AT: READING BETWEEN: Claimant Mr D Versi Represented by: Mr J Stuart of Counsel AND: Respondent (1) Keble College (2) Mr R. Boden Represented by: (1) & (2) Mr I Rees - Solicitor On: Thursday 20 January, Friday 21 January, Monday 24 January, Tuesday 25 January & Wednesday 23 February 2005 Judgment Discussion Meeting - Thursday 17 March 2005. Chairman: Mr J R Hardwick Members: Mr R J Scullion, Mr A Collier
Square brackets [] indicate the page-numbering (forwards) of the hard copy
1. The claimant was unfairly dismissed.
2. The claimant was unlawfully discriminated against by both respondents contrary to the Race Relations Act 1976.
3. The claimant's claim of breach of contract is dismissed upon withdrawal by the claimant on settlement at the hearing on 25 January 2005.
4. The parties are invited to see if they can resolve remedies between themselves for which purpose no action will be taken to list a hearing on remedies which will be [2] before the same Tribunal with a time estimate of one day until the expiry of 21 days from the promulgation of this judgment.
The Issues
1. The claimant was dismissed by the respondent on 2 April 2004 on grounds, according to the respondent, of redundancy. The claimant maintained that this was not the reason for the dismissal in that he was targeted for dismissal by the second respondent. The claimant also maintained that the second respondent had, in dealing with him, discriminated against him because of his Asian origin. This was denied by the second respondent.
Witnesses and Documentation
2. The Tribunal heard evidence -
2.1. For the claimant 2.1.1. From the claimant himself (C1) 2.1.2. Mr N Jefferies - Former Senior Common Room Butler (C2) 2.1.3. Mr J Claxton - Former Executive Chef (C3)
2.2. For the respondent
2.2.1. From Mr R Boden - Bursar (R1) 2.2.2. Mr T Jenkinson - Professorial Fellow (R2) 2.2.3. Mr E Peel - Solicitor, Fellow and Tutor in Law (R3)
2.3 The Tribunal had before it
3 Hearing Bundles (D1-1243) Chronology (DII) Claimant's draft list of issues (C4) Claimant's closing submissions (C5) Respondent's skeleton argument (R4) Witness statements of all witnesses cross referenced above.
The Facts
3. The claimant commenced his employment with the respondent Oxford College in March 1989 as Accountant. At the time of the hearing he was a part-qualified member of the Association of Chartered Certified Accountants and needed to complete a further three papers to achieve his qualification. He was the senior member of the Accounts Department which comprised an Assistant Accountant [3] Julie Hernandez and three accountant assistants. The second respondent became the College Bursar in July 2000 having previously been the college's Development Director from 1993.
4. The issue that was to cause a deteriorating relationship between the claimant and the Bursar arose around Christmas 2002. Firstly on 19 December 2002 the Bursar noticed the claimant at his desk in the afternoon when he would normally be at the staff party. He thought this was unusual. The claimant in evidence said that two days previously he had attended his mother-in-law's funeral and was catching up on some work. The Bursar was also concerned that the claimant had external access to the respondent's accounting system although the claimant maintained that this was necessary to do work from home. This meeting ended in some acrimony with the claimant pointing out to the Bursar that he was not always there. In his file note (D535) of 23 December 2002 the Bursar raised as a concern that the claimant had been spending quite a lot of money having bought a new BMW and over the Christmas break he was going to Sri Lanka with his wife for a fortnight's holiday.
5. The next day on 20 December 2002 the Bursar expressed his concern to Stephen Dexter of Grant Thornton, the respondent's auditors, and they agreed to look at the accounting department over the Christmas break. The Bursar needed the passwords for access to the computer and asked the claimant for his password and his staff's passwords when he was leaving the Bursar's Christmas party. The claimant felt that passwords were personal property and should not be disclosed. In the event the Bursar's secretary phoned his number 2, Ms Hernandez, who provided her password. In any case the IT Manager was able to get access to the computers.
6. On return from the Christmas break the claimant received a memo from the Bursar on 6 January 2003 (D263) which was the first time that the claimant became aware of any Grant Thornton investigation. The Bursar mentioned that IT had needed to change the passwords. The claimant had a meeting with the Bursar on 13 January 2003 on the Bursar's return from leave.
7. The audit investigation had discovered nothing untoward save that there were a small number of mis-postings but this was against the background of a considerable number of transactions.
8. The claimant made his feelings clear regarding this activity in his absence in a memo of 15 January 2003 (D284) to the Bursar which was copied to the Warden stating that his actions had cast doubts on his integrity and honesty and that his staff were aware of the actions taken as were the fellows secretary, the IT manager, and the deputy Bursar. At the same time on 16 January the claimant met with the Warden Miss Averil Cameron to express his concerns regarding his treatment by the Bursar. He stated that he was minded to put in a formal grievance which the Bursar indicated would involve some considerable work and [4] as a compromise the claimant agreed to receive an apology from the Bursar and a memo apologising to the Accounts Department. A letter of apology (D291) was sent to the claimant from the Bursar.
9. On 10 February 2003 the claimant met with Mr Boden who had asked him to do the college's portfolio valuations which Dr Tim Jenkinson had previously done on payment of £200 a month. The claimant asked that he be paid a small fee for this valuation but was told by the Bursar that no fee would be forthcoming. In March 2003 the claimant approved in principle a loan of £4,000 to a scout at the college, Mrs Chaudhry who was of Pakistani origin. A previous Bursar had given the claimant authority to grant loans up to £2,000 and therefore he referred the matter to the Bursar. The reason for the request for the loan from Mrs Chaudhry was credit card debts and the Bursar initially was not inclined to grant a loan in respect of consolidation of credit card debts (D324). Mr Boden sanctioned the loan up to the claimant's authority of £2,000 and he thought that the Finance Committee should review arrangements for loans to staff to which the claimant disagreed. Nevertheless the Bursar referred the matter and new procedures were agreed. The claimant compared the refusal of part of Mrs Chaudhry's loan to the £5,000 which the Bursar had previously agreed to grant to Mr Andrew Hardiman a white employee in October 2001. The claimant maintained that the part refusal in respect of Mrs Chaudhry's loan was because it was a request from someone else of Asian origin.
10. In March the claimant had reason to take issue with the Bursar (D330) for not sending him a copy of the Finance Committee minutes which he always received. The claimant generally did not attend the Finance Committee meetings and minutes of what occurred were useful to him in case action needed to be taken in the near term. He did in fact a few weeks later always receive the Finance Committee minutes when they were contained in the Governing Body minutes.
11. On 22 April 2003 one of the claimant's accounts staff handed in her notice and the next day he suggested to the Bursar that an existing employee in the domestic Bursar's team, Hien Le had the right qualifications to take over. The domestic Bursar Janet Betts was unhappy that the claimant had contacted Hien Le direct. In fact another assistant Hall Supervisor which was the position of Ms Le had handed in her notice and the Hall Supervisor herself was going on holiday and the important summer conference season was approaching. The Bursar sought to defer any transfer until September, the claimant was not happy with this and believed that any problems could be solved by the use of agency staff. The claimant was also displeased to learn that the Bursar had offered Hien Le a salary increase of £5,000 to stay in her role which was more that she would have received in the Accounts Department. Nevertheless on telephoning Hien Le she maintained she wanted to take on the accounting job.
12. In May 2003 the claimant asked Mr Boden to review the salaries of the Accounts Department staff (D345-347). In his view they were underpaid and needed to be [5] reviewed so that his strong team could be maintained. In fact the Bursar expanded the salary review to a review of the Accounts Department which would lead to his re-structuring proposals and ultimately the disappearance of the claimant's post.
13. In May 2003 the Bursar made a deal with the auditors on potential VAT saving. They were to do the work on a contingency fee of 25% of any savings plus the college had to pay for some administrative fees. The claimant was unhappy that the Bursar had not consulted him on this matter and pointed out that the deal he previously did (D359) was far better than that of the Bursar. The claimant certainly had input on VAT matters as he was referred to by the Bursar in 2001 as having worked with the auditors to achieve a highly satisfactory VAT settlement (D217). The deteriorating nature of their relationship was perhaps shown by Mr Boden's response to the claimant's email that the claimant was alleging that Mr Boden was intending to exclude him from the wellbeing of the college and that he had made a poor deal. Mr Boden (D359) refuted this accusation but said he could not allow such slander to pass without response.
14. In June 2003 the claimant said that for the first time he did not receive an invitation to the annual college ball which he had always previously attended with his wife. The respondent maintained that invitations to the ball were at the behest of the students who organised the ball.
15. In September 2003 the claimant had agreed with the auditors and the Bursar to carry out an internal control exercise for the preparation of food. The claimant found that the arrangements had been cancelled because Janet Betts, the Domestic Bursar, had said the kitchens were very busy because of the conference season. The claimant said that when the auditors visited him with regard to the arrangements he asked to see the Bursar who did not get back to him and so he was embarrassed when he found that the internal audit had been cancelled.
16. On 17 November 2003 the Bursar commenced his review of the Accounts Department. There was a meeting between the Bursar and the claimant on 8 January 2004. The following day the Bursar submitted his report to the Finance Committee (D424-444) which recommended (D429) the posts of Accountant and Assistant Accountant be dis-established and a new post of Financial Controller be established. At the meeting of the Finance Committee on 14 January 2004 the proposal was accepted and it was agreed the Bursar shou1d proceed to consult with the staff of the Accounts Department regarding the proposal. The Bursar arranged to see the claimant on 15 January but the claimant refused to talk to him regarding the consultation process. The claimant agreed that he would read the submission and that the Bursar could talk to his accounts staff. The claimant said that it was at that juncture he realised that the review exercise Would result in his departure. He also said that Julie Hernandez came out of the Bursar's office sobbing and he said that the proposals were designed to remove him and not herself. She said that the Bursar had assured her that the new Post would not be [6] advertised externally and as she was an ideal candidate for the job she would get it. Mr Boden denied that he had given any assurance to Julie Hernandez regarding the fact that she would get the post of Financial Controller.
17. The Bursar and the claimant had a meeting on 20 January. The claimant provided notes that he considered the proposal would not work. The Bursar said that the claimant stated that the restructuring was a charade and he would not he applying for the new post. The Bursar said that this was not the case and that he was well qualified to apply and that the decision about restructuring would not be made until the Finance Committee meeting on 4 February. At a further meeting on 26 January 2004 the claimant said he did not intend to apply for the post which would be 2 points below his grade and at a considerably lower salary. The claimant said that the Bursar volunteered to give him a set of figures for financial settlement of redundancy whereas the Bursar said the request was made by the claimant. Draft redundancy payments were put to the claimant on 29 January.
18. Consideration of the Bursar's proposal at the Finance Committee meeting on 4 February was overtaken by the claimant lodging a formal grievance on 2 February 2004 and the review and re-structuring process was suspended pending the outcome of that grievance. The grievance (D474) to the Warden said that the claimant believed that his less favourable treatment and selection were based on his ethnic origin and race.
19. Dr Jenkinson heard the grievance. The first grievance hearing was held on 11 February 2004 but on 20 February the claimant commenced sick leave due to stress and high blood pressure. A second meeting took place on 23 February and Dr Jenkinson gave his decision on 25 February rejecting as without merit the allegation that the Bursar had discriminated against the claimant on racial grounds. He also said the case for the proposed re-structuring was entirely workable (D589(b) to 599). The claimant said that he considered throughout the process he was brow-beaten by Dr Jenkinson who kept arguing with him rather than listening to his grievance. He considered he had a pre-determined opinion and was also a personal friend of the Bursar.
20. In evidence Dr Jenkinson said that he had reason to feel disenchanted with the Bursar in relation to sponsorship funds which had been put aside for Mr Jenkinson to draw on as part of his research studies. It generated income of approximately £8,000 per year and he was drawing between £1,000 and £2,000 but as it was invested in the bull market of the 1990's it had grown quite substantially. The Bursar had proposed the fund to be wound up which Mr Jenkinson had complained of as it was his project. The Bursar then said that he could have the cash amount but the effect of that was for the Bursar and the college to keep the capital gain on the fund. Mr Jenkinson said that he was pretty unhappy about it and he did consider appealing but did not.
Submissions [7]
21. Both sides helpfully provided written submissions (C5 & R4). In support, Mr Rees said that the claimant's witnesses were unbelievable and had been produced like rabbits out of a hat. As regards the complaints made of unreasonable treatment this should not lead the Tribunal to draw an inference of race discrimination and he cited the cases of Madden -v- Preferred Technical Group Cha Ltd 2005 IRLP 46 and Bahl -v- The Law Society 2004 IRLR 799. The respondent had given a reasonable explanation and he had grave misgivings regarding the notes produced by the claimant but even then there was no comment on the race dimension and they were obviously not contemporaneous. It was only when there was a redundancy situation that the claimant says that he was discriminated against and that the process was a sham. He thought that Mr Jenkinson and Mr Peel did a good job on the tasks to which they were appointed in relation to investigation into the claimant's complaints and the appeal against the findings made by Mr Jenkinson on that grievance. Mr Jenkinson said in fact he was slightly aggrieved with Mr Boden regarding the fund monies which was at odds with the suggestion that Mr Boden was pulling the stings. Mr Peel said the Finance Committee was not a rubber stamp. The Warden not Mr Boden was pushing to get on with the process. The claimant chose not to apply for the new post of Financial Controller. By the process the respondent had made a considerable saving and there was no evidence that Grant Thornton had taken on extra work to fill the gap,
22. Mr Stuart on behalf of the claimant said which came first the decision to get rid of the claimant or the restructuring. Mr Boden had said he had reached no conclusion to get rid of the claimant by the Christmas holiday 2003 but that evidence was wrong and he was hiding something. This amounted to inherent racism. The Chairman had ruled that the letter of advice from Manches related to a potential litigation dispute and was privileged. That was from October to mid-November. It was clear the Bursar was intending to do something to the claimant at that time which must have happened in October or November. The sequence of events undermines Mr Boden's version and on that his whole case fails. Around 29 March 2004 the Finance Committee met. Minutes were not produced and then the Governing Body met and the whole decision process was rushed through after Mr Peel had issued his decision. There was no meeting on the redundancy. The Bursar in conjunction with the Warden rushed the whole process through. The Tribunal had no evidence of checks or balances. There was no evidence of the Finance Committee or the Governing Body doing anything on the restructuring. Where were the Bursar's hand-written notes on these matters? Mr Jenkinson made no minutes of a meeting with the Bursar and it was not mentioned in his witness statement. The truth is the meeting was very brief and Mr Boden said all was fine and let me have any comments in writing.
23. Mr Rees had submitted that Mr Jenkinson and Mr Peel had followed the advice tendered by the solicitors Manches but Mr Stuart pointed out that as the letter was not disclosable the Tribunal could not rely on that. It was the most obvious case [8] of a solicitor-led restructuring to get the claimant and it was set up in October/November. There were two witnesses who did not give good evidence and they were Mr Jenkinson and Mr Boden. Mr Jenkinson could not answer questions straight and we have the claimant's notes which were contemporaneous. As regards the claim of unfair dismissal, nobody other than Mr Boden was involved in the redundancy process. The Fellow Mr Gittins had suggested in his email that he respected both the Bursar and the claimant and hoped that they could step back from the brink (D461). But it was all pre-determined, the Finance Committee the next day appointed Ms Hernandez and immediately dismissed the claimant. Mr Peel said it was not for the Finance Committee of its own initiative to do anything but they relied on the Bursar who could identify savings. The evidence was that every time the Bursar put a proposal to the Finance Committee it got passed.
24. On the question of the race claim there was a lack of equal opportunities training and this was important and relevant. The race relations questionnaire on the ethnic mix stated the respondent had no information. The picture commenced in December 2002 and the Bursar was lying that it was not a fraud investigation into the claimant. Look at the Bursar's treatment of the loan to Mrs Chaudhry compared to that of Mr Hardiman. The claimant had not been a member of the Finance Committee for all the years of his service and yet why did the Bursar only recently stop him receiving the minutes. As regards Hien Le Mr Boden said that the problem was the timing of the transfer but this was incorrect evidence because he offered her £5,000 to stay in her post in the Hall. When the Domestic Bursar Mrs Betts objected to the audit in her department the Bursar acceded to this as compared to the secret audit carried out on the claimant. The Tribunal should find that Ms Hernandez was told by the Bursar she would get the job. It was an un-minutcd meeting. Why would she not come and say to the Tribunal that she was not told this by the Bursar and that she never told the claimant that she had been promised the job. The reason is that it of course was true. By the end of January, long before the respondent alleges any decision had been made, Mr Boden was offering the claimant a settlement (D462) but no such offer or suggestion was ever put to Ms Hernandez.
Conclusions
25. Complaint of unfair dismissal
25.1. Under the provisions of Section 98(1) Employment Rights Act 1996 it is for the respondent to show the reason for dismissal and that it is a potentially fair reason falling within subsection 2 of that section or some other substantial reason. The respondent maintains the reason for dismissal was redundancy, a potentially fair reason whereas the claimant maintains that redundancy was not the reason and that the process was a sham. [9]
25.2. In the Tribunal's view the difficulties between the Bursar and the claimant arose from the Bursar's instigation of what was described as a routine investigation into the accounts. Although the Bursar makes play that the claimant was obstructive in releasing passwords to the accounts system we consider that it was entirely prudent of him to be cautious in relation to the release of his or his staff's passwords. Indeed under the section Security in the respondent's staff handbook (D237) the sharing of passwords was prohibited and breach of security was stated to be a disciplinary matter which could lead to summary dismissal. The changing of the passwords by IT alerted the claimant to the investigation. It is clear to the Tribunal that it was more than a routine investigation as the Bursar would have it but in fact a full blooded fraud investigation because Mr Mark Steer joined the Senior Partner Mr Dexter and Mr Steer was a Forensic Accountant. Whilst the Tribunal recognises that a prime responsibility of the Bursar as custodian of the respondent's funds there would have been subtler ways to allay any concerns he had regarding the claimant during the normal audit process throughout the year. We regard the deterioration in the relationship between the two individuals as the fault of the Bursar in carrying out such high handed investigation into the senior member of the Accounts Department and in the end the Bursar was compelled to apologise to the claimant.
25.3. What is apparent to the Tribunal is that what was to be in the claimant's mind a review of the salaries of his department which he felt had fallen behind was converted by the Bursar into a fundamental structural review of that department.
25.4. We considered Mr Boden's evidence as to when he reached the conclusion that the claimant's post might disappear only after he had undertaken the review to be unsatisfactory. He said the situation regarding redundancy manifested itself over the Christmas vacation. However he was taking legal advice from Manches in October/November and in our view the inescapable conclusion was that this was in relation to a potential claim by Mr Versi regarding any redundancy. We find that the decision to remove the claimant's post was taken well before the Christmas vacation and we reject the Bursar's evidence on that.
25.5. In companies where costs are often a problem and there is a need to make savings, there are often regular reviews of business operations. The respondents produced no evidence whatsoever as to a driver to make financial savings. Mr Peel in answer to a question from the Tribunal whether the Finance Committee had looked for other savings said that there had been nothing put to them like this and this was the first time this had occurred in 18 months. [10]
25.6. The Tribunal reaches the clear conclusion from the process carried out by the Bursar that the review of the Accounts Department was a sham with the desired outcome being the departure of the claimant. The Tribunal finds that the claimant was targeted by the Bursar. We are reinforced in our view that the process was a sham in that notwithstanding Mr Boden's denial on this point we find that Julia Hernandez was told by him that she would get the job of Financial Controller and that the claimant's evidence that she told him on the point is correct. It is extremely surprising that the Bursar who made notes at various times had no notes of what he called a consultation meeting with Julia Hernandez. If in fact the Bursar was carrying out a genuine consultation process it is instructive to note that whereas redundancy proposals had been put to the claimant, none were put to Ms Hernandez and in our view for the very good reason that there was no prospect of her being made redundant in this pre-determined process.
25.7. Because of our finding that the whole process was a sham the respondent has failed to make out the real reason for dismissal being redundancy as opposed to the dismissal occurring from the Bursar's antagonism to the claimant. Accordingly the dismissal is automatically unfair under the provisions of Section 98(1) Employment Act 1996.
25.8. Even if we had accepted the respondent's reason for dismissal as genuinely being redundancy we would have found that the dismissal was unfair under the provisions of Section 98(4) of the Act. The respondent carried out no consultation process with the claimant. Furthermore we regard it as wholly unreasonable that Mr Boden who was having a personality clash with the claimant should have been involved in a consultation/selection process. There was in any event no selection process or matrices for the new proposed post of Financial Controller. The whole process was unreasonable.
29.9 The grievance process conducted by Mr Jenkinson was in our view contaminated by the input of the Bursar. He relayed opinions from the lawyers to Mr Jenkinson while he was charged with looking into the claimant's grievance (D477) and sent him a note on 11 February (D489) sending a checklist of dos and don'ts for the hearing from Daff Richardson the partner in Manches. The importance the Bursar attaches to the claimant's understandable grievance is shown by his final comment that he was afraid it is likely to prove a more time consuming business than any of us would have wished. Furthermore Mr Jenkinson did not seek to get clarification on the particular important dispute of facts that the claimant alleged that Julia Hernandez had been told that she would get the job of Financial Controller.
25.10. Mr Peel recognised the personality difficulty between the Bursar and the claimant and fairly said on reflection it would have been better if a small [11] sub-committee had carried out the consultation process. He said in evidence he was aware of the strained relationship between the two individuals. He also failed to interview Julia Hernandez and said that he took his lead from the grounds of appeal put by the claimant but saw in hindsight that it would have been appropriate for Mr Jenkinson to have interviewed Julie Hernandez or even for himself to have carried out that task.
25.11. The Tribunal's view is that the grievance hearing conducted by Mr Jenkinson was wholly unsatisfactory. We agree with Counsel for the claimant that he was an unsatisfactory witness in that he would not answer questions in a straightforward manner. For instance he prevaricated about the role of Manches in the process and justified his failure to interview Ms Hernandez by the fact that it was not in the claimant's grounds (D490-491) which was the template to which he was working although he was aware of the dimension. He said that his failure to mention the advice from Manches in his witness statement was because it was advice of a generic nature on race discrimination but upon being pressed conceded that Daff Richardson had had some input into the grievance hearing. He gave an evasive reply on document 489 when asked whether it was appropriate against the background of him conducting a grievance against Mr Boden. Mr Jenkinson said he had not considered it in those terms.
25.12. We find it both surprising and concerning that Mr Jenkinson kept no notes whatsoever on his first meeting with Roger Boden to discuss the claimant's grievance. In evidence he said that the meeting lasted about an hour. He had a further meeting to discuss the claimant's grievance and the main discussion on 23 February according to Mr Jenkinson. Again he made no notes of that meeting.
25.13. In his report (589D to 589H) he stated that he was entirely satisfied (D589F) from his own investigations that no offer implicit or explicit had been made to any other person affected by the proposed restructuring so that the claimant could apply for the new post. How he could say this without interviewing Ms Hernandez is difficult to comprehend bearing in mind the conflict of the stories between the claimant and Mr Boden.
26. Complaint of Race Discrimination
26.1. The Tribunal has considered the evidential matters against the requirements of Section 54A Race Relations Act 1976 which states "Where, on the hearing of the complaint, the complainant proves facts the Tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent has [12] a) committed such an act of discrimination or harassment the complainant the tribunal shall uphold the complaint unless the respondent proves that he did not commit that Act."
26.2. The Tribunal has also had regard to the guidance from the EAT in Barton -v- Investec Henderson Crosthwaite Securities Ltd 2003 IRLR 332 as reinforced by the Court of Appeal decision in Igen Ltd -v- Wong 2005 ILIR 258. Essentially if a claimant establishes a prima facie case of alleged discrimination the burden of proof shifts to the respondent to show on the balance of probabilities that he did not commit the act complained of and in the absence of an adequate explanation it is necessary for the Tribunal to conclude that the complaint should be upheld.
26.3. We have looked at various matters which the claimant has alleged in support of this complaint. The fraud investigation was an extremely serious matter with no factual background to justify it merely the whim of the Bursar who considered that the claimant in taking a long haul overseas holiday and acquiring a BMW may be guilty of misfeasance. He was either unaware or did not take into account that the claimant's wife was in employment to the extent that Mr and Mrs Versi could maintain a good standard of living. We have to consider whether this was conducted because of real fears of potential damage to the college's finances or because of an antagonism towards the complainant. We regard the level and nature of the investigation to be disproportionate to the perceived fears of the Bursar.
26.4. There seemed to be a marginalising process against the claimant from January 2003 following the situation where the Bursar had to apologise to the claimant. The claimant was excluded from involvement in project evaluation (D308) in February. The claimant asked for some payment towards carrying out portfolio evaluation duties which were previously carried out by a Fellow for which payment was made. We can understand that a Fellow would be expected to be paid for this and do not necessarily dismiss the rationale of the Bursar that it should be an add-on to the claimant's accounts duties. However the claimant was not requesting the total amount made to the Fellow but some payment and the Bursar chose not to accede to this.
26.5. The Bursar intervened in the loan to the Pakistan employee Mrs Chaudhry which in the end was limited to the claimant's authorisation of £2,000 per loan. The Bursar says that he was not enamoured with the idea of a loan for consolidation of credit card debts but staff loans often are to cover short-term financial problems,
26.6. We are clear that the removal of the claimant from the Finance Committee minutes was a deliberate act calculated to make life difficult for the [13] claimant. Although in the end he received these minutes as an adjunct to the minutes of the Governing Body it was helpful to him in the performance of his duties to be aware of concerns or decisions taken by the Finance Committee immediately after their meetings.
26.7. On the situation of the Vietnamese staff member Hien Le it was not disclosed by the Bursar in his evidence that he had made an offer to her to remain in the Domestic Bursar's department as opposed to a transfer to the claimant's department. The Bursar sought to justify his intervention in the transfer by the fact that the busy conference season was approaching. The Tribunal had to consider whether the Bursar was being unduly difficult to the claimant's aspirations to replace a member of his staff or whether there were good logistic reasons for deferring the transfer. Certainly the offer of £5,000 may well have prevented a move but Ms Le in the end wished to move to the Accounts Department.
26.8. We certainly regard the failure to involve the claimant in the VAT saving proposed by the auditors to be a measure to exclude him. The claimant had previously been involved in VAT savings and had received creditable comments. The Bursar was asked by a Tribunal member whether it was not good management practice to have shared this matter with the claimant when the auditors approached him. We regarded the Bursar's answer to that as being evasive by saying that his only involvement was when the call was first made he negotiated the matter to 25% then passed it on to the claimant. The email exchange between the Bursar and the claimant on this issue (D358-360) speaks legions of the state of their relationship at that time.
26.9. In June 2003 for the first time the claimant was excluded from the college ball. The Bursar said that the students were responsible for the organisation of the ball and he was not pressed further on it. The collcge ball is a prestigious annual event and it seems to the Tribunal that there would also be college guests of the Warden at the ball and it is unlikely that the Bursar would not have been aware of a list of college and staff guests. It is impossible for the Tribunal to speculate as to whether the Bursar had a hand in the fact that the claimant was not invited although it is strange that this is the first occasion of the claimant's exclusion.
26.10. In response to the complaint by Mr Versi that the Bursar did not discuss his team's pay review with him the Bursar said that it was not necessary as he was merely applying a cost of living increase. Nevertheless he did have a consultation with Mrs Betts regarding her team because in fact Mrs Betts had been able to make the case for some uplift to the salaries of her staff team. [14]
26.11. In September 2003 the claimant says he was excluded from an audit meeting whereas the Bursar said the meeting was called at the behest of the auditors and that the meeting was theirs and had nothing to do with the Bursar's department. On audit matters the claimant said he was embarrassed regarding the calling off of the internal audit of the kitchen. Mr Boden said that this was because Mrs Betts had argued against it taking place and the fact that it was a busy time for kitchens. Mr Boden said that in his city background the notice of internal audits were to be given in advance to particular departments. As Counsel put it the Tribunal has to note the difference in treatment to Mrs Betts and that of the claimant who had an internal audit carried out on him which would have been unbeknownst to him apart from the passwords having to be changed.
26.12 We make no issue regarding the requirement to complete a holiday form because it could have been against the background of the argument on hours, as the Bursar said, that he required him to book it as holiday. The Bursar acknowledged that senior personnel do not necessarily comply with the college's requirement for holiday request forms.
26.13. In December the claimant maintains he was excluded from the topping out ceremony although the Bursar said all staff involved were invited. The claimant maintained that staff had been invited who were not involved with the project and he considered that he was involved because he paid the contractor's invoiccs. He believed that the Bursar had deliberately excluded him.
26.14. We consider that the Bursar during 2003 was behaving towards the claimant in an antagonistic way and we have to decide whether this was merely unreasonable treatment and not necessarily tainted by discrimination as per the Bahl -v- Law Society case or whether in fact the underlying feature of this treatment was by reason of the claimant's Asian origin.
26.15. We note the circumstances of the claimant's witness Mr Claxton that there was some dispute regarding him doing some catering function for the former President Mr Bill Clinton although Mr Claxton said he had permission for this. It was put to him that his statement in support of the claimant was out of spite which he denied. The Tribunal notes the statement of Mr Jefferies and whilst it pays no particular emphasis on the evidence of both witnesses it regarded them as giving their evidence in a straightforward manner. Suffice it to say that the Tribunal accepts that the evidence given by them and indeed by the claimant that the claimant had raised concerns during 2003 in a pub regarding his treatment by the Bursar and had hazarded a guess that it possibly could be on the grounds of his race. [15]
26.16. The Tribunal has also looked to the respondent's approach to the questionnaire and its overall equal opportunities training. It notes in answer to the questionnaire (D51) that it was not college policy to maintain records regarding colour, race and ethnic origin of senior or academic administrative employees at the college. The college issued an equal opportunities policy statement (D57-D58) which refers to the college's race equality action plan which was not in the bundle. The Bursar was asked by a Tribunal member what he did for racial equality monitoring and he said that they had a multi-racial staff and the ethnic mix was between 40% & 50% of the staff but on a formal level not much. However on an informal level they had a number of social gatherings and was a very inclusive college. He referred to the fact that they had recently purchased a private hospital and as a celebration the housekeeping staff, the preponderance of whom was from ethnic minorities attended and it led a porter to say this would not happen in any other college. He was asked whether the review committee had met and reported and he said yes but again this was not in the bundle. The Bursar is charged with dealing with doubts or concerns regarding the application of the respondent's Equal Opportunities Policy (D225) but the Tribunal found his attendance to such matters of equal opportunities to be vestigial. It was clear to the Tribunal that whilst the college were able to brandish a bit of paperwork showing they had a policy in practice very little was done regarding the implementation of equal opportunities. The importance the college gave to equal opportunities was shown by the fact that the Bursar had had no training on it and said he relied on pamphlets from law firms.
26.17. Having assessed all the evidence before us we come to the view that the claimant has clearly made out a prime facie case of alleged discrimination and we take the view that the Bursar has not provided an adequate explanation for a number of the complaints such as the audit investigation, the exclusion of activities during 2003 and a VAT saving scheme. We specifically are not satisfied with his evidence in. paragraph 35 of his witness statement regarding the Hien Le incident. We did not consider his evidence to be open on this matter. It was put to him that it was not just a question of timing relating to her transfer. The substantial salary increase offered was raised by Counsel in reference to the claimant's notes of this meeting with the sub-warden (D343).
26.18. We are clearly of the view that it is not just unreasonable behaviour but that the animus of Mr Boden towards the claimant was by reason of his race and ethnic origin. The Bursar intervened to the detriment of the claimant in relation to his dealings with other members of the ethnic minority being Hien Le and Mrs Chaudhry and all this had a damaging effect in the day to day operations of the claimant in his environment. It was the Bursar's responsibility to hold full discussions on any matters which impinged on the responsibilities of those who reported [16] to him such as the claimant and Janet Betts who was white. It was clear that he had a dialogue with her on a regular basis as opposed to the claimant and was prepared to discuss the salary review of her department with her and accommodated her request for an increase. In the case of the claimant the salary reviews of his staff were not discussed on the basis that the cost of living was appropriate notwithstanding that the claimant had previously asked for an overall review of the salaries of his department which of course as it later transpired changed to something entirely different being a restructuring of the department. We are manifestly of the view that the claim for race discrimination succeeds.
27. Happily the respondent has not sought to advance the defence under Section 32(3) of the Act in relation to liability for the acts of the Bursar. Frankly it would not get off the ground against the background of the college's conduct in this matter. There was abundant evidence that in the main the Bursar with prior lobbying would generally prevail on issues before the Finance Committee. In this case notwithstanding that Mr Jenkinson and Mr Peel knew of the difficult relationship between the claimant and the Bursar they acted as a rubber stamp to his proposals. At the meeting on 14 January 2004 (D450) present were the Warden, the Bursar and Professor Allison who was the Sub-Bursar together with Dr Hunt and it was put to the Bursar that there was a majority on his side. He said it was unfortunate that some were away and apologies in fact were given by the Deputy Bursar, Mr Peel and Dr Reinert.
28. In the Tribunal's view the college failed utterly in carrying out or imposing any checks or balances on the Bursar's proposals which clearly presaged the departure of the claimant notwithstanding the common knowledge of the poor working relationship between the parties. Mr Peel said that it would have been better for the Finance Committee to have carried out the consultation process and not the Bursar whom, in the Tribunal's view, could hardly be said to be an impartial person in the overall theme of things. Instead of there being a pause for quiet reflection on the matter by the Finance Committee and the Governing Body, the college moved with speed to bring the matter to a conclusion following the meeting of the Finance Committee on 30 March 2004. The Warden wrote to the claimant the following day (D718) terminating his employment by reason of redundancy because the position of Accountant had been removed and stating that he had indicated that he did not wish to be considered for the new post of Financial Controller. He was asked to confirm this as soon as possible and in any event by the close of business on Thursday 1 April that this remained his position. On not hearing from the claimant the Warden wrote on 2 April 2004 (D722) saying that she concluded that he was not applying for that post. He was then told he need not serve out his notice and that his employment ended with effect from that day and he would receive payment in lieu of notice.
29. The whole process was a sham and the Tribunal takes a most unfavourable view of a prestigious Oxford college who through its Finance Committee and [17] Governing Body failed to apply appropriate checks and balances and allowed a situation to prevail where there were no effective or operable policies in relation to equal opportunities at the college. Much has been canvassed regarding equal opportunities as to admissions to Oxford colleges and no doubt Keble College takes such issues seriously. In the Tribunal's view it should also pay significantly more attention to the matter of equal opportunities in relation to its workforce. The claimant with distinguished service of 15 years in a senior position deserved a lot more from the college in the unfair and prejudicial process that led to his departure.
30. As seen in the judgment the parties are invited to see if they can resolve remedy between themselves. Subject to hearing evidence on the matter and submissions our view at this juncture on the claim for injury to feelings is that it would certainly not be in the lowest i.e. the third category of the Vento guidelines. We would also comment that if the matter comes to a hearing we would make an award against the Bursar as well as the college in respect of injury to feeling to reflect our view of the Bursar's conduct in this unfortunate matter.
......... (signature) Chairman
Judgment sent to the parties and entered in the Register on 04/04/05. The time for application for Review and for Appeal runs from this date, except, in the case of an Appeal, where written reasons were requested orally at the hearing or are requested in writing within 14 days of this date, in which case the time for Appeal runs from the date such written reasons are sent to the parties.
......... (signature) for Secretary of the Tribunals