Appeal 2405428/2016 Judgment

Notice of Appeal from Decision of Employment Tribunal

1. The appellant is (name and address of appellant).

KATARZYNA PACZKOWSKA

2. Any communication relating to this appeal may be sent to the appellant at

(appellant’s address for service, including telephone number if any).

3. The appellant appeals from (here give particulars of the judgment, decision or

order of the employment tribunal from which the appeal is brought including the

location of the employment tribunal and the date).

RESERVED JUDGMENT 01 AUG 2019

CASE NUMBER 2405428/2016

EMPLOYMENT TRIBUNAL MANCHESTER

4. The parties to the proceedings before the employment tribunal, other than the

appellant, were (names and addresses of other parties to the proceedings

resulting in judgment, decision or order appealed from).

R-COM CONSULTING LIMITED/ REF:LS59373

REPRESENTED BY: MR B WATSON, PENINSULA BUSINESS SERVICES LTD

VICTORIA PLACE

MANCHESTER

M4 4FB

5. Copies of—

(a) the written record of the employment tribunal’s judgment, decision or order

and the written reasons of the employment tribunal;

(b) the claim (ET1);

(c) the response (ET3); and/or (where relevant)

(d) an explanation as to why any of these documents are not included;

are attached to this notice.

6. If the appellant has made an application to the employment tribunal for a review

of its judgment or decision, copies of—

(a) the review application;

(b) the judgment;

(c) the written reasons of the employment tribunal in respect of that review

application; and/or

(d) a statement by or on behalf of the appellant, if such be the case, that a

judgment is awaited;

are attached to this Notice. If any of these documents exist but cannot be

included, then a written explanation must be given.

7. The grounds upon which this appeal is brought are that the employment tribunal

erred in law in that (here set out in paragraphs the various grounds of appeal).

Ground#1           Procedural irregularity [Page 4 – 9]

Ground#2           Error of law, misapplying and not determining the burden of proof, stating there was no evidence of less favourable treatment, not considering how an actual/ hypothetical comparator would be treated, by not making the finding of fact and analysis of motivation of the perpetrators, especially in dealing with her grievance –it is arguable that the Employment Tribunal erred in holding that the Respondent followed a fair procedure when investigations not held in accordance with company’s procedural handbook guidance or ACAS guidance. Erred in principle, come to a conclusion that was not open to him (perception of the Claimant). Failure to draw adverse inference from the Respondent’s deliberate witness absence(Wisniewski). [Page 10 – 38]

Ground#3           Bias, partiality, perversity-the ET decision was “almost certainly wrong”, Meek compliance, Efobi [Page 38 – 46]

Ground#4           Tribunal substituted its view for that of an employer/perpetrator [Page 46 – 47]

Ground#5           Failure to provide reasonable adjustments for Claimant or comply with Equal Treatment Bench Book. [Page 47 – 48]

Ground#6           Failure to deal with Claimant’s disability starting at employer’s premises and failure to provide reasonable adjustments by the Respondent at employers premises [Page 48 – 49]

Ground#7           Failure to deal with protected disclosure [Page 49 – 52]

Ground#8           Approach to claim out of time, error of principle, perverse decision, it was not addresses at neither of the hearings if its just and equitable to extend time or there was continuous conduct. “the failure to take into account a significant relevant factor is an error of law.” Virdi v Commissioner of Police for the Metropolis [2007] IRLR 27, at p 34-40.

It is entitled to consider all relevant circumstances (see Robertson v Bexley Community Centre [2003]IRLR434) [Page 52 – 53]

Ground#9           Including in the Judgment claims that were not allowed at the Preliminary Hearing, namely regarding a former model – Lauren Hibbert. Application to amend Judgment (Restricted Reporting Order) to anonymous name of this person not involved at the proceedings, but  who may find them defamatory. As per EJ Porter CMO written reasons dated 09 Jun 2017.[Page 45]

Ground#10         Allegation 20 – ET didn’t apply the correct law or test to Sue Dando decided in a ruling of a different Tribunal on 16 Mar 2018 (Agent for the Principal, Relationships that have ended). Disregarded an earlier Judgment of EJ Warren and failed to provide reasons why or error that was made.[Page 34 – 38 ]

Ground#11         Human Rights    -please review this case for breach of Claimant’s fundamental rights [Page 53 – 55]

Human Rights Articles Claimant will rely on:

Human Rights Act 1998

PART I The Convention Rights and Freedoms

Article 3 No one shall be subjected to inhuman or degrading treatment or punishment.

Article 6 Right to a fair trial

1In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 8 Right to respect for private and family life

1Everyone has the right to respect for his private and family life, his home and his correspondence.

Article 14 Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The European Convention on Human Rights (ECHR)

ARTICLE 3 No one shall be subjected to inhuman or degrading treatment or punishment.

ARTICLE 6 Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

ARTICLE 8 Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

ARTICLE 13 Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

ARTICLE 14 Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Ground#1    Procedural irregularity

Throughout the proceedings there were a series of procedural and administrative reasons delaying the process and aggravating situation, essentially setting Claimant to fail.

The case has been launched on the 03 Dec 2016 for race and sex (sexual harassment) discrimination and harassment. There have been three Preliminary Hearings on the 23 Feb, 25 Apr 2017 (both EJ Porter) and on 16 Mar 2018 (EJ Warren). Original hearing date was scheduled for 2-4 Aug 2017, however due to ill health Claimant couldn’t attend. The Judgment was sent on the 23 Aug 2017 with case being dismissed, followed by Reconsideration hearings on 11 Dec 2017 (Respondent non-attendance) and 09 Jan 2018, when the case was allowed to proceed to full hearing on 3-5 Sep 2018 and a ‘follow up’ hearing on 11 Jul 2019.

The Hearing Bundle was not ready, nor agreed until 19 April 2018 (note original hearing scheduled 2-4 Aug 2017 was to be without one) and prepared by the Claimant, as per order CMO, 16 Mar 2018. The Respondent failed to comply with CMO, 25 Apr 2017 order 3 and did not disclose their documents to Claimant at all. Tribunal despite Claimant’s relentless reminder did not acknowledge nor punish Respondent for this gross misconduct.

In Further Information_15.03.2017 Claimant highlighted that during the first Preliminary Hearing (EJ Porter) on 23 Feb 2017 (and following PH 25 Apr 2017 in a similar manner) she was being pressurised immensely to put a legal label on everything that happened and specify comparators for all incidents:

“The Respondent asked in the beginning of the preliminary hearing with reference to the Further Particulars of Claim – Schedule of incidents sent by me on the 22 Feb 2017, how do I consider it to be race or sex discrimination/harassment. Respondent confirmed, that also didn’t have a chance to read it in detail.

I have been asked series of questions by the Judge throughout the preliminary hearing.

The Respondent have not spoken nor been asked any question throughout the hearing, apart from initial question above. Judge directed all the questions solely to myself and in the end confirmed with the Respondent if was contempt with those responses.

I have been answering series of questions on the following (the Schedule of Incidents 22Feb2017)”

EJ Porter in very crucial two Preliminary Hearings and thereafter failed to address time extension and specific document disclosure applications causing 2 claims to FAIL. By the time ET order email disclosure, around July 2018! It was too late as they were ‘wiped out’ clear, and time extensions never brought up in later proceedings EJ Sherratt failed claim without raising this issue in two hearings.

Prior to original hearing 2-4 Aug 2017, there has been multiple direction requests pending response from Employment Tribunal, which were never addressed:

  1. Bundle not finalised and not in possession by either party (Bundle objection application by the Claimant including reasonable adjustments sent to ET on 21 Jun 2017);
  2. Witness statements not finalised/signed and three witnesses out of five on the Respondent side replaced in last minute with irrelevant persons to the case-not addressed by Employment Tribunal;
  3. No written response by Employment Tribunal to several letters important for the paper trail and evidence of decisions, if the appeal process would take place and aware of reasonable adjustment for the Claimant who is ill and unrepresented:
  4. Letter dated 21 Jun 2017 Claimant to Employment Tribunal;
  5. Letter dated 06 Jul 2017 Claimant to Employment Tribunal;
  6. Reasonable adjustments request – Claimant Bundle kept in order exactly as supplied by the Claimant (pagination page numbers may be changed as required); short breaks during the hearing for the Claimant to compose herself while being a victim and defending herself at the same time cause enormous distress; consideration for the witness cross-examination order for the hearing – first Respondent’s witnesses to be cross-examined then the Claimant;
  7. Letter dated 07 Jul 2017 Claimant to Employment Tribunal;
  8. Letter dated 28 Jul 2017 Claimant to Employment Tribunal;
  9. Employment Tribunal have not addressed Claimants request for the Respondent to provide evidence, that he ’ lost ‘or archived documents requested in Specific  documents disclosure 22 Feb 2017 namely e-mails exchanged between Claimant and perpetrator and ordered by Employment Tribunal Judge on 27 Jun 2017;
  10. No response to document 21-“Office plan during Claimant’s employment” provided by Respondent which was incorrectly marked by the Respondent;
  11. Respondent to Employment Tribunal due by 12 July 2017 – the letter dated 05 July 2017;
  12. Judgment reconsideration application by the Claimant 23 Aug 2017;
  13. Claimants application for affidavit of main witness – perpetrator of sexual harassment dated 14 Sep 2017 due to witness departure (ending employment and going abroad, however witness statement remains unsigned!). Also request to clarify procedure for my appeal process in light of ‘delayed’ Reconsideration Hearing exceeding deadline for my appeal-no response;
  14. Delay caused by the Respondent and failure to comply with the Case Management Order 3 – disclosure of documents, which have caused 4 week delay. Incident of harassment by e-mail from Sue Dando, D4Digital Ltd. is now pending launching separate Employment Tribunal case by 02 Nov 2017. E-mail ‘Disgrace’ on 29 Jun 2017 to the Claimant was/is a humiliating and offensive act of harassment which has caused distress and has caused further delay in Case Management Order progression;
  15. Claimant asked Employment Tribunal for Hearing postponement however have not received response, namely as follows:

This is causing a big concern due to two orders still pending and short time limits before Hearing 02-04 Aug 2017 – bundle and witness statements exchange by 18 July 2017.” Claimant’s letter 07 Jul 2017

“This is causing a big concern due to two orders still pending and short time limits before Hearing 02-04 Aug 2017 and therefore Claimants asks to postpone the hearing dates to the nearest available.” Claimant’s letter 28 Jul 2017 Without response.

And following the Hearing 3-5 Sep 2019:

  1. Judgment was reserved to be sent to the parties on/after 10 Dec 2018, closing statements were completed by both parties and no further issues raised;
  2. On day 1, the Panel took 3h reading time;
  3. The 3rd day of hearing finished ahead of time at around 03:30pm, it was required also 2h lunch break due to the Judge announcing (speaking rather quietly)break at 5min to 12pm, which was in fact a 5min break and not a lunch break, as misunderstood by the Claimant who took lunch break. After Claimant return the Panel took their another 1h break. This resulted Tribunal being in 2h break. Claimant was penalised (told off) by the Judge and started crying for the entire hour after that reasonably being very upset;
  4. Claimant also sent her case law typed in in support of a verbal closing statement the next day (06 Sep 2018) due to mispronunciation of some names, but was told the Judge Sherratt is already in another hearing. This was very concerning, as Claimant had strong impression that the Judge didn’t catch up with the hearing notes (as he did in a hearing ask to repeat many times and got disrupted in another times). None of Claimant’s case law was applied in the Judgment;
  5. There were many disruptions at the beginning, like Respondent failing to print Bundle index for the Panel, Respondent providing Tribunal Clerk with Claimant’s witness statements without Claimant knowing (main and disability) which were drafts and incorrect documents since updated, Respondent didn’t provide Claimant with any copy of their signed 8 witness statements or Respondent aggressively pursuing Claimant ‘first thing’ about her disability;
  6. On 20 Dec 2018 Claimant received unstamped, undated letter to be collected from Post Office with a fee of £2 to be paid. The letter had misspelled Claimant name. The letter was informing that there is no Judgment and further issues need to be addressed at another hearing before Tribunal can issue Judgment.
  7. Claimant asked Tribunal twice to refer a question to the Court of Justice of the European Union, having lost all hope in fairness of this Tribunal and following how she was treated, on first occasion on the 03 Sep 2018, when she applied under Rule 50 of the Employment Tribunal Rules of Procedure 2013 for privacy regarding public questioning about her disability and to ‘show’ her disability ‘first thing’ at the Hearing pursued aggressively by the Respondent first. When this was rejected by the Judge, Claimant made application under Rule 100, but this was not allowed and the questioning proceeded. Claimant asked for this to be included in the record of proceedings of the hearing but it wasn’t (Judge never sent those despite application). She also applied under Rule 100 when the Judgment was not delivered, to the contrary of what the Judge said to the parties on the 05 Sep 2019, when there was no further issues to be clarified and the Hearing even ended earlier and the Judgment expected on 10 Dec 2018. This was also refused.
  8. Claimant was also aggressively pursued by the Respondent’s legal firm – Peninsula’s Senior Legal Managers on three occasions to postpone the Hearing on 12 Apr 2019 (when the Judgment was originally to be finalised/delivered). This was because Peninsula aimed to send the Representative-Laura Halsall to the parallel ‘lucrative’ 5 day hearing in London, totally unrelated to the Claimant or Respondent. This was throughout Feb to April 2019 and at the same time Claimant was launching Unfair Dismissal case with the Respondent. The application was refused twice on the same grounds, but granted a day before the Hearing on the 11 Apr 2019, when Hearing was cancelled. Peninsula was aware of Laura Halsall absence a week before and there were other Representatives familiar with the case and Represented the Respondent before, but informed Tribunal/Claimant ‘last minute’ on the 10 Apr 2019.
  9. The Hearing was not relisted in at least 5 weeks and Claimant had to chase the new Hearing date relentlessly even with help of a community lawyer. The Hearing was then listed for 11 Jul 2019. This was all in the midst of Claimant cancer tests and the Court new about them.

Claimant feels the Reserved Judgment, especially that of a hurtful race, disability, victimisation discrimination and sexual harassment nature, was delivered 10 months! (twice postponed) since the main hearing on 3-5 Sep 2018, when all information was ‘afresh’ in everyone’s minds and the subjective argument was stronger, which created prejudice for the Claimant and essentially losing her case.

Two issues discussed at the hearing on 11 Jul 2019, Sue Dando e-mail and victimisation, showed how obsolete the facts were in all parties minds (Claimant had to spent hours just to prepare for only those two issues), if not for the reminder and scrutiny of the Bundle, additional submissions, as if at the ‘starting point’ or from ‘clear slate’ in regards to those claims, as well as no one really remembered what was said in the main hearing, as it would be humanly not possible.

Baroness Williams of Trafford, Minister of State for Equalities: (…)

Discrimination, on the other hand, is a kind of preventive measure. It is

far broader, and in some cases is actually quite subjective.”

And

“(…)employers should always take action if their

employees are the subject of sexual harassment.”

Women and Equalities Committee Oral evidence: Enforcing the Equalities Act: the law and the role of the Equality and Human Rights, HC1470, Wednesday 5 June 2019

“But discrimination is still pervasive, now more often in the form of stereotyping or unconscious bias.” Melissa Hart, University of Colorado Law School

Equality Act 2010, (1 )Public sector duty regarding socio-economic inequalities,

An authority to which this section applies must, when making decisions of a strategic nature about

how to exercise its functions, have due regard to the desirability of exercising them in a way that is

designed to reduce the inequalities of outcome which result from socio-economic disadvantage.

The two issues needed clarification after Tribunal deliberations in Chambers on 10 Dec 2018. The Panel made themselves to forget what was said about them and what the witnesses said. There was nothing raised on them up until the end of the Hearing on 05 Sep 2018 and additional witness evidence (who previously gave evidence on the matter in the original Hearing) was required on 11 Jul 2019, when Tribunal listed hearing in relation to those two issues. At this stage Judgment was not written and a Summary Judgment was delivered verbally on 11 Jul 2019. Judgment was delivered on 01 Aug 2019.

This was 32 months from when Claimant launched the case and still no Judgment and the ongoing request to relive the trauma and not allowing herself to forget the bad treatment, contrary to the ‘HMCT Guidance of Employment Tribunal T421’ proceedings taking 30 weeks. This was excruciating stressful time and most of the time Claimant operated on ‘autopilot’, as if switching off her emotions to avoid breaking down from hurt and stress, but be perceived as an equal party in the proceedings against legal firm. Health deteriorated significantly. Claimant did not have the luxury to put her health first being a litigant in person. Bar Pro Bono refused Claimant application for Representation based on it being 3 day hearing and not a 2 day hearing.

Remaining claims since the case launch on 03 Dec 2016 succeeded a Prima Facie sift, following 3 complex Preliminary Hearings (plus 2 additional Reconsideration Hearings) and dealt with by 5 Employment Tribunal Judges.

On analysis each of those complaints was subject to the regime in s.136 of the Equality Act 2010 which, by s.136(2), places the burden of proof to negative the prohibited reason for the treatment complained of on the employer.

The case was also that of a whistleblowing nature, but not dealt with by the Tribunal.

In relation to extending time limits for race discrimination claims Claimant made application, as early as on 22 Feb 2017-request for extending time under Rule 5 of Employment Tribunals Rules of Procedure 2013.[page 44-45 in the Bundle] This was not dealt with nor questioned at the Hearing (neither on 3-5 Sep 2018, nor 11 Jul 2019) and the Judge allowed those claims to go through.

Case Management Summary dated 16 Mar 2018 indicated in point 1-Final Hearing allocated for 3 day, and the Respondent to call 4 witnesses. On 3 Sep 2019 there was 8.

Based on that information alone and that of Respondent admitting vicarious liability of Sue Dando actions ( 2.The parties agree that the appropriate respondent in case number 2405428/2016 (as amended) will be R-Com Consulting Limited, ET Judgment 16 03 2018, 2423424/2017), the final hearing timetable was as follows:

  • (i) 2 hours for reading in and any preliminary matters;
    • (ii) maximum 1.5 days for oral and other evidence on liability;
    • (iii) a maximum total of 1 hour (half each) for submissions on liability;
    • (iv) approximately 2 hours for the Tribunal to determine the issues which it has to decide, reach its conclusions and prepare its reasons;
    • (v) 1 hour for the Tribunal to give judgment, with reasons if possible;
    • (vi) 1 hour for the Tribunal to deal with remedy, including hearing further evidence if appropriate, reaching conclusions and giving judgment, if the claimant succeeds in whole or part.
    •  

The Judgment was one which no reasonable tribunal could have reached in compact 3 days, followed by more questions arising in 3 month interval and 10 months from the main hearing.

In Respondent’s Agenda for Preliminary Hearing, 21 Feb 2017 Respondent indicated following relevant witnesses:

  1. Mr Ashley Jackson – the Claimant’s line manager who the majority of allegations have been raised against
  • Mr Ajaz Rathore – Respondent’s Managing Director who has also had allegations raised against him.
  • Mr Chris Haresnape – Respondent’s financial controller who has been named by the Respondent in respect of race discrimination allegations
  • Ms Shell Halliwell –Respondent’s Global Education Manager who was the grievance chair
  • Ms Lily Newman – Respondent’s Non-executive Director who was the grievance appeal chair.

To be later replaced by Ashley Jackson, Sue Dando (prior to a case raised against her), Chris Haresnape, Mishell Halliwell, Umer Khan, Grace Lyons (not attended), Courtney Norris (not attended), Zarina Greenhalgh.

It is the Respondent, who decided not to defend the allegations against Mr Rathore who was very relevant and originally listed as witness (Wisniewski), and Claimant even made an inquiry to insist of his presence and about relevance of this witness during PH, 16 March 2018, but Respondent did nothing. Having burdensome audio recording evidence against them it was on the Respondent to produce witness.

DRAWING ADVERSE INFERENCES WHEN WITNESSES ARE ABSENT

Wisniewski v Central Manchester Health Authority [1998] PIQR P324.  In that case Brooke LJ derived four principles from previous case law:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.

Ajaz Rathore was present on the 04 Sep 2019, but never called as a witness, should the Tribunal have any doubts.

Claimant was cross-examined first on day 1 and 2, including on disability questions. In total in some consecutive 2.5 hours without break between intense and intimidating disability questions and the rest. Questions by the Respondent Representative were intense and biased, if not at times insulting and intimidating, implying that Claimant ‘read into things’ using entirely what the Respondent learnt about Claimant disability. Some questions were constructed to provoke or  ‘catch’ Claimant as if on lie, eg. asking about Ashley Jackson eating fruit salad instead of grapes held up on the vine in ‘unnatural’ and seductive way. Claimant corrected that it was grapes.

Nevertheless Claimant persevered despite being in unimaginable strain and cross-examined all 6 witnesses, including 3 perpetrators and an IT expert witness.

Claimant did not have a Representative ‘on her side’ to ask her questions to show the full scale and impact of Claimant’s suffering, instead Claimant had to ‘be strong’ in herself for the sake of going through proceedings. Claimant was also a crime victim (car vandalised twice in a year leading to the hearing) suffering anxiety. This caused prejudice to her case. Eg. how she might have been perceived (being alone as did not want to implicate her friends due to fear of crime), Ashley Jackson was also asked questions about feeling hurt by involvement in the process, but Claimant wasn’t. Should she have had a Representative, instead herself being a victim who must put her case before Tribunal, Claimant could have said more relevant things to her case or ask better questions.

Ground#2    Error of law, misapplying and not determining the burden of proof, stating there was no evidence of less favourable treatment, not considering how an actual/ hypothetical comparator would be treated, by not making the finding of fact and analysis of motivation of the perpetrators, especially in dealing with her grievance –it is arguable that the Employment Tribunal erred in holding that the Respondent followed a fair procedure when investigations not held in accordance with company’s procedural handbook guidance or ACAS guidance. Erred in principle, come to a conclusion that was not open to him (perception of the Claimant). Failure to draw adverse inference from the Respondent’s deliberate witness absence(Wisniewski). Failure to address witness Ashley Jackson numerously lying on stand (credibility) and speaking with lawyer against EJ directions on break under oath (affirmation). ET didn’t apply the correct law to Sue Dando (Agent for the Principal, Relationships that have ended). Disregarded an earlier Judgment of EJ Warren and failed to provide reasons to its decision or explanation of an error that was made.

Brexit effect- the present state of the law can only be found by going through a number of different authorities and rarely fond for the Claimants:

In  Mr J Day v Alloga UK Limited, 2601591/2016, European Union workers in this country were fearful for their continued employment in the United Kingdom should the outcome be Brexit.

In Mrs M Green v South Cave Kids Club, 1800950/2017, The staff and management round this time, would make racist comments like ‘send the eastern European workers home’ or ‘these eastern European workers are taking our jobs’ knowing full well that Marie Green came from the Czech Republic.(…)”

In Mr A Puri v Interalinks Ltd, 2200418/2017, the Brexit effect had led to diminished client activity, and hence adversely affected his performance. a recognition of what might be called the Brexit effect.”

InK_Stefanko_and_Others_v_1__Maritime_Hotel_Ltd__in_voluntary_liquidation__2__Mr_N_Doherty_UKEAT_0024_18_OO, the EAT reversed ET decision that there was no race discrimination. “call Ms Woronowicz a “self-centred Polish bitch” he was very angry and told her that if she thought things were so bad, she should go back to Poland and that he repeatedly swore and told the three of them to pack their bags and leave as they repeatedly requested the correct payment for their wages.”

There is no similar corresponding law in the Equality Act 2010 that could protect EU citizens in current state of play (socio-economic-cultural climate) from justified ‘silent’ discrimination or social cleansing of ‘bad apples’ (because everyone is most fearful to speak up in fear for their very existence, their children and family), hence to my knowledge all race discrimination cases related to Bexit vote failed. Employment Tribunals claiming to be independent of the government seem to be rather detached from being down to earth about the reality of the problem, which in my experience if done intelligently like by my employer to get rid of me, is impossible to prove. ET is not impartial because is failing cases and in it what it doesn’t like to hear, comfortable with secure jobs and wages of over £100 000, detached from or impossible to level with scared oppressed squashed EU citizens .

Ie. in K_Stefanko_and_Others_v_1__Maritime_Hotel_Ltd__in_voluntary_liquidation__2__Mr_N_Doherty_UKEAT_0024_18_OO, the women were swore at, thrown out of the building with nowhere to go, and had to drive straight to Dover and to Poland, had a audio recording to prove, called “self-centred Polish bitch” and “Fuck off from my hotel and take your Polish friends with you”, mocked accent AND STILL RACE DISCRIMINATION WASN’T FOUND BY ET!

It is the Respondent who denied all situations taking place, ie. denied in ET3 form and amended ET3 form, that Claimant was given instructions not to speak Polish after Brexit vote, only to later change ‘justification’ (on Claimant producing evidence e-mail) to that of alleged Urdu speakers also being given those instructions, which was not proved and Claimant recalls Umer Khan and Shanny Khan speaking Urdu (as well as MD, Ajaz Rathore himself) often in open office next to her (Claimant did not mind whatsoever) , and entirely insignificant as Urdu speakers would not have been affected by Brexit vote certain adverse climate, directed at EU citizens and those instructions could have been given any time and not specifically post Brexit vote. The instruction to speak English was not set in Employee Handbook, despite office standards or clothing being covered. The burden of proof should have shifted to the Respondent.

Witness credibility of Ashley Jackson (AJ). And the text message

In the law of evidence, a credible witness is a person making testimony in a court or other tribunal, or acting otherwise as a witness, whose credibility is unimpeachable.

A credible witness is “competent to give evidence, and is worthy of belief.” Wikipedia

Claimant in sending text message on the 11 Sep 2016 at 7:29am (and not “This was sent on the very early hours , as Saturday night turned into Sunday morning.” AJ Witness statement) was telling her harasser to stop, distressed but still following Respondent’s Policy. Claimant loved the job itself and was coming through after some initial obstacles.

The person she could only go to, with ‘this’, was Zarina Greenhalgh, but it was announced on Fri, the 9th of Sep 2016 that she was leaving. There was no HR person as such Claimant could go to, neither First Aider, she knew about. She couldn’t definitely approach MD about sexual harassment, also not according to Policy.

Confidential helper was not named in Policy or provided in an induction.

Respondent’s Policy reads [page 158/159 in the Bundle]:

PERSONAL HARASSMENT POLICY AND PROCEDURE

D) COMPLAINING ABOUT PERSONAL HARASSMENT

1) Informal complaint

We recognise that complaints of personal harassment, and particularly of sexual harassment, can sometimes be of a sensitive or intimate nature and that it may not be appropriate for you to raise the issue through our normal grievance procedure. In these circumstances you are encouraged to raise such issues with a senior colleague of your choice (whether or not that person has a direct supervisory responsibility for you) as a confidential helper. This person cannot be a Director who will be responsible for investigating the matter if it becomes a formal complaint. 31 Issue 6

If you are the victim of minor harassment you should make it clear to the harasser on an informal basis that their behaviour is unwelcome and ask the harasser to stop. If you feel unable to do this verbally then you should hand a written request to the harasser, and your confidential helper can assist you in this.

Formal complaint

Where the informal approach fails or if the harassment is more serious, you should bring the matter to the attention of your Manager as a formal written complaint

On receipt of a formal complaint we will take action to separate you from the alleged harasser to enable an uninterrupted investigation to take place.

The evidence showed that the Claimant asked twice to be moved, even temporarily, before sending the text, then in a text, and in an e-mail to MD on 14 Sep 2016. We heard evidence from various witnesses in relation to office sitting plan, that people move constantly in the office, and that there was clear desk policy, so no desk was ‘personalised’. There were free spaces. Even a day or 2 in a separate meeting room would make a difference to ‘sort matters out’.

The Respondent did not take any steps to address it from 12 to 14 Sep 2016. This was a ‘torture’ for the Claimant especially she’ve seen AJ showing her text to Zarina on Monday, the 12 Sep 2016.

All because AJ thought what Claimant implied was “nonsensical” and not what he would expect of her(witness statement) and the MD didn’t have spare/replacement resources and the timing was not too perfect.[Bundle 311] Three senior personnel knew of the problem and waited for me to act (leave?).

AJ gave evidence regarding text message, first that he didn’t know it came from Claimant (I’d received the message and wasn’t sure Kat was even the sender-w.statement), when Claimant produced screen shots and casual communication history, he then said that ‘he unfortunately failed to raise the matter with the claimant before she went home sick on the following Wednesday, because Claimant ‘ignored him’.(Judgment p.59)Then in his oral evidence he said that him and Zarina agreed on Monday, the 14 Sep 2016 agreed to see how the rest of the day will go and that after Claimant have sent him the text and they didn’t speak for 3 or 4 days at work so he don’t know how it would have failed (ref. the approach from Policy, which is there to protect potential victim and not Perpetrator) or got more serious. But all in all that it was in his personal view too nonsensical to even deal with.

“On Mon, 12 Sep 2016. MD suggested that AJ confirm with Kat that she had in fact sent the text as there seems to be some doubt.”[Bundle 295] But AJ didn’t in 3 days.

AJ affirm on the stand to be telling the truth.

AJ advanced several additional inconsistent versions in his witness statement to which he reacted with ease when caught, namely:

  1. “I am Sales Support Manager at R-Com. I have worked in this role since joining the company on 6th July 2015. “ when in fact he was promoted to the Manager around May 2016 and was hired, just like Claimant as Sales Support Coordinator;
  • Ashley Jackson revealed to the Claimant in the office, that he saw Sue Dando and Ajaz Rathore at the cinema, and that Ajaz Rathore bought Sue Dando ticket, as she didn’t have any money. Sue Dando in her witness statement verified, that this occurred.
  • In reference to comments made in a male dominated meeting post IP Expo 2016, about Duncan speaking to a Russian contact at the IP Expo 2016 and AJ making remark: Did you get anywhere with her, as she was Russian after all. Everyone laughed but the Claimant (Claimant’s view what took place). To which AJ gave two contradicting versions:

“Regarding the IP EXPO comment, in a sales meeting Duncan asked who is going to the IPEXPO in general not just to AJ, he then stated that some of his contacts (Russian females) would be there and indicated they were attractive -apparently everyone laughed”[Bundle 295]

And

“16. I did go to the IP Expo. It has become an event of gargantuan importance to our business after the huge success we had there in 2015. In 2016, I believe the event was held on Wednesday 18th and Thursday 19th of May. I do not recall hearing anything said about any Russian women. A number of companies at this event hire models to work on their stand, so someone may have said something in connection to this, but I could not possibly say this was Duncan or if I was even present, just that I know I did not make these comments”.[witness statement]

He also later confirmed to his Representative that Duncan made the comment.

  • In reference to ambiguous comment “I am hot”, which he confirms he made and later addressed in his witness statement:

“22. Concerning the fans on the desks, it was a hot day in the office and the temperature was high. Someone was going round the office asking if anyone would like a fan and I said yes and asked for one saying that ‘I was hot.’ My reference to me being hot was simply that, I was hot due to the temperature. I was not saying or implying that I found myself to be handsome or attractive like Katarzyna has implied. “

Office has air conditioning and there were no fans on desks, on which clear desk policy applies. Claimant had really small usb laptop connected fan she hide in her drawer in the end of the day.

Respondent’s witness statements were finalised on 27 July 2017, about 1 year since Claimant has left off sick. This is rather over confident statement that ‘it was a hot day in the office and the temperature was high’. There is no specific date in pleadings for this incident.

The comment was made in a totally different and sexist meaning.

In Driskel v Peninsula Business Services Ltd. and others[2000]IRLR74

Even though the remarks made are the same , their effect as between women and men is likely to be different since women are more likely than men to find such remarks intimidating.

  • The text was sent on Sun, the 11 Sep 2016 at 07:29am (not ideal time due to distress) but not as AJ states: This was sent on the very early hours, as Saturday night turned into Sunday morning.

Pic. Time of the message is in the bottom left corner, 07:29am.

  • AJ witness statement claims that Claimant made an error with the invoice but e-mail evidence confirms that was a quote, and there is a difference. This is just another inconsistent version on AJ witness statement.

“9. On the one occasion when Katarzyna did make a mistake, I was very sympathetic about it as it was her first error (Page 132). What Katarzyna had done was provide an incorrect invoice. This meant that R-Com were losing out on money as 2% should have been added to our service cost which Katarzyna had failed to do. “

But on page 238 Bundle:

Just been in with Ajaz and it appears that a renewal quote has been done by yourself for Luke earlier this month.

For avoidance of doubt this is a definition of an invoice:

Therefore, from a seller’s point of view, an invoice for the sale of goods and/or service is called a sales invoice. An invoice is a payment request. Invoice – is post sale.

And quote: Where a quote is give someone (the estimated price of a job or service). Quote is pre-sale.

In the situation described the problem was that the sale didn’t take place.

AJ knows the difference, as this is something he does in his role. The evidence was about quote and not an invoice.

This was standard behaviour of the witness, who often said or acted as if not to understand the concept and even Judge had to explain in several different way, eg. the comment of ‘I am hot’ saying ‘I don’t understand why I need a fan on your desk’, or ‘If I said I was hot why would you need a fan?’ or in case of an invoice untrue statement he would pretend those are the same things.

AJ is no doubt an intelligent individual promoted to a Managerial role at the age of 25. He has a degree in journalism and editing experience, and displayed many times the word play in his communications, eg using words like: ‘an event of gargantuan importance’, ‘it was nonsensical’, ‘have a relaxing day’ and ‘something you feel will inject more positivity’[251], ‘I always have a laugh with the guys’[p251], ‘we are part of a bigger machine’[p.251], ‘something that Ajaz did not dissect properly’[p.251], ‘everyone is really happy with you and Sales Support body’[p.251], ‘you are a vital piece’, ‘fantastic!, Superstar of the team’[p.253]. Saying often ‘sweet’ and ‘I am hot’, which in certain situations could have been misconstrued.

On the balance of all probabilities, AJ could have used ambiguous ’word play’ if he intended to seduce, flirt, or show affection. He sat next to Claimant with often no one on the opposite side (Zarina in and out of the office, Emma Crump moved in just 2 weeks before Claimants going off sick] to witness or overhear and in the far corner of the office. AJ is to clever of an individual to use direct language. Zarina Greehalgh said about him in her witness statement: ‘Ash Jackson is one of the quietest’, and in grievance witness interview ‘ZG again re-iterated that in her opinion AJ keeps himself to himself, he is generally quiet’.

This could as well indicate his secretive nature.

It is Claimant’s opinion that AJ is not as innocent, as he might seem to appear. Without doubt he is likable but he is not innocent. Advancing inconsistent versions and not being truthful on his witness statement shows just that.

Above several inconsistent versions of his witness statement and acting ‘as if not understanding’ simple concepts; selective remembering, knowledge of the full content of Claimant complaint from as early as 11 Sep 2016 and involvement in the process gave him time to prepare believable answers, all in all whose credibility is not unimpeachable.

The Tribunal should not substitute its view for that of the witness whose credibility is not unimpeachable.

It was confirmed by Laura Halsall, Ashley Jackson spent a lunch break with his legal representative (nevertheless of the time they spend together or the content of their conversation) he was under oath in the middle of giving evidence and instructed specifically by the EJ Sherratt to spend his lunch alone, away from his party. This was confirmed to Tribunal on 19 Nov 2018 at 09:30 email from Laura Halsall Urgent for Judge Sherratt, but no action taken.

CLAIMS GROUND FOR APPEAL

Allegation1 -At the interview personal comments made towards my ethnicity, “your English is a little broken” and “Is your boyfriend also Polish?

The Respondent took Mr Ajaz Rathore from their witness list, despite him  being originally listed (point 9 above, 21 Feb 2017 )and Claimant querying this change in a preliminary hearing on 16 Mar 2019. The Respondent accepted in their closing statement at the hearing that the comments were made, but sought to justify it.

As per point 6 In relation to extending time limits for race discrimination claims Claimant made application, as early as on 22 Feb 2017-request for extending time under Rule 5 of Employment Tribunals Rules of Procedure 2013.[page 44-45 in the Bundle] Claimant was under impression that it was allowed having this not being brought up in later proceedings, not on 3-5 Sep 2018, not 11 Jul 2019.

This was not questioned at the Hearing; but Claimant asserted that she intended to selvage the relationship with the employer, by sending Grievance e-mail on the 14 Sep 2016 and asking to move desk on her return, but didn’t feel it would  be helping her situation to add race and nationality allegations to it. Especially given already ‘difficult’ experience with Mr Rathore insofar.

Claimant first indicated race discrimination at the earliest opportunity she felt it was possible, and in her grievance letter, 14 Sep 2019 said “Equality awareness in the office is very poor(…)[Bundle p.285]

And on 19 Sep 2016 [Bundle p291], but not addressed by Respondent:

“In my opinion the equality (gender, race) awareness in the office is very poor and it seems

everything is allowed (perhaps attempts between blokes ‘to score’ on a female colleague is

fairly possible and allowed from where I seat).”

After receiving the final grievance response she raised race discrimination to ACAS in her early conciliation on 11 Nov 2016.

Respondent did not follow own Policy on interviews being performed by 2 people.

“Ajaz Rathore initially began the interview with the Claimant, but then asked me to join them. “Zarina Greenhalgh witness statement

At the interview stage Claimant had no ‘luxury’ of not accepting a job because of an offensive comments. This is because of approximately 100 applicants for every job she would apply for and tougher conditions to secure employment prior to Brexit vote. Also because Claimant needed the money.

As to it appearing to be isolated incident, Claimant feels to the contrary, which she indicated she was treated less favourably and more harshly on several occasions, eg being told off harshly by MD about two things she apparently did wrong on her second day at work, which she didn’t, later ‘targeting’ for errors perhaps to line up poor performance evidence to allow unsatisfactory capacity review and assuming some kind of sanctions, maybe to her wages. See Respondent’s Capability Procedures Bundle p 151: We recognise that during your employment with us your capability to carry out your duties may deteriorate. (…)you fail to keep pace with the changes,  or you change, and you can no longer cope with the work” And this is being subject to Disciplinary Procedure [Bundle 156].

It is not relevant, although also not proved or known to the Claimant, that if the Respondent asks the same questions to all its recruits, because this is Claimant’s sole case and not those recruits. Statement ‘your English is a little broken’ is also not a question. It is Claimants dignity was violated and she was treated less favourably to a British male recruit, who even if asked by male MD whether his girlfriend was also British, would not have been impacted in the same way as opposite sex recruit (Claimant).

In NagarajanvLondon Regional Transport[1999]IRLR572HL, House of Lords held that the motivation of the person committing an act of direct race discrimination may be conscious or unconscious.

In Amnesty InternationalvAhmed[2009]IRLR884EAT, a race discrimination case, while in some cases the ground, or the reason, for the treatment complained of is inherent in the act itself, in others the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie. other mental process (whether conscious or unconscious)which led a putative discriminator to do the act.

The same person on the 14 Sep 2016, knew of Claimant’s raising sexual harassment for 3 days, but told Claimant in a really desperate situation[Bundle p.311]:”again its wrong timing not sure what we could do, uhmmm we don’t have that cover(…)” and didn’t take any action seeing Claimant visibly distressed chasing him twice in a day to address matters.

MD’s actions (and not just an isolated incident) were motivated by Claimant being a Polish woman in weak position, and with ‘a little broken English’.

Please allow an appeal with a correct discrimination test.

Allegation2- Called ‘on the carpet’ and treated harshly by MD

It was Claimant who brought to Employment Tribunal attention MD, Ajaz Rathore describing himself as having OCD, rather as a humour comment, than illness or disability [Bundle p 22]: “king of OCD and master of the desert menu” on D4digital Ltd portal.

Respondent did not defend this claim.

Please also see submission in Allegation1. This was in Claimant’s view continuous less favourable treatment attempt and base on being Polish remark from interview, this was because Claimant was Polish and MD thought less of her.

MD locked Claimant’s laptop in his office and Claimant couldn’t start to work until she found it. Everyone could see what was happening, which was rather intimidation in new office. Claimant didn’t know of clean desk policy and wasn’t late.

Please allow an appeal with a correct discrimination test.

Allegation3– Post-Brexit questioning in public open plan office about what am I going to do?/residency/visa and passport

Respondent had denied this occurring in their ET3 responses.

If not for the Claimant proving otherwise leading to Zarina Greenhalgh admission in her witness statement, Respondent intended to hide that this occurred. If it was a ‘friendly concern’ like the Respondent claims, why would this be denied.

.”I do remember asking questions of the Claimant, although not precisely what they were. (…)I think I asked questions along the line of whether she was ok, whether she would be able to stay, and so on.”ZG

Claimant would like to bring to the Tribunal attention fact, that events leading to/post Brexit vote, were not of those friendly towards EU nationals also reported by media [Bundle p.231-232 Horrible spike in hate crime linked to Brexit vote, and p.233-234 Claimant’s car vandalised twice in a year].

Also recent case law in relation to Brexit vote might indicate general atmosphere:

In  Mr J Day v Alloga UK Limited, 2601591/2016

“This Judge is also very much aware, as it was widely publicised, and from my own knowledge as an Employment Judge, that many European Union workers in this country were fearful for their continued employment in the United Kingdom should the outcome be Brexit. Would they have to return to their country of origin?”

In Mrs M Green v South Cave Kids Club, 1800950/2017

“12. (…)South Cave and the surrounding villages voted unanimously in favour of BREXIT. No doubt this was determined by the negative light in which large amounts of Eastern Europeans are seen working as they do in the local horticultural and market gardening industries. The staff and management round this time, would make racist comments like ‘send the eastern European workers home’ or ‘these eastern European workers are taking our jobs’ knowing full well that Marie Green came from the Czech Republic.(…)”

In Mr A Puri v Interalinks Ltd, 2200418/2017

“113.(…)the Brexit effect had led to diminished client activity, and hence adversely affected his performance. She had responded by acknowledging that the Brexit vote had had a negative impact on the volume of deals being done, and commenting that, had that not happened, they might have been having a different conversation with him at that point. However, she told us that she recognised that the Brexit effect would not just affect him,(…)114.(…) a recognition of what might be called the Brexit effect.”

Tribunal failed to recognise, it being relatively a new concept, that those conversations with EU nationals were not neutral from the EU national point of view, who was scared and freighted about the implications of Brexit vote.

This was a case in Claimant’s circumstances. There were only 2 EU nationals at the office, but only Claimant was questioned intensively by Zarina Greenhalgh and Ashley Jackson. If not for those questions there might have not been discussion at all or the Claimant would not engage in those discussions. She was left without choice. It was in an open plan office which was very intimidating. This was insensitive to question Claimant in open plan office (very quiet one at times) not knowing her that well, if she would not get upset or how this affected her. Especially by Senior Manager.

Please allow an appeal with a correct discrimination test.

Allegation4– Increased scrutiny and fault finding, targeting and finger pointing

Claimant was hardworking and in fast pace pressurised sales environment coped well with complex email enquiries for up to 200 enquiries per week, which needed to be dealt with quickly. She had extensive experience in Excel and complex computers systems.

Documents disclosure to show just that was refused by the Respondent.

Ashley Jackson states in his witness statement, however:

7. I did enjoy working with Kat. She was brilliant at her job. Due to her many years of experience working within the Microsoft Package, I was able to learn some things from Kat myself and I was thankful for that.

Please see Capability Procedures [Bundle p.151]: “We recognise that during your employment with us your capability to carry out your duties may deteriorate. (…)you fail to keep pace with the changes,  or you change (most commonly because of health reasons), and you can no longer cope with the work” And this is being subject to Disciplinary Procedure [Bundle 156].

Would the Claimant continued working (if not for falling sick with stress) for the Respondent, being increasingly pressurised to do more work – a collection of apparent errors would have been used to harm her/discipline her, even if it was difficult to prove that error wasn’t 100% Claimant fault, being in training and on probationary period, Sales Managers were bound to check quotes before sending them to the clients.

On balance of all probabilities the Respondent attempted to do just that because Claimant being Polish woman in weak socio-political position. Respondent’s Capability Procedure is designed to protect employer, if he lets say, would be keeping increasing person work up to the breaking point and a potential indirect disability discrimination, if not illegal activity under Health and Safety Regulations and Employment Rights Act. And this is why 21 people have left in a year! The entire teams are being replaced in regular intervals, it may seem using in-house Recruitment D4digital Ltd. I was told by Ashley Jackson, that many, if not entire Sales team was sacked in Dec 2015.

D) JOB DESCRIPTION

Amendments may be made to your job description from time to time in relation to our changing needs and your own ability.[Bundle p.132]

Ashley Jackson admitted in his evidence, that having done the same error at the beginning of his employment, his Manager, Zarina Greenhalgh had a conversation with him and offered support.

He was treated less harshly, because he was British male.

Claimant made an error in the beginning of her employment within first month, on 07 June 2016. The Respondent failed to produce evidence when this was first known to the Respondent that the error was made. Sales Managers were questioned on their ‘big’ deals daily. The updates were daily. Sales Managers checked quotes before sending them to the client, and Claimant never sent quotes directly to the client.

It was not until 28 June 2016, when this was brought up by MD himself. Nobody spoke originally to Claimant at the time, but she sensed something was wrong due to a lot of commotion. In a small office and close proximity it was not difficult to notice.

This being in a week from Brexit vote raised suspicion in Claimant’s eye, additionally other things happening at the same time, like questioning Allogation3.

Suspicious is also an e-mail in which Ashley Jackson tells Claimant off but at the same time highly praises her on her work. Claimant is no ‘snowflake’ and worked in administration for some 14 years, including roles as Business Support Executive and Planning Administrator. She was a Team Leader in very busy salad factory for over 2 years, in freezing conditions.  Claimant can take constructive criticism. This was just targeting because she was Polish.

Please allow an appeal with a correct discrimination test.

Allegation5– Denied to speak Polish with fellow Polish colleague (only us two were Polish) who was leaving in 3 days when it was perfectly fine prior to referendum.

Respondent had denied that those instructions were given in their ET3 response and thereafter. If not for the Claimant proving otherwise (producing e-mail) followed by Zarina Greehalgh witness statement admission, this would not be looked at by this Tribunal. Respondent then submitted a justification, first saying those were Arabic speakers than changing to Urdu speakers. Should this be the case why would Respondent try to hide the fact that this occurred in the first place.

Urdu speakers were not affected in the slightest by Brexit vote, unlike EU nationals. Those instructions could have been given to them at any time. Respondent failed to provide evidence on this taking place at all.

It is Claimant understanding that there are several Urdu speakers in the office, including MD himself, and she could hear Shanny Khan and Umer Khan speaking near to her many times. Claimant didn’t mind that at all.

Claimant and another person, who was leaving 3 days from when the instructions were given post Brexit vote, were the only Polish/EU nationals, who spoke many times in the office, sitting opposite -2 places, to each other could speak comfortable prior to Brexit vote but not after. This was really upsetting and intimidating to the Claimant.

There is nothing in the Rospondent’s Employee handbook to read that was a general rule, although standards regarding the office are covered.

If the Claimant spoke in private before, and not in the office, according to Zarina Greenhalgh witness evidence, how could she hear them speaking.

This is because she head Claimant in the office and not in private.

The instruction was less favourable treatment and harassment, because of Brexit vote result.

Please allow an appeal with a correct discrimination test.

Allegation6– Comments Chris Haresnape ‘Brexit won’t happen soon enough and more people will be coming until then because Britain is where they can speak English and work’ and ‘people come here expecting/having ‘icing on the cake’.

Claimant doesn’t dispute this claim, as her evidence(word) was not preferred against Chris Haresnape’s evidence (word). Claimant is adamant that this took place.

Respondent admitted Brexit related discussions took place in the office.

Please allow an appeal with a correct discrimination test.

Allegation7– MD unexpected outburst in my direction ‘who else has a problem with Sales Support’? Being physically occluded from speaking out ‘This is a little unfair’

Respondent failed to produce relevant witness, Ajaz Rathore, previously listed.

Evidence by the Claimant show being treated more harshly by MD previously.

The impact those comments made on the Claimant but not on Ashley Jackson, indicate they were not directed at Ashley Jackson, or he already knew the feeling of “not feeling valued himself”[Bundle p.251]. It took 1-to-1 meeting with Zarina Greenhalgh and several e-mail communications to clarify the issue, that “is was something Ajaz did not dissect properly” to the team. Claimant was in vulnerable position and new. She didn’t know MDs management technic. To the Claimant this was a string of targeting and fingerpointing, as per Allegation 1-5.

Please allow an appeal with a correct discrimination test.

Allegation8– Claimant too upset to take part in office fun& games as sole person out. The ‘fun facts nobody knows about you’ re Claimant were still brought out to everyone’s amusement

As per Allegation7 this was string of continuous incidents and not as innocent as they appear. Respondent’s witnesses ‘close ranks’.

Claimant complained of stress, anxiety, increased workload since as early as July to her Manager and to Chris Haresnape.  She went off sick with stress. This was ignored by the Respondent. There was no return to work interview, as per Employer’s policy.

Bundle page 240, Claimant to Chris Haresnape and Ashley Jackson on 08 Jul 2016:”Please note I am unwell today and won’t be able to attend work.”

Bundle page 235, Claimant to Chris Haresnape on 12 Jul 2016: “Because so many people left recently it has been really difficult as well to stay positive in this office environment and Damian has been my friend.”

Bundle page 245, Claimant to Ashley Jackson on 12 Aug 2016: “Really sorry to cause commotion, I have been feeling stressed and exhausted recently, as work have been hectic”.

Bundle page 237, Claimant to Ashley Jackson on 05 Sep 2016: “This change make me feel anxious and nervous, as this wasn’t explained to me”. (increased workload from D4digital Ltd.)

Claimant originally was happy to take part and sent ‘fun facts’ but then was too intimidated and upset, as it was in a week after MD accused her, to her total surprise and contrary to her Line Manager opinion of her work, of not doing enough and having problem with Sales Support in a team meeting first thing in the morning on the 10 Aug 2016.

It is Claimant’s personal view, that the atmosphere of fear culture and bullying was at the Respondent’s premises.

Fun facts were still revealed in her absence, despite everyone seeing Claimant didn’t take part and was struggling. Insensitive comments were passed after an employee suddenly left, like ‘we blew his brains out’.(p.19 about David O’Donnell, who left 3 weeks into the job subjected to very intense training routine).

There was so many things like that.

There is extensive e-mail evidence that Claimant was so affected to ask to move breaks, but office games times were changed daily and she had to sat on her own and isolated. No reasonable adjustment was taken.

Please allow an appeal with a correct discrimination test.

Allegation9– Increased workload under pressure for D4digital Ltd. Marketing and financial Power Point presentation and drafting employees commission terms and conditions in separate meeting room

The Respondent couldn’t find Claimant competent to do more for D4digital Ltd., when she complained of being overworked, stressed and anxious.

Evidence also confirms that MD, Ajaz Rathore ‘kept himself distant from Sales Support work’ so didn’t know Claimant’s scale of workload.

Grievance raised in writing to Manager was not addressed, nor responded to.

Bundle p.237 on 05 Sep 2016:”D4digital work. Can you please request all tasks I have to do for D4digital on e-mail and advice how long they will take? This is to allow me organise my time with tasks I have to do in my job, as we are very busy. I am also on probation period and would like to understand why since last week I am being assigned more and more work for D4digital, when Courtney was helping previously on her apprenticeship.”

Overspill D4digital Ltd. tasks were earlier completed by a British woman, who didn’t want do them anymore, as they were a nuisance.

Claimant was targeted with additional work because she was Polish and in a dominant male environment, where a culture of ‘sexist’ comments was a norm (see comment about a Russian models which Respondent admits was made originally by Duncan, it is Claimant evidence that Ashley Jackson added to it ‘You will be able to get anywhere with her, as she was Russian after all’ in a sexist context, ) and treated less favourably post Brexit vote, when she was in weak socio-political position.

There was no increased workload prior to Brexit vote.

Respondent’s Employee Handbook indicate: D) JOB DESCRIPTION

Amendments may be made to your job description from time to time in relation to our changing needs and your own ability.[Bundle p.132]

But it doesn’t indicate that you are a shared resource within the group of companies.(incl. D4digital Ltd.)

The work is increased despite raising it is above “own ability”. It is imposed on you.

This allegation is related to, arising from Allegation7, therefore if not for Claimant being Polish woman in weak socio-political position, she would not have been treated less favourably and more would have been done to address reasonable adjustments.

Please allow an appeal with a correct discrimination test.

SEXUAL HARASSMENT

Allegation10– Casual Friday – sexual harassment by Line Manager ‘stared me down’ sitting next to and in front of other male Managers (inappropriate gaze)

Ashley Jackson in his evidence confirmed, that he knows what ‘staring down’ is.

In Bundle page 251 he confirms “I always have a laugh with the guys(…)”

He sat next to the Claimant back turned to the whole office, with no one usually sitting opposite, as Zarina was in and out of the office and sat opposite Claimant when she was in the office.

Ashley Jackson made ambiguous reference to her body in an e-mail.[Bundle p.252] Respondent also ‘wiped out’ all remaining e-mails evidence correspondence between Claimant and Ashley Jackson, by cancelling her Office365 subscription only a month after she went off sick. The reason why those e-mails were not available from AJ separate laptop is odd –to specific dates requested on document disclosure since Feb 2017, and remains a mystery, although much effort has been put in by Respondent to present different explanations of this suspicious undertaking.

It is clear that evidence have been tempered with.

Claimant informed of harassment on e-mails and using sport sites by Ashley Jackson on 19 Sep 2016, but in grievance investigations Respondent failed to check them.

Respondent also has an E-mail Monitoring Policy, [Bundle p.141]:

“We reserve the right to monitor all e-mail/internet activity by you for the purposes of ensuring compliance with our policies and procedures and of ensuring compliance with the relevant regulatory requirements and you hereby consent to such monitoring. This includes monitoring of any additional accounts you may be requested to set up for the purposes of performing your work tasks, which are subject to the same rules as your work email account. Information acquired through such monitoring may be used as evidence in disciplinary proceedings.”

The way in which Ashley Jackson gave evidence, while Affirming to be telling the whole truth, shows how easily and effortlessly misleading and lying came to this witness. Claimant showed at least 5 instances of his witness statement inconsistencies.

It is not just Claimant who felt of inappropriate behaviours within Respondent’s premises.

Emma Crump, Marketing Manager and a First with Honours Marketing Graduate, who left shortly after Claimant, said in her interview on 21 Sep 2016:

“she said there had been one e-mail from one member of staff that could be construed in that way.”(inappropriate behaviour or language towards her)

Note grievance notes were not disclosed by the Respondent up until 04 Jul 2017, following Claimant persistent chasing.

The e-mails still have not been investigated.

There was a sexist banter, gossip and comments in the workplace. And this has been confirmed at the hearing. (banter and laughter about Russian models being at the event, gossip and hearsay who fancied who, saying ‘I am hot’, ‘sweet’ and references to body).

Judgment 61. reads, “that female members of staff who said that whilst there may be the odd off comment about women generally(…)” proves on the balance of probabilities that there was in fact ‘sexist’ environment, as there is no smoke without a fire. Casual Fridays were specifically accompanied by ‘those’ behaviours.

Another member of staff indicated potential sexual harassment, but it was not investigated also. She left.

In B and another v A[2010]IRLR400, EAT held that Tribunals must be alive that stereotypical views of male and female behaviour exist.

Ashley Jackson was secretive, ‘kept himself to himself’ and skilled in a ‘word play’. He is not as innocent as it might first appear (he was untrue at least 5 times in his witness statement).

Claimant was consistent in 3 years of proceedings about what had happened. She confirmed her evidence on stand while questioned for over 2 hours on all details, with many questions biased and designed to tell otherwise (grapes and not fruit salad).

In Driskel v Peninsula Business Services Ltd. and others[2000]IRLR74

Even though the remarks made are the same , their effect as between women and men is likely to be different since women are more likely than men to find such remarks intimidating.

In Alam v London Probation Trust EAT/0199/14, EAT held that what is required is not that the treatment is solely because of a protected characteristic, but that the protected characteristic is an ‘effective cause’ of the treatment.

Claimant being Polish woman in weak post Brexit vote socio-political scenery was an easy target.

Accumulation of incidents of less favourable treatment and harassment in a short period of time shows, that there was in fact something going on and led Claimant essentially to fall very sick and to be disabled, which started at Respondent’s premises.

Please allow an appeal with a correct discrimination test.

Allegation11-Casual Friday – sexual harassment by Line Manager, who in 1-to-1 meeting while giving me distressing news i.e. Zarina leaving and his trip to Madrid in a weeks’ time needing extra cover, stretching and showing his bare biceps looking on my reaction.

In Zarina Greenhalgh evidence we’ve heard, and even seen her upbeat presentation of Ashley Jackson stretching often in short sleeve T-shirt, while kissing his bare biceps saying ‘welcome to the guns shop’.

This isn’t acceptable behaviour for office environment, it is not a gym or a boxing club.

In Claimants claim he did the very same thing, but only glancing on his biceps and then on Claimants reaction. He would be often stretching and was as if proud of his body. He would be talking about boxing for sports.

On the balance of all probabilities Ashley Jackson behaviour violated Claimants dignity and created offensive, intimidating, degrading working environment. His ‘stretches’ were not neutral, but aimed to draw attention to his ‘guns’.

Claimant went to work to do the job, also quite demanding of focus and concentration in 9 hours per day, and 45 hours a week, in a fast paced sales office.

Claimant aim was to get through the day, deliver and for her employer to be happy.

Claimant didn’t need any inappropriate entertainment or wasn’t looking for boyfriend or to be advanced on or seduced while at work.

Claimant should not have been exposed to inappropriate behaviour at work, which violated her dignity and created degrading, hostile, humiliating and intimidating working environment for her.

She just wanted to work in piece, but Claimant’s working environment has been affected to a degree that she asked 4 times! to move desk, as couldn’t cope in those settings.

In Strathclyde Regional Council v Porcelli[1986]IRLR134CS, EAT held that treatment of sexual nature to which a woman was vulnerable, but a man would not have been. What mattered was the treatment, not the motive behind it.

Please allow an appeal with a correct discrimination test.

Allegation12-Ashley Jackson said to me, that ‘I keep a fan (small mini usb fan) on my desk because he is so hot’ sitting next to him, as to cool myself down feeling attracted to him sitting so close (sexual innuendo). There were never fans distributed as air-con was in the office. Inappropriate ambiguity(plausible deniability), comments and behaviour (eating ice creams, gapes or peeling tan, showing his knees). Sexist gestures by senior staff

Pic. First from the right-Zarina Greenhalgh, lady next to her wasn’t there at Claimants time.

There weren’t ever any fans in the office, which was air conditioned.

Re ‘you keep fan on your desk because I am so hot’ comment – Claimant had private mini usb-powered fan connected to her laptop, more as a desk gadget than anything else.

Ashley Jackson admitted to saying ‘I am hot’. Sequence of behaviours and banter was surrounding this incident. Taken out of context it might be understood as ‘I am hot’ due to high temperature in the room, which was air conditioned and therefore never above room temperature, but then would have been said differently, maybe ‘it is hot’ as if in here. But then it can be understood in someone who likes to expose his bare biceps and kiss them while stretching and is clearly proud of his appearance, as ‘I am hot’ meaning very attractive and confident.

The comment was made in relation to Claimant small fan on her desk and meant as banter.

He ate grapes in rather unnatural was and in slow motion, while holding them as vine up biting each grape one by one, while sitting next to Claimant, usually with no one opposite. He confirmed he ate them this way.

Sequence of behaviours and banter was surrounding this incident.

It made Claimant uncomfortable and created humiliating and intimidating working environment for her to the point she used to turn her laptop from Ashley Jackson, not to pay attention what he would do next.

Claimant felt drained and burned out having heavy workload and having to deal with ‘unspecified’ behaviours like that. Claimant wasn’t reading into it, it just didn’t feel right. Ashley Jackson knew Claimant had a boyfriend.

Eating ice creams and banterZarina Greehalgh confirmed in her evidence [Bundle 294], that she was the only female in sales team meetings. Claimant was as well. Although the Respondent called some female witnesses, those were at time of Claimant’s employment spread out in the building (Emma Crump, Michelle Halliwell and Sue Dando sat in the opposite corner of the office, as did Courtney Norris, Zarina Greenhalgh due her field role was in and out of the office, Lilly Newman wasn’t based in the office as she was an external consulatant, Grace Lyons wasn’t there when Claimant worked and Lauren Hibbert worked in separate office behind closed doors) and rarely, if not at all sitting in close proximity to Claimant.

Claimant confirmed in her evidence questioning by the Judge himself in relation to banter/charged atmosphere and lads talk examples, and she gave examples:

the banter, was coming back to Lauren Hibbert, the model (in the office) she was working in an accounting office opposite my bank in the secluded office and the boys usually chat when she walked into the office or out, for example one IT Technician went to her office and the banter was ‘Oh he is going inthere, oh he is trying, he is going there’ or when she was coming out of her office they were saying oh she is coming, or she is going

So about talk between the guys it was mainly about the females, silly comments. For example another sales person was on the phone and every other guy said oh you trying, you going there, something like that directed at females and I could hear it

This was very uncomfortable to me not in a way that the comments themselves were offensive, as if language, but the FACT that I knew guys were talking like that between themselves, suggesting attractiveness, just made me self-conscious to the point that I felt paralysed to walked through the whole office at times, for fear of being watched and commented on.

Eating ice creams. All male colleagues ate ice creams at their desks, but I never ordered one. The office was sometimes very quiet that ‘you could hear the pin drop’, especially when everyone was eating. It could be heard the licking noise and ‘appreciation of taste’ noise. I have nothing against eating ice creams whatsoever and it was nice from MD side to buy staff ice creams, fruit bowl and sometimes delicious food and allow to watch football.

But I was the only female sitting there with man around me licking ice creams. This was very intimidating experience and made me feel, that I didn’t want to sit there. It was unwanted conduct that created intimidating working environment for me.

Peeling tan

It was when Ashley Jackson took his shirt up and showed his tan and peel off at the time saying ‘his tan was peeling off’. It was after Ashley Jackson came back from Croatia from holiday. I was sitting next to him exposed to this unwanted conduct, which made me feel intimidated.

Ashley Jackson confirmed saying’ his tan is peeling off’ in the office.

Ashley Jackson also has showed his knee in a conversation, why he had to quit playing football and switch to boxing. Claimant was sitting next to AJ and along other things found it intimidating.

This was a sequence of events, some repeating and was not just a single occurrence.

“Coming back home I felt sick to my bones and dreading of next days 8 hours I have to sit next to him.” Claimant, formal Grievance[290]

In Driskel v Peninsula Business Services Ltd. and others[2000]IRLR74

Even though the remarks made are the same , their effect as between women and men is likely to be different since women are more likely than men to find such remarks intimidating.

Please allow an appeal with a correct discrimination test.

Allegation13- Feeling uncomfortable walking around the office (lad’s culture) or to the meeting room alone with Ashley Jackson out of concern lad’s may comment inappropriately(added when remembered)

Meeting rooms were another thing. Ashley Jackson confirmed in his evidence that MD, Ajaz Rathore didn’t like if the doors were locked to the meeting rooms. There were 2 or 3 small meeting rooms, in which I had interview and then induction.

If the doors were locked he would go in and open them, even if there was someone inside. This is what took place at my first day at work. That was a little intimidating and I didn’t understand the reason behind it and made me self-conscious to walk to meeting room and use it.

It all relates to banter and comments that sometimes went around the office:

Judgment 61. reads, “that female members of staff who said that whilst there may be the odd off comment about women generally(…)”

Please allow an appeal with a correct discrimination test.

Allegation14- Raising sexual harassment notification/informal grievance to Line Manager. Senior Management aware for 3-4 days. Not addressed along with surrounding circumstances caused me to fell ill.

By sending text message on the 11 Sep 2016 at 07:29am, Claimant followed Employer’s Policy and asked her harasser to stop, as well as informing her Manager. Claimant wanted to stay in the job and sort this out informally. Claimant was very distressed all weekend thinking about it and didn’t know what to do having not dealt with sexual harassment ever before. The text has some strong language but Claimant wanted the harasser to stop and let her be and work in piece. Claimant suffered some stress at work leading to this text. She tried e-mailing AJ but was unable to on professional social media. Claimant was in fact at breaking point.

A simple acknowledgment or coming to agreement that we understood each other would have made a massive difference, and even stop discussing, thinking about, or focusing on it.

Ashley Jackson didn’t act on it, other than sharing with 2 Senior Managers straight away on Sunday, because he thought it was nonsensical and the language was very different to what he would expect from her.

He also agreed with Zarina Greenhalgh to wait and see how the day will go.

Zarina Greenhalgh, Ashley Jackson’s supporting Manager, admitted in her evidence that it was not her position to act on it, but that Ashley Jackson and her agreed not to act on it and ‘see how the day goes’.

What the Act says   
It is unlawful to instruct someone to discriminate against, harass or victimise another person because of a protected characteristic or to instruct a person to help another person to do an unlawful act. Such an instruction would be unlawful even if it is not acted on.s.111(1)      
  The Act makes it unlawful knowingly to help someone discriminate against, harass or victimise another person. A person who helps another in this way will be treated as having done the act of discrimination, harassment or victimisation themselves. It is also unlawful to help a person to discriminate against or harass another person after a relationship covered by the Act has ended, where the discrimination or harassment arises from and is closely connected to the relationship.    s.112(1)

Ashley Jackson was instructed by MD, Ajaz Rathore to speak to the Claimant, but Zarina Greenhalgh agreed with him not to act.

Ashley Jackson have never had any personal harassment training, as he confirmed at the hearing. Claimant also informed him many times before about being stressed at work – not acted on it either.

Claimant couldn’t go to the Director about it for many reasons at first, but on the 14 Sep 2016 when it was an ‘office gossip’ she couldn’t cope any more being beyond breaking point or to remain sitted. MD told Claimant, that there was no cover and that it was bad timing.[Bundle p.311].He knew at that point about sexual harassment, but didn’t admit it.(Claimant found out through the formal grievance). He has seen Claimant going out of the office with her bag.

There was nobody else Claimant could go to, as she knew, that Zarina Greenhalgh was leaving quite suddenly in a week or 2. There was no HR (other than payroll dedicated e-mail hr picked up by Financial Controller Chris Haresnape) or First Aider.

Ashley Jackson, Zarina Greenhalgh and MD, Ajaz Rathore knew about the text straight away. MD instructed Ashley Jackson to talk to Claimant [Bundle p.295], but he didn’t for 3 whole excruciating days.

Other people decided how the Claimant should feel, or think. This was an unwanted conduct and created for Claimant offensive, degrading, humiliating and intimidating working environment, and caused her serious health problems. Would the Claimant be a male she would be taken more seriously and treated with respect.

The Grievance investigation was cursory, biased and people closed ranks. Outsourced HR services letters made it look fair with proper letterheads, dates and wording. Responding Manager was named in the Grievance with some issues there and Appeal person was an external Consultant, not based at the premises.

It was not revealed to Claimant until 3-5 Sep 2016, that there was actually some sort of HR on board, which would make a massive difference.

Another female employee, Emma Crump also complained of inappropriate behaviour in that context by e-mail in the same investigation. She left shortly afterwards. Many female employees left, since Claimant went off sick, and at least 5.

Claimant complained of harassment on e-mails on 19 Sep 2016, this was not investigated or looked at.

Claimant complained of Ashley Jackson using social media inappropriately while sitting next to Claimant and dimming his screen brightness display, this was not investigated or looked at.

Later all e-mails were wiped out clean.

Claimant let the employer know by the media available to her at the time, she was being sexually harassed, but for 3 full days no steps were taken at all to address it. It would be for Claimant impossible to raise in writing the sexual harassment issue while sitting at work and next to Ashley Jackson, overwhelmed with tasks to do and the usual fast pace.

Please allow an appeal with a correct discrimination test.

Allegation15- Harassment by e-mails from Ashley Jackson with comments, like you will love me for that, keeping me sweet, I will keep you calm or I will make things happen for you.

S.136 (2) of the Equality Act 2010, reads

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.

But subsection (2) does not apply if A shows that A did not contravene the provision.

Claimant informed Respondent about harassment by e-mails on 19 Sep 2019[Bundle p.290]: I have not mentioned lack of appreciation for my efforts. Ashley Jackson (as trained journalist with a degree in this subject) was very keen in writing me e-mails of ‘appreciation’/’keeping me sweet ‘and taking opportunity to flirt while doing so (eg. writing things like he will ‘calm me’ at any time if I wanted or he will make things happen for me).

Claimant insisted on specific document disclosure of all e-mails between herself and Ashley Jackson on 22 Feb 2017[Bundle p.40,88]:

“All e-mail trails between myself and my Line Manager – Ashley Jackson, which should account to approximately 40-50 e-mail trails located on my work laptop Outlook folder ‘Manager’ as well as Sent items. All Outlook items were also stored on Cloud Outlook. This can also be located on Ashley Jackson’s laptop and in his sent items.  This is very crucial to secure this evidence e-mails and should not be a problem, since I am still employed by the Respondent. Those e-mail traits will present the amount of flirting and unprofessional behaviour by this Manager and also no involvement from Ajaz Rathore or any other Manager”

On 06 June 2017, the Respondent objected to disclosure[Bundle,98]: ”The Claimant has requested all e-mails sent between her and her manager.(…) We object to this further request for e-mails.”

But on 04 July 2017, the Respondent informed all of a sudden [Bundle,107]:”As it happens, the Respondent does not hold any of the e-mails between the Claimant and Mr Jackson in 2016, those having been archived.”

Respondent witness, Umer Khan informed in his statement:

  1. On or around the 4th or 5th July 2017 I was asked by Shell Halliwell, Global Education Manager, if I could recover emails sent between the Claimant and her line manager, Ashley Jackson.
    1. When a user leaves the organisation, it is standard practice to block their account after around one month. That is done by removing the Microsoft Office 365 subscription from that user. The subscription is removed by us using an Admin Portal system that we have with Microsoft. Once that has been done, Microsoft will see that user as being inactive.
    1. From the moment that their subscription is ended, Microsoft will keep all emails saved on that user for 30 days. During that period, they can be retrieved, by making a request to Microsoft. After that period, they are deleted / expire and cannot be accessed again.
    1. period specified (21st February 2016 to 18th October 2016).

He then admitted the Claimant’s laptop was brought to him by either Ajaz Rathore or Ashley Jackson with an instruction of removing e-mail subscription. This was done within 1 month since Claimant left sick (but was still employed). The Respondent knew of harassment on e-mails.

The apparent Microsoft ticket doesn’t indicate to which account it relates (it could be of any employee past or present), it also reads: The default retention policy was set and it does not delete any messages.

This is contrary to Umer Khan witness statement (c).

The ticket was closed on 05 Jul 2017, where as per point (a) this is when the witness would be first approached to recover e-mails (if the ticket in fact belonged to either account in question).

If the e-mails were deleted on the laptop Outlook level, they would not reach cloud storage anyway.

Respondent was bound to hold all evidence for litigation purpose, which he failed to do.[Bundle,109]

Both Ashley Jackson and the Claimant had separate work laptops and all e-mails DUPLICATED in both Sent Items folders. Still not disclosed.

Respondent failed to disclose the e-mails to prove otherwise that harassment didn’t take place contrary to Claimant’s assertion since 19 Sep 2016 and tempered with evidence, while not investigating properly at Grievance stage.

Claimant produced 1 e-mail in the Bundle with a reference to body[Bundle,251]. This was just the smallest example of how Ashley Jackson used ambiguous language to make unwarranted advances.

This was an unwanted conduct and created an intimidating working environment for Claimant.

Please allow an appeal to this claim and apply relevant burden of proof test.

Allegation16-Comment by Ashley Jackson (Sales Team meeting all male) about Russian woman at IP Expo 2016 ‘Did you get anywhere with her? As she was Russian after all’.

Originally stopped at Preliminary Hearing –now new evidence surfaced and Ashley Jackson admitted to making such comment

In reference to comments made in a male dominated meeting post IP Expo 2016, about Duncan speaking to a Russian contact at the IP Expo 2016 and AJ making remark: Did you get anywhere with her, as she was Russian after all. Everyone laughed but the Claimant (Claimant’s view what took place). To which AJ gave two contradicting versions:

“Regarding the IP EXPO comment, in a sales meeting Duncan asked who is going to the IPEXPO in general not just to AJ, he then stated that some of his contacts (Russian females) would be there and indicated they were attractive -apparently everyone laughed”[Bundle 295]

And

“16. I did go to the IP Expo. It has become an event of gargantuan importance to our business after the huge success we had there in 2015. In 2016, I believe the event was held on Wednesday 18th and Thursday 19th of May. I do not recall hearing anything said about any Russian women. A number of companies at this event hire models to work on their stand, so someone may have said something in connection to this, but I could not possibly say this was Duncan or if I was even present, just that I know I did not make these comments”.[witness statement]

In Ashley Jackson evidence he admitted that what he was aware of that there would be Russian women at the event, so he would have said something in connection with it, he didn’t recall Duncan’s conversation in the team meeting. But later confirmed to his Representative that Duncan also made the comment.

Claimant found those comments intimidating and they were unwanted conduct she was subjected to while being the only female in a male dominated meeting.

The comments were being made about women specifically in a form of a sexist banter.

Pic.IP Expo [resource public domain]

Allegation20- Harassment by email communication (Ground 10): ‘Disgrace’ three e-mails from Sue Dando, Group Sales Manager to the Claimant. D4digital Ltd (R-com Consulting Ltd group)

Sue Dando confirmed in her witness statement that she has worked as R-com Consulting recruitment partner and “in the same building, in the same open plan office”.

She recruited Claimant into her role, as well as Ashley Jackson and a number of employees for R-com Consulting Ltd. and the Group.

In her witness statement to this case of harassment, Sue Dando decided to share, that she is ‘a single mother with three boys’. This was inappropriate, irrelevant and could form bias and prejudice to Claimant. As Tribunal might prefer to help ‘a single mother with three boys’.

Her role is that of earning commission in a role of Group Sales Director of recruitment agency/consultancy.

Here is a general explanation of how the recruitment consultants work:

When they’ve sourced some suitable candidates, they’ll then send them through to the company for approval, and generally arrange interviews for the best-matching candidates.

Consultants are paid by the employers, and receive their fee based on whether you’ve successfully started in a role.[reed.co.uk]

And an example of how recruitment agency/consultancy work:

“In their first year I would expect most new Consultants to earn an extra £5,000-£8,000. In general you can earn a third of your total billings. If you bill £150,000 you will earn £50,000, made up of your basic salary and your bonus.” Lysha Holmes, owner of Qui Recruitment[gradtouch.com]

Claimant was a shared resource between R-com Consulting Ltd and D4digital Ltd for a number of weeks, despite complaints of being overwhelmed with her own tasks for R-com Consulting Ltd., nevertheless, she did complete some tasks for D4digital Ltd, as this was expected of her. Examples include Excel worksheets, research, Powerpoint presentation, drafting documents, etc. Therefore Claimant, in a way, worked for D4digital Ltd. just before she left on sick leave.

Employment Judge Warren joined originally separate case 242342/2017 to this case [Bundle,335], finding sufficient link between both companies, ie. job title of Group Sales Director of Sue Dando, same premises, same owner and MD.

The Tribunal of EJ Sherratt did not have all information before him, having this issue being dealt by and decided by a different Tribunal.

The Reason was:

1. The claimant has been given leave to proceed with the allegations in this claim as amendments to her claim numbered 2405428/2016.

2.The parties agree that the appropriate respondent in case number 2405428/2016 (as amended) will be R-Com Consulting Limited

The respondent confirmed, in the same hearing, it would not be claiming the statutory defence and would accept vicarious liability for her.[Bundle, 118]

Another Respondent’s witness, Michelle Halliwell, submitted evidence on 05 Sep 2018, about having started another company in a group and on premises of the Respondent, Colour in Media Ltd. from October 2017:

Still in the same premises, still in the same Group, just different name. It was similar situation as Sue Dando.

Sue Dando sent offensive e-mail ‘Disgrace’, which was unwanted conduct, to Claimant from work (Respondents premises) on the 29 Jun 2017. She was then selected by the Respondent in July to be added to the Respondent’s witness list for this case (2405428/2016). At this stage it wasn’t known ther there will be case against D4digital Ltd. It is the Respondent who linked Sue Dando to this case, although she wasn’t on original list of witnesses.

D4digital Ltd. was also in a protected disclosure of a whistleblowing nature in the this case (2405428/2016).

Equality and Human Rights Commission Statutory Code of Practice: Employment Part, reads:

Principals   
Principals are liable for unlawful acts committed by their agents while acting under the principal’s authority. It does not matter whether the principal knows about or approves of the acts of their agents. An agent would be considered to be acting with the principal’s authority if the principal consents (whether this consent is expressed or implied) to the agent acting on their behalf. Examples of agents include occupational health advisers engaged but not employed by the employer, or recruitment agencies.s.109(2) & (3)
  
Example: A firm of accountants engages a recruitment agency to find them a temporary receptionist. The agency only puts forward white candidates, even though there are suitably qualified black and minority ethnic candidates on their books. The firm could be liable for the actions of the agency even though they do not know about or approve of the agency’s action. 
Harassment of job applicants and employees   
Employers have a duty not to harass job applicants or their employees. This duty extends to harassment by third parties of job applicants and employees in the course of employment. (Chapter 7 provides a detailed explanation of the provisions on harassment; see paragraph 10.20 below on harassment by third parties.)  s.40

108 Relationships that have ended

(2) A person (A) must not harass another (B) if–

(a) the harassment arises out of and is closely connected to a relationship which used to exist

between them, and

(b) conduct of a description constituting the harassment would, if it occurred during the

relationship, contravene this Act.

All companies in the Group of MD, Mr Ajaz Rathore ownership are an ‘associated employers’. Employment Rights Act 1996

Pic. R-com Consulting Ltd. public domain, Sue Dando features as R-com Consulting Ltd. employee,3rd from left

Pic. R-com Consulting Ltd. public domain. Sue Dando features aa an R-com Consulting Ltd. employee,2nd from left

Respondent confirmed the claim should be allowed, on 21 Dec 2018, Laura Halsall wrote:

“Sue Dando Email

The Respondent agrees with the panel’s view on this. However, the Employment Judge who presided over the preliminary hearing took a different view and ruled that there was a sufficient connection between the companies and as such the claims were consolidated and D4 digital was removed as a Respondent.  No reconsideration or appeal of this judgment has been sought by either party.  As D4 digital has been removed as a respondent the Respondent was asked to make the concession that they would not run the statutory defence. The Respondent is content to accept liability for the actions of Ms Dando as an agent of R-Com as she recruited for them should any liability be found by the Tribunal. “

The claims (Sue Dando e-mail, and Failure to provide references) were those of a disability discrimination. Those were a separate prohibited conduct under the Act (Equality Act 2010) and not excluded in light of another prohibited conduct occurring at the same time. The Claimant was questioned on her disability for that purpose on the 03 Sep 2018 and provided full disclosure of medical records for that purpose.

Please allow appeal on this claim. EJ Sherratt did not provide reasons why he overturned earlier Tribunal decision or if there was an error of law on earlier Judgment from 16 Mar 2018, which both parties agreed on and Respondent accepted vicarious liability for.

Ground#3    Bias, partiality, perversity-the ET decision was “almost certainly wrong”, Meek compliance, Efobi

Bias-actual and apparent

It is Claimant’s view and observation from the beginning and throughout of the hearing, that Employment Judge Sherratt was biased (unconscious, conscious and for the look up of confirmation bias) and perverse towards her and case on hand. He displayed signs of being, as if very depressed because of dealing with Claimant’s case, was speaking quietly in a rather disheartened voice and not too much at all, rather focusing on taking notes, as if not able to catch up with the proceedings at all. Not ‘on top of things’.

On several occasions testing Claimant, ‘winding up’ (displaying closed mind and not open to persuasion, raised randomly by himself as Respondent didn’t rise the claim of Sue Dando harassment which has been ruled by a different Tribunal /accepted by the Respondent, disputing it but not deciding or providing stance, just disputing repeatedly from the beginning of the Hearing without considering evidence saying to Claimant: I know this is a problem not of your making, the full hearing time allocation was based on the matter of Sue Dando harassment being decided on by a different Tribunal, hence the time used at full hearing set Claimant to fail by causing delay of further 10 months ; or trivialising Claimants car vandalism twice in a year asking unrelated question is your car UK registered – oblivious and detached to possibility of a hate crime incident post Brexit and the fear Claimant was living in as a victim of crime) as if to induce desired reaction of Claimant anger, so that he could with ease become aggravated with the Claimant and show her in bad light/draw easily negative inferences like he did perhaps in regards to Claimant’s perception in Judgment, 01 Aug 2019. Prompting discussions to put Claimant on bad footing with the Panel.

The test is that propounded by Lord Hope in Porter v Magill [2002] 2 AC 357, para. 103; would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the Tribunal was biased? The test is objective; not the subjective view of the complaining party. The key, as Lord Steyn observed in Lawal v Northern Spirit [2003] IRLR 538, para. 14, is the public perception of the possibility of unconscious bias.

The main issues were from the very beginning of the Hearing on the 03 Sep 2018:

  1. due to Index missing from the Panel’s Bundles because the Respondent did not print them, but tried to imply that it was Claimant who prepared the Bundle (electronic pdf yes, but print out hard copies was task of the Respondent), the Judge did not acknowledge the state of the matter, rather had a friendly conversation with the Respondent’s Rep, that they printed their own and ignored the Claimant (Clerk had to copy those);
  2. Within the first hour also Respondent’s Representative brought the issue of all Claimant’s medical records to be in the Bundle, for which Claimant objected having supplied those to all parties as private and confidential, to which Judge commented: “If we can’t find you a person with the disability you don’t get very far, do you? And When do you claim you became a person with the disability?” As well as we won’t question you on disability if you cancel those allegations. Claimant applied under Rule 50 and asked for this matter to be referred on Remedy hearing or in the end at least and that Claimant’s disability statement contains all the information as well as 85 medical records supplied. Judge asked Claimant what were her conditions on a sick notes over 1 year 8 months and read some medical records aloud. After reading break Claimant was asked from Rule 50 What is it to likely to cause significant embarrassment by being intimate? Over and over again and than allow for the Respondent to question Claimant on stand about her disabilities in a public hearing in front of one of the perpetrators. Claimant was very distraught and applied for Rule 50 then out of desperation for Rule 100, but was convinced that it can take 5 years to receive response to a predicament (litigant in person, Claimant to be questioned first thing on her disability when the case even is not a disability discrimination apart from one incident later on, by the Respondent who inflicted and caused sickness on the Claimant but is disputing that Claimant is a person with disability despite seeing 85 medical records and consecutive 2 years of sick notes). This would put Claimant in unequal standing with the Respondent starting Hearing and put her in bad light (discussing mental health and weak points or how the disability affects her day to day life) in a public hearing. The Judge insisted that Claimant needs to show her disability repeatedly and after around 40min was asked to go to stand. Claimant asked for this occurrence to be included in the notes, but it wasn’t mentioned. Claimant was feeling ‘shattered’ after the whole ordeal, absolutely traumatised. The disability questioning led straight to the main cross-examination without any break.
  3. The Judge asked Claimant specifically what the banter was in the office, but in his Judgment he omitted the Claimant response (not remembered?);
  4. Towards the end of Claimant’s cross-examination he made a somewhat disheartening comment that looking at Respondent’s witness statements they won’t be saying anything at all, as if there is no fault at all on the Respondent’s side.
  5. Claimant was unrepresented and was not asked if she wanted to add or clarify anything in the end of day 1 continuous 2h cross-examination;
  6. In terms of Ashley Jackson showing Claimant his knee, the Judge insisted to imply that is was because of AJ previous operation, when in fact it wasn’t it was why he couldn’t play football anymore and in male dominating office environment along with banter it was an intimidating unwanted conduct for a new employee (Claimant) in the office. Nevertheless Judge preferred Ashley Jackson evidence and substituted word for word with AJ statement in his Judgment.
  7. Claimant was then continuously cross-examined on day 2 for 1h20min without break with everyone from the Respondent’s side and some spectators present. Claimant was asked by the Judge if there is anything she wants to clear up about the answers she was giving but not if she wants to add anything as an unrepresented litigant.
  8. He then also went on to say to the Claimant at this point about his concerns of Sue Dando claim and why the Respondent accepted vicarious liability  if she is separate company, which was very disheartening if not devastating, as this was one claim Claimant was certain of as ruled by another Tribunal and agreed by the Respondent. The EJ seemed to have a closed mind about it even before witness Sue Dando giving evidence. It was decided by another Tribunal who considered all evidence that wasn’t necessarily available to this Tribunal. After 15min break the Judge continued to dispute EJ Warren decision but never explained on what grounds and then asked the Respondent on the law supporting this. In the end agreed to be hearing Sue Dando evidence and not brought up this after that. This however caused Claimant a lot of stress in already very disproportionate position. He then asked lay person, Claimant in a letter 20 Dec 2018 to clarify the law for him on this position on 11 Jul 2019. Claimant did refer to an Agent for a Principal, recruitment and relationships that have ended, as well as potentially 3rd party harassment, as 3 harassment emails were sent. EJ Sherratt didn’t sufficiently explain reasons why this claim was dismissed in the end in his Judgment 01 Aug 2019.
  9. While  Ashley Jackson was cross-examined and several inconsistencies brought up the Judge did not react at all and it is Claimant who reminded to say truth under oath. The Judge instead was asking for the witness to repeat his answers on several occasions as if making more thorough  notes. It was not noted that Ashley Jackson took good 10s to answer a question about the comment he made about Russian women and gave inconsistent responses on several occasion, still the Judge preferred his evidence, but didn’t explain why.
  10.  Before breaking for lunch ET Judge gave a clear direction to the witness – Ashley Jackson to keep away from his party and to have lunch by himself, being under oath. He instead spoke to the legal Representative. EJ Sherratt was aware of that since Dec 2018, but not mentioned this misconduct. The witness that what is seems kept saying ‘I don’t recall/remember’ more often in an answers that before break.
  11. Claimant wasn’t able to address the Panel at the start although asked if can make an opening statement, but wasn’t allowed;
  12. Claimant followed company procedure on informal grievance about sexual harassment but EJ misguided himself to this finding,
  13. EJ disregarded disability discrimination claims despite Claimant’s questioning on disability and evidence at hand.
  14. Ej failed to explain what he meant in his Judgment by ‘Claimant perception and other circumstances of the case’, in relation to sexual harassment and the effect the conduct have had on the Claimant in Reconsideration application;
  15. EJ failed to provide the record of proceedings from full hearing 3-5 Sep, 10 Dec 2018 in Chambers and on 11 Jul 2019.

For those reasons, along with causing undue delay to delivering the Judgment, causing itself and everyone to forget the case in 10 months, asking unrepresented Claimant to instruct him on law that should apply to Sue Dando harassment, by doing so directing itself not to be persuaded otherwise that confirmation bias formed at the beginning of the hearing, and failing all claims with closed mind. EJ Sherratt to recuse himself from the Remedy Hearing.

Meek compliance

The legal principles relating to adequacy of the Employment Tribunal’s reasons. The importance attached to an employment tribunal’s reasons for judgment is now enshrined in r62(5) of the Employment Tribunal Rules of Procedure 2013. The issues must be identified; there must be a concise statement of the applicable law and how it has been applied to the relevant facts found by the employment tribunal.

That formalizes the approach taken by Bingham LJ in Meek v City of Birmingham [1987] IRLR 250, 251. From the employment tribunal’s outline of the story and their factual conclusions and a statement of their reasons leading to their conclusion the parties are entitled to know why they have won or lost.

In the field of discrimination law assistance may be derived from the judgment of Sedley LJ in Anya v University of Oxford [2001] ICR 847. There, his Lordship drew attention (para. 10) to the need to make the findings of primary fact. He also approved, at para. 24, the judgment of Morison P in Tchoula v Netto (unreported 6 March 1998) which emphasised the importance of the employment tribunal explaining, where a conflict of evidence arises, why the evidence of one witness is preferred to another’s. We would add in the context of the present case, that it is equally importance to explain why witness evidence on a material issue is rejected.

The Judgment is not Meek compliant.  The Claimant showed many discrepancies in truthfulness of the Respondent, their ET3 response and amended ET3 response with crossed out text not reflecting witness evidence, to perpetrator’s Ashley Jackson ‘inconsistencies’ in his evidence.  Still the Tribunal preferred All evidence of the Respondent, but didn’t explain why Claimant’s evidence was rejected.

EJ Sherratt failed to provide adequate reasons for dismissing Sue Dando claim/all claims and why he perceived Claimant so that unwanted sexual harassment conduct couldn’t have offensive, degrading, intimidating and humiliating effect on her, despite being asked for reasons in reconsideration application, because Claimant doesn’t know why she lost.

Burden of proof for all claims shifted to the Respondent, who failed to provide non-discriminatory explanation for them. Discrimination may be subconscious and perpetrator’s motivation is relevant.

Respondent didn’t follow its own procedural guidance on dealing with investigation of a Grievance (failed to investigate Ashley Jackson harassment by emails, didn’t react to informal Grievance when Claimant all shes done followed both company and ACAS handbook to tell perpetrator to stop and inform her Manager, another female employee reporting similar incident then resigning, or MD instructing Ashley Jackson to talk to Claimant but he didn’t for 3 days, failure to make reasonable adjustments Claimant complaining of anxiety and returning from sick, cancelling Claimant’s email subscription) and ACAS guidance, but Tribunal do not address in their Reasons why those procedures were not followed or emails deleted.

When ACAS clearly state in tutorial video, “Carrying out investigations in the workplace”:

Establishing the facts: consider what the issue of the matter under investigation is (harassment by emails reported on 19 Sep 2016), plan how the investigation will be conducted, decide in what order evidence will be collected, collect all relevant evidence and consider what the evidence shows, report their findings (Respondent never checked those emails moreover made them disappear).

And

It is important to take any issues raised seriously because then can escalate quickly and any inaction can have costly consequences. Most matters can be resolved informally and quickly with a quiet word. What you don’t want is anyone taking matters into their own hands.

Failure to properly investigate claims of bullying/discrimination can give the impression that an organisation doesn’t take these issues seriously.

Efobi

Employment Judge Sherrat failed to provide standing/reasons on burden of proof and instead misguided himself on his role in that regard taking an absolute step back or backstage relying instead on inexperienced Claimant to establish everything.

Claimant made an earlier application to ET on 06 Mar 2018 for Tribunal consideration of all ‘such facts’, which Claimant established, relying on:

Efobi v Royal Mail Group Ltd (Race Discrimination) [2017] UKEAT 0203_16_1008 (10 August 2017):

“77. Section 136 of the Equality Act 2010 (“the 2010 Act”) is headed “Burden of proof”. Its language is significant.  “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” (section 136(2)).”

“78.            Section 136(2) does not put any burden on a Claimant.  It requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not “there are facts etc” (cf paragraph 65 of Madarassy).  Its effect is that if there are such facts, and no explanation from A, the ET must find the contravention proved.”

“In the light of the recent judgment of Elisabeth Laing J in the EAT in Efobi the Claimant submitted that section 136(2) does not in fact put any burden on a Claimant before the ET. It requires the ET to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are “facts” from which the ET could find discrimination and, if so, it must so find unless the Respondent can discharge the burden on it.” [employmentcasesupdate]

In IGEN Ltd & Ors v Wong [2005] EWCA Civ 142 (18 February 2005) S. 16:

it is important to stress at the outset that ETs must obtain their main guidance from the statutory language itself.

In IGEN Ltd & Ors v Wong [2005] EWCA Civ 142 (18 February 2005) S.14:

(3) It is important to bear in mind in deciding whether the applicant has proved such facts that it is unusual to find direct evidence of sex discrimination.

In Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 (24 November 2017)

“105. In any event, it seems to me that the difference of wording between section 136 and its predecessor provisions should be regarded, in context, as no more than a legislative “tidying up” exercise. It was not intended to change the law in substance and certainly not in the fundamental way held by Elisabeth Laing J in Efobi, of no longer imposing a burden on a claimant at the first stage of the enquiry.

106. Accordingly I have come to the conclusion that previous decisions of this Court such as Igen, as approved by the Supreme Court in Hewage, remain good law and should continue to be followed by courts and tribunals. The interpretation placed on section 136 by the EAT in Efobi is wrong and should not be followed.”

It does not mean for the Tribunal to take a backstage and not do anything in the regard of burden of proof.

This principle although overruled in Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 (24 November 2017), has been since relied on in similar cases thereafter. See:

·  Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 (24 November 2017) (View without highlighting) [13%]
([2017] EWCA Civ 1913, [2018] ICR 748, [2018] IRLR 114; From England and Wales Court of Appeal (Civil Division) Decisions; 62 KB)

·  Kumar v DHL Services Ltd [2017] UKEAT 0117_17_0809 (8 September 2017) (View without highlighting) [10%]
([2017] UKEAT 0117_17_0809; From United Kingdom Employment Appeal Tribunal; 39 KB)

·  Murdock v. British Airways Plc [2018] UKEAT 0106_17_0207 (2 July 2018) (View without highlighting) [8%]
([2018] UKEAT 0106_17_0207; From United Kingdom Employment Appeal Tribunal; 76 KB)

·  Malik v Birmingham City Council & Anor (STRIKING-OUT : DISMISSAL) [2019] UKEAT 0027_19_2105 (21 May 2019) (View without highlighting) [6%]
([2019] UKEAT 0027_19_2105; From United Kingdom Employment Appeal Tribunal; 65 KB)

·  Science Museum Group v Wess [2019] UKEAT 0260_18_0404 (4 April 2019) (View without highlighting) [6%]
([2019] UKEAT 0260_18_0404, [2019] UKEAT 0260_18_3105; From United Kingdom Employment Appeal Tribunal; 88 KB)

·  The Commissioner of Police of the Metropolis v Denby (Practice and Procedure) [2017] UKEAT 0314_16_2410 (24 October 2017) (View without highlighting) [6%]
([2017] UKEAT 0314_16_2410; From United Kingdom Employment Appeal Tribunal; 0 KB)

·  Bell v RJA (UK) Ltd (UNFAIR DISMISSAL – Disability) [2017] UKEAT 0015_17_1312 (13 December 2017) (View without highlighting) [5%]
([2017] UKEAT 0015_17_1312; From United Kingdom Employment Appeal Tribunal; 44 KB)

·  Tabidi v British Broadcasting Corporation (SEX DESCRIMINATION –- Costs) [2019] UKEAT 0272_18_1303 (13 March 2019) (View without highlighting) [5%]
([2019] UKEAT 0272_18_1303; From United Kingdom Employment Appeal Tribunal; 45 KB)

·  Van Der Merwe v Van Der Merwe (Discrimination – Race Discrimination – Sex Breach of Contract Unauthorised Deduction of Wages Unfair Dismissal) [2018] NIIT 01490_17IT (08 October 2018) (View without highlighting) [5%]
([2018] NIIT 01490_17IT; From Industrial Tribunals Northern Ireland Decisions; 84 KB)

·  Nesbitt v The Pallet Centre Limited (Discrimination – Equal Pay Discrimination – Sex Breach of Contract Unauthorised Deduction of Wages Unfair Dismissal) [2018] NIIT 00304_16IT (17 August 2018) (View without highlighting) [2%]
([2018] NIIT 00304_16IT; From Industrial Tribunals Northern Ireland Decisions; 403 KB)

·  Kijowska v Belfast Health and Social Care… (Discrimination – Race Unfair Dismissal) [2019] NIIT 01149_15IT (01 May 2019) (View without highlighting) [2%]
([2019] NIIT 01149_15IT; From Industrial Tribunals Northern Ireland Decisions; 406 KB)

·  Sheridan & Anor v Peninsula Business Services Ltd & Anor (Discrimination – Age Discrimination – Disability Discrimination – Sex Breach of Contract Unauthorised Deduction of Wages Unfair Dismissal) [2018] NIIT 02310_16IT (31 October 2018) (View without highlighting) [2%]
([2018] NIIT 02310_16IT; From Industrial Tribunals Northern Ireland Decisions; 602 KB)

In Sheridan & Anor v Peninsula Business Services Ltd & Anor (Discrimination – Age Discrimination – Disability Discrimination – Sex Breach of Contract Unauthorised Deduction of Wages Unfair Dismissal) [2018] NIIT 02310_16IT (31 October 2018)

“In Efobi v  Royal Mail Group Limited [UKEAT/0203/167] Laing J emphasised that the factual materials available to the tribunal at the first stage of the exercise include all the evidence called up to the end of the hearing (see further Mummery LJ in Madarassy, Paragraphs 47 and 70).

In Ayodele v Citylink and another [2017] EWCA Civ 1913, the Court of Appeal confirmed that, in relation to the burden of proof, it remains (albeit the Court was interpreting the burden of proof provisions under the Equality Act 2010, which does not apply in this jurisdiction) – “a claimant” is required to bear the burden of proof at the first stage.  If he or she can discharge that burden (which is only to show that there is a prima facia case that the reason for the respondents’ act was a discriminatory one) then the claim will succeed unless the respondents can discharge the burden placed on it at the second stage.  In this context the relevant provisions under the 2010 Act are to the same effect as the provisions in Northern Ireland.”

Claimant would also like to rely on this, only fair in her view, approach to her complex case.

Additionally would like to point to this relevant EU DIRECTIVE 97/80/EC:

(…)when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

Presumed – not certain!

It was also referred to by EJ Porter CMO written reasons sent on 09 Jun 2017:

“21. Throughout each of the preliminary hearings EJ Porter had

explained to the claimant that there was a difference between a

complaint, an issue to be determined by the tribunal, and the

evidence which the tribunal would hear in determining that

complaint/issue. In particular, EJ Porter explained on a number of

occasions the requirement under s13 Equality Act 2010 that the

tribunal must find facts from which they could conclude that there

had been less favourable treatment because of a protected

characteristic. Reference was made to Section 136 Equality Act

2010 which provides:

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.

22. EJ Porter explained that the claimant was entitled to introduce

relevant evidence from which the claimant would invite the tribunal

to draw the appropriate adverse inference, that is, that any less

favourable treatment was because of a protected characteristic. It

was explained that evidence relating to alleged discriminatory

treatment of others, of the attitude of the alleged discriminators to

women in the workplace, may be relevant evidence in determining

whether any less favourable treatment of the claimant was because

of sex, whether any alleged harassment of the claimant was done

with the purpose of purpose of violating the claimant’s dignity, or

creating an intimidating, hostile, degrading, humiliating or offensive

environment for her. To that extent the allegations relating to the

treatment of Courtney Norris and Lauren Hibbett, whilst not grounds of a separate complaint for the claimant [Ground9 below], could be put forward as evidence in support of the claimant’s own claims, as identified. That was a matter for the claimant to decide when preparing her witness and documentary evidence.”

Digressing to Ground#9                Including in the Judgment claims that were not allowed at the Preliminary Hearing, namely regarding a former model – Lauren Hibbert. Application to amend Judgment (Restricted Reporting Order) to anonymous name of this person not involved at the proceedings, but  who may find them defamatory. As per EJ Porter CMO written reasons dated 09 Jun 2017.

Perversity

Employment Tribunal failed to draw inferences from evidence available to it 10 months prior to writing the Judgment and then fresh in their minds and in failing to infer race discrimination.  Such Judgment is lacking true picture and is perverse (found perversely on the facts). The EJ “has taken into account immaterial factors, failed to take into account material factors, erred in principle or come to a conclusion that was not open to him”, an appellate court may interfere.[Agbeuowossi-Koffi v Donvand Ltd[2014]EWCACiv855].

The Claimant attempts to show that the Employment Tribunal decision was “almost certainly wrong”, per Yeboah v Crafton [2002] IRLR634CA.

The Tribunal needed to seek ‘refresher hearing’ on two issues/claims after only 3 months from the full hearing and focused solely on those for upcoming 7 months to the hearing on the 11 Jul 2019, when it should have sought equally refresher on remaining claims without then causing prejudice to those being tinted in everyone’s minds. It was prevalent that both parties as well as Tribunal had forgotten what took place 10 months prior addressing only those 2 issues. The Judgment was yet to be written at this stage, so remaining claims were not decided freshly.

“It is therefore self-evident from all that has gone before that this case is highly arguable.”[RobertsvCarlin UKEAT/0183/09/DA]

Ground#4    Tribunal substituted its view for that of an employer/perpetrator

“In judging the reasonableness of the employers conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of an employer”

It is not for the Tribunal to substitute its view for that of an employer, in Iceland Frozen Foods v Jones[1982]IRLR439, approved by the Court of Appeal in Foley v The Post Office[2000]ICR1283.

In p.43 of the Judgment, Tribunal substituted its view for an employer/perpetrator quoting even word for word from his witness statement: As to showing his knees, undergone an operation for a ruptured anterior cruciate ligament some years previously and with a colleague he discussed the injury, the post-operative physiotherapy and how long it took to heal.

The Tribunal preferred perpetrators evidence, but took a fragmented approach to the evidence relied on by the Claimant in support of her complaint of sex discrimination and harassment, instead of dealing with the totality of that evidence in determining whether it was sufficient to pass the burden of proof. Tribunal knew also of showing his bare biceps and kissing them in the office while saying “welcome to the gun shop”, male dominated office and sexist banter, inappropriate stretching, word play and lying on stand by the same witness/perpetrator.

In p.50 of the Judgment reads: he was surprised to receive the text message which was sent in the early hours when Saturday night turned into Sunday morning.

In the arguments above and in possession evidence of the Tribunal the text was sent on Sunday at 07:29am in the morning and NOT in the early hours when Saturday night turned into Sunday morning, which would indicate 2 or 3am in the morning and put Claimant in rather bad light texting her Manager at night. Nevertheless Tribunal preferred perpetrators description, which was wrong and misleading. Tribunal substituted its view for that od an employer/perpetrator, despite having evidence to the contrary at hand.

In p.68 of the Judgment Tribunal substituted its view for that of a perpetrator quoting word for word from his witness statement: he did not recall using words to that effect “you will love me for that” or saying that he would keep the Claimant sweet, but according to him he uses the word “sweet” quite a lot and so he was sure he would have used that word plenty of times in her presence. Tribunal then justifies perpetrator by saying “albeit without the inference that the Claimant took”. Tribunal again preferred perpetrator’s version without adequate explanation why and taking fragmented look instead of on all the incidents together.

In p. 72 of the Judgment Tribunal substituted its view with that of a perpetrators inconsistent version in his two statements (Grievance interview and witness statement) about the comment made about a Russian women, that he didn’t recall hearing anything said about Russian women. When in his evidence he confirmed those comments being made, by him or by Duncan.

In the end it doesn’t matter by whom as it was in a male dominated meeting room where Claimant was the only female and found those comments offensive. The Tribunal contrary to the evidence substituted its view and preferred muddled version of the employer.

Employment Tribunal substituted its view for that of an employer regarding ‘wiped out’ emails and disregarded the fact, that the Respondent admitted in an expert witness evidence, that he tempered with an evidence by cancelling Claimant’s subscription to Office365 without securing or investigating harassment by e-mails despite specific document disclosure in place for them since Feb 2017 and Grievance requirement to investigate those emails. Burden of proof shifted to the Respondent.

Employment Tribunal substituted its view, stance and evaluation of facts for that of an employer, contrary to the evidence and therefore erred in law.

Ground#5    Failure by EJ to provide reasonable adjustments for Claimant or comply with Equal Treatment Bench Book.

On 27 Aug 2018 Claimant wrote to the Tribunal:

Reasonable adjustment application:

Claimant would like to apply to be cross-examined as a last witness, due to very emotional and affecting time and concern for ability to carry on afterwards.

Additionally Claimant would like to apply for short breaks set for composure from stress.

And

Cross-examination of the Claimant IT IS IMPERATIVE FOR THE CLAIMANT TO BE CROSS-EXAMINED AS LAST WITNESS DUE TO HEALTH CONCERN AND ABILITY TO CARRY ON POST CROSS-EXAMINATION DUE TO VERY EMOTIONAL TIME IE.WAITING 2 YEARS FOR THE HEARING- REASONABLE ADJUSTMENT APPLICATION ALONG WITH SHORT BREAKS FOR COMPOSURE FROM STRESS.

The Equal Treatment Bench Book, Feb 2018 reads:

15. Judges should try to put themselves in the position of those appearing before them. An appearance before a court or tribunal is a daunting and unnerving experience. As a result parties and witnesses may appear belligerent, hostile, rude, confused or emotional. A possible consequence is that they may not give a good account of themselves. The court or tribunal should endeavour to put them at their ease to enable them to do so.

22. People who have difficulty coping with the language or procedures of the court or tribunal, and are perhaps less engaging litigants as a result, are entitled to justice in the same way as those who know how to use the legal system to their advantage. Any disadvantage that a person faces in society should not be reinforced by the legal system.

23. Judges should identify a situation in which a person may be at a disadvantage owing to some personal attribute of no direct relevance to the proceedings, and take steps to remedy the disadvantage without prejudicing another party.

24. The sooner the disadvantage is identified, the easier it is to remedy it. Where possible, judges should ensure that information is obtained in advance of a hearing about any disability or medical or other circumstance affecting a person so that individual needs can be accommodated,

25. Litigants in person should not be seen as an unwelcome problem for the court or tribunal. Judges may not be able to assist them with their case, but can ensure they have every reasonable opportunity to present it.

30. Recognising and eliminating prejudices, including a judge’s own prejudices, is essential to prevent wrong decisions and to prevent erroneous assumptions being made about the credibility or actions of those with backgrounds different from the judge’s own.

31. Unconscious prejudice (demonstrating prejudice without realising it) is more difficult to tackle and may be the result of ignorance or lack of awareness.

The courts’ duty to litigants in person

Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

The outcome of the case may have a profound effect and long-term consequences upon their life. They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.

Subject to the law relating to vexatious litigants, everybody of full age and capacity is entitled to be heard in person by any court or tribunal.

All too often, litigants in person are regarded as the problem. On the contrary, they are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants.

Employment Judge did not ensure those things or a minimum breaks in cross-examination of the Claimant who was in clear distress on several occasions. Rather EJ sided with the Respondent to squash the Claimant.

Aware of Claimant’s disability EJ had not given sufficient regard how that prevented her from putting her case effectively.

Ground#6    Failure to deal with Claimant’s disability starting at employer’s premises and failure to provide reasonable adjustments by the Respondent at employers premises

Employment Tribunal remained oblivious to the fact that Claimant’s disability started at Respondent’s premises and that no reasonable adjustment has been provided, placing weight on the omission by the Claimant to place correct label on her claim acting as a litigant in person.

The Respondent was aware of Claimant’s stress, as early as:

08 July 2016, when Claimant went off sick with stress for the first time (no follow up on return). (Bundle p.240)

On 12 Jul 2016 Claimant informed employer:

“Because so many people left recently it has been really difficult as well to stay positive in this office environment” (Bundle p.235-236)

On 11 Aug 2016 Claimant was too unwell to attend office ‘games’.(Bundle p.243-244)

On 12 Aug 2016 Claimant informed employer “I have been feeling stressed and exhausted recently.”(Bundle p.245)

On 05 Sep 2016 Claimant informed “make me feel anxious and nervous” (Bundle p.237)

On 07 Sep 2016 Claimant informed “I was working very hard all day without any help” (Bundle p.255)

Followed by the Grievance (Bundle p.284-285) on 14 Sep 2016 ‘cry for help’:

“leaving me always anxious and isolated”

“making me feel very uncomfortable and harassed”

“impossible to cope with”

“very stressful at times”

“left me extremely anxious, drained, burned down, stressed out”.

From 12-14 Sep 2016 Claimant sat there unapproached while reported sexual harassment. Claimant asked twice previously to be moved to a different desk and change environment, as this was very common in the office, but was refused. Respondent did not follow its own procedural guidance nor ACAS Code of Practice. Return to work interview for not carried out when Claimant returned from 1 day sick leave due to stress and upset. MD Ajaz Rathore on the 14 Sep 2016, while already knowing of sexual harassment, did not mentioned it in 1-to-1 conversation with the Claimant and said that the timing was wrong and he didn’t have cover (audio transcript):

On 14 Sep 2016 he said

“Uhmmm, uhmmmm again its wrong timing not sure what we could do….uhmmm we don’t have that cover …more experience…right….’ if we don’t cover(…)[Bundle page 311]

The Respondent also ‘wiped out’ Claimant’s emails and cancel Office365 subscription while Claimant was still in employment. This potentially would make very difficult for Claimant to return to work and made her miss important communication from team/HR or regarding her pension.

The claims (Sue Dando e-mail, and Failure to provide references) were those of a disability discrimination. Those were a separate prohibited conduct under the Act (Equality Act 2010) and not excluded in light of another prohibited conduct occurring at the same time. The Claimant was questioned on her disability for that purpose on the 03 Sep 2018 and provided full disclosure of medical records for that purpose.

Ground#7    Failure to deal with protected disclosure

Employment Tribunal did not consider adequately or at all the casual relevance of disclosure on detriments, failing to investigate the Claimant’s concerns.

Disclosure read:

“Company R-com Consulting operates with two sister companies on premises and run by Ajaz Rathore: recruitment consultancy D4Digital (app 4 people) and R-com Education (education courses reseller, 1 person-Shell Halliwell, with the company from the beginning of the education unit).

High employee retention within R-com Consulting – creating culture of fear and low morale, as people feel under-valued and easily dispensable/disposable

Company has got its own recruitment consultancy within premises (sister company, same owner) D4Digital located on the same floor as R-com consulting within open plan office, arranging new employees in short notice. Within my time at R-com it consisted of approximately 4 employees, of which one left – Channy Limbu. More hires emerged in my last weeks.

The Sales Team consisted of 9 Sales Managers some of them working from home: Ashley Gray-within first 6 months with the company/office based, David O’Donnell-left after just 2/3 weeks into the job, Duncan Kirby- 6 years with the company/office/most senior sales consultant, Leigh Clark-within first 6 months with the company/home based, Luke Martin-3 years with the company/office based/highly advanced systems knowledge role Business Development Executive/very complex in nature to deal with, Martin Dixon-left, Martin Rapetti-left, Paul Bailey-within first 6 months with the company/office based, Pete Bate-left, Shanny Khan-app 2 years with the company/office based/holder of the most profitable accounts/achieved best sales of the month. Job titles differing from Business Development Executives to Business Development Managers all managers varied in experience and some struggled to learn systems and sales process causing additional burden to Sales Support Team of two people (including myself) who had to explain and monitor what should have been learnt within induction process.

Sales team consisted of only 3 long term sales consultants, due to the fact which I believe the entire sales team was LAID OFF end of 2015 and replaced with new members because of ‘not achieving targets’.

Sales Support team consisted of two people -myself and my Line Manager, who has been appointed approximately in May 2016 to the role of Manager (started at R-com in July 2015), 26 years old without previous managerial experience with a degree in sports journalism. He had been holding second post at Accrington Stanley Football Club as an Academy Scout recruiting new football players, having been a football player himself and also boxing for sports. I feel I have been set to fail by having inexperienced Line Manager.

Note! My interview was with Zarina Greenhalgh-Vendor Manager, who was 2.5 years with the company on various roles (left company in October 2016), who was supposed to be my Line Manager, which was changed after I signed contract to Line Manager.

List of people who left R-com Consulting (to the best of knowledge of the Claimant):

(Inquiry into compromise agreements/settlements is a valid point)

  1. Janine Marsden non-commission (Receptionist/Facilities Manager/R-com education assistant 3 months with company)
  2. Michelle Rathore non-commission(Dec 2016, board Director)
  3. Damian Herok NC (Technical Support 6 months with company)
  4. Martin Rapetti C (Sales Manager – London 6 months with company)
  5. Pete Bate C(Sales Manager left in very poor health 6 months with company)
  6. Martin Dixon C (Sales Manager 6 months with company)
  7. David O’Donnell C (Sales Manager-left in 3 weeks into the role)
  8. Channy Limbu on commission (Recruitment Consultant D4Digital, left 5 months into the role)
  9. Female Receptionist non-commission/name unknown (left on second day!)
  10. ZarinaGreenhalgh non-commission (Vendor Manager, left after 2.5 years with the company)
  11. Kat Paczkowska non-commission– long term sick/stress at work since 14-Sep-2016
  12. Lauren Hibbert non-commission (Accounts Assistant)
  13. Emma Crump non-commission(Marketing Manager)
  14. Ellie Smith on commission (Sales Manager)
  15. Luke Martin C (Sales Development Executive)
  16. Ashley Gray C (Sales Manager)
  17. Paul Bailey C
  18. Theo Hall C
  19. Chris Haresnape NC
  20. Leigh Clark C
  21. Unknown Male C?

To my knowledge 9 female and 12 male employees have quit within approximately 1 year.

Employees within sales pool earning commissions work under huge pressure to meet agreed targets where non-commission employees are on set salary and their less pressurized job descriptions.

Sales Managers/employees not achieving targets within set time have been known to either quit or be fired in that instance. However non-commission employees have no clear reason in comparison to have quit the Respondent’s business:

Female quit – 7 out of 9 were non-commission staff

Male quit/fired –2 out of 12 quit were non-commission (IT Apprentice and Financial Controller), where the rest were probably not achieving sales targets.

This makes up a 78% of female staff quit in non-commission circumstances (questionable circumstances and reasons for quitting, 2 indicated sexual harassment -11,13), and only 17% of male quit in non-commission circumstances.

The above may indicate misogyny within the business.

Given the employees tally there was a majority of man in the office at all times and women were just a couple at a time in the office.

This is not relevant how many man have also left, as they were in majority at all times.

The crucial point is all 9 women (but Sue Dando- Recruitment partner and Shell Halliwell- forming one person department of education) within a year time have quit. “

Another employee-Emma-also reported ‘inappropriate’ behavior while being interviewed regarding Claimant’s sexual harassment claims and left shortly after, but that was not dealt with by the Tribunal, although available to it in evidence Bundle.

Ground#8    Approach to claim out of time, error of principle, perverse decision, it was not addresses at neither of the hearings if its just and equitable to extend time or there was continuous conduct. “the failure to take into account a significant relevant factor is an error of law.” Virdi v Commissioner of Police for the Metropolis [2007] IRLR 27, at p 34-40.

It is entitled to consider all relevant circumstances (see Robertson v Bexley Community Centre [2003]IRLR434) but it didn’t consider at all.

Claimant addressed Tribunal on 22 Feb 2017 [Bundle p.44] regarding time extension for race /sex discrimination claims. This was never questioned since, nor by Tribunal, nor by the Respondent. It was not discussed as an issue at the full Hearing nor any other Hearing.

Neither was the fact stated in Judgment, 01 Aug 2019, p.132-134 (Time limits). All claims were allowed to the full hearing in the beginning of the hearing but for 17,18 and up to 21.

The tribunal did not mentioned anything about race discrimination claim nor any issue with it or possibility for it to be found in Claimant’s favour on the 11 Jul 2019. Claimant was unaware of the matter and unable to answer to the Tribunal and only learnt about it when receiving written Judgment on 01 Aug 2019.

Due to the nature and complexity of race and sex continuing discrimination I kindly request consideration by the Employment Judge to lift and extend time limits for the incidents to be held as evidence in accordance with Employment Tribunal Rule 5 – Extending time.

I justify my request, as follows:

  • Discrimination was a behaviour which extended over time period and increased significantly from 23 June 2016 to 14 September 2016;
  • The Grievance raised with the Respondent regarding Sex Discrimination (14 September-10 October 2016) was entirely focused on a matter which had bigger impact on my health and wellbeing as opposed race discrimination I felt at the time was not a priority to deal with. I did raise race inequality in the same Grievance, but this wasn’t addressed at the time;
  • The incidents of discrimination I feel are very much linked to each other and connected with my ethnicity and gender and performed by same people over time;
  • There are evidence of poor management and continuing state of affairs at the workplace – 11 people resigned over 4 months, poor morale;
  • There is continuing relationship between myself and the Respondent – I am still employed;
  • The Respondent failed to make reasonable adjustments at the time sexual harassment was brought to light on the 12 September 2016 and when I was told not to speak Polish, although I approached several times for something to be done;
  •  My fragile state of health at the time of dispute with the Respondent, I was forced to be both a victim and defend myself at the same time;
  • The time I needed to recover from mistreatment by the Respondent and the huge negative impact on my health which I am still struggling and awaiting therapy on the 06 March 2017;
  • The time ACAS Early Consideration took 45 days with several issues, like I needed to chase for an update or request against Respondents will to extend by 14 days Early Consideration;
  • Poor consideration for health and wellbeing by the Respondent; no action taken at the time of sexual harassment claim, also there was no assessment of a workstation which I was sitting at the low desk with only a laptop which was too low and had to sit bend in my back, which caused several back issues, broken air conditioning in the office which was operated using remote control and mainly by MD from his office, sometimes there was a freezing air coming off the vent just over my head with droplets of water and ice, windows were not allowed to be open, long hours of work 45 hours per week with only 1 break of 1 hour a day in very loud compact open plan office.
  • If I missed any time limits I admit I wasn’t functioning and coping well suffering with depression, anxiety and not able to leave home a lot of times;
  • Personal circumstances: dying father (I am flying to Poland on the 24 Feb 2017) due to final time of my father (cancer); money issues; recent car hit and run where my car was smashed on the 12 February 2017 (now surveillance cameras installed outside and inside the house).

Please consider my grounds for appeal to the Judgment dated 01 Aug 2019.

Ground#11 Human Rights          -please review this case for breach of Claimant’s fundamental rights

Human Rights Articles Claimant will rely on:

Human Rights Act 1998

PART I The Convention Rights and Freedoms

Article 3 No one shall be subjected to inhuman or degrading treatment or punishment.

RE:QUESTIONING CLAIMANT AGGRESSIVELY AND UNNECESSARLY IN THE BEGINNING OF THE HEARING IN PUBLIC ABOUT HER DISABILITY, APPEARANCE OF BIAS OF JUDGE AND HOSTILITY TOWARDS CLAIMANT, DELAYING PROCEEDINGS TO 32 MONTHS FOR SEXUAL HARASSMENT CASE AND IMPOSING ON CLAIMANT TO WAIT 10 MONTHS IN EXCRUCIATING TURMOIL FOR VERDICT, FAILING PERVERSELY ALL CLAIMS

Article 6 Right to a fair trial

1In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

EQUALITY OF ARMS – CLAIMANT AS LITIGANT IN PERSON AGAINST LARGE LEGAL FIRM, LENGTH OF THE PROCEEDINGS, QUESTIONABLE TRIBUNAL IMPARTIALITY/BIAS

Article 8 Right to respect for private and family life

1Everyone has the right to respect for his private and family life, his home and his correspondence.

READING CLAIMANT’S MEDICAL RECORDS IN PUBLIC HEARING DESPITE CLAIMANT’S STRONG OBJECTION AND RULE 50 AND 100 APPLICATION OF THE ET RULES OF PROCEDURE 2013, QUESTIONING CLAIMANT ABOUT HER DISABILITY ON STAND

Article 14 Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

BEING SET TO FAIL. TREATING CLAIMANT LESS FAVOURABLY AS A DISABLED PERSON BEING LITIGANT IN PERSON BY FIRST DISCLOSING CLAIMANT DISABILITY TO THE PARTIES OF THE TRIBUNAL AGAINST CLAIMANT WILL, allowing claimant being questioned on disability, reading aloud Claimant’s medical records. IN REGARDS TO SUE DANDO MATERNITY DISCRIMINATION, SUE DANDO WAS PROTECTED AS SHE DESCRIBED HERSELF AS SINGLE MUM OF THREE BOYS IN HER WITNESS STATEMENT. BRITISH PERPETRATORS PROTECTED BY CLAIMS DISMISSED AGAINST THEM. ALLOWING RESPONDENT TO AGGRESSIVELY CONTINUOUSLY PURSUE CLAIMANT ABOUT HER DISABILITY. FAILING DISABILITY CLAIM.

Brexit effect- the present state of the law can only be found by going through a number of different authorities and rarely won by the Claimants:

In  Mr J Day v Alloga UK Limited, 2601591/2016, European Union workers in this country were fearful for their continued employment in the United Kingdom should the outcome be Brexit.

In Mrs M Green v South Cave Kids Club, 1800950/2017, The staff and management round this time, would make racist comments like ‘send the eastern European workers home’ or ‘these eastern European workers are taking our jobs’ knowing full well that Marie Green came from the Czech Republic.(…)”

In Mr A Puri v Interalinks Ltd, 2200418/2017, the Brexit effect had led to diminished client activity, and hence adversely affected his performance. a recognition of what might be called the Brexit effect.”

InK_Stefanko_and_Others_v_1__Maritime_Hotel_Ltd__in_voluntary_liquidation__2__Mr_N_Doherty_UKEAT_0024_18_OO, the EAT reversed ET decision that there was no race discrimination. “call Ms Woronowicz a “self-centred Polish bitch” he was very angry and told her that if she thought things were so bad, she should go back to Poland and that he repeatedly swore and told the three of them to pack their bags and leave as they repeatedly requested the correct payment for their wages.”

There is no similar corresponding law in the Equality Act 2010 that could protect EU citizens in current state of play (socio-economic-cultural climate) from justified ‘silent’ discrimination or social cleansing of ‘bad apples’(because everyone is most fearful to speak up in fear for their very existence, their children and family), hence to my knowledge all race discrimination cases related to Bexit vote failed. Employment Tribunals claiming to be independent of the government seem to be rather detached from being down to earth about the reality of the problem, which in my experience if done intelligently like by my employer to get rid of me, is impossible to prove. ET is not impartial because is failing cases and in it what it doesn’t like to hear, comfortable with secure jobs and wages of over £100 000, detached from or impossible to level with scared oppressed squashed EU citizens, who’s very existence has been in turmoil.

The European Convention on Human Rights (ECHR)

ARTICLE 3 No one shall be subjected to inhuman or degrading treatment or punishment.

ARTICLE 6 Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

ARTICLE 8 Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

ARTICLE 13 Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

CLAIMANT WAITED 32 MONTHS FOR REMEDY ON SEXUAL HARASSMENT AND RACE/DISABILITY DISCRIMINATION. THE CLAIMS WERE SIFTED BY SEVERAL DIFFERENT JUDGES BUT NONE STRIKED OUT.FULL HEARING ENDED EARLY NO INDICATION ALL CLAIMS WILL FAIL BUT ONE, ON 10 DEC 2018 ONLY TWO ISSUES FOR ADDITIONAL QUESTIONING, SILENCE ABOUT FAILING REMAINING CLAIMS.

ARTICLE 14 Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

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