Horsfield Menzies : Blog vs Behaviour – NO EXCUSE FOR BIAS

By /

Marcia Sumbe’s article is awkward for Horsfield Menzies for a reason that has nothing to do with hindsight.

At the time, Horsfield Menzies listed Sumbe as a trainee and copied her into plenty of the Cepac correspondence. Her name sat there in the email traffic while a disability-discrimination claim about a vanished recruitment interview became larger, nastier and increasingly focused on the conduct of the claimant rather than the recruitment decision itself. She was not some distant author who later wandered across a useful Court of Appeal judgment and unknowingly gave TCAP a headline. She had at least some visibility of the file.

Then she wrote “No Excuse For Bias”.

That is unfortunate.

Not because her article is bad. Quite the opposite. It is clear, sensible and refreshingly uncomplicated. Sumbe takes Leicester City Council v Parmar and extracts the sort of lessons employers are supposed to learn from discrimination litigation: allegations should be properly particularised, comparable people should be treated consistently, organisations should retain and disclose relevant evidence, and managers should understand unconscious bias.

There is very little to argue with.

There is rather more to compare.

A Simple Claim With A Lot Of Furniture

My claim against Cepac began with a recruitment call on 21 August 2024. I say Page Outsourcing offered me an interview for after the bank holiday, we discussed the training salary and Page asked me about the gap in my employment history. During that conversation, I disclosed that the gap related to my mental health.

A WhatsApp message sent the same day recorded “Interview next week” and “27k training wage up towards 29”.

That message existed before any Employment Tribunal claim, before Horsfield Menzies and before TCAP. I was not constructing litigation evidence. I thought I had a fucking interview.

The confirmation never came. Cepac later denied that an interview had been offered.

That does not magically prove disability discrimination. It creates a factual dispute. Someone said something during a recruitment call. I recorded my understanding at the time. Health information entered the conversation. The expected next step disappeared. Later, the existence of that interview offer was denied.

A merits hearing could have tested it.

What exactly did Page say? What did its records show? Which information reached Cepac, and when? Why did my contemporaneous account differ from the position eventually pleaded?

These are exactly the sort of questions discrimination litigation is supposed to answer by examining evidence rather than admiring whoever has the nicest letterhead.

Employment Judge T. R. Smith later described the proceedings as a “simple claim”, adding that I was essentially upset because I had not got a job. Complete fucking bollocks. By then, the Tribunal file stood at approximately 1,941 pages.

The recruitment call had not become 1,941 pages complicated.

Something else had.

The Evidence Became Me

Sumbe’s article tells employers to retain and disclose relevant evidence. That sounds almost quaint after living through the Cepac case, because Horsfield Menzies developed no obvious aversion to documents.

There were fucking thousands of pages.

The problem was not a lack of material. It was what gradually became worth documenting.

My emails. My complaints. Medical evidence. Previous litigation. Hearing attendance. TCAP. X posts. Language. Reactions. By the later stages of the case, the respondents had assembled enough material about me for claimant conduct to become a major litigation event in its own right.

The recruitment dispute meanwhile remained what it had always been: relatively small, fact-specific and capable of being tested.

Page’s material mattered. The contemporaneous WhatsApp mattered. Records concerning the health disclosure mattered. The later denial that an interview had been offered mattered. Any contemporaneous evidence explaining what happened next mattered.

That is where Sumbe’s article becomes useful.

She does not tell employers merely to retain lots of things. She tells them to retain and disclose relevant evidence.

There is a difference between an evidence base and a warehouse.

Horsfield Menzies built the warehouse beautifully.

No Excuse For Comparators

The Parmar case also involved comparative treatment. The claimant said white colleagues had been treated differently, and those comparisons formed part of the evidential picture considered by the Tribunal.

My case concerned disability discrimination in recruitment rather than race discrimination in an internal disciplinary process. Nobody needs to pretend the factual matrices are identical.

But Sumbe’s lesson travels perfectly well.

If an employer says nothing discriminatory happened, one obvious way of testing that explanation is to look at ordinary practice. How were comparable people treated? Was the process in this case genuinely routine? Did the explanation fit the organisation’s behaviour elsewhere?

I would have been fascinated by that exercise.

How did Page ordinarily communicate Cepac interviews? When did an interview become definite? Was salary normally discussed before a candidate had progressed that far? How often did somebody leave a recruitment call believing an interview had been arranged only for the process to disappear afterwards? What did comparable recruitment journeys look like where no mental-health disclosure entered the conversation?

Those questions do not presume discrimination.

They test for it.

That is rather the point.

Instead, the most extensively compared, catalogued and analysed object in the proceedings became Lee Thompson.

I suppose I should be flattered.

Marcia Was In The Room

This is what gives Sumbe a different place in Blog vs Behaviour.

Horsfield Menzies copied her into plenty of the correspondence while listing her as a trainee. She therefore had some view, however limited, of how the firm was actually conducting a live discrimination case. This was not an article written by somebody entirely removed from the factual environment TCAP is now placing beside it.

I do not know what she thought about any of it.

Maybe nothing.

Trainees are copied into files for all sorts of ordinary reasons. They assist, observe, draft, research and move between matters. Seeing correspondence does not tell me what conclusions Sumbe reached, whether she agreed with the strategy or whether she gave the substance of my case much thought at all.

That is not the interesting part.

The interesting part is that she had seen the professional environment and then published an article whose lessons fit the Cepac dispute with almost indecent precision.

Be specific.

Look at consistency.

Preserve the evidence.

Understand bias.

The trainee had written the fucking marking scheme.

Then Her Name Disappeared

At some point, Sumbe stopped appearing in the copies.

There may be nothing remotely dramatic about that. Trainees rotate. Work gets redistributed. Email lists change. Somebody can disappear from a matter for reasons so boring they would struggle to fill a Post-it note.

I am not claiming TCAP caused it.

I am saying I noticed it.

And because this is Horsfield Menzies, the timing is funny.

By then, what had begun as private litigation was acquiring a second life on the internet. TCAP had started taking the firm’s own public writing, placing it beside the conduct I had experienced and letting Google preserve the contrast.

That must create an unusual educational environment for a trainee.

Most junior lawyers learn from senior colleagues, case files and supervision. Marcia had the additional benefit of watching the firm’s litigation strategy acquire search results.

Perhaps the copying stopped for completely unrelated reasons.

Fine.

She was there.

Then she wasn’t.

Bias Is Rarely Courteous Enough To Introduce Itself

Sumbe also recommends training on unconscious bias.

Again, good advice.

Unconscious bias matters because nobody needs to consciously decide I am discriminating against this person. Human beings rationalise. Decisions get explained through instinct, suitability, attitude, reliability, chemistry, fit and a dozen other words capable of being perfectly innocent or wonderfully convenient depending on the facts.

A candidate simply feels wrong. Someone else seems more reliable. Another person fits better. Perhaps there is concern about attitude, personality, future attendance or some equally neutral-sounding consideration.

That is why the evidential context matters.

Horsfield Menzies knows this.

Daniel Rubin wrote about it too, specifically in recruitment. His own article discusses “chemistry”, hidden influences and the danger of favouring “people like us”.

So the firm had no shortage of intellectual equipment.

Rubin understood why recruitment instinct can conceal bias.

Sumbe understood why evidence, consistency and comparators matter when deciding whether discrimination occurred.

That is quite a toolkit.

The awkward bit is putting it beside a recruitment case in which the applicant said an interview had been offered, had a contemporaneous message recording that expectation, disclosed mental-health information during the recruitment process and then watched the expected next step disappear.

Again, none of that proves why it disappeared.

It is why you fucking investigate.

What The Case Eventually Decided

The Cepac proceedings never completed that exercise.

Instead, the claimant became sufficiently central to the litigation that conduct ultimately disposed of the discrimination claim. A £20,000 costs order followed. The public judgments said plenty about me.

The underlying recruitment dispute did not receive its completed merits determination.

That distinction matters.

Cepac did not emerge from a full evidential hearing with a finding that the disputed recruitment events occurred exactly as it said and that disability played no part. The case ended on another route.

Meanwhile, Sumbe’s article remains online explaining how discrimination cases should be approached when evidence and competing treatment matter.

That is the sort of accidental juxtaposition TCAP was built for.

No need to manufacture hypocrisy.

Just preserve both records.

Vague Allegations And Very Specific Adjectives

There is another entertaining tension in Sumbe’s article.

She emphasises the need for specificity when allegations are made against somebody. Fair enough. If a person is expected to answer misconduct allegations, they need to know what they supposedly did.

The Cepac litigation eventually developed a magnificently rich vocabulary for describing me.

Unreasonable.

Scandalous.

Vexatious.

Harassing.

Intimidating.

Remorseless.

Gratuitously insulting.

Baseless.

Egregious.

There is nothing vague about the adjectives.

They got plenty of oxygen.

Yet somewhere underneath that linguistic fireworks display remained the small factual dispute which started everything: a recruiter, a proposed interview, a salary discussion, a health disclosure, a contemporaneous message and a later denial.

The adjectives received their judgment.

The recruitment call did not.

That is quite an editorial choice for a case supposedly created to decide disability discrimination.

Marcia’s Four Questions

Strip Sumbe’s article down and it leaves four useful questions.

Were the allegations properly particularised?

Was the relevant evidence preserved and disclosed?

Did comparable situations receive consistent treatment?

Could bias have influenced the decision?

Those are not claimant-friendly questions or employer-friendly questions.

They are simply good questions.

That is why I like Sumbe’s article more than many of the pieces in this series. There is less corporate fluff to scrape away. She has identified practical disciplines which genuinely improve decision-making.

The irony comes from where she was sitting when she wrote them.

Inside Horsfield Menzies.

Copied into correspondence from a live discrimination case.

Watching, at least from the edges, while that case moved further and further away from the compact recruitment dispute at its centre.

Maybe the firm taught Marcia something.

Maybe Marcia accidentally taught the firm.

Either way, TCAP gets the notes.

No Excuse

The title is beautifully uncompromising.

No Excuse For Bias.

Not Try To Avoid Bias Where Commercially Convenient, not No Excuse For Bias Unless The Claimant Is Difficult, and certainly not No Excuse For Bias, Subject To Seventeen Pages Of Procedural Context.

Just no excuse.

That clarity is what makes Horsfield Menzies’ blog such a productive archive. Its lawyers write the world as it ought to operate. Investigations should be fair. Complaints should be taken seriously. Sensitive information deserves careful handling. Recruitment bias should be challenged. Evidence should be preserved. Treatment should be consistent.

Then the real files arrive.

Everything becomes less pristine.

Principles meet clients, procedural strategy, professional loyalties and reputational interests. The sentences acquire footnotes. Moral confidence becomes pragmatism.

Sumbe did not create that tension.

She simply gave this example a particularly good title.

The Marking Scheme

So let us use it.

Provide proper details of allegations.

My recruitment claim had a date, a telephone conversation, an expected interview, a salary figure, a health disclosure and a contemporaneous WhatsApp.

Treat comparable people consistently.

That makes the ordinary recruitment process rather interesting.

Retain and disclose relevant evidence.

Quite.

Train managers on discrimination and unconscious bias.

Horsfield Menzies can apparently provide several authors.

Those were Marcia Sumbe’s lessons.

She had already been copied into the case.

The case never completed the exercise.

Instead, a judicially described simple claim became enormous, the claimant became the main event and the original recruitment dispute remained unresolved on its merits.

I am not angry with Marcia.

She may be one of the most useful people Horsfield Menzies has ever copied into an email.

She gave me the marking scheme.

All I had to do was put their fucking paper underneath it.

Lee Thompson – Founder, The Cummins Accountability Project

Sources

Scroll to Top