Miss L Webb v Hampshire and Isle of Wight Healthcare NHS Foundation Trust: 1404959/2023
EMPLOYMENT TRIBUNALS
Case No 1404959/2023
Between
Miss L WebbClaimantHampshire and Isle of Wight Healthcare NHS Foundation Trust RECONSIDERATION JUDGMENT The application for reconsideration is refused.RespondentIn person for claimantMr Adjei (instructed by Counsel) for respondentDate 20 January 2025
JUDGMENT
The application for reconsideration is refused.
REASONS
[1]The Claimant has applied for a reconsideration of the oral Judgment dated 20 January 2025.[2]The grounds are set out in two emails both dated 21 January 2025 which appear to be identical save that the first one timed at 00:44 is referred to as grounds for appeal and the second one timed at 09:44 is referred to as grounds for reconsideration.[3]Considering the Employment Tribunal Procedure Rules 2024 (“the Rules”).[4]Under Rule 69 an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The Claimant’s application has been made before the written record of Judgment has been sent to the parties, however the Tribunal notes the application was made in the early hours of 21 January, so very proximate to the last day of the final hearing, and therefore in line with Rule 6 it has proceeded to consider the Claimant’s application.[5]The grounds for reconsideration are only those set out in Rule 68(1), namely that it is necessary in the interests of justice to do so.[6]Pursuant to Rule 70(2) if the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked that application shall be refused and the parties informed of that refusal. Case Number: 1404959/2023[7]The Tribunal consider that there is no reasonable prospect of the original decision being varied or revoked so refuse the application. Within the Claimant’s emails, the Claimant expresses that she disagrees with the decision reached. However, all the points raised by the Claimant were raised at the hearing or could have been.[8]The application for reconsideration is therefore refused.[2]This is a complaint of unfair dismissal, and sex and/or sexual orientation discrimination by Miss Webb against Hampshire and Isle of Wight Healthcare NHS Foundation Trust.[3]The Claimant was employed by the Respondent between 16 July 2018 and 11 January 2023 as a healthcare assistant.[4]The ACAS certificate is dated from 11 March 2023 to 22 March 2023.[5]By a claim form presented on 22 April 2023 the Claimant brought the following complaints:a. Unfair dismissal;b. Discrimination on the grounds of age, disability, race, sex, sexual orientation, gender reassignment and religion or belief;c. Detriment on the grounds of public interest disclosure;d. Breach of contract (relating to notice).[6]As recorded in the case management order of Employment Judge Dawson, by email dated 29 July 2023 the Claimant withdrew her claims of discrimination on the grounds of age, race, gender reassignment and religion or belief.[7]At the Case Management Preliminary hearing before Employment Judge Dawson on the 5 October 2023, following identification of the issues, the Claimant agreed that she did not appear to be pursuing claims of victimisation or whistleblowing. However, the Claimant was to confirm the position at the subsequent preliminary hearing listed to take place on the 1 February 2024.[8]As recorded in the case management order of Employment Judge Gray, at the Case Management Preliminary hearing on the 1 February 2024 the Claimant acknowledged her notice was 4 weeks and that she had received that. The complaint for notice was withdrawn by the Claimant and dismissed as confirmed in the separate Judgment.[9]Further, the Claimant withdrew her disability discrimination complaints and those were dismissed on withdrawal, as confirmed in the separate Judgment.[10]In respect of the complaints of victimisation and whistleblowing, the Claimant confirmed she did not want to claim those either and they were also dismissed on withdrawal as set out in the separate judgment. 2 of 42 THIS HEARING[12]This final hearing was to determine matters of liability only. It was listed as a hybrid hearing so that certain of the Respondent’s witnesses could deliver their evidence via video link.[13]At the start of this hearing, it was confirmed that by consent the title of the Respondent was amended to “Hampshire and Isle of Wight Healthcare NHS Foundation Trust”.[14]For reference at this final hearing, we were provided with:a. A hearing bundle of 1,354 pages. To this was then added a copy of the Respondent’s Workforce Investigation Policy & Procedure (11 pages).b. The Respondent’s chronology and cast list.c. A document from the Respondent correcting page reference errors within its witness statements.d. Witness statement from the Claimant.e. Witness statements on behalf of the Respondent from: i. Helen Morgan (HM) ii. Julie Edwards (JE) iii. Carol Adcock (CA) iv. Wendy Rees (WR) v. Nicky McDonald (NM) vi. Susan Findlay (SF) vii. Lisa Dalton (LD) viii. Marcia Milledge (MM) ix. Tracey Phebey (TP) x. Rachael Mejia (RM) xi. Steven Lealman (SL)[15]As a preliminary issue the Respondent asserted the Claimant was in breach of an Unless Order made by consent at the Case Management Preliminary Hearing 3 of 42 before Employment Judge Gray on the 3 December 2024. It also applied for the Claimant’s claim to be struck out in the alternative.[16]Matters concerning the asserted breach of the Unless Order were determined for the oral reasons given at the time having heard evidence from Alex Chitty on behalf of the Respondent and from the Claimant, and then oral submissions from the parties. In short, the decision was that the Claimant was in breach of the Unless Oder but should be given relief of sanctions (as confirmed by separate Judgment). After that decision. the Respondent confirmed it no longer made an application for strike out in view of the findings made in respect of the Unless Order.[17]At the start of the hearing the Claimant indicated that she may need to apply for a witness order but upon confirming the issues in this case (as set out in Annex A below) and the witnesses that were attending this final hearing, the Claimant confirmed that she no longer made such an application.[18]At the conclusion of the parties evidence the Claimant made an application to submit a late statement from a Ms S Coombes. The Respondent objected. It was noted that the statement was not signed or dated, was for a witness not attending this hearing and related to matters prior to the material dates in this claim. Further, this was not a witness the Claimant had previously applied for a witness order for. Having discussed these issues with the parties, the Claimant confirmed that she no longer applied to submit the statement.[19]The hearing timetable previously agreed with the parties was broadly met with oral closing submissions concluding on day 8 instead of day 9 meaning oral Judgment was delivered on day 11.[20]Written reasons have since been requested by the Respondent by correspondence dated 6 February 2025 and are now provided.[21]THE ISSUES[22]At the Case Management Preliminary hearing before Employment Judge Gray on the 1 February 2024 the issues for determination at this final hearing were confirmed and agreed. A copy of those agreed issues is set out below at Annex A.[23]THE FACTS[24]We found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after considering the factual and legal submissions made by and on behalf of the respective parties.[25]On the 16 July 2018 the Claimant commenced employment with the Respondent as a Band 2 Healthcare Assistant.[26]The Claimant describes herself as bisexual. 4 of 42[27]It is not in dispute that it was by email dated 5 May 2022 (page 643 of the hearing bundle) that the Claimant confirms her sexuality to the Respondent … “Hi all just letting you know I am 100% bisexual & proud to be part of pride”. The email is sent to Sue Findlay, Marica Milledge, Helen Morgan, Tracy Phebey, Charlotte Hutchinson, Anneliese Reynolds, Lisa Dalton, Julie Edwards and headed “Coming out”.[28]The first allegation that arises chronologically in this claim is the allegation of direct sexual orientation discrimination that in December 2021, Lisa Dalton, told the Claimant that she could not have a say on patient care at handover times (5.2.12).[29]LD was not aware of the Claimant’s sexual orientation at that time. LD refers to the specific allegation in her witness statement at paragraph 11 stating that what she did was not on the grounds of the Claimant’s sexual orientation explaining that … “I informed her that it was not appropriate to ask questions during handovers (between the night staff and day staff). The handover would happen in a group setting and I advised the Claimant not to ask questions during the handover as she was becoming confrontational.”.[30]LD provides an example of this in her witness statement (paragraph 12) and gave a further example in her oral evidence (reference being made to page 452 of the bundle). Reference is also made to such matters in LD’s statement dated 24 December 2021 (page 416 of the hearing bundle).[31]From this we accept that it is the Claimant’s conduct at such handovers that is the reason why LD determines it was not appropriate for the Claimant to ask such questions in handovers, and the reason for the instruction given.[32]Next the Claimant had claimed that in December 2021 Lisa Dalton, Sue Findlay and Daniel Hughes told the Claimant that she could not answer the ward telephone as an allegation of direct sexual orientation discrimination (5.2.13), however the Claimant withdrew this allegation at the conclusion of her oral evidence. Despite this, we have referred to it within our fact find as it is part of the matters that led to the first investigation against the Claimant.[33]LD refers to this allegation in paragraph 13 of her witness statement … “I do not recall this instruction; all staff could answer the phone. However, the Claimant did on one occasion refuse to accept a patient on the ward which was a decision she was not authorised to make and it may have been for this reason that we asked her not to answer calls as she was making independent decisions which she was not authorised to do (P308). Again, this would have been a decision based on the Claimant’s behaviour of not following rules, potentially putting patients at risk and overstepping her professional boundaries and not because of her sexual orientation.”.[34]SF refers to this allegation in paragraph 8 of her witness statement … “I do recollect on a weekend, that the Claimant made a medical decision not to take on a new patient, without seeking authorisation from someone senior (P308). The Claimant was told not to answer the phone because she made a decision outside 5 of 42 of her role which caused a patient to remain in hospital when they could have attended Ford Ward to begin their rehabilitation because a bed was available. This was not because of her sexual orientation. We were required to provide a service to patients, which would be jeopardised if the Claimant had made incorrect decisions and not escalating queries where necessary.”.[35]We can understand why the Claimant withdrew this allegation. Nether LD nor SF were aware of the Claimant’s sexual orientation at this time and have provided evidence of their reason for what they did which has nothing to do with the Claimant’s sexual orientation.[36]Issues such as the questioning at handovers and the answering of phones amongst others lead the Respondent to undertake an investigation into the Claimant’s conduct at work. On the 7 January 2022 Helen Morgan commissions Julie Edwards to investigate the Claimant’s conduct and this becomes the First Workforce Investigation (page 442).[37]The matters under investigation are:a. That Lisa Webb has failed to adhere to the professional boundaries and Trust values, during interactions with staff and patients. As demonstrated through verbal comments, which have been perceived to be rude, aggressive and disruptive to the service.b. That these interactions have led to a breakdown in professional relationships across the team.c. That Lisa Webb does not give due care and attention to her work environment, failing to adhere to storage and cleanliness requirements of uniform.d. That Lisa Webb has on multiple occasions left the ward without informing anyone of her absence, for varying periods of time, outside of her break times.e. That Lisa Webb’s behaviour and actions have led to a failure in supporting patients in line with their care plans, for example not responding to call bells, or modifying mobility plans.f. There is an inconsistent approach to understanding of scope of practice and role definition, understanding what is required as a band 2.[38]During her cross examination of the Respondent’s witnesses the Claimant focused on how she believed she was being disciplined for her COVID mask wearing, whereas others were not. However, this is not what is being investigated and the third allegation where references to masks were made by the Claimant and others was not going to be progressed to a disciplinary. As JE states in paragraph 12 of her witness statement … “On 4 April 2022 I provided my Investigation Report to Ms Helen Morgan (P573-611). Based on the information I had gathered during the investigation and fact-finding processes, I found that 6 of 42 there was a case to answer and explained why in my report, apart from allegation 3 because other staff were also found not adhering to wearing PPE.”.[39]On the 11 January 2022 the Claimant is notified of the First Workforce Investigation and that she will be working at Lymington Hospital while the First Workforce investigation in ongoing (pages 455 to 456).[40]The Claimant claims that the redeploying her in January 2022 to Lymington Hospital was an act of direct sexual orientation discrimination (5.2.1).[41]HM addresses this allegation in paragraph 10 of her witness statement … “The Claimant alleges that she was redeployed to Lymington Hospital in January 2022 because of her sexual orientation. This allegation is untrue, she was supported in a move to Lymington which was facilitated by me to allow her to remain working while the First Workforce Investigation was completed. When we were discussing the move, there was no mention of the Claimant’s sexual orientation. The Claimant’s move was also to reduce the risk of conflict between her and other staff members at the Ford Ward. It was whilst she was in Lymington Hospital and on 05th May 2022 when I received an email from her in the middle of the night which stated that she was ‘100% bisexual’ (P643)). This was when I first became aware of the Claimant’s sexual orientation. As such it could not have factored into the decision to move her as I did not know at the time, nor would it have done even if I did know. It was not unusual to receive random emails from the Claimant and I felt that this was a positive step for the Claimant. Following this, she was comfortable enough to express herself by way of wearing pride colours, attended LGBTQ events and was granted annual leave to attend the Pride festival. I recollect she came back from the festivities and showed me photographs of the celebrations.”.[42]We note that HM was not aware of the Claimant’s sexual orientation when the decision was made. HM also seems to be supportive of the Claimant after she had declared her sexuality, as can be seen from an email she sent the Claimant on the 2 August 2022 (page 710). Further, we note here that the First Workforce Investigation against the Claimant was not continued, despite a case to answer being identified, which if HM had a bias against the Claimant because of her sexuality, would have been a vehicle by which it could have been exercised.[43]Over the period of July 2019 to March 2022 the Claimant complains that she was refused to be allowed to undertake phlebotomy training. It is not in dispute that the Claimant asked Sue Findlay for this in appraisals on 28 July 2019, 19 May 2020 and 14 April 2021 and by email on 6 October 2021, and asked Marcia Milledge on 17 March 2022 (5.2.19).[44]In cross examination the Claimant accepted that the decisions made by SF and MM were before they knew she was bisexual. Also, that the same decision was then subsequently made by HM (letter to Claimant dated 24 June 2022, page 677) for the same reasons as given by SF and MM (in short that there was no resource need for it) after HM was informed of the Claimant’s sexuality, and that she did not claim direct sexual orientation discrimination against HM about this. The Claimant acknowledged that it was not therefore discrimination by SF and 7 of 42 MM. Despite that acknowledgment the Claimant confirmed at the conclusion of her oral evidence that she did not want to withdraw this allegation.[45]The Claimant’s investigation interview for the First Workforce Investigation report takes place on the 18 March 2022 (pages 532 to 542).[46]The First Workforce Investigation report is dated 2 April 2022 (pages 573 to 611).[47]The Claimant alleges that in the workforce 1 investigation, through the statement of Daniel Hughes, she is discriminated against on the grounds of her sexual orientation because it says that the Claimant was not allowed to walk patients and not allowed to liaise with doctors in the multidisciplinary team because she did not have qualifications (which was incorrect) (5.2.14).[48]The Claimant confirmed in cross examination that it was the following parts of the investigation statement of Daniel Hughes (DH) that are relevant to this complaint:a. “In relation to qualified staff DH said they had to watch Lisa for example – There was a patient who had dementia who could hardly walk. Lisa took the decision to encourage this patient to walk on her own for about the length of 8 feet. DH said Lisa thought she was a qualified nurse and all qualified staff had to keep an eye on her as patients were at risk from her decisions.” (page 494).b. “DH said he could recall an incident where Lisa made a patient walk where there was a very real risk of this patient getting hurt as Lisa was not walking with her. DH said that Lisa was stood at the doorway 2 – 3 feet behind the patient. DH said on this occasion Lisa had decided around this patient’s mobility of which she was not qualified to do.” (page 495).[49]The Claimant accepted in cross examination that she had not told DH about her sexuality at the time he was interviewed. The Claimant confirmed that she disagreed with what DH said about her, asserting that there was a disagreement on what could be done, and she believed she was acting correctly, believing she had completed a risk assessment for the patient. The Claimant agreed that the reason DH gave the account he did couldn’t be because she was bisexual because he didn’t know that at the time.[50]About the interviews given in respect of the first workforce investigation the Claimant claims that Steven Lealman and Daniel Hughes called her a nut job and MOSH within the statements they gave to Julie Edwards and that this is harassment, being unwanted conduct related to her sex or sexual orientation (10.1.2).[51]It is not accepted by the Respondent that SL and DH called the Claimant a nut job and MOSH within the statements they gave to Julie Edwards.[52]SL at paragraph 12 of his witness statement says … “To provide some context, on 13th January 2022, I may have said to the Claimant ‘Oi mush are you ready’. The term “mush” is a British slang word for ‘mate and/or friend’, and can be found on lists of slang such as Urban Dictionary. It is a generic word, often used as a 8 of 42 term of endearment. I do not recall saying it, but consider that I may have said this. I am from Southampton, where this this term is used quite often, and it does sound like something I would say. However, I did not say this to the Claimant in an abusive, discriminatory or harassing way, and I had assumed the Claimant knew this slang term. If anything, I was using this phrase as a way to re-build a light hearted and friendly relationship with her, in light of the recent events which had created tension between us, which was unwanted on my side.”.[53]Then at paragraph 13 … “The Claimant has alleged in her claim that, I used this term because of her sex and/or sexual orientation. I do not agree with this allegation. The term ‘mush’ is a unisex term, which bears no connection to a person’s gender or sexual orientation, and I have used it for men and women. I was not aware of the Claimant’s sexual orientation at the time of making this comment. I cannot remember if I was ever aware of the Claimant’s sexuality during the course of our employment as this is not something I would care or think twice about. ….”.[54]And paragraph 15 … “During the interview, I told Ms Edwards that on 30 December 2021, the Claimant probed me about my work ethic and in the heat of the moment, I called her a ‘nut job’. However, I explained that I had apologised for this immediately and expressed remorse for my behaviour. When saying this to Ms Edwards, the phrase was said within the context of the interview explaining an incident. It was not intended to call the Claimant any names but simply recalling an incident which had taken place. There was no intention by me to cause harassment to the Claimant, as she was not at the interview when I explained what happened. At the incident itself, I apologised to the Claimant.”[55]We note that the reference in SL’s interview statement dated 9 March 2022 is to “a nutter” (page 618) … “This escalated with SL stating Lisa was pushing and pushing him resulting in him stating Lisa was “a nutter” to which LS [SL] immediately recognised should not have said that and apologised.”.[56]As SL explains in paragraph 16 of his witness statement … “I regret saying this word but it had nothing to do with the Claimant being a woman or being bisexual. It was made in the heat of the moment and having endured all the previous incidents and comments from the Claimant, I felt fed up at this point. I regretfully reacted in an inappropriate way but I did not want to make the Claimant feel uncomfortable…”.[57]The investigation interview of DH dated 5 March 2022 (page 495) records him saying … “Steve referred to Lisa as a “nutjob”.”.[58]Neither SL nor DH are calling the Claimant that term in their interviews. They are both recounting what they recall having happened.[59]There is no reference to the term mush or mosh in the interview notes of SL or DH.[60]When questioned about these terms in cross examination the Claimant referred to them as relating to mental health or being racist. This is consistent with what she raised with the Respondent at the time asserting the terms were racist in her Second Workforce Investigation interview on the 2 November 2022 (page 866). 9 of 42 At that interview the Claimant’s union representative confirmed that the term “mush” is slang for “mate” (page 866). It has not been evidenced that either SL or DH knew of the Claimant’s sexuality at this time.[61]The Claimant also alleges as an act of harassment that in the statements made in workforce investigation 1, they say that the Claimant should seek mental health treatment (10.1.1). It is not accepted by the Respondent that the statements made in workforce investigation 1 say that the Claimant should seek mental health treatment. The Claimant has not identified any such references either. It has therefore not been proven on the balance of probability as a matter of fact that the Respondent or its employees did such a thing. Even if such comments were made, they would be before the Claimant sent her “Coming out” email to certain staff at the Respondent.[62]On the 23 April 2022 the First Workforce Investigation report is amended as referred to in an email from JE at page 630 of the bundle … “Please find updated report – I have made a few changes namely only partially upholding allegation 3 around the uniform as no direct witnesses to the event and also statements suggesting others wore scrubs at times and not all staff adhered to wearing of a face mask – hope this is ok. Have also added in more mitigating factors as a theme running through concerns for Lisa wellbeing.”.[63]The Claimant claims that as an act of direct sexual orientation discrimination the Respondent failed, on a complete and wholesale basis, to apply any of the trusts policies or procedures in workforce investigation 1 (5.2.2).[64]The Claimant relied upon the Respondent’s Workforce Investigation Policy & Procedure and in particular page 4 and the first bullet point of that policy which reads … “To always consider issues of equality, cultural difference and diversity which impact certain groups of staff more than others, using regular reports and information to inform change”.[65]The complaint was put generally to several of the Respondent’s witnesses, and it was denied by them. The Claimant suggested that by the process focusing on just her that was where the inequality arose. The Respondent witnesses questioned about this explained that the process was about the Claimant as it related to complaints about her. It was also noted during evidence that where criticism was raised with others over COVID mask wearing, this was not a matter that was pursued against the Claimant only and that element of the allegations against the Claimant was not progressed. It is for the Claimant to prove on the balance of probability such a failure to apply policies and procedures, and she has not done so. Asserting there is a breach of a policy or procedure is not the same as proving there was such a breach.[66]Neither HM who commissioned the investigation nor JE who conducted the investigation were aware at that time of the Claimant being bisexual.[67]Also, as an act of direct sexual orientation discrimination the Claimant claims that Sue Findlay, Marica Millage and Lisa Dalton refused to allow the Claimant to take holiday over Christmas 2022 despite her requesting it a year before, and ultimately Helen Morgan authorised the leave (5.2.10). 10 of 42[68]The Claimant confirmed in cross examination that this complaint relates to an email dated 19 April 2022 that LD emails a number of staff including the Claimant writing … “We have recently been having requests for annual leave over the Christmas period. Sue and I have reviewed this and have made the decision that NO leave will be granted from 25/12/22 till 1/1/23 accept in special circumstances and this request will need to be in writing to sue for matrons approval.”.[69]The Claimant then complains to the Respondent about this, and it is not in dispute that her leave request is then approved.[70]There is no evidence to suggest that LD knew of the Claimant’s sexuality at the time. It is also a decision that is applied to a number of staff.[71]The Claimant alleges as an act of direct sexual orientation discrimination that from the time of the first workforce investigation, the Respondent failed to fairly roster the shifts, in that the Claimant was rostered on two late shifts and not allowed night shifts. The Claimant alleges the staff involved were Helen Morgan, Tracey Phebey, Charlotte Hutchinson and Marcia Millage (5.2.11).[72]TP addresses this allegation in her witness statement at paragraphs 9 and 10 … “I can confirm that as of 3rd May 2022, it was collectively agreed with the Claimant, Ms Morgan and I, but not Marcia Milledge, that she would only work three long days per week and that she would not book in any overtime for the following two weeks as explained above. It is possible that at this point she was already rostered for two late shifts and this is automatically generated by the system, but following this meeting, the work pattern had been agreed and she was instructed not to take or do any night or late shifts.”. … “The change took place because the Claimant was still new to the ward and we were concerned about her being vulnerable and not receiving the necessary support over the weekend or during night shifts. I noticed that the Claimant’s behaviour worsened when she was trying to pick up extra shifts on other wards (P550). Keeping this in mind, Ms Morgan and I felt it might be best to reduce the Claimant’s hours because of our observations of her fatigue, agitated attitude, erratic conduct and concentration levels were effecting the team as well as patient care. The examples of the concerns I had observed were reported in the workforce investigation (P1005).”. This change also ensured the Claimant had reduced travel times and costs as she was travelling to Lymington Hospital which was approximately 45 minutes further from her home than Fordingbridge Hospital and the Ford Ward.[73]This is consistent with what HM tells us in paragraph 13 of her witness statement, and we are referred to a note of the meeting at page 663 of the bundle.[74]These decisions were taken in agreement with the Claimant and before the Claimant’s sexual orientation was known to them.[75]Chronologically it is by email dated 5 May 2022 (page 643) that the Claimant confirms her sexuality to certain members of staff at the Respondent. The email is sent to Sue Findlay, Marica Milledge, Helen Morgan, Tracy Phebey, Charlotte Hutchinson, Anneliese Reynolds, Lisa Dalton, Julie Edwards and headed “Coming out”. 11 of 42[76]It is not in dispute that the First Workforce investigation does not progress to any formal action against the Claimant, instead the Claimant being offered support in her role. A summary of this is referred to in the Second Workforce Investigation Report (page 956) … “The investigation was concluded and Lisa was informed that the investigation would progress to a hearing, then later the decision was taken to stop this and obtain further advice regarding Lisa Webb’s health. Subsequently, Lisa Webb was informed verbally and in writing (appendix 39) that the outcome was “Whilst the allegations in the workforce investigation were upheld, I have made the decision not to progress to a disciplinary hearing but instead to support you through the Managing Health and Sickness Absence Policy.”.[77]As part of that process the Claimant is referred for a neurodiversity assessment. As HM explains in paragraph 14 of her witness statement … “The neurodiversity assessment was requested as the Claimant appeared not to be able to process information fully and did not at times appear to understand the perspective of others. I arranged the neurodiversity assessment for the Claimant to establish if there were any underlying health reasons that may require support in the workplace to enable the Claimant to perform well in her job. The appointment was booked at Lymington for the screening because, it was her place of work at that time, and provided a private room that could be used for her online appointment. There was no appropriate available space at Ford Ward and it was not an appropriate location given the historical issues she had. The Claimant consented to this appointment and she was advised as to why the appointment had been arranged and the reason why this could not take place at Fordingbridge (P695). This decision had no relevance to the fact that the Claimant was female and bisexual. We just wanted to ensure she had the right support that was appropriate in the circumstances. (P680-691)”.[78]Also, at paragraph 17 of HM’s statement … “On 11th July 2022 Ms Findlay advised me that she received a text from the Claimant asking for her OH assessment to be undertaken at the Fordingbridge outpatient department. She asked me not to allow this due to a risk of the Claimant attending Ford Ward and upsetting the staff (P681). There was not appropriate support or capacity within the outpatient service to facilitate the Claimant’s request. Had it been possible it would have been explored with the Claimant.”.[79]The Claimant claims that requiring her to attend for a neurodiversity appointment somewhere other than Fordingbridge is direct sexual orientation discrimination (5.2.20) and direct sex discrimination (7.2.3).[80]As HM says, the Claimant was based at Lymington at that time. We accept what HM says that there was no suitable available space at Ford Ward or capacity at the outpatient department. The evidence presented to this Tribunal shows HM being supportive of the Claimant after her “Coming out” email.[81]It is concerning the arrangement of the neurodiversity appointment that on the 6 July 2022 HM emails the Claimant informing her that she should only visit Ford Ward and other ward settings at Fordingbridge Hospital if the Claimant had a 12 of 42 booked appointment to do so … “I wanted to update you that there have been changes to our IPC guidance today and that no visiting is permitted into inpatient areas without a booked appointment to reduce covid spread. For this reason I need to ask that you only visit Ford ward or other ward settings if there is a booked appointment for you to do so. If you need to drop anything off we can book this, or it can be arranged in a different way.” (page 680).[82]It is not in dispute that the Claimant does attend Fordingbridge Hospital without such a booking on the 16, 17 and 18 July 2022. This then prompts the second workforce investigation which then leads to the Claimant’s dismissal.[83]On the 27 July 2022, before the Second Workforce Investigation commences, the neurodiversity assessment report is produced which confirms that the Claimant does not have a learning disability or neurodiversity related condition (pages 699 to 701).[84]On the 9. August 2022 the Claimant is notified that there will be a Second Workforce Investigation regarding her attendance at Fordingbridge Hospital (pages 715 to 717).[85]The Claimant is then investigated in respect of the following conduct:a. That during July 2022, Lisa Webb chose not to follow a direct instruction not to attend Ford Ward, unless proactively arranged, because of changes to covid visiting protocols.b. That Lisa Webb attended Ford ward on the 17 July 2022 and remained on the ward for a prolonged period when there was no work-related requirement to be there.c. That Lisa Webb was verbally and publicly aggressive, and made verbal threats towards staff on the ward which included reference to their families on the 17 July 2022.d. That Lisa Webb refused to leave the ward and caused staff member to be distracted from patient care on the 17 July 2022.e. That Lisa Webb returned to the ward on two further occasions during the 18 July 2022 despite being advised by the On-call manager the previous day that this was not to occur.f. That Lisa Webb remained at the Ford site on the 18 July 2022, sat outside the building dressed in scrubs with her name badge on, until she was directed to go home by the Associate Director of Physical Health.g. That Lisa Webb returned again on the 18 July 2022 and voiced her intention of being at Ford Ward was to make other staff feel uncomfortable and intimidated. 13 of 42[86]On the 2 November 2022 there is the Claimant’s investigation interview for the Second Workforce Investigation report (pages 861 to 868). The Claimant does not deny attending on the 16, 17 and 18 July 2022 although she cannot definitely recall if she did attend on the 16 July 2022.[87]It is on the 9 December 2022, that the Second Workforce Investigation report is completed (pages 946 to 1011).[88]The report is extensive running to 66 pages and involving the interviewing of 11 witnesses as well as the Claimant (pages 953 to 955). It also includes a review of the Claimant’s current medical assessments.[89]The Report concludes (pages 1010 to 1011): “There have been issues with Lisa Webb’s conduct prior to this investigation, and these were considered evidenced, but were not upheld as a hearing did not occur, but felt to be managed most appropriately using the Managing Health and Sickness Absence Policy. Concerns have been raised as to the appropriateness of Lisa Webb’s level of clinical involvement and this was being addressed prior to this incident. Over a three day period, Lisa Webb attended Ford ward and this had an impact on staff, patients and relatives. Clinical care delivery was impacted, and patients were affected as the windows and doors of the ward had to remain shut. Patients could not sit outside with visitors. Lisa Webb told staff that she was a F1 doctor and this caused a degree of concern, as did other comments that Lisa made to staff, which were considered threatening in nature. All of the allegations are considered to be evidenced, either by Lisa Webb’s admission or due to the substantial number of witnesses testifying. Lisa Webb has had a number of health reports, and a Consultant Psychiatrist has found her not to be psychotic but experiencing anxiety. In light of this, these issues are considered to be an issue of conduct. The prolonged nature of her hostility towards staff, as well as the escalation over this three day period, could be considered to be both misconduct and gross misconduct according to policy.”.[90]The Claimant claims as an act of direct sexual orientation discrimination that the Respondent failed, on a complete and wholesale basis, to apply any of the trusts policies or procedures in workforce investigation 2 (5.2.3).[91]The complaint was put generally to several of the Respondent’s witnesses, and it was denied by them. It is for the Claimant to prove on the balance of probability such a failure to apply policies and procedures, and she has not done so. Asserting there is a breach of a policy or procedure is not the same as proving there was such a breach. 14 of 42[92]The Claimant claims as an act of direct sexual orientation discrimination that the investigation failed to establish that witness statements made were malicious (5.2.6).[93]The Claimant was asked to clarify in cross examination what she considered to be malicious statements. She confirmed that it was the investigation statements of SL referring to her as a nutter and mosh. However, it was highlighted to the Claimant that neither statement referred to mosh. With reference to use of the word nutter the Claimant explained that it was maliciously meant towards her and her mental health but not her sexuality. The Claimant then asserted that she believed SL did use the term nutter because of her sexuality and sex. Further, that mosh is a misgendering, translated as if a female was a male. This is not a definition the Tribunal is familiar with, and no evidence was presented by the Claimant to support it. We also note that the Claimant did not maintain this position in cross examination when asked to confirm that the word mush is not connected to being bisexual or a woman, she confirmed that it is a racial discriminatory term. Reference to the Claimant believing it to be racist is consistent with what she asserted to the Respondent at the time of the second investigation (page 866). The Claimant also asserted that “a nut job” is a phrase that would only be used towards woman. We do not accept this assertion.[94]Some of the Respondent witnesses were asked generally by the Claimant if they accepted that malicious statements had been made against her. All who were asked confirmed that they did not see any evidence of malicious statements or believe that any were made maliciously. SL did not accept that he had been malicious towards the Claimant.[95]The Claimant has not established on the balance of probability that any of the witness statements made were malicious, so has not established a failure to do so on the part of the Respondent.[96]The Claimant claims that by Rachael Mejia and Sue Findlay stating the Claimant should be sectioned during the second investigation it is an act of direct sexual orientation discrimination (5.2.21) and direct sex discrimination (7.2.4) and harassment (10.1.3).[97]It is denied this was said.[98]The reference to it in SF’s interview statement for the second investigation is where she asks for it to be added that … “On 18/7/2022 at approx. 0900 I had a discussion with Rachel meja [SIC] about Lisa Webb and the incident on 17/7/2022 I became very upset as Rachel said that she felt Lisa needed sectioning under the mental health act. I had to end the conversation and step outside of the ward. The reason that I became upset was because my daughter suffered with mental health problems and committed suicide 2 years ago.” (page 903).[99]It is clear from this that SF is reporting what was said to her.[100]There is no reference to it in RM’s statement (pages 799 to 802). 15 of 42[101]RM explains what was said in paragraphs 8 and 9 of her statement: “8. I understand that the Claimant alleges that I discriminated against her and harassed her because of her sex and sexual orientation by stating during the second workforce investigation that she should be sectioned. I did not say this during the workforce investigation. This was mentioned during a conversation I had with Susan Findlay (Ward Manager) who was on the ward during the incidents over the weekend of 16-18th July 2022. I spoke to Ms Findlay about how concerned I was about the Claimant’s mental health, because of the conversation I had with the Claimant on 17th July 2022. The fact that the Claimant travelled to Fordingbridge Hospital thinking she needed to work (despite already working in Lymington Hospital), gave me real concerns over her own safety and as well as the safety of other people and patients. The comment around being sectioned was a question posed in the context of the Claimant’s erratic and bizarre behaviour, which gave cause for genuine concern about her health at the time. It had nothing to do with the fact she was a female or that she was bisexual. People are entitled to help and support irrespective of these characteristics. I knew she had a community mental health team as she had shared this with me when I asked if she had anyone one to support her, and I recollect making sure, (during my call with the Claimant) that she had all the protective factors in place, including support from her GP and family. In my leadership position, and as a registered nurse I am very careful about the support that is offered to employees and where necessary we refer employees to Occupational Health services, which I know was done in the Claimant’s case (P801). 9. At the time of the second workforce investigation, including at the time when I was interviewed, I was not aware of the Claimant’s sexual orientation and therefore there was no motivation for me to make any comment….”.[102]The Claimant accepted in cross examination that such a comment was not made by RM due to the Claimant’s sexual orientation. No evidence has been presented to suggest it was said on the grounds of or related to the Claimant’s sex.[103]Given the date that the claim form was presented (22 April 2023 (page 2 of the hearing bundle)) and the dates of early conciliation (11 March 2023 to 22 March 2023 (page 1 of the hearing bundle)), any complaint about any act or omission which took place before the 12 December 2022 (allowing for the extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction. This applies to all the allegations we have so far referred to.[104]The Claimant had not provided any evidence within her witness statement about reasons why her claim form was submitted when it was. She was asked in oral evidence if there was anything that prevented her from putting her claim in before she did. The Claimant confirmed that there was not, save that she had posted her claim to Leicester as well as submitting it online and this resulted in two receipt dates, 22 April 2023 for the online form and 27 April 2023 for the claim form sent to Leicester. The claim has been confirmed as submitted on the 22 April 2023, so no time was lost as a result of what the Claimant did. 16 of 42[105]It is on the 11 January 2023 that a disciplinary hearing chaired by Wendy Rees (Divisional Director of Operations) takes place. The Claimant is represented by her union at this hearing. The outcome is that the Claimant is summarily dismissed for gross misconduct (pages 1040 to 1060).[106]By letter dated 16 January 2023 written confirmation of dismissal is sent to the Claimant and notification that the Respondent had decided to give the Claimant 4 weeks notice despite a finding of gross misconduct (pages 1061 to 1063). The letter confirms that: “Having considered all the evidence, the panel concluded as follows. In interview and through discussion in the hearing, you have confirmed that you did attend Ford Ward, multiple times on the dates shown above, in spite of having clear instruction not to do so. You had been made aware of this instruction in face-toface meetings, by email, by letter and by management directly, on the days you attended. You were asked to leave by several colleagues, whom you ignored, before they felt it necessary to seek support from the on-call senior manager. Whilst attending the workplace, your behaviour was aggressive and intimidating. Comments made to staff were made in a location, where conversations can be heard by patients. You behaved in a way that goes against the Trust values. Staff members felt at risk from you, and felt they had to change the routines on the ward, felt they couldn’t go alone to their cars and that they had no option but to call Security to ask for support. As well as failing to follow a reasonable management request not to attend Ford Ward, these actions were also against safety instructions from Infection Prevention Control, put in place to keep vulnerable patients and staff safe from Covid, during the Pandemic. As such, the allegations have been evidenced and are upheld. At the hearing, you shared that the last year had been stressful and that the investigation in January had been based on hearsay. Also, that there had been evidence provided in January, that witnesses were racially discriminating and sexually harassing you, and that this was in the hearing pack. The sexual harassment relating to your wearing scrubs and the racial comments being two comments aimed at you. We took the time to explore this, however, there was no evidence within either of the investigation packs which supported these concerns. No one in either investigation, had made a reference to either gender identity, sexual orientation or made comments of a sexual nature. The reference to scrubs was in regard to you being in a uniform at your place of work, when not rostered to be there and having been told not to attend. This could’ve been seen by patients and visitors, that you were working, when in fact you were not. Also, there was no reference to scrubs in the January investigation allegations. In regard to racial discrimination, it was clear that there was no evidence of racial discrimination in the documents available to the panel. Whilst the panel do not agree with the staff comments, it was shared that both incidents had been addressed, with apologies given and action taken at the time. Also, that all staff have the right to confidentiality, and as such, the detailed outcome for both these staff members cannot be given to you. 17 of 42 You said your behaviours, were due to feeling harassed by staff and that you were frustrated, as their behaviour was a hate crime. When asked how you had raised these concerns, you shared that you had sent an email to Sue Findlay, though you could not find this email to share. You said that Sue never acknowledged this email, also that you didn’t follow up personally, either by email or face to face, as you felt that band 6 and band 7 colleagues should identify how people feel and address concerns, without individuals having to raise the concerns themselves. I spoke with the service and was assured any concerns you had raised, had been addressed with you. This was agreed by Anneliese and Jackie, who had been present at a meeting, where your concerns were discussed with you, as a supportive measure. You said that your mental health had declined on this weekend in July 2022 because of the staff’s previous comments toward you. Some staff members felt, due to how you were presenting, that you may be suffering from mental health concerns, however these staff are not mental health trained. We took the opportunity to review the support given to you. It is clear that you have received support from the division; as a supportive measure you had a move to Lymington Hospital, occupational health referrals, an assigned dedicated point of contact, medical interventions such as the neurodiversity assessment and psychiatrist assessment. The two assessments, supported by your GP, did not feel you had any neurodiversity or mental health condition that would impact your behaviour. The occupational health report in between the first and current investigation, details that you have experienced anxiety, and that their advice is to work with your self-management tools, in order to manage your feelings and behaviour. I also made reference in the hearing, to your behaviours throughout the investigation. You have been asked many times, not to send multiple emails and use a single point of contact, however you have chosen to send emails, sometimes in the 100s to individuals. This further shows that you have chosen not to follow reasonable instructions and fail to recognise how your actions impact others. Furthermore, during the hearing, I did not have confidence that you recognise or have insight into your behaviours, or how your actions impacted the ward, the care delivery to patients, feeling of safety for your fellow staff members or that you have remorse for your actions. I believe you have breached the Trust values and the Managing Conduct and Disciplinary policy; this is because you have behaved in an unprofessional manner, verbally abused staff members, that your behaviours and actions may have brought the Trust into serious disrepute, that you have wilfully disobeyed a reasonable instruction and as a result your actions have led to a complete lack of confidence and trust in you as an employee. The normal sanction for which is summary dismissal. The panel considered a lesser penalty, but given the significant concerns raised and total lack of trust as a result of your actions, I felt that you could not continue in any role within the Trust. On this basis I had no alternative but to confirm summary dismissal (dismissal without notice). However, following the hearing you have shared significant concerns around your finances, therefore as a supportive measure for 18 of 42 your health and wellbeing, I will amend my decision to dismissal and request 4 weeks’ notice pay is processed for you. The Trust has a duty to include this information in any references provided to prospective employers.”[107]The letter confirms that the Claimant has a right of appeal, which the Claimant then exercises.[108]WR confirmed her reasons for dismissal to this Tribunal and was not challenged by the Claimant that the reason was something other than the Claimant’s conduct. WR’s witness evidence to this Tribunal confirmed her thinking at the time of dismissal and her evidence is consistent with that recorded in the dismissal outcome letter. We accept what WR says as to the reason and her belief in the Claimant’s misconduct.[109]The Claimant alleges that by Wendy Rees, wrongly saying at the disciplinary hearing on 11 January 2023 that apologies had been given to the Claimant, this was an act of direct sexual orientation discrimination (5.2.5).[110]It is noted from the disciplinary hearing notes that it is the Claimant that raises SL called her a nut job, then by the HR representative about an apology being given, and the Claimant’s union representative confirms it has been addressed with SL (page 1046). There is no record in the meeting notes of the Claimant asserting that this account is wrong.[111]Further reference is made to the apology in the meeting notes at page 1053. The Claimant does not correct what is said.[112]Based on the meeting notes it is not wrong for WR to say that apologies had been given as this is what is reported to her at the meeting. WR confirms this in paragraphs 12 and 13 of her witness statement. In particular … “… Whilst the Claimant expressed frustration as to the way in which management resolved the issue with Mr Lealman, she did not dispute having received an apology from him at any point during the hearing. Further, she did not attempt to correct her union representative Ms Rawlinson, when she also confirmed that the issues involving Mr Lealman had been addressed and resolved. My position, was not related to the Claimant sexuality, be it directly or, indirectly, nor did I mention or refer to her sexual orientation, it was simply based on the information provided to me at the time that the issue had been dealt with and closed. (P1046)”.[113]The Claimant claims that as an act of direct sexual orientation discrimination at the disciplinary hearing the Respondent was unfairly biased against the Claimant (5.2.7).[114]The Claimant in cross examination explained that the bias against her was that she was the only one investigated. We note that this was because it was specific to the Claimant’s conduct in July 2022. We also note that the Claimant’s detailed reasons of appeal (pages 1248 to 1250) do not say the disciplinary hearing was biased.[115]The Claimant did not put to WR that she was unfairly biased against her because of her sexual orientation. 19 of 42[116]We have not been presented any evidence to support an unfair bias against the Claimant.[117]The Claimant also claims that the dismissal was unfair because, she alleges, that the investigators in workforce investigations 1 and 2, took statements from people about events when they were not present.[118]By way of example, we were referred to the interview statement of Anna Poole who was not present when the Claimant attended the Ford Ward in July 2022. We note though the statement is clear that she was not present, and she is interviewed being one of the on-call managers over that weekend and was contacted by staff who were present (page 854). She is reporting what was reported to her at the time.[119]The Claimant questioned RM as to why she gave a statement (pages 799 to 802). RM confirmed being one of the on-call managers on the 17 July 2022 and was reporting what was reported to her.[120]The Claimant questioned MM as to why she gave a statement to the second investigation. MM confirmed that she was asked to do so. It was confirmed the reason she was asked was because the Claimant had mentioned her name when interviewed (page 1041).[121]The evidence presented to us does not support that there was any unfairness by these individuals being spoken to. On the contrary, this demonstrates a thorough investigation in our view.[122]The Claimant also challenges the fairness of the dismissal asserting that she had sought information from HR about the allegations against her between her dismissal and appeal, but the records in respect of the allegations on 15, 16 and 17 July 2022 had been deleted.[123]The Claimant was cross examined about the requests she made and the responses she received between the dismissal and appeal (pages 1121, 1122, 1174, 1268 and 1273). None make a specific request for records in respect of the allegations on 15, 16 and 17 July 2022. None of the responses confirm that such records have been deleted. It is also noted with this allegation that the dates the Claimant attended Ford Ward were the 16, 17 and 18 July 2022.[124]Our attention was drawn during the cross examination of the Claimant that it is recorded in her interview for the second work force investigation that she wanted the ward staff to feel intimidated (page 865). The Claimant when asked about this denied saying it, suggesting it was entrapment by HM, but we note that HM was not in attendance at the Claimant’s interview (page 861), so we do not accept what the Claimant says.[125]It is alleged by the Claimant that in January 2023 (around the time of her dismissal) Helen Morgan, sent an email to around 40 members of staff saying that staff should go around in pairs and if they saw the Claimant in the area, report 20 of 42 her to the police (5.2.9). This is claimed as an act of direct sexual orientation discrimination.[126]We have not been presented a copy of such an email and HM does not recall sending such an email. What HM says about this allegation is at paragraph 26 of her witness statement … “The Claimant alleges that I discriminated against her because of her sexual orientation by sending out an email in January 2023 to various staff member’s advising them to walk in pairs and to call the police if they saw the Claimant. I do not recall sending this email (and I have not seen a copy of the same) nor do I recall giving this advice however, it is possible that I verbally gave this advice to staff given the unwanted conduct the Claimant was engaging in. Notwithstanding this, the circumstances were such that we had to be mindful or everyone’s wellbeing given the Claimant’s behaviour of repeatedly making unsolicited and unwanted contact towards staff and sending out emails to large groups. I understand that this was making staff feel intimidated. This instruction would not have been based on anything else other than her conduct. Her sexual orientation had no bearing on this, as it was her behaviour that was of concern.”.[127]The Claimant was cross examined about her conduct that was cause for concern. We were referred to an email from CA to the Claimant dated 22 December 2022 (page 1015) asking for the Claimant not to keep sending her emails, having sent her 45 emails that past week. Further, contrary to instruction to go straight home at the conclusion of the dismissal hearing (page 1056) the Claimant instead attended the Ford Ward. The Claimant did not leave when requested to do so until she was given a letter saying if she did not the Police would be called (page 1064). Emails of the 12 and 13 January 2023 (pages 1085 and 1086) also record the Claimant making multiple telephone calls to the Ford Ward. The Claimant was asked in cross examination to accept that if the email had been sent by HM that she complains about it has nothing to do with her being bisexual. The Claimant’s response was you cannot assume it is or isn’t. It is clear in our view that the cause of HM’s actions was based solely on the Claimant’s conduct.[128]The Claimant complains as an act of direct sexual orientation discrimination (5.2.18), direct sex discrimination (7.2.2) and harassment (10.1.4) that Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him.[129]SL addresses this allegation in paragraphs 18 to 20 of his witness statement:18. After I gave my statement for the investigation, I continued to carry out my role but I and many other staff continued to receive unwanted contact from the Claimant. For example, I recall one occasion where she made several calls to the Ward impersonating other members of staff, which I reported. This report is at (P1083) of the bundle. On one occasion, my colleague had answered the phone and told me that the Claimant asked about me and said she had plans for me. I immediately felt threatened and recollected the comments that the Claimant made to me in October 2022 about watching my back. 21 of 4219. Not long after the above incident, I contacted the police to report this along with the other threats that the Claimant had made. I felt this was necessary because I felt unsafe, given I have a young family and that she has stalked my wife and has named her on social media. I recollect someone from Hampshire Constabulary visiting me on the ward to take my statement and advising me not to engage with the Claimant. We were thereafter advised to contact 101 which later escalated to being advised to call 999 if the Claimant attended the ward. I understand in this claim that the Claimant alleges that the reason why I reported her to the police and called her a “nut job” and “mosh” was because she was a female and/or because she was bisexual. I confirm this is absolutely not the case and I did not know of her sexual orientation.20. I called the police because the Claimant had developed an escalating pattern of intimidating, erratic and threatening behaviour both towards my family and myself. On the date I called the police 13th January 2022, she had stated to my colleague that ‘she had plans for me’. This is why I called the police, it was because I felt threatened not because she is bisexual and/or female. That allegation does not even make any sense to me. My actions were also in line with the various advice emails received from management to call the police should further unwanted contact from the Claimant continue. By the point I called the police, I had suffered relentlessly from the Claimant because of her conduct towards me and I was scared for my family.”.[130]We note that at the time of the report SL did not know that the Claimant was bisexual. Also, in cross examination the Claimant agreed that SL would still report the matter whether the Claimant was male or female.[131]The Claimant asserts as an act of direct sexual orientation discrimination that the Respondent failed, when the Claimant asked Paula Hull and Rachel Mijia in February 2023 (this date being corrected in evidence), to conduct a Serious Incident Requiring Investigation report into why the Claimant had been treated the way she had (5.2.15).[132]RM in her statement at paragraphs 16 and 17 explains … “It was on 17th February 2023, when the Claimant emailed me asking me to request a SIRI investigation from January 2021 to date (P1179). She also sent me a second email asking me what the difference was between a SIRI and a grievance (P1178). I replied advising her as to the difference and that it was not possible for her to raise a SIRI, stating the various reasons why (P1185).” … “She again emailed me on 23rd February 2023, asking me to progress with her request for a SIRI, to which I reminded her that this was not possible and why. (P1184) …”.[133]RM explains in paragraph 18 … “… a Serious Incident Report is the outcome of an incident report where an incident has happened to a person (staff or patients or public). When such an incident occurs, the staff reports to a panel, who with objectivity review the information and make a decision on the severity of the incident, which then determine the onward action as per the trust policy, then considers it and it. The panel look at the ‘report’ to decide the level of harm and responsibility that the Trust would have in relation to the individual and/or to a patient in connection to an alleged incident. The Claimant wanted complaints about various people from 2021 who she felt mistreated her. This is not a specific 22 of 42 incident and as such cannot be reported in this way. I understood that the grievance was the correct process to follow, as it was to do with HR issues, which are outside the scope for Incident reporting.”.[134]RM confirms in paragraph 19 that she was not aware of the Claimant’s sexuality at the time, and it played no part in her decision.[135]The Claimant has not provided evidence of any SIRI request being made to Paula Hull.[136]The Claimant agreed in cross examination that RM did not know about her sexuality and agreed that when her SIRI request was declined it could not be because the Claimant is bisexual because they didn’t know.[137]The Claimant did appeal against her dismissal initially setting out brief details. On the 20 January 2023 the Claimant writes that she intends to appeal against the dismissal (pages 1282 to 1283). She writes that her reasons for appealing are: “Information arising that was not present at the time the decision on was made. Undue severity or inconsistency of sanction The trust policy and procurers was not followed properly.” [SIC].[138]It is then on the 10 March 2023, that the Claimant provides full grounds of appeal against her dismissal (pages 1248 to 1250). The focus of the grounds of appeal is challenging the seriousness of the sanction.[139]On the 21 April 2023, the appeal hearing chaired by Nicky MacDonald (Divisional Director of Operations – Mid & North Division) takes place and the decision to dismiss is upheld (pages 1320 to 1340).[140]By letter dated 24 April 2023, written confirmation of appeal decision is sent to the Claimant (pages 1302 to 1303).[141]The Claimant challenges the fairness of the appeal as an allegation of direct sexual orientation discrimination asserting that the appeal hearing was biased against her (5.2.8). This is also relied upon to assert that the dismissal was unfair.[142]We have not been presented with any evidence by the Claimant to support the existence of any such bias.[143]The Claimant also claims that the Respondent failed, in the appeal process, to consider matters other than severity of sanction (5.2.16) and failed, in the appeal process, to allow the Claimant to adduce additional evidence (5.2.17) as acts of direct sexual orientation discrimination. Also, that this made the dismissal unfair. 23 of 42[144]The Claimant’s grounds of appeal (pages 1248 to 1250) focus on the seriousness of the sanction. This is what the appeal panel then addresses. There is no unfairness in our view by an appeal panel focusing on the grounds of appeal the appellant has raised.[145]The Claimant also asserts that the Respondent failed to follow the ACAS code whilst carrying out workforce investigations 1 and 2 and the disciplinary hearing and the appeal hearing as an act of direct sexual orientation discrimination (5.2.4), and as an act of direct sex discrimination (7.2.1), This is also relied upon to assert the dismissal was unfair.[146]The Claimant clarified in oral evidence that the breach of the ACAS code she relied upon for this allegation was the same decision makers were involved in the dismissal and the appeal. The Claimant relied upon the presence of WR at the appeal hearing to support her complaint. It is clear from the evidence presented to this Tribunal that WR’s role at the appeal hearing was as the person presenting the management response only (page 1320).[147]NM who chaired the appeal was asked about the involvement of WR in cross examination and confirmed that WR was there to present the management case, answer questions, and she had no involvement in the appeal panel’s decision. We accept what NM tells us which is consistent with the way matters are recorded in the appeal hearing notes.[148]THE LAW[149]Unfair dismissal[150]As to the reason for dismissal the Respondent asserts it was for reason of the Claimant’s conduct.[151]A dismissal for the reason of the Claimant’s conduct is a potentially fair reason for dismissal under section 98 (2) (b) of the Employment Rights Act 1996 (“the Act”).[152]An employer must hold a genuine belief in an employee’s misconduct, for which there must be reasonable grounds to sustain that belief, having carried out as much investigation into the matter as was reasonable in all the circumstances: British Home Stores Ltd v Burchell [1978] IRLR 379, at 380.[153]An employer’s decision to dismiss an employee must fall within a range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, at 442. The range of reasonable responses test applies both to the decision to dismiss and to the consideration of whether the investigation into the suspected misconduct was reasonable in all the circumstances: Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, at 27. 24 of 42[154]Overall, we must guard against substituting our view for that of the employer: Foley v Post Office; Midland Bank Plc v Madden [2000] IRLR 827, at 831.[155]Section 98 (4) of the Act provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”.[156]Also relevant is the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”).[157]Discrimination[158]The Claimant is alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”).[159]The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges direct discrimination and harassment related to sexual orientation and sex. The legal tests for the two different heads of claim are slightly different and, notably, if treatment is found to be harassment under s26 EqA it cannot also be found to be direct discrimination because the two claims are mutually exclusive (due to the application of s212(1) EqA and its definition of “detriment”).[160]The protected characteristics relied upon are sexual orientation and sex as set out in sections 4, 11, and 12 of the EqA.[161]Direct discrimination – section 13 Equality Act 2010[162]For a claim for direct discrimination, under section 13(1) of the EqA 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.[163]Direct discrimination claims require a comparison as between the treatment of different individuals i.e., individuals who do not share the protected characteristic in issue. In doing so there must be no material difference between the circumstances relating to each individual (section 23 EqA). The Tribunal therefore must compare 'like with like'.[164]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that 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. 25 of 42 However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[165]In respect of the burden of proof, there is a two-stage process for analysing the complaint. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons (Igen -v- Wong [2005] EWCA Civ 142 as affirmed in Ayodele -vCityLink Ltd [2018] ICR 748).[166]We also note the recent decision of Efobi v Royal Mail Group Ltd (2021) ICR 1263 which confirmed that the reverse burden of proof remains good law under the EqA.[167]Also, considering Madarassy v Nomura International Plc [2007] ICR 867, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”.[168]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.[169]In Igen the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ but made it clear that a finding of ‘unexplained unreasonable conduct’ is a primary fact from which an inference can properly be drawn to shift the burden.[170]Harassment – section 26 Equality Act 2010 26 of 42[171]Section 26 provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[172]The Claimant needs to establish, under section 26 EqA, unwanted conduct relating to her sexual orientation or sex ((1)(a)), which had the effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her ((1)(b)).[173]In deciding whether the conduct had the effect set out in (1)(b), the Tribunal must take into account the Claimant’s perception, other circumstances, and whether it was reasonable for the conduct to have that effect ((4)). The section (1)(b) test, as a result of section (4), has an objective element.[174]We were referred by Respondent’s Counsel to Greasley-Adams v Royal Mail Group Ltd EAT 2023 86, where the EAT held that an employment tribunal had been entitled to dismiss a harassment claim brought by a disabled employee which was based on derogatory comments made about him by some of his colleagues. G-A had become aware of these comments during an investigation into bullying and harassment complaints made against him. The tribunal rejected the harassment claim on the ground that G-A unreasonably took offence to the comments. In the tribunal’s view, it was inevitable that in the course of a bullying and harassment investigation things would emerge which G-A did not like. In the context of that investigation, it was therefore not reasonable for the unwanted conduct to have the proscribed effect under S.26(1)(b). On appeal, the EAT could see no error in the tribunal’s conclusion on the question of reasonableness and dismissed G-A’s appeal.[175]Time Limits 27 of 42[176]Section 120 of the EqA confers jurisdiction on claims to employment tribunals, and section 123(1) of the EqA provides that the proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.[177]Under section 123(3)(a) of the EqA conduct extending over a period is to be treated as done at the end of that period.[178]Section 123(3)(b) of the EqA, failure to do something, is to be treated as occurring when the person in question decided upon it. Where there is no evidence to the contrary, s.123(4) of the EqA 2010 provides a default means by which the date of the ‘decision’ can be identified, either when there is an inconsistent act or alternatively the expiry of the period in which the employer might reasonably have been expected to do it.[179]An ongoing situation or continuing state of affairs amounting to discrimination was considered in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96. It is not sufficient to rely on an alleged overarching or floating discriminatory state of affairs without that state of affairs being anchored by discrete acts of discrimination.[180]We were also referred by Respondent’s Counsel to Aziz v FDA 2010 EWCA Civ 304, CA where the Court of Appeal noted that, in considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’. Counsel submits that in this case there are multiple people accused over different time periods.[181]We note the principals from the cases of British Coal v Keeble [1997] IRLR 336 EAT; Robertson v Bexley Community Service [2003] IRLR 434 CA; and London Borough of Southwark v Afolabi [2003] IRLR 220 CA;[182]We note the factors from section 33 of the Limitation Act 1980 which are referred to in the Keeble decision:[183]The length of and the reasons for the delay.[184]The extent to which the cogency of the evidence is likely to be affected by the delay.[185]The extent to which the parties co-operated with any request for information.[186]The promptness with which the claimant acted once he knew the facts giving rise to the cause of action.[187]The steps taken by the claimant to obtain appropriate professional advice. 28 of 42[188]We note that the Court of Appeal in the Afolabi decision confirmed that, while the checklist in section 33 of the Limitation Act provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in section 33 should not be elevated into a legal requirement but should be used as a guide. The Court suggested that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time and they are: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).[189]It is also clear from the comments of Auld LJ in Robertson that there is no presumption that a tribunal should exercise its discretion to extend time, and the onus is on the claimant in this regard … "It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule".[190]THE DECISION[191]The Claimant complains of direct sexual orientation and direct sex discrimination (Equality Act 2010, section 13). She also claims harassment related to sex and/or sexual orientation (Equality Act 2010, section 26). As noted, the legal tests for the two different heads of claim are slightly different and, notably, if treatment is found to be harassment under section 26 it cannot also be found to be direct discrimination because the two claims are mutually exclusive.[192]We remind ourselves of the burden of proof in discrimination claims. The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.[193]The Claimant describes herself as bisexual. It is not in dispute that it is on the 5 May 2022 that the Claimant communicates to some of the staff at the Respondent what her sexual status is.[194]Addressing the allegations of harassment first.[195]It is not accepted by the Respondent that in the statements made in workforce investigation 1 they say that the Claimant should seek mental health treatment. The Claimant has not identified any such references either. It has 29 of 42 therefore not been proven on the balance of probability that the Respondent or its employees did such a thing, so this allegation fails.[196]It is not accepted by the Respondent that Steven Lealman and Daniel Hughes called the Claimant a nut job and MOSH within the statements they gave to Julie Edwards. None of the investigation statements refer to “MOSH”. The references to “nut job” or “a nutter” are made when relaying what was said previously and are not calling the Claimant that in the statements. In any event, even if it were as the Claimant asserts, there is no relationship to sex or sexual orientation proven. The Claimant herself has asserted the terms relate to mental health or are racist. We also accept the implications of the case authority Respondent’s Counsel refers us to, that it is inevitable that in the course of a bullying and harassment investigation things would emerge which a complainant may not like, but that doesn’t mean they are acts of harassment (GreasleyAdams). This allegation also fails.[197]It is not accepted by the Respondent that Rachael Mejia and Sue Findlay stated the Claimant should be sectioned during the second investigation. What is stated is SF reporting what she recalls RM saying to her at the time. The Claimant accepted in cross examination that such a comment was not made by RM due to the Claimant’s sexual orientation. No evidence has been presented to suggest it was said on the grounds of or related to the Claimant’s sex. This allegation also fails.[198]It is not in dispute that Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him. A report to the police would be unwanted conduct by the person complained about. We accept the explanation of SL as to why he did this and there is nothing to support that such action relates to the Claimant’s sex or sexual orientation. SL was unaware of the Claimant’s sexual orientation at that time.[199]Addressing the allegations of direct sexual orientation discrimination save for allegation 5.2.13 which was withdrawn by the Claimant:a. in January 2022, redeploy the Claimant to Lymington Hospital. The Claimant was redeployed. It happened before the Respondent knew of the Claimant’s sexual orientation. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sexual orientation.b. fail, on a complete and wholesale basis, to apply any of the trusts policies or procedures in workforce investigation 1. The Claimant has not proven there was such a failure.c. fail, on a complete and wholesale basis, to apply any of the trusts policies or procedures in workforce investigation 2. The Claimant has not proven there was such a failure. 30 of 42d. fail to follow the ACAS code whilst carrying out workforce investigations 1 and 2 and the disciplinary hearing and the appeal hearing. The Claimant has not proven there was such a failure.e. by Wendy Rees, wrongly say at the disciplinary hearing on 11 January 2023 that apologies had been given to the Claimant. The Claimant has not proven that WR wrongly said this.f. in the investigation failed to establish that witness statements made were malicious. The Claimant has not proven there were malicious statements so has not proven there was such a failure on the part of the Respondent.g. at the disciplinary hearing be unfairly biased against the Claimant. The Claimant has not proven any unfair bias.h. at the appeal hearing be biased against the Claimant. The Claimant has not proven any bias.i. in January 2023, by Helen Morgan, send an email to around 40 members of staff saying that staff should go around in pairs and if they saw the Claimant in the area, report her to the police. The Claimant has not proven such an email was sent.j. by Sue Findlay and Marcia Millage and Lisa Dalton refuse to allow the Claimant to take holiday over Christmas 2022 despite her requesting it a year before ultimately Helen Morgan authorised the leave. There was an initial refusal by LD based on a decision that is applied to a number of staff. LD is unaware of the Claimant’s sexual orientation at that time. There is no evidence to raise a prima facie case of Respondent which has nothing to do with the Claimant’s sexual orientation.k. from the time of the first workforce investigation, fail to fairly roster the shifts, in that the Claimant was rostered on two late shifts and not allowed night shifts. The staff involved were Helen Morgan, Tracey Phebey, Charlotte Hutchinson and Marcia Millage. We find as a matter of fact that the rostered shifts were agreed with the Claimant at the time, and it was done before the Claimant’s sexual orientation was known. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which hasl. in December 2021, by Lisa Dalton, tell the Claimant that she could not have a say on patient care at handover times. The Claimant is told this. It is before LD is aware of the Claimant’s sexual orientation. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sexual orientation. 31 of 42m. in the workforce 1 investigation, through the statement of Daniel Hughes, say that the Claimant was not allowed to walk patients and not allowed to liaise with doctors in the multidisciplinary team because she did not have qualifications (which was incorrect), The Claimant accepted in cross examination that she had not told DH about her sexuality at the time he was interviewed. The Claimant confirmed that she disagreed with what DH said about her, asserting that there was a disagreement on what could be done, and she believed she was acting correctly, believing she had completed a risk assessment for the patient. The Claimant agreed that the reason DH gave the account he did couldn’t be because she was bisexual because he didn’t know that at the time. There is no evidence to raise a prima facie case of discrimination.n. fail, when the Claimant asked Paula Hull and Rachel Mejia in January 2023, to conduct a Serious Incident Requiring Investigation report into why the Claimant had been treated because she had. RM declined to conduct a SIRI when asked. The Claimant agreed in cross examination that RM did not know about her sexuality and agreed that when her SIRI request was declined it could not be because the Claimant is bisexual because they didn’t know. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sexual orientation.o. fail, in the appeal process, to consider matters other than severity of sanction and fail, in the appeal process, to allow the Claimant to adduce additional evidence. The Respondent did only consider the severity of sanction at the appeal, and therefore the evidence related to that, but this was based on the grounds of appeal the Claimant raised. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which hasp. Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him. It is not in dispute that SL made such a report. SL did not know the Claimant’s sexual orientation at that time. There is no evidence to raise a prima facie case of Respondent which has nothing to do with the Claimant’s sexual orientation.q. refuse to allow the Claimant to undertake phlebotomy training when asked of Sue Findlay in appraisals on 28 July 2019, 19 May 2020 and 14 April 2021 and by email on 6 October 2021, and asked of Marcia Milledge on 17 March 2022. The Claimant is so refused. It is before these individuals are aware of the Claimant’s sexuality. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sexual orientation. 32 of 42r. require the Claimant to attend for a neurodiversity appointment somewhere other than Fordingbridge (July 2022). The Claimant is required to attend at Lymington which is her current place of work. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which hass. Rachael Mejia and Sue Findlay stated the Claimant should be sectioned during the second investigation. RM did not say this during the investigation. SF reports what was said to her and does not say it herself. There is no evidence to raise a prima facie case of discrimination based on what did happen. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sexual orientation.[200]Addressing the allegations of direct sex discrimination:a. fail to follow the ACAS code whilst carrying out workforce investigations 1 and 2 and the disciplinary hearing and the appeal hearing. The Claimant has not proven there was such a failure.b. Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him. It is not in dispute that SL made such a report. There is no evidence to raise a prima facie case of Respondent which has nothing to do with the Claimant’s sex.c. require the Claimant to attend for a neurodiversity appointment somewhere other than Fordingbridge (July 2022). The Claimant is required to attend at Lymington which is her current place of work. There is no evidence to raise a prima facie case of discrimination. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sex.d. Rachael Mejia and Sue Findlay stated the Claimant should be sectioned during the second investigation. RM did not say this during the investigation. SF reports what was said to her and does not say it herself. There is no evidence to raise a prima facie case of discrimination based on what did happen. In any event we accept the reason given by the Respondent which has nothing to do with the Claimant’s sex.[201]As to the complaint of unfair dismissal.[202]It is not in dispute that the Claimant was dismissed with an effective date of termination of the 11 January 2023.[203]Considering then the reason for the Claimant’s dismissal. The Respondent asserts that it was a reason related to conduct which is a potentially fair reason for dismissal under section 98 (2) of the Employment Rights Act 1996. We have been presented evidence by the person who took the decision to dismiss the 33 of 42 Claimant (WR) that she did so because of the Claimant’s conduct which she considered to be gross misconduct. This reason was not challenged by the Claimant. The Claimant accepted that she attended the Ford Ward in July 2022 when she was not supposed to be there. Her dispute was about what witnesses to that matter then reported her as saying to them. We accept the evidence of WR and that the reason for the Claimant’s dismissal was her conduct.[204]We then need to consider whether the Respondent held a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances.[205]We find that WR did hold a genuine belief in the Claimant’s misconduct which was based on reasonable grounds and after as reasonable an investigation as was warranted in the circumstances. The investigation report is extensive running to 66 pages and involving the interviewing of 11 witnesses as well as the Claimant (pages 953 to 955). It also includes a review of the Claimant’s current medical assessments.[206]As to the process we do not find any breach of policy or procedure as asserted by the Claimant. It is also not unfair in our view for the appeal to focus on the grounds of appeal as raised by the appellant.[207]In view of the findings made by WR, which we accept, we find that the decision to dismiss was a fair sanction. Although considered gross misconduct the Respondent dismisses the Claimant with notice. We find that such a decision is within the range of reasonable responses open to a reasonable employer when faced with these facts.[208]We also find that the Respondent adopted a fair procedure.[209]We therefore find that the Claimant was fairly dismissed by the Respondent.[210]For all these reasons it is the unanimous Judgment of this Tribunal that the Claimant’s complaints of unfair dismissal, direct discrimination on the grounds of sexual orientation and sex, and harassment related to sex and/or sexual orientation all fail and are dismissed, save for allegation 5.2.13 which is dismissed on withdrawal. Employment Judge Gray Dated 7 February 202528 February 2025 By Mr J McCormick 34 of 42 ANNEX A The Issues[1]Time limits1.1 Given the date that the claim form was presented and the dates of early conciliation, any complaint about any act or omission which took place more than three months before that date [12 December 2022] (allowing for any extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction.1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?1.3 [THESE PARAGRAPHS ARE DELETED AS RELEVANT COMPLAINT WITHDRAWN][2]Unfair dismissal2.1 Was the Claimant dismissed? It is not in dispute that the Claimant was dismissed with an effective date of termination of the 11 January 2023.2.2 What was the reason for dismissal? The Respondent asserts that it was a reason related to conduct which is a potentially fair reason for dismissal under s. 98 (2) of the Employment Rights Act 1996.2.3 Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances? The burden of proof is neutral 35 of 42 here, but it helps to know the Claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows:2.3.1 The investigating officer failed to establish that the witness statements made during the course of the investigations were malicious.2.3.2 The investigators in workforce investigations 1 and 2, took statements from people about events when they were not present.2.3.3 The disciplinary panel which decided to dismiss the Claimant was biased against her because of her sexual orientation.2.3.4 The panel hearing the Claimant’s appeal was biased against the Claimant because of her sexual orientation.2.3.5 Although the Claimant had sought information from HR about the allegations against her, the records in respect of the allegations on 15, 16 and 17 July 2022 had been deleted. The Claimant made the request between her dismissal and appeal.2.3.6 The appeal panel only considered the severity of the sanction and did not allow the Claimant to produce other evidence.2.4 Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?2.5 Did the Respondent adopt a fair procedure? The Claimant challenges the fairness of the procedure in the following respects: 2.5.1 the Respondent failed to apply, at all, the ACAS code when it2.5.1.1 carried out the workforce 1 and 2 investigations,2.5.1.2 carried out the disciplinary meeting,2.5.1.3 carried out the appeal.2.6 If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when?2.7 If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct? This requires the Respondent to prove, on the balance of probabilities, that the Claimant actually committed the misconduct alleged.[3]Wrongful dismissal: notice pay - [THESE PARAGRAPHS ARE DELETED AS RELEVANT COMPLAINT WITHDRAWN] 36 of 42[4]Disability - [THESE PARAGRAPHS ARE DELETED AS RELEVANT COMPLAINT WITHDRAWN][5]Direct sexual orientation discrimination (Equality Act 2010 section 13)5.1 The Claimant describes herself as bisexual.5.2 Did the Respondent do the following things:5.2.1 in January 2022, redeploy the Claimant to Lymington Hospital,5.2.2 fail, on a complete and wholesale basis, to apply any of the trusts policies or procedures in workforce investigation 1 [understood to be between January 2022 to April 2022],5.2.3 fail, on a complete and wholesale basis, to apply any of the trusts policies or procedures in workforce investigation 2, [understood to be between August 2022 and January 2023],5.2.4 fail to follow the ACAS code whilst carrying out workforce investigations 1 and 2 and the disciplinary hearing and the appeal hearing, [understood to be as dates in the paragraphs above and the appeal on 21 April 2023],5.2.5 by Wendy Rees, wrongly say at the disciplinary hearing on 11 January 2023 that apologies had been given to the Claimant,5.2.6 in the investigation failed to establish that witness statements made were malicious, [workforce investigations 1 and 2 as referred in the above paragraphs],5.2.7 at the disciplinary hearing be unfairly biased against the Claimant,5.2.8 at the appeal hearing be biased against the Claimant,5.2.9 in January 2023, by Helen Morgan, send an email to around 40 members of staff saying that staff should go around in pairs and if they saw the Claimant in the area, report her to the police,5.2.10 by Sue Findlay and Marcia Millage and Lisa Dalton refuse to allow the Claimant to take holiday over Christmas 2022 despite her requesting it a year before ultimately Helen Morgan authorised the leave,5.2.11 from the time of the first workforce investigation, fail to fairly roster the shifts, in that the Claimant was rostered on two late shifts are not allowed night shifts. The staff involved were Helen Morgan, Tracey Phebey, Charlotte Hutchinson and Marcia Millage, 37 of 425.2.12 in December 2021, by Lisa Dalton, tell the Claimant that she could not have a say on patient care at handover times,5.2.13 in December 2021 tell the Claimant, by Lisa Dalton, Sue Findlay and Daniel Hughes, that she could not answer the ward telephone,5.2.14 in the workforce 1 investigation, through the statement of Daniel Hughes, say that the Claimant was not allowed to walk patients and not allowed to liaise with doctors in the multidisciplinary team because she did not have qualifications (which was incorrect),5.2.15 fail, when the Claimant asked Paula Hull and Rachel Mijia in January 2023, to conduct a Serious Incident Requiring Investigation report into why the Claimant had been treated because she had,5.2.16 fail, in the appeal process, to consider matters other than severity of sanction,5.2.17 fail, in the appeal process, to allow the Claimant to adduce additional evidence,5.2.18 Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him,5.2.19 refuse to allow the Claimant to undertake phlebotomy training. With reference to paragraph 48b of the amended grounds of resistance … “The Claimant alleges she asked Sue Findlay in appraisals on 28 July 2019, 19 May 2020 and 14 April 2021 and by email on 6 October 2021, and asked Marcia Milledge on 17 March 2022.”,5.2.20 require the Claimant to attend for a neurodiversity appointment somewhere other than Fordingbridge (July 2022),5.2.21 Rachael Mejia and Sue Findlay stated the Claimant should5.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were and therefore relies upon a hypothetical comparator.5.4 If so, was it because of sexual orientation? 38 of 425.5 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to sexual orientation?[6]Direct disability discrimination (Equality Act 2010 section 13) - [THESE PARAGRAPHS ARE DELETED AS RELEVANT COMPLAINT WITHDRAWN][7]Direct sex discrimination (Equality Act 2010 section 13)7.1 The Claimant describes herself as female.7.2 Did the Respondent do the following things:7.2.1 fail to follow the ACAS code whilst carrying out workforce investigations 1 and 2 and the disciplinary hearing and the appeal hearing,7.2.2 Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him,7.2.3 require the Claimant to attend for a neurodiversity appointment somewhere other than Fordingbridge (July 2022),7.2.4 Rachael Mejia and Sue Findlay stated the Claimant should7.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The Claimant has not named anyone in particular who they say was treated better than they were and therefore relies upon a hypothetical comparator.7.4 If so, was it because of sex?7.5 Is the Respondent able to prove a reason for the treatment occurred for a non-discriminatory reason not connected to sex?[8]Discrimination arising from disability (Equality Act 2010 section 15) - [THESE PARAGRAPHS ARE DELETED AS RELEVANT COMPLAINT WITHDRAWN][9]Reasonable Adjustments (Equality Act 2010 ss. 20 & 21) - [THESE PARAGRAPHS ARE DELETED AS RELEVANT COMPLAINT WITHDRAWN] 39 of 42[10]Harassment related to disability sex and/or sexual orientation (Equality Act 2010 s. 26)10.1 Did the Respondent or its employees do the following things:10.1.1 in statements made in workforce investigation 1 say that the Claimant should seek mental health treatment,10.1.2 by Steven Lealman and Daniel Hughes called the Claimant a nut job and MOSH within the statements they gave to Julie Edwards,10.1.3 Rachael Mejia and Sue Findlay stated the Claimant should10.1.4 Steven Lealman reported to the police in January 2023 that the Claimant had said she had plans for him.10.2 If so, was that unwanted conduct?10.3 Did it relate to the Claimant’s protected characteristics, namely sex and/or sexual orientation?10.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?10.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[11]Remedy Unfair dismissal11.1 The Claimant wishes to be reinstated to their previous employment or reengaged to comparable employment or other suitable employment. Should the Tribunal order reinstatement? The Tribunal will consider, in particular, whether such an order is practicable and, if the Claimant caused or contributed to the dismissal, whether it would be just to make it and upon what terms it ought to be made.11.2 What basic award is payable to the Claimant, if any?11.3 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?11.4 If there is a compensatory award, how much should it be? The Tribunal will decide: 40 of 4211.4.1 What financial losses has the dismissal caused the Claimant?11.4.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?11.4.3 If not, for what period of loss should the Claimant be compensated?11.4.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?11.4.5 If so, should the Claimant’s compensation be reduced? By how much?11.4.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did the respondent or the Claimant unreasonably fail to comply with it? If so is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?11.4.7 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce their compensatory award? By what proportion?11.4.8 Does the statutory cap of fifty-two weeks’ pay apply? Discrimination11.5 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?11.6 What financial losses has the discrimination caused the Claimant?11.7 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?11.8 If not, for what period of loss should the Claimant be compensated for?11.9 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?11.10 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?11.11 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result? 41 of 4211.12 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%?11.13 Should interest be awarded? How much? 42 of 42