Dr K Sharma v University of Portsmouth: 1401084/2021

EMPLOYMENT TRIBUNALS

Case No 1401084/2021

Between

Dr K SharmaClaimant

University of PortsmouthRespondent

Before

Employment Judge Rayner

In person for claimant

M r N Smith (instructed by Counsel) for respondent

Date 24 January 2024

REASONS

claim

[1]This case was listed for a five-day liability only hearing on the 3, 4,5,6 and 7 October 2022. The evidence in the case was heard over four days with submissions and closing statements made on day four at lunchtime. The panel started deliberation on day four but were unable to sit on day five and therefore reconvened on October 14, 2022. We explained to the parties that given the time constraints, we would reserve judgement unless any additional or alternative suggestions were made. I reminded the parties that are reserved judgement meant that the judgement would be publicly available whereas an oral judgement will not be, unless written reasons were requested by either party. Dr Sharma indicated that she would request written reasons and therefore we reserved our judgement.

[2]We heard evidence from the claimant and her husband, Mr A Sharma on the first and second day of hearing. We heard evidence from Prof Gary Rees, Prof. Ait- Boudaoud and Mrs K. Collier on behalf of the respondent on the following days.

[3]The respondent had intended to call Mrs M Wall and submitted a witness statement for her, which we read, but did not call her to give evidence once the claimant had clarified that her allegations about the grievance process and the delay in the process were complaints about the way the respondent handled her grievance but were not allegations of direct discrimination on grounds of race.

[4]The case was first case managed on 21 October 2021. A further case management hearing was listed on the 10 August 2022, before Employment Judge Salter. At that point there was no agreed bundle and statements had not been exchanged. There was a dispute between the parties as to whether or not certain documents should be included, and much of the hearing was taken up with determining which documents should and should not be included within the bundle. Case Number: 1401084/2021 4

[5]At the start of this hearing and issue arose over some additional documents from each party for inclusion in the bundle.

[6]The claimant sought to insert various documents concerning Ms Newman’s selection for an appointment. I noted that EJ Salter had declined to order their inclusion on the basis that Ms Newman’s appointment was not an issue identified by the claimant. I note that the claimant relies upon Ms Newman, and her treatment by the respondent as a comparator or as evidence of a hypothetical comparator, and that this has been clarified since that hearing.

Legal Principles

[7]The respondent produced a variety of documents which it says supports their contention that the claimant was interviewed by Prof Gary Rees for the Associate Head role in 2015. The claimant says that she was not interviewed by Prof Rees, but was interviewed by a panel of five other people she has named within her witness statement.

[8]The respondent asserted that these documents were relevant because they tend to show that Prof Rees did conduct the interview of the claimant, supporting the contention that he did not discriminate against the claimant in the later selection process or otherwise, and that it goes to the claimant’s credibility.

[9]After discussion, it was agreed that both sets of documents would be inserted into the agreed hearing bundle, primarily on the basis that it was arguable that each were relevant, neither set of documents were particularly lengthy, each party was adamant that their documents were important, and it was in line with the overriding objective to include them. Both parties agreed pragmatically to this approach.

[10]The tribunal was provided with a bundle of the 711 initial pages and about 20 additional pages.

[11]Throughout the hearing, the Judge reminded both the claimant and the respondent of the need to ensure that the timetable agreed at the start of the hearing and reviewed each day was kept to. Both parties worked hard to ensure that all the evidence was dealt with in the agreed time frame, and we are grateful Case Number: 1401084/2021 5 to both Counsel for the respondent and Dr Sharma, who represented herself, in this respect.

[12]We were provided with an agreed list of issues which had been drafted by counsel for the claimant in October 2021.

[13]The issues in respect of the claimant relies upon named comparators and a hypothetical comparator in respect of her allegations of direct race discrimination and victimisation.

[14]The claimant asserts that she was discriminated against on grounds of her race contrary to section 13 of the Equality Act by the following acts or omissions 14.1. on or around 8 January 2016 the respondent required the claimant to report on various work-related items before allowing her to travel to India upon the death of her father; 14.2. on 14 January 2016 Gary Rees contacted the claimant regarding work-related matters during a period of bereavement leave; 14.3. in or around January 2016 the respondent failed generally to respect the claimant’s bereavement leave; 14.4. in or around February 2017, and during the critical illness of her infant son the respondent failed to provide the claimant with support she requested; 14.5. in or around September 201 Mr Rees declined to discuss the interview of Karen Harman with the claimant, who was chair of the interview panel and instead discussed such matters with another member of the panel; 14.6. in 2018 /2019 Mr Rees discouraged the claimant from undertaking the Senior Fellow of Higher Education Academy Qualification 14.7. the respondent failed to notify or otherwise bring to the claimant’s attention the internal advertisement for the role of Associate Head of Subject Group in Organisational Studies And Human Resource Management (the role) 14.8. the respondent did not reappoint the claimant to the role; 14.9. the respondent appointed Kerry Collier to the role 14.10. the respondent failed to give satisfactory or a regard to the claimant’s previous experience in the role; Case Number: 1401084/2021 6 14.11. the respondent failed satisfactorily or at all to provide the claimant with feedback on her unsuccessful application for the role 14.12. the claimant's role reverted to senior lecturer on I January 21 14.13. the claimant’s salary was reduced from grade 9 to grade 8 on 1 January 2021 Allegations.14 -18 in the CMO concerned the claimant’s grievance. During the course of the hearing, the claimant confirmed that she did not consider the five allegations the allegations of race discrimination but she referred to them as complaints about the respondent’s treatment of her. They are not therefore repeated here as the claimant agreed that it would not be necessary for the panel to determine whether or not there were acts of discrimination and they would be dismissed upon withdrawal by the claimant. They are set out in the body of the judgement above. The remaining allegations are: 27.19. Did any of the alleged acts amounts to less favourable treatment when compared with actual or hypothetical comparator, and if so, was that less favourable treatment on grounds of the claimant’s race and/or nationality?

[15]The claimant made the following allegations of Victimisation contrary to section 27 Equality Act 2010. The claimant relied upon her grievance and the respondent admits that the grievance amounted to a protected act within the meaning of section 27(1)

(2)

Equality Act 2010

[16]Did any of the following alleged acts of discrimination take place 16.1. Mrs Collier accused the claimant of refusing to give me a solid handover or words that effect 16.2. Mrs Collier deployed inappropriate language and tone 16.3. Mrs Collier wished the claimant all the best in her new role, or words to that effect as an implied threat 16.4. from 1 January 2021, Ms Collier amended the claimant’s workload without consulting the claimant 16.5. Ms Collier refused to allocate to the claimant hours work for the claimant had already undertaken 16.6. Mrs Collier allocated extra work to the claimant and Case Number: 1401084/2021 7 16.7. the respondent refused to provide the claimant with notes of the selection process

[17]was the claimant subjected to any of the alleged detriment, because 17.1. she had submitted the grievance and or 17.2. the respondent or one of its employees, agents, directors believed that the claimant had done, or may do a within the meaning of section 27(2) EqA 2010. Findings of fact Overview and chronology

Findings of fact

[18]The claimant is a university lecturer and in 2015/6 she applied for and was appointed to a 5-year fixed term secondment as Associate Head for Organisational Studies and Human Resources Management. The invitation for applications states amongst other things that ideally the successful candidate will have fellowship of the HEA and Willingness to work towards senior fellowship of the HEA.

[19]Her original appointment was in the autumn of 2015. The claimant applied for, was interviewed on 22 October 2015 and appointed to the role of Associate Head of Organisational Studies and Human Resource Management . She states that she was interviewed by several people, none of whom were Gary Rees.

[20]Her appointment was confirmed by letter dated 14 January 2016 , and took effect from 1 January 2016. The appointment was for a five-year term which ended on 31 December 2020. The Claimant could reapply for the post, if she wished to continue in it, but it would be an open competition.

[21]During the course of the investigation into the claimant's grievances, Professor Ait–Boudaoud spoke with Prof Paul Hayes, the Deputy Vice Chancellor. The DVC explained that using fixed terms for academic managerial posts was a long-standing university practice which provided staff development opportunities and the ability to gain management experience without having to commit to making a long-term career decision. He also explained that there was no expectation, Case Number: 1401084/2021 8 express or implied, that an incumbent employee would remain post at the point of renewal when the process was competitive.

[22]Towards the end of the Claimant’s five-year term, the post was advertised by an internal advertisement, and she applied for and was interviewed for the post. Three people were shortlisted, and the interview panel unanimously agreed that all were appointable but that one had done less well in the interview. He was discounted. The two remaining candidates were the claimant and Mrs Collier. The claimant, Dr Sharma, is an Indian woman who speaks with a marked Indian accent and cadence, Mrs Kerry Collier is a white English, or British woman.

[23]The panel considered the two women. One of the panel thought that the claimant was the top candidate, whilst the second panel member and Professor Gary Rees, the claimants line manager at the time, thought Mrs collier was better candidate. All agreed to appoint Mrs Collier to the post.

[24]The claimant was very unhappy about this outcome and says that she asked for feedback about her failure to be selected, which she did not receive. She filed a complaint under the University’s grievance procedure on the 19 November 2020, asserting that she considered that her national origins and diverse background, which we accept meant her race for the purposes of the Equality Act 2010, had been a factor in the decision not to reappoint her to the post.

[25]She alleged that she and Mr Rees had a difficult relationship and that she considered that he had treated her less favourably than the white candidate, both in the application process, but also that he had treated her less favourably than he had treated or would have treated other white employees over the last five years, on grounds of her colour and diverse background.

[26]She alleged a breach of a duty of care, by a lack of support, and discrimination and differential treatment.

[27]Prof Ait-Boudaoud, Executive Dean of the Faculty of technology, was appointed to investigate the claimant's grievance after the original investigator became Case Number: 1401084/2021 9 unavailable. He was supported by Maria Wall, HR Adviser. He carried out interviews with various people; asked for various statistical information and made enquiries in respect of documentation and policies.

[28]The process took some significant time, and the claimant became increasingly unhappy with the length of time matters were taking.

[29]The claimant became very unhappy about her treatment by her successor in post. She raised a further grievance, before the outcome of the first, asserting that she believed she was being victimised by Mrs Collier because she had made complaints of race discrimination.

[30]The respondent then determined that both the grievances would be considered. This led to a further delay.

[31]In early 2021 the claimant approached ACAS for early conciliation and a certificate was granted on 1 February 2021. The claimant filed her claim to the Employment Tribunal on 11 March 2021 and the respondent provided their ET3 and grounds of response, on 13 May 2021.

[32]Prof Ait-Boudaoud completed his investigation and submitted his report to the Respondent in March 2021. The report was sent to the Claimant on the 18 March 2021. The report had 37 appendices. We have been referred to it and have taken note of both the detail of the investigation and the findings and recommendations set out within it.

[33]By the time the report was sent to the claimant she had been signed off sick with work related stress. The claimant appealed against the decision to dismiss three points of her grievance and to only partially uphold one of them. She submitted her appeal on 3 September 2021.

[34]The claimant returned to work following a period of sickness absence on 8 March 2022. An appeal took place on 16 March 2022 and the outcome of the appeal was finalised and given on 23 March 2022. Case Number: 1401084/2021 10 Findings of fact on the Issues on or around 8 January 2016 the respondent required the claimant to report on various work-related items before allowing her to travel to India upon the death of her father – issue 29.1 above

[35]The claimant’s father died on 8 January 2016. The claimant immediately made arrangements to travel to India. At this point she was 8 months pregnant, and we accept that on the 8 January 2016, she had a number of things to do, including finding and booking flights, making arrangements for her older child and making an appointment to see her doctor to ensure that she was fit to fly.

[36]The Claimant and her husband tell us that Mr Sharma was told by the claimant's family that her father had died, but that he did not tell her because he did not want to give her that shock whilst she was away from her family and 8 months pregnant. He told her, with the agreement of the family, that her father was seriously ill. We accept that this is what happened. The claimant was therefore travelling to India in the hope that she would see her father. She had a lot to do that day, and we accept that she did not wish to do work, or deal with work, as well as organise her travels and all the other things that needed doing.

[37]Her tickets show that she was booked onto a flight from London Heathrow at 18.25 on Friday 8 January 2016. She booked a return ticket, returning on the 19 January 2016.

[38]Mr Sharma gave evidence to the ET that he rang the university and was put through to Mr Rees. He says that he told Mr Rees that the claimant's father had died and that she had to travel to India, but that he had not told the claimant, who thought her father was seriously ill. He told us that Mr Rees asked about work, and so he handed the phone to the claimant. The claimant says that there was then a conversation in which Mr Rees asked her about some issues and asked her to complete various tasks. Case Number: 1401084/2021 11

[39]The claimant and her husband have produced their phone records for that day, and it shows a phone call being made to the university phone number at 9.01am. The claimant and Mr Sharma assert that the call was made to Mr Rees's pa, who put the call through to him. Mr Rees does not recollect this call and is now adamant that he did not receive a call at that time in the morning.

[40]The Claimant asserts that during that phone call she was asked to do some work before leaving and that this is the only reason she sent the emails she has referred us to.

[41]She says she was very upset and had many things to do as result of the sudden need to travel to India and that she would not have done any work if not asked to do it by Mr Rees.

[42]Mr Rees was first asked about this in his interview with Professor Ait–Boudaoud in January 2021. At that point he was not able to remember, understandably, what he may or may not have said.

[43]In his conclusions of the report, Professor Ait–Boudaoud states that Professor Rees had “no recollection of the incident and feels compromised and disadvantaged due to the passage of time. He says he had tens of thousands of emails and suspected many of them would have been deleted.”

[44]Before us he denies that he asked or required the claimant to do any work prior to leaving.

[45]He says he did receive a phone call from the claimant’s husband that morning, and that it was the one recorded on the phone log as being to his direct number at 10.51 am. He says that he was told by the Claimant's husband that the claimant was on her way to the airport because her father was very ill and that he did not ask her to do any work. He accepts that he spoke to Mr Sharma. He denies that he was told that the claimant's father had in fact died. Case Number: 1401084/2021 12

[46]We therefore considered the emails and correspondence around them. On the 7 January the claimant had written to Gary Pompa about some resourcing changes, and he had replied with confirmation that the changes she set out had been made.

[47]On 8 January at 10.43 am, after the claimant says the first call took place, but before the one Mr Rees says took place, the claimant forwarded an e mail saying just reporting on all actions yesterday…portal problems for all new changes have been made including Ash’s Monday seminar.

[48]Her next email is to Gary Pompa and is copied to Gary Rees at 10.50 on 8 January 2016. She included three pieces of information with no preamble. She makes no reference to her situation or her flight or her leave.

[49]She states: Could you please make the urgent minor change on U23580) – Managing Human Resources specialism . Lecture should be from 9-11 every Monday staffed by Emma ( first 6 weeks) and cherry ( last 6 weeks) – AS THIS IS A LECTURE PLEASE CKHECK THE ROOM SUITABILITY Seminars should be from 11-1.30 (group E) in RB 2.02 24-25, Mondays and 13-15.00 (group f0 in RB 201 24-35, Mondays, these both will be staffed by Patrick Jones for all 12 weeks. Many thanks Again Regards KS

[50]The claimant says that she was very upset by the requirement to complete this work, as she had many things to do but that she did try to complete the work . She says that the only reason why she completed work and sent work emails on the 8 January 2016 when she had to deal with her own distress at the news that her father was seriously ill and when she had to deal with the various complications that arose from having to travel to India whilst 8 months pregnant was because she had been asked to do it by Professor Rees . Case Number: 1401084/2021 13

[51]The claimant told us that she did contact Professor Rees again at 10.51 . This was after she had completed with various pieces of work . The evidence from all three witnesses was that their own version of the sequence of events was correct.

[52]We find that all the emails written by the claimant that morning could be read as replies to a query or conversation. They do not appear to have context or explanation and they are short and hurried. The claimant gives no explanation and does not say that she is going to be away unexpectedly. This fits, and the emails read, we find, with her having already spoken to Mr Rees and explained the situation to him, or her husband having spoken to him and explained. on 14 January 2016 Gary Rees contacted the claimant regarding work-related matters during a period of bereavement leave; in or around January 2016 the respondent failed generally to respect the claimant’s bereavement leave;

[53]Mrs Sharma was referred to an e-mail exchange between her and Professor Rees whilst she was in India . Professor Rees had asked the claimant some questions about her work , having apologised for what must be very bad timing . the claimant replied stating that her father had died and also stating the date on which she would return. she said that the reason she wrote the words was because she was upset at being asked to do further work and that she wanted to confirm the date that she was returning to work and that she wanted to tell Mr Rees that her father had in fact died.

[54]At this point, Professor Rees knew that the claimant was absent because she was on compassionate leave. We find nothing unusual in the fact that Professor Rees responded by offering condolences, rather than stating that he already knew that her father had died , if he already knew. This does not assist us in determining which version is correct.

[55]We all observe that the correspondence from Professor Rees with the claimant at this time regardless of whether he was aware only that her father was seriously ill Case Number: 1401084/2021 14 or whether he was aware that her father had died is surprising . We would expect most line managers in such circumstances to seek to reassure staff that they need not carry out any additional work in the circumstances, or perhaps to help with any outstanding work or to ask if there was any outstanding work which could be done by somebody else in their absence. We also find it surprising that Professor Rees did not say suggest that she could simply leave the matters until her return. We find on the evidence we have heard that there was nothing that was urgent and we accept the claimants evidence in this respect.

[56]We compare this exchange with an email exchange between Professor Rees and a member of staff CB in November 2018. CB requested bereavement leave because her uncle had died, and she needed to attend at the funeral for two days. His response is , Sorry to hear of your loss, of course you must go, we will make arrangements for teaching.

[57]We find that although the situations were not identical, this is relevant evidence of how Professor Rees may treat a hypothetical white person in the same situation as the claimant.

[58]Professor Rees did not have any cause to think about this exchange of emails or the events of 8 January 2016 again until the claimant complained and specifically raised these matters. The claimant in contrast travelled to India, was informed her father had died spent time with her family and attended at the funeral. She then returned to the UK , took up her new post and then within a short time, started her maternity leave. For her, a number of things happened which we all agree were likely to leave her with strong memories.

[59]Her version of the events and her memories of them as she described them to us were convincing, understandable and appear to be supported by the documentary evidence we have before us as well as by her Husband's evidence.

[60]In contrast, Professor Rees has many staff to manage, had no reason to think of this again until the claimant complained, and, when initially asked about it in the Case Number: 1401084/2021 15 course of the investigation, stated that he had not remembered the incidence and needed to refresh his memory. This is not a criticism of him. These were events that took place several years before, and we are unsurprised that he did not initially remember. We are also unsurprised that he cannot remember a particular phone call, and may not recollect what he said about work.

[61]We prefer the evidence of the claimant and her husband on this point.

[62]This is important in our subsequent findings, because we do find that Professor Rees’s memory had developed over time. We find that his recollection in this respect is unreliable. We find that he was told that the claimant’s father had died, ; that he did, none the less ask her to complete work both before she left the country, and after he had contacted her in India, whilst on bereavement leave, and after being told that her father had died.

[63]This was unsupportive and unreasonable of him. We consider below in our conclusions whether this was also on grounds of race. in or around February 2017, and during the critical illness of her infant son the respondent failed to provide the claimant with support she requested;

[64]The next issue arose chronologically the next year, following the claimants return to work from maternity leave, and concerns the claimant's baby son, who was unwell.

[65]We all agree that the illness of the claimant's baby son have been very traumatic and upsetting for the claimant.

[66]We find that the claimant did try to explain to Prof Rees that she needed some further support in her role, and did ask for support , such as had been offered to a previous head. Case Number: 1401084/2021 16

[67]We find that Professor Rees did not provide any specific additional support to assist her, but did on occasions ensure that support was provided to other colleagues who were white.

compensation.

[68]We accept the claimant’s evidence that another colleague YR was offered support.

[69]We do not however know the circumstances in which support was offered ot others, and do not know what was asked for and why.

[70]We do find that Professor Rees did not fully appreciate at the time the potential severity of the baby's condition, or the stress that it was causing the claimant, and find that he did not realise that the claimant was asking for and needing support.

[71]We have asked why he did not know, and why he did not realise that the Claimant was desperate at this point in time for some support and additional help in carrying out her role.

[72]We find from the evidence we have heard that Professor Rees did not make extra efforts to engage with the claimant. From the evidence about his engagement with other members of staff, we find that he was interested and engaged and willing to help and assist staff, and to discuss personal matters with colleagues and that they had confidence to speak with him about a range of matters. His did have the same type of relationship with the claimant. He seems to have been unwilling or unable to give her the same level of attention or support that he gave others. We have detected a reluctance to recognise the real challenges she faced, and find he lacked a willingness to engage with her with the same positive and enthusiastic approach we find he had for other staff. We rely here on his attitude to Cherry Hood, to Mr David Hall over the interview of KH and to Mrs Collier herself, as evidenced from his emails and his actions.

[73]We find that Professor Rees was understanding and sympathetic to other staff. We find that the claimant was treated differently to others, and that there were differences between her race and colour and native origins and others. Case Number: 1401084/2021 17 In or around September 201 Mr Rees declined to discuss the interview of KH with the claimant, who was chair of the interview panel, and instead discussed such matters with another member of the panel;

[74]The claimant alleges that she was treated less favourably by Professor Rees in respect of an interview an interview which she conducted as chair of the panel, sitting with a panel member David Hall and another person. The interview was in respect of a teaching position and two individuals were interviewed.

[75]During the course of the interview, one of the candidates expressed the view that she had already been told that she would be appointed. The interview panel were concerned about this and following the interview Mr Hall sent an e-mail which was subsequently forwarded to Professor Rees, stating that the panel were concerned and wanted to meet with him before any decision was made to appoint any individual.

[76]Professor Rees confirms that he did then meet with Mr Hall. He states that he understood that Mr Hall was concerned and therefore wanted to discuss the matter with him . We find it is perfectly clear from the e-mail that it was the panel as a whole that were concerned, and Mr Hall was just the person writing the e-mail. Professor Rees knew the claimant was the Chair of the panel.

[77]The respondent has asserted that these interviews were part of a redundancy process and therefore provided that as the individual met the requirements, they would be appointed to the post. The claimant told us that she was not aware that the individuals were being interviewed as part of a redundancy redeployment process. It is not explained to us why she was not told this.

[78]Doctor Sharma tells us, and we accept that subsequently she tried to speak to Professor Rees about the matter and that his response to her was that he had already spoken to Mr Hall about it and did not see the need to discuss it any further with her . We reject his evidence that Dr Sharma did not raise this with him. We find she did and we accept that the conversation took place as she has said. Professor Rees told Professor Ait–Boudaoud that he had information that he Case Number: 1401084/2021 18 did not think was relevant for the claimant to know. At this point he had decided that the individual would be appointed.

[79]We find that the only information was the fact that the person was facing redundancy and therefore she would be appointed provided that she satisfied the criteria.

[80]If this was true, we can see no reason why this information was not given to the claimant but was explained to Mr Hall. We find this bizarre.

[81]Professor Rees states in his evidence that the treatment of the claimant and the treatment of KH arose in different circumstances, because KH was facing redundancy and Dr Sharma was a reapplying for a job she had been doing for 5 years. We agree that the circumstances of their appointments were different. However, the Claimant is right to say that Professor Rees was clearly able to speak to a person he wanted to be appointed, in advance of an interview.

[82]We find that Professor Rees was quite prepared to step in and make his own determination about an appointment, rather than accept the view of the interview panel, without explaining matters to Dr Sharma.

[83]She is an Asian woman and was the chair of the panel, and Mr Hall is a white man, and member of that panel.

[84]Professor Rees treated the Claimant and Mr Hall differently, in circumstances where we would all have expected him to talk to her regardless of who else he had spoken to. His gave different explanations for his behaviour, but we all agree that his refusal to discuss the behaviour of the candidate or her appointment with her, was extraordinary, unnecessarily rude and dismissive and without an explanation could lead us to conclude that the claimants race was a factor. It requires an explanation. Professor Rees has explained why he did not speak to the claimant, but not why he thought his reason was an appropriate one. We do not believe that the reason he has given is the true reason. Case Number: 1401084/2021 19

[85]We find that this example is evidence that demonstrates that Professor Rees was prepared to express views about candidates in advance, to speak tot the candidate about the process, and to treat the claimant differently to a white person in the same circumstances as her (Mr Hall) in 2018 /2019 Mr Rees discouraged the claimant from undertaking the Senior Fellow of Higher Education Academy Qualification

[86]The claimant alleges that she discussed making an application for a fellowship with Professor Rees during her 2019 PDR . Professor Rees accepts that a conversation took place . The claimant asserts that he was unsupportive of her applying and that without his support she did not feel able to apply .

[87]In his witness statement Professor Rees states that he is surprised at the allegation that he discouraged her from undertaking the qualification or that he blocked a professional qualification. He states that is not the case and that the qualification is dependant upon a self-application process. He said it was a real benefit to the Department and therefore to him personally as Head in having senior fellows on board and that he very much encouraged staff . he told us that it is a process that takes a long time and requires a lot of self motivation and drive, so whilst encouraging it, he did not put pressure on the staff to apply.

[88]The claimant wanted to apply and spoke to her head of department about it. She compares her treatment to that of Cherry Hood. Prof Rees said that Cherry Hood chose to apply for the qualification and is working towards it, and that he had been supportive of that, as he would have been of the claimant had and she wanted to do so. We have considered the documentary evidence.

[90]The Claimant referred us to a professional development request form that had been filled in as part of her PDR meeting on 24 September 2019 and also referred us to an exchange of emails between Cheryl Hood; Mr Rees the claimant and Sally Walpole of 30 September and 1 October 2019 . Case Number: 1401084/2021 20

[91]Firstly, the claimant initiated a request for professional development . We understand that a member of staff who was working towards the qualification could ask for a time commitment or allocation from their annual hours to be used for working towards the qualification.

[92]The claimant made her request and noted it on the form. The form is at p 117. The claimant stated that she wanted to work towards the SFHEA, and noted that this was a departmental goal to have all staff working towards FHEA status or beyond. The claimant was to make initial enquiries with DCQE.

[93]The claimant and Professor Rees agree that there was a discussion. The claimant asserts that he was unsupportive of her application. The claimant says that she had raised this request with Professor Rees on earlier occasions, and he had been unsupportive then as well. In her witness statement the claimant notes that the job advert for the Associate Head post in 2015 mentioned is the ideal candidate would show a willingness to work towards the qualification.

[94]The claimant also refers to the university policy on continuing professional development. The policy sets out the University’s commitment to encourage career development and to encourage underrepresented groups to take part in professional development opportunities. One of the initial development priorities is stated as being leadership and management programs for all staff with the leadership of people manager role. The guidance was also given on the role of managers and it is noted that most of the funds which support staff development activities and events will be held the local level and that in most cases, Deans and Heads such as Professor Rees will determine how resources can be prioritised.

[95]From this we infer that there was an expectation that managers would be supportive of requests made by staff for professional development but further that they would take responsibility for ensuring that professional development was carried out, and that resources and time were allocated to support staff. Case Number: 1401084/2021 21

[96]Prior to November 2019, Following the claimant’s request for support, Professor Rees wrote on Claimant PDF form; This is a very worthwhile activity to undertake but would urge focus on improving upon the timetabling and workload aspects of the role first.

[97]He then wrote at the end of the form; I would like to see your research plans and progress form as well and discuss this with you. As a concluding comment I would like to thank you for all your efforts over the year. It is a great pity that much of this good work is undone by not communicating in appropriate ways with colleagues and ensuring workload and timetabling was managed more effectively. We discussed bringing in another colleague to assist with certain aspects of the role. I would like to discuss again in November/December 2019 please.

[98]We find that the comments written at this point were in part reflective of the fact that the claimant had asked for some extra support to carry out the role, as she had herself supported the previous post holder. We remind ourselves that Professor Rees had noted that the role had changed and expanded. Her request for support prior to November 2019 was made, we find on that basis, and Professor Rees knew this.

[99]We also remind ourselves that Professor Rees, in his witness statement, states, when explaining why she was not reappointed, this was not because of her race or because I or any one else disputed her experience in the role or felt she had not performed well as Associate head to date. …….it was simply the case that not withstanding Kajals previous experience in post two of the three panel members( myself included) felt that KC had given more compelling and detailed responses to the questions and scenarios posed.

[100]Professor Rees did not do anything further in respect of either identifying any shortcomings the claimant may have, and in the light of his sworn evidence we conclude that this was because there were not any real concerns about her performance.

[101]The claimant argues that without his support at an early stage there was little point in her progressing. Case Number: 1401084/2021 22

[102]Professor Rees told us that the process required the applicant themselves to be self-motivated in order to make the application and to do the work necessary and that no formal support was required from the head of department in order to make the application . He recognised that it was necessary for him as head of department to sign off on the actual application itself once it was made.

[103]He said that had the claimant wanted to pursue the activity, it was a matter for her to initiate and then come back to him once she had filled in the various forms. He told us that once he had the forms his usual process would be to review them and probably meet with the claimant again to discuss the application before agreeing to it. He said that he would need to see the form to ensure that the details and contents of it were correct before signing off on.

[104]Professor Rees accepts that he did suggest that the Claimant focus on other matters but says that it was a matter for the Claimant to determine whether she wanted to pursue the application or not . He said his reasons for his comments and thinking at the time was that there were numerous other pressures on both the Claimant and the department in terms of increased teaching pressures on college spending.

[105]We agree with the claimant that this was not what he said to her at the time, and that his response was neither positive or encouraging to her request for support with an application to start working towards a professional qualification, which would require a time commitment.

[106]On 30 September 2019, CH who we understand is a white woman, also asked for support from Professor Rees to pursue the same qualification. We have heard no evidence from her but have seen some of the correspondence because the Claimant was copied into some of it, and asked to take some action.

[107]CH explains in her emails that she had spoken to the APEX co-ordinator who thought she may have the experience to apply. She planned to draft an application and attached a form to the email that Professor Rees needed to sign Case Number: 1401084/2021 23 to allocate her a mentor. She also says…Sorry to raise the sordid subject of money but you mentioned there is a workload allowance for this….

[108]We find that this indicates that CH had not at this point made the application. Like the Claimant she was seeking support. She needed to be allocated a mentor, and allocated hours to free her up from other work commitments. This support could have been given to the claimant we find and was something that Professor Rees would have known.

[109]Professor Rees replied the following day, on 1 October 2019. We find that the application form had not at that stage been drafted, and therefore Prof Rees could not have reviewed it. He did not meet with CH, but simply responded copying in his PA Sally Walpole and the claimant stating sure Sally, please add my signature; Kajal, please add the 54 hours workload allowance.

[110]This email was sent within days of the claimant had asked for his support for the same senior fellowship program.

[111]This colleague was a white woman who had filled in an application form and asked professor Rees to support her . We find that he did so without seeing the form and simply instructed his PA to sign off on it , contrary to his own evidence about the correct process, and the process that he thought he would follow, before approving the time commitment of support. He said that he would need to see the form to ensure that the details and contents of it were correct before signing off on.

[112]We have no evidence that Prof Rees had previously had any conversations with CH, and his unquestioning support for her , before she had even filled out the application form is fundamentally different from the process which he said he would follow.

[113]His treatment of CH is different to his treatment of the Claimant. He told us there was a complicated background. When asked to explain the apparent difference in treatment between the two women he did not explain further to us what that was and we have no other evidence about the comparator's situation Case Number: 1401084/2021 24 before us. We find that this is disingenuous. The claimant was seeking support and encouragement from her line manager, without which she would find it very difficult to pursue a CPD objectives so was CH.

[114]Both women wanted to apply to study for the same qualification. Both were qualified. Both needed support from Professor Rees for the Mentor to be allocated and for a work allowance. Neither had made the application.

[115]We have no evidence of any thing that make the circumstances of the two women different, other than their respective job roles. We find that this is not a material difference.

[116]Professor Rees did not provide the same support or encouragement to the claimant that he gave days later to a white woman in exactly the same situation without even seeing her form. We also find that Professor Rees did nothing to discuss support on this issue or to discuss it at all with the claimant again in 2019.

[117]The only difference on the face of it between the two parties is that the claimant was an Asian woman, and the other applicant was a white woman.

[118]We find it was not unreasonable for the claimant to consider that she needed his support, since she would require time off from other work. the respondent failed to notify or otherwise bring to the claimant’s attention the internal advertisement for the role of Associate Head of Subject Group in Organisational Studies and Human Resource Management (the role)

outcome.

[119]The respondent did not bring the internal advertisement to the claimant’s attention when it was first advertised. The Claimant was treated in the same way as every other person, but we all agree that she was in a different position to others, because she was in post and because she wanted to reapply for the job she was doing. Case Number: 1401084/2021 25

[120]We also accept the claimant’s evidence that in other internal selection exercises, the relevant vacancy has been notified to all staff by email, as a general practice. We accept that the only email sent out all staff was on 19 October 2020, telling staff that the closing date for applications had been extended from 21 October until the 23 October 2020.

[121]We accept the claimant’s evidence that when she applied for the post, in 2015, following the decision of Ray French to retire, the post was advertised and all OSHRM staff were informed the same day through an email.

[122]During her interview with Professor Ait-Boudaoud on the 11 January 2021 , the claimant was asked whether her head of department had asked her in advance if she intended to reapply for the Associate Head post and whether there had been any indication that her application would be welcomed. The claimant confirmed that Professor Rees had asked her about her intentions during her PDR and she had queried whether he wanted her to apply for the post. She said that Professor Rees had not given a positive response saying instead that he was unable to suggest a course of action. The Claimant saw this as a lack of support from Professor Rees and we agree that it was.

[123]We find that this was a fair reflection of the discussion and that Professor Rees knew, as a result, that the claimant was planning to reapply for the post.

[124]We find this exchange surprising. We would expect that the HOD would give some encouragement or give some feedback to the incumbent, in the PDR, about areas that might need to be addressed or improved upon, if she wanted to be reappointed. Instead, the only comments made in any PDR appear to be in respect of the claimant having requested support in respect of other matters. We have already noted that no one suggests the claimant was not performing the role well.

[125]From all the evidence we have seen, we have no doubt that, had he been actively supportive of the claimant's reappointment, he would have given her some encouragement at this point. Case Number: 1401084/2021 26

[126]We find that the reluctance of Professor Rees to say anything at all was because he was not being supportive of the claimant making an application or being reappointed.

[127]Professor Rees was the person with overall responsibility for the appointment process in 2019. He would have known when the post was being advertised and how. He would have known whether any applications had been received, and who from and he would have known that no applications had been received from anyone by 19 October 2020.

[128]We find that by the 19 October he knew that the claimant had not put in an application form. We find that he must have been the person who decided to extend the time for applications.

[129]He did not speak to her at this point to make sure she knew about the advert. We have asked why he did not flag up the advert to her at this point. He said that he did not want to be unfair to anyone else who might apply.

[130]We find that there had been different practices in different departments over whether or not individuals should be told that the role had been advertised, and also whether or not the advert should say that there was an incumbent in the post.

[131]We accept that the respondent and Professor Rees himself, did not want to put off prospective applicants by saying in the initial advert that there was someone in the role, as we find that this had happened in other cases, but we do not understand there to have been anything preventing Professor Rees from flagging up the advert to the person in post, or indeed to everyone in the department, particularly when no applications were received.

[132]Professor Rees failed to flag up the advertisement of the vacancy of the job the claimant was doing, and which she wanted to continue to do, on two occasions. The claimant only became aware of it, at the same time as others. Case Number: 1401084/2021 27

[133]We find that this was extraordinary, and not wholly explained by any concerns about fairness in process as a whole. We find that the scruples Professor Rees had about the advertisement did not apply for example to the process of interviewing , note taking or the giving of feedback, as we set out below.

[134]We fail to see how reminding staff of an advert for the job they are doing already and want to be reappointed to, is unfair. We infer that he did not want to give her any encouragement. We infer that consciously or subconsciously he was hoping that she would not apply. We conclude that the reluctance to speak to the claimant as a matter of common courtesy, was in part at least, because it was the claimant, and Professor Rees was not prepared to make any effort at all to encourage or assist her in applying for the post.

[135]We have considered below how far the claimant’s race was a factor in her treatment, and whether or on the would have treated a hypothetical other person differently. The claimants interview panel in 2015.

[136]The claimant has raised an issue about who interviewed her when she was initially appointed to the role in October 2015 . This first came up during the course of her grievance interview on the 11 January 2021. The Claimant raised the issue by way of comparison.

[137]The discussion was about the process followed in October 2020 and she had stated that when interviewed for her five-year tenure, the HoD (Professor Rees) had not been present whereas this time he had been the panel chair. She noted that the previous panel had been larger but could not recall if it was more diverse.

[138]The claimant said in her interview that when she was appointed in 2016 the Head of Department role had transitioned from Charlotte Rayner to Gary Rees and therefore neither had been involved in that interview process. She was not, at that point, able to say who had chaired the panel. Case Number: 1401084/2021 28

[139]Subsequently Mr Rees asserted that he had been the chair of the panel when the claimant had been appointed. No paperwork was produced for Professor Ait–Boudaoud.

[140]Some documents were produced shortly before the start of this hearing by the respondents as set out above. They did not appear to have been included as part of the disclosure. By agreement they were admitted at this late stage

[141]Professor Rees and the respondent assert that the documents support his sworn evidence, that he had been the chair of the initial appointment panel.

[142]We do not agree with the respondents. Whilst the evidence produced does identify Professor Rees and whilst the claimant is also identified, we prefer the claimant's explanation of these documents as being in respect of a different recruitment process. We find that there are a number of significant differences between the role of associate head of department which the claimant applied for and successfully was appointed to and the paperwork provided to us.

[143]In addition, we have found the claimant to be consistent on this point from the first time it was raised with her. We are satisfied that had Professor Gary Rees interviewed her for this position that she would have remembered and that she would have told Professor Ait–Boudaoud she had no reason not to do so.

[144]We find it is more likely that Professor Rees who undoubtedly interviews a large number of individuals for positions at a senior level has made a mistake than that the claimant for whom the appointment was a significant event has made a mistake. The Development of the role and support of the claimant

[145]In considering the evidence of how others were treated and supported by Professor Rees, both parties have referred to the claimant's performance. Case Number: 1401084/2021 29

[146]It has not been suggested by the respondent that there were any significant or serious concerns with the claimant's performance before us, which would have justified Professor Rees in not supporting the claimant's application.

[147]The claimant has positively asserted that she did well in her job, and that her performance in role should have been taken into account and that if it had been, then she ought to have been the successful candidate.

[148]It is not until the claimant asked for support to pursue the fellowship, that any comment was made about the claimant's communication skills and timekeeping.

[149]We accept the claimant's evidence that Professor Rees had never raised any concerns with her about the work she had been doing for the last 5 years until that point, and that even then, it was a vague and nonspecific criticism or observation and there was not offer of any support or steps ways for the claimant to improve.

[150]We accept her evidence, supported both by Professor Rees to Professor Ait–Boudaoud, that the role had grown and developed over the course of 5 years, and that the claimant had been required to take on and manage new and additional areas of work.

[151]Whilst we understand that a manager may have legitimate concerns about performance, there was ample opportunity for Professor Rees to engage with the claimant and have constructive discussions with her about her work. If he had criticisms, or if there were areas where she needed to improve, we would have expected them to be recorded or referred to her and would have expected him to take some steps to address them with her.

[152]The only references we have seen is in the PDF form, and the claimant suggests in her witness statements that the reason he had said, we discussed bringing in another colleague was because she had been asking for support. She stated and we accept that there was no follow up, despite Professor Rees stating that he would like to discuss this again in December 2019. Case Number: 1401084/2021 30

[153]We have seen no evidence either of the claimant falling short in her role in any respect, or of her requiring or being given unusual amounts of support over the 5 year period. Instead, we find that there was a failure to support the claimant even when she asked for support and even when Professor Rees himself noted that they had had discussion about extra support. This was in the context of an expanding role.

[154]When professor Rees was interviewed by Professor Ait-Boudaoud about support he had given to the claimant, he suggested ad that he had been protective and over supportive, but that she had continued to have issues over matters such as communication with staff. He accepted that he had not provided her with development training and expressed the view that the issue was more about her approach.

[155]The only objective evidence we have is that the claimant had performed well in a difficult role. We saw evidence which she produced from staff who had thanked her and appreciated her support over the years. We find that whilst there were staff who appreciated her approach and her style, Professor Rees did not appear to have a high opinion of her. We find that the only criticisms of her made by Professor Rees directly, arise after she has not been re- appointed, and when she has raised a grievance about the process and Race discrimination.

[156]We find that he had never given the claimant any constructive feedback or discussed with her areas where she might improve or what she might to improve any perceived short comings. We find that Professor Rees had given the claimant no support to improve within the job, and had given no particular support to her to be able to manage the growing tasks day to day, even when she had requested them. the respondent did not reappoint the claimant to the role; the respondent appointed Kerry Collier to the role the respondent failed to give satisfactory or any regard to the claimant’s previous experience in the role; Case Number: 1401084/2021 31

[157]These three allegations all refer to the interview and selection process and our findings are as follows.

[158]The process did result in the selection of Mrs Collier. From the evidence we have, we find that the Claimant, as a person who had been doing the job for 5 years, and who had been doing it without any real criticism, and in challenging circumstances, would have been expected to be in a very strong position because she had direct experience of the role.

[159]We have also been referred to the Statistical information, which was provided eventually to the claimant, via her FOI request, but which was not provided to Professor Ait–Boudaoud , who asked for it during the course of the investigation.

[160]In her request, the claimant asked for information about the number of Associate Heads; Head of Department and other senior management role holders who had reapplied for their posts in the last 15 years and how many of them were reappointed; how many BAME candidates applied and were reappointed and how many of those BAME were female.

[161]The University responded that 12 academic senior management vacancies had arisen since 2018 in which the incumbent had reapplied for the post, and that of those, 11 were reappointed. No BAME candidates had reapplied for their post within that period. We understood that all 12 posts were ones where the incumbent was a white person, and that in 91.6 % of cases, the person was reappointed.

[162]The claimant was the only BAME any candidate at that level, that we were told of who had reapplied for their post and been unsuccessful. We have no evidence before us about the reasons why the one other person had not been reappointed.

[163]On the evidence we have , and from the responses provided by the Respondent to the claimant, we conclude that the claimant was one of only two individuals who had not been reappointed to their post following reapplication . Case Number: 1401084/2021 32

[164]All things being equal, the usual outcome when a person reapplied for their post, was that they would be reappointed if they wanted to be. Therefore , statistically, the claimant could have expected to be reappointed. The difference is that she is an Asian woman and the only BAME person in the sample.

[165]We are aware that this is a small sample but we all agree that this is statistically significant. When asked under oath, Professor Ait–Boudaoud agreed that the statistics would have required an explanation, had he seen them at the time.

[166]The purpose of monitoring data is to highlight anomalies so that questions can be asked about the reason for them, and whether or not race for example, might be a factor. This was an obvious anomaly on information available to the respondents, which was requested both by Professor Ait–Boudaoud , and the claimant on several occasions and was not provided.

[167]The respondent ought to have been aware of this anomaly and we would have expected them to have looked at these sorts of statistics, as soon as the claimant raised a concern about the failure to reappoint her and suggested that her race may have been a factor.

[168]Not only do the statistics themselves require an explanation for the respondent, but the reason for failing to provide the information to the claimant at an early stage, requires an explanation.

[169]Together with the other information we have been provided with about the success rate of BAME staff following interview, ( which we set out in paragraphs below) and the proportion of BAME staff within the senior position at the university, we all agree that these are findings of fact from which we could, in the absence of an explanation conclude that the process was tainted with discrimination on grounds of race.

[170]We started by considering the advertisement. No one replied to the first advert for the role of associate head of OSHM. The claimant did not see the advert and was not prompted by anyone that it was there. Had she seen it and applied first Case Number: 1401084/2021 33 time, she would have been the only applicant and would not have had to face a competitive selection exercise.

[171]It was only when all staff were told that there was an advert and no applicants, that the three applications were received.

[172]All three candidates were shortlisted and invited for an interview. The interviews took place over video link, and Professor Rees was chair of the panel and the other panel members were Caroline Strevens, Charles Barker. Sally Walpole was the trained interviewer but attended as a note taker. She did not take any part in the interviews.

[173]The panel all agreed that all three candidates were appointable, but that the claimant and Mrs Collier, who was subsequently successful, were better candidates that the third candidate, who was removed from the final consideration.

[174]The choice was between the Claimant , who had been doing the role for 5 years (save for a year on maternity leave) or Mrs Collier who was new to the role.

[175]We accept that Mrs Collier may well have had much relevant experience and transferrable skills. She may have been the better candidate , but we have not been provided with that evidence. What we are told, is that they were both appointable.

[176]The evidence we have is that the key reason for appointing Mrs Collier, was that two of the interviewers thought Mrs Collier gave better answers to questions that the claimant.

[177]We would expect the differences between Dr Sharma and Mrs Collier to have been clearly highlighted through the records of interview, and would expect that the reason for appointing Mrs Collier, rather than reappointing Dr Sharma, would have been clear and objective and easily identifiable and capable of being explained to the claimant. This is what we looked for in the evidence. Case Number: 1401084/2021 34

[178]No one has produced a record of any scoring of either candidate on any questions asked. Mr Rees took no notes of the answers at all.

[180]We were referred to an email forwarded to the employment practice manager Maria Ainslie on 10 November 2020, enclosing the email that Prof Rees had sent

[181]Professor Rees stated as follows I know that you have a very packed diary so I thought I would send some information about the associate head interview process that occurred on 31 October….. It was advertised to the OSH group, in alliance with University procedures. We had three colleagues apply. All three were shortlisted as they met the role description or criteria. The interview panel on the 31st October consisted of three faculty executive members, as is usually the case and what happened six years ago when the job was appointed. The panel consisted of Caroline Strevens as head of law school, Charles Barker as A.D. academic and myself as head of OSHRM. We also had Sally Walpole as the trained HR interviewer and note taker.

[182]He explained that when the three interviews finished, the panel had ranked the three candidates. One candidate was ranked third by all three and eliminated.

[183]From the evidence we have heard we find that there was then a discussion, and that two panel members thought that Mrs Collier was the better candidate because her answers had been better with more examples.

[184]Professor Rees rang the successful candidate on the Friday afternoon and arranged virtual meetings to unsuccessful candidates, the following Monday. He said that when he broke the news to the claimant, she was naturally very disappointed. He explained that there had been three appointable candidates but another colleague unnamed presented better than her, and had accepted the role.

[185]He said that he then went on to talk to her about her work in the new year and asked her to think about some of her career ambitions.

[186]They agreed to speak later in the week, but the claimant cancelled the meeting Case Number: 1401084/2021 35

[187]He then stated that he felt that the way in which this process was conducted was in alignment with university process and protocol.

[188]Prof Rees provided a further statement on 11 January 2021 as part of the investigation. He says the interview was conducted electronically that the preprepared questions were agreed and all asked of all three candidates. He says he was aware that Sally Walpole would take sufficient notes and therefore concentrated on conducting the interviews.

[189]He said that in terms of notes from the meeting the differentiating factor was the way in which candidates answered questions with Kerry not just saying what she would do, but also how she would do that too. There was a strong emphasis upon building teams, gathering colleagues trust and adopting an empathetic approach to working relationships. She brought in various examples from work experience to backup comments made. Kerry presented very well; answered all the questions in a calm and detailed way. Kajal, by contrast did not go into as much detail with her answers and said what she is. I am a good…… and had scope on several occasions to back up her response with practical examples. There was a disappointing lack of depth with some of the responses .

[190]There were several discrepancies about the notes taken, the process and what happened to the notes following the interview .

[191]The notes we have seen from the two panel members do not record in detail what was said by each candidate and we find that the notes made by Mrs Walpole were not seen by the interviewers at the time.

[192]We accept that the decision as to who to appoint where there are two well qualified candidates will be difficult and may come down to fine distinctions.

[193]We have considered whether the thinking that the answers of Mrs collier were better than those of the claimant is demonstrated on the evidence. Case Number: 1401084/2021 36

[194]We find that the Claimant and Mrs Collier both did well in interview, but that the panel agreed to appoint a white woman with no experience of the job, instead of an Asian woman with 5 years experience in the job.

[195]Coupled with the statistical evidence we have been referred to, we consider that in this case, the burden of proving that the decision was not one tainted with discrimination, shifts to the respondent to provide an explanation, and that this required an objectively verifiable explanation of reasons for not appointing the claimant , or for appointing Mrs Collier.

[196]We therefore considered whether or not this was a true reason or the only reason.

[197]There is the suggestion from Professor Rees, during the investigation that the decision was influenced by knowledge of the candidates. He was the only member of the panel who knew both candidates and this can only have come from him. He does not explain what this meant, or how big a part it played.

[198]Professor Ait-Boudaoud asked Professor Rees and the panel about the notes from the interview.

[199]In response Sally and Charles give their responses to the manner in which the decision was made.

[200]The responses provided by Mr Barker and by Caroline Stevens are important. They have not given evidence but both provided further responses.

[201]Mr Barker refers several times to the comparison of his scoring with the scoring of others.

[202]Professor Rees has told us that he did not take any notes. Either he is lying or any scoring he had done, or his assessment post interview was from memory. Mr Barker suggests that they all discussed their scoring by comparison with the job description and person specification. He has not been called by the Respondent to explain what he meant by this, and we take it at face value. Case Number: 1401084/2021 37

[203]If there were scores or scoring sheets, we have not seen them, and they have not been disclosed.

[204]All we have seen are the typed notes taken by Sally Walpole. These notes were not shown to the interviewers at the time, as it was all on video, and there is no evidence before us that anyone looked at them to ensure that they were correct or fair before they were put onto the system.

[205]We have seen some handwritten written notes provided by both Caroline Strevens and Charles Barker. They are very short from CS and longer from CB, but they include no scoring.

[206]On 7 April 2022 the claimants then solicitor, Mitesh Patel wrote to the R noting that there were documents now provided which had not been provided as part of the disclosure or previously. These were the handwritten notes from CS and CB and some additional statistics. No one has been able to explain why these documents were not provided at any stage prior to then. Since they existed, they should have been provided at the outset of the investigation. They should have been on the file. What we have been provided with are photocopies of notebooks. These are not documents which were uploaded to the electronic record of the process.

[207]We find that the panel members did “score” the applicants, but not in any formal way. If there was any written record of each panel members scores, none have been kept or recorded on the file.

[208]We find that the process of interview and the record keeping after the process is unsatisfactory. This was not a process where there was scrupulous record keeping or a focus on an objective decision-making process. It does not appear that there was any agreement in advance as to what a good answer would be, or how to assess the answers given.

[209]Instead we find that there was a general discussion. We have taken into account the dicta from a number of cases in which the courts have looked at Case Number: 1401084/2021 38 recruitment and selection processes, particularly internal procedures. We remind ourselves that a person does not have to intend to discriminate, and that the discrimination may instead manifest through a subconscious bias. This may be that one person does not fit in as well as another, or the perception that one person is better in answers or communications than another. Without objective evidence , it is difficult to pin down what it is that leads to one person being considered better than another.

[210]Here, the two people who did not know the claimant had different views.

[211]We all agree that the reason the claimant was not reappointed was that Professor Rees did not think she was the best candidate and the panel agreed with him after the discussion. We all think that on balance, as head of department and knowing both candidates he would have influenced the outcome and did so.

[212]We have found that he was not particularly supportive of her application, or other career development.

[213]We have found he treated her differently to how he treated other members of staff who were white in a variety of circumstances . We all agree that the reason given by Professor Rees for not appointing her, unsupported by any objective data or examples, is subjective.

[214]The University is a large and well-resourced organisation. It employs competent and appropriate human resources professional and has detailed and clear policies both on recruitment and on monitoring of recruitment. We are told that those involved in interviewing are training in subconscious bias and fair processes.

[215]The respondent’s explanation that Mrs Collier performed better at interview could easily be demonstrated by paper work properly filled in, or by feedback sensibly given at the time and identifying what it was that she did better than the claimant. Case Number: 1401084/2021 39

[216]The paperwork does not demonstrate the reasons for the appointment; the record keeping is fundamentally flawed; no feedback was given despite being asked for.

[217]The facts we have found do not support the explanation given by the respondents for the appointment of Mrs Collier, unless we accept the evidence of Professor Rees as wholly truthful.

[218]We have been critical of the evidence given by Professor Rees in a number of respects. We have also identified different treatment of the claimant and other white colleagues. One example is that Professor Rees was not supportive of the claimant applying for the fellowship. We have also concluded that Professor Rees was not supportive of the claimant reapplying for the role.

[219]The key question for us is whether or not that, and the failure to appoint the claimant was anything to do with race, either consciously or subconsciously. In the absence of a full explanation, and taking into account all the facts we have found, including those which follow, we conclude that the claimants race was a factor that consciously or subconsciously influenced the decision of Professor Rees throughout this appointment process, not to reappoint her, and to appoint another person. the respondent failed satisfactorily or at all to provide the claimant with feedback on her unsuccessful application for the role

[220]The claimant says that she asked for feedback to explain why she had not been appointed. She complains that she was not given feedback at all by Professor Rees or otherwise.

[221]Prof Rees was interviewed by Prof Ait-Boudaoud on the 13 January 2021. The scope of the claimant’s grievance was outlined, including discrimination due to skin colour and discrimination due to the diverse prep round and Prof Rees was informed that the claimant had requested, but has so far not received any formal written feedback on the performance during the interview at that point. Prof Rees informed Professor Ait-Boudaoud that he was unaware of the Claimant having Case Number: 1401084/2021 40 requested written feedback. He explained the panel decision has been agreed on Friday, he contacted Dr Sharma on Monday to inform her that she been unsuccessful and provide verbal feedback. he stated during that online meeting became apparent that Dr Sharma was not necessarily taken on board what he was saying. He had suggested they reconvene on the Wednesday. Dr Sharma subsequently cancelled the meeting and he had been notified that she had raised a formal complaint.

[222]Professor Ait-Boudaoud told Professor Rees that the claimant had written to Sally Walpole, the trained interviewer of the panel, requesting written feedback. GR stated he would have happily provided this had been aware of the request.

[223]We were referred to an email exchange , in which Sally Walpole had written to the Claimant on the 2 November 2020 at 13.42. She said, Just to let you know that I am liaising with HR to find out about what your pay will be when it reverts back to SL. I have emailed Gary to ask if he can give you feedback and he said he will notify the group of who the new associate head will be in due course.

[224]We heard no evidence from Ms Walpole and it has not been suggested before us that this email was not sent. Professor Rees has no explanation, other than to say that he said he was not aware of a request and did not know he had been asked for feedback.

[225]We do not accept his evidence. We find that the claimant made the request for feedback, and that it was passed to Professor Rees. It was important to the claimant to understand why she had not been reappointed to a job which she was doing and as she stated in her initial letter to Professor Graham Galbraith, the Vice chancellor, I had never got the indication that there are lack of skill or ability or that I needed any improvement to do my job role.

[226]We find that when Professor Rees was sent an email by Sally Walpole passing on the request from the claimant for feedback he either deliberately ignored it or failed to prioritise it, but in any event, he knew of it and failed to deal with it. We have no evidence that he ever tried to rectify the matter subsequently, or to find the email and apologise to the claimant for failing to give feedback. Instead, he Case Number: 1401084/2021 41 simply maintained that the claimant had not asked for it. He ought to have been able to search for the email, and if he had done so, we think it highly probable that he would have found one.

[227]The Claimant wrote to Professor Galbraith I will not take the decision of not been reappointed as associate head on its face value without any rational reasoning behind this . I would like you to conduct a complete audit and investigation of the whole process merits and demerits of all the candidates and the persons who conduct this process. In the absence of proper reasons, I would like to take this complaint further and there should be no surprise responsible people and the organisation faces humiliation for loss of face and finances due to my first.

[228]At this point the claimant was asking for an explanation as to why she had not been reappointed.

[229]On the same day, Prof Galbraith replied to the claimant saying that he was sending the response to the director of HR. He said she would instigate the appropriate steps to investigate the matters raised. He said, as you have sent this to me as a formal complaint, it is important that before the proper process will act like this, and she will contact you to outline the steps taken. He also stated that the University will not tolerate racism of any sort in its decision-making, whether in relation to appointments to university or promotion in the first, the email was forwarded at some point Maria Ainslie wrote back to Alison Thorn Henderson saying to confirm a conversation last week, the panel chair was Gary Rees and the other panel members were Caroline Strevens Charles Barker and Sally Walpole was the trained…. . There is then part of the page cut off.

[230]The next line states requested the notes from the HRSC that have been uploaded onto the system and they are below . I do not know what feedback was given to Kajal but hopefully Jeremy will est… The page then cuts off again

[231]We were also provided with a printout of what appears to be information entered onto a template about the interview and the claimant. We find that this was about the unsuccessful candidates. There is a vacancy title; vacancy number Case Number: 1401084/2021 42 subject group, the names of the panel members. the trained interviewer who is named as Sally Walpole; the interview date; applicant’s name and then a section of headings going left to right across the page. The first is specific knowledge and experience, second skills and abilities and so on. The document appears to be incomplete.

[232]Under specific knowledge and expertise it says ranked second. interviewed well with confidence. ranked her slightly lower …skills and abilities would have liked some of the questions answered differently consid… The sentences cut off at that point. No One has been able to explain who filled this in, what they used or why the full details or the complete documents were not provided to the claimant or the tribunal.

[233]The Claimant was entitled to receive complete documents as part of disclosure, and these were of direct relevance to her claim. This is not the only example of the Respondent failing to provide the Claimant and the Tribunal with relevant documentation.

[234]We find that the failure to provide the documents the appropriate times is indicative of a reluctance on the part of the respondents from the point of her initial complaint to provide her with any of the information she needed to challenge the decision made. We have asked whether or not this was due to incompetence but find that it was not.

[235]On 5 November 2020 the claimant was contacted by Maria Ainslie and told the investigation had been set up and that she would be notified when an investigating manager been identified.

[236]On 6 November Jeremy Howells wrote to Prof Rees. He said he was looking forward to the meeting to discuss OS SHRM and then said I am afraid, however, part of our discussion will have to be around a complaint KS regarding the recent interview process is associate head. We will have to formally look into it but at this stage a short discussion about the interview process. We assume that it is in response to this, that Prof Rees wrote the emails we have referred to earlier in this judgment. Case Number: 1401084/2021 43

[237]Following an email exchange, asking for the notes from the interviews and the feedback that had been uploaded Maria Ainslie was sent an interview assessment in the form of an Excel spreadsheet. That spread sheet has not been provided to the Employment Tribunal, but it may be that that was part of the document to which we have referred above. We would have expected the respondent to be able to clarify this, but they have not done so.

[238]Since the claimant was complaining about a lack of feedback, it is extraordinary that no one chased Professor Rees to give the feedback at that point. It appears that the expectation was the Jeremy Howells would pursue this. We find he did not.

[239]If there was a valid reason for not appointing the person who had been doing the job without any obvious issues for 5 years, and instead appointing someone who had no experience of the job, that was the time to explain this to the claimant.

[240]In fact, no feedback was given to the claimant at all. Instead the respondent conducted a lengthy and drawn out investigation. the claimant's role reverted to senior lecturer on I January 21 and the claimant’s salary was reduced from grade 9 to grade 8 on 1 January 2021

[241]As a matter of fact, this reduction in grade and pay was the consequence of the claimant reverting to her previous role. The claimant does not suggest that there was anything inherently discriminatory about this, but we accept that this is a matter for remedy. Statistics and FOI request and University Policy

[242]On 15 December 2020, the claimant made a request under the Freedom of Information Act 2000, to the office of the director of corporate governance of the respondent. Case Number: 1401084/2021 44

[243]The claimant asked a number of questions specifically about the a.m. in staff selection and retention and also asked for a number of documents to be provided to her.

[244]On 15 January 2021 the respondent provided amongst other details, the following information: 244.1. Of the employed full-time academic and research staff, of whom 17.4% or 177 staff were known to be black or minority ethnic origin. 244.2. 82.6% or 838 members of the full-time academic and research staff were described as white. At the principal lecturer level 6.8% of staff were black or minority ethnic, at reader level 14% were black or minority ethnic at Professor level 22.6% were black and minority ethnic and at senior academic level 4.4% were black or minority ethnic. 244.3. We understood these figures to mean that Portsmouth University fell below the national benchmark in that they employed fewer black or minority ethnic academic staff than the national benchmark, at these levels.

[245]The claimant asked what is the difference in the proportion of interviews leading to a hiring of white and BAME candidates academic research and management roles in the University. The response was that 46% of white interviewees received a job offer and 37.2% of BAME applicants received a job offer. There was a 9% difference between white and BAME applicants. The notes of the Interview process

[246]As part of her freedom of information request, the claimant asked for copies of all notes made by these those who were involved in the selection process she was complaining about. The response from university, was that it was not possible for the University to provide copies of all notes made by the recruitment panel as they are only retained for one year after positions had been filled. This could have been a standard response, but it was clearly wrong. The claimant was asking for notes in respect of the post she had applied for in 2019. Those notes were available and have subsequently been provided. No one from the Case Number: 1401084/2021 45 respondents has given evidence to explain why the claimant’s request was not dealt with properly at that time. The respondent’s policies and procedures

[247]The respondent has a recruitment and selection policy dated September 2016. It sets out the procedure that human resources and recruiting managers are required to follow in the event of recruitment of staff.

[248]It states in its foreword that no job applicant or employee will receive less favourable treatment because of their race, sex, religion or belief or other protected characteristic. The policy sets out requirements for record-keeping and management, and it states that the responsibility of the recruitment manager is to ensure that records are kept and this includes notes of meetings, emails, telephone calls and copies of correspondence. These should include the names of those involved dates action taken and follow-up. It states that the record management system aims to ensure that records are accurate and reliable can be retrieved quickly and easily and are kept the no longer than necessary.

[249]Section 2.7 is headed Recruitment Monitoring and notes that equality monitoring is used to improve the recruitment process and ensure the University meets the requirements of the Equality Act 2010. It goes on to assert that monitoring helps the University understand if it’s recruitment and selection procedures are fair and accessible to all. accurate

[250]In the selection procedure we are concerned with, Professor Rees was the recruitment manager and under the policy he had responsibility for overall management of the selection process and including providing HR with appropriate information following interview, including a summary for all candidate interviews, and details of the successful candidates.

[251]He also had responsibility for ensuring that all staff involved in the recruitment process should have had appropriate training and have the core equality and diversity and unconscious bias online learning. Case Number: 1401084/2021 46

[252]We also considered the respondents equality and diversity policy statement, dated February 2017.

[253]The University has equality objectives and we were provided with the ones for 2018-2020. The objectives include equality and diversity monitoring both of recruitment and selection and of staff numbers.

[254]Staff equality objective eight is tackling potential bias in the recruitment process and equality objective nine is challenging race inequalities across the University. In respect of monitoring of staff it is stated that monitoring data would ensure that the University could enable recruitment interventions to reach the widest pool of applicants and monitor for bias or discrimination in our staff policies and procedures. It states that recruitment data will be monitored to ensure our recruitment process is inclusive and equitable success is to be measured by raised declaration rates for ethnicity and to eliminate any statistically significant issues in recruitment cycle.

[255]We note that one of the reasons for tackling bias in the recruitment process is because of a 25% versus 15% white to BME success rate of staff in recruitment to academic and research roles. It is noted that in 2015 to 2016 BME staff made up 11% of the respondent’s academics compared to a national benchmark of 14%. BME staff make 5% of professional support staff compared to a national benchmark 10%. It was noted that only 6% of senior academic staff were BME and that the difference in the proportion of interviews leading to a hiring was statistically significant for white BME academic and research roles.

[256]We find that the observations in the respondents own policy and its own stated intention to ensure that recruitment processes are conducted in a fully fair manner and that records of recruitment procedures would be kept and monitored were specifically aimed at understanding, tracking and addressing the impact of the recruitment processes on black and minority ethnic staff. Case Number: 1401084/2021 47 Victimisation complaints

[257]The Claimant relies upon the following matters in respect of victimisation: 257.1. Mrs Collier accused the claimant of refusing to give me a solid handover or words that effect 257.2. Mrs Collier deployed inappropriate language and tone 257.3. Mrs Collier wished the claimant all the best in her new role, or words to that effect as an implied threat

[258]The Claimant was asked by to provide KC with a handover on 10 December 2020.

[259]On 6 November KC asked the claimant, by email, if she will be free for a catch up on the Monday. We noted that the email is sent at 16.18 on Friday asking for an appointment on Monday at 9.30. KC agreed when asked by panel that this was on, reflection unreasonable of her. We observe that it gave the claimant no time to agree or organise for a meeting.

[260]The Claimant could not meet on that date and asked what Mrs collier what the query was about. Mrs Collier stated that she hoped to clear the air between them and asked if the claimant was planning any Annual leave and said that she wanted to arrange a handover.

[261]The claimant was at this point in post for another 6 weeks. This was only 5 days after the interview. Whilst Mrs Collier was obviously very keen to get started, she did not take over the post for 6 weeks, and it was perhaps insensitive of her to start to assert her position quite so quickly.

[262]The Claimant replied stating that she would schedule a handover next month. We find this was reasonable of the claimant. In her witness statement Mrs Collier states that she thought this was a curt response. We do not think that it was and are surprised that Mrs Collier thought this at the time. She had just obtained a post which the claimant had been doing for 5 years and had wanted to continue with. We would have expected Mrs Collier to recognise that the claimant may not be ready to hand her post over. In addition, we are aware, as Mrs Collier was not, that the claimant had raised a grievance about the appointment. Case Number: 1401084/2021 48

[263]On 19 November Gary Rees was contacted by the person appointed to investigate the claimant's allegations. At the start of the process this was not Professor Ait-Boudaoud who was only appointed after the original investigator withdrew from the process.

[264]In early December, following the claimants request that she not have to deal directly with GR whilst the investigation was ongoing, he stepped back from her line management. In an email to JH on 4 December GR notes that JH will be the connection point between himself and KS . He says that he has some urgent questions with regard to workload planning and sets them out.

[265]We understand that from that point KS dealt directly with JH in respect of her work and line management, who was also the commissioning officer for the investigation.

[266]We have no evidence before us that anyone had said anything to KC at this point about either the investigation itself, or the allegations being made, or that there had been a change in line management of the claimant from Professor Rees to JH. There was no reason for them to do so, but the lack of communication may have caused some difficulties for Mrs Collier, who wanted to talk to the Claimant about taking on her new role. This lack of communication may have led her to feel that the claimant was not being co-operative.

[267]On the 10 December 2021 at 10.42, Kerry Collier emailed the claimant and asked her for a meeting, saying that she would greatly benefit from a handover from the claimant. A meeting request had been sent to meet at 11.00 am that day.

[268]The claimant replied saying she has met with JH and updated him, and it was decided not to go ahead with the meeting at 11.00am that day. The meeting was therefore cancelled.

[269]Mrs collier then received the message from JH cc to KS and GR at 10.46 on the 10 December, saying I will set up a meeting with you next week to go through issues. (p 238) Case Number: 1401084/2021 49

[270]This arrangement was put in place because the claimant had raised concerns about having to deal with Mr Rees as her line manager, when she was making complaints of discrimination against him. The investigator had suggested that she take this up with Jeremy Howells, which the clamant did. JH agreed that he would take on the claimant’s line management and be the point of contact.

[271]In the afternoon of 10 December there was an exchange of emails about a work issue and from a senior lecturer in Industrial relations. Mrs Collier responded stating , I understand that Kajal will be looking into this before handing over to me.

[272]Of course, by then, the claimant had met with JH and agreed that JH would hand over to KC, so that KS did not need to meet with KC.

[273]KS wrote back to KC, stating that KC was wrong and that the matters would become clearer to her going forward, and stating I understand that you have been informed that you have a meeting regarding all these matters next week. This was sent at 18.44.

[274]The email exchange between them is displays a certain irritation from both women– there is implied criticism of KS by KC and implied criticism of KC by KS.

[275]In response at 18.58 KC wrote back to the claimant saying as follows: Thanks you for uploading this information Kajal as it wasn’t there last week when I went through it with Gary. I’m really surprised and disappointed that you are refusing to give me a solid handover and for some reason have passed this to the new executive dean instead who no doubt has more important issues to deal with. I wish you all the best in your new role.

[276]We all agree that KC was clearly frustrated and annoyed with the Claimant at this point, that her tone is rude, and that her last comment is capable of being read as passive aggressive. We understand why the Claimant felt that his was a threat, although we do not consider it was one. Case Number: 1401084/2021 50

[277]However, we all agree that there is no evidence at this point that KC knew that the claimant had raised a complaint or might raise a complaint about race discrimination or anything else. Her wording suggests a genuine frustration and annoyance. We think her words, though a bit unprofessional, support her evidence that she did not, at this point, know about any complaints that had been made. We find that her reasons for writing this email was frustration and annoyance and not any knowledge of the complaint. We think that this was in keeping with the way she had a dealt with the claimant from the point of her appointment. from 1 January 2021, Ms Collier amended the claimant’s workload without consulting the claimant Ms Collier refused to allocate to the claimant hours work for the work the claimant had already undertaken Mrs Collier allocated extra work to the claimant and

[278]The second complaint of victimisation is that Mrs Collier amended the claimant’s workload without discussion or agreement with the Claimant. She says this was done on the 15th January 2021

[279]We accept the Claimants evidence that it was usual to discuss changes in workload with the individual and KC accepted when giving evidence that it would be usual to discuss changes in workload with the person affected before making those changes.

[280]We find that on 15 January the claimant was told that her workload was being changed and increased. This had not been discussed with her in advance. We find that Mrs collier acted contrary to what she knew was usual practice. We have no evidence that she did this to anyone else. This was unfavourable treatment of the claimant.

[281]The question for us, is why did she do it. Case Number: 1401084/2021 51

[282]She says in her evidence that there had been an example of KS changing her workload on one occasion. She also said that she was under pressure and the Claimant had not given a handover. None of these statements seem to explain either why the workload was increased, or why it was not discussed.

[283]Mrs Collier was asked why she did not discuss this with Dr Sharma, or go back to JH and talk to him about it and said that felt that JH was new to the role and had more important issues to deal with. On reflection she did accept that changes to KS role were important and accepted that this might cause the Claimant stress, but said she made the decision on the basis of the knowledge she had. She also said , when asked why the claimant had been treated differently, she said, you (the Claimant ) refused to meet me, and stated that she was frustrated with the situation and not being able to communicate with the Claimant. She forcefully denied that she did this because the claimant had raised complaints and asserted that she did not know that any complaints had been made at this stage.

[284]We find that Mrs Collier did change the claimants work load without talking to her first, but because she was annoyed and irritated with the claimant and with not being able to talk to her. We find this was unprofessional , but that it was not motivated at all by any complaint made by the claimant. We find no evidence that points to KC knowing about the complaints at this point and find on balance that she did not know that the claimant had raised complaints when she changed the claimant’s workload.

[285]The claimant was upset by the change to her workload, and wrote to JH making a clear complaint that she believed that KC’s email to her was victimisation. He writes back thanking her and tells her that he has arranged to meet KC to go through things.

[286]KS did not send this email to KC, and therefore unless KC was told about it by JH, she would not have known of it.

[287]The claimant then did complain to KC that she , KC had allocated her additional work. KC accepts that she did ask KS to do some additional work, such as being a second marker and asked to meet to discuss this with her. KS declined to meet Case Number: 1401084/2021 52 her. It was in her response that KS told KC that she had changed her workload without her consent. KC then asked KS to say when this had happened. She should have known that she had done this.

[288]On 20 January 2021 the Claimant sent a further email to JH, this time copying in KC, in which she stated that she would be raising a formal complaint about KC. KC says that this was the first time that she was aware of any formal complaint or intention to raise a complaint.

[289]At this point, there is no evidence that KC had been told that the claimant had either made a complaint against GR or that she, the claimant had raised an issue about victimisation.

[290]It follows tht the complaint cannot at that point have been a cause of her actions. We therefore dismiss that complaint of victimisation.

[291]We have been referred to an exchange of emails which post date this.

[292]On 15 February JH wrote to KC and Professor Rees and says , after my email just now, kajal is seeking to escalate the harassment and bullying claim so we will have to explore other options for Positive And Social Psychology which we discussed. Sorry about this. Djamel’s report is due tomorrow.

[293]The report was the one Professor Ait-Boudaoud was preparing in respect of the claimant’s allegations about the failure to appoint her.

[294]There was then an exchange of emails between Mrs Collier, Professor Rees and JH. This is at pages 388 in the bundle. text. insert text 388.

[295]We all agree that this exchange only makes sense if Kerry Collier knew that the claimant had made her original grievance. KC said to us that she did not know what the report was or who Djamel was. She also accepted this was not something that she thought was about a complaint about her. Case Number: 1401084/2021 53

[296]No one admits that Mrs Collier knew about the Claimants complaint about the appointment process. If she did not know at the point she received this email, we find it incredible that she did not ask what this report was, since it was clearly affecting the management of the claimants teaching.

[297]We note that several weeks had passed and we all agree that it is possible and we think probable that something was said to KC before 15 February that informed her that the claimant had made a complaint that was being investigated. The email from JH is written to KC, and reads as if he assumed that both she and GR were aware of the context, which was the ongoing complaint about Discrimination, harassment and bullying by the claimant.

[298]KC clearly did think that, at least, that this was an allegation of bullying and harassment about her and about the workload, and we find that her response, which is to suggest disciplinary action against the claimant is wholly inappropriate. This also explains the comment made by GR not to let spurious allegations get to her. We also find that the exchange demonstrates a relationship between Professor Rees and Mrs collier which is entirely different to the relationship he had with the claimant.

[299]We have also considered the claimants allegation that she was victimised by KC when KC refused to allocate her hours for work she had already carried out.

[300]We were referred to a document in the form of a table, dated 22 February 2021 This was the response from KC to JH and GR about Dr Sharma requesting that she should be allocated ½ the allowance for the Associate Heads role for work undertaken in the academic year from September 2020, because she had been in post for 4 months up to January 2021.

[301]In this document KC sets out her response to the request and the reasons for not agreeing it. Both are entirely appropriate we find. KC then makes a reference to tribunals have failed on employers offering goodwill gestures as it is seen as a sign as admissions of wrong doing. Her explanation was that this was a general comment by way of information. We do not accept this as true and all agree that Case Number: 1401084/2021 54 this is far more likely to be a comment made because of and with reference to the ongoing dispute with the Claimant, who had, at this point obtained an ACAS certificate ( 1 February 2021).

[302]We see no reason for KC to make any reference to an ET, unless she was aware of the dispute between the claimant and the respondent at that point. We find that by this point it is more likely than not that KC did know that there was a complaint about her and a complaint about other matters that pre dated it, and that is the reason for the comment.

[303]We find that when both the email response in February 2021, and the comment about the ET, were written Mrs Collier did know that there was a complaint against her, but that she also knew that there was an ongoing compliant about other matters concerning other people.

[304]We have been referred to evidence from several people, including emails from JH , who was asked if he thought that KC did know about the claimant’s grievances and if so when. He asked this because he had to investigate the claimant's victimisation complaints. JH responded that he did not think that KC did know.

[305]We note that Professor Ait-Boudaoud did not ask KC this question and that there was a lack of transparency, over this matter. It was obvious that if Mrs Collier was told about the compliant, then she could be accused of victimisation in the future, but that if she was not asked, then she could not defend herself against the existing complaints. This was not explained in this way by the respondents, but we do recognise that there was a dilemma about how to investigate this particular compliant.

[306]None the less, we do not believe that Professor Ait-Boudaoud was told the whole truth. We have no evidence of any actual conversation and unsurprisingly no one has given any evidence or admitted any informal conversations. We infer from the evidence we have seen, and the sequence of events that it is more likely Case Number: 1401084/2021 55 than not that Mrs Collier did know about the investigation and the complaints made by February 2021.

[307]She knew that the claimant had made a series of complaints , including complaints of race discrimination.

[308]However, we find that the explanations set out on page 408 of the bundle, referred to above, were a valid justification for not granting the request made by KS. The reason given is logical and reasoned and includes a proposed solution. We all agree that the reasons set on-out in the table are the true and the only reason for the decision , and that the reference to the ET was an unhelpful remark. We are very concerned that this witness was disingenuous and that Professor Rees must also have known that KC knew about the complaints but told us she did not. the respondent refused to provide the claimant with notes of the selection process

[309]The claimant made a freedom of information request on 15 December 2020, and asked for various statistical information as well as the interview notes and the notes of feedback.

[310]She received a response on the 15 January 2021 providing answers to many of her questions. In response to her request for the interview notes it said (insert 309) .

[311]This was wrong. The interview notes taken by Sally Walpole were on the file. We have been provided with them and told that they were uploaded. We have no evidence before us that explains why the claimant was told that they were not available.

[312]The report produced by Professor Ait-Boudaoud was sent to the claimant on 18 March 2021. It had 37 attachments and 17 appendices. Case Number: 1401084/2021 56

[313]The claimant wrote back that she was unable to open the attachments and appendices. She was then sent a further copy. The appendices did not include the interview notes.

[314]She was signed off on sick leave on the 19 March 2021.

[315]On 3 September 2021 the claimant lodged an appeal. One of her complaints was that University had not provided her with a complete set of their evidence , such as copies of the handwritten notes of evidence of panel members at appendices 11-17. She had also not been provided with statistical evidence.

[316]Professor Ait-Boudaoud carried out further investigations, and there was an appeal hearing and an out come. The claimant was not provided with the handwritten notes then, or as part of disclosure.

[317]The claimant was not provided with the handwritten notes. There were 5 occasions when she should have been given them. 317.1. As part of the investigation 317.2. As part of investigation report 317.3. As part of appeal 317.4. As part of her FOI request and 317.5. As part of disclosure for the ET.

[318]We also find that there was a failure to give her any feedback, as set out above. The question we ask is why?

[319]She needed the notes and was entitled to them, and they existed and should have been on the file. We are not clear when they were produced but they were relevant to the investigation before AB. She had made allegation of race discrimination. The notes are , we all agree, insufficient to demonstrate a fair and appropriate process by themselves, and do not show any evidence of scoring. GR told us he made no notes at all. Case Number: 1401084/2021 57

[320]We find that the burden of proof shifts on the facts we have found to explain why the notes were not provided to the claimant. Professor Rees suggested that the staff had not understood that the notes were there all the time and sought to blame others. We reject this, and have no other evidence to explain it.

[321]We do not accept that there is any valid and truthful explanation. The claimant put the respondent on notice at an early stage that she was really unhappy about the recruitment process, and the respondent knew or should have known that the notes existed and were of central relevance to the questions and allegation she was making. We can only conclude that there was a deliberate decision by the respondent on more than one occasion to prevent the claimant from seeing the notes, because she had raised the complaint of discrimination. The principle Legal tests. Direct discrimination (s.13 Equality Act)

[322]Some of the Claimant’s claims were brought under s. 13 of the Equality Act 2010 “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[323]The protected characteristic relied upon was race. The comparison that we had to make under s. 13 was that which was set out within s. 23 (1): On a comparison of cases for the purposes of sections 13, 14 or 19, there must be no material difference between the circumstances relating to each case.

[324]We approached the case by applying the test in Igen v Wong

[2005] EWCA Civ 142

to the Equality Act’s provisions concerning the burden of proof, s. 136 (2) and (3): (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Case Number: 1401084/2021 58

[325]In deciding what were the ‘grounds’ for discrimination, we reminded ourselves that we are simply required to identify the factual criteria applied by the respondent, or the member of the staff who made the decisions, as the basis for the alleged discrimination. The respondent’s motive for discriminating, however benign, is not relevant. (R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors

2010 IRLR 136

, SC, per lord Phillips, president.)

[326]We reminded ourselves that it is for the employee to prove that she suffered the treatment, not merely to assert it, and this must be done to the satisfaction of the tribunal after all the evidence has been considered. Laing v Manchester City Council and anor

2006 ICR 1519

, EAT, per Mr Justice Elias, president)

[327]We also considered the question of unconscious bias. In this case the respondent asserted that there was no evidence of a discriminatory motive or conscious discrimination.

[328]We reminded ourselves of the judgment of the Supreme Court in R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors and the words of Baroness Hale there are other cases in which the ostensible criterion is [not inherently discriminatory] — usually, in job applications, that elusive quality known as “merit”. But nevertheless the discriminator may consciously or unconsciously be making his selections on the basis of race or sex.’

[329]To illustrate her point she referred to the following famous passage from Lord Nicholl’s judgment in Nagarajan v London Regional Transport

1999 ICR 877

, HL: All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim, members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.’

[330]We considered the application of the burden of proof provisions and reminded ourselves that if we are satisfied that Case Number: 1401084/2021 59 the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.

[331]Looked at from the other side, we reminded ourselves that we must not ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage. That would be to let form rule over substance.’ per Mr Justice Elias, then President of the EAT, in Laing v Manchester City Council and anor

2006 ICR 1519

, EAT)

[332]In this case, in order to trigger the reversal of the burden, it needed to be shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged.

[333]More than a difference in treatment or status and a difference in protected characteristic needed to be shown before the burden would shift. The evidence needed to have been of a different quality, but a claimant did not need show positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might suffice.

[334]As to the treatment itself, we always had to remember that the legislation did not protect against unfavourable treatment per se but less favourable treatment. Whether the treatment was less favourable was an objective question. Unreasonable treatment could not, of itself, found an inference of discrimination, but the worse the treatment, particularly if unexplained, the more possible it may have been for such an inference to have been drawn (Law Society-v-Bahl

[2004] EWCA Civ 1070

[335]When dealing with a multitude of discrimination allegations, a tribunal was permitted to go beyond the first stage of the burden of proof test and step back to look at the issue holistically and look at 'the reasons why' something happened (see Fraser-v-Leicester University

UKEAT/0155/13/DM

). In Shamoon-v-Royal Ulster Constabulary

[2003] UKHL 11

, the House of Lords considered that, in an appropriate case, it might have been appropriate to consider ‘the reason why’ something happened first, in other words, before addressing the treatment itself.

[336]We reminded ourselves of Sedley LJ’s judgment in the case of Anya-v-University of Oxford

[2001] ICR 847

which encouraged reasoned conclusions to be reached from factual findings, unless they had been rendered otiose by those Case Number: 1401084/2021 60 findings. A single finding in respect of credibility did not, it was said, necessarily make other issues otiose. Victimisation (s. 27 Equality Act)

[337]We also had to consider claims under s. 27. Although the Respondent did not dispute the fact that the Claimant had performed protected acts within the meaning of s. 27 (1) in the form of her grievances and her claim to the ET, it disputed the allegation that she had been subjected to detrimental treatment because of those acts.

[338]The test of causation under s. 27 was similar to that under s. 13 in that it required us to consider whether the Claimant has been victimised ‘because’ she had done a protected act, but we were not to have applied the ‘but for’ test (Chief Constable of Greater Manchester Constabulary-v-Bailey

[2017] EWCA Civ 425

);. it is not necessary for the protected act to be the primary cause of a detriment, so long as it is a significant factor. In Pathan v South London Islamic Centre EAT 0312/13 However, it has to have been the act itself that caused the treatment complained of, not issues surrounding it.

[339]We recognise that the concept of “significant” can have different shades of meaning, and reminded ourselves that if in relation to any particular decision a discriminatory influence is not a material influence or factor, then it is likely to be trivial. ( see Villalba v Merrill Lynch and Co Inc and ors

2007 ICR 469

, EAT )

[340]In order to succeed under s. 27, the claimant needs to show two things; that she was subjected to a detriment and, secondly, that it was because of the protected act(s). We have applied the ‘shifting’ burden of proof s. 136 to that test as well.

Discussion and conclusions

[341]Looking first at the claims of direct discrimination, we have reviewed all our findings of fact about the way the claimant was treated by Professor Rees, across the chronology of events.

[342]The fact that the claimant was not successful in applying for the job she had been doing for five years, meant that a hundred percent of the black and minority ethnic staff reapplying for their job had not been recruited, whereas 11/12 of white staff applying for their jobs had been recruited. We have already observed that Case Number: 1401084/2021 61 this is statistically significant and would have anticipated that this would have triggered some form of enquiry under the University’s own policy and Equality Monitoring, even without the claimant herself, having raised the matter.

[343]The claimant was a visible member of the black and minority ethnic staff. She speaks with a marked Indian accent. She had been doing the job for five years, albeit one of those years she spent on maternity leave, and the only criticism apparently made of her was at the end of the tenure and was directed towards her communication skills and some issues around timetabling.

[344]The fact that she was not reappointed to a post was on the respondent’s own statistics, extraordinary. The circumstances ought to have raised questions at if not a concern at some level. Instead, the fact that a senior member of the academic staff who was BAME woman was not reappointed to a post was ignored by the University.

[345]When the claimant herself raised an issue about the appointment process within days of being told that she was unsuccessful, we would have anticipated an immediate and sensible explanation would have been forthcoming to explain clearly to the claimant and to the university, why the claimant was not appointed.

[346]We would have expected that Professor Rees would have expected to give and been ready and willing to give specific and clear feedback to the claimant. he did not do so.

[347]It was only when the claimant raised her complaint and suggested race discrimination that the University took any steps at all to look at the process followed. We find its process was unnecessarily slow, and that there was a reluctance to co-operate with the claimant to provide her the information she needed to represent her concerns.

[348]Despite a protracted investigation, and the lengthy report, the respondents did not conclude that there was any real concern about the way Dr Sharma had been treated. There were no real concerns about the interview process and the Case Number: 1401084/2021 62 apparent lack of notes taken by the recruitment manager. There were no concerns about the apparent lack of any training of the individuals there were no concerns about the fact that the claimant had not been reappointed and was a statistical anomaly and there were no apparent concerns that when the claimant sought feedback at an early stage, none was provided.

[349]We have found that the burden of proof requires the respondent to fully explain why the process of selection was not motivated consciously or unconsciously by race. We are not satisfied by the explanation.

[350]On that basis we would have found that the process was tainted by race discrimination.

[351]However, we have also considered our findings about the other allegations made by Dr Sharma of redirect race discrimination.

[352]Her complaints about Professor Rees are all well founded we find.

[353]Our findings are that he did treat her differently to named white staff on in several specific incidents, and he treated her in a way that we considered was different to the way he would have treated others, in areas such as support over her father death, and her child’s illness.

[354]We have preferred the evidence of Dr Sharma where there have been conflicts and have rejected some of the explanations given by Professor Rees as untrue.

[355]We have considered carefully the way that Prof Rees conducted himself and we conclude that he did treat the claimant differently and that he treated her differently to white colleagues.

[356]We find it extraordinary that within such a short space of time he offered support to one colleague who wished to pursue an academic qualification but declined to offer support to the claimant when she stated her wish to pursue it. Case Number: 1401084/2021 63 We find his explanations inconsistent, and we do not accept them. We find that he treated the claimant differently to a white woman in similar circumstances.

[357]We also consider that Prof Rees was disrespectful of the claimant’s role as chair of an interview panel and that his refusal to discuss the reasons for the appointment of a woman with her, whilst he had been prepared to discuss it with a white man who was not chair of the panel is extraordinary. We all agree that this reluctance to discuss serious matters with the claimant indicate is indicative of his attitude towards the claimant and is fundamentally different to the way he treated all the other colleagues about whom we have heard evidence. There is no valid reason provided to us for him refusing to discuss this matter with the claimant and we find his explanations unconvincing and we reject them.

[358]We have considered the responses provided by Prof Rees to the claimant when a discussion took place about the claimant reapplying for the job. We find that he was unsupportive of her, but it is not clear why he was unsupportive of her.

[359]We have considered the situation, which arose when the claimant’s father died in India. We have borne in mind that these matters occurred some years ago and that memories do fade. Nonetheless, we all agree that the attitude of Prof Rees to the claimant and her husband at a time of great personal sadness, and at a time when she was eight months pregnant, and in the context of having to travel a significant distance in order to be with her family, showed a lack of empathy or support.

[360]We have found that that he did expect the claimant to continue to do her work despite the crisis she was dealing with, and we conclude from all we have heard that he would not have responded in the same way to any other member of staff, who had similar family emergencies. All the evidence we have been referred to of other people having else for family emergencies suggests that Prof Rees is capable of great sympathy, empathy and kindness. We conclude that there was a difference in treatment. Case Number: 1401084/2021 64

[361]The claimant has referred to and complained about the way she was treated when she was trying to deal with her baby son’s illness. We find again that Prof Rees whilst not unsympathetic was not particularly supportive of the claimant. He was reluctant to accept that the claimant was justified in having serious concerns about her child’s health, and did not appear to have taken any particular steps to offer the claimant any additional support .

[362]We have considered the evidence in respect of the process for advertising the post that the claimant had spent the last five years doing and which she had indicated she wished to reapply for. Nobody including the claimant’s own line manager, Prof Rees flagged up to that post had been advertised. We find this to be extraordinary behaviour. We find it almost incredible that Prof Rees as the claimant’s line manager would not have said to her, something about the advert being expected that week He knew she wanted to apply, and there was no reason not to flag it up to her, or to any one else he knew might be interested. It seems to us to be such an obvious thing to do, that to fail to do it must raise questions about why.

[363]The claimant very reasonably asked for feedback following her failure to be reappointed. The request was passed to Prof Rees . We Conclude that Prof Rees was reluctant to provide the claimant with feedback in respect of her interview and we have considered why this was . We conclude that this was because he was well aware both that the process had not been fully fair and fully transparent. But we also conclude that he himself was well aware that he had a marked preference for Ms Collier and that he was not supportive of the claimant . He would have been well aware that there was a difference in race between the two women and we conclude that at some level, conscious or unconsciously ,he did not wish to have to justify himself or his decisions .

[364]Having considered our findings of fact in respect of each of the allegations of discrimination made by the claimant, and having taken into account the statistical evidence and the reluctance of the respondents to provide the claimant with full access to documentation at an early stage, we are satisfied that in the absence of Case Number: 1401084/2021 65 valid explanations from Mr Rees and the respondents, we could conclude that the claimant’s treatment was on grounds of race.

[365]We have therefore considered the various explanations provided by the respondent and by Mr Rees for the treatment of the claimant.

[366]We reject the explanations and reasons provided by the respondent for the claimant’s treatment in each and every instance.

[367]We find the explanations inconsistent, lacking in transparency and in some cases being made up thought of after the event.

[368]We conclude that Mr Rees, subconsciously or unconsciously, treated the claimant as he did, including failing to reappoint her to a job she had been doing for five years was, in part at least, on grounds of her race.

[369]We conclude that this is a case of subconscious discrimination. Whilst Prof Rees is clearly a respected senior academic his reluctance to recognise the skills and abilities and aspirations of Dr Sharma , and his failure to support and encourage her in the way that he supported and encouraged other white members of staff , points towards a subconscious or unconscious bias . We conclude that his involvement in the recruitment process and his subconscious bias means that the failure to recruit claimant was an act of race discrimination.

[370]This does not mean, in respect of the appointment process, that Mrs Collier was not necessarily the better candidate. She may have been. Our finding is that, on the basis of the evidence before us, we do not accept that there was an objective reason which was nothing to do with race. We all agree that at some level, the claimant’s race was a factor which influenced Professor Rees, consciously or unconsciously.

[371]We are not able to determine what would have happened if Professor Rees had not been involved in the recruitment process , and if the process had not been tainted with race discrimination . Case Number: 1401084/2021 66

[372]The fact that the majority of academics who had applied for their own posts in similar positions had always been reappointed does not necessarily mean that the claimant would have been reappointed in this case . Two members of the panel about whom we have made no findings of unconscious bias at all had different views about who should be selected . The third member of the panel would therefore have a deciding vote.

[373]We think that this must mean that the claimant had at least a 50% chance of being a successful candidate and , since statistically there is a high percentage chance of the incumbent being reappointed we think her chances must realistically have been higher than 50% . This will be a matter for discussion at a remedies hearing. Conclusions on Victimisation

[374]In respect of the victimisation claims we conclude that the claimant was not victimised for having made a complaint of race discrimination by Mrs Collier. We have made some criticism of the communications from Mrs Collier and we also find that she has not been wholly truthful in her evidence with the tribunal, but we conclude that despite this, her reasons for her communications were a genuine frustration with the situation and with the claimant, which may perhaps have been affected by her not being fully updated or fully aware at all stages of the process are precisely what the claimant’s concerns were.

[375]We reject the claimant’s allegations of victimisation against Mrs Collier for the reasons set out above.

[376]We conclude that the refusal to provide the claimant with access to documents which she clearly required and the failure to comply with some basic aspects of discovery and disclosure during the process of the court proceedings was not the result of human error, or of poor administrative systems, but has been the result of a deliberate attempt to prevent the claimant from seeing documentation which might support her claim. There has been a deliberate failure by the respondents, to cooperate with the claimant from the point that she raised her grievance up Case Number: 1401084/2021 67 until and including the process of this hearing. We conclude that the claimant was victimised by the respondents when they failed to provide her with the notes of the selection process.

[377]It is unacceptable for any large organisation which is well resourced and which has in its own legal advisers to fail to comply with the most basic requirements of disclosure. It has been observed on many occasions that a claimant in discrimination cases have an uphill struggle because much of the information required to support their case or as the case may be to disprove their case will be in the hands of the respondents. In this case the claimant had retained and had access to many of her own emails and contemporaneous documents. Had she not retained them or accessed them, there is no doubt that she would have found this case very difficult to pursue. Employment Judge Rayner Southampton Date: 28 November 2022 Judgment & Reasons sent to the parties: 29 November 2022 FOR THE TRIBUNAL OFFICE Case Number: 1401084/2021 1 EMPLOYMENT TRIBUNALS Claimant: Dr K Sharma Respondent: University of Portsmouth Heard at: Southampton On: 23 & 24, 25 October 2023 Before: Employment Judge Rayner Mrs A Sinclair Mrs CL Date Representation Claimant: Mr Sharma, Claimants husband Respondent: Mr N Smith Counsel

[1]The remedies hearing took place across two days and the employment tribunal heard evidence from the claimant, Dr Sharma and Mr Sharma on behalf of the claimant and from Miss C Sparrow and Mrs F Hnatow on behalf of the respondent.

[2]We had a bundle of documentation including the reports referred to below, as well as updated schedules of loss from each party. We also received written submissions from the respondent and the claimant and a bundle of authorities from the respondent.

[3]The claimant has submitted a final and updated schedule of loss which includes six potential recommendations.

[4]The respondent has provided a counter schedule of loss.

[5]We are grateful to both parties for all the work that they have put into addressing the submissions and figures which each have provided. This is a complex case and our comments about the figures and calculations we do not Case Number: 1401084/2021 3 have are a reflection of that complexity, and not intended as a criticism of either party or their legal representatives. Background to the remedies hearing

[6]Following the full merits hearing, there have been a number of hearings to discuss case management of the remedies hearing and the evidence that the parties wish to rely upon.

[7]Following a case management hearing and applications from the parties, an order was made for a joint expert to be identified and instructed to report on the claimant’s psychiatric impairment.

[8]The parties identified and instructed Dr Gupta, whose report was before us at the remedies hearing.

[9]Following provision of that report, the respondent made an application to instruct a second expert. There were particular circumstances, including some not unreasonable concerns the respondent had about a number of parts of the report, as well as the level of the award that the claimant was now claiming. An order was therefore made giving the respondent permission to instruct a second expert, to comment on behalf of the respondent, on the report produced by the joint expert. The Claimant agreed to co-operate with the production of that report and did so.

[10]The subsequent report of Dr Mallet is also before the employment tribunal.

[11]The experts have also produced a joint report setting out areas of agreement.

[12]Following the liability judgement, Dr Sharma approached an actuary and instructed them to advise her on possible pension loss, in a range of scenarios.

[13]The respondent subsequently also instructed an actuary to advise them on pension loss in a range of scenarios. Case Number: 1401084/2021 4

[14]The reports of both actuaries were produced to the tribunal and the parties rely upon their respective reports as setting out the basis on which this tribunal should make an award for pension loss.

[15]Both parties had produced schedules/counter schedules of loss for the purposes of this hearing. We are grateful to both of them for the significant amount of work that has gone into preparing these documents and in seeking agreement where possible.

[16]There is no agreement between the parties in respect of pension loss, either in respect of the period of loss for which compensation might be granted or on the rate of pay which might be expected at the point of retirement or on the assumptions that the respective actuaries should take into account.

[17]We have not heard any live evidence from either actuary and each party has simply adopted the calculations within their respective actuarial reports as representing their submissions on pension loss.

[18]No order was made for expert reports in this respect, and there is no joint report. The tribunal have accepted that the evidence is helpful in setting out two different approaches to the calculation of pension loss and is also helpful in giving a range of scenarios and the loss that would flow in that scenario using the assumptions of the particular actuary.

[19]The claimant argues that in this case there is career long loss and that pension loss is therefore a complex calculation, and future loss of earnings and the consequent pension loss should be calculated according to the principles set out in the Ogden tables and latest government actuary report.

[20]The respondent asserts that there is a shorter period over which loss of future earnings should be calculated and asserted, although not forcefully, that a simple calculation could be appropriate. Case Number: 1401084/2021 5

[21]Each report has been drafted with the purpose of supporting the relevant arguments made by each party, and unsurprisingly the claimants actuary has made assumptions of a very long period of loss with a higher projected final salary, whilst the respondents actuary has made calculations based on a shorter period of loss and a lower award for pension loss.

[22]However, neither report address the factual circumstances that we have found and therefore we are not able to use them other than by way of guidance to assess pension loss.

[23]We have therefore considered how best to deal with this matter taking into account the guidance to employment tribunals on the best way to assess pension loss. Pension Loss - Next Steps

[24]Whilst the actuarial reports have been of some assistance in helping us to consider the approach to pension loss and whilst we have been able to make findings of fact as to the basis on which we intend to calculate these losses, the reports themselves have not assisted us in making a final decision as to what that loss is.

[25]Our findings of fact and conclusions in respect of the period of future loss of earnings; the impact of the discrimination on the claimant's career progression and the claimants potential career progression absent discrimination are set out below.

[26]We have not at this point been able to calculate a figure in respect of pension loss, because we have not been provided by either party with figures or calculations in respect of the scenario which we have found.

[27]There are a number of approaches to the calculation of pension loss and before making a final decision we all agree that it is appropriate to invite the parties to discuss the matter, having read this judgment, with a view to reaching an agreement on the level of award of pension loss. Case Number: 1401084/2021 6

[28]The parties are therefore invited to consider the following options 28.1. The parties may decide to agree a notional figure between them in respect of pension loss, taking into account the facts found by the employment tribunal. The Tribunal would then give judgment for that amount if so required. 28.2. Alternatively The parties may write back to the employment tribunal within 28 days seeking a further hearing at which they may provide further verbal evidence and the ET will then make an assessment based on the evidence before us at that point . 28.3. The parties may consider whether or not to agree to instruct a joint actuary to determine the figure, and agree to be bound by that figure. In this case further directions must be proposed and agreed with the Tribunal. 28.4. In the event of no agreement as to a way forward, the parties must write back to the ET after 35 days and request a listing for a 1 day Case Management Hearing, to consider how to resolve the question of pension loss.

[29]If the parties are not able to agree a figure, then a further hearing will be listed to determine pension loss, on the basis of the findings and conclusions of this tribunal, and any further submissions made by either party and in accordance with directions which will be given if necessary. Grossing Up – Next Steps

[30]A matter arose during the course of this hearing in respect of the usual process of grossing up of awards of loss of earnings, and the applicability of the rules in this case. The parties have opposite views as to whether or not there should be grossing up of the award or not.

[31]We have not finally determined this matter, but the principles which we consider applicable are set out below. We all agree that the difference in Case Number: 1401084/2021 7 approach of the parties must mean that there is a risk that, at some point in the future, the claimant may be subject to an order to pay income tax to the revenue in respect of any amount awarded by this tribunal which represent future loss of earnings. This is despite the respondent’s submissions that any award made by this court is not in an award in respect of termination, because the claimant remains employed at the point of the remedies hearing.

[32]Before we make a final determination, the parties are therefore invited to agree that, in the event that the tribunal determines that any award for future loss of earnings will not be grossed up, and subsequently a determination is made by a different court , the decision of which will bind this employment tribunal, that the award is taxable, so that grossing up would have been necessary, that the claimant will then apply to the employment tribunal for a reconsideration of the determination of grossing up, out of time, and that the respondent will give an undertaking 32.1. not to oppose any such application and 32.2. to agree to that matter only being reconsidered by the employment tribunal out of time. 32.3. The consideration of the matter will of course be subject to any submissions that the parties may make.

[33]The parties must seek to agree the approach, and write back to the ET and each other within 28 Days, setting out their position.

[34]In the event that there is no agreement between the parties and no undertaking for the respondent, the panel will reconvene to determine the matter. Pension loss discount rate

[35]The claimant asserts that the appropriate rate that we should apply to pension loss, and future loss of earnings, for purposes of accelerated receipt is Case Number: 1401084/2021 8 -0.25%. The claimant refers to the government actuary report of August 2022 which had retained this rate.

[36]Mr Sharma on behalf of Dr Sharma asserts that there is no need to deviate from this rate.

[37]We accept that the reason for that figure being set in August 2022 was a recognition that money invested in 2022 would lose its real value over time, because of interest rates, amongst other matters.

[38]Mr. Smith, counsel for the respondent asserts that whilst the rate of -0.25% has been the appropriate rate in the past, because of the level of interest rates and the rate of inflation, as at the date of hearing, and therefore the calculation date, it is no longer appropriate.

[39]He argues that the tribunal should take account of the real-world situation and points out that a -0 .25% would mean an increase in the amount of pension loss awarded based on past inflation and interest rates, in effect giving the claimant an unjustified windfall.

[40]Mr. Smith and the actuary instructed by the respondents consider that as at October 2023, the financial markets and interest rates and other factors affecting these matters have improved significantly so that any financial settlement in respect of future pension loss awarded by this tribunal could be expected to receive interest of 2.5%.

[41]We remind ourselves that the tribunal is expected to take account of the impact of accelerated receipt, but also remind ourselves that we must make an award to compensate the claimant , not punish the respondent, and that we must have regard to the overall fairness of the level of any award. We accept that if we can make findings as a matter of fact, based on the evidence we have, that any future financial losses are likely to either decrease in value or increase in value as a result of being received in advance and invested that we should adjust any award accordingly. Case Number: 1401084/2021 9

[42]We accept that the -0.25% rate was unusual and the result of some very particular financial circumstances in 2022/203, and we agree that there is some indication that matters have changed in recent months. However, no member of the panel is a financial expert and neither Mr Sharma nor Mr. Smith have called any one to give expert evidence before us.

[43]We must therefore consider whether or not to deviate from the recommended approach which Mr Sharma sets out in his skeleton argument and if so, state why, and what rate if any should be applied.

[44]We all agree that it is appropriate for us to take account of real-world changes since August 2022 and we all agree that as at October 2023 a rate of -0.25% is not inappropriate. From the evidence before us, from the submission made and taking notice of real world matters, we conclude on balance that, as interest rates having risen, and there being an indication of a slowing of inflation, that it is less likely, on balance for savings to lose value in the longer term.

[45]We all agree that it is highly probable that a sum of money received in 2023, if invested, could be expected to at least retain its value. We cannot say whether there is any realistic expectation of any amount invested in 2023 gaining in value to any significant extent, although we accept that interest rates are higher at the point of writing than in the last 18 months.

[46]Because we recognise that inflation remains high and that interest rates on loans remain high, on the basis of all the evidence we have before us we cannot conclude that investments will grow on the basis of 2.5% in the immediate future, as asserted by the Respondent actuary in the report. Whilst we recognise that any award of future pension loss might be expected, in Dr Sharma's case, to be invested for at least 15 to 20 years prior to the ordinary retirement age being reached, it is not possible for us to find , on the basis of the information that we have whether over that period of time an investment would be expected to grow a large amount or at all. Case Number: 1401084/2021 10

[47]However, we do conclude from the evidence and submissions that there is a greater chance now of a longer-term investment keeping its value than losing value and therefore we make no award in respect of accelerated receipt either positive or negative. ACAS Uplift

[48]An award for compensation can be increased or reduced by up to 25% if the employer has unreasonably failed to comply with the relevant code of practise relating to the resolution of disputes. in this case the claimant argues that the relevant awards should be subject to the full 25% uplift the respondent disagrees and argues that, whilst there were failings identified within the grievance procedure, by the employment tribunal that any uplift should be no more than 10%.

[49]The claimant raised an internal grievance about the failure to repoint her to the grade 9 post as well as other matters and we have made finding such a critical of the respondents handling of that process.

[50]We remind ourselves that when making an adjustment under these provisions we must take into account the absolute value of any given uplift rather than just the percentage value we must bear in mind that if we do not do so, and the award yields A significantly large amount in absolute terms it will be an error of law we referred to the case of Acetrip Limited v Dogra UK

UKEAT/0238/18/BA

[51]We have also taken into account the guidance in the case of Secretary of State for justice V Plaistow 2021

UKEAT/0016/20

, in respect of high value cases such as this one as follows: 51.1. Identify the amount of the awards to which the uplift is applied 51.2. Determine the appropriate level of uplift assessing the employer's level of culpability and any harm to the employee. 51.3. Consider what that award would mean in monetary terms assessing this against both the totality of the award if the up lift is applied and the proportionality of the uplift itself Case Number: 1401084/2021 11 51.4. If necessary, adjust the percentage in light of the actual sums involved.

[52]Further guidance has also been provided both in the case of Rentplus v Coulson

[2022] EAT 81

52.1. Is the claim one which raises a matter to which the ACAS code applies? 52.2. has there been a failure to comply with the ACAS code in relation to the matter? 52.3. was the failure to comply with the ACAS code unreasonable? 52.4. is it just and equitable to award an uplift because of the failure to comply with the ACAS code and if so by what percentage?

[53]The first matter that we are required to consider is whether or not the claim is one which raises a matter to which the ACAS code applies and we find that it is.

[54]We accept the submissions of the respondent that the only issue before the ET under the heading is the finding at paragraph 2.1 of the judgement (Paragraph 309-321) that the respondent refused to provide the claimant with notes of the selection process. Whilst the claimant did bring a number of claims in respect to the grievance procedure, we dismissed them on withdrawal at the outset of the hearing.

[55]We found that there were five occasions when the claimant should have been provided with them, and we also found that the notes which we have seen were insufficient to demonstrate a fair and appropriate process by the respondents we found that Mr Rees had made no notes at all. We concluded that in the absence of a valid and truthful explanation from the respondent there was a deliberant decision by the respondent, on more than one occasion to prevent the claimant from seeing the notes, because she had raised the complaint of discrimination.

[56]We all agree that this is a serious breach and that it contributed to the claimant's ill health and that it contributed to her subsequent injury to feeling Case Number: 1401084/2021 12 and the subsequent psychiatric illness. These are therefore the awards that should be subject to the uplift.

[57]We conclude with that the failure to comply with the ACAS code was unreasonable and that it is just and equitable to award an uplift to the relevant parts of the claimant’s award.

[58]The failure to provide the claimant with the notes of the hearing caused the claimant significant distress and impacted upon her ability to challenge the internal decision and impacted on preparation for the employment tribunal hearing. However of itself it did not directly cause the loss of earnings, which were the result of the discriminatory decision made by Mr Rees.

[59]We all agree that the in this case it is appropriate to consider an uplift in respect of the injury to feeling and psychiatric award only. Our starting point is to consider an uplift in the region of 10%, but we have also considered whether it a should be awarded on the whole of those awards, or only part of the awards.

[60]We conclude that the 10% should NOT be applied to the entirety of those amounts because this was one of a number of findings of discrimination, all of which contributed to these losses.

[61]We agree that the uplift of 10% should be applied to 25 % of the relevant awards.

[62]We have therefore considered what the uplift would be on the total award compared to a percentage , and calculate that an a 10% uplift on 25% of those awards would be . On the total of those awards, the uplift would amount to nearly £8000.00. That would have an impact on the interest, and increase that award, in global term by £640.00. We conclude that the award on 25% , which would be a global figure of £2075.00, and which will be taken into account when calculating interest is the appropriate figure for ACAS uplift in this case. Case Number: 1401084/2021 13 Interest on the award – legal principles, findings and application to facts and conclusions.

[63]The claimant claims interest on the relevant parts of the award at 8%.

[64]The respond has made an interim award of £80,000.00 and asserts that there would be an injustice to the Respondent if the full interest was awarded on that sum, from the point of it being offered to the claimant to the point of its acceptance. The respondent states that there was significant and inexplicable delay on the part of the claimant in accepting that payment.

[65]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 SI 1996/2803, provide that the tribunal may award interest for discrimination awards made I respect of 65.1. past financial loss 65.2. injury to feelings 65.3. aggravated and exemplary damages and 65.4. physical and psychiatric injury.

[66]Interest is calculated as simple interest and the current rate set out in regulations is 8%.

[67]Interest is awarded on injury to feelings awards from the date of the act of discrimination complained of, until the date on which the tribunal calculates the compensation.

[68]The period of calculation for all sums other than injury to feelings awards is from the midpoint of the date of the act of discrimination complained of and the date the tribunal calculates the award.

[69]Where payment of any of the sum attracting interest has already been made by the respondent, the date of payment is taken as the date of calculation of the award for those particular sums. Case Number: 1401084/2021 14

[70]If the tribunal considers that series injustice would be caused if interest were to be calculated according to the above approaches, it can calculate interest on such different periods as it considers appropriate see for example regulation 6(3) of the T(IADC) regs 1996 and see Ministry of Defence v Cannock 1994 IR|LR 509 .

[71]Interest is not awarded in respect of future loss.

[72]In this case the first task of the ET is to identify the relevant period for any injury to feeling award, and the relevant period for any other loss awarded.

[73]We have found that the first act of discrimination was when the claimant was treated less favourably than others by Gary Rees in January 2016. We found a further act of discrimination in 2017, and a failure to support the claimant in 2018/19. Whilst these matters were upsetting for the claimant, they did not lead to any loss of salary at the time, and nor were they the reason why we have made awards for injury to feelings or for Psychiatric injury. We accept that the claimant was upset about the her treatment on these occasions, but the primary cause of her upset and her deterioration in health, was the failure to support her or reappoint her to the grade 9 post, on 31 October 2020.

[74]We all agree that the appropriate start date the relevant period of interest in respect of injury to feeling, and for the calculation of interest in respect of Psychiatric injury in this case is 31 October 2021.

[75]The claimants’ wages were reduced following her reversion to the grade 8 post from 1 January 2021. This is the start date for the calculation of the loss of earnings.

[76]The end date of the relevant period is the date of the remedies hearing, at which these losses were calculated or the date of payment of the Interim payment relevant to the awards.

[77]The claimant has received an interim payment of £80,000.00. We have not been told the date on which the payment was made to the claimant. The respondent does assert that the claimant was offered the amount, but refused to accept it immediately. The amount was not paid in respect of any particular Case Number: 1401084/2021 15 head of claim, but the respondent noted that the claim was not earning and was incurring expenses for medical e treatment. We therefore attribute the whole amount to the loss of earnings medical expenses and psychiatric injury.

[78]The payment of an interim award was discussed at the case management hearing in the summer of 2023, and the Respondents statement that the interim payment would be offered was specifically intended to mitigate against the prejudice to the claimant of a delay whilst second expert was instructed. On the basis of the evidence we have, we have worked out interest on the basis that the interim payment was paid at the end of August 2023. If this is not correct, the parties may apply back to the ET for a reconsideration in respect of this matter, with suggested corrections to the calculations.

[79]The total amount for the 4 relevant heads of claim (psychiatric award; Loss of earnings and medical expenses) is £79,232.64. Therefore, the interim payment covers the sum of those payments, and we calculate interest for the period ending with the date on which we have determined the payment to have been made. Interest on injury to feeling

[80]The injury to feeling award is £33,000 +£825.00 ACAS Uplift = £33825.00.

[81]Interest is therefore calculated at 8% for the period from 31 October 2020 until 25 October 2023. This is a period of almost 3 years (less 6 days) .

[82]Calculation is (8/100 x £33825.00 x 2) +(8/100 x £33825.00 x 11/12) + ( 8/100 x 33825.00x 6/365) = £8162.48 Interest on loss of earnings

[83]The relevant period in respect of loss of earnings is the 1 January 2021 until 31 August 2023, or a period of 32 months. Taking the midpoint means that interest is payable for a period of 16 month, at 8% on a simple basis.

[84]The calculation is therefore (£27546.00 x8/100) + (£27546.00x 8/100 x4/12) = £2938.24 Case Number: 1401084/2021 16 Interest on Psychiatric loss

[85]The award for Psychiatric loss, with ACAS Uplift is £50,000.00 + 1250 = £51,250.00. The period for calculation of interest I the mid point between from date of discrimination, 31 October 2020 until payment of the Interim award, 31 August 2023. This means a period of interest of 17 Months.

[86]The Calculation is therefore (8/100 x £51,250.00) +( 8/100 x £51,520.0 x 5/12) =£5808.33. Medical expenses

[87]The relevant period for the medical expenses is the midpoint between the Date of discrimination and the Date of the payment of the interim award. Which is 17 Months.

[88]We find that the relevant amount of past medical costs is £1686.64. we make no award of interest in respect of the remaining medical costs as these are costs to be incurred in the future.

[89]The calculation of interest is therefore (8/100 x £1686.64) + (8/100 x £1686.64 x 5/12) = £191.15 Findings of fact and Conclusions on heads of claim The relevant medical records and expert medical reports

[90]The claimant has disclosed a large part of her medical records including parts which predate and post-date the merits hearing.

[91]Post hearing the claimant has received support for her mental health from the NHS and other professionals, attending video sessions and telephone sessions with mental health practitioners.

[92]In November 2022 one therapist recorded that the claimant was worried about her job and being able to contribute financially. She, the claimant, felt she had no control and wanted to know why she was treated the way that she was. She could not understand how anybody could be so unreasonable to Case Number: 1401084/2021 17 their employee and she wants to know why she was being treated differently to others. She also wondered whether or not she would be able to leave her job, but was not in a position to think about that whilst at the same time being unable to think what would happen if she was mistreated again. Whilst awaiting the outcome of the tribunal she had concerns about returning to her workplace, regardless what the outcome was, but at the same time she didn't want to have to leave her workplace because she did not want to have to relocate. The claimant was concerned about additional travel time, and the financial impact of that on her family.

[93]She asked why, after doing everything right am I ending up with all these things I don't know what to do. The claimant was recorded as reporting feeling very hopeless and stating that everybody else was suffering because of her. She was referred to a managing moods course for a period of six weeks from 28 November 2022 and she also took part in the I talk employment advice referral on the 23 November 2022.

[94]At a therapy session on 7 March 2023 the claimant reported feeling like a big burden on her husband as she was not doing anything around the house. She had stopped going out of the house and hadn't met people and felt unable to trust anybody. She reported having thoughts of ending her own life which she said were very on and off. She stated she was trying to resist the thoughts and that whilst she had intentions to act on the thoughts, her husband was there and he doesn't leave her. She says if her husband wasn't around, she doesn't know if she would act on her thoughts but she feels safe when she was with her husband.

[95]We find as fact that the notes record true statements from the claimant about how she was feeling at the time of the meetings.

[96]We do not have evidence as to how long the suicidal ideations lasted but we do find that in March 2023 at least the presence of the claimant's husband at home was an important factor in managing the claimant’s poor mental health. Case Number: 1401084/2021 18

[97]The claimant said that an escalating factor was the lack of repercussions for her line manager's actions, but also said that she did not wish to act on her thoughts because she had the responsibility for her children and she loved them and she did not want her family to suffer. We find this was true.

[98]The claimant had returned to work for a short period of time in May 2022 and had found the process extremely stressful and felt that she was being treated unfairly while she was at work. She had started another period of sickness absence. We find that second period resulted from the injury caused to the claimant and was the result of her feelings about her workplace. We find that the Respondent had tried to make reasonable adjustments for the claimant, but that the claimants mental health was too fragile for her to be ready to return to work. The cause of her second period of ill health was the discrimination and the impact that it had had on the claimant, and not the treatment of her when she returned.

[99]The claimant then attended a further occupational health appointment on the 5 May 2023 regarding her fitness to return to work.

[100]The consequent report stated that Dr Sharma remained unfit for work and that there were no adjustments that she could advise that would enable the claimant to return to work at the university. It was recommended that an agreement was reached regarding the claimant’s future employment at the university.

[101]The report notes that Dr Sharma was distressed throughout the consultation and that the exploration of workplace situation was distressing to the extent that the practitioner asked to speak to the claimant's husband who was then able to explain the background.

[102]We find that in May 2023 claimant was suffering with serious ongoing depression and anxiety symptoms, and that although her medication had been changed and she was on a maximum dose of the new medication, she was not getting benefits from it. She was on the waiting list at that time Case Number: 1401084/2021 19 for psychological therapy but there were no other therapies planned and she had not at that point being referred to specialist psychiatrists via the NHS. She was seeing a psychiatrist privately.

[103]Occupational Health recorded that Dr Sharma stated she had had no previous mental health problems and recorded that rather than the claimant having an underlying mental health condition impacting on her capacity for work, it was a situation where the workplace situation itself had the impact upon her mental health.

[104]This is also the view expressed by the subsequent experts and we find as fact that this was the cause of her mental health impairment and her subsequent illness and disability.

[105]The OH considered that psychiatric intervention may be helping to manage the psychological impact on her, and that it was unlikely that her health would improve until the workplace issue was resolved.

[106]The OH practitioner also stated that it was her opinion that returning to the university would be detrimental to the claimant’s health because it would be likely to further heighten her severe symptoms of anxiety and depression. The recommendation that an agreement is reached regarding her future employment at the university is repeated and it is stated that it is likely that the claimant would be covered by the Disability Discrimination Act (sic). The employment tribunal has no evidence before it of any steps that may have been taken to resolve matters in that way, but if any steps were taken, they were unsuccessful. The tribunal is aware that the respondent recognised its liability to the claimant was likely to be significant and has made an interim payment in respect of compensation to her prior to the remedies hearing.

[107]The view expressed is in line with the expert opinions and we accept this evidence. We note and find that the claimant had returned to work for a period of time and found the experience to be extremely stressful. The exit of Professor Rees from the organisation Case Number: 1401084/2021 20

[108]In April 2023 the claimant had been copied into a series of emails about the informal leaving drinks organised for Professor Rees.

[109]We find that the claimant found this extremely distressing and considered that the fact that an event was being organised showed that Mr Rees was leaving the organisation in a positive way despite the findings made by the employment tribunal.

[110]The nature of the emails suggests that a number of staff were getting together to a celebrate or say farewell to him, and we understand why the claimant, who was off sick following findings of discrimination by an employment tribunal, would find the emails and the implications within them to be distressing.

[111]However, we also observe that since the claimant remained employed it was not inappropriate for her to be copied into emails sent generally to a group. It might have been inappropriate, in fact, for her to have been removed from group emails.

[112]In addition, we find that these emails were the result of actions by individual members of staff who wanted to organise to say farewell to Professor Rees rather than anything organised by the respondents on a corporate basis. The employment tribunal makes findings of fact about the respondent’s actions in respect of Mr Rees which are set out below. The expert Psychiatric reports

[113]Following the promulgation of the employment tribunal judgment in November 2022 it was agreed between the parties that expert psychiatric evidence would be helpful to assist the tribunal in assessing damages and the parties agreed to instruct a joint expert.

[114]The expert appointed was Dr Arvind Kumar Gupta a substantive consultant in psychiatry with the Coventry and Warwickshire partnership NHS Trust. He saw the claimant on the 28 January 2023 and on the 4 February 2023 and produced a report dated the 1 March 2023. Case Number: 1401084/2021 21

[115]Doctor Gupta was asked to provide an opinion of the claimant's diagnosis and the claimant's prognosis and to explain the extent of her injury. If his diagnosis was that there was a personal psychiatric injury, he was asked to advise on whether the discriminatory treatment of the claimant by the respondent had caused any injuries.

[116]He was asked to what extent the acts of the respondent were believed to be causative; whether there had been any intervening act and to review the claimant's medical records. He was asked 116.1. to identify whether there was a pre-existing issue and 116.2. whether discriminatory treatment may have exacerbated the claimants pre-existing issue issues. 116.3. whether the claimant was displaying symptoms of burnout and 116.4. whether the resolution of the dispute provided the claimants the opportunity to return to work. 116.5. whether the time the claimant had off work had been reasonable and to advise when he considered the claimant would be able to return to work. 116.6. what recommendations if any could be made to assist the claimant to return to work and 116.7. whether if there was a psychiatric injury caused by the respondent, which made it likely that the claimant would suffer relapses in the future and if so to explain the likelihood of this occurring. 116.8. to comment on medical treatment received, whether it was reasonable, whether their recommendations had been followed by the claimant and whether she required further treatment. 116.9. how long further treatment would be required for and what the estimated cost of it might be; 116.10. whether the claimant would make a full recovery 116.11. whether she was likely to suffer ongoing mental health issues and if so for how long 116.12. whether there was a likelihood of deterioration after the proceedings. Case Number: 1401084/2021 22

[117]He was asked further questions about what the claimant might be able to do in the future; how her family relationships were likely to be affected and whether or not she would be considered to have a disability.

[118]In his report Dr Gupta recited findings of the employment tribunal and then set out the claimant’s psychiatric history. He reviewed her hospital records and noted chest pains due to work related stress following demotion from work in March 2021 and anxieties due to work on a number of occasions throughout the remainder of 2021 and 2022. In particular he noted she was very anxious facing her manager at the employment tribunal in October 2022 and that she was anxious about the tribunal outcome.

[119]He set out the claimant’s past psychiatric history and records that prior to these incidents the claimant stated that she had had no issues of concern.

[120]Dr Gupta diagnosed the claimant as suffering from an adjustment disorder, a prolonged depressive reaction, post traumatic stress disorder, and complex problems relating to employment and as a result of her being the target of perceived adverse discrimination and persecution.

[121]He stated that the impact of the trauma was severe and deep rooted. He said due to the nature and complexity of the stressful events and its long term effects on her personal social and occupational functioning Dr. Sharma is unlikely to recover completely. It is not possible to indicate the recovery in mental health in concrete figures.

[122]He concludes that her mental ill health was directly due to the behaviour of the respondent.

[123]He notes that there were no pre-existing issues and no pre-existing poor mental health. This is not in dispute between the parties.

[124]In respect of dispute resolution, he records that Dr Sharma felt relieved that she had been heard, but still felt that injustice or justice had not been bestowed on her. He notes that a justified resolution of the conflict is likely Case Number: 1401084/2021 23 to provide relief to Dr. Sharma but states it is unlikely that she will have a full recovery as the adverse events have affected her significantly have dented her confidence made her feel worthless and has taken her identity away from her.

[125]Regarding the return to work he comments that she would struggle to continue to work in the same environment if the respondent or other significant people continued to have influence.

[126]He considered it was highly unlikely on balance of probabilities that Dr. Sharma would to return to work in the same or similar environment as there will be numerous cues that will trigger anxiety and post traumatic symptoms . He suggested that triggers might be in the form of university environment; classrooms; students; colleagues; a similar looking manager or even subject books for example.

[127]He considered that the treatment she had received was reasonable and that the claimant had followed the strict treatment.

[128]Regarding future treatment for the claimant, he did not consider that Dr. Sharma would be able to return to the same level of work for the foreseeable future. It was unlikely that she could return to university Portsmouth in any role, even with treatment.

[129]Dr Gupta reported that the claimant had suffered adverse reactions two events at the university, and we have reminded ourselves of the findings which we have made as to liability. We remind ourselves that we made no findings of victimisation and dismissed those parts of the claimants claim. We remind ourselves that we are only concerned with injury and loss which flows from the acts of discrimination which we have found.

[130]In this case we take particular note of the conclusions that the discrimination caused the claimant’s injuries and psychiatric illness. We find as fact that this is right, and there is no dispute between the parties about this. We also find that the claimant was further affected by Case Number: 1401084/2021 24 returning to a workplace in which Professor Rees was still employed. We understand that following the liability judgment Professor Rees did leave the university and we make findings in respect of that elsewhere in this judgment.

[131]Dr Gupta thought she may struggle to work in academia as it would remind her of past problems, but that she may be capable of returning to part time paid employment at a lower scale in a couple of years. He considered there was a high possibility that she may never be able to return to the same level of work as she is in now.

[132]He noted the claimant was not functioning in her activities of daily living, and that she was not looking after the needs of her children and her husband was working part time from March 2019 to provide periodic support needed by Dr Sharma. He does not identify what that support is, or express any opinion as to whether it was necessary, or a choice of a concerned husband.

[133]In respect of post-traumatic stress disorder he sets out the international classification of mental and behavioural disorder ICD 10 as a delayed and or protected response to a stressful event or situation either short or long told term of an exceptionally threatening and catastrophic nature which is likely to cause pervasive desperate distress in almost anyone typical symptoms include repeated reliving of the trauma in intrusive memories, flashbacks and Dreams.

[134]Following receipt of this report it was agreed by the ET that the respondent could instruct a second expert, as there were some exceptional circumstances. The reasons for that decision were communicated to the parties at the time and are not repeated here. The respondent instructed Dr Paul Mallett, a consultant psychiatrist.

[135]The ET had borne in mind the different context in which the two reports are provided to the tribunal. That of Doctor Paul Mallett is produced Case Number: 1401084/2021 25 following instructions from the respondent alone, with no agreement about the questions to be asked.

[136]Dr Mallet states in his report that he has been asked to examine Dr Sharma and comment on her diagnosis; causation; her prognosis and in what respects and circumstances she might be able to return to work.

[137]He saw the claimant on the 22 May 2023 via a video link.

[138]Doctor Mallett states that he did not have a full set of medical records.

[139]His summary opinion was that the claimant had experienced an insidious onset of a severe depressive disorder since at least early 2023. He observed that currently it would prevent her from returning to work except in employment of a routine and repetitive nature. He also noted she had phobic anxiety about going out of the house and returning to her place of work. He suggested that absent the discriminatory events, she would not have developed any serious depressive disorder, although he suggests she might have developed a short term adjustment disorder in relation to her family events.

[140]He says that her depression has been treatment resistant despite the ET findings and suggests that a comprehensive fresh start post resolution of the ET case with specialist psychiatric follow up and the provision of expert psychological treatment will be required. If those things are done, he expects there to be substantial improvement in her psychological state and anticipates that she would be able to return to some form of academic post in tertiary education, although not at what she describes as her previous upward trajectory. He also accepts that she will be vulnerable to depression in the future and that there will be periods of time when she will not be able to work and function as previously.

[141]The relevant part of his conclusions are set out a paragraph 4 onwards in his report. Case Number: 1401084/2021 26

[142]First he recognises that the claimant will need a comprehensive fresh start in different employment in order to enable her to enjoy a substantial recovery. He recommends some specialist psychiatric follow up and suggests a number of sessions may be required. He acknowledges that the claimant had not responded to first line psychological treatment and recommended the provision of broad based CBT delivered by an experienced psychologist.

[143]His prognosis is that with treatment there could be unexpected and substantial improvement in Dr Sharma’s psychological state. He points to the removal of significant ongoing psychological stresses which should improve her prognosis.

[144]He considers that on balance of probability she should recover to the point where she will be able to return to some form of academic post in tertiary education although he does not consider it reasonable to expect her to return to employment with the respondent.

[145]He accepts that at the point of his report she was not capable of meaningful employment beyond the mundane and low level and accepts that she will be vulnerable in the future.

[146]He suggests that Dr Gupta 's language in describing the claimant’s symptoms as reliving the experience of the horrific trauma that she suffered at the hands of the respondent as melodramatic and not supporting the characterization of his subsequent symptoms as suggested of suggestive of PTSD type symptoms

[147]He does not agree that the claimant developed PTSD. He considered that the type of adverse employment situation as described by Dr Sharma and as found by the employment tribunal was not within the range of experience that would be considered to support a diagnosis of PTSD. In other words, he considers that the claimant does not meet the entry criteria for the disorder. Case Number: 1401084/2021 27

[148]He also takes issue with the alternative view expressed by Dr Gupta that the claimant is unlikely to recover completely. He suggests that if the claimant is suffering from an adjustment disorder, the removal of the stressful circumstances, by resolution of the legal case for example and alternative employment, that this ought to be enough to remove the underlying psychological reaction.

[149]He does not consider that the claimant has PTSD and therefore does not consider that she required EMDR treatment.

[150]Following the provision of the two reports Dr Mallett and Dr Gupta produced a joint report setting out the areas of agreement. These are summarised as follows. They agreed that 150.1. the combination of depressive and anxiety symptoms would make it difficult for Dr Sharma to undertake regular employment and both saw little prospect of her returning to her previous employment unless there was significant improvement. 150.2. absent the index event, her other family difficulties would have resulted in a temporary adjustment disorder lasting no more than a year and not causing any significant disability. Both agreed that the best prospect for improvement in doctor Sharma’s health was resolution of the legal case and a fresh start opportunity in relation to employment, coupled with some specialist psychiatric follow-up addressing her need for more complex drug treatment and some experts psychological help. 150.3. That Dr Sharma should improve substantially with that treatment, particularly once the case is resolved. Neither thought on balance of probability that she would return to her previous high level of functioning, but both agreed that she may be able to return to an academic post in an alternative university in the future. Both agreed that she would remain vulnerable to recurrent depression in the future and that episodes may have a temporary though Case Number: 1401084/2021 28 significant functional impact on her when they occurred. Both considered reasonable to estimate that she might experience such episodes every ten years or so.

[151]We accept and adopt the joint findings as findings of fact.

[152]We reject the contested conclusion of Dr Gupta that the claimant suffered from PTSD. We prefer the opinion of Dr Mallet in this respect. The reason for this, is that we find that Dr Gupta has given an opinion which is worst case scenario. Dr Mallet has given a much more optimistic prognosis. We all agree that despite this, the criticisms made by Dr Mallet of the diagnosis of PTSD are fair, and raise sufficient doubt.

[153]We find that the symptoms are not really in dispute, but the future impact on the claimant is. We conclude that the claimant, whilst suffering from the symptoms described and agreed by the experts, is not properly diagnosed as suffering with PTSD. This is of particular relevance to the level of psychiatric award, and injury to feelings, as well as our assessment of future loss of earnings.

[154]At its highest the evidence suggests this is a possible diagnosis. We conclude that the claimant has proved on balance of probabilities that this is the right diagnosis.

[155]One particular matter which we have considered is whether or not there is any basis on which we can conclude that the claimant may suffer a relapse of mental health, as suggested by Dr Gupta, as a result of seeing text books or materials related to her previous work, or by being in an academic environment of any type.

[156]We understand that this is a possibility, but find that it is at the extreme and we conclude that it is not a likely consequence but rather a possible one. We have therefore taken this into account when considering future employment, as a factor that may delay the claimant returning to a similar level of work, rather than one which would prevent it. Case Number: 1401084/2021 29 Relevant legal tests

[157]If an employment tribunal decides to award compensation, then it must be calculated in the same way as damages in tort (or in proceedings for reparation in Scotland) — S.124(6) in combination with S.119(2)(a) and (3)(a) EQA. The aim, as the EAT put it in Ministry of Defence v Cannock and ors

1994 ICR 918

, EAT (a sex discrimination case), is that ‘as best as money can do it, the applicant must be put into the position she [or he] would have been in but for the unlawful conduct’

[158]When assessing damages for discrimination this means that the tribunal must ask what position would the claimant have been in had the discrimination not happened.

[159]This exercise inevitably involves the tribunal speculating about what might have happened and considering unpredictable factors.

[160]We remind ourselves that the claimant is entitled to be compensated for losses or harm caused directly by the act of discrimination. See Essa v Laing Ltd

2004 ICR 746

, CA,

[161]We also bear in mind that the eggshell skull principle applies to losses arising from discrimination. This means that the discriminator takes the victim as they find them and that they will therefore be liable for damages even if the loss or damage suffered by a claimant in a particular case is significantly worse than loss or damage suffered by a claimant in other similar types of case. We also remind ourselves that there are no upper limits on the awards that unemployment tribunal can make. The principle is that we must compensate in full for the loss suffered. This means that we must assess what losses of earnings or injury to feeling can be set to flow from the discrimination rather than considering what it might be fair or just to award. Injury to feelings Case Number: 1401084/2021 30

[162]The concept of the injury to feeling award was summarised in Vento v Chief Constable of West Yorkshire Police (No2)

[2002] EWCA Civ 1871

[2003] IRLR 102

, as: An injury to feelings award encompasses subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[163]In trying to understand the nature of what injury to feelings means, understanding the differences, similarities, overlap and boundaries with psychological injury can be helpful.

[164]In Essa v Laing

[2004] IRLR 313

CA, per Pill LJ, the Court of Appeal considered the relationship saying: - 41………..Injury to feelings will most frequently occur, of course, without there being a psychiatric illness but both may result from the conduct complained of. They are different, as stated by Stuart Smith LJ in Sheriff, but they are not, in my judgment, different kinds of damage in the sense contemplated in cases such as Hughes. Loss of earnings

[165]When considering future loss of earnings, the tribunal is likely to have to engage in an exercise of speculation based on the tribunal's assessment of the claimant, including her attitude and her abilities and the relevant job market. (see Griffin v Plymouth Hospital NHS Trust

2015 ICR 347

, CA)

[166]In Atos Origin IT Services UK Ltd v Haddock

2005 ICR 277

, EAT, the EAT summarised the main principles governing the assessment of future loss. They are: 166.1. unless a future loss is certain to occur or a chance that it will not is so small that it can be disregarded, the chance that it will not occur must be allowed for; Case Number: 1401084/2021 31 166.2. as in personal injury cases, the ordinary contingencies of life must be allowed for; 166.3. credit must be given for acceleration of receipt; 166.4. compensation will be assessed on the footing that the claimant will take reasonable steps to mitigate his or her loss. The award will be abated by the amount by which the loss would be reduced if he or she were to do so; 166.5. subject to two well-established exceptions, the claimant is not entitled to compensation for a loss which will in fact be avoided. The exceptions are that payments resulting from the benevolence of third parties and from an insurance policy for which the claimant has paid or contributed to the premiums are not to be taken into account; 166.6. to the extent that it is uncertain that a loss will be avoided, the chance that it will be, must be estimated and appropriate credit given.

[167]When assessing future loss of earnings, we remind ourselves that we must consider any benefits and bonuses that might relate to the relevant employment. In this case we are told that the claimant has suffered loss of earnings and pension loss. We are also told that there is an associated benefit for loss of employment which we address below.

[168]In calculating future loss of earnings we must consider the chance that the claimant, but for the discrimination, would have continued in her employment until retirement . This requires the assessment of a chance based on the material which is available to the employment tribunal at the time. See for example in Vento v Chief Constable of West Yorkshire Police (No.2)

2003 ICR 318

, CA since such an assessment of chance involves a forecast about the course of future events, it should not be approached as if the tribunal were making a finding of fact based on a balance of probabilities. Case Number: 1401084/2021 32

[169]In Wardle V Agricole Corporate and Investment Bank

2001 ICR 1290

, the Court of Appeal gave further guidance as to the approach to be adopted in assessing future loss of earnings.

[170]In summary as set out in Harvey on industrial relations and employment law, division L 881.01 it states as follows: 170.1. Where it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, ( ET emphasis) rather than on a career-long basis, and awarding damages until the point when the tribunal is sure that the claimant would find an equivalent job is the wrong approach; This is a key point for our calculations and we have reminded ourselves of it when calculating future losses of earnings , as set out below. 170.2. In the rare cases where a career-long-loss approach is appropriate, an upwards-sliding scale of discounts ought to be applied to sequential future slices of time, to reflect the progressive increase in likelihood of the claimant securing an equivalent job as time went by; 170.3. Applying a discount to reflect the date by which the claimant would have left the respondent's employment anyway in the absence of discrimination was not appropriate in any case in which the claimant would only voluntarily have left her employment for an equivalent or better job; 170.4. In career-long-loss cases, some general reduction should be made, on a broad-brush basis (and not involving calculating any specific date by which the claimant would have ceased to be employed) for the vicissitudes of life such as the possibility that the claimant would have been fairly dismissed in any event or might have given up employment for other reasons.

[171]In assessing future loss, a tribunal will have to make decisions about the chances that employment would have continued had the discrimination not Case Number: 1401084/2021 33 taken place. It is important that this is done by calculating the percentage probabilities, and not on a simple balance of probabilities. That approach was endorsed by the CA in Vento v Chief Constable of West Yorkshire Police (No 2) (see per Mummery LJ at [32]–[33]) ,

[172]In this case we conclude that the claimant would have been highly likely to remain in employment with this employer for the remainder of her working life, at a 70% chance.

[173]We remind ourselves that it is only appropriate to award career long loss if we consider that the claimant’s chances of obtaining alternative employment in the future are slight or non-existent. We remind ourselves that career long losses can be awarded, but that cases in which they are awarded are likely to be exceptional. In Wardle v Crédit Agricole Corporate and Investment Bank

2011 ICR 1290

, CA, Lord Justice Elias (who also sat in Chagger) held that future loss should only be assessed over a career lifetime in rare cases — where a tribunal considers that an employee has no prospect of ever finding an equivalent job. In most cases it will be fair to assess loss up to the point where an employee would be likely to obtain an equivalent job. In this case, we have assessed the claimant’s chances of obtaining future employment at the equivalent to a grade 9 position as being highly likely after 10 years. We therefore conclude that her losses end at that point.

[174]In Abbey National plc and anor v Chagger (above) emphasised that where, on the evidence, a tribunal is satisfied that there is some prospect that a non-discriminatory course would have led to the same outcome — for example, where it is likely that the claimant would have fairly been made redundant had he or she not been dismissed for discriminatory reasons — the tribunal must reflect that possibility by making an appropriate percentage reduction to the overall sum for future loss. There was no evidence before us that the claimants employment would have ended other than by retirement, had it not been for the discrimination. There was no evidence of any other health conditions or any other reasons why the claimant would not have continued working to retirement Case Number: 1401084/2021 34 and her evidence was that she would do so. We find that this was her in intention and that it was highly likely given her strong commitment to and enjoyment of her work.

[175]In Wardle v Crédit Agricole Corporate and Investment Bank (above) the Court of Appeal held that a reduction from the overall award for future loss should also be applied to reflect the uncertainties and vicissitudes of life (such as the possibility that the claimant would have been fairly dismissed in any event or might have given up employment for other reasons). That is, however, a general reduction calculated on a broad-brush basis: it does not involve calculating any specific date by which the claimant would have ceased to be employed.

[176]Where an award is made in respect of financial loss which results in an upfront and lump sum payment it is usual to apply a discount rate to take into account the benefit to the claimant of having received the sum of money early. This is based on the assumption that the money received will be invested and can be used to yield growth. This is referred to as accelerated receipt.

[177]The question of what rate will be relevant has been considered by the EAT.

[178]In Benchmark Dental Laboratories Group Ltd v Perfitt EAT 0304/04 the EAT considered the appropriate discount rate. The EAT pointed out that the rate prescribed for use in personal injury cases was set at that time by the Lord Chancellor pursuant to S.1 of the Damages Act 1996. The Damages (Personal Injury) Order 2001 SI 2001/2301 then prescribed 2.5 per cent as the assumed rate of return on investment of awards of personal injury damages. Although employment tribunals were not bound by this discount, (our observation) the EAT observed that it would be good practice for them to adopt it. Case Number: 1401084/2021 35

[179]For the purposes of this case, the relevant provisions( the Damages (Personal Injury) Order 2019 11/26, set the discount rate at -0.25% from August 2021. This means that any award would in effect be increased. We observe that in a discrimination claim we should apply a discount rate appropriate to our jurisdiction and we also observe that we are not bound by this figure. We take this into account however and address the matter above and below in our findings of fact and conclusions. Aggravated damages

[180]The claimant has made a claim for aggravated damages and referred us to HM Land Registry v Mcglue 2013 EQLR 701.

[181]In that case the court stated that the distress caused by an act of discrimination may be made worse by being done in an exceptionally upsetting way. The examples are of high handed, malicious, insulting or oppressive behaviour, or that which is motived by conduct based on prejudice, animosity spite or vindictiveness. Such behaviour is likely to cause more distress, provided the claimant is aware of the motive.

[182]Conduct of a party at trial where a case is conducted in an unnecessarily offensive manner or a serious complaint is not taken seriously or there has been a failure to apologise the example might also be grounds for making an award of aggravated damages. (see for example Prison Service v Johnson; HM Prison Service v Salmon

2001 IRLR 425

and British telecommunications v Reid

2004 IRLR327

[183]The court reminds us that the categories are not exhaustive and the emphasis is one of degree. Pension loss

[184]Guidance on calculating compensation for pension loss in employment tribunals, ‘Employment tribunals — Principles for Compensating Pension Loss’ (4th edition, 2017), was published, along with Presidential Guidance issued jointly by the President of Employment Tribunals (England and Wales) and the President of Employment Tribunals (Scotland). This edition was most recently revised in March 2021. Case Number: 1401084/2021 36

[185]The addendum to the Presidential Guidance states that ‘the Presidents expect that Employment Tribunals will have regard to the current version of the Principles when calculating compensation for pension loss.’ However, although the original tribunal guidelines were generally approved by the EAT in Benson v Dairy Crest Ltd EAT 192/89 and guidance on assessing pension loss has been gratefully adopted by tribunals, it should be stressed that the guidance remains only guidelines and, as such, has no statutory force.

[186]In Bingham v Hobourn Engineering Ltd

1992 IRLR 298

, EAT, the Appeal Tribunal held that the tribunal did not commit an error of law when it failed to follow exactly the scheme recommended in the then extant guidelines. Mr Justice Knox said the booklet was a ‘valuable guide’ but added that the factors in each case should be evaluated to see what adjustment should be made or whether, in the circumstances, the guidelines were a safe guide at all. The Court of Appeal has since reiterated that ‘it should not be assumed that [using the tribunal guidelines] will be the correct approach in every case’ . ( See Griffin v Plymouth Hospital NHS Trust (above).

[187]In Greenhoff v Barnsley Metropolitan Borough Council

2006 ICR 1514

, the EAT held that an employment tribunal had erred by failing to explain why it had adopted the approach it had, in preference to either of the approaches set out in the then guidelines. In so holding, the EAT suggested that tribunals could avoid many of the problems that arise in such cases by: 187.1. Identifying all possible benefits that the employee could obtain under the pension scheme; 187.2. Setting out the terms of the pension scheme relevant to each benefit; 187.3. Considering in respect of each such possible benefit, first, the advantages and disadvantages of applying the respective approaches set out in what are now the tribunal Principles, and, secondly, any other approach that might be considered appropriate by the tribunal or the parties Case Number: 1401084/2021 37 187.4. Explaining why it adopted a particular approach and rejected any other possible approach; and 187.5. Setting out its conclusions and explaining the compensation arrived at in respect of each head of claim so that the parties and the EAT can then ascertain if it has made an error.

[188]In this case as explained in the body of the judgement the tribunal have been provided with two very different actuarial reports in respect of pension loss and differing approaches to the calculation of future loss of earnings.

[189]With regards pension loss we agree that our starting point should be the presidential guidance. The pension calculation in this case is not a simple calculation, it is properly characterised as complex. The reasons that the employment tribunal determines this are set out in the body of the judgement. We have therefore reminded ourselves of the seven steps model set out in the guidance and relevant to a complex case such as this one, where the pension losses derive from a final salary and a career average scheme. Findings of fact and conclusions regarding heads of claim. Injury to feeling

[190]We have heard evidence from the claimant herself about how the discrimination has impacted upon her and we have heard evidence from the claimant 's husband Mr Sharma about the impact upon his wife and their family.

[191]We have heard evidence of the impact that the discrimination has had on the claimant's health, from 2 experts as referred to earlier in this judgment, and we consider an award in respect of psychiatric injury separately to injury to feeling. The medical reports; the doctor's notes and the observations of occupational health all provide further evidence of how the Case Number: 1401084/2021 38 claimants feelings have been injured, which have assisted us in assessing the correct level of award in this case.

[192]Prior to the discrimination, the claimant’s expectation was that if she worked hard and treated people well, she could expect to succeed and to progress in her career. We find that this fundamental life view has been shattered, by her realisation, over a period of time and culminating with our judgment, that she could be held back and have career chances destroyed because of her race.

[193]We find that her confidence about her place within her community and her pride in her work and her status have been severely affected. We accept the claimant's evidence and the evidence of Mr Sharma, and the evidence of medical advisors that one impact of discrimination in this case is that the claimant finds it very hard to leave the house because of her concern about meeting people she knows and having to explain again what has happened.

[194]The claimant clearly loved her work and was rightly proud of her achievements. She wanted to progress further and we accept that she is upset at the loss, for now at least, of career opportunities. We also accept that this is not simply a concern about loss of income although that is part of it, but is about loss of status and loss of meaningful and satisfying work.

[195]We also accept the evidence from the claimant and from Mr Sharma of her loss of enjoyment of her family, and her difficulty in assisting and contributing to family life.

[196]Whilst the hurt that the claimant has experienced was not immediate, once she started to think that her race was a factor, she became very upset and has continued to feel extremely hurt throughout the internal grievance procedures and throughout the court proceedings.

[197]Following the determination of liability and the findings that she had been discriminated against on grounds of race, we accept that the injury to her feelings has continued and have not improved since receipt of the Case Number: 1401084/2021 39 judgment on liability. We also conclude that separately, her health has been damaged.

[198]We find that she has suffered hurt feelings from the point that she raised her initial grievance with the respondents up until at least the point of the remedies hearing. We anticipate that she is likely to continue experiencing feelings of hurt for a significant time to come and we anticipate that the effects of those hurt feelings, being related to the loss of enjoyment in family life and the loss of enjoyment of a career, are likely to last for some further time whilst the claimant receives more intensive medical help and support. Aggravating factors and Aggravated damages

[199]We have considered whether or not there are any aggravating factors should impact on the level of award we make for injury to feelings, or alternatively whether we should make any separate award for a prior to aggravated damages. We have considered this before determining what that award should be.

[200]The claimant refers to matters which have occurred after our judgment was made in this case. We reminded both parties that these matters are not the subject of the judgment. They are not matters which flow from the discrimination and we have heard no evidence about them, because there is no claim before the ET in respect of them. These matters may well have upset the claimant, but we cannot make any finding about why things happened or whether the claimant was treated fairly unfairly or otherwise. These matters cannot be the foundation of a claim for aggravated damages.

[201]Whilst we have ignored events which took place after the acts of discrimination we have found, we have considered whether or not there are any factors which might have had an aggravating impact on the Claimants injury to feeling. The claimant has referred to the way Mr Rees was treated by the university, for example. Case Number: 1401084/2021 40

[202]We have heard evidence from Fiona Hnatow. She was appointed in April 2022 as Chief People Officer and gave evidence as to the steps that the university has taken and continues to take as a result of the issues raised by Dr Sharma and the lessons learned from the judgement. We accept her evidence as a true statement of actions taken by the university since the claimants claim, but do not accept that all of them were the result of the claimants claim to the RT. None the less we do accept that the Respondent has made a serious effort to address the criticisms and findings of the tribunal.

[203]In her witness statement she says on behalf of the university I would like to apologise for the conduct found to have been unlawful and for the impact this has had on D. Sharma and her family. There are no excuses for race discrimination at the university and we recognise and accept the strength of the tribunal's judgement.

[204]She confirms and we find as fact that Mr. Rees is no longer employed by the university. She states that whilst he was initially appointed to the head of school position in July 2022, as a direct result of the employment tribunal hearing and judgement he was asked to step down from a leadership role. He then left the university early in March 2023 with a confidential agreement. We find that this is what happened.

[205]She also states and we accept, that whilst there were some steps taken to bid him farewell this was a matter for him and his friends and was not a university endorsed event.

[206]She told the tribunal and we accept that following a restructure of the OSHRM subject group in the summer of 2022 there are now 4 associate head roles, including academic students; global and associate head and research and innovation.

[207]We accept her evidence that training for managers who have responsibility for hiring staff has been improved and we also accept her evidence that Case Number: 1401084/2021 41 training in respect of unconscious bias commenced in the autumn of 2022 for staff. We also accept evidence but that all colleagues are being trained in something called positionality training, which looks at the experiences and beliefs and identities of others in order to tackle potential biases and shape how individuals understand and engage with other people,

[208]We note and accept as fact the development of an inclusive leadership programme with a strong focus on equality and diversity and note that nearly 800 colleagues have already taken part in the programme, including all members of the university executive board. We accept that this started in 2022 and find that this is an important process.

[209]Perhaps of key importance is the fact that use of the five year fixed term contract for heads of school and associate head positions has now ceased. When fixed term contracts which are still in existence come to an end, the roles will be recruited to on a permanent basis, following a robust, closely managed selection process. We accept that this is the intention of the Respondent. We also find that head of school roles must now be externally advertised.

[210]We also find that the university has restructured the academic operating model, introducing more deputy roles into the structure.

[211]We accept the evidence that voluntary diversity champions have been created to work across faculties and professional service departments and form part of all selection panels. The role is to promote equality across the institution and the remit is being reviewed by a newly appointed head of equality and diversity.

[212]We accept the evidence that there has been a change in recruitment and selection with human resource is taking on a more hands on approach. We find that there has been a new equality and diversity team set up within human resources, Case Number: 1401084/2021 42

[213]Whilst some of the matters described to us appear to be developments which the university would have pursued in any event, we accept that a significant amount of work has been done at the university of Portsmouth in order to address the shortcomings identified and raised by Dr. Sharma in this employment tribunal process.

[214]Having considered the facts in this case and having considered the legal parameters in respect of aggravated damages, and the case law referred to particularly by Mr Sharma in his submissions, we all agree that this case is different in a number of key respects from the case law we have been referred to him.

[215]First, the Respondent did take steps under its disciplinary process in respect of Professor Rees following the Decision of the ET.

[216]Secondly an apology has been given, all be it in the course of the remedies hearing. It is an apology set out in a witness statement made on behalf of the university.

[217]Thirdly the respondent clearly has taken significant steps to address issues of equality and diversity in the months following on from the claimant bringing her claim and the tribunal giving its decision.

[218]The claimant in this case claims £15,000 for aggravated damages. We remind ourselves of the reason why aggravated damages can be awarded and also remind ourselves of the difference between aggravated damages, and costs for unreasonable conduct, and aggravated damages and the ACAS uplift.

[219]In this case we are making an award in respect of ACAS uplift because of the conduct of the respondent in dealing with the claimant’s complaints and grievances. The Respondent has agreed to make a payment in respect of costs on the basis that there was some unreasonable behaviour in the way that the case was dealt with. Case Number: 1401084/2021 43

[220]We have made an award for the claimant’s injury to feeling and for the psychiatric illness.

[221]This is not a case where the behaviour of any party has been so unreasonable as to warrant an additional award for aggravated damages.

[222]This is not to underplay the seriousness of the treatment of the claimant or its effect on her, but we all agree that the levels of award we are making made reflect the seriousness with which we view the treatment.

[223]We make no award in respect of aggravated damages. Value of an Injury to feeling

[224]The respondent values the claimant’s injury to feeling award at £30,000, being the top end of the middle band of the updated rates. The claimant asserts that injury to feeling should be awarded at the top end of the top band of the Vento guidance.

[225]Focusing on the hurt feelings rather than the psychiatric illness, our findings are that the claimant was undermined and unsupported over number of years, whilst other white colleagues received support and mentoring from the same manager. This, coupled with the university’s failure to respond properly to her complaints, or to challenge the outcomes of an internal recruitment process, and an unwillingness to accept the possibility of race discrimination, conscious or unconscious as an explanation for an unusual outcome, led the claimant to a realisation that she would not get anywhere and that the reason was her race. The point when she realised that it was nothing to do with her abilities, but her race, was really hurtful and shocking to her. We think that the failure by the university to ever challenge or even look at the reasons for Mr Rees not progressing the claimant, or asking why acted as he did was also hurtful to her.

[226]She raised a legitimate concern, and despite all their policies and statements of intent regarding race discrimination, they failed to ever give Case Number: 1401084/2021 44 any real credit to her case. She had to struggle through a complex and difficult ET case, with no legal support, and a respondent who, we have found was, at times, uncooperative in respect of disclosure.

[227]We also accept her evidence and that of her medical experts and the OH adviser, about the impact on her feelings about her work, and the hurt at the loss of a profession that rightly gave her pride and standing within her community. We accept the claimant's evidence that she has felt unable to leave the house because of concerns that she may have to explain the situation to somebody else and that she feels ashamed that she has not been able to deal with it.

[228]We emphasis to the claimant that she is the victim of discrimination. She is not at fault in any way. The responsibility for her ill health and the injury to her feelings lies with others. However, we recognise and accept that her feeling of responsibility for pain and suffering to her family are genuine and understandable.

[229]We accept the claimant’s evidence and the expert evidence from both medical experts and the OH, of serious and long lasting injuries to her feelings which are separate and different to the severe psychiatric injury which she has also suffered.

[230]The injury to feeling award we make does not therefore take into account the psychiatric injury but addresses the hurt feelings and the immediate impact upon the claimant of not only the treatment by Mr Rees, but also his failure to knowledge or even question his own failings, even when confronted with them. Our award for injury to feelings also takes into account of the hurt to the claimant of the institution itself failing to recognise or acknowledge the possibility that a senior white academic may (and we find did) have behaved unfairly and in an unconsciously racist way towards a more junior Asian academic.

[231]Whilst this was not overt or conscious discrimination Dr Sharma has lost important years of her academic and family life which she may never fully recover from. Case Number: 1401084/2021 45

[232]The fact that the discrimination was not intentional or deliberate in this case, does not reduce the level of hurt experienced by the claimant. Unconscious bias is pernicious and destructive and the claimant was entitled to assume that Senior members of academic institutions would behave with scrupulous fairness and have an awareness of the possibility of their own potential biases.

[233]Based on the findings of fact as set out above and having taken into account the legal principles set out in Vento and other case law as set out in the section on legal principles, we conclude that the correct level for this award is £33,000.00. Psychiatric injury

Award

[234]The claimant also makes a claim for an award in respect of psychiatric illness. We have therefore considered the injury to her health and have also considered future prognosis as this is relevant both to the question of future loss of earnings and future pension loss. Future prognosis for Health

[235]Dr Sharma wants to recover but cannot see a way forward.

[236]Dr Gupta says at 11.8 that Dr Sharma will not recover fully but accepts that the justified resolution of proceedings will provide relief.

[237]He says once well she will struggle to work in the same environment, If the respondent and others continue to influence. All agree that she is not likely to be able to return to work at Portsmouth university, Mr Rees has now left the university, significant changes have been made to the structure and lessons, we are told have been learnt. She is likely to be disabled under the Equality act 20201 and adjustments would be required.

[238]He says that his view is that she will be highly unlikely to return to work at Portsmouth even with reasonable adjustments as concerns about triggers. Case Number: 1401084/2021 46 He also considers chances of recurrence of her impairments and symptoms are high, and suggests triggers can be the university environment and the classroom, colleagues subjects, books. Says highly unlikely to work in a similar role or environment in the foreseeable future. We note that he wrote his report in March 2023, following an assessment in January 2023, and 4 Feb 2023.

[239]We agree with the respondent and Dr Mallet, that at points Dr Gupta is florid in his language and descriptions, and we agree that he has reported on what appears to be a very worst-case scenario. We respect that this is a genuine medical opinion, but all agree that it appears without any real explanation to take the very worst view possible of outcomes for the claimant.

[240]Dr Mallik in, contrast, appears to us to take a much more optimistic view of events. The claimant criticised him for being dismissive, and we find that this report gives a very best scenario. Again, we accept that this is a genuine medical opinion, but whilst Dr Gupta was overly pessimistic we consider Dr Mallett to have been overly optimistic .

[241]We consider that the utility of the two reports, is that it shows us a wide range of possible future outcomes and progress and expectations for Dr Sharma.

[242]The diversity between the two points underlines to us a very real difficulty in predicting with any degree of accuracy the possible outcomes in this case of the psychiatric illness.

[243]The main finding that we take from the two medical reports is that whilst there is a degree of overlap and agreement when it comes to prognosis the outcome in the short to medium term could be anything from a near full recovery to no recovery at all.

[244]In addition to the reports for the two experts we have also been referred to medical reports from the claimant’s treating psychiatrist. Case Number: 1401084/2021 47

[245]Doctor Chawla is the individual who has seen the claimant on the most regular basis and most recently. We accept that he is not an expert in the same way as the two experts that we have reports from, and of course he has not prepared an expert report or been asked the same questions that the two medical experts have been asked, nor has he given live evidence. What he has done is write notes on a contemporaneous basis, and we have found his recorded opinions helpful to our deliberations because there are points where his opinion fits well with the view of the two other experts. In effect his views are helpful as a counterpoint, or as a check, where our findings of fact are different either to that of the agreed expert or that of Dr Mallett. Where the two experts were in agreement, we have, as indicated earlier accepted their joint conclusions.

[246]In summary in assessing the medical evidence before us, we have taken particular account of the joint report, and the areas of agreement. Where there is disagreement between the experts and where that disagreement is significant, we have taken into account the claimant 's own evidence and we have also taken into account other medical evidence we have in front of us including that of Dr Chawla the claimants treating psychiatrist.

[247]On the basis of all the evidence we conclude as follows

[248]No one thinks that the claimant can return to Portsmouth university at the moment or in the foreseeable future.

[249]The reason for this is the discrimination she has suffered, and the consequential damage to her health, which has left her particularly sensitive to any issues involving the Respondents.

[250]Further we observe that none of the claimant’s medical advisors consider that she could return to work at Portsmouth university unless there were significant and proper reasonable adjustments made for her. Case Number: 1401084/2021 48

[251]We have asked ourselves whether or not the claimant would be able to return to work at Portsmouth university at some stage in the future with effective and appropriate treatment.

[252]Both experts consider that with time the resolution of the proceedings and appropriate medical intervention the claimant has good prospects or a reasonable recovery. Both experts agree that the claimant will remain vulnerable to future episodes of psychiatric illness.

[253]Whilst the difficulty of her returning was initially focussed on the presence of Mr Rees, the manner in which Mr Rees was perceived by the claimant to have exited the organisation and the distress caused to her by being included in correspondence about arrangements made to mark his leaving, and the claimant’s evidence about her distress and hurt regarding other people's progression within the department compared to her own, lead us to conclude that it is highly unlikely that the claimant will return to work at Portsmouth university at all. We have evidence before us that the claimant did attempt to return to work with reasonable adjustments, which was not successful and led to a further period of sickness absence Doctor Sharma has not returned to work since then.

[254]Looking at all the evidence including the claimants own reaction, we conclude that it is highly unlikely that the claimant will be able to return to work at the respondents within the foreseeable future and we have therefore discounted that as a possibility.

[255]Whilst she remains employed at the point of the hearing, she is receiving no pay from the respondent and whilst she could still return to work with the respondents with adjustments, in reality we do not consider that she will do so.

[256]We do however consider that the claimant will be able to return to work at some point in the future, provided that she is able to access proper medical support once her claim to the employment tribunal and the damages she is entitled to in respect of discrimination are determined and Case Number: 1401084/2021 49 the matters finalised. We agree with all medical experts that until these proceedings are concluded the claimant will find it difficult to start to recover in any real way.

[257]We consider that the diversity in the views of the experts as to the impact and future impact off medical support is indicative of one being overly optimistic and one being overly pessimistic.

[258]We all consider that it likely, on the basis of the evidence, including her own view of her future abilities, that if the claimant is able to receive consistent and appropriate medical support over a reasonable period of time that she will be able to recover sufficiently to return not only to low grade work but to more meaningful better paid work, of the type that she was doing previously at Portsmouth university.

[259]The reason for this is that the removal of the stress of the employment proceedings and the confirmation of the damages award will enable the claimant and her husband to focus on recovery rather than litigation in the first place.

[260]Both experts have expressed the opinion that the different and more intensive medical intervention and treatment, over a period of time, will have a reasonable a chance of assisting the claimant to recover to some extent. Both agree that she will be able to return to work first on a part time and basis and in some non-challenging work, but longer term, into more challenging work. The level of work and the type of work, the time it will take and the type of medical support required varies significantly between the experts, but each agrees that these are the elements that the claimant required to have a chance of recovering sufficiently to be able to return to work

[261]We have therefore looked at the recovery of her health and the ability to return to work. Case Number: 1401084/2021 50

[262]We all agree that the Claimant will require significant and intensive support and treatment to recover. We note that the impairment she has is persistent and long term and to date , despite the claimant cooperating and wanting g to recover, it she has not recovered to any great extent. We all agree that it is likely to take more time than Dr Mallet predicts, and require more assistance and intervention than he predicts, and less time than Dr Gupta predicts and with a more hopeful outcome than he predicts.

[263]In order to return to the workplace, she will have to apply for, be short listed and then selected for another job. Everyone who had given evidence has said that the academic work is competitive. At the level the claimant was working it is highly competitive. The claimant will go back into the employment market having had 3-5 years out of work, suffering with a serious condition which is likely to recur at some point, She has made a successful claim to the ET which has been widely reported. She is 41. If she is not able to return to the work place for another 2 years, she will face an inevitable disadvantage, having lost several years of impetus, knowledge and contempory learning. In reality she will face an uphill struggle even without the extra worry of her own health.

[264]We recognise that the claimant will return to a workplace facing strong competition and that despite all her academic achievements, is likely to be disadvantaged in the long term because of the discrimination she has suffered.

[265]Having said that, we conclude that there is a strong probability that the claimant’s health is likely to improve post resolution of this case, and with the treatment that she is already receiving and that she will continue to receive. We set out the awards we make for the cost of that future treatment below. We all agree that the claimant should have as much opportunity to receive treatment as possible in the shorter term in order to assist her in recovering in the longer term.

[266]We conclude that the rate of recovery will be somewhere between Dr Gupta’s pessimistic predictions and the optimism of Dr Mallet. Case Number: 1401084/2021 51

[267]We agree with Dr Gupta’s analysis that the recovery is most likely to be partial, and we conclude the claimant will not be in any position to start looking for alternative work until she has had some intensive treatment following determination of these proceedings. We conclude that by the end of 2025, the treatment set out in the two reports and described by Dr Chawla, has a likelihood of success. That is, we all agree that over the course of two years, the claimant’s health is likely to improve significantly, so that by the end of 2025, she is likely to be in a position to start looking for some work, albeit not at the academic level that she was at prior to these events.

[268]We conclude that at that point, the claimant will first need to return to work on a part time basis only and we consider that she will need at least 18 months of part time working to be able to re familiarise herself with the workplace and rebuild her confidence.

[269]During that period of time and for the foreseeable future, she is not likely to earn anything like the salary she was earning at the Portsmouth university.

[270]We agree that the claimant may be able to earn a salary of FTE £25-30,000.00 on return to the workplace. This takes into account her skills and the likely increases in pay rates over the next few years, and also takes account of the minimum wage. We consider that her earnings would be, on balance of probabilities, in the region of £13,000 per annum net, on 1/2 time basis.

[271]We consider that at the end of that period of time, with greater confidence derived from being able to return to the workplace in some capacity, with time and distance from these events and with the benefit of intensive medical intervention, it is likely that the claimant could return to the workplace in a post equivalent to a grade 8 post. Case Number: 1401084/2021 52

[272]We think that she will either be able to return to work in a different academic institution or in a related field, using her skills and experience and expertise. We observe that the claimant has significant skill and expertise, and that in her previous working life she was clearly dedicated and tenacious. We all agree that with her skills and abilities she will be a desirable employee and that in the current economic climate that she would be able to find suitable work within a reasonable period of time.

[273]We therefore conclude that following a period of time working at a lower rate of pay in less challenging work, she would be able to return to work with earning potential of the equivalent of a grade 8 post in a further two years, after 18 Months of part time lower level work. This means a return to work at about a grade 8 post or equivalent by the end of 2027.

[274]The Claimant would, but for the discrimination, have been working at a grade 9 post and we have considered how likely it is that she could return to a grade 9 post or an equivalent at some point in the future.

[275]We have also considered, the likelihood of the claimant being able to return and achieve similar career progression as she might have achieved had she remained working at Portsmouth university and absent any discrimination.

[276]In the past the claimant continued to work at a senior level despite a number of challenging life events including the death of a parent and the serious illness of a child. Of course, we recognise that the claimant did not at that point have a psychiatric disability.

[277]However, from the findings of fact we made in the liability judgement, the claimant retained and delivered a senior academic position despite not receiving support and being discriminated against by those who should have been supporting and encouraging her.

[278]It seems likely that with proper support and encouragement the claimant could do extremely well. If she returns to work in the future with a Case Number: 1401084/2021 53 supportive management structure, there is every chance that she will not only gain career satisfaction but will also progress within her chosen career.

[279]We all accept that this is to a great extent, an exercise in speculation. We are guided primarily by two medical experts who do not agree on the detail but who both agree that there will be a point in the future when the claimant is expected to have recovered sufficiently to be able to contemplate returning to similar employment.

[280]We do not think that the claimant will progress as quickly as she has previously, but we do consider that the removal of the stress of the employment tribunal and the distance of time and with her academic background and her obvious abilities we conclude there is at least a 50% possibility that the claimant could return to a grade 9 post within 10 years.

[281]Therefore our conclusion is that there is a 50% chance of the claimant returning to work at a grade 9 post on a full time basis, within 10 years, that is by 2035.

[282]On that basis we find that the strong percentage chance is that the claimant will return to a grade 9 post by the end of 2035.

[283]Taking into account the evidence of the medical evidence and the difficulties that we have already outlined, and the competitiveness of the academic field relied upon by the respondents, we find it highly unlikely that the claimant will now progress beyond a grade 9. The claimants possible career trajectory absent discrimination.

[284]The claimant asserts that had she remained in a grade 9 post at Portsmouth university she would have expected to progress to a grade 10 post, and it is submitted for her that we should therefore be granting loss of earnings and loss of pension loss on the basis that she would have obtained a grade 10 post within a short period of time. Case Number: 1401084/2021 54

[285]The respondent asserts that whilst there is a chance that the claimant would have obtained a grade 10 post it must be a small chance because grade 10 posts are always highly sought after very competitive and come up rarely.

[286]Mr Sharma asserts on behalf of his wife that it can be assumed that doctor Sharma would have progressed at least two grades in her career of 26.67 remaining years before retirement. Doctor Sharma progressed 2 grades from lecturer to senior lecturer and then associate head in her six years of 10 year from 2010 to 2016.

[287]He has not drawn our attention to any figures or statistics showing either the availability of higher grade jobs in academic institutions in the area of Dr Sharma's work, but rather a basis his assessment on the fact but that she would continue to progress in the same way.

[288]We observe that whilst this is no doubt a very fair assessment of Dr Sharma 's intentions the reality is that the more senior one becomes the more competitive the job market is.

[289]We have considered the information we have about career progression within academic institutions in general and at Portsmouth university in the area the claimant worked in particular and we have considered the availability of posts at grade 10 and above.

[290]The respondents argued before us that the claimant’s loss of earnings should be limited to 10 years.

[291]The starting point for this is whether or not, absent discrimination, the claimant would have been reappointed to the seconded post.

[292]We have borne in mind that the evidence before us at the full merits hearing indicated that in all cases where an individual had reapplied for an extension of a secondment it had been granted except in the claimant's Case Number: 1401084/2021 55 case. The claimant says that this must mean that she had 100% chance of being reappointed to the post absent discrimination.

[293]The respondent's evidence before us in respect of the reappointment of secondment posts is sparse.

[294]We have no evidence before us about the circumstances of the other extended secondments. We do not know for example, whether or not anybody else applied for the posts, whether there was a competitive interview process, and if so whether the individuals were appointed following such a process for reasons of merit alone.

[295]We accept that the nature of the fixed term contract must mean that it was at least anticipated by everybody that there was the possibility of a competitive interview situation, and an appointment of somebody different at the end of that fixed term. The fact that it had not, on the evidence before us, happened previously does not mean that it would never happen. Further we find that although the statistics were helpful to us in respect of assessment of the shifting burden of proof in this case, they were a relatively small sample, and not determinative of discrimination.

[296]We did not find that the decision to interview and have an open competition was its self discriminatory. It was not, on our findings discriminatory to advertise the opportunity at the end of the five years. Nor on their being applications from other individuals was it discriminatory to hold a competitive process.

[297]In this case we have made findings of fact that the reason why the claimant was not appointed was because Mr Rees, who held what was in effect the casting vote, made a decisions which was discrimination on grounds of race.

[298]The reason why the outcome was one which was tainted with race discrimination was because one person on the panel found racially discriminated against the claimant. Case Number: 1401084/2021 56

[299]We agree with the Claimant that the statistics of what had happened in the past, suggest that there might be a high probability that she would have been re-appointed. However, the statistics of the past are not necessarily predictive of the future. Just because it had not happened before, did not been it could not happen at all. Of itself, it does not tell us what might happen, absent discrimination.

[300]In this case, all the evidence before us in was that there was another strong candidate applying.

[301]The two panel members against whom we make no finding of discrimination did not agree who should be appointed. One of them favoured the claimant and one of them favoured the other job applicant. There was, absent discrimination, a chance that the claimant would not be reappointed.

[302]We have therefore considered the impact of a non-discriminatory third person having a casting vote.

[303]On the evidence we have before us the most that we can say is that there was a 50/50 chance that the third person would prefer the claimant. We conclude therefore that the claimant had a 50% chance of being reappointed to the grade 9 post following a fair and non discriminatory interview.

[304]We have then considered what might have happened to the claimant in the reorganisation that we now know has taken place.

[305]We have considered the evidence of how other staff were treated, and how many of the grade 9 staff remained on grade 9. We find that nearly all staff who were on grade 9 and wanted to be retained on a grade 9 post were so retained. We all agree that claimants ambitions and her desire for progression mean that she would have wanted to be retained on a grade 9 post and would have been treated in the same way as other staff who Case Number: 1401084/2021 57 wanted to be retained on grade 9 and indeed were retained on grade 9. We conclude the claimant would therefore have been retained on a grade 9 post following any reorganisation.

[306]If the claimant had not returned to the grade 9 post but had returned to her substantive grade 8 post, there is no doubt that she would have applied for one of the new grade 9 posts and given her previous experience we find a strong probability that in a fair process she would have obtained one of the posts.

[307]We have borne in mind the evidence she has given about how other individuals within the organisation were treated during the course of the reorganisation and the evidence of the promotion of other individuals from other more junior positions and accept her evidence that there is no reason why she would not have performed as successfully as others

[308]Mr Sharma asserts on behalf of his wife that it can be assumed that Dr Sharma would have progressed at least two grades in her career of 26.67 remaining years before retirement. Doctor Sharma progressed two grades from lecturer to senior lecturer and then associate head in her six years from 2010 to 2016.

[309]We accept her evidence that her career trajectory until the events involving Professor Reese had been impressive. The question we must answer is what would have happened to the claimant given a non discriminatory set of circumstances once she obtained a permanent grade 9 post, as we find she would have done, in 2023. Would she have progressed further to a grade 10 post in the following years before 2035?

[310]Put another way, what is the chance that she would have gained a grade 10 or a grade 11 post by 2035?

[311]We accept that the claimant was ambitious and capable and we accept that her career trajectory had, up until the point of her illness, been impressive. Case Number: 1401084/2021 58

[312]We accept the evidence of the respondent that grade 10 posts are highly sought after, not so common and that there is strong competition for them and therefore a lower probability that the claimant would have attained one of them. The probability of achieving a grade 11 is further decreased for the same reasons.

[313]Mr Sharma pointed to the way that some of the claimants’ colleagues, with less experience than her, and different qualifications had risen to grade 11 posts. We do not have any evidence of how many grade 9 staff applied and were failed to get grade 10 posts.

[314]The Respondent says that the grade 8/9 is the career average for most academics. We accept that this is probably right. However, we also note there are outliers who rise quickly, and that the reasons for doing so is likely to be a combination of ability, qualifications; experiences but also support and mentoring from appropriate senior staff. The claimant was very ambitious, we have no doubt that she would have applied for any and every opportunity.

[315]We conclude that she would have remained in grade 9 for 5 years, and that she would have started to apply for any available advertised grade 10 post after a 5 year period, that is from about 2026.

[316]We have no evidence before us of how many posts might have been advertised , or when or if they may become available, but on the evidence of academic structure within the relevant respondent department in this case, we conclude that there were likely to be very few, if any, such posts advertised between 2025 and 2035. We were told of a handful in the claimant’s faculty area.

[317]We also find that the reason why posts would have become available were likely to be because of people retiring or other people moving upwards into other positions either at the respondents or at alternative universities or as a result perhaps of restructuring. Taking all the evidence we have before Case Number: 1401084/2021 59 us, we find that it is reasonable to have expected a relevant and appropriate opportunity to have arisen only every two years.

[318]Would the claimant have succeeded in obtaining one of those Positions?

[319]The claimant would have applied for such opportunities and would have competed on a level playing field with others they were also well qualified.

[320]If there were 20 applications, and if we assume an equality between candidates then the claimant could reasonably be said to have had a one in 20 chance of being successful within 10 years of obtaining a grade 10 post.

[321]We therefore calculate the loss of this chance as being 5% of the difference in salary between grade 9 and grade 10 for the 5 year period.

[322]The claimant had aspirations to rise beyond grade 10 to Grade 11 and she may have done so. We recognise that she is ambitious and would have wanted to progress further. We all think that she would have made every effort to do so, and we all very much hope that she will recover sufficiently to be able to do so in the future.

[323]The tribunal must decide cases on the basis of evidence before us and in this case it is not possible for us to speculate on the likelihood that the claimant would have achieved a grade 11 post. We cannot find that there was any real chance of the claimant achieving such a position. This is not any indication about our view of the claimant’s ability. But we cannot speculate on what the percentage chance is of the claimant identifying a relevant post, being willing to apply for it and being successful.

[324]The tribunal cannot award damages for future loss of earnings on the basis of such a speculative exercise and we do not do so in this case. Calculation of future loss of earnings Case Number: 1401084/2021 60 Calculation of loss of earnings to date of trial.

[325]The claimant claims loss of income from the 1st January 2021 to October 2023 as a net sum of £36,160.15.

[326]The respondent asserts that loss of earnings until date of hearing is £25,900.52.

[327]This is based on the loss of net salary when the claimant reverted to the role of senior lecture. The respondent has calculated the difference between band 9 salary and a band 8 salary and calculates that there is a net loss of £410.12 a month or £94.65 per week with net losses of 113 weeks amounting to £10,695.45. The respondent has not calculated the loss of a chance, which we have calculated as being 50%

[328]For the period from 10 March 2023 until the 17 June 2023 the respondent rightly points out that the claimant suffered loss of half her salary because she was in receipt of sick pay and her salary reduced to 50%. She then lost all her salary until the date of hearing on the 25th of October 2023 which R calculates being 18 weeks and 3 (three) days.

[329]We accept that these dates of the losses are correct and also that the assessment of the type of loss is correct, but we do not agree with the figures put forward by the respondent.

[330]In this case there is no agreement between the parties as to the rate of loss during any of the periods of time. Mr. Smith has calculated the amount on a weekly basis, Mr Sharma has calculated it on a monthly basis. Mr. Smith has asserted a standardised figure which applies for each month throughout the period, whereas Mr Sharma has taken into account both spinal points and pay rises awarded between January 2021 in October 2023.

[331]We have reminded ourselves that loss of earnings are calculated net of tax and National Insurance and that there is therefore a question of grossing up. in this case our determinations in respect of grossing up are addressed in other paragraphs. Case Number: 1401084/2021 61

[332]Mr Sharma also appears to have taken into account the reduction in the claimants actual pay at grade 8 to take account of SSP. This means that the losses he has calculated as arising for the period from June 2023 to October 2023 are all net figures based on the actual salary that the claimant would have received had she been at work and in receipt of a grade 9 salary at that point in time. The monthly amount he relies on for August; September and October 2023 is net pay of £3524.87 per calendar month.

[333]Mr. Smith asserts that the full loss of salary until date of hearing should be calculated at the amount of £756.20 per week, or for four weeks at. £3024.08.

[334]We prefer the approach to the figures provided by Mr Sharma, because the amounts he has calculated take into account the way that the pay scale in the university operates, and the fact that there have been pay increases.

[335]However neither he or Mr. Smith have taken into account the 50% reduction in the losses. Neither have provided a breakdown of their calculations and therefore we have calculated loss of earnings to date of hearing as follows.

[336]Firstly, there is a loss of income throughout the entire period of 50% of the difference between the salary at grade 8 which the claimant received and the salary at grade 9 which, but for the discrimination, she had a 50% chance of receiving.

[337]To calculate this amount, we have taken the net figures of each band from a midpoint in August 2022. The monthly salary for grade 8 is £2890.60 and the monthly net salary for grade 9 is £3341.63. The difference between those two figures is £451.03 per calendar month, and 50% of the difference each month is £225.52. Case Number: 1401084/2021 62

[338]From January 2021 until October 2023 is 34 months and therefore the loss of earnings attributable to the 50% chance of being employed at grade 9 is 34 x £225.25 which is £7867.68.

[339]To this figure must be added the loss of earnings suffered by the claimant as a result of sickness absence.

[340]We find that but for the discrimination there is no suggestion that the claimant would have been on long term sickness absence and therefore her pay would not have reduced. We therefore conclude that when she is on half pay and when she is on no pay, her loss is the difference between what she actually received whilst on sick pay and what she would have received had she not been on sick pay. This calculation is based on the grade 8 salary only.

[341]The grade 8 monthly net salary figure which we are using is £2890.60. The claimant was on half pay for three months, or 12 weeks, and therefore the net loss is 50% of £2890.60 x 3 months = £4335.90.

[342]For the 23 weeks when the claimant was on half pay, her loss is (£2890.6x 12 /52) x 23 weeks = £15,342.42.

[343]The total amount of past loss to the date of the remedies hearing is therefore £7867.68. + £4335.90 + £15,342.42 = £27,546.00

[344]We therefore award this amount for past loss of earnings to date of the remedies hearing. Future Loss of earnings

[345]In respect of future loss of earnings, we have found that it will take the claimant a further two years, that is until end of October 2025, before she is able to return to work. Her continuing loss for that period of time is therefore the salary she would have received at grade 8 plus 50% of the Case Number: 1401084/2021 63 salary she might have received had she been reappointed to the grade 9 post.

[346]The claimant claims future loss of earnings based on two years of no work at all, then eight years of part time work earning in the region of £12,000 per annum and the remainder of her working life 16-17 years.

[347]Again the parties do not agree as to the figure for the future loss of earnings but gross pay at grade 8 at date of hearing was in the region of £52,841 per annum, although there appears to have been an increase in salary in August 2023. Mr Sharma has given us the new rate for the band 9 which is £64,914 per annum but we do not have the up rated band 8 salary. On that basis we have used the old rate for the band 8 and the old rate for the band 9 on the assumption that any increase to a band 8 role and a band 9 role in terms of inflation, would likely to be a similar percentage increase and that therefore on the basis of the information we have, the best figure is the difference between the two rates.

[348]We have first considered what the net salary for each post would be.

[349]Using Mr Sharma’s calculations, the net monthly pay at grade 9 on the old rate was £3445.68 . The net pay on the grade eight was £2931.46. The difference between the net monthly amount of pay is therefore £514.22 per calendar month or £6170.64 per annum. The claimant would be entitled to 50% of that in addition to the net grade 8 salary of £35,177.52.

[350]We estimate that it will take two years for the claimant to return to any form of work and therefore her losses for the next two years are 2 years x £35,177.52+ (£6170.64 x2 years)/2. This is £41348.16 net loss for the next 2 years.

[351]We have concluded that with medical assistance and the resolution of these proceedings, the claimant will be able to return to work in two years’ time, and will probably need to work part time in a lower paid role. We consider that there is a real chance that she will return to work on a part Case Number: 1401084/2021 64 time or half time basis and will be able to earn therefore half of a notional salary of £26,000 net amounting to a salary of £13,000 per annum net.

[352]We have found that after 18 months she will be in a position to return to a better paid job and have found that the likelihood is that after that period of time, which will be nearly four years from the date of hearing, she will be well equipped to return to work in her previous grade 8 position.

[353]We conclude that it is highly probable that at some point in her future she will progress to a grade 9 post.

[354]We have also found that but for the discrimination the claimant had a one in 20 chance every two years after 10 years of progressing to a grade 10 post.

[355]We conclude on the basis of the medical evidence that this is now unlikely to happen.

[356]The claimant’s future losses are therefore the difference between the pay that she would have achieved at grade 9 and the pay that she is now likely to achieve at grade 8 and the fractional chance of her having achieved a grade 10 at some point in the future.

[357]Her loss of pension is the difference between the grade 8 and grade 9 post from the date of discrimination until the point at which we find she would have returned to a grade 9 post. Whilst we accept that there may have been a small loss of pension in respect of a grade 10 post at the latter stages of the claimant's career, we consider that loss to be too remote.

[358]We also have to take into account the likelihood or possibility that she may have retired early in any event, or that other matters may have led to her not working until the state retirement age, or working part time. These factors are taken into account when calculations are done using the Ogden tables. Case Number: 1401084/2021 65

[359]In respect of the initial period of 18 months, we assess the annual loss of earnings as £35,177.52+ 50% of £6170.64, but take into account the likely net earnings of £13,000.

[360]For the first year the loss is therefore £35177.52 + £3085.32 =£35262.84-£13,000.00. This is a figure of £22,262.84. As this is 12 months, the remaining 8 months loss will be £14841.89.

[361]We therefore award the claimant’s losses for those 18 months, net of £37104.73

[362]Following that period of time, we conclude that the claimant will be able to return to the equivalent of a grade 8 salary and that she ought to be able to return to the grade nine position within 10 years, that is within a further eight years.

[363]We recognise that there will have been pay increases to both grades within that period of time but we have no evidence of what that might be, and we also have no evidence of whether the difference between the two grades would remain much as it is, or increase. We therefore conclude on the basis of the evidence we do have that on balance of probabilities, the difference in pay between the grades will remain more or less the same.

[364]Further we must consider accelerated receipt. In this case we consider that the likelihood of pay increases over the next 10 years, which we cannot take into account because we cannot predict them, are likely to be similar to the amount that the claimant might expect to earn by way of interest, were she to invest 10 years’ worth of earnings, over that period of time on the basis of diminishing returns.

[366]Both parties agree that the illness is in the moderately severe category, and refer to the Rs skeleton, at para 42

[367]In the schedule of loss the claimant appears to agree that the correct level is moderately severe. We agree that this is the correct level on the basis of the Judicial College guidelines and our findings of fact regarding the diagnosis, based on the expert reports. We accept the symptoms of PTSD but not the diagnosis, and conclude that the injury falls within this range.

[368]R agrees a level at the top end of the moderately severe range, and we all agree that this is the appropriate level of award. We think that the claimant has made an error in adding up the various levels rather than selecting one appropriate level. We accept that the claimant is in reality, suggesting a much higher payment but find that this is based on the wrong approach to the assessment of the award.

[369]We conclude that the correct level for the claimants psychiatric injury is moderately severe, and award £50,000.00 for this head of loss. Death in service benefit

[370]The Claimant is entitled to a benefit if she dies whilst in service as a result of her contract, it is a valuable benefit. That benefit remains payable for 12 months after termination of her employment. At the point of the hearing, she remains employed and therefore she remains entitled to this benefit. Whilst it seems to all of us, that there is a real possibility of her employment terminating at some point in the future, that is a matter for the parties, and since no one has said anything to us at all about termination of employment, we find that there is no loss at present, associated with this head of claim. We therefore make no award in respect the death in Service benefit. Loss of salary of Mr Sharma? Case Number: 1401084/2021 67

[371]Dr Sharma has made a claim for £46,956.65, in respect of her husband's lost earnings incurred over the past 4 years, from March 2019 to 2023 and continuing up to 2025.

[372]We understand and accept that Mr Sharma decided to reduce his working hours and to move from a full time to a part time contract in order to care for his wife Dr Sharma, and to take on more of the responsibilities of the family. The evidence we have does not tell us what care was required by Dr Sharma or the number of hours care required per week and what that might have cost if given by an independent carer for example.

[373]Reading the medical reports, and from the evidence of Dr Sharma and Mr Sharma, we do not doubt that Mr Sharma is correct in the calculation of his loss of earnings and accept that there was a need for some additional support for the claimant. We have noted that she reported to her medical advisors that she had thoughts of self harm but that the presence of her husband meant that she did not ever act upon such thoughts.

[374]However the claimant bears the burden of proving the heads of claim and loss flowing form the discrimination under those heads. Here we have no evidence that there was a need for professional care or for constant company for the claimant, and no evidence of how much care or what the costs of any such care might be. The fact that Mr Sharma decides to give up half his income, is not proven by the claimant to be a loss flowing directly from discrimination, just because Mr Sharma would not have done it but for the discrimination. We consider that Mister Sharma made a choice but do not consider that is a valid basis on which we can make an award of damages.

[375]We reject this head of claim and make no award in respect of it. Costs of medical treatment and expenses

[376]The claimant claims future medical expenses of £30,875.00 based on the recommended treatment set out in Dr Gupta report. This loss flows from the discrimination and there is evidence of the cost. Case Number: 1401084/2021 68

[377]The respondent states in the skeleton argument, that they concede ( para 14) reasonable costs of treatment.

[378]The medics do not agree on how much treatment will be needed. Dr Gupta suggests 30-50 sessions of psychology and 15 psychiatry reviews for two years. That is 30 in all. The costs he estimates for all treatment will be between about £10,000 over two years and £20,000 over two years, excluding VAT.

[379]Dr Mallet considers the claimant will need 6 sessions of psychiatric follow up and better use of anti-depressant. He estimates treatment costs of about £3200.00

[380]There is thus a vast difference between or the two experts presumably flowing from their differing beliefs as to the outcomes for the claimant. Dr Gupta suggests the claimant will need weekly sessions. Dr Mallet once every 2 months.

[381]Given the resistant nature of the impairment and the obvious need for treatment which is more than simple medication, we prefer the opinion of Dr Gupta, although we consider that in a he has had a n overly pessimistic view of the outcomes, we do consider that this is a case where early and intensive intervention is required by the claimant.

[382]R suggests that figure of £13,024 should be awarded for future costs of medical treatment.

[383]This is based on 44 weeks treatment at the cost set out in the respondent’s schedule of loss and a return to work in September 2024.

[384]From our findings and conclusions above, this period for possible treatment and recovery is too short. We also prefer the claimants’ assertions on cost of sessions. Case Number: 1401084/2021 69

[385]We find that the claimant will need significant medical intervention over the next two years if she is to make the improvements that our assessment of future loss is based upon . Weekly sessions costing in the region of £150 per (£180 incl Vat) per session for one year is, we think reasonable and necessary based on the medical assessments we have seen, and we accept that there would then be a tapering off of treatment, with a further 25 sessions ( once a fortnight).

[386]We therefore award damages for the cost of 77 treatment sessions at £180 per session , which is - £13,860.

[387]The Claimants prescription charges are £9.35 per month. We award a further 4 years on prescription costs, on basis that she is likely to require meds whilst she tries to return to work.

[388]We award losses in respect of future prescription charges of 48 months x £9.95 = £477.60.

[389]The claimant has already incurred medical costs of £1,686.64. The Respondent accepts these costs and we award them in full. Pension

[390]The variety of approaches to the calculation of pension loss is set out in the actuarial report prepared by CM Atkin for the claimant the report starts there are innumerable approaches that could be taken to the assessment of the pension loss and a wide range of actuarial assumptions could legitimately be adopted. In this note I have however adopted A simplified approach based broadly on the principles for compensating pension loss 4th edition 2021 and the tables included in the paper setting up those principles.

[391]We accept that this actuarial report sets out the basis on which the teachers pension scheme was operating in 2021 being a final salary basis under which pension benefits accrued at 160th of final pensionable earnings however we also accept that from the 1st of April 2015 the basis for calculating pensions was changed for service from that date to a career average approach under which pensions would build up at the rate of Case Number: 1401084/2021 70 157th of each year's salary. Benefits accrued on that basis would be revalued each year in line with inflation plus an additional 1.6 per annum where the member was an active member.

[392]We have heard no evidence about the pension itself but it is it is asserted in the claimants actuarial report that as a result of the McCloud judgement, that some members including Dr Sharma would have a choice of either the career average revalued earnings or a final salary benefits pension, full service up until the 31st of March 2022. Since the claimant suffered no loss of pension up until that point, we have not needed to address the matter.

[393]We find that for all purposes the relevant pension is therefore the career average revalued earnings approach. That is that the pension builds up from the 1st of April 2015 at the rate of 157th of each year's salary.

[394]We remind ourselves that when considering loss of pension what we are seeking to calculate is the amount the claimant will lose on an annual basis after retirement. We are therefore considering what the impact of a period of 10 years of reduced earnings would be on her pension assuming that she retires at age 65.

[395]The calculation of what her retirement pension might have been had she returned to work achieved a grade 9 or 10 level requires an assessment of what her pension under the CARE scheme would have been, since this is the part of the pension that will be affected. We remind ourselves that 1st of April 2022 until the 26th of October 2023 is the period of loss from the date of discrimination until the date of the hearing and the period for which that we must assess the CARE benefits and we note that Atkin reports the reduction of the accrual of pension by £272. 58 For each year of retirement.

[396]This case includes a complex pension loss which is not career long loss but is for a period of some years. Case Number: 1401084/2021 71

[397]The seven steps which the tribunal and the parties need to follow, or are recommended to follow, when calculating loss of a defined benefits pension such as the one that the claimant would have received as a university lecturer , rely on the use of the Ogden tables. Those steps are as follows: 397.1. identify what the claimants net pension income would have been at their retirement age if the dismissal had not occurred. 397.2. identify what the claimants net pension income will be at their retirement age in the light of their dismissal. 397.3. deduct the result of step two from the result of step one which produces a figure for net annual loss of pension benefits this is the multiplicand. 397.4. identify the period over which that net annual loss is to be awarded using tables 26 to 33. This will provide a multiplier. The table will depend on the sex of the individual the discount rate and whether the two year adjustment applies it is also then necessary to identify the age of the claimant at the date of the remedy hearing and the claimant's retirement age in order to use these tables. 397.5. Multiply the multiplicand and the multiplier to obtain the capitalised value of the lost pension subject to any further adjustment the tribunal considers appropriate. 397.6. Check the lump sum position and perform a separate calculation if required. 397.7. taking account of the other sums awarded by the tribunal, gross up the compensation awarded. Our relevant findings are therefore as follows

[399]We find that the claimant would have retired on a grade nine salary with a one in 20 chance that she would have retired on a grade 10 salary.

[400]The claimant asserts that she would have continued to work until she reached the age of 67. At the point of hearing she is 41 years old and has therefore a further 26 years before state retirement age. Case Number: 1401084/2021 72

[401]We take judicial notice of the fact that there are varied approaches to retirement but that the increase in the retirement age, and therefore the age at which the full pension can be drawn has tended to lead to an increase in the age at which people retire.

[402]We have taken into account that there are many factors which might impact upon whether an individual works to a full retirement age and also there are many factors which may lead to an individual choosing to reduce their hours or reduce from full time to a fractional contract.

[403]Taking into account the vicissitudes of life and recognising that in doing so we are essentially making an educated guess, we all agree that a retirement date of 64 is the most likely, meaning that the claimant had a further 24 years work during which she could accrue her pension.

[404]We have found that the claimant will suffer loss of earnings until 2035.

[405]What will the claimant's pension now be? From our findings we conclude that there is a period of time from the claimant moving to no pay when she will be making no pension contributions and until point time when she might be expected to return to a grade 8 grade 9 position which we find is 2035, after which no further pension loss will occur.

[406]The Atkin report sets out a number of scenarios looking at pension loss from the 26th of October 2023.

[407]As indicated earlier none of the scenarios reflect the facts now fined by the employment tribunal.

[408]However the Atkins scenario one is based on an assumption that Dr. Sharma received no salary for two years then receives pay of about £12,000 net for a period of a further 8years and thereafter up until the age of 6 is able to earn in the region of £25,000 per annum in an academic institution. Case Number: 1401084/2021 73

[409]On that scenario Atkin calculates the value of the claimant’s future pension as £221,841 per annum. This is the scenario the claimant suggests as most likely and is the starting point for her calculation of pension loss contained within the schedule of loss.

[410]The claimant also asserts that the Atkins scenario 6 is what would have happened but for discrimination. That is, that Dr Sharma would work at grade 9 for four years and then progress to grade 10 in the 5th year and progress to grade 11 in the 12th year. This means that any pension drawn at age 68 would have the value of £916,020.

[411]On that basis the claimant assesses pension loss at around £710,000.00.

[412]Atkin has also identified a third scenario based on the assumption that Dr. Sharma was paid as an assistant head from the 26 October up until age 68, which would have given a final pension pot of £748,998.00.

[413]If the claimant had returned to work in October 2023 on a grade 10 the estimated pension pot on retirement at 68 would be £908,178.00

[414]The difference between the claimant returning to work after eight years on a salary of £25,000 and the claimant being paid as an assistant head from the 26 October 2023 up until age 68 is in the region of £520,000.00

[415]Looking at the Atkin calculations the difference between the claimant returning to work in 10 years on a grade 9 contract and the claimant having been paid on a grade 9 or grade 10 contract throughout the period from the discrimination, the amount of difference and therefore the pension loss is somewhere between £350,000 and £450,000.

[416]The Barnett Waddingham calculations, are based on the claimant returning to work at an earlier stage, and on pension loss being capped after 10 year period with a discount rate of 0.2%. An assumption that the claimant remains in grade 8 until retirement 10 years pension loss with the discount rate of -0.25% is calculated as being £193,349. Case Number: 1401084/2021 74

[417]However the BW figure for whole career pension loss is based on a scenario that the claimant would have returned to grade 9 and progressed to a grade 10 in or about 2031, compared to her returning to work and remaining on a grade 8 until her retirement, is a loss of £406,895 . This figure also takes into account accelerated receipt of -0.25%.

[418]Having read the two reports very carefully we are inclined to agree with the number of comments made by BW about the Atkin report and accept that a number of the observations made, mean that the Atkins report figures are likely to be slightly inflated. However, having analysed the figures carefully, it does not appear to us that there is likely to be a particularly large difference between the figures produced by either actuary, were they to use the factual findings made by the employment tribunal and were they to agree the rate of pay and various other matters.

[419]The tribunal had found that this is not a career loss case; that basis of calculation of loss is an assumption that the claimant would return to work after four years in a part time low paid basis but that she would return to work in 10 years at grade 9 and that her losses would cease at that point.

[420]The pension loss figure is therefore going to be significantly lower than that put forward by the claimant but higher than that put forward by the respondent.

[421]We conclude that the final figure for pension loss will fall somewhere in the range between £200,000 and £500,000.

[422]It is not possible for the employment tribunal to carry out the calculation necessary to determine pension loss in this case because the parties have not provided the necessary figures in respect of pension.

[423]We do not have evidence before us as to what the claimant’s pension would now be, given the facts that we have found, nor do we have figures Case Number: 1401084/2021 75 for what the claimants pension would have been, absent discrimination, given the facts that we have found.

[424]As set out at the beginning of the judgment, the parties are therefore invited to consider the following options 424.1. The parties may decide to agree a notional figure between them in respect of pension loss, taking into account the facts found by the employment tribunal. The Tribunal would then give judgment for that amount if so required. 424.2. Alternatively, the parties may write back to the employment tribunal within 28 days seeking a further hearing at which they may provide further verbal evidence and the ET will then make an assessment based on the evidence before us at that point. 424.3. The parties may consider whether or not to agree to instruct a joint actuary to determine the figure, and agree to be bound by that figure. In this case further directions must be proposed and agreed with the Tribunal. 424.4. In the event of no agreement as to a way forward, the parties must write back to the ET after 28 days and request a listing for a 1 day Case management hearing, to consider how to resolve this matter and the question of grossing up and the outstanding costs figure (if not agreed). Costs

[425]The claimant has made an application for an award of costs and the respondent has indicated in their skeleton argument and in the submissions before the tribunal that they accept that it costs order in this case would be appropriate.

[426]The respondent council indicated that there was an agreement to pay costs in a certain amount but the amount is not set out either in the skeleton argument or in the counter schedule of loss. Case Number: 1401084/2021 76

claim

[3]The claimant has submitted a final and updated schedule of loss which includes six potential recommendations.

[4]The respondent has provided a counter schedule of loss.

[5]We are grateful to both parties for all the work that they have put into addressing the submissions and figures which each have provided. This is a complex case and our comments about the figures and calculations we do not have are a reflection of that complexity, and not intended as a criticism of either party or their legal representatives. Background to the remedies hearing

[6]Following the full merits hearing, there have been a number of hearings to discuss case management of the remedies hearing and the evidence that the parties wish to rely upon.

[7]Following a case management hearing and applications from the parties, an order was made for a joint expert to be identified and instructed to report on the claimant’s psychiatric impairment.

[8]The parties identified and instructed Dr Gupta, whose report was before us at the remedies hearing.

[10]The subsequent report of Dr Mallet is also before the employment tribunal.

[11]The experts have also produced a joint report setting out areas of agreement. Case No: 1401084/2021 4

[12]Following the liability judgement, Dr Sharma approached an actuary and instructed them to advise her on possible pension loss, in a range of scenarios.

[13]The respondent subsequently also instructed an actuary to advise them on pension loss in a range of scenarios.

[19]The claimant argues that in this case there is career long loss and that pension loss is therefore a complex calculation, and future loss of earnings Case No: 1401084/2021 5 and the consequent pension loss should be calculated according to the principles set out in the Ogden tables and latest government actuary report.

[22]However, neither report address the factual circumstances that we have found and therefore we are not able to use them other than by way of guidance to assess pension loss.

[23]We have therefore considered how best to deal with this matter taking into account the guidance to employment tribunals on the best way to assess pension loss. Pension Loss - Next Steps

[31]We have not finally determined this matter, but the principles which we consider applicable are set out below. We all agree that the difference in approach of the parties must mean that there is a risk that, at some point in the future, the claimant may be subject to an order to pay income tax to the revenue in respect of any amount awarded by this tribunal which represent future loss of earnings. This is despite the respondent’s submissions that any award made by this court is not in an award in respect of termination, because the claimant remains employed at the point of the remedies hearing.

[33]The parties must seek to agree the approach, and write back to the ET and each other within 28 Days, setting out their position. Case No: 1401084/2021 8

[34]In the event that there is no agreement between the parties and no undertaking for the respondent, the panel will reconvene to determine the matter. Pension loss discount rate

[35]The claimant asserts that the appropriate rate that we should apply to pension loss, and future loss of earnings, for purposes of accelerated receipt is -0.25%. The claimant refers to the government actuary report of August 2022 which had retained this rate.

[36]Mr Sharma on behalf of Dr Sharma asserts that there is no need to deviate from this rate.

[41]We remind ourselves that the tribunal is expected to take account of the impact of accelerated receipt, but also remind ourselves that we must make an award to compensate the claimant , not punish the respondent, and that Case No: 1401084/2021 9 we must have regard to the overall fairness of the level of any award. We accept that if we can make findings as a matter of fact, based on the evidence we have, that any future financial losses are likely to either decrease in value or increase in value as a result of being received in advance and invested that we should adjust any award accordingly.

[43]We must therefore consider whether or not to deviate from the recommended approach which Mr Sharma sets out in his skeleton argument and if so, state why, and what rate if any should be applied.

[46]Because we recognise that inflation remains high and that interest rates on loans remain high, on the basis of all the evidence we have before us we cannot conclude that investments will grow on the basis of 2.5% in the immediate future, as asserted by the Respondent actuary in the report. Whilst we recognise that any award of future pension loss might be expected, in Dr Case No: 1401084/2021 10 Sharma's case, to be invested for at least 15 to 20 years prior to the ordinary retirement age being reached, it is not possible for us to find , on the basis of the information that we have whether over that period of time an investment would be expected to grow a large amount or at all.

UKEAT/0238/18/BA

[51]We have also taken into account the guidance in the case of Secretary of State for justice V Plaistow 2021

UKEAT/0016/20

, in respect of high value cases such as this one as follows: 51.1. Identify the amount of the awards to which the uplift is applied Case No: 1401084/2021 11 51.2. Determine the appropriate level of uplift assessing the employer's level of culpability and any harm to the employee. 51.3. Consider what that award would mean in monetary terms assessing this against both the totality of the award if the up lift is applied and the proportionality of the uplift itself 51.4. If necessary, adjust the percentage in light of the actual sums involved.

[52]Further guidance has also been provided both in the case of Rentplus v Coulson

[2022] EAT 81

[53]The first matter that we are required to consider is whether or not the claim is one which raises a matter to which the ACAS code applies and we find that it is.

[55]We found that there were five occasions when the claimant should have been provided with them, and we also found that the notes which we have seen were insufficient to demonstrate a fair and appropriate process by the respondents we found that Mr Rees had made no notes at all. We concluded that in the absence of a valid and truthful explanation from the respondent there was a deliberant decision by the respondent, on more than one Case No: 1401084/2021 12 occasion to prevent the claimant from seeing the notes, because she had raised the complaint of discrimination.

[56]We all agree that this is a serious breach and that it contributed to the claimant's ill health and that it contributed to her subsequent injury to feeling and the subsequent psychiatric illness. These are therefore the awards that should be subject to the uplift.

[57]We conclude with that the failure to comply with the ACAS code was unreasonable and that it is just and equitable to award an uplift to the relevant parts of the claimant’s award.

[60]We conclude that the 10% should NOT be applied to the entirety of those amounts because this was one of a number of findings of discrimination, all of which contributed to these losses.

[61]We agree that the uplift of 10% should be applied to 25 % of the relevant awards.

[62]We have therefore considered what the uplift would be on the total award compared to a percentage , and calculate that an a 10% uplift on 25% of those awards would be . On the total of those awards, the uplift would amount to nearly £8000.00. That would have an impact on the interest, and increase that award, in global term by £640.00. We conclude that the award Case No: 1401084/2021 13 on 25% , which would be a global figure of £2075.00, and which will be taken into account when calculating interest is the appropriate figure for ACAS uplift in this case. Interest on the award – legal principles, findings and application to facts and conclusions.

[63]The claimant claims interest on the relevant parts of the award at 8%.

[66]Interest is calculated as simple interest and the current rate set out in regulations is 8%.

[67]Interest is awarded on injury to feelings awards from the date of the act of discrimination complained of, until the date on which the tribunal calculates the

compensation.

[69]Where payment of any of the sum attracting interest has already been made by the respondent, the date of payment is taken as the date of calculation of the award for those particular sums.

[71]Interest is not awarded in respect of future loss.

[72]In this case the first task of the ET is to identify the relevant period for any injury to feeling award, and the relevant period for any other loss awarded.

[75]The claimants’ wages were reduced following her reversion to the grade 8 post from 1 January 2021. This is the start date for the calculation of the loss of earnings.

[76]The end date of the relevant period is the date of the remedies hearing, at which these losses were calculated or the date of payment of the Interim payment relevant to the awards. Case No: 1401084/2021 15

[77]The claimant has received an interim payment of £80,000.00. We have not been told the date on which the payment was made to the claimant. The respondent does assert that the claimant was offered the amount, but refused to accept it immediately. The amount was not paid in respect of any particular head of claim, but the respondent noted that the claim was not earning and was incurring expenses for medical e treatment. We therefore attribute the whole amount to the loss of earnings medical expenses and psychiatric injury.

[80]The injury to feeling award is £33,000 +£825.00 ACAS Uplift = £33825.00.

[81]Interest is therefore calculated at 8% for the period from 31 October 2020 until 25 October 2023. This is a period of almost 3 years (less 6 days) .

[82]Calculation is (8/100 x £33825.00 x 2) +(8/100 x £33825.00 x 11/12) + ( 8/100 x 33825.00x 6/365) = £8267.34 Interest on loss of earnings Case No: 1401084/2021 16

[84]The calculation is therefore (£27546.00 x8/100) + (£27546.00x 8/100 x4/12) = £2938.24 Interest on Psychiatric loss

[86]The Calculation is therefore (8/100 x £51,250.00) +( 8/100 x £51,520.0 x 5/12) =£5808.33. Medical expenses

[87]The relevant period for the medical expenses is the midpoint between the Date of discrimination and the Date of the payment of the interim award. Which is 17 Months.

[88]We find that the relevant amount of past medical costs is £1686.64. we make no award of interest in respect of the remaining medical costs as these are costs to be incurred in the future.

[90]The claimant has disclosed a large part of her medical records including parts which predate and post-date the merits hearing. Case No: 1401084/2021 17

[91]Post hearing the claimant has received support for her mental health from the NHS and other professionals, attending video sessions and telephone sessions with mental health practitioners.

[92]In November 2022 one therapist recorded that the claimant was worried about her job and being able to contribute financially. She, the claimant, felt she had no control and wanted to know why she was treated the way that she was. She could not understand how anybody could be so unreasonable to their employee and she wants to know why she was being treated differently to others. She also wondered whether or not she would be able to leave her job, but was not in a position to think about that whilst at the same time being unable to think what would happen if she was mistreated again. Whilst awaiting the outcome of the tribunal she had concerns about returning to her workplace, regardless what the outcome was, but at the same time she didn't want to have to leave her workplace because she did not want to have to relocate. The claimant was concerned about additional travel time, and the financial impact of that on her family.

[95]We find as fact that the notes record true statements from the claimant about how she was feeling at the time of the meetings.

[99]The claimant then attended a further occupational health appointment on the 5 May 2023 regarding her fitness to return to work.

[101]The report notes that Dr Sharma was distressed throughout the consultation and that the exploration of workplace situation was Case No: 1401084/2021 19 distressing to the extent that the practitioner asked to speak to the claimant's husband who was then able to explain the background.

[102]We find that in May 2023 claimant was suffering with serious ongoing depression and anxiety symptoms, and that although her medication had been changed and she was on a maximum dose of the new medication, she was not getting benefits from it. She was on the waiting list at that time for psychological therapy but there were no other therapies planned and she had not at that point being referred to specialist psychiatrists via the NHS. She was seeing a psychiatrist privately.

[104]This is also the view expressed by the subsequent experts and we find as fact that this was the cause of her mental health impairment and her subsequent illness and disability.

[106]The OH practitioner also stated that it was her opinion that returning to the university would be detrimental to the claimant’s health because it would be likely to further heighten her severe symptoms of anxiety and depression. The recommendation that an agreement is reached regarding her future employment at the university is repeated and it is stated that it is likely that the claimant would be covered by the Disability Discrimination Act (sic). The employment tribunal has no evidence before it of any steps that may have been taken to resolve matters in that way, but if any steps were taken, they were unsuccessful. The tribunal is aware that the respondent recognised its liability to the claimant was likely to be Case No: 1401084/2021 20 significant and has made an interim payment in respect of compensation to her prior to the remedies hearing.

[108]In April 2023 the claimant had been copied into a series of emails about the informal leaving drinks organised for Professor Rees.

[116]He was asked to what extent the acts of the respondent were believed to be causative; whether there had been any intervening act and to review the claimant's medical records. He was asked 116.1. to identify whether there was a pre-existing issue and 116.2. whether discriminatory treatment may have exacerbated the claimants pre-existing issue issues. 116.3. whether the claimant was displaying symptoms of burnout and 116.4. whether the resolution of the dispute provided the claimants the opportunity to return to work. 116.5. whether the time the claimant had off work had been reasonable and to advise when he considered the claimant would be able to return to work. 116.6. what recommendations if any could be made to assist the claimant to return to work and 116.7. whether if there was a psychiatric injury caused by the respondent, which made it likely that the claimant would suffer relapses in the future and if so to explain the likelihood of this occurring. Case No: 1401084/2021 22 116.8. to comment on medical treatment received, whether it was reasonable, whether their recommendations had been followed by the claimant and whether she required further treatment. 116.9. how long further treatment would be required for and what the estimated cost of it might be; 116.10. whether the claimant would make a full recovery 116.11. whether she was likely to suffer ongoing mental health issues and if so for how long 116.12. whether there was a likelihood of deterioration after the proceedings.

outcome.

[119]He set out the claimant’s past psychiatric history and records that prior to these incidents the claimant stated that she had had no issues of concern.

[121]He stated that the impact of the trauma was severe and deep rooted. He said due to the nature and complexity of the stressful events and its long term effects on her personal social and occupational functioning Dr. Case No: 1401084/2021 23 Sharma is unlikely to recover completely. It is not possible to indicate the recovery in mental health in concrete figures.

[122]He concludes that her mental ill health was directly due to the behaviour of the respondent.

[123]He notes that there were no pre-existing issues and no pre-existing poor mental health. This is not in dispute between the parties.

[124]In respect of dispute resolution, he records that Dr Sharma felt relieved that she had been heard, but still felt that injustice or justice had not been bestowed on her. He notes that a justified resolution of the conflict is likely to provide relief to Dr. Sharma but states it is unlikely that she will have a full recovery as the adverse events have affected her significantly have dented her confidence made her feel worthless and has taken her identity away from her.

[125]Regarding the return to work he comments that she would struggle to continue to work in the same environment if the respondent or other significant people continued to have influence.

[127]He considered that the treatment she had received was reasonable and that the claimant had followed the strict treatment.

[130]In this case we take particular note of the conclusions that the discrimination caused the claimant’s injuries and psychiatric illness. We find as fact that this is right, and there is no dispute between the parties about this. We also find that the claimant was further affected by returning to a workplace in which Professor Rees was still employed. We understand that following the liability judgment Professor Rees did leave the university and we make findings in respect of that elsewhere in this judgment.

[133]In respect of post-traumatic stress disorder he sets out the international classification of mental and behavioural disorder ICD 10 as a delayed and or protected response to a stressful event or situation either short or long told term of an exceptionally threatening and catastrophic nature which is likely to cause pervasive desperate distress in almost anyone typical Case No: 1401084/2021 25 symptoms include repeated reliving of the trauma in intrusive memories, flashbacks and Dreams.

[135]The ET had borne in mind the different context in which the two reports are provided to the tribunal. That of Doctor Paul Mallett is produced following instructions from the respondent alone, with no agreement about the questions to be asked.

[137]He saw the claimant on the 22 May 2023 via a video link.

[138]Doctor Mallett states that he did not have a full set of medical records.

[140]He says that her depression has been treatment resistant despite the ET findings and suggests that a comprehensive fresh start post resolution of the ET case with specialist psychiatric follow up and the provision of expert psychological treatment will be required. If those things are done, Case No: 1401084/2021 26 he expects there to be substantial improvement in her psychological state and anticipates that she would be able to return to some form of academic post in tertiary education, although not at what she describes as her previous upward trajectory. He also accepts that she will be vulnerable to depression in the future and that there will be periods of time when she will not be able to work and function as previously.

[141]The relevant part of his conclusions are set out a paragraph 4 onwards in his report.

[145]He accepts that at the point of his report she was not capable of meaningful employment beyond the mundane and low level and accepts that she will be vulnerable in the future.

[146]He suggests that Dr Gupta 's language in describing the claimant’s symptoms as reliving the experience of the horrific trauma that she suffered at the hands of the respondent as melodramatic and not Case No: 1401084/2021 27 supporting the characterization of his subsequent symptoms as suggested of suggestive of PTSD type symptoms

[149]He does not consider that the claimant has PTSD and therefore does not consider that she required EMDR treatment.

[150]Following the provision of the two reports Dr Mallett and Dr Gupta produced a joint report setting out the areas of agreement. These are summarised as follows. They agreed that 150.1. the combination of depressive and anxiety symptoms would make it difficult for Dr Sharma to undertake regular employment and both saw little prospect of her returning to her previous employment unless there was significant improvement. 150.2. absent the index event, her other family difficulties would have resulted in a temporary adjustment disorder lasting no more than a year and not causing any significant disability. Both agreed that the best prospect for improvement in doctor Sharma’s health was resolution of the legal case and a fresh start opportunity in relation to employment, coupled with some specialist psychiatric follow-up Case No: 1401084/2021 28 addressing her need for more complex drug treatment and some experts psychological help. 150.3. That Dr Sharma should improve substantially with that treatment, particularly once the case is resolved. Neither thought on balance of probability that she would return to her previous high level of functioning, but both agreed that she may be able to return to an academic post in an alternative university in the future. Both agreed that she would remain vulnerable to recurrent depression in the future and that episodes may have a temporary though significant functional impact on her when they occurred. Both considered reasonable to estimate that she might experience such episodes every ten years or so.

[151]We accept and adopt the joint findings as findings of fact.

[154]At its highest the evidence suggests this is a possible diagnosis. We conclude that the claimant has proved on balance of probabilities that this is the right diagnosis. Case No: 1401084/2021 29

1994 ICR 918

, EAT (a sex discrimination case), is that ‘as best as money can do it, the applicant must be put into the position she [or he] would have been in but for the unlawful conduct’

[158]When assessing damages for discrimination this means that the tribunal must ask what position would the claimant have been in had the discrimination not happened.

[159]This exercise inevitably involves the tribunal speculating about what might have happened and considering unpredictable factors.

[160]We remind ourselves that the claimant is entitled to be compensated for losses or harm caused directly by the act of discrimination. See Essa v Laing Ltd

2004 ICR 746

, CA,

[161]We also bear in mind that the eggshell skull principle applies to losses arising from discrimination. This means that the discriminator takes the victim as they find them and that they will therefore be liable for damages Case No: 1401084/2021 30 even if the loss or damage suffered by a claimant in a particular case is significantly worse than loss or damage suffered by a claimant in other similar types of case. We also remind ourselves that there are no upper limits on the awards that unemployment tribunal can make. The principle is that we must compensate in full for the loss suffered. This means that we must assess what losses of earnings or injury to feeling can be set to flow from the discrimination rather than considering what it might be fair or just to award. Injury to feelings

[162]The concept of the injury to feeling award was summarised in Vento v Chief Constable of West Yorkshire Police (No2)

[2002] EWCA Civ 1871

[2003] IRLR 102

, as: An injury to feelings award encompasses subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[163]In trying to understand the nature of what injury to feelings means, understanding the differences, similarities, overlap and boundaries with psychological injury can be helpful.

[164]In Essa v Laing

[2004] IRLR 313

[165]When considering future loss of earnings, the tribunal is likely to have to engage in an exercise of speculation based on the tribunal's assessment Case No: 1401084/2021 31 of the claimant, including her attitude and her abilities and the relevant job market. (see Griffin v Plymouth Hospital NHS Trust

2015 ICR 347

, CA)

[166]In Atos Origin IT Services UK Ltd v Haddock

2005 ICR 277

, EAT, the EAT summarised the main principles governing the assessment of future loss. They are: 166.1. unless a future loss is certain to occur or a chance that it will not is so small that it can be disregarded, the chance that it will not occur must be allowed for; 166.2. as in personal injury cases, the ordinary contingencies of life must be allowed for; 166.3. credit must be given for acceleration of receipt; 166.4. compensation will be assessed on the footing that the claimant will take reasonable steps to mitigate his or her loss. The award will be abated by the amount by which the loss would be reduced if he or she were to do so; 166.5. subject to two well-established exceptions, the claimant is not entitled to compensation for a loss which will in fact be avoided. The exceptions are that payments resulting from the benevolence of third parties and from an insurance policy for which the claimant has paid or contributed to the premiums are not to be taken into account; 166.6. to the extent that it is uncertain that a loss will be avoided, the chance that it will be, must be estimated and appropriate credit given.

[168]In calculating future loss of earnings we must consider the chance that the claimant, but for the discrimination, would have continued in her Case No: 1401084/2021 32 employment until retirement . This requires the assessment of a chance based on the material which is available to the employment tribunal at the time. See for example in Vento v Chief Constable of West Yorkshire Police (No.2)

2003 ICR 318

[169]In Wardle V Agricole Corporate and Investment Bank

2001 ICR 1290

, the Court of Appeal gave further guidance as to the approach to be adopted in assessing future loss of earnings.

[170]In summary as set out in Harvey on industrial relations and employment law, division L 881.01 it states as follows: 170.1. Where it is at least possible to conclude that the employee will, in time, find an equivalently remunerated job (which will be so in the vast majority of cases), loss should be assessed only up to the point where the employee would be likely to obtain an equivalent job, ( ET emphasis) rather than on a career-long basis, and awarding damages until the point when the tribunal is sure that the claimant would find an equivalent job is the wrong approach; This is a key point for our calculations and we have reminded ourselves of it when calculating future losses of earnings , as set out below. 170.2. In the rare cases where a career-long-loss approach is appropriate, an upwards-sliding scale of discounts ought to be applied to sequential future slices of time, to reflect the progressive increase in likelihood of the claimant securing an equivalent job as time went by; 170.3. Applying a discount to reflect the date by which the claimant would have left the respondent's employment anyway in the absence of discrimination was not appropriate in any case in which the claimant would only voluntarily have left her employment for an equivalent or better job; Case No: 1401084/2021 33 170.4. In career-long-loss cases, some general reduction should be made, on a broad-brush basis (and not involving calculating any specific date by which the claimant would have ceased to be employed) for the vicissitudes of life such as the possibility that the claimant would have been fairly dismissed in any event or might have given up employment for other reasons.

[171]In assessing future loss, a tribunal will have to make decisions about the chances that employment would have continued had the discrimination not taken place. It is important that this is done by calculating the percentage probabilities, and not on a simple balance of probabilities. That approach was endorsed by the CA in Vento v Chief Constable of West Yorkshire Police (No 2) (see per Mummery LJ at [32]–[33]) ,

[172]In this case we conclude that the claimant would have been highly likely to remain in employment with this employer for the remainder of her working life, at a 70% chance.

2011 ICR 1290

[174]In Abbey National plc and anor v Chagger (above) emphasised that where, on the evidence, a tribunal is satisfied that there is some prospect Case No: 1401084/2021 34 that a non-discriminatory course would have led to the same outcome — for example, where it is likely that the claimant would have fairly been made redundant had he or she not been dismissed for discriminatory reasons — the tribunal must reflect that possibility by making an appropriate percentage reduction to the overall sum for future loss. There was no evidence before us that the claimants employment would have ended other than by retirement, had it not been for the discrimination. There was no evidence of any other health conditions or any other reasons why the claimant would not have continued working to retirement and her evidence was that she would do so. We find that this was her in intention and that it was highly likely given her strong commitment to and enjoyment of her work.

[177]The question of what rate will be relevant has been considered by the EAT.

[178]In Benchmark Dental Laboratories Group Ltd v Perfitt EAT 0304/04 the EAT considered the appropriate discount rate. The EAT pointed out that Case No: 1401084/2021 35 the rate prescribed for use in personal injury cases was set at that time by the Lord Chancellor pursuant to S.1 of the Damages Act 1996. The Damages (Personal Injury) Order 2001 SI 2001/2301 then prescribed 2.5 per cent as the assumed rate of return on investment of awards of personal injury damages. Although employment tribunals were not bound by this discount, (our observation) the EAT observed that it would be good practice for them to adopt it.

[180]The claimant has made a claim for aggravated damages and referred us to HM Land Registry v Mcglue 2013 EQLR 701.

2001 IRLR 425

and British telecommunications v Reid

2004 IRLR327

[183]The court reminds us that the categories are not exhaustive and the emphasis is one of degree. Case No: 1401084/2021 36 Pension loss

[186]In Bingham v Hobourn Engineering Ltd

1992 IRLR 298

[187]In Greenhoff v Barnsley Metropolitan Borough Council

2006 ICR 1514

, the EAT held that an employment tribunal had erred by failing to explain why it had adopted the approach it had, in preference to either of the approaches set out in the then guidelines. In so holding, the EAT suggested that tribunals could avoid many of the problems that arise in such cases by: 187.1. Identifying all possible benefits that the employee could obtain under the pension scheme; Case No: 1401084/2021 37 187.2. Setting out the terms of the pension scheme relevant to each benefit; 187.3. Considering in respect of each such possible benefit, first, the advantages and disadvantages of applying the respective approaches set out in what are now the tribunal Principles, and, secondly, any other approach that might be considered appropriate by the tribunal or the parties 187.4. Explaining why it adopted a particular approach and rejected any other possible approach; and 187.5. Setting out its conclusions and explaining the compensation arrived at in respect of each head of claim so that the parties and the EAT can then ascertain if it has made an error.

[191]We have heard evidence of the impact that the discrimination has had on the claimant's health, from 2 experts as referred to earlier in this judgment, and we consider an award in respect of psychiatric injury separately to injury to feeling. The medical reports; the doctor's notes and the observations of occupational health all provide further evidence of how the claimants feelings have been injured, which have assisted us in assessing the correct level of award in this case.

[195]We also accept the evidence from the claimant and from Mr Sharma of her loss of enjoyment of her family, and her difficulty in assisting and contributing to family life.

[196]Whilst the hurt that the claimant has experienced was not immediate, once she started to think that her race was a factor, she became very upset and Case No: 1401084/2021 39 has continued to feel extremely hurt throughout the internal grievance procedures and throughout the court proceedings.

[197]Following the determination of liability and the findings that she had been discriminated against on grounds of race, we accept that the injury to her feelings has continued and have not improved since receipt of the judgment on liability. We also conclude that separately, her health has been damaged.

[205]She also states and we accept, that whilst there were some steps taken to bid him farewell this was a matter for him and his friends and was not a university endorsed event. Case No: 1401084/2021 41

[207]We accept her evidence that training for managers who have responsibility for hiring staff has been improved and we also accept her evidence that training in respect of unconscious bias commenced in the autumn of 2022 for staff. We also accept evidence but that all colleagues are being trained in something called positionality training, which looks at the experiences and beliefs and identities of others in order to tackle potential biases and shape how individuals understand and engage with other people,

[210]We also find that the university has restructured the academic operating model, introducing more deputy roles into the structure.

[215]First, the Respondent did take steps under its disciplinary process in respect of Professor Rees following the Decision of the ET.

[216]Secondly an apology has been given, all be it in the course of the remedies hearing. It is an apology set out in a witness statement made on behalf of the university.

[220]We have made an award for the claimant’s injury to feeling and for the psychiatric illness.

[221]This is not a case where the behaviour of any party has been so unreasonable as to warrant an additional award for aggravated damages.

[223]We make no award in respect of aggravated damages. Value of an Injury to feeling

[225]Focusing on the hurt feelings rather than the psychiatric illness, our findings are that the claimant was undermined and unsupported over number of years, whilst other white colleagues received support and mentoring from the same manager. This, coupled with the university’s failure to respond properly to her complaints, or to challenge the outcomes of an internal recruitment process, and an unwillingness to accept the possibility of race discrimination, conscious or unconscious as an explanation for an unusual outcome, led the claimant to a realisation that she would not get anywhere and that the reason was her race. The point when she realised that it was nothing to do with her abilities, but her race, Case No: 1401084/2021 44 was really hurtful and shocking to her. We think that the failure by the university to ever challenge or even look at the reasons for Mr Rees not progressing the claimant, or asking why acted as he did was also hurtful to her.

[226]She raised a legitimate concern, and despite all their policies and statements of intent regarding race discrimination, they failed to ever give any real credit to her case. She had to struggle through a complex and difficult ET case, with no legal support, and a respondent who, we have found was, at times, uncooperative in respect of disclosure.

[230]The injury to feeling award we make does not therefore take into account the psychiatric injury but addresses the hurt feelings and the immediate impact upon the claimant of not only the treatment by Mr Rees, but also his failure to knowledge or even question his own failings, even when confronted with them. Our award for injury to feelings also takes into account of the hurt to the claimant of the institution itself failing to Case No: 1401084/2021 45 recognise or acknowledge the possibility that a senior white academic may (and we find did) have behaved unfairly and in an unconsciously racist way towards a more junior Asian academic.

[231]Whilst this was not overt or conscious discrimination Dr Sharma has lost important years of her academic and family life which she may never fully recover from.

[235]Dr Sharma wants to recover but cannot see a way forward.

[236]Dr Gupta says at 11.8 that Dr Sharma will not recover fully but accepts that the justified resolution of proceedings will provide relief.

[237]He says once well she will struggle to work in the same environment, If the respondent and others continue to influence. All agree that she is not likely Case No: 1401084/2021 46 to be able to return to work at Portsmouth university, Mr Rees has now left the university, significant changes have been made to the structure and lessons, we are told have been learnt. She is likely to be disabled under the Equality act 20201 and adjustments would be required.

[238]He says that his view is that she will be highly unlikely to return to work at Portsmouth even with reasonable adjustments as concerns about triggers. He also considers chances of recurrence of her impairments and symptoms are high, and suggests triggers can be the university environment and the classroom, colleagues subjects, books. Says highly unlikely to work in a similar role or environment in the foreseeable future. We note that he wrote his report in March 2023, following an assessment in January 2023, and 4 Feb 2023.

[241]We consider that the utility of the two reports, is that it shows us a wide range of possible future outcomes and progress and expectations for Dr Sharma.

[242]The diversity between the two points underlines to us a very real difficulty in predicting with any degree of accuracy the possible outcomes in this case of the psychiatric illness.

[243]The main finding that we take from the two medical reports is that whilst there is a degree of overlap and agreement when it comes to prognosis Case No: 1401084/2021 47 the outcome in the short to medium term could be anything from a near full recovery to no recovery at all.

[244]In addition to the reports for the two experts we have also been referred to medical reports from the claimant’s treating psychiatrist.

[247]On the basis of all the evidence we conclude as follows

[248]No one thinks that the claimant can return to Portsmouth university at the moment or in the foreseeable future.

[249]The reason for this is the discrimination she has suffered, and the consequential damage to her health, which has left her particularly sensitive to any issues involving the Respondents. Case No: 1401084/2021 48

[251]We have asked ourselves whether or not the claimant would be able to return to work at Portsmouth university at some stage in the future with effective and appropriate treatment.

[256]We do however consider that the claimant will be able to return to work at some point in the future, provided that she is able to access proper medical support once her claim to the employment tribunal and the damages she is entitled to in respect of discrimination are determined and the matters finalised. We agree with all medical experts that until these proceedings are concluded the claimant will find it difficult to start to recover in any real way.

[257]We consider that the diversity in the views of the experts as to the impact and future impact off medical support is indicative of one being overly optimistic and one being overly pessimistic.

[261]We have therefore looked at the recovery of her health and the ability to return to work.

[266]We conclude that the rate of recovery will be somewhere between Dr Gupta’s pessimistic predictions and the optimism of Dr Mallet.

[269]During that period of time and for the foreseeable future, she is not likely to earn anything like the salary she was earning at the Portsmouth university.

[270]We agree that the claimant may be able to earn a salary of FTE £25- 30,000.00 on return to the workplace. This takes into account her skills and the likely increases in pay rates over the next few years, and also takes account of the minimum wage. We consider that her earnings would be, on balance of probabilities, in the region of £13,000 per annum net, on 1/2 time basis.

[271]We consider that at the end of that period of time, with greater confidence derived from being able to return to the workplace in some capacity, with time and distance from these events and with the benefit of intensive Case No: 1401084/2021 52 medical intervention, it is likely that the claimant could return to the workplace in a post equivalent to a grade 8 post.

[278]It seems likely that with proper support and encouragement the claimant could do extremely well. If she returns to work in the future with a supportive management structure, there is every chance that she will not only gain career satisfaction but will also progress within her chosen career.

[281]Therefore our conclusion is that there is a 50% chance of the claimant returning to work at a grade 9 post on a full time basis, within 10 years, that is by 2035.

[282]On that basis we find that the strong percentage chance is that the claimant will return to a grade 9 post by the end of 2035.

[284]The claimant asserts that had she remained in a grade 9 post at Portsmouth university she would have expected to progress to a grade 10 Case No: 1401084/2021 54 post, and it is submitted for her that we should therefore be granting loss of earnings and loss of pension loss on the basis that she would have obtained a grade 10 post within a short period of time.

[288]We observe that whilst this is no doubt a very fair assessment of Dr Sharma 's intentions the reality is that the more senior one becomes the more competitive the job market is.

[290]The respondents argued before us that the claimant’s loss of earnings should be limited to 10 years.

[291]The starting point for this is whether or not, absent discrimination, the claimant would have been reappointed to the seconded post. Case No: 1401084/2021 55

[292]We have borne in mind that the evidence before us at the full merits hearing indicated that in all cases where an individual had reapplied for an extension of a secondment it had been granted except in the claimant's case. The claimant says that this must mean that she had 100% chance of being reappointed to the post absent discrimination.

[293]The respondent's evidence before us in respect of the reappointment of secondment posts is sparse.

[298]The reason why the outcome was one which was tainted with race discrimination was because one person on the panel found racially discriminated against the claimant.

[300]In this case, all the evidence before us in was that there was another strong candidate applying.

[302]We have therefore considered the impact of a non-discriminatory third person having a casting vote.

[304]We have then considered what might have happened to the claimant in the reorganisation that we now know has taken place.

[305]We have considered the evidence of how other staff were treated, and how many of the grade 9 staff remained on grade 9. We find that nearly all staff who were on grade 9 and wanted to be retained on a grade 9 post Case No: 1401084/2021 57 were so retained. We all agree that claimants ambitions and her desire for progression mean that she would have wanted to be retained on a grade 9 post and would have been treated in the same way as other staff who wanted to be retained on grade 9 and indeed were retained on grade 9. We conclude the claimant would therefore have been retained on a grade 9 post following any reorganisation.

[310]Put another way, what is the chance that she would have gained a grade 10 or a grade 11 post by 2035? Case No: 1401084/2021 58

[311]We accept that the claimant was ambitious and capable and we accept that her career trajectory had, up until the point of her illness, been impressive.

[317]We also find that the reason why posts would have become available were likely to be because of people retiring or other people moving upwards into Case No: 1401084/2021 59 other positions either at the respondents or at alternative universities or as a result perhaps of restructuring. Taking all the evidence we have before us, we find that it is reasonable to have expected a relevant and appropriate opportunity to have arisen only every two years.

[318]Would the claimant have succeeded in obtaining one of those Positions?

[319]The claimant would have applied for such opportunities and would have competed on a level playing field with others they were also well qualified.

[321]We therefore calculate the loss of this chance as being 5% of the difference in salary between grade 9 and grade 10 for the 5 year period.

[324]The tribunal cannot award damages for future loss of earnings on the basis of such a speculative exercise and we do not do so in this case. Calculation of future loss of earnings Case No: 1401084/2021 60 Calculation of loss of earnings to date of trial.

[325]The claimant claims loss of income from the 1st January 2021 to October 2023 as a net sum of £36,160.15.

[326]The respondent asserts that loss of earnings until date of hearing is £25,900.52.

[329]We accept that these dates of the losses are correct and also that the assessment of the type of loss is correct, but we do not agree with the figures put forward by the respondent.

[331]We have reminded ourselves that loss of earnings are calculated net of tax and National Insurance and that there is therefore a question of Case No: 1401084/2021 61 grossing up. in this case our determinations in respect of grossing up are addressed in other paragraphs.

[333]Mr. Smith asserts that the full loss of salary until date of hearing should be calculated at the amount of £756.20 per week, or for four weeks at. £3024.08.

[337]To calculate this amount, we have taken the net figures of each band from a midpoint in August 2022. The monthly salary for grade 8 is £2890.60 and the monthly net salary for grade 9 is £3341.63. The difference Case No: 1401084/2021 62 between those two figures is £451.03 per calendar month, and 50% of the difference each month is £225.52.

[338]From January 2021 until October 2023 is 34 months and therefore the loss of earnings attributable to the 50% chance of being employed at grade 9 is 34 x £225.25 which is £7867.68.

[339]To this figure must be added the loss of earnings suffered by the claimant as a result of sickness absence.

[342]For the 23 weeks when the claimant was on half pay, her loss is (£2890.6x 12 /52) x 23 weeks = £15,342.42.

[343]The total amount of past loss to the date of the remedies hearing is therefore £7867.68. + £4335.90 + £15,342.42 = £27,546.00

[344]We therefore award this amount for past loss of earnings to date of the remedies hearing. Future Loss of earnings

[345]In respect of future loss of earnings, we have found that it will take the claimant a further two years, that is until end of October 2025, before she is able to return to work. Her continuing loss for that period of time is Case No: 1401084/2021 63 therefore the salary she would have received at grade 8 plus 50% of the salary she might have received had she been reappointed to the grade 9 post.

[348]We have first considered what the net salary for each post would be.

[350]We estimate that it will take two years for the claimant to return to any form of work and therefore her losses for the next two years are 2 years x (£35,177.52 x 2years)+ (£6170.64 x 2 years/2). This is £41348.16 £76525.68 net loss for the next 2 years.

[351]We have concluded that with medical assistance and the resolution of these proceedings, the claimant will be able to return to work in two years’ time, and will probably need to work part time in a lower paid role. We Case No: 1401084/2021 64 consider that there is a real chance that she will return to work on a part time or half time basis and will be able to earn therefore half of a notional salary of £26,000 net amounting to a salary of £13,000 per annum net.

[353]We conclude that it is highly probable that at some point in her future she will progress to a grade 9 post.

[354]We have also found that but for the discrimination the claimant had a one in 20 chance every two years after 10 years of progressing to a grade 10 post.

[355]We conclude on the basis of the medical evidence that this is now unlikely to happen.

[359]In respect of the initial period of 18 months, we assess the annual loss of earnings as £35,177.52+ 50% of £6170.64, but take into account the likely net earnings of £13,000.

[360]For the first year the loss is therefore £35177.52 + £3085.32 = £38262.84-£13,000.00. This is a figure of £25262.84. As this is 12 months, the remaining 6 months loss will be £12,631.42.

[361]We therefore award the claimant’s losses for those 18 months, net of £37894.26

[365]On that basis we therefore award eight years loss, being 50% of the difference between grade 8 and grade 9 net salary which is £3085.32 per annum net, or 8 x £3085.32 = £24682.56. Case No: 1401084/2021 66 365a. In respect of the loss of a chance, we have had to consider what the difference in pay might be in the future between a grade 9 post and a grade 10 post. we bear in mind that promotion might not necessarily have been at Portsmouth university but may have been at another institution. We also bear in mind that rates of pay may well increase in the future. We recognise that any calculation of a future loss of chance involves an element of guess work and it is not a precise exercise. 365b. We have therefore considered rates of pay at the point of reconsideration of the decision in 2024. The gross salary at grade 9 we have used is £64,914 per annum. The annual difference net between grade 8 and grade 9 is in the region of £5400. We do not have up rated rates of pay for grade 10, but assume that the difference will be greater and would assume a difference net between the grade 8 and grade 9 of in the region of £7000 per annum. Were there to be future raises in pay, and on the basis of the information we have before us, it appears that there is likely to be a similar level of difference between the two grades and that any increase in pay at the upper grade is compensated for by the accelerated receipt in this case. 365c. Taking that figure, we calculate that losses over five years would be £35,000, and that the 5% loss of that chance is therefore £1700.00. We therefore award this figure for the loss of a future chance of career progression to grade 10. Psychiatric illness