Mr L D Ncube and Others v St George's, University of London: 2302864/2020 and Others
| Jurisdiction | England & Wales |
| Judgment Date | 20 May 2022 |
| Date | 20 May 2022 |
| Published date | 28 June 2022 |
| Court | Employment Tribunal |
| Subject Matter | Race Discrimination |
| Citation | 2302864/2020 and Others |
Case No: 2302864/2020, 2307127/2020, 2307128/2020, 2307129/2020,
2307130/2020, 2307131/2020, 2307132/2020 & 2307133/2020
10.5 Reserved judgment with reasons – rule 62 1
EMPLOYMENT TRIBUNALS
Claimants: Mr. L D Ncube and six others
Respondent: St George’s, University of London
Heard at: London South – Croydon (by video) On: 14 to 17 March 2022
and 4 May 2022(in
chambers)
Before: Employment Judge C H O’Rourke
Ms N Beeston
Ms B Leverton
Representation
Claimant: Mr O Isaacs - counsel
Respondent: Mr S Neaman - counsel
RESERVED JUDGMENT
The Claimants’ claims of indirect race discrimination fail and are dismissed.
REASONS
Background and Issues
1. The Claimants are security officers, employed by a company called Bidvest
Noonan (UK) Ltd (‘BN’) and working on various sites of the Respondent
university, pursuant to a contract between the Respondent and BN. The
Claimants are all of BME/BAME race.
2. Their terms and conditions of employment with BN differ in several respects
from those of employees of the Respondent, in particular as to the
availability of pay increments and provision of contractual sick pay, holiday
pay and pension terms, all of which the Claimants consider disadvantage
them.
Case No: 2302864/2020, 2307127/2020, 2307128/2020, 2307129/2020,
2307130/2020, 2307131/2020, 2307132/2020 & 2307133/2020
10.5 Reserved judgment with reasons – rule 62 2
3. As a consequence, the Claimants bring claims of indirect discrimination on
grounds of race. The claims being identical, they are simply referred to as
‘the claim’ from hereon. The issues in respect of the claim will be set out
below, following consideration of a preliminary issue.
Preliminary Issue
4. The parties had attempted, as ordered at a case management hearing of
29 March 2021 [100], to agree a list of issues and a draft had first been
prepared, as part of the Parties’ agreed agenda for the case management
hearing [Supplementary Bundle (S) 13-14]. This included the following:
‘(c) Is there an objectively justifiable reason (real business need) for the
Respondent to outsource security services from the Claimants’ then
employer (Bidvest Noonan) instead of employing security officers directly?
If so, what is it?
(d) Is the justification given at 2(c) above a proportionate means of achieving
a legitimate aim?’
Although, in a subsequent draft list of issues, attached to the final case
management agenda, that issue was simply stated as ‘… has the
Respondent shown the PCP(s) to be a proportionate means of achieving a
legitimate aim?’ [S122].
5. Despite a year having passed, since then, the parties do not appear to have
made any positive steps in finalising those issues, until that is, this Hearing
was imminent. In the month or so before the Hearing, both parties’ solicitors
engaged in cordial and co-operative correspondence as to preparation for
the hearing generally and the list of issues in particular [S170]. The
Respondent’s solicitor asked his counterpart on 21 February 2022 whether
he was ‘happy with the list of issues’ [S172], to which he responded that he
had made ‘some minor tweaks’ to it, seeking the Respondent solicitor’s
approval [S177]. On 23 February 2022, the Respondent’s solicitor wrote
stating that when he looked through the draft, ‘I realised that I’ve not
included as issues the St George’s justification. Sorry, I had it in an earlier
version of the List but mixed them up when I sent them to you. … Clearly,
the list of issues must include our justification, so I do hope this is
uncontroversial.’ [S184].
6. That draft [S189] included the following:
‘… has the Respondent shown the PCP(s) to be a proportionate means of
achieving a legitimate aim? The Respondent contends that
a) The legitimate aims of the Respondent that the PCP(s) was/were a
proportionate means of achieving, are:
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