Mr G Moore v Southern Housing Group: 2301442/2020

Case Number: 2301442/2020 EMPLOYMENT TRIBUNALS Claimant: Mr. Graham Moore Respondents: Southern Housing Group Heard at: London South Hearing Centre On 02-04/3/22 and in Chambers 31.3.22 Before: Employment Judge McLaren Members: Ms. H Carter Ms. C Oldfield Representation Claimant: Mx. O Davies, Counsel Respondent: Mr. Goodwin, Counsel JUDGMENT The unanimous decision of the tribunal is that: - The respondent did not contravene s 13 of the Equality Act 1996. The claims of direct discrimination do not succeed REASONS Background 1. We heard evidence from the claimant on his own account The witnesses for the respondent were Adrian Lewis, Operations Manager and the claimant’s line manager during his employment, Carl Dewey, Southern Maintenance Services Director, and Luke Chandler, Director of Development Delivery. 2. We were initially provided with a bundle of 280 pages. The claimant objected to the inclusion of the document at page 277 which was said to Case Number: 2301442/2020 be included by the respondent at the last minute and to be of no relevance to the hearing. Having heard the parties’ submissions on this document, we concluded that it was potentially relevant to the issues in the case, that the was little prejudice to the claimant in allowing the document in, and there would be greater prejudice to the respondent if it was not included. Its inclusion was within the overriding objective. 3. During the course of the hearing, it became evident that the notes of the interview held with the claimant were available. We were provided with a copy of the handwritten notes of 10 October 2019 and an email sent by Mr Lewis on the 2 December to a number of recipients, including the claimant. These were added to the bundle. On the third day of the hearing, we were again provided with additional documentation. These were emails relating to the appeal process. These were also included in the hearing bundle. 4. In reaching our decision we took account of all the pages in the bundle to which we were referred, the witness evidence, the skeleton argument produced on behalf of the claimant, the respondent’s opening note and the parties’ helpful written submissions and expanded oral submissions. Issues 5. The issues in this matter were agreed as follows Direct discrimination on the grounds of race The Claimant is an English national. 1.1 Has the Respondent treated the Claimant less favourably than it treated or would treat others? The Claimant alleges that the following acts or omissions of the Respondent constitute discrimination on the grounds of race: 1.1.1 Failing to have a box labelled “English” for employees to select on its recruitment monitoring form; 1.1.2 Adrian Lewis told the Claimant that a complaint had been made against him; 1.1.3 Adrian Lewis only reacted in a negative way after he had look at the English Democrats’ website; 1.1.4 Adrian Lewis lied about knowing that the Claimant was standing in the General Election; 1.1.5 Evidence was ignored at the probation review meeting; 1.1.6 The probation review meeting outcome was premeditated; 1.2 If there has been less favourable treatment, was the reason for such treatment the protected characteristic of race? Case Number: 2301442/2020 1.3 In respect of the allegations of discrimination on the grounds of the Claimant’s race the comparator relied on by the Claimant is a hypothetical comparator. 1.4 Has the Claimant brought the claim in respect of the above allegations of discrimination within time taking into account any extension of time for taking part in Acas Early Conciliation? The Respondent contends that the allegations of discrimination which occurred on or before 26 November 2019 occurred more than three months before the Claimant commenced Acas Early Conciliation and the tribunal therefore does not have jurisdiction to hear those parts of the claim. 1.5 If not, would it be just and equitable to extend the time limit for the Claimant to do so? The Respondent contends that it would not be just and equitable to extend time for submission of the claim because the Claimant has given no explanation why these allegations have been submitted out of time or stated why it would be just and equitable to extend time. The claimant withdrew issue 1.1.7( Failing to provide the Claimant with the outcome of his grievance), during closing submissions. Direct discrimination on the grounds of religion or belief The Claimant has a belief in England, English identity, English culture, English independence and actively promotes the English constitution and legal system, and English system through various media outlets. The Respondent will contend that this does not amount to a protected characteristic within the meaning of section 10 of the Equality Act 2010. 2.1 Has the Respondent treated the Claimant less favourably than it treated or would treat others? The Claimant alleges that the following acts or omissions of the Respondent constitute discrimination on the grounds of religion or belief: 2.1.1 Failing to have a box labelled “English” for employees to select on its recruitment monitoring form. 2.1.2 Terminating the Claimant’s employment. 2.2 If there has been less favourable treatment, was the reason for such treatment the protected characteristic of religion or belief? 2.3 In respect of the allegations of discrimination on the grounds of the Claimant’s religion or belief, the comparator relied on by the Claimant is a hypothetical comparator. 2.4 Has the Claimant brought the claim in respect of the above allegations of discrimination within time taking into account any extension of time for taking part in Acas Early Conciliation? The Respondent contends that the allegations of discrimination which occurred on or before 26 November 2019 occurred more than three months Case Number: 2301442/2020 before the Claimant commenced Acas Early Conciliation and the tribunal therefore does not have jurisdiction to hear those parts of the claim. 2.5 If not, would it be just and equitable to extend the time limit for the Claimant to do so? The Respondent contends that it would not be just and equitable to extend time for submission of the claim because the Claimant has given no explanation why these allegations have been submitted out of time or stated why it would be just and equitable to extend time. Remedy 3.1 Is the Claimant entitled to a compensatory award and, if so, what level of award it would be just and equitable for the Claimant to receive? 3.2 Is the Claimant entitled to an award for injury to feelings and, if so, at what level? Finding of facts Application process 6. The claimant was employed by the respondent from late October 2019 until the 9 January 2020 as a Project Supervisor for Fire Risk and Remedial Project Work. The role was newly created on a fixed term basis following the Grenfell Tower fire in June 2017 and the implications for the housing sector. The respondent describes itself as a business with social objectives, providing high quality housing across a range of markets– from supported living and affordable homes to full market rented shared ownership and outright private sales. Profits are reinvested into new homes and their stated strategy is to make meaningful contributions to people’s lives and help local communities thrive. 7. The claimant applied for this role via an application form. It was agreed that the role was not noted as politically restricted in any of the documentation. It was accepted that the respondent had a policy of political neutrality and was entitled to have such a policy. 8. The application process included a request for information on things such as gender, marital status, nationality and ethnic origin. This was at page 239. For nationality, while there were options for an individual to identify their nationality as Scottish or Welsh, it is agreed that the application form did not contain a category or box to state, as nationality, ‘English’. The claimant therefore noted his nationality as British. He noted his ethnic origin as “other ethnic group”. This was to reflect his English origin. 9. While the claimant was not sure of the date on which he completed this form, he agreed that it was before he was advised that he was shortlisted. It was therefore sometime before the first interview in August 2019.He only completed this form once and was not asked about it at any time in his employment. Case Number: 2301442/2020 10. He did not raise any complaint about this form at the time that he submitted it. Before the tribunal the claimant explained that if he had done so, and identified as English, he believed that he would not have been employed at all. He had no evidence for this comment as it was his belief. He did raise it as a complaint during the probationary review meeting on 6 January 2020.This was a number of months after the event. 11. The grounds of resistance set out the respondent’s position on this. It specifies that the categories were set out in a standard form provided by a third-party provider as part of the respondent’s job application tracking system. The respondent subsequently raised the missing category with the third-party provider and the form has now been amended to include a box labelled “English”. This evidence was not challenged by the claimant, and we accept that this is what occurred, and that the categorisation was provided to the respondent by a third-party company as part of the standard process. It was not specific to the claimant but was common to all applicants. 12. The claimant was advised on 3 October 2019 that he was shortlisted and told to attend an interview with Carl Dewey and Adrian Lewis on 7 October 2019. We were provided with Mr Lewis’s handwritten notes taken at this interview. They record in answer to the second question asked, which was about effective communication, “hobby constitutionalist expert layperson presentation to 200 people”. Mr Lewis did not believe that the claimant had told him about...