Miss L Ashwell v Halo Resourcing Ltd (in voluntary liquidation) and Moorgate Finance Ltd: 1306453/2024 Miss L Ashwell v Halo Resourcing Ltd (in voluntary liquidation) and Moorgate Finance Ltd: 1306453/2024
EMPLOYMENT TRIBUNALS
Case No 1306453/2024
Between
Miss L AshwellClaimantHalo Resourcing Ltd (in voluntary liquidation) and Moorgate Finance LtdRespondent
Before
Employment Judge EdmondsNot represented for claimantNot represented for respondentDate 22 January 2026
REASONS
[1]The claimant was an applicant for employment. The first respondent is a recruitment agency, now in voluntary liquidation. The claimant applied for a role with the second respondent through the first respondent.[2]ACAS was notified under the early conciliation procedures on 8 May 2024, with the certificate being issued on 19 June 2024. The claim form was submitted on 8 July 2024. The claim was presented within the required time limits.[3]Both respondents submitted separate response forms, the first respondent doing so on 20 September 2024 and the second respondent doing so on 3 September 2024. A preliminary hearing took place on 22 January 2025, with both respondents and the claimant in attendance. By the time of this hearing, the first respondent had entered voluntary liquidation and the liquidators had informed the Tribunal that the first respondent would not be attending. The claimant’s non-attendance at this hearing is explained further below. Claims and Issues[4]The issues to be determined were set out in an Annex to the Record of Preliminary Hearing dated 22 January 2025 (page 52-63, at page 62). The remaining issues, after the direct age and sex discrimination complaints had been struck out (see below) were: Victimisation (s27 Equality Act 2010) – against 1st Respondent (Halo)[1]The 1st respondent (Halo) accepts that on 16th April 2024 the claimant did tell her that she had raised a sex discrimination grievance against her former employer, Vin-X.[2]Did the 1st respondent (Halo) tell the 2nd respondent (Moorgate) that the clamant had raised a sex discrimination grievance against her former employer, Vin-X?[3]By doing so, did 1st respondent subject the claimant to detriment?[4]If so, was it because the claimant did a protected act? Victimisation (s27 Equality Act 2010) – against 2nd respondent (Moorgate)[5]The 1st respondent (Halo) accepts that on 16th April 2024 the claimant did tell her that she had raised a sex discrimination grievance against her former employer, Vin-X.[6]Did the 1st respondent (Halo) tell the 2nd respondent (Moorgate) that the claimant had raised a sex discrimination grievance against her former employer, Vin-X. Both respondents deny this.[7]The 2nd respondent accepts that it rejected the claimant for the role of Finance Broker to her detriment by rejecting her application for the Finance Broker role.[8]Was it because the claimant did a protected act? Procedure, documents and evidence heard General matters 5. I was provided with a hearing file amounting to 107 pages, along with witness statements from Mr Drawwater of the second respondent and the claimant, and a further document from the claimant setting out her response to Mr Drawwater’s witness statement. Page references in these Reasons are to the relevant page of the hearing file, unless otherwise stated. 6. During the course of the hearing I also received written submissions from both the claimant and second respondent in relation to the preliminary issues (see below) and to the claim more generally. The second respondent also provided oral submissions. Claimant’s non-attendance 7. The claimant has apparently moved abroad, with no intention to return to the UK. The parties provide differing accounts of why the claimant is abroad, with the second respondent saying that this is because there is an arrest warrant for the claimant (relating to matters arising in relation to her previous employer) which she is seeking to evade and the claimant saying that it is for her own personal safety (although she referenced in her written submissions on 13 January 2026 that she had been subjected to “retaliatory arrests” and has not at any time specifically denied that an arrest warrant exists). 8. In any case, on 6 January 2026 the claimant had written to the Tribunal requesting a postponement of the hearing and saying that she was no longer resident in the UK. The Tribunal responded on 8 January 2026, including a link to the Presidential Guidance on giving evidence from abroad, granting permission to the claimant to attend the first part of the hearing by video and explaining that the Judge at the hearing would decide whether the claimant was permitted to continue to attend by video and, if pursued, whether to postpone the hearing.[9]By further email dated 12 January 2026 the claimant advised the Tribunal that she was in France. She requested permission to give evidence remotely from France: the government of France has not granted permission for individuals to give evidence in civil proceedings from abroad and therefore the Tribunal did not grant that permission.[10]A short while later, at 7.39am, she emailed the Tribunal stating that she had attempted to join the conference platform but was unable to do so as the system could not access her camera or microphone. She attached a screenshot in support of this. She further stated that she did not have access to a reliable telephone line either. She said that she was willing to participate by whatever method the Tribunal directs, subject to those constraints.[11]The hearing was slightly delayed whilst the Tribunal tried to contact the claimant, first to see if she could provide any telephone number at all so that the Tribunal could call her to talk her through her technical difficulties and then, having been advised by the claimant that there was not, by the Tribunal emailing the claimant some suggested steps that she could take to try to resolve her difficulties. The claimant replied to say that she remained unable to access the remote hearing platform. In those circumstances there was nothing more that the Tribunal could do to assist the claimant and the claimant proposed to send written submissions to the Tribunal in relation to the preliminary matters to which I turn below.[12]Notwithstanding that the claimant was in communication over email, I considered that this fell within Rule 47 of the Employment Tribunal Procedure Rules 2024 i.e. the claimant had failed to attend the hearing. I considered whether to postpone the hearing, dismiss the claim in the claimant’s absence, continue in her absence to deal with the final hearing or continue to deal with the preliminary points regarding specific disclosure and strike out application in her absence and postpone the hearing thereafter. I delayed the start of the hearing a short while further so as to invite the claimant to make any submissions over email, and the respondent made further submissions orally once the hearing got underway.[13]The claimant sent a six page written response to the respondent’s skeleton argument on strike out / specific disclosure and asked that the Tribunal consider this in lieu of her physical attendance. She therefore had an opportunity to put her views across.[14]I decided that it was not in the interests of justice to dismiss the claim in its entirety, as whilst the claimant had not attended it was clear that she did still wish to pursue her claim. However, I was aware that the claimant was abroad and that she was likely to remain abroad for the medium to long term: therefore if the hearing was postponed that was unlikely to result in her returning to the UK. The technical difficulties had not been resolved, and the claimant did not have telephone access. Again, there was no indication that this was a temporary issue likely to be fixed in the near future. The second respondent’s witness was present at the hearing and ready to proceed with the hearing. The first respondent was not present, but was not expected to be, and if I postponed the final hearing then I was also mindful that by the time of any relisted hearing that company might have been wound up (in which case the claim against the first respondent would not be able to proceed).[15]I also discussed with the second respondent’s representative whether they continued to pursue their application for strike out and/or deposit order. I asked this because it had been made some months earlier and unfortunately it had not been addressed by the Tribunal. I was not clear whether the second respondent would still wish to pursue it in circumstances where they had by that time fully prepared for final hearing and were present at that hearing. The second respondent confirmed that it did not wish to pursue the deposit application (as, if that were successful, that would result in the necessary postponement of the final hearing in order to allow time for payment to be made) but it did nevertheless wish to pursue the strike out application.[16]In light of the above, I decided it would not be in the interests of justice, nor in accordance with the Overriding Objective, to postpone the hearing. I decided to go ahead and deal firstly with the specific disclosure request, then the strike out (if pursued, which it was) and then progress to final hearing if the specific disclosure request had not been successful and/or the claim had not been struck out. Specific disclosure request[17]The claimant had submitted a specific disclosure request dated 15 August 2025, which again unfortunately had not been referred to a Judge to address prior to this final hearing. Her application was for specific disclosure of:a. The CVs of “all 47 hires previously referenced” by the second respondent;b. “All CVs submitted for the relevant role” by the first respondent to the second respondent; andc. “The CV of each sales team member, including the Sales Manager, from the time of their employment” with the second respondent.[18]Having taken into account the submissions of both parties, I decided not to make an order for specific disclosure.a. In relation to the 47 hires, I found that there had been a misunderstanding on this point. This number had been taken from the second respondent’s amended Grounds of Resistance which had referred (at paragraph 9 thereof) to the second respondent “recruited 47 members of staff”. The claimant had (understandably) interpreted the way it was worded to mean that there had been 47 staff recruited as part of the recruitment exercise that she says she was part of. However, in actual fact I found it was intended to convey that at the relevant time the second respondent had 47 staff in total. I found that it was not relevant, not necessary to fairly dispose of the proceedings, for the CVs of all members of staff to be disclosed, and in effect this was a fishing expedition: the claimant had no evidence about those individuals that she wanted to verify, she was seeking those CVs on an assumption that it would show that she was more qualified than they were. They had not applied for the specific role that the claimant applied for and their CVs were not relevant to these proceedings, and it would not be in accordance with the Overriding Objective (in particular, to deal with cases in ways which are proportionate to the complexity and importance of the issues, avoid delay and save expense) to order specific disclosure.b. I was satisfied that there were no CVs other than the claimant’s that were put forward by the first respondent for the role of Finance Broker at that time (see findings of fact below) and therefore there was nothing that I could order disclosure of.c. It was not relevant nor necessary to fairly dispose of the proceedings to disclose the CVs of each sales team member. Again, I found that this was in effect a fishing expedition. The claimant in her submissions had referenced two individuals in particular: Mr Churcher and Mr Olney. The second respondent is not aware of a Mr Olney and I accept their submission that this is likely to be a reference to an employee named Mr Olden. I was satisfied that neither of these employees were recruited at the same time as the claimant, nor were they recruited into the role that the claimant says that she applied for. In those circumstances I did not consider that their CVs would be relevant to the issues in the claim. Strike out application[19]Having declined to order specific disclosure, I went onto consider the second respondent’s application for strike out, again taking into account the written submissions that the claimant had provided earlier that day. This application related only to the second respondent: if the complaints were struck out against the second respondent, they would nevertheless proceed against the first respondent. There were various grounds for the application and I deal with each in turn below.[20]Rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 provides that: 38(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds –(a) That it is scandalous or vexatious or has no reasonable prospect of success.(b) That the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious. No reasonable prospects of success[21]The claimant had put forward no evidence in support of her complaint of direct sex and/or age discrimination. She relied on her application for specific disclosure as a way to try to identify any pattern of adverse or preferential treatment (which I found to be a fishing expedition). The two specific individuals that she had named in her submissions on the morning of the hearing (Mr Churcher and Mr Olney/Olner) were individuals who were not recruited at the same time as her, nor recruited into the same role that she had applied for. She had made an assertion that women were under-represented at the second respondent and that she was older than the second respondent’s employees but has provided no evidence to support that. In essence, her case was simply that she was such a good applicant that there must be a discriminatory reason for not taking forward her application.[22]The burden of proof for direct discrimination complaints rests initially with the claimant to show a prima facie case: if she does then the burden would shift to the respondent to show that discrimination did not occur (see the Law section below). However, contrary to what the claimant has submitted, a mere difference in treatment is not enough on its own to shift the burden of proof: there must be something more, although the “something” need not be significant. Here, the claimant has not put forward a “something”, whether in her witness statement or through her disclosure documents (and for the avoidance of doubt her general belief that women are under-represented and that she is older than other staff would not be sufficient to represent the “something more”). To the contrary, in her witness statement she in fact stated that she believed the real reason she was rejected was that the first respondent told the second respondent about her Tribunal proceedings against her previous employer (i.e. that she was victimised). She did not allege that the reason was her gender and/or age.[23]I took into account that the claimant is a litigant in person, however it was also clear to me from her written submissions that she had the ability to research legal principles (a number were quoted in her submissions).[24]I recognised that, as per Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL, it is important not to strike out discrimination complaints except in the most obvious cases: they are usually fact sensitive. However, taking the claimant’s case at its highest, there would be no shifting of the burden of proof. Therefore, I struck out the complaints of direct age and sex discrimination on the basis that they had no reasonable prospect of success.[25]I found however that there was one key difference between the direct discrimination complaints and the claimant’s victimisation complaint. It was accepted by the first respondent in its Response Form that the claimant had told it about her dispute and claim with her previous employer. This occurred in close proximity in time to when the victimisation is said to have occurred. Whilst I recognised that both respondents have said in their respective response forms that this information was not passed onto the second respondent, that is an evidential matter and the second respondent is able to give evidence on that point. I could not therefore say at that stage that the complaint has no reasonable prospects of success and do not strike the victimisation complaint out. Manner in which proceedings conducted[26]The second respondent also submitted that the claim should be struck out against the second respondent because the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious. This relied on various matters and I deal with each in turn below. The respondent submitted that as a result of these matters a fair trial would not be possible.a. Allegation that the claim had been brought relying on inaccurate and misleading information which the claimant had put before the Tribunal. In this regard the respondent argued that the claimant had no evidence to support her claim, and no reason to believe that the first respondent had informed the second respondent of her protected act. It was submitted that the claim had been presented to be vexatious, knowing that it had no real prospects of success. I concluded that whilst I had determined that there was no evidence to support the direct discrimination complaint, it was not uncommon for claimants to put forward claims without direct evidence and I noted that from the claimant’s correspondence it appeared that she mistakenly believed that if she could show a difference in treatment, that would be sufficient. Whilst that is not the case, I did not conclude that this was scandalous, unreasonable or vexatious in itself.b. Application for postponement from the claimant dated 6 January 2026, in that the claimant had said that she had not had proper notice of the final hearing and did not know that it was going ahead, when it was clear that it was. I concluded that, whilst the claimant had made a specific disclosure application which regrettably had not been addressed by the Tribunal, the listing date was clear and had been notified to the parties. It was not a provisional listing and there was no correspondence from the Tribunal to suggest that it would not go ahead. The claimant must have known before 6 January 2026 (when she applied for the postponement) that she would be abroad and not able to attend the hearing. I concluded that this amounted to unreasonable conduct.c. Claimant’s non compliance with orders. The respondent submitted that the claimant had delayed complying with orders, ignored the Tribunal’s directions and failed to respond to the respondent’s communication. I noted that I had not seen all the specifics of what it was that the claimant had done which was said to amount to non compliance. I also noted that, by the time of the final hearing there was a bundle and witness statements which would enable the hearing to proceed. In the absence of detailed evidence on the matter, I did not conclude that there was scandalous, unreasonable and/or vexatious conduct.d. Claimant’s alleged attempt to evade the justice system. This was on the basis that the respondent submitted that the reason why the claimant had left the UK was because she was subject to an outstanding arrest warrant. I was directed to the Judgment of Employment Judge Fowell in the case of 6004408/2024 which was the claimant’s Tribunal claim against a previous employer, and which had been dismissed for reasons related to allegations of criminal wrongdoing made against the claimant by individuals at that employer (harassment of witnesses in those proceedings), and which was said to have led to the claimant leaving the UK. I noted that it did appear that there may be a warrant for the claimant’s arrest, although no evidence had been seen by the Tribunal in that regard. The claimant’s written response to the respondent’s skeleton argument referred to her being resident in France for “safety reasons” and did not comment on whether or not there was such a warrant. I concluded that these Tribunal proceedings were separate to the one which appeared to have led to the claimant leaving the country. I concluded that the fact of the potential arrest warrant in itself did not amount to unreasonable, scandalous or vexatious conduct. However, I did conclude that there was unreasonable conduct by the claimant in failing to notify the Tribunal until 6 January 2026 that she was abroad and therefore would not be able to attend the hearing in person, as outlined above.e. The contents of the claimant’s email dated 22 December 2024. This was an email from the claimant to the Tribunal and the respondents, in which the claimant had said that she would be publishing an article in a national newspaper naming the respondents, that this would be “very embarrassing” for them and that it would impact on their reputations. She ended by saying that if they decided to settle their names would not be mentioned. Neither party made any submission that the contents of the email were “without prejudice” and that I should not refer to it. In addition, reference was made by the respondent to a separate YouTube video which the claimant had posted, although now apparently deleted or hidden (so I was not able to see it for myself) in which the claimant said “I am taking [R] to court for discriminating against me, because they won’t settle; they are putting a rape victim through more distressing content”. The second respondent submitted that this caused the second respondent’s witnesses to feel “incredibly distressed”. The claimant did not refer to this in her response to the second respondent’s skeleton argument and, in the absence of any submission to suggest that it was not posted, I find on balance of probabilities that it was. Taken together, I conclude that the email of 22 December 2024 and the YouTube video amounted to both unreasonable and vexatious conduct designed to put inappropriate pressure on the respondent. I took into account the case of Attorney General v Barker [2000] EWHC 453 as to the meaning of “vexatious”. Whilst I recognise that “vexatious” is something more than being misguided, the motive and intent of these communications was to harass the respondents and/or was improper in that it was to place improper pressure on them with inappropriate threats of negative publicity: this was more than a simple contemplation that the matter may be reported on in the open press (which would not be inappropriate). It was also entirely inappropriate and improper to link the respondents’ treatment of the claimant to the fact that she said she was a rape victim, which is entirely unrelated to the circumstances surrounding her claim against those respondents. The two communications amounted to an abuse of process.[27]I then went onto consider, in relation to those matters in respect of which I had found unreasonable and/or vexatious conduct, whether a fair hearing remained possible and whether strike out was a proportionate response (Blockbuster Entertainment Ltd v James 2006 IRLR 630, CA). I concluded that a fair trial did remain possible: the conduct was not such that the second respondent had been intimidated against providing evidence in these proceedings (the first respondent not attending because of voluntary liquidation and not because of these matters). I also concluded that it would not be proportionate to strike out the claim, when the second respondent was ready and able to give evidence and it was possible (unless the hearing was postponed) to conclude the hearing within the listed hearing dates.[28]Therefore whilst the direct discrimination complaints had been struck out, the victimisation complaint would proceed to final hearing. Claimant’s written submissions[29]By this time, the claimant had been made aware via email that the final hearing would go ahead in her absence should the claim not be struck out. The claimant emailed the Tribunal at 2.34pm, confirming that she was willing for the Tribunal to proceed that day in her absence, and requested that this be on the basis of her submissions already filed with the opportunity to provide any further written commentary that the Tribunal may consider helpful. A further email was sent to her shortly before evidence commenced to advise her that her direct discrimination complaints had been struck out but that her victimisation complaint would be proceeding to final hearing at around 3pm that day.[30]I therefore proceeded to hear the evidence from the second respondent’s witness, Mr Drawwater, that afternoon. I then adjourned the hearing until the next morning when submissions would be made, and arranged for an email to be sent to the claimant advising her that she could provide any written submissions in relation to her claim by 9am that morning. I also arranged for a separate email to be sent to her to inform her that the second respondent had indicated that the Tribunal should not attach any weight to either her witness statement, or to a document which she had previously submitted in response to Mr Drawwater’s witness statement, and that if she had submissions to make about that, she should include that in any written submissions. I also informed her that she was still welcome to join the hearing remotely should she resolve her technical difficulties.[31]The claimant ultimately provided written submissions amounting to 26 pages, along with some further emails by way of evidence relied upon (which were copies of emails already in the hearing file). Whilst these did refer to a request that the Tribunal “allow the victimisation claim to proceed to a full hearing”, I considered that it had been made absolutely clear to the claimant that the hearing was progressing as a final hearing. Given the length of this document, it was more likely that she had already prepared a draft version before the hearing commenced (at which time she was not aware that she could not give evidence remotely from France) and that this was an amended version of that draft.[32]The respondent also provided written submissions, and supplemented them with oral submissions. The claimant did not attend the hearing on the second day. I then adjourned the hearing to reach my decision, and reconvened the hearing later on that day to deliver my judgment orally. Weight to attach to Claimant’s witness statement in her absence[33]The claimant did not attend the hearing but has put forward an apparent explanation for this, specifically that she is residing in France and has technical difficulties that cannot be resolved (and no telephone number that can be used). In any event, France is not one of the countries which has permitted remote evidence to be given from abroad in civil proceedings. Whilst the claimant and respondent have put forward slightly different accounts of why the claimant is residing in France, it is clear that the claimant has no intention of returning to the UK at this time and therefore would not give evidence in person or remotely from the UK.[34]Two key features of evidence in the Employment Tribunal are the requirement for an oath to be sworn as to the truth of the written and oral evidence, and the ability for the other party to question the witness on their written witness statement, and to challenge the contents of it. That was not possible in this case and therefore I take the points raised in it with significant caution. I do not discount it entirely, in particular there are some points within it which are referenced in contemporaneous documentation, however I bear in mind that the claimant has not been challenged on her evidence. In any event, as I will come onto, the claimant has not in fact got any direct evidence on the key issues in the claim, namely whether or not the first respondent told the second respondent about her previous employment dispute and what the reason was for the second respondent rejecting her for it, save for her assertion that her CV demonstrates that she was suitable for the role and that she would commute. I can address these points in my conclusions using her CV which we do have and the evidence we do have on the location point.[35]In relation to the second document prepared as a response to the witness statement, this is not explicitly stated to be a witness statement although the claimant has added a statement of truth and therefore clearly expected it to be used as such. Whilst the claimant says that preventing her from responding would offend basic fairness, that is not the case: ordinarily the appropriate forum to challenge a witness statement would be through cross examination of the individual at the final Tribunal hearing. Of course the claimant was not present to do that. I have decided again not to completely ignore it, as it indicates the areas in respect of which she does challenge his evidence, but again I bear in mind that she has not sworn an oath, nor can she be questioned on these comments, and therefore attach them limited weight. Having said that, again this statement shows for the reasons set out below that the claimant has in fact limited knowledge of the relevant facts in relation to this claim.
Facts
[36]The first respondent is a recruitment agency who put the claimant forward for employment at the second respondent. The second respondent is an independent asset finance brokerage, which provides financial services for business related assets in areas such as motorsport, construction, retail and agriculture. At the time of the events the claim is about, the second respondent had 47 employees (taken from their amended Grounds of Resistance at page 65). The claimant misinterpreted the wording “recruited 47 members of staff” to mean that 47 people were recruited in the particular recruitment exercise that she thinks she applied for. I can understand why she has drawn this conclusion given the wording used by the second respondent but having heard evidence from the second respondent I find that in fact this number represented the totality of the second respondent’s workforce at that time.[37]In around April 2024, the claimant had discussions with Ms White at the first respondent with a view to sourcing a new role. During those discussions, the first respondent discussed a role with the claimant at the second respondent and then on 16 April 2024 Mrs White sent her the purported job specification for the role of Finance Broker at the second respondent (page 92 and 103). This role does not specifically set out a requirement for asset finance experience (which will become relevant later) however it is clear that the role is about dealing with businesses in need of financial support. In any case, this role did not specifically exist at that time as I explain below.[38]During their oral discussions, the claimant informed Ms White of the first respondent of the fact that she had brought a claim against her previous employer for alleged discrimination. That was not contained within their written exchanges, but both the claimant and first respondent have accepted that the information was shared in their respective pleadings and so I find that it was.[39]In actual fact, no Finance Broker role existed at that time at the second respondent. The second respondent does not use the job title “Finance Broker” in its roles and I accept the second respondent’s evidence that it was not aware that the first respondent was suggesting such a role to the claimant. We have not heard any evidence from the first respondent given it is in voluntary liquidation and therefore cannot make any specific finding as to what happened here: however a potential explanation would be that the first respondent wanted to put forward a speculative application in the hope that the second respondent would like the claimant’s CV and be interested in taking it forward regardless.[40]The second respondent had however previously run a recruitment exercise in March 2024 for the position of Account Executive (page 106). This was a more junior administrative position than the purported Finance Broker role, although some elements of the job descriptions were similar. The second respondent does also have a role of Account Manager for which it advertised in June 2024 (I was not provided with the job description for that role) although that role was ultimately not progressed due to an internal restructure. This is more senior than the Account Executive role.[41]Ms White did put the claimant forward for a role at the second respondent on 24 April 2024 by sending the claimant’s CV to Adam Drawwater, Commercial Director at the second respondent (page 95 and 101). In her email she does not mention the precise job title of the role purportedly being applied for, but refers to the claimant as being “BD through and through”. She refers to the claimant’s experience in commercial [lending] and exposure to finance and private banking, and says that she feels that there are transferable skills from her previous role. She ends by saying that she felt that the claimant has great commercial acumen and could hit the ground running with over 10 years of roles on her CV which cover all aspects of the Asset Finance role.[42]In the email she does not mention the claimant’s claim against her previous employer, nor is there anything to suggest that she has had any oral discussions with Mr Drawwater. Mr Drawwater’s clear evidence was that she had not and I find that there were no oral discussions to supplement that email.[43]Mr Drawwater replied on the same day (page 94) stating “Hi Amanda, looks like a good candidate for a junior role. Unfortunately their experience and remoteness wouldn’t make it one for us”. In his witness statement Mr Drawwater had said that the claimant might be suitable for a junior role but not “for our vacancy”. I asked Mr Drawwater why he referred to a vacancy if in fact there was not a live vacancy at that time. He explained, and I accept, that if an experienced person with significant asset finance experience had come along then he might still be interested regardless, although for junior roles they would only recruit at set times due to training restraints. I find that his witness statement was somewhat clumsy in its use of the word vacancy but that in reality what he was saying was that he did review the CV regardless of there being no vacancy and the experience was not such that it would warrant pursuing regardless.[44]Mr Drawwater explained in his evidence (both written and oral) that there were several reasons why the claimant was not suitable for a more senior role. Primarily, and crucially, the claimant’s CV did not suggest sufficient experience in asset finance work. Whilst the claimant suggests, and I accept, that her past roles will have some transferable skills and financial aspects to them, there is nothing on her CV that specifically draws attention to asset finance – so even if she has that experience it was not immediately apparent as being a focus of her past work. Whilst the job descriptions we have seen did not refer to asset finance, there was no role available at the time and therefore the wording of the job description does not necessarily match the kinds of skills that would need to jump out at Mr Drawwater in order for him to want to pursue a candidate outside of a specific recruitment process.[45]In addition, Mr Drawwater felt that the role was office based and the claimant lived too far away. I heard in evidence and I accept that there is an initial training period in order to meet FSA competency requirements and that employees need constant supervision during that period, and so must be office based. Thereafter, the second respondent would usually expect office based attendance during around the first two years of employment. The claimant says that she was willing to commute and/or relocate. That may be the case, and she may even have told the first respondent this, but Mr Drawwater was not told this.[46]In relation to a more junior role, even if there had been one, junior roles are not recruited through agencies as the second respondent takes the view that it is not worth the agency fees.[47]In response to Mr Drawwater’s email, Ms White said “I thought that might be the case” (page 94). This demonstrates that Ms White also was not certain of the claimant’s competency for a role at the second respondent. She also went onto say “there was just something great about her” which suggests that Ms White genuinely wanted the claimant to secure a role.[48]I find that throughout the correspondence between Ms White and Mr Drawwater, at no time did the first respondent inform Mr Drawwater (or the second respondent more generally) that the claimant had brought a Tribunal claim against a previous employer and/or that she had had a dispute in any way with that employer. I also find that there were no oral conversations about the matter. The contemporaneous evidence shows that it was not referenced, and I also find that it would not have made sense for Ms White to have mentioned it (particularly in an attempt to sabotage the claimant’s career, as suggested in section 9.2 of her claim form), because she wanted the claimant to be appointed into a role at the second respondent so that she could receive the commission associated with that. Therefore, I find that Mr Drawwater had no knowledge of the claimant’s Tribunal claim.[49]Ms White emailed the claimant to let her know that the second respondent was not interested due to the claimant’s lack of asset finance and said that she would keep looking for other roles for the claimant (page 91). The claimant replied, saying that she was really keen on the role, that she had just started a course in financial markets so “I do plan to be dedicated, and continue to learn in my own time” and “After some research on asset finance, I do feel confident I can successfully qualify and close clients, as well as generate referrals. Would he reconsider on this basis?”[50]This email shows that the claimant did not have an asset finance background. The fact that she had to do some research shows this, and the fact that she is talking about training herself up on the area, whilst commendable, again shows that it was not a current area of expertise for her. This is supported by her CV which, whilst referencing various business development roles, did not refer to asset finance specifically[51]Ms White replied to say that the second respondent wanted clients with “solid asset finance backgrounds” (page 90) and, following a request for further clarification from the claimant, provided some additional detail (page 89).[52]In response, on 2 May 2024 (page 87) the claimant sent a lengthy, aggressively worded email to Ms White, making various accusations against her. The tone of the email is a significant change from the tone of the previous correspondence and is in certain aspects rude (“I’m not remotely interested in your excuses, or the state of your children’s health”). It is astonishing that the tone of the email has changed so dramatically. This appears to be the end of the contact between the first respondent and the claimant.[53]The second respondent did not have any direct contact with the claimant at any point prior to these proceedings.[54]Finally, the claimant points to two named comparators – Mr Churcher and Mr Olden (who I consider the claimant is likely to have meant when she referred to Mr Olney in her submissions in her specific disclosure request, as Mr Drawwater has explained that there is no employee named Mr Olney). Neither of these were applying for roles at the same time as the claimant and I do not consider them to be in similar circumstances to her.
Law
[55]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.[56]The detriment will not be due to a protected act if the person who put the individual to the detriment did not know about the protected act (Essex County Council v Jarrett EAT 0045/15, and Deer v Walford and anor EAT 0283/10 where awareness of “some sort of legal case” was insufficient to establish knowledge).[57]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, [2005] ICR 931.).[58]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).[59]The focus should be on the motivation of the person who submitted the individual to the detriment. If a third party provided “tainted information” to influence the decision maker, that would need to be raised as a separate allegation, otherwise an innocent party could find themselves liable for an act for which they were personally innocent (Reynolds v CLFIS (UK) Ltd and ors 2015 ICR 1010, CA).[60]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.[61]In considering whether a prima facie case is made out so as to shift the burden of proof, the Tribunal may rely on inferences. 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).[62]In the context of direct discrimination, 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.” 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)[63]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).
Conclusions
[64]In these conclusions I go through the List of Issues at page 60. Only the victimisation complaint remains. In summary, it is for the claimant to show that they have done a protected act, and that they have suffered a detriment. However, that in itself is unlikely to be sufficient to shift the burden of proof: something more is required.[65]I have seen evidence of the existence of a Tribunal claim relating to sex discrimination raised by the claimant against her previous employer. That was a protected act. Victimisation - first respondent[66]The first respondent accepts (in its ET3) that on 16 April 2024 the claimant told Amanda White of the first respondent about the existence of that claim. The first respondent therefore had knowledge of it. In the list of issues it refers to a “grievance”: that is not what the correspondence suggests was discussed but in any event in its broader sense I find that the claimant told the first respondent about her dispute with the previous employer. Did the first respondent tell the second respondent that the claimant had raised a sex discrimination complaint / grievance against her former employer? By doing so, did the first respondent subject the claimant to detriment?[67]I have found that it did not. For the avoidance of doubt, this relates to both the Tribunal claim itself, and the wider dispute and/or any grievance that the claimant may have had against the former employer.[68]The claimant has suggested that the burden of proof has shifted to the first respondent to show that victimisation did not occur. I recognise that there was a protected act, and that it was shortly after the claimant told the first respondent about it that the first respondent emailed the second respondent about the role. I have considered whether the fact that there was a protected act, coupled with the proximity in time between the first respondent becoming aware of the protected act and the second respondent rejecting the claimant’s application, is the “something more” which would shift the burden of proof. However, if the first respondent did not in fact tell the second respondent about the protected act then the alleged detriment did not occur. I take into account that the first respondent would have benefitted financially from the claimant succeeding in her application, and the fact that the protected act is not referenced in the email correspondence between the respondents, nor is there any suggestion of any supplementary oral discussions (and I have found that there were not any). In those circumstances, the conclusion that I have reached is in fact that the first respondent would not have done anything which could jeopardise the application in any way and that the alleged detriment did not occur. The burden does not shift.[69]At this stage, the complaint against the first respondent must fail: the act which is stated to amount to a detriment did not occur. It is therefore not necessary to consider whether that act amounted to a detriment or whether it was because of the protected act. Victimisation - second respondent[70]As explained above, it is accepted that there was a protected act and that the first respondent had knowledge of that protected act. Did the first respondent (Halo) tell the second respondent (Moorgate) that the claimant had raised a sex discrimination grievance against her former employer, Vin-X. Both respondents deny this.[71]The second respondent accepts that by rejecting the claimant for the role of Finance Broker that amounted to detriment. I agree with that: notwithstanding that the role did not exist, there was also reference to her lack of experience in rejecting her.[72]In order to consider whether the detriment occurred because the claimant had done a protected act, it is necessary to consider whether the second respondent was aware of the protected act: if it was not aware of it then the detriment cannot have been because of it.[73]As explained above, I have found that the first respondent did not tell the second respondent about the protected act. The second respondent had no knowledge of it. In the absence of knowledge, the second respondent cannot have put the claimant to detriment because of the protected act and the claim must fail.[74]The claimant’s position is that the burden of proof has shifted to the second respondent to show that it rejected the claimant for a nondiscriminatory reason, on the basis that she has shown the protected act and the detriment. With no disrespect to the claimant as she is representing herself, I conclude that she has misunderstood the legal test.[75]On a practical level, even if the burden of proof did shift, then the respondent has shown that it did not victimize the claimant given its lack of knowledge of the protected act. However, the burden of proof did not shift to the second respondent in any event. The fact of a detriment and a protected act is not enough on its own, there must be something more even if the something is relatively small. The claimant relies on the fact that she considers her CV to demonstrate that she was suitable for the role and/or more suitable than other employees. I have not found that this was the case. There were no other applicants for roles at that time (nor was there in fact a live role). Regardless of that fact, whilst the claimant says that she was more qualified than other individuals (notably the stated comparators), I have found that the claimant’s CV did not demonstrate the experience that the respondent would wish to see as supported by her own comments to the first respondent once she was unsuccessful for the role. Whilst the job descriptions I have been provided with do not reference asset finance specifically by name, I do not draw any inferences from that as firstly there was no live role in any case and secondly it is clear that this is a finance company specialising in providing finance to organisations. Asset finance would form part of that, even if not spelled out.[76]Whilst the second respondent’s explanation for the treatment is not relevant at the first stage of the burden of proof, all material facts can be taken account of at the first stage, including those adduced by the respondents. There is clear contemporaneous evidence showing that there was no vacancy at the time, and that the claimant’s CV did not refer to asset finance experience. The second respondent gave the first respondent a clear explanation of why the application was not being taken forward which supports those facts. The first respondent did not inform the second respondent that the claimant had the relevant experience specifically (she referred to potential transferable skills from selling fine wine investments) or that the claimant would be willing to work from the office despite the distance from her home. The inference that can be drawn from this is that the second respondent based its decision on its reasonable interpretation of the information provided to it about the claimant’s experience and location. The claimant in her written submissions says that the contemporaneous documents speak for themselves: that is true but what they actually show is that the claimant was rejected for valid reasons. The burden of proof would not shift.[77]For the avoidance of doubt, even if the burden of proof had shifted, I would have concluded that the second respondent has shown a nondiscriminatory reason for the treatment (separate to the lack of knowledge point) i.e. that it was based on there not being a live role, the apparent lack of asset finance experience and commutable distance. To the extent that she was not taken forward for a more junior role, that was because the second respondent would not wish to incur agency fees for a junior role.[78]The complaint against the second respondent fails.[79]For the avoidance of doubt, and in order to address a point raised by the claimant in her written submissions about a risk of bias, the Tribunal has not taken into account any submissions from the second respondent in relation to the claimant’s alleged outstanding warrant for arrest and/or interactions with her previous employer (including the Judgment in that case) when reaching its decision on the merits of this claim.