The legal and factual issues were identified in the agreed list of issues
1. Race Discrimination
1.1. Did the Respondents discriminate against the Claimant on the grounds of his race contrary to ss.1 & 4 of the RRA 1976?
1.2. Did the Respondents victimise the Claimant on the grounds of his race contrary to s.2 of the RRA 1976?
* The relevant law is comprehensively summarised in Harvey divider L - specifically Paras. [823]-[825] - discrimination, [927]-[931] - victimisation, [1023] - vicarious liability of R1 for R2, [1144]-[1151] - burden of proof and drawing of inferences
* The Respondents have no equal opportunities training or monitoring in place at all. Mr Boden and the College have done absolutely nothing to promote the Equal Opportunities Policy - 257-258, 225, 232-234. - NB - "support colleagues who are considering making a complaint" - not threaten that any such complaint will in itself be considered an act of insubordination! They refuse even to answer the race discrimination questionnaire in relation to crucial statistics and facts. 51 q.8 The Claimant was the only non-white person in the entire college administration except the very junior member of staff (Hien Li) for whose appointment he had to fight so hard. The statistics speak for themselves.
1.[a] Was the dismissal an act of race discrimination in that the Second Respondent was racially motivated and was instrumental in causing the First Respondent to dismiss the Claimant?
1.[b] Was the dismissal an act of unlawful victimisation, because the Respondents were motivated by the Claimant raising a grievance against the Second Respondent in respect of his conduct towards the Claimant?
1.[c] Did the Second Respondent subject the Claimant to less favourable treatment on racial grounds or racial harassment by the dismissal and prior to the dismissal by the long list of actions referred to by the Claimant.
* The facts here speak for themselves. These are not matters dreamt up by the Claimant only now to support his case. His contemporaneous complaints in relation to all the matters are well documented at the time. The evidence from the 2 supporting witnesses called late in the day was very powerful and obviously true. The Claimant was complaining of racism on the part of Mr Boden long before this "restructuring" and his allegations are genuine and obviously well founded. One incident might be unfortunate. Two or three might appear a coincidence. But in the one year of relevance there is clear evidence of Mr Boden treating the Claimant detrimentally (compared with an actual or hypothetical comparator) on all of the following occasions:
[i] Suspecting him of dishonesty in December 2002/January 2003 and/or causing a fraud investigation to be commenced against him - see the huge amount of evidence of what Mr Boden was really alleging here - 263, 272-274, 284-285, 288-290, 296-299, 321. Mr Boden is well aware that the very fact that he was suggesting fraud against the Claimant on no evidential basis whatsoever is clear evidence of his own bias against the Claimant. He has tried to lie and hide the truth both to Mr Jenkinson - 488 and in the RRA Questionnaire reply 12-51 and to this Tribunal in his evidence. But in truth this was no "routine check" - it was a fraud investigation. A forensic fraud investigative accountant was brought in secretly by Mr Boden but (no doubt much to Mr Boden's dismay) there was absolutely no evidence of any wrongdoing by the Claimant at all. No such investigation was commenced against any white member of staff - even one who was allegedly suspected by Mr Boden of wrongdoing. The grounds put forward for the suspicion are so flimsy they are laughable. They justify nothing. Mr Boden is trying to hide his true motivation. There can be only one explanation for that - he knows that he is racially motivated and wishes to hide it.
[ii] Previously in August 2000 commenting that he did not want the Claimant to be able to hear his conversations, and causing building works to the offices to block off the Claimant;
[iii] From November 2002 onwards ordering the Claimant not to park his car in areas where other, white, employees were allowed to park 261 - the Respondents tried to argue that the Claimant had no contractual right to park in the grounds anyway and that only the fellows were allowed to park there - this was false - 159;
[iv] From January 2003 excluding the Claimant from involvement in project evaluation 307-308;
[v] From February 2003 restricting the Claimant's internet and software access;
[vi] From February 2003 refusing to authorise payment to the Claimant for portfolio evaluation duties which were beyond his job specification 312, 316;
[vii] From March 2003 removing the Claimant's authority to authorise staff loans following the approval of a loan to an employee from Pakistan 325-328 - Mr Boden tried to argue that he had only just realised the loan system existed - but that was a lie see the October 2001 loan to Hardiman (a white employee) - 220;
[viii] From March 2003 no longer emailing to the Claimant the Finance Committee Meeting Minutes and Estate Bursar's committee Meeting Minutes 330, 358;
[ix] In April 2003 refusing to replace a member of the Claimant's staff and then encouraging a Vietnamese employee not to join the Claimant's staff in the accounts team 337-355 - specifically Mr Boden gave false evidence to the Tribunal on this issue. It was not merely a question of "when" Hien Le should join Mr Boden actually offered her a substantial pay rise for her to remain permanently in the hall staff. His explanation and evidence here is obviously false;
[x] In May 2003 considering and dealing with VAT matters without consulting the Claimant - this was part of the Claimant's role 217 - but he was deliberately kept out of the loop by Mr Boden;
[xi] In June 2003 excluding the Claimant from administration of or invitation to the College Ball 381;
[xii] In July 2003 not discussing the Claimant's team's pay review with the Claimant and completing salary and bonus figures without consulting the Claimant 381;
[xiii] In September 2003 excluding the Claimant from auditor meetings and an internal audit 381-383 - the audit of the kitchen is a prime example of the difference in treatment of Janet Betts (a white manager of equal standing as the Claimant) and the Claimant. The "audit" of her area was cancelled because she did not want it to take place! She was told of the audit in advance. She was not suspected of fraud. Her wishes were paramount. Contrast the audit of the Claimant and the review of the accounts function. This function and the Claimant's job was singled out for special treatment;
[xiv] In November 2003 requiring the Claimant to complete holiday forms unlike other white senior employees 399;
[xv] In December 2003 excluding the Claimant from invitation to the College's topping out ceremony.
* The Tribunal must look at all the evidence and decide whether Mr Boden's excuses are true. In fact his evidence was totally inconsistent.
* By way of examples, looking at the ET3 (34-38):
* Para. 2 - In fact there was no agreement with the Claimant for a review of the workload - this was Mr Boden's fabrication in late 2003. Mr Boden chose not to involve anyone else;
* Para. 3 - There is no evidence produced by Mr Boden of notes of any conversations or meetings re any comparisons with other colleges or discussions with auditors. There are no notes. No particulars. Mr Boden chose not to involve anyone else.
* Para. 4 - In reality by 14.1.04 Mr Boden had gone well beyond a review. He was already making recommendations and the only real effect of the recommendation was to get rid of Mr Versi. Anything which Mr Boden recommended was passed by the Finance Committee - he was unable to produce any evidence of one of his recommendations being voted down. Why the hurry? 451 recommendation, 459 Why the secrecy? 419, 423 (Why did Mr Boden give the Claimant no warning that his job was at risk?) 424 Boden has clearly already taken advice from solicitors about getting rid of the Claimant and words his covering note accordingly. Why no proper consultation?
* Para. 5 - There is no such email disclosed. Mr Boden's sequence of events is changing 35-v-579. Which came first, the email or the meeting?
* Paras. 6-9 - Mr Boden told Miss Hernandez not to worry and that she would be getting the new role - 456 pt.(b)1. Mr Boden's denial is wholly unsubstantiated. Miss Hernandez continues to work for the college. She was not called as a witness to deny the conversation. Her memo to the FC 467 clearly assumes that she will be the new financial controller and that the Claimant will no longer be with the college. The inference must be drawn that the Claimant's version is true and Mr Boden is lying again. His memo of 579 is hardly a full minute of this important "consultation" meeting. Where are Mr Boden's notes of these crucial consultation meetings? He says he cannot recall and/or destroyed them. There were no witnesses or note takers at the meetings? This is a very strange consultation process. The warden has not disclosed notes of her meeting of 16.1.04 either. There are no notes of the "2 hour meeting" with Julie Hernandez of 19.1.04. Nothing for the 6 hours of meetings on 22.1.04 nor the meeting with Julie Hernandez on 28.1.04!
2. Unfair Dismissal
2.1. Did the First Respondent unfairly dismiss the Claimant contrary to s.94 of the ERA 1996?
2.2. Was dismissal genuinely on grounds of a redundancy within s.98(2)(c) of the ERA 1996 or alternatively some other substantial reason within s.98(l)(b)?
2.3. If so, did the First Respondent act fairly in treating such alleged redundancy as a sufficient reason for dismissal (in accordance with s.98(4) of the ERA 1996)?
2. [a] Was the Respondent's "restructuring" of its accounts department a genuine scheme designed to save (and having the effect of saving) overall costs or was it a "sham" exercise aimed at concealing a pre-determined decision (by the Second and/or First Respondents) to terminate the Claimant's employment?
2. [b] Was there a genuine redundancy situation at all?
2. [c] Was the decision to terminate the Claimant's contract as part of the alleged restructuring in any event a fair decision?
2. [d] Was the process adopted by the Respondents fair, specifically in that the decision to proceed with the restructuring was made by the College Finance Committee on 30th March 2004 and the Claimant was notified of termination of his employment by reason of "redundancy" without any consultation or warning by letter dated 1st April 2004 and was dismissed with immediate effect with no notice?
* This "redundancy" was clearly unfair procedurally. The hurry. The secrecy. The lack of any proper consultation etc..
* But more fundamentally it was substantively unfair as well because it was a sham. It was Mr Boden's idea and he conducted the entire matter himself. No-one independent or objective was involved despite the fact that the college was well aware of the complete breakdown of the relationship between the Claimant and Mr Boden prior to November 2003.
* It is transparent that Mr Boden and the Claimant were in dispute and that even the college members believed that this "exercise" was merely Mr Boden's attempt to end that dispute by getting rid of the Claimant - 461
* This is not a genuine redundancy - it is a blatant "reorganisation" of the Claimant's existing role spread amongst Mr Boden and the remaining team and the accountants 440-442. Mr Boden did not even ask the accountants how much the additional costs might be if the restructuring took place until 2.2.04 - 581 - Mr Boden obviously trying to provide evidence to justify his conclusion after the event.
* The timing is clear. Mr Boden wished to get rid of the Claimant before his "review" began. The review is the cover for the dismissal. He was taking legal advice about dismissing Mr Versi in October/November 2003 before (he says) he had reached any findings at all! In cross examination he contended that the idea of a redundancy and the disestablishing of the accountant's post only occurred to him after he had undertaken the review of the functions. The review of the functions was not even commenced until 17.11.03 and not completed until December 2003 578-579 and Mr Boden claimed that it was only over the Christmas vacation that he crystallised the idea of the redundancy. So why was he seeking solicitor's advice "about Mr Versi" in October/early November 2003? The respondent refuses to disclose that advice and the Tribunal has ordered (without allowing the Claimant to see the one letter produced to date) that litigation privilege arises. Thus the dispute or potential dispute with Mr Versi must (by definition) have existed when the advice was first requested. Thus Mr Boden is lying in his evidence regarding the sequence of events on this most fundamental issue.
* By the end of January - long before the College alleges any "decision" had been made - Mr Boden was offering the Claimant a settlement - 462 - no such terms or offer or suggestion were ever put to Miss Hernandez.
* The respondents absolutely refuse to produce copies of the accountants' actual work details for the period since the Claimant's dismissal and appear to have instructed the accountants not to disclose the relevant documents to the Claimant - see recent correspondence. The respondents are deliberately hiding the evidence. The adverse inference must be drawn that the evidence would show the extent of the work now carried out by the external accountants - the "costs saving" is a sham.
* Any suggestion (made for the first time in the trial) that the salary for the now post might have been close to the Claimant's existing salary is wholly unsupported by the contemporaneous evidence - see Mr Boden's recommendations 427-428, 443 and his defence at 485 - to save £50k per year can only mean getting rid of the Claimant and not paying the new post at or near his level. The Claimant actually suggested this to Jenkinson - 553-585 - which Boden was asked to comment on - why would Boden not even consider it - his evidence was that it was never considered or discussed at all!
Grievance Process
3. Did the First Respondent conduct a proper and fair grievance process in respect of the Claimant's grievance about his unfair redundancy/race discrimination? Specifically was the grievance process genuine or had the First Respondent's Dr Tim Jenkinson pre-determined that the Claimant's grievance would fail and was Dr Jenkinson in error in requiring evidence of "explicitly racist comments or actions"? Was the grievance decision a decision which a reasonable employer could come to?
* The grievance process was patently nothing more than a procedural stage. Mr Jenkinson was not trying to determine the issues. He was testing the Claimant's allegation in order to find that they were not "sufficiently proven". His approach is wrong. It certainly cannot affect the fairness of the dismissal.
Appeal Process
4. Did the First Respondent conduct a proper and fair appeal against the grievance process decision in respect of the Claimant's grievance about his unfair redundancy/race discrimination? Specifically was the appeal process genuine or had the First Respondent's Mr Ed Peel pre-determined that the Claimant's appeal would fail? Was the appeal decision a decision which a reasonable employer could have come to?
* In any event this appeal was not a re-hearing and so could not remedy the defects in the previous process. It certainly cannot affect the fairness of the dismissal.
Breach of Contract
This is now resolved.
James StuartCounsel for the Claimant 23 February 2005