Mr L Cyrus v Surrey and Borders Partnership NHS Foundation Trust — 2022

Mr Cyrus worked for Surrey and Borders Partnership NHS Foundation Trust from 6 April 2021 to 4 May 2021 as a bank property project manager. Employment Judge Andrews had already dismissed an unfair dismissal claim for lack of sufficient continuous service, so the reserved judgment after the 15-18 November 2022 hearing concerned the race discrimination, harassment and victimisation claims. The tribunal heard evidence from Mr Cyrus, Mr Mander and Mr Ramloll and treated the contemporaneous emails, grievance documents and meeting notes as important in assessing credibility.

On direct race discrimination, the tribunal applied the section 136 Equality Act burden of proof and the Igen/Barton two-stage approach. It found that Mr Cyrus did not tell Mr Mander at the 4 May 2021 meeting that he was alleging discriminatory conduct by reason of race before Mr Mander ended the working arrangement. The tribunal preferred Mr Mander's evidence that the dismissal was because of perceived poor performance and inability to complete the work to the required standard and timescale, not because of race. It therefore held that Mr Cyrus had not established facts from which race discrimination could be inferred.

On harassment, the tribunal rejected the allegations that Mr Mander had said he had "two black managers" in the room, that he described himself as "half black", that he had told Mr Cyrus to "smile" because it was dark, and that he had called Mr Cyrus a liar. It found instead that on 22 April 2021 Mr Mander said words to the effect of "If you haven't done it, you can tell me you haven't done it" about missing paperwork; that on 3 May 2021, in a discussion prompted by comments about his skin and holiday, he said that when he was younger he had a dark mark on his face which later turned into freckles; and that on 9 April 2021 he said "I nearly didn't see you" when he opened a dark room. The tribunal held that these were not unwanted conduct related to race and were not sufficiently serious to meet the section 26 test.

On victimisation, the pleaded protected act was a complaint about Mr Ramloll's conduct, but the claimant accepted during the hearing that Mr Ramloll's conduct was not race-related. Mr Cyrus sought to recast the case as a complaint that he had told Mr Mander about Mr Mander's own discriminatory conduct on 4 May 2021, but the tribunal found as a fact that no such complaint was made before dismissal and indicated that it would not have been minded to allow the very late amendment in any event. All claims were dismissed. The tribunal had deferred any remedy hearing because the claimant had not supplied loss documentation, but no remedy remained to be assessed once the claims failed.