IN THE JERSEY EMPLOYMENT AND DISCRIMINATION
TRIBUNAL
IN THE MATTER:
BETWEEN
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PATRICK
JAMES MULLAN
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CLAIMANT
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AND
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ROYAL
BRITISH LEGION CLUB
JAMIE
SMITH
MANDY
COOK
RENE
QUERE
COLM
RICHARDS
LORRAINE
RIGNEY-DAWSON
GEORGE
MICHALSKI
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FIRST
RESPONDENT
SECOND
RESPONDENT
THIRD
RESPONDENT
FOURTH
RESPONDENT
FIFTH
RESPONDENT
SIXTH
RESPONDEN
SEVENTH
RESPONDENT
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JUDGMENT
Reference: [2024] TRE 118
Date of
Hearing: 25 and 26 April 2025
Before: Mrs H Westmacott, Mrs L
Bennett and Mrs K Henley
For the
Claimant: In person
For the Respondents: Ms L Rigney-Dawson
DECISION
The Claimant’s claims for direct
discrimination and victimization fail.
REASONS
Introduction
1. The Claimant was employed by
the Royal British Legion Club (“RBLC”) from 10 March 2023 to 15 April 2024 as a
part time bar tender.
2. The Individual Respondents
were all members of the RBLC committee (the “Committee”) as follows:
(a) Mr Smith was vice chairman of
the Committee up until December 2023;
(b) Mrs Cook, Mr Le Quere and
Mr Richards were Committee members from early 2023 and remained on the Committee
at all relevant times;
(c) Mr Michalski was chairman
of the Committee from 12 February to June 2024; and
(d) Ms Rigney-Dawson joined the
Committee on 12 February 2024 as vice chairman, became chairman when Mr
Michalski left and remained as chairman at all relevant times after this.
3. The Claimant made various
employment and discrimination claims against the Respondents, the Jersey
Employment Trust (“JET”) and other individuals. Several of those claims have
been struck out or withdrawn during the proceedings as they were issued out of
time. The only claims that remain for the tribunal to deal with in this
judgment are discrimination claims against the Respondents under articles 6(1) (direct
discrimination) and 27 (victimization) of the Discrimination (Jersey) Law 2016
(the “Law”).
4. The grounds for those claims
are that the Claimant made complaints against Mr Smith in relation to acts
prohibited under the Discrimination Law and the RBLC made failures in its
investigation of those complaints (the “Investigation”). The Claimant asserts
that all the Individual Respondents were involved in the Investigation as Committee
members and the reason the Respondent made those failures was due to the Claimant’s
disability (constituting direct discrimination) and because he had made a
complaint under the Law (constituting victimization).
5. Following a second case
management hearing, a final hearing on these claims was listed for 2 days
commencing on 24 April 2025 (the “Hearing”). In advance of the Hearing the
tribunal was provided with a file of documents, which the parties confirmed
contained all the documents they wished to put before the tribunal in support
of the claim and the response (the “File”).
6. The File contained witness
statements on behalf of the Claimant from:
(a) the Claimant;
(b) Ms Cooper, the bar manager
and the Claimant’s line manager at the RBLC until February 2024;
(c) Mrs Le Noa, Ms Cooper’s
mother and the chairman of the Committee from 2019 until 12 February 2024; and
(d) Ms Herve, a Committee
member from March or April 2023 until February 2024
7. The File also contained
witness statements on behalf of the Respondents from all the Individual
Respondents and Mr Farrel, who joined the Committee in February 2024, became
vice-chairman in June 2024 and remained on the committee at all relevant times
after this.
8. All the witnesses attended
the Hearing in person, except for Mrs Cook, who attended via video link, to
give evidence and answer questions the other party and the tribunal had for
them on the evidence. While he was available for questioning, no questions were
put to Mr Farrel.
9. With regard to the reliability of the witness evidence,
the tribunal notes that
the Claimant and Ms Cooper’s witness statements include a lot of
information that was not within their own direct knowledge, as well as a lot of
opinion. In addition, Mrs Le Noa’s witness statement appeared to omit certain
relevant facts. These witness statements were, therefore, viewed with some
caution. However, the tribunal considered Ms Herve to be a straightforward
witness. The tribunal also note that all of the Respondents’ witness statements
were very brief and at the Hearing some of the Respondents’ witnesses appeared
to have very little recollection of what had happened.
10. When making its decision,
the tribunal considered all the relevant documents in the File as well as the
witnesses’ written and oral evidence. This judgment does not reference
everything covered in the documentary and oral evidence. Rather, it sets out
the findings that the tribunal considers to be necessary, and the key
information that the tribunal relied upon, to fairly determine the claims.
Facts
and Assertions
11. JET is a
charity that provides employment and vocational training services to people
with disabilities and long-term health conditions and assists them to gain and
maintain employment. In February 2023, the Claimant was a client of JET and Mr
Smith was employed by JET to work as an employment coordinator.
12. As Mr Smith was
also vice-chairman of the
Committee at the time and knew that the RBLC needed a bar tender, he submitted
the Claimant’s CV for the role. Mrs Le Noa and Ms Cooper, who also knew of the
Claimant via a personal connection, interviewed the Claimant and the decision
was made to hire him on a zero hours contract starting on 10 March 2023.
13. Although the Claimant was
not assigned to Mr Smith at JET when he started at the RBLC, Mr Smith
subsequently became the
Claimant’s employment coordinator, from 10 May 2023.
First
Complaint
14. On 11
December 2023 the Claimant wrote to the RBLC with the subject “formal
complaint regarding conduct and data protection breaches”
(the “First Complaint”). The letter concluded by stating that the Claimant
intended to lodge an official complaint with the Jersey Office of the
Information ComMsioner and requesting that an
investigation be conducted into the complaints against Mr Smith set out in the
letter. In summary, those complaints were:
(a) Mr. Smith disclosed the Claimant's affiliation with JET
and personal information of the Claimant and other JET clients to RBLC members.
(b) Mr. Smith has behaved aggressively while at the RBLC
and challenged the Claimant publicly on multiple occasions seeking information
about his working hours and shifts.
(c) Mr. Smith accused the Claimant publicly of providing
free drinks and he undermined the authority of Mrs Le Noah and Ms Cooper.
(d) Mr. Smith manipulated information about the Claimant's
financial situation to hinder his contract negotiations and falsely portrayed
his academic status.
(e) Mr. Smith engaged in racist remarks during a
conversation with RBLC members.
15. Mrs Le Noa informed Mr
Smith of the First Complaint and she gave evidence that he threatened to sue
her for breach of data protection if he showed it to the Committee. At the Hearing,
Mr Smith gave evidence that he did not read the First Complaint letter, but he had
an idea of what was in it as the Claimant had also submitted a similar
complaint to JET, which he was aware of. He said it was not appropriate for Mrs
Le Noa to show the First Complaint to the whole Committee; a sub-committee
should have been formed of people with no conflict of interest to review the
complaint.
16. Mrs Le Noa nevertheless
read parts of the First Complaint letter to the Committee in the December 2023
Committee meeting. Mr Smith, Mr Richards and Mr Le Quere attended that meeting.
Mrs Cook did not attend, but Mrs Le Noa showed her the First Complaint shortly
after the meeting and she read it briefly before giving it straight back. Mrs
Rigney-Dawson and Mr Michalski were not on the Committee at the time, but Mrs
Le Noa showed Mr Michalski a copy of the First Complaint sometime in December
2023 or January 2024. Ms Cooper asserts that Mrs Le Noa showed it to him as he
had put his name forward for election as the next chairman of the Committee and
it would be unfair for him to assume the role without being aware of the unresolved
issues he would inherit. At the Hearing, Mr Michalski said he felt he was shown
the First Complaint to dissuade him from running for chairman. He said that after
seeing the letter he did take him name out of the running, but then changed his
mind and resubmitted his name.
17. Mr Smith resigned from the
Committee at the December 2023 meeting. Ms Herve gave evidence that, prior to
resigning, Mr Smith said the complaints were false, reading them out would
cause problems for him and he got aggressive, although she does not elaborate
on how or what this entailed.
18. The next correspondence in
the File regarding the First Complaint was an exchange of WhatsApp messages
between Ms Cooper and the Claimant on 4 and 5 January 2024, in which Ms Cooper initially
states a meeting will be arranged between the Claimant, Mrs Le Noa, a Committee
member, Mr Smith and an independent person for Mr Smith. She then goes on to clarify
that she was confused and reassured the Claimant that he and Mr Smith would not
be in the meeting together and asks the Claimant to pop into the RBLC later that
day if he is feeling up to it. She also noted that Mrs Le Noa had tried to
contact someone in the UK to find out the correct way to deal with the First
Complaint. After some further correspondence, Mrs Cooper concludes by saying
that the Claimant does not need to come in later that day as his message has
explained everything.
19. At the Hearing, the
Claimant gave evidence that he was signed off work on sick leave on or around
14 January 2024.
Second
Complaint
20. On 22 January 2024 the Claimant wrote to the RBLC with
the subject “follow
up and urgent action required on formal complaint regarding conduct and data
protection breaches” (the “Second Complaint”). That letter concluded by
requesting a written response to the Claimant’s First Complaint detailing the
actions the RBLC planned to take and requesting that Mr Smith, Mrs Smith (Mr
Smith’s wife and Committee member from February 2024) and Mr Bradley (president
of the RBLC at all relevant times) be expelled from the RBLC. In summary, that
letter made the following further complaints:
(a) Ms Lakeman, a friend of the
Claimant, faced unfair retribution from Mr and Mrs Smith due to her association
with the Claimant.
(b) Information from the
Committee meeting at which the First Complaint was discussed was disclosed to
other RBLC members.
(c) On 23 December 2023, Mrs
Smith attempted to cause a scene in the RBLC implying confidential information
from Committee meetings had been disclosed.
(d) Mr and Mrs Smith and Mr
Bradley had been seen gossiping, creating tension and fostering a hostile
environment within the RBLC.
(e) On 4 January 2024, the
Claimant’s decision not to serve Mr and Mrs Smith in the RBLC due to ongoing
issues was met with a lack of understanding and led to unnecessary drama within
the RBLC.
21. The Claimant sent the
Second Complaint to Ms Cooper who asserts in her witness statement that she forwarded
it to Mrs Le Noa. Mrs Le Noa’s did not put forward any evidence on who she
showed the Second Complaint to. The Individual Respondents’ did not reference
being shown it and some specifically stated at the Hearing that they did not recall
seeing it at the time.
The
Investigation
22. Ms Herve gave evidence in
her witness statement that the Investigation “started more or less straight
away” and all the Committee members “had a hand in” the
Investigation, but that as most of the Committee members had full time jobs,
she decided to take charge of putting together letters to the Claimant, Mr and
Mrs Smith and Mr Bradley. She does not say how any of the other Committee
members (save for Mrs Le Noa) were involved in the Investigation.
23. On 28 or 29 January 2024,
the Claimant received a letter from the RBLC, which Ms Herve confirmed at the
Hearing was the letter she drafted. Ms Herve also said she spent some time
going through the RBLC handbook to see if she could find anything helpful in
relation to complaints procedures, but as she could not, she just did as she
was asked by Mrs Le Noa.
24. The letter invited the
Claimant to a meeting with the Committee on 5 February 2024 regarding the First
and Second Complaints. Ms Herve gave evidence that she drafted similar letter
to go to Mr and Mrs Smith and Mr Bradley, but Mrs Le Noa told her not to send
them as the Claimant had contacted her to explain that he had “taken the
matter further”. She understood that no witnesses were spoken to, as once
the Claimant told Mrs Le Noa that he had taken the complaint “outside the Club”,
the Investigation halted.
25. Mrs Le Noa gave evidence at
the Hearing that she agreed with Mrs Herve’s evidence that the Claimant had
said he was taking things further outside the club and so she “left the
matter in his hands”.
26. On 30 January 2024, Ms
Cooper sent a WhatsApp message to the Claimant saying the Committee would like
to know “within the hour” if he is “definitely not” attending the
meeting on 5 February. The Claimant responded to say he would attend, but that
he also wanted a written response to his complaints. Ms Cooper then went on to
explain that the Committee “were
asking as you've decided not to attend the meeting they wanted to know if you
wanted [Mr and Mrs Smith and Mr Bradleys’] meetings cancelled. The committee
has decided that they have cancelled your meeting as you’ve said that you weren't
attending and taking it to an outside party.”
27. Ms Cooper said that she was taking instruction in
relation to this correspondence from Mrs Le Noa. No evidence was put forward
that any of the Individual Respondents had any input onto this discussion.
28. Later that day the Claimant responded to Ms Cooper to
say that it is not up to him whether meetings go ahead with other individuals
and explaining that the Committee already have the evidence and that his
decision to move forwards outside of the RBLC is based on the Committee's failure
to respond to his complaints and inability to move forward without further
misconduct. He states that if he attended the meeting he was invited to he had
no doubt that the contents of the meeting would be leaked.
29. Mrs Le Noa asserts that she
lacked authority to act on the Claimant’s complaints without the Committee’s
majority support. She said that, although, as president, Mr Bradley did not
have a vote on the Committee, he was still so disruptive that he prevented
progress on the complaints. She also said that Committee members failed to turn
up and unexpectedly resigned to prevent a quorum being present at meetings. She
did not specify when or who did this.
30. On 5 February 2024 the
Claimant’s sick leave was extended until 18 March 2024.
AGM
31. An annual general meeting of the RBLC was originally
scheduled for 22 January 2024, but this was postponed until 12 February 2024
(the “AGM”). Mrs Le Noa gave evidence that it was postponed so that the Investigation
could be finalised before a new Committee was appointed. She further asserts
that several members of the RBLC were angry about this and a special general
meeting was scheduled for 16 February 2024 to hold a vote of no confidence in
the current Committee (the “SGM”).
32. Mrs Le Noa asserts that, in
advance of the AGM, Mrs Rigney-Dawson told her “all hell will let loose”
if she did not step down as chairman.
33. At the AGM Mrs Le Noa stood down as chairman and Committee
member. Mr Michalski and Mrs Rigney-Dawson were appointed as new members of the
Committee and took on the roles of chairman and vice-chairman respectively. Three
other members of the existing Committee also stood down and five further new
members were appointed. Mrs Cook, Mr Richards and Mr Le Quere were existing
members who remained on the Committee after the AGM. It was noted at the AGM
that the SGM would be cancelled.
34. Mrs Le Noa asserts that the
conduct in relation to the AGM and SGM was tactical to get her to step down
from the Committee and the Claimant asserts the change in Committee members at
the AGM “railroaded” the Investigation.
After
the AGM
35. On 14 February 2024 Mrs
Rigney-Dawson wrote to Mrs Le Noa asking her to provide, amongst other things,
all staff contracts. On 15 February 2024 Mrs Rigney-Dawson wrote to the RBLC’s
bookkeeper asking for financial information, including log in details for
Jersey Tax online. The bookkeeper replied the same day stating “The ITIS
portal has been deactivated as the club isn’t employing since end of January”.
36. At the Hearing, Mr
Michalski said that he had been aware of the Claimant’s complaint prior to
joining the Committee, but he did not know anything about the Investigation
into it. He had assumed it had already been commenced and when he took over he
asked for the minutes of previous Committee meetings to try to find out what
had been done, but he did not receive any such minutes.
37. A Committee meeting was
held on 19 February 2024, which was attended by all the Committee members at
the time. The minutes of that meeting state that Mr Michalski had had a meeting
with Mrs Le Noa to discuss a number of points to be actioned and taken forward
by the Committee, which included references to Mr Michalski and Mrs
Rigney-Dawson having commenced a review of boxes of documentation and to “Bar
Staff”. Mr Michalski gave evidence at the Hearing that the boxes of
documentation did not contain anything that referenced the Claimant and he
could not recall what he had discussed with Mrs Le Noa regarding bar staff.
38. The File contains an
undated letter from Ms Lakeman. From the content it appears it was prepared
prior to the AGM on 12 February 2024. The Letter refers to the Claimant’s complaints
in broad terms, not referencing any specific complaint, but making it clear
that the complaints are about Mr Smith. She puts forward her view that any
individuals who have any conflict of interest or bias with Mr Smith or the
Claimant should have no involvement in discussions regarding the complaints,
save to give evidence if requested. She also asserts that Committee discussions
are not kept confidential. Mr Michalski responded to this letter on behalf of
the RBLC on 1 March 2024 noting that the letter related to the “previous committees
behaviour” and going forward he assured Ms Lakeman that any discussions
would remain private. Mr Michalski gave evidence at the Hearing that Ms
Lakeman’s letter was discussed and his response to it was prepared at the first
Committee meeting after the AGM.
39. A Committee meeting was
held on 4 March 2024 which was attended by Mrs Le Noa and all the Committee
members at the time except for Mr Richards and Mrs Cook. The minutes of that
meeting record that Mrs Le Noa would return to the RBLC, amongst other things, “Employee
Contracts”.
40. Mrs Le Noa gave evidence at
the Hearing that she told Mrs Rigney-Dawson the Claimant was on sick leave
although she did not give any further details of this conversation such as when
or where it happened. She did not recall having any conversation with Mr
Michalski regarding the Claimant. She said she did not hand any documents regarding
the Claimant over to the Committee members who took over after the AGM.
41. Mrs Rigney-Dawson gave
evidence at the Hearing that Mrs Le Noa told her there were no employees after
the AGM. She too did not give any details of when or where this conversation
happened. She did make reference to another member of staff who worked in the
RBLC bar prior to the AGM and who was also on sick leave at the time of the
AGM. That individual contacted the Committee after the AGM and asked to return
to work, which she did.
Continuing
Committee Members
42. Mrs Cook, Mr Le Quere and
Mr Richards (the “Continuing Committee Members”) were all on Committee members
both before and after the AGM. They aware that complaints were made by the
Claimant which were raised at Committee meetings both before and after the AGM,
but none of them could recall very much at all about any investigation into the
complaints. Mr Le Quere said he left the investigation to those in charge. They
all said they knew that the Claimant had been off work sick. However, Mr
Richards clarified that he did not know if the Claimant was on sick leave from
work or if he had left work.
43. Mr Le Quere gave evidence
at the Hearing that he considered standing down from the Committee prior to the
AGM and then chose not to, but he said his decision was his own and he was not
pressured or influenced in any way by Mr Smith, as the Claimant asserts.
44. Also contrary to the
Claimant’s assertions, Mr Richards gave evidence at the Hearing that he did not
recall any conversation with the Claimant where the Claimant told him that he
could not return to work while the Investigation was ongoing. He also does not recall telling the Claimant
that no one would take a stand against Mr Smith.
45. Mr Richards said at the
Hearing that he did not hear Mr Smith making any reference to JET regarding Claimant.
Although he does recall Mr Smith telling Mrs Le Noa, when she was looking for
more bar staff, that he thought the Claimant would want to work as he was on
income support.
46. Mr Richards said at the
Hearing that he was aware that people wanted Mrs Le Noa to step down from the Committee
as they wanted fresh input into the RBLC.
Termination
of Employment
47. The File contains correspondence
that passed between the RBLC (following the AGM and the change in Committee
members) and the Claimant from 18 March to 30 April 2024. The correspondence
provided shows that:
(a) On 18 March 2024, the
Claimant wrote to the RBLC stating:
“On the 15th
of March 2024, I received a text message from George Michalski, the current
chair of the Committee, in response to my request for an email address to
submit an updated medical certificate. In his message, George expressed his
impression that I would not be returning to work. This communication serves as
the first direct indication to me that the Committee no longer considers me an
employee of the RBLC.
I am deeply disappointed by the manner in which this decision
has been made, as it was done without any formal notification or communication
from the Committee. Despite being on medical leave due to work related stress,
I have not submitted any resignation letter, nor have I been officially
informed of any termination of my employment. As of this moment, I remain an
employee of the RBLC.
The circumstances leading to my extended medical leave
are directly linked to the issues I have raised in previous formal complaints
regarding the conduct of certain individuals within the RBLC, particularly Mr.
Jamie Smith. Despite these concerns being brought to the attention of the Committee,
including instances of harassment, data protection breaches, and a hostile work
environment, it appears that no meaningful action has been taken to address
these issues.
Given the lack of formal notification of termination
and the ongoing unresolved issues within the RBLC, I am left with no choice but
to consider this situation as both Unfair Dismissal and Constructive Dismissal.
Therefore, I hereby confirm that I will not be returning to work at the RBLC
under the current circumstances. …
I request that the Committee acknowledges the
effective date of termination as being the 15th of March 2024, the date of [Mr Michalski's]
text message, in accordance with my understanding of the Committee's decision
regarding my employment status.”
(b) On 20 March 2024, the RBLC
asked the Claimant to meet with the Committee so they could better understand
the content of the Claimant’s email.
(c) On 3 April 2024, the
Claimant declined to meet with the Committee on the basis that he had concerns
regarding the integrity and fairness of such a meeting, in part, due to bias
and conflict of interests of certain members of the Committee. He also asserted
that the current Committee failed to adhere to proper employment procedure and
the way they dealt with breaches of data protection laws demonstrated a
disregard for legal obligations. He requested any further meetings take place
with an independent mediator present.
(d) On 4 April 2024, the RBLC
asked, if the Claimant did not wish to meet with the whole Committee, if he
would meet only with Mr Michalski and Mrs Rigney-Dawson.
(e) On 5 April 2024, the
Claimant declined to meet with Mr Michalski and Mrs Rigney-Dawson as he still
had concerns regarding integrity and fairness, again referencing failure to
adhere to proper employment procedure as well as an unfounded assertion that
they were acting on information provided by the previous Committee members and
the manner in which they assumed their positions on the Committee. He again requested
that any further meetings be conducted with an independent mediator present.
(f) On 16 April 2024, the RBLC
notified the Claimant it was conducting an investigation in accordance with Jersey
Advisory and Conciliation Service’s (“JACS”) grievance procedure and that the
Claimant must confirm his concerns in relation to his employment to enable the
RBLC to investigate thoroughly. It also notified the Claimant it did not have
the finances to appoint an independent mediator and again asked the Claimant to
attend a meeting with the chairman and vice chairman.
(g) On 30 April 2024, the RBLC
notified the Claimant that, due to him not providing the RBLC with the relevant
information requested, it had carried out an investigation and concluded that
it accepted the Claimant will not be returning to work.
48. A Committee meeting was
held on 21 March 2024 which was attended by all the Committee members at the
time except for Mr Richards. The minutes of that meeting reference the Claimant’s
email of 18 March 2024 and state that Mr Michalski and Mrs Rigney-Dawson took
advice from JACS in relation to it. The relevant actions recorded are that the
Claimant had been asked to a meeting to evidence his complaint and the RBLC
should await a reply from him and may need to seek advice from the RBLC HQ in
the UK. The minutes also record the following regarding the Claimant’s
employment “Last day was 31/12/23, paid the end of January 2024 Last working
Day was 12th Jan 2024” and that “we have an email stating
that when the new committee took over there was no employees as from the end of
January” [sic].
49. A Committee meeting was
held on 8 April 2024 which was attended by all the Committee members at the
time. The minutes of that meeting record that two letters from the Claimant
were shown to the Committee and “the letters were discussed by the Committee
and it was decided that both [Mr Michalski and Mrs Rigney-Dawson] would contact
[JACS] to make sure they knew where the [RBLC] stood when it comes to
employment of [the Claimant] and feedback to the Committee once the meeting had
taken place. It decided part from this no further action from the Committee was
needed until an update was received or any communication from [the Claimant].”
50. It is noted that the email
the Claimant sent on 18 March 2024 is confused as to when and how the
Claimant’s employment terminated. It refers to RBLC taking a decision and
indicating to him on 15 March 2024 that he was no longer an employee, but also
states that he considered he was still an employee and confirms that he will
not be returning to work. He further references “both Unfair Dismissal and
Constructive Dismissal” and concludes the letter by asking the Committee to
confirm his effective date of termination as 15 March 2024, when Mr Michalski’s
message was sent. In addition, his claim form specifies 15 March 2024 as the
date of termination and, despite requesting a reconsideration of the rejection
of the unfair dismissal claim for being out of time, he did not at any stage in
the proceedings assert that the date of termination was any later than this.
RBL
Overseas Correspondence
51. On 2 February 2024, Mrs Le
Noa emailed the Royal British Legion Branch (“RBLB”) to provide an update on
the RBLC in Jersey as she said matters are “in a sorry state of affairs”,
noting that she and 3 other Committee members were resigning due to “bullying
tactics” by the president. She further notes that he prevents people from
speaking, therefore not allowing them to resolve ongoing investigations. She notes
the SGM has been scheduled, which she believes is tactical as people were
worried she would put her name forward for chairman again at the next AGM,
which she states she had no intention of doing. Finally, she asks the RBLB to
look into these matters.
52. The RBLB replied later that
day passing the matter over to RBL Overseas to deal with. There is no further
substantive correspondence between RBLC Jersey and any wider Royal British
Legion body in the File until Mrs Le Noa sent a further email to the Legion
Complaints Committee (“LCC”) on 19 February 2024 after the AGM and once Mrs Le
Noa had stepped down from the Committee.
53. In this letter Mrs Le Noa
references various letters of complaint, including those of the Claimant, and
the fact that they could not be dealt with due to the president interfering.
She then talks again about the AGM, SGM and how she felt bullied and that
tactics were used to form a new Committee without her on it. However, the email
is confusing with regard to whether Mrs Le Noa wished to remain as chair in any
event, saying that she put her name forward as she was asked to by some
members, although she wasn’t going to, and that she took her name down again due
to tactics by other members, but then put it up again before finally taking it
down after being told by Mrs Rigney-Dawson that “all hell will let loose”
if she did not step down. The File does not contain any response to this email
from the LCC.
Actions
of Mr Smith
54. In the claim form and his
witness statement, the Claimant alleges that Mr Smith disclosed information
regarding the Claimant’s disability without permission to RBLC members. He does
not give evidence that he had any personal experience of Mr Smith making such
disclosures, but he refers to the evidence of Mrs Le Noa and Ms Cooper in
support of this allegation. Mrs Le Noa states that neither she nor Ms Cooper knew
of the Claimant’s disability until Mr Smith disclosed it. However, she gives no
further detail of when or how it was disclosed to them by Mr Smith. In
addition, we have not seen any evidence regarding when or how Mr Smith
disclosed the Claimant’s disability to any other Committee members.
55. Mr Smith’s witness statement
states that he did not mention the Claimant’s disability to anyone other than Mrs
Le Noa. Other members of the Committee were made aware of it as Mrs Le Noa read
the Claimant’s First Complaint Letter out loud at a Committee meeting.
56. The Claimant also asserts
that Ms Lakeman knew of his affiliation with JET as Mrs Smith told her and Mrs
Smith knew from Mr Smith. Neither Ms Lakeman nor Mrs Smith gave evidence at the
Hearing, but Mr Smith gave evidence that he did not tell Mrs Smith that the
Claimant was a client of JET. He said she could have been aware of this because
both Mrs Le Noa and Ms Cooper were aware that Mr Smith had referred the
Claimant for the role at the RBLC and they were aware that Mr Smith worked for
JET. They could have told Mrs Smith this. Mr Smith said he was proud of the
work he did for JET and was careful not to disclose information about its
clients.
57. The Claimant further
alleges that Mr Smith exploited his personal circumstances to gain control over
his employment and working hours. In support of this assertion, the witness
statements of Ms Cooper and Mrs Le Noa make reference to Mr Smith:
(a) unfairly complaining about
the Claimant’s punctuality and pre-arranged time off;
(b) seeking information on the
Claimant’s working hours and asking for copies of his pay statements without
reason;
(c) opposing the Claimant’s
request for a 20 hour per week contract on the basis that the Claimant would
have to work whenever needed due to his reliance on income support and disMsing the idea of the Claimant leaving the RBLC on the
basis that he would not go through the anxiety of finding another job and that
he would be unemployable elsewhere due to his mental health; and
(d) inaccurately stating that
the Claimant was no longer enrolled at university.
58. At the Hearing Mr Smith
said he asked the Claimant once or twice to provide him with his payslip so he
could submit them on his behalf to JET. He said he never asked Mrs Le Noa or Ms
Cooper for the Claimant’s payslips.
59. Mr Smith agreed at the
Hearing that he did ask about the Claimant’s working hours and he did this in
his capacity as vice chairman of the RBLC. He said that he took responsibility
for the smooth running of the RBLC, especially when Mr Le Noa was absent (as
she was at the time as she had been unwell) and so he needed to find out about things
like staff working hours.
60. Mr Smith also gave evidence
at the Hearing that he did not know about the Claimant’s financial situation.
He thought it was Mrs Le Noa who told him that the Claimant was on income
support. Mr Smith said that all he said to Mrs Le Noa was that that he thought
that working 20 hours per week would not be enough to allow someone to come off
income support. Mr Smith said he had no objection to the Claimant working extra
hours.
61. The Claimant further
asserts that Mr Smith submitted records of fictitious meetings between them to
the JET to demonstrate that Mr Smith was providing workplace support to him
[81, 83 and 84/107].
62. In support of this
allegation, the Claimant put forward evidence that Mr Smith had recorded on
JET’s systems that he had conducted a number of “work related support drop
ins” in respect of the Claimant at times when the Claimant was not even at
work. At the Hearing, Mr Smith explained that the purpose of recording these “drop
ins” was for social security purposes, to demonstrate that the client is
engaging with JET and/or their employment. He said if there were no records
within a 2 week period, social security started asking questions. He accepted
that his record keeping may not have been completely accurate and he may have
got some of the dates wrong, but he affirmed that he did conduct these “drop
ins”. He said he did not always engage with the Claimant when he conducted
the “drop ins”, he may just have been attending the RBLC and observed
the Claimant working there and perhaps have asked how he was getting on. He
said he felt it was better for the Claimant if he did the “drop ins”
this way as, otherwise, the Claimant would have had to attend JET’s offices to
meet with him more formally, which he did not think was necessary as he could
just observe him at the RBLC.
Relevant
Law
63. Article 6(1) of the Law provides
for direct discrimination as follows:
“A person discriminates against
another person (the “subject”) if, because of a protected characteristic, the
person treats the subject less favourably than the person treats or would treat
others.”
64. The relevant parts of
article 27(2) of the Law that apply to the Claimant’s claim of victimisation
are:
“A
person victimizes another person (the “subject”) if ... the person treats the
subject less favourably than that person would treat other persons, and does so
by reason that the subject has - ...
(e) alleged that the person or
any other person has committed an act which (whether or not the allegation so
states) is prohibited by this Law., ...”
Conclusions
Before
the AGM
65. The Claimant has put in
conflicting evidence in relation to whether he wanted his complaint to be dealt
with by the RBLC prior to the AGM. His complaints themselves make it clear that
he did, as do his WhatsApp messages to Ms Cooper on 30 January 2024. However,
Ms Herve and Mrs Le Noa assert that the Claimant said he was taking the matter
outside of the RBLC and, accordingly, the Investigation halted.
66. This indicates that there
may have been a breakdown in the chain of communication between the Claimant, Ms
Cooper and Mrs Le Noa, which may have resulted in a failure by the RBLC to investigate
the Claimant’s complaints prior to the AGM. For any such failure to constitute
discrimination it must, in the case of direct discrimination, be because of the
Claimant’s disability or, in the case of victimization, be by reason that the
Claimant alleged that someone committed an act prohibited by the Discrimination
Law.
67. When determining why the
failure occurred, we must look to the mind of the individuals responsible for
any failure. In this case that would be Ms Cooper and Mrs Le Noa. The Claimant
specifically stated at the Hearing that he was not bringing a discrimination
claim against Ms Cooper or Mrs Le Noa as he did not believe that they were
acting as they did for discriminatory reasons. Accordingly, even if there were
to have been a failure of the RBLC to properly investigate prior to the AGM, any
such failure would not be discriminatory.
68. We have, therefore, gone on
to consider whether there were any other failings in the Investigation, which
the Individual Respondents were responsible for. We note that the RBLC is a
Respondent, not just the individuals, but whether the RBLC’s actions were
discriminatory will be determined by what was in the minds of the individuals
responsible for its actions at the relevant time.
69. The Tribunal has considered
the Claimant’s assertions that members of the Committee were disruptive and
purposefully did not attend meetings to block the Investigations. However, we
have not been given sufficient details or evidence in relation to this to make
any finding that this happened. We accept that decisions on the outcome of the
Investigation may require a majority vote, but do not believe that the
Investigation itself could not have continued without one. In fact, Ms Herve’s
evidence, which Mrs Le Noa agreed with at the Hearing, was that Ms Herve
prepared letters to progress the Investigation, but not send them out based on
the instruction of Mrs Le Noa. She does not reference this being a Committee
decision. Nor does she reference the Investigation being hindered by Committee
members being disruptive or failing to attend meetings. She states the Investigation
halted because Mrs Le Noa told her the Claimant had said he was taking the
matter further elsewhere.
70. The Tribunal has also
considered the Claimant’s assertions that Mrs Le Noa was forced to resign from
the Committee, either in order to frustrate the Investigation or, at the least,
this had the effect of frustrating the Investigation. General allegations are
made in Ms Cooper and Mrs Le Noa’s witness statements with regard to this, but limited
specific evidence is given and we viewed the more general statements with some
caution for the reasons set out at the outset of this judgment.
71. However, we did have regard
to their evidence to the extent it was sufficiently specific, and both witnesses
referred to a conversation between Mrs Le Noa and Mrs Rigney-Dawson on 10
February 2024, which is corroborated by documentary evidence. While the
tribunal do not consider the wording attributed to Mrs Rigney-Dawson in that
conversation to be appropriate, it is not enough to persuade us that Mrs Le Noa
was forced to resign.
72. There also seems to be some
assertion that calling the SGM, with the agenda of a vote of no confidence in
the current Committee, forced Mrs Le Noa’s resignation. While Mrs Le Noa may
have resigned because of this, we do not accept any argument that this constituted
forced resignation. If Mrs Le Noa had wanted to remain as chairman she would
have had to persuade the members not to agree to the vote of no confidence. We
have not seen any evidence that she sought to do this. In fact, we can see from
her correspondence with RBLB that, as early as 2 February 2024, prior to the
conversation with Mrs Rigney-Dawson, she had no intention of doing so. Accordingly,
we have not seen sufficient evidence to persuade us that Mrs Le Noa was forced
to resign.
73. However, even if we were to
find that there was pressure on Mrs Le Noa to resign, we have not seen
sufficient evidence to demonstrate that the purpose of this was to frustrate
the Investigation. We accept Mr Richard’s evidence that members wanted fresh
input into the RBLC Committee. Further, we do not find that Mrs Le Noa
resigning had the effect of frustrating the Investigation. We find the Investigation
stalled prior to he AGM due to Mrs Le Noa’s
instructions to Ms Herve, as set out above. In addition, we found that the
Investigation did carry on after the AGM, once new Committee members had been
appointed, and we have set out our findings in relation to this further below.
Continuing
Committee Members
74. Another consideration we
made was that some of the Individual Respondent remained on the Committee both
before and after the AGM and we looked at whether they should have done more in
relation to moving the Investigation forward. Whilst parts of the First
Complaint were read out to Mr Le Quere and Mr Richards, and Mrs Cook was
briefly shown a copy of it, they were not given a copy to properly consider,
nor were we shown evidence that they were asked to deal with or make a decision
on the Complaint in any way. Further, there is no evidence that they were shown
the Second Complaint at all. Accordingly, we found that they were not
sufficiently involved in the Investigation, they simply left it up to others to
deal with.
75. However, having taken on
the responsibility of sitting on a Committee for an organization which has
employees, it may be that the Continuing Committee Members should have made
more effort to become involved or, at least, to ensure the Complaints were
being properly dealt with. That said, we are not satisfied that any failing in
this regard was because of the Claimant’s disability or by reason of the fact
that he made allegations that Mr Smith was acting in breach of the Discrimination
Law. It is our view that any such failing was simply due to the Continuing
Committee Members not having the time or inclination to take responsibility for
dealing with the Complaints.
After
the AGM
76. Having reviewed the
evidence set out above we have found the following in respect of what happened
after the AGM:
(a) When Mrs Rigney-Dawson and
Mr Michalski joined the Committee on 12 February 2024 they were aware that the
Claimant had been employed by RBLC and had made Complaints.
(b) On 15 February 2024 RBLC’s
bookkeeper informed Mrs Rigney-Dawson that “the club isn’t employing since
end of January”.
(c) Following this Mr Michalski
made some efforts to find out about RBLC’s employees from Mrs Le Noa.
(d) Mrs Le Noa did not provide sufficient
information on the status of the Claimant’s employment or the Investigation
into his Complaints to the new Committee members.
(e) The Continuing Committee
Members did not know the status of the Claimant’s employment or the
Investigation into his Complaints.
(f) On 15 March 2024, following
an initial contact from the Claimant, Mr Michalski sent a message to the
Claimant. We have not seen a copy of this message, but the Claimant said Mr
Michalski “expressed his impression that [the Claimant] would not be
returning to work.”
(g) On 18 March 2024 the
Claimant wrote to an email address accessed by Mr Michalski and Mrs
Rigney-Dawson, referencing his Complaints and termination of his employment.
(h) On 20 March and 4 April
2024 Mr Michalski and Mrs Rigney-Dawson offered to meet with the Claimant,
first together with the full Committee and then with the Claimant alone, to
discuss this. The Claimant declined to attend either meeting without an
independent mediator present.
(i) On 21 March and 8 April
2024 this recent correspondence was discussed at Committee meetings and it was
agreed Mrs Dawson-Rigney and Mr Michalski would take this forward with the Claimant
under the advice of JACS.
(j) On 16 April 2024 the
Committee wrote to the Claimant asking him to confirm his concerns so that they
could conduct an investigation, again inviting him to a meeting and explaining the
RBLC did not have the finances to appoint an independent mediator.
(k) On 30 April 2024 the
Committee wrote to the Claimant saying that they accept he will not be returning
to work as he had not provided the information requested.
77. Based on the evidence above,
the tribunal finds that Mrs Rigney-Dawson and Mr Michalski were responsible for
taking things forward with the Claimant following the AGM. The tribunal further
find that the actions of Mrs Rigney-Dawson and Mr Michalski in relation to how
they dealt with the Claimant’s complaints and employment following the AGM was
reasonable based on the information before them. As soon as the Claimant raised
his concerns with them, they took advice and gave the Claimant the opportunity
to further explain his concerns so they could investigate. Without the Claimant
doing this and without the information regarding the Claimant’s First and
Second Complaints having been passed on to them, the tribunal does not see what
else they could have done.
78. The tribunal is not able to
comment on the message Mr Michalski sent on 15 March 2024 as we have not seen a
copy of this, but we note that this message was sent prior to the Claimant
having raised his concerns with Mr Michalski and, once he did, Mr Michalski took
the reasonable action referred to above.
79. Further, even if Mrs
Rigney-Dawson and Mr Michalski had made failings in relation to investigating
the Claimant’s complaints and dealing with his employment, the tribunal is not
persuaded that they did so because of the Claimant’s disability or by reason of
the fact that he had made allegations of actgs
prohibited by the Discrimination Law. The tribunal is of the view that Mrs
Rigney-Dawson and Mr Michalski acted as they did on the basis that the Claimant
did not engage with them.
80. While we accept that the
Claimant may not have been happy to engage with members of the Committee who he
had made complaints about, we see no reason as to why he could not engage with
Mrs Rigney-Dawson and Mr Michalski. If he was not prepared to engage with
anyone on the Committee it is not clear how his concerns could be resolved. It
may be that he would not have been happy with the decision that they made had
he expressed his concerns to them and it may be that an independent mediator
should ultimately have been considered. However, the Claimant did not even provide
them with the information to give them the chance to make a reasonable
decision.
81. There may have been
failings of the RBLC in that the relevant information (the First and Second
Complaint letter) in relation to the Claiamnt’s complaints were not passed on
to Mrs Rigney-Dawson and Mr Michalski to deal with, but again, we note that the
failure to pass these was Mrs Le Noa’s, and the Claimant does not assert that
she acted in anyway due to his disability or because he had made allegations of
acts prohibited by the Discrimination Law.
82. In conclusion we find that
there was no direct discrimination or victimization and the Claimant’s claims
fail and are dismissed.
Actions
of Mr Smith
83. As Mr Smith resigned from
the Committee following the First Complaint being issued, we understand that he
had no responsibility for the Investigation into the Complaints.
84. Evidence was put in by the
Claimant in relation to some of the alleged actions of Mr Smith which were the
subject of the Claimant’s First and Second Complaints. Mr Smith responded to
these at the Hearing. It is not necessary for the tribunal to make a finding on
whether these actions of Mr Smith occurred or were discriminatory, as the
claims in relation to them were issued out of time. However, the tribunal notes
that, had it been necessary to make a determination on these allegations, it is
the tribunals view that the evidence provided was insufficient to prove these
allegations.
85. That said, it is our view
that Mr Smith should have done things differently. In particular, he should
have at the very least, accurately recorded his “drop ins” with the Claimant,
advised the Claimant that he would be monitoring him at work without notifying
him each time he was doing so and made a clear divide between when he was doing
this and when he was attending the bar for his own social purposes. Mr Smith
should also have considered whether it was appropriate for him to act as the
Claimant’s employment coordinator. He said himself at the Hearing that it was
not always easy to manage the conflict of interest being involved in the Claimant’s
employment as vice chairman of the Committee and acting as his JET coordinator.
In addition, we note he had a further role as a customer of the Claimant when
he socialized in the bar in which the Claimant worked.
Mrs H Westmacott, Deputy Chairman
Sent to the parties on: 19 May
2025