Mrs D Palmer-Walters v Secretary of State for Justice: 1305054/2023

EMPLOYMENT TRIBUNALS

Case No 1305054/2023

Between

Mrs D Palmer-WaltersClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Edmonds

Ms T Sandiford (instructed by counsel) for claimant

Mr J Edwards (instructed by counsel) for respondent

Date 17 January 2025

JUDGMENT

[1]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed.

[2]The complaint of indirect discrimination race and/or disability discrimination is not well-founded and is dismissed.

[3]The complaint of failure to make reasonable adjustments for disability is not well-founded and is dismissed.

[4]The complaint of harassment related to race and/or disability is not wellfounded and is dismissed.

[5]The complaint of victimisation is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 21 January 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Procedure Rules 2024, the following reasons are provided:

REASONS

This is the unanimous decision of the Employment Tribunal.

Introduction

[1]The claimant is a Probation Services Officer at Walsall Probation Complex, employed by the respondent. Her employment is continuing. She describes her race as black and she is disabled by reason of asthma, musculoskeletal disorder, anxiety and depression and insomnia. She also suffers from vertigo which she asserts is a further disability (see below). ACAS early conciliation started on 12 May 2023 and ended on 19 June 2023. Her claim form was submitted on 17 July 2023.

[2]This claim is about a request that the claimant made for a two hour video meeting slot at HMP Oakwood prison (as opposed to the standard one hour slot), and the treatment that she received consequent to that. The claimant says that there was an initial refusal to give her a two hour slot which she says was discriminatory on grounds of both race and disability, that she was discriminated against in the way that the issue was dealt with and she further asserts that having done a protected act (posting on an internal Teams site about her experience) she was then subjected to detriment. Claims and Issues

[3]A List of Issues had been agreed at a Preliminary Hearing on 22 November 2023 before Employment Judge C L Taylor and these are set out below. By the time of the final hearing, disability had been conceded in respect of all pleaded disabilities save for vertigo (although knowledge of disability was in dispute).

[4]We were also made aware that the claimant had subsequently brought a second Tribunal claim against the respondent. This related to separate matters which post-date the issues in this claim and we were comfortable that our findings would not overlap with the findings that would need to be made in those subsequent proceedings.

[5]At the outset of the hearing, the Tribunal raised with the parties that the claimant’s particulars of claim (at paragraphs 25 and 26) referred to alleged harassment related to both race and disability, and the respondent’s Grounds of Resistance also addressed both protected characteristics. However in the List of Issues the issue regarding indirect discrimination was framed in a manner that related only to disability. The Tribunal requested clarification on this. Although it was commented by the claimant’s representative that she was not instructed that there was any claim not captured in the List of Issues, given that this was part of the pleaded claim we include in our conclusions our position on indirect race discrimination.

[6]More generally, the claimant’s representative also confirmed at the hearing that where race discrimination was alleged, this related both to the claimant’s race and also to the race of the individual with whom she was planning to hold a video meeting with. The issues as recorded in the List of Issues are:

Introduction

[1]Jurisdiction1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 13 February 2023 may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

1.3 To the extent that any of the acts or omissions on which the claimant relies were acts of G4S, were G4S acting in the relevant respect as agents of the respondent such that the respondent is liable as a principle?

[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 will2.1.1 Did she have a physical or mental impairment? The claimant relies on one or more of the following conditions:- a) Asthma b) Musculoskeletal disorder c) Dizziness d) Vertigo e) Anxiety and Depression

2.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?

2.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

2.1.4 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?

2.1.5 Were the effects of the impairment long-term? The Tribunal will2.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

2.1.5.2 if not, were they likely to recur?

[3]Discrimination arising from disability (Equality Act 2010 section 15)3.1 Did the respondent treat the claimant unfavourably by:3.1.1 Between 07-09 Feb 2023 repeatedly refusing to allow the claimant to have a 2 hour CVP slot for a prisoner visit unless she could show exceptions?

3.1.2 Being required to attend an urgent video meeting with Joanne Walton on 13th or 14th February 2023 and being spoken to by Ms Walton in that meeting in a forceful and intimidating

3.2 Did the following things arise in consequence of the claimant’s disability: 3.2.1 It was more difficult for the claimant to attend face to face prison visits and more difficult to complete the work within one hour.

3.3 Was the unfavourable treatment because of any of those things?

3.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent says that its aims were:3.4.1 the need to explain policies to ensure that employees understood how to obtain a longer video call with prisoners at HMP Oakwood if needed;

3.4.2 the need to ensure that employees including the Claimant were aware of and compliant with the Civil Service Code of Conduct which requires civil servants to ensure that any posts added to an open forum are accurate and objective. It was proportionate and reasonable to discuss these issues with the Claimant in the manner that JW did which was not forceful or intimidatory as alleged or at all.

3.5 The Tribunal will decide in particular:3.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

3.5.2 could something less discriminatory have been done instead;

3.5.3 how should the needs of the claimant and the respondent be

3.6 Did the respondent know or could it reasonably have been expected to

[4]Indirect discrimination (Equality Act 2010 section 19)4.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP:4.1.1 Only allowing 1hour CVP slots;

4.1.2 Requiring longer slots to be face to face except in exceptional

4.2 Did the respondent apply the PCP to the claimant?

4.3 Did the respondent apply the PCP to persons with whom the claimant does not share the characteristic, e.g. non-disabled persons or would it have done so?

4.4 Did the PCP put persons with a disability at a particular disadvantage when compared with persons without a disability the pressure to complete the work within a compressed time slot caused or exacerbated her anxiety and/or caused her physical discomfort?

4.5 Did the PCP put the claimant at that disadvantage?

4.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 4.6.1 the requirement to facilitate HMP Oakwood in its need to distribute fairly, efficiently and productively video links as a result of resource challenges it was facing at that time; previously when two-hour slots had been booked, they had not been fully utilised, wasting time and resource. It was proportionate and reasonable to introduce “the one hour slot” policy as it was discretionary and subject to “exceptional circumstances’ in the event that a longer time slot was required. It is clear from the way in which it was applied to the Claimant between 7 and 9 February 2022 that a disability/language/translation needs could constitute “exceptional circumstances” resulting in a longer video call.

4.7 The Tribunal will decide in particular:4.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

4.7.2 could something less discriminatory have been done instead;

4.7.3 how should the needs of the claimant and the respondent be

[5]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)5.1 Did the respondent know or could it reasonably have been expected to

5.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:5.2.1 Only allowing 1hour CVP slots;

5.2.2 Requiring longer slots to be face to face except in exceptional

5.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that it creates pressure to complete the work within a compressed time slot causing or exacerbating anxiety and/or causing physical discomfort?

5.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

5.5 What steps could have been taken to avoid the disadvantage? The claimant suggests: 5.5.1 Initially agreeing from 7-9 February 2023 for the claimant to have a 2 hour CVP slot.

5.6 Was it reasonable for the respondent to have to take those steps?

5.7 Did the respondent fail to take those steps?

[6]Harassment related to race and disability (Equality Act 2010 section 26)6.1 The claimant describes her race as black.

6.2 Did the respondent do the following things:6.2.1 Between 7-9 February 2023 refusing to allow the Claimant to have a 2 hour CVP slot for a prisoner visit unless she could show exceptions.

6.2.2 Requiring the Claimant to attend an urgent video meeting with

6.2.3 Instructing the Claimant to take down her Teams post of 10 February 2023 setting out why she felt the refusal to offer 2 hour CVP slots amounted to discrimination.

6.2.4 Telling the Claimant that she was required to meet with Natalie

6.2.5 Altering and then cancelling the Claimant’s training which was supposed to have taken place on 17 February 2023.

6.3 If so, was that unwanted conduct?

6.4 Did it relate to race and/or disability?

6.5 Did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? In considering whether the conduct had such effect:-6.5.1 What was the Claimant’s perception of the conduct;

6.5.2 What were the other circumstances of the case; and

6.5.3 Was it reasonable for the conduct to have that effect?

[7]Victimisation (Equality Act 2010 section 27)7.1 Did the claimant do a protected act as follows: details 7.1.1 Post on Teams on 10 February 2023 setting out why she felt the refusal to offer 2 hour CVP slots amounted to discrimination.

7.2 Did the respondent believe that the claimant had done or might do a protected act?

7.3 Did the respondent do the following things:7.3.1 Requiring the Claimant to attend an urgent video meeting with

7.3.2 Instructing the Claimant to take down her Teams post of 10 February 2023.

7.3.3 Telling the Claimant that she was required to meet with Natalie

7.4 By doing so, did it subject the claimant to detriment?

7.5 If so, was it because the claimant did a protected act?

7.6 Was it because the respondent believed the claimant had done, or might do, a protected act?

[8]Remedy for discrimination or victimisation8.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? The claimant suggests:8.1.1 A Recommendation for a written apology from Joanne Walton acknowledging that she recognizes the distress she caused me and her actions in contravening equalities law.

8.1.2 A Recommendation for a written apology from HMMPS West Midlands Probation Service acknowledging that they recognize the distress their Senior Managers caused me and their actions in contravening equalities law, and their failure in duty of care towards me.

8.1.3 A Recommendation from the Tribunal that the Employer revokes the action of exclusion which subjects persons of protected characteristics to delays and detriments which are misaligned to the Equalities Act, and implement a simpler one-stop process of a checkbox with an added brief description of why the request is made (for example: "Two-hour video slot required as reasonable adjustments to meet foreign language requirements", which will enable an immediate opt-in or opt-out and reduces physical and psychological risk of harm.

8.1.4 A Recommendation from the Tribunal that the Employer acts to revise all its policies and practices to eliminate barriers, risk of harm and marginalization to staff with protected characteristics as well as to persons with protected characteristics subject to Court Orders supervised by themselves.

8.1.5 A Recommendation from the Tribunal that the Employer creates a neutral Safe Space for new Probation Service Officers and PQUIP/ PQIP Trainees to identify and effectively resolve current and future issues which they individually or collectively face to reduce or eliminate barriers, physical or psychological risk of harm, marginalization and detriments to themselves, in the knowledge that Managers and Senior Officers have been identified by the Lammy Report and the Thematic Review as barriers within these roles and their own statistics and data would be limited in representation due to possible non-participation by some of the most marginalized staff who distrusted the system and their data-gathering. Also in the acknowledgement that trade union representatives within Probation are their own members of staff who are paid by the organization and who are not provided with adequate time for representation of staff who are members of these unions, and are thus not suitably equipped with time, neutrality or impartiality to be effective in their representation.

8.2 What financial losses has the discrimination caused the claimant?

8.3 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

8.4 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

8.5 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

8.6 Did the respondent or the claimant unreasonably fail to comply with it?

8.7 If so is it just and equitable to increase or decrease any award payable to the claimant?

8.8 By what proportion, up to 25%?

8.9 Should interest be awarded? How much? Procedure, Documents and Evidence Heard 8. Adjustments were discussed at the start of the hearing and the claimant confirmed that the only adjustment required was to have short breaks at least every hour. The Tribunal agreed to this and it was accommodated throughout the hearing. In addition, the hearing had already been listed to take place by video.

[9]We were presented with a 393 page file, which also included the witness statements, along with a separate medical records file amounting to 250 pages. References in these Reasons to page numbers are to the main file, unless otherwise indicated. We were also provided with a chronology and cast list. The claimant’s representative prepared an opening note, which doubled up as written closing submissions, and the respondent provided written submissions. Both representatives supplemented their written submissions with oral submissions.

[10]All of the witnesses had access to a clean copy of the files when giving their evidence, although initially the claimant did not have a copy and therefore we delayed the start of her evidence until a further copy had been sent to her. The witnesses were reminded not to have any personal notes with them whilst giving evidence, however part way through the claimant’s evidence it came to light that she had a post it next to her with writing on it (which came to light because she showed it to the Tribunal as part of her answer to a question). Whilst the Tribunal re-iterated to the claimant the importance of not having personal notes besides her whilst giving evidence, we decided not to take any action as the post it in question did not contain any information of significance and the claimant confirmed that she did not have any other personal documentation other than that with her.

[11]In addition, during each break which took place part way through a witness’ evidence, the Tribunal reminded the witness that they must not discuss their evidence during the break. Unfortunately during one break the claimant emailed her representative a copy of a document which she considered relevant to her evidence and which was not in the file. Once the hearing resumed the claimant’s representative promptly brought this to the attention of the Tribunal and the claimant apologised for doing so. Given that it was raised promptly with me and there was no direct attempt to seek advice (and the claimant’s representative did not give any advice), again the Tribunal decided not to take any further action other than to remind the parties of the importance of not discussing matters during any breaks in their evidence. In addition, the document did transpire to be relevant and following discussions with the parties (and with no objections raised) we agreed to admit the document into evidence.

[12]We heard evidence from the following witnesses:a. The claimant on her own behalf;

b. Mrs Hayley Carden, Senior Probation Officer and Head of Offender Management Delivery (“HOMD”) on behalf of the respondent;

c. Ms Natalie Lau, Head of Walsall and Wolverhampton Probation Delivery Unit on behalf of the respondent;

d. Mrs Joanne Walton, at the relevant time of the issues in this case a PQIP Senior Probation Officer on behalf of the respondent; and

e. Mrs Hayley Freeman, Deputy Head of Walsall and Wolverhampton Probation Delivery Unit on behalf of the respondent.

[13]We found that the claimant believes strongly in the matters she put forward, which she views as being part of a wider issue of institutional racism (amongst other things). However, we also found that the claimant’s strong beliefs regarding racism generally within society, often clouded her judgment of individual situations. When asked specific questions about specific incidents, the claimant repeatedly described the events relevant to this claim by reference to wider societal issues such as what happened to George Floyd, modern slavery, coercive control, marginalisation, abuse of power and stripping of human rights, along with references to the Lammy report. Whilst we fully recognise that such matters are of significant importance, and that discrimination does exist and can often be covert, we also find that the emotive nature of the claimant’s responses to certain questions was out of proportion with the issues raised in this case. We find that the claimant’s view of a number of normal day to day interactions in the workplace has been clouded by her underlying perceptions around racism in society. We will address this more specifically in our findings.

[14]We found the respondents evidence to be honest and candid, although memories of what had happened were not always exact given the time that had passed. Their explanations were however broadly in line with each other and with the contemporaneous documentation. Facts Background and Medical Information

Facts

[15]The claimant’s employment with the respondent commenced on 18 June 2007 although at the time of the incidents to which this claim relates she had only recently joined the team in which she worked. She had previously worked in an administrative role but had recently started as a Probation Services Officer and a PQUIP (Professional Qualification in Probation) trainee.

[16]The claimant’s line manager at the time of the issues relating to this claim was Mrs Joanne Walton, however she was only her line manager for a limited period between 23 January 2023 and 20 February 2023 approximately.

[17]The claimant worked on a hybrid basis, spending 2-3 days each week in the office. She had also attended external meetings, notably at a location called the Boot Factory.

[18]The claimant was disabled at the relevant time by reason of anxiety and depression, asthma, musculoskeletal problems and insomnia. She has also had issues with vertigo and asserts that this is a disability. To the extent relevant we will consider whether it amounts to a disability later in these conclusion, however we set out our factual findings regarding her vertigo at this stage. We also set out below our factual findings relevant to the respondent’s knowledge of disability more generally (not only in relation to vertigo).

[19]The claimant reports that she first experienced dizziness and vertigo in around 2012, although we were not pointed to any specific medical evidence on this.

[20]On 2 October 2018 the claimant attended her GP surgery with symptoms of sudden onset vertigo (page 104 medical bundle). She then had an appointment with Dr Littleton, a consultant neurologist at University Hospitals Birmingham on 10 December 2018 (page 115 medical bundle), following which she was referred to an ENT surgery for further assessment. On 24 April 2019 she then attended a clinic with the ENT department (page 121 medical bundle). This commented that the claimant put her symptoms of imbalance and dizziness down to her other symptoms of insomnia, and said that the symptoms are worse when she had not slept well. The letter concluded that the clinician was inclined to agree with the claimant that her daily symptoms of imbalance are related to insomnia. We therefore find that, although the claimant referred repeatedly to imbalance when talking about vertigo in these proceedings, we cannot say that that imbalance was definitively related to vertigo as opposed to insomnia.

[21]On 19 August 2019 the claimant had a further appointment with Dr Littleton where it was noted that there have been no further episodes of true vertigo for over half a year, but that she did have milder episodes of slight imbalance but with no obvious otological abnormality. She was discharged from follow up.

[22]Between 2019 and 2023, after the events to which this claim relates, the claimant did not seek medical assistance about vertigo. The claimant asserts that she nevertheless had symptoms of it and referred in particular to having fainted in 2022 whilst at work which she said rendered her unconscious and needing support from colleagues. We were not provided with any medical documentation or internal documentation within the respondent documenting that incident at the time.

[23]The claimant says that the fact that she did not visit her doctor does not mean that she did not have symptoms. She says she was self-managing and that she tried to avoid seeing her doctor because of the COVID pandemic. The COVID pandemic would certainly be relevant to the 2020, 2021 and early 2022 period (as although restrictions had lifted by that time, we take judicial notice that cases were still elevated at that time and many people were still cautious about visiting places such as doctors surgeries, with many appointments continuing to be provided by telephone). We do however accept generally that individuals do sometimes self-manage their conditions, particularly where the individual does not feel that there is any medication which would assist them, which is what the claimant has said here. We do not view the fact that she did not visit her doctor as necessarily meaning that she did not have any symptoms.

[24]As to the respondent’s knowledge of her conditions (not only vertigo but also her other disabilities), the claimant had attended Occupational Health appointments on 4 July 2016 and 18 August 2016 (pages 217 and 219). It appears from these documents that the claimant was on long term absence at that time, and the report dated 18 August 2016 indicated that the claimant was likely to meet the test for disability under the Equality Act, but did not specify which condition. There are references to sleep issues and mood changes. There is a further report dated 7 November 2016 (page 223) which indicates that the claimant had returned to work at this stage and refers to the absence as being an “anxiety-cum-depressive illness compounded by a sleep condition”. It said that the outlook is uncertain but that she was making progress, albeit slowly.

[25]There is then a further Occupational Health report dated 15 February 2018 in relation to her musculoskeletal issues (page 227), which indicates that the writer considers this is likely to be considered a disability and that it is long term. There is a further report dated 8 May 2018 (page 233 medical bundle) again in relation to anxiety and depression and it records that the claimant is unfit for work. It says that she has a history of poor mental health which is usually well managed but she remains vulnerable to further episodes. The next Occupational Health report is dated 15 August 2018 (page 231 medical bundle), followed by a further report dated 8 February 2019 saying that she had not returned to work since 23 April 2018.

[26]In August 2019 the claimant saw Occupational Health again, this time regarding musculoskeletal issues (page 243 medical bundle). She had returned to work by this point and her symptoms were well managed with adjustments.

[27]There are no Occupational Health reports after this date, until after the relevant period in this claim i.e. after February 2023. Given the volume of earlier reports, we find that if the claimant had raised any concerns about her health during that period with the respondent, she would have been referred again. We find overall that the respondent (but not any specific individual) clearly had actual knowledge that the claimant suffered between 2016 and 2019 with both musculoskeletal issues, insomnia and anxiety and depression and that they were likely to be long term conditions but thereafter considered they were well managed. There is no mention of asthma. We address the question of knowledge in relation to 2023 in our conclusions below.

[28]The claimant relies upon the fact that she referenced all of her conditions except asthma on page 27 of a 32 page document called Gateway to Practice, dated 9 December 2022 and sent to her line manager at that time, Carla Jordan. This was not in the file but was accepted as a piece of late disclosure during the hearing. Given that it did not refer to asthma, we find that the respondent did not have actual knowledge of asthma at the relevant time.

[29]In relation to the other medical conditions, within her commentary in the Gateway to Practice document she said that she had the various conditions, and that sometimes one condition would hit her and sometimes all at the same time. She said “I have appropriate equipment and flexibility for the role to pace myself, manage my conditions and provide care for my husband”. The impression given was therefore that the claimant had the various conditions, but that they were well managed.

[30]Mrs Walton was copied on the email attaching the Gateway to Practice document, however as she was not line manager at the time she did not read it. Mrs Walton accepted in evidence that, when she became the claimant’s line manager, she did not go back and dig out the document to read it. Mrs Walton accepted in evidence that, with hindsight, it would have been reasonable for her to have read the document once she became her line manager.

[31]Similarly, there appears to have been no specific discussion between the claimant and Mrs Walton once she became line manager on 23 January 2023 asking about her health. We understand from the evidence of the respondent, and accept, that it was the respondent’s practice not to automatically pass on information such as medical reports for reasons of confidentiality. We consider that it is prudent in such circumstances either for outgoing line managers to ask consent of individuals to pass on medical information to new line managers, or alternatively for the new line manager and individual to have a discussion during which the individual should ideally disclose their health conditions so that any support can be provided, and/or the new line manager can ask if there is anything to be aware of. In this case we recognise that Mrs Walton only became the claimant’s line manager approximately two weeks before the events complained about. In those circumstances, we consider that such a conversation might reasonably not yet have occurred.

[32]We find that Mrs Walton, as she had not read the Gateway to Practice document, and also Ms Lau, and Mrs Carden and Mrs Freeman were not personally aware of the claimant’s disabilities before 9 February 2023 when the claimant emailed Ms Chand, Ms Lau and Mrs Walton (page 71). We will address whether they had constructive knowledge to the extent necessary within our conclusions below. HMP Oakwood

[33]The claimant was employed by the respondent but part of her role would involve making appointments to meet with prisoners at external prisons, either face to face or by CVP. In her previous role she had also had some responsibility for making appointments at prisons, although not in recent times HMP Oakwood.

[34]The issues in this case relate to a proposed meeting with a prisoner held at HMP Oakwood and what happened subsequently. HMP Oakwood is a private prison run by G4S. G4S is responsible for the day to day running of the prison, including facilitating appropriate outside contact for prisons.

[35]HMP Oakwood’s policy was that visits by Probation Services Officers by CVP should be limited to one hour, unless exceptional circumstances arose, or could be longer if face to face. The reasons why G4S had this policy are that HMP Oakwood is a large prison with over 2,100 prisoners but only six interview rooms which had CVP facilities (we note that Ms Lau said 6 to 8 however Mrs Carden’s clear evidence was 6 and she was based on site and so we consider would be more likely to have the exact figure). Since COVID, there has been an increase in demand for use of CVP rooms and therefore HMP Oakwood determined that it was necessary to place some limitation on the booking system. In addition, it had been noticed that slots were being booked for longer periods and the full time allocated not being used. It is worth noting that the CVP rooms were not only used for probation officers meetings, but also other activities such as court sessions and solicitor consultations amongst other things, which increased the pressure on the CVP rooms availability.

[36]It was also explained in evidence, and we accept, that for some prisoners, a two hour meeting could be overwhelming and it can sometimes be preferable to have two separate one hour meetings instead.

[37]HMP Oakwood therefore implemented a policy of only allowing one hour slots unless exceptional circumstances arose. Those slots all took place in the mornings, allowing the rooms to be used for other activities, including face to face meetings, the rest of the day.

[38]Although that policy was owned and implemented by HMP Oakwood, there had been a Notice of Change process followed in order to implement the one hour policy, which was actioned by the HMPPS controllers on behalf of the respondent (page 146).

[39]The policy allowed longer visits by CVP in exceptional circumstances. Those responsible at HMP Oakwood for booking visits were administrative staff and did not have the authority to assess what constituted exceptional circumstances. Instead, the process was intended to be that the request would be made via either Mrs Carden or Ms Humphries, who were the HOMDs. They would consider the rationale for the request and arrange for it to be approved where appropriate. Mrs Carden explained in her witness statement, and we accept, that requests for a two hour slot were not frequent but that she could not recall ever refusing one. The request for a CVP slot

[40]On 6 February 2023 the claimant emailed HMP Oakwood at 11.11pm to request a CVP slot to meet virtually with an Albanian prisoner (page 81). Given the time of the email, we find on the balance of probabilities that the recipient would not have picked it up until the following day. Her email attached a document, which we assume to be a booking form. We do not have a copy of the booking form, and there was a dispute as to whether or not the booking form would allow a two hour booking: the claimant says it did, Mrs Carden said that she did not think that it did. In the claimant’s email she commented that “I understand that you will book one-hour slots”, therefore we consider on the balance of probabilities that the form must have reflected the fact that slots would be one hour in duration. This is further supported by the content of the claimant’s later email dated 9 February 2023 where she asserts that HMP Oakwood should make allowances “in the policy and on the form to ask whether a single slot or a double slot is needed…” which suggests that she was unable to request a double slot on the form.

[41]The claimant said “In order to fully consider [the Albanian prisoner’s] diverse needs, a two-hour slot would be appreciated in the event he requires an interpreter”. The request for a two hour slot was at this stage therefore conditional on whether an interpreter was needed. There is no reference suggesting that the claimant might require a two hour slot for any other reason, such as her own health.

[42]On 7 February 2023 at 1.49pm, Ms Nicole Latham, Visits Administrator at HMP Oakwood responded (page 78-79), explaining that only a one hour slot could be offered due to high demands. A list of available slots was set out. The email did not refer to any particular process for requesting an exception. We note that there were consecutive slots offered and therefore theoretically it would have been possible to have a two hour slot, however the respondent’s position is that there is a shortage of availability and a balancing act needs to be carried out to ensure that the courts are serviced and that conferences are able to run, bearing in mind the variety of users of the CVP rooms and the competing demands. We accept the respondent’s evidence on this point.

[43]The claimant that evening at 6.24pm (page 78) emailed saying that she was not very comfortable with not allowing the individual’s diversity needs to be met, and repeated that if he needed an interpreter additional time would be required. She asked Stephanie Hough, a manager within the probation service at the respondent who was shortly to become the claimant’s line manager, to confirm whether or not an interpreter would be required. Ms Hough had been copied on the email from Nicole Latham, along with two other individuals at the respondent who have not been otherwise referred to in these proceedings and therefore we are not clear on why they were included. Interestingly, the claimant did not copy her own line manager. We see no reason why Ms Latham would have included the three respondent employees, so we assume that the claimant must have included them on her original booking request, although the copy of the email in the file does not indicate who was copied. Given the timing of this email, we again find on the balance of probabilities that it would not have been picked up until the following day.

[44]At this stage therefore, the claimant was not yet clear as to whether an interpreter was required, and therefore whether she did require a two hour slot. We also note that there was no reference again to two hours being required for any reason related to the claimant’s health or to her own race, only to the potential for the individual to need an interpreter.

[45]At some point on 8 February 2023 it appears from information provided in the claimant’s later grievance (page 135) that it was confirmed to the claimant that an interpreter would be required.

[46]Later on 8 February 2023, at 2.33pm, Daniel Daley, Family Intervention Manager at HMP Oakwood replied to all those on the email chain, including the claimant, explaining that video calls and face to face meeting are for one hour only, that there was a huge waiting list and longer sessions could not be facilitated. He suggested either booking one hour and then a further hour at a later time if needed, or alternatively attending face to face where a longer slot could be allocated as that could use facilities onsite rather than video links. He explained that the issue was that professionals kept booking two hour slots and then only using an hour and a bit which lost time. This was not directed at the claimant in any way but was a generalised comment about HMP Oakwood’s experience with others.

[47]At this stage, Mr Daley would not have any knowledge of the claimant’s race nor that she had any disabilities or health conditions, let alone that they might impact her ability to visit HMP Oakwood. We also find that when Mr Daley suggested that the claimant could attend the site, he was not instructing her to do so but rather seeking to offer an alternative, thinking that this might assist.

[48]Mr Daley did explain that administrative staff were instructed by himself not to allow extended sessions unless there were exceptional circumstances. He went onto say that this instruction had been agreed with the Head of Probation and OMic (Offender Management in custody). It was suggested in evidence that he had quoted the wrong individuals, however on reviewing the wording of his email he is not saying that these are the people to approve an exception, he is saying that these are the people who approved the underlying approach. He does not in fact give any indication of how an individual could seek approval based on exceptional circumstances.

[49]At this time there was no written document which set out how to seek approval based on exceptional circumstances or examples of exceptional circumstances. The claimant had therefore been given no information about the process to go through, however we consider in those circumstances the natural next step would be to ask your line manager, especially as she was new in post and had not organised a visit to HMP Oakwood recently.

[50]The claimant objects to the fact that slots of longer than an hour could only be obtained in exceptional circumstances. She says that this shows a default position of exclusion not inclusion. Whilst there is a starting point of slots being one hour and a justification has to be shown to go beyond that, we see this as no different to general policies, procedures and working practices within many organisations that set out default positions on matters but also mechanisms to depart from those default positions. This includes reasonable adjustments where, for example, in many large organisations some form of approval process is required before certain adjustments are implemented e.g. to order new equipment. We do not accept that it is as a general proposition improper for an organisation to have a policy which is subject to adjustment in certain circumstances.

[51]We would also comment at this stage that the reason why a longer slot was desired by the claimant in our view was because of the need for an interpreter for the prisoner. We do not find that the claimant’s disability was a reason for her requesting a longer slot: had it been so we consider she would have said so. We also do not consider that the claimant’s race in any way required her to need a longer slot.

[52]On 8 February 2023 (page 74) the claimant emailed again asking for a two hour slot. In this email she said that she was not able to attend in person. She said that she was disabled and would not be travelling to HMP Oakwood if reasonable adjustments could be made. At no point in this email did she suggest in any way that her disabilities might mean that she herself required longer than one hour to conduct the meeting, and she only referred to potential difficulties travelling. She referred to the language barrier faced by the prisoner and the fact that he has a protected characteristic. At this stage she did not indicate in any way that her own protected characteristic of race has any relevance to the situation nor does she say what her own race is.

[53]On 9 February 2023 at 9.55am Ms Latham emailed the claimant (page 72) saying that as advised only a one hour slot could be offered. Daniel Daley was not copied into that email. We were presented with this email as an embedded screenshot within another email, and it is missing the signature strip. Consequently we cannot say whether this was in response to the email on 8 February 2023 from the claimant or part of some separate chain. The claimant replied to Ms Latham asking Ms Latham “Can I just check that you are replying in response to the email trail yesterday which included Daniel Daley discrimination”. This shows that it was not clear whether Ms Latham was replying to that email chain. Again this reply is presented to the Tribunal as an embedded screenshot and we cannot see the time that it was sent. We also have no knowledge as to whether or not Ms Latham responded, and when.

[54]If instead at this point the claimant had simply emailed explaining that she felt that there were exceptional circumstances and asking what she needed to do to seek approval on that basis, we consider on the balance of probabilities it would at that stage have been explained to her to contact Mrs Carden or Ms Humphries as HOMDs, who would in turn have arranged for the request to be approved.

[55]In evidence the claimant has acknowledged that other individuals might well have had their requests challenged in the same situation if they were not black, but has suggested that the impact on her is higher because of the experiences that black individuals generally face in society. In this regard the claimant referred to the experience of George Floyd and to Prince Harry’s marriage to Meghan Markle as being indicative of the prejudice that black people face and the battles that black people have to overcome. She also at certain points referred to the CVP booking procedure as amounting to segregation and apartheid because you have to jump through layers to get equal access.

[56]The Tribunal makes clear at this stage that it recognises the importance of diversity and it recognises that there is still a great deal of work to do to ensure equality for black people. What we find here does not in any way detract from the experience of George Floyd or other black individuals who have been wronged. However, we do not accept that having a request for a two hour meeting (which related to a prisoner’s need for an interpreter) refused has a higher impact on the claimant as a black person than it would on another individual of a different race who would also have to equally justify and escalate their request for a two hour meeting. We stress that the requirement for a two hour meeting related to the prisoner’s need for an interpreter, not the claimant’s health nor the claimant’s race (and she herself did not need an interpreter). The claimant’s email to senior managers on 9 February 2023

[57]At this stage the claimant did not reply to Mr Daley, nor to Ms Latham, nor did she contact her manager to discuss the issue and seek guidance or assistance in what to do next. Instead she sent a lengthy email on 9 February 2023 at 3.04pm to Ms Sarah Chand and Ms Natalie Lau, cc’ing various other individuals including her line manager Mrs Walton (page 71-74). Ms Lau is Mrs Walton’s line manager, Head of Walsall and Wolverhampton Probation Delivery Unit, and Ms Chand was Regional Head of Probation. Ms Chand was the line manager of Ms Lau’s line manager, and therefore was four layers above the claimant and so a particularly senior manager. In addition, Ms Chand would have had no operational dealings with such matters on a day to day basis, given her seniority and role.

[58]In effect, we consider that the claimant escalated the matter as high as she possibly could, without first speaking to her own line manager. We find this both unusual and counter-productive, as it denied Mrs Walton the opportunity to help her to resolve it first and would have inevitably meant that Mrs Walton would need to liaise with her managers before responding fully.

[59]Turning to the content of the claimant’s email, we note the following:a. The claimant referred to apparent institutional discrimination on the part of HMP Oakwood.

b. She said that there was clear and conscious discrimination against the background of Race Equality Week. In the detail within the email, she referred to the prisoner’s lack of understanding of English . The clear inference from the email is that the racial discrimination she is referring to is discrimination against the prisoner on the grounds that he requires an interpreter. Nowhere in the email does it suggest racism towards the claimant as an individual, nor does it say what her race is.

c. In relation to disability, in the email the claimant asserted that the approach to booking slots should have included something along the lines of “if you have a disability or condition or a requirement for an adjustment, please let us know so that we can make reasonable adjustments”. She also referred to reasonable adjustments elsewhere in the email but reading the context as a whole that could equally relate to adjustments to account for disadvantage due to the need for an interpreter as for disability. There is nothing in the email to suggest either

(a) that the claimant is disabled or

(b) that any adjustments are required for a reason relating to the claimant’s a disability. We accept that there was a reference to the claimant being disabled in her earlier email to Daniel Daley on 8 February 2023 which would have appeared underneath as part of the email chain, but it was not in the email itself. The email on 8 February as explained above related to the need to travel for face to face meetings which was a different matter.

d. Within the email, the claimant said that “I would not submit the videolink booking for 2 hours on the grounds of there being extenuating / exceptional circumstances, as being human and different and needing to feel respected and having a voice and being included, should not be an exception/ extenuating circumstance, it is a legislative and human right”. Having heard the claimant’s evidence, it is clear to us that the claimant objects to the general principle of having to request that normal policy be departed from, on the basis that the very fact of doing so makes her an exception (or, as she alternatively described it, “exotic”) and that in itself is discriminatory. With respect, we cannot agree. The very concept of a reasonable adjustment is about adjustments to practices and procedures to accommodate disabled individuals by way of exceptions. To suggest that treating someone as an exception amounts to discrimination is in our view akin to suggesting that the entire concept of reasonable adjustments is discriminatory, when taken to its logical conclusion.

e. In the email she also suggests that what HMP Oakwood should in fact do is make allowances on the policy and form to ask if a double slot is needed, and that the applicant provide the reason for that on the form. She said that certain conditions would automatically qualify and others would require a follow up discussion or communication. By accepting that it is reasonable to require a justification be provided for a two hour slot, and that a discussion should sometimes be required, we find this inconsistent with the claimant’s argument to this Tribunal that her word should be accepted without needing explanation and we see a follow up discussion prior to approval as being no different than having to follow a process to seek approval.

[60]This email was the first occasion on which either the claimant’s line manager, Mrs Walton, or Ms Lau (or for that matter Ms Chand) knew anything about the claimant having any difficulties in relation to a booking slot.

[61]Following receipt of the email, Mrs Walton emailed Ms Lau and Mrs Freeman at 3.37pm on the same day (page 71), saying that she wanted to check with them how to proceed in this instance, noting that she had not been involved in such a situation before.

[62]Shortly thereafter there was a Teams chat between Mrs Walton and Ms Lau (page 100). In this chain Mrs Walton asks to have a catch up with Ms Lau about the email. Mrs Walton makes a comment in the chain that “It’s the fact that she has sent it straight to Sarah Chand!”. From this we find that Mrs Walton was surprised that the claimant had chosen to escalate the matter immediately to such a senior level. Ms Lau responded commenting that it was the second time she had done this, which we understand to mean that it was the second time she had escalated a matter directly to Ms Chand. Mrs Walton went on to comment that she felt out of her depth responding and they agreed to have a separate discussion the following day before Mrs Walton would go back in detail to her. The chat then moves to 10 February and it is clear that Ms Lau has spoken with the prison: we find on balance of probabilities that this is a reference to her speaking to Ms Carden and arranging the slot, as we refer to below. The chain concludes with Mrs Walton saying that the claimant was offline so she would “pick this up with her next week”.

[63]At 4.13pm on 9 February 2023 Mrs Walton had emailed the claimant (page 84), acknowledging receipt of her email, and explaining that whilst she did not have any answers at present she would meet with Ms Hough and Ms Lau the following day to discuss the matter and would come back to her as soon as they could. We find that this was a prompt and reasonable response from Mrs Walton, and supports the respondent’s contention that if the claimant had approached Mrs Walton initially, Mrs Walton would have sought to assist the claimant to resolve the issue.

[64]On the morning of 10 February 2023, Ms Lau contacted various individuals including Mrs Carden about the matter. During the email chain, at 10.09am Ms Lau said to Mrs Carden “If we can arrange something or you can sort something with visit using your amazing influence”. We find that this shows that Ms Lau was keen to resolve the matter for the claimant and demonstrates a supportive environment. Mrs Carden responds explaining that if the claimant had emailed herself as Head of Offender Management Delivery they could have requested the extension for her and sorted it. She did then request the extension and it was approved and sorted that day.

[65]It is clear from this chain that there was a process supposed to be in place whereby Mrs Carden or her peer Ms Humphries could approve longer visits. We recognise that this was not communicated to the claimant and we understand that since the events of this case this process is now set out clearly within the documentation relating to booking requests. We find that Ms Lau, Mrs Carden and Mrs Walton all acted promptly and worked together effectively to address the situation and resolved the matter very speedily.

[66]The claimant suggested that the only reason it was resolved in her favour was because she fought for it and raised allegations of discrimination. Whilst it did require the claimant to raise with someone the fact that she had not had her booking approved and the reason why she needed it, we do not consider that it was only approved because she had to fight for it or because she had to raise discrimination. We consider that the same result would have been achieved by her simply asking Mrs Walton to take steps to arrange a longer slot for her, or to advise her of the process to follow (which Mrs Walton would have investigated and discovered was via Mrs Carden).

[67]Therefore, having made the request on Monday 6 February in the late evening, whilst it was initially refused, by Friday 10 February at 10.26am (page 107) it had been approved, therefore it was approved in the same week and in reality in only just over 3 working days. The appointment was not due to take place for some weeks thereafter and therefore there was no impact on the timing of the meeting itself, which went ahead on 8 March 2023. Teams post

[68]On the evening of 10 February 2023 at 6.42pm the claimant put a post onto the respondent’s Walsall office internal Teams chat, which had about 70 members (page 123). It is a lengthy post and therefore we do not repeat it in its entirety. This post is accepted by the respondent to be a protected act for the purposes of the claimant’s victimisation complaint.

[69]The post is titled “Reflection on my equality experience this week”. In it, she refers to being refused a two hour slot by HMP Oakwood . She said that it was a natural human right as well as an equality right. She said that an interpreter was required which would lengthen the time taken at the meeting, and that the prisoner had protected characteristics.

[70]She went onto say that, when informed that a longer slot would only be considered in exceptional circumstances, and told that as an alternative she could travel in, she informed the prison that she was disabled and would not be travelling where reasonable adjustments could be implemented. She said “Being human, different, and needing to feel respected and having a voice and being included, should not be an exceptional / extenuating circumstance, it is a legislative and human right”. Towards the end of the post she commented that the prison had now actioned her two hour request, referred to Race Equality Week and said that colleagues should consider whether to say “STOP” before accepting or making decisions that could further marginalise individuals. She surmised that if she faced this issue, then this would be the situation with numerous others.

[71]In this post she does not refer to her own race, only that of the prisoner. Whilst she refers to her disability, this is again in the context of not being able to attend a face to face meeting and not requiring a longer slot. She did not explain in the post how the matter had been resolved (i.e. that it had been resolved promptly by the respondent, or the process that had been followed to resolve it and which she and colleagues should be using moving forward). This would have been relevant and informative information (although we do note at this stage the claimant would not yet have spoken to Mrs Walton to go through the process in detail).

[72]Given that this was posted late on a Friday night, it would not have been read at least by the vast majority until Monday 13 February. Neither Mrs Walton nor Ms Lau were on that Teams page and would not have seen it directly. However, Mrs Carden was still on the Walsall Teams channel because, having previously been part of that team, someone had omitted to remove her when she moved on.

[73]Mrs Carden saw the post and emailed Ms Lau and Mrs Freeman at 9.43am on 13 February 2023. She said that she was saddened that this had been posted and that HMP Oakwood had been named as somewhere not inclusive. She commented that all that was required for a two hour slot was HOMD approval (i.e. approval by her or Ms Humphries) and if they had been emailed it could have been sorted. She said that she found the post unhelpful in attempting to build positive relationships with community colleagues.

[74]Ms Lau responded immediately indicating that she had not seen the post because she was not on this page. In this email she says that the Senior Probation Officer (i.e. Mrs Walton) was going to speak to the claimant today about the issue. This is an important point in relation to a later call between Mrs Walton and the claimant, as it shows us that this call was to happen regardless of the fact that the claimant posted on Teams (and this was the call that was referred to in the internal Teams communication between Mrs Walton and Ms Lau referred to above). We refer to this more below. Mrs Walton then forwarded a copy of the Teams post to Ms Lau, who responded to indicate that she had asked Mrs Walton to speak to the claimant and remove the post.

[75]Ms Lau made Mrs Walton aware of the post, and asked Mrs Walton to speak to the claimant about potentially taking down the post when Mrs Walton called the claimant to discuss the meeting slot issue more generally.

[76]The claimant says that she was asked to take down the post because it raised allegations of discrimination. Whilst it does raise those allegations, we consider that what the respondent was concerned about was that the post was not balanced, in that it detailed at length the alleged difficulties the claimant had but not the reasons behind the policy, the steps taken to resolve those difficulties for the claimant or the process that colleagues should be aware of should they encounter similar issues. The fact that the claimant had the 2 hour slot now approved was simply one short sentence towards the end of a lengthy narrative. Ms Lau was also mindful of the civil service values around objectivity and did not consider it to be objective. Teams call 13 or 14 February 2023

[77]Mrs Walton contacted the claimant to discuss the issues as planned on either 13 or 14 February 2023 (neither party could recall which but both accepted the call happened). Mrs Walton called the claimant by making a Teams video call to her. There was no prior warning of the call and the claimant says that Mrs Walton should not have called her out of the blue. She described it as degrading, that Mrs Walton came to her with the power to strip her of her human rights, and that the meeting was an interruption in order to carry out a discriminatory action. She contends that it is unreasonable for her manager to call her out of the blue on Teams, saying that if it was the Monday it was a study day and if it was the Tuesday then she was nevertheless working on other tasks. She said that she felt it was unnecessary. In essence, what the claimant argues is that it was inappropriate for a line manager to call someone in their team without prior warning.

[78]A video call on Teams is, in effect, no different to having a phone call from your manager, or your manager popping over to your desk to ask to speak. This is a normal workplace interaction and we cannot see any basis upon which it can be said that the simple fact of a line manager calling you is in any way inappropriate.

[79]The claimant also describes the call as being “urgent”. A call which is made via Teams would come through simply as a video call being made, it would not denote whether or not it was urgent, just as a telephone ringing would not indicate whether the call was urgent or not. It is open to the receiver not to answer the call if they are busy.

[80]As explained above, Mrs Walton was planning to make the call before she became aware of the Teams post from 10 February. The primary purpose of the call was to discuss the wider issue about the claimant’s experience when booking the 2 hour slot, and we find that Mrs Walton wanted to check in with the claimant from a duty of care perspective, having seen from the claimant’s correspondence that the claimant had said how upset she was about what happened. She also wanted to explain to the claimant what the appropriate approach was to get these things approved.

[81]Given that the claimant had emailed a number of senior managers about the issue, it is reasonable and appropriate for Mrs Walton as line manager to want to discuss the issue with the claimant, and we consider that the claimant must have wanted some form of discussion about it given that she raised the point with management herself.

[82]Mrs Walton cannot recall the exact words used during the discussion. However, both the claimant and Mrs Walton agree that Mrs Walton went through the process for booking a two hour slot with the claimant on the call, so that the claimant would be aware of this for future. This would have been helpful information for the claimant to have.

[83]It is also accepted by both Mrs Walton and the claimant that Mrs Walton went on to discuss the Teams post with the claimant and to suggest to the claimant that it be taken down. In the claimant’s witness statement she said that “I asked if this was an instruction and she said that she was only the messenger and that it was for me to consider”. Within her grievance she also referred to being asked to consider taking it down. Whilst Mrs Walton cannot recall the exact words used, her recollection is also that she asked the claimant to consider removing the post. It is therefore clear that whilst the claimant was clearly encouraged to remove the post, this was not positioned as a direct instruction but more something for the claimant to go away and consider.

[84]The claimant says that Mrs Walton was forceful and intimidating on the call. We have seen nothing from the evidence provided to us to support that assertion, and given the tone of Mrs Walton’s email to the claimant once she initially escalated the matter of 9 February and her other communications with the claimant more generally, we find on balance of probabilities that it was not. We also find that it was not intended to strip her of her human rights, nor as the claimant has alleged representative of the fact that persons who are black do not have rights or value to the system. The claimant alleged that she was not seen as human, and referenced what happened to George Floyd as an example of black lives not mattering. Again, whilst we do not in any way disregard the treatment of George Floyd or the impact that had on black people across the world, we do not agree with the claimant that there is a symbolism between her situation and that of Mr Floyd.

[85]The claimant did not in fact take down the post and no action was taken against her for not doing so, nor was there any suggestion from the respondent that there would be. The 17 February meeting

[86]On 16 February 2023 Mrs Walton emailed the claimant (page 128) saying that she had discussed the matter with Ms Lau again and Ms Lau had reflected and had said that she would like to join a pre-planned meeting that was in the diary between Mrs Walton and the claimant for the following day. That meeting was a meeting which arose out of an email Mrs Walton had sent to the claimant on 8 February 2023 (page 98) about two individuals, one of whom we believe was the prisoner to whom this claim relates but about other matters, to look into and support the claimant with those cases. In addition it referred to strategies and support for her PQIP qualification. The claimant says that the meeting was a training meeting and therefore protected time regarding Oasys risk. We find that the meeting was to discuss the claimant’s work and what support she needed with her training qualification generally, however it was not specifically a meeting only about Oasys risk which would constitute a formal training session and thus protected time. It is also worth noting that this meeting was due to be with Mrs Walton and Ms Hough, both of whom the claimant describes as senior managers, and at this stage the claimant was happy to have that meeting.

[87]The claimant has questioned why this discussion was proposed to form part of a pre-existing meeting which was scheduled for another purpose, rather than scheduling a new meeting to discuss it. We find that this was for no other reason than simply that all those involved were available to attend at that particular time and it was felt that this would be the easiest way to meet.

[88]The claimant replied later that day (page 128) saying that she would like to have the conversation about this but psychologically, she was not in a wellbeing place where she felt she could, and not with Ms Lau.

[89]Approximately an hour and a half later, Mrs Walton responded (page 127) saying that she had spoken to Ms Lau and Ms Lau would not be joining them. She also informed the claimant that Ms Lau had reflected and “would like the post to remain, she recognises that this is your lived experience and you have shared this with colleagues and that you should be able to do this”. We note that the email does not simply say that the claimant can leave the post, but in fact encourages her to keep it.

[90]The email ended by saying “are we best to cancel tomorrow’s meeting and to re-book in the next couple of weeks”. The claimant replied later that afternoon saying “Hi Joanne, we can re-book at a later date”. The meeting was therefore postponed. We find that Mrs Walton did not insist upon cancelling the meeting, but rather asked the claimant whether that would be best. It was open to the claimant to respond saying that she wanted the meeting to continue, and had she done so we find on the balance of probabilities that it would have gone ahead. Given that the claimant had felt able to express her concerns about Ms Lau attending the meeting, we find that she would equally have felt able to express her concerns about cancelling the meeting, had she had any.

[91]The claimant alleges that, by having three senior managers envisaged to attend this meeting on 17 February, that was intended to marginalise her, remove her human rights and amounted to an abuse of power. She said that she was viewed as an inanimate object with no rights, and referred to the three individuals being in a position of power and privilege and said that it was about coercive control and abuse. She said that she came from a background of slavery, being exhibited in a zoo and lynched and not being treated like a human being. She referred to the respondent’s conduct as enslaving her psychologically and compared her situation to apartheid.

[92]Initially she referred to the three managers as white, but under crossexamination when it was put to her that Ms Lau is not white but is instead of Chinese heritage, she said that she used the term “white” to reflect the power and privilege they had, not their ethnicity. She then referred to her as “fair skinned”. We find that when the claimant refers to “white”, what she actually means is “not black”.

[93]Whilst we accept that the claimant feels strongly about the proposal to have three managers at the meeting with her, in reality two managers were already going to be present and the reason for the third manager was to discuss an issue that the claimant herself had contacted management more senior to Ms Lau about anyway. We are therefore surprised that the claimant would object to senior management taking the issue seriously and wanting to discuss it with her, given that it was the claimant who chose to escalate it at a senior level.

[94]During her later grievance, it was accepted by the respondent that having three senior managers at one meeting could be overwhelming. Whilst the grievance hearer found this, and whilst we accept that being faced with senior managers can be a daunting experience, in the specific context of these proceedings we remain surprised that the claimant found it so, particularly as two of them were only one level of seniority above herself (her line manager and soon-to-be line manager).

[95]What we find is that initially we can understand that the claimant might have felt some discomfort on the basis that she knew that Ms Lau had asked her to consider removing the post. However, by 1.57pm on 16 February 2023, the claimant had been informed that in fact Ms Lau wanted her to retain the post and that should have alleviated any concern she might have felt initially. Subsequent events and grievance

[96]On 30 March 2023 (page 132) the claimant emailed Baljinder Dulay and Rachel Oyadeyi at the respondent, who had diversity roles within RISE (Racial Inclusion and Striving for Equality Network), regarding a separate situation she had had in relation to a different foreign national in custody, which is not relevant for the purposes of this claim. In her email she does however attach a copy of her Teams post from 10 February 2023 however we do not have the end of the email. Although the claimant refers in evidence to having contacted them in relation to the matters in this claim at some point, we do not consider this email to be her doing so, given that its focus is on a separate matter and there is no request for advice but merely passing on information.

[97]On 25 April 2023 the claimant spoke with her doctor and asked for a letter regarding her work (page 15 supplementary bundle). The content of the letter was not shown to us nor is the precise issue relating to her work relevant for the purposes of this claim, however we reference it because we consider the claimant’s interactions with the GP surgery to be revealing in relation to her approach to and perception of matters generally. The claimant herself drafted a letter for the doctor about her situation, however the doctor (having reviewed the claimant’s draft) drafted their own letter and provided that instead. The claimant took exception to this (page 14 supplementary bundle), culminating in her telephoning the GP surgery at 5.09pm on 16 May 2023, saying that she wanted to come to the surgery that night and sit and wait to see the doctor and that if he would not see her that night she would sit all day the following day in the surgery to wait for him. The notes from the GP surgery record that she was “very forceful”. The following day, the doctor spoke with the claimant and reiterated that the letter was his draft and that he had the right not to follow her wording.

[98]We consider that it is entirely appropriate for a doctor to have the right to provide their own content and medical assessment within a letter which they are issuing in their own name and for the claimant to suggest that she should be able to insist on the doctor using her own wording is unreasonable. We consider that generally the claimant sometimes has unrealistic expectations, both in terms of what she considers others should do, and also in terms of her assessment that it would be reasonable to attend the surgery and simply sit there demanding to be seen urgently. We also consider that this shows the claimant is very able to articulate her concerns where she has them.

[99]On 3 May 2023 the claimant emailed Imtiaz Khan, her union representative (page 131), attaching the email of 30 March and saying that she was having difficulty processing what happened in her meeting with her manager about her post (this being the meeting on 13 or 14 February 2023), and she asks to discuss a possible complaint. This is the first record we have of any contact with her union representative. She followed that up on 11 May 2023 (page 131) saying that she needed to raise a grievance and asking for guidance.

[100]On 12 May 2023 the claimant both raised a grievance (page 133) and commenced ACAS early conciliation. She emailed her union representative to tell them (page 159). And said in her email that “I have also contacted ACAS in order to progress this matter to a tribunal, if this is necessary, to ensure that I am not out of time regarding my submission”. The claimant confirmed in evidence that the reference to time referred both to Tribunal time limits and internal time limits for raising grievances. It is clear at this point that the claimant has some knowledge about time limits and considers herself to be in time. Her union representative responded to say that she could not get ACAS involved as they had a different role: on the face of it her union representative appears to have misunderstood and considers that she is asking ACAS to get involved in her grievance, which is not what the claimant was saying.

[101]Despite the claimant having been questioned in evidence about why she waited until 12 May 2023 to bring her grievance, the Tribunal does not consider that it had a satisfactory answer on this point. The claimant referred vaguely to having sought internal advice from RISE and to speaking to union representatives, but was unable to pinpoint when in the period she did so and the only documentation we have is that referred to above. We consider that the claimant could and should have raised her grievance earlier. Although the claimant’s representative referenced the trauma experienced by the claimant and her health during this period, we were not presented with any medical evidence or in fact oral evidence from the claimant which suggested that she would have been unable to issue a grievance at an earlier stage.

[102]Once her grievance was received, initially in line with the respondent’s normal practices it sought to resolve the matter informally. It was unable to do so and on 13 June 2023 it was allocated to Mrs Freeman to investigate. As to why the matter could not be resolved informally, the claimant suggested that all she wanted was a chat informally with Mrs Walton but that was refused. The respondent says instead that the claimant refused mediation and wanted it to be dealt with formally. Having considered the evidence and in particular the oral evidence of Mrs Freeman, we find that what happened was that the claimant had indicated that rather than an informal chat with Mrs Walton, what she wanted was to discuss the Lammy report with Mrs Walton and to have other representatives from diversity bodies present at the discussion. This would not be an informal chat. In addition, noting the claimant’s tendency to escalate things to a very senior level at an early stage, we do not consider it to be consistent with her nature to have wanted an informal resolution.

[103]Mrs Freeman had experience of dealing with grievances, albeit not with protected characteristics involved. She had however had diversity and equality training.

[104]The grievance is lengthy and refers to both race and disability discrimination. An overall theme of the content was that the claimant felt marginalised and oppressed as black person and a disabled person (although the content was more heavily focussed on race). No complaint has been raised as part of this claim about the grievance process therefore we do not recite the contents in detail, save as referred to below.

[105]The claimant attended a grievance meeting on 29 June 2023 and Mrs Carden was also interviewed separately on that date. Ms Lau was also contacted by Mrs Freeman to discuss the issues in the grievance which related to her.

[106]On 13 July 2023 the claimant was informed that her grievance had not been upheld and a written outcome was provided to her (page 146). In this it explained that as part of the investigations Mrs Freeman had consulted with various individuals including the Regional Equality Manager and the chair of RISE. We consider that this demonstrates that Mrs Freeman took her role seriously and fully appreciated the need to consider diversity carefully.

[107]Although the grievance was not upheld, it was acknowledged that having three senior managers in attendance at a meeting was likely to be overwhelming and that there was a power dynamic. By power dynamic we consider that Mrs Freeman was referring to seniority and not race. There was also a recommendation that practitioners in the PDU be made aware of the process to follow if additional time is required for a video meeting at HMP Oakwood. The claimant was also to be given a trauma assessment and support to be explored.

[108]On 17 July 2023 the claimant filed her Tribunal claim.

[109]The claimant appealed against the outcome (page 152 and 163). Although the form completed (page 152) suggests that it was filed on 1 July 2023, it appears to have been attached to an email dated 26 July 2023 (page 162) which is the date referred to in the chronology provided to us. In any case, it cannot have been 1 July 2023 if the outcome was 13 July 2023. In reality the date does not change anything, and we do not comment in detail on the points raised save where referenced during proceedings.

[110]Andy Wade was appointed to hear the appeal and he had a meeting with the claimant on 18 August 2023 (page 172). By this stage the claimant was on sickness absence.

[111]On 23 August 2023 the claimant was informed that her appeal had not been upheld (page 154). In the written conclusions, it was noted that Mr Wade had again contacted RISE in preparation for the appeal hearing. He found that Mrs Walton could not be held accountable for HMP Oakwood policies, only if she neglectfully failed to challenge potential discrimination or neglectfully failed to support a team member in doing so.

[112]There is one final point worthy of note. During proceedings we were referred to a specific entry in the GP records regarding the claimant’s asthma. This was her annual review and in summary recorded that there was no exacerbations and that it was well controlled. The consultation was described as “difficult” in the notes. The claimant said in evidence that in saying that her asthma was well controlled this record was inaccurate and that she had challenged it, and ultimately we were then provided with a copy of her letter doing so dated 15 February 2024. This letter had been copied by the claimant to the Care Quality Commission, the Care Board and the Primary Care Organisation. It was three A4 pages long. Within the letter she described inappropriate stereotypes and labelling, and accused the medical practitioner of using a “human characteristic – a diversity of mine….to create an inappropriate image of a “difficult” clinical consultancy” She went onto say that she was from a heritage and group systematically labelled as difficult, but also acknowledged that the notes in fact did not label her as difficult but rather that the consultation was difficult. In essence, what the claimant was saying in her letter was that her race had influenced the clinician’s record of the appointment.

[113]No information was provided either in the letter or in evidence as to why the claimant believed race to be relevant here, save for the general proposition that black people are subject to institutional racism and referring to the need to reclaim the black narrative. In effect she was asserting unconscious bias. Whilst the Tribunal again recognises that unconscious bias does indeed exist, we find that this was a significant leap for the claimant to jump to in assuming that the brief medical record was inaccurate due to racial stereotyping. This is again reflective of the claimant’s general perception of events and her tendency to escalate things to a very senior level before seeking to resolve matters with those more able to do so.

[114]That is the end of the relevant period for the purposes of this claim. We are aware that there is a second Tribunal claim about other matters, however these do not overlap and we do not consider any issues relating to that second claim. Law Disability

Law

[115]Section 6 of the Equality Act 2010 (“the Equality Act”) provides that: (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.

[116]This comprises four separate questions for the Tribunal (Goodwin v Patent Office

1999 ICR 302

, EAT): 1. Did the claimant have a mental and/or physical impairment? 2. Did the impairment affect the claimant’s ability to carry out normal dayto-day activities? 3. Was the adverse effect substantial? 4. Was the adverse condition long term? It is for the claimant to satisfy the Tribunal, on the balance of probabilities, that they were disabled at the relevant time (i.e. when the alleged discrimination took place). It will not be an error of law if the Tribunal does not follow these in rigid consecutive stages, so long as all relevant matters are addressed (J v DLA Piper UK LLP

2010 ICR 1052

, EAT and Sullivan v Bury Street Capital Ltd

2022 IRLR 159

, CA)

[117]Appendix 1 to the Equality and Human Rights Commission Equality Act 2010 Statutory Code of Practice” (“the EHRC Code”) makes clear that there is no need for a claimant to show a medically diagnosed cause for the impairment: what is important is the effect of the impairment not the cause. The effects of medical treatment or other corrective aids should be disregarded.

[118]“Substantial” means “more than minor or trivial” (section 212(1) EA). The Tribunal should compare the claimant’s ability to carry out normal day-to-day activities with the ability the claimant would have if not impaired. The focus should be on what the person cannot do, or can only do with difficulty, rather than on what they can do (paragraph B9 of the Guidance on matters to be taken into account in determining questions relating to the definition of disability”).

[119]“Normal day-to-day activities” are “activities which are carried out by most men or women on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people...” (Appendix 1, EHRC Code).

[120]Under paragraph 2(1) of Schedule 1 to the EA, the effect of an impairment is long-term is it has lasted for at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of their life. Likely means “could well happen” (Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening)

2009 ICR 1056

, HL. An impairment will be treated as continuing to have a substantial adverse effect if it is likely to recur. Discrimination arising from disability

[121]Section 15 of the Equality Act provides that:(1) A person (A) discriminates against a disabled person (B) if –

a. A treats B unfavourably because of something arising in consequence of B’s disability, and

b. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[122]A comparator is not required. The EHRC Code equates unfavourable treatment to being “put at a disadvantage” (paragraph 5.7). An unjustified sense of grievance would not amount to a disadvantage. The question is whether the individual reasonably considers that they have suffered a disadvantage (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL).

[123]As set out in Sheikholeslami v The University of Edinburgh [2018] UKEAT, there are “two distinct causative issues:a. Did A treat B unfavourably because of an (identified) something? and

b. Did that something arise in consequence of B’s disability?

[124]In considering whether there was unfavourable treatment because of something, this involves consideration of the alleged discriminator’s mental processes (both conscious and subconscious, although motive is not relevant). Consideration of whether that something arose in consequence of disability is an objective test. There must be a connection between the “something” and the disability, even if it arises from a series of links (iForce Ltd v Wood

UKEAT/0167/18

[125]To amount to unfavourable treatment because of the “something” this must be more than a trivial part of the reason for the treatment, however it is not necessary for it to be the main or sole reason (Pnaiser v NHS England

[2016] IRLR 170

, EAT). It is insufficient for a claimant to show that “but for” their disability, they would not have been in a position that led to unfavourable treatment (Robinson v Department for Work and Pensions

[2020] EWCA Civ 859

[126]It is for the respondent to show that the treatment amounts to a proportionate means of achieving a legitimate aim. In considering this, the Tribunal must strike “an objective balance” between the discriminatory effect and the reasonable needs of the party who carries out the treatment (Hampson v Department of Education and Science

[1989] ICR 179

). The treatment must be both an appropriate means of achieving the aim and reasonably necessary in order to do so (Homer v Chief Constable of West Yorkshire

[2012] UKSC 15

). Indirect discrimination

[127]Section 19 of the Equality Act 2010 provides that:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protection characteristic of B’s if – a) A applies, or would apply, it to persons with whom B does not share the characteristic, b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, c) it puts, or would put, B at that disadvantage, and d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[128]“Disadvantage” is not defined, however it is similar in effect to “detriment” and “unfavourably” (Williams v Trustees of Swansea University Pension and Assurance Scheme [2018 UKSC 65): regard should be had to what is reasonably seen as unfavourable by the person affected. An unjustified sense of grievance would not be sufficient.

[129]There must be both group and individual disadvantage i.e. the provision, criterion or practice must put (or would both) both persons whom share the characteristic at a particular disadvantage when compared to others, and the claimant must be put at that disadvantage. It is not necessary for the claimant to share the protected characteristic of the group which is disadvantaged, provided that the claimant is themselves disadvantaged (CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminiatsia (C- 83/14_ EU:C:2015:480, now addressed in section 19A of the Equality Act 2010 since 1 January 2024 (after the relevant time period in this claim). Reasonable adjustments

[130]Section 20(3) of the Equality Act 2010 provides that: (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[131]Section 21 of the Equality Act 2010 provides that:(1) A failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[132]The burden is on the claimant to show the application of a provision, criterion or practice, and the substantial disadvantage suffered by him because of it. Substantial means “more than minor or trivial”. If that is done the burden shifts to the respondent to show that the adjustment in question was not reasonable. A one-off act can amount to a PCP where there is an indication that it would be repeated if a similar situation arose in future (Ishola v Transport for London

[2020] EWCA Civ 112

, CA).

[133]Paragraph 6.28 of the EHRC Code sets out some of the factors that might be taken into account when deciding what is a reasonable step: it is wise for the Tribunal to consider the factors although there is no duty to consider each and every one (Secretary of State for Work & Pensions (Job Centre Plus) v Higgins

[2014] ICR 341

, EAT [58]). What is reasonable is considered objectively having regard to all the circumstances.

[134]The duty to make reasonable adjustments will only arise if the disabled person is put at a substantial disadvantage. The purpose of the identification of a provision, criterion or practice is to identify the matter that causes the disadvantage (General Dynamics Information Technology Ltd v Carranza

2015 ICR 169

, EAT) and this disadvantage must not equally arise in the case of someone without the claimant’s disability (Newcastle upon Tyne Hospitals NHS Trust v Bagley

UKEAT/0417/11

). It is for the claimant to show substantial disadvantage (Bethnal Green & Shoreditch Educational Trust v Dippenaar

UKEAT/0064/15

, and Hilaire v Luton BC

[2023] IRLR 122

). However, it is not necessary for the claimant to show that the disadvantage arises because of his disability, provided they have shown substantial disadvantage in comparison with persons without the disability (Sheikholeslami v University of Edinburgh

UKEATS/0014/17

[135]The test of reasonableness is an objective one (Smith v Churchills Stairlifts plc

2006 ICR 524

). The Tribunal should look at the proposed adjustment from the point of view of both claimant and employer to make an objective determination of whether or not it would be a reasonable adjustment (Birmingham City Council v Lawrence EAT 0182/16). The Tribunal should also consider the business needs of the employer (Griffiths v Secretary of State for Work & Pensions

[2017] ICR 160

, per Elias LJ, and O’Hanlon v Commissioners for Inland Revenue

[2007] ICR 1359

[136]The duty to make reasonable adjustments will only arise if the respondent not only knows, or ought reasonably to have known, of the disability but also that the individual is likely to be placed at the substantial disadvantage. Schedule 8, Part 3, paragraph 20 of the Equality Act provides that: (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know – a) ….. b) that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. c) …. Harassment related to race and disability

[137]Section 26 of the Equality Act 2010 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) …..

(3) …..

(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.

[138]As set out in the Equality and Human Right’s Commission’s Employment Statutory Code of Practice (the “EHRC Code”), “unwanted conduct” can include “a wide range of behaviour” (at paragraph 7.7) and it is not necessary for the employee to expressly state that they object to the conduct (at paragraph 7.8). Unwanted means unwanted by the employee (Thomas Sanderson Blinds Ltd v English EAT 0316/10).

[139]A single incident can be sufficient provided it is sufficiently serious (Bracebridge Engineering Ltd v Darby

(1990) IRLR 3

[140]In order to determine whether the conduct is related to the protected characteristic, it is necessary to consider the mental processes of the alleged harasser (Henderson v General & Municipal Boilermakers Union

[2016] EWCA Civ 1049

). This may be conscious or subconscious: as stated by Underhill LJ in Unite the Union v Nailard

[2018] EWCA Civ 1203

: “it will of course be liable if the mental processes of the individual decisiontaker(s) are found (with the assistance of section 136 if necessary) to have been significantly influenced, consciously or unconsciously, by the relevant protected characteristic.”

[141]Whilst the mental processes (both subconscious and subconscious are relevant), in Carozzi v University of Hertfordshire

2024 EAT 169

is was held that: “There is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.”

[142]“Related to” is a broader concept than “because of” (Hartley v Foreign and Commonwealth Office Services 2016 ICR D17, EAT).

[143]The claimant is not required to possess the protected characteristic relied upon, provided that the unwanted conduct is related to the characteristic, nor does the conduct have to be directed at the employee. (EBR Attridge LLP (formerly Attridge Law) and anor v Coleman

2010 ICR 242

and Thomas Sanderson Blinds, above). In Moxam v Visible Changes Ltd and anor EAT 0267/11, it was held that “it does not matter what racial group the claimant comes from, for she is entitled to be offended and to bring claims where she suffers as a result of any discriminatory language and conduct”.

[144]When looking at the effect of harassment, this involves a subjective and objective test. The subjective test is to assess the effect that the conduct had on the complainant, and the objective test is to assess whether it was reasonable for the conduct to have that effect (Pemberton v Inwood

2018 ICR 1291

, CA). The conduct complained about must however “reach a degree of seriousness” in order to constitute harassment, so as not to “trivialise the language of the statute” (GMB v Henderson

[2015] IRLR 451

, at 99.4).

[145]In relation to the subjective element, different individuals may react differently to certain conduct and that should be taken into account. However, as set out in Richmond Pharmacology v Dhaliwal

2009 ICR 724

by Mr Justice Underhill (as he was then named): “if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question.” ; and “…[N]ot every racially slanted adverse comment or conduct may constitute the violation of a persons 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."

[146]The context in which a comment is made is relevant and, even where conduct is unwanted, the effect will not necessarily be one of harassment: the significance of the words in the Equality Act 2010 must not be cheapened, and trivial acts causing minor upsets should not be caught by the concept of harassment (LandRegistry v Grant (Equality and Human Rights Commission intervening)

2011 ICR 1390

, CA).

[147]In considering whether the unwanted conduct had that effect, it may be relevant to take account of an apology made shortly after the conduct is brought to the employer’s attention (Forbes v LHR Airport Ltd

UKEAT/0174/18/DA

). Victimisation

[148]Section 27 of the Equality Act provides:(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; and d) Making an allegation (whether or not express) that A or another person has contravened this Act.

[149]The EHRC Employment Code provides that “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse of put them at a disadvantage”.

[150]For victimisation to occur, the detriment must be because of the protected act. It does not need to be solely because of the protected act to amount to victimisation, but it does need to have a significant influence (Nagarajan v London Regional Transport

1999 ICR 877

, HL). This means an influence which is “more than trivial” (Igen Ltd v Wong, above).

[151]The motivation does not need to be conscious (Nagarajan, above). It is possible for a dismissal or detriment to be in response to a protected act but nevertheless not amount to victimisation if the reason for the treatment is not the complaint itself but a separable feature of it such as the way in which the complaint was made (Martin v Devonshires Solicitors

[2011] ICR 352

). Burden of proof

[152]Section 136 of the Equality Act (burden of proof) states that:(1) This section applies to any proceedings relating to a contravention of this Act.

(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.

[153]Put simply, the claimant must show facts from which the Tribunal could infer that discrimination took place, in the absence of other explanation. If the claimant cannot do that, the claim fails. If the claimant does show such facts, then the burden shifts to the respondent to show that discrimination did not take place (Igen v Wong, above, Royal Mail Group v Efobi

[2021] UKSC 33

). In deciding whether the burden has shifted, the Tribunal should consider all of the factual evidence provided by both parties (although not the explanation for those facts).

[154]In Madarrassy v Nomura International

[2007] ICR 867

CA, Mummery LJ stated that “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[155]Something more than a finding of less favourable treatment is required in order to shift the burden of proof to the respondent, however the “something” need not be considerable (Deman v Commission for Equality and Human Rights and others

[2010] EWCA Civ 1276

). Unreasonable behaviour alone is not evidence of discrimination (Bahl v The Law Society

[2004] IRLR 799

) but can be relevant to considering what inferences can be drawn (Anya v University of Oxford & anor

[2001] ICR 847

)

[156]Where the burden has shifted to the respondent, it is then for the respondent to prove on the balance of probabilities that the less favourable treatment was not because of the protected characteristic.

[157]Although the burden of proof is a two stage test, there are cases where an Employment Tribunal can legitimately proceed directly to the second stage of the test (see, for example, Laing v Manchester City Council and anor

2006 ICR 1519

, EAT). Liability of employers and principals

[158]Section 109 of the ERA provides:(1) …

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.

[159]Common law principles of agency apply to the definition of agent (Ministry of Defence v Kemeh

[2014] ICR 625

). In that case, it was held that the respondent could not be liable for the discriminatory acts of its contractor. In contrast, in Unite the Union v Nailard

[2017] ICR 121

, it was held that union officials were agents of the union. Time Limits

[160]Section 123 of the Equality Act (time limits) provides that:(1) “….proceedings on a complaint within section 120 may not be brought after the end of - a) The period of 3 months starting with the date of the act to which the complaint relates, or b) Such other period as the employment tribunal thinks just and equitable.

(2) ….

(3) For the purposes of this section – a) Conduct extending over a period is to be treated as done at the end of the period; b) Failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the, a person (P) is to be taken to decide on failure to do something – a) When P does an act inconsistent with doing it, or b) If P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[161]There is a distinction between a continuing act and an act with continuing consequences. Where there is a continuing policy, rule, scheme, regime or practice, that will amount to conduct extending over a period, however where there is a one off act which has consequences over a period of time, that will not (Barclays Bank plc v Kapur

[1991] 2 AC 355

, HL and Sougrin v Haringey HA

[1992] ICR 650

, CA). One relevant but not conclusive factor is whether the same or different individuals were involved (Aziz v FDA

[2010] EWCA Civ 304

)

[162]However, the Tribunal should not focus too heavily on whether there is a policy, rule, scheme, regime or practice. The Tribunal should ask itself whether there was an act extending over a period, rather than a series of unconnected or isolated individual acts (Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA). It is relevant whether the same or different individuals were involved, and a break of several months may mean that continuity is not preserved (Aziz, above). Unproven allegations cannot be part of the continuing act (South Western Ambulance Service NHS Foundation Trust v King

2020 IRLR 168

, EAT).

[163]Whilst it is a broader test that that for unfair dismissal, exercising discretion to extend time is the exception rather than the rule (Robertson v Bexley Community Centre

[2003] EWCA Civ 576

). When considering whether to extend time, the Tribunal should consider all the circumstances (Robertson, above), including the balance of prejudice and the delay and reasons for it. Although British Coal Corporation v Keeble

[1997] IRLR 336

sets out a checklist approach in line with section 33 Limitation Act 1980, it is not necessary to go through the full checklist in each case, as long as all significant factors are considered (Adedeji v University Hospitals Birmingham NHS Foundation

[2021] EWCA Civ 23

and Afolabi v Southwark London Borough Council

[2003] EWCA Civ 15

). Factors which are almost always relevant include:a. The length of and reasons for the delay; and

b. Whether the delay has prejudiced the respondent. The merits of the case can be taken into account when considering the balance of prejudice.

[164]The fact that a delay is short does not mean that an extension of time should automatically be granted. Per Underhill LJ in Adedeji (above): “Of course employment tribunals very often have to consider disputed events which occurred a long time prior to the actual act complained of, even though the passage of time will inevitably have impacted on the cogency of the evidence. But that does not make the investigation of stale issues any the less desirable in principle. As part of the exercise of its overall discretion, a tribunal can properly take into account the fact that, although the formal delay may have been short, the consequence of granting an extension may be to open up issues which arose much longer ago”.

Conclusions

[165]We take each of the issues on the List of Issues in turn. 1. Jurisdiction1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 13 February 2023 may not have been brought in time.

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

[166]It is only once it is known which acts of alleged discrimination, if any, have been upheld, and on what date, that it can be determined whether the claims were out of time. We will therefore return to this if necessary once the allegations of discrimination have been determined. 1.3 To the extent that any of the acts or omissions on which the claimant relies were acts of G4S, were G4S acting in the relevant respect as agents of the respondent such that the respondent is liable as a principle?

[167]As to whether G4S were acting as agents of the respondent such that the respondent is liable as a principle, we will return to this if necessary following our findings on the discrimination issues which pertain to G4S conduct. 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 will2.1.1 Did she have a physical or mental impairment? The claimant relies on one or more of the following conditions:- a) Asthma b) Musculoskeletal disorder c) Dizziness d) Vertigo e) Anxiety and Depression

2.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?

2.1.3 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

2.1.4 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?

2.1.5 Were the effects of the impairment long-term? The Tribunal will2.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

2.1.5.2 if not, were they likely to recur?

[168]In relation to disability, from the evidence we have seen, it appears that the symptoms of vertigo which the claimant reports (in particular see-sawing and imbalance) have been suggested by medical practitioners to potentially relate to insomnia. The claimant is already accepted to be disabled by reason of insomnia at the relevant time. Therefore, we consider that even if vertigo were not found to amount to a disability at the relevant time, it would still be necessary to consider the disability discrimination complaints in relation to the other stated medical conditions. We will return to this issue if necessary following consideration of the discrimination complaints.

[169]We will address the question of knowledge of disability as we consider the substantive discrimination complaints. 3. Discrimination arising from disability (Equality Act 2010 section 15) 3.1 Did the respondent treat the claimant unfavourably by: 3.1.1 Between 07-09 Feb 2023 repeatedly refusing to allow the claimant to have a 2 hour CVP slot for a prisoner visit unless she could show exceptions?

[170]The claimant was initially told that she could not have a two hour slot by G4S staff on 7 February 2023, and this was repeated two further times on 8 and 9 February 2023. On 10 February 2023 in the morning she was granted her request.

[171]On 7 February 2023 the claimant was advised that the policy was due to high demands. On 8 February 2023 she was advised that extended session could be allowed in exceptional circumstances.

[172]We acknowledge that the initial response of G4S was to refuse the request, and that refusal continued for a short period after G4S had been advised that there was a justification for the 2 hour slot (i.e. the need for an interpreter).

[173]Had that refusal continued for a lengthy period and/or the claimant been required to go ahead with the meeting without the adjustment to the time slot, we would have had no hesitation in finding that was unfavourable treatment. Here, however, taking the interaction as a whole between 7 and 9 February 2023, it is important to recognise that she was told that exceptions could be made and she was also offered alternatives such as a face to face visit or two one hour slots. We appreciate the claimant says neither of these were suitable but at the time the offer was made that would not have been known by G4S. The claimant could also have asked her line manager or another person what the process was for seeking approval by way of exceptional circumstances but did not do so, instead choosing to escalate the matter to senior managers asserting discrimination.

[174]In relation to the claimant’s assertion that having to show exceptional circumstances is in itself unfavourable treatment, we disagree. Whilst the claimant has said that having to do so indicates that those with protected characteristics are somehow not “normal”, that is not what is being said. What is being said is that whilst there is a general policy put in place for operational reasons, steps have been actively taken to recognise that the policy may need to be adapted for certain individuals. When measuring that against an objective sense of that which is averse as compared with that which is beneficial, we consider that this in fact is beneficial. It is unrealistic to expect an organisation to have policies which apply in all circumstances and cater for all without ever needing to be departed from and rely simply on word of mouth for making approvals.

[175]We accept that the process for applying for exceptional circumstances was not at that time advertised anywhere and therefore it would not have been immediately apparent to the claimant who to go to for that approval. This was something that a discussion with her manager could have resolved, given that when she did escalate the issue her manager promptly took steps to find out what she could do.

[176]As to whether the refusals between 7 and 9 February 2023 were unfavourable, taking each of the refusals in turn:a. The email on 7 February was simply G4S communicating the standard policy, and whilst the claimant had said two hours was required in the event an interpreter was needed, she did not in fact know at that time that it was. In this context we do not consider that to be unfavourable treatment: the refusal pre-dated any justification being put forward.

b. The email on 8 February set out both the rationale for the one hour policy, offered alternative suggestions (which the author could not reasonably have known would not be suitable for the claimant) and also referred to extended sessions being permitted in exceptional circumstances. In this context we do not consider that to be unfavourable treatment.

c. The email on 9 February from Nicole Latham (page 72) is more brief and a simple confirmation that only a one hour time slot can be offered. We have found that we do not have the full email chain to know whether the earlier emails were also copied to Ms Latham, but we do know that the claimant replied asking whether that reply was in response to the email trail of the previous day. Therefore this was not something the claimant was clear about and in that context it would be premature to conclude that this was unfavourable treatment. By the following day she had had the visit approved. Whilst we recognise that the threshold for unfavourable treatment is not a high one, there is still a requirement that the claimant is reasonable in considering herself to have been treated unfavourably (Shamoon, above). Taking all of the circumstances in context, again we find no unfavourable treatment.

d. As to the claimant’s assertion that the fact she had to escalate it meant that it was unfavourable treatment, we respectfully consider that a short discussion with her line manager in the ordinary course of workplace interactions would have achieved the same result.

[177]There was no unfavourable treatment when the communications are taken in context as a whole or individually. 3.1.2 Being required to attend an urgent video meeting with Joanne Walton on 13th or 14th February 2023 and being spoken to by Ms Walton in that meeting in a forceful and intimidating

[178]We have found that that the video meeting was akin to a telephone call or a manager popping to your desk in the workplace (which was not possible here because the claimant was working from home). It was not an “urgent” meeting, nor could have it been marked as so as Teams does not have that facility.

[179]The fact of being contacted out of the blue by your manager is not unfavourable treatment in any sense of the word. Managers and employees do, and should always have, regular ad hoc interactions and to suggest that a manager must pre-arrange contact with an individual is highly unrealistic. To the extent that the claimant finds the concept of a Teams call from her manager to be unfavourable treatment, this is an unjustified sense of grievance.

[180]Furthermore, we have also found that Mrs Walton planned to call the claimant in any event, before the request to remove the Teams post was even discussed between Ms Lau and Mrs Walton. The purpose of the call was intended to be supportive in nature and to check in with the claimant in light of her concerns, to discuss the wider issue about the claimant’s experience when booking the two hour slot, and we find that Mrs Walton also wanted to check in with the claimant from a duty of care perspective. We find that the underlying purpose of the call was not to treat the claimant unfavourably but rather to support her, and therefore favourably.

[181]As to the allegation that she behaved in a forceful and intimidating manner, we have found that not to be the case. Even in relation to the suggestion that she consider taking down the Teams post, this was positioned as something to consider and on the claimant’s case she was told by Mrs Walton that Mrs Walton was just the messenger. That does not suggest a forceful or intimidating interaction.

[182]There was no unfavourable treatment in this regard. 3.2 Did the following things arise in consequence of the claimant’s disability: 3.2.1 It was more difficult for the claimant to attend face to face prison visits and more difficult to complete the work within one hour. 3.3 Was the unfavourable treatment because of any of those things?

[183]Although we have found no unfavourable treatment, we have gone onto consider whether it was more difficult for the claimant to attend face to face prison visits, whether it was more difficult for her to complete the work within one hour, whether those things arose in consequence of disability and whether the treatment (if it had been unfavourable) was because of those things.

[184]Whilst it is accepted that the claimant was disabled (save in relation to vertigo) at the relevant time, the respondent has not accepted that these disabilities made it more difficult for the claimant to attend face to face prison visits or more difficult to complete the work within one hour.

[185]We know that the claimant attended the office several days per week and had attended the Boot Factory. The claimant said in evidence that those locations were closer to her home and easier to travel to than the prison. Regardless, the claimant has not provided any evidence other than her oral and written witness evidence to support the assertion that she could not travel, nor did she say this to her manager or in her Gateway to Practice document before seeking to arrange the prison visit. At the relevant time she had no recent Occupational Health intervention and had not visited her GP for some time to discuss any health issues. Within the Gateway to Practice document, there are references to her carrying out home visits. The claimant has not shown on the balance of probabilities that travelling to HMP Oakwood would be more difficult for her than travelling to home visits or other locations, notwithstanding that it may have been a slightly further travelling distance. The claimant has not asserted that the other travel she did was more difficult because of her disabilities. We do not conclude that it was more difficult for the claimant to attend face to face prison visits and/or that this arose in consequence of disability.

[186]In relation to completing the work within one hour, the claimant did not put forward at any time during the relevant period that she would personally have difficulty completing the work within one hour: the reason she needed two hours was specifically and exclusively because of the need for an interpreter, and this is what was referenced in her various communications. The claimant has asserted that by inference, if an employee has a disability, it flows from that that they will find it more difficult to complete the work within one hour. Mrs Carden was said to have accepted that in evidence. However, what the Tribunal’s notes indicate actually happened was that initially it was put to Mrs Carden that if someone was saying that they needed a longer time slot and that person was disabled, it was reasonable to assume that they would have difficulty in completing it in one hour. Mrs Carden did say “yes” at that point. Later in her evidence however when she was reminded of that response she said that she had thought that was about attending the prison (i.e. face to face) and she did not think that was mentioned in the request for a two hour slot. We consider that Mrs Carden misunderstood the question.

[187]More generally, we do not consider that it automatically flows that if someone requests a two hour meeting rather than one hour, and they are disabled, it is an automatic inference that the two things are related. Many disabled people can complete their work in the normal time allocation. In addition, the claimant in her emails with G4S and with the respondent about the issue, did not at any time assert that she personally needed longer because of a disability. She referred to race, the need for an interpreter and to her disability meaning that she could not attend face to face. Given that the claimant has otherwise been vocal about what she perceives her needs and any discriminatory conduct to be, we are confident she would have raised this if relevant. We do not find that it was more difficult for the claimant to complete the work within one hour in consequence of her disability.

[188]In any case, we would have gone onto find that any unfavourable treatment (if there had been any) was not in any way at all in consequence of the claimant finding it more difficult to attend face to face prison visits or in consequence of it being more difficult for the claimant to complete the work within one hour. The reason for the treatment of the claimant was the operation of the policy on booking visits at HMP Oakwood.

[189]The claimant’s complaint of discrimination arising from disability does not succeed. It is not necessary to consider proportionate means of achieving a legitimate aim, or knowledge in this context. 4. Indirect discrimination (Equality Act 2010 section 19) 4.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP:4.1.1 Only allowing 1hour CVP slots;

4.1.2 Requiring longer slots to be face to face except in exceptional

[190]The HMP Oakwood visits policy was that CVP slots could only be one hour long, save in exceptional circumstances. Therefore we conclude that there was a PCP of requiring longer slots than one hour to be face to face except in exceptional circumstances. There was no specific PCP of only allowing one hour slots given the possibility of exception. 4.2 Did the respondent apply the PCP to the claimant?

[191]We put aside at this stage the separate issue of whether it was applied by the respondent or by G4S and whether they were acting as agent. More generally as to whether the PCP was applied to the claimant of requiring slots longer than one hour to be face to face except in exceptional circumstances, this was applied however the claimant’s circumstances constituted exceptional circumstances given the need for an interpreter and therefore she was given a longer slot. 4.3 Did the respondent apply the PCP to persons with whom the claimant does not share the characteristic, e.g. non-disabled persons or would it have done so?

[192]In the list of issues, the reference here is to non-disabled persons. However, as explained earlier given that the claimant’s claim referred also to race we deal with both.

[193]The PCP was applied as far as we can establish across the board and therefore it would apply to those with whom the claimant does not share the characteristic, whether that be race or disability. 4.4 Did the PCP put persons with a disability at a particular disadvantage when compared with persons without a disability the pressure to complete the work within a compressed time slot caused or exacerbated her anxiety and/or caused her physical discomfort?

[194]It did not, because the PCP incorporated an ability to have longer CVP slots in exceptional circumstances. To the extent the claimant argues that having to show exceptional circumstances is in itself a particular disadvantage, we disagree. It is a supportive mechanism. The claimant accepts that there was a genuine shortage of CVP rooms and in those circumstances it would be entirely appropriate and normal practice for there to be controls put in place and the use of exceptional circumstances to warrant departure from the standard position is a natural and commonplace way of addressing the issue, which does not create a disadvantage. Again, this is the case both in relation to race and disability.

[195]We also note that the issue as framed refers to specifically to the claimant’s alleged disadvantage and not to a particular disadvantage shared by persons with a disability. Insofar as it is alleged that persons with a disability are put at a particular disadvantage by a policy that slots longer than one hour would be face to face save in exceptional circumstances, this would not place such persons at a particular disadvantage given that(a) it does not automatically followed that persons with that disability will have that specific disadvantage and

(b) the policy allowed for departure in exceptional circumstances, meaning that those who would otherwise have that particular disadvantage have a mechanism for avoiding the disadvantage.

[196]In relation to race, we do not consider that black PQUIPs / Probation Support Officers are placed at a particular disadvantage in comparison to non-black PQUIPs / Probation Support Officers by this PCP. Again, if for any reason a one hour slot would disadvantage them (which we consider would only be if the PQUIP / Probation Support Officer themselves needed an interpreter), then an exception could be sought.

[197]To the extent that the claimant relies on the race of prisoners who require an interpreter, then again it was possible to seek a longer CVP slot by way of exemption (putting aside the additional complexity of the fact that section 19 of the Equality Act is framed by reference to the complainant’s race rather than a third party’s). 4.5 Did the PCP put the claimant at that disadvantage?

[198]It did not, because the Tribunal has found that the hour visit did not disadvantage the claimant personally, any disadvantage was entirely related to the prisoner’s need for an interpreter. Her race and/or disability had nothing to do with the need for a two hour meeting. Nor was she personally disadvantaged for any other reason. In any event, the claimant had a two hour visit approved within a few days of making her request, as an exceptional circumstance.

[199]Even if the policy of only allowing one hour visits had in some way personally disadvantaged the claimant, we would conclude that the subsequent approval only a few days later due to exceptional circumstances meant that the claimant was not placed at a disadvantage.

[200]To the extent that the claimant argues that, because black people are marginalised generally in society, issues such as this create greater disadvantage for them, we do not conclude that this was so on the facts of this case and that this could not reasonably be seen as a disadvantage in this particular circumstance.

[201]The claimant’s complaint of indirect discrimination therefore fails and it is not necessary to consider proportionality. However, we do add some comments on this below. 4.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that its aims were: 4.6.1 the requirement to facilitate HMP Oakwood in its need to distribute fairly, efficiently and productively video links as a result of resource challenges it was facing at that time; previously when two-hour slots had been booked, they had not been fully utilised, wasting time and resource. It was proportionate and reasonable to introduce “the one hour slot” policy as it was discretionary and subject to “exceptional circumstances’ in the event that a longer time slot was required. It is clear from the way in which it was applied to the Claimant between 7 and 9 February 2022 that a disability/language/translation needs could constitute “exceptional circumstances” resulting in a longer video call. 4.7 The Tribunal will decide in particular:4.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;

4.7.2 could something less discriminatory have been done instead;

4.7.3 how should the needs of the claimant and the respondent be

[202]We conclude that the PCP was objectively justified. The claimant has accepted that there was a legitimate aim, and we agree, in that HMP Oakwood had a shortage of CVP facilities and there was a requirement to distribute those facilities fairly, efficiently and productively. The claimant submits that the PCP was not proportionate as other steps could have been taken instead. The claimant has suggested:a. that the respondent could have instructed the administrators to allow longer slots where protected characteristics were concerned. We consider that administrators are in relatively junior roles and as such it was more appropriate for a more senior manager to have oversight of circumstances where longer slots were sought.

b. that individuals could simply have been asked how long was needed and then resource allocated. From the evidence we heard, it appeared that HMP Oakwood had previously given more flexibility to those requesting meeting slots, which had resulted in slots being booked for longer periods than were required and which had in fact led to the implementation of the PCP. Therefore this would not have been a proportionate means of achieving the legitimate aim, as it would not have achieved the legitimate aim.

c. the claimant suggests that two back to back slots could have been offered. That would have meant that there were fewer slots available for other individuals to book, who also had competing pressures and needs for CVP links and would not have achieved the legitimate aim of distributing resources fairly.

[203]We consider that the steps taken by the respondent, in allowing for exceptional circumstances, was a proportionate means of achieving a legitimate aim. 5. Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 5.1 Did the respondent know or could it reasonably have been expected to 5.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?

[204]We consider issues 5.1 and 5.4 together - i.e. knowledge of disability, and knowledge of the likely disadvantage.

[205]We consider that the respondent was aware, due to the various medical reports which the respondent had had sight of, that the claimant was likely to be disabled in around 2019. Whilst the claimant then had a lengthy period where no further Occupational Health support was required until after the issues in this case, in those earlier reports it had been made clear that the conditions referred to in them were long term. The respondent also knew that the claimant had been ill in 2016 and therefore that her ill health had at least at that time recurred. In the Gateway to Practice document, the claimant referred to having appropriate equipment and flexibility to pace herself and manage her conditions. We consider that the respondent (albeit not the managers involved in these issues) had actual or could reasonably have been expected to have knowledge of the claimant’s disabilities save in relation to asthma. In relation to vertigo, we will return to this if it becomes relevant to separate out the effects of each individual disability.

[206]However, as to whether the respondent knew or could reasonably have been expected to know that the claimant was likely to be placed at a disadvantage by requiring any slots longer than one hour to be face to face except in exceptional circumstances, in the first instance we comment that we have not accepted that there was such disadvantage given the ability for exceptional circumstances to justify departure from the standard approach. In any case however, we conclude that the respondent did not have knowledge, nor could it reasonably have been expected to have knowledge of any disadvantage. At no stage had the claimant indicated that she had difficulties travelling to external appointments and in fact had done so on occasion, and she attended the office several times each week. We have also not been provided with any evidence that she raised any assertion that it would place her under pressure to complete the work within a one hour time slot, and she did not raise this as a concern even when alleging to the respondent and/or G4S that the policy was discriminatory.

[207]Throughout proceedings, the claimant’s focus has been on race as her primary contention – both in relation to the needs of the prisoner, and also in relation to her feeling marginalised as a black person. Insofar as she has referred to disability, the focus of that argument was about not being able to travel, and not about not being able to complete the work herself within one hour. Whilst she made some oblique references in her oral evidence to it being harder for her to do visits within an hour because of disability, we consider that the claimant is making that allegation with the benefit of hindsight and did not consider this to be an issue at the time, nor did she say anything to the respondent which would have given them knowledge of this.

[208]Therefore, even if there were a disadvantage, we do not consider that the respondent knew or could reasonably have known about it. This complaint must fail.

[209]In any case, we would not have found that the claimant was placed at a substantial disadvantage, for the reasons we have given earlier. 6. Harassment related to race and disability (Equality Act 2010 section 26)6.1 The claimant describes her race as black.

6.2 Did the respondent do the following things: 6.2.1 Between 7-9 February 2023 refusing to allow the Claimant to have a 2 hour CVP slot for a prisoner visit unless she could show exceptions.

[210]Parking the issue of whether this was the respondent or G4S and whether the respondent is liable as agent, this conduct did occur as alleged. 6.2.2 Requiring the Claimant to attend an urgent video meeting with

[211]We refer to our earlier conclusions on this allegation. The conduct did not occur as alleged, although a video meeting did take place during that period. 6.2.3 Instructing the Claimant to take down her Teams post of 10 February 2023 setting out why she felt the refusal to offer 2 hour CVP slots amounted to discrimination.

[212]The claimant was not instructed to take it down. On the claimant’s own case, she was asked to consider it. That is something different, and when she did not take it down, the respondent did not press the matter or request again that she do so. In fact, the respondent did the opposite and told her that on reflection she should retain the post. Therefore, we conclude that there was a conversation about the claimant potentially removing the post, but not in the terms alleged. 6.2.4 Telling the Claimant that she was required to meet with Natalie

[213]The claimant was advised that Ms Lau wanted to join her meeting on 17 February 2023 and that the invite was forwarded to Ms Lau. The claimant was not therefore directly asked for permission for Ms Lau to meet with her. However, we do not conclude that it was a requirement, because when the claimant said she felt uncomfortable about it, Ms Lau immediately withdrew. In those circumstances it cannot be said to have been a requirement. Therefore, again, whilst there was a communication about Ms Lau meeting with the claimant, it did not occur in the terms alleged. 6.2.5 Altering and then cancelling the Claimant’s training which was supposed to have taken place on 17 February 2023.

[214]First of all, whilst the meeting was to support the claimant with what she would need to do for her training programme, it was not a training meeting as such in the formal sense. It is accepted that the meeting was cancelled. By alteration, we assume that is a reference to Ms Lau being invited to it to discuss the issues relating to the two hour slot, and again it is accepted that that happened. As to how the cancellation came about, it may have been first suggested by the respondent (because of the concerns the claimant had raised about her health) but the claimant agreed to it, when she could equally have confirmed that she wanted it to go ahead. Therefore again, whilst the meeting was cancelled, the circumstances were not exactly as alleged. 6.3 If so, was that unwanted conduct?

[215]In relation to the refusal to allow a two hour CVP slot, it is clear from the claimant’s evidence that the claimant considers it unreasonable that she had to show an exception to justify the two hour appointment. As unwanted conduct is considered from the perspective of the employee, this was unwanted conduct.

[216]In relation to the video meeting on 13/14 February 2023, whilst we consider that this was a normal management interaction and designed to be supportive we accept that from the claimant’s perspective, it was unwanted.

[217]In relation to the alleged instruction to take down the Teams post, although we have not found that it occurred as alleged, in any case it was unwanted from the claimant’s perspective to be asked to consider taking down the post.

[218]In relation to the suggested meeting with Ms Lau, whilst again we consider the purpose of the meeting to be supportive in nature, it was again unwanted.

[219]In relation to cancelling the training however, we do not consider that to be unwanted given that it was merely put forward to the claimant as a possibility and the claimant confirmed that course of action. Had it been unwanted, and given that the claimant has felt able to be vocal about other matters, we conclude that the claimant would have made it clear that she did not want the meeting to be cancelled. Her complaint about harassment in the context of that allegation must fail. 6.4 Did it relate to race and/or disability?

[220]In relation to the initial refusal to allow the 2 hour CVP slots unless the claimant could show exceptions, this did not relate to disability. In order to determine whether the conduct is related to the protected characteristic, it is necessary to consider the mental processes of the alleged harasser, which may be conscious or subconscious.

[221]Here, we do not consider that the claimant has shown facts from which we could conclude, in the absence of another explanation, that there were any mental processes, conscious or subconscious, which related to disability. We also consider that the respondent has shown that the rationale for the one hour CVP slots except in exceptional circumstances was related to a shortage of CVP slots and making sure that slots were allocated fairly around the various resource requirements.

[222]Initially, Mr Daley and Ms Latham would not even have been aware of the claimant’s disabilities and even once they were, this was only in the context of travelling to face to face meetings.

[223]In relation to race, Mr Daley and Ms Latham would not have been aware of the claimant’s race. They were aware that the prisoner was not British and required an interpreter. Whilst they had that knowledge, the respondent has also presented the material fact of the existence of the respondent’s policy of only allowing one hour CVP meetings except in exceptional circumstances. We do not consider that the claimant has shown facts from which we could conclude, in the absence of any other explanation, that the treatment was related to race: the facts presented to the Tribunal show on the balance of probabilities that it was not related to race but rather related to application of the policy and procedure in place at the time. Even if the burden of proof had shifted to the respondent, we would have concluded that the respondent has shown that the treatment was not related to race but to application of the HMP Oakwood policies and procedures.

[224]In relation to the alleged urgent video meeting, in any case this did not occur as alleged. The reason for the meeting has been shown by the respondent to be primarily in order to support the claimant and check in with her, and to explain to her what the process was for a seeking a 2 hour meeting. It was however also used to request that she consider taking the post down.

[225]Although it was not specifically to consider matters relating to race and disability, given that it was to discuss the claimant’s wellbeing in the context of her having raised those concerns and to discuss the Teams post she made about those concerns, we conclude that it did relate to race and disability.

[226]In relation to allegedly instructing her to take her post down, we have already found that there was no instruction to do so. However, in relation to the request that she consider doing so, the reason why this request was made was because Ms Lau believed the post to have omitted relevant information for example about the way the situation was resolved and the process to follow in future and was therefore unbalanced and likely to cause confusion. It did not relate to race or disability.

[227]We turn next to telling the claimant that she was required to meet with Natalie Lau. Although this meeting was not a requirement, again whilst it was not specifically to consider matters relating to race and disability, given that it was to discuss the concerns raised by the claimant we conclude that it did relate to race and disability.

[228]As for altering and cancelling the training, the reason for this was because the claimant had raised concerns about her mental well-being. This was not in any way related to race. In relation to disability, whilst it did not relate to the disability issues in this claim, it did relate to her mental health which is one of her disabilities and therefore it did in that way relate to disability. 6.5 Did the conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? In considering whether the conduct had such effect:-6.5.1 What was the Claimant’s perception of the conduct;

6.5.2 What were the other circumstances of the case; and

6.5.3 Was it reasonable for the conduct to have that effect?

[229]In all cases we conclude that it did not have that purpose. The purpose of refusing her request for a two hour slot initially was simply to manage HMP Oakwood resource and implement its policies.

[230]The purpose of the remaining allegations of harassment was in all cases to support the claimant, explain to her the processes to follow should she face a similar situation again, and to listen to her concerns. In respect of the Teams post and the alleged request to remove it, the purpose was to ensure a balanced and informative account of the situation and what to do if it arose again for colleagues.

[231]As to the effect, we would start by commenting that in our view the real concern of the claimant at the time of requesting the two hour slot, and in dealing with the refusal of it, was about the prisoner’s need for an interpreter. It did not relate to the claimant.

[232]These events occurred over a very short period of time. To the extent that there was an initial refusal of the one hour slot, a two hour slot was granted later the same week.

[233]In relation to the alleged request to remove the Teams post, the claimant was advised only a few days later that not only did she not need to do so, but in fact the respondent would like her to retain it.

[234]In relation to the meeting with Ms Lau, as soon as the claimant expressed reluctance to attend it, it was cancelled.

[235]We consider those circumstances, despite occurring slightly after the events in question, to be highly relevant to the effect of the conduct on the claimant. Even if she had felt harassed in some way, within a very short period of time, the unwanted conduct had been reversed. We see this as akin to the situation in Forbes v LHR Airport (above) where an apology was relevant.

[236]More generally, in relation to all of the alleged unwanted conduct, we find that the claimant’s reaction to the conduct is entirely disproportionate to the nature of the conduct. We recognise that different individuals may react differently to certain conduct and that should be taken into account. However, we also note the following:a. In relation to the initial refusal by G4S, this lasted only a few days and it was made clear to the claimant that there was the ability to depart from the one hour limit in exceptional circumstances. All she needed to do was find out how to seek that approval.

b. It is in our view unreasonable to suggest that a manager cannot contact a member of their team without first making an appointment, and in fact in some circumstances making a prior appointment can cause unsettlement in itself.

c. We consider that the claimant has mis-conveyed the nature of the conduct in relation to the meetings on both 13 and 17 February, which was in fact supportive and showed that the claimant’s complaints were being taken seriously. In addition, the claimant had herself escalated the matter to very senior managers, so it would not be reasonable to then object to senior managers showing an interest in what the claimant had said. This must have been her wish.

d. She agreed to the cancellation of the meeting on 17 February 2023.

[237]This was a simple case of the respondent seeking to implement a justifiable policy. There was admittedly a lack of communication in that the process for seeking adjustments was not at that time documented, however this would have been easily resolved if the claimant had simply asked what the process was. Instead, she immediately jumped to asserting discrimination and escalating the matter to senior levels and posting on a Teams chat with a wide audience about her experience (which was imbalanced).

[238]Having done that, she could hardly have been surprised that the respondent wanted to discuss it with her. Had the respondent not done so, it could have been criticised for that.

[239]We conclude that, considering the claimant’s perception, the other circumstances and whether it was reasonable for the conduct to have that effect, none of the five stated matters amounted to harassment and did not have that effect on the claimant. 7. Victimisation (Equality Act 2010 section 27)7.1 Did the claimant do a protected act as follows: 7.1.1 Post on Teams on 10 February 2023 setting out why she felt the refusal to offer 2 hour CVP slots amounted to discrimination.

7.2 Did the respondent believe that the claimant had done or might do a protected act?

[240]This is accepted to amount to a protected act by the respondent, and we agree. 7.3 Did the respondent do the following things:7.3.1 Requiring the Claimant to attend an urgent video meeting with

7.3.2 Instructing the Claimant to take down her Teams post of 10 February 2023.

7.3.3 Telling the Claimant that she was required to meet with Natalie

[241]We refer to our earlier conclusions. 7.4 By doing so, did it subject the claimant to detriment?

[242]In relation to the video meeting on 13 / 14 February, and in relation to the meeting with Ms Lau, we do not consider that the claimant could have reasonably considered that was detrimental to her. To the extent she did so, that was not reasonable for the reasons we have already identified.

[243]In relation to the alleged instruction to take down the Teams post, as explained earlier we have concluded that this was a suggestion to consider, not an instruction. That said, we do accept that from the claimant’s perspective, given that she clearly wanted the post to be visible, it would have reasonably been considered by her to change her position for the worse to be asked to consider removing it. That is the case even though the request itself was civil in tone. 7.5 If so, was it because the claimant did a protected act? 7.6 Was it because the respondent believed the claimant had done, or might do, a protected act?

[244]The fact that the claimant has carried out a protected act and has been subjected to a detriment is insufficient on its own to shift the burden of proof to the respondent to show that discrimination has not occurred. There would need to be something to suggest that there could be a causal link between the act and the detriment.

[245]We have found that the reason for the video meeting was in fact decided before the protected act. We have seen that on 10 February, before the claimant posted her Teams post, Mrs Walton had indicated that she would contact the claimant the following week, as she did. The protected act cannot therefore have been the motivation for the call. The claimant has not shown facts from which we could decide, in the absence of any other explanation, that discrimination has occurred. To the contrary the respondent has shown that the treatment was not because of the protected act.

[246]We recognise that the request to remove the Teams post clearly has a connection to the protected act, in that it is the protected act in itself that the claimant was asked to consider removing. The allegation as pleaded has failed given that there was no specific instruction to remove it. However, in relation to the request to consider removing it, were that the pleaded act of discrimination then we would find that the claimant has shown facts from which, in the absence of any other explanation, that victimisation had occurred. However, the respondent has shown that the reason why the claimant was asked to consider removing her Teams post was not because of her protected act, and that it was not a significant influence. The respondent has shown that it was because the post itself was unbalanced, likely to cause confusion, and did not set out the process to follow. It was also contrary to the respondent’s stated values. Therefore, even though the request clearly came about as a result of the claimant having made her post which was a protected act, the reason for the treatment is separable to the protected act itself.

[247]In relation to the request to meet with Ms Lau, we repeat that we have not found that the allegation occurred as alleged, in that there was no such requirement. However, in relation to the request to meet with Ms Lau, again we recognise that there was a connection to the protected act in that Ms Lau intended to discuss the matters which were included within it. That however is not in our view sufficient to shift the burden of proof: if an employee raises a complaint, the fact that a respondent wants to discuss that complaint is in fact a natural consequence of it being raised and to do otherwise would expose the respondent to potential criticism. We do not consider the burden of proof to have shifted. In any case, we also consider that the respondent has shown that the purpose of the proposed meeting was not significantly influenced by the protected act: it was in response to the claimant’s concerns more generally (not only through the protected act but also through her email to management) and to ensure that she was supported from a well-being perspective and understood the process to follow in future. To the extent that the Teams post would have potentially been discussed at that meeting, we refer to our earlier findings about being asked to remove the Teams post, however in any event by that stage she would have been told to keep it.

[248]None of the three allegations were because the claimant did a protected act (or because the respondent believed the claimant had done or might do so).

[249]The claimants claims in their entirety therefore fail. We do not need to consider time limits or agency status or whether the claimant was disabled by reason of vertigo at the relevant time.