M Mulumba v Partners Group (UK) Ltd & Anor

By the Claimant being told disingenuously in a meeting with Christian Truempler and Gabriela Reimer in the first week of July 2018 that she had not successfully converted onto a team and her contract would therefore be coming to an end by prior agreement when in fact there had been no such prior agreement and the Claimant had been offered a permanent position in the Real Estate team in London in February 2017?

There is a dispute between the parties as to whether the final period of up to twelve months of the Claimant’s employment was part of the Associate Program or fell within a specific category, pertaining to the Claimant’s personal circumstances, referred to by the Respondents as the Accommodation Period. I set out my findings in relation to the Accommodation Period below. …

As indicated above there is a dispute between the Claimant and the Respondents regarding her status in London for up to the last twelve months of her employment. The Claimant’s position is that up until a meeting on 5 July 2018 that she regarded herself as a continuing participant in the Associate Program with an opportunity of a permanent position with the Respondents. The Respondents’ position is that it was made clear to the Claimant at a meeting on 31 August 2017 that her employment with the Respondents was being continued on a good will basis with the opportunity to obtain longer term immigration status in the UK and to secure alternative employment. The position of the Respondents being that this was to assist the Claimant who wished to avoid any possibility of having to return to the DRC.

I consider that the existence, or otherwise, of the Accommodation Period and the Claimant’s knowledge of it has some relevance to the question of jurisdiction given that the existence of, what the Respondents term the Accommodation Period, significantly elongated the Claimant’s employment in the UK. I also consider that whether the Claimant had a genuine expectation of a permanent position of employment with the Respondents during the Accommodation Period is relevant. This relates to whether she should properly be regarded as an employee seconded to the UK for a relatively short duration or in the expectation of a more permanent arrangement. …

In relation to … the Accommodation Period I find that the Claimant would, on the balance of probabilities, have been aware that her ongoing employment in London was for reasons outside the normal Associate Program and I make this finding for the following reasons:

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Given that the last 18 months of the Claimant’s employment was based exclusively in London I do not consider that her employment was peripatetic.Her location was largely determined by her immigration status. I find that on the balance of probabilities the Claimant’s employment in London was significantly extended as a result of the Respondents’ expressed wish to assist her, given her immigration status, and her wish to avoid returning to the DRC. I reach this finding based on the Associate Program being for a normal maximum period of 24 months, the Claimant having been employed as at the date of her termination for nearly three years, various emails (albeit not all sent to the Claimant) talking about her “special” situation, emails referring (albeit not necessarily contemporaneously) to the Accommodation Period, an email enquiring as to her progress in securing alternative employment and the various documentary evidence that the Claimant did not, on the Respondents’ case, meet the required standards for a permanent position at the end of the Associate Program. I do, not, however, find that the status of the Accommodation Period was it itself the determining factor in my finding that the Tribunal has jurisdiction but it was rather the fact, and duration of the Claimant’s employment in London, rather than the label the parties placed on it. [emphasis added]

Essentially accepting the respondents’ case in this regard, the tribunal concluded that the claimant would have been aware that her on-going employment in London was outside the normal associate program. The claimant contends the tribunal did not make a clear finding as to when such a change in her employment status was made and points to the absence of any documentary record of the alleged 31 August 2017 meeting. From the tribunal’s reasoning, however, it is clear it accepted the respondents’ position that the claimant’s employment had continued outside the associate program in recognition of the difficulties arising from her immigration status, and that this was known to the claimant (written reasons, paras 37–42). [emphasis added]

What is clear is that the employment tribunal saw the employment relationship in this case as one that “ evolved ” over time (para 70 of the written reasons), and it stated it would not have found a sufficient connection had the claimant moved to London merely on a three or six-month rotation as part of the associate program (para 81). The difficulty is that neither party had suggested that the claimant had moved to London on any other basis: on the respondents’ case, she had moved off the associate program on 31 August 2018; on the claimant’s case, she had never left it. The employment tribunal apparently accepted the respondents’ case in this regard (see para 42 of the written reasons) and seemed to acknowledge that this would mean that her initial employment in London did not have the relevant connection: see its suggestion that British statutory employment protections might not have applied “immediately” (written reasons, para 81). If, however, the claimant’s employment in London did not “immediately” fall within the scope of British employment law, the obvious question is: when did it do so?

The employment tribunal again declined to clarify the position in this regard on the application for reconsideration, stating that this would be “a wholly artificial exercise”. I respectfully disagree. The tribunal’s conclusion on the issue of territorial jurisdiction makes clear that it was satisfied that there came a time when the claimant had sufficient connection with Great Britain and British employment law, so as to fall within the scope of the relevant statutory protections, notwithstanding the fact that she was a foreign national, employed by a US company, who had initially moved to work in London on a rotational assignment as part of a US program of such temporary placements. The identification of that time—the apparent change in the claimant’s position—was potentially relevant to determining which of the various claims made in these proceedings fell to be determined by the employment tribunal. By failing to specify when the claimant fell within the scope of British employment law, the tribunal failed to complete the task required of it; it was an error of law not to determine this question and the fourth ground of appeal is therefore also upheld. …

Although the tribunal’s written reasons certainly suggest it accepted the respondents’ case on the accommodation period, its conclusions are somewhat more nuanced than this argument allows. Whilst it found that the claimant would have been aware that her on-going employment in London was outside the associate program (written reasons, para 42), it did not make a clear finding as to whether she might still have held out hope to be kept on in some permanent capacity. In this regard, it is relevant to note that the length of time this additional period of employment was allowed to continue plainly weighed with the tribunal, as did the fact that, during that time, on the tribunal’s findings, the claimant was fully integrated into the London office, with no continuing connection with the US. To a large extent, as the tribunal found, that was due to the claimant’s immigration status, but that does not undermine the force of the point. The fact was that the claimant could not return to the US and, having moved off the associate program, there was no expectation that she could move to work for the second respondent in some other jurisdiction. [emphasis added]

To avoid repetition, I will keep this brief and merely highlight by way of para phrasing those sections of the Judgment which are directly referable to the issues which have been remitted to me for reconsideration. This judgment should nevertheless be read in conjunction with the Judgment.

At paragraph 25:

At paragraph 39:

At paragraph 42:

At paragraph 70:

At paragraph 73:

At paragraph 78:

At paragraph 81:

At paragraph 82:

At paragraph 83:

Given my decision above at what point did the Claimant acquire UK jurisdiction?

The parties and the EAT acknowledge that this is something of an artificial exercise, but it is nevertheless one which I am obligated to undertake.

I consider this to be a more difficult issue. In approaching this question, I deliberately avoided referring in advance of my decision to the list of acts and omissions relied upon by the Claimant and when they occurred, but rather have approached matters from the perspective of how I consider her employment relationship evolved in the UK.

The earliest date upon which UK jurisdiction could have existed is when the Claimant commenced in London on 6 March 2017 and the latest is the date of her dismissal on 31 August 2018. It has already been held that all acts and omissions prior to 6 March 2017 are dismissed albeit they can be referred to by the Claimant as background matters.

It is relevant to consider what the Claimant’s realistic expectations were as to the possibility of ongoing employment at the end of the Accommodation Period. Whilst I consider that it may have been objectively and subjectively reasonable for her to believe, based on communications made … by representatives of the Respondents, in the first 6 to 12 months of the Accommodation Period that the possibility existed of her performance in London being rewarded with an offer of a permanent position, I consider that this would have become a diminishing possibility, before being extinguished entirely following her meeting with Mr Truempler on 5 July 2018.

I also consider it relevant that in an email of 22 January 2018 from Mr Munz to the Claimant he asked her how the job search is progressing which was clearly in relation to an external position. The Claimant did not reply, but it nevertheless would have been indicative to her that she was not seen as having a realistic prospect of a permanent position of employment with the Respondents. Whilst the Claimant says that she suspects this email was a retaliatory action in respect of the letter from her New York lawyers, Bailey Duquette P. C. dated 3 January 2018 to Oliver Jimenez, Chief Compliance Officer of the 2nd Respondent, it would, whatever the reason which motivated it being sent, have highlighted to the Claimant that she was highly unlikely to have a long-term future with the Respondents.

Given that I have previously found a distinction exists between the Associate Program and the Accommodation Period I have decided that the point at which it could reasonably be considered that the Claimant’s status transferred from being on the Associate Program to the Accommodation Period represents an appropriate starting point for UK jurisdiction. Given that the normal expectation for a given “seat” on a rotation during the Associate Program is between three and six months I have decided that the first six months of the Claimant’s employment in London is the maximum period during which it could be said to fall within the normal scope of the revolving seats within the Associate Program. This therefore gives a date of 6 September 2017. Therefore, I have concluded that UK jurisdiction applies in respect of all acts and omissions relied on by the Claimant after 7 September 2017.

I do, not, however, find that the status of the Accommodation Period was the sole determining factor in my finding that the Tribunal has jurisdiction, with it being the duration of the Claimant’s employment in London, rather than the label the parties placed on it which I consider significant.

In reaching this decision it is not solely the Claimant’s realistic expectations as to the duration of a seat on the Associate Program I have relied on but various other factors pointing to the Claimant acquiring an increasing level of connection with the UK. These were as set out in the Judgment but for completeness include the factors set out at paragraphs 109 to 117 below.

The Claimant having a substantial level of connection with the UK in that she had lived here for six of the eight years prior to commencing employment with the Respondents and has lived here since that employment ended.

The Claimant’s employment in London was under the guidance and direction of the UK office. She reported to London based managers and worked with UK Presidents and Vice Presidents in the Infrastructure and Private Market teams

She worked on behalf of UK based clients and was subject to applicable UK regulatory bodies e.g., the FCA.

The Claimant becoming liable for the deduction of a UK tax after 183 days in the UK as of 5 September 2017. She was given a notional UK salary for tax purposes of £81,000 as documented in an email from Gabriela Reimer, Human Resources of the 1st Respondent to the Claimant on 4 October 2017 which coincidentally is at about the same time as I have found she morphed from being on the Associate Program to working under the Accommodation Period.

US tax form W-4, signed by the Claimant on 31 October 2017, gave her home address as being Flat 7, 16 Queensborough Terrace in London

Determinations regarding the Claimant’s entitlement to a bonus being made in London and/or Zug and ultimately not New York.

The Claimant’s notice of termination letter being signed by a representative of the 1st Respondent as well as the 2nd Respondent.

116.At various points the possibility of the Claimant’s employment being “localised” to the UK was considered by the Respondents.

The evidence that the Respondents regarded the Claimant’s situation as being a “special case” and in their decision making were self-evidently cognisant of, and potentially influenced by, her being a potential litigant and therefore sought to take steps to minimise her acquiring further levels of connectivity with the UK beyond the various matters I have relied on. [emphasis added]

Claimant’s proposed addition: “By the Claimant being told disingenuously in a meeting with Christian Truempler and Gabriela Reimer in the first week of July 2018 that she had not successfully converted onto a team and her contract would therefore be coming to an end by prior arrangement when in fact there had been no such prior agreement and the Claimant had been offered a permanent position in the Real Estate team in London in February 2017?”

Rs’ position:

The first part of this proposed addition cannot sensibly be an issue in the case given the Tribunal’s findings in its Judgments/Reasons on territorial jurisdiction, including that: the Claimant was aware that her ongoing employment in London (i.e. after August 2017) was for reasons outside the normal Associate Program (see §42 of the first judgment but also §§17, 36-41 and §81 of the Reasons at A/11/113)).

Whether or not the Claimant was offered a permanent position in the Real Estate team in February 2017 is already included in the List of Issues (Schedule, para(l)).

Claimant’s position:

What the Respondents label an addition is taken verbatim from the Agreed List of Issues at A76 (paragraph 6z). It is a summary of paragraph 27 and 28 of the Claimant’s claim.

Nowhere has the Tribunal ruled on the factuality of the specific prior agreement herein described as disingenuous, this is something for the Full Merits Hearing and not something for the Respondents to unilaterally remove from the list of issues.

In fact, the Tribunal has noted the non-contemporaneous nature of the Respondents evidence of said specific prior agreement (evidence generated only after the Claimant’s lawyer submitted a formal written complaint and 8 months after the supposed specific arrangement was claimed to be made).

The specifics of agreements made or not made between the parties is not something that the Tribunal chose to delve into at the jurisdiction stage. It certainly did not rule that on “X” date the Claimant agreed to her employment being terminated on “Y” date (the supposed prior agreement that is referenced as being disingenuous in the Claimant’s claim form).

Finally, it goes without saying that dates and timelines are of the upmost importance, especially with regards to matters like retaliation.[emphasis added]

Then at paragraph [4](j) the attempted introduction by the Claimant of an additional new paragraph. We do not consider it appropriate for this to be added to the list of issues. We consider that this constitutes a transparent attempt by the Claimant, whether wittingly or unwittingly, to circumvent the previous rulings regarding the existence of an Accommodation Period and therefore is not a matter which is properly brought before the Tribunal in this hearing.

We consider that the Claimant’s position is confused. On the one hand she complains about being blocked from a permanent role on the London Real Estate Asset Management team, but she also contends that she received offers from both Mr Kalashnikov and Mr Bryant. We find that no such offers were made.

We consider that the evidence is consistent with Mr Kalashnikov, Ms Alsterlind, Mr Bryant and others giving genuine consideration as to whether the Claimant would be a suitable permanent recruit to Real Estate Asset Management. However, the consensus was that she had not performed well enough and …, and potentially more significantly, was not enthusiastic about Real Estate.

Discriminatory Dismissal (s. 39(2)(c) EQA)

What was the reason for the Claimant’s dismissal? Was the Claimant dismissed:

as the Respondents contend, because she had come to the end of the Accommodation Period or,

as the Claimant contends, because of her race and/or sex and/or perceived disability?

We find that the Claimant was dismissed because she had come to the end of the Accommodation Period. Given our findings above in relation to her individual allegations of alleged discriminatory treatment on account of her protected characteristics this in effect follows automatically. Whilst we have found that the Claimant undertook some protected acts, we find that there was no causative connection between these and her dismissal. We reach this finding for the following reasons.

There is no evidence that Mr Garcia-Altozano disclosed his conversation with the Claimant to anyone else. He was not, in any event, involved in the decision to terminate her employment.

There was evidence that from as early as March 2017 the possibility of a separation with the Claimant was being considered and therefore substantially predating her conversation with Mr Garcia-Altozano on 9 August 2017.

The Claimant was on the Accommodation Period. She had not received an offer of permanent employment whether during the Associate Program or in the Accommodation Period. Therefore, we consider that the overwhelming evidence supports the reason her employment was terminated as being because she did not have a permanent position rather than because of her protected characteristics.

This allegation therefore fails.

Unfair Dismissal (s. 94 ERA)

Was the Claimant dismissed for a potentially fair reason, namely capability or some other substantial reason?

We find that the Claimant was dismissed on the grounds of some other substantial reason (SOSR). Whilst Mr Truempler said, in response to a question from the Employment Judge, that she was dismissed on performance grounds we find that the actual reason for her dismissal was SOSR i.e. the expiry of the Accommodation Period. Whilst the Claimant being on the Accommodation Period was to an extent a result of her performance not being of the requisite standard to convert during the Associate Program, we do not consider that this as a consequence became a capability related dismissal.

The Respondents’ position is that the Claimant performed satisfactorily but not to a sufficiently high standard to attract interest from any given team so that she converted. We accept the Respondents’ position that the invocation of any performance improvement process would have been contrary to the operation of the Associate Program with three month rotations and what the Respondents say was an expectation that Associates would either convert or realise after say 12 to 15 months, that they were unlikely to do so and then look to secure alternative positions. It would have been highly humiliating, in our view, for the Claimant to have been placed on a performance improvement plan particularly where the concerns were more subjective i.e. that she did not show the requisite enthusiasm or interest rather than that she was simply not capable of performing core parts of her duties.

Did the First and/or Second Respondent have a genuine belief in a fair reason for the Claimant’s dismissal?

We find that they did. This was the end of the Accommodation Period and therefore SOSR.

Was a fair process followed in dismissing the Claimant?

We find that it was not. We therefore find that the Claimant’s dismissal was unfair. We reach this finding for the following reasons.

First, we find that the Claimant was not, as averred by the Respondents, given notice on or about 30 August 2017. Whilst it may have been the Respondents’ intention to make it clear to the Claimant that her ongoing employment was of finite duration, whether for six months or an eventually extended period of 12 months, this was not unequivocally communicated to her and it is accepted was not put in writing. We would have expected any notice of the intended termination of employment to have been documented. In its absence there was scope for uncertainty.

Further, given the Respondents’ position that the possibility remained that the Claimant could, in the event of exceptional performance, have converted we would have expected written updates to be have been communicated to her as to her possibility of converting and further at what point it was considered that this was no longer a possibility. There was no clear communication. Whilst there may have been oral communications, for example, enquiries as to how the job search was going, there were no communications consistent with unequivocal notice of termination having been given.

We therefore find that it was not until the meeting on 5 July 2018 that the Claimant was unequivocally advised that her employment was being terminated.

We consider this to be relevant in the context of applicable case law on the application of SOSR in similar circumstances and in particular Terry v Sussex County Council and Fay v North Yorkshire County Council in which the Court of Appeal approved the reasoning in Terry and set out the circumstances when the expiry of a fixed term contract can amount to SOSR, namely:

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Whilst we do not consider that a fixed term contract existed, we find that similar principles applied in the Claimant’s case. It is relevant that the Court of Appeal in Fay said that the fact of the existence of a fixed term contract must be known to the employee and that the specific purpose for which the fixed term contract was adopted has ceased to be applicable. We consider that the Respondents failed to properly communicate the fact to the Claimant, and whilst arguably mistaken and contrary to all the prevailing evidence, the Claimant remained uncertain as to what her exact position was, or at least arguably did so, until relatively late in the Accommodation Period. Had the Respondents felt there was no ambiguity regarding her position, and the Claimant was aware that her employment would automatically terminate on 31 August 2018, it would have been inconsistent for Mr Truempler to consider it necessary to travel to London and attend a meeting lasting two hours to inform her of this fact.

The issue then arises as to whether this made any difference to the outcome. Arguably had a fair procedure been followed the Claimant would have been dismissed at or about the same time i.e. 31 August 2018.

In relation to proposed issue 4(j) I consider that it is arguable that the ET were wrong to conclude that the first part of the proposed issue had already been resolved by the tribunal’s judgment/reasons on jurisdiction since (a) the findings relied on do not appear to be very clear (even as to whether the August 2017 meeting took place) (see paras 36-42 of the judgment sent out on 14/1/20 at C43-45)) and (b) it is arguable that those findings were not an essential ingredient in the jurisdiction issue. I therefore allowed this issue to proceed to a FH in the EAT.

But each case is different, and caution should not be treated as an excuse for pusillanimity. If a judge is satisfied on the facts of a particular case that the evidence in question will not be of material assistance in deciding the issues in that case and that its admission will (in Hoffmann LJ’s words) cause “inconvenience, expense, delay or oppression”, so that justice will be best served by its exclusion, he or she should be prepared to rule accordingly.

Even having worked at Goldman Sachs for just a couple years (but longer than Mr Erni and Mr Gantner), it makes me wince to see Goldman Sachs seemingly affiliated with Partners Group. The two cultures could not be more different. In fact, considering the other institutions that I have worked for and even studied at, I have yet to encounter a culture less like Goldman Sachs’ culture.

As ethnicity and identity politics are of the utmost importance at Partners Group, even German colleagues openly spoke about feeling like second class citizens for not being Swiss German. And the Firm has been in receipt of at least one discrimination claim from a non-Germanic white male. Accordingly, I found it incredibly disingenuous to read witness statements claiming surprise regarding my experiencing race and ethnicity based discrimination at Partners Group.

While there was no memo circulated on the matter, there was a palpable “hierarchy of identities” (or caste system) at Partners Group

Paragraphs 17, 18 and 19

We deal with these paragraphs together. We consider they are inadmissible and therefore should be deleted. We reach this decision based on their effectively involving the introduction of new matters which did not form part of the Claimant’s pleaded case including at (a) for the first time reference to what the Claimant refers to as a caste system at (b) a culture defined by ethnicity rather than a commitment to excellence, in effect it could be interpreted as an allegation of institutional racism, and that does not form the pleaded case. We do not consider that that is directly a reply to the Respondents’ witness statements given a reasonable interpretation as to what a reply involves, but placed in the context of the pleaded case and the original set of witness statements.

Paragraph (c) in 17 concerns completely new matters which cannot in any way be seen as related to the Respondents’ witness statements. It does not concern the pleaded issues and nor does it concern less favourable treatment on account of protected characteristics. There can be no relevance to assertions that the Respondents do not treat employees generally well in terms of the provision of benefits and foreign visa requirements.

Paragraphs 18 and 19 again references a caste system and sets out what the Claimant considers to be a hierarchical list of individuals based on their gender, race or nationality. This does not form part of the pleaded based on the Claimant’s protected characteristics.

Notably, of the four black investment professionals that were hired into the Associate Program in my intake year (from MIT, Cornell, the University of Pennsylvania and the University of Virginia) not a single one is still at Partners Group.

Paragraph 20

Paragraph 20 raises a slightly different issue but again we find this inadmissible. This involves the Claimant seeking to introduce evidence regarding three other black employees and what she says were their early departures from the firm. First, this could have been included in the original pleadings or further particulars, it was not, and it cannot properly be regarded as a reply. It was always inevitable that the Respondents would deny there was a culture of institutional sex and race discrimination and therefore that could hardly of come as a surprise to the Claimant and nor does it provide her with the opportunity to thereby introduce what are new matters.

We consider that the Respondents would be significantly prejudiced by not being able to adduce evidence in relation to the circumstances of these individuals and, in any event, the fact that another employee left after six years to join another investment firm does not necessarily provide evidence that it was as a result of him suffering discriminatory treatment.

In July 2017, I again experienced Partners Group’s lack of care regarding racism and race based harassment.

Paragraph 31

Paragraph 31 is a separate issue involving an incident alleged to have taken place in July 2017 at the Respondents’ Heron Tower premises. We find this inadmissible. We reach this decision for the following reasons.

It would have been perfectly possible for the Claimant to have included this matter in her original complaint, she failed to do so, the first time it was mentioned was in a statement shortly before the full merits hearing. It is not at all clear that anything beyond the Respondents’ failure to set up a meeting was in any way attributable to the Respondent. It could be anticipated that the reception staff at Heron Towers serve multiple occupants of the building and would not be employed by the Respondents or under their direct control. It does not in itself, even if it were to be accepted to have taken place i.e. racial profiling, indicate any propensity towards discriminatory treatment or racial profiling as far as the Respondents are concerned. It is a specific complaint and it is too late for it to be introduced and therefore it is inadmissible.