Ms L Kazingizi v University Hospital Southampton NHS Foundation trust: 1400529/2019

EMPLOYMENT TRIBUNALS

Case No 1400529/2019

Between

Ms L KazingiziClaimant

University Hospital Southampton NHS Foundation trustRespondent

Before

Employment Judge Emerton

In person for claimant

Mr A Ross (instructed by Counsel) for respondent

Date 13 August 2020

JUDGMENT

[1]The tribunal considers that the claims have been dismissed for substantially the reasons given in the deposit order of 12 November 2019. The claimant is treated as having acted unreasonably in pursuing the claims, and the deposit of £100 shall be paid to the respondent, by virtue of rule 39(5)(a)&(b).

[2]The tribunal would have ordered the claimant to make a payment of £19,577.50 to the respondent in respect of costs incurred in the proceedings. The amount of the deposit of £100 shall count towards settlement of this order, under rule 39(6).

[3]The tribunal therefore orders the claimant to make a payment of the sum of £19,477.50 to the respondent in respect of costs incurred in the proceedings. Case Number: 1400529/2019 JUDGMENT as to liability, and a separate judgment as to costs, having been sent to the parties on 21 August 2020 and written reasons (for both judgments) having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided, in respect of both judgments:

REASONS

[1]This is a case involving allegations of direct race discrimination by a Healthcare Assistant from Zimbabwe, who was working shifts at Southampton General Hospital, through NHS Professionals. The claims relate to concerns raised by a nurse after a night shift which the claimant worked in June 2018, the subsequent handling of the investigation, and arrangements in relation to whether she would be able to work further shifts at the hospital.

[2]Although the claimant plainly felt aggrieved at facing an investigation, and at the way matters were handled, her claim of race discrimination was without merit.

[3]The tribunal found nothing from which discriminatory inferences could be drawn. The claimant was on notice as to the weaknesses in her claims, and what evidence would be needed, having paid a deposit under rule 39. At the final hearing, however, her case was hopelessly muddled. She failed to present coherent evidence, capable of coming anywhere near discharging the initial burden of proof upon her. Indeed, the tribunal found her not to be a credible witness, and her case was full of her own opinions and her own perceptions. It was very short on evidence of fact. Some of the the claimant’s assumptions and assertions proved to be misconceived, or based on exaggerated evidence. She did not put to the respondent witnesses that their behaviour was because of her race.

[4]In lengthy closing submissions, the claimant failed even to mention her race, or to make any allegation of discrimination. She did not respond to any of the cogent arguments put forward by counsel for the respondent.

[5]Costs were also awarded against the claimant, under the provisions of rule 39(5) and 39(6) of the 2013 Rules of Procedure, and also under rule 76. The claimant acted unreasonably in the way proceedings were conducted, and the claims had no reasonable prospect of success. The claims failed for the reasons the judge at the preliminary hearing had given for requiring the claimant to pay a deposit order. It should be noted that the claimant did not answer any of the respondent’s arguments as to why costs should be paid, or come up with any argument as to why she should not pay the costs of £19,577.50 which had been claimed, save that (in essence) she sought to argue that she still believed that she should have won her case. Despite repeated encouragement from the judge, she failed to provide information regarding her ability to pay any costs awarded. In the circumstances, the tribunal concluded that it was in the interests of justice to award costs in the full amount sought. Background to

The hearing

[6]The claimant presented an ET1 claim form on 16 February 2019. ACAS early conciliation commenced on 10 January 2019 and the certificate was issued on 25 January 2019. This means that allegations would be in time if they arose from incidents on or after 11 October 2018.

[7]The claim made rather unclear allegations of race discrimination, and also referred to whistleblowing. The respondent resisted the claim, pointing out that further and better particulars were required. The claimant provided further particulars of her race discrimination claim but failed to do so in respect of her claim of protected disclosure detriment. As to the latter, an Unless Order was eventually issued by the tribunal, to which the claimant did not respond. Her protected disclosure claim was dismissed under rule 38. The claimant was sent notice of this on 3 August 2019.

[8]It is not necessary to summarise the whole of the background to the case, but it is relevant to note that at the first preliminary hearing for case management, conducted on 12 November 2019, the employment judge identified, with the agreement of the parties, the allegations of direct race discrimination. At no point has it been suggested that the issues identified were in any way inaccurate. The judge listed a second preliminary hearing to deal with submissions in relation to time jurisdiction, and an application to strike out the claims or in the alternative to make a deposit order. The judge had noted that the claimant had made allegations that the respondent had refused to lift working restrictions upon her, notwithstanding the claimant contacting the respondent by telephone, and in consequence the claimant was directed to supply the tribunal and the respondent, by 27 September 2019, with a list showing details of any alleged contact by her to the respondent or to NHS professionals between 1 August 2018 and 7 March 2019. She was ordered to include the dates of such contact, name of any person contacted, and the nature of any such contact, namely whether in writing a telephone or any other means, providing a copy of any written contacts. The claimant was also directed to provide a schedule of loss.

[9]The claimant supplied a list of contact by telephone between 1 August 2018 and 30 March 2019. This referred to telephone calls from the claimant to 2 employees of NHS professionals, and to 8 telephone calls said to have been made on various dates to Ms Hannah Swann, an employee of the respondent working in the HR Department. The claimant also provided a schedule of loss, which was a little unclear. It subsequently (at the final hearing) became obvious that the claimant herself did not understand her own schedule of loss, as she was unable to provide any coherent explanation as to the sums she was now claiming as compensation.

[10]The second preliminary hearing was held in person on 12 November 2019 before Employment Judge Dawson. He confirmed the issues in the case, decided that the time jurisdiction points could not be determined without hearing all the evidence in the case, and he ordered a deposit of £100 as a condition of being permitted to continue to advance the allegations in the case. He also listed the final hearing for August 2020 and made conventional case management orders, including for a bundle of documents to be agreed and for the parties to exchange witness statements.

[11]Judge Dawson set out extensive reasons in his deposit order of 12 November 2019. He made it clear that he came close to striking out the claims. He noted that although in the initial further information sent on 29 April 2019 the claimant indicated she felt she had been treated differently to other people on the shift in question, because she was the only black person, but that the claimant was now asserting that another member of staff on the same shift had also had problems with the nurse in question (that member the staff was not black). He found that there was little evidence which he had seen which would enable the tribunal to conclude that the original allegations made against the claimant were because of her race. Even if the allegations were untrue, it would not of itself mean that they were made because of the claimant’s race, and he noted that the claimant herself had provided two potentially non-discriminatory reasons for the way that the nurse had behaved in making a complaint about her. He concluded that in relation to the first allegation, “it is, at best, unlikely the tribunal will find that either the nurse acted in bad faith or that if she did so it was because of the claimant’s race”. In respect of the second allegation, namely the refusal by the respondent to lift the restrictions on the claimant working for it, he found that many of the facts as represented to him) were unclear, and needed to be resolved at trial. He effectively observed that if the claimant had completed her remedial action plan and had contacted the respondent (as she alleged), then it was difficult to see why she was not allowed to work there. But even if she was able to show that she had completed the action plan and had still not been permitted, this was no more than asserting a difference in status. He was unable to evaluate the respondent’s evidence on the point, at this preliminary hearing. He did observe, however, that it seemed unlikely that this was a case where the claimant would be able to establish less favourable treatment because of race.

[12]At paragraph 52 of the reasons for the deposit order, Judge Dawson drew attention to the need to signal to the claimant that “her case has little reasonable prospect of success or give her sufficient warning as to costs”.

[13]Having presumably received the signal as to prospect of success and possibility of costs, the claimant nevertheless paid the deposit of £100.

[14]The orders had included fairly standard directions in respect of preparing an agreed bundle and for exchanging witness statements. Judge Dawson placed a limit of 5,000 words on the claimant’s witness statement, albeit she could have applied for an extension to this word limit. She was directed to include the word count in her witness statement.

[15]The claimant provided a witness statement, which is dated 28 May 2020, although she failed to bring a copy to the hearing, and a spare copy had to be provided by Mr Ross. Although the claimant failed to comply with the direction to include the word count, the statement is in fact some 1,900 words in length. Although there was, of course, no requirement that the claimant should use up her entire word count, the tribunal notes that the claimant’s statement provides very little direct evidence in relation to the specific allegations of direct discrimination which she was pursuing. The claimant could easily have provided a statement more than 2½ times as long, without breaching the word limit set out in the case management order (or longer, with permission). The tribunal is surprised, given the importance of providing evidence in support of the disputed allegations, in particular when the reasons attached to the deposit order had pointed out the weaknesses in the claimant’s case, that she did not seize the opportunity to provide better evidence in support of her allegations.

[16]In view of the Covid-19 pandemic, it was necessary for the tribunal to transfer the hearing from the Southampton Employment Tribunal to the hearing centre in Havant (where no other cases were listed for that week and the parties could be more easily accommodated, in compliance with the social distancing rules and HMCTS risk assessments). In view of possible difficulties in convening a full tribunal hearing, with two non-legal members, in the circumstances the parties were asked if they were prepared to consent to the case being heard before a judge sitting alone. Both parties confirmed in writing that they were content that the case should be so listed. The case was listed to be heard before a judge sitting alone.

[17]In email exchanges prior to the hearing, an email from the respondent at 1459 on Thursday 9 July 2020 put the claimant on notice that it intended to apply for costs if it succeeded at the hearing. It also referred to the need for the claimant to provide evidence of her means, in relation to that application. The hearing

[18]The parties had been directed to arrive at the hearing centre at 0930, ready for the hearing to start at 1000. At 1000, when the judge was ready to call the case on, the claimant had still not arrived in the building. The case was called on at 1015, immediately after the claimant arrived.

[19]At the start of the hearing, the judge confirmed the issues to be determined, namely those allegations set out in both case management orders. The issues are referred to below.

[20]In timetabling the case, the judge noted that a deposit order had been paid. In those circumstances, whatever the outcome of the case, once judgment as to liability had been given, he would need to deal with the deposit/costs point under rule 39(5). Mr Ross indicated that it was possible that the respondent would make a more general application for costs. The judge confirmed that after the liability judgement and reasons had been issued, it was clear that matters of substance would necessarily arise, and that if the claims succeeded there were substantive matters in dispute in relation to remedy. Mitigation of loss would probably in issue, albeit the claimant appeared to be wholly unclear as to what loss of earnings compensation she was seeking, and Mr Ross also complained that the claimant had still not complied with case management orders in respect of disclosing documentary evidence in respect to remedy. The claimant was reminded that it was necessary to present evidence in respect of remedy, if the claims succeeded and remedy was sought. Sufficient time would in any event be needed after the liability ruling, to deal with any matters which might fall to be considered.

[21]The tribunal had received an agreed bundle, the claimant’s witness statement, and the respondent also provided witness statements from Ms Hannah Swann (of the respondent’s HR Department), Ms Christine Goodyer (Band 5 Nurse, who reported various matters relating to the claimant in June 2018), and Ms Rachel Bellamy (a Band 7 Nurse, who was the main point of contact for liaising with NHS professionals in respect of agency workers such as the claimant, at least with regard to clinical matters). The respondent also provided a chronology and cast list. As indicated above, the claimant had failed to bring a copy of her own witness statement, but Mr Ross was able to supply her with a spare copy.

[22]The judge had already read many of the background papers, and was able to complete his reading in less time than had been allowed for in the original time-estimate. He re-timetabled the case in respect of the witnesses, in light of each party’s estimated time for cross-examination. In the event, the claimant took considerably longer to cross examine Ms Bellamy than had been expected. She was, however, permitted to continue, notwithstanding that most of her questions did not appear to be relevant to any issue in the case. The judge had also explained the purpose of cross-examination to the claimant, and ensured that that she understood, including the need to put her case to the witness and to highlight any areas of disagreement on material points within that witness’s statement.

[23]The claimant commented that the incidents said to have occurred in June 2018 had been witnessed by another healthcare assistant, whom the respondent was not calling as a witness. The claimant, however, was also not calling this potential witness. Mr Ross confirmed that he relied upon the evidence of Ms Goodyer as to the events in question, and was not intending to call any other witness to the events which Ms Goodyer observed.

[24]The tribunal completed its reading.

[25]After an early lunch break on the first day, the tribunal heard the oral evidence of the claimant. The judge asked her the usual questions in respect of adopting the contents of her witness statement, but it appeared to the judge that the claimant was unfamiliar with the contents of the witness statement which she had provided for the final hearing, although she confirmed that this was indeed the statement which she had provided during witness statement exchange.

[26]The claimant was given time to refresh her memory of her statement, before she formally adopted it as her evidence-in-chief. She told the judge she might add some more evidence, at which point the judge explained to the claimant that her evidence-in-chief was what was within her witness statement, which he had carefully read, but if she wished to make an application to provide additional oral evidence-in-chief, explaining why it was not included in the witness statement, he would hear that application. The claimant was given the opportunity to make that application, but chose not to do so.

[27]The claimant relied upon her witness statement, and was then crossexamined. The claimant’s oral evidence was somewhat discursive, and on numerous occasions she failed to answer the question put to her by Mr Ross. These were relevant and straightforward factual questions, relating to the specific issues in the case. Instead, the claimant often chose to deal with other matters in her answers, even though the judge repeatedly reminded her of the importance of listening to the question, and then giving an answer to that question. However, Mr Ross was still able to meet his proposed time-estimate.

[28]The parties agreed to sit a little later than originally planned on the first day, to complete the first two respondent witnesses. Mr Ross first of all called Ms Hannah Swann, who gave brief but very clear oral evidence when cross-examined, followed by Ms Christine Goodyer, who was crossexamined at greater length. The hearing finished at 1639 on the first day.

[29]On the second day, the respondent called Ms Rachel Bellamy. The claimant was confident that her cross-examination would take no more than 30 minutes. Although Ms Bellamy evidently did her best to answer questions, many of the questions were unclear, repetitive, and did not appear to be relevant to issues in the case, despite the judge seeking to assist the claimant in focussing on those issues. He reminded her of the importance of asking a question in such a way that it was possible to give an answer. In the event, cross-examination took some 1 hour and 45 minutes, after which the claimant confirmed that she had no more questions.

[30]Mr Ross had indicated previously that he had prepared written submissions, which were handed in before the lunch break. The lunch break was extended to 90 minutes, during which the claimant and judge read the respondent’s written submissions.

[31]After the hearing resumed, the judge confirmed that he had read the submissions, and that the claimant had also done so. She did not ask for more time to prepare. A summary of submissions is set out below.

[32]The claimant’s submissions were very lengthy, and the judge had considerable concern as to their contents (see below, at paragraphs 54-71 a detailed summary of the sequence of events and contents of each parties’ submissions as to liability). Once submissions were completed, the judge noted that there would still be matters which would need to be resolved after judgment was given on liability. In the circumstances, he confirmed that rather than to bring the parties back on the afternoon of the third day, the hearing would be adjourned until the morning of the fourth day, which would allow plenty of time to deal with remedy or any other matter which might arise. This was what had been envisaged in the original case timetable, suggested by Judge Dawson on 12 November 2019.

[33]The tribunal deliberated on the third day, and the hearing resumed on the morning of the fourth day.

The judge gave oral judgment, with detailed oral reasons, as to liability, dismissing the claims.

[35]At 1126, having delivered his liability ruling dismissing the claim, the judge indicated that it would now be necessary to deal with the question of the £100 deposit which the claimant had paid. Mr Ross indicated that the respondent would be making an application for costs in the sum of around £19,500, relying on Rule 39(5) and (6) and rule 76(1)(a) and (b). He handed up his 5-page written submissions (set out in straightforward language), an attached costs schedule (and email to the claimant on 9 July 2020, putting her on notice that the respondent would apply for costs, if successful at the hearing) and a copy of Vaughan v London Borough of Lewisham

[2013] IRLR 713

[36]The Judge ensured that the claimant understood in broad terms the basis of the regime for ordering costs, and of the process that the Tribunal would follow in considering whether or not to make an order for costs, and if so in what amount. He encouraged the claimant to present evidence as to evidence of ability to pay. The claimant indicated that she had brought no evidence, but told the tribunal that she was not currently earning.

[37]The tribunal then adjourned for 26 minutes so that the judge and the claimant could read the respondent’s written costs application. dealt with the respondent’s costs application. The claimant did not ask for any additional time.

[38]At 1206 Mr Ross made oral submissions for 14 minutes. At 1223 the claimant commenced oral submissions, which continued until 1255 (a total of 32 minutes). The submissions as to costs are summarised below at paragraphs 134-149.

[39]After the lunch break, the judge delivered oral judgment and reasons on the costs application, awarding costs against the claimant. The hearing finished at 1420.

[40]The judge had reminded both parties of the arrangements for providing written judgments, and that the parties would have 14 days from when the judgment was sent to the parties, to request written reasons. As had been referred to in previous case management orders, he explained that written reasons would be in a public document and placed on the internet, and suggested that a party should reflect carefully before requesting reasons, as any criticism of the way a case was conducted or as to the evidence, would be repeated in writing, with the explanation set out in greater detail.

[41]Neither party made an oral application for written reasons. The claimant made an in-time application by email for written reasons for both judgments, after receiving the written judgments.

The Issues

[42]The claimant brings two allegations of direct race discrimination under section 13 of the employment rights act 2010.

[43]The claimant came to the UK from Zimbabwe and in the first case management order it had been confirmed that she described herself as “a Black African”. She relied upon a hypothetical comparator. The two allegations were set out in the first case management order, then repeated in the second case management order in a fuller format as to the issues to be determined. At the start of the final hearing, the judge confirmed with the parties that this remained an accurate summary of the issues to be determined. The issues set out in the second case management order are as follows (using the original paragraph numbering): 7.1. The claimant asserts the person who made false allegations in June 2018 was Christine Goodyer. 7.2 Did the Respondent subject the Claimant to the following treatment falling within section 39 Equality Act, namely: 7.2.1. That on or around 26 June 2018 the Respondent made false allegations against her/ placed a permanent restriction on the Claimant working at the Respondent in relation to the matters referred to at paragraph 2 of the Claimant’s further and better particulars dated 29 April 2019/ 1 June 2019 because of her race. [see below] 7.2.2. The alleged refusal by the Respondent to lift the restrictions on the Claimant working for the Respondent notwithstanding that the Claimant contacted the Respondent by telephone on 3 or 4 occasions in September / October 2018 onwards asking (including Rachel Bellamy of HR) to be allowed to return to work following completion of the remedial plan. 7.3. Did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated the comparators? The Claimant relies upon hypothetical comparators. 7.4. If so, can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the race? 7.5. If so, what is the Respondent’s explanation? Can it prove a nondiscriminatory reason for any proven treatment?

The judge notes that paragraph 2 of the further particulars of claim reads as follows:

[44]2. The 2018 concerns raised by the Respondent are what led to a permanent restriction from accessing work at the Trust, a decision that was later revealed to had been made by the Respondent. The investigations to determine;2.1 if I had used another stuff member’s login details to access safe track used (an electronic patient observation recording system operated by the Respondent) to input observations;

2.2 whether I, whilst performing CNS (Central Nervous System) observations did not wake a patient to complete the GCS (Glasgow Coma Scale) score and entered a false GCS score in the patient observation recording system;

2.3 whether I, advised a member of the Respondent's staff that she did not like to wake up patients to complete GCS scores but had been recording CNS observations which required GCS scores to be entered; -were all inconclusive due to lack of evidence from the nurse who logged the complaints. I submitted a lengthy statement detailing what had transpired during the shift, clarifying

2.4 I had informed the nurse in charge that I did not have a login for the Safetrack system and needed an agency login to be provided. The registered nurse logged me into Safetrack under their own login, which enabled me to enter the observations recorded and allowed me to continue doing this through the night. A statement from a Trust registered nurse confirmed that I had requested to be logged on to Safetrack and that following an observation of the procedure being entered onto Safetrack by myself they were agreeable to their login being used throughout the shift. On this point, NHS P judged that the allegation was to be partially upheld as it was recognised that both the Trust Registered Nurse and I breached Information Governance guidelines in terms of another person’s login being used and being provided to be used by myself.

2.5 On whether whilst performing CVS (Central Nervous System) observations I did not wake the patient up to complete the GCS score and entered a false GCS score in the patient observation recording system; NHS P judgment was inconclusive as well after the Respondent failed to submit evidence in the form of completed observations/recordings of MEWS scores. No other statements were submitted addressing this specific point at all.

2.6 and again, investigation on whether I had confided in another Health Care Assistant that I did not like to wake up patients to complete GCS scores but had been recording CNS observations which required GCS scores to be entered; was also inconclusive.

[45]At the final hearing, the judge confirmed the following in respect of the first allegation: The claimant expressly continued to rely, as part of her case, on(1) the allegations about her in June 2018 being “false”, and

(2) a permanent restriction being placed on the claimant working for the respondent.

[46]As well as denying any discrimination, Mr Ross confirmed the respondent’s position to be that it was denied that any allegations were false, and it was denied that a permanent restriction was placed upon the claimant. The respondent had never placed a permanent restriction on the claimant, but a temporary one, conditional upon her completing a remedial action plan.

[47]In respect of the second allegation, the claimant also confirmed she relied upon a number of different telephone calls made in September and October 2018, and through to January 2019 (the calls relied upon were those set out in the claimant’s document at page 30 of the bundle). Mr Ross confirmed that the respondent’s position was that there was one telephone call, in January 2019, and no conversation on any earlier date. The respondent’s case was that when the matter was raised with the hospital, they had confirmed their agreement to the temporary restriction on claimant working for the respondent to be lifted, subject to her completing the remedial action plan. The restriction was only re-imposed when NHS Professionals (who provided the claimant’s services to the hospital) indicated that the claimant would not work for the respondent, and would therefore be unable to undertake the agreed placement testimonials (”PTs”) working under an agreed level of supervision. The respondent’s position remained that NHS Professionals had not informed the respondent that the claimant had completed the initial remedial action plan (namely the non-contact e-learning package) required before she could return to the respondent for the second part of the remedial action plan, namely obtaining PTs, having worked under supervision. The respondent was not aware of the position until the claimant presented the ET1.

[48]Judge Dawson had identified, in the second case management order, time limitation issues, and the judge went through the relevant dates. Mr Ross confirmed that the respondent’s position is that the first allegation was out of time, there was no continuing act because the first and second allegations were quite separate, and that it was not just and equitable to extend time. The tribunal noted that the claimant would be relying upon a continuing act and/or a just and equitable time extension, as applicable. This would be a matter which would need to be dealt with in oral evidence and submissions. Although the claimant did not in fact address the point in closing, in the event the tribunal did not need to make a ruling on jurisdiction.

[49]The judge noted that Employment Judge Dawson had pointed out, in the reasons for the deposit order, that NHS Professionals was a completely different organisation from the respondent, and that if it was to be alleged that the respondent was in some way vicariously liable for actions by NHS Professionals, this would be a matter which would need to be determined at the final hearing. Mr Ross confirmed the respondent’s position was that although the respondent accepted responsibility for any acts of discrimination by its employees (and the claimant herself falling within the broader definition of “employee” for the purposes of equality legislation), it could not be held liable for acts by NHS Professionals, the agency who supplied the claimant’s services to the respondent, and who had carried out the investigation into her conduct.

[50]In the event, the claimant did not put her case in a way which suggested that the respondent should in any way be held liable for acts by NHS Professionals. Although the judge observed that if the respondent was responsible for discriminatory acts, and NHS Professionals acted in compliance with those acts, or informed the claimant accordingly, plainly the respondent could not hide behind the fact that communications were channelled through NHS Professionals. However, in the event, this turned out not to be a material point which fell to be considered.

[51]In respect of remedy, the schedule of loss raised issues relating to loss of earnings, at least up to March 2019. It argued that the claimant should recover job-seeking expenses and legal costs, and the sum of £25,000 for injury to feelings. Mr Ross had understood the schedule of loss as being limited to the specified loss of earnings up to March 2019, and the judge asked the claimant to explain if this was right, and what sums she was claiming. The claimant was unable or unwilling to answer this question.

[52]The judge established that mitigation of loss would be in issue, that the claimant was required to produce the documentary evidence for the whole period of loss of earnings claimed. If that had not already been disclosed (as previously ordered), this disclosure must now be completed. The judge also noted that there had been no grievance from the claimant, and asked whether the respondent was suggesting that there should be a reduction in any compensation as result of failure to comply with the ACAS Code of Practice. Mr Ross had not considered the point, but would give further consideration. It appeared that this had not been pleaded by the respondent, and in any event it was not raised again.

[53]It appeared to the judge that there was sufficient complication and uncertainty over remedy, that all remedy issues should be dealt with separately (as required), after liability issues had been determined. This might also help the claimant to remained focussed on the liability issues to be determined. He therefore confirmed to the parties that the tribunal would initially hear evidence and submissions solely in respect of liability. Remedy would be dealt with, as required, on the fourth day. In the event, remedy did not fall to be considered. The parties’ submissions as to liability

[54]The parties were reminded by the judge that the issues to be determined were those set out in the 2019 case management orders, and the tribunal did not need to determine every evidential matter referred to in witness statement or in oral evidence. The parties were reminded to focus on the issues, when addressing the tribunal in closing.

[55]What appears below is not intended to be a detailed summary of all the points made by the parties, but rather an overview of the salient points.

[56]Mr Ross presented written closing submissions comprising 13 pages, of which the first five pages were an introduction and then a summary of the law. He also provided a copy of the case of Geller v Yeshurun Hebrew Congregation (EAT) [2016] ICR, which provided a good general summary as to the approach to the legal issues, albeit in the event did not need to be specifically referred to. Mr Ross pointed out at the start, that the respondent’s position was that the claimant’s case must fail for the same reasons anticipated by Judge Dawson’s deposit order, arguing that it was wholly unlikely that Ms Goodyer acted in bad faith, and even if she did, it was unlikely that this was because of the claimant’s race. Race had not been put to the witness, and it was wholly unlikely that the claimant was not permitted to return to work because of race, rather than miscommunication. The claimant had confirmed at the final hearing that she did not wish to return to work for the respondent, and therefore did not wish to complete the remedial action plan, which would involve placement testimonials in the hospital.

[57]In essence, the claimant had boldly asserted discrimination in general terms, but had pointed to nothing capable of supporting that allegation.

[58]The written submissions set out the law in respect of time limits, agency and direct discrimination, and then went on to summarise why the claimant was said to lack credibility in her oral evidence, and why the respondent’s witnesses should be believed. The claimant’s case was that the first claim was out of time. In respect of the discrimination allegations: Ms Goodyer had made a report which had been investigated, and the claimant had put forward no evidence to show that the allegations against her were false, other than her assertion that no one had raised concerns immediately, a point which had been addressed in evidence. There was no permanent restriction. As for lifting the restriction, the claimant had been told she had to complete e-learning by 29 of August 2018 and had not done so. As a result of this, her file was closed and the claimant was taken off the fortnightly meeting agenda between the respondent and NHSP. The file would have been reopened if NHSP contacted the trust to indicate that the e-learning had been completed. The claimant only told NHSP staff on 26 September 2018 that she had she completed the elearning, but this information was not passed on. The claimant appeared to have changed her position in respect of telephoning Ms Swann, but the respondent’s evidence was entirely clear that the claimant had not made contact until January 2019. Ms Swann had taken appropriate action, which appeared to resolve matters. On receipt of the ET claim, Ms Bellamy had explained that she realised the claimant wanted the restriction lifted, which she had not been aware of, and asked for it to be lifted, reopening the case file. But she was then informed that that the claimant did not wish to undertake assignments for the respondent. None of this had anything to do with race.

[59]After a 90-minute break which enabled the claimant to read the respondent’s written submissions, and put the finishing touches to preparing what she wished to say, the hearing resumed. The judge had advised the claimant that she might find it helped her if she was to respond to the specific substantive arguments put forward by the respondent, in order to help her structure her submissions to focus on the issues which fell to be determined.

[60]On return from the break, the judge had no immediate questions for Mr Ross, save that he invited the parties to deal expressly with the matters referred to by Judge Dawson in the deposit order reasons, noting that on one reading this identified matters from which discriminatory inferences might potentially be drawn. Paragraphs 38 and 39 of the reasons for deposit order seemed to be particularly relevant.

[61]In response to the judge’s question (which the claimant chose not to address in her own oral submissions), Mr Ross submitted that in fact there was nothing in the evidence capable of supporting any discriminatory inferences. He pointed out that Judge Dawson had noted that in the material presented to him, the claimant had suggested that what happened during an incident in 2017 was motivated by race (albeit not an allegation in her claim), but in fact the claimant had called no evidence relating to this at the final hearing. The matter was raised for the first time in cross-examination of Ms Bellamy, when no allegation of discrimination was made. It appeared to be more relevant to the original claim of protected disclosure detriment, which had been dismissed. More generally, Mr Ross emphasised that allegations of discrimination had not been put to any of the respondent witnesses, even though the claimant had been reminded of the fact that these were serious allegations of unlawful race discrimination and her case needed to be put to the respondent witnesses. There were further matters undermining credibility and the tribunal was invited to find the claimant to be an unreliable witness.

[62]The original time estimate had generously allowed for up to an hour for each party to present closing submissions, although Mr Ross’s submissions were considerably shorter. The judge had suggested that around 20 minutes, and no more than 30 minutes, would be appropriate to deal with submissions on the two allegations and matters relating to jurisdiction, credibility etc, but the claimant had indicated that she wished to use the full hour which had been allowed for. The judge agreed that if she was unable to make her submissions shorter, she would indeed be allowed to use up to an hour for her submissions. He did, however, carefully remind the claimant (and repeated this reminder) that the role of the tribunal was to decide the claimant’s specific claims of direct race discrimination, namely the issues which had been set out in the case management order, and which had been addressed by Mr Ross. He reminded the claimant that it would assist her in presenting her case if she was to confine her submissions to these issues. He also suggested again to the claimant, that it might help her to focus on those issues if she replied to the specific points raised by Mr Ross.

[63]The claimant indicated she did not understand the law which had been referred to by Mr Ross. The judge explained to the claimant that he did not expect her to address him on the law, but rather to speak to him about the evidence in relation to the specific issues in dispute. The judge also reminded the claimant of the purpose of submissions (as he had previously explained to her), and that this was not an opportunity to provide further evidence, but rather to explain to the judge why the claimant believed that the evidence which he had heard, or read, supported the specific allegations of race discrimination.

[64]At this point, the claimant embarked on a very detailed account, from her perspective, mainly in respect of what had happened during the shift in June 2018 which had led to the complaint against her.

[65]It became increasingly clear that the claimant had no intention of heeding any of the judge’s advice, even though it was plainly designed to help her put her case with greater clarity, nor of addressing him on all the matters in dispute which had been identified. The claimant was reminded that it was now too late to try to give further evidence, and that she should make submissions on the issues, which had been confirmed at the start of the hearing. After the judge had repeated that reminder, the claimant resumed her account (which appeared to be unprepared, and something of a “stream of consciousness”). It was evident that she had much she wanted to say, reflecting her sense of grievance on a range of matters, and in particular over the events of the shift in June 2018. At this point the judge reminded the claimant, one final time, that she could not give further oral evidence, and that it would be helpful to deal with the issues of race discrimination which fell to be considered. He went on to confirm, however, that having reminded the claimant several times as to what it would assist her to cover, he would not stop her from making submissions in her own way, and would listen carefully to those submissions. But these submissions must be limited to one hour.

[66]From then on, the claimant gave a very detailed oral account of a large number of matters from her perspective, most of which had not been covered in her witness statement, and the vast majority of which had never been put to witnesses. Indeed, she referred to many matters which were not matters of which the tribunal had any prior knowledge, had never been set out in any document, and was in many respect different from the sworn evidence which the claimant had given earlier in the hearing. This account was very repetitive, but clearly heartfelt. The judge permitted the claimant to continue speaking until she had said all she wished to say, even though in the event this took rather more than the allotted hour.

[67]It is to be noted that despite repeated reminders to concentrate on the race discrimination allegations, at no point in her submissions did the claimant respond to the arguments set out Mr Ross.

[68]At no point in her submissions did the claimant refer to race.

[69]At no point in her submissions did the claimant make any assertion that any person had acted towards her in a discriminatory way.

[70]At no point in her submissions did the claimant refer to the time jurisdiction points.

[71]Rather, the claimant expressed her upset that she had been treated unfairly, and explained the impact which this had had upon her and her family. The tribunal also noted that the claimant had made a number of adverse comments about Ms Goodyer. The claimant had, however, made no suggestion that there was any racial motivation or causation in Ms Goodyer’s acts, but in fact the claimant was at pains to suggest that other staff (evidently not of the claimant’s race) had also found Ms Goodyer difficult to deal with. This appeared to suggest that the claimant felt that any difficulties she may have faced with Ms Goodyer were nothing to do with her race, but rather they reflected the way that Ms Goodyer interacted with colleagues generally.

The Facts

[72]This is a case which very much turns upon its facts. Although many aspects of the underlying chain of events are not in dispute, some of the facts, and certainly the explanations for events, are in dispute.

[73]The claimant has firmly nailed her colours to the mast, in describing the concerns raised by Ms Goodyer in June 2018 as “false”. Even if this was never put to Ms Goodyer, not articulated in the claimant’s own evidence or closing submissions, the underlying argument (if the claim was to succeed) can only be that these were false allegations raised against the claimant because she was a Black African. The claimant has chosen to put credibility at the centre of the issues in dispute, and effectively invites me to make a finding that her evidence (such as it was) is credible, and that the respondent evidence is not, and specifically that Ms Goodyer was lying to the tribunal in respect of the events of the night shift in June 2018.

[74]In consequence of the way the claimant has chosen to bring her claims, I have therefore needed to consider credibility.

[75]The claimant was plainly under notice, as a result of reading the reasons attached to the deposit order which she paid, as to the weaknesses of her case and the need to provide clear evidence in support. She did not, however, do so.

[76]The claimant’s witness statement, taken in isolation, goes hardly any way at all to suggest that there is evidence to support the allegations she has chosen to bring in the Employment Tribunal. Mr Ross conducted a fair and thorough cross-examination. The reality was, that in the claimant’s answers to questions, rather than filling in the gaps or providing coherent evidence in support of her allegations of discrimination, she in fact undermined her own case further.

[77]The tribunal would usually hesitate in making a general finding that a party is not a witness of truth, noting that the burden is upon the claimant to prove primary facts on a balance of probabilities. It regrets that on the basis of the way the case was presented, it is both necessary and appropriate to delve in greater depth as to the claimant’s credibility, rather than merely to prefer one party’s evidence over another.

[78]The claimant has made serious allegations of unlawful discrimination against named and/or unnamed employees of the respondent NHS Trust, but her original case appears to be based on her own mistaken perceptions. These perceptions sometimes seem to have only the slenderest foundation in reality. One extraordinary aspect of the case is that having made all these allegations in writing, when given the opportunity to provide a witness statement for the final hearing, the claimant failed to substantiate the allegations. The only reference to race discrimination (at paragraph 9.4 of the statement) is the assertion that the decision not to lift the restriction or to reconsider the position as to the restriction on the claimant working, was because of her race/national origin. She made no such allegation in respect of the first claim. She also somewhat undermined this second allegation by suggesting, as an alternative, that it was actually as a result of her whistleblowing, even though the whistleblowing claim had previously been struck out.

[79]In considering the claimant’s credibility, therefore, the starting point is that the claimant has said very little indeed capable of supporting her own stated case, and has largely relied upon her own opinion and feelings as proof of alleged facts. She has also failed to suggest to any of the witnesses that their behaviour was in any sense whatsoever related to race. However, it may logically be presumed (as Judge Dawson had intimated in the deposit order) that the claimant would be inviting the tribunal to draw discriminatory inferences from the evidence as a whole. The tribunal therefore considers that a wider assessment of credibility is important, especially as many of the assertions from which conferences might be drawn (even of the claimant did not invite the tribunal to draw any such inference) are in dispute. It is a marked characteristic of the claimant’s case that although various facts were put to witnesses (albeit never in relation to race discrimination) most of these were not in fact covered by her own evidence. The tribunal was therefore often faced with the situation of(1) no evidence from the claimant,

(2) questions in crossexamination where the claimant challenged some piece of evidence, and

(3) a clear explanation from the respondent witnesses as to the position, a position which the claimant was in no position the challenge, having called no evidence as to an alternative factual situation.

[80]As far as general credibility is concerned, the tribunal is particularly concerned by the claimant’s assertion, which was put to Ms Hannah Swann, that there had been repeated telephone calls to her by the claimant and an abject failure to take any action as a result. This revealed a disturbing approach to truth and accuracy on the claimant’s part.

[81]The tribunal (and evidently the respondent) had been working on the basis that the document (page 30 of the bundle) which set out with specificity the precise occasions when the claimant made telephone calls to Ms Swann, was the case which the claimant was pursuing. The claimant had been ordered by a judge, in a case management order, to set out those occasions. She had provided a document in response to those orders, which she plainly wished the tribunal and respondent to accept as a truthful assertion of fact, setting out those occasions when she asserted that she telephoned Ms Swann. In oral evidence, when (unsurprisingly) cross-examined on the basis that the dates and assertions were plainly wrong, the claimant’s evidence became somewhat muddled. On the one hand she maintained that she definitely did make the telephone calls in September 2018 to Ms Swann. On the other hand, she appeared to be dissociating herself from the accuracy of these dates, rather suggesting that “the lawyers” put pressure on her to provide dates and she had responded by providing dates; if they were wrong it was in some undefined way the fault of the lawyers, not her. The reality is, of course, that the judge at the first preliminary hearing made an entirely predictable order that as the claimant was alleging that she had spoken to Ms Swann and others on numerous occasions, she must further clarify her claim. She was given more than two weeks to set out in writing all the telephone calls she said she made.

[82]If the reality is that the claimant had either made up the dates, or did not bother to give any real thought as to accuracy, before setting out eight dates when she asserted that she had made contact with Ms Swann, this further undermines her credibility. In view of the way the evidence came out at the hearing, the claimant was plainly accepting, at the very least, that these dates were wrong. At the very least, she was prepared to comply with a judge’s order by presenting evidence which she must have known was very unlikely to be accurate. At worst, she deliberately fabricated the information in the hope of bolstering her case. In any event, even taking the most charitable view of the claimant’s evidence, credibility is seriously undermined.

[83]As it was, Ms Swann gave entirely clear and credible evidence, explaining that in respect of the calls said to have been made on 13 August, 2 September, 9 September, 23 September, 7 October and 21 October 2018, none of them could have been made to her because she was not working on any of those days. She only joined the respondent in September 2018 (not in August), but in fact because of pre-booked leave and the need to do IT induction, was not actually in post in the HR Department at until October 2018. She could not therefore have received phone calls, before October, because she was not yet working in the HR department. Furthermore, the dates given by the claimant were on non-working days such as Sunday, or other days which she, as a part-time employee, did not work. She was absolutely clear and plausible in her evidence. The tribunal accepted her evidence that none of these calls were made to her.

[84]The claimant maintained that the telephone calls to Ms Swann were made, although she appeared to accept that the dates were wrong, but provided no supporting evidence. As Mr Ross pointed out, the claimant’s account of how many calls and when they were made had in fact changed over time. In respect of the call in January 2019, the claimant suggested to Ms Swann that her evidence was wrong, but in reality Ms Swann’s evidence was very clear and credible, and strongly supported by a contemporaneous email that she sent immediately after speaking to the claimant. Notwithstanding a muddled and inconsistent account from the claimant, and the suggestion that Ms Swann’s evidence was wrong, the tribunal accepted that on Friday 11 January 2018 (a day that Ms Swann did not work), the claimant left a message with a colleague. On Monday 14 January 2019 Ms Swann returned the claimant’s call, spoke to the claimant and then immediately sent on email to NHS Professionals setting out the gist of her phone call. The tribunal accepted this evidence, and quite plainly there was nothing even remotely discriminatory or unfair in the action was taken: the claimant complained that she was being blocked from working shifts after an incident which had been investigated, and Ms Swan agreed to follow it up. She immediately did so, by emailing NHS Professionals explaining that the claimant would like the block removed on her employment and asking NHS Professionals to try to resolve it.

[85]The claimant would not accept the truth of Ms Swann’s account, but provided no coherent or credible alternative account, nor any reason as to why Ms Swann would be mistaken.

[86]The claimant failed to name any other person said to have been contacted, other than Ms Bellamy, whose name does not in fact appear on page 30 the bundle. Not only was Ms Swann’s evidence wholly credible as to her account of the telephone calls, but the claimant’s account of the alleged telephone calls was shifting, vague and wholly incredible. In dealing with this issue the claimant also showed herself to be an unreliable witness, with a somewhat flexible approach to the truth. This was a serious matter which undermines the entirety of the claimant’s evidence.

[87]The tribunal also notes that paragraph 5.4 of the claimant’s witness statement, which she adopted under oath, refers the night shift in question, in June 2018. The claimant asserts that she had continued to enter observations on to the safe track computer system “throughout the night”. This was very different from her oral evidence: in crossexamination she merely said that her statement was wrong, and she had not entered observations throughout the night. She failed to provide any explanation as to why her account changed, especially as she was asserting that the events of the shift in question were very clear in her mind.

[88]The tribunal also agreed with Mr Ross that the claimant’s answers to questions often involved lengthy accounts of matters which had never been mentioned before, with much detail. If the information was true, it is surprising that it was not set out in earlier documents and statements, including the claimant’s witness statement for the hearing. The claimant now purported to remember details of events occurring more than two years previously, providing information which she had never sought to put in writing, either at the time or in her subsequent witness statement.

[89]The tribunal was also concerned that the claimant was now suggesting that she had completed the e-learning modules (which were part of the remedial action plan) within the specified deadline of 29 August 2018, which (if correct) might be evidence undermining the respondent’s account of the claimant being slow to comply with the remedial action plan. If true, it might bolster the claimant’s case. This is, however, an assertion which the claimant made, for the first time, when she was being cross-examined. It was inconsistent with contemporaneous documents. The tribunal did not find the claimant’s account of when she had completed the e-learning to be credible. It is wholly inconsistent with email exchanges between the claimant and NHS Professionals staff, and emails between NHS Professionals and the respondent. The tribunal sees no reason why NHS Professionals would have asserted that the e-learning had not been completed on time if that was wrong, and why the claimant would not have sought to correct them at the time (and certainly well before cross-examination) and mentioned it in her witness statement, well before she was cross-examined on the evidence. This appeared to be an example of the claimant, in answering questions under oath, being intent on saying anything which she believed might put her in a better light, rather than saying what she genuinely believed to be true.

[90]The tribunal shares the concern which Mr Ross expressed, that the claimant seemed unfamiliar with much of the evidence in her own case despite having had ample time to prepare for the hearing. She did not appear to have read the respondent’s witness statements with any care. Not only did she depart from her own written evidence, but her questioning of respondent witnesses displayed a lack of knowledge of what those witnesses had in fact put in their statements. The claimant made assertions as to what witnesses had said, but when taken to the passage in the witness statement, it in fact set out something quite different. This, again, displays a lack of concern for the truth of the evidence placed before the tribunal, relying instead on the claimant’s own perception, even when that was demonstrably not based on the actual evidence. It appeared at times almost as if the claimant had not troubled to prepare for the hearing at all, not even bringing a copy of her witness statement, perhaps hoping that if she had previously made allegations of discrimination, the tribunal would find in her favour without troubling to consider the evidence. This is particularly surprising, given the contents of the deposit orders, clearly putting the claimant on notice as to the weaknesses on her case, and of the need to engage with the evidence, if she was to have any chance at all of succeeding.

[91]The tribunal also agreed with Mr Ross that despite being asked factual questions in cross-examination, the claimant made little attempt to answer many of the questions, especially those that went to the heart the matters in dispute. The tribunal found these answers evasive, and Mr Ross submitted that one should draw the inference that this was because the claimant was not telling the truth. The tribunal is sympathetic to that submission, but in any event considers that the evasiveness and frequent unwillingness to give a clear factual answer to a clear factual question, generally undermines the claimant’s credibility.

[92]The tribunal agrees with the respondent that the respondent witnesses were straightforward and forthright in their evidence, giving clear answers. When they did not remember detailed information relating to events of some two years ago (which is entirely unsurprising), they were straightforward in admitting which matters they had no recollection of. Even though it was put to none of the respondent witnesses that they were responsible for any discriminatory acts, they were all able to give clear and entirely credible explanations for what they did, and those explanations were entirely non-discriminatory.

[93]The tribunal makes the following findings of fact on a balance of probabilities:a. The respondent operates a large NHS hospital in Southampton (“the hospital”).

b. The claimant, who also lives in Southampton, is a Black African of Zimbabwean national origins. She is a Healthcare Assistant, and had from time to time worked at the hospital as an agency worker, engaged through NHS Professionals (also known as “NHSP”). NHSP is an agency which is completely separate from the respondent, and with whom the respondent had a contractual arrangement to supply staff, to help them cover shifts.

c. Ms Rachel Bellamy, in a management role for the respondent, is an experienced Band 7 nurse. She was at the relevant time responsible managing concerns involving temporary workers, including the provision of provision of staff through NHSP.

d. NHSP runs the payroll for NHS workers supplied to various trusts on a temporary basis. All concerns, including clinical concerns, are dealt with by NHSP through established procedures.

e. There is an established NHSP Complaints and Incidents Management System (“CIMS”). If a concern is raised by an NHS Trust (usually by the senior nurse on the ward), it is passed to NHSP electronically via SIMS (copy to Ms Bellamy, if it relates to the work at the respondent’s hospital). Depending on the nature of the incident, it may also be logged on the respondent’s own internal incident reporting system. If the concerns involve patient safety issues, then an NHSP worker may well be restricted from undertaking shifts at the hospital until the investigation is complete. NHSP may do this without discussing it first with the hospital. Such restrictions are rarely permanent. Once NHSP’s investigation is complete, it is more usual for there to be put in place a remediation action plan (RAP). If this is not completed within the specified timescale, the hospital protects itself and its patients by leaving restrictions in place until such time as the remedial action plan is completed.

f. Because of the extensive use of agency staff, Ms Bellamy held fortnightly telephone meetings with her main point of contact at NHSP, to discuss any ongoing matters which needed to be addressed.

g. These processes were well-established and would not appear to be controversial.

h. The claimant had worked various shifts for the hospital over previous years, through NHSP. She was never an employee of the hospital, in the sense that she never had a contract of employment, but preferred to offer her services from time to time through NHSP.

i. Concerns had been raised about the claimant on several previous occasions.

j. There had, for example, been a matter in early 2017, about which the tribunal has heard very little evidence, save from Ms Bellamy. She was able to explain that on that occasion there had been an investigation, but the claimant had not complied with what was required of her within the specified timescale, including as to completing an RAP. In accordance with the usual practice, the claimant’s shifts had been restricted until the specified online learning was completed. The claimant eventually completed the required online learning, but NHSP had failed to inform the hospital of this, and the restriction had consequently remained in place. In October 2017 the claimant telephoned Ms Bellamy and explained the situation. Ms Bellamy then spoke to NHSP to sort out the issue, and suggested that NHSP apologised to the claimant for their oversight. She then spoke to the claimant to explain that the matter had been resolved, and she could come back to work at the hospital again. The claimant had been distressed, but found Ms Bellamy’s intervention on her behalf to be very helpful. Ms Bellamy also reminded the claimant that, in accordance with the usual procedures, she needed to arrange day shifts at the hospital and to obtain satisfactory placement testimonials (“PTs”), from a senior nurse (Band 6+). Having completed that, all restrictions would be removed and she could work any future shifts.

k. That earlier matter having been resolved, the claimant would plainly have been clear that if similar circumstances arose again, she would need to complete the initial e-learning package, then ensure that NHSP informed the respondent of that, before she would then arrange day shifts with the respondent to enable her to obtain PTs, after which the temporary restrictions would be lifted. This was a relatively straightforward and uncontroversial sequence.

l. In December 2017 a complaint was made about the claimant failing to complete training for the recording of electronic observations, and as a result a CPD plan was created for the claimant, which she completed. She continued to work regular shifts for the hospital after that.

m. The above matters are relevant, although the claimant barely mentioned them in her witness statement. She had previously alleged that they showed an intention to prevent the claimant from working at the trust again, although in fact the incidents can bear no such interpretation. The relevance is that (in particular)

(1) it shows that there was an established procedure for dealing with concerns, followed by NHSP, that

(2) a temporary restriction would be placed on the claimant working at the hospital until matters had been investigated and a RAP completed,

(3) that the claimant had previously delayed her compliance and was aware that this would delay the time that the restriction would be raised,

(4) that on a recent occasion NHSP had not informed the hospital that the initial part of the RAP had been proceeded and that in consequence the temporary restriction had been in place longer than was necessary,

(5) that it was clear that the hospital were happy for the claimant to return to work, once matters had been investigated and a RAP implemented,

(6) that if NHSP was slow in informing the hospital of the claimant completing of e-learning elements of the RAP, it would quickly act to resolve the situation and to move on to enabling the claimant to obtain PTs from the hospital,

(7) that NHSP had on record a number of previous concerns (which included electronic records and communication with staff and patients), when the claimant had been sometimes been slow to complete the RAP, and would have remained on record with NHSP and it might be presumed that an RAP might be put in place again and

(8) the claimant must have been aware of all the above, and she had also expressed the view that Ms Bellamy had been particularly helpful to her.

n. Having had several months of working shifts, apparently without incident, problems arose on the overnight shift of 26/27 June 2018, when the claimant was working on a ward.

o. The claimant gave very little oral evidence indeed as to the events of that night shift, and her witness statement has very little to say on the point, despite the allegation in the tribunal that the evidence against her was “false”. Her evidence (such as it is) falls very far below what is required to prove any falsity. Assertions made in closing submissions, without the opportunity to test these in crossexamination, are not evidence. The tribunal doe not reed to make detailed findings of fact as to what actually happened, and the extent to which the claimant might now, more than two years after the incident, be able to justify her conduct (even though she did not in fact provide any clear evidence, and made factual assertions in closing submissions which had never been made before, and many of which had not been put to Ms Goodyer, and if they had, had been denied). The tribunal accepted Ms Goodyer’s credible evidence, (for much of which the claimant failed to provide any evidence in rebuttal).

p. Ms Goodyer is a Band 5 Nurse, and on the night-shift starting on 26 June 2018 was in charge of the claimant and another healthcare assistant, on part of D Neuro Ward. The patients are generally acute surgical patients with issues such as brain tumours, bleeding on the brain, or in need of end-of-life care, or neurology patients with longterm neurological conditions such as Parkinson’s disease. They are generally vulnerable, and regular observations of them may be required.

q. Observations were recorded on the “safe track” patient observation system, completed on iPads. There was an issue of agency staff not having been given their own logins for the system, despite this being a requirement. As a result, Ms Goodyer permitted the claimant to use her own log-in code. Having satisfied herself that the claimant was competent to make and to record patient observations, and that she was properly briefed, Ms Goodyer expected the claimant to carry out her duties effectively, and she seemed to be doing so.

r. At 0600, towards the end of the shift, however, Ms Goodyer had concerns that the claimant had not carried out a full observation in accordance with the Glasgow Coma Scale, and appeared to have made up records, of observations which would need the patient to be woken first. The tribunal accepts that it was normal practice for these observations to be made by a Healthcare Assistant such as the claimant. Ms Goodyer raised this with the claimant, and the claimant said that she did not like to wake patients in the middle of the night. Ms Goodyer ensured that the claimant knew what was expected of her. The tribunal accepts that this was what Ms Goodyer had observed, or in good faith believed she had observed, and that she dealt with the matter appropriately.

s. At the end of the shift, Ms Goodyer raised her concerns with her manager about possible incorrect observation records. If she had hoped that matters could then be left there, her manager required more. The manager advised her to complete an incident report form, which the tribunal accepts would the correct procedure to follow in the circumstances, especially where there might be concerns over patient safety, even if it had not been Ms Goodyer’s intention to escalate matters.

t. Ms Goodyer was due to work the same shift on the following night. She therefore competed that standard incident report form at the start of her next shift, the following evening. By then, two new matters had come to light: Firstly, she had been told that one of the patients had been ”MEWSing” (ie: a term indicating that there were clinical issues with the patients, and that the observations should have triggered an escalation in clinical procedures), and this did not relate to observations Ms Goodyer had made herself. She reasonably believed that this was a patient for whom the claimant had been responsible for observations. Secondly, there had been an incident with a patient’s catheter which had not been emptied, after she had instructed the claimant to empty it at midnight. The patient, who was still on the ward, complained to Ms Goodyer on this next shift that he had been embarrassed when his sheets became wet, and that the claimant had told him it was his fault. Ms Goodyer had not been aware of this incident before. When Ms Goodyer filled in the incident report, she included these two additional matters. She also referred to use of her log-in ID, albeit there is nothing in the report suggesting she was seeking to blame the claimant for that, rather that it was relevant to the issue of who had made the observations in question. Of course, one consequence of the use of the same log-in ID for patient records is that it would be impossible to determine, from the records, who made or inputted the observations in question.

u. Having filled in the incident report form, that completed Ms Goodyer’s involvement in proceedings, save for subsequently providing a witness statement in NHSP’s investigation when asked to do so, which was based on the contents of the incident report form.

v. Within the hospital, the use of Ms Goodyer’s login-ID was noted, which was viewed as a serious breach of procedure. Ms Goodyer’s manager conducted a discussion with her to re-brief as to her error and as to the importance of staff only using their own ID. The rest of the staff on the ward were also reminded of this, notices were put up, and arrangements put in place to seek to ensure that NHSP agency staff were always supplied with their own login details.

w. In accordance with the usual practice, because the claimant was not a hospital employee, but supplied by NHSP, the matters referred to in the incident report from were referred to NHSP, using the CIMS electronic system. The information was essentially based on what had been in the incident report form. As would always be the case when concerns included clinical matters, a restriction was placed upon the claimant working for the respondent whilst NHSP’s investigation took place.

x. NHSP arranged for an investigation to be conducted by LM, Lead nurse at NHSP, with standard terms of reference, and which turned the information suppled by the respondent into “points for investigation”. NHSP determined that the “points for investigation” were (in summary) to determine the following: i. Whether the claimant used another staff member’s login to access safetrack; ii. Whether the claimant whilst performing CVS observations did not wake the patient up and entered a false Glasgow Coma Scale (GCS) score; iii. Whether the claimant advised that she did not like to wake patients up to complete GCS scores and had been completing CVS observations which required a GCS; iv. Whether the claimant failed to empty a catheter bag and was rude to the patient; and v. Whether the claimant failed to escalate MEWS to the nursing team.

y. The Ward Manager was sent the witness statement template to collect any witness statements.

z. It should be noted that the procedures above were all carried out in the standard way. aa. The only witness statement collected was from Ms Goodyer, who essentially replicated the information she had included in the incident report form. The other healthcare assistant on duty had just commenced six weeks’ overseas leave, and was therefore not approached for a statement. The hospital did not supply copies of computer records relating to the patients, as these appeared (rightly or wrongly) to have no probative value, especially as Ms Bellamy concluded (having been copied in on exchanges) that because of the mis-use of the login it would not be possible to ascertain who had inputted data on the patients. A statement was not sought from any patient, and it would have been very unusual to do so. bb. The tribunal accepts that there was no intention by the hospital to seek to prove serious allegations against the claimant. Concerns had been raised, there was an established procedure for NHSP to deal with the matter, and that procedure was been triggered. It is abundantly clear that the hospital went no further than to follow the appropriate procedures (which had been followed on previous occasions), and nobody in management went out of their way to try to present matters in such a way as to prevent the claimant from working for the hospital again. cc. NHSP commenced its investigation, with (as referred to above) limited evidence from the hospital. It was not usual practice to hold a hearing to call oral evidence, but to investigate concerns on the papers. The claimant also supplied a witness statement to NHSP, but refused to let the hospital see it (which was within her rights to withhold, but was highly unusual, an perhaps counter-productive). This was very much an NHSP investigation. dd. It should be noted that NHSP did not have the advantage, which the Employment Tribunal had, of hearing sworn oral evidence from Ms Goodyer, and hearing her account tested in cross-examination. Whilst the tribunal was able to make a favourable finding as to Ms Goodyer’s credibility, this was not something that NHSP was able to do on the basis of a brief witness statement, the contents of which the claimant challenged. ee. NHSP concluded the investigation, and sent a letter to the claimant (copied to the hospital) on 21 August 2018. This determined that the claimant had indeed used another staff member’s ID to access Safetrack, and the allegation was partially upheld (albeit with mitigating circumstances). As for the other allegations, based on the short written statement from Ms Goodyer, and the claimant’s counterstatement (denying any wrong-doing), NHSP pointed out that they had asked for any evidence but only had Ms Goodyer’s statement. In the circumstances, the other points of investigation were all found to be “inconclusive”, with essentially one person’s word against another. It should be noted that NHSP neither exonerated the claimant nor found any allegation proven (other than the login ID point being partially upheld). But as a whole, the overall complaint was deemed to be “partially upheld”. ff. As would usually be the case in such circumstances, NHSP informed the claimant that a remedial action plan would be put in place: She would need to complete specified e-learning modules by 29 August 2018, followed by four placement testimonials over a two-week period of working day shifts only, approved by a Band 6 or above practitioner. NHSP would enquire with the hospital about lifting the restriction to allow the RAP to be completed (this was plainly a reference to completing the PTs at the hospital, as the NHSP elearning modules would not need access to the hospital). gg. As indicated above, the usual procedure would be to wait until the claimant had completed the e-learning modules, and when she had done so, to enable her to work the necessary day shifts at the hospital in order to obtain her PTs. It was plain from the letter that the claimant would need to complete the e-learning herself, and when she had done so, the onus was on NHSP to inform the hospital so that day shifts (with “PTs”) could be arranged. hh. The tribunal notes that the arrangement in the above paragraph was relatively usual, and the claimant was clearly aware of it already, having been subject to the same process in the past. ii. The tribunal finds, on a balance of probabilities, that the claimant did not in fact complete the e-learning within the specified timescale. jj. The tribunal finds, having attached no weight to the claimant’s implausible and inconsistent account, that the approximate date of completing the e-learning can safely be inferred from contemporaneous email exchanges. It is clear that the claimant had plainly not completed the e-learning by 17 September 2019. It is not in dispute that she subsequently competed the e-learning (albeit very late). kk. Ms Bellamy had fortnightly telephone meetings with NHSP to discuss various current issues. There was one on 3 September 2018, several days after the claimant had been required to complete her e-learning. Ms Bellamy was informed that the claimant had not completed the elearning and could not therefore progress to working some shifts at the trust to obtain her “PTs”. It was agreed that the restriction on working at the trust should remain, then be reconsidered once the elearning was completed. The respondent closed the claimant’s file, in accordance with the usual process, because the claimant was not at this point eligible to work future shifts at the hospital. The claimant was not an employee of the respondent, and as a temporary worker was under no obligation to provide work, and might in any event choose not to work shifts there again. The established practice was that if the RAP (in this case the specified e-learning) was subsequently completed, and (clearly) if the worker in question wished to be considered for future shifts at the hospital, NHSP would inform the hospital so that the hospital could then consider lifting the restriction. ll. Whatever matters the claimant may have raised with NHSP, the tribunal accepts the respondent’s clear evidence that after the claimant completed the e-learning, NHSP did not inform the hospital (which would be via Ms Bellamy) of that fact. As a consequence, the claimant’s file was not re-opened, and the temporary restriction on working at the hospital remained in place. In other words, no action was taken, because there was no action to take. mm. The claimant was aware of the procedure, and was aware that in 2017 there had been a delay in communication by NHSP, which had been immediately resolved by Ms Bellamy when the claimant telephoned Ms Bellamy direct. This time, the claimant did not make contact with her, and Ms Bellamy only became aware after receipt of the claimant’s ET1 claim form the following year. Although the claimant’s stated case was that she did contact Ms Bellamy, the evidence is incapable of supporting such a conclusion, and the tribunal has no hesitation in accepting Ms Bellamy’s evidence that the claimant never contacted her in respect of the June 2018 allegations and subsequent restriction on working, and Ms Bellamy was only involved after the ET1 claim was received. The tribunal accepts that Ms Bellamy then tried to resolve matters, to lift the restriction so that the claimant could complete her PTs at the hospital. The only reason that matters were not satisfactorily resolved at that stage was because NHSP advised Ms Bellamy that the claimant was no longer in a position to work at the hospital. nn. As Ms Bellamy confirmed in an email to NHSP on 3 April 2019, the respondent was be happy to lift the restriction on working for the Trust, if the claimant changed her mind, so that she could undertake the agreed placement testimonials. Plainly, the temporary restriction would continue to remain in place until the claimant made arrangements to work the specified day shifts so as to obtain the PTs. If she did not wish to work at the hospital again, then matters would be left as they were. oo. That is how matters were left, and the tribunal accepts that Ms Bellamy’s stated position in April 2019 reflects what the respondent’s position had been all along: the respondent was happy to raise the restriction if the claimant had completed her e-learning and wished to compete the remainder of her RAP by working day shifts at the hospital under a band 6, to obtain PTs, after which there would be no restriction at all in the claimant working any shifts at the hospital. pp. Meanwhile, as referred to above, the tribunal finds that the claimant did not make contact with the hospital until January 2019, and accepts Ms Swann’s entirely clear evidence that the claimant left a message for her on a non-working day (11 January 2019), and that on return to work on Monday 14 January 2019 she returned the claimant’s call. Ms Swann had had no prior involvement in the claimant’s case, but understood from what the claimant told her that the claimant was upset that after a completed investigation she had been prevented from working at the trust. This was not a matter which Ms Swann was in a position to resolve, and she told the claimant that she would follow it up with NHSP. She did not inform Ms Bellamy, as it appeared that this was an internal HNSP matter for NHSP to resolve. She immediately followed up the telephone call, as promised, with an email (timed at 1204 on 14 January 2019) to the lead nurse point of contact at NHSP, summarising the claimant’s concerns and asking “is there a plan we can put in place to help facilitate this…?” Unbeknown to her (which had plainly not been explained to her by the claimant in any coherent way), there was of course a plan in place. The plan was that if NHSP informed the hospital that the claimant had completed her e-learning, she would then be permitted to return to complete her PTs. The tribunal accepts Ms Swann’s evidence that having raised this matter, she was not aware of anything further and assumed that the matter had been resolved. qq. In summary, relevant to the specific allegations of direct race discrimination set out in the agreed issues, the tribunal makes the following substantive findings of fact: i. On or around 26 June 2018 the respondent did not make false allegations against the claimant. ii. On 27 June 2018 Ms Goodyer recorded in an incident report form, in good faith, what she had observed and been told. The tribunal accepts that she had accurately recorded what she had observed, said and heard. If she might have reached the wrong conclusions on any matter, based on what she understood from other sources (such as the patient whose catheter had backed up) that does not undermine the credibility of her own account. iii. Ms Goodyer’s concerns were reflected in a referral to NHSP. iv. NHSP investigated the matter in the usual way. v. There was never a permanent restriction on the claimant working at the respondent hospital. vi. There was a temporary restriction on working at the respondent hospital, which would be lifted once a remedial action plan was completed. vii. The respondent did not refuse to lift the restrictions. viii. The claimant did not contact the hospital in respect of returning to work, until she spoke to Ms Swann in January 2019, at which point Ms Swann immediately took reasonable steps to try to resolve the situation. ix. The claimant did not contact Ms Bellamy in relation to the matters complained of. The tribunal’s conclusions - liability

[94]This is a claim of direct race discrimination under Sections 9 and 13 of the Equality Act 2010. The claimant at an earlier stage in the proceedings described herself as Black African and also elsewhere has referred to her national origins as being Zimbabwean. The claim is on the basis that she was treated less favourably because she is a Black African, from Zimbabwe.

[95]As far as the specific allegations of direct discrimination under Section 13 of the Equality Act 2020, the issues are summarised above and the law was helpfully summarised in Mr Ross’s skeleton argument. The law need not be repeated.

[96]The initial burden of proof is upon the claimant. It is for the claimant to prove primary facts, on a balance of probabilities, upon which the allegations rely. If the claimant discharges the burden of proving facts from which the tribunal could decide, in the absence of any other explanation, that discrimination occurred, the burden then shifts and it is for the respondent to prove that the events in question are in no sense discriminatory, and that there is an entirely non-discriminatory explanation for what happened.

[97]In this case, as set out in both case management orders and in detail in the second case management order signed by Employment Dawson on 12 November 2019, there are essentially two allegations of direct discrimination which both contain more than one element within them.

[98]The first allegation is that on or around 26 June 2018, the respondent made false allegations against her/placed a permanent restriction on the claimant working at the respondent in relation to the matters referred to at paragraph 2 of the claimant’s further particulars dated 29 April 2019/1 June 2019 because of her race. I note that those matters, as referred to in the claimant’s further particulars, are in essence the allegations, complaints or concerns that were expressed by the respondent firstly, in an incident report form and then in a sims report to NHS Professionals. NHSP then turned them into allegations, or “points for investigation”.

[99]The second allegation is the alleged refusal by the respondent to lift the restrictions on the claimant working for the respondent notwithstanding that the claimant contacted the respondent by telephone on three or four occasions in September/October 2018 onwards including Rachel Bellamy of HR to be allowed to return to work following completion of the remedial plan.

[100]Those are the alleged primary facts which the claimant must establish.

[101]The next question, as framed by Judge Dawson in the last case management order, is “did the respondent treat the claimant as alleged less favourably than it treated or would have treated the comparators”. It is noted in the case management order that the claimant relies upon hypothetical comparators. If so, can the claimant prove primary facts from which the Tribunal can properly and fairly conclude that the difference in treatment was because of race. If so, what is the respondent’s explanation? This is a reference to the reverse burden of proof. Can the respondent prove a non-discriminatory reason for any proven treatment?

[102]There are also time limitation issues in relation to the first allegation because those relate to June 2018, to be in time, a matter would have to relate to events on or after 11 October 2018 or alternatively we pass the continuing act on or after that date or that it would be just and equitable to extend time. There is no need to address that matter further at this point.

[103]There was a potential issue, identified by Judge Dawson, over the question of any vicarious liability by the respondent for any acts by NHS Professionals (NHSP). The respondent had set out its argument why it could not be held liable for any act by NHSP, a wholly separate legal entity. That matter was not pursued by the claimant, and I consider that is not a matter I need to consider further. At no point has it been alleged that NHSP acted in some way as an agent of the respondent, nor that NHSP itself acted in a discriminatory way. Although identified by Judge Dawson, as a possible issue, this is not a matter which has to be resolved.

[104]Although the claimant was not an employee of the respondent, there is no dispute that the claimant, as an agency worker engaged through NHSP, can bring a discrimination claim against the respondent. the tribunal has jurisdiction, subject to any out-of-time arguments.

[105]This is a case which turns upon its facts. The facts, and some of the disputes of fact, are referred to above. There is also comment on credibility generally, and the way the claimant has brought her claim, without troubling to present the evidence necessary to establish the primary facts. While the evidential matters in dispute are relatively limited, there are some key findings of fact which needed to be made, and where the claimant has put credibility in issue.

[106]As indicated above, the claimant set herself the task of proving that the concerns raised by the respondent in their referral to NHSP were false. There are various other matters which hare in dispute. The claimant’s claim rests fairly on the assertion by her that she made a number of telephone calls and specifically that she spoke to Ms Bellamy and Ms Swann much earlier than they accept to be the case. The tribunal accepted Ms Swann’s clear account that a message having been left for the first time on 11 January 2019, a non-working day for her, she immediately responded (and responded appropriately) when next in work. The tribunal accepted Ms Bellamy’s clear account that she was never contacted at all in the relevant period. The claimant makes specific allegations about a decision to put her on “permanent restrictions” and a deliberate refusal to let the claimant come back to work. There was no evidence supporting these allegations. These are all matters which are in dispute, and the claimant is effectively arguing that the respondent witnesses were not telling the truth, that Ms Goodyear was lying about the events of the 26 and 27 June 2018, and at least on the face of it that Ms Bellamy and Ms Swan were misleading the Tribunal as to contact from the claimant, and therefore their knowledge that the claimant had completed the initial part of her remedial action plan and was ready to return to the hospital to work there, which would have required completing placement testimonials namely working day shifts under a Band 6 or above. The claimant has put credibility in issue and has in effect in the way that the case was pleaded called Ms Goodyear a liar.

[107]As indicated above, the tribunal needed to make credibility findings. Having chosen, in her claim to the Employment Tribunal, to accuse various people of serious unlawful discrimination, the claimant has produced surprisingly little evidence to support her case, with a threadbare witness statement, and vague, evasive and contradictory answers in cross-examination. In certain important respects she has not called evidence at all. An analysis of credibility is set out above. The tribunal has however looked at the evidence in the round, in making findings, whilst bearing in mind that the burden of proof is still upon the claimant to be able to show that there are facts capable of carrying a discriminatory interpretation. That said, the tribunal is alert to the fact that the underlying statutory test is whether the claimant was treated less favourably because of her race, and sometimes it is better to seek to answer that question, rather than to consider the shifting burden of proof.

[108]This is also a case where a deposit order was ordered by Judge Dawson. It appears to be relevant on two particular matters to do with liability.

[109]Firstly, the deposit order put the claimant on notice of the fact that merely making assertions of discrimination is not good enough. She has to back that up with evidence capable of supporting the allegations, from which a discriminatory inference might be drawn.

[110]The claimant did not put discrimination to any of the respondent’s witnesses. In her closing submissions of over an hour, she did not at any stage make any reference to her race, or to discrimination. In practical terms, that very considerably undermines the potential strength of the case generally. This was an astonishing omission: in essence, the claimant has brought claims of race discrimination, but without suggesting in what way the matters complained of could conceivably amount to any sort of discrimination.

[111]Bearing in mind that the claimant is a litigant in person, I have nevertheless looked at the evidence more widely, to see if there are any matters at all from which discriminatory inferences might be drawn. It assists me to consider Judge Dawson’s analysis in the deposit order, which doubtless reminded the claimant of the importance of calling evidence on particular matters. It is all the more surprising that she did not do so.

[112]I note in his reasons for making a deposit order, Judge Dawson set out what he understood to be the claimant’s case, at least at that stage, even if many of these arguments have not been repeated at the final hearing, or where no evidence has been called in support of the possible arguments. He noted matters which the claimant appeared to wish to rely on, from which discriminatory inferences might be drawn. He refers to the claimant pointing out that she was the only Black person, working on shifts on the date in question in June 2018. Even though the tribunal heard evidence that it was a mixed-race shift, she would certainly appear to have been the only Black African. As Judge Dawson pointed out, mere disparity in race is not likely to be enough on its own. He also drew attention to the fact that although the claimant complained about the conduct of Nurse Goodyer, and suggested this her behaviour was because of the claimant’s race, this argument was somewhat undermined because the claimant’s own evidence had in fact presented two alternative and non-discriminatory explanations. Firstly, for various reasons unconnected to race that nurse Goodyear wanted people to fear her, and secondly, because the claimant had been flagged on the system (there having been complaints about her in the past) she had become an easy target.

[113]Judge Dawson also noted that at that point (November 2019) the claimant referred to matters relating to December 2017, although that appeared to be largely in relation to whistleblowing, a claim which had been struck out at a much earlier stage. Judge Dawson’s understanding of the claimant’s case appeared to be that because the claimant had been treated differently in December 2017, that was a matter from which discriminatory inferences might be drawn. That said, at the final hearing the claimant did not provide any oral evidence on this matter, and it takes her case no further. Judge Dawson also noted, at paragraph 40 of his conclusions on the deposit order, that the claimant appeared to be relying on the fact that she was the only Black member of staff on shift but he also came to the conclusion that there did not appear to be any obvious evidence as to disparity of treatment. Judge Dawson did not have the benefit of having heard any oral evidence from nurse Goodyer. The same can be said of NHSP when it conducted an investigation. Judge Dawson stressed the importance of there being evidence from which discriminatory inferences can be drawn, but he pointed out that if there was no innocent explanation from the nurse in question making a false allegation, or if the Tribunal conceded that the report was false, that would be a matter to consider. However, he expressed the view at that point that it was unlikely that the Tribunal would find either the nurse did not act in good faith, or if she did so, she acted because of race.

[114]In respect of the first allegation, the claimant was plainly on notice that it was necessary to call evidence capable of supporting discriminatory inferences.

[115]In relation to the second allegation, Judge Dawson also thought that that had little reasonable prospect of success. To summarise, he was effectively saying was that if the claimant was right (that she had plainly expressed to the respondent that she wished to return to work at the hospital in the interval immediately after June 2018) and if the hospital staff had deliberately refused to let her back, notwithstanding her completing an action plan, that this was a matter which would be relied on for drawing discriminatory inferences. Noting that Judge Dawson did not know what evidence the respondent might or might not call in rebuttal, he nevertheless considered that this was in any event a weak allegation, and so the claimant knew of the importance of calling evidence to support that second allegation.

[116]The tribunal has made an adverse credulity finding against the claimant. But even taking her evidence at its highest, it still falls short of establishing even a prima facie case, or of establishing the necessary primary facts, let alone amounting to any real allegation of discrimination. The claimant’s witness statement does not suggest that there was evidence to support the allegations she has chosen to pursue in the Employment Tribunal. Mr Ross conducted a fair and thorough cross examination and the reality was that the claimant’s answers to the questions, rather than filling in the gaps or providing coherent evidence in support of the allegations of discrimination, in various respects went to undermine the claimant’s case further.

[117]The claimant has made very serious allegation of unlawful discrimination, but it appears that these claims are based on a sense of unfairness and injustice that she felt, and her own perceptions (which sometimes appeared to be based on a complete misunderstanding of the facts). The claimant made no allegation of discrimination in respect of the first claim, and only a tangential one in respect of the second. Allegations of discrimination or less favourable threatened were not put to the witnesses, and their assertions that their acts and decisions were untainted by discrimination, went wholly unchallenged. Astonishingly, the claimant’s closing submissions made no allegations of discrimination whatsoever.

[118]In a nutshell, the claimant has chosen to purse serious allegations of discrimination, despite being on notice through paying a deposit order that her claims had little reasonable prospect of success. The called hardly any evidence to support those allegations. Her cross-examination and closing submissions abandoned altogether any suggestion of discriminatory conduct.

[119]The claimant’s evidence, taken at its highest, did not come close to establishing the facts she would need to establish. But her account was in any event seriously lacking in credibility.

[120]Turning to the specific factual allegations: the claimant has failed to establish that the respondent (notably through the person of Ms Goodyer) made false allegations against her. Having said these are false, the claimant did not in fact provide very much evidence at all as to why they were false, and what in fact had happened during the shift. Essentially, nurse Goodyer said “this is what I saw, it is what I said, it is what I heard.” The claimant sought to suggest to her that it was not the truth, but did not provide, in most respects, any alternative evidence from which the falsity could be proven. I have had the benefit of hearing the sworn evidence of nurse Goodyer, and I found it credible. It may be, for example, that she was mistaken in attributing the backed-up catheter (and an argument with the patient) to the claimant, and that it was in fact somebody else who was responsible: but she did not witness the incident and gave a frank account of the complaint made by the patient, and she recorded that. The claimant’s oral evidence has in no sense undermined nurse Goodyer’s evidence, which I accept was given in good faith. Ms Goodyer’s evidence is more likely than not to be accurate, but even if she made a mistake I see no reason to conclude that it was a deliberate mistake. She recorded what she understood to be the position and then had no further involvement other than signing a witness statement with the same information. The normal procedure for reporting the matter to NHSP was followed, and NHSP, uncontroversially, investigated it.

[121]In terms of the first part of the first allegation, did the respondent make false allegations? The answer to that question is “no”. Furthermore, all allegations were made in good faith. The second part of that allegation is that the respondent placed a permanent restriction on the claimant. That is also plainly not correct. The Tribunal considered the respondent’s evidence was entirely clear and credible, and indeed it should have been clear to the claimant (as she had been subject to the same procedure in the past) that whilst an investigation took place there was a temporary restriction placed on her working, and then if the NHSP imposed a remedial action plan, then there would be a temporary restriction pending completion of that action plan. I consider that the claimant’s evidence falls very far below proving that there was any permanent restriction.

[122]On the facts alone, the claimant is unable to even come close to showing the facts (which she asserts amounted to discriminatory acts) are as alleged.

[123]In respect of the second allegation, relating to the alleged refusal by the respondent to lift the working restrictions, the evidence simply does not support the claimant’s assertions as to the facts. The respondent, plainly, never refused the lift the restriction. The respondent followed the usual procedures which they would follow in these circumstances: namely a temporary restricting during the (relatively brief) investigation. Then were, as in this case, NHSP chose to give an agency worker a remedial action plan involving e-learning, the temporary restriction would continue pending confirmation of completion of the e-learning action plan (which would not in any event require patient contact). The restriction would then be relaxed to the extent that the claimant could obtain placement testimonials on a day shift at the hospital. Provided the placement testimonials were satisfactory, then all restrictions would be removed.

[124]The Tribunal has accepted that in fact the respondent was not informed that the claimant had completed the NHSP e-learning (which the claimant was very late in completing). Not unnaturally, the respondent closed the claimant’s file, pending a change of circumstance. The Tribunal accepts the respondent’s clear evidence that the first time the claimant made direct contact with the respondent was in January 2019 when she spoke to Ms Swann. Ms Swann had no knowledge of the case, and nor could she be expected to, but understood the claimant to be complaining that NHSP were not letting her go back to work, and she immediately emailed NHSP in order to try and resolve matters. The claimant did not contact Ms Bellamy, who only became involved after the claim form was received. Even then, she tried to sort matters out in the claimant’s favour, but there was no need to end the temporary restriction because she was informed by NHSP that the claimant would not come back and work for the Trust again.

[125]The alleged refusal to lift the restrictions is plainly not made out.

[126]The second part of the second allegation (that this refusal was notwithstanding the claimant contacting the respondent on three or four occasions in September/October onwards) is not made out. There was one contact in January, and that matter was dealt with in a sensible and non-discriminatory way by Ms Swann.

[127]The consequences of the matters referred to above, is that in fact the specific factual allegations relied upon by the claimant are not made out. The claims simply cannot succeed.

[128]The Tribunal has, however, gone on to look more broadly at the question of whether, if one adopted an extremely loose interpretation of the factual allegations, there might be any substance in the claims. For example, if the allegations had been more sensibly put forwards in relation to the reason for concerns being expressed to NHSP, and in relation to a delay in the arrangements for lifting restrictions. But the Tribunal has found nothing whatsoever from which any discriminatory inferences could be drawn. The claimant, for example, by offering alternative explanations for Ms Goodyer’s complaints has somewhat undermined her own case. The claimant has in any event called no evidence materially undermining the allegations against her. The claimant has called no evidence suggesting any unsatisfactory explanation for the respondent’s actions concerning the temporary restriction in working further shifts.

[129]Crucially, the Tribunal considers that on the evidence presented by the claimant at the hearing, there is simply nothing from which any inference of discrimination whatsoever can be drawn. Although the claimant had previously relied upon the December 2017 matter (which it would appear related to whistleblowing, in some way), she provided no evidence of that at the hearing. She merely asked questions to Ms Bellamy and Ms Bellamy gave entirely clear answers which discounted any possibility of discriminatory inferences. Credible, and entirely non-discriminatory, explanations were given by the respondent for all the acts complained of. The tribunal would in any event accept those explanations.

[130]On any reasonable approach to the facts, there is simply nothing capable of supporting the allegations of direct discrimination. Not only is there no evidence before the tribunal disclosing any reasonable basis for substantially criticising the way her case was handled by the respondent, but there is not one scintilla of evidence suggesting that anything that happened was in any sense whatsoever linked in some way to the claimant being a Black African. An agency healthcare assistant with the same characteristics as the claimant, but of a different race, would have been dealt with in exactly the same way in the circumstances.

[131]In conclusion: The claimant has brought two claims of direct race discrimination, but has called very limited evidence in support of her claim, and that evidence does not even establish the primary facts which the claimant needs to prove. The claimant was not a credible witness. When cross-examined, and when cross-examining the respondent witnesses, there was no suggestion that any of the events had anything whatsoever to do with her race. She did not even assert, in lengthy closing submissions, that anything that happened was because of her race. The claim was doomed to fail.

[132]The claims are not well founded.

[133]One final point which might usefully be mentioned is that even if the Tribunal had been sympathetic to what might have been the only arguable case (had there been proper supporting evidence from the claimant) that Ms Goodyer was simply wrong in the allegations which she made, and that taken at its highest one might properly draw inferences (from the claimant’s point of view) as to her failure to provide a proper explanation, the reality is that that was an allegation which could have been brought in or very shortly after, June 2018. The claimant delayed very considerably in bringing the claim. This was despite her having told the tribunal that she had previously taken advice from the CAB and from ACAS, and would therefore have had a general idea to her rights. In cross-examination she provided no explanation whatsoever for not escalating that matter in any way at the time, let alone for not bringing proceedings in a timely way. In the circumstances the Tribunal finds that there is nothing upon which any just and equitable extension of time could have been based. Mr Ross made cogent arguments as to why the delay was prejudicial and that it was not just and equitable to extend time. The claimant chose not to resist that argument. The tribunal would in any event have declined to extend time. The parties’ submissions as to costs

[134]The timings of the hearing have been set out above. Mr Ross had handed in his written submissions after the liability judgment, making it clear that the respondent’s case under Rule 39(5) was that the deposit of £100 should be paid to the respondent, and offset against the respondent’s costs, which he quantified in total as being £19,577.50, less the £100. .

[135]The Tribunal then adjourned for twenty-six minutes to allow the Judge and claimant to read the closing submissions.

[136]After the adjournment, the claimant did not ask for any more time to prepare.

[137]Mr Ross went on to make his submissions. He had already confirmed, that as well as under Rule 39(5), the application was brought under Rule 76(1)(a) and 76(1)(b), on the following bases. Firstly that the claim had no reasonable prospects of success ((76(1)(b)), and secondly and that the claimant acted unreasonably in continuing to proceed with the claim after the deposit order. He set out further oral submissions, relying on his written submissions. The latter may be summarised (in broad overview) as follows:

[138]The respondent was seeking its legal costs, limited to the period after the deposit order was paid. This was subject to credit of the £100 deposit, which amounted to £19,477.50 (net of VAT). Mr Ross set out the relevant parts of Rule 39(5) and 76(1), and made it clear that this would be a summary assessment under Rule 78(1)(a), limited to £20,000. He summarised the two-stage test; namely the Tribunal should first consider whether discretion is engaged, and second whether that discretion should be exercised. He referred to the case of Vaughan. The Tribunal would observe that this is a correct formulation, albeit on one analysis one might describe it as a three-stage test; firstly, whether the provisions of Rule 76 (and in this case Rule 39) had been met, and if so, whether within the Judge’s discretion (exercised in accordance with the overriding objective) costs order should be paid, and if the Judge decides that a costs order should be paid, the third stage would be to determine the amount.

[139]Mr Ross’s written submissions (plainly prepared on the basis that they would only be handed in, in this format, if the claim failed for similar reasons as set out in the deposit order) also pointed out that the Tribunal had made a ruling in the respondent’s favour for substantially the same reasons as given by EJ Dawson in his Judgment ordering a deposit. It was submitted that pursuing the claim was unreasonable conduct, and that at its very highest the claim had plainly had no more than little prospect of success. He pointed out that the claimant’s case was so weak that Judge Dawson had considered striking it out in its entirety, and had highlighted that it was important to make it clear to the claimant that her case had little reasonable prospects of success and to give her sufficient warning as to costs.

[140]Despite the weakness of the claim, the claimant had chosen to pursue her claim in a half-hearted manner, with the respondent having to waste time resources making applications for an unless order etc, because of the unreasonable way she conducted her preparations. As it turned out, the case was without merit. The claimant had known from 9 July 2020 that the respondent intended to apply for its costs from the date of the deposit order. Although the respondent had asked for evidence of the claimant’s means she had provided nothing. If she gave oral evidence the respondent would be disadvantaged by being unable to have time to prepare its response. The application requested costs covering the period from after the deposit order was paid, and the total costs were reasonable in light of the need to prepare for a four day hearing, especially taken into account the extra work because of the claimant’s failure to comply with the Tribunal’s orders.

[141]In oral submissions Mr Ross added some additional matters. He had been counsel at the last preliminary hearing before Judge Dawson. His note confirmed that the judge had gone into more detail orally, when he addressed the claimant, pointing out the risk to the claimant of a costs order, and expressly pointing out the fact that the respondent’s legal costs were likely to run into tens of thousands of pounds. Clearly, he had made it abundantly clear as to the risk she faced, if she proceeded with her case. Mr Ross now made additional points about the fact that having made allegations of race discrimination, the claimant had failed to provide necessary evidence in her own witness statement, or had even put her case to the respondent witnesses in cross-examination, and had not made any discrimination allegations in closing submissions. She had failed to take steps to prosecute the case of race discrimination which she had alleged. There had been a delay in witness statement exchange, because of the claimant’s failure to comply with orders, but statements were eventually exchanged 4 June 2020, at which point the claimant would have been aware of the oral evidence the respondent would call, and the claimant had already prepared a witness statement which did not satisfactorily deal with the allegations she was bringing. There are aspects of the claimant’s evidence which were not credible, and the lack of care in providing believable evidence to the Tribunal was significant. For example, the list of dates when she said she had spoken to Ms Hannah Swann.

[142]The claimant was reminded by the Judge of the framework under the rules which she had to apply and the test he would consider under the 2013 Rules. He also reminded her of the importance of responding to the arguments made by Mr Ross. Just before her closing submissions as to costs, the judge reminded the claimant that she could produce evidence as to ability to pay if she wished to do so, and he would take it into account. The claimant did not request any extra time to prepare, after hearing Mr Ross’s oral submissions.

[143]The Judge did not put a time limit on submissions. This was because Mr Ross had been brief, and the Judge considered it would be a straightforward matter for the claimant to respond to his arguments, and to give any evidence or information she might wish to provide, as to ability to pay.

[144]The claimant started to embark on a lengthy explanation as to why she should have won her case, and how badly treated she had been, albeit at nowhere in her submissions did she make the assertion that there had in fact been race discrimination. In the event she addressed the Tribunal for over half an hour, during which she made no attempt to address the matter of costs or to reply to any of the arguments made by Mr Ross. She had earlier complained (without giving any coherent explanation) that her NHSP file had been marked in a way which made it hard to obtain shift work through NHSP. Before the break (to read Mr Ross’s submissions as to costs), the claimant had mentioned that she was not currently working (without explanation), and was encouraged to be ready to provide information as to her ability to pay. In the event, she added nothing of any relevance.

[145]The claimant made no comment on the amount of the costs sought. She provided no information as to her ability to pay, despite reminders from the Judge. The Judge went out of his way to remind the claimant of the importance of dealing with the specific application for costs, and providing information as to the ability to pay, but (as had been the case in the claimant’s closing submission as to liability) he took the view after having reminded the claimant several times, that he had gone as far as he should.

[146]After several attempts to encourage the claimant to focus on the issues as to costs, the judge decided, having already given an explanation and had tried to guide the claimant only relevant topics several times, that it would be inappropriate (and indeed futile) to seek to direct the claimant to address only the matters in dispute, nor to prevent her from saying what she wanted to say, in the way she wanted to say it. She was permitted to say all she wished, whilst the judge listened, and made a note.

[147]The claimant’s lengthy and meandering submissions dealt with her sense of grievance over the incident in the ward on 26/27 June 2018, and referred to all sorts of evidential matters relating to liability, which she had not covered in her own evidence or put to the respondent’s witnesses. She indicated that there were other documents available which would prove she was in the right, but gave no explanation as to why these had not been presented during the liability hearing. The nearest she came to the ability to pay had been her passing (and unexplained) comment before the break that she was not currently working, and her earlier complaint that the respondent’s refusal to let her work there had prevented her working through NHSP elsewhere (although she later clarified that the position had changed in February 2019, 18 months prior to the hearing). She did not indicate what steps she had taken to remedy the matter with NHSP, and when she had done so. She did not explain why (as an experienced health care assistant) she chose not to seek a salaried job and had been working shifts through NHSP. She did not explain whether or why she would be unable to find work in the private sector. Other than her passing comment that she was not working at the moment, she provided no information about what work she had done recently, and what plans she had for the future. Other than the matters referred to above, she provided no information whatsoever as to her ability to pay, or as to what sort of work might be available to her in the Southampton area, if she had not already been doing recently. The Tribunal notes that the claimant was silent on the question of when she had worked, what work was available, what her sources of income were, what her expenses were, and what her future employment plans might be.

[148]After the claimant had been speaking for more than ten minutes without addressing the costs application, the judge asked her how much longer she would be. She indicated that she wanted another twenty minutes. The judge agreed with the claimant that she would have twenty minutes more, but no longer. After a further twenty minutes, the claimant had still not addressed any relevant matter. The Judge pointed out she had had her twenty minutes, and invited the claimant to conclude her submissions within another five minutes. At that point the claimant continued to seek to justify why she should have won her claim, and why the respondent witnesses had lied. She still did not address the question of costs at all, but nevertheless concluded within five minutes, and confirmed that she had completed her submissions.

[149]The Judge invited Mr Ross to make a brief reply. Mr Ross pointed out that the claimant had been given a lengthy opportunity to respond on costs, and had been on notice as to the matter and all she had done was use the time to repeat what she had said in the liability hearing with some surprising new evidence she claimed existed, which she had not put to the respondent’s witnesses. This approach continued the pattern of raising matters without warning, without substantiating them, and that the claimant had failed to put forward any arguments against the award of costs, while seeking to make further serious allegations against the respondent. He had nothing further to add to his earlier submissions, as the claimant had not made any substantive points to which he needed to reply. He invited the Judge to exercise his discretion in the way requested. The tribunal’s conclusions - costs

[150]The claimant had paid a deposit of £100 under rule 39, as a condition of being permitted to continue with her claims of direct discrimination.

[151]The Tribunal had needed in any event to deal with the question of what to do with the £100, under the provisions of Rule 39(5). As the respondent made a costs application on more general grounds as well, the tribunal considered all these matters together.

[152]The costs application will not have taken the claimant by surprise. The deposit order of 12 November 2019 flagged up this possibility. The judge had identified at the start of the hearing that under Rule 39(5), that after ruling on liability, he would need to deal with the deposit which the claimant had paid. Mr Ross had also indicated that there might be an application for costs, which had indeed been referred to in the email sent to the claimant a month before the hearing, warning her as to that possibility, and in respect of bringing evidence as to ability to pay.

[153]One could reasonably, therefore, expect the claimant to be on notice as to the fact that she would need to be ready to respond to an application to a costs order on the fourth and final day of the hearing, and ready to call evidence as to her ability to pay costs. The way the hearing was timetabled, she also had more than a full day in which to gather her thoughts, having completed her closing submissions on liability on the second day.

[154]The Tribunal confirms that it has taken into account the submissions from both parties. Mr Ross’ submissions were well-focussed and clear and set out a very strong argument as to why costs should be awarded. The claimant had spoken at length, but despite judicial attempts to assist her in focussing on the issues, had failed to engage with relevant points or to provide any information as to ability to pay.

[155]The Tribunal took into account the case of Vaughan and the Judge also directed himself on other relevant case law such as the guidance of Mummery LJ in McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

and Barnsley Metropolitan Borough Council v Yerrakalva

[2011] EWCA Civ 1255

, together with other cases such as Arrowsmith v Nottingham Trent University

[2012] ICR 159

[156]The Tribunal has considered the respondent’s costs application made under the provisions of Rule 39(5) and Rule 39(6), and also the general application under Rule 76(1). The relevant parts of rules 39 and 76 are worded as follows: Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) (3) (4) … (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and 17

(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order. When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.

[157]As Mr Ross had relied upon in his submissions, I had confirmed at the start of the hearing that the tribunal would need to deal with the fact that there had been a deposit paid, and it would need to be resolved what should happen to that £100. Mr Ross had also intimated at that point that the respondent might make an application for costs, which was of course reflected in the email which the respondent’s solicitors sent to the Tribunal and copied to the claimant on 9 July 2020, a month before the final hearing. This indicated an intention to apply for a costs order if the respondent was successful, also flagging up the need for the claimant to provide evidence in respect of her means.

[158]The Tribunal took into account what the parties have said. Mr Ross provided references to the law. The Tribunal reminded itself of the case law generally, as to the application of the test in Rule 39(5), and also as to Rule 76 in relation to matters not expressly related to the disposal of the £100 deposit. As to costs more generally, the Tribunal must consider whether the case falls within the scope of Rule 76. If it does, the Judge then has the discretion as to whether or not to make an order for costs and if so, in what amount.

[159]The Tribunal has the discretion under Rule 84 to take into account the paying party’s ability to pay, and as I made it clear to both parties at the start of the costs application, it was my intention to have regard to anything which the claimant raised in respect of her ability to pay. Indeed, I strongly encouraged the claimant to provide evidence or information in respect of her ability to pay.

[160]The respondent’s case, in essence, is that at the time of making the deposit order Judge Dawson had firstly made it clear in his reasons that he almost struck the discrimination claims out, but it was made very clear both in the lengthy reasons for the deposit order and in oral comments made at the preliminary hearing that the claimant should be under no illusion as to the risk she faced of a costs application. Judge Dawson had reminded her that such costs might be in the tens of thousands of pounds. Indeed, the wording of the costs order itself, highlights the fact that the order made was to ensure not only that the claimant was fully aware of the weakness of her claim in having little reasonable prospects of success, but also that she faced the risks of a costs application.

[161]Taking a step back, although all discretion is exercised in accordance with the framework of rules including the overriding objective to deal with cases fairly and justly, if an NHS Trust whose primary purpose is to look after patients has to spend very considerable resources in having to respond to a wholly unmeritorious case of race discrimination, the impartial observer might well ask the question: “Why should the NHS have to use its limited resources on legal expenses, when the claimant has brought a claim that was incapable of succeeding?” That said, I was certainly expecting the claimant to present evidence which might suggest a limited ability to pay, such that any order for costs may be below the sums requested by the respondent. Rule 39(5) and 39(6)

[162]Under Rule 39(5), I firstly need to address the issue as to whether the case was decided for substantially those reasons given in the deposit order.

[163]The respondent asserts that the case was indeed so decided. The claimant has had the opportunity of making submissions on that point and has not done so.

[164]I consider it is abundantly clear that the same weaknesses which Judge Dawson pointed out as requiring a costs order, were reflected in the evidence called at the final hearing. In many ways the case was even weaker at the final hearing. Judge Dawson had effectively given the claimant the benefit of the doubt, on the basis that he did not know what evidence might be called. But he made it clear that the claimant needed to call evidence to support her contentions, and also made it clear that although he had not received evidence from the respondent, that if there was a failure to provide an explanation then the claimant’s case might conceivably succeed.

[165]What in fact happened, was that in the period since the deposit order was paid on 17 December 2019, the claimant continued to act in an unreasonable way. As Mr Ross submitted, and it is a matter of record in the case file, there was a failure by the claimant to comply with orders in a timely way, and a repeated need for the respondent to raise matters in correspondence, including making applications for unless orders to be granted by the Tribunal against the claimant. This was necessitated by the claimant’s repeated failure to engage with progressing the case. And in fact the whistleblowing case was dismissed, after the claimant repeatedly failed to comply with orders, and failed to comply with an unless order.

[166]That is the background, also relevant to general rule 76(1)(a) points. But the reality is despite the warning from Judge Dawson, and the deposit order, the claimant provided an startlingly sparse witness statement. And when it came to the hearing, having chosen to proceed with serious allegations of unlawful race discrimination against the NHS Trust, naming individuals working there as being discriminators, the claimant wholly failed to substantiate those allegations. Not only did her evidence fall very considerably below what was required to discharge the initial burden of proof, but to the surprise of the Tribunal she failed to make any assertions of discrimination in cross-examination, and her very lengthy closing submissions also failed to make any suggestion that any of the matters which caused her concern had anything whatsoever to do with her race.

[167]The claimant having chosen to bring the case in the way that she did, it was inevitable it would not succeed. As it is, and Judge Dawson having in part not struck the case out because he did not know what evidence the respondent would be able to bring, the respondent was in fact able to bring clear evidence as to non-discriminatory reasons for what it did.

[168]Judge Dawson had pointed out the weaknesses in the claims, in the deposit order. Those same weaknesses were equally apparent at the hearing, and indeed the claimant took very few steps indeed to remedy those weaknesses. Mr Ross set out a very strong argument. The claimant entirely failed to engage with that argument, and made no attempt whatsoever to try to argue the contrary position.

[169]Under Rule 39, therefore, the position is clearly that, for the reasons set out in the deposit order, the claimant’s case has in fact failed. I accept that it therefore falls within the scope of Rule (5)(a) (see above).

[170]In consequence, under Rule 39(5)(b) and 39(6) (see above) that £100 which the claimant paid should be paid to the respondent and would also go in part-satisfaction of any other costs order.

[171]Rule 39(5) also enables the tribunal to award costs generally on the basis of acting unreasonably under rule 76(1)(a). That was a strong argument, and the claimant put forwards nothing to the contrary. However, rather than merely deal with that point as an adjunct to rule 39(5), the matter has in any event been considered separately. Rule 76(1)

[172]I have also looked more broadly at the facts of the case, and Mr Ross’s submissions on behalf of the respondent. I note, again, that the claimant made no attempt to argue that she acted reasonably in pursuing her claim.

[173]I also note that Mr Ross has sensibly confined his application to the period after the deposit order was paid (save for a general point about the claims having no reasonable prospect of success). He has also not sought to rely on the claimant acting vexatiously, abusively or disruptively.

[174]I entirely agree with the respondent that the claim had no reasonable prospect of success, and that the claimant acted unreasonably in pursuing the claims. This falls squarely within Rule 39(5), but would in any event come within the scope of Rule 76(1). The claim had no reasonable prospect of success (76(1)(b)) because as Judge Dawson made it clear the claim could only succeed if certain evidence was called. The claimant did not substantiate her allegations, and the respondent was in any event able to call credible evidence in rebuttal. The way the claimant failed to present adequate evidence at the hearing, and then failed even to argue that there had been any sort of discrimination, was not only unreasonable in the circumstances, but failed to disclose any arguable case at all. In other words, on the basis of what the claimant put before the tribunal, there could be no reasonable prospect of success.

[175]Once the claimant had paid the deposit order, she was under notice of the risks she faced. The respondent has very fairly not sought to recover its legal costs pre-dating the payment of the deposit order.

[176]There were also a number of milestones in the progress of the case, which might have been matters which would have worked in the claimant’s favour, had she acted reasonably at the time. One of these was witness statement exchange, in early June 2020. It should have taken place earlier, but the claimant had failed to comply with case management orders, and so the process was unfortunately delayed. The exchange of witness statements should have made the following plain to the claimant: Firstly, she must have realised that the respondent would call oral evidence that would deal squarely with all of her allegations, providing a coherent, cogent and non-discriminatory response. Secondly the claimant should have been aware that she had, in her own witness statement, failed to substantiate the allegations she relied upon. That would have been a sensible time to withdraw her claims. In fact, the way that the claimant conducted herself at the hearing strongly suggests that she had failed even to read the respondent’s witness statements, or if she had done so, had ignored their contents.

[177]Matters got more serious, because the claimant knew a month before the hearing that the respondent would be making a costs application if they succeeded at the hearing. Counsel’s main brief-fee would not have been payable at that stage. That was, again, a moment of reckoning when the claimant would have been well-advised to reconsider whether she still wished to pursue her claim. The likely costs application should already have been implicit (or perhaps explicit) by the contents of the deposit order, and what judge Dawson told the claimant at the preliminary hearing. Nevertheless, the claimant turned up at the hearing, knowing there was likely to be a costs application, knowing that she had paid a deposit, but unprepared to substantiate the serious allegations of unlawful discrimination which she had made.

[178]The Tribunal also found the claimant’s evidence not to be credible, on matters where she accused the respondent witnesses of lying, and the tribunal found the respondent witnesses to be truthful. Albeit (even taken at its highest) the claimant’s case would not have succeeded anyway. This adds weight to the argument (see Arrowsmith) that the claimant acted unreasonably within the scope of Rule 76(1)(a).

[179]Having weighed up all the evidence, and considered the sequence of events leading up to the hearing, it is evident to the tribunal that from the period of the deposit order onwards, this was a case which was doomed to fail. It is one where the claimant seemed to expend a considerable effort slinging mud at the respondent, and accusing employees of discriminating against her and of lying, but then made no effort to present any coherent evidence or case at the hearing.

[180]It is simply astonishing that in her rambling closing submissions of over an hour at the liability hearing, the claimant never even mentioned race discrimination, and presented no case whatsoever as to why her claims should succeed. That was not only a highly unreasonable way to conduct her case, but underlined the fact that it had no reasonable prospect of success. My astonishment at the abject failure to present any case at all as to why the claims should succeed, was matched only by my surprise that the claimant then presented no arguable case as to why costs should not be awarded, in further prolix and rambling submissions. It appear to be a hallmark of the way the case was pursued, that the claimant has consistently failed to engage with the evidence or the issues, and to choose to disregard any judicial warnings as to weaknesses in the claim (expressed through the reasons for the deposit order), and to ignore (at the hearing) and any judicial advice and encouragement to focus on relevant issues as to liability, and as to costs.

[181]The Tribunal has, in the circumstances, no hesitation in concluding that in the period from the payment of the deposit order onwards, the claimant must have been aware of the weaknesses of her case, and of what was needed from her, but that in fact her case had no reasonable prospect of success. This was because she chose not to heed what Judge Dawson had pointed out, and she failed to provide credible evidence or arguments to substantiate her very weak case. If that was not already abundantly apparent, from the date of witness statement exchange on 4 June 2020, if the claimant had bothered to read the witness statements, she should have realised her claims would not succeed. However, one of the notable factors in the case, as pointed out by Mr Ross, was that it appeared that the claimant had failed to read the respondent’s witness statements, or had at the very least failed to note their contents. This was reflected in what she said at the hearing, and the sometimes misconceived questions she asked in cross-examination. As Mr Ross pointed out, the claimant had even failed to bring a copy of her own witness statement to the hearing, and when asked by the judge if the contents were true to the best of her knowledge and belief, she appeared to be unfamiliar with what she had written and had to be given further time to refresh her memory as to what her evidence actually was.

[182]The Tribunal considers, in the circumstances, that the claimant’s two allegations of race discrimination fall squarely within the definition at Rule 76(1)(a): It was unreasonable to have pursued the case at all, and particularly in the way which the claimant did. Also Rule 76(1)(b): the tribunal finds that the claims had no reasonable prospect of success. It is correct, albeit it adds little to the application for costs (save in explaining the number of billable hours needed in the run up to the hearing) that there was a continuing failure to comply with orders. It is notable that even at the final hearing, although the claimant had presented a schedule of loss which appeared to be claiming loss of earnings up to March 2019 (but no later), when asked about remedy she was wholly unclear as to what remedy she was seeking, and had still failed to provide remedy evidence. Even if he claim had succeeded, she had not provided any proper basis for the award of compensation. Had she troubled to provide evidence as to mitigation of loss, this might also have assisted her at the costs hearing.

[183]The claimant conducted the hearing in a way which seemed almost calculated to fail. She failed to put forward any arguable basis for a finding that there had been race discrimination.

[184]The tribunal has no hesitation in agreeing with the respondent that the case falls within the scope of Rule 76(1)(a) (unreasonable conduct), and 76(1)(b) (no reasonable prospect of success). Exercise of the tribunal’s discretion

[185]The tribunal, when considering costs, reminded itself that costs do not normally follow the event in the Employment Tribunal, and that the award of costs is very much the exception rather than the rule. Costs are designed to be compensatory, rather than punitive. That said, there can be no doubt at all (and the claimant has not even argued to the contrary) that the power to award costs is triggered under Rule 76.

[186]Even then, it certainly does not follow that the tribunal should therefore award costs. It remains a matter of discretion, both as to whether costs are awarded, and the amount of any costs awarded (subject to the £20,000 cap in summary consideration of costs under Rule 78(1)(a)). That discretion is exercised in accordance with the overriding discretion to deal with cases fairly and justly, and in accordance with guidance in the case law. The judge had made it clear from the start that he wished to enquire into the claimant’s ability to pay costs, that he would take into account what was presented to him, and he repeatedly invited the claimant to present him with evidence, or at least information, in respect of that.

[187]Overall, it is clear that the claimant remains aggrieved by her treatment, in relation to the incident on D Neuro ward on 26/27 June 2018. One can feel some sympathy for the claimant in that respect. But the purpose of the hearing was not simply to give the claimant a platform for stating, over four days, that she was not happy. The case is about direct race discrimination, and the claimant did not present any arguable case as to why the claim should succeed. The consequence of this has been a haemorrhaging of public money to defend a case which should not have been pursued (or not pursued in the way it was), costing this NHS Trust very considerable sums. The case law is well summarised in Vaughan (the Judgment of Underhill P is clear set in the head note of the industrial relations law reports). Similarly, Underhill LJ set out clear guidance in McPherson and Yerrakalva. That guidance has been taken into account, but it is not necessary to dwell on the detail of the law: this is a case which very much turns on its facts.

[188]Even if the claimant is not currently earning (or was not on the four days of the hearing), that is not a bar to costs being awarded. The claimant has failed to provide information about her earnings, but there is no reason to conclude that she has not got the potential to earn reasonable wages. It is highly regrettable that the way that the claimant has conducted her litigation generally, was entirely reflected in her response to the costs application. She failed to engage with any of the arguments put forward by Mr Ross. She failed to listen to any of the repeated and helpful advice from the Judge as to what would assist her. She continued to argue the unarguable and to suggest that she should have won the case, which rather missed the point.

[189]This put the tribunal in an unenviable position. Not only has the claimant, despite encouragement from the judge, refused to assist the tribunal in the process of considering whether or not costs should be awarded, but has compounded the position by arguing solely that she believes her case should have succeeded, and that the respondent witnesses were lying. That merely goes to underline the unreasonable way that the proceedings have been conducted, and provides nothing in the claimant’s favour in respect of the costs application.

[190]As Mr Ross points out, this is the approach which the claimant has taken all along. It is this sort of irrational and unreasonable behaviour which has resulted in the respondent running up considerable legal costs, after the claimant paid the deposit order. Whilst it is clear that there is no need to find a direct causal link between unreasonable behaviour and specific legal expenses when (see McPherson), on the facts of this case it is as plain as can be that in unreasonably pursuing her claim, the claimant put the respondent to the legal expenses reflected in the costs application.

[191]In receiving Mr Ross’s submissions, I had taken the trouble clarify various key dates, such as witness statements exchange, such as when counsel’s brief fee became payable, to see whether there may be any basis for reducing the theoretical framework for awarding costs. I was expecting the claimant to resist the application, and also to provide some sort of evidential basis for findings as to ability to pay costs. The claimant, however, failed to engage meaningfully in the process.

[192]It is important, however, to even-handedly approach the question of costs, even in the absence of anything from the claimant capable of assisting her case, always keeping in mind the overriding objective, including proportionality. That is what I have done.

[193]I do note that this is a summary assessment of costs under Rule 78(1)(a) (sometimes referred to as “unassessed”), which does not require as much detailed evidence as an assessment under Rule 78(1)(b). I have, however, had regard to the contents of the Civil Procedure Rules, Parts 44-47 and Practice Directions, together with the information set out in the Solicitors’ Guideline Hourly Rates 2010.

[194]I have examined the information provided by Mr Ross as to the legal costs incurred, and further explored the explanations, timings, hours spent and the hourly rates charged. In my view, the legal expenses relating to use of a trainee solicitor, a partner and a 1-year PQE solicitor, who have assisted in the case, are well within what I would consider to be reasonable in the circumstances. I do not consider that the time spent, or the hourly rates charged, are excessive, given the need for real-time intervention from time to time (resulting from the claimant’s various case management defaults) and the need to prepare for and defend serious allegations of race discrimination against the Trust. Indeed, I would go as far as observing that the respondent appears to have been provided with a cost-effective service by Hempsons Solicitors. I also consider that counsel’s fees are in the circumstances fair, in presenting a defence to a race discrimination claim listed for four days. No doubt, had the claimant complied with orders when she should have done, and not behaved in a way that led to additional correspondence and work, the legal expenses would have been less. These costs were reasonably and necessarily incurred (see Yerrakalva), and are limited to covering the period of time after the claimant paid the deposit order.

[195]I have already found that the first costs limb is satisfied: costs may be awarded. As far as the second limb is concerned, I accept that in principle a costs order should indeed be made. There is no doubt, given the analysis set out above, that the nature, gravity and effect of the unreasonable conduct is a serious matter, requiring the respondent to defend an unmeritorious claim at a four-day hearing, but with extra unnecessary work caused by the unreasonable way the claimant continued to conduct herself. As for the first part of the second limb is concerned, I consider that it is fair in principle that the respondent’s full legal costs of £19,577.50 (less the £100 deposit) should be paid to the respondent. The costs were reasonably and necessarily incurred, they all resulted from the claimant’s unreasonable conduct (including pursuing a claim which turned out to have no reasonable prospect of success). There have been no arguments to the contrary. There is no adequate reason to discount this sum as a starting point, especially when Mr Ross put his case cogently as to why the full sum should be payable, and the claimant failed to present any argument.

[196]Moving to the the final part of the test: what sum in costs, if any, should actually be ordered? As intimated above, I entered the costs phase of the hearing ready to listen to a likely argument that if Rules 39(5) and 76(1) were satisfied, either no sum should be awarded over and above the £100 deposit, or a nominal sum. It is notable that, reflecting the contrary and illogical way the case has been pursued all along, the claimant put forward no such argument, even when encouraged to do so. I had gone out of my way to explain to the claimant that I was intending to have regard to any material she put before as to ability costs, the claimant having had this flagged up to her by the respondent a month previously.

[197]I repeatedly encouraged the claimant to provide me with information as to her financial means, but she failed to do so. Although the claimant had made a complaint that there was a flag on her NHSP file which she believed had made it difficult to find work at other NHS Trusts, this point was not elaborated upon, and there has been a very considerable time for the claimant to have resolved this with NHSP. As the respondent had consistently made plain, if the claimant completed her remedial action plan, she could work future shifts at their hospital. The claimant’s argument (although not expressed as such) suggesting that in some illdefined way the respondent had made it difficult for her to work, was an argument was without any weight. As an experienced Employment Judge based in Southampton, I am happy to take judicial notice of the fact that healthcare work is available in the area. There is also an abundance of work for healthcare assistants outside the NHS. I would expect there to be ample work within commuting distance of her home for an experienced healthcare assistant such as the claimant, whether as an employee or as a casual worker. The claimant has chosen not to reveal what work she has been doing recently, how much she has earned, what jobs she may have applied for, or what her future employment plans are. She has also refused to indicate what benefits she might be receiving, what her household’s sources of income might be, what her monthly expenditure is, what her savings are, and what assets she owns. The claimant has simply failed to provide any coherent information, although she is an experienced clinical professional who should be able to find work.

[198]In the circumstances, having had regard to these matters, I find that there is no information before me regarding ability to pay, although I would expect somebody in the claimant’s position to be able to find long-term paid work if she wished to do so, and it is reasonable to assume that the claimant would have savings or realisable assets, in the absence of any evidence to the contrary. The claimant chose to squander her time at the costs hearing, by making lengthy submissions on irrelevant matters. Using the approach set out in Vaughan, and in the absence of information as to means, I draw the inference that there is a reasonable prospect of the claimant being able, in due course, to return to well-paid employment (if she has not already done so) and in a position to make a payment. Affordability is not in any event the sole criterion for the exercise of discretion, and a nice estimate of what can be afforded is not essential – indeed, it is impossible when the claimant has failed to cooperate with the process. Costs have been limited to a sum less than the summary cap. I believe that it is a reasonable sum to award.

[199]Of course, the reality would not in any event be that the claimant has no choice but to write out a cheque for the full sum as soon as the hearing ended. Enforcement would be a matter for the respondent to pursue, or not, as they saw fit. If the costs order was to be enforced through the County Court, the judge would have to take into account the claimant’s means at the time, in deciding whether to require payment by instalment, and if so in what amount.

[200]Faced with a clear and well-argued costs application, for which the claimant had prior notice, and having been given ample time to absorb Mr Ross’s written submissions, the claimant come up with nothing material, of any weight. She failed to put forward any argument as to why a costs order should not be made. She failed to put forward any argument as to why costs should not be awarded in the full amount sought.

[201]In the exercise of my discretion, and in weighing up all the material placed before me, I am persuaded that Mr Ross’s submissions have merit, and that it is in the interests of justice that an order should be made for the full amount. The full amount falls within the maximum £20,000 set out in the Rules of Procedure for summary consideration. These are the legal costs which the respondent has reasonably and necessarily faced as a direct consequence of the claimant’s unreasonable conduct. Although I regret that the claimant’s unreasonable conduct of her case went as far as unreasonably failing to present any meaningful response to the costs application, I have come to the conclusion that I should make a costs order in the full amount sought.

[202]The Tribunal therefore orders that the claimant pay costs to the respondent in the sum of £19,577.50, less the £100 which had been paid as a deposit (which shall be paid separately by HMCTS to the respondent).