost completely) to indicate what was transacted during the course of that
meeting between the people responsible for the decision-making. The Tribunal
finds that the disclosure of the "crime" to the police indubitably influenced the mind
of Mr Armstrong and led Ms Thomas to make the observation, which was
subsequently carried through, that the Claimant “had to go”.
64 That being the case, and there being a disclosure of information – the
information tending to show a crime being committed or, in this case, a fear of
health and safety under section 43C(1)(d) – the Tribunal finds that there was a
protected act; the decision to terminate was accelerated by and overwhelmingly
influenced by the discovery of that protected disclosure; and from there onwards
the fate of the Claimant in terms of summary dismissal from his employment was
inevitable.
65 The Tribunal is satisfied that the true reason for the Claimant’s
dismissal was his having made the protected disclosure. That being the
case, therefore, the unanimous decision of the Tribunal is that the
Claimant's claim of unfair dismissal by reason of having made a
protected disclosure is upheld.
Unfair Dismissal (Part X of the Employment Rights Act 1996)
66 There is no dispute that the Claimant was dismissed by the Respondent
within the meaning of Section 95(1)(a) of the Employment Rights Act 1996 and
that the effective date of termination for the purposes of Section 97 of the same
Act was 21 September 2017.
67 The burden rests with the Respondent to establish “the reason (or, if more
than one, the principal reason) for the dismissal”, as provided for by Section
98(1)(a) of the Employment Rights Act 1996.
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68 The Respondent’s case is that the Claimant was dismissed for a reason
relating to his “conduct” – namely, as set out in the dismissal letter of 21 September
2017 [B/653A].
69 The Claimant challenges that alleged “conduct” reason.
70 The Tribunal has therefore asked itself the question as to what was the “true”
reason (or, if more than one, the principal reason) for the Claimant’s dismissal.
71 A number of points were put to Mr Armstrong in the course of re-examination
by Counsel for the Respondent, in the course of which (entirely professionally and
in full compliance with the Overriding Objective) she covered a number of
allegations raised by the Claimant, which had not been put to the witness in cross-
examination.
72 The first was the proposition that Mr Armstrong had decided to dismiss
because the Claimant had made allegations of credit card fraud against Roya
Arasp.
73 In relation to that allegation, which Mr Armstrong denied, the Tribunal was
furnished with no other supporting evidence. In consequence, the Tribunal finds
that the Claimant fails to discharge the burden of proof in establishing the matter.
74 The second was the direct allegation that Mr Armstrong had dismissed the
Claimant because he had made a report to the police about threats to his safety.
75 As regards that allegation, by contrast, the Tribunal does not accept the
witness’s denial. Indeed, the Tribunal explicitly rejects the evidence of Mr
Armstrong – which had been given during the course of his cross-examination in
response to a question from the panel – to the effect that:
“I made the decision after the two disciplinary hearings and speaking to 6 other
people then I made the decision at the end.”
76 On the contrary, and the Tribunal finds, the decision to dismiss the Claimant
was made during the covertly recorded exchange with Miss Thomas and was
triggered by the revelation that the Claimant had made a report to the police
concerning his perception of threats to his personal security. The outcome of
dismissal was set in stone from there on. The reasoning leading the Tribunal to
that conclusion has already been set out in relation to our finding that the Claimant
was dismissed for having made a protected disclosure and does not need to be
repeated here.
77 The Tribunal is in no doubt that the procedures put in place by the
Respondent’s People Hub in relation to the Claimant had been orchestrated to
lead to and justify (with copious supporting documentation) a dismissal for “gross
misconduct” – namely a reason constituting “conduct” falling within Section
98(2)(b) of the Employment Rights Act 1996.
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78 However, having regard to the unequivocal statements made in the covert
recording during the course of the recess to the disciplinary hearing, and for the
reasons already stated, the Tribunal finds that the intended “conduct” scenario was
overtaken by the reaction to discovery of the Claimant’s “protected disclosure”. In
consequence, it was this impermissible reason for dismissal which constituted the
“principal reason” for the dismissal of the Claimant.
79 It follows that the Tribunal does not accept the reasons put forward by the
Respondent in the letter of dismissal [B/653A] in so far as they indicate otherwise.
From the moment when “the wind changed” in the disciplinary hearing, the actions
of the Respondent in the name of and with the authority exercised by Mr Armstrong
– and primarily orchestrated by Ms Thomas – effectively amounted to an attempt
to “stitch together” reasons ostensibly to justify a “conduct” dismissal and thereby
conceal the true ground.
80 Nor did anything of significance change in relation to that during the appeal
hearing conducted by Mr Stokes. Indeed, the Tribunal has gone so far as to find
that the appeal stage hearing conducted by Mr Stokes and influenced by Ms
Thomas was little short of a “complete sham”.
81 Even had there been no issue in relation to the reason for dismissal, however,
the Tribunal finds that there were significant shortcomings in relation to the
reasonableness of the Respondent’s investigation of allegations made against the
Claimant.
82 Mention has already been made of the lack of clarity associated with the
drafting of a letter dated 17 July 2017 (which clearly had not been drafted until a
later date) setting out allegations against the Claimant in respect of which he was
being summoned to a disciplinary hearing.
83 The Tribunal also expresses serious concerns in relation to the investigation
of generic “bullying” allegations made by Mr Giovanni, Ms George and Ms Arasp,
and, in particular, to the question of whether there had been (or could have been)
“collusion” between the makers of the grievances along the lines indicated by the
information volunteered by Mr Cawthorn.
84 However, it is the approach to the allegation of a “racist remark” having been
made by the Claimant to Ms Roya Arasp which serves to illustrate the extent to
which the Respondent (both through their designated disciplinary officers and in
the guise of the People Hub) was prepared to “play fast and loose” with due
process.
85 The original allegations set out against the Claimant were contained in the
letter backdated 17 July 2017 which suspended the Claimant from work with the
warning that “the allegations appear to involve a serious matter of potential gross
misconduct”. The first specific allegation set out there provided that:
“… you have made an inappropriate comment of a racist nature to Roya Arasp
…”
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86 Thereafter, in the letter headed “Invite to Disciplinary Meeting” dated 3 August
2017 (which included the warning that “Due to the nature of the allegations against
you, you should be aware that this could lead to a dismissal without notice (gross
misconduct …”) the second allegation was set out in terms that:
“… you made a comment of a racist nature on 3
rd
June: “We had better watch out
in the office, you’re Iranian aren’t you?””
87 Consistently throughout the disciplinary process the Claimant took issue with
the allegation of having made a “racist comment”. Not only did he deny making any
such comment at any time, but he specifically took issue with the allegation that
such an incident had taken place on 3 June 2017. The fixing of that date had been
by reference to a terrorist incident which took place at Borough Market on that
date. In all of his correspondence with the Respondent, throughout the disciplinary
and appeal procedures, and consistently in the course of putting his case before
the Tribunal, the Claimant made repeated reference to what was known to have
happened at the time of the terrorist incident on 3 June 2017 and related this to
whether attendance records held by the Respondent established that he could
have been in the office with the complainant at any time indicated in the claim
made against him. This included putting his case that such an allegation could not
have taken place during the course of the disciplinary hearing before Mr Armstrong
on 19 August 2017.
88 However, by the time the letter of dismissal was drawn up and dated 21
September 2017 [B/653A], having repeated the original allegation dating the “racist
comment” as having been made on 3 June 2017, the conclusion given over Mr
Armstrong’s signature was that:
“… the date of 3 June is an error and should have read after the terrorist attacks
on 3 June.”
89 Mr Armstrong was pressed repeatedly about this during the course of cross-
examination on the afternoon of Day 4. Having been taken through the attendance
records, and being driven to accept that there was a 26 day period after 3 June
when the Claimant and Ms Arasp did not work together, Mr Armstrong was asked
to explain how the change from a specific allegation dated 3 June had been
transformed into a non-specific allegation. His answers to cross-examination
questioning were that:
“I “reconfirmed” the allegation.”
“I changed the date.”
“There was a mistake in the allegation.”
“The original allegation was 3 June. We knew from Roya’s grievance that the
allegation was not that specific.”
“It referred to “shortly after” 3 June.”
“I stand by my conclusion that the Claimant made the comments.”
90 Mr Armstrong’s attention was drawn by the Tribunal to a supplementary
“Grievance Statement of Roya Arasp” [B/918-922], which stated that:
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“The details of the first incident are that shortly after the horrendous and traumatic
events in London Bridge on the 3rd June 2017, all clubs received an email urging
vigilance against any potential dangers. Whilst this was being discussed in the
office, Mr Hughes said in reference to myself, “We had better watch out in the
office, you’re Iranian, aren’t you?””
In the course of cross-examination Mr Armstrong had conceded that the email
being referred to “urging vigilance” had been circulated after the next regularly
scheduled management meeting, which was held on 6 June 2017. It was put to
him, and he accepted, that Ms Arasp was not shown on the duty rosters to have
been in the office until 16 June (ie. 10 days later) and could not have been together
with the Claimant and the claimed witness to the event until that date at the earliest.
91 Mr Armstrong was then asked whether he went back to Ms Arasp and Mr
Giovanni to clarify the issue of the date. He responded that:
“I chose not to go back to Roya and Darrell about the date.”
When it was then put to him that his investigation was therefore incomplete, he
replied:
“It was complete. I did not need to go back as the date was clear… Roya’s
grievance did not put a specific date … I felt I had enough to decide on a balance
of probabilities that the Claimant had made the statement.”
92 The Tribunal finds it remarkable that, given the confusion over the date
alleged, the significance of the expression “shortly after”, and the evidence of the
duty rostas (which should have been available to him at the time of the disciplinary
hearing), Mr Armstrong simply “chose not to go back” to Ms Arasp and Mr Giovanni
for further clarification. In the view of the Tribunal it was unreasonable for Mr
Armstrong not to have sought to clarify the matter in the light of what had been
raised by the Claimant on 19 August 2017. This was particularly so since Mr
Armstrong, having been taken to the terms of Ms Arasp’s grievance as set out at
B/918, conceded under cross-examination that:
“The Claimant’s defence was in relation to specific “3 June”.”
93 By way of completeness, it has to be noted here that it was at this stage of
the proceedings – at the end of Day 4, and pending resumption of Mr Armstrong’s
evidence on Day 5 – that it came to light that an act of serious misconduct on the
part of Ms Thomas had taken place in clear contravention of a “witness warning”
given by the Employment Judge at the end of Day 4. Not only was there an
unauthorised email approach made overnight by Ms Thomas to Mr Armstrong, but
it is clear that the purpose of that email was to seek to provide Mr Armstrong with
a fresh (plausible) version of the confusion surrounding the date of 3 June 2017 –
presumably to be utilised during the continuation of cross-examination on the
morning of Day 5.
94 The Tribunal made clear at the time, and repeats its position, that it
recognises and appreciates the entirely professional manner in which Counsel for
the Respondent dealt with this matter. An apology was tendered on behalf of the
Respondent for what Ms Thomas had done. Nevertheless, after a request by the
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Tribunal to Instructing Solicitor for the Respondent to take instructions from Mr
Armstrong, it became clear that the witness had read the email from Ms Thomas.
95 In addition to the Tribunal’s view that the enquiry undertaken by the
Respondent was unreasonable, mention has also to be made of the extent to which
arrangements provided for in the Respondent’s disciplinary and grievance
procedures were adhered to in the course of the treatment of the Claimant. This
was a matter which was repeatedly raised by the Claimant from the outset, and,
indeed, formed part of his “formal grievances” as outlined above.
96 The Tribunal has been provided with the Respondent’s “Disciplinary Policy”
[B/1324-9] and their “Grievance Policy” [B/1320-2]. In the context of those policies,
the Claimant’s case has been that the decision by Ms Tysoe (communicated on
10 August 2017 [B/407-8]) to process a complaint of “work-related stress” through
the Grievance Policy procedure, but not to treat the Complainant’s other three
complaints in like manner, was in breach of the Respondent’s own policies. This
was particularly the case in relation to his complaint which was summarised by Ms
Tysoe in terms:
“3. That you have been bullied, harassed and discriminated against by named
members of the People Team and named members of your team at the Mayfair
Club;…”
Ms Tysoe’s reasoning for that decision was that:
“Having reviewed your case it is clear that the majority of the Grievance you have
presented to me (points 2, 3 and 4) is related to the matters that will be discussed
in this Disciplinary Hearing and is, in fact, your defence against the allegations
being made. As such, you should present this information at your forthcoming
disciplinary hearing to ensure a fair and meaningful consideration of your case,
rather than a separate grievance hearing being convened.”
97 Having regard to the provisions in the Grievance Policy, and in particular the
“Formal grievance procedure” [B/1330] set out there, it is the view of the Tribunal
that this denial by Ms Tysoe of recourse to that procedure was contrary to the
provisions set out in the Respondent’s Grievance Policy. Not only did it close off
access to the right to a grievance meeting, as well as precluding the potential for
“further investigation as necessary, for example interviewing witnesses”, but it flew
in the face of the proclamation that:
“Virgin Active is committed to ensuring that all grievances are investigated fully.
This may involve carrying out interviews with the employee concerned and third
parties such as witnesses, colleagues and managers, as well as analysing written
records and information.”
98 Instead, the Claimant was forced to raise his grievances in the context of the
Respondent’s Disciplinary Policy, where they were to be treated as his “defence
against the allegations being made”.
99 That being the case, far from facilitating “a fair and meaningful consideration”
of the Claimant’s case, Ms Tysoe’s decision rendered the Claimant incapable of
presenting his grievances with any prospect of “ensuring that all grievances are
investigated fully”. The Claimant was immediately placed “on the back foot”, was
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deprived of the potential for his complaints to be treated to “further investigation as
necessary”, and faced no realistic prospect that investigatory interviews would be
conducted with “third parties such as witnesses, colleagues and managers” to elicit
responses to the matters being raised by the Claimant. The Tribunal finds that the
treatment of the Claimant’s grievances was not in conformity with the
Respondent’s relevant policies and was unreasonable in the circumstances.
100 In summary, therefore, the Tribunal finds that the Respondent has failed to
establish that the “principal reason” for the dismissal of the Claimant was one of
the possible reasons set out in Section 98(2) or Section 98(1)(b) of the
Employment Rights Act 1996. Furthermore, the Tribunal finds that the conduct
of the investigation, disciplinary hearing, and decision-making in relation to the
dismissal of the Claimant were unreasonable in the circumstances. In addition, the
procedure adopted to deal with the Claimant was not only in contravention of the
Respondent’s own policies, but was also unreasonable in the circumstances.
101 For the reasons set out above, therefore, the Tribunal finds
unanimously that the dismissal of the Claimant by the Respondent was
unfair.
The Discrimination Claims
102 The Tribunal turns now to the three discrimination claims made by the
Claimant. These allege unlawful direct discrimination by reference to the protected
characteristics of (1) Age; (2) Sex; and (3) Race.
103 In relation to each of those allegations of discrimination the Tribunal has been
concerned to evaluate its findings of fact within the framework set by Section 136
of the Equality Act 2010, which deals with the burden of proof, and is intended to
transpose into United Kingdom law provisions established at the level of the
European Union. The transposing provisions now to be found in the Equality Act
2010 reflect Treaty obligations on the United Kingdom which existed prior to
withdrawal from membership of the European Union, and have not subsequently
been amended by domestic law.
104 The requirement in relation to alleged discrimination by reference to the
protected characteristic of age is to be found in Article 10 of Council Directive
2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation. In relation to alleged discrimination by
reference to the protected characteristic of sex the provision is to be found in Article
4 of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in
cases of discrimination based on sex. So far as concerns alleged discrimination by
reference to the protected characteristic of race the relevant provision is to be
found in Article 8 of Council Directive 2000/43/EC of 29 June 2000 implementing
the principle of equal treatment between persons irrespective of racial or ethnic
origin. In all three European Union instruments the provision on the burden of proof
is expressed in identical terms.
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105 The correct approach to dealing with the burden of proof under Section 136
has been extensively considered at the level of the Court of Appeal, with, in
particular, detailed evaluation (by reference to the statutory wording in force before
the enactment of the Equality Act 2010), in the cases of Igen v. Wong, [2005]
EWCA 142 and Madarassy v. Nomura International plc, [2007] EWCA Civ 33],
and, after the coming into force of the Equality Act 2010, in Royal Mail Group
Limited v. Efobi, [2019] EWCA Civ 18, subsequent to consideration of the issues
afresh in Ayodele v. Citylink Ltd, [2017] EWCA Civ 1913.
106 At the time of the hearing in the present case, the Tribunal was made aware
that an appeal was pending before the Supreme Court in the Efobi case, but that
the hearing of that appeal had been adjourned at the request of the parties and
had not yet been rescheduled. Assistance has therefore been drawn from the
detailed evaluation to be found in the judgment of Sir Patrick Elias in the Court of
Appeal in Efobi, it being noted that both Baker LJ and Underhill LJ (a former
President of the Employment Appeal Tribunal) agreed with the reasoning of Sir
Patrick Elias (himself also a former President of the Employment Appeal Tribunal).
(1) Age
107 The Claimant’s case in relation to the allegation of unlawful direct
discrimination by reference to the protected characteristic of age is set out in the
list of agreed issues as follows:
12. Was the handling of the Claimant’s disciplinary and grievances as set out
in his tribunal claim and/or his dismissal direct age … discrimination?
108 In his Further Particulars, furnished to the Tribunal at the beginning of Day 1,
the Claimant relies specifically on the following matters:
1. Reported a[n] … ageist comment "you are only doing this to me as I am old,
black and fat" made towards me by Jannett George.
Treated differently due to age ...
Detriment: grievance ignored, precedent set.
2. Grievance above ignored and dismissed by Denise MacKenzie.
Age – Told to be "more mature".
Detriment: grievance ignored and Denise MacKenzie became investigating
officer – impartial treatment.
3. Roya Arasp raised concerns to have me removed as disciplinary officer –
HR investigated and put her disciplinary on hold.
I raised concerns about Denise MacKenzie and was ignored. Investigation
continued.
Age, …
Detriment: grievance ignored, suspension and disciplinary action taken.
4. My grievances were not heard in line with Policy. Roya Arasp, Jannett
George and Darrell Giovanni all had grievance hearings and investigations
into theirs, without a dictated scope. Grievances treated differently.
Due to … Age ...
Detriment: grievances not heard separately. No grievance
meetings/investigations leading to unfair disciplinary process. Lead to
unfair dismissal.
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5. Treated differently in disciplinary process regarding racial allegation
compared to Jannett George.
Age, …
Detriment: led to dismissal.
6. Inconsistent disciplinary sanctions applied by Respondent
Fraud – Darrell Giovanni – not dismissal
Racist comment – Jannett George – not dismissal
Malicious rumours/bullying – Roya Arasp no action taken
Treated differently: age, …
Detriment: Dismissal.
7. Grievance meetings were handled differently and their grievances taken at
face value with no set agenda.
Comparators: Roya Arasp, Jannett George and Darrell Giovanni
Age, …
Detriment: led to dismissal.
8. …
9. Disciplinary officer made discriminatory comment "young gent out of his
depth" and confirms "he's exactly what he thinks he is being discriminated
against".
Due to age …
Detriment: Led to dismissal.
10. Racial allegation changed by Malcolm Armstrong/Respondent (3
June)
(evidence provided showed it could not have happened).
Comparator: Jannett George admitted to making racist, ageist comment –
no action taken by Respondent.
Due to age, ...
Detriment: Dismissal.
109 The various components of the Claimant’s case alleging direct age
discrimination have been considered in the course of the evidence-in-chief and
cross-examination of the Claimant, as well as, in particular, the cross-examination
of Mr Armstrong, who is alleged to have been the perpetrator in relation to item 9
of the Further Particulars. Much of the context has also been addressed in the
reasoning set out above in relation to the Tribunal’s findings on the dismissal
claims.
110 At paragraph 75 of his Witness Statement, the Claimant, who self-identifies
as “young, white and male” [WS para. 2], sets out his comparators for all three of
his discrimination allegations. He identifies there (1) Mr Giovanni, who “is a black
male”; (2) Ms George, who “is an older, black female”; and (3) Ms Arasp, who “the
Respondent advised … is an Iranian female”.
111 No evidence was given as to the ages of the potential comparators for this
part of the claim, other than an implicit suggestion that the Claimant regarded
himself as being “young” by comparison. However, beyond that, the Tribunal does
not have evidence upon which to make specific findings as to relative age for the
purposes of this head of claim.
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112 Specific complaint is made by the Claimant of statements made (1) by Ms
George, in terms that the Claimant might be acting as he did because she (Ms
George) was “fat, old and black”; (2) by Ms Mackenzie, in telling the Claimant to
be more “mature”; and (3) by Mr Armstrong – disclosed on the covert recording of
22 August 2017 – stating that the Claimant was a “young gent out of his depth”,
and that “he’s exactly what he thinks he is being discriminated against”.
113 Counsel for the Respondent in her Skeleton Argument (at para. 24) is
dismissive of all the claimed instances of discrimination by reference to the
protected characteristic of age, submitting that they “do not come close to being
capable of amounting to discrimination against the Claimant”.
114 Having regard to the detail furnished in the Further Particulars to support the
allegation that the handling of the Claimant’s disciplinary and grievances
constituted direct age discrimination:
(1) The Tribunal finds no evidence to indicate that the comment made by Jannett
George (“old, black and fat”) influenced in any way the handling by the
Respondent of the Claimant’s disciplinary and grievances or could be linked
in any way to the age of the Claimant;
(2) The Tribunal did not hear evidence from Ms Mackenzie, but there was no
challenge to the alleged making of the “more mature” comment. However,
the Tribunal does not accept the proposition that the grievance was “ignored”
and there is no evidence to support the proposition that Ms Mackenzie
dismissed the Claimant’s grievance for a reason related to the age of the
Claimant. Nor is there any evidence to suggest that the appointment of Ms
Mackenzie as the investigating officer was in any way related to the age of
the Claimant;
(3) The Tribunal finds no evidence to support the allegation that actions taken by
the Respondent in the light of efforts by Ms Arasp to have the Claimant
replaced as the disciplinary officer, including the decision that Ms Mackenzie
should continue in her investigatory role, were in any way connected to the
age of the Claimant;
(4) The Tribunal has already set out its finding that the treatment of the
Claimant’s grievances was not “in line with policy”, and the Tribunal also finds
that the Claimant was treated differently from Ms Arasp, Ms George and Mr
Giovanni in that regard. However, there is nothing in the findings of the
Tribunal which suggests that this treatment was related to the age of the
Claimant;
(5) The Tribunal likewise finds nothing in the evidence to support the proposition
that different treatment of the Claimant in the disciplinary process regarding
the “racial allegation”, when compared with Ms George, was in any way
related to the age of the Claimant;
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(6) The Tribunal further finds no evidence to support the allegation that what are
described by the Claimant as “inconsistent disciplinary sanctions applied by
the Respondent” were in any respect connected with the age of the Claimant;
(7) The Tribunal is unable to conclude, on the basis of the available evidence,
that the grievances raised by Ms Arasp, Ms George and Mr Giovanni were
“taken at face value with no set agenda”, as alleged by the Claimant. While it
has been a consistent part of the Claimant’s case that the Respondent
engaged in a strategy to set him up for dismissal, and notwithstanding that
such an allegation might be one plausible explanation for the events which
eventually unfolded, there is insufficient evidence to that effect upon which
the Tribunal could say on the balance of probabilities that this was the case.
In so far as grievance meetings relating to the Claimant were “handled
differently” from grievance meetings held in relation to Ms Arasp, Ms George
and Mr Giovanni, there is nothing in the findings of the Tribunal, having regard
both to the copious documentation and the cross-examination of the
Claimant, Ms Tysoe and Ms Thomas, which supports the proposition that this
treatment was related to the age of the Claimant;
(8) The alleged statements made by Mr Armstrong are not disputed, and can be
found in the transcript of the covert recording [B/546E]. Mr Armstrong was
cross-examined on the afternoon of Day 4 and the morning of Day 5 in
relation to parts of the transcript. In particular, he was cross-examined on the
morning of Day 5 in relation to the alleged “age” comments, which are
transcribed as:
“… He’s everything you’ve just said next door. He is a, well he is what he
thinks people discriminated him on. Young. A young gent who’s out of the
depth…”
Having heard Mr Armstrong’s evidence given in the course of that cross-
examination, the Tribunal is satisfied that they accurately reflected Mr
Armstrong’s view that the Claimant was “out of his depth”, and that this was
a consequence, at least in part, to a lack of experience on the Claimant’s part.
That lack of experience was related to the “youth” of the Claimant. However,
even though that is the case, there is no evidence to suggest that “the
handling of the Claimant’s disciplinary” was influenced in any way by the age
of the Claimant, as alleged. The Tribunal finds nothing to connect the
comment about the Claimant’s youth to the subsequent handling of the
disciplinary hearing, and has already expressed the view that there is nothing
else which indicates that the Claimant’s age affected the handling of that
disciplinary. In particular, the Tribunal finds that the alleged link to the
dismissal decision having been made on the basis of the Claimant’s age is
not made out on the available evidence;
(9) The Tribunal has already set out its findings concerning the amendment of
the date in relation to the alleged “racial allegation” raised by Ms Arasp. This
matter was also explored in depth during the cross-examination of Mr
Armstrong and the Tribunal finds that there is no evidence to support the
proposition that either the amendment of the date for the alleged incident or
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the Respondent’s subsequent handling of the Claimant’s disciplinary and
grievances was related in any way to the age of the Claimant.
115 In light of these findings, the Tribunal finds that the Claimant’s allegation that
the handling of his disciplinary and grievances were handled differently by reason
of his age is not made out. Even taking the inadequate evidence in relation to the
age of the comparators at its highest (i.e. “older than the Claimant”), the remainder
of the available evidence does not even begin to support the allegation, other than,
potentially, in respect of the remarks uttered by Mr Armstrong as revealed by the
covert recording. In relation to those remarks, the Tribunal has had careful regard
to the cross-examination of Mr Armstrong on Days 4 and 5, and finds that there is
nothing in the handling of the Claimant’s disciplinary that calls for explanation.
116 The consequence of this is that the Claimant has failed to establish “facts
from which the court could decide, in the absence of any other explanation”, that
the Respondent contravened Section 13(1) of the Equality Act 2010. As a result,
the Claimant fails to get past the first stage of what is accepted as being “a two-
stage process” provided for by Section 136 of the Equality Act 2010. That process
has most recently been set out at para. 10 of the judgment of Sir Patrick Elias in
Royal Mail Group Limited v. Efobi, [2019] EWCA Civ 18:
The authorities demonstrate that there is a two-stage process. First, the burden
is on the employee to establish facts from which a tribunal could conclude on the
balance of probabilities, absent any explanation, that the alleged discrimination
had occurred. At that stage the tribunal must leave out of account the employer's
explanation for the treatment. If that burden is discharged, the onus shifts to the
employer to give an explanation for the alleged discriminatory treatment and to
satisfy the tribunal that it was not tainted by a relevant proscribed characteristic.
If he does not discharge that burden, the tribunal must find the case proved.
To adapt the later words of Sir Patrick Elias (at para. 59 of his judgment), in this
case the Claimant’s allegations of discrimination by reference to the protected
characteristic of age are mere assertion and the Claimant has not backed up his
claims with the necessary factual foundation.
117 For the reasons set out above, therefore, the Tribunal unanimously
finds that the Claimant’s claim alleging unlawful discrimination by
reference to the protected characteristic of age is not made out. That
claim is dismissed.
(2) Sex
118 The Claimant’s case in relation to the allegation of unlawful direct
discrimination by reference to the protected characteristic of sex is set out in the
list of agreed issues as follows:
12. Was the handling of the Claimant’s disciplinary and grievances as set out
in his tribunal claim and/or his dismissal direct sex … discrimination?
119 The Claimant seeks to compare himself with Ms Arasp and Ms George. It is
common ground that the Claimant is male and that those two comparators are
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female. There is also mention in the Further Particulars of Mr Giovanni as a
potential comparator. It is common ground that Mr Giovanni is male.
120 In his Further Particulars, furnished to the Tribunal at the beginning of Day 1,
the Claimant relies specifically on the following matters for his claim alleging
discrimination by reference to the protected characteristic of sex:
1. …
2. …
3. Roya Arasp raised concerns to have me removed as disciplinary officer –
HR investigated and put her disciplinary on hold.
I raised concerns about Denise MacKenzie and was ignored. Investigation
continued.
… Gender
Detriment: grievance ignored, suspension and disciplinary action taken.
4. My grievances were not heard in line with Policy. Roya Arasp, Jannett
George and Darrell Giovanni all had grievance hearings and investigations
into theirs, without a dictated scope. Grievances treated differently.
Due to … Gender.
Detriment: grievances not heard separately. No grievance
meetings/investigations leading to unfair disciplinary process. Lead to
unfair dismissal.
5. Treated differently in disciplinary process regarding racial allegation
compared to Jannett George.
… Gender
Detriment: led to dismissal.
6. Inconsistent disciplinary sanctions applied by Respondent
Fraud – Darrell Giovanni – not dismissal
Racist comment – Jannett George – not dismissal
Malicious rumours/bullying – Roya Arasp no action taken
Treated differently … gender
Detriment: Dismissal.
7. Grievance meetings were handled differently and their grievances taken at
face value with no set agenda.
Comparators: Roya Arasp, Jannett George and Darrell Giovanni
… Gender
Detriment: led to dismissal.
8. Threat to safety not taken seriously by the Respondent. There was a
witness statement provided to the Respondent confirming the threat.
Roya Arasp denied the allegation despite a witness confirming the threat.
Respondent took no further action with her.
In comparison, I denied making the racial allegation. Roya Arasp also had
a witness to her allegation. The Respondent dismissed me.
Due to … Gender.
Detriment: Led to dismissal.
9. Disciplinary officer made discriminatory comment "young gent out of his
depth" and confirms "he's exactly what he thinks he is being discriminated
against".
Due to … gender
Detriment: Led to dismissal.
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10. Racial allegation changed by Malcolm Armstrong/Respondent (3
June)
(evidence provided showed it could not have happened).
Comparator: Jannett George admitted to making racist, ageist comment –
no action taken by Respondent.
Due to … gender.
Detriment: Dismissal.
121 Having regard to those Further Particulars produced by the Claimant to
support the allegation that the handling of his disciplinary and grievances
constituted direct discrimination by reference to the protected characteristic of sex:
(1) The Tribunal has considered the exchanges of correspondence as regards
the concerns of Ms Arasp in relation to the Claimant acting as disciplinary
officer in her case. Those concerns were set out in a communication to the
Respondent’s People Hub, dated 30 March 2017 [B/132]. That
communication was acknowledged by Ms Asiegbu [B/134]. After internal
exchanges within the People Hub, Mr Andre Orr (Operations Manager,
Mayfair) eventually wrote to the Claimant on 6 April 2017 to set out the
decision reached by the Respondent in relation to the handling of Ms Arasp’s
case [B/144]. Further insight into the approach adopted by the People Hub
was set out in an email from Ms Asiegbu to Ms Mackenzie on 10 April 2017
[B/151-2].
Thereafter, a number of managerial supervision measures continued in
place, including, in particular, the implementation and monitoring of a PIP for
Ms Arasp (along with three other employees), which was being conducted by
the Claimant under the supervision of his line manager, Mr Heidke. Follow up
in relation to the PIP for Ms Arasp came in exchanges of emails between the
Claimant and Ms Asiegbu in early June 2017. Thereafter, the Claimant had
further exchanges, including in relation to Ms Arasp’s case, with Mr Barry
Gillard [B/264-8]. This was then followed by an “overview” of the situation in
relation to Ms Arasp sent by Mr Kiran Babenia (Regional Sales Manager) to
the Claimant on 28 June 2017.
The Tribunal finds nothing in this documentation, or in the available evidence
concerning this period of managerial supervision in relation to Ms Arasp, to
suggest that any decision or action taken by the Respondent was because of
the sex of the Claimant. The same finding is made as regards the Claimant’s
“concerns” in relation to the impartiality of Ms Mackenzie, which had been
clarified, in particular, in a communication of 7 August 2017 where the
Claimant set out what he described as his “opinion” in relation to the matters
raised. In the view of the Tribunal the Claimant has failed in relation to these
matters to establish facts from which the Tribunal could decide, in the
absence of any other explanation, that the Respondent contravened Section
13 of the Equality Act 2010 because of the Claimant’s sex.
(2) The Tribunal has already found that the Claimant’s grievances were not
conducted in accordance with the Respondent’s established policies. It is
also the case that they were dealt with in a manner different from that applied
to grievances raised by Ms Arasp, Ms George and Mr Giovanni.
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However, the Tribunal is unable to accept the proposition made by the
Claimant that the handling of his grievances was different from an appropriate
comparator because of sex. The Claimant can compare himself with Ms
Arasp and Ms George, both of whom are female. However, on his own case
he also compares himself with Mr Giovanni, who, like the Claimant, is a man.
It has been established that the Claimant was treated differently from Mr
Giovanni, but that Mr Giovanni was treated in the same way as Ms Arasp and
Ms George. It follows that the Respondent treated the grievances of the two
female comparators in the same way as the male “comparator” Mr Giovanni.
This fails to establish the necessary discrimination for the purposes of Section
13(1) of the Equality Act 2010.
Looking only at the treatment of the female comparators’ grievances, and
having regard to the decision on procedure made by Ms Tysoe as set out in
her letter dated 10 August 2017, the Tribunal does not find anything in the
available evidence to suggest that any such decision was made with the
protected characteristic of sex in mind.
The Tribunal therefore finds that the fact that the grievances were treated
differently in the case of the Claimant was not because of the Claimant’s sex.
(3) The Claimant’s articulation of his claim by reference to being treated
differently from Ms George regarding a “racial allegation” is a specific
allegation within the framework of the more generally expressed allegation
about the differences in the handling of the disciplinary and grievance
processes.
For the reasons set out already, the Tribunal finds nothing in the available
evidence to support the proposition that the Respondent acted because of
the sex of the Claimant.
In the view of the Tribunal the Claimant has failed to establish facts in respect
of this articulation of his claim from which the Tribunal could decide, in the
absence of any other explanation, that the Respondent contravened the
Equality Act 2010 because of the Claimant’s sex.
(4) In relation to the allegation made by reference to the alleged application by
the Respondent of “inconsistent disciplinary sanctions”, the Claimant seeks
to compare himself with Mr Giovanni, Ms George and Ms Arasp.
For the reasons already indicated the Tribunal finds that the Claimant is
unable in this context to compare himself with Mr Giovanni, who, like the
Claimant, is male.
So far as the comparisons with Ms George and Ms Arasp are concerned, the
Tribunal has considered the substantial documentation dealing with
allegations made against, investigations conducted in relation to, and
decision-making processes applied for both of these female comparators.
This has been compared with the evidence in relation to treatment of the
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Claimant in order to identify whether there are established facts from which,
in the absence of any other explanation, the Tribunal could decide that the
Respondent contravened Section 13 of the Equality Act 2010 because of
the Claimant’s sex.
There is no dispute that, following disciplinary/grievance procedures, Ms
George was not dismissed in relation to what was described as a “racist
comment”, and no action was taken against Ms Arasp in relation to
allegations of “malicious rumours/bullying”. By contrast, the Claimant was
dismissed following disciplinary/grievance procedures.
Notwithstanding that difference between the outcome for the Claimant and
the outcomes for the two female comparators, the Tribunal has not found
anything in the available evidence which can be said to support the
proposition that the differential outcomes (or the processes leading to those
outcomes) were in any way because of the Claimant’s sex.
In the view of the Tribunal the Claimant has failed to establish facts in relation
to the different disciplinary sanctions (or lack of sanctions) from which the
Tribunal could decide, in the absence of any other explanation, that the
Respondent contravened the Equality Act 2010 because of the Claimant’s
sex.
(5) So far as the allegation that “grievance meetings were handled differently” is
concerned, the differential handling has already been considered and the
Tribunal finds that this differential treatment has not, on the available
evidence, been established to have been because of the Claimant’s sex.
The Claimant seeks to compare himself with Mr Giovanni, who is male, and,
as has already been indicated, this comparison is not open to the Claimant
in respect of a claim alleging discrimination by reference to the protected
characteristic of sex. Comparison thus has to be made with the two named
female comparators.
In relation to the proposition that grievances raised by Ms George and Ms
Arasp were “taken at face value with no set agenda”, as compared with the
treatment afforded grievances raised by the Claimant, the Tribunal
recognises that a consistent element in the Claimant’s case has been that he
was the victim of a co-ordinated strategy to find him guilty of “gross
misconduct” and thus justify dismissal.
However, the Tribunal is not able to make any such finding on the basis of
the evidence produced during the hearing of this case. The written
documentation produced to the Tribunal in relation to investigations
conducted in the wake of grievances being raised, taken together with
records of the approach adopted by various members of the Respondent’s
People Hub, do not suggest the presence of any “set agenda”. Nor is there
any clear suggestion of particular allegations being “taken at face value” as
compared to other allegations.
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The complaints made in this context amount to nothing more than assertions,
and, without adequate relevant supporting evidence, the Tribunal finds that
the Claimant has failed to establish facts from which the Tribunal could
decide, in the absence of any other explanation, that the Respondent
contravened the Equality Act 2010 because of the Claimant’s sex.
(6) The “threat to safety” referred to here relates to reported comments said to
have been made by Ms Arasp. On the Claimant’s own case the identified
differences in treatment and outcome arose out of judgments made by the
Respondent in relation to witness evidence considered in the course of
disciplinary/grievance investigations.
The Tribunal rejects the proposition that a ‘threat to safety” in this respect
was “not taken seriously by the Respondent”. On the contrary, the material
said to have been “provided to the Respondent” came into existence as part
of investigations undertaken by the Respondent, while it is clear from the
records of subsequent disciplinary and appeal proceedings that a serious
view was taken of the allegation.
That having been said, however, even if one were to complement the
reported “threat” with the incident of damage to the Claimant’s locked drawers
and the incident which eventually led to the making of a formal police
complaint, the Tribunal finds absolutely nothing to suggest that anything done
or decided in this context was in any way because of the sex of the Claimant.
(7) Mr Armstrong (the disciplinary officer) accepted in the course of his cross-
examination that he had made the statements “young gent out of his
depth” and “he’s exactly what he thinks he is being discriminated
against”. He had little choice but to do so, since the covert recording of
the disciplinary hearing disclosed that to have been the case.
The Tribunal accepts the unchallenged proposition that such comments
would not have been made in relation to a female – and, in particular, the
female comparators Ms Arasp and Ms George.
The Tribunal have then proceeded to consider what evidence has been
presented in support of the proposition that the handling by Mr Armstrong of
the Claimant’s disciplinary and grievances was tainted by direct
discrimination because of the Claimant’s sex. In doing so, the central
question has been for the Tribunal to determine whether the Claimant has
established facts from which the Tribunal could decide, in the absence of any
other explanation, that the Respondent contravened the Equality Act 2010
because of the Claimant’s sex.
The Tribunal notes that Mr Armstrong was responsible for the conduct of the
Claimant’s disciplinary hearing, and that it was his decision which resulted in
the dismissal of the Claimant by the Respondent. It has already been found
by the Tribunal that the primary driver behind Mr Armstrong’s decision to
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dismiss the Claimant was the discovery of a “protected disclosure” by the
Claimant.
Taking that into account, the Tribunal has asked itself whether there is
evidence before them to indicate another motive for Mr Armstrong’s decision,
and whether there is anything which indicates that regard to the protected
characteristic of sex played any part in the Claimant’s treatment in relation to
his disciplinary and grievance procedures and eventual dismissal.
Taking all of the available evidence into account, and having particular regard
to exchanges during the cross-examination of Mr Armstrong, the Tribunal
finds that there is nothing which suffices to require the Respondent to provide
some other explanation as provided for by Section 136 of the Equality Act
2010.
(8) Mr Armstrong accepted during the course of his cross-examination that he
had “changed” the “racial allegation” made against the Claimant during the
course of the disciplinary procedure.
This relates to the alleged making of a comment by the Claimant in terms of
“We had better watch out in the office, you're Iranian aren’t you?”. The
admitted “change” was from an initial allegation contained in the “Invite to
Disciplinary Meeting” sent to the Claimant on 3 August 2017 that this
comment had allegedly been said “on 3rd June”, to an amended proposition
that it had been made “shortly after 3rd June 2017”. This change was made
in the light of the Claimant and his representative establishing unequivocally
during the course of the disciplinary hearing held by Mr Armstrong on 19
August 2017 that he could not have made the alleged comment, or any
comment, to Ms Arasp as alleged on 3 June 2017.
The Tribunal has already considered in detail, while dealing with the
Claimant’s allegation that he was unfairly dismissed, what was done by Mr
Armstrong in relation to the date of the alleged comment in question.
However, notwithstanding the strong criticism expressed by the Tribunal in
relation to Mr Armstrong’s conduct in that regard, the Tribunal is unanimously
of the view that there is nothing in the evidence before them to indicate that
what Mr Armstrong did was in any way done because of the Claimant’s sex.
In so far as the Claimant is complaining about the procedural treatment
afforded his comparator Ms George and the outcomes of investigations into
his and Ms George’s allegations, those matters have already been
considered by reference to the Claimant’s allegation concerning what he
described as “inconsistent disciplinary sanctions”, and by reference to the
decisions made in the Respondent’s People Hub as to how the Claimant’s
grievances were to be handled.
It follows therefore that the Claimant has not established, in relation to either
limb of this complaint, facts from which the Tribunal could decide, in the
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absence of any other explanation, that the Respondent contravened the
Equality Act 2010 because of the Claimant’s sex.
122 In the light of these findings the Tribunal unanimously concludes that the
Claimant’s allegation that the handling of his disciplinary and grievances was
different from the handling of his female comparators because of his sex is not
made out. The Tribunal finds that there is nothing in the available evidence
regarding the handling of the Claimant’s disciplinary and grievances which calls for
explanation.
123 The “two-stage process” provided for by Section 136 of the Equality Act
2010 has already been considered in relation to the Claimant’s claim alleging
unlawful discrimination by reference to the protected characteristic of age. Having
sought to follow the guidance on the correct approach to that process given by Sir
Patrick Elias in Royal Mail Group Limited v. Efobi, [2019] EWCA Civ 18, the
Tribunal finds that the Claimant fails to get past the first stage in relation to his
claim alleging unlawful discrimination by reference to the protected characteristic
of sex.
124 For the reasons set out above, therefore, the Tribunal unanimously
finds that the Claimant’s claim alleging unlawful discrimination by
reference to the protected characteristic of sex is not made out. That
claim is dismissed.
(3) Race
125 The Claimant’s case in relation to the allegation of unlawful direct
discrimination by reference to the protected characteristic of race is set out in the
list of agreed issues as follows:
12. Was the handling of the Claimant’s disciplinary and grievances as set out
in his tribunal claim and/or his dismissal direct race … discrimination?
126 The Claimant seeks to compare himself with Ms Arasp, Ms George and Mr
Giovanni. It is common ground, and was specifically confirmed in the course of
cross-examination, that Ms Arasp is black, Ms George is black (Iranian), and Mr
Giovanni is black. The Claimant is white (British).
127 In his Further Particulars, furnished to the Tribunal at the beginning of Day 1,
the Claimant relies specifically on the following matters in relation to his allegation
of unlawful discrimination by reference to the protected characteristic of race:
1. Reported a racist … comment "you are only doing this to me as I am old,
black and fat" made towards me by Jannett George.
Treated differently due to … race.
Detriment: grievance ignored, precedent set.
2. Grievance above ignored and dismissed by Denise MacKenzie.
…
Detriment: grievance ignored and Denise MacKenzie became investigating
officer – impartial treatment.
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3. Roya Arasp raised concerns to have me removed as disciplinary officer –
HR investigated and put her disciplinary on hold.
I raised concerns about Denise MacKenzie and was ignored. Investigation
continued.
… Race …
Detriment: grievance ignored, suspension and disciplinary action taken.
4. My grievances were not heard in line with Policy. Roya Arasp, Jannett
George and Darrell Giovanni all had grievance hearings and investigations
into theirs, without a dictated scope. Grievances treated differently.
Due to Race…
Detriment: grievances not heard separately. No grievance
meetings/investigations leading to unfair disciplinary process. Lead to
unfair dismissal.
5. Treated differently in disciplinary process regarding racial allegation
compared to Jannett George.
… Race …
Detriment: led to dismissal.
6. Inconsistent disciplinary sanctions applied by Respondent
Fraud – Darrell Giovanni – not dismissal
Racist comment – Jannett George – not dismissal
Malicious rumours/bullying – Roya Arasp no action taken
Treated differently … race …
Detriment: Dismissal.
7. Grievance meetings were handled differently and their grievances taken at
face value with no set agenda.
Comparators: Roya Arasp, Jannett George and Darrell Giovanni
… Race …
Detriment: led to dismissal.
8. Threat to safety not taken seriously by the Respondent. There was a
witness statement provided to the Respondent confirming the threat.
Roya Arasp denied the allegation despite a witness confirming the threat.
Respondent took no further action with her.
In comparison, I denied making the racial allegation. Roya Arasp also had
a witness to her allegation. The Respondent dismissed me.
Due to Race …
Detriment: Led to dismissal.
9. …
10. Racial allegation changed by Malcolm Armstrong/Respondent (3
June)
(evidence provided showed it could not have happened).
Comparator: Jannett George admitted to making racist, ageist comment –
no action taken by Respondent.
Due to … race ...
Detriment: Dismissal.
128 Having regard to those Further Particulars produced by the Claimant to
support the allegation that the handling of his disciplinary and grievances
constituted direct discrimination by reference to the protected characteristic of
race:
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(1) The Tribunal has already considered the Respondent’s treatment of this
matter by reference to allegations that this was motivated by either the age
or sex of the Claimant. So far as those two protected characteristics are
concerned the Tribunal has found nothing in the available evidence to call for
explanation on the part of the Respondent.
In relation to the component of the claim brought by reference to the protected
characteristic of race, however, the nature of the reported comment raises an
initial question as to whether any alleged different treatment of the Claimant
might have been with that characteristic in mind and because of that
characteristic.
In the view of the Tribunal the evaluation of an alleged “racist comment” in
this context must have brought into consideration the respective racial
characteristics of the alleged comment maker and the alleged recipient of that
comment. Further, given the seriousness with which the Claimant’s alleged
“racist comment” to Ms Arasp was treated, it might be expected that at least
a similar level of seriousness would be accorded to the alleged comment by
Ms George to the Claimant. An explanation is therefore called for in relation
to the way in which such consideration took place, including the reason for
Ms Mackenzie’s dismissal of the Claimant’s grievance.
The Tribunal finds that the Claimant has established facts in relation to this
matter from which the Tribunal could decide, in the absence of any other
explanation, that the Respondent contravened Section 13 of the Equality Act
2010 because of the Claimant’s race.
(2) As indicated above, the Tribunal does not accept that the Claimant’s
grievance was “ignored” as alleged.
In addition, even though the Tribunal did not hear live evidence from Ms
Mackenzie, it follows from consideration of the available documentation,
taken together with the oral evidence heard from other witnesses, that no
evidence has been adduced to suggest that the appointment of Ms
Mackenzie as the investigating officer was in any way related to the race of
the Claimant.
It is common ground that Ms Mackenzie did not uphold the Claimant’s
grievance, which included the treatment afforded Ms George when she had
admitted making a racist comment. That decision can be contrasted with the
upholding of Ms Arasp’s grievance against the Claimant as regards an
alleged “racist comment”. This decision by Ms Mackenzie, and the
circumstances leading up to it, call for explanation, taking into account the
nature of the grievances involved and the respective racial characteristics of
the Claimant, Ms George, and Ms Arasp.
In the view of the Tribunal the Claimant has established facts in relation to
this matter from which the Tribunal could decide, in the absence of any other
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explanation, that the Respondent contravened Section 13 of the Equality Act
2010 because of the Claimant’s race.
(3) The Tribunal has already indicated how it has considered the exchanges of
correspondence as regards the concerns of Ms Arasp in relation to the
Claimant acting as disciplinary officer in her case. Those matters were
examined by reference to allegations that there had been direct
discrimination by reference to the protected characteristics of age and sex –
in relation to each of which the Tribunal has found nothing calling for
explanation on the part of the Respondent.
For similar reasons to those set out in relation to the age and sex claims, the
Tribunal finds nothing in this documentation, or in the available evidence
concerning this period of managerial supervision in relation to Ms Arasp to
suggest that any decision or action taken by the Respondent was because of
the race of the Claimant. In like manner, the Tribunal makes the same finding
as regards the Claimant’s “concerns” in relation to the impartiality of Ms
Mackenzie.
In the view of the Tribunal the Claimant has failed in relation to these matters
to establish facts from which the Tribunal could decide, in the absence of any
other explanation, that the Respondent contravened Section 13 of the
Equality Act 2010 because of the Claimant’s race.
(4) For reasons already set out the Tribunal has found that the Claimant’s
grievances were not conducted in accordance with the Respondent’s
established policies and that they were dealt with in a manner different from
that applied to grievances raised by Ms Arasp, Ms George and Mr Giovanni.
Having regard to the nature of the respective grievances, and the respective
racial characteristics of the Claimant as set alongside those of the three
comparators, an explanation for the departure from established policies and
the different treatment of the Claimant’s grievances is called for.
In relation to these matters the Tribunal finds that the Claimant has
established facts from which the Tribunal could decide, in the absence of any
other explanation, that the Respondent contravened Section 13 of the
Equality Act 2010 because of the Claimant’s race.
(5) The Tribunal has already indicated that it finds the Claimant’s articulation of
his claim by reference to being treated differently from Ms George regarding
a “racial allegation” is a specific allegation within the framework of the more
generally expressed allegation about the differences in the handling of the
disciplinary and grievance processes.
For the reasons already set out the Tribunal finds that, in respect of the more
specifically expressed claim relating to a “racial allegation”, the Claimant has
established facts from which the Tribunal could decide, in the absence of any
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other explanation, that the Respondent contravened Section 13 of the
Equality Act 2010 because of the Claimant’s race.
(6) So far as the allegation made by reference to the alleged application by the
Respondent of “inconsistent disciplinary sanctions” is concerned, the
Claimant seeks to compare himself with Mr Giovanni, Ms George and Ms
Arasp. The difference in racial characteristics between the three comparators
and the Claimant is acknowledged as common ground.
The Tribunal has considered the substantial documentation produced as part
of the trial bundle dealing with allegations made against, investigations
conducted in relation to, and decision-making processes applied for the
comparators. This has been compared with the evidence in relation to
treatment of the Claimant in order to identify whether there are established
facts from which, in the absence of any other explanation, the Tribunal could
decide that the Respondent contravened Section 13 of the Equality Act 2010
because of the Claimant’s race.
There is no dispute that, following disciplinary/grievance procedures, Ms
George was not dismissed in relation to a “racist comment” which was
described as a “deliberate act of unlawful discrimination” and which she
admitted having made, but was told to apologise; no action was taken against
Ms Arasp in relation to allegations of “malicious rumours/bullying”; while Mr
Giovanni was subjected to disciplinary investigation before handing in his
notice and eventually leaving employment with the Respondent.By
contrast, the Claimant was dismissed following disciplinary/grievance
procedures.
It follows from what has already been said in relation to the comparison with
Ms George that the alleged “inconsistent disciplinary sanction” calls for
explanation. The Tribunal is also of the view that the other sanctions applied
in cases with which the Claimant wishes to compare himself call for some
explanation in this context.
In short, it is the view of the Tribunal that the Claimant has established facts
in relation to the different disciplinary sanctions (or lack of sanctions) from
which the Tribunal could decide, in the absence of any other explanation, that
the Respondent contravened the Equality Act 2010 because of the
Claimant’s race.
(7) So far as the allegation that “grievance meetings were handled differently” is
concerned, various points of contrast have been established, and the
differential handling has already been considered in the context of the
Claimant’s age and sex allegations. It has already been indicated that the
Tribunal is of the view that, where these fall to be considered in relation to the
allegation of unlawful discrimination by reference to the protected
characteristic of race, the contrasts and differential handling call for an
explanation.
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In relation to the specific proposition that grievances raised by comparators
were “taken at face value with no set agenda”, as compared with the
treatment afforded grievances raised by the Claimant, it has already been
noted that the Tribunal recognises that a consistent element in the Claimant’s
case has been that he was the victim of a co-ordinated strategy to find him
guilty of “gross misconduct” and thus justify dismissal. The Tribunal, for
reasons already set out, has not been able to make any such finding on the
basis of the evidence produced during the hearing of this case.
The written documentation produced to the Tribunal in relation to
investigations conducted in the wake of grievances being raised, taken
together with records of the approach adopted by various members of the
Respondent’s People Hub, do not suggest the presence of any “set agenda”.
Nor is there any clear suggestion of particular allegations being “taken at face
value” as compared to other allegations.
To the limited extent that this component of the Claimant’s case raises
differential treatment in the course of the handling of the respective
grievances, the Tribunal finds that the Claimant has established facts from
which the Tribunal could decide, in the absence of any other explanation, that
the Respondent contravened the Equality Act 2010 because of the
Claimant’s race. The matter has to be seen in conjunction with the already
discussed components of the claim relating to alleged discrimination on race
grounds, as already set out.
(8) The “threat to safety” referred to here has been addressed in relation to the
allegation that the matters complained of here amounted to unlawful
discrimination by reference to the protected characteristic of race.
The Tribunal has already set out the reasons why it has rejected the
proposition that a ‘threat to safety” was “not taken seriously by the
Respondent”.
Furthermore, the Tribunal has already made clear its view that the identified
differences in treatment and outcome arose out of judgments made by the
Respondent in relation to witness evidence considered in the course of
disciplinary/grievance investigations.
Overall, therefore, and in the absence of any other evidence plausibly raising
a suggestion that “race” may have contributed to the handling of the
Claimant’s grievance in relation to a “threat to safety”, the Tribunal finds that
the Claimant has failed to establish facts from which the Tribunal could
decide, in the absence of any other explanation, that the Respondent
contravened Section 13 of the Equality Act 2010 because of the Claimant’s
race.
(9) It is common ground, as has already been rehearsed, that Mr Armstrong
“changed” the “racial allegation” made against the Claimant during the course
of the disciplinary procedure.
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Having regard to the circumstances surrounding the allegation itself, taken
together with the method of handling the Claimant’s grievances and
disciplinary (as previously determined by Ms Tysoe) as compared with his
comparator, and having regard to the findings of the Tribunal already set out
in relation to their decision on the unfair dismissal of the Claimant, the
Tribunal is of the view that these matters call for explanation.
The Tribunal finds that the Claimant has established facts from which the
Tribunal could decide, in the absence of any other explanation, that the
Respondent contravened the Equality Act 2010 because of the Claimant’s
race.
129 So far as the allegations of unlawful direct discrimination by reference to the
protected characteristic of race are concerned, and having regard to the “two-stage
process” provided for by Section 136 of the Equality Act 2010, therefore, the
Tribunal finds that the matters raised in sections (1), (2), (4), (5), (6), (7) and (9) of
paragraph 128 of this decision are matters in relation to which the Claimant has
established facts from which the Tribunal could decide, in the absence of any other
explanation, that the Respondent contravened the Equality Act 2010 because of
the Claimant’s race. Several of the matters raised fall to be dealt with together as
constituting essentially the same allegation or separate elements of the same
allegation.
130 By way of summary, the matters in relation to which the Tribunal finds that an
explanation from the Respondent is required are: (1) the decision of Ms Tysoe
which determined that the Claimant’s grievances (with the exception of the “health
and safety” grievance) should be dealt with as part of a disciplinary process rather
than within the framework of the Respondent’s grievance procedure; (2) the
decision to refuse to make any adjustment to the personnel involved with the
disciplinary and appeal procedures in the light of the Claimant’s complaints and
observations about Ms Thomas; (3) the handling by Mr Armstrong of the
disciplinary allegation against the Claimant in respect of a “racist comment”; and
(4) the application of different sanctions (or lack of sanctions) for the Claimant by
contrast with his comparators. In relation to each of those matters the Tribunal has
found that there is a difference between the Claimant and his comparators by
reference to the protected characteristic of race and that the Claimant has been
subjected to less favourable treatment.
131 The consequence of this is that Section 136(3) of the Equality Act 2010
comes into play:
(3) But subsection (2) does not apply if A shows that A did not contravene the
provision.
In other words, in the present case the Respondent has to show that they did not
do anything which would have amounted to direct discrimination by reference to
the protected characteristic of race. It is often said that this involves a “reversal of
the burden of proof”.
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132 Only limited guidance on the application of Section 136(3) can be drawn from
the observations of the Court of Appeal in Royal Mail Group Limited v. Efobi,
[2019] EWCA Civ 18, since the appeal in that case was disposed of without need
for detailed consideration of the “second stage” of the process.
133 It is therefore necessary to return to the consideration of this issue in the
detailed judgment of the court presented by Peter Gibson LJ in Igen Ltd v. Wong,
[2005] EWCA Civ 142. In particular, it is noted that the Court of Appeal in that case
paid close attention to earlier guidance on the correct approach to be taken by
Employment Tribunals and the Employment Appeal Tribunal, contained in the
judgment of the then President of the Employment Appeal Tribunal, HHJ Ansell, in
Barton v. Investec Securities Ltd., [2003] UKEAT 18/03/0304 (what is referred
to by the court as “The Barton Guidance”.
134 In Igen the Court of Appeal reviewed the earlier authorities in detail and
confirmed that:
17. The statutory amendments clearly require the ET to go through a two-
stage process if the complaint of the complainant is to be upheld. The
first stage requires the complainant to prove facts from which the ET
could, apart from the section, conclude in the absence of an adequate
explanation that the Respondent has committed, or is to be treated as
having committed, the unlawful act of discrimination against the
complainant. The second stage, which only comes into effect if the
complainant has proved those facts, requires the Respondent to prove
that he did not commit or is not to be treated as having committed the
unlawful act, if the complaint is not to be upheld.
135 In so far as the “Barton Guidance” is concerned, the Court of Appeal set out
a (revised) version of that guidance at paragraph 76 of their judgment, in an Annex.
It is to be noted that the court was at pains to:
… repeat the warning that the guidance is only that and is not a substitute for
the statutory language.
The Tribunal has borne that warning in mind when addressing this issue in relation
to the present case.
136 Of particular relevance to the present case are paragraphs (9) – (13) of the
“Barton Guidance”, which suggest that:
(9) Where the Claimant has proved facts from which conclusions could be
drawn that the Respondent has treated the Claimant less favourably on
the ground of [race], then the burden of proof moves to the Respondent.
(10) It is then for the Respondent to prove that he did not commit, or as the
case may be, is not to be treated as having committed, that act.
(11) To discharge that burden it is necessary for the Respondent to prove,
on the balance of probabilities, that the treatment was in no sense
whatsoever on the grounds of [race], since "no discrimination
whatsoever" is compatible with the Burden of Proof Directive.
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(12) That requires a Tribunal to assess not merely whether the Respondent
has proved an explanation for the facts from which such inferences can
be drawn, but further that it is adequate to discharge the burden of proof
on the balance of probabilities that [race] was not a ground for the
treatment in question.
(13) Since the facts necessary to prove an explanation would normally be in
the possession of the respondent, a tribunal would normally expect
cogent evidence to discharge that burden of proof. In particular, the
tribunal will need to examine carefully explanations for failure to deal
with the questionnaire procedure and/or code of practice.
137 Bearing in mind the wording of the statutory provision, which requires the
Respondent to “show” that they did not contravene the provision (“direct
discrimination”, Section 13 of the Equality Act 2010) alleged, the Tribunal has
considered all of the evidence brought by the Claimant, and turns to the
Respondent to give an explanation of the matters which “in the absence of any
other explanation” could lead the Tribunal to decide that such a contravention has
taken place.
138 In the light of the findings set out above, therefore, the Tribunal finds that the
burden of proof has shifted to the Respondent to explain: (1) the decision of Ms
Tysoe which determined that the Claimant’s grievances (with the exception of the
“health and safety” grievance) should be dealt with as part of a disciplinary process
rather than within the framework of the Respondent’s grievance procedure; (2) the
decision to refuse to make any adjustment to the personnel involved with the
disciplinary and appeal procedures in the light of the Claimant’s complaints and
observations about Ms Thomas; (3) the handling by Mr Armstrong of the
disciplinary allegation against the Claimant in respect of a “racist comment”; and
(4) the application of different sanctions (or lack of sanctions) for the Claimant by
contrast with his comparators.
139 Turning first to the decision of Ms Tysoe which set the framework for
treatment of the Claimant’s grievances (other than the “health and safety”
concern), that decision by Ms Tysoe was set out in her communication dated 10
August 2017 [B/407-8] which informed the Claimant that:
“Having reviewed your case it is clear that the majority of the Grievance you have
presented to me (points 2, 3 and 4) is related to the matters that will be discussed
in this Disciplinary Hearing and is, in fact, your defence against the allegations
being made. As such, you should present this information at your forthcoming
disciplinary hearing to ensure a fair and meaningful consideration of your case,
rather than a separate grievance hearing being convened.”
140 It is noted in passing that a foretaste of this approach on the part of the
Respondent’s People Hub, of choosing to deal with what the Claimant regarded
as “grievances” in the context of what would eventually become “disciplinary”
proceedings, was already to be found in the email response of Ms Rowena Smith
on 4 August 2017 [B/319-320]. This email was in response to a variety of
substantive and procedural complaints raised by the Claimant, to the effect that
[B319]:
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“The document you sent through raises concerns that would be dealt with in
your disciplinary hearing as they are to do with the investigation. We would
not hold a separate grievance hearing for this.
…
The normal process for an investigation is to speak to all parties involved and
then witnesses. Once this has happened a decision is made on whether the
case should progress to disciplinary. I can confirm that this is the process that
has been followed. In relation to your concerns about Denise, I would suggest
you raise these as part of your case in the disciplinary hearing.
…”
141 Ms Smith did not appear before the Tribunal so that it was not possible to
hear from her whether the indication contained in her email to the Claimant
reflected her own decision-making or was guided from somebody else. The
Tribunal notes that, in the email string at B/318-9, it is clear that detailed
instructions were being given to Ms Smith by Ms Mackenzie.
142 However, the Tribunal did hear oral evidence from Ms Tysoe (who was no
longer employed by the Respondent but had been their People Director at the
relevant times in relation to this case) on Day 6 of the hearing.
143 In her witness statement Ms Tysoe claimed not to have known about the
Claimant’s case until the time of his suspension or when he began to send email
messages to her. Her position was that, prior to this, the case was being dealt with
by Ms Mackenzie and Ms Thomas, both of whom reported directly to Ms Tysoe.
Thereafter she acknowledged that she did have contact with the Claimant during
the period from mid-July 2017 through to November 2017. So far as the Claimant’s
allegations about the handling of his disciplinary and grievances were concerned,
she maintained that:
“Whilst this was clearly a very complex case, the way in which these
processes were dealt with was in line with VA's grievance and disciplinary
policies and Craig was not treated any less favorably than any other employee
would have been during these processes, for any reason.”
144 Ms Tysoe was cross-examined at length on Day 6. During the course of that
cross-examination, having accepted that she had been copied in to what she
described as the Claimant’s “escalating grievance”, she was taken to the
Respondent’s procedures – in particular, the Disciplinary Procedure [B/1324-9],
the Grievance Policy [B/1330-2] and the Anti-Harrassment and Bullying Policy
[B/1333-8] – and pressed to indicate where in those procedures she derived
support for her proposition that the Claimant had been dealt with “in line with VA’s
grievance and disciplinary policies”.
145 When questioned about the evidence set out in paragraph 7 of her Witness
Statement, Ms Tysoe became increasingly defensive, and was unable to point to
any specific provision in the relevant procedures to support her propositions. She
relied upon her comment that what happened was “in line with” the Respondent’s
policies, but conceded that this was “not in the policy”. She said that “there is a
difference”, maintaining that while “not in the grievance policy”, the policy “does
not set out every eventuality”. When asked what constituted “normal practice”, she
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first said that this would reflect “an assessment taken by the company”, which, after
being pressed further on the point, she accepted was an assessment “made by
me on behalf of the organisation”. Ms Tysoe accepted that “these practices are not
necessarily recorded”, and claimed that “the policies act as a guide”. She also
suggested that it might sometimes be necessary to “make different practice to
make these fit the specific circumstances of the case”. Finally, when taken to the
related comments in her Witness Statement at paragraph 27, Ms Tysoe was asked
again about the use of the terms “procedures” and “policies or procedures”. In
response, she said that:
“… [this is] a turn of phrase, it is ‘the way we do things’.”
146 When asked what she meant by the statement at paragraph 15 of her
Witness Statement that:
“I considered the points made in [the Claimant’s] emails carefully. However, I
remained of the view that my proposed approach was in line with our
disciplinary and grievance procedures …”
Ms Tysoe replied that:
“When I “considered” matters I thought about it and made a decision which
[the Claimant] did not like.”
147 In response to cross-examination in relation to her statement at paragraph
16 of the Witness Statement that:
“At no time did I say to [Craig] that his grievances in relation to the other
matters would not be dealt with. Quite the opposite, I assured [Craig] a number
of times that his grievances and concerns would be considered but this was
most appropriately done as part of the disciplinary process as his concerns
directly related to this and could not be adequately separated from this.”
Ms Tysoe clarified that, in using the term “would be considered”, she:
“… just meant that they would be part of the disciplinary hearing.”
However, when asked what she did to ensure that this happened, Ms Tysoe
admitted that:
“I did not follow up with [Mr Armstrong] to see if the points raised by [the
Claimant] to me had been covered off.”
148 When asked to comment in relation to the treatment afforded the comparators
(Mr Giovanni, Ms Arasp and Ms George) she told the Tribunal that she did not
know whether they had been dealt with by way of separate disciplinary hearings.
However, she acknowledged that none of the comparators had been suspended,
whereas the Claimant was “treated differently” – qualifying that latter remark with
the observation that “but the facts may have been different”. In any event, she
maintained, the Claimant was not treated differently because he was white. When
then asked directly why the Claimant was treated differently, she replied:
“I made a general assessment in the light of all the information before me that
[your] complaints should be treated as part of the disciplinary … Further
investigation could be made as part of the disciplinary process.”
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149 Ms Tysoe was then asked about the “damaged drawers” incident, and
rejected the suggestion that this concern of the Claimant had been “ignored”.
Although unable to indicate specifically where, she stated that:
“I seem to remember that the drawers incident was looked into and there was
some explanation as to why that had been the case …”
Thereafter, she explained that:
“The other issues were then passed on to be dealt with in the context of [the
Claimant’s] disciplinary process.”
When asked about the “alleged threats” against the Claimant, Ms Tysoe replied
that:
“They were in the investigation and the investigation was the subject of the
disciplinary ...”
stating that these could be dealt with as:
“… part of the mitigation.”
150 Looking in the round at these explanations for the different treatment of the
Claimant, the Tribunal finds that Ms Tysoe has failed to put forward a plausible
non-discriminatory explanation for her decisions. She set out from a position that
her decisions were “in line with” the Respondent’s grievance and disciplinary
policies. However, after that proposition was effectively demolished in the course
of cross-examination, the best she could come up with was that she had made “a
general assessment in the light of all the information before me” that the Claimant’s
complaints should be treated as part of the disciplinary.
151 No cogent evidence has been put before the Tribunal, other than the
unsuccessful attempt to hide behind the Respondent’s policies, to discharge the
burden of proof. Nor does any of the explanation put forward by Ms Tysoe come
anywhere near amounting to what might be adequate to discharge the burden of
proof on the balance of probabilities that race was not a ground for the treatment
in question.
152 That being the case, and bearing in mind the “Barton Guidance” in relation to
the application of Section 136(3) of the Equality Act 2010, the Tribunal finds that
the Respondent has failed to prove, on the balance of probabilities, that her
decisions in this regard were in no sense whatsoever on the grounds of race.
153 In consequence, Section 136(2) of the Equality Act 2010, which provides
that the Tribunal “must hold that the contravention occurred”, leads to the inevitable
conclusion that, in relation to the decision of Ms Tysoe to direct that the Claimant’s
grievances should be handled as part of his disciplinary process in the form of his
“defence against the allegations being made”, and could be dealt with as “part of
the mitigation”, the Respondent is guilty of unlawful direct discrimination against
the Claimant by reference to the protected characteristic of race.
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154 Ms Tysoe was also cross-examined in relation to the role of Ms Thomas in
the procedures relating to the Claimant. In that regard, her evidence in respect of
the grievance hearing was that:
“I considered whether the fact that [Emma] had been named in the grievance
document in relation to the handling of [Craig's] case meant she was not
suitable to be a HR representative and note taker at the grievance hearing.
However, having considered this, I saw no reason why [Emma] was not
suitable to act as note taker in the meetings and provide HR support to the
decision maker. [Emma] was not a decision maker in any of the processes and
[Craig] had actually named a significant number of the HR team in his
grievance so it was difficult to have only the support that were not connected
in any event.”
while, in relation to the subsequent grievance appeal hearing:
“I appointed James Archibald (Legal Director) to hear the grievance appeal,
also supported by Emma Thomas. I felt it was appropriate for Emma to
continue to be involved in the case given her knowledge of the now very
complex background. In my opinion, there was no conflict of interest as Emma
had not been a decision maker in any of the processes. She was purely there
to provide HR support and take notes. Emma is an experienced member of the
HR team and I had no doubt she had been, and would continue to be,
professional in dealing with this case.”
155 Ms Tysoe also made clear that she had appointed Ms Thomas “as note taker”
for the Claimant’s disciplinary appeal which was conducted by Mr Archibald.
156 When cross-examined in relation to this evidence Ms Tysoe accepted that it
was “unusual” for a member of the HR team to continue as note-taker or in some
other role when a complaint has been made. She made the point that Ms Thomas,
Ms Mackenzie, Ms Smith and Ms Asiegbu were the only members of the team with
employee relations experience, and that there was nobody else. However, when
asked about the particular role to be performed, she accepted that “of course there
were other people who could have taken notes”, but maintained that she “thought
it useful to have somebody who had had constant overview”.
157 The Tribunal has already set out its findings in relation to these matters in the
course of giving its reasons for its finding that the Claimant was unfairly dismissed
by the Respondent. That forms the background to consideration of the Claimant’s
allegations that what took place constituted unlawful direct discrimination by
reference to the protected characteristic of race.
158 Having regard to the evidence given by Ms Tysoe, the Tribunal – as has
already been set out – finds that the confidence in Ms Thomas that:
“Emma is an experienced member of the HR team and I had no doubt she had
been, and would continue to be, professional in dealing with this case …”
was badly misplaced. The covert recording also made clear to the Tribunal that the
proposition set out in Ms Tysoe’s communication of 10 August 2017 to the effect
that:
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“Emma will act as note taker in both hearings and will provide advice on
process and employment legislation rather than to influence the outcome in
any way …”
turned out to constitute nothing more than an empty aspiration in relation to the
behaviour of Ms Thomas.
159 That having been said, there is nothing to suggest to the Tribunal that Ms
Tysoe made her decisions concerning the involvement of Ms Thomas other than
in good faith. The Tribunal is satisfied that there is no suggestion of anything
putting Ms Tysoe on notice of a risk in relation to Ms Thomas in that regard. Nor
could Ms Tysoe have been aware at the time of making her decisions of the extent
to which Ms Thomas was eventually established to have been prepared to “play
fast and loose” with due process.
160 That being the case, the Tribunal is satisfied that the Respondent has put
forward cogent evidence to explain the appointment and continuing involvement of
Ms Thomas and that the explanation given by Ms Tysoe in that regard is adequate
to discharge the burden of proof on the balance of probabilities that race was not
a ground for the decisions in relation to the involvement of Ms Thomas in the
various stages of the procedures under which the Claimant’s issues were being
dealt.
161 In respect of the Claimant’s allegations concerning the participation and
behaviour of Ms Thomas in his grievance and disciplinary procedures, therefore,
the Tribunal finds that nothing in this context renders the Respondent responsible
for unlawful discrimination by reference to the protected characteristic of race.
162 The Tribunal now turns to the handling by Mr Armstrong of the Claimant’s
disciplinary process in relation to an alleged “racist comment”. Mr Armstrong was
cross-examined on the afternoon of Day 4 and the morning of Day 5. The Tribunal
reminded itself of the content of the covert recording of the exchanges between Mr
Armstrong and Ms Thomas in the course of the disciplinary hearing held on 22
August 2017.
163 The original allegation contained in the suspension letter backdated 17 July
2017 was expressed in terms that:
“… you have made an inappropriate comment of a racist nature to Roya Arasp”
Thereafter, in the “Invite to Disciplinary Meeting” letter dated 3 August 2017 the
allegation was set out in terms that:
“… you made a comment of a racist nature on 3
rd
June: “We had better watch out
in the office, you’re Iranian aren’t you?””
164 In the letter dated 21 September 2017 confirming that the Claimant had been
summarily dismissed [B/653A-656] Mr Armstrong set out the allegation in terms
that “… you made a comment of a racist nature on 3 June …”, but then went on to
state [B/654] that:
“… the date of 3 June is an error and should have read after the terrorist
attacks on 3 June.”
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165 Mr Armstrong told the Tribunal during the course of his cross-examination
that the Claimant attended the disciplinary hearing equipped solely to deal with the
allegation that a comment had been made on 3 June 2017. The notes drawn up to
reflect what happened during that meeting also demonstrate this to have been the
case.
166 During the course of his cross-examination Mr Armstrong was repeatedly
questioned in relation to how he had felt justified in what he described as
“reconfirming the allegation”. He accepted that he “changed the date”, but insisted
that there was a “mistake in the allegation”. His explanation for this was that,
“although the original allegation was 3 June”, nevertheless “…we knew from
Roya’s grievance that the allegation was not that specific – ‘shortly after’…”. On
that basis he maintained that “I stand by my conclusion that the Claimant made
the comments”.
167 However, Mr Armstrong was then asked whether he had taken steps to clarify
or confirm what he claimed to be “the correct date”, to which his response was that
he:
“… did not go back to Roya and Darrell about the date.”
168 When it was then put to him that his investigation was “not complete”, Mr
Armstrong replied that:
“It was. I did not need to go back as the date was clear.”
His justification for this proposition was that:
“Roya’s grievance did not put a specific date.”
Nothing more was said other than that Mr Armstrong felt that he:
“… had enough to decide on a balance of probabilities that [the Claimant] had
made the statement.”
169 Mr Armstrong accepted in cross-examination that he knew that the Claimant
had lodged a grievance that Ms George had made a racist comment to him, and
that Ms George “accepted that she made the comment”. He also agreed that he
knew that the Claimant is white and that Ms George is black.
170 Given this account of matters in Mr Armstrong’s evidence the Tribunal has
considered the “Barton Guidance” while asking itself whether Section 136(3) of the
Equality Act 2010 has been satisfied by the Respondent.
171 In the unanimous view of the Tribunal the Respondent has failed to prove, on
the balance of probabilities, that the treatment of the Claimant in respect of the
handling of the disciplinary procedure and the “reconfirmation” (changing) of the
date of the alleged racist-comment incident was in no sense whatsoever on the
grounds of race.
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172 Mr Armstrong’s justification for his action was shown during the course of
cross-examination to have amounted to little more than a dogged insistence that
the allegation could relate to a time at which the Claimant was present in the club
with Ms Arasp and Mr Giovanni. The more he was pressed on the matter, the more
dogged that insistence became. Indeed, when challenged as to why he had not
gone back to the complainant and her alleged witness to clarify or confirm the
alleged date, Mr Armstrong insisted that he “did not need to go back as the date
was clear”.
173 Having overcome, to his own satisfaction, the hurdle of the inconsistency in
the alleged dates, Mr Armstrong then felt confident in proceeding to the proposition
that he “…had enough to decide on a balance of probabilities” that the Claimant
had made the statement.
174 Once again, this involved selecting one version of events as compared with
another, but with no clear explanation as to what justified the selection of the
version put forward by Ms Arasp. The Tribunal particularly notes that, in the course
of making that choice, Mr Armstrong chose, without more, to discount the evidence
contained in his disciplinary hearing bundle concerning Mr Cawthorn’s account of
“threats” directed to the Claimant, and what was consistently maintained by the
Claimant to have been “collusion” between the three (non-white) employees who
lodged formal grievances against him. This information had been submitted to Ms
Mackenzie in writing by Mr Cawthorn, the Respondent’s Service Manager at the
Mayfair club, notwithstanding Mr Cawthorn’s declaration [B/362C] that:
“I already feel threatened as they will know I've said this now when it comes up. I
don't want to be fearing for my own safety when going to and from work. I feel
that all the threats that have been said had a lot of truth and intention behind
them.”
and his subsequent protestation [B/362AAA] that:
“Regarding the Roya situation I feel it needs to be investigated. But I also know
that if anything does come back to me from her and I don't feel safe then I
would no longer be able to work in that club, as I don't want anything
happening to me.”
175 In particular, the reported propositions that Ms Asarp had made statements
in terms of:
“… don't worry Craig will get what’s coming to him …”
and
“Craig is fucked because 4 people are putting grievances against him for
racism and bullying.”
had been reported by Mr Cawthorn directly to Ms Mackenzie, were known to Ms
Thomas, and were set out in the email chains included in Mr Armstrong’s
disciplinary hearing bundle, yet had not been followed up either with Ms Cleopatra
Bartley or with Ms Arasp by the time of the Claimant’s disciplinary hearing and
summary dismissal. The matters had also been vividly set out at length by the
Claimant in his communication of 7 August 2017 to Ms Tysoe [B/373-387], a full
fortnight before the disciplinary hearing.
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176 When taken to the notes of an “Investigation Meeting” conducted by Ms
Mackenzie with Mr Cawthorn on 25 July 2017 [B/262], Mr Armstrong first told the
Tribunal that he could not recall if Ms Mackenzie had investigated Ms Arasp for
this, and confirmed that he had not for his part investigated the threat with Ms
George.
177 He then said that he did not recall if the material was in his bundle of hearing
documents and said that he did not recall seeing [the document at B/362]. Mr
Armstrong was then asked by the Employment Judge to look at page B/913 of the
hearing bundle, which set out a list of documents prepared for the disciplinary
hearing to be conducted by Mr Armstrong. That list included reference to
“Additional Documents”, including “4. Investigation meeting Michael Cawthorn 25
th
July”.
178 On the resumption of cross-examination, and after being taken to a note of
the articulation by Ms George of her grievance against the Claimant [B/1076], Mr
Armstrong was directed to the account of Ms George accepting that she had “used
her race” in relation to the Claimant [B/1078]. Mr Armstrong was asked whether
there had been any investigation into that admitted matter, and he responded that
there was no reference there to Ms Mackenzie investigating the threat. When
asked whether he had himself taken steps to investigate, Mr Armstrong responded:
‘I did not feel it needed investigation.’
Mr Armstrong was then asked whether it was not surprising that a:
‘… serious gross misconduct allegation was not investigated …’
to which he replied:
“It did not come across that way.”
179 The Tribunal reminds itself that, while considering the “reason or principal
reason” for the dismissal of the Claimant in the context of the decision of the
Tribunal that the Claimant was unfairly dismissed by the Respondent, the Tribunal
has explicitly rejected the evidence of Mr Armstrong, given during the course of his
cross-examination in response to a question from the panel, as regards his
reasons for deciding to dismiss the Claimant.
180 Looking in the round at Mr Armstrong’s explanations for his conduct of the
disciplinary procedure and his decision to dismiss the Claimant, the Tribunal finds
that there has been a failure to put forward a plausible non-discriminatory
explanation for what took place. Mr Armstrong’s evidence was unsatisfactory in
various parts: He failed to provide a cogent non-discriminatory explanation as to
why he chose to “reconfirm” the allegation in relation to the “racist comment”; He
was unable to explain or justify the failure to investigate Ms George’s admitted use
of language which the Claimant had characterised in his grievances as a “racist
comment”; and he was unable to provide a satisfactory explanation as to why the
alleged threats by Ms Arasp – which had been reported by Mr Cawthorn, who was
described by Mr Armstrong as “a senior manager at that time” – were not followed
up and accorded serious investigation. Nor was Mr Armstrong’s performance as a
witness enhanced by his claimed inability to recall whether he had been in
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possession of key documents during the course of the disciplinary procedure
leading to the summary dismissal of the Claimant.
181 It follows that the Tribunal finds insufficient in Mr Armstrong’s evidence to get
anywhere near what would be adequate to discharge the burden of proof on the
balance of probabilities that race was not a ground for the treatment in question.
182 That being the case, and bearing in mind the “Barton Guidance” in relation to
the application of Section 136(3) of the Equality Act 2010, the Tribunal finds that
the Respondent has failed to prove, on the balance of probabilities, that Mr
Armstrong’s handling of the disciplinary procedure against the Claimant and his
decisions in this regard were in no sense whatsoever on the grounds of race.
183 In consequence, Section 136(2) of the Equality Act 2010, which provides
that the Tribunal “must hold that the contravention occurred”, leads to the inevitable
conclusion that the Respondent is guilty of unlawful direct discrimination against
the Claimant by reference to the protected characteristic of race.
184 The Tribunal turns, finally, to brief mention of the differential treatment of the
Claimant when contrasted with his comparators in relation to the sanctions (or non-
sanctions) applied in their respective cases.
185 Once again, it is common ground that Mr Giovanni was not dismissed before
he resigned, and that neither Ms Arasp nor Ms George was subjected to
disciplinary sanctions – still less summary dismissal – in respect of the matters
raised in the Claimant’s grievances. The Claimant, by contrast, was dismissed and
subjected to less favourable treatment than his comparators.
186 It has also been established that there is a difference of racial characteristic
as between the three comparators (all of whom are black) and the Claimant (who
is white).
187 The thrust of the Claimant’s complaints has been directed towards his
dismissal. This was said by the Respondent to have been by reason of “gross
misconduct”. The dismissal letter of 21 September 2017, drafted over the signature
of Mr Armstrong, concluded that:
“I believe there is evidence to suggest you made a racist comment to Roya
and have bullied Jannett. In relation to Roya and Darrell I believe that the PIP
process was not managed appropriately and this isn’t acceptable for a General
Manager of your experience. I therefore believe that, on the balance of
probabilities, you did make a racist comment towards Roya and did bully
Jannett.”
188 When cross-examined in relation to his reasons for dismissal, Mr Armstrong
conceded that “bullying” was not one of the allegations set out in the “Invite to
Disciplinary Meeting” dated 3 August 2017 or recited at the beginning of his
dismissal letter of 21 September 2017.
189 Having heard Mr Armstrong’s evidence under cross-examination on the
afternoon of Day 4 of the hearing in relation to the “4 examples” raised as
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constituting “bullying”, and having considered this evidence in the context of the
Respondent’s procedures as set out in their “Anti-Harassment and Bullying
Procedure” [B/1333-1338, with particular reference to B/1335], the Tribunal is
satisfied that Mr Armstrong failed to demonstrate that he was doing other than
seeking by whatever means to establish a ground of “gross misconduct” against
the Claimant by reference to the Respondent’s Anti-Harassment and Bullying
Procedure.
190 Even on his own evidence Mr Armstrong did not uphold two of the four
examples raised, while the allegation of “treating Ms George unfairly” resulted in
findings that [B/655]:
“During my review of the case and after speaking to you, I found that you do
require Jannett to email you after her club walk arounds. When speaking to
you there was (sic) some inconsistencies as to the reason for asking Jannett
to do this.
I understand why you asked Jannett to get the certificate from the Training
team however, as was explained to you by Jannett, there wasn’t a certificate
that could be issued. In reviewing the investigation notes from Chris Welch, it
is clear no certificates are issued. I believe you should have gone to Chris or
the team directly as they normally provide the information to the Operations
Manager or General Manager.
In relation to excluding Jannett from conversation, I feel that there is
inconclusive evidence, however, I don’t believe you converse with her in a
friendly manner, just professional, relying heavily on email to communicate
with her.
Finally, there is the rejection of Jannett’s holiday. I accept that you technically
followed process, however, I don’t believe you exhausted all options to find a
solution to letting Jannett have the holiday in what are extenuating
circumstances.”
191 Meanwhile, the allegation of seeking to influence the outcome of a
disciplinary case against Ms George resulted in a finding that:
“From reviewing the evidence given to me as part of the investigation process
and on speaking by Tristan Laubscher, I feel there is evidence, by way of text
messages between you and Tristan and Tristan and Whynny’s statements, to
support the allegation that you wanted the outcome of the disciplinary hearing
to be a dismissal. This would support Jannett’s assertion that you wanted
Jannett out of her job.”
192 Since it was conceded that the text messages were between the Claimant
and Mr Laubscher, and would not have been known to Ms George, it is difficult to
understand how this could amount to “bullying” within the framework of the
Respondent’s Anti-Harassment and Bullying Policy”, since Ms George was not the
“recipient” of these, such as to give rise to the consequences set out in that policy.
193 When pressed on these points, all that Mr Armstrong would do was to repeat
his view that:
“I believe on the basis of all of these that [the Claimant] bullied Ms George.”
194 In summary, no cogent evidence was presented to justify or explain the
appearance at the stage of the disciplinary hearing of a charge of “gross
misconduct” by reason of “bullying”. Mr Armstrong struggled under cross-
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examination to establish his view that there had been “bullying” within the
Respondent’s procedures. In the light of his performance under oath the Tribunal
has formed the view that Mr Armstrong – as with other parts of his activity in this
context – was content to proceed on a highly selective basis with a pre-determined
view that the Claimant should be dismissed for “gross misconduct”. As Mr
Armstrong put it himself:
I am not saying I “ignored” information, but there was a lot of it. Clearly I did
not use all of it.
195 Even more problematic was the reliance upon the alleged “racist comment”
as a ground for dismissal by reason of “gross misconduct”. The Tribunal has
already set out its findings in relation to Mr Armstrong’s decision to “reconfigure”
the allegation as regards the date of the alleged incident. The Tribunal has also
expressed its view in respect of Mr Armstrong’s decision that there was no need
to check with the complainant and her alleged witness once the confusion in
relation to the date of the alleged “racist comment” had been brought to light. In
both respects the Tribunal has found that the Respondent has failed to put forward
a non-discriminatory explanation of those actions which would prove, on the
balance of probabilities, that Mr Armstrong’s handling of the disciplinary procedure
against the Claimant and his decisions in this regard were in no sense whatsoever
on the grounds of race.
196 In so far as the Respondent purported to dismiss the Claimant for “gross
misconduct” on the basis of (1) the making of a “racist comment” and (2) “bullying”
of Ms George, therefore, the Tribunal finds, bearing in mind the “Barton Guidance”
in relation to the application of Section 136(3) of the Equality Act 2010, that the
Respondent has failed to prove, on the balance of probabilities, that such a
purported dismissal was in no sense whatsoever on the grounds of race. This
applies to the process leading to that purported dismissal and the reasoning set
out in the letter dated 21 September 2017.
197 In consequence, Section 136(2) of the Equality Act 2010, which provides
that the Tribunal “must hold that the contravention occurred”, leads to the inevitable
conclusion that the Respondent is guilty of unlawful direct discrimination against
the Claimant by reference to the protected characteristic of race.
198 For the reasons set out above the Tribunal finds that the Respondent
has committed unlawful acts of discrimination against the Claimant by
reference to the protected characteristic of race.
DISPOSAL
199 In the light of the above the unanimous judgment of the Tribunal is that:
(1) the Claimant was unfairly dismissed by reason of having made a
protected disclosure;
(2) the Claimant was unfairly dismissed by reference to Section 98(4) of the
Employment Rights Act 1996;
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(3) the Claimant’s claim alleging unlawful discrimination by reference to
the protected characteristic of age is dismissed;
(4) the Claimant’s claim alleging unlawful discrimination by reference to
the protected characteristic of sex is dismissed; and
(5) the Claimant was unlawfully discriminated against by reference to the
protected characteristic of race.
200 A hearing will be listed for a future date to determine the remedies in relation
to claims (1), (2) and (5).
Employment Judge Professor A C Neal
Date 15 June 2021
REASONS SENT TO THE PARTIES ON
.15/06/2021.
For the Tribunal Office
