Ms T Sulaiman v Aneurin Bevan University Health Board: 1601685/2015 and others
EMPLOYMENT TRIBUNALS
Case No 1601685/2015, 1600558/2016, 1600187/2017
Between
Ms T SulaimanClaimantAneurin Bevan University Health BoardRespondent
Before
Employment Judge S DaviesIn person for claimantMr J Walters (instructed by counsel) for respondentDate 27 February 2018
JUDGMENT
It is the unanimous decision of the Employment Tribunal that all claims are dismissed.
REASONS
Claims(1) The Claimant brings three claims against the Respondent.(2) Claim number 1601685/2015 (the first claim), presented on 24 September 2015, brings complaints of disability discrimination (discrimination arising from disability - section 15 Equality Act 2010 (EqA), direct discrimination - section 13 EqA and failure to make reasonable adjustments - section 21 EqA). Case No:1601685/2015 1600558/2016 1600187/2017(3) The Claimant relies upon sickle-cell trait and chronic anaemia, which the Respondent concedes amount to a disability within the meaning of section
Claims
[6]EqA. (4) The Respondent’s jurisdictional (time) point was dealt with by Employment Judge Cadney in his decision of 5 February 2016, where time was extended by 1 day for the presentation of the claim and the claim against Sharon Morris (formerly the second Respondent) was dismissed upon withdrawal. (5) Claim number 1600558/2016 (the second claim), presented on 7 June 2016, brings complaints of direct race discrimination and victimisation. The Claimant relies upon the issuance of the first claim as amounting to a protected act within the meaning of section 27 EqA. Although in the pleadings the Respondent disputed that the first claim amounted to protected act, this was conceded by the time of the hearing. (6) Claim number 1600187/2017 (the third claim), presented on 9 March 2017, brings complaints of unfair dismissal and victimisation in respect of dismissal/disengagement. Allegations not pursued (7) During cross-examination, the Claimant conceded that Sharon Morris had not:a. cancelled the Claimant’s shift and provided it to a substantive member of staff on or around 21/22 April 2015, as asserted in paragraph 18d of the ET1 rider to the first claim; norb. deliberately failed to pass on the Claimant’s sick note to human resources, as asserted in paragraph 18f of the ET1 rider to the first claim (Ms Morris forwarded the sick note by email of 1 May 2015 at page 106b). (8) Accordingly, these allegations and the complaints based upon them are dismissed. Issues First claim (9) For the purposes of section 15 EqA, whether the Claimant was treated unfavourably in the following respects by Sharon Morris: a. on 9 February 2015 asking the Claimant to promise not to cancel her shift ever again and threatening the security of her job; b. on or around 9/10 and 19/20 April 2015, reminding the Claimant of the conversation that her job would be called into question if she cancelled a shift; Case No:1601685/2015 1600558/2016 1600187/2017c. on around 9/10 April 2015, making condescending and patronising comments that the Claimant “sounded educated”;d. on 30 April 2015, accusing the Claimant of fraud and questioning her sickness absence despite having a sick note in her possession;e. on 30 April 2015, telling the Claimant she was not entitled to statutory sick pay. (10) If these factual allegations are established, whether they are in respect of “something arising from disability”? The Claimant relies on her sickness record and fluctuation of well-being as arising from disability; (11) Whether the Respondent has established legitimate aim of maintaining an effective bank system to support clinical areas in the management of unfilled shift cover (in other words, ‘operational resilience’) (paragraph 16-17 ET3 page 31); (12) No question arises as to the Respondent’s knowledge of disability; (13) With regard to direct discrimination, the Claimant relies on the treatment by Ms Morris outlined above in paragraph 9 (excluding the allegation in respect of statutory sick pay); (14) The Claimant relies on a hypothetical comparator; (15) With regard to the failure to make reasonable adjustments, the PCP asserted is the request by Ms Morris for the Claimant to promise not to cancel shifts; (16) The Claimant asserts that she is placed at substantial disadvantage in comparison with non-disabled employees because of her fluctuating health, which makes it hard for her to maintain such promise. Second claim (17) It is conceded that the Claimant has made a ‘protected act’ by bringing the first claim; (18) Whether the following acts were detriments carried out, as acts of victimisation, because of the protected act: (19) calling the Claimant to a meeting on 24 December 2015 regarding a complaint; (20) cancellation of shifts following the 20 January 2016 nightshift on the children’s assessment unit and complaint of use of inappropriate language; (21) calling the Claimant to a meeting on 29 January 2016 to discuss the allegation of use of inappropriate language; (22) further cancellation of shifts since the issue of the first claim Case No:1601685/2015 1600558/2016 1600187/2017 (23) Whether the Claimant was subject to direct race discrimination regarding the investigation of an incident report in December 2015? The Claimant asserts use of terminology, “black nurse”, was race discrimination on grounds of colour. The Respondent disputes that the term was used by its employees and asserts that the report referred to the Claimant by name not skin colour; (24) The Claimant relies upon a hypothetical comparator (a Filipino nurse/healthcare worker). Third claim (25) Whether the Claimant is an employee? The Respondent asserts that she had the status of worker and is unable to bring a claim of unfair dismissal; (26) Whether the Claimant had two years continuous service to enable her to bring a claim of unfair dismissal (if she is an employee); (27) If the Claimant satisfies these criterion, whether her dismissal was fair? The Respondent asserts dismissal was by reason of misconduct, whilst the Claimant denies the allegation for which she was dismissed; (28) Whether the Claimant’s dismissal/disengagement was an act of victimization (she relies on the first and second claims as protected acts)? Hearing (29) The first day of the hearing was set aside as a reading day in the case management order of 18 September 2017. Notwithstanding this, the Respondent attended Tribunal; the Claimant did not. The Tribunal determined it would not be appropriate to see the Respondent without the Claimant present and instead issued written directions to the parties. Applications (30) At the start of day 2 the Respondent made two applications. The first of which was for the Tribunal to accept the evidence of Bev Jenkins in the form of 2 written witness statements only; Ms Jenkins’ GP provided a letter to the effect that she was not well enough to attend the Tribunal hearing. This unopposed application was granted. (31) The second application was for disclosure of the Claimant’s medical records from 2016 to date, on the grounds that they would be relevant to the issue of mitigation. This application was refused on the basis that the Tribunal determined that the hearing would deal with liability only. Additionally, in practical terms, it seemed unlikely that disclosure of medical records could have been achieved during the course of the hearing and would only be necessary if a remedy hearing was required. Case No:1601685/2015 1600558/2016 1600187/2017 (32) On Day 8 the Claimant applied to recall Ms Morris to ask two further questions (details of which were confirmed by the Claimant). Ms Morris was not in attendance at the hearing that day and the Respondent objected to her being recalled. The Tribunal determined that it would be unnecessary to recall Ms Morris, as her answers to the questions would not have provided assistance in determining the claims; the application was refused. (33) The Claimant also suggested that she may make an application to adduce evidence from her iPad, to demonstrate that the email at page 103 had been sent by her to Ms Jenkins on 29 April 2015. Following a discussion between the parties over the lunchtime break, no application was in fact pursued by the Claimant. As matters transpired, the iPad was not charged and could not be viewed but in any event the Respondent did not pursue a suggestion that the email was not sent. Attendance by the Claimant (34) Unfortunately, the Claimant was unwell during the course of the hearing and was unable to attend on 24, 26, 29 and 30 January 2018. The Tribunal directed that she should provide medical evidence to support the reasons given for her absence by 31 January 2018, which she did. (35) A timetable for cross-examination of witnesses had been agreed at the outset of the hearing and this had to be adjusted on each occasion of absence; it became inevitable that the judgment would have to be reserved. The final revised timetable was complied with in terms of cross examination of the Respondent’s remaining witnesses on Day 8 (31 January 2018). At one point the Claimant indicated that she had not read Linda Alexander’s witness statement; accordingly, a short break was facilitated to allow time for the Claimant to read the statement prior to cross examination. Adjustments (36) The Claimant experienced a migraine on 24 January 2018 and attended the hearing next day, 25 January 2018, wearing sunglasses which she kept on throughout the hearing that day. In order to accommodate her photo-sensitivity, the lighting in the hearing room was adjusted and the Claimant confirmed that she was able to proceed. (37) The Claimant indicated that she had developed a temperature and was experiencing joint pain when she attended the hearing on 31 January 2018. The Claimant confirmed that she was fit enough to proceed and, at her request, the Tribunal provided a fan for the Claimant’s use to help regulate her temperature. The Tribunal staff also assisted by carrying the Claimant’s bundles from her car, parked outside the court. Case No:1601685/2015 1600558/2016 1600187/2017 Submissions (38) Day 9, 1 February 2018, was reserved for submissions with a start time of 12pm. Due to difficulties on the road near her home, the Claimant was unable to attend the hearing until 1pm and the start of the hearing was postponed to accommodate her difficulty in attending on time. (39) The Respondent provided written submissions which were sent to the Claimant and the Tribunal during the evening of 31 January 2018. The Claimant gave oral submissions at the hearing on 1 February 2018. Witnesses (40) The Tribunal heard evidence from the Claimant and on behalf of the Respondent from Sharon Morris, Senior Education Development Manager, Ann Bentley, Head of Strategic Resourcing, Jan Robinson, Resource Bank Manager, Linda Alexander, Divisional Nurse for Scheduled Care, Kathryn Bourne, Head of Specialist Medical and Dental Workforce Services, Julie Chappelle, Assistant Director of Workforce and Business Partnering and Leanne Watkins, General Manager of the Scheduled Care Division. (41) The Tribunal also read two witness statements provided by Bev Jenkins, now retired, but formerly Senior Nurse for the Resource Bank. Factual background (42) The Claimant was a bank worker for the Respondent for many years, prior to which she was employed as an auxiliary nurse. There is a dispute as to the Claimant’s start date; the Claimant states she started work on the bank in 1999 whereas Ms Bentley asserts that the Claimant started on 6 July 2003 (second witness statement). Ms Bentley was not herself working, when the Claimant started work on the bank and Ms Bentley accepted that her assertion was based on the documents in the Claimant’s personal file, which provide conflicting information. The unsigned confirmation of appointment document (page 44) is dated 25 April 2000, but both parties agree that this document does not reflect the true agreement between them. The precise start date remains unclear but the Claimant worked for many years on the bank; the Tribunal does not need to determine the start date for the purposes of this judgment. (43) The Claimant worked on a flexible basis as a health care support worker, working night shifts until her dismissal/disengagement from the bank with immediate effect, notified by letter dated 21 November 2016 (page 421), received by the Claimant on or around 24 November 2016. (44) The Respondent’s bank provides a flexible resource of nurses and health care support workers, who indicate their availability to cover shifts where there is short staffing for reasons such as sickness and holiday. Bank workers can choose when they wish to make themselves available Case No:1601685/2015 1600558/2016 1600187/2017 and can specify certain awards that they do not wish to work on. Similarly, wards can indicate certain bank workers should not work on their wards. The system of work allocation, at the time relevant to the complaints, involved bank call centre staff contacting bank workers who had indicated availability to offer them specific shifts. Up until this point the bank workers were under no obligation to work any shifts. The Respondent asserts that once a bank worker accepted the offer of a specific shift, there was an expectation that they would attend to work it. The Claimant acknowledged, in her questioning of witnesses, that ‘reliability was everything’. (45) Bank workers are only paid for shifts that they actually work save in limited circumstances, where they attend for work and there is in fact no available shift and no possibility of redeployment to a different ward. In those circumstances a payment of 4 hours wages is paid in lieu of working the shift, although the parties agree that this occurs only rarely. (46) No written contract between the parties exists; it is agreed that the terms of the unsigned contract at page 44 do not apply to the Claimant’s working relationship with the Respondent. (47) The Claimant’s medical condition could be unpredictable; the Claimant asserts this meant that she sometimes had to cancel shifts she had agreed to work at short notice. The symptoms of the Claimant’s medical condition can be particularly acute around the time of menstruation. (48) There were also some incidents of non-medical reasons for shift cancellations: in February 2015 the Claimant did not attend a shift as she was in Bristol having mistakenly thought that she was due to work the following night and in April 2015 the Claimant cancelled a shift due to her car breaking down. The Claimant also cancelled for non-disability related reasons, such as flu (eg around 18/19 April 2015). (49) Formerly the Claimant had been managed by Ms Jenkins with whom she had a good working relationship. The evidence of Ms Jenkins and Ms Morris is that over time Ms Jenkins found managing the Claimant became too time-consuming and it was agreed that Ms Morris would take over management of the Claimant in January 2015. Line management reverted to Ms Jenkins again from December 2015. (50) In February 2015, Ms Morris became concerned that bank call handlers reported the Claimant cancelling shifts at short notice (pages 68, 69 and 71), causing operational difficulties for the Respondent. (51) Both parties agree that the first meeting between the Claimant and Ms Morris did not start well however the meeting concluded amicably following a discussion about how the Claimant could maintain attendance on booked shifts. There is a dispute as to the date when this meeting took place; the Claimant asserts it took place on 9 February 2015 whereas Ms Morris asserts it took place on 16 February 2015 and a note of the Case No:1601685/2015 1600558/2016 1600187/2017 meeting with this latter date appears at page 72. There is also disparity on the evidence as to how the meeting came about; the Claimant suggests that she requested the meeting (alleging that she requested it following Ms Morris suspending her for a two-week period, which Ms Morris denies). Ms Morris cannot recall how the meeting came about but her meeting notes indicate that the meeting was arranged at the request of Ms Morris (page 72) “Tina… shouted at me that it wasn’t fair that she had been asked to come and meet with me”. (52) There was a conflict in evidence as to what Ms Morris said to the Claimant during the course of their meeting. The Claimant asserts that Ms Morris asked her to promise not to cancel her shift ever again and threatened the security of her job. Ms Morris denies using such language and instead asserts that she said she would be monitoring the Claimant’s attendance. (53) The Claimant asserts that subsequently Ms Morris telephone her on around 10 occasions and reminded her of their previous discussion, implying a threat to her job security. In the pleadings which the Claimant drafted at page 13 she states Ms Morris called her “practically every week or every other week had me in her office when I’m sent home sick she rings me threatening my job”. (54) Ms Morris denies this and asserts that she would have called the Claimant on only two or three occasions and did not threaten her in this way. Ms Morris suggests that after a number of cancellations she would have said to the Claimant if that pattern of behaviour had continued that she may have to consider her position on the bank. (55) The Claimant attended for a shift on 1 April 2015 but became unwell and was sent home by the ward sister. Following this she emailed Ms Morris (page 102) setting out the ways in which she tried to manage her health condition and asserting that she was “terrified to cancel at such short notice” (56) The next meeting between Ms Morris and the Claimant took place in mid-April 2015 following further cancelled shifts. There is a dispute on the precise meeting date; the Claimant asserts 9 or 10 April and Ms Morris asserts 13 April 2015. The meeting took place following a period of annual leave for Ms Morris (page 102 a), and was arranged by Ms Jenkins in Ms Morris’s absence. In light of the leave records provided for Ms Morris we conclude that the meeting must have taken place on 13 April 2015 (a Monday). (57) Ms Morris accepts that she would have suggested that the Claimant should be mindful of when she accepts shifts to ensure that they did not coincide with times of the month when she was more likely to be unwell. (58) The Claimant complains that Ms Morris made a condescending comment to her during the meeting that she “sounded educated”. Ms Case No:1601685/2015 1600558/2016 1600187/2017 Morris denies intending to be condescending and asserts that she took a genuine interest in colleagues’ education, that being part of her professional remit. Ms Morris did not deny making the comment but suggests that it would have been made in a complimentary fashion in respect of the Claimant’s educational achievements. During cross- examination the Claimant asserted her belief that the comments were made on grounds of her race (the complaint pleaded in the first claim is one of disability discrimination). (59) The Claimant asserts that Ms Morris called her following cancellation of a shift on or around 18 or 19 April 2015 requiring a chronological account of events up to cancellation in circumstances where the Claimant had the flu and was too ill to work. Ms Morris denies requiring chronological account but does not specifically recall a conversation. (60) The Claimant experienced car difficulties during the morning of 27 April 2015 when her clutch broke and she had to cancel a shift due to the late arrival of a hire car. The Claimant then attended work for the night shift on 28 April 2015. The following day the Claimant received a visit from bailiffs at her house in respect of an unpaid fine, which the Claimant asserts was an error on behalf of the debt collectors. The Claimant was not willing to leave her home as she was concerned that the bailiffs would seize her property and became distressed at the prospect of having to cancel a further shift. (61) The Claimant says that she contemplated taking her own life but received an intervention by way of support from the crisis mental health team, the police and from a neighbour. The Claimant was then placed into the care of her GP and also referred to the Respondent’s occupational health consultant. The Claimant was signed off with a sick note from 30 April 2015 and did not return to work at all until a nightshift on 18 December 2015. (62) The Claimant asserts that she sent an email to Ms Jenkins at 20:55 on 29 April 2015 (page 103) in which she asserts she is contemplating suicide. Ms Jenkins has no record of receiving this email, which was disclosed by the Claimant during the course of Employment Tribunal proceedings. Later that evening at 22:29 the Claimant sent a shorter email to Ms Jenkins (page 106) apologising for sending “such an emotional email”. Ms Jenkins forwarded this shorter email on to Ms Morris at 09:41 on 30 April 2015, albeit Ms Morris says she cannot recall receiving it. (63) The Claimant came into the office to hand in a sick note on 30 April 2015 but did not meet with Ms Morris. The Claimant asserts in the pleadings that during a telephone conversation on 30 April 2015 Ms Morris accused her of fraud with regard to a timesheet for a shift on 21 April 2015. This is denied by Ms Morris. There is inconsistency in the Claimant’s account as she referred in evidence to a timesheet in respect of 28 April 2015. Case No:1601685/2015 1600558/2016 1600187/2017 (64) In some emails the Claimant specifies that Ms Morris should not be made aware of her communication (for example email to HR of 11 May 2015 page 110). In the email she alleges that Ms Morris called her at home to accuse her of fraud. In the Claimant’s undated chronology which starts at page 169, the Claimant again refers to Ms Morris accusing her of fraud in respect of a timesheet (page 171). (65) The Claimant also asserts that Ms Morris informed her she was not entitled to statutory sick pay, which is denied. In the Claimant’s email to HR of 11 May 2015 she asks for a letter confirming “what I was told by HR that I’m not entitled to statutory sick pay”. In the Claimant’s own chronology at page 171 she states that she called HR on 1 May 2015 about sick pay and “they got back to me saying I wasn’t entitled to any sick pay even SSP”. There is no reference in the Claimant’s chronology to Ms Morris informing her that she was not entitled to SSP. The Claimant asserts that just because HR informed her she was not entitled to SSP this did not mean that Ms Morris had not also informed her of this. Whilst we accept that proposition, we conclude in light of the contemporaneous documentation that Ms Morris’s version of events is more reliable on the balance of probabilities. (66) In July 2015, with the support of Citizens Advice, the Claimant submitted a grievance asserting disability discrimination which was rejected through to appeal stage by the Respondent. December 2015 complaint (67) The Claimant returned to work following extended sickness absence, working her first nightshift on 18 December 2015. The Claimant was called to attend a meeting on 24 December 2015 with Ms Jenkins and Ms Robertson, the Respondent asserts due to a complaint about her conduct on the ward that night provided in a ‘datix’ incident report. The content of the report was not shown to the Claimant during the meeting; the Claimant only became aware of its precise content, and the way in which she was described in it, during the course of a grievance process she instigated subsequently. (68) During evidence, the Claimant asserted that the datix was fabricated (the document in question starts at page 262). We note that by the Claimant’s own account Ms Jenkins read to her from an incident report at the meeting in December 2050 (this is recorded in the Claimant’s undated grievance, page 293). The datix incident report does not mention a “black nurse” it refers to the Claimant by name and job role. (69) The Claimant met with Kathryn Bourne during the grievance process on 25 April 2016. The notes of their meeting start at page 306. We note from page 312, that during this meeting the Claimant explained that she had not realised, because she was not shown the datix, that the report referred to her by name. When asked why the Claimant believed Case No:1601685/2015 1600558/2016 1600187/2017 the Respondent was racist she responded “Because an incident happened, there was no name on the report and related to a black nurse and it’s assumed that it is me. I didn’t know at the time that my name was on the report”. The HR Officer in attendance at the meeting, Kevin Goode, is recorded as asking the Claimant “can you confirm that that wasn’t the reason you were called in to meet with them?” The Claimant’s response is recorded as: “Yes. Why don’t they give us copies of the incident report so we can see it? This could have all been dealt with in a very different way if I’d known that. They didn’t show me anything or tell me all of the information. I am not going to apologise for that”. (70) Ms Jenkins asserts that the issue of colour was introduced by the Claimant when the allegation was put to her. The Claimant referred to a nurse called Laura, suggesting that the complaints were in fact directed to her, rather than the Claimant. (71) Having considered the contemporaneous documentation mentioned above, we reject the suggestion that the datix incident report was fabricated. The Claimant offered no explanation as to who might have fabricated such document other than making a bare assertion for the first time during cross examination. We note that Ms Jenkins read from the datix report during the meeting on 24 December 2015 and we accept that it is a genuine document. (72) It also appears from the grievance meeting that, as of 25 April 2016, the Claimant accepted that she had been called into a meeting because she was named on a datix report rather than having been referred to by skin colour. Other than to suggest the datix was fabricated, the Claimant provided no explanation as to why her position had changed since then. Occupational health (73) When the Claimant returned to work Ms Jenkins resumed her line management and referred her to occupational health in January 2016. The Claimant completed the referral forms in March 2016. Children’s assessment unit (CAU) (74) The Claimant worked a night shift on 20 January 2016 on the CAU. Although her work with patients and families was praised, concern was raised about the Claimant’s use of alleged inappropriate language with colleagues in the office on the ward. Ms Jenkins received a complaint from Ward Manager of the CAU the following day. As a result of this incident the ward requested that the Claimant should not be assigned to CAU again and a block booking onto the ward was therefore cancelled. (75) The Claimant was asked to a further meeting with Ms Jenkins on 29 January 2016 to discuss the incident. No datix incident report was created but a retrospective written statement, dated 29 May 2016, was provided by Case No:1601685/2015 1600558/2016 1600187/2017 the Deputy ward sister (page 334) in the course of a grievance investigation. The Claimant maintains that the only word she could conceive could have been interpreted as inappropriate was a reference she made to a medical device named a “backnobber”. The statement of the deputy sister refers to “inappropriate language i.e. swearing” but does not specify the words it is alleged the Claimant used. She also states: “Tina also told stories of a sexual nature and made some racist jokes which were aimed at herself”. Ms Jenkins evidence is that she concluded that the Claimant’s colleagues on the ward were unlikely to have identified the use of the term ‘backnobber’ as inappropriate language. It would not appear to fit within the context described in the ward sister’s statement. Cancelled shifts (76) On the majority of occasions where shifts were cancelled the Claimant was reassigned to a shift on another ward. We deal with the cancellations by the Respondent in our conclusions below. Alleged request for a drug (77) During the night shift on 21 March 2016 at the Royal Gwent Hospital an allegation was made by an agency nurse that the Claimant had left the ward on which she was working that night and come to another ward, C5 West, and requested drugs (zopiclone). The agency nurse reported the concern during the shift at 04:41 on 22 March 2016 stating “I was in the treatment room at approximately 22:30, when HCA Tina who was working on D5 West, came over and asked to borrow some items. She asked for a blanket and some zopiclone 7.5 mg. I asked to see the drug chart and she said she forgot it. She never returned to the ward with it. I needed to borrow the bladder scanner so went to D5 West and spoke to staff nurse there and asked had they asked for zopiclone, she said they had not. She then informed the nurse in charge, who spoke to you.” Grievance (78) The Claimant raised an undated grievance (page 293), which was acknowledged by email of 30 March 2016. A stage 2 grievance investigation meeting was held on 25 April 2016 (page 306), the contents of which are referred to above. Disciplinary (79) The Claimant was informed that a disciplinary investigation would be commenced by letter of 19 April 2016 (page 408a). The allegation was “gross failure to meet required standards of performance and behaviour expected; specifically, that on 21 March 2016 whilst undertaking a shift on ward D5W, you went to ward C5 and requested drugs (zopiclone and codeine) for no authorised purpose”. Case No:1601685/2015 1600558/2016 1600187/2017 (80) The Claimant was warned that the allegation would constitute gross misconduct if established and the Respondent adopted the disciplinary policy and procedure applicable to employees. The Claimant was not offered any shifts whilst investigations were undergoing but was in receipt of payment based on average number of shifts usually worked. (81) Jane Hart was assigned to carry out the investigation and conducted investigatory interviews on 29 April 2016. The Claimant indicated by email of 27 April 2016 that she would not be able to attend the investigatory meeting scheduled on the 29 April as it fell on the anniversary of her attempted suicide. The meeting with the Claimant was rescheduled at a location nearer to her home, in Ystrad Mynach on 19 May 2016. The Claimant did not attend this rescheduled meeting due to health issues, informing the Respondents at 00:18 on 18 May 2016 (page 408o). The meeting was rescheduled to 31 May 2016 and again to 15 June 2016, when it eventually went ahead. The Claimant has always strenuously denied the allegation against her. (82) An investigation report was produced dated 6 July 2016 and presented to Linda Alexander, disciplinary officer. The report narrowed the allegation to a request for zopiclone only (page 408 CC). (83) The disciplinary hearing was held on 15 September 2016 but the agency nurse who made the allegation against the Claimant with regard to the request for zopiclone was not available. Accordingly, the hearing was rescheduled to enable the Claimant the opportunity to question the agency nurse. At the rescheduled meeting the agency nurse attended by telephone but the Claimant did not. The disciplinary hearing was rescheduled one further time at which neither the agency nurse nor the Claimant attended and a decision was made to dismiss/disengage the Claimant from the bank in her absence. Law Equality Act 2010 (84) Both disability and race (including colour) are protected characteristics (section 4 EqA). Section 13(1) Direct discrimination A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 23 comparison by reference to circumstances i. On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case. ii. The circumstances relating to a case include the person’s abilities if (a) on a comparison for the purposes of Section 13, the protected characteristic is disability. Case No:1601685/2015 1600558/2016 1600187/2017 Section 15 discrimination arising from disability A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (85) As for the correct approach when determining section 15 claims we refer to Pnaiser v NHS England and others UKEAT/0137/15/LA at paragraph 31. The relevant steps to follow are summarised as follows: a. the Tribunal must identify whether there was unfavourable treatment and by whom – no question of comparison arises; b. the Tribunal must determine the cause of the treatment, which involves examination of conscious or unconscious thought processes. There may be more than one reason but the “something” must have a significant or more than trivial influence so as to amount to an effective reason for the unfavourable treatment; c. motive is irrelevant when considering the reason for treatment; d. the Tribunal must determine whether the reason is “something arising in consequence of disability”; the causal link between the something that causes unfavourable treatment and disability may include more than one link – a question of fact to be assessed robustly; e. the more links in the chain between disability and the reason for treatment, the harder it is likely to be able to establish the requisite connection as a matter of fact;f. this stage of the causation test involves objective questions and does not depend on thought processes of the alleged discriminator;g. knowledge is required of the disability only, section 15(2) does not extend to requirement of knowledge that the “something” leading to unfavourable treatment is a consequence of disability;h. it does not matter precisely which order these questions are addressed. Depending on the facts the Tribunal might ask why the Respondent treated the Claimant in an unfavourable way in order to answer the question whether it was because of “something arising consequence of the Claimant’s disability”. Alternatively, it might ask whether the disability has a particular consequence for a Claimant that leads to “something” that caused the unfavourable treatment. (86) We were also referred to Basildon and Thurrock NHS Foundation Trust v Weerasinghe (2016) ICR 305 which reminds of the correct test: identify two separate causative steps for a claim to be established - first, that the disability has the consequence of “something”, and second that the treatment complained of as unfavourable was because of that particular “something”. “the argument may just as well be put the other way around and should be productive of precisely the same Case No:1601685/2015 1600558/2016 1600187/2017 result. What unfavourable treatment is complained of? What was it because of? “Because of” is a causal test.” (87) Williams is authority for the proposition that an employee cannot complain that treatment is unfavourable just because it could have been more favourable. (88) When considering a justification defence, the role of the Tribunal is to reach its own judgment, based on a critical evaluation, balancing the discriminatory effect of the act with the business/organisational needs of the Respondent. Section 20 duty to make adjustments (2)The duty comprises the following three requirements: (3)The first requirement is a requirement, where a provision, criterion or practice of A’s put a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…. Section 21 failure to comply with duty (1) a failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person Section 27 Victimisation (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. (2) each of the following is a protected act –
Law
[1]bringing proceedings under this act;[2]giving evidence or information in connection with proceedings under this act;[3]doing any other thing for the purposes of or in connection with this act;[4]making an allegation (whether or not express) that A or another person has contravened this act. Section 136 Burden of proof (2)If there are facts from which the court could decide, in the absence of any other explanation, that a person(a) (A) contravened the provision concerned, the court must hold that the contravention occurred. (3)But subsection (2) does not apply if A shows that A did not contravene the provision. Case No:1601685/2015 1600558/2016 1600187/2017 (89) On the burden of proof, the Respondent referred us to Madarassy v Nomura International plc (2007) IRLR 246 in which Elias J judgment in Laing is referred to, “that it would be absurd the burden of proof moved to the Respondent to provide an adequate explanation for treatment which, on the Tribunal’s assessment of the evidence (including evidence adduced by the Respondent), had not taken place at all”. (90) We were also referred to Ayodele v Citylink Limited (2017) EWCA Civ 1913 which re-established the orthodox approach to the burden of proof (rejecting the judgment in Efobi) as including a requirement that the Claimant establish on the facts, an apparent (prima facie) case of discrimination, which needs to be answered. Employment status (91) The Claimant asserts that she was an employee of the Respondent whereas the Respondent asserts that the Claimant as a bank nurse had ‘worker’ status but was not an employee (and therefore cannot bring a claim of unfair dismissal). (92) The relevant definitions at Section 230 Employment Rights Act 1996 (ERA); an ‘employee’ is “an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment”. (93) Section 230(2) provides that a ‘contract of employment’ means “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”. (94) An important legal distinction exists between a “contract of service” and “a contract for services”. The latter being one where an individual provides services to a client as an independent contractor. The task of identifying what kind of contract exists involves consideration of a mixed question of fact and law. (95) Mutuality of obligation (the work/wage bargain) is widely viewed as the irreducible minimum requirement for a contract of employment. We were referred to Langstaff J’s judgment in Cotswold Developments Construction Ltd v Williams (2006) IRLR 181 which held that a) mutuality is not an all or nothing concept, so that the question is whether there is irreducible minimum of obligations rather than total commitment, and b) once the contract does exist, “employment” tends to need mutual obligations, whereas the “worker” definition tends to concentrate the element of personal service by the individual (not on the obligation of the employer to provide work). ‘Global’ or ‘umbrella’ contract of employment (96) The fact that there is no obligation on the putative employer to provide work and no obligation on the putative employee to accept work, even if offered, is normally fatal to a finding of employee status. Case No:1601685/2015 1600558/2016 1600187/2017 Carmichael v National Power [1999] ICR 1226, the House of Lords addressed the question of whether there was mutuality when casual tour guides were not working between engagements. The Claimants in that case sought to establish that they were employed under an umbrella contract rather than a series of ad hoc contracts of employment. The House of Lords confirmed the Tribunal had correctly concluded that their case “founders on the rock of absence of mutuality” when it came to establish an umbrella contract bridging periods between engagements. There was no question that the tour guides were employees when actually working. (97) The Respondent referred us to Clark v Oxfordshire Health Authority (1998) IRLR 125; a claim brought by a bank nurse, where the Court of Appeal held that no contract of employment (whether ‘global’, ‘umbrella’ or any other extra-statutory name) existed in the absence of mutual obligation subsisting over the entire duration of the relevant period. (98) In Little v BMI Chiltern Hospital (2009) UK EAT a hospital bank porter’s claim foundered due to lack of mutuality of obligation, in circumstances where, on occasion, bank staff were sent home halfway through a shift without being entitled to payment for the remainder of the shift, where rostered duties were not required. Unfair Dismissal (99) Section 98(2)(b) ERA provides that “conduct” is a potentially fair reason for dismissal. The burden of proof is on the Respondent to show the reason for dismissal. (100) Section 98(4) ERA provides that where the employer has shown conduct, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case. Continuity of Service and status requirements for unfair dismissal (101) In order to bring a claim of unfair dismissal an individual must be an employee and must have 2 years continuous service (s94 and 108 ERA) Section 210 ERA Introductory (1)References in any provision of this Act to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter. Case No:1601685/2015 1600558/2016 1600187/2017 (2)In any provision of this Act which refers to a period of continuous employment expressed in months or years— (a)a month means a calendar month, and (b)a year means a year of twelve calendar months. (3)In computing an employee’s period of continuous employment for the purposes of any provision of this Act, any question— (a)whether the employee’s employment is of a kind counting towards a period of continuous employment, or (b)whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment, shall be determined week by week; but where it is necessary to compute the length of an employee’s period of employment it shall be computed in months and years of twelve months in accordance with section 211. (4)Subject to sections 215 to 217, a week which does not count in computing the length of a period of continuous employment breaks continuity of employment. (5)A person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous. S212 ERA Weeks counting in computing period (1)Any week during the whole or part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment… (3)Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is— (a)incapable of work in consequence of sickness or injury, (b)absent from work on account of a temporary cessation of work, or (c)absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, counts in computing the employee’s period of employment. Case No:1601685/2015 1600558/2016 1600187/2017 (4)Not more than twenty-six weeks count under subsection (3)(a). . . between any periods falling under subsection (1). (102) Section 212 (3) ERA provides for continuity in prescribed circumstances where there is no contract of employment in existence; incapability, temporary cessation of work or by arrangement or custom. In respect of the latter two circumstances, the Respondent relies upon: (103) Byrne v City of Birmingham District Council (1987) IRLR 191 with regard to cessation of work (section 212(3)(b) ERA), in particular, the penultimate paragraph of Purchas LJ’s judgment; “The circumstances in which Mr Byrne ceased to be employed during the critical period did not arise out of a lack of availability of work for him in the sense that there was a cessation of that work, merely that the work which was available to him was under the pooling arrangement given to someone else. The expression “cessation of work” must denote that some “quantum of work” had for the time being ceased to exist, and, therefore, was no longer available to the employer to give to the employee.”; and (104) Booth v the United States of America (1999) IRLR 16 with regard to arrangement or custom, the EAT’s judgment that “the expression “by arrangement” at least requires that something was said or done by the employer such as to justify the conclusion that the parties regarded the employment relationship as continuing… An arrangement requires there to have been some discussion or agreement in advance of the break.” Conclusion Reliability and credibility of witness evidence (105) Where facts are in dispute, the Tribunal must make findings in which it is necessary to prefer one version of events over another. Frequently the Tribunal encounters hearings where the respective parties’ accounts are diametrically opposed and it is our obligation to determine, on the balance of probability, which recollection is more reliable. (106) Some of the events referred to in this claim happened many years ago, the relevant period starting in 2015. The passage of time may erode witnesses’ memories and it is possible that when recollecting events several years after they occurred that witness recall becomes unreliable. Where possible, it is of assistance to the Tribunal to refer to contemporaneous documents but these do not always exist. (107) When assessing witness evidence, matters that the Tribunal can take into account include whose account is the more coherent? An incoherent account is less likely to be reliable. Case No:1601685/2015 1600558/2016 1600187/2017 (108) Whose account is the more consistent? An account that contains unexplained inconsistencies is less likely to be reliable. There are various ways of looking at consistency: (a) Internal consistency, whether the evidence of a witness is consistent with what she said on a previous occasion.(b) External consistency, whether the evidence of a witness is consistent with what her other witnesses, called in support, have said.(c) Consistency with documentary evidence. If a party’s account during the Tribunal hearing is contradicted by contemporaneous documentation, it is less likely to be reliable. (109) Whose account is the more plausible? A fact may be both implausible and true, but there ought to be a clear and objective evidential basis for finding that an implausible fact is true. If there is no such evidence, an implausible account is less likely to be true. (110) We recognise that the fact that a person’s account in relation to one matter lacks credibility does not necessarily mean that her account as a whole should be rejected. (111) We note that there were occasions during the hearing where the Claimant conceded that the pleadings were inaccurate (with regard to the allegation that Ms Morris had cancelled her shift paragraph 18d and the allegation that Ms Morris had failed to pass on his sick notes paragraph 18f – both page 20). (112) The Claimant’s pleadings and evidence appeared to be inconsistent and unreliable with regard to dates (for example the date of the meetings with Ms Morris). Although we do not place great emphasis on the inability to recall precise dates several years after the event, this does indicate a level of unreliability of recall. (113) There appeared to be an element of overstatement by the Claimant with regard to the number of times she asserted Ms Morris had met with and telephoned her in the period February to April 2015. In the claim form the Claimant asserts that “every week or every other week I met with Sharon Morris in her office” whereas it was accepted in evidence that there were in fact two meetings. With regard to the number of telephone calls, the figure of 10, asserted in cross examination, does not appear in the Claimant’s witness statement. (114) At one point the Claimant asserted that a datix report of December 2016 have been fabricated; this serious allegation had not been made prior to cross-examination. If that was the Claimant’s belief, it is surprising that she had not raised it previously either internally or during the Employment Tribunal process. We have rejected as implausible the Case No:1601685/2015 1600558/2016 1600187/2017 Claimant’s assertion, unsupported by any other evidence, that the datix document was fabricated. (115) The Claimant asserted that she had not had time to read the bundles of documents and that in compiling a witness statement she relied upon her recall. Where claims are wide-ranging and cover a number of years, this approach carries the risk that the account will contain inaccuracies. We note that the Claimant was unwell at the time of submitting her first claim, which may have had an impact on the accuracy of the detail provided to her solicitor at the time. (116) When determining which version of events to prefer we have taken into account these factors and unless stated otherwise we prefer the version of events given by the Respondent’s witnesses. We did not identify cause for concern about unreliability when it came to the Respondent’s witness evidence. First Claim Discrimination arising from disability Allegation paragraph 18a (117) Sickness was not the only reason given by the Claimant when she cancelled shifts. The reasons included non-disability related reasons (eg page 50a - car trouble and not realising she was booked and being in Bristol). There were numerous instances of cancellations being made within a short period of the shift starting (page 50a provides the time and date of cancellation). (118) We accept Ms Morris’s version of events with regard to the first meeting with the Claimant, which we find took place on 16 February 2015, as is recorded in the meeting note at page 72. We reject the suggestion that Ms Morris informed the Claimant that she would be suspended for two weeks and as a result the meeting was arranged at the Claimant’s instigation. Ms Morris cannot recall how the initial meeting was arranged, but the note of the meeting suggests it was by the Respondent: “Tina met me in the staff bank on the above date, as arranged previously, further to her unreliability in terms of not attending the shift she committed to.….Tina… raised her voice and shouted at me that it wasn’t fair that she had been asked to come to meet with me” (our emphasis). (119) We find that Ms Morris raised the issue of the Claimant’s reliability and how to improve it. Ms Morris’s notes state “we mutually agreed that her attendance for shifts she agreed to undertake would be monitored, and that if there were any further issues, that we would need to meet again.” (120) The Claimant was clearly unhappy that her management had changed from Ms Jenkins to Ms Morris, without her involvement in that decision. Her initial reaction when meeting with Ms Morris reflects her Case No:1601685/2015 1600558/2016 1600187/2017 unhappiness at this change. It is possible that her frame of mind may have impacted her recollection of the words used by Ms Morris during the meeting. (121) We note the email from the Claimant at page 102, dated 1 April 2015, in which she states that she was ‘terrified to cancel at short notice’ following the initial meeting with Ms Morris on 16 February 2015. This email followed an incident where the Claimant had to leave a booked shift on 1 April 2015 as she was feeling unwell when the ward sister had advised that it was important to notify the nurse bank early so a replacement could be found (page 101). In the email, the Claimant indicated she had financial concerns and was worried about losing her job. (122) Having carefully considered the evidence of the witnesses and the available documents, we conclude that Ms Morris used words similar to those recorded in the meeting note but did not threaten the Claimant’s job or ask her to promise to never cancel shifts ever again. We do not consider as plausible, that Ms Morris as a health care professional would ask an individual to make such an unrealistic commitment about a matter that was not fully within their control. (123) We dismiss the allegation at paragraph 18a, as not factually established. Allegation paragraph 18b (124) The pleadings allege that Ms Morris reminded the Claimant about the previous discussion that her job would be called into question if she cancelled shifts:a. at a face to face meeting on 9 or 10 April 2015 (paragraph 7); andb. during a telephone call on or around 20 April 2015 (paragraph 9) (125) We find that the face to face meeting was in fact held on 13 April 2015 (arranged by Ms Jenkins in Ms Morris absence). It could not have taken place on 9 or 10 April 2015 as Ms Morris was on leave on those dates - page 102a. (126) Ms Morris does not recall a telephone conversation on or around 20 April 2015. (127) We find that Ms Morris advised the Claimant to book shifts at times when she was likely to be well enough to work. The Claimant indicated in her email of 1 April 2015 that she used a menstrual app to record her cycle and adjust her work/life accordingly. We conclude that Ms Morris did no more that ask the Claimant to be mindful of when she committed to work a shift so that she could provide reliable cover. (128) Ms Morris accepts, in general terms, that she would have indicated that the Claimant’s position on the nurse bank may require reconsideration if there were a number of cancellations. This comment must be viewed in the context of the purpose of the bank and the difficulties in obtaining Case No:1601685/2015 1600558/2016 1600187/2017 cover at short notice for bank night shifts, which by their nature are cover arrangements. (129) In making the comment Ms Morris was referring to cancellations of any nature, not just those that related to the Claimant’s medical condition. Additionally, it was not just the fact of cancellation that caused difficulty but the late notice of cancellation (page 50a). (130) If we accept that the comment that the Claimant’s position would be reconsidered if there were a number of cancellations, amounts to unfavourable treatment. It is only treatment related to something arising from disability in so far as the cancellations relate to the Claimant’s sickle cell trait (as noted above there were various reasons for cancellation which included non-disability related reasons). (131) We conclude that the comments made by Ms Morris were a proportionate means of pursuing the Respondent’s legitimate aim. The Claimant has not challenged the legitimacy of the aim and herself noted that reliability of bank workers was important. The Claimant accepts in her witness statement (first statement paragraph 25) that she had cancelled shifts at short notice. In the circumstances, it is justifiable to have a conversation about improving reliability of cover and pointing out the potential consequence of unreliability when the impact on the Respondent was such that there was real difficulty in providing short notice night shift cover. (132) The complaint is dismissed. Allegation paragraph 18c (133) The Claimant complains that Ms Morris describing her as ‘sounding educated’ was condescending and patronising. Ms Morris has responsibility for education within her professional remit and explained that she takes an interest in colleagues’ education generally. Ms Morris says the comment would have been made in the course of general conversation and because she genuinely was interested in the Claimant’s background and that she had a science degree. (134) We accept Ms Morris’s explanation for using the words in the context in which they arose. The way in which they were received by the Claimant may be reflective of the wider context; Ms Morris was taking steps to discuss and improve her reliability and the Claimant was unhappy about the change in management away from Ms Jenkins. (135) The Claimant suggested in evidence that the comment was made because of her skin colour; this complaint is not pleaded as race discrimination. On her own explanation, there is no link to disability. (136) We conclude there is no link between the words used and something arising in consequence of her disability. The complaint is dismissed. Case No:1601685/2015 1600558/2016 1600187/2017 Allegation paragraph 18e (137) The Claimant alleges that, on 30 April 2015, Ms Morris accused her of fraud and questioned her sickness despite having a fit note. (138) The Claimant refers to Ms Morris making an accusation of fraud in a contemporaneous document – an email of 11 May 2015 page 110. The Claimant also repeats the allegation in her undated chronology (page 171). (139) Dealing first with the allegation of fraud, we can find no link to something arising from disability or that such an accusation would be made because of disability. So, even if the Claimant established that the accusation of fraud was made, we dismiss the complaint of discrimination. (140) As for questioning the Claimant’s sickness, Ms Morris cannot recall a telephone conversation that took place on 30 April 2015. The Claimant asserts that Ms Morris asked her why she had a sick note and why she was off (paragraph 36 Claimant’s witness statement). (141) The following day Ms Morris forwarded the sickness notification forms (page 106c-d) which indicated the reason for absence as ‘S10 - anxiety, stress, depression, other psychiatric illness’. The notification does not refer to the Claimant’s disability of sickle cell anaemia trait. (142) If Ms Morris did question the Claimant in the way she asserts, then we conclude that the questioning was not connected to something arising from disability; the sick note refers to entirely separate medical reasons for absence. (143) The complaint is dismissed. Allegation paragraph 18f (144) The Claimant alleges that Ms Morris informed her she was not entitled to sick pay, which is denied. The documents suggest that the Claimant made enquiries of HR as to the position on sick pay (page 110 and 171). The Claimant’s own evidence (paragraph 37 witness statement) indicates that she made enquiries of HR; she does not assert they were made of Ms Morris. We note that Ms Morris forwarded the Claimant’s sick note to HR. (145) The Clamant submits that just because she asked HR about SSP, that it does not follow that she did not also ask Ms Morris. We accept this proposition; however, the documentary evidence is persuasive; the queries were directed and responded to by HR. (146) We find that the allegation is not factually proven and the complaint is dismissed. Direct discrimination Allegation paragraph 20 Case No:1601685/2015 1600558/2016 1600187/2017 (147) For the reasons set out above we dismiss the complaints of direct discrimination as the facts as alleged, in paragraph 18 a and e, have not been established. (148) 18 b – we conclude that the Claimant was treated no differently than a hypothetical non-disabled bank worker who cancelled shifts for a variety of reasons and at short notice. Ms Morris would have had similar conversations with any bank worker who cancelled shifts in a similar pattern. (149) 18 c - the comment cannot be viewed as less favourable treatment because of disability, for the reasons set out above. (150) The complaints are dismissed. Failure to make reasonable adjustments Allegation paragraph 21 (151) We conclude for the reasons set out above that the Claimant has not established the PCP (Ms Morris requiring the Claimant to promise not to cancel shifts) was applied. The PCP is not factually established and the complaint is dismissed. Second claim Victimisation (152) The Respondent accepts that the Claimant, by bringing the first claim, has made a “protected act”; a prerequisite for a victimisation complaint. (153) We need to consider causation; if factually established, what was the reason for the acts complained of? Allegation paragraph 6 (154) We have concluded that the datix report, page 262, which refers to the Claimant by name is a genuine document. The report does not refer to the Claimant skin colour. The Claimant appeared to accept this when she was shown a copy of the report during the grievance process. (155) The Claimant accepted in cross examination that it would be appropriate to hold a meeting with somebody who is named in a datix report. (156) We conclude that it was the Claimant who introduced the issue of skin colour when faced with the content of the datix; the Claimant suggested that there was an issue with another nurse from an ethnic minority group. The Claimant herself refers to mistaken identity in her grievance letter (page 293). This is supported by the notes of the meeting on 20 December 2015 (page 276) and the grievance meeting (page 312). Case No:1601685/2015 1600558/2016 1600187/2017 (157) We reject the assertion that the Claimant was called in to the meeting on 24 December 2015 because she had made a protected act; we accept the Respondent’s explanation for convening the meeting. (158) The complaint is dismissed. Allegation paragraph 8 (159) The Claimant complains of cancellation of shifts following shift on the CAU on 20 January 2016, where it was alleged she used inappropriate words/language. The ward sister, Tricia Burr’s, statement indicates that there were concerns about swearing, stories of sexual nature together with racist jokes, aimed at herself. This statement largely mirrors the content of Sharon Driscoll’s email to Ms Jenkins on 25 January 2016 requesting that the Claimant is not placed on CAU again (page 408). The Claimant did not identify a reason why Ms Burr or Ms Driscoll would fabricate such allegations. (160) We note shifts were cancelled by the Respondent; 14 over three months between 27 January and 18 March 2016 – the Claimant was reassigned and worked on 4 of those occasions (page 258-9). The Claimant cancelled 29 shifts during the same period (page 260). (161) Of those shifts cancelled by the Respondent, 5 were on the CAU, we accept as genuine the Respondent’s reasons for cancellation which stemmed from the allegations about inappropriate language. One shift was cancelled on 12 February 2016 when a substantive care support worker returned to work, in respect of this the Claimant received was 4 hours pay as was customary. That leaves 4 other incidents of cancelled shifts where the Claimant was not reassigned. (162) These shifts were cancelled from various wards. The Claimant does not suggest that a particular individual or individuals were responsible for the cancellations; nor that the ward sisters were victimising her. We note that the Claimant was open about the fact that she was bringing a Tribunal claim but the Claimant has not evidenced a link between those making decisions about cancellation and knowledge of the protected act. (163) It is not possible for us to conclude that there is a link between the cancellations and the protected act. The complaint dismissed. Allegation paragraph 9 (164) We conclude that the Claimant was called to meeting on 29 January 2016 for genuine reasons, to discuss the alleged use of inappropriate language on children’s assessment unit on 20 January 2016. Allegations of this nature must be investigated, which the Claimant accepted. We reject the assertion that she was called to a meeting for the use of terminology “backnobber”, which suggestion was introduced by the Claimant when faced with the allegation. (165) The complaint is dismissed. Case No:1601685/2015 1600558/2016 1600187/2017 Allegation paragraph 10 (166) The Claimant alleges continuous cancellation of shifts since she made the protected act. The first claim was issued whilst the Claimant was absent due to sickness; it was received by the Tribunal on 24 September 2015. (167) The Claimant did not work due to sickness absence until 18 December 2015. Where the Respondent did cancel shifts following her return to work until the CAU incident, the Claimant was reassigned (page 258). All of the other cancellations have been dealt with above. (168) The complaint is dismissed. Direct discrimination Allegation paragraph 7 (169) For the reasons outlined above, we conclude that it was the Claimant who introduced the term “black nurse”, which phrase was not used in the datix incident report. We reject the suggestion that it was raised by Ms Robinson or Ms Jenkins on 22 or 24 December 2015. (170) We note that this assertion is absent from the Claimant’s grievance (page 293 where she describes being on 22 December 2015 to be invited to a meeting on 24 December 2015). The grievance supports the finding that the Claimant raised the issue herself, she states: “I gave them my account of the night and that the particular incident did not pertain to me but to Laura who is also a black nurse” (171) The Claimant has not established the factual basis for this complaint which is dismissed. Third claim Employment status (172) The Respondent accepts that the Claimant is a worker but denies that she had employment status. (173) Due to the requirement for 2 years continuity of service for bringing an unfair dismissal claim, and our conclusion as to whether she had a global/umbrella contract, we do not consider it necessary to make a finding as to the Claimant’s employment status while she was working. Global/umbrella contract (174) We considered whether there was an overarching contract in place which bridged the gaps between the shifts that the Claimant worked, so as to create a global or umbrella contract. (175) The irreducible minimum for contract of employment to exist is mutuality of obligation. The Claimant’s evidence was that she could pick and choose when she wished to work and that this flexibility suited her Case No:1601685/2015 1600558/2016 1600187/2017 personal circumstances, which for example included study. The Respondent submitted that there was no obligation to perform a shift until a bank worker committed to it. (176) Carmichael involved consideration of whether casual tour guides could establish that an umbrella contract existed between assignments; there being no question that the guides were employees whilst they were working. The Claimants’ claim in Carmichael failed as it “foundered on the rock” of a lack of mutuality of obligation during the gaps between assignments. (177) Even if we were to assume for a moment that the Claimant was an employee while she worked, for the reasons outlined in Carmichael, the Claimant cannot establish the existence of rights and obligations so as to form an umbrella contract bridging the gaps between the shifts that she worked. Findings of a similar nature were made in Clark and Little, both cases involving Claimants who were bank workers in the NHS. (178) We do not make such a finding, but, the Claimant could only arguably be an employee whilst she was working shifts not during the gaps between them. Continuity of service (179) Again, even if we were to assume that the Claimant is an employee, she cannot establish two years continuous service. (180) Each gap of more than a week between shifts worked breaks continuity of service (section 210(4) ERA). (181) The Claimant’s working pattern was irregular (page 407a-q) and included a number of non-working periods of 8 days or more within the period relevant for the purposes of considering continuity (eg pages 407p, q and a). We accept the submission of the Respondent that these periods cannot all relate to periods of annual leave as they exceed the statutory entitlement (eg page 407p which shows 40 days absence in a period spanning less than 2 calendar months; 18 November 2014 to 9 January 2015). (182) The Claimant cannot avail herself of any of the exemptions which operate so as to bridge breaks in continuity (section 212 ERA). (183) There was no temporary cessation of work; work remained available for the Claimant and other bank workers to do. When the Claimant did not work shifts, that was either due to sickness or because she chose not to work (save on the very limited number of shifts which were cancelled by the Respondent referred to above) (Byrne). (184) There was no prior arrangement or custom between the Respondent and the Claimant so that she would be regarded as Case No:1601685/2015 1600558/2016 1600187/2017 continuing in employment for any purpose. There was no discussion between the parties to this effect prior to a break (Booth). (185) Finally, the Claimant cannot avail herself of the provision at section 212 (3) (a) ERA - in respect of the Claimant’s extended sickness absence during 2015, when we conclude that the Claimant was incapable of working as a consequence of sickness or injury and received SSP. The Claimant was absent from 30 April to 17 December 2015, a total sickness absence of 32 statutory weeks as calculated under section 235 (1) ERA. This period of absence exceeds the maximum of 26 weeks permitted as weeks counting in the computing period specified in section 212 (4) ERA. (186) The Claimant’s engagement was terminated with effect from 24 November 2016. Thus, even if we were to make a finding that the Claimant was an employee, which we stress we have not, she is unable to satisfy the continuity of service requirements to bring in unfair dismissal claim due to the period of sickness absence in 2015 alone. (187) Mr Walters also submitted that the period of time from 23 March 2016 until her disengagement/dismissal also breaks continuity. During this period the Respondent made payments to the Claimant while she was, in effect, suspended pending the resolution of the allegations with regard to requesting a drug. We do not consider it necessary for us to reach a conclusion on this submission, in light of our finding in respect of the period of sickness absence in 2015. (188) Accordingly, the unfair dismissal complaint is dismissed for lack of jurisdiction. Victimisation in respect of dismissal/disengagement (189) The Claimant’s final claim is that her dismissal or disengagement from the bank was an act of victimisation because of the protected acts of bringing the first and second claim. (190) The disciplinary proceedings leading to dismissal/disengagement were commenced against the Claimant before she brought the second claim on 7 June 2016. The Claimant gave her initial account of what happened on 23 March 2016 (email at page 407s). The Claimant was informed that her shifts would be cancelled whilst the allegation was investigated on 23 March 2016 (page 407t). The Claimant was informed of the allegation under disciplinary investigation in a letter dated 19 April 2016 (page 408a). (191) The disciplinary investigation was prompted by the report of agency nurse Ms Martin (confirmed in an email of 22 March 2016 page 407v). Ms Martin alleged the Claimant approached her asking for a blanket and zopiclone. The Claimant has consistently denied this version of events asserting that she was never on the ward in question, C5 West, and on no occasion, did she ask for drugs from a nurse (page 407s). Case No:1601685/2015 1600558/2016 1600187/2017 (192) After the Claimant was informed that her shifts would be cancelled, she submitted an undated grievance on 30 March 2016 (page 293 – the date is confirmed at paragraph 11, page 243, of the ET1 second claim). The Claimant was ‘suspended’ from work prior to the submission of her grievance; the chronology asserted at paragraph 21 of the Claimant’s second witness statement is incorrect in this regard. (193) As we are not considering a complaint of unfair dismissal, we are not required to reach conclusions about the reasonableness of the Respondent’s actions or fairness of their process. We do not need to reach a conclusion as to the appropriateness of what was referred to as a “reconstruction” or alternatively a “site visit” by witnesses during the investigation. We are not required to make a finding as to which version of events to prefer: Ms Martin’s or the Claimant’s. (194) Instead we are required to reach a conclusion as to the causation for dismissal/disengagement; was it because of the Claimant’s protected acts? (195) We were presented with no evidence that Ms Martin was aware of the Claimant’s first claim when reporting her concerns on 22 March 2016 (at this point in time the Claimant had not presented the second claim). As an agency nurse, not employed by the Respondent, it seems unlikely that Ms Martin would have been aware of this protected act or indeed motivated to act as a result of it. The Claimant asserts in general terms that it was common knowledge within the wards that she had brought a claim (paragraph 5 and 27 of the second witness statement) but does not suggest that Ms Martin, specifically, was aware of the first claim. The Claimant does not provide any explanation as to why Ms Martin would fabricate the allegation against her. (196) The decision to dismiss/disengage the Claimant from the bank was taken by Ms Alexander who as Divisional Nurse for scheduled care had responsibility for all scheduled care awards, critical care and theatres over three hospital sites. (197) Ms Alexander adjourned the first disciplinary hearing in order to allow the Claimant to question Ms Martin who was not present. The rescheduled disciplinary meeting was not attended by the Claimant and was adjourned again but the Claimant did not attend the rescheduled third meeting either. Ms Alexander asserts that she concluded on the balance of probability that the allegation by Ms Martin should be upheld particularly as she had no “axe to grind” with the Claimant. (198) The Claimant appealed the dismissal/disengagement and her appeal was dealt with by Leanne Watkins, General Manager of scheduled care division, at a meeting attended by the Claimant. Case No:1601685/2015 1600558/2016 1600187/2017 (199) The Claimant did not assert any ulterior motive on the part of Ms Alexander or Ms Watkins, other than a generalised assertion that she was viewed by the Respondent as a troublemaker. (200) The disciplinary investigation cannot have been prompted by the Claimant bringing the second claim due to the timeline set out above. We are satisfied that the disciplinary action was pursued because Ms Martin reported a concern about an incident she described taking place during a night shift on 21/22 March 2016. This allegation was made by an agency nurse who was not employed by the Respondent and whose version of events was supported to an extent by evidence of the Claimant’s whereabouts during the night shift from two other workers. The Respondent has demonstrated the grounds on which it took action and we are satisfied that the explanation is genuine. (201) Irrespective of the fairness or otherwise of the decision to dismiss/disengage the Claimant from the bank, we are satisfied that it was not taken because the Claimant had made a protected act. (202) The complaint of victimisation is dismissed.