Cases4100506/2024

Claimant v University of Aberdeen

5 September 2024Before Employment Judge L WisemanScotlandremote video

Outcome

Claimant fails

Individual claims

Indirect Discrimination(race)struck out

Claim struck out as having no reasonable prospect of success. The tribunal found that the claimant was offered the job (as evidenced by contemporaneous documents, selection panel notes, and emails sent on 1 and 6 December 2023 which were confirmed by IT system investigation to have been sent to the correct address and received by Google's mail servers). The claimant's assertion that he was not offered the job had no reasonable prospect of being proved.

Indirect Discrimination(sex)struck out

Claim struck out as having no reasonable prospect of success. The premise of the claim was that the respondent did not offer the claimant the job for discriminatory reasons, but the tribunal found overwhelming documentary evidence that the claimant was selected as the best candidate and was offered the job via emails on 1 and 6 December 2023.

Indirect Discrimination(sexual orientation)struck out

Claim struck out as having no reasonable prospect of success. The claimant alleged discrimination based on being heterosexual and not fitting the respondent's 'diversity and inclusion agenda', but the tribunal found the respondent had offered him the job, undermining the entire basis of the discrimination claim.

Direct Discrimination(race)struck out

Claim struck out as having no reasonable prospect of success. The claimant alleged he was told they were looking for candidates from 'under-represented backgrounds' and that as a white male he was discriminated against. However, the tribunal found the respondent selected him as the best candidate and offered him the job, which was inconsistent with discriminatory treatment.

Direct Discrimination(sex)struck out

Claim struck out as having no reasonable prospect of success. The tribunal found that even taking the claimant's case at its highest, he could not overcome the contemporaneous documentary evidence showing he was offered the job, which was fatal to his claim of sex discrimination.

Direct Discrimination(sexual orientation)struck out

Claim struck out as having no reasonable prospect of success. The tribunal concluded the claimant's assertion that documents had been fabricated (with the exception of one email that was altered after the fact and was not material) was without foundation and inherently implausible.

Harassment(race)struck out

Claim struck out as having no reasonable prospect of success. The claimant alleged interview questions about inclusion and diversity were harassing, but the tribunal found these were in keeping with the purpose of the role (to make tennis more inclusive) and the claimant had engaged positively with them at the time.

Harassment(sex)struck out

Claim struck out as part of the overall strike out, as there was no evidence of harassment at the time of the events and the claimant's underlying case (that he was not offered the job) had no reasonable prospect of success.

Harassment(sexual orientation)struck out

Claim struck out as part of the overall strike out, with the tribunal finding the claimant gave no indication at the time that he considered the interview questions harassing.

Victimisationstruck out

Claim struck out as having no reasonable prospect of success. The protected act relied upon was the presentation of the ET1 claim form on 17 February 2024, but the alleged detriment occurred on 5 February 2024, predating the protected act. The claimant mentioned filing a claim on 23 January 2024 but provided no details, so there was nothing to trigger protection.

Facts

The claimant applied for a University Tennis Co-ordinator post advertised by the respondent University. He was interviewed on 27 November 2023 and the selection panel unanimously agreed he was the best candidate. On 1 December 2023, the University's HR adviser sent emails offering him the job, and a chaser email on 6 December. The claimant maintains he never received these emails or any phone calls. On 12 January 2024, the claimant contacted the University to enquire about his application and was told that as he had not responded to the job offer, it was assumed he was no longer interested and the post would be re-advertised. The claimant complained this was discriminatory, alleging he was told they were looking for candidates from 'under-represented backgrounds' and as a white, heterosexual male, he did not fit their diversity agenda.

Decision

The tribunal struck out all claims as having no reasonable prospect of success. The tribunal found overwhelming contemporaneous documentary evidence that the claimant was selected as the best candidate and was offered the job via emails on 1 and 6 December 2023. An IT investigation confirmed these emails were sent to the correct address and received by Google's mail servers. The tribunal concluded that even if the claimant did not receive the emails, he had no reasonable prospect of proving they were not sent, and therefore no reasonable prospect of proving he was not offered the job for discriminatory reasons. The tribunal found the claimant's assertion that documents were fabricated to be inherently implausible and without foundation.

Practical note

A discrimination claim premised on not being offered a job will be struck out where contemporaneous documentary evidence and independent IT system verification establish that the job offer was made, even if the claimant genuinely did not receive the offer emails.

Legal authorities cited

Ezsias v North Glamorgan NHS Trust 2007 ICR 1126HM Prison Service v Dolby 2023 IRLR 694Hasan v Tesco Stores Ltd UKEAT/0098/16Ahir v British Airways plc 2017 EWCA Civ 1392Anyanwu v South Bank Students Union 2001 ICR 391

Statutes

Rule 37(1)(a) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013

Case details

Case number
4100506/2024
Decision date
5 September 2024
Hearing type
strike out
Hearing days
1
Classification
procedural

Respondent

Sector
education
Represented
Yes
Rep type
solicitor

Employment details

Role
University Tennis Co-ordinator (applied for, not hired)

Claimant representation

Represented
No