Mr B Ahmed and Mr M Ellahi v Royal Mail Group Ltd: 2204640/2021 and 2204646/2021

Case Numbers: 2204640/2021 2204646/2021 Reserved Judgment EMPLOYMENT TRIBUNALS BETWEEN Claimants and (1) Mr B Ahmed (2) Mr M Ellahi Respondent Royal Mail Group Ltd REASONS FOR THE JUDGMENT SENT TO THE PARTIES ON 22 FEBRUARY 2023 Introduction 1 UK The Respondent is the corporate vehicle of the primary postal service in the 2 The Claimants, Mr Bashir Ahmed and Mr Mohammed Ellahi, to whom we will refer by name, were at all material times employed by the Respondent as parttime postal staff1 working ‘weekend’ shifts spanning Saturdays, Sundays and Mondays at the Mount Pleasant Mail Centre on Farringdon Road in central London. Mr Ahmed’s employment began in 2003 and Mr Ellahi’s in 2000. Both remain in the Respondent’s employment. 3 By his claim form presented on 14 August 2021 Mr Ahmed, then unrepresented, who describes himself as of Bangladeshi ethnicity, brought claims for direct race discrimination, race-related harassment and detrimental treatment on health and safety grounds. The claims were resisted on jurisdictional and substantive grounds. 4 By his claim form presented on 16 August 2021 Mr Ellahi, also unrepresented, who describes himself as Pakistani, brought a claim for race discrimination, complained of being required to work in a dangerous environment in circumstances where others of different ethnicity were not and, it seems, alleged less favourable treatment on the ground of part-time employee status. 5 On 29 November 2021 Mr Ahmed’s claim came before EJ Stout in the form of a preliminary hearing for case management. At that stage he was legally represented, as was the Respondent. The judge recorded the withdrawal of the health and safety claim (which was dismissed by a judgment issued the same day) and her grant of permission to add by amendment complaints of indirect race discrimination and less favourable treatment on the ground of part-time employee status. She went on to summarise the claims and issues as they stood at the end 1 They were/are designated Operational Postal Grade (‘OPG’) workers. 1 Case Numbers: 2204640/2021 2204646/2021 of the case management hearing and set a directions timetable leading to a final hearing to be held by CVP over three days commencing on 14 June 2022. 6 In the meantime, on 9 November 2021, EJ Elliott had held a preliminary hearing in Mr Ellahi’s case, which he had attended in person and the Respondent through a solicitor. Having dismissed the Respondent’s application for part of the case to be struck out, she recorded that the claims were for direct race discrimination, detrimental treatment on health and safety grounds and less favourable treatment on the ground of part-time employee status, defined the issues and set a directions timetable leading to a final hearing in person over five days commencing on 6 June 2022. 7 On 27 January 2022 the two claims were listed together for a public preliminary hearing before EJ Walker. The Claimants were jointly represented by a solicitor and the Respondent was also legally represented. The judge made an order for consolidation, dismissed the Respondent’s application for part of Mr Ahmed’s case to be struck out, and directed that both cases be heard together over six days commencing on 6 June 2022. She also issued a judgment by consent dismissing on withdrawal so much of Mr Ahmed’s direct race discrimination claim as concerned the Respondent’s alleged refusal to allow him time off during fire alarm tests on 31 January and 7 March 2021. 8 EJ Walker held a further preliminary hearing, this time in private for case management, on 17 February 2022. On that occasion she made a deposit order in respect of Mr Ahmed’s indirect race discrimination claim and directed that the final hearing on 6-13 June be held face to face (rather than by CVP). 9 In circumstances which do not reflect adversely upon either of the Claimants or the Respondent, the hearing on 6 June 2022 had to be postponed and was relisted as a face-to-face appointment on 13 February 2023, to determine liability only, with five days allowed. 10 That hearing came before us. Mr Ahmed and Mr Ellahi attended in person. The Respondent was represented by Ms M Dalziel, a solicitor. The Claimants presented their cases, which involved a degree of legal complexity, effectively and with courtesy. Ms Dalziel conducted the Respondent’s case with due regard to the disadvantage which her opponents faced as unrepresented litigants. 11 We devoted day one to reading into the case. On the morning of day two Ms Dalziel pressed an ambitious application for the claims to be struck out on the ground that the Claimants had conducted them in a scandalous and/or vexatious way. For reasons given orally, we had no hesitation in dismissing the application. We were then occupied with hearing evidence on the merits up to the lunchtime break on day four, at which point we adjourned to the following morning to allow time for the preparation of closing argument. On the afternoon of day five, having heard the submissions of the parties and deliberated in private, we gave an oral decision dismissing all claims. 12 These reasons are given in writing pursuant to timely written requests by both Claimants. 2 Case Numbers: 2204640/2021 2204646/2021 The Relevant Law Direct discrimination 13 By the Equality Act 2010 (‘the 2010 Act’), s13, direct discrimination is defined thus: (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. 14 In Nagarajan v-London Regional Transport [1999] IRLR 572 Lord Nicholls construed the phrase ‘on racial grounds’ in the Race Relations Act 1976, s1(1)(a), in these words: If racial grounds … had a significant influence on the outcome, discrimination is made out. In line with Onu v Akwiwu [2014] ICR 571 CA, we proceed on the footing that introduction of the ‘because of’ formulation under the 2010 Act (replacing ‘on racial grounds’, ‘on grounds of age’ etc in the pre-2010 legislation) effected no material change to the law. Indirect discrimination 15 2010 Act, s19, so far as material, provides: (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) (b) (c) (d) A applies, or would apply, it to persons with whom B does not share the characteristic, it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, it puts, or would put, B at that disadvantage, and A cannot show it to be a proportionate means of achieving a legitimate aim. 16 By s23(1) it is provided that, for the purposes of claims under ss13 and 19, there must be no material difference between the circumstances of the Claimant’s case and that of his or her comparator. Harassment 17 The 2010 Act defines harassment in s26, the material subsections being the following: (1) A person (A) harasses another (B) if – 3 Case Numbers: 2204640/2021 2204646/2021 (a) (b) A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (3) In deciding whether conduct has the effect referred to in sub-section (1)(b), each of the following must be taken into account – (a) (b) (c) the perception of B; the other circumstances of the case; whether it is reasonable for the conduct to have that effect. (4) The relevant protected characteristics are – … race … 18 The EHRC Code of Practice on Employment (2011), which does not claim to be an authoritative statement of the law (see para 1.13), deals with the ‘related to’ link at paras 7.9 to 7.11. It states that the words bear a broad meaning and that the conduct under consideration need not be ‘because of’ the protected characteristic. We adopt this guidance as correct. Protection under the 2010 Act 19 Workers are protected from discrimination in the form of detrimental treatment and harassment under the 2010 Act, ss39(2)(d) and 40(1)(a) respectively. 20 The effect of the 2010 Act, s212(1) is that complaints of harassment and direct discrimination based on the same act must stand as alternatives: an act of harassment cannot also constitute an actionable detriment. 21 In the employment law context, a detriment arises where, by reason of the act(s) complained of, a reasonable person would or might take the view that he or she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment (see eg Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL). 22 The 2010 Act, by s136, provides: (1) Act. This section applies to any proceedings relating to a contravention of this (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 Case Numbers: 2204640/2021 2204646/2021 23 On the reversal of the burden of proof we have reminded ourselves of the case-law, including Igen Ltd v Wong [2005] IRLR 258 CA, Madarassy v Nomura International Plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned (as other distinguished judges had done before him) that it is possible to exaggerate the importance of the burden of proof provisions, observing (judgment, para 32) that they have “nothing to offer” where the Tribunal is in a position to make positive findings on the evidence. 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