Mrs M V Dela Cruz v Aneurin Bevan University Health Board: 1601122/2023

EMPLOYMENT TRIBUNALS

Case No 1601122/2023

Between

Mrs M V Dela CruzClaimant

Aneurin Bevan University Health BoardRespondent

Before

Employment Judge C Sharp

Members

Ms M Walters

Mrs J Beard

In person for claimant

Ms Williams (instructed by Counsel) for respondent

Date 17 July 2025

REASONS

[1]The Claimant was a Band 5 staff nurse working at the Royal Gwent Hospital in Newport in the day case unit operated by Ophthalmology. She was employed from 8 October 2003 until she resigned with immediate effect on 8 February 2023. The Claimant went through early conciliation between 26 March 2023 and 5 May 2023 and presented a claim to the Employment Tribunal on 7 June 2023.

[2]Any references to a page in the hearing bundle is in square brackets.

[3]The Claimant has brought the following claims (see paragraph 12 for a detailed list of claims to be determined): a) Constructive unfair dismissal; b) Direct race discrimination; c) Discrimination arising from disability; d) Harassment related to disability; e) Less favourable treatment as part-time worker.

[4]The Claimant is unrepresented, is a Filipino and relies on the disability of anxiety and depression. The Respondent has conceded disability. The Respondent, a local NHS health board, is legally represented, and Miss Williams, Counsel, appeared on its behalf throughout the hearing. Mrs Perkins, an interpreter in the Talalog language, attended Days 2-5 (when oral evidence was heard) in compliance with Employment Judge R Brace’s directions. The hearing was in person in Newport, and the Tribunal checked if any further reasonable adjustments were required; nothing further other than appropriate breaks was required.

[5]That said, the Claimant became unwell in the afternoon of Day 4; her husband briefly stepped in as her representative to release the witness then coming to the close of her evidence (Mrs Rich) and it was agreed to wait and see whether the Claimant was better the next day (Mr Dela Cruz having confirmed that the Claimant had suffered from the stomach issue before and usually was better the next day). At the outset of Day 5, the Claimant returned fit to take a full part in proceedings.

[6]The bundle of 1789 pages provided to the Tribunal did not comply with the directions of the Tribunal, and was in a poor state. It was not wholly in a logical order, missing several Orders, and crucially had many duplicates. Most of it was never referred to during the course of the hearing, and the Tribunal was concerned at times that the Claimant was overwhelmed by the documents (and took steps to assist her to put her case). The Tribunal did not spend time trying to find out why the bundle was not as expected, though it was indicated that part of the difficulty was the parties’ inability to agree a position about the bundle.

[7]The duplicates caused much confusion during the hearing and it transpired that notes of the grievance meetings were not disclosed. The Respondent managed to locate a copy of the notes for the Claimant’s investigation meeting (within about 2 hours of the Tribunal asking about the notes) and disclosed them to the Claimant; the Tribunal was told that the other notes could not be found due to staff departures and no attempt to call the investigation officer (Ms Wendy Roberts) as a witness had been made. The Tribunal was also aware by this point that the grievance decision maker had never seen the notes either, so they could not have formed part of the decision (though it meant the ability to check the report against the notes was not available to the grievance panel).

[8]The parties were in dispute over the chronology that had previously been directed to be agreed; before the hearing, Employment Judge Sharp directed that no chronology would be relied upon by the Tribunal. The Tribunal heard oral evidence from the following individuals: a) The Claimant; b) Julia Bye, deputy sister in the Ophthalmic Theatre and day case unit; c) Lynsey South, deputy sister in the Ophthalmic Theatre and day case unit; d) Phillipa Mason, nurse manager for theatre, day case and pre assessment; e) Nicola Neesam, senior nurse for Ophthalmology; f) Amanda Hale, divisional nurse for scheduled case; g) Tracey Rich, then Assistant Divisional Nurse (now Head of Nursing); h) Glenys Mansfield, then General Manager with overall responsibility for the Division of Scheduled Care (now Regional Operational Programme Director); i) Michelle Thomas, then Assistant Workforce Business Partner (and now Senior People and OD Business Partner in a NHS related entity).

The claims

[9]The Claimant’s original ET1 was not focussed and the case has gone through substantial case management. Despite this, the Tribunal at the outset of the hearing went through the claims and raised a concern that the Claimant had in the statements of case had referred to Michelle Thomas asking on 30 January 2023 asking for confirmation why the Claimant could not attend a sickness review meeting on that day as the “last straw”. This was not recorded in the list of issues, and while the Claimant seemed to be shifting her position in her witness statement to assert that having to ask questions about the possible redeployment to another team was a last straw, the Tribunal wanted to be clear with the parties whether or not this was in truth a last straw case and if so, what was the last straw. Both parties were in agreement that it was and that it was Michelle Thomas’ emails of 30 January 2023 asking why the Claimant could not attend a meeting which were asserted to be the last straw.

[10]In addition, the Tribunal considered that the list of issues was insufficiently precise – it was difficult to be certain exactly what the Claimant was asserting. Accordingly, the Judge at the outset of the hearing not only took the Claimant through the list of issues and ensured that she understood it, but specifically confirmed (using the statements of case and where appropriate her witness statement) exactly what it was the Claimant was saying about each claim. This was on the basis that if the Tribunal was unclear from the start, matters were unlikely to improve and the Respondent needed to know what it was defending for there to be a fair trial. At the end of the process, the parties were asked if they were content; they were. It would be fair to note that the Claimant had difficulty in analysing the case as set out by the list of issues; the Tribunal was clear that it would be determined as set out below and the Claimant was encouraged to focus her approach accordingly.

[11]During the initial discussion at the outset of the hearing, the Claimant withdrew one allegation “Moving the date of the appeal grievance meeting, wrongly suggesting that the Claimant postponed it and further delaying the grievance process” of discrimination arising from disability, and it was dismissed in the final Judgment.

[12]The list of claims to be determined by the Tribunal, including the confirmation given by the Claimant in the process outlined above, are: a) Constructive unfair dismissal – the Claimant complains that the following are individually or cumulatively breaches of contract – 1. “Conduct an inept grievance process which was highly unfavourable to the Claimant and protected the senior nurses”. The Claimant confirmed that this is about the delay in the grievance process (which appears to about the time taken after delivery of the investigator report as the Claimant says verbal outcome 42 days after report available and 63 days for the written outcome) and the Claimant also argues that the senior nurses had been protected as the Respondent did not uphold her grievance; 2. “Failed to carry out the grievance process fairly and in line with procedure”. The Claimant argues that the senior nurses had been protected as the Respondent did not uphold her grievance. 3. “Failed in the grievance process to consider the points made by the Claimant and the way the Claimant was treated”. The Claimant says her evidence was ignored. 4. “Failed to respond to or consider the recommendations by the occupational health physician”. This is about two reports of July 2022 [930] and 20 September 2022 [997] – the Claimant complains that the recommendation about having a dialogue between her and management to resolve issues was not following, and specifically at the sickness review meetings where management would not discuss her grievance. 5. “Conducted a biased and unfair grievance appeal”. The Claimant says the original invitation to Ms Hale (grievance chair) and Ms Thomas (HR) to attend the appeal hearing to answer questions was biased and unfair. The Claimant also complains that the change of date for the appeal to 8 February 2023 was unfair as she denied it was at her request. 6. “Failed to follow Nursing & Midwifery Council guidelines or its own operating procedure in respect of the Claimant’s revalidation”. The Claimant says she was given no support and sent home on 1 February 2022; she is also unhappy that the managers refused to sign off her revalidation application. 7. “In a letter dated 6 October 2022, make derogatory and discriminatory comments about the Claimant”. The Claimant says that Michelle Thomas wrote that the Claimant was very emotional and upset and had “no improvement on her state of mind”. The Claimant says that as Ms Thomas was not a clinician, it was offensive for her to record this. The Claimant asserts that Michelle Thomas asking on 30 January 2023 for confirmation why the Claimant could not attend a sickness review meeting on that day and asking if a Teams meeting would suit as the “last straw”. b) Direct race discrimination – the Claimant asserts that the Respondent carried out the following unfavourable treatment because of her Filipino race: 1. Favoured the deputy nurse. The Claimant means by this that the account of Julia Bye in particular, but also Phillipa Mason and Nicola Neesam was accepted by the Respondent. 2. Unfairly treated and singled out the Claimant during the revalidation process during January & February 2022. The Claimant specifically is referring to the requirement that she provided evidence of her CPD. The Claimant relies on a hypothetical comparator, who is white and in the same material circumstances. c) Discrimination arising from discrimination – the Claimant asserts that the Respondent did the following acts because of the insomnia, poor concentration, reduced energy, low motivation, low mood and irritability or sick leave that arose from her disability: 1. Failing to act on the recommendations of the occupational health physician, namely that there be a dialogue between the Claimant and the Respondent and that the Claimant’s grievance be concluded as soon as possible. 2. At the sickness review meetings on 29 April 2022 and 24 August 2022, refusing to allow the Claimant to discuss her grievance issues, as recommended by Occupational Health. 3. When the Claimant was unable to attend a sickness review meeting on 30 January 2023 because of her depression and anxiety, Michelle Thomas (of HR) emailed the Claimant’s representative, asked for confirmation as to why the Claimant was unable to attend and suggested that the Claimant attend the meeting via Teams. 4. Refusing the Claimant’s verbal application to extend her period of full-pay sick pay. The Respondent says that there was no verbal application but Mrs Rich made a written application to the relevant manager, who refused it as the Claimant had annual leave left to take. The Claimant was asked at the outset if she only wanted to rely on the alleged verbal application; she said that this was her case. [1037 & 1087] The Respondent has not pleaded a legitimate aim as it does not accept the claims as factually pleaded and denies any causation. d) Harassment related to disability – the Claimant asserts that the Respondent undertook the following acts which were unwanted conduct relating to her disability – 1. Describe the Claimant in an email as “very emotional and upset” and “there is no improvement in her state of mind” (email Michelle Thomas 6 October 2022 [1014]); 2. When the Claimant was unable to attend a sickness review meeting on 30 January 2023 because of her depression and anxiety, Michelle Thomas (of HR) emailed the Claimant’s representative, asked for confirmation as to why the Claimant was unable to attend and suggested that the Claimant attend the meeting via Teams. [1207]; 3. At the grievance meeting on 11 November 2022, Michelle Thomas said to the Claimant “why the anger? What did they do to you?” when the outcome of the grievance was announced verbally and was challenged by the Claimant. 4. At the sickness review meetings on 29 April 2022 and 24 August 2022, refusing to allow the Claimant to discuss her grievance issues, as recommended by occupational health. e) Less favourable treatment due to being a part time worker – the Claimant asserts that the following acts happened due to her status and compares herself to “Ampie”, who is Maria Amparo Ferrer. The Respondent disputes Ampie as an appropriate comparator, arguing that her work and experience is different to the Claimant’s and she did not act as the Claimant is alleged to have acted in respect to revalidation: 1. Offered her less opportunities, like sending her on regular study days [C has little to say about this in WS]; 2. Required the Claimant to provide evidence before signing her revalidation application (this was confirmed as being about being asked to provide a photocopy of Induction Workbook Ophthalmology on 31 January 2022 by Julia Bye who had been asked to confirm the Claimant’s revalidation folder).

[13]Time is also an issue in this case in respect of the majority of the discrimination claims; many of the claims had been brought outside of the primary limitation period, unless there was a continuing series of events.

Law

[14]The Respondent provided a summary of the relevant law in its written submissions, which were unchallenged by the Claimant. The Tribunal considered that the principles of law outlined in Miss Williams’ submissions were accurate and reflected what had been explained to the Claimant by the Judge at the outset of the hearing, However, the Tribunal sets out its understanding of the law below to demonstrate that it has given independent consideration to the law, though it accepts the Respondent’s legal summary. Constructive unfair dismissal

[15]The Employment Rights Act 1996 is the starting point for this claim: “94 The right (1) An employee has the right not to be unfairly dismissed by his employer. … 95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if —… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. … 98 General (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

[16]The well-known case of Western Excavating (ECC) Limited -v- Sharp

[1978] ICR 221

says that for the Claimant to succeed, there must be a fundamental breach of contract that entitles her to resign due to a repudiatory breach by the Respondent. This is something that must go to the heart or the root of the contract and entitles the Claimant to resign without notice. This involves consideration as to whether there has been an act or omission, or a series of acts or omissions, by the Respondent which was the cause of the Claimant’s resignation and amounted to a fundamental breach of contract. There needs to be consideration of when the breach occurred and if there has been any affirmation by the Claimant, and whether the Claimant resigned in response to the alleged acts or omissions.

[17]This case has been pleaded by the Claimant as a ‘last straw’ case, asserting that Michelle Thomas’ emails of 30 January 2023 asking why the Claimant could not attend the sickness review meeting was the last straw. As a result, additional points must be considered by the Tribunal. It must consider whether the email was an entirely innocuous act and apply an objective test when considering this point. The case of Lewis v Motorworld makes it clear that while the last straw does not have to be a breach of contract, the last straw must in some way contribute to the breach of contract (for example, breach of the mutual duty of trust and confidence). The case of Omilaju -vWaltham Forest LBC

[2005] ICR 481

saw the Court of Appeal stating that if the act is entirely innocuous, it cannot be a last straw. It does not need to be unreasonable or blameworthy, but the last straw must have a degree of fault.

[18]The case of Kaur -v- Leeds Teaching Hospital NHS Trust

[2018] EWCA Civ 978

saw the Court of Appeal list five questions which should be sufficient for an Employment Tribunal to ask to determine whether an employee has been constructively dismissed:(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? The answer in this case is Michelle Thomas’ emails of 30 January 2023 about the sickness review meeting due that day and why the Claimant said that she could not attend.

(2) Has the Claimant affirmed the contract since that act? She resigned with immediate effect on 8 February 2023 and did not work in the interim.

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence?

(5) Did the employee resign in response (or partly in response), to that breach? The Court of Appeal also referred to the last straw doctrine as “conduct as crosses the Malik threshold”, a reference to the case of Malik - v-Bank of Credit and Commerce International SA

[1998] AC 20

. This is the question as to whether, viewed objectively, the course of conduct showed that the employer over time had demonstrated an intention to no longer be bound by the contract of employment.

[19]Lawful conduct is not something that is capable of amounting to repudiation and therefore conduct cannot be repudiatory unless it involves a breach of contract (Sparfax Limited -v- Harrison

[1980] IRLR 442

Court of Appeal).

[20]The implied obligation of mutual trust and confidence in employment contracts requires that the employer shall not “without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employee/employer”. This is a definition which has been cited in cases such as Malik -v- BCCI, Woods -v- WM Car Maintenance Services, Imperial Group Pension Trust -v- Imperial Tobacco and Lewis -v- Motorworld Garages Limited, all of which are well known.

[21]The implied obligation is formulated to cover many situations and a balance has to be struck between the employer’s interests in managing the business that they run as they see fit, and the employee’s interests in not being unfairly and improperly exploited. It is a mutual obligation. In assessing whether there has been a breach, what is of significance is the impact of the employer’s behaviour on the employee, rather than that which the employer intended BG PLC -v-O’Brien [2001].

[22]The burden lies on the employee to prove the breach on the balance of probabilities; this means that the employee must prove the alleged act or omission, and the employee must prove that the employer’s conduct was without reasonable and proper cause. The test whether such proven conduct, in the absence of reasonable and proper cause, amounts to a breach is severe (Gogay v Hertfordshire CC). It is not enough for the employee to prove the employer has done something which is simply in breach of contract, or “out of order”, or perhaps unreasonable. She must prove that the degree of breach was sufficiently serious, or calculated, to cause such damage that the contract can be fairly regarded as repudiatory and that repudiation accepted. The cases of Croft -v- Consignia PLC and The Post Office -v- Roberts both indicate that the quality of the breach must be substantial. It must go to the heart of the contract – its root or to put it another way, it must be fundamental.

[23]Deciding to resign is for many, if not most, employees is a serious matter. Their mortgage and regular expenses may depend upon it and economic opportunities for work elsewhere may be slim. There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force. In other words, all depends upon the context and not upon any strict time test. This guidance arises from the precedents of W E Cox Toner International Limited-v- Crook

[1981] IRLR 443

and Buckland v Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

[24]The reason for resignation is another key question. The effective cause does not need to be the sole or dominant cause in the case of Jones v F Sirl & Son (Furnishers) Ltd

[1997] IRLR 493

[25]If the Claimant’s resignation is found to be a dismissal, the Tribunal then must consider whether it was unfair and whether a fair procedure was adopted.

[26]In this case, the Tribunal has been asked to consider making a Polkey deduction and to consider whether the Claimant’s conduct was blameworthy enough to constitute contributory conduct towards her dismissal. Direct race discrimination

[27]The Claimant asserts direct race discrimination under s.13 Equality Act 2010: “(1) 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.” The comparison that the Tribunal had to make under s. 13 is set out within s. 23 (1): “On a comparison of cases for the purposes of sections 13, 14 or 19, there must be no material difference between the circumstances relating to each case.” The Claimant compares herself to a white colleague in the same material circumstances. The case of Nagarajan v London Regional Transport

[1999] IRLR 572

confirmed that a finding of direct discrimination did not require that the discriminator was consciously motivated in treating the complainant less favourably. It was sufficient to support a finding of discrimination if it could properly be inferred from the available evidence that, regardless of the discriminator's motive or intention, a significant cause of their decision to treat the complainant less favourably was that person's protected characteristic. Conscious or subconscious influence due to the existence of a protected characteristic is enough to render the act discriminatory if it was a significant influence. Discrimination arising from disability

[28]We were conscious, with regard to this claim, of the guidance provided by the EAT in Pnaiser v NHS England and another (

UKEAT/0137/15

), which is to apply a three-stage test of:(i) identifying whether the claimant was treated unfavourably;

(ii) determining what caused that treatment, and

(iii) determining whether the reason for the treatment was "something arising in consequence of the Claimant's disability. Harassment

[29]There are three parts to the legal test for harassment in section 26 of EqA. As held in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

, at 727G728A, the Claimant needs to show that:(i) the Respondent engaged in unwanted conduct;

(ii) such conduct had either the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her; and

(iii) such conduct was related to her protected characteristic (i.e. disability). The term “unwanted conduct” is not defined in EqA. Whether conduct is unwanted is a question of fact on the evidence before the Tribunal. In deciding whether or not conduct has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating environment for them, the Tribunal should take into account the factors set out in section 26(4) EqA, namely: (i) The Claimant’s perception of events; (ii) the other circumstances of the case; and (iii) whether it is reasonable for the conduct to have that effect. In order to amount to unlawful harassment under s26 EqA, the conduct must be “related to” the claimant’s protected characteristic of disability. The term “related to” is a broad one and can encompass conduct done on the grounds of race and also wider conduct associated with the protected characteristic: Bakkali v Greater Manchester (South) t/a Stage Coach Manchester

[2018] IRLR 906

. There is no requirement to consider a comparator (hypothetical or real) on a harassment claim under s26. Less favourable treatment – Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

[30]Regulation 5(1) is set out below: “5.—(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker— (a)as regards the terms of his contract; or (b)by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if— (a)the treatment is on the ground that the worker is a part-time worker, and (b)the treatment is not justified on objective grounds. (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. …” The questions that the tribunal need to determine are: 1. What is the treatment complained of? 2. Was that treatment less favourable than that of a comparable full-time worker? An actual real person must be the comparator, as opposed to hypothetical comparator, and the Claimant has named Ampie, but only for the second claim of less favourable treatment; there is no actual comparator for the first claim. Regulation 2(4) of the Part Time Worker Regulations confirms that “A full-time worker is a comparable full-time worker in relation to a part-time worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place— (a)both workers are— (i)employed by the same employer under the same type of contract, and (ii)engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and (b)the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements.” 3. Was the less favourable treatment on the ground that the claimant’s was a part-time worker? The case of Carl v University of Sheffield

[2009] IRLR 616

confirms that the test is whether the part-time worker status was an effective and predominant cause of the less favourable treatment complained of. 4. If the less favourable treatment is found to be on the ground that the worker was a part-time worker, can the respondent objectively justify the treatment? Less favourable treatment will only be justified on objective grounds if it can be shown that the treatment is to achieve a legitimate business objective, necessary to achieve that objective, and an appropriate way of achieving that objective (the Supreme Court decision in Ministry of Justice (formerly Department of Constitutional affairs) v O’Brien

2013 ICR 499

supports the application of this test). Time

[31]Section 123 EqA notes that a claim must be brought within three months of the act complained of. Bearing in mind that the claim was not lodged until 7 June 2023, it was lodged outside the required time frame in respect of some of the discrimination claims and therefore the Tribunal must consider whether it would appropriate to extend time on the “just and equitable” basis, unless there is a series of continuing acts meaning the claims are in time.

[32]In that regard, the Tribunal was mindful of the case law in this area, notably that of Bexley Community Centre v Robertson

[2003] IRLR 434

(including the rarely cited paragraph 24) and Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

[33]It is possible that there is a series of continuing acts. A continuing act can comprise acts which fall under different “headings” of discrimination: Robinson v Royal Surrey County Hospital NHS Foundation Trust

UKEAT/0311/14/MC

(paragraph 65). The acts must be so linked that they constitute a continuing act: Aziz v FDA

[2010] EWCA Civ 304

(paragraphs 35 and 36); Lyfar v Brighton and Sussex University Hospitals NHS Trust

[2006] EWCA Civ 304

(paragraph 10). Burden of proof

[34]The burden of proof for a constructive dismissal claim is straightforward – the Claimant must prove she has been dismissed. After that, the burden is neutral. For the discrimination claims, a shifting burden of proof applies as set out by s136 EqA: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

[35]At the initial stage of the claim, the burden of proof is on the Claimant on the balance of probabilities (more likely than not), to establish a prima facie case, i.e. facts from which discrimination can be established in the absence of a reasonable explanation from the Respondent (Igen v Wong

[2005] EWCA Civ 142

, Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] IRLR 332

and Hewage v Grampian Health Board

[2012] UKSC 37

). This includes showing the acts complained of occurred. A simple complaint of unfair treatment does not, on its own, provide sufficient facts for the burden to move to the Respondent or for the Tribunal to find that this treatment was unlawful discrimination. It is trite law that an allegation of mere difference in treatment between the Claimant and any comparator or between the protected characteristic of the Claimant and others is not sufficient to shift the burden of proof to the Respondent (Madarassy v Nomura International plc

[2007] IRLR 246

[36]There are times where it is more appropriate for the Tribunal to use a less structured approach and ask the “reason why” for the treatment complained of, if established that it happened (Shamoon). If the reason why the treatment occurred is not discriminatory, then whether or not the burden of proof has shifted is an academic point as the claim will fail.

Findings of fact

[37]The majority of the relevant facts in this case are undisputed. The Claimant in particular in her statement raised matters which were not relevant or part of the claims before the Tribunal; these will not be determined.

[38]The heart of this case is about the Claimant’s revalidation as a nurse. The role of a registered nurse is often under-appreciated and under-valued. They are the core of the health service, responsible for caring for patients and their safety, as well as potentially other matters, such as management and care planning. Registered nurses must prove their fitness to practice to the Nursing and Midwifery Council (“NMC”) by going through revalidation every three years. Each registered nurse is responsible for their own revalidation [1695].

[39]This process involves carrying out 35 hours of continuous professional development (“CPD”) over the course of the three years, 20 hours of which must be participatory. There is no reduction for part time workers, such as the Claimant who worked 15 hours a week. The CPD requirement can also be met by attending wards and learning new skills or matters of practice. Evidence has to be gathered and put together in a revalidation pack where it is discussed with a “confirmer”, who is another registered nurse or health care professional who is subject to the supervision of another regulatory body. The confirmer places their professional standing at risk if they inappropriately confirm a nurse during their revalidation process. The policy of the Respondent is that the confirmer is usually the registrant’s line manager [1660]. NMC also recommends this [1727 paragraph 143] and that the process is undertaken in the last 12 months [1726 paragraph 140].

[40]The Claimant had previously gone through revalidation with no reported difficulty. In the three years prior to February 2022, she had had some sick leave (for example some time off in March 2021 due to urosepsis and Covid in October 2021) [Claimant’s oral evidence; 1416; 1417], but nothing that appeared to prevent her from spending time in the last 12 months of her three-year cycle ensuring that she met the revalidation requirements. Indeed, the Claimant carried out many CPD activities during her three-year revalidation cycle. One issue that arose though was whether it was relevant to her practice, could be evidenced, and whether she had reached the 35- hour mark.

[41]The Claimant over the course of a lengthy employment with the Respondent was working as a staff nurse in the day case unit of the ophthalmology department at the time of the relevant events. The deadline to revalidate for her was to complete the application and submit it to the NMC with the appropriate fee by 1 February 2022 (though there was scope for an extension if agreed with the NMC to 28 February 2022) [1774]. For the avoidance of doubt, while it appears there was much confusion about when the Claimant’s registration expired, and no copy of her NMC records were provided, [1774] is the NMC document that confirms when revalidation is due, the application deadline is the first of the relevant month, which is the month at the end of which registration expires. This means in the Claimant’s case that her registration expired on 28 February 2022 but the deadline was 1 February 2022. Phillipa Mason and Nicola Neesom’s evidence was that they believed the Claimant was not registered if she did not apply in time (as well as other beliefs, such as about the policy of the health board); there is no evidence this is a correct belief. That said, a witness can honestly believe something that is incorrect.

[42]In the Claimant’s case, there is no dispute that the appropriate confirmer was one of the two deputy ward sisters, Julia Bye or Lyndsey South. The NMC policy is that it reminds registrants of their deadline 60 days before their revalidation ends, and there is no dispute that the Claimant was aware that she was approaching the end of revalidation. In addition, the Tribunal was told that the ward’s practice was to write each registered nurse’s revalidation date on a whiteboard; this was unchallenged. All the official guidance documents by the NMC and the Respondent reiterate that it is the duty of the registrant to sort out their revalidation. The Tribunal finds that the Claimant was well aware of the deadline to complete her revalidation application.

[43]The Claimant had a PADR (performance and development review; an appraisal) with Julia Bye on 3 December 2021. It originally had been arranged for September 2021, but the Claimant was unavailable due to leave and then bereavement. In October, she had Covid. This was confirmed in the Claimant’s oral evidence and paragraph 13 of Ms Bye’s statement. At the PADR, the Claimant was reminded that she needed to sort out her revalidation.

[44]Ms South’s undisputed evidence, both in her statement and orally, was that the Claimant in December 2021 would mention concerns about her revalidation and teaching hours (a reference to participatory CPD). Ms South’s unchallenged evidence was that the Claimant should bring in her revalidation folder so she could look at it with her and assist; the Claimant said that it was “nowhere near ready”. The Claimant did not bring in her folder until 28 January 2022; three days before the deadline.

[45]On 28 January 2022, the parties agree that the Claimant left documentation on a desk which was to be her revalidation pack. There is a dispute about whether it was left on an appropriate desk in the sisters’ office or on the ward, but this is irrelevant. All agree that it was not handed to one of the sisters and found by Ms South. All agree that the Claimant was told that the deputies were busy that day and they did not have time to sit down and go through the revalidation process that day. An appointment to have a revalidation meeting with Ms Bye at 10am 31 January 2022 was made. In addition. Sister Mason emailed the Claimant on 28 January to remind her revalidation was due and it should have been completed by now [554]. The Claimant asserts that on 28 January she gave a CPD log to Ms Bye [482]; Ms Bye accepts that she saw a document which was similar to a log but it was not this document, but said it was not good enough as a NMC log as it did not relate the learning to the required specifications. The Claimant does not dispute that the document reviewed on 28 January needed work, so the precise document shown is not relevant. All agree that the revalidation pack was quickly reviewed and found to be deficient. There is an unimportant dispute as to whether the Claimant provided a proper folder of evidence or a pile of papers; what is important is that the term “folder” is a convenient shorthand and the contents did not meet with approval at any time with Ms Bye, Ms South, Mrs Mason or Mrs Neesam.

[46]On 31 January 2022 the Claimant handed over to Julia Bye her revalidation pack. It is agreed that it included the CPD log [487] showing 28.5 hours of CPD. Mrs Bye was not willing to sign off the folder as the Claimant had not provided sufficient evidence of her CPD activities. A SWONS course in Bristol was not supported by evidence of attendance, the induction workbook relied upon for 5 hours of CPD in the view of Mrs Bye had not been provided for her to check, so she asked for a photocopy. This is the first major dispute between the parties; the Claimant says it was in the pack and so no photocopy was required; Mrs Bye says that it was not. The Tribunal finds in favour of Mrs Bye’s evidence – if she was provided with a copy of the book by the Claimant, the Tribunal considers it more likely than not that she would not have requested a copy to check. It was not in the interests of a busy sister to refuse to look at evidence supplied when she needed the Claimant revalidated to perform her role.

[47]The parties agree that the Claimant was told if she undertook 1 hour of CPD about eye drops, she would reach the 35-hour requirement; they disagree that this was on the basis that the Claimant provided her workbook or a copy as evidence. The note telling the Claimant what to work on that afternoon [576] confirmed that one more hour was required, and the Claimant needed to update her CPD log. Mrs Bye said that the workbook was not mentioned as the Claimant had been told to provide it for checking and was expected to do so, having told Mrs Bye that it was done. The Claimant says that the note shows she had shown the workbook (also called a competency document); the Tribunal disagrees. If as Mrs Bye says the Claimant had said it was done, it was reasonable for the note to concentrate on what had not been done.

[48]Around 12.41pm, the Claimant updated her CPD log to show the agreed CPD work, including the eye drops learning (the Tribunal is unable to establish which version was attached to the email of this time). The parties disagree whether the Claimant popped in at lunchtime to see Ms Bye, but this is unimportant, though both accept the Claimant left a folder around this time. The parties do agree that at the end of the working day, the Claimant reappeared to see Ms Bye. They also agree that Ms Bye told the Claimant that she had only seen a CPD log showing 28.5 hours; the parties disagree over the next part (and the note given to the Claimant confirms this at 576]. The Claimant says that she put two different logs in her pack – one which was incorrect saying 28.5 hours and the other updated one saying 35 hours. The Claimant goes on to claim that she grabbed the folder from Ms Bye to show her the 35-hour log. Mrs Bye’s account is that the Claimant said the wrong version was in the folder and that she had the correct one in her bag, but did not provide it to her. Mrs Bye also says that the Claimant still had not provided evidence of her induction workbook; the Claimant says that it was in the folder. All agree that the Claimant left without successfully revalidating.

[49]The Tribunal prefers the evidence of Ms Bye. First, it cannot conceive that the Claimant would “grab” the folder off a senior nurse, given all the evidence about the deference she showed. Second, the note at [575] shows that the Claimant had not given the 35-hour log to the Ms Bye; if so, why would she ask for it in the note? Thirdly, Ms Bye wrote a close to contemporaneous email [602] setting out her version of events which match her account above. It is possible to lie from the outset and hold that position consistently, but why would Ms Bye do so when the Claimant had not complained? And lastly, Ms Bye is warning her manager about the issue – she is inviting further enquiries, which would be unwise if the Claimant’s account is correct.

[50]The next day, following emails from Ms Bye to Mrs Mason [557 and 602], the Claimant met with Mrs Mason and Mrs Neesam. They explained that they did not have sufficient time to go through the revalidation documentation, but from a quick look, they agreed with Julia Bye and did not consider the revalidation paperwork to be satisfactorily completed. Evidence was missing and the folder was described as being in a poor state, and not as expected to be signed off. There is no dispute about this part of the meeting.

[51]There is a division between the parties about what was said next. The Claimant says that she was told she had to go home and that she would not be paid; Mrs Mason and Mrs Neesam say that because they believed the Claimant was now not registered due to her failure to complete the revalidation paperwork by the NMC deadline, and that under the Health Board’s policy, she could not work as a nurse. The Respondent’s policy is at [1652] and states at [1658] that failure to revalidate is a breach of the terms of employment and the individual cannot work as a registered nurse. Mrs Mason and Mrs Neesam said that the Claimant was sent home in addition so she could finish the paperwork and contact the NMC for an extension or advice, and deny telling her that she would not be paid. Both agree no advice from HR was taken, but a lead nurse was consulted.

[52]It is agreed by all that the entry on ESAR initially said that it was authorised unpaid leave but a senior nurse changed it the next day to paid leave (it is not known who but this was well before any complaint from the Claimant), which means that the Claimant was paid for this day in the usual manner. The Claimant was told to return the next day to work on her revalidation with Philippa Mason. The Tribunal concluded that it is more likely than not that the Claimant was sent home because the senior nurses incorrectly believed that she was not registered and to give her time to sort out revalidation, and it was the latter that was the principal reason for sending her home. The Tribunal noted that the Claimant at the outset of the hearing had not identified this specific allegation about what was said in the meeting as part of any claim, though the Respondent in its submissions thought it might be part of the race claim. Ultimately, there was no evidence at all that the reason she was sent home had any connection to race. The Tribunal could not find that the Claimant was expressly told she would not be paid in the manner that she alleged, the Claimant had a history of misremembering or misunderstanding what had been said or written (see below for examples, such as Occupational Health advice), but it was possible that she was told the time would be recorded initially as unpaid pending further advice. This is what happened, but as the Claimant was paid, and the Tribunal does not accept the Claimant’s account that she was bluntly told she would not be paid.

[53]The Claimant’s position throughout the relevant time and at the Tribunal was that she was entitled to bring her folder late in the process and expect senior nurses to stop their work and help her complete revalidation. The Claimant said that the Equality Act 2010 meant that the nurses had to remove all barriers and support her. While the Claimant occasionally accepted that patient safety came first, and heard evidence of the “black” situation at the hospital during late January and early February 2022, she remained firmly of the view that having had three years to work on her revalidation, and the advice of the NMC to spend the last 12 months working on it, plus the various reminders given, it was not fair or reasonable for the senior nurses to fail to drop everything to help her in the last three days before the deadline. The Tribunal considered this to be wholly unreasonable and unprofessional; it echoed much of what happened at the Tribunal itself – the Claimant expected much to be done for her throughout the case.

[54]The Claimant did not return on 2 February 2022, and never returned to work. She commenced a period of sick leave due to her mental health. This necessitated a series of long-term sickness meetings, and it is plain from the evidence that there was significant difficulty in arranging these due to a combination of the Claimant’s health or availability of a trade union representative. In the end, long-term sickness meetings took place on 29 April 2022, 29 May 2022, 15 July 2022, 24 August 2022, 5 October 2022, 14 December 2022, and 9 January 2023. At all of these meetings Tracey Rich and Michelle Thomas attended (though Tracey Rich left the October meeting early due to clinical demands).

[55]The Claimant complains of an email sent by Michelle Thomas on 6 October 2022 summarising the meeting of 5 October 2022 [1014]. The Claimant complains that Ms Thomas said “Maria was still very emotional and upset as she has been in previous meetings which would indicate that there is no improvement in her state of mind.” The Claimant’s point is that HR should not say this; the Tribunal had no concerns at all about HR recording the state of mind of the Claimant and her presentation at the sickness meeting. Specialist clinical qualifications are not required to make a factual observation, and this is a standard observation made every day by HR professionals. It was relevant to record the current position, given the Claimant was absent due to her mental health.

[56]The Claimant’s other complaint about the sickness review meetings was in relation to Occupational Health. There were two occupational health reports – the first in July 2022 [930] and the second on 20 September 2022 [997]. They were similar to each other, and in the slightly more detailed report of September, the doctor recommended that the grievance was concluded as swiftly as possible and that there was a dialogue with the Claimant and management in investigating and resolving issues preventing her return to work. Despite the Claimant’s assertions, the reports do not say her grievance should be dealt with at sickness review meetings. The Claimant also was unable to identify in what way Ms Rich had failed to comply with the reports; the Claimant did not say that Ms Rich should take over the grievance. It was wholly unclear what the Claimant was unhappy about, unless it was the fact that the grievance process was being dealt with separately, which is standard industrial good practice. The Tribunal considered that the sickness meetings did see a dialogue between the Claimant and management through Ms Rich; her health was discussed, support and options offered, redeployment was explored. The unfortunate truth was that unless the grievance agreed with the Claimant’s position, the Claimant would not return.

[57]It is worth noting that the Claimant specifically complained that in the sickness review meetings of 29 April and 24 August 2022 she could not discuss her grievance; these meetings pre-date 20 September 2022 which is when the more detailed occupational health report was written.

[58]Running separately from the sickness process was a grievance process as the Claimant raised a grievance on 22 February 2022 concerning the events surrounding her failure to revalidate on time and in particular Julia Bye. Carol Grimshaw was originally appointed the investigator and she interviewed Ms Bye, Ms South, Mrs Mason and Mrs Neesam on 20 May 2022. The notes of these investigation meetings have not been disclosed, and were not provided to the grievance panel.

[59]It was not possible to arrange a meeting with the Claimant due to her health and availability of her trade union representation. It was not until 15 August 2022 that the newly appointed investigator Wendy Roberts was able to interview the Claimant. Again, no notes were provided to the grievance panel and were not disclosed to the Claimant until during the hearing itself after the Tribunal raised the point. Following that interview Ms Roberts wrote an investigation report which was provided to the chair of the Grievance panel, Amanda Hale, on 30 September 2022 [1365]. Ms Hale’s evidence was that she was not provided with anything other than the report, the Claimant’s evidence (her timeline), and the meeting she had with the Claimant in April to reach her decision. Ms Hale and Ms Thomas (the HR person on the panel) noted that the policy did not require them to be given the evidence, nor the Claimant, though apparently the policy has now changed. The Tribunal was unsurprised to hear that on reflection the Respondent had realised the foolishness of not providing evidence to a decision-maker.

[60]The Tribunal spent much time on the issue of the evidence available during the grievance. The Claimant had not sought the notes until after the outcome [1079] and her trade union representative made no objection at any time. The Claimant was not even provided with a copy of the investigation report. The Tribunal found this surprising on the face of it. Ms Hale’s evidence was that she took the report at face value; this made no allowance to a possible innocent misdescription of the evidence provided by the investigator and gave no opportunity for Ms Hale to form her own view of the evidence. Ms Hale seemed entirely uncurious about the evidence, and simply kept repeating that it was policy. Neither Ms Hale nor Ms Thomas considered wider fairness issues.

[61]However, the Tribunal noted that the All Wales Respect and Resolution Policy, negotiated with unions, did not require or even suggest that sharing evidence or the report with the Claimant was an option [1667]. It also did not say that the decision maker should see all the evidence. The Tribunal went to the ACAS Code of Practice on Disciplinaries and Grievances and the underlying guidance, and it also is silent on this issue. The Tribunal reminded itself that a grievance is not a disciplinary; there can be good reason to withhold evidence (for example, the goal of a grievance is to resolve a dispute and get everyone working positively in the workplace. Showing a complainant evidence where possibly they are criticised may undermine this goal.

[62]The same argument does not apply to showing the decision maker the evidence, but there was no breach of policy in this case in the Respondent failing to do so. It was the Respondent who took the risk arguably in only showing Ms Hale the Claimant’s evidence and a summary report. It is also relevant to point out that the Claimant’s grievance was narrow in focus; it was about her failure to get her revalidation signed off, which she said was bullying and harassment. However, even on the Claimant’s own account, she left matters far too late in the process to have the careful time-intensive review required by the NMC, and did expect the senior nurses (during a NHS winter) to drop everything to help her. The dispute about the quality of the revalidation folder saw four senior nurses all saying that the Claimant had not met the standard against the Claimant who said she did. In such circumstances, without the benefit of a time machine to see for herself, Ms Hale reached her decision on a fair and reasoned basis. Indeed, the Tribunal has reached the same conclusion independently, though this time with the benefit of extensive evidence. As a result of the finding that the Claimant had not properly gone through the revalidation process, Ms Hale’s conclusion that there was no bullying or harassment in requiring her to do so was based on evidence and the Tribunal reached the same conclusion.

[63]The appeal would have seen a wider investigation, but the Claimant chose not to engage. The Tribunal accepted Ms Mansfield’s evidence that she would have asked questions and got into the evidence if the Claimant had engaged; Ms Mansfield’s independent approach was shown by her email challenging Amanda Hale about her outcome letter [1300].

[64]There was an initial grievance meeting held on 19 April 2022 and a second meeting on 11 November 2022 where the Claimant was told that a grievance was not upheld and the grievance panel did not consider that the senior nurses’ actions surrounding the revalidation to have been unreasonable. It was at this meeting where the Claimant alleges that Michelle Thomas said to her “why the anger? What have they done to you?”. The Tribunal finds that these words were not said, though it is difficult to see why the Claimant objects to them in any event. The Tribunal considers it more likely that as Ms Hale and Ms Thomas says the Claimant was asked if there was any further information she could give and if there was something specific upsetting her. That is consistent with both the tone adopted by Ms Thomas as shown by all the evidence before the Tribunal and standard practice. It is more likely than not that the Claimant was misremembered what was said to her when she accepts that she was upset. This is part of a pattern where the Claimant does not accurately remember what happened.

[65]The outcome was confirmed in writing on 2 December 2022. The Claimant says that the delay in providing her with an outcome was unreasonable. Ms Hale’s unchallenged evidence was that all, including the Claimant’s representative, knew she would be absent in October 2022 before the report was received, which was why she chased it. The report was received on 30 September 2022, and when Ms Hale returned, she promptly arranged for a verbal outcome meeting 11 days later. This is not unreasonable delay. The delay in providing the outcome in writing was longer and Ms Hale cannot explain it, but as the Claimant knew the outcome and the reasons, it is difficult to find any detriment. It did not affect the Claimant’s ability to appeal.

[66]The Claimant appealed this decision of 15 December 2022. The appeal meeting was originally arranged for 23 January 2023 but was postponed. The Claimant denies that she asked for a postponement of the appeal meeting, but this is not accurate. The Claimant insisted on a face-to-face appeal meeting but she had broken her ankle; accordingly, her union representative wrote to the Respondent saying that the six weeks were needed to pass to allow the Claimant to attend a face-to-face meeting [1138]. In the Tribunal’s view, this was why the appeal meeting was postponed to 8 February 2023. There is nothing in the Claimant’s argument that she would have been happy with the original date, and it is plain that the meeting was rearranged at her representative’s request.

[67]The appeal meeting was ultimately arranged to take place on 8 February 2022. In the meantime, the Claimant was due to attend a sickness review meeting on 30 January 2023. However, it was cancelled at the last minute because the Claimant’s trade union representative contacted Michelle Thomas to say that the Claimant was unable to attend due to being sick. Michelle Thomas responded on the same day asking what precisely the health issue was in relation to the Claimant; the Claimant says that this is the “last straw” and was inappropriate. Ms Thomas’s evidence is that she did not know if the Claimant was unable to attend due to her ankle (in which case a Teams meeting could be made available) or mental health, which was the reason she was signed off work.

[68]The Tribunal found Ms Thomas’ emails wholly innocuous and it was entirely reasonable to ask which condition meant that the Claimant could not attend the meeting as “sick” was unhelpful and vague. The Claimant was at risk of being dismissed at this stage of the sickness process and so it was essential that the Respondent understood why she could not attend.

[69]The Claimant resigned on 8 February 2023 and did not attend the appeal meeting. It was delayed as a result and the Claimant was invited to attend a rearranged meeting on 8 March 2022. The appeal chair Glenys Mansfield had become aware that the Claimant objected to the grievance panel attending the appeal (which was part of the standard policy as an option [1682]) and offered to proceed in the absence of Ms Hale and Ms Thomas. The Claimant did not attend the rearranged grievance appeal; her appeal was partially upheld but not in any substantial way. The Tribunal accepted Ms Mansfield’s unchallenged evidence that if the Claimant had attended to explain and discuss her concerns, she would have investigated further. It was also noted that Ms Mansfield continued to ask questions of Ms Hale and Ms Thomas, even when the Claimant failed to attend, demonstrating the seriousness in which she undertook her duty.

[70]A few final points to address outside of the chronological account above. The Claimant alleged that she made a verbal application for full sick pay. This is not correct. A written application was made on her behalf following a sickness review meeting and it was refused on 22 November 2022 [1087]. The unchallenged reason for the refusal was that the Claimant had been offered support and options to help her return to work, which were all declined by her. This included using holiday leave to receive income. The Tribunal accepts this as the reason why the application failed as having reviewed the sickness process, this is correct – the Claimant did not accept any support or options offered to her, including redeployment. The reason why the application failed had nothing to do with her symptoms arising from her disability or her sick leave.

[71]The Claimant failed to provide any evidence she had been refused study days; on the contrary on her own evidence, she had attended training. There is also no actual comparator for this claim as required under the law. The Claimant also failed to provide evidence of Ampie’s revalidation or what exactly happened; the letter from Ampie [796] was insufficient and the screenshot [792] simply sees Ampie being asked if she required to provide a copy of a workbook; however, if Ampie was not relying on the workbook, she would not be asked to provide it. Again. If Ampie had properly completed her revalidation folder, unlike the Claimant, then Ampie would have no difficulty in revalidating. The Tribunal was also not persuaded that Ampie would be an appropriate comparator; the Claimant accepted that Ampie had different skills and performed the role of theatre scrub nurse and was unaware that Ampie was only temporarily in the day unit due to health issues. Conclusions Unfair dismissal

Conclusions

[72]The Claimant has failed to establish any breach of contract by the Respondent. The grievance process was not subject to undue delay in terms of delivering the outcome after receipt of the investigation report. Accepting the accounts of the senior nurses over the Claimant’s account was reasonable given the evidence. The Claimant’s evidence was not ignored, and strikingly it was the only evidence provided to the grievance panel. The Respondent did not fail to respond to or consider the recommendations of Occupational Health. The appeal was not biased or unfair, particularly as it was delayed at the Claimant’s request and the appeal officer excluded the grievance panel, again at the Claimant’s request. The Respondent did not fail to follow either its own policies or NMC guidelines when dealing with the Claimant’s revalidation. The Respondent did not make derogatory or discrimination comments through Ms Thomas’ email of 6 October 2022. Finally, the emails of 30 January 2023 were entirely innocuous and do not constitute a final straw. Accordingly, the Claimant has failed to show any dismissal took place. The claim fails. Direct race discrimination

[73]The Claimant has been unable to point to any evidence of race discrimination, other than her own feelings. The Respondent preferred Ms Bye’s account because it was supported by other witnesses and contemporaneous evidence, unlike the Claimant’s account. The Claimant was not unfairly treated or singled out when her revalidation folder was considered; she failed to meet the standards required to allow a confirmer to lawfully sign in compliance with the NMC’s requirements. In circumstances where the Tribunal was told without challenge that 85% of the ward was staffed by international nurses, the Claimant’s allegations of racism were further undermined; they ultimately had no basis whatsoever. This claim fails. Discrimination arising from disability

[74]The Claimant in the judgment of the Tribunal simply failed to understand her own case. The Claimant failed to put to any witness, despite encouragement from the Tribunal, that the alleged unfavourable treatment happened because of insomnia, poor concentration, reduced energy, low motivation, low mood, irritability, or sick leave arising from anxiety and depression.

[75]The Tribunal did not find that the Respondent failed to comply with the recommendations of the Occupational Health report, or wrongly suggested that the Claimant asked for the postponement of the appeal meeting. The Claimant was not permitted to discuss her grievance at sickness review meetings, but that had nothing to do with her disability, but because it was being dealt with in a separate process. The Claimant was asked by Ms Thomas on 30 January 2023 why she could not attend the meeting due that day, but this was because Ms Thomas needed to know if the reason was the Claimant’s ankle injury. The Claimant did not make a verbal application for sick pay, but the written application was refused because she persistently declined the offers of support and options to return to work, and had annual leave available. This claim fails. Harassment relating to disability

[76]The Tribunal accepted that the Claimant was described as alleged in Ms Thomas’ email of 6 October 2022. It accepts that it was unwanted conduct by the Claimant, who felt that HR had no place making such observations. The comments related to the Claimant’s disability of anxiety and depression. However, there was no evidence that the purpose of Ms Thomas’s comments were to violate the Claimant’s dignity or create the proscribed environment. As found above, the purpose was to accurately record the Claimant’s current mental health. This was entirely reasonable and relevant to do so in all the circumstances. The words were not objectively offensive, and the Claimant’s objection was to the identity of who wrote them – Ms Thomas. Turning to the effect test, while the Claimant objected, she failed to show any effect to the standard required and critically objectively, a reasonable person would not feel their dignity was violated or would suffer the proscribed environment. The information was accurate and Ms Thomas, having attended all the meetings, was well placed to record it and compare to the Claimant’s other meetings. There was no persuasive evidence that the Claimant suffered the alleged effect; there was no contemporaneous objection made.

[77]The Tribunal similarly found that on 30 January 2023 Ms Thomas did send the emails complained of asking why the Claimant could not attend. It accepts that they were unwanted by the Claimant. However, they did not relate to the Claimant’s disability of anxiety and depression; Ms Thomas’ evidence that she was checking if the Claimant’s ankle injury was the cause is accepted. It is notable that all the other times the Claimant did not attend, such emails were not sent; it was only when she had the ankle injury that the Respondent needed clarity.

[78]The Tribunal has not found that Ms Thomas said the words alleged by the Claimant on 11 November 2022.

[79]The Tribunal accepts that the Claimant could not discuss her grievance in the sickness review meetings, but this was not in breach of Occupational Health recommendations. The Tribunal was not persuaded in any event that this was unwanted conduct; a refusal is not the same as conduct. If the Tribunal is incorrect, there was no relationship between the refusal and disability; the refusal was because the grievance was a separate process. The claim fails. Discrimination under the Part Time Workers Regulations

[80]As set out in the findings section above, the Claimant has failed to show that she was offered less study days and has no actual comparator. The Claimant was required to provide evidence to support her revalidation folder, but has failed to show a difference in treatment with Ampie or that Ampie was even an appropriate comparator. The Claimant also has failed to show that requiring evidence is less favourable, given the NMC requirements on confirmers to check. The claim fails. Time

[81]As the Claimant has failed substantively on all claims, the Tribunal has not considered this issue. However, the Claimant failed to provide any evidence justifying an extension of time and an argument about a series of continuing acts was not set out. Costs

[82]At the end of the hearing, the Respondent made an application for costs. In accordance with both the Presidential Guidance and Ireland v University College of London

[2024] EAT 68

, the Tribunal explained the relevant law to the Claimant and gave both her and her husband time to process the Judgment and the imminent costs application. It was considered best to deal with the matter during the remaining hearing time, not least to ensure the decision was made while everything was fresh in the Tribunal’s mind and to ensure that the matter was resolved and avoid the inevitable delays caused by going part-heard. The Claimant provided evidence to be considered and there were breaks at every stage to ensure the Claimant could prepare properly.

Law

[83]The Tribunal must deal with costs applications in three stages: a) Has the threshold for the making of a costs order been met? This is likely to require findings of fact about the paying party’s conduct. b) If so, should the Tribunal exercise its discretion to award costs? c) If it chooses to make a costs order, how much and in what form?

[84]Rule 74 of the Employment Tribunal Rules of Procedure state: “(2) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— … (b) any claim or response had no reasonable prospect of success;…”

[85]The Tribunal when considering whether to make an order under Rule 74(2)(b) (no reasonable prospect of success) bore in mind the guidance offered in Radia -v- Jefferies International Ltd

(2020) IRLR 431

- did the complaints in fact have no reasonable prospect of success, did the Claimant in fact know or appreciate that, and finally, ought they, reasonably, to have known or appreciated that? Radia notes that tribunals should focus on what the parties knew about their cases at the time, not what the Tribunal knows after hearing the evidence.

[86]Merely losing a claim or a central allegation does not necessarily mean costs should be awarded (HCA International Ltd -v- May-Bheemul

UKEAT/0477/10/ZT

). When considering if a party should have realised that the claim had no reasonable prospect of success, the Tribunal can consider what that party knew or ought to have known if they had “gone about the matter sensibly” (Cartiers Superfoods Ltd -v- Laws

[1978] IRLR 315

) (though this authority is based on an older different version of the Tribunal rules, it simply further confirms that the Tribunal should consider what a party knew or ought to have known as set out in Radia). However, caution in making such an assessment is wise as what is obvious with hindsight may not be so clear during the “dust of battle” (Marler -v- Robertson

[1974] ICR 72

[87]The Tribunal has a discretion and should consider all relevant factors. Costs orders in the Employment Tribunal are the exception, rather than the rule (Yerrakalva -v- Barnsley Metropolitan Borough Council

2012 ICR 420

, CA). Rule 74 uses the word “may” when talking about circumstances which may lead to the making of such an order. It is a relevant factor to consider whether any application for strike out or a deposit order was made by the receiving party (AQ Ltd -v- Holden

[2012] IRLR 648

[88]The purpose of costs orders is to compensate the receiving party; punishment of the paying party is not a relevant factor (Lodwick -vSouthwark London Borough Council

2004 ICR 884

CA). This means consideration of the loss caused to the receiving party as a result of the identified basis of any costs order is required. The case of Yerrakalva demonstrates that costs should be limited to those “reasonably and necessarily incurred”.

[89]The ability to pay of the paying party can be a relevant factor in deciding how to exercise the Tribunal’s discretion (and also when considering how much should be paid). However, this is a factor to be balanced against the need to compensate the receiving party if they have been unreasonably put to expense (Howman -v- Queen Elizabeth Hospital Kings Lynn EAT 0509/12). The Tribunal is not required to consider ability to pay, but it may choose to do so. Any assessment of the Claimant’s ability to pay must be based on evidence before the Tribunal; the Claimant has chosen not to adduce such evidence.

[90]Another potentially relevant factor can be whether the paying party was legally advised (AQ Ltd). Findings Stage 1 - Did the Claimant bring claims with no reasonable prospect of success?

Findings

[91]The Claimant can only be taken to have known what she knew, or ought to have known, and cannot be expected to have predicted the findings of the Tribunal. No further evidence was before the Tribunal for the costs application about what the Claimant did or did not know.

[92]The Tribunal has unanimously concluded that the Claimant did bring claims with no reasonable prospect of success. It acknowledged that it is important that when it views the situation through the prism of somebody pursuing a claim which is said to have no reasonable prospects of success, we must look at things through the eyes of the Claimant. The Claimant is not a lawyer; the Claimant is a litigant in person. Simply losing a case or an allegation does not mean that costs should be awarded or that there were no reasonable prospects of success. We have to think about when the Claimant should have realised the claim had no reasonable prospect of success, if we find that the claim had no reasonable prospect, and we need to think about what she knew or ought to have known if she had gone about the matter sensibly.

[93]The Respondent did warn the Claimant of the risk she was running through the cost warning letters of October 2024. However, it was clear from the outset of this hearing that many of the claims that the Claimant wanted to pursue had no basis in fact or law - they either did not make sense or the Claimant had not adduced evidence in support. Witnesses were not challenged on several issues and claims were not advanced during crossexamination or even in the Claimant’s own statement (such as discrimination arising from disability).

[94]The Claimant submitted that no Judge warned her about the weakness of her case; that is not the function of a Judge undertaking case management, though some may choose to be more proactive. The Claimant expressly mentioned the Dispute Resolution Appointment – that is not a matter to which we can have regard under the Presidential Guidance on Alternative Dispute Resolution. The Tribunal considered it was more likely than not that Judges had tried to warn the Claimant as its warnings at the start of the final hearing were ignored; for example, how was the Claimant arguing that the postponement of the appeal meeting was not at the request of her representative as the email from the representative was clear?

[95]When the Tribunal considered the costs warning letters of 1 & 7 October 2024, they did not set out in detail the difficulties with the Claimant’s claim. The Respondent is not criticised for that at this point the Claimant knew exactly what it was saying happened and had considered its witness statements. The Claimant ought to have known by then how weak her case was, being based on nothing more than her feelings on her own admission throughout the final hearing.

[96]However, the Tribunal has concluded in respect of four of the claims the Claimant should have known from the outset that they had no reasonable prospect of success. In respect of the claim for direct race discrimination, at no point has the Claimant ever been able to explain on what basis she was arguing her race supported the claims. Even as late as at the final hearing itself, the Claimant simply argued that the treatment must have been because of her race but without no evidence to support that, and cited her feelings as the reason why she asserted these claims. As an example, the Claimant complained that the senior nurses accepted Mrs Bye’s account but she ignored the evidence supporting why Mrs Bye’s account was accepted – it was based on contemporaneous evidence and the relevant policies.

[97]It is the same with the part-time working allegations. The Claimant did not have a comparator for one of the claims, despite being told that a real comparator was required, and for the other claim where she compared herself to Ampie, the Claimant never adduced any evidence of what Ampie’s revalidation folder looked like, what evidence was Ampie relying on for her revalidation, and even the screenshot to which we referred in our Judgment [792] makes it clear that Ampie was simply asked whether she had to show her workbook. Ampie was not asked whether she relied on the workbook for her revalidation. The Claimant did not know the details of Ampie’s work situation or why she was temporarily in the day case unit as she accepted under oath - the Claimant never had any evidence to support this claim at all. It had no reasonable prospect of success.

[98]In respect of the claim for discrimination arising from a disability, the Claimant never put her case to the witnesses, despite encouragement from the Tribunal. We remain convinced that the Claimant did not understand this element of her claim though she had the List of Issues for a year and a half. She had more than enough opportunity to consider what evidence she had to support an allegation, for example, that the recommendations of occupational health were not followed because she had insomnia. There was no evidence whatsoever for this claim in its entirety and the Claimant ought to have known this if she had considered the claim carefully. It had no reasonable prospects of success from the outset.

[99]In relation to the claim of harassment relating to disability, again the Tribunal finds this had no reasonable prospect of success from the start. While there a factual dispute about what was said on 11 November, there was not one hint of any of the allegations being conduct that had the proscribed purpose or effect. For example, the email of 6 October, the Claimant’s point was that HR should not have recorded the state of her health in a sickness meeting, which was frankly a strange contention to make and an email to which the Claimant’s own trade union representative took no exception. The allegations regarding the emails about why the Claimant was not able to attend a sickness review meeting in January 2023, the alleged words uttered on 11 November 2022, not dealing with a grievance at sickness review meetings, or postponing a meeting at the Claimant’s request never explained how they constituted harassment. Harassment is a serious allegation; it should not be lightly asserted but the Claimant’s case never engaged with the specifics of what she was claiming. The Claimant ought to have known from the start that these claims had no reasonable prospect of success.

[100]The position is different for constructive unfair dismissal in the view of the Tribunal. Whilst some of the allegations of breaches of contract were, in the Judgment of the Tribunal, unwise, for example, saying that it must have been an unfair grievance process because they preferred the account of four senior nurses to the Claimant (which is actually weighing up the evidence and reaching a conclusion), there were other points which the Tribunal thought were arguable. For example, the Claimant said her evidence was ignored; this was factually incorrect but the Claimant in fairness did not find out until the hearing how the grievance had been conducted and what evidence was before the decision maker. She could not have known that as it was not even in the witness statements. Similar arguments about the fairness of the process itself, including the grievance, were raised and needed addressing. These are fairly standard matters to explore at a constructive unfair dismissal case. The Tribunal could not say this claim had no reasonable prospect of success.

[101]That said, the Claimant’s argument about the appeal meeting was hopeless. To say that the appeal is unfair because the Respondent changed the date at the request of her trade union representative was an example of an allegation that arguably could have resulted in a deposit order, but it is not clear to us that previous Judges understood that particular contention was part of the claim as it was only recorded on Day 1 when the Tribunal asked for precision, and they did not have sight of the Claimant’s representative’s email. The Claimant did though have that email available to her.

[102]A constructive unfair dismissal claim would normally be listed for two days. The Tribunal noted this in case it was relevant for later stages of the application. Stage 2 - How should the Tribunal exercise its discretion?

[103]This stage is entirely at the discretion of the Tribunal, provided it considers all relevant factors. The Claimant invited it to consider evidence of her means, though it was not sworn by agreement with the parties.

[104]The Tribunal has concluded that the four claims found to have no reasonable prospect of success were weak with no iota of evidence to support them. The Claimant accused several registered nurses subject to the NMC’s Code of Conduct of not just discrimination, but racism. The costs that have been incurred by both the Respondent and the taxpayer, who pays for both the Respondent and this tribunal as well as the interpreter and her hotel bills and expenses, are substantial. There is no doubt that this case in the long run cost the taxpayer in well in excess of £50,000.

[105]The Tribunal accepts that the Claimant is not financially in a good position, but this is largely due to her not working. There is no evidence that the Claimant cannot work, though we are aware she has lost her registration. The Claimant has told us that her house will be mortgage free in six years, so we know there is a valuable asset to become available in the future. We know that of the four children in the family, only one is a minor and is in education, who will be an adult soon. The Claimant’s husband is working and the Tribunal had sight of his payslip. Taking everything into account, the Tribunal has concluded that it is fair and appropriate for the Claimant to be asked to contribute to the costs that she has caused through bringing claims for which she had no evidence at all and had no reasonable prospect of success. Amount to be paid

[106]The Tribunal has concluded that the full sum sought by the Respondent of £20,000 should be paid. The Tribunal has reviewed the costs claim, and even when the likely costs of a constructive unfair dismissal claim with a two-day final hearing are excluded, the amount incurred for the claims brought without a reasonable prospect of success without VAT is roughly £29,000.

[107]The Claimant has persisted in running four claims that had no reasonable prospect of success from the start and she has done so in the face of the evidence provided showing no link to any protected characteristic. Some of the claims did not make sense (e.g. the claim about the postponement of a hearing at the Claimant’s request). The Tribunal has considered very seriously her financial position and acknowledge that while it is currently challenging, it is not dire. The situation is that the Claimant and her family was managing until the Claimant stopped working, and we have no evidence that she is unable to return to work. With her skills, even though she is not currently registered with the NMC, the Claimant could easily work in another healthcare role or a care home. The income of Mr Dela Cruz is keeping the family afloat and it remains the case that his debts are being managed under a debt management plan and are on course to be paid. Octopus Energy appears content with the current payment arrangement. The Claimant has told the Tribunal that the house will be mortgage-free in six years.

[108]The Respondent has said that they will take a view in terms of payment plans, but that is a not a matter for the Tribunal. Bearing in mind the case of Vaughan, the Tribunal have formed the view that while the Claimant currently could not pay £20,000, we are satisfied that over the course of the next six or so years she would be in a position to pay £20,000. Given the substantial costs that have been incurred due to her bringing claims with no reasonable prospect of success, we have concluded that the full £20,000 sought should be paid by the Claimant. Approved by