Ms A Begum v Lloyd’s Pharmacy Ltd and others: 1303426/2022

EMPLOYMENT TRIBUNALS

Case No 1303426/2022

Between

Ms A BegumClaimant

Lloyd’s Pharmacy Ltd and othersRespondent

Before

Employment Judge Bennett

In person for claimant

Date 24 January 2025

JUDGMENT

The claim was not presented within the applicable time limit, but it is just and equitable to extend the time limit. The claim will therefore proceed. RESERVED JUDGMENT

[1]The Claimant was a disabled person by reason of anxiety and depression from 9 December 2021.

[2]The Claimant’s claims of direct race, religious, and disability discrimination are not well founded and is dismissed.

[3]The Claimant’s claims of harassment related to race is not well founded and is distressed.

[4]The Claimant’s claims of victimisation are not well founded and is dismissed.

[5]The Claimant’s claims of protected disclosure detriment are not well founded and is dismissed.

REASONS

Issues

[1]Following the Tribunal giving the Claimant permission to amend on the morning of day 2 of the final hearing, the issues for determination were as set out below.

[1]Time limits 1.1 Whether the Claimant’s claims were presented within the applicable statutory time limit.

[2]Disability 2.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:2.1.1 Whether the Claimant had a physical or mental impairment, namely: 2.1.1.1 anxiety and depression.

2.1.2 Whether this had a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities?

2.1.3 If not:2.1.3.1 whether the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment;

2.1.3.2 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

2.1.4 Were the effects of the impairment long-term? The Tribunal will decide:2.1.4.1 did they last at least 12 months, or were they likely to last at least 12 months?

2.1.4.2 if not, were they likely to recur?

[3]Direct discrimination – Disability, Race & Religion3.1 The Claimant describes herself as: 3.1.1 British Bangladeshi and Muslim.

3.2 Did the Respondents do the following things:3.2.1 Refuse the Claimant’s annual leave request made in January or February 2021 with respect to a period leave in June 2021 (race and religion);

3.2.2 Not promote the Claimant to the supervisor role in March or April 2021 (race);

3.2.3 Fail to safely store and maintain material evidence, namely CCTV footage relating to the Claimant’s grievance about events on 3 December 2021 (disability);

3.2.4 exclude the Claimant from the team Christmas social in December 2021 (religion);

3.3 Did the Respondent’s treatment amount to a detriment?

3.4 Was that less favourable treatment? The Claimant relies upon real comparators to the following extent: Leave request – a female colleague, first name Billie; Supervisor promotion – the Third Respondent; Christmas social exclusion – a male colleague, first name Jamal.

3.5 If so, was it because of disability, race or religion?

[4]Harassment – Race4.1 Did the Respondent do the following things:4.1.1 The Third Respondent physically attack the Claimant on 3

4.1.2 The Second Respondent fail to assist the Claimant on 3 December 2021 during the attack by the Third Respondent.

4.2 If so, was that unwanted conduct?

4.3 Did it relate to race.

4.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

4.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[5]Victimisation5.1 Did the Claimant do a protected act as follows:5.1.1 Email to the Respondent’s compliance department on 25 December 2020;

5.1.2 Email to the Respondent’s compliance department on 7 February 2021;

5.2 Did the Respondent believe that the Claimant had done or might do a protected act:

5.3 Did the Respondent do the following things:5.3.1 Being denied training and teaching in February 2021;

5.3.2 Being consistently placed on performance reviews from February 2021.

5.3.3 Not promoting the Claimant to the supervisor role in March or April 2021;

5.3.4 Being forced to work additional hours in May 2021;

5.3.5 Removal of agreed holiday leave in June 2021;

5.3.6 Not being included in the work Christmas event in

5.4 By doing so, did it subject the Claimant to detriment?

5.5 If so, was it because the Claimant did a protected act?

5.6 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[6]Protected disclosure6.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: 6.1.1 What did the Claimant say or write? When? To whom? The Claimant says disclosures were made on these occasions:

6.1.1.1 Email to the Respondent’s compliance department on 25 December 2020;

6.1.1.2 Email to the Respondent’s compliance department on 7 February 2021;

6.2 Did this disclose information?

6.3 Did the Claimant believe the disclosure of information was made in the public interest?

6.4 Was that belief reasonable?

6.5 Did the Claimant believe it tended to show that:6.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;

6.5.2 the health or safety of any individual had been, was being or was likely to be endangered;

6.6 Was that belief reasonable?

6.7 If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer.

[7]Detriment (Employment Rights Act 1996 section 48)7.1 Did the Respondent do the following things:7.1.1 Being denied training and teaching in February 2021;

7.1.2 Being consistently placed on performance reviews from February 2021.

7.1.3 Not promoting the Claimant to the supervisor role in March or April 2021;

7.1.4 Being forced to work additional hours in May 2021;

7.1.5 Removal of agreed holiday leave in June 2021;

7.1.6 Not being included in the work Christmas event in

7.2 By doing so, did it subject the Claimant to detriment?

7.3 If so, was it done on the ground that the Claimant had made a protected disclosure? Evidence 2. We received a bundle of documents running to page 691. We also admitted additional documents provided during the hearing. 3. We were provided with witness statements and heard oral evidence (save where indicated otherwise) as below:

3.1 Aysha Begum, the Claimant;

3.2 Kathryn Thomson (not called);

3.3 Sheetal Patel, Pharmacist and the Second Respondent;

3.4 Bharti Patel, Accredited Checking Technician;

3.5 Ameena Malique (not called);

3.6 Manraj Mander (not called);

3.7 Jaspreet Kaur, Sales Assistant and the Third Respondent. Facts 4. We were satisfied that all witnesses gave an honest account, based on their recollection of events. We did, however, have some doubts about reliability. The Claimant's witness statement included very detailed accounts of conversations which had taken place many years before, including what were said to be the exact words spoken in quotation marks. The Claimant said she had not made any record of what was said at the time, but was now able to recall the words because of how upsetting they had been. Whilst we do not doubt her sincerity, we do not share the Claimant’s confidence in her ability to recall these conversations accurately. We also noted the contrast between the Claimant’s ability to recollect the conversations she wished to rely upon in great detail, but in other important respects her memory often failed her. We had similar concerns about the evidence of Mrs Kaur, who could be adamant on some points of her evidence and yet unable to recall other significant details that might have been expected to be memorable. The witness in whom we felt able to place the most confidence was Mrs Patel. In many important respects, Mrs Patel was supported by documents she wrote at the time. Furthermore, unlike the other witnesses from whom we heard, on being challenged Mrs Patel was willing to make appropriate concessions and in one matter, agreed she may have been in error. Nor did she have a tendency to remember helpful details and forget unhelpful ones. This approach to giving evidence about events which occurred many years ago, was realistic and we found indicative of Mrs Patel’s reliability. 5. The Claimant started her employment with the First Respondent in May 2019. She was employed as a Sales Assistant in the Respondent’s pharmacy. She reported to the Second Respondent, Sheetal Patel, who was her line manager and the store’s Pharmacist. The team at this pharmacy included Bharti Patel, Ameena Malique, Kathryn Thompson and others. This small workforce was diverse by reference to race and religion. 6. At the outset and for a considerable period of time thereafter, there were very good relations between the Claimant, Mrs Patel and her other colleagues. This included the exchange of birthday greetings, cards, flowers and other gifts. 7. Unfortunately, the Claimant had a tendency to struggle with timekeeping and attendance, which caused difficulties, given the small workforce. The first such incident to which we will refer, was on 17 October 2019 when Mrs Patel sent WhatsApp messages to the Claimant at 8:36 am and 9:26 am, asking whether the Claimant was okay and on her way. The Claimant replied at 9:51 am, saying she had woken up late and was walking to the bus stop.

Facts

[8]On 1 November 2019, Mrs Patel conducted an assessment of the Claimant as part of the Respondent’s “Annual Contribution Dialogue”. Various factors were marked against scores of inconsistent, good and excellent. The Claimant received, “good” scores on all the criteria. The Claimant included her own development activities, writing:• continue checking online modules

• improving my developments + knowledge to HCA course

[9]The Claimant was expected to complete the First Respondent’s training, firstly qualifying as an HCA and then HCP. The terminology used by the witnesses and in the documentary evidence was somewhat inconsistent as to job titles. In substance, however, the Claimant was expected to complete Books A to D (covering various general tasks as a sales assistant in the pharmacy) in order to become an HCA and then Book E (concerned with working in the dispensary) by virtue of which she would be an HCP.

[10]In the November 2019 assessment, Mrs Patel said she was: really pleased with Aysha’s progress since May, she just needs to speed up with tasks + manage her time better. Good progress with flu jabs/EPS – asking all pts. […] HCP course – aim to be ready to start February 2020

[11]As can be seen from this note, Mrs Patel expected the Claimant to complete Books A to D by February, so that she would then be ready to start Book E. Mrs Patel supported the Claimant’s development in the same way she did with other new recruits. This included on-the-job training and answering questions. The Claimant also learned by working alongside more experienced colleagues.

[12]In December 2019, the staff organised a Christmas meal at Pizza Express. Both Mrs Patel and the Claimant attended this.

[13]Unfortunately, the Claimant’s progress with the training was slow. On 13 February 2020, the Respondent's L&D Manager, Ms Haycock, wrote to Mrs Patel to explain the Claimant was failing to make sufficient progress: It has been identified that Aysha is not progressing through the Pharmacy Assistant Course as anticipated and is unlikely to complete by the required deadline. A colleague has a total of nine months to complete the course, after which they are at risk of being discontinued from the course. If they require any additional support to complete the course, please get in touch with us to discuss further.

[14]Whilst there was some debate during the course of the hearing in the Tribunal about whether, according to the First Respondent’s policy documents, a new employee had 9 months or 12 months to complete this course, it is plain that as at February 2020 the Learning and Development Manager had come to the conclusion the Claimant’s progress was too slow and she had advised Mrs Patel of this.

[15]The Claimant had taken on some overtime hours, for which Mrs Patel was very grateful. Mrs Patel was, however, also concerned to avoid the Claimant taking on too much and wrote to her saying: Aysha I was going to say to you today, if at any point the extra hours become too much for you just cut down. It’s not fair on you when you've got things to plan and organise. I know it’s really stressful and you've done really well coping in the shop on your own. I'm going to make sure Noshin and Jamaal know how hard you’ve worked and I really appreciate all the overtime you've done so thank you :)

[16]On 4 March 2020, the Claimant was late for work again. She sent a WhatsApp message to Mrs Patel at 8:01 am saying she had only just woken up. Her message also included the proposition that it was the “first time this happened”; which it was not.

[17]By March 2020, the Covid pandemic was underway and lockdown began. The Claimant had a period of absence with Covid symptoms for most of April 2020. In light of the circumstances, Mrs Patel asked the training provider to pause the Claimant’s course. She thought it was appropriate to do this in order to give the Claimant time and space. Mrs Patel contacted the Claimant, explained what she had done and asked her to say when she was ready to restart the training course.

[18]On 27 April 2020, Mrs Patel sent a WhatsApp message to the Claimant at 10:04 am, asking whether she was coming to work and saying if not, she would be reported as “AWOL”. The Claimant replied to say she was unwell and would be in work the following day, when she was due to open the store. In not contacting her manager, the Claimant had failed to comply with the Respondent’s sickness absence reporting procedure.

[19]On 6 May 2020, Mrs Patel conducted a recorded conversation with the Claimant, with respect to 27 April 2020. This was not a disciplinary sanction. It was, however, a formal record of their conversation. The intention was to understand why the Claimant had failed to follow the appropriate procedure and support her to avoid doing so in the future. Mrs Patel explained the reporting policy again, printed off a copy, requiring the Claimant to read and sign it. The Claimant was warned that repetition might result in disciplinary action. The record of this conversation included space for the Claimant’s comments (e.g. to dispute the need for the conversation or provide mitigation) but she made none. Both Mrs Patel and the Claimant signed the record as being accurate.

[20]On 18 June 2020, the Claimant was late for work again, saying she had woken up late.

[21]On 8 July 2020, the Claimant was late for work again, saying this was because of the time she had spent in Tesco before coming to work.

[22]On 10 July 2020, the Claimant was late for work again, saying she had woken up late.

[23]On 22 July 2020, there appears to have been some disagreement between Claimant and Ms Thompson. The Claimant sent a WhatsApp message to Mrs Patel saying she was offended at being described as “bossy”. Mrs Patel replied, telling the Claimant not to worry, another employee was stirring things up and she would sort it out. Mrs Patel was successful in this regard, as confirmed by the witness statement of Ms Thompson, provided on the Claimant's behalf.

[24]On 19 August 2020, the Claimant and Mrs Patel had a discussion by WhatsApp about Ms Thompson having given notice. Mrs Patel said she would be putting a vacancy online for the vacant position but asked the Claimant whether she would be interested in doing any more hours. The Claimant replied to say that would be too much, given her other job in Halfords. Mrs Patel replied: Yeah I thought so but just thought I’d ask!

[25]Having said she wasn’t interested in the extra hours, the Claimant then changed her mind. On 7 September 2020, she sent a WhatsApp message to Mrs Patel requesting to be given the new 35-hour contract. She proposed how those hours could be added to her existing work pattern. Miss Mrs Patel agreed.

[26]On 12 October 2020, there was an unfortunate incident when the Claimant gave the wrong medication bag to a patient. She sent a WhatsApp message to Mrs Patel, explaining this on the basis that two different patients shared the same surname. Fortunately, the patient’s mother noticed the error and returned to the pharmacy. Whilst no harm was done, the potential for this was obvious in such circumstances.

[27]Also in October 2020, a new employee started, the Third Respondent, Mrs Kaur.

[28]Quite soon after starting, on 4 November 2020, Mrs Kaur applied to Mrs Patel for a day of annual leave the following year, on 22 July 2021. This was for her daughter’s birthday. Mrs Kaur completed the relevant annual leave request form and Mrs Patel signed it. There was also a practice in the pharmacy of recording holiday dates on a calendar in the dispensary. This enabled colleagues to check before requesting leave to see whether someone else had already booked the dates. Because of the small workforce at this pharmacy, it was difficult for more than one employee to be offered leave at the same time. The 2021 calendar was not yet in the dispensary and so Mrs Kaur’s day of leave was not recorded there. This led to an unfortunate clash in 2021.

[29]A lot of time was spent during the hearing in questions to Mrs Patel and Mrs Kaur about whether the request form included in the hearing bundle for Mrs Kaur’s November 2020 leave request was genuine or not. We were somewhat troubled by this document. The Claimant said the form must have been created retrospectively in 2021, because the date of the request being made was entered as “4/11/21” and opposed to “4/11/20”. This seemed a reasonable point for her to take. On balance, however, we decided the form was genuine and completed in 2020. It would be serious misconduct for either Mrs Kaur or Mrs Patel to have falsified this document. Indeed, in Mrs Patel’s case, taking such a step could imperil her professional registration. This would seem an unlikely step for Mrs Patel to take, simply to accommodate a member of staff who had forgotten to make a timely request for a day’s leave. The leave request form requires the employee to write 3 dates in each row: the date of the request, the first day of leave and the last day of leave. We think it is likely the request was made in 2020 but Mrs Kaur wrote 2021 in the first box because she had to write 2021 in the two other boxes and was thinking of that year.

[30]On 4 December 2020, at the Claimant’s request, Mrs Patel wrote to the First Respondent’s HR department to find out whether the Claimant had exhausted her entitlement to Company sick pay (in addition to her April 2020 sick leave, there had been other shorter periods).

[31]The Claimant failed to attend work on 10 and 11 December 2020. Mrs Patel phoned the Claimant and left messages but received no response. She conducted a further recorded conversation with the Claimant on 16 December 2020. This included: not following absence policy as a call to store 15 mins before shift started. Policy is to call an hour before shift starts. Aysha had a copy of policy previously (see previous ROC). Also not confirming when back to work. Needs to keep store up to date but calls + voicemails were ignored on Thursday 10th + Friday 11th. If another case of sickness in next six months - then possibly investigation/disciplinary.

[32]Mrs Patel gave the Claimant a further copy of the sickness absence policy and asked her to take it home and read it. The Claimant did not challenge what was said to her or put forward any mitigation.

[33]On 25 December 2020, the Claimant sent an email to the Respondent’s compliance department: I have seen and heard a lot of things that doesn't seem right and hasn't been for a few months. I am not sure who to tell or who to speak to as the atmosphere at the business is not great or professional. I want to speak up to help protect the business and the customers and the patients and all employees. Today is Christmas day and the only day I have of work at the pharmacy and I have not slept properly it's on my mind and if I do not speak up and do the right thing, it’s going to get worse when it becomes to late. I want my statement to be confidential but I am afraid if I speak up it's going to effect the relationship of me and the person I want to speak up about who is doing wrong, I've shown signs of not agreeing with what this person is doing to customers and patients and employees and myself but things seem to be getting worse and I feel helpless. Waiting for a reply so I can speak up, I've seen the poster in the consultation room and I've taken a picture and it's taken me a lot of time and courage to write this finally.

[34]Our conclusion is that at least part of the reason why the Claimant wrote this email (whether consciously or unconsciously) is because she felt under pressure at work because of the various conduct or performance issues that had been raised with her, around lateness and failing to follow the sickness absence reporting procedure. As to the content of her email, whilst the Claimant said she had concerns she wished to raise confidentially, she did not say what these concerns were or identify the person about whom she was concerned. Unfortunately, the Respondent’s compliance department does not appear to have noticed this email. As a result, the Claimant did not get any response.

[35]On 17 January 2021, the Claimant asked Mrs Patel by WhatsApp for a day off work the following week. Mrs Patel was happy to agree the request but asked the Claimant to check as she thought that Mrs Kaur may already have booked off the Thursday.

[36]On 19 January 2021, the Claimant asked for some time off work the following day by WhatsApp. Mrs Patel agreed.

[37]On 2 February 2021, Claimant requested annual leave between 20 to 23 July 2021. On this occasion, the Claimant made her request in person rather than by WhatsApp. Mrs Patel said as long as no-one else had booked off those days that was fine. The Claimant said she had checked and proceeded to write the leave down on the calendar. Unfortunately, one of those days was the date Mrs Kaur had booked at the start of her employment for her daughter’s birthday, which had not found its way onto the dispensary calendar.

[38]On or about 3 February 2021, the Claimant spoke to Mrs Patel about restarting the training course which had been paused in March 2020. Mrs Patel was happy to support this. A learning contract was drawn up. This included arrangements to go through the Claimant’s work books, protected learning time, a review meeting and the Book A exam on 4 March 2021. Mrs Patel put this into effect. There was discussion of the workbooks. The Claimant received ongoing on-the-job training.

[39]On 5 February 2021, the pharmacy received a very large mistaken order for medication. Unsurprisingly, there was some discussion amongst the staff about how this had happened. Mrs Patel understood the Claimant to be blaming Mrs Kaur for what had occurred. Mrs Patel said it was unfair for the Claimant to blame Mrs Kaur. The Claimant perceived this as an attack on her and accused Mrs Patel of targeting and bullying her. Mrs Patel was upset by these comments, not least because the Claimant had said something of the same sort in the recent past. Mrs Patel felt this was affecting her ability to manage the Claimant. Mrs Patel sent a message to the first Respondent’s Regional Manager, Mr Mander, shortly thereafter, telling him what had happened: Hi Manni, I wanted to find out if we can have a chat some point on Monday? I just wanted your advice. So Aysha this afternoon has accused me of bullying/targeting her. I can't manage her and pull her up on things as if she doesn't agree she then just says I'm targeting her. This is the second time now and it's really upset me today. This afternoon we received a huge meds order in error and she was quick to blame Jaspreet for this when in fact it was an error after checking with AAH. We're meant to be a team and be working together and when I said its not fair to just accuse somebody like this she twisted it around to say I'm targeting her recently and how I was having a go at her. She's picked on Jaspreet in the past and I don't see what her problem is. If I mention tasks are taking too long to complete she takes it the wrong way. I don't know how I'm supposed to manage her like this when I'm worrying how she's going to take it. I just want to resolve this as I feel like it's affecting me being able to do my job as her manager

[40]On 7 February 2021, the Claimant wrote to the first Respondent’s compliance department again. On this occasion, she set out various specific concerns in great detail and also named Mrs Patel as the person she was complaining about. The Claimant complained of matters relating to the breach of customer or staff confidentiality, race discrimination against a colleague, false information being given to a vulnerable customer and her own mistreatment at the hands of Mrs Patel, which she characterised as bullying, victimisation and abuse. Whilst we accept the Claimant was genuinely concerned about various matters, it is unnecessary for us to make findings of fact with respect to the accuracy of her long account and we do not do so. We do, however, find that at least part of the reason for the Claimant's email was her recent exchange with Mrs Kaur and Mrs Patel following the erroneous delivery.

[41]The Respondent’s compliance department responded to the Claimant on 8 February 2021: Thank you very much for your email. Unfortunately the email you sent to us on the 25th December went into our junk email box and although we sent a response to you on the 18th January, it seems that you may not have received this. Your email has now been received and I will discuss this with the relevant department, ensuring that the matter is kept confidential. You may receive and email for further information in due course.

[42]On 17 February 2021, Mrs Patel sent a WhatsApp message to Mr Mander, asking to speak with him about the Claimant. Following their conversation, Mrs Patel spoke with the Claimant and then sent an update to Mr Mander: Hi Manni, so I told Aysha we had a chat today and basically said if she wants me to pass her number across to you for a chat I can do. I also offered to give your number to her but she hasn't said anything. I didn't want to just give her number out and then later she kicks off saying it was done without her consent. I think I'm just being paranoid and extra cautious with her but she hasn't told me what she wants to do so I've left it at that. She's been given the option and Bharti heard the conversation too so I'm not going to say anything else about it. Just thought I'd let you know

[43]The Claimant's email to compliance was referred to Mr Mander. He did not share what he knew about this with Mrs Patel or anyone else at the store.

[44]The Claimant points to the WhatsApp message of 17 February 2021 as evidence that Mrs Patel knew of the concerns she had raised with the First Respondent’s Compliance Department. We are satisfied that is not the case. Mrs Patel sought to speak with Mr Mander because of what had been said to her directly by the Claimant. Mrs Patel was looking for assistance in managing the Claimant’s workplace behaviour.

[45]Further to the referral he had received from the First Respondent’s HR Department and we think also prompted by the recent approach coming in the opposite direction from Mrs Patel, Mr Mander wrote to the Claimant on 18 February 2021. He said that the Claimant’s email had been passed to him and he wished to discuss its contents with her. He stated expressly: I would like to assure you that this email remains confidential and at present Sheetal is not aware you have contacted HR. However to progress with matters further, I would have to make her aware of the allegations you have raised.

[46]There were a number of unsuccessful attempts to arrange a meeting or discussion between the Claimant and Mr Mander in February and March. Whilst the Claimant spoke with Mr Mander in April, this was not a substantive discussion and her concerns remained unresolved.

[47]On 1 April 2021, there was another incident of the Claimant giving out the wrong prescription bag. Mrs Patel conducted a recorded conversation with the Claimant on 6 April 2021. Although not otherwise documented, it is apparent from the record of this discussion that this was not the second but rather the third occasion when the Claimant had given out the wrong medication. Mrs Patel reiterated that the Claimant must make sure this doesn’t happen again as a patient could suffer harm if they take the wrong medication. Mrs Patel said that she would monitor the Claimant when giving out prescription bags, listening to the discussion with the patient. She required the Claimant to re-read the First Respondent’s operating procedure in this regard. The Claimant made no comment in response to this concern.

[48]Unfortunately, not long after this on 15 April 2021, the Claimant did the same thing again, handing out the wrong prescription medication. Mrs Patel held a recorded conversation with the Claimant on 16 April 2021. She referred to their previous recorded conversations and said this was happening “too often”. The Claimant was again required to read the procedure. Mrs Patel said it was a safety concern as actions of this sort could seriously harm a patient. As a measure to support the Claimant, Mrs Patel directed that in future when giving prescription bags to patients, she had to show them first to another member of staff. On this occasion, the Claimant did make comments. She said that she was feeling stressed and there was discussion about her reducing her hours. The Claimant wrote in the form that she agreed with the measure of “extra rechecking support before handing out bag ”. Mrs Patel drew up a specific list of additional steps for the Claimant to take, which both she and the Claimant signed and dated.

[49]On 19 April 2021, the Claimant made a flexible working request. She sought to reduce her hours, starting on 17 May 2021, from 5 days per week to 2. Mrs Patel spoke to the Claimant about her application. The Claimant’s explanation for this application was that she wished to achieve a better work life balance and maintain her mental health. The Claimant spoke in general terms. She did not say anything about anxiety or depression. Mrs Patel agreed to this change.

[50]On 26 April 2021, Mrs Patel introduced a performance improvement plan (“PIP”) for the Claimant. This addressed the approach to be taken with respect to handing out prescriptions and time management. The PIP specified the objectives, the support to be provided and a review period. Both the Claimant and Mrs Patel signed this. Whilst the introduction of a PIP will rarely be welcomed by the employee who is subject to it, we are satisfied that this was intended as a supportive measure, specifying what was required of the Claimant and offering her support to achieve that.

[51]Subsequently, the Claimant and Mrs Patel had a further discussion about the reduction of her hours and they agreed to put the start of this back to the week commencing 31 May 2021, which would coincide with the Respondent’s pay periods.

[52]On 19 May 2021, Mrs Patel had another recorded conversation with the Claimant. Specific tasks in connection with a sales promotion had been allocated to the Claimant which were not completed in time for this to begin. The Claimant said she did not know when the promotion was due to go live.

[53]Late in the evening of 19 May 2021, the Claimant sent a lengthy email to Mr Mander. Once again, we note the proximity of her email and a recent workplace event. We find that at least part of the reason for this email, was the recorded conversation about the sales promotion. The Claimant complained of various matters, which she said were “bullying”. The Claimant also said she had only sought to reduce her hours because of the treatment she was receiving. In connection with her reduced hours, the Claimant referred to the start of this variation being put back: I came in on Monday 17th May billy was back and I knew I had to still work because thats what sheetal wanted so I told sheetal again I am only doing this last 2 weeks my stress is not getting any better I want my reduced hours that was accepted to commence from End of May bank holiday then as i will do two more extra weeks she pressured me to do. I know she will not let me have my new hours anytime soon.

[54]It is unclear whether Mrs Patel asked the Claimant to consider putting back the start of her new working hours to 31 May 2021 or whether the Claimant assumed this is what Mrs Patel wanted, perhaps because of staffing issues. In any event, we are satisfied the Claimant was not put under any undue pressure by Mrs Patel. Throughout her employment, Mrs Patel adopted a very flexible approach to the Claimant’s hours, allowing her to adjust these up and down, agreeing to leave at short notice, offering overtime and taking no issue where the Claimant did not wish to do it. Mrs Patel’s concern was about timekeeping and sickness absence reporting, which is an entirely different matter.

[55]On this occasion, the Claimant and Mr Mander spoke on the phone a few days after their message exchange. This discussion did not resolve the Claimant’s concerns.

[56]In June 2021, Mrs Kaur approached Mrs Patel and said she would be interested in the role of supervisor. There had been a supervisor in the store previously but no-one in that position for some time. Mrs Patel was supportive of the idea and said she would suggest it to Mr Mander, who agreed. The staff, including the Claimant, were told of Mrs Kaur becoming the supervisor

[57]Mrs Kaur carried out supervisor role for a few days (in effect a trial period) before deciding she did not want it. One of the factors which influenced Mrs Kaur’s decision was a concern about supervising the Claimant, which she thought would be difficult and damaging to their relationship. Mrs Patel advised Mr Mander of Mrs Kaur’s decision in a message on 11 June 2021.

[58]Despite being aware of Mrs Kaur trying this new role and, therefore, the potential availability of a supervisor position, the Claimant expressed no interest in it. Given the various conduct or performance matters with which the Claimant had struggled, her recent PIP and now working only two days a week, notwithstanding her Tribunal claim in this regard, it is difficult to see how the Claimant could, realistically, have been considered for a supervisor position at this time even if she had been interested.

[59]Also in June 2021, the Claimant was told by a colleague that the dispensary calendar showing annual leave the Claimant had recorded in July 2021, had been crossed through, with Mrs Kaur’s name written in. The Claimant checked on the First Respondent's new mobile phone app and found she was not showing as on leave in July. Beyond writing her name on the dispensary calendar, the Claimant had neither completed the annual leave request form nor applied for leave by way of the app. The Claimant raised this with Mrs Patel when she next went into work, who advised that Mrs Kaur had booked this first. The Claimant had by then discovered her own mistake, namely the days she had recorded on the calendar to take off work for Eid, were not the correct dates. The Claimant was much less concerned about the matter then than she is now.

[60]On 16 June 2021, the Claimant wrote at length to the Respondent’s HR department: I had raised a urgent concern to the UK compliance department from the see it, say it, speak up and speak out poster at work last year December 2020. I had a reply from the UK compliance on January 2021 and they've also forwarded my email to the employee relation department for my extra support. I was then contacted by the employee relation quite quick and i was given the option of forwarding my email to a Regional manager or the Area manager. I’ve chosen my Area Manager Mander Manraj who emailed me on Febuary 2021 to say he has read my concern that was passed over to him from employee relation HR and I was told he would investigate and keep things confidential and that he would call me. I waited couple times had no calls on dates he said he would but things were mentioned to my manager Sheetal Patel as she hinted out things to me at work that only Manraj would know one of them was the bullying. I feel like he has not taken me seriously or sorted anything out for me. Mander Manraj has been into my branch a couple of times after and he has not spoken to me about my email his read. Third time he came in and sheetal Patel my Pharmacist/Manger had a conversation with him of me wanting to reduce my hours due to stress Manraj knew why I was reducing my hours no conversation was made with me about the concern his read on febuary 2021 . I had to email Manraj again as things were getting worse on May 19th. Febuary to now June 5 months its dragged on. I also messaged him the same message to his number. Manraj then replied his read both my emails and messages, I managed to call Manraj a week after when he told me to call him we had a quick chat Manraj said what would I like him to do and I was clueless to what to say as I thought everything was mentioned in email. At the end he set 2 options he would investigate it all and have recorded witness for me and sheetal in person or separate and that he would be coming into branch the following week he did not come in on May 2021 had no contact or response about it or any update but again sheetal patel hinted that conversation to me again last week on 10/06/2021 that I had with Manraj on June 2021 it seems my manager Sheetal Patel knows everything but I do not know anything and no one asked if I'm okay or if things were sorted. Sheetal Patel said to me about the course that I complained about on May 2021 to manraj she said it's best if I do not continue with that course because the 6 months duration was coming close August and I won't finish it on time and I would have to stay as a sales assistant which means I would be untrained counter staff I did not know how to feel my complaints are been mentioned to sheetal and not back to me about the outcome and I am treated unfairly every day at work nothing changes. I feel I am been managed out the business with plans by my manager sheetal patel things are put in wrong places at work so it looks like I'm making mistakes, she told me not to do the course and to stay as a normal sales assistant without counter medicine qualification then I said I do not see how it works were working with medicines not general height street retail then sheetal Patel said if I had any problem with that I have to speak to Manraj but I've contacted the course provider and they said I should absolute continue it and the course is not 6months the duration is 9 months and 3 months extension can be added so I am not sure why the 6 months was the end of it to Sheetal patel. There has always been a problem with my course. […]

[61]Whilst the Claimant suggested that Mr Mander must have told Mrs Patel about her email to the compliance department in February, because she had said something about “bullying”, we find this was not the case. Mrs Patel knew about a bullying allegation because the Claimant had used that language herself when making a complaint directly to Mrs Patel on 5 February 2021. Separately, Mrs Kaur was aware of the Claimant's concerns around the HCA course, which they had also discussed on 5 February 2021, two days before the Claimant's email to compliance, which included a reference to training.

[62]The Claimant received a response from HR on 17 June 2021, confirming receipt of her email, which was to be treated as a formal grievance under the First Respondent’s procedure. Arrangements were made for the Claimant to attend a grievance meeting.

[63]The Claimant attended her grievance meeting by Teams. The Healthcare Operation Manager, Mr Sandhu, was investigating the matter. He was accompanied by a notetaker. The Claimant explained her concerns, which included many of the same points as had been raised by her with the First Respondent’s Compliance Department in February.

[64]Notwithstanding the various issues being raised either with or by the Claimant, she made progress on her training course, successfully completing Books A to D by 29 July 2021. A certificate confirming this was provided to the Claimant.

[65]We do not accept that Mrs Patel stopped the Claimant from continuing to take the Book E dispensing course. It is quite clear from the documentary evidence that the Claimant made this decision, it having been suggested by Mr Sandhu that she pause her training whilst the grievance process was underway.

[66]On 27 August 2021, Mrs Patel was on annual leave and the Claimant was working alongside the relief pharmacist, Ms Shafia. During the course of the afternoon, the Claimant reported a mishap which had soiled her clothes. She asked to go home to change. This was agreed on the basis she would return within the hour. The Claimant did not return. Nor did she respond to phone calls from her colleague, Bharti Patel. This caused difficulty with the store, because the Claimant had been due to lock-up. As a result, Bharti Patel (who had been called out at 2 am the previous morning, following a break-in) had to stay later at work than intended, until 6 pm rather than 4 pm, waiting for Mrs Kaur to bring in her set of keys. Mrs Patel discovered what had happened when she received a phone call from Bharti Patel, who was in tears. Mrs Patel wrote to Mr Mander about this matter. She also noted this incident had coincided with a period of leave the Claimant had sought at short notice, which had not been allowed.

[67]A recorded conversation was held with the Claimant on 3 September 2021, with respect to this incident. A considerable amount of time was spent during the hearing on the Claimant’s challenge to the note of this recorded conversation. Whilst the Claimant took no issue with the substance of the record, she said it was Mrs Patel who had conducted the conversation, notwithstanding it appeared to have been signed by Ms Shafia. Mrs Patel had no recollection of holding this conversation and we think it more likely, Ms Shafia did so, either because she was working as relief pharmacist that day or because she came in specifically to hold the conversation. We think it most unlikely Mrs Patel would have discussed this matter with the Claimant and forgotten, as it was clearly a matter of considerable concern to her. Furthermore, no reason has been advanced for Mrs Patel to deny holding the conversation, if she did. Once again, the substance of the record is not disputed by the Claimant. Whilst in these proceedings the Claimant challenges the necessity for such a conversation, it is clear she did not do so at the time as the box for her comments was left blank, notwithstanding she also signed and dated it.

[68]After returning from her annual leave, Mrs Patel was notified that Mr Sandhu would be attending at her store to carry out an interview in connection with the Claimant’s grievance. This was the first time Mrs Patel became aware of the Claimant raising any concerns about her, other than when she had done so directly.

[69]On 10 September 2021, the Claimant wrote to the Respondent’s Learning and Development Unit requesting a copy of her certificate for Books A to D. Notably, her email includes: The employee relation and manager who held the meeting with me said to stop the last course until my grieving is investigated as it would cause me further stress just informing you my last course is postponed.

[70]On 16 September 2021, wrote to the Claimant with the outcome of her grievance. Mr Sandhu partially upheld one of her complaints, namely that Mr Mander had failed to resolve the concerns she had raised earlier in the year. Beyond that, however, the Claimant’s complaints were not upheld. Mr Sandhu provided his reasons over three pages, in a very small font.

[71]On 28 September 2021, the Claimant appealed against the outcome of her grievance. On 11 October 2021, the Claimant sent an email seeking to add further grievances to her appeal, this included the issue with annual leave in July 2021.

[72]Mr Nawaz, the Respondent’s Regional Manager, was tasked with hearing the appeal. He conducted interviews with the Claimant, Mrs Patel and others.

[73]Mr Nawaz wrote to the Claimant with the outcome of her appeal on 24 November 2021. He did consider the additional matters the Claimant complained about, which had occurred after the original grievance. Mr Nawaz did not allow the appeal, although he did make various recommendations for measures in the workplace, to include: 1. All team members are reminded of the correct GDPR procedures and ensure these are followed 2. All colleagues keep conversations to a professional nature 3. Amendment to the cleaning rota, to include a back up plan if someone is off, outside areas to be included and bins 4. If pick up with the team and if certain items are out of stock, that all colleagues are aware of where to direct theses patients to, i.e. needle exchange customers must be directed to the closest pharmacy who offers this service. 5. A facilitated conversation be had to ensure a conducive and professional working relationship with all colleagues within the branch moving forward. This is optional and must be agreed by all parties, however I strongly encourage this as part of my outcome.

[74]Immediately following receipt of the appeal outcome, in an email sent the same day, the Claimant requested a transfer away from her current branch to move to a new location.

[75]At the end of November or beginning of December 2021, there was discussion about organising a Christmas meal during a team huddle. The Claimant was present. A notice was put on the dispensary door, inviting staff to indicate if they would be interested in attending this meal and if so, what dates would suit them. The Claimant did not express any interest or put her details in the notice. No Christmas meal took place.

[76]On 3 December 2021, the Claimant intervened when Mrs Kaur was dealing with a customer. The Claimant believed Mrs Kaur was mistaken in what she was saying to this person about their medication. Whilst the Claimant thought she was doing the right thing, Mrs Kaur did not take kindly to this intervention. Thereafter, there was ill feeling between them. A short time later, they had an argument. This occurred as the Claimant was entering the dispensary and Mrs Kaur was attempting to leave it, which meant both of them passing through a narrow opening. In the course of doing so, it is likely there was some very minor and entirely accidental physical contact between the Claimant and a box being carried by Mr Kaur. It is certainly not the case that Mrs Kaur “struck” the Claimant with the box. The resulting raised voices drew the attention of Mrs Patel, who herself came into the dispensary and stood between the two protagonists, seeking to calm the situation.

[77]The Claimant took an early lunch break and did so in her car. She called Mr Mander, who said he had just heard about this matter from Mrs Patel. The Claimant said she wanted him to obtain the CCTV footage. There are various cameras in the store and the footage is overwritten after 30 days. The Claimant wished to preserve this evidence and use it against Mrs Kaur. Thereafter, the Claimant told Mrs Patel she could not work the rest of the day and was sent home. Having been given permission to leave, the Claimant then returned a short time later and accused Mrs Kaur of taking her bank card. This card was discovered upstairs, where the Claimant had left it.

[78]On 4 December 2021, the Claimant made a suicide attempt. On 9 December 2021, the Claimant was diagnosed as suffering with anxiety and depression, assessed as severe. The Claimant remained on sick leave with this illness until her employment terminated. During this time there were meetings for the purposes of the Claimant’s welfare and for attendance management.

[79]Mr Mander was tasked with investigating the 3 December incident. As part of this, he made a recording of the CCTV using his mobile phone. Mrs Patel and Mr Mander were of the view that nothing of use could be seen on the CCTV. Nonetheless, they both recognised it was important to retain this, even if only to be able to show that the CCTV did not assist.

[80]Unfortunately, in the early part of 2022, Mr Mander decided to leave his employment. Despite Mrs Patel and the Claimant both having expressly reminded him (in separate WhatsApp messages) of the need to ensure that the recording of the CCTV on his phone was provided to the First Respondent, it does not appear he did this before leaving. Nor did Mr Mander, make much other progress with respect to this investigation. This resulted in a considerable delay.

[81]Mrs Patel exchanged messages with the First Respondent’s HR Department on 13 May 2022: Morning Sheetal - yes well done for getting it done and documenting properly, have forwarded to Gemma our HR lady (Currently out of office until next week though) but copied in her colleague Sarah, keen to get the ball rolling but a shame that phone footage is lost. Aysha mentioned previous manager had a recording, did she mean manni? Hi Dan, yes she means Manni. He recorded the CCTV on his phone but Aysha said he then burnt it onto CD. Before he left I did ask what would happen with the footage but had no response

[82]Following the recruitment of a replacement Regional Manager, In August 2022, the Claimant was invited to an investigatory meeting, which she attended. Statements were also obtained from Mrs Patel and others.

[83]On 1 September 2022, Mr Gibson, wrote to the Claimant advising on the outcome of this investigation, which included: […] During this meeting, you had outlined that you had never swore or raised your voice at anyone and you state that Jaspreet had shouted at you and had acted in an aggressive manner. You further indicate that you were pushed and had boxes thrown at you. Having looked into statements which I was able to obtain, I note these all outline the opposite to what you have indicated happened on this date. The statements state that you had used inappropriate language with Jaspreet and had been quite aggressive towards her and due to this, Jaspreet was scared to be around you, following this incident. Unfortunately, due to the time that has passed I was unable to review CCTV and I did also confirm this to you during this meeting. During this meeting, you further outlined that you had raised a grievance previously against the team which was upheld. I have looked into this outcome letter and can confirm this was not upheld as you had then appealed the decision and again, the appeal outcome was that the original grievance outcome was upheld. Having reviewed all the evidence, I feel this all points to yourself as being the instigator of this incident and all the statements also confirm your behaviour on this day, was not acceptable and normally I would look to escalate this to a disciplinary however on this occasion, and due to the amount of time that has passed since this incident, I am happy to take no action on this occasion, however please note, further incidents such as this, will be taken down a formal disciplinary route, should there be enough evidence to suggest this warrants this action.

[84]By email of 17 November 2022, the Claimant resigned her employment. Law Disabled Person

Law

[85]Section 6(1) of the Equality Act 2010 (“EqA”) provides: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[86]Guidance on the correct approach to determining whether a person is disabled within the meaning of EqA was provided by the EAT in Goodwin v Patent Office

[1999] ICR 302

, per Morrison P: […] The words of the section require a tribunal to look at the evidence by reference to four different conditions.(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?

(2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities […] and does it have an adverse effect?

(3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial?

(4) The long-term condition. Is the adverse effect (upon the applicant's ability) long-term?

[87]In relation to “impairment” the question for the Employment Tribunal is a functional one, what the Claimant cannot do practically. It is unnecessary to consider the cause of such limitation; see MOD v Hay

[2008] IRLR 928

EAT.

[88]Guidance on the correct approach to identifying a mental impairment was provided by the EAT in J v DLA Piper

[2010] IRLR 936

[89]“Substantial” is defined at EqA section 212(1) as “more than minor or trivial”. In this context a substantial adverse effect means a limitation going beyond the normal differences in ability which may exist amongst people.

[90]In determining whether a person satisfies the definition of disability the Employment Tribunal must focus on what the person cannot do or can only do with difficulty, as opposed to what they can; see Leonard v Southern Derbyshire Chamber of Commerce

[2001] IRLR 19

EAT.

[91]With respect to long term, in this context the word “likely” means could well happen; see SCA Packaging v Boyle

[2009] IRLR 746

HL.

[92]The question of disability must be determined as at the date of the alleged discriminatory act, as opposed to the date of hearing; see Cruickshank v VAW Motorcast

[2002] IRLR 24

EAT and Richmond Adult Community College v McDougall

[2008] IRLR 227

CA. Direct Discrimination

[93]In the employment field and so far as material, EqA section 39 provides: (2) An employer(a) (A) must not discriminate against an employee of A's

(b) (B) - (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment.

[94]As to the meaning of any other detriment, the employee must establish that by reason of the act or acts complained of a reasonable worker might take the view that they had thereby been disadvantaged in the circumstances in which they had thereafter to work. An unjustified sense of grievance cannot amount to a detriment for these purposes; see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL.

[95]EqA section 13(1) provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[96]The Tribunal must consider whether:96.1 the claimant received less favourable treatment;

96.2 if so, whether that was because of a protected characteristic.

[97]The question of whether there was less favourable treatment is answered by comparing the way in which the claimant was treated with the way in which others have been treated, or would have been treated. This exercise may involve looking at the treatment of a real comparator, or how a hypothetical comparator is likely to have been treated. In making this comparison we must be sure to compare like with like and particular to apply EqA section 23(1), which provides: (1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.

[98]Evidence of the treatment of an actual comparator who is not close enough to satisfy the statutory definition may nonetheless by of assistance since it may help to inform a finding of how a hypothetical comparator would have been treated.

[99]As to whether any less favourable treatment was because of the claimant’s protected characteristic:99.1 direct evidence of discrimination is rare and it will frequently be necessary for employment tribunals to draw inferences from the primary facts;

99.2 if we are satisfied that the claimant’s protected characteristic was one of the reasons for the treatment complained of, it will be sufficient if that reason had a significant influence on the outcome, it need not be the sole or principal reason;

[100]In the absence of a real comparator and as an alternative to constructing a hypothetical comparator, in an appropriate case is may be sufficient to answer the “reason why” question - why did the claimant receive the treatment complained of.

[101]The definition in EqA section 13 makes no reference to the protected characteristic of any particular person, and discrimination may occur when A is discriminated against because of a protected characteristic that A does not possess; this is sometimes known as ‘discrimination by association’.

[102]The burden of proof is addressed in EqA section 136, which so far as material provides: (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision occurred.

[103]When considering whether the claimant has satisfied the initial burden of proving facts from which a Tribunal might find discrimination, the Tribunal must consider the entirety of the evidence, whether adduced by the claimant or respondent; see Laing v Manchester City Council

[2006] IRLR 748

EAT.

[104]Furthermore, a simple difference in treatment as between the claimant and his comparators and a difference in protected characteristic will not suffice to shift the burden; see Madarassy v Nomura

[2007] IRLR 246

CA.

[105]The burden of proof provisions will add little in a case where the ET can make clear findings of a fact as to why an act or omission was done or not; see Martin v Devonshires Solicitors

[2011] IRLR 352

EAT, per Underhill P: 39. This submission betrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination generally, that is, facts about the respondent’s motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else’s head “the devil himself knoweth not the mind of man” (per Brian CJ, YB 17 Ed IV f.1, pl. 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law […] Harassment

[106]Insofar as material, EqA section 26 provides:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.

[107]Whilst the unwanted conduct need not be done ‘on the grounds of’ or ‘because of”, in the sense of being causally linked to, a protected characteristic in order to amount to harassment, the need for that conduct be ‘related to’ the protected characteristic does require a “connection or association” with that; see Regina (Equal Opportunities Commission) v Secretary of State for Trade and Industry

[2007] ICR 1234

QBD. Notwithstanding it was decided under the prior legislation including the formulation “on the grounds of”, the observations made by the EAT in Nazir v Asim

[2010] ICR 1225

may still be of some relevance: 69 We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law—such as a person’s race and gender.

[108]In relation to the proscribed effect, although C’s perception must be taken into account, the test is not a subjective one satisfied merely because C thinks it is. The ET must reach a conclusion that the found conduct reasonably brought about the effect; see Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

EAT.

[109]Guidance on the threshold for conduct satisfying the statutory definition was given by the EAT in Betsi Cadwaladr University Health Board v Hughes [2014] 2 WLUK 991; per Langstaff P:10. Next, it was pointed out by Elias LJ in the case of Grant v HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

12. We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. Victimisation

[110]So far as material, EqA section 27 provides: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. […] Protected Disclosure

[111]The making of a protected disclosure involves three elements. Firstly, there must be a “disclosure”. According to section 43B(1) of the Employment Rights Act 1996 (“ERA”) a disclosure is constituted by “any disclosure of information”.

[112]Secondly, the disclosure must be “qualifying” which is determined by the content of the information disclosed. Section 43B(1) so far as material provides: (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following—[…] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health or safety of any individual has been, is being or is likely to be endangered,

[113]Thirdly, the qualifying disclosure must be made to a specified recipient, within ERA sections 43C-H, which includes at 43C, the employer.

[114]In some circumstances, disclosing information for these purposes might be distinguished from the making of an allegation; see Cavendish Munro Professional Risks Management Limited v Geduld

[2010] IRLR 38

EAT.

[115]Caution in this regard must, however, be exercised. A single disclosure might amount to both the provision of information and the making of an allegation. Furthermore, a rigid dichotomy between giving information and making allegation is not reflected in the language of ERA section 43B. The statutory question is whether information was disclosed (which in the employee’s reasonable belief tended to show one of the necessary matters); see Kilraine v London Borough of Wandsworth

[2018] IRLR 846

CA.

[116]Whilst a belief need not necessarily be correct in order reasonably to be held, see Babula v Waltham Forrest College

[2007] IRLR 346

CA, the test is ultimately an objective one.

[117]In Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, the EAT addressed the extent to which the reasonableness of a belief may be informed by the circumstances of the person blowing the whistle. In Chesterton Global Limited v Nurmohamed

[2017] IRLR 837

CA, the Court addressed the correct approach to the public interest.The potentially relevant factors referred are:(a) the numbers in the group whose interests the disclosure served;

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

(c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

(d) the identity of the alleged wrongdoer […] the larger or more prominent the wrongdoer (in terms of the size of its relevant community, ie staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest […]

[118]The test for causation in whistleblowing detriment cases is whether the protected disclosure materially influences, in the sense of being more than a trivial influence, the employer's treatment of the whistleblower; see Fecitt v NHS Manchester

[2012] IRLR 64

CA .

[119]A distinction may fall to be drawn between the making of a disclosure on the one hand, and the manner in which that disclosure is made or conduct ancillary to that on the other; see Bolton School v Evans

[2006] IRLR 500

CA. Conclusion Disability

Conclusion

[120]The Claimant suffered with anxiety and depression from December 2021. Whilst she had some mental health symptoms before this point, the Claimant provided little information in this regard and we find that any adverse effect during that earlier period was minor in nature. On or about 3 December 2021, the Claimant suffered a sudden and severe exacerbation in her mental health. She made a suicide attempt and was unable to return to work because of ongoing anxiety and depression. She was seriously debilitated by this condition. We are satisfied the adverse effect from this point onward was substantial. Given the severity of her sudden deterioration, the self-harming on 4 December 2021 and the assessment on 9 December 2021, we are satisfied it could have been said from that latter date that her illness and the impairment “could well happen” to last for 12 months.

[121]Accordingly, from 9 December 2021, the Claimant was a disabled person within the meaning of EqA section 6. Direct discrimination – Disability, Race & Religion

[122]We will address each of the alleged detriments in turn. Refuse the Claimant’s annual leave request made in January or February 2021 with respect to a period leave in June 2021 (race and religion)

[123]The alleged detriment occurred. The Claimant made a leave request informally and Mrs Patel agreed she could take this if she checked the calendar, which she did. The leave was subsequently cancelled.

[124]The Claimant points to Billie as a comparator. We had no evidence about any leave request made by Billie. We note, however, that Mrs Kaur’s request for the same day off was granted. She could be a comparator. There is a difference in status with respect to race and religion between the Claimant and Mrs Kaur. There was a difference in treatment. The difference in treatment was connected with the Claimant and Mrs Kaur, since the Claimant's leave was cancelled to accommodate Mrs Kaur, suggesting a preference had been exercised. This went unexplained at the time. These are facts from which in the absence of an explanation we could have found race or religious discrimination. The burden of proof shifted to the Respondent.

[125]We accepted the explanation given by Mrs Patel. Mrs Kaur was allowed to take the day off because she had been the first to request that particular day as leave. Her request had been made formally using the appropriate request form and at a time when the following year’s calendar was not yet in the dispensary, with the result that Mrs Kaur’s leave was not entered onto that. When the Claimant made a subsequent informal request and Mrs Patel told her to check the calendar, the relevant day appeared to be clear. This led to the Claimant and Mrs Kaur both believing they could have the day off. The cancellation of the Claimant's leave had nothing whatsoever to do with race or religion. This was solely down to Mrs Kaur having made the earlier request. In the event it caused no difficulty, as the Claimant had sought the day off for Eid but then discovered she had the wrong date and wished to change this anyway. Not promote the Claimant to the supervisor role in March or April 2021 (race)

[126]The alleged treatment occurred.

[127]The Claimant has failed to discharge the initial burden. Mrs Kaur had been successful in her short employment with the Respondent. Whilst the pharmacy did not have an existing supervisor, such a role had been in place previously. Mrs Kaur asked to be considered for supervisor. Mrs Patel discussed this with her line manager and they decided to agree this. There had been several concerns during the Claimant’s employment, including attendance, timekeeping and handing out the wrong medication. The Claimant expressed no interest in the position of supervisor, either before or after Mrs Kaur’s trial period. Given these material differences between their circumstances, Mrs Kaur was not a comparator within EqA section 23. Whilst a non-statutory comparator may be of evidential value, these facts would not allow for a finding of discrimination, even in the absence of an explanation.

[128]Further and separately, we accepted Mrs Patel’s explanation. Mrs Kaur was given the opportunity to try the position of supervisor because she asked and appeared to be a suitable candidate. This had nothing whatsoever to do with race. Fail to safely store and maintain material evidence, namely CCTV footage relating to the Claimant’s grievance about events on 3 December 2021 (disability)

[129]This detriment was done.

[130]The Claimant has failed to discharge the initial burden. The original footage was automatically overwritten. Mr Mander used his phone to make a copy but appears not to have handed this over to the First Respondent before leaving his employment. We could not on these facts in the absence of an explanation find discrimination.

[131]Further and separately, we accepted explanation of the Respondents for this, which emerged from Mrs Patel’s evidence and the documents. The First Respondent's system automatically deleted the original footage. Mr Mander left the Respondent. Despite having been reminded to keep the footage, he does not appear to have done this before going work for a new employer. None of this had anything whatsoever to do with the Claimant's disability. Exclude the Claimant from the team Christmas social in December 2021 (religion)

[132]This detriment was not done.

[133]There was no Christas social in December 2021. There was insufficient staff interest. A discussion took place and a form was put up in the workplace. The Claimant was present. She did not put her details down. There appears to have been a lack of interest amongst the team.

[134]The Claimant's claim of direct discrimination is not well founded and is dismissed. Harassment (Equality Act 2010 section 26)

[135]The alleged conduct did not occur.

[136]Mrs Kaur did not physically attack the Claimant on 3 December 2021. There is likely to have been some minor accidental contact between the Claimant and a box being held by Mrs Kaur as they both tried to pass through a narrow opening.

[137]Mrs Patel did assist the Claimant. Following the accidental contact, Mrs Patel’s attention was drawn by raised voices. She came and stood in between the Claimant and Mrs Kaur and sought to calm the situation. The Claimant was permitted to take an early lunch break and then leave work early.

[138]What transpired that day was most unfortunate and the Claimant became very upset. There was plainly some tension between the Claimant and Mrs Kaur. Having heard from all of the material witnesses we are quite satisfied that this was entirely work-related and had nothing whatsoever to do with race or any other protected characteristic.

[139]The Claimant's claim of harassment is not well founded and is dismissed. Victimisation (Equality Act 2010 section 27)

[140]The Claimant's email to the Respondent’s compliance department on 25 December 2020 was not a protected act. She wrote in vague terms and said nothing about discrimination.

[141]The Claimant's email to the Respondent’s compliance department on 7 February 2021 was a protected act, as it included a complaint about race discrimination against a colleague.

[142]We will look at each alleged detriments in turn,. Being denied training and teaching in February 2021

[143]This detriment was not done.

[144]The Claimant asked to restart her training in February 2021 and Mrs Patel agreed. A learning contract was drawn up. The Claimant was given protected time. Mrs Patel went through the workbooks with the Claimant. She received onthe-job training throughout. The Claimant made progress on this course in the months thereafter, up to the point when she decided to pause it. Being consistently placed on performance reviews from February 2021

[145]This detriment was done.

[146]The Claimant has failed to discharge the initial burden. The Claimant was frequently late for work or failed to attend at all, without following the Respondent’s absence reporting procedure. She handed out the wrong prescriptions to patients, putting their health at risk. The Claimant failed to take steps with respect to a sales promotion. A series of recorded conversations took place and a performance improvement plan was implemented in April 2021. This is a wholly unremarkable sequence of events. The steps taken would appear to be a proportionate response to the Claimant’s failings. There is nothing here which would allow for a finding that the conduct was related to the Claimant’s February 2021 email.

[147]Further and separately, we accepted the evidence of Mrs Patel. She took these various steps because she believed they were necessary and appropriate in light of the repeated and continuing conduct or performance concerns. This had nothing whatsoever to do with the Claimant’s email of February 2021. We also accepted that she did not know about the Claimant’s email at this time and, therefore, could not have acted upon it. Not promoting the Claimant to the supervisor role in March or April 2021

[148]This detriment was done.

[149]The Claimant has failed to discharge the initial burden. Substantially the same reasoning applies here as set out above in connection with direct discrimination. We could not find this was done because of the Claimant's email, even in the absence of an explanation.

[150]Further and separately, we accepted the evidence of Mrs Patel as to why Mrs Kaur was promoted and the Claimant not. This had nothing whatsoever to do with the Claimant’s email of 7 February 2021, of which Mrs Patel was in any event ignorant. Being forced to work additional hours in May 2021

[151]This detriment was not done.

[152]The Claimant agreed with Mrs Patel to put back the start of her reduced hours to 31 May 2021, which coincided with the Respondent’s pay periods. Removal of agreed holiday leave in June 2021

[153]This detriment was done.

[154]The Claimant has failed to discharge the initial burden.

[155]Whilst we reached a different conclusion about the initial burden in connection with the direct discrimination claim, that is because Mrs Patel would have been aware of the Claimant’s race and religion. As far as victimisation is concerned, however, Mrs Patel was unaware, at this time, of the Claimant’s 7 February 2021 email. It appears to us that this is part of the facts to be taken into account at the initial stage, rather than being the Respondent’s explanation for why something was done.

[156]Further, separately and in case we are wrong about the initial burden, we accepted the evidence of Mrs Patel about why this was done. The reasons did not include to any extent whatsoever the Claimant’s email of 7 February 2021. Not being included in the work Christmas event in December 2021

[157]This detriment was not done.

[158]The Claimant’s claim of victimisation is not well founded and is dismissed. Protected disclosure

[159]Before analysing whether or not the Claimant’s emails of 25 December 2020 and 7 February 2021 amounted to qualifying disclosures within ERA section 43B, it is appropriate to first consider the various alleged detriments and whether they were done, to any extent at all, because of either email upon which the Claimant relies. Being denied training and teaching in February 2021

[160]This detriment was not done. Being consistently placed on performance reviews from February 2021

[161]This detriment was done.

[162]The Claimant was subject to performance reviews for the reasons set out earlier in this decision. We accepted Mrs Patel’s evidence in this regard. This had nothing whatsoever to do with the Claimant’s emails of 25 December 2020 and 7 February 2021, of which Mrs Patel was unaware at the material time. Not promoting the Claimant to the supervisor role in March or April 2021

[163]This detriment was done.

[164]The reasons for the Claimant’s non-promotion are set out earlier in this decision. We accepted Mrs Patel’s evidence in this regard. This had nothing whatsoever to do with the Claimant’s emails of 25 December 2020 and 7 February 2021, of which Mrs Patel was unaware at the material time. Being forced to work additional hours in May 2021

[165]This detriment was not done. Removal of agreed holiday leave in June 2021

[166]This detriment was done.

[167]The reasons for the cancellation of a day’s leave are set out earlier in this decision. We accepted Mrs Patel’s evidence in this regard. This had nothing whatsoever to do with the Claimant’s emails of 25 December 2020 and 7 February 2021, of which Mrs Patel was unaware at the material time. Not being included in the work Christmas event in December 2021

[168]This detriment was not done.

[169]There being no connection whatsoever between the various matters complained of, to the extent they occurred, and the Claimant’s emails of 25 December 2020 and 7 February 2021, it is unnecessary for us to decide whether either email amounted to a qualifying disclosure.

[170]The Claimant’s protected disclosure detriment claim is not well founded and is dismissed. Time

[171]None of the matters complained of being well founded, it is unnecessary for us to consider jurisdiction with respect to time. EJ Maxwell Date approved: 24 January 2025