Dr Maarabouni v The University of Keele: 1303142/2021
EMPLOYMENT TRIBUNALS
Case No 1303142/2021
Between
Dr M MaarabouniClaimantThe University of KeeleRespondentDate 22 December 2022
JUDGMENT
ON AN APPLICATION FOR RECONSIDERATION The claimant’s application for reconsideration is refused because there is no reasonable prospect of the original decision being varied or revoked.
REASONS
[1]On 22 December 2022 the tribunal gave judgment at the end of the hearing and provided oral reasons. The written judgment was sent to the parties the same day. The claimant subsequently requested written reasons. These were provided and were dated 3 March 2023. The reasons were sent to the parties on 6 March 2023. On 20 March 2023 the claimant applied for reconsideration.[2]The claimant’s reconsideration application is detailed and lengthy. In fact it is longer than the judgment itself. The claimant presented 4 main grounds for her reconsideration application:(i) Impartiality concerns.(ii) Errors of fact.(iii) Procedure of the hearing.(iv) Evidence that was not available at the time of the hearing.[3]The claimant also provided 3 emails between herself and Professor Scott from February 2021. I understand this is the evidence which the claimant is referring to that was not available at the hearing.
Law
[4]Rule 70 of the Tribunal’s rules of procedure provides as follows: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[5]Rule 71 sets out the procedure for applying for reconsideration. There is a requirement that any reconsideration application shall set out why reconsideration of the original decision is necessary.[6]Rule 72(1) then provides as follows: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal…”.[7]When dealing with the question of reconsideration I should try to give effect to the overriding objective to deal with cases ‘fairly and justly’ (Rule 2). This involves:a. ensuring that the parties are on an equal footingb. dealing with cases in ways which are proportionate to the complexity and importance of the issuesc. avoiding unnecessary formality and seeking flexibility in the proceedingsd. avoiding delay, so far as compatible with proper consideration of the issues; ande. saving expense.[8]I should also be guided by the principles of natural justice and the importance of finality in litigation.[9]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC explained that the wording ‘necessary in the interests of justice’ in rule 70 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’.[10]Reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the tribunal at the time it made its judgment. It is incumbent on the party applying for reconsideration to explain why the new evidence was not produced beforehand and why it is now in the interests of justice to consider that evidence.[11]The principles to be applied in this scenario come from the case of Ladd v Marshall 1954 3 All ER 745, CA. In summary, it is necessary to show:(i) that the evidence could not have been obtained with reasonable diligence for use at the original hearing,(ii) that the evidence is relevant and would probably have had an important influence on the hearing; and(iii) that the evidence is apparently credible.[12]The EAT has confirmed that the tribunal should refuse an application for reconsideration unless the new evidence is likely to have an important bearing on the result of the case (Wileman v Minilec Engineering Ltd 1988 ICR 318, EAT).[13]The EAT in Outasight also held that the interests of justice may allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not have been obtained with reasonable diligence at an earlier stage. This might apply where, for example, a party was ‘ambushed’ by the introduction of evidence at the hearing or was incorrectly refused an adjournment. However, it is not generally in the interests of justice that parties in litigation should be given a second bite of the cherry simply because they have failed as a result of oversight to provide all the evidence available in support of their cases at the original hearing. Analysis Impartiality concerns
Analysis
[14]In my judgement this ground is based on a misunderstanding of the tribunal’s approach. The claimant asserts at paragraph 2 of her application that her concern about impartiality has arisen because the tribunal’s decision was based solely on the basis of the respondent’s oral evidence. This is incorrect. The tribunal carefully weighed up all the evidence that we were referred to. This included the statements of both parties, the oral evidence of both parties and the documentary evidence in the bundle that we were referred to. On a fair reading of the tribunal’s judgment it is clear that we referred to a number of important documents to support our findings rather than just the oral evidence (for example the email chain that we referred to at paragraph 64 of the judgment). We also referred to the claimant’s witness statement and to evidence the claimant gave in cross examination (for example, see paragraph 104.4 of the judgment). On a number of issues we found the respondent’s evidence to be credible and we accepted it. This does not demonstrate impartiality. Our conclusions to that effect were only reached after a careful consideration and weighing up of all the relevant evidence.[15]In light of the above there is nothing in this ground which gives rise to a reasonable prospect of the original decision being varied or revoked. New evidence[16]The claimant’s application makes clear that the new evidence is potentially relevant to issue 2.2.7. This was an allegation that in February 2021 the claimant did not receive a reply to an email to Professor Scott updating Professor Scott in relation to the Malaysian University USM. It was understood at the hearing that the relevant email could be seen at page 293 of the trial bundle and was in fact dated 11 March 2021. The email was entitled Malaysia Update. The tribunal found that no response was provided but that no response was required or expected. We therefore found that there was no detriment and the reason why Prof Scott did not reply is because she did not consider that a response was required or expected. It was not because of or related to race and there was nothing to suggest that this matter might have had something to do with race. Our overall conclusions applied to this allegation as follows. The claimant did not prove any facts from which we could conclude that the failure to reply was an act of direct race discrimination or harassment related to race. This was not unwanted conduct which had the purpose or effect necessary to constitute harassment. The claimant was not treated less favourably than any actual or hypothetical comparator because of race.[17]The 3 emails now provided by the claimant are:(i) An email from Professor Scott to the claimant and others dated 3 February 2021 entitled Malaysia Update.(ii) An email from Professor Scott dated 10 February 2021 replying to the claimant’s email of 4 February 2021 about development and links with the Malaysia university.(iii) An email from the claimant to Professor Scott dated 26 February 2021 requesting a meeting to update Professor Scott as to her Malaysia role. The claimant says she did not receive a response to this email.[18]The claimant’s application for reconsideration does not include an explanation of why these emails were not provided earlier. The claimant just says that she has since the hearing obtained this additional evidence. There is no reason why the claimant could not access her email account and provide this evidence in time for the hearing, if she considered it relevant. The evidence could therefore have been obtained with reasonable diligence for use at the original hearing. It would have been obvious that if the claimant wished to complain about not receiving a response to an email, then that email should be disclosed and included in the bundle.[19]The claimant has not identified any additional factor or mitigating circumstance that means that the new evidence could not have been obtained with reasonable diligence at an earlier stage. The claimant was not ambushed at the hearing. In fact the claimant is now seeking to provide additional evidence to support her own case rather than respond to something that came out at the hearing. The claimant was not refused an adjournment. In fact the claimant did not apply for an adjournment or attempt to provide this evidence at the hearing and she has not even explained why not. The interests of justice do not allow fresh evidence to be adduced in these circumstances. The claimant is simply seeking a second bite of the cherry because she failed, most likely as a result of oversight, to provide all the evidence available in support of her case at the original hearing.[20]The claimant has not shown that the new evidence would probably have had an important influence on the hearing or the result. The allegation the tribunal had to determine was about the claimant not receiving a reply to an email to Professor Scott updating Professor Scott in relation to the Malaysian University USM. The claimant now seems to wish to complain about not receiving a response to a different email, i.e. the one requesting a meeting to update Professor Scott as to her Malaysia role. This is a different allegation from the one we had to determine. In her email requesting a meeting the claimant does not provide any update about the Malaysian University and so it is clear that the claimant now wishes to rely on a different email. The list of issues identifying the allegation we had to determine was agreed by both parties at a preliminary hearing held on 23 March 2023 and the claimant did not make any application to vary the list of issues. The claimant had the opportunity to raise any objection to the list of issues at the preliminary hearing or in the 9 months or so between the preliminary hearing and the final hearing. The parties did not prepare any evidence or submissions to deal with the allegation the claimant now seeks to pursue. A further hearing with new evidence would therefore be required to deal with the new allegation and this cannot possibly be in the interests of justice.[21]Furthermore, even if the new email was admitted into evidence and even if the tribunal were to find that Professor Scott had not responded to the claimant’s request for a meeting the issue for the tribunal would still be whether the failure to respond was direct discrimination because of race or harassment related to race. The point still remains that the claimant has not proved any facts from which we could conclude that it was. Even on reading the claimant’s reconsideration application the strong impression remains that the claimant has presented a diffuse list of complaints but it is wholly unclear why she considers her treatment to have been because of or related to race. In fact there remains no cogent basis for that suggestion. We invited the claimant to identify the matters she relied upon to prove the prima facie case at the hearing but there was little to go off and this problem remains. The tribunal’s conclusions as summarised above would therefore still stand.[22]For these reasons there is no reasonable prospect that the tribunal would find that it was necessary in the interests of justice to consider the new evidence and there is no reasonable prospect of the original decision being varied or revoked as a result of this ground. Procedure of the hearing[23]The claimant alleges that the proceedings were rushed and she was pressured to move quickly. This is incorrect. The claimant was given more than ample time to ask questions and give evidence. The timetabling of the hearing was discussed with the parties throughout the hearing. It was agreed that it would be beneficial for everybody if the tribunal gave an oral decision in the time available rather than a reserved decision. This was because of the length of time since the claim was submitted and since the events complained of, the fact that the claimant was still an employee of the respondent and the fact that there could be a significant delay if judgment was reserved particularly due to the impending Christmas break. The tribunal did not impose any strict deadlines but sought to keep to timetabling which would enable sufficient time to provide a decision to the parties and also keep the evidence proportionate and relevant to the issues that we had to determine. This is standard case management. As far as I can recollect the claimant did not raise any issue about being stressed and anxious at the hearing. The claimant had a very full opportunity to explore her complaints in evidence and in submissions. A number of the matters the claimant wanted to pursue were in fact explored extensively.[24]The claimant states she has concerns about the accuracy of the list of issues. The list of issues for the final hearing was agreed by the parties at the preliminary hearing before EJ Kelly on 23 March 2022. EJ Kelly recorded as follows “The respondent had drawn up a draft list [of issues] with which the claimant agreed.”. The claimant was professionally represented at that hearing by her solicitor. It appears that EJ Kelly suggested that the list of issues could be elaborated but that was not done and the parties had prepared for the hearing on the basis that the list of issues was final. This was consistent with the order made by EJ Kelly: “This list should be comprehensive and no other issues will be considered unless with the leave of the Tribunal”. EJ Kelly ordered that final list of issues should be agreed by 20 April 2022. The tribunal worked from the agreed list of issues which was provided to us in the bundle. As far as I am aware neither party made any application to vary the agreed list of issues at any stage since the hearing before EJ Kelly. The evidence and submissions at the hearing were tailored to address the issues as previously agreed. The list of issues was discussed with the parties at the outset of the hearing and this was what led to the claimant withdrawing her indirect sex discrimination claim. It was not apparent that any of the remaining claims or allegations were unworkable. The whole point of agreeing the list of issues at the preliminary hearing stage was so that the parties could prepare and so that the parties and the tribunal knew what the tribunal was required to adjudicate. This importance of the list of issues was clear from EJ Kelly’s order which the claimant obviously had.[25]The claimant refers to a change in the list of issues but as far as I am aware the only change was to amend allegation 2.2.13.4 so as to remove reference to Professors Amigoni and Wastling. This was agreed by the claimant. It did not actually change the substance of the allegation, just who was responsible for it. It is not clear to me why the claimant considers this advantages the respondent when she agreed to it and it was just a matter of identifying who was responsible for her allegation. In her reconsideration application the claimant accepts, as she did at the hearing, that Professors Amigoni and Wastling were not involved in this complaint so it is unclear how she could be disadvantaged by them being removed.[26]The claimant now suggests she was not consulted about the list of issues and that she does not agree with certain parts of it. This might be a matter between the claimant and her previous representative, who agreed the list of issues. The claimant has not explained why she did not raise this any earlier and if necessary apply to vary the list of issues.[27]The claimant also says she has concerns about unequal treatment during the hearing. In my judgement this point is also misconceived. As can probably fairly be observed from the reconsideration application itself the claimant does have a tendency to want to explore her complaints in great detail. It was necessary during the hearing to refocus the claimant to ensure that she was answering the question and, when she was cross examining, to ensure that the questions asked were relevant to the issues we had to determine and in particular relevant to the claimant’s case that she was treated less favourably because of race and/or subjected to harassment related to race via the particular allegations in the agreed list of issues. It was necessary for a fair hearing and in the claimant’s interests to prompt the claimant to ask questions relevant to the allegations we had to determine. The tribunal mentioned an example of this approach in our judgment at paragraph 101 where we referred to prompting the claimant to ask questions about the support she alleged she should have been provided in relation to HM. The tribunal also had a responsibility to ensure the questioning was proportionate and consistent with the timetable to conclude the case in time. This is all part of ordinary case management and is by no means unusual when parties represent themselves. The claimant was in fact given much greater leeway than would have been afforded to a professional representative in terms of the time taken for cross examination and the amount of tangential questioning that she was permitted to explore.[28]It is not correct that every question the claimant posed of Professor Wastling had to be scrutinised. As we recorded in the judgment the claimant’s cross examination of Professor Wastling was robust and lengthy (see paragraphs 61 and 78). The claimant herself refers in her reconsideration application to her extensive cross examination of Professor Wastling. It was necessary to step in to focus the claimant on asking relevant questions only as the cross examination was in danger of running to a disproportionate length and spending much time on irrelevant or at best tangential topics. Again this is part of ordinary case management and was in the claimant’s interests as well as necessary for a fair hearing. The claimant was not prevented from asking any questions that were relevant and that Professor Wastling could answer.[29]I do not believe the claimant raised any concerns about the procedure of the hearing during the hearing itself. In my judgement there was nothing in the conduct of the hearing which could possibly warrant the decision being varied or revoked. The claimant had a full and fair opportunity to give evidence, ask questions and make submissions on all the issues which the parties had agreed the tribunal would adjudicate on. Errors of fact[30]The claimant appears to challenge or at least provide extra commentary on practically every finding which the tribunal made. The points made are detailed and lengthy. I have read all of them but in my judgement it is neither necessary nor proportionate to comment on them individually.[31]It appears to me that this part of the reconsideration application is an attempt by the claimant to reargue the case. It is based upon expanding upon points which were raised and considered at the hearing or raising arguments which could and/or should have been deployed at the hearing. The parties were aware of the issues at the hearing and could address the tribunal on them. We in fact encouraged the claimant to focus on the allegations we had to determine and her case that she was treated less favourably because of race or subjected to harassment related to race on numerous occasions. This part of the application reads as though the claimant has taken the opportunity to make further submissions following the judgment. It is not in the interests of justice to reconsider a judgment on that basis.[32]I have considered all of the matters raised by the claimant as alleged errors of fact and none of them are such that they would give any reasonable prospect of the original decision being varied or revoked. The claimant had the opportunity to give evidence, ask questions and make submissions on all the issues which she now wishes to expand upon at the hearing. This part of the claimant’s application is an attempt to re-argue the issues because she disagrees with the decision. This is not a valid ground for reconsideration.
Conclusion
[33]In light of the analysis above my overall conclusion is that there is no reasonable prospect of the original decision being varied or revoked. Case number: 1303142/21 EMPLOYMENT TRIBUNALS Claimant: Dr M Maarabouni Respondents: The University of Keele Heard at: Birmingham (by CVP) On: 14 – 22 December 2022 Before: Employment Judge Meichen, Mrs R Forrest, Mr J Kelly Appearances For the claimant: in person For the respondents: Mr N Grundy, barrister UNANIMOUS JUDGMENT 1. The claimant’s claim of indirect sex discrimination is dismissed following a withdrawl of that claim by the claimant. 2. The claimant’s claims of direct race discrimination and harassment related to race fail and are dismissed. Employment Judge Meichen 22 December 2022 Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. 1 of 1 JUDGMENT was sent to the parties dated 22 December 2022. The claimant’s claim of indirect sex discrimination was dismissed following a withdrawal of that claim by the claimant and the claimant’s claims of direct race discrimination and harassment related to race failed and were dismissed. Written reasons were subsequently requested by the claimant in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013. The following reasons are provided. Oral reasons were given at the end of hearing and so these written reasons are based on the recording of the reasons given orally.
Background
[34]In December 2020 the claimant applied for promotion to Reader and in February 2021 she was informed that that application had been unsuccessful. The claimant was provided with feedback on her application which set out advice as to how she might improve her application in the future.[35]Although the provision of feedback was we think intended to provide constructive guidance as to how the claimant may achieve promotion in the future the claimant took the view that the feedback set unrealistic targets for her and it appears to us that following the receipt of the feedback the claimant became dissatisfied with her career progression at the respondent.[36]In her closing submissions the claimant described the feedback she received as “derogatory and belittling”. This gives an idea of the claimant’s strength of feeling, but we have to say we consider her view in this respect is not accurate or objectively reasonable.[37]The unsuccessful Reader application and the feedback which the claimant received following the application appears to have been the prompt for the claimant to submit this claim, although the subject of the claim has expanded far beyond just those matters. The claimant’s dissatisfaction with the Reader application and feedback has apparently led her to view other potentially adverse events as possible acts of race discrimination or harassment. In some cases the events were a long time ago (2014 to 2017) and/or were relatively minor (for example receiving no response to an email about a freezer being unplugged). In all cases it is unclear why the claimant considers her treatment to be because of or related to race.[38]On 10 May 2021 the claimant raised a grievance regarding her Reader application and in particular what she regarded as the unrealistic and unfair feedback that she received. The claimant did not allege race discrimination in her grievance, even though that is the nature of the claim which she has brought to the tribunal. Even in respect of this primary allegation it is unclear why the claimant considers her treatment to be because of or related to race.[39]The respondent conducted a grievance investigation including meeting with the claimant and relevant witnesses. On 20 July 2021 the claimant was informed of the outcome which was that the grievance was not upheld. The claimant was informed of her right to appeal but we understand no appeal was lodged by the claimant within the time set by the respondent.[40]In light of some recommendations set out in the respondents grievance investigation report the claimant was provided with revised feedback from the Readership promotions committee in March 2022. Plainly it would have been better if that revised feedback had been provided more promptly. Allegations[41]We will now set out our findings on the allegations that we have to determine.[42]Allegation 2.2.1 was that in 2016 the claimant was replaced as PhD advisor for a student and the viva panel noted in their report that the claimant had not provided progression forms despite this not being a requirement. The claimant says that she did not subsequently receive confirmation that the comment had been removed from the report.[43]The context here is that the PhD advisor provides pastoral support for the PhD student. The particular student referred to had experienced a number of major issues and had become very reliant on the claimant including asking to meet the claimant several times a week and taking up a large amount of her time. The claimant raised concerns about that to Prof Price (currently Research Director for the School of Life Sciences and the Deputy Director of Keele’s Institute for Global Health, previously the Postgraduate Research Lead for the School of Life Sciences). As a result when the progression panel met to discuss the student’s progression into the next year of the course it was decided that the claimant should no longer be the student’s advisor[44]At the time the claimant said that she was relieved that that decision had been taken. This is not surprising considering how much of her time the student was taking up. Therefore, we do not consider there is any detriment here. Further, the reason for the decision was that the panel decided that the student needed to become more independent and not rely on the claimant’s support so much.[45]A statement was also included in the progression report that certain forms were not available. The student interpreted that to mean that the claimant had not done something which she was required to do as part of the standard process. That was incorrect because in fact the forms were no longer required which was a change in the process from previous years. The claimant raised a concern with Prof Price about the statement regarding the forms and Prof Price responded to the claimant to confirm that the forms were no longer required and that she would be happy for the sentence to be removed from the student’s progression report. Prof Price also verbally advised the student that the forms were not required after all. Prof Price explained this position in an email to the claimant which is dated 20 November 2016 and could be seen in the bundle at page 201. Therefore we find this allegation was not made out on the facts – the claimant was informed that the comment would be removed and it was made clear to everyone concerned that there was no cause for criticism of the claimant. Again, there is no detriment here.[46]Allegation 2.2.2 dated back to 2017. The claimant alleged that she was not allowed to get involved with a Malaysian university and she was not invited to meet an academic visitor, presumably from that university, in February 2017.[47]This allegation relates to a Professor Hoole. The tribunal did not hear evidence from Prof Hoole and we understand that he has now left the University. Prof Hoole was the Head of School of Life Sciences and the partnership lead with the Malaysian University USM. We should note that the claimant agreed in evidence that Prof Hoole had assisted her career by appointing her to be the Internationalisation Director and the claimant had relied on that responsibility in her subsequent applications for promotion.[48]The allegation is from a long time ago and the claimant provided very little evidence about it. In her witness statement the claimant said that she had not been given the opportunity to get involved with the Malaysian university and was not invited when their staff visited Keele. There is no evidence that the claimant raised any concerns about this at the time. The claimant provided very little detail about what happened when the academic visitor visited and why she felt she was not allowed to get involved. It is unlikely in the tribunal’s view that Prof Hoole would have appointed the claimant to the role of Internationalisation Director but then undermined her by not inviting her or purposely not allowing her to get involved with the Malaysian university. We consider the factual basis for this allegation has not been made out – we find the claimant was not in fact subject to the treatment complained of.[49]Allegation 2.2.3 is about the claimant’s appointment to the Human Biology Programme Director role. As we have mentioned the claimant was appointed to that role in 2018 but the claimant alleges that she requested to be considered for it on a number of occasions prior to 2018 and those requests were not granted.[50]Prior to the claimant being appointed into the Programme Director role the position was filled by another person who was Dr Chakravorty. In her witness statement the claimant said that programme directors are normally changed every 3 to 4 years but that Dr Chakravorty remained in post for eight years. The claimant did not substantiate the suggestion that programme directors are normally changed every 3 to 4 years.[51]We find that any change of Programme Director will be dependent on the particular circumstances at the relevant time. There was no specific rule or practice that changes should be made every 3-4 years[52]The claimant acknowledged in her witness statement that Prof Hoole had been reluctant to replace Dr Chakravorty as that would be a difficult conversation with Dr Chakravorty. The tribunal found that was the reason why Dr Chakravorty was not replaced any sooner.[53]Allegation 2.2.4 was that after the claimant’s appointment to the Programme Director role in 2018 the claimant was not allowed to be Theme Lead. The context to this allegation is that the University decided to combine the course of Human Biology with Biomedical Science and the Biomedical Science director became the Theme Lead rather than the claimant.[54]In her evidence the claimant accepted that Biomedical Science was the bigger course and Prof Price’s evidence, which we accept, was that it was six times bigger. The tribunal found this was the reason why the Biomedical Science director became the Theme Lead rather than the claimant.[55]The evidence does not establish that the claimant was “not allowed” to be the Theme Lead after she became the Programme Director for Human Biology. The decision was taken in the context of it being the Head of School’s role to ensure that staff are not overloaded with administrative tasks and this was taken into account when deciding not to appoint the claimant.[56]Allegation 2.2.5 concerned the claimant’s promotion to Senior Lecturer. As we have mentioned the claimant was promoted to Senior Lecturer in 2019 but she had failed in two earlier applications to become Senior Lecturer.[57]The claimant alleges that her failure on the two prior occasions was due to the committee insisting that the claimant needed to have a PhD candidate completion. The claimant says that this is not a requirement set out in the University promotion criteria for Senior Lecturer.[58]The respondent has accepted that the claimant was unsuccessful in her applications for Senior Lecturer in 2014 and 2015 but contends that the fact that the claimant did not have a PhD candidate completion at the time was not the only reason why she was unsuccessful. We accepted the respondent’s evidence to that effect.[59]The respondent also accepts that PhD candidate completion is not a requirement set out in the promotion criteria for Senior Lecturer but contends that this is usually an expectation for promotion to Senior Lecturer level. We accepted the respondent’s evidence to that effect too.[60]We should make clear that in a similar way to her dissatisfaction with her Reader application the claimant made it clear in her evidence that the focus of her complaint was not on the fact that she had not been promoted but on the feedback that she was provided with. The claimant takes the view that the feedback she obtained was unrealistic and introduced new criteria that she had to achieve.[61]Professor Wastling was cross examined by the claimant at some length on this matter. Prof Wastling is the Pro Vice-Chancellor and Executive Dean for the respondent’s Faculty of Natural Sciences. The tribunal accepts Prof Wastling’s evidence that feedback does not and is not intended to introduce a new set of criteria. Rather it is designed to provide bespoke help or support to the individual candidate as to the areas they can work on for career development in order to improve their chance of promotion in the future. It is designed to guide candidates as to how they might improve their prospects for promotion in the future.[62]The tribunal is satisfied that everything that was specified or highlighted for the claimant to work towards were usual and/or reasonable expectations and that the feedback was designed to be helpful to the claimant. There was no detriment here. PhD candidate completion was part of the advice that was given to the claimant as to how she could improve her application in the future. We accept it was not the only reason why she was not promoted in 2014 or 2015, rather the claimant’s application was judged as a whole. Therefore the factual basis for this allegation has not been made out.[63]Allegation 2.2.6 is that in February 2020 the claimant expressed an interest in the role of Postgraduate Research Lead and then in May 2020 Prof Scott invited staff to show their interest. The claimant was ultimately not appointed and she alleges that she was not considered for the role. Prof Scott was previously Head of the School of Life Sciences but she left her employment with the respondent in 2021.[64]The claimant raised concerns about this process with Prof Scott at the time. The tribunal has had regard in particular to the email chain of 18 May 2020 which could be seen at page 278 to 279 of the bundle and also Prof Scott’s email to the claimant of 18 June 2020 which could be seen at page 288 of the bundle. These emails clearly explain the following:64.1 Firstly that the appointment of the role was put on hold in February but the claimant was informed that this did not mean she had been unsuccessful.64.2 Secondly that the claimant’s application was considered in May but it was felt that the claimant already had several different roles and that she would be stretched to take on an additional role.[65]The tribunal also heard evidence that the person who was appointed instead, Marcelo Lima, had particular experience which was relevant to that appointment.[66]The tribunal saw no reason to doubt any of this evidence. We found that the claimant was considered for the role but was not appointed because of the respondent’s belief that she would be stretched to take on an additional role and the experience of Marcelo Lima made him an attractive candidate to perform the role.[67]Allegation 2.2.7 is an allegation against Prof Scott for not replying to a specific email from the claimant.[68]The relevant email could be seen at page 293 of the bundle It is dated 11 March 2021. The email is entitled Malaysia Update. The title is apt. It appears clear to the tribunal that the email is very simply providing an update of relevant information regarding the respondent’s link with the university in Malaysia.[69]The claimant’s email does not pose any questions of Prof Scott, she does not request any meeting and there is nothing on the face of the email which leads the reader to believe that a response might be required or expected. We consider there is no detriment here. Furthermore, we find that the reason why Prof Scott did not reply is because she did not consider that a response was required or expected.[70]Allegation 2.2.8 is also an allegation against Prof Scott. The claimant alleges that on 16 February 2021 Prof Scott failed to reply to the claimant regarding her concerns about the promotion committees feedback. This is in the context of the claimant’s unsuccessful application to Reader and her dissatisfaction with the feedback that she received in respect of that application.[71]We should note that at this time Prof Scott was the claimant’s Head of School but she was not part of the relevant promotions committee and she was not responsible for the feedback. The responsibility for that lay with Prof Wastling.[72]After she received the feedback from Prof Wastling the claimant sent an email to Prof Scott on 16 February 2021 in which the claimant raised her concerns about the unrealistic nature of the feedback.[73]The evidence shows that Prof Scott promptly responded and acted upon the claimant’s email. Prof Scott forwarded the claimant’s concerns to Prof Wastling and she offered to speak to the claimant herself. Prof Scott also said that she thought a meeting with Prof Wastling and the claimant would be helpful, but it seems the claimant was not willing to do that.[74]We think the claimant’s decision in this respect was unfortunate as Prof Wastling said in his email in response to Prof Scott that the written feedback could look stark but in a discussion it would be possible to sound more encouraging. Prof Wastling emphasised to Prof Scott that he would be very happy to meet the claimant for that reason.[75]We are satisfied that that message was passed on to the claimant by Prof Scott. In reaching that conclusion we had particular regard to an email sent from Prof Scott to the claimant on 28 April in which she recorded that she had mentioned to the claimant that Prof Wastling was happy to meet and she again suggested that the claimant should do that. She even suggested that the claimant should contact Prof Wastling’s secretary to book an appointment. Not long after that email the claimant sent Prof Scott a response, on 4 May 2021, in which she thanked Prof Scott for support.[76]We therefore find that the factual basis for this allegation has not been made out because Prof Scott did not fail to reply to the claimant regarding her concerns about the promotion committees feedback. Not only did Prof Scott in fact reply she also sought to support and assist the claimant.[77]Allegation 2.2.9 also concerns the claimant’s unsuccessful application for promotion to Reader in February 2021. The first part of the allegation is the simple fact that the claimant’s application was unsuccessful and the second part of the allegation is that the claimant alleges that in making its decision the promotions committee failed to adequately take into account various factors relating to her achievements and her personal circumstances which are set out in the list of issues.[78]Prof Wastling was robustly cross-examined by the claimant as to the reasons why her application was unsuccessful and the feedback which she was provided with. The tribunal accepted Prof Wastling’s evidence that the views expressed about the claimant in respect of her application were not unwarranted criticism but rather were fair and cogent observations about the claimant falling short of the level expected at Readership.[79]It is relevant to note that the claimant’s application for Reader came relatively quickly after her promotion to Senior Lecturer and therefore the claimant had not had much time to build an impressive application at readership level. The respondent’s view, which we find was genuinely and reasonably held, was that the claimant’s application for promotion to Reader was premature. As Professor Wastling explained in his statement it was very difficult for the claimant to meet the significant leap in extra activity over and above what is done to get promoted to Senior Lecturer in the time since her promotion. Professor Dani and Professor Scott expressed similar views. We accept that evidence. That is the reason why the claimant was not promoted to Reader in February 2021.[80]In the tribunal’s view the claimant did not establish that any relevant matter had not been taken into account and we were satisfied that Prof Wastling and the committee were fully aware of the claimant’s achievements and personal circumstances. They properly took these into account but simply decided that she was not yet at the level to be expected for promotion to Reader. Therefore the factual basis for the second part of this allegation is not made out.[81]Allegation 2.2.10 is based upon the fact that Prof Scott and Prof Price did not respond to an email from the claimant dated 17 June 2021. This email could be seen on page 296 of the bundle. This email was sent by the claimant to several groups of recipients and we assume that Professors Scott and Price were included within one or more of those groups.[82]The subject matter of the email was a fridge freezer and the content of the email was that the claimant explained that a particular fridge freezer had been unplugged and therefore the contents of the freezer had been lost because everything was defrosted.[83]The claimant did not ask any questions in the email or say anything which indicated that a response might be expected from any particular individual. We find that the reason why Professors Scott and Price did not respond to the email directly was because they did not realise that a response from them was required or expected.[84]Prof Price gave evidence that following receipt of the email she discussed the incident with Prof Scott and they agreed to provide funding to replace the contents of the fridge from the school’s research budget. The claimant did not challenge that evidence and we accepted it. We consider that the claimant was not subject to any detriment in relation to this allegation.[85]Allegation 2.2.11 was undated but the claimant indicated during the hearing that it dated back to 2015. The allegation is that the claimant had nominated a colleague to become a PhD advisor for a student but the colleague was not approved as the adviser and somebody else was. The claimant’s complaint is that Prof Andras contacted the claimants nominee to explain the situation but did not contact the claimant.[86]The claimant provided very little evidence about this allegation. In her witness statement at paragraph 42 the claimant said that she felt undermined as she was not even given the courtesy of being told about the decision.[87]The tribunal does not see how the claimant was being undermined. It seems to the tribunal that it was appropriate for Prof Andras to explain the decision not to appoint the claimants nominee to the nominee since he was the person who was directly affected. We find that was the reason why the nominee was informed rather than the claimant.[88]After he had been informed the claimant’s nominee could then have discussed the matter with the claimant if he wanted to. It seems to the tribunal that would have been more appropriate rather than Prof Andras telling the claimant as the nominee may not have wanted that. We do not consider the claimant was subject to any detriment here.[89]Allegation 2.2.12 is also undated. We understand it dates back to 2016. The allegation is that Prof Andreas and Prof Price would start the process of looking for a new PhD supervisor if a student complained about the claimant which was not the case with other PhD supervisors[90]The background to this allegation is that in 2014 a student “SM” started her PhD under the claimant’s supervision. Later, SM’s sister “HM” was also supervised by the claimant whilst working towards her own PhD.[91]It is abundantly clear that the relationship between the claimant and HM and SM became very difficult. Allegations and counter allegations were made and the working relationship became untenable.[92]In respect of SM matters came to a head in September 2016 and at that stage the claimant was removed as SM’s PhD advisor.[93]In respect of HM the claimant remained in place as her adviser but it is apparent that the relationship remained fraught. By the time HM submitted her PhD thesis in May 2017 she was refusing to communicate with the claimant and would not acknowledge her as supervisor on the thesis.[94]The claimant raised concerns about HM’s thesis: firstly that she should have been acknowledged and secondly that the thesis contained confidential information. These concerns were considered by the University. Ultimately it was concluded that it was the student’s own decision whether or not to acknowledge a supervisor and the thesis did not contain information that should be classed as confidential.[95]This did not satisfy the claimant who went so far as to allege that HM was guilty of research misconduct. As far as the University is concerned that allegation was not substantiated[96]When it was assessed (not by the claimant) criticisms were made of the thesis submitted by HM and in September 2017 she lodged a formal student complaint against the claimant. The investigation into this complaint took a long time and we accept that it would have been a stressful process for the claimant. The claimant was asked to provide information in response to the complaint in writing. Ultimately the complaint was not upheld.[97]The claimant’s own evidence made it clear that she found supervising HM and SM to be extremely difficult. For example in respect of her agreement to supervise SM the claimant described it at paragraph 41 of her witness statement as the worst decision she has made in her life.[98]The tribunal is in no doubt that the reason for the decision to replace the claimant as SM’s PhD supervisor was the complete and irretrievable breakdown in the relationship between the claimant and SM. This was explained to the claimant in emails sent at the time in particular those dated 16 September and 20 October 2016 which could be seen on page 177 and 183 of the bundle. Those emails made it clear that the claimant was not being blamed for the situation. We accept that, and in the tribunal’s view it was quite clearly a decision which was taken for the benefit of both parties. We do not consider the claimant was subject to any detriment here.[99]The claimant has not substantiated the suggestion that the process of looking for a new supervisor was taken more promptly in relation to her than it would have been for others. We accepted Prof Price’s evidence that these situations are dealt with on a case-by-case basis and in this particular case it was abundantly clear that the relationship had irreparably broken down. That was the reason why the claimant was removed as SM’s supervisor at the time she was. The same decision would have been taken at the same time if another supervisor had been in the claimant’s position.[100]Allegation 2.2.13 was also undated but it appears clear to the tribunal that it dates to 2017 and events following submission of HM’s PhD thesis. The substance of the claimant’s allegation is that the respondent did not provide support to the claimant with regards to this situation.[101]The tribunal must observe in relation to this allegation that the claimant spent quite a lot of time on questions about HM but very few questions went to the substance of the allegation which we have to consider. In particular despite prompting from the tribunal the claimant did not make it clear what support she was suggesting ought to have been provided that was not.[102]The tribunal accepted Prof Price’s evidence that she had regular discussions with the claimant about the situation to provide support and guidance. We therefore do not accept that the claimant was not supported and so the factual basis for the allegation has not been made out.[103]Prof Price also regularly discussed the situation with HM and she attempted to persuade HM to effectively soften her stance and communicate with the claimant. This was a further form of support for the claimant as this was done to try and improve the situation. Prof Price’s efforts were not successful but at the end of the day it was recognised that HM could not be forced to communicate with the claimant or to acknowledge her in her thesis and if she wanted to effectively run the risk of not taking full advice or including full acknowledgements in her thesis then that was her prerogative. As it happens it appears to the tribunal that HM ran that risk and it didn’t pay off, because ultimately criticisms were raised when she submitted her PhD thesis which might have been avoidable had she had a better working relationship with the claimant.[104]We make the following findings in relation to each of the four components of allegation 2.2.13:104.1 In respect of allegation2.2.13.1 it was not clear whether this related to HM or SM or both. In relation to SM we have already made findings as to why the claimant was removed as her PhD supervisor. It was not because of the claimant refusing to allow data in the thesis which could not be validated. It was because of the irretrievable breakdown in the working relationship, and there was no detriment to the claimant in removing her from that situation. In respect of HM the claimant was not removed as the student’s supervisor but by the time HM came to submit her thesis she was refusing to communicate with the claimant or to acknowledge the claimant as the supervisor. This meant that other staff had to step in effectively to sign off on HM’s work. This was done purely because of HM’s own decision that she did not want to communicate with the claimant or to acknowledge her. It seems that the claimant is correct in that she raised concerns about some data included in HM’s thesis and a similar concern was then raised by the external examiner, however the decision to nevertheless include that data was HM’s. There is no detriment to the claimant here – it was HM’s work and she was responsible for the data being included.104.2 In respect of allegation2.2.13.2 it is not clear what support the claimant is saying she should have been offered when HM submitted her PhD thesis and the external examiner included comments questioning why the student had included such data and suggesting that HM should acknowledge her supervisor. The tribunal has already noted that we are satisfied that Prof Price attempted to support the claimant throughout the difficult process with HM and we therefore do not consider that the factual basis for the allegation has been made out. It seems to the tribunal that what the claimant was really seeking was a finding that HM had been guilty of research misconduct as she alleged. We do not consider that that can really be seen as a form of support for the claimant. In any event we do not see how we can go behind the decision which the university took as to the thesis being HM’s own work. Such a finding would be well outside the remit of this tribunal. We do not consider the claimant was subject to any detriment here. It was HM who faced criticism, not the claimant.104.3 Allegation2.2.13.3 was that the claimant was not offered the opportunity to meet with the investigating officer who was considering the complaint raised by HM. This was accepted by the respondent. The reason for the treatment was because it was the respondent’s usual practice in respect of a student complaint for the academic to provide their response in writing. There is no evidence that the claimant was treated any differently to anybody else facing a complaint. Further, we do not consider that there was any detriment here. The claimant was able to respond to the complaint in writing and ultimately it was not upheld.104.4 During the hearing it was agreed that allegation2.2.13.4 should be amended so as to remove reference to Professors Amigoni and Wastling. Therefore what is left is a narrow issue that Prof Hoole and the HR Department failed to respond to the claimant when she raised that the investigation into HM’s complaint had caused her distress and personal injury. This was in relation to the lengthy time which it took to investigate HM’s complaint. The claimant did not lead much evidence about this allegation. She referred in her witness statement to an email which Prof Hoole sent in October 2018 chasing an update on the complaint made by HM. In his email Prof Hoole explained that the claimant had been experiencing anxiety about the outcome. In their response the complaints team asked Prof Hoole to pass on their apologies and they explained where the case was up to. In crossexamination the claimant accepted that she had received an apology but said she didn’t accept it. There is no evidence of the claimant raising other concerns with Prof Hoole or to the respondent’s HR department that were not responded to. Therefore we find that the claimant was not in fact subject to the treatment complained of. Comparators[105]The claimant relied on a number of comparators. The first group of comparators were people who were promoted to Reader and they were therefore potentially relevant to the claimant’s allegation about not being promoted that post. It is worth pointing out that promotion to Readership is not a comparative competitive process but rather candidates progressed to this next level when it was deemed they were ready.[106]The first comparator was Dr Helen Price who was promoted to Reader in April 2020. Dr Price was the only comparator relied upon from Biomedical Sciences. We consider Dr Price is not an appropriate comparator because there were material differences in the quality of her application for promotion. We should note that Dr Price is now Prof Price and that gives an indication as to the trajectory of her career and the high regard in which she is obviously held by the respondent. At the time of her readership promotion Dr Price had already applied to become a Professor but it was thought that she was not quite at the level yet to be appointed as a Professor. She was therefore appointed as a Reader but it was already obvious that she was operating at a high level. The key and obvious difference between Dr Price’s application and that of the claimant was the high research income generated by Dr Price which was in the region of 5.5 million pounds. It was clear from Prof Wastling’s evidence, and we accept, that this was an exceptional factor which made her application particularly impressive. A further material difference was that Dr Price applied under a different promotion pathway (the research pathway).[107]The claimant also relied on comparators who were not from the same academic discipline. These were: Dr Sue Hunter (medical sciences), Dr Danila Prikazchikov (mathematical sciences), Dr Sandra Woolley (computer sciences), Dr Sue Sherman (psychology), Dr Alison Pooler (health professional education), Dr Mark Lambie (clinical academic) and Dr Zoe Paskins (rheumatology clinical academic). These people were promoted to Reader in 2021. We found that the fact they were from different academic disciplines was a material difference. We accepted the respondent’s evidence that expectations for promotion vary substantially according to disciplinary norms (this is expressly stated in the respondent’s promotions criteria). Therefore it is not appropriate to make a comparison between applications in two different disciplines.[108]Furthermore only 4 of the other comparators relied upon by the claimant applied for promotion upon the same pathway as the claimant (the education and research pathway). These were Dr Hunter, Dr Prikachikov, Dr Wooley and Dr Sherman. However, unlike the claimant they were not basing their application upon excellence in education, but instead upon excellence in citizen and leadership. Professor Wastling explained the significant differences between these routes in his witness statement and we accepted his evidence. These were further material differences between the claimant and her comparators.[109]The claimant also relied on two comparators which were potentially relevant to her allegation regarding support given following student complaints. These were Dr Daniel Tongue and Dr Annette Shrive. They were not appropriate comparators because of a key material difference; no formal complaints were made regarding their PhD supervision. There was no evidence of a comparator who was in a similar situation to the one the claimant found herself in with HM and SM. That situation was highly unusual and unfortunate. Furthermore, the claimant did not substantiate the suggestion that Dr Tongue and Dr Shrive received any form of support that she didn’t and it remained unclear what support the claimant had in mind.[110]For these reasons we found that there were material differences between the claimant and the comparators she sought to rely on. The treatment of the comparators did not suggest that the claimant was treated less favourably because of race.[111]We should also mention that the claimant also asserted that at the time of her application to Reader she was the only applicant from a “BAME” background and she was the only applicant (out of 12) who was not appointed. It is not clear if that assertion has ever been substantiated. In any event it is at most simply a difference in treatment and a difference in status; it does not assist the claimant with establishing the facts from which we could conclude that unlawful discrimination has occurred. Jurisdiction[112]Allegations 2.2.1 to 2.2.6 and 2.2.11 to 2.2.13 were out of time. They were not part of any continuing act. We find it is not just and equitable to extend time. We took into account the following factors when making this decision:(i) The onus is on the claimant to show why it would be just and equitable to extend time and she has not done so.(ii) The claimant has not presented any evidence as to why she did not bring a claim earlier.(iii) There is no evidence that the claimant would have been unable to bring a claim earlier, or even that she would have found it difficult to do so.(iv) We find that there was no good reason for the claim not to have been brought in time or earlier.(v) There is no suggestion that the respondent failed to respond to requests for information. Rather the evidence indicates that the respondent was willing to engage with the claimant’s complaints.(vi) The claimant is clearly intelligent and articulate. She is obviously capable of obtaining advice and/or researching how to bring a claim and in what timeframe. We therefore consider that the claimant could and should have brought her claim within time.(vii) The delay is substantial because the claimant now wishes to complain about events going back to 2014, 2015, 2016 and 2017. As a result of the delay some of the allegations were stale even by the time the claim was submitted.(viii) There is a public interest in the enforcement of time limits in employment tribunals (this was described as “unexceptionable” in Adedeji).(ix) We accept there is a general prejudice against the respondent if we accept a claim against it out of time (i.e. the first type of prejudice identified in Miller).(x) There is evidence of the type of forensic prejudice identified in Miller. For example, Professor Hoole has now left the respondent and was unavailable as a witness.(xi) There cannot be said to be any prejudice to the claimant in these circumstances in applying the well-known rules on time limits. Conversely we consider that there is a prejudice to the respondent in hearing a claim out of time when there is no good reason to do so and they have been deprived of investigating and responding to it while matters were still fresh.(xii) We considered the claimant’s claim in its entirety in any event and we found all of the allegations would fail for the reasons we have set out.[113]The tribunal concluded that all of these relevant factors weighed against the granting of an extension. We find that there is no basis to grant an extension on just and equitable grounds. The claim was not brought within such other period as we think just and equitable. Therefore we do not have jurisdiction to consider allegations 2.2.1 to 2.2.6 and 2.2.11 to 2.2.13. Nevertheless and for completeness we have set out our findings on those allegations in any event and our conclusion below applies to all the allegations.
Conclusion
[114]We have already explained in our findings that we consider that in relation to a number of allegations the claimant was not in fact subject to the treatment complained of or if she was there was no detriment. We have also made a number of positive findings as to the reasons why the claimant was treated the way she was. None of those reasons had anything to do with race. Assessing the totality of the evidence and submissions we must further conclude that the claimant has not come close to proving facts from which we could conclude that direct discrimination or harassment has occurred. There was a striking paucity of any evidence suggesting that the claimant’s treatment was because of was related to race. We find that the claimant was not subject to any less favourable treatment because of race and she was not subject to any unwanted conduct that was related to race. The claimant was not subject to any treatment because she is a Lebanese national and of Arab ethnic origin. She would have been treated the same way if she was a different nationality and/or ethnic origin Further, there was no conduct which had the purpose or effect necessary to constitute harassment.[115]It follows that this claim must fail and be dismissed.