Fetter Lane, London, EC4A 1NL |
||
B e f o r e :
____________________
MR KWABLA GAD |
Appellant |
|
- and - |
||
UK POWER NETWORKS (OPERATIONS) LTD |
Respondent |
____________________
JOHN-PAUL WAITE (instructed by UK Power Networks (Operations) Limited) for the Respondent
Hearing date: 20 May 2025
____________________
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
The Employment Tribunal Judgment
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]
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.
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]
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]
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]
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]
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]
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]
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]
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
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.
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.
… 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.
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
(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.
Ground 2
(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.
Ground 3
(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".
Mr Child's evidence
Outcome