BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gad v UK Power Networks (Operations) Ltd (RACE VICTIMISATION) [2025] EAT 84 (10 June 2025)
URL: http://www.bailii.org/uk/cases/UKEAT/2025/84.html
Cite as: [2025] EAT 84

[New search] [Printable PDF version] [Help]

Neutral Citation Number: [2025] EAT 84
Case No: EA-2023-000080-DXA

EMPLOYMENT APPEAL TRIBUNAL

Rolls Building
Fetter Lane, London, EC4A 1NL
10 June 2025

B e f o r e :

HIS HONOUR JUDGE JAMES TAYLER
____________________

Between:
MR KWABLA GAD
Appellant
- and -

UK POWER NETWORKS (OPERATIONS) LTD
Respondent

____________________

ANTHONY KORN (instructed by Chancery West Law Solicitors) for the Appellant
JOHN-PAUL WAITE (instructed by UK Power Networks (Operations) Limited) for the Respondent

Hearing date: 20 May 2025

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    SUMMARY

    RACE VICTIMISATION

    The Employment Tribunal did not err in law in dismissing a complaint of victimisation.

    HIS HONOUR JUDGE JAMES TAYLER
    The Issue
  1. This appeal raises the question of whether the Employment Tribunal should have inferred victimisation because of what was said about matters including "scars" left by a previous Employment Tribunal claim in an email, that was not relied on as a protected act or a detriment subject of a specific complaint, but was said to be of evidential significance.
  2. The Employment Tribunal Judgment

  3. This appeal is against a judgment of the Employment Tribunal, Employment Judge King sitting with members, after a hearing from 10 to14 October 2022. The judgment was sent to the parties on 23 December 2022.
  4. The respondent is responsible for the physical distribution of electricity to the Eastern, Southeastern and London areas of the UK.
  5. The claimant commenced employment with the respondent in July 2008. The claimant worked as a control engineer.
  6. In January 2016, the claimant brought his first Employment Tribunal claim which included a complaint of race discrimination. The first claim was settled in January 2018. It was a protected act.
  7. On 21 February 2018, David Child, Network Control Manager, sent an e-mail to HR saying that the claimant was becoming extremely difficult to manage. This is the email the claimant asserts the Employment Tribunal should have relied upon to infer victimisation. As it is central to the appeal, I will set it out in full:
  8. As previously discussed we are getting to the point where Mr Gad is becoming extremely difficult to manage.
    I don't think he understands that he has become a problem because he cannot see any faults in his own behaviour.
    However in the past month I have had one Network Manager inform me that he will just retire if Kwabla was placed on shift with him due to Kwabla's past behaviours. In the end Kwabla didn't apply for that position so it wasn't an issue, if Kwabla had applied for the position he would probably have taken it (I had in fact encouraged him to do so after he had indicated he was tempted as it would have suited overall manning issues) but in the end he did not.
    Other managers are reluctant to deal with issues that he presents, again they know he reacts angrily and they are also afraid because he makes notes in his book which we now know can then be bought up years later with accusations, even when the comments are taken out of context of where they were first made.
    His relationship with his colleagues has completely broken down (in terms of trust) although again, I don't think he understands this. This is now a safety issue as I have been told that his colleagues are saying that they will not report any errors they may find he has made because they believe that if they do they will instantly be accused of having
    nefarious motives and many of them believe that at some point he will be taking one of them back to court. I understand their fear, but of course I have to remind them that they have certain duties and they must overcome this fear and do what they must do.
    Kwabla has mentioned to me that people fall quiet when he gets close to them, but he doesn't seem to understand that they all know that he regularly writes anything that is said down in his book where it may come back to haunt them in four or five years time when they have no memory of their words but they could be taken entirely out of context. I have never mentioned the book to him, but I am told that whenever it is mentioned to him he reacts angrily and starts accusing people of reading it.
    I try and be fair and open and honest with Kwabla, as I am with everyone, but even I am aware that anything I say will be written down and potentially used against me in an inaccurate and misleading manner later.
    I am now also in a no win position with his colleagues. They believe that we all operate in fear and thus any future opportunities he gets will be down to our fear of him rather than any merit he possesses. Also - it is clear that he wants to become a 132Kv control engineer and a Network Manager and as it stands he displays qualities that mean
    he is profoundly unsuited to the role. He is too thin skinned and takes everything personally and also tends to react poorly when under pressure. No doubt I, or we as a company, will face future legal action if he doesn't get promoted to where he wants to be. Again -he has a profound lack of understanding of the way promotion should work
    through the company (on merit and interview) and just believes he should get whatever opportunities are about because he has better paper qualifications that many of his colleagues.
    He also doesn't help the working atmosphere as he takes offence at things that don't make sense to his colleagues.
    A recent example being a picture where the face of one of his colleagues has been superimposed onto the face of a sitting dog with a small comment about training on the bottom. This was nothing to do with Kwabla and the joke was entirely about the colleague getting the training he wanted - and indeed it was that colleague that had the picture on the wall where it had sat for well over a year when Kwabla suddenly decides he is offended by it (although doesn't explain why) and demands it is removed -which it has been.
    All of this is creating a corrosive atmosphere around him which I don't think he really understands or recognises, and much as we all try and move forwards from the court case it has left a scar which he is not helping to heal. [emphasis added]
  9. The claimant made five significant errors between April 2018 and February 2020. The claimant was placed on a "stage A" poor performance plan in April 2020 (the first detriment). The claimant relied on the same detriments for his complaints of direct race discrimination and victimisation.
  10. The claimant alleges that on 4 May 2020 he was denied the opportunity to obtain a full-shift position on the SPN network (the second detriment). The claimant was informed on 25 May 2020 that the role had been given to James Wright who is white British.
  11. On 15 June 2020, the claimant asserted that he was denied an opportunity to train on 132kv on the EPN network, an opportunity that was given to Ian Starbrook who is white (the third detriment). This occurred while the claimant's poor performance was being assessed. The Employment Tribunal accepted Mr Child's evidence that working at 132kv involved an additional level of responsibility. An error can interrupt the power supply to large towns, and there are stringent safety requirements. Mr Child gave evidence that he did not consider the claimant was suitable to progress to the role until he had demonstrated a sustained period of error free work.
  12. On 14 July 2020, the claimant raised a formal grievance concerning his career progression and promotion opportunities. The claimant alleged race discrimination and victimisation. This was also a protected act, albeit not relevant to the victimisation complaints because the detriments predate it.
  13. The claimant submitted his second claim to the Employment Tribunal on 15 September 2020 bringing complaints of direct and indirect race discrimination, and victimisation.
  14. The claimant's grievance was dismissed by letter dated 8 January 2021. The claimant appealed on 22 January 2021. The appeal was dismissed on 20 May 2021.
  15. The Employment Tribunal made detailed findings of fact. The Employment Tribunal first considered whether the 21 February 2018 email was of significance in determining the direct race discrimination complaint as being something alone, or together with other factors, that could shift the burden of proof:
  16. 118. We do not place the same interpretation on the email of 21st February 2018 as the claimant's counsel invites us to do so in that it is stero-typing the claimant as an angry black man. The claimant was clearly angry before the Tribunal and very passionate about his cause. The email does accurately record the claimant's inability to take on board anything he perceives as criticism. We consider this email more pertinent to the issues of victimisation as set out below and not enough to tip the burden alone or collectively.
  17. There is no error in the analysis of the Employment Tribunal.
  18. The Employment Tribunal then considered whether the detriments were done because of race, in the sense that it was a material factor in the claimant's treatment. The Employment Tribunal held of the first detriment:
  19. 123. There is no evidence to suggest race played any part in the categorisation of the errors and at the end of the day the tribunal was satisfied the claimant made mistakes or errors of judgement even if he will not himself accept this. We consider that with both the claimant and Marius it was within the respondent's gift to place either of them on a performance improvement plan earlier than they actually did but we accept Mr Child's evidence that he had never been in this situation before with being faced with that many errors.
    124. We conclude that the reason why the claimant was subject to a performance improvement plan was because he had made so many errors. This was the reason why the claimant was subject to a performance improvement plan and this was not because of the claimant's race. Other employees who did not share the claimant's race but shared his error rate were subject to the same treatment.
    125. We therefore find that the claimant was not less favourably treated because of his race by being placed on a performance improvement plan. [emphasis added]
  20. The Employment Tribunal held of the second detriment:
  21. 127. Given our findings of fact, the claimant did not apply for a full shift position on the EPN network on a secondment basis. We do not accept that the claimant had asked for a full shift position or in any way indicated that he was willing to do this now, to enable him to be considered when the opportunity arose. We found that we preferred the respondent's evidence that the claimant had declined this on two previous occasions. The claimant was happy to receive the full shift pay whilst on what daytime hours. The claimant took no issue not working full shift at the time, what he really took issue with was that he had still not been trained at 132kv on the SPN network.
    128. James Wright was offered the full shift position but we accepted the evidence of Mr Child that he did not know the claimant wanted to work full shift so he was not offered it. Further, we noted that the email of 25th September 2017 that the claimant had not replied to, impacted several of the decisions the claimant has subsequently complained about. James Wright applied and was trained on the 33kv SPN network as a result and had indicated that he was willing to work a full shift and wanted to progress to the 132kv as part of that process. The claimant had not so indicated this save for it was well know that he wanted to train on 132kv.
    129. Taking into all the circumstances, we do not consider that the claimant has raised a prima facie case of direct discrimination to shift the burden onto the respondent. Whilst the claimant was more experienced than James Wright when he was offered full shift position, we have not found any evidence that the claimant requested this or indeed indicated that he was willing to work full shift position on the contrary he declined it on two occasions.
    130. Whilst it is a difference of treatment, it is not clear how this was less favourable. Further, given James Wright's application indicated that willingness even if the claimant had raised a prima facie case this combined with the fact the claimant had not indicated his willingness to work full shift would have given the respondent a non-discriminatory reason for the less favourably treatment.
    131. We conclude that the reason why the claimant was not offered a full shift position was because he had not indicated a willingness to work it. This was the reason why the claimant was not offered a full shift position and this was not because of the claimant's race.
    132. We therefore find that the claimant was not less favourably treated because of his race by not being offered a full shift position. [emphasis added]
  22. The Employment Tribunal held of the third detriment:
  23. 137. It is a matter of common sense in any industry that an employee who is currently on a performance improvement plan who has made a series of mistakes should not be put forward to train at a higher level. Particularly in this role given the consequences risks of operating at higher level when the claimant has failed to demonstrate at that time that he had the competence to operate at 33kv. Some of his errors were so basic that it caused the respondent to wonder if there was an underlying cause for this and to refer him to OH and to ensure he had basic knowledge by resitting tests. At that time the claimant had made 5 errors within 22 months and in any industry it is self evident that an employer would not further train an employee at a higher level when they are not performing at the current level. To suggest otherwise indicates a lack of insight on the claimant's part.
    138. Further, the last employee to be trained at this level was in fact of the same race as the claimant which would indicate that the claimant was not denied this opportunity due to his race. He needs to more closely examine his own conduct as to why this would be the case.
    139. Whilst not a comparator relied on by the claimant, we have also given consideration to Brian Little who started the training in 2019. He was white British but this is not something the claimant expressly complains about. We have considered if this provides any additional evidence to the wider picture or shifts the burden in any way. We considered the reason why he was offered the opportunity and we have accepted the respondent's evidence that this was as a result of his application in response to the email of 25th September 2017 as he was one of two individuals who were identified as suitable for the 132kv as part of that process.
    140. In essence there are three candidates who have been put forward for the training within the window of 2018 - 2020. Two on the SPN and one on the EPN network. The later for all the reasons set out above should be discounted but of the two opportunities on the SPN, one was given to a white British individual and the other one was given to a black African individual. At the time of the 2019 opportunity, the claimant already had a significant error rate as he had four errors by November 2019. The 2019 incident was not pleaded and in any event would be significantly out of time.
    141. We conclude that the reason why the claimant was not offered an opportunity to train at 132kv network in June 2020 was because he was less qualified, it was on a different network he had no desire to work on and even overcoming these issues, his error rate would have precluded him for being trained to a higher level. This was the reason why the claimant was not offered the opportunity to train at 132kv and this was not because of the claimant's race.
    142.We therefore find that the claimant was not less favourably treated because of his race by not being offered him the opportunity to train at 132kv in June 2020. [emphasis added]
  24. The claimant has not appealed against the dismissal of the complaints of direct race discrimination. I have set out the analysis of the Employment Tribunal in detail because it demonstrates the care with which the reason for the alleged detrimental treatment was considered.
  25. The Employment Tribunal also considered the potential significance of the 21 February 2018 email when analysing the complaint of victimisation:
  26. 166. There were two particular matters which troubled the tribunal when considering the victimisation complaint and that is specifically the e-mail to HR written by Mr Child on 21st February 2018 referring to a scar being left by the previous proceedings. This was raised by Mr Child again his interview with Mr Blackburn who was investigating the grievance when he referred to the scar tissue but he was not able to talk about. We considered this pertinent to the victimisation claim.
    167. However, the contents of the e-mail of 21st February 2018 cannot be taken out of context and parts taken in isolation. It was clear when reading the full content of the e-mail that his colleagues felt that around the claimant following the tribunal proceedings, they were in essence walking on egg shells but that Mr Child felt that they needed to manage the situation and just get on and do the job irrespective of the consequences. There is also evidence within the body of the e-mail that the claimant was being encouraged by Mr Child to apply for a position even in the face of adversity from colleagues. [emphasis added]
  27. The Employment Tribunal reminded itself of important aspects of victimisation complaints:
  28. 169. The tribunal reminds itself that victimisation need not be consciously motivated. If the respondent's reason for subjecting the claimant to a detriment was unconscious it could still constitute victimisation as per Nagarajan. The protected act need not be the main or only reason for the treatment. It does however need to be the real reason. The reason why. We must ask ourselves why the claimant was subject to a performance process, not been offered a full shift position or not offered the opportunity to train on 132kv and what consciously or unconsciously was the reason for that.
    170. It is clear from the evidence that Mr Child knew of the previous tribunal proceedings. Was this the reason why the claimant was subject to those detriments? There must be a link.
    171. The claimant's counsel helpfully reminded us in his submissions of the tests in Igen v Wong and Nagarajan that the protected act must have a significant influence which is more than trivial, be the cause, the activating cause, a substantial and effective cause, a substantial reason or an important factor. We have this in mind when considering the reason why the claimant was subject to the matters he complains of: [emphasis added]
  29. While the Employment Tribunal referred to the protected act being the reason it is clear from reading the passage as a whole that it was well aware that the protected act need only be "a substantial and effective cause" or "a substantial reason or an important factor". There is no error in the Employment Tribunal's direction to the law.
  30. In respect of the first detriment, the Employment Tribunal held:
  31. 172. For all the reasons set out above in paragraphs 114-123, we do not accept that the protected act was the reason why. Instead for the reasons set out when considering the direct discrimination case, we consider the reason why (and to be clear the sole reason why) the claimant was placed on the performance plan was his error rate and that he did make mistakes and that this was a genuine reaction to those mistakes. Even if the claimant had not brought a claim previously he did commit those errors and that is why he was placed on the performance plan. [emphasis added]
  32. Of the second detriment the Employment Tribunal held:
  33. 173. For all the reasons set out above in paragraphs 127-130, we do not accept that the protected act was the reason why. Instead, for the reasons set out when considering the direct discrimination case, we conclude that the reason why the claimant was not offered a full shift position was because he had not indicated a willingness to work it and he declined it. This was the reason why the claimant was not offered a full shift position and this was not because the claimant had done a protected act. James Wright was selected via the interview process and in the circumstances where the claimant had declined to work full shift this was the reason. [emphasis added]
  34. In respect of the third detriment the Employment Tribunal held:
  35. 174. For all the reasons set out above in paragraphs 134-138, we do not accept that the protected act was the reason why. Instead for the reasons set out when considering the direct discrimination case, we conclude that the reason why the claimant was not offered an opportunity to train at 132kv network in June 2020 was because he was less qualified, it was on a different network he did not want to work on and even overcoming these issues, his error rate would have precluded him for being trained to a higher level. This was the reason why the claimant was not offered the opportunity to train at 132kv and this was not because of the claimant having done a protected act. [emphasis added]

    The law

  36. Section 27 Equality Act 2010 ("EQA") defines victimisation and provides, so far as is relevant:
  37. 27 Victimisation
    (1) A person (A) victimises another person (B) if A subjects B to a detriment because—
    (a) B does a protected act, or
    (b) A believes that B has done, or may do, a protected act.
  38. Section 136 EQA makes provision for the burden of proof in discrimination complaints, including complaints of victimisation:
  39. 136 Burden of proof
    (1) This section applies to any proceedings relating to a contravention of this Act.
    (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
    (3) But subsection (2) does not apply if A shows that A did not contravene the provision.
  40. The burden of proof may be of considerable importance in determining some claims, but not necessarily so. In Hewage v Grampian Health Board [2012] UKSC 37 Lord Hope DPSC stated:
  41. … it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.
  42. It is important not to adopt a mechanistic approach to the burden of proof but to analyse the facts with care to consider whether it may be appropriate to draw an inference. This is a subtle business. There is still much to be gained by returning to some of the early authorities about drawing inferences that predate statutory provision for a shift in the burden of proof. Mr Korn, for the claimant, relied particularly on the wise words of Sedley LJ in Anya v University of Oxford and another [2001] EWCACiv 405, [2001] ICR:
  43. 11. … Very little direct discrimination is today overt or even deliberate. What King and Qureshi tell tribunals and courts to look for, in order to give effect to the legislation, are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by racial bias. …
    The choice between these two comparably well qualified candidates depended entirely on how the panel viewed their personal and professional qualities. Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyncratic factors, especially where proper equal opportunity procedures have not been followed. If these are to any significant extent racial factors, it will in general be only from the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge. This court and the Employment Appeal Tribunal have said so repeatedly and have required tribunals to inquire and reason accordingly. …
    25. To assert this is not to demand, as Mr Underhill sought to suggest it did, an infinite combing by the industrial tribunal through endless asserted facts or an over-nice appraisal of them. It is simply that it is the job of the tribunal of first instance not simply to set out the relevant evidential issues, as this industrial tribunal conscientiously and lucidly did, but to follow them through to a reasoned conclusion except to the extent that they become otiose; and if they do become otiose, the tribunal needs to say why….
    28 … The only proven act of potential racial discrimination is not the final allocation of the research post: it is, in Dr Anya's contention, that event in the context of the series of prior events which, as the appeal tribunal acknowledges, have been neither proven nor disproven. There is no difficulty in seeing what facts, if they were found, could make out the applicant's case. Experience of other cases indicates, speaking generally, that the allegations made by Dr Anya are not inherently improbable; nor, if his factual allegations are made out, are the reasons for them necessarily speculative. What were lacking were the industrial tribunal's conclusions on the factual issues essential to its conclusion and, in consequence, a proper and rounded determination of the single legal matter of complaint, the selection of Dr Lawrence in preference to the applicant. [emphasis added]

    Grounds of Appeal and analysis

    Ground 1

  44. The claimant asserts:
  45. (1) The ET erred in law in that it failed to consider properly or at all and/or failed to determine whether Mr Child's email dated 21 February 2018 to respondent's Human Resources, in which he complained about the claimant, amounted to evidence of victimisation, contrary to Section 27 of the EqA 2010 and as a consequence failed to determine what part if any the said email played in the determination of the Appellant's substantive complaints.
  46. It is clear from the extracts of the judgment that I have quoted that the Employment Tribunal considered the 21 February 2018 email with care. It was sent more than two years before the first alleged detriment on 4 May 2020. The email was not asserted to be a protected act or to be one of the detriments subject of a complaint. The Employment Tribunal was right to focus on whether the 21 February 2018 email provided evidence from which it might draw an inference that the protected act, the bringing of the first claim in the Employment Tribunal, was a reason for the asserted detrimental treatment. The Employment Tribunal was entitled to have regard to the fact that in the 21 February 2018 email Mr Child accurately referred to the claimant's "inability to take on board anything he perceives as criticism" and that after the previous Employment Tribunal proceedings the claimant's colleagues felt that they were "walking on egg shells" whereas Mr Child "felt that they needed to manage the situation and just get on and do the job irrespective of the consequences". The Employment Tribunal was not required to consider the complaints of direct race discrimination and victimisation in total isolation. Having considered the 21 February 2018 email the Employment Tribunal concluded that the claimant's race played no part in the alleged detrimental treatment and that the respondent had fully explained why the claimant was treated in the manner about which he complained. The Employment Tribunal was entitled to take into account its determinations of the sole reasons for the claimant's treatment reached when analysing the direct race discrimination complaint when deciding the victimisation complaint. Further, the Employment Tribunal referred to the 21 February 2018 email again when analysing the victimisation complaint, stating that it was "troubled" by it. The Employment Tribunal permissibly concluded that the email should not be "taken out of context and parts taken in isolation". Although the Employment Tribunal did not quote the entirety of the email it is clear that it did consider the whole document. The Employment Tribunal did precisely what Sedley LJ stated should be done in Anya and considered whether each "ostensibly fair-minded decision was, or equally was not, affected" by the claimant having done the protected act. The Employment Tribunal did not adopt a robotic approach to the burden of proof but permissibly considered material that might evidence discrimination and that which suggested otherwise.
  47. Ground 2

  48. The claimant contends that:
  49. (2) The ET erred in law in that if failed to consider properly or at all the submissions made by Counsel for the Appellant that the email of 21 February 2018 amounted to victimisation for the purpose of Section 27 of the Equality Act 2010. In particular, because:
    (i) it was a detriment that arose from the protected act; and
    (ii) it falls squarely within paragraph 17 of the ET's judgment where its sets out one of the issues for decision as:
    "Did the respondent subject the claimant to a detriment because the claimant had done a protected act or acts?"
    (iii) In the email, Mr Child refers to previous conversations with HR about the claimant which were in part motivated by the fact that the claimant had done a protected act.
    (iv) Mr Child alleged in the email that the claimant was "…becoming extremely difficult to manage", in part because he had done a protected act and it was suspected that he might do a protected act in future.
    (v) Mr Child attributed the breakdown in working relations (in terms of trust) between the claimant and his colleagues in part to the fact that the claimant had done a protected act or the fact that his colleagues believed that he might do a protected act in future.
    (vi) Mr Child stated that the claimant was solely responsible for the breakdown in relations (in terms of trust) with his colleagues, because amongst other reasons, the claimant had done a protected act and his colleagues suspected that he would do a protected act in future.
    (vii) Mr Child stated in his email that the matters set out in 1-4 above, amongst other things "were creating a corrosive atmosphere around him (the claimant) … and much as we all try to move forwards from the court case (the protected act) it has left a scar which he is not helping to heal."
    (viii) Mr Child's email amounted to a detriment to the claimant because a reasonable worker would take the view that it was to his detriment because the complaints set out therein to senior managers (which the claimant was not aware of until it was disclosed to him in preparation for the ET hearing) of the respondent were because the claimant had done a protected act and/or that it was suspected that the claimant would do a protected act in future.
  50. This ground is little more than a more granular version of the first ground. The Employment Tribunal was not required to specifically assess whether the 21 February 2018 email "was a detriment that arose from the protected act". It considered whether the email was evidence to support a finding of victimisation in respect of the asserted detriments and legitimately concluded that it was not.
  51. It is simply incorrect to suggest that the question of whether the 21 February 2018 email was itself an act of victimisation was "one of the issues for decision". The question in the list of issues "Did the respondent subject the claimant to a detriment because the claimant had done a protected act or acts" was followed by a paragraph setting out the specific detriments relied upon. The email of 21 February 2018 was not one of them. Mr Korn did not advance this submission.
  52. There is no basis for asserting that the Employment Tribunal did not take account of the parts of the 21 February 2018 email quoted at sub-grounds (iii) to (vii). The Employment Tribunal clearly thought that the email could be relevant to a possible inference of victimisation but permissibly concluded on the totality of the evidence that the protected act was not any part of the reason for the asserted detrimental treatment.
  53. The Employment Tribunal was not required to determine whether the email itself was potentially detrimental treatment. That was not a complaint before the Employment Tribunal, nor was it a necessary component of considering whether the email would support the drawing of an inference of victimisation in respect of any of the detriments about which complaints were made.
  54. Ground 3

  55. The claimant asserts:
  56. (3) Further and/or alternatively, and to the extent that the ET referred to the Mr Child's email in paragraph 167 of its judgment, it erred in law in that:
    (i) it failed to consider the totality of the content of the said email and the intent/purpose for which it was written; Page 54 of 159
    (ii) it failed to make the necessary findings of fact or reach conclusions as to whether the email of 21 February 2018 was evidence of victimisation and failed to give reasons or adequate reasons for its findings in particular that the email should not be 'taken out of context' or the relevance of its reference to colleagues 'walking on egg shells' or the relevance of its reference that Mr Childs 'encouraged [the Appellant] to apply for a position';
    (iii) it was wrong failed to explain the relevance of its finding to find that the fact that Mr Child had encouraged the claimant to apply for a position "in the face of adversity from his colleagues" in the context of whether the email of 21 February 2018 amounted to victimisation; meant that the email was not a detriment and/or an act of victimisation;
    (iv) it took account of an irrelevant factor namely whether Mr Child had acted benevolently towards the claimant on a previous occasion as this was wholly irrelevant in relation to the issue as to whether Mr Child's email dated 21 February 2018 was a detriment and/or an act of victimisation;
    (v) it failed to take account of a relevant factor namely the final sentence of the email namely "all of this is creating a corrosive atmosphere around him which I don't think he really understands or recognises and much as we try and move forwards from the court case it has left a scar which he is not helping us to heal".
  57. This again is little more than a rehashing of the previous grounds. The Employment Tribunal did consider the "totality of the content of the said email and the intent/purpose for which it was written". That was why the email was considered troubling. That did not prevent the Employment Tribunal rejecting the victimisation complaint on the totality of the evidence. The Employment Tribunal made the necessary findings of fact and conclusions in dismissing the complaint of victimisation. There was nothing improper in the Employment Tribunal having regard to the fact that Mr Child "encouraged the claimant to apply for a position in the face of adversity from his colleagues" or that he had "acted benevolently towards the claimant on a previous occasion". An Employment Tribunal should consider all evidence with care. It should be astute to evidence that suggests the possibility of discrimination or victimisation but that does not mean that it should ignore evidence that suggests otherwise. To do so would be inimical to the duty of the Employment Tribunal to treat all parties justly. There is nothing to suggest that the Employment Tribunal ignored or failed properly to analyse the final sentence of the email.
  58. Mr Child's evidence

  59. There was a suggestion that Mr Child accepted in evidence that he had subjected the claimant to detriment as a result of the matters raised in the email of 21 February 2018. That suggestion had some support from one of the lay member's note of closing submissions but was contradicted by the lay member's notes of evidence, the respondent's counsel's notes of evidence and the fact that the claimant's counsel did not suggest that this was the case in closing submissions. The notes of evidence of the Employment Judge could not be found. Mr Korn did not seek permission to amend the grounds of appeal to raise this contention. On the basis of the evidence before me I would have rejected the assertion.
  60. Outcome

  61. The appeal is dismissed.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010