Mrs B Knight v Havant and South Downs College: 1405240/2023
EMPLOYMENT TRIBUNALS
Case No 1405240/2023
Between
Mrs B KnightClaimantHavant and South Downs CollegeRespondent
Before
Employment Judge Le GrysMr L. Davies (instructed by solicitor) for claimantMs A. Rumble (instructed by counsel) for respondentDate 30 January 2025
JUDGMENT
The unanimous judgment of the Tribunal is that the Claimant’s complaint of victimisation pursuant to section 27 of the Equality Act 2010 is not well founded and is accordingly dismissed.
REASONS
[1]The Tribunal having given oral reasons for this judgment, at the conclusion of the hearing the Claimant requested written reasons in accordance with Rule 60 of The Employment Tribunal Procedure Rules 2024.[2]The Claimant brings a claim of victimisation. She was employed by the Respondent between 1 September 2013 and 2 April 2021 as an English teacher. She previously brought a successful Tribunal claim against the Respondent in respect of claims of race-related discrimination and constructive unfair dismissal. The Claimant subsequently posted about her experience on social media platforms including LinkedIn. She asserts that the Respondent then reported her posts to the police as a punitive act of victimisation against her. While the police stated that they would take no action in respect of the allegations, the Claimant states that she was distressed by the report, and that any enhanced DBS check that may be undertaken in future in respect of job applications she makes will reveal that she was a suspect in a criminal offence.[3]The Respondent disputes the claim. It asserts that the Claimant’s posts made allegations about members of staff who had not been directly involved in the events that led to the Claimant’s dismissal, and “tagged” these staff members so that the posts showed up in their feeds. One of those individuals, independently and outside of the course of her employment, then made a report to the police because she personally considered the posts to constitute harassment. It is accordingly denied that the independent actions of the employer can be attributed to the Respondent, or that the events are closely connected to the previous employment relationship. Furthermore, the Respondent disputes that the Claimant suffered a detriment, as the police took no action in respect of the complaint.
PRELIMINARY MATTERS
[4]At the outset I highlighted that one of the panel members, Dr Thornback, had been a member of the panel that had heard the Claimant’s original claim. We gave our provisional view that this did not prevent him from hearing this claim, which was a discrete and separate issue to the original matter; in the circumstances the reasonable observer would be confident that each panel member would be true to their duty to hear each individual case on its merits. Having given the parties the opportunity to make any submissions both sides confirmed that they had no objections to the composition of the panel.[5]Mr Davies also raised an issue in respect of some potentially outstanding disclosure, as well as his concern that the bundle referred to without prejudice material. In respect of disclosure, the parties agreed that this could likely be resolved between themselves while the panel was reading, and we were not ultimately asked to adjudicate on any matters. In respect of without prejudice material, Mr Davies conceded that these were very minor and passing references that didn’t really have any bearing on the case, but fairly stated that he had a natural reluctance to include anything that related to such material. It was therefore agreed that the Tribunal would simply delete/ignore the words “without prejudice” on the few occasions where it appeared. ISSUES 5. The issues were agreed to remain as per the Case Management Order of Judge Ferguson dated 23 May 2024, save that the Respondent conceded at the outset of the hearing that the acts relies upon are protected acts. The matters which fall to be determined by the Tribunal are as follows:1.1 Does the impugned conduct arise out of the past employment relationship?1.2 Is the impugned conduct closely connected to the past employment relationship?1.3 If the conduct occurred during the employment relationship, would it contravene the Equality Act 2010? [The Claimant contends that if the conduct had occurred during the employment relationship it would have contravened s.27 Equality Act 2010.]1.4 As noted above, it is agreed that the Claimant did the protected acts as follows:1.4.1 On 9 February 2020, presenting a claim of race discrimination (case number 1400727/2020);1.4.2 The Claimant's posts on LinkedIn on 27 February 2023 [p.94 of the preliminary hearing bundle] and on 8 May 2023 [p.95 of the preliminary hearing bundle] regarding the above claim. The Claimant relies on section s.17(2)(c) and/or (d).1.5 Did the Respondent do the following things: 1.5.1 One or more members of staff of the Respondent reported the Claimant to the police for alleged malicious communications/harassment on social media (LinkedIn) on 10 and/or 11 May 2023?1.6 By doing so, did the Respondent subject the Claimant to detriment?1.7 If so, was the Claimant subjected to that detriment because either the Claimant had done a protected act, or the Respondent believed the Claimant had done or may do a protected act?1.8 Were the Respondent’s employees acting in the course of their employment when they subjected the Claimant to any detriment(s)? FINDINGS OF FACT The previous Tribunal Proceedings
FINDINGS OF FACT
[6]It is necessary for a proper understanding of these proceedings to briefly summarise the previous claim. What follows is not intended to be a full record of the earlier, lengthy proceedings, but instead simply set outs the broad context of what followed.[7]The Claimant was previously employed by the Respondent as an English teacher, that employment ending in April 2021. On 5 December 2019 a member of the Respondent’s staff, Claire Scott, had emailed two other staff members, Stephanie Richardson and Nicola Kingsley, following a lesson observation. In that email Ms Scott stated “[the Claimant] is throwing the E&D comment at me too”.[8]Following this, the Claimant’s case was that the Respondent had denied that she was racially harassed and did not take steps to properly address racism in the workplace. She subsequently resigned from her post.[9]The Claimant brought proceedings in the Employment Tribunal about these events. In a reconsideration judgment dated 11 July 2022 the Tribunal found that the Claimant’s claim of harassment in respect of the email sent on 5 December 2019 succeeded, as this suggested that individuals were talking about the Claimant and suggesting that, rather than believing she was advancing arguments in good faith, she was simply “throwing” comments based on her own race at her colleagues. The Tribunal also found that the Claimant’s constructive dismissal constituted an act of harassment. While there had followed a relatively extended period before the Claimant’s resignation, the Tribunal concluded that this resignation was, at least in part, a consequence of the earlier racial harassment.[10]In a remedy judgment dated 23 January 2023 the Respondent was ordered, among other matters relating to compensation, to write to its staff at the Alton College campus in the following terms: Dear Colleagues, You may be aware of the recent race discrimination tribunal brought by a member of staff at Alton College. The Tribunal has found that an email sent on 5 December 2019, by a member of staff for whom the college was responsible, stating, “unfortunately Mrs Knight is throwing the E&D black comment at me too” amounted to harassment related to the claimant’s race. The tribunal found that the claimant resigned, in part, because of that email and, therefore, the constructive dismissal of the claimant was an act of harassment. We wish to apologise to Ms Knight for that act and any distress caused by that treatment to her. Undisputed events following the earlier proceedings[11]The Claimant was a user of the LinkedIn social media platform and posted about her experiences there. The three posts referred to below are said to have been the key posts relating to these events and are not intended as a complete record of the Claimant’s social media activity during this time.[12]In an undated post within the bundle, but which the Claimant stated in oral evidence had been posted on 7 February 2023, she published an account which asked, among other things, “Is it really that hard to say ‘sorry’? Does a judge have to force adults to apologise like they are little children”. She tagged HSDC Alton and stated that they had “repeatedly refused to apologise for the racial harassment I was subjected to” and made reference to “other historical racists such as colonialists and slave traders”. She referred, and tagged into the post, the College’s Black Leadership Group and suggested that “your anti-racism training is being mistaken by SOME of your white members as a ‘HOW TO BE A RACIST AND GET AWAY WITH IT, training”. She additionally tagged Leona Berry, Vice Principle for Organisation Development and People, and stated that she “conveniently used the Black Leadership Group yet again during the November trial to justify the lack of apology and continued refusal to address racism at HSDC Havant & South Downs – being an anti racist organisation has to be more than signing a letter to say you are against racism when you continue to support and protect racists!”[13]We pause here to note the effect of “tagging” an individual or organisation in this manner. The Claimant explained that this would cause the post to show up in that individual’s profile, and that it would be visible for anyone looking at this. The account concerned would also be made aware that such a post had been made. She stated that her purpose in doing this was that she wanted Ms Berry to be aware of her post.[14]On 15 February 2023 Mike Gaston, the Principal and Chief Executive, wrote to the Respondent’s staff in the exact terms ordered by the Tribunal.[15]In a letter dated 21 February 2023 Mr Gaston also wrote directly to the Claimant, extending the “College’s sincere apology on your experience whilst working at Alton College including an email sent by a member of staff for whom we were responsible which amounted to harassment relating to race”.[16]On 27 February 2023 the Claimant again posted on LinkedIn, whereby she tagged in both HSDC Havant & South Downs and HSDC Alton. The post was addressed to Mike Gaston and largely duplicated an ‘open letter’ that she had written and also had hand delivered to him. This acknowledged the “belated and court-ordered apology” and expressed disappointment that “you had to be ‘forced/ordered’ to apologise to me”. The post additionally expressed her disappointment that he had “failed to act” in 2020 when she had set out in detail how she was being “treated by three (white) female members of your senior management team”, and accused him of having failed in his duty of care to protect her from the “abuse of power I was subjected to”.[17]The Claimant explained in oral evidence that the “three (white) female” members of staff she was referring to were the three involved in the original email chain in November 2019. Ms Berry confirmed in her own oral evidence, however, that those individuals were not, in fact, members of the senior management team.[18]A further post was published on 8 May 2023. Entitled “BRITAIN WE HAVE TO DO BETTER – BE BETTER!” this made reference to another incident of racism in the news and referred to “Racism cases like mine, where I was subjected to racial harassment by a senior leadership team…” She stated that, following her Tribunal claim, she had been contacted by other members of staff and then published two messages that she said she had received from them. The second of these stated: Mar 6, 2023. 2:06PM “The parents have been in contact with the college in both cases of racial profiling and sexism towards female students. Both times nothing has happened. I was telling Suki & Leona (Suki D. and Leona Berry Chartered MCIPD) in May of last year that there was endemic racism in this college and urgent training was required – they did nothing. I’d only been in the college for 3 months and I could see the depth of the issue. What I can’t believe is that they were in the midst of your case during the entire time and not even accepting how serious the problem was and is…I hope Ofsted takes seriously as this situation here is untenable.” [the words in bold type indicated that the person/organisation had been tagged][19]On 10 May 2023 Ms Berry submitted an online police report in respect of the posts. When asked to “tell us what happened and the events leading up to it, to help us identify if an offence has been committed”, she wrote: “Ms Knight took HSDC to an employment tribunal following a lesson observation that she took exception to back in 2019. The tribunal process has been ongoing up to Feb 2023. The outcome of the tribunal indicated that there was 1 act of racial harassment found in the case (relating to an email sent by a now ex member of staff). Ms Knight continues to tag me in derogatory posts online brandishing me and my colleagues as racist despite the tribunal clearly stating that none of us had breached the equality act 2010. I have tried to ignore the posts up to now but again Ms Knight tagged me in another post yesterday (08/05/23) stating that the senior team were found guilty of racial harassment which is factually incorrect. She has tagged me saying I have failed to act in cases that she has not been involved in and I now feel that her actions are harassing. I have reported the posts to LinkedIn but she continues to attack me and my colleagues online and it needs to stop for both my personal and professional wellbeing. The judgement has been given and there was no wrongdoing found for myself or my current colleagues and this online attack needed to stop.”[20]The following day, on 11 May 2023, the police wrote to Ms Berry stating that “I have reviewed your report and following careful consideration I regret to inform you that the matter will not be further investigated on this occasion.” It stated that the incident “is not proportionate for further Police action” and noted that “the suspect is likely to have a contradicting view of events if spoken to by Police. Please block the offending party.” Towards the end of the letter, it stated that “If there has been any significant change of circumstances, new information or evidence" then she could contact the police again for a further assessment.[21]The police separately and additionally wrote to the Claimant notifying her that they had “received an allegation on 10/05/23 that you sent a letter, electronic communication or article, which would constitute an offence… after careful consideration it has been decided that no further action will be taken against you in this matter”. It stated that the decision may be reconsidered if significant evidence becomes available and enclosed an education leaflet outlining the offence and “how to avoid the risk of prosecution in the future.” It concluded with the comment that “We accept that your own account of the circumstances may differ and we are happy to record this if you wish, however we will make no comment on the truth of either account and the matter will remain filed.”[22]In an email sent shortly after this letter was received (the date on the copy within the bundle is unclear but the Claimant stated that it was the following day) the Claimant contacted the Officer in the Case to request further information as to what she was being accused of. On 18 May 2023 the officer responded stating that “I can confirm that the incident relates to an allegation by HSDC staff and a report which was made regarding them being tagged to some online posts. The informant believes that some of the comments made online were false regarding a tribunal process”. The email repeated that the crime report had been closed. In a separate email sent later the same day, the officer provided the Claimant with the two crime report numbers and stated that both had been filed.[23]On 20 May 2024 the Claimant replied to the officer stating that the allegations were unfounded. She asked why a crime report had been filed when she had not committed a crime, and referred to her right to freedom of speech, and the fact that there was nothing preventing her from publicly posting about her Tribunal case. Areas of dispute in respect of these events[24]While there was no dispute as to the basic chronology outlined above, there was considerable disagreement between the parties as to the reasons behind Ms Berry’s decision to contact the police. We therefore begin with our general observations of the witnesses.[25]We found Mike Gaston and Leona Berry to be credible witnesses. Both gave clear evidence as to their respective involvement and presented as open and honest. While it was suggested that Ms Berry in particular had repeatedly changed her account in an effort to cover up her true motivations, we reject this entirely. We do not find that her evidence did significantly change; to any extent that it did, however, we are satisfied that this was no more than her attempting to answer as helpfully as she could questions which were frequently put to her in an abstract or ‘hypothetical’ manner, including about what others might have thought or felt. Overall, we found her to be a truthful witness and accept the account that she gave.[26]We are also satisfied that the Claimant was truthful as to events from her perspective. We have no doubt that the events leading to the previous proceedings amounted to a significant wrong in her life, and that she is continuing to feel the impact of that to this day. Nothing we say here is intended to diminish the seriousness of what has previously been found to have occurred. Having said this, however, we found that her assessment as to the reasons why Ms Berry acted in the way she did was based on an assertion that certain inferences could be drawn which we do not find, when considering the evidence in the round, are made out.[27]We therefore apply these general observations to the areas of dispute remaining between the parties.[28]We are satisfied that Ms Berry was not directly involved in the events leading to the Claimant leaving the Respondent’s employment. We further accept that there was no suggestion in the earlier Tribunal proceedings that she was personally responsible for any incident of racial harassment. We note in this regard that Ms Berry’s only involvement with those proceedings was as a witness in the remedy hearing, whereby the Judgment notes (at [52]) that “we accept Ms Berry’s evidence that the college has engaged with the Black Leadership Group and the judgment has been considered at various levels within the organisation”. We further accept that, other than her involvement at that stage of the proceedings, the Claimant and Ms Berry did not have direct personal contact.[29]To the extent that the Claimant seeks to draw Ms Berry personally into those earlier proceedings by virtue of “collective responsibility” and/or a failure to take action on the findings, we reject this. Ms Berry described a large organisation with in excess of 1,000 staff, and explained how as a senior manager she would not directly be involved in many of the day to day conversations, or with duties that properly fell on line managers. Many of the matters complained of pre-dated her own employment with the Respondent. Where she did have direct responsibility for issues arising out of the Tribunal proceedings, we accept her evidence that she was working hard on addressing these concerns. While her actions may not have been adequate in the eyes of the Claimant, such a perception does not translate into a reasonable inference that Ms Berry was doing nothing at all.[30]Furthermore, while the Claimant asserts that she sent directly to Ms Berry two emails, one in October 2020 and another in July 2021, where she pleaded with the organisation to review and reflect on its stance, we accept Ms Berry’s evidence that she had no recollection of having seen these. We saw no further evidence of these emails beyond the assertion made by the Claimant herself in her ‘open letter’, and Ms Berry noted that this would have been during a time of a significant re-structuring at the College when she was extremely busy with a number of other matters.[31]We further reject that Ms Berry was in anyway engaged in a “cover up” of what had previously happened following the Tribunal proceedings. The Claimant’s belief in this regard was based on third party reports made to her about events she had not been a party to, as well as her own dissatisfaction with the fact that the college had, in her view, been “forced” to apologise rather than willingly accepting its responsibility. Furthermore, she took particular exception – a point that was repeated throughout the proceedings – to the fact that, in her view, the College was only acknowledging one act of harassment (the email) rather than two (the constructive dismissal). We accept Mr Gaston’s evidence, however, that his letter of 21 February 2023 was intended to try and offer exactly that personal apology, because he wanted to do more than the somewhat dry and structured order of the court. To any extent that the Claimant views that letter as failing to acknowledge her constructive dismissal, we are satisfied that this is no more than an overly critical deconstruction of what was being said.[32]We instead accept the evidence of Ms Berry and Mr Gaston that they took seriously their responsibility to address the issues raised in the previous proceedings, including Ms Berry’s evidence that she was working hard on creating a safe environment in respect of all protected characteristics. We reject the submission that there was any intent on the part of the Respondent to brush the previous concerns under the carpet.[33]On 9 February 2023 an unnamed member of staff emailed Ms Berry about the posts that had been made. Following a discussion between the pair Ms Berry emailed on 10 February 2023 to say that she had “reported the post as bullying/harassment” and that it was “up to you whether you want to do the same, but I suspect that there is little we can do about it.”[34]An email exchange took place between Ms Berry and the Claimant’s husband on 28 March 2023, in which they discussed the possibility of the Claimant giving a presentation about her experiences. We accept that Ms Berry agreed to discuss this with Mr Gaston and did so shortly after this. We are satisfied that Ms Berry’s tone in this email, which followed some of the earlier posts, was intended to be professional and reject any suggestion that her politeness and openness to what was being proposed shows that she had not been upset by some of the posts that had, by this point, already been made.[35]On 29 March 2023 a meeting of the HSDC Corporation was held, with Mr Gaston and Ms Berry in attendance. The minutes of this meeting show that Mr Gaston referred to the recent “negative press” and concluded that it would not be sensible to enter into discussions in public forums but that he would “continue to seek legal advice on the matter, particularly around new unqualified statements”. In this regard we note that the official college position at this time was not to engage with the matters in public, and in no way suggests that the College was advising anyone to take action in respect of what was being posted.[36]We accept that at some point around the time of the 8 May 2023 post Mr Gaston had a conversation with Ms Berry in which she appeared, as per his oral evidence, at the “end of her tether.” We are satisfied, given that Ms Berry’s diary shows that the pair were in a meeting together on the morning of 10 May 2023, that it is likely to have been around this time that the conversation took place. We accept their consistent evidence, however, that any such conversation will have been on an informal one to one basis rather than within the meeting itself. During this conversation Mr Gaston explained to Ms Berry how to ‘detag’ herself from a post, but it remained his position that it was best not to otherwise engage. Again, we accept their consistent evidence that they did not discuss reporting the matter to the police, and that he in no way encouraged her to do so. To this extent we reject the assertion that there is an inference from the fact they met so shortly before the report was made that the report must have been discussed; the witnesses were clear, credible and consistent that they did not talk about this, and that Ms Berry subsequently acted alone and in a personal capacity.[37]The Claimant further asserts that such meetings must have been recorded, and accordingly that we should draw an adverse inference from the absence of disclosure of any minutes. We reject this. It is an ordinary part of everyday workplace culture that people will have informal discussions and that there would accordingly not necessarily be a record of these. We therefore decline to draw any such inference relating to an alleged lack of disclosure.[38]We further accept Ms Berry’s essentially unchallenged evidence that she was also experiencing challenges in her personal life in and around this time that were increasing the pressure she was under. The Tribunal saw messages from Ms Berry to her mother on 17 May 2023 which referred to “it’s all a bit crap… keeps tagging me in crap online after the tribunal… so I’ve reported her for harassment yet she continues…” and later that she was “kinda running out of steam” and that she was “feeling a tad defeated right now.” The comments to her mother in a private capacity further demonstrate that she considered this to be a personal matter rather than something involving her employer.[39]We are satisfied, given Ms Berry’s lack of personal involvement in the original claim; the absence of any evidence of personal racist behaviour on her part coupled with her strong personal beliefs against such discriminatory behaviour; the efforts that she had personally been making towards addressing the concerns of the Tribunal; and the challenges in her personal life, that Ms Berry had by this point become exasperated by the posts. These specifically accused her of personally refusing to address racism, while another post referred to “white women” on the “senior leadership team” at a time when she was the only such person matching that description. While the Claimant may not have intended to refer to Ms Berry, it was reasonable in such circumstances that Ms Berry would be concerned that others would assume that this was who was meant. The posts were going into her own professional feed, and she was accordingly worried that these would be seen by others in a professional context and about the impact that this might then have.[40]In this context the post on 8 May 2023, in which Ms Berry was again specifically tagged within the context of a post about endemic racism at the college, was the final straw. We accept her evidence that she had previously attempted to report such matters to LinkedIn without success, something which is consistent with her email of 9 February 2023. We accept that she therefore undertook an internet search as to what she might be able to do to stop such posts and acted upon one of the suggested results, which was that it could be reported to the police as harassment.[41]We reject that there is any sort of inference from the overall circumstances that this must have been a cold, calculated act which was intended to cause the maximum harm to the Claimant. Such an assertion relies on an assumption that the online reporting form will have been a somewhat involved and lengthy process which made the reporting party aware of the potential consequences. In fact, the only evidence of what was involved in completing the form came from Ms Berry herself, who described something more akin to a retailers “tell us how we did” form; a few tick boxes and a space for free text. Given that this description is consistent with the formatting that can be seen in the police report, we accept her evidence in this regard. We are accordingly satisfied that it is something that could have been completed quickly and on impulse.[42]We accordingly do not find that the report was a cynical act undertaken with the intention of obtaining revenge on the Claimant. We instead find that it was an act of someone under stress who simply wanted the posts to stop and didn’t know what else to do. She has then responded in a way that is entirely common in the modern world, namely firing off a complaint into the electronic ether on the advice of a quick internet search. The fact that, in the cold light of day and viewed objectively, a police report may not have been the best way of achieving her goal, does not retrospectively change Ms Berry’s intention at the time.[43]We accept Ms Berry’s evidence that the posts were made on her own personal device, and that she provided her own personal contact details rather than her professional details. While the report was made during the working day we also accept her evidence that it was her own decision to do so, while she was alone and in her own car. The Tribunal does not find that there is anything uncommon or unusual in a person taking five minutes out of their working day to address a personal issue and rejects the suggested inference that the timing shows that it must have been undertaken in her professional capacity. Furthermore, on reviewing the police report, we are satisfied that the natural meaning of the words used by Ms Berry is that any references to the college were intended as no more than context, and do not demonstrate any intent on her part to make the report in the college’s name. The reference of the police officer to this being an “allegation by HSDC staff” is no more than that officer’s own summary, and cannot make Ms Berry’s submission a company complaint on her behalf.[44]We accept Ms Berry’s evidence that she made a single report. We find that it was a police decision to separate this into two separate crime files, as shown by the enquiry log entry at 15:39 on 11 May 2023 stating “The suspect will be sent a suspect Malicious Comms letter from the linked RMS, which I will create”. We further accept that she did not notify the Respondent of what she had done until the current Tribunal proceedings were received.[45]Finally, we accept Ms Berry’s evidence that she was not asked to submit any evidence with the report and that the police did not ask her to do so later. This is entirely consistent with the police response, which demonstrated an immediate lack of interest in taking the matter any further. We decline to draw any inference from the absence of screenshots from Ms Berry’s phone, which we accept was subsequently destroyed in an unrelated accident. The potential impact of the report[46]The report was, as a matter of fact, closed by the police almost as soon as it was received. The Claimant was not so much as investigated, let alone subject to a charge or caution.[47]We do not accept that it has been shown that the existence of a police file on which no action was taken will be automatically revealed on an enhanced DBS check. The Claimant’s evidence in this regard was speculative and amounted to little more than an assertion. She has not applied for any jobs at which it was stated that this was the case, or shown that this has created a barrier to future employment. Her rejection in respect of the single job application that she has made makes no reference to this having been in any way the issue.
RELEVANT LAW
[48]Section 27 Equality Act 2010 states that : (1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.[49]Protected acts are defined in subsection (2) as including the bringing of proceedings under the Equality Act, and “making an allegations (whether or not express) that A or another person has contravened this Act”.[50]Former employees can claim victimisation under the Equality Act (Onu v Akwiwu and anor; Taiwo v Olaigbe and anor 2014 ICR 571, CA) where: a) the impugned conduct ‘arises out of or is closely connected to’ the past employment relationship (S.108(1)(a)), and b) the conduct would, if it occurred during the relationship, contravene the Equality Act (S.108(1)(b)).[51]“Detriment” must be a detriment in the employment field: Tiplady v. City of Bradford [2019] EWCA Civ 2180. The Tribunal must look at the alleged detriment from the employee’s point of view, and consider whether the employee reasonably understood that they had been disadvantaged. This is a low threshold, but it nonetheless needs to be crossed; an unjustified sense of grievance is not sufficient: Shamoon v. Royal Ulster Constabulary [2003] UKHL 11.[52]If it is established that the employee did a protected act (or was about to do one) and the employer subjected the employee to a detriment, the critical question will be: Why did the employer subject the employee to that detriment? Was it because they had done (or might do) the protected act? Or was it wholly for other reasons?
CONCLUSIONS
[53]We therefore apply the facts as we have found them above to the issues we must decide.[54]It was conceded by the Respondent that the alleged acts were protected acts. We acknowledge and accept this concession and do not consider it further.[55]We are not satisfied, however, that the impugned conduct was closely connected to the past employment relationship. The Claimant’s employment was terminated in April 2021, following which she brought Tribunal proceedings that extended over several years. While the passage of time is not in itself necessarily sufficient to break the chain of causation, it is of note here that the Respondent is not said to have taken any action amounting to victimisation prior to the police report in May 2023. There was, therefore, a substantial period of time between the employment relationship ending and the conduct in question. There was then no direct contact between the Claimant and Respondent regarding her former employment, with the exceptions of Mr Gaston’s personal apology, the conversation between the Claimant’s husband and the college about a possible presentation, and the Claimant’s own posts. Where any contact was maintained, therefore, it was largely at the instigation of the Claimant. The response to the posts was by Ms Berry in a personal capacity, where she did not involve the Respondent directly. The evidence does not support the claim that the Respondent, whether directly or indirectly, consciously or subconsciously, supported or encouraged Ms Berry to act in the way she did.[56]There are, therefore, too many links in the chain between the employment relationship and the police report. This was made many years later and by Ms Berry personally, and related to matters in which she was personally being attacked rather than the original Tribunal proceedings or any other protected act. Her intention in making the report was to stop what she saw as harassment rather than to prevent the Claimant from speaking out about the Equality Act or her own experiences. In this regard the act of reporting was not closely connected to the past employment relationship and Ms Berry’s reasons were not in retaliation for the Claimant having brought proceedings, or doing any other protected act; considering Coutinho v Rank Nemo (DMS) Ltd and ors [2009] ICR 1296, CA, we accordingly do not find that there was a possible link to the previous employment relationship.[57]Further and in any event, we are not satisfied that Ms Berry’s actions were in the course of her employment. She was being accused in a personal capacity and likewise reported the posts in a personal capacity. She did not discuss it, seek permission, or act on behalf of the college. She did it in her own car, on her own device, and provided her own personal contact details. She did not claim to speak on behalf of the College and the only reference to the Respondent was in providing essential context. It had been the Claimant’s decision to tag Ms Berry personally and there is simply no evidence to suggest that, had she not done so and instead limited her posts to the official college accounts, further action would have been taken. The police reports do not suggest that Ms Berry wanted the police to stop the Claimant from posting about her experiences with the college in general; rather the request is instead for help in stopping what she perceived to be the false posts about her specifically. She was, in this regard, not acting as a member of staff but as a private citizen seeking help.[58]Whilst in light of our findings above the question of detriment becomes somewhat academic, we do record that we are satisfied that the police report was capable of amounting to a detriment. While we do not find that the evidence supports the claim that the reports will be disclosable, we are satisfied more generally that the reasonable employee in these circumstances would be justifiably upset at having discovered that they had been reported to the police for a crime. The Claimant’s distress in this regard cannot therefore be said to be no more than an unjustifiable sense of grievance.[59]Taking all of the above into account, we do not find that the Respondent subjected the Claimant to a detriment because she did a protected act. The report was not an act of retaliation for the Claimant bringing proceedings, and we do not find that any protected acts had a significant influence on Ms Berry's personal decision to report the matter to the police. She was not seeking to stop the Claimant from talking about such matters in general but was instead seeking to stop the separate act of the Claimant making what she believed to be factually incorrect statements about her personally. Her impulsive and distressed intent, however misguided it might have been in its execution, to stop the Claimant from making such personal attacks in a public forum cannot sensibly be closely linked to the past employment relationship, or be because of the protected acts. As such, the claim must accordingly fail.
CONCLUSIONS
[1]The Claimant’s employment with the Respondent terminated on 2 April 2021. Following a successful Tribunal claim for race-related discrimination and constructive unfair dismissal she issued a further claim for victimisation against the Respondent in respect of matters occurring after the end of her employment. The claim was listed for a Final Hearing on 27, 28, and 29 January 2023.[2]For the reasons which were given orally at the conclusion of that hearing, and followed in writing in the Judgment dated 30 January 2025, the Tribunal unanimously found that the claim was not well founded.[3]The Claimant now applies for a reconsideration of that Judgment. The grounds are set out in the Claimant’s application of 5 March 2025. In summary, she asserts that the findings of the Tribunal were perverse. She argues that the Tribunal should not have found that the conduct did not amount to victimisation; and that the Tribunal should not have found that the conduct complained of had not been in the course of the relevant individual’s employment; and that the Tribunal should have regard to further evidence which has now been submitted in respect of whether a key witness had previously been involved in the Claimant’s earlier claim.[4]Under Rule 68 of the Employment Tribunal Procedure Rules 2024 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a decision where it is necessary in the interests of justice to do so. On reconsideration the decision may be confirmed, varied or revoked.[5]Rule 69 provides that an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) was sent to the parties.[6]The process by which the Tribunal considers an application for reconsideration is set out in Rule 70. Where the Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused. Otherwise, the Tribunal shall send a notice to the parties setting out a time limit for any response to the application by the other parties, and seeking the views of the parties on whether the application can be determined without a hearing.[7]Rules 69 and 70 give the Tribunal a broad discretion to determine whether reconsideration of a decision is appropriate. Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. 35. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[8]The Claimant’s application was received within the relevant time limit. I therefore consider it under Rule 70.[9]The Claimant prepared evidence and submissions in respect of her claim of victimisation for the Final Hearing. The Respondent’s response and evidence engaged with these issues and set out why the claim was defended. All of the material was therefore taken into consideration by the Tribunal in coming to its decision. While the Claimant may naturally be disappointed by the outcome, it is not the purpose of reconsideration to allow an opportunity to rehearse the arguments that have already been made and explored. If there was an error of law, this is a matter for appeal and not reconsideration.[10]In respect of the suggested new evidence, the Claimant was provided with the opportunity to challenge the relevant witness in respect of any alleged discrepancies in her account. Any evidence said to have been relevant to this should have been presented no later than that occasion. The Claimant and her representative were both present during the original proceedings and so this cannot reasonably be described as a situation where they have only become aware of new information after the hearing has concluded.[11]Having carefully considered the Claimant’s application, and bearing in mind the importance of finality in litigation and the interests of both parties, I am not satisfied that there is any reasonable prospect of the Judgment or any part of it being varied or revoked. The application is effectively seeking to re-litigate those matters which have already been determined and does not raise any new information, or information which could not have been raised at the hearing, which would make reconsideration necessary in the interests of justice.[12]The application for reconsideration is therefore refused.