M Peiu v Hywel Dda University Local Health Board: 1602474/2024 and 1604381/2024

EMPLOYMENT TRIBUNALS

Case No 1602474/2024, 1604381/2024

Between

M PeiuClaimant

Hywel Dda University Local Health BoardRespondent

Before

Employment Judge R Brace

Members

Ms C Lloyd-Jennings and Mr P Pendle

In person for claimant

Date 30 December 2025

JUDGMENT

[1]The complaint of harassment related to race (s.26 EqA 2010) is out of time. Time is not extended and the claim is dismissed.

[2]The complaints of direct race discrimination (s.13 EqA 2010) are not well founded and are dismissed.

[3]The Claimant was not a disabled person (s.6 EqA 2010) by reason of any musculoskeletal condition.

[4]The complaints of failure to comply with the duty to make reasonable adjustments (s.20/21 EqA 2010) are:a. In relation to the First PCP relied on, out of time and time is not extended; and

b. In relation Second PCP/Failure to provide an auxiliary aid, not well founded and are dismissed.

[5]The complaint of discrimination arising from disability (s.15 EqA 2010) is not well founded and is dismissed.

[6]The complaint of victimization (s.27 EqA 2010) is not well founded and is

[7]The complaint of unfair dismissal (s.98 ERA 1996) is not well founded and is

[8]The complaint of unlawful deduction from wages (s.13 ERA 1996) is out of time and time is not extended.

REASONS

[1]This has been a partly hybrid hearing with three of the Respondent’s witnesses participating remotely by video, but the Tribunal, clerk, the parties, their representatives and the remainder of the Respondent’s witnesses attending in person.

[2]The original listing of 10 days had been reduced by the Regional Employment Judge prior to the commencement of the hearing down to 6 days due to lack of judicial availability (on the original listing days for day 2 and 3, and day 9 and 10). The parties had been directed to agree a timetable for the completion of the evidence within that 6 day time-frame with days for submissions, deliberation, judgment on liability.

[3]However on review of the Bundle and extensive witness statements, the four days were added at the end of the original listing to ensure that the evidence and submissions would be finalised and the hearing was heard over 10 days with:a. the first two days as reading days and due to lack of judicial availability on the second day; and

b. a number of further days’ break in the second week of the hearing due lack of judicial availability.

[4]This reserved judgment was determined on the last day of the hearing, which was a Chambers day for the Tribunal for that purpose. The Claims and Early Conciliation

[5]There are two claims to be considered that have been listed to be heard together.

[6]The Claimant has also entered into two periods of early conciliation:a. On 28 May 2024, the Claimant contacted ACAS and 20 June 2024, an Early Conciliation Certificate R (the “First EC Certificate”) was issued [17];

b. On 24 June 2024, the Claimant filed her first claim no 16022474/2024 (“First Claim”);

c. On 11 October 2024, the Claimant again contacted ACAS and on 29 October 2024, a second EC Certificate R (“Second EC Certificate”) was issued [51]; and

d. On 5 November 2024, the Claimant filed her second claim no 1604381/2024 (“Second Claim”).

List of Issues

[7]A list of issues arising from both claims had been prepared by Judge Sharp at a second case management preliminary hearing on 9 January 2025, the first case management preliminary hearing having taken place on 11 October 2024 [41], after the Claimant had been dismissed but before she had filed her Second Claim (“List of Issues”).

[8]At the outset of this hearing, that List of Issues was again discussed with the parties and the Claimant again agreed that it reflected her claims in both the First and Second Claims. This List of Issues was therefore agreed with the Tribunal as the issues to be determined and the hearing proceeded on that basis.

[9]When the Claimant’s closing written submissions were received at the end of the oral evidence and before further oral submissions, that List of Issues was again revisited as it appeared from the Claimant’s written submissions that the Claimant was seeking to rely on slightly differing issues for a number of her claims of discrimination and unlawful deduction from wages. These were discussed and clarified and it was confirmed by the Claimant that she was not seeking to depart from the claims identified in that List of Issues.

[10]A copy of the List of Issues is attached as an Appendix. Bundles and Strike out application

[11]Further documents were sought to be admitted by the Claimant at the outset of the final hearing. That application was considered in conjunction with a further application from the Claimant to strike out the response (the Claimant having previously made multiple applications to strike out the response in this case).

[12]The Claimant’s application for a strike out was refused and oral reasons were given during the hearing.

[13]The Tribunal was referred selectively to the hearing bundle of 1,414, pages of relevant documentary evidence (“Bundle”). References to the hearing Bundle (pages 1-1,414) appear in square brackets [ ] below. These are references to the hard copy bundle and not electronic PDF automated numbering.

[14]An additional bundle, entitled ‘Claimant’s Supplemental Bundle’, had been prepared by the Respondent which included some 2,444 pages of documents that had been sent to them by the Claimant after the last preliminary hearing before Judge Harfield. After lengthy discussions with the parties to ascertain the relevance of such documents, it transpired that only a limited number of additional documents from that Claimant’s Supplemental Bundle were sought to be relied on by the Claimant and these were permitted by consent. These are referred to in these written reasons if at all by [CSupp ].

[15]Additionally, as the case progressed, the Claimant sought to rely on further documents again which, again were permitted by consent into the Bundle at pages [CSupp 2,445-2,451]. Timetabling

[16]As there had been a delayed start of the evidence in order to consider the Claimant’s applications for a strike out and permission to adduce additional evidence, this impacted on the availability of Respondent’s witnesses on particular days and further applications by the Respondent for certain witness to give their evidence remotely were made. This was permitted by consent. The order of Respondent witnesses was a continuing discussion throughout the hearing but on each occasion, the Claimant was given reasonable notice of the order of the Respondent witnesses

[17]Finally, on 2 December 2025, the Respondent made an application to adduce and rely on the witness statement evidence of Ceri Griffiths, who it appeared had made the decision to terminate the Claimant’s employment and had not been called by the Respondent. The Tribunal was not prepared to consider the application until the Claimant had completed her examination of the Respondent’s witnesses that day. It was then determined that the Respondent’s representative would be given some time to set out in writing the basis on which it contented that permission should be granted and the Claimant was also given a number of days to consider whether she consented to such evidence.

[18]The Claimant did consent and as a result the Respondent was permitted to rely on the evidence of Ceri Griffiths, which was again given remotely by video. Adjustments

[19]The Claimant lives with a gynaecological condition which the Respondent concedes is a disability (“Gynaecological Condition”). As a result, the following adjustments were discussed and agreed:a. Regular breaks and that if the Claimant required a break on an urgent basis, this would be accommodated. This resulted in the Claimant leaving the hearing room quickly on adjournments without any issue from the Tribunal or the Respondent;

b. Discussions were held as to whether the disabled toilet, that was next door to the hearing room, could be unlocked for the benefit of the Claimant but it transpired that this was out of use. The Claimant confirmed that the female toilets in close proximity to the hearing room were acceptable.

[20]The Claimant’s musculoskeletal condition was also discussed and the following was put in place irrespective of whether she was disabled by such a condition:a. A high backed chair for the Claimant’s use at all times, during her own evidence and moved for the Claimant’s personal use when the Respondent’s witnesses were being questioned; and

b. Two oil-powered radiators were located for the Claimant and were placed in close proximity at all times to the Claimant to ensure that she did not get cold.

[21]No other adjustments were requested.

The Evidence

[22]The Tribunal had a witness statement bundle of some 278 pages and heard evidence from the Claimant and for the Respondent, from the following witnesses:a. Gordon Wragg, Service Delivery Manager, Waiting List Support Service (“WLSS”)1;

b. Carol Seabourne, Senior Service Manager, WLSS;

c. Keith Jones, Director of Operational Planning & Performance;

d. Julie Evans, Nurse Call Handler, WLSS (February 2020 to June 2023);

e. Lesley Hughes, Nurse Call Handler, WLSS;

f. Amanda Williams, Call Handler, WLSS;

g. Janice Cole-Williams, Assistant Director of Nursing;

h. Sharon Daniel, Interim Executive Director of Nursing, Quality and Patient Experience;

i. Debora Harry, Lead Nurse Professional Standards and Assurance;

j. Helen George, Registered Nurse and Bank Investigating Officer2;

k. Marilize du Preez, Improvement and Transformation Lead, WLSS;

l. Mandy Davies, Assistant Director of Nursing and Quality Improvement;

m. Lisa Hughes, Assistant Head of Workforce, and 1 Gordon Wragg gave his evidence remotely by CVP 2 Helen George gave her evidence remotely by CVP

n. Ceri Griffiths, Interim Assistant Director of Nursing from September 2023 and April 20253.

[23]The job titles given were for the roles that the witnesses undertook at the relevant time unless otherwise stated, and does not necessarily reflect the roles that they currently undertake.

[24]All witnesses, relied upon witness statements, which were taken as read, and they were all subject to cross-examination, the Tribunal’s questions and reexamination.

[25]Frances Howells, Interim Head of Infection from May 2023 and subsequently Assistant/Head of Infection had provided a witness statement but unfortunately was unable to attend to give evidence at the final hearing due to difficult personal circumstances that had arisen after the commencement of hearing. This reason was accepted by the Tribunal, and the Respondent made an application to rely on her evidence on the basis that they no longer intended to ask her to give live evidence. The Respondent was informed that little to no weight would be placed on her evidence however. Assessment of the evidence

[26]It is not necessary to reject a witness’s evidence, in whole or in part, by regarding the witnesses as unreliable or as not telling the truth. The Tribunal naturally looks for the witness evidence to be internally consistent and consistent with the documentary evidence. It assesses a range of matters including: whether the evidence is probable, whether it is corroborated by other evidence from witnesses or contemporaneous records of documents, how reliable is witness’ recall; and motive. The Tribunal found that many of the events under consideration, and in particular some critical events that had taken place as early as September 2022, were somewhat historic. Where that was the case particular scrutiny was given to the contemporaneous documentation.

[27]The following findings of fact are based on balance of probabilities on the evidence before the Tribunal. Facts 3 Ceri Griffiths was permitted to rely on a witness statement and also gave her evidence remotely by CVP. From April 2025, she has been employed by Welsh Ambulance Service Trust. Employment History and continuity of service

Facts

[28]The Respondent is an NHS local health board employing around 13,844 staff across the organisation over a number of hospital sites. It provides healthcare services to the public throughout Carmarthenshire, Ceredigion and Pembrokeshire.

[29]The Claimant is now a 53 year old woman. She is Romanian. She has been employed by the Respondent since 12 March 2018, initially as a Band 5 nurse. She has 31 years’ of nursing experience.

[30]Whilst it is accepted that the Claimant worked as a Bank nurse for the Respondent prior to 2018, there is no evidence that she accrued any continuity of employment with the Respondent prior to 12 March 2018. Indeed, we were taken to correspondence from 2018 and 2019 that indicated that the Claimant’s continuity of employment had been investigated by the Respondent at that time, and it had been confirmed to the Claimant that the Respondent considered that her continuity of employment for the purposes of unfair dismissal rights and sick pay entitlement under Agenda for Change Terms and Conditions of Service was dated from 12 March 2028 [935].

[31]We had no evidence from the Claimant to indicate why her continuity did accrue prior to March 2018 and in the absence of any evidence to the contrary to that provided by the Respondent, we found that the Claimant had continuity of employment from 12 March 2018 only when she worked in permanent full-time employment and that as a result her entitlement to sick pay was five months’ full pay and five months’ half pay.

[32]Indeed little evidence was before us on the Claimant’s employment history prior to September 2022, but the Claimant’s own evidence indicated that she had previously submitted a grievance in March 2020 following a refusal to support her applications for a Masters’ Course which she asserted hindered her professional development and career progression. To an extent this was also the evidence of Lisa Hughes, Assistant Head of Workforce4, which was that the grievance in 2020 included complaints of feeling bullied and shouted at, not supported when applying for permanent posts and declined study leave and funding for a Masters’ 4 LH§11 course, matters which bore some resemblance to the matters in these proceedings. First Occupational Health (“OH”) Report - December 2021

[33]On 7 December 2021, the Respondent received an occupational health (“OH”) report (“First OH Report”) as a result of the Claimant’s then long term absence attributed to the severity of symptoms exacerbated by a long standing Gynaecological Condition [142].

[34]That the Claimant was disabled by reason of that Gynaecological Condition is conceded, a condition that causes pain, incontinence and bleeding when the condition flares up, and diminishes the Claimant’s mental health. That the Respondent had knowledge of that disability from the date of that First OH Report in December 2021, is also conceded by the Respondent and was not a live issue for the Tribunal.

[35]At that time, further treatment was suggested for the condition and OH indicated that in their opinion the Claimant was likely disabled and suggested reasonable adjustments of:a. Refraining from all heavy lifting and mandal handling for 6 months and that management ensure that she was compliant with manual handling training;

b. regular comfort breaks for diet, hydration and dignity;

c. That management allow time to attend all medical appointments should they fall on a working day; and

d. Tolerance was given to sickness absence triggers.

[36]No adjustments were recommended in relation to working from home or having close access to toilet facilities, and albeit we accept that taking into account the Claimant’s Gynaecological Condition, reference to ‘dignity’ was likely be reference to needing those facilities, it was not self-evident from the face of the document. WLSS

[37]On 1 August 2022, the Claimant commenced working as a Band 6 Nurse Waiting List Senior Call Handler in the Waiting List Support Service (“WLSS”).

[38]WLSS was a fairly new team, having been established in late 2021 and formed to serve patients needing outpatient appointments and waiting for surgical procedures on the Respondent’s waiting lists, providing communication with and support for such patients, expediting urgent care or mental health support if needed.

[39]From the April of that year, the WLSS team had been managed by Gordon Wragg, Service Delivery Manager. In that role, Gordon Wragg was responsible for leading and managing the team of all clinical and non-clinical staff. He had joined the team after a period of sickness absence himself, having unfortunately developed incurable blood cancer and having undergone multiple rounds of chemotherapy and a stem cell transplant in 2021. He had become immunosuppressant and in need of a role that could support full time home working.

[40]As a result, he was appointed to the role of Service Delivery Manager, a role that permitted and a role that he undertook on a wholly remote basis, working from home. He reported to Marilize du Preez, Improvement and Transformation Lead, WLSS, who in turn reported to Mandy Davies, Assistant Director of Nursing and Quality Improvement.

[41]At that time, the WLSS team was small with senior staff being limited to Mary Davies a Band 7 Clinical Lead Nurse, who was responsible for directly supervising and managing all professional staff within WLSS, a mixture of Band 3 Call Handlers (non-clinical staff) and Band 5 Nurse Call Handers (clinical staff) working from premises that operated as a form of call-centre at Hafan Derwen in Carmarthen.

[42]Additional funding was received from the Welsh Government to increase the size of the WLSS and Gordon Wragg was tasked on appointment with seeing how the WLSS service could be moved forward.

[43]As a result, he appointed a Band 8a role of Senior Service Manager, a role designed to support Gordon Wragg and to be responsible for co-ordination of policy and service delivery. The role was to be responsible for line managing Mary Davies and managing the day to day service.

[44]Carol Seabourne was appointed and joined the WLSS team on 1 August 2022 as Senior Service Manager, WLSS.

[45]Gordon Wragg also determined that the WLSS team needed to have a Band 6 nurse available to assist them on a day to day basis, a role akin to a sister on the ward. As a result, the job description for the Band 6 role was also devised by Gordon Wragg and Mary Davies [478]. This included, but was not limited to:a. Being responsible for the calls received and giving specialist clinical advice to patients;

b. Supervising more junior members of the team;

c. Escalation of concerns where necessary;

d. Liaise with the clinical responders and other members of the WLSS to ensure callers were provided with up to date information

e. Supporting and assisting with the introduction of new staff by providing support training

f. Providing training, support and mentorship to colleagues.

[46]It was this Band 6 post that the Claimant applied and was interviewed for. Whilst the Claimant could not recall if the Job Description had been accessible to her when she applied for the role, we found that it was likely that she would have seen it during and after the recruitment process.

[47]The Job Description did not indicate which staff the Band 6 would be responsible for managing, if any, albeit it did make clear that the Band 6 would responsible for supervising call centre staff. There is an issue as to whether, as the service expanded the prospect of line management had been discussed at interview.

[48]Gordon Wragg gave evidence that the role was explained during interview, including supervisory responsibilities and that he considered that the Band 6 role was the equivalent of a team leader with similar responsibilities to a junior sister Band 6. On questioning, the Claimant did not deny that she understood in accepting the role that she would be supervising staff. We found that it was likely that the Claimant was informed of the supervisory nature of the role at interview, in that as the Band 6 she would be one of the most senior nurses on duty.

[49]The Claimant was appointed to the Band 6 Nurse Waiting List Senior Call Handler role and commenced in that role WLSS reporting to Mary Davies from 1 August 2022, the same start date as Carol Seabourne.

[50]A 4-week induction was planned for the Claimant that included a ‘Buddy Plan’ [144] and Induction documentation [489-90] and included periods for shadowing call handlers and familiarisation with ‘Netcall’, a software system that managed in-coming patient telephone calls to the WLSS.

[51]The Claimant’s induction did not last 4 weeks. Rather, it appears to have lasted no more than 2 weeks and, although the Claimant did sign the induction document agreeing to the training that she did receive, the Claimant was unhappy at the brevity of that induction.

[52]As indicated, whilst the Claimant did not lead or manage the team of Band 5 clinical call-handlers, she did have supervisory responsibilities towards them as reflected in her Job Description and there were also occasions when she was the only senior member of the staff physically on shift. In that regard, she was responsible for the day to day supervision of the staff that were also on duty at that time whereby they would seek her guidance and support and if necessary escalate more difficulty calls to her. Working from home

[53]Working from home arrangements were already in place for Gordon Wragg and also it appears for those in the WLSS at Band 7 and above, who were contractually able and working remotely in some form or another. Management working from home therefore included:a. Gordon Wragg, who was working wholly remotely;

b. Carol Seabourne, who worked from home 2-3 days per week, as did Anna Bevan, Clinical Lead Therapist for the Band 3 non-clinical call-handlers; and

c. Mary Davies, who worked from home around once, sometimes twice a week (including training days).

[54]Whilst the screenshots of some Teams chats indicated that out of office messages were at times left, the evidence from the Respondent witnesses was that they would be contactable throughout the day even though they were not physically at the call centre. Whilst the Claimant has indicated in evidence that those working from home were not accessible, we were not persuaded that there was sufficient reliable evidence to persuade us that this had been the case.

[55]What was termed ‘agile’ ways of working for those below Band 7 within the WLSS, i.e. working from home, also appears to have been a topic of discussion for some time within the WLSS team before the Claimant even commenced work there and by the beginning of September 2022, it had been agreed that callhandlers at Band 6 and below could work from home one day a week, subject to review and after a period of three months in post. All call-handlers, with one exception, wanted to undertake some working from home.

[56]On 7 September 2022, the Claimant applied to work from home for 7.5 hours per week [491] with the reasons for her request being to:a. Prepare for the eventuality of a lockdown;

b. Be ready to work in any circumstances, even where lack of office space;

c. Be able to work during possible isolation periods;

d. Acquire experience and confidence in working from home.

[57]Her last reason was as follows: ‘I have a medical condition (I use more frequent the toilet) working from home will support my dignity, promote my continence and managing my symptoms’

[58]Her application was accepted and it was confirmed that this arrangement would commence after the Claimant had been in post for three months. Indeed, the requirement to be in post for three months was the arrangement for all callhandlers seeking to work for home.

[59]As such and from 4 November 2022, the Claimant worked from home one day per week which appears to have been a set rostered day. The Claimant complained in live evidence that the working from home day did not necessarily coincide with a flare up of her Gynaecological Condition, but equally we found that there was no evidence from the Claimant that at this point, she had requested such flexibility to accommodate that condition. Concerns regarding the Claimant

[60]From early on in the Claimant’s employment at WLSS, Mary Davies and Carol Seabourne were reporting concerns to Gordon Wragg regarding the Claimant’s style of communication, with specific concern that her written communication was appearing abrupt and rude, due to the brevity of responses and use of capital letters5. He considered that this was not supportive of fostering collaborative working relationships with the other hospital departments and a system was 5 GWWS28-29 devised whereby the Claimant’s outgoing emails were monitored by him. The Claimant was unhappy at this step and for reasons that have not been explored, this monitoring did not progress. A mentor for the Claimant was suggested. This was declined by her.

[61]By September 2022, call-handlers were also reporting to Carol Seabourne and it appears, Mary Davies, that they were unhappy with the Claimant’s style of communication, resulting in Gordon Wragg, Carol Seabourne and/or Mary Davies having regular and informal team meetings with her to improve her style of communication. This was not disputed by the Claimant, neither was the fact that Carol Seabourne told the Claimant to seek support from her when needed. Structural review

[62]By the end of September 2022, Carol Seabourne had reviewed the structure of WLSS and, following a meeting with senior staff on 20 September 2022, she prepared a new Structure Diagram [444] which indicated that the Clinical Lead Therapist (Anna Bevan) would manage the non-clinical call handlers and that Mary Davies would manage the clinical call-handlers, but that the Claimant as Senior Nurse call-handler would be responsible for supervising the nurses. She sent this Structure Diagram to the Clinical Leads, the Claimant and Gordon Wragg and asked for comments [160].

[63]The Claimant believed that she was being allocated duties and responsibilities above her job description. She was concerned that the promised training had declined and her workload was becoming too heavy. She requested training and support. Carol Seabourne says this was discussed and agreed as development opportunity.

[64]Either way, there is no evidence of any real objection from the Claimant regarding additional line management responsibilities. Masters’ Course

[65]In the meantime, it is evident that the Claimant was keen to professionally develop, in that she sought to undertake an academic course with an initial interest in undertaking a diploma in Principles of Leadership and Management, an ‘ILM’ qualification, exchanging emails with Mary Davies and the Respondent’s Learning and Development Team on that specific course indicating an intent to apply [161].

[66]At the same time, she was also expressing an interest in undertaking a Masters’ Degree (“MSc”) and it appears that the Claimant asked Mary Davies on around 16 October 2022 if she could undertake an MSc and Nurse Prescribing course commencing in the October of 2023 [440]. The documentation suggests that Mary Davies appears to have told the Claimant that she would discuss this with senior management and warned her that prescribing courses were normally only undertaken within a clinical environment. The notes also reflect that by this point the Claimant was commencing e-learning in preparation for managing new team members.

[67]In the latter part of the following month, the Claimant again spoke to Gorden Wragg regarding professional development who confirmed to her that the service could support her undertaking an ILM diploma if she wished to pursue further education as such a course would support the Claimant’s development in line managing the new Band 5 Call Handlers. November and December 2022

[68]In addition, it appears that a number of additional and significant matters arose in that last two months of 2022:a. a number of more formal and documented concerns from colleagues regarding the Claimant’s behaviour came in to management, the first from Lesley Hughes on 8 November 2022. This resulted in a meeting between the Claimant and Mary Davies regarding that on or around 16 November 2022;

b. The Claimant herself approached Carol Seabourne raising concerns regarding her own workload and behaviour from colleagues;

c. Following this a referral was made to OH by Carol Seabourne and a Stress Risk Assessment and Action Plan was drawn up;

d. The Claimant’s PADR was undertaken by Mary Davies; and

e. Significantly, in the Tribunal’s view, the Claimant was informed that the WLSS would not support her application for MSc funding and leave of absence from the WLSS team to undertake this study.

[69]We deal with each in more detail. Complaints regarding Claimant

[70]On 8 November 2022, Lesley Hughes emailed her concerns about the Claimant causing upset in the team to Carol Seabourne [173]. She referred to the Claimant having a tendency to ignore the rest of the team when they sought her assistance and that she did not feel comfortable asking for the Claimant’s advice or discussing work. She expressed concern for the Claimant, as well as team members and the effect on the service [173].

[71]On 16 November 2022, the Claimant appears to have met Mary Davies to discuss that complaint although it is not clear what was discussed at that meeting, neither the Claimant giving evidence on the point and Mary Davies not being called by the Respondent6.

[72]Two other complaints quickly followed as by 22 November 2022, two other call handlers: Amanda Williams and Julie Evans, also emailed Mary Davies complaining of the Claimant ignoring, belittling and intimidating staff and speaking down to colleagues, with Amanda Williams complaining of feeling bullied and intimidated [183, 184].

[73]Julie Evans was questioned by the Claimant during the hearing, as she had previously worked with the Claimant in another department of the hospital, with the suggestion that put to her that she had spread some form of disaffection amongst the staff about the Claimant. She gave clear evidence that whilst she had informed management that she had worked with the Claimant previously, she had not notified her work colleagues of any prior dispute between the two. We accepted that evidence and were not persuaded of any personal issue between the Claimant and Julie Evans that was of relevance in this case.

[74]By this time, management were meeting with the Claimant on a regular and weekly basis regarding her communication with the team and were seeking to establish the Claimant having good working relationships with those that she supervised as a result. Meeting with Carol Seabourne – 15 November 2022 6 The Tribunal was informed that Mary Davies has retired on ill-health grounds

[75]The day prior to the Claimant’s meeting with Mary Davies and on 15 November 2022, the Claimant contacted Carol Seabourne, indicating that Mary Davies was too busy to speak to her but that she was upset. A Teams call took place between the two.

[76]On the following day, Carol Seabourne sent to the Claimant an email summarising the discussions which we considered likely reflected what had been discussed [317]:a. The Claimant appeared unhappy that Mary Davies had twice cancelled her performance development review (“PADR”);

b. that she wanted an occupational health referral;

c. that her workload was becoming unmanageable, that she felt that this was compounded by other call handlers not being at their desk and answering calls, which meant that she had to answer additional calls. She felt it was impacting on her ability to undertake and answer additional Band 6 duties. She felt overwhelmed.

[77]As a result, Carol Seabourne referred the Claimant to OH and asked the Claimant to complete a stress risk assessment form (“SRA”) [319].

[78]At some point after 15 November 2022, the first section of that SRA was completed by the Claimant. In that section of the SRA she set out issues of unsafe workload, lack of training and poor team dynamics [205-210].

[79]The Claimant accepts that at all time she had the opportunity to download a further blank pro-forma SRA form.

[80]The OH referral was also made for the Claimant by management [445] [317]. PADR – 18 November 2022

[81]As a result of her discussion with the Claimant, Carol Seabourne encouraged Mary Davies to undertake the Claimant’s PADR as a priority and advised her that an OH referral had been made.

[82]The PADR took place and the written PADR reflects that the Claimant confirmed that she was struggling with health issues; that she did not feel that the new WLSS team supportive; that she felt overworked and that this was impacting on her health [445]. She considered that colleagues had been dishonest about her and communication and respect with colleagues was ‘minimal’. She again raised that she wanted to undertake an MSc.

[83]The PADR was signed off by neither Mary Davies nor the Claimant.

[84]It appears not in dispute that Mary Davies had wanted confirmation of whether the MSc would be supported, forwarding to Carol Seabourne later that day the Claimant’s request to complete the MSc. Confirmation of MSc and further meetings

[85]Later that day Carol Seabourne confirmed to the Mary Davies that the MSc was not a requirement of the Claimant’s role in WLSS and that as a result, management would not support her application for funding and study leave for an MSc [186]. She suggested that Mary Davies meet with the Claimant to discuss and explore whether the Claimant would be interested in the ILM.

[86]On 25 November 2022, the Claimant met with Carol Seabourne and Gordon Wragg when the Claimant’s completed SRA was reviewed and discussed.

[87]On 30 November 2022, the Claimant again raised with Mary Davies whether she could undertake an MSc and Nurse Prescribing course which again Mary Davies appears to have indicated that she would discuss with management [493]. December 2022

[88]A number of significant matters also arose the following month.

[89]On 2 December 2022, the Claimant became responsible for inducting and managing two new Band 5 Call Handlers, a decision having been made that the current Band 5 Call Handlers would remain reporting to Mary Davies as, by this point, Julie Evans had reported that they wished to leave the WLSS due to the Claimant’s behaviour.

[90]It also appears that within a relatively short space of time of the Claimant managing those two new Band 5 call-handlers, they too had also shared letters indicating an intention to resign due to the behaviour of the Claimant.

[91]Gordon Wragg believed by this point it was clear that relationship between WLSS staff and Claimant was damaged. It appears that the steps he took to manage that was limited to re-arranging shift patterns so that Julie Evans and the Claimant had limited mutual shifts and making the decision to remove the linemanagement of the two new call handlers from the Claimant.

[92]It also appears that a number of other steps however were also taken to manage the Claimant’s health concerns:a. the Claimant was supported in being permitted to attend weekly Aquafit classes, using her leave as the Claimant had indicated that it would be beneficial to her health;

b. the Claimant was permitted to make use of the management office, a smaller private office off the open-plan area within the call-centre where she normally worked with the other call-handlers as there appears to have been heating issues at the call centre in that month and this office was warmer; and

c. the Claimant was allowed to start late and leave early and that requests for time off for health were generally agreed to,

[93]We were not persuaded by the Claimant’s live evidence that there were any difficulties in her accessing toilet facilities whilst she was in work at the callcentre. During her time at the call centre, we found that she was able to readily access toilet facilities and that if needing a toilet break would be able to take one simply by not answering any phone calls which would be diverted to colleagues through the Respondent’s call-handling Netcall system. In addition, the Claimant if too cold was able to use the management office, a discrete space off the general call centre from which the Claimant could regulate temperature by the use of a portable heater.

[94]On one occasion over week commencing 12 December 2022, when at least three members of staff were off work due to sickness when the Claimant had requested to leave early as she had worked through her lunch, this was refused due to lack of cover [195]. This appeared to be a particularly difficult week as a result of sickness and lack of cover. Second Occupational Health Report December 2022

[95]On 14 December 2022, the Action Plan section from the Claimant’s SRA was completed by management and emailed to the Claimant for her to review [321] [211-218]. The Action Plan included steps for tasks to be reviewed and meetings to clarify responsibilities and behaviours with the Claimant having the ability to speak to her line manager if she considered deadlines unachievable. It was agreed that the Claimant would also identify training needs. In relation to environmental issues, it was agreed that a portable electric heater would be sourced. With regard to team conflict, in addition to the open door policy for the Claimant to speak to Carol Seabourne, it was agreed that there would be an anonymous suggestion box.

[96]On 22 December 2022, following a telephone OH appointment with the Claimant on 16 December, an OH report was received dated 16 December 2022 (“Second OH Report”) [219]. The report reflected that the Claimant reported environmental issues aggravating her condition and exacerbating her gynaecological symptoms. The OH adviser made the following recommendations:a. a facility to have additional home working when the Claimant was symptomatic or when the working temperature was likely to be compromised / when symptomatic;

b. regular comfort breaks;

c. that she refrain from heavy lifting or manual handling;

d. management allow time to attend all medical appointments if they fell on a working day; and

e. that tolerance be given for sickness absence triggers.

[97]The OH adviser acknowledged that there may be others in the team with competing needs as a result of their own conditions and recommended a team meeting7. This referenced the competing temperature issues that appears to have been in issue, with other staff wanting fresh air into the call centre in light of Covid-19 and the Claimant then being cold as a result. January 2023

[98]Following the Christmas break, in the January of 2024, the Claimant raised concerns that when she was on Netcall, the remainder of the WLSS team were diverting calls to her [228]. This was the first time this had been raised by the Claimant and was a surprise to Carol Seabourne as she oversaw the call logs and had not noted any uneven distribution of calls. She checked whether there was a fault and so no evidence that calls were being diverted to the Claimant. 77 See Amanda Williams Para 23

[99]On 16 January 2023, the Claimant met with Gordon Wragg and Carol Seabourne for a ‘catch-up’. The Claimant again indicated that she was struggling with her workload. Whilst responsibility for line managing the two new Band 5 call-handlers had been allocated to the Claimant at the beginning of December, this was removed from her as a result. The Claimant was happy with this change. The Claimant was put in touch with coaching and mentoring and training courses were recommended,

[100]The Second OH Report was also discussed and it was agreed that the Claimant could work an additional one day a week at home, i.e. two days a week, with additional days if symptomatic. Regular comfort breaks was also agreed to. No adjustment was required regarding either manual handling or heavy lifting as neither was a requirement of the role. The Respondent also agreed they were happy to accommodate appointments if they fell within a working day.

[101]A formal written reasonable adjustments agreement was drawn up for the Claimant and subsequently sent to her on 30 January 2023 [328] and in the latter part of January, the Claimant specifically requested to work from home so that she could attend a gynaecological appointment, which was agreed to.

[102]The Claimant continued to go to Aquafit classes utilizing her annual leave each week. Capability Meeting

[103]On 25 January 2023, the Claimant was invited to a meeting to discuss management concerns about the Claimant’s performance. Whilst informal, such a step was provided for under the Respondent’s All Wales Capability Policy and Procedure, where required standards of work can be clarified, areas of concern could be identified, likely causes of poor performance could be identified along with training needs and targets, with time-scales for review, could be set [1227]. The meeting was challenging for all it appears.

[104]The meeting was conducted by Gordon Wragg and Carol Seabourne and the Claimant was informed of the concerns that had been raised by work colleagues and an informal Performance Improvement Plan (“PIP”) was discussed [242].

[105]The subsequently documented PIP reflected concerns regarding the Claimant’s performance in her role, that management considered that:a. The Claimant was not providing adequate supervision and support when call-handlers requested assistance and that they felt that they could not approach her for advice;

b. Staff reported feeling intimidated, reporting an atmosphere that was described as ‘awful’;

c. Her communication skills and management style were rigid and inflexible and that she lead using a ‘dictatorial’ style lacking flexibility;

d. There were concerns regarding her time management regarding attendings at a briefing and learning session.

[106]The Claimant provided little evidence as to what was discussed at that meeting. In live evidence she indicated that she could not recall what was discussed at this meeting because of and beyond Gordon Wragg’s comment that he had said to her “You behave like a Russian or a German” and that he was shouting. She indicated that after that she was unable to engage and felt that she had a panic attack.

[107]In his statement evidence, whilst Gordon Wragg had stated that he could not recollect the specific words used, he accepts that what he did say was of a similar nature. In live evidence, he was less candid and seemed to the Tribunal to resile from saying such words, or words to that effect at all. It was difficult for the Tribunal to understand why, particularly in light of his own written statement and that of Carol Seabourne who had in her own witness statement evidence, confirmed to that best of her recall, had made such a comment albeit in a certain context which she indicated was not meant to cause offence but to illustrate why the Claimant’s behaviour was causing so many issues with staff.

[108]The Tribunal finds that Gordon Wragg did say such words to the Claimant at that meeting.

[109]We further found that he said such words in the context of discussing the Claimant’s style of management, which he also described as ‘dictatorial’. Whilst the reference to ‘dictatorial’ was evident in the written PIP, we also found it likely that such a remark had also been made during the meeting - Gordon Wragg had referred to it in his witness statement when describing how he perceived the Claimant to deal with staff and we found it likely that he would have described to the Claimant during the meeting how he perceived her management style, not just within the subsequently documented PIP.

[110]Gordon Wragg’s evidence was that the comment was illustrative only of her dictatorial management style (albeit using national stereotypes,) not discriminatory and that he did not mean to be offensive. Likewise, Carol Seabourne’s evidence was that she did not consider that he intended to be offensive.

[111]The Claimant was asked in giving her evidence why she believed that such a comment appeared to her to be a specifically derogatory reference to her Romanian background, a matter that she had referred to in her witness statement8. She implied that it was because she was from that part of Eastern Europe and repeated that it did offend her and that it was her understanding that because of her country of origin, he was comparing her to a Russian or a German and that he had followed by saying that she was dictatorial.

[112]Whilst we were not persuaded that there was specific intent to create hostility, we did find that such a comment did in fact create a hostile environment for the Claimant.

[113]Neither the Claimant nor Gordon Wragg were helpful witnesses as to what took place at that meeting and how the meeting was conducted. We also found that the passage of time made it more difficult and it was difficult to make clear findings on how the meeting generally was conducted. Whilst Gordon Wragg denied shouting at the Claimant at the meeting, there was also some suggestion in the evidence that this allegation related to a different meeting. Whilst the Claimant asserts that she was shouted at, at that meeting, she also gave evidence that she has no recall of that meeting beyond those words said by Gordon Wragg. Carol Seabourne recalled that Gordon Wragg had not shouted at the Claimant.

[114]We found that Gordon Wragg had not shouted at the Claimant and in reaching this conclusion, relied on the subsequent grievance, in which the Claimant had made no reference to Gordon Wragg shouting at her.

[115]The following day, Gordon Wragg sent to the Claimant the written PIP with a review arranged for 9 February 2023. Action to address these concerns was included. The Claimant was asked whether there was any “support or training or 8 CWS§16 help” she needed [241, 242]. The Claimant did not sign it and in live evidence indicated that she was too upset to read it. She did not give a copy of it to her trade union representative.

[116]Either way, the Claimant could not recall its contents.

[117]We found that the contents likely did reflect the discussions regarding the Claimant’s performance and plan to address those concerns that had taken place at that meeting. Request for reference and long term sickness absence

[118]The following week on 30 January 2023, the Claimant was provided with a copy of the agreed reasonable adjustments in place for her.

[119]On the same day, the Claimant emailed Mary Davies asking for a reference and indicating that she had been accepted for a place on the Advanced Health and Care Management course at Swansea University [245].

[120]That email was forwarded to Gordon Wragg who, by this point appears to have already engaged in several discussions with the Claimant and had explained that support for any course had to be in line with PADR objectives and supported through the Respondent’s higher awards application process to obtain funding. We say ‘appears’ as evidence from all witnesses, including the Claimant’s, was lacking in specificity as what was discussed and when and to the exact order of events at this time, to the extent it was difficult to make clear findings of fact as to timings of various meetings.

[121]Gordon Wragg contacted the University and it was confirmed to him that any reference for the Claimant would be an endorsement that the Respondent would be funding the MSc for the Claimant of £3,100 per annum and approving the relevant study leave of two days a week, to attend the daytime course,. He was shocked as he had not authorised this as Service Delivery Manager. He again informed the Claimant that the Respondent would not be able to support her request for the MSc course [249].

[122]Whilst the timeline was slightly confused, it appears that a further meeting took place when the MSc was discussed although it appears nothing turns on this particular meeting. Claimant’s Sick Leave

[123]On 1 February, Marilize du Preez, the manager responsible for overseeing WLSS as Improvement and Transformation Lead, emailed the Claimant to advise her that she had become aware of concerns of bullying in the workplace and asked for a meeting [250].

[124]It appears that neither that, nor the review of the PIP took place as on 2 February 2023, the Claimant was absent through sickness subsequently presenting a fit note for one month, which stated ‘anxiousness’ as the reason for her absence [251]. The commencement of the Claimant’s sick leave marked the end of her time at WLSS and she did not subsequently return to work there.

[125]A third occupational health referral was made for the Claimant.

[126]In the meantime, despite being on sick leave the Claimant’s pursuit of support for her MSc continued with her contacting Mary Davies [257]. On 15 February 2023, Gordon Wragg set out his views on the Claimant’s application to Marilize du Preez, which was that he could not support such an application due to the need for the Claimant to be released two days a week for a course that was not relevant to her role [256]. On 6 March 2023, the Claimant wrote to Gordon Wragg requesting a written rationale for the refusal to support her for a Masters’ course [261]. He responded on 7 March stating that he was unable to respond due to the allegations of bullying that she had raised at that stage against him and Carol Seabourne [262].

[127]A further fit note was presented on 8 March 2023 [264]

[128]Gordon Wragg also wrote to the Respondent’s Learning and Development Manager on the same date setting out his proposed response to the Claimant and was advised to address the business case as to why he had been unable to agree – namely that the course was not relevant to her role [270].

[129]On 24 March 2023, Gordon Wragg wrote to the Claimant [281] explaining:a. His understanding of the Respondent’s Learning and Development Policy [1250] and Higher Awards application process [1246];

b. That he was unable to support her request for funding as the course required time off which had not been discussed and was incompatible with the needs and objectives of the WLSS team, general objectives and needs of patients;

[130]The Claimant responded a few days later on 27 March 2023, clearly unhappy with the email and disagreeing as she felt that the MSc had been identified at her PADR, that an MSc and not an ILM would best support her career and managerial skills and that the ongoing situation was aggravating her physical and mental needs [280]. The Claimant asked for an informal resolution. Third Occupational Report – 15 March 2023

[131]In the interim, the Claimant again attended OH and on 15 March 2023, a further OH report was received (“Third OH Report”) [274].

[132]In that Third OH report, psychological wellbeing support and flexible working were advised. The OH adviser commented that:a. That it may be beneficial when the Claimant returned to work ‘reviewing her individual stress risk assessment’;

b. Management allow time to attend all medical and well being appointments should they fall on a working day’;

c. The stresses were managerial rather than health related and that a further meeting was advisable, questioning whether any compromise could be reached to facilitate the Claimant’s return to work;

d. They had advised the Claimant to submit a flexible working request so that Aquafit, which the Claimant considered therapeutic, could be accommodated; and

e. That flexible working could also accommodate her relationship with a colleague (who the Tribunal took to be Julie Evans). Meeting 4 April 2023 – Marilize du Preez

[133]Communication regarding the Claimant’s MSc continued and Marilize du Preez was copied into the email exchanges between the Claimant and Gordon Wragg regarding his responses to her application for her MSc to be funded which she considered ‘neglectful’. She asked for an informal resolution [281]. As a result, Marilize du Preez wrote to the Claimant asking for a meeting to discuss matters further [280]. The Claimant replied that she would be receiving support from her union and that the RCN would contact her.

[134]The Claimant attended that meeting and was accompanied by her trade union representative. The Claimant indicated that she was unhappy with the decision not to support her with the Higher Award application for her MSc. Marilize du Preez gave evidence that the Claimant told that if she was permitted to do her MSc, that she would drop all allegations against WLSS staff9. This evidence was not challenged by the Claimant on her questioning of Marilize du Preez and we accepted that this had been said.

[135]She also informed Marilize du Preez that neither Gordon Wragg or Carol Seabourne would meet with her and she was never permitted to work from home. The Claimant also maintained that she should not be managing any staff and that she needed her MSc in order to manage Band 5s in the team. Long term sickness meeting 5 April 2023

[136]The following day and on 5 April 2023, the Claimant attended a long term sickness meeting with her line manager Mary Davies and again she was accompanied by her RCN representative. The note from the RCN was contained in the Bundle [284] as was the letter that subsequently was sent to the Claimant [293].

[137]It appears that the Claimant again complained that her workload was outside of her job description, that OH recommendations were not being followed and that she was subject to allegations for which she had not received management support. It was suggested to her that she address these issues through the Respect and Resolution Policy i.e. the Respondent’s grievance procedure.

[138]The Claimant’s working from home arrangements were also discussed. The Claimant disputed that the agreement, that she could work from home 2 days a week, had been applied. She disputed that the rotas were correct.

[139]The Claimant’s application for a Higher Award for her MSc was again raised, the Claimant indicating that she was at her ‘lowest mood ever’ as a result of that lack of support to do the Masters [285]. Other matters discussed including 9 MduP§25 possible flexible working and that she considered the Netcall system was being manipulated.

[140]Whilst the notes reflect that the Claimant raised that she considered that the PIP was being used to bully her, the Tribunal noted that no reference was made to the Russian or German comment or ‘dictatorial’ reference made by Gordon Wragg.

[141]The Claimant was informed that her pay would be reduced to half pay. The Claimant was concerned and indicated that it had been agreed that her previous non-NHS experience would be considered. She was advised that this would be looked into.

[142]On 18 April 2023, the Claimant applied for industrial injury allowance in respect of her absence on 2 February 2023 [297] citing various issues but indicating that the PIP meeting and PIP were the triggers [301]. She made no mention of any specific comment made by Gordon Wragg. This was declined on 25 April 2023. First Respect and Resolution complaint : 21 April 2023

[143]On 21 April 2023 the Claimant submitted a grievance (“First Respect and Resolution”) [434] under the Respondent’s Respect and Resolution Policy [1,269]. In that she raised essentially five main heads of complaint complaining of:a. Breach of contract in: i. Being expected to work beyond her job description by managing 4 nurses in the team; and ii. Her application for an MSc., as identified in her PADR, had not been supported; iii. being ‘defamed, bullied and harassed’, giving examples including the comment made by Gordon Wragg and that her style of management had been referred to as ‘dictatorial’; iv. Only being given study leave for an ILM and not an MSc;

b. ‘Discrimination’, again relying on: v. Not being given study leave or funding for an MSc., and vi. The working from home arrangements in comparison with the Band 7 roles in the WLSS team

c. Netcall manipulation and work overloading on site; and

d. The rota being falsified.

[144]The First Respect and Resolution was reviewed by Marilize du Preez in conjunction with HR. An initial assessment was undertaken by Mandy Davies, Assistant Director of Nursing, and it was decided that due to the breakdown in the relationship between the Claimant and her line managers, the complexity of the issues and the concerns raised, that an independent investigation would be commissioned. On 5 May 2023, Mandy Davies wrote to the Claimant confirming that [313].

[145]On 10 June 2023, the terms of reference for the Claimant’s First Respect and Resolution Complaint were prepared and issued [452]. Sickness Absence and Long Term Sickness Meeting 20 June 2023

[146]The Claimant’s sickness absence continued and responsibility for managing the Claimant’s sickness absence was moved to Marilize Du Preez. It appears by this time Mary Davies was on long term sick and eventually left the organisation on ill-health retirement.

[147]On 11 May 2023, the Claimant submitted a fit note for one month citing “stress at work” [315] and as a result, on 1 June 2023, the Claimant was invited by her to a long term sickness review via Teams. This was rearranged to 20 June 2023 when the meeting was again attended by the Claimant and her RCN representative, Nick Spiller. Marilize Du Preez attended for the Respondent accompanied by a representative from HR.

[148]By that time, a further fit note for a further two months had been submitted, again for ‘stress at work’ [337].

[149]On 20 June 2023, the Claimant attended that sickness review meeting with Marilize du Preez. Whilst no notes were available of that meeting a lengthy and detailed letter was sent to the Claimant on 22 June 2023 [341], which we considered likely reflected the matters discussed with discussion relating to:a. The Claimant considering that her mental health had deteriorated and that the ongoing grievance investigation was aggravating her symptoms;

b. She asked for an update and was informed that Helen George had been appointed Investigating Officer;

c. The Claimant wanting to return to work but her fit note from her GP had signed her off until 11 August 2023. The Claimant was told she would need to discuss a return with her GP and a further referral to OH was also discussed. The Claimant agreed but expressed concern that previous OH recommendations had not been implemented;

d. Her sick pay and temporary injury allowance;

e. That Gordon Wragg had left WLSS and that Carol Seabourne remained the Service Lead.

[150]Marilize du Preez recommended that the Claimant complete a further stress risk assessment, the previous SRA having been completed whilst she had been in work in WLSS. The Claimant was informed that a further sickness meeting would be arranged on receipt of the further OH report.

[151]The Claimant did not complete a further SRA as she felt that it was not her duty to do so, but that of her line manager. The Claimant was questioned on this meeting, particularly in relation to the SRA. Her evidence was that the Third OH Report had recommended a ‘review’ of the SRA and had not recommended a new or fresh risk assessment. She also confirmed in response to a question from the Tribunal, that her claim was that the Respondent should have reviewed the SRA from January 2023 and not obligate her to undertake new or additional stress risk assessments.

[152]On 24 June 2023, the Claimant requested that the Terms of Reference be expanded to take into account her sick pay status (Appendix A) [503]. Claimant OH Report and Fourth OH Report

[153]On 5 July 2024, Marilize du Preez made a management referral to occupational health and on 11 July 2024, the Claimant also made a self-referral [346]. She was keen to return to work.

[154]The Claimant had a telephone consultation with OH on 7 July 2023 as a result of her self-referral and a report was prepared dated 7 July 2023 [343].

[155]A copy of the this report was received by management by 21 July 2023 [346]. The OH Adviser reported conflict with a colleague and that she wanted to work alterative days and that the Claimant was fit for work with the following recommendations:a. A six week phased return and action plan developed

b. the Claimant was encouraged to take regular breaks

c. that she be supported to attend appointments in relation to her physical and psychological well-being without loss of pay

d. That the line manager arrange regular 1:1 meetings

e. Tolerance be given to sickness absence triggers.

[156]On 18 July 2023, the Claimant again met with OH as a result of the management referral and on the same date a fourth OH report (“Fourth OH Report”) was prepared [349].

[157]Within the Fourth OH Report, the OH adviser commented that the Claimant had advised of a chronic pain condition and that she had also advised that she considered that working from home would be helpful. It was recommended that this be explored with management. The OH adviser again stated that the Claimant was fit to return to work and recommended that:a. That a six-week phased return be implemented;

b. An opportunity to work from home be considered;

c. A stress risk-assessment be completed and an action plan be developed to support management and the Claimant on managing stress;

d. She be encouraged to take regular breaks;

e. The Claimant was supported to attend appointments for her physical and psychological well being without loss of pay;

f. The claimant and her line manager have a regular 1:1. Claimant’s return to work

[158]A long term sickness absence meeting was arranged for 15 August 2023, the timing of which upset the Claimant as she felt she was now declared fit to return and on 3 August 2023, confirmed that she would be returning to work that day [372].

[159]As a result and on 4 August 2023, a return to work meeting took place with Marilize du Preez by Teams. Again, the Claimant was accompanied by her trade union representative and the Tribunal had the benefit of both his notes of that meeting [354] and the HR representative’s subsequent email recording the discussion [356].

[160]It was agreed that the Claimant would work from home and she was informed that she was being temporarily redeployed out of WLSS pending the outcome of the Respect and Resolution investigation and that Lesley Jones, Head of Corporate Nursing, would be her line manager during that redeployment and would also provide support for any professional revalidation process [358]. The Claimant was told that this was a decision made to support the well-being of both herself and her colleagues in the WLSS. She was informed that she would continue to be paid at a Band 6 and a phased return was put in place. No objection to the temporary redeployment was evident from the face of the notes from the Claimant’s representative and we found that the Claimant did not object.

[161]The Claimant again appeared to raise the issue of her MSc and the employment references she would need. Temporary Redeployment

[162]As a result the Claimant returned to work, but working from home with Marilize du Preez remaining as her line manager for the purposes of sickness absence, annual leave and training approval [651], but undertaking tasks for the Corporate Nursing team liaising with Lesley Jones and working with Frances Howells.

[163]During this period the Claimant did not always have training requests approved by Marilize du Preez immediately [610] but we drew no specific conclusions from this other than to accept that Marilize Du Preez was entitled to do so as manager if the training was not relevant to the job role.

[164]The Claimant also undertook work for David Wastell, Head of Infection, but we could make no positive findings from the evidence that persuaded us that she was doing work beyond her grade or had an excessive workload, Indeed it appeared that if anything the Respondent was struggling to find work for the Claimant beyond routine tasks. First Respect and Resolution Complaint Investigation

[165]In the meantime and on 24 July 2023, Helen George, Senior Nurse and Bank Investigating Officer, commenced her investigation into the First Respect and Resolution investigation. Taking into account the time that the Claimant had submitted her complaint, this was a delayed commencement not altogether explained by the fact that the Claimant had on 23 June 2023 asked for her pay concerns to be added to her grievance. We accept however that it would have taken Helen George some time to review the documents that had been sent to her with the investigation’s terms of reference10 as well as collate the additional documentation11.

[166]Whilst the length of the investigation was outside of the guidelines set out in the Respondent’s Respect and Resolution process, we accepted that whilst the delay would have caused the Claimant concern and did lead to the Claimant being temporarily redeployed for longer, there was an explanation for this and the breadth of the investigation could not reasonably be completed within such a time frame.

[167]On 6 September 2023, Helen George met with the Claimant and her RCN representative as part of the investigation [508] and subsequently interviewed other members of the WLSS including Gordon Wragg [520], Marilize Du Preez [533], Carol Seabourne [549] and Mary Davies [556] as well as a number of the call-handlers within WLSS.

[168]Whilst during her meeting with Gordon Wragg on 13 September 2023, Helen George did not specifically ask him about comments made by him in the meeting of 25 January 2023, Gordon Wragg had supplied a written response prior to that interview [575]. Within that document, he expressed concern that edited highlights or ‘snippets’ had been taken by the Claimant of their conversations to illustrate her point and that these comments needed to be seen in the context of the whole conversation. He also set out the concerns he held regarding the Claimant’s performance. 10 Helen George WS§15 11 Helen George WS§17 Claimant requests for additional equipment

[169]The Claimant continued to work from home and by 2 November 2023, she had sent Marilize du Prees an email requesting an ergonomic deeply padded chair with a back and head rest [407] Respect and Resolution Investigation Report

[170]By November 2023, Helen George had completed her report into the First Respect and Resolution (“First R&R Report”) [456-75] with her findings [462] and conclusion [472].

[171]Whilst the Claimant focussed in her questioning of Helen Geoge on a passage that had been ‘cut and pasted’ from the terms of reference [460], we drew no adverse findings from that as it simply set out why an independent investigation had been conducted; namely due to the breakdown in relationships between the Claimant and her line managers and the complexity of issues and concerns that this had been decided to be the most appropriate way forward.

[172]In relation to the breach of contract complaint, it was noted that the job description was ambiguous as it did not reflect who the Band 6 would be responsible for, an issue that Carol Seabourne had also informed Helen George had been unclear to her too. However, she also found that the Structure Diagrams created by Carol Seabourne had not given rise to concerns and that there was evidence to suggest that the Claimant was in agreement with such arrangements. This was a reasonable conclusion for her to have reached, as was the conclusion that the Claimant was aware of her responsibilities towards the call-handlers as a Band 6 nurse in the team.

[173]Likewise, in relation to her complaint regarding the MSc application, Helen George’s found that the Claimant was aware that her MSc. application would not be supported and that any application was without line management knowledge or support. Whilst there seemed to be no reason why the Claimant would not be at liberty to make an application to study, the discrete issue throughout this case was that the Claimant’s application was predicated on her desire to be supported financially and with time off in order to attend. Again, we found that these were reasonable conclusions to have reached at that time. Likewise, the findings regarding the ILM and the Claimant’s knowledge of alternative courses were also reasonable.

[174]In relation to the allegations of bullying, defamation and harassment, Helen George simply attached the copy of the Claimant’s 1:1 meeting with Mary Davies of 31 January 2024 and the written responses to the grievances raised that had been prepared by Gordon Wragg. The Tribunal found that Helen George made no positive findings in relation to the comments that had been made by Gordon Wragg at the meeting on 25 January 2023.

[175]In relation to the allegations of discrimination, this related to the application for the MSc and funding not being supported and again, we would repeat that the findings were reasonable, as were Helen George’s findings in relation to working from home arrangements.

[176]Little was stated about Netcall manipulation, rota falsification and the Claimant’s pay status other than:a. Netcall was an established reporting system and that concerns had been investigated by IT with monthly audit ensuring calls were distributed evenly;

b. there was no evidence to support rota falsification; and

c. reliance was placed on the 2019 correspondence regarding the Claimant’s pay status [419].

[177]Indeed, we were not presented with any evidence during these proceedings in relation to those matters which would undermine such conclusions.

[178]Helen George concluded that behaviours demonstrated by the Claimant towards colleagues may warrant review regarding adherence to the Nursing and Midwifery Council.

[179]The investigation report was finalised in the new year, following a slight delay caused by sickness absence and the Christmas break and a copy of the report was sent to Janice Cole-Williams, Assistant Director of Nursing on 13 February 2024. Workplace assessment and additional equipment

[180]On 10 April 2024, the Claimant had an assessment with the Respondent’s Manual Handling trainer who recommended:a. An additional large screen noting that space on the Claimant’s desk was limited;

b. That the Claimant had required a high back chair to meet her pre-existing needs/conditions;

c. Trying an ergonomic keyboard;

d. Regular breaks to support her well-being and pre-existing conditions

[181]The trainer had adjusted the Claimant’s chair but indicated that she did need a high back chair and a footstool.

[182]A copy of the assessment was sent to Deborah Harry who the Claimant was working for at that time [602]. Respect and Resolution Outcome meeting

[183]The Claimant was not sent a copy of the Respect and Resolution investigation report but on 20 March 2024 the Claimant was written to and asked to attend a meeting on 8 April 2024 to discuss her complaints [599].

[184]The meeting was conducted by Janice Cole-Williams, Assistant Director of Nursing who was accompanied by a member of HR, Julie Bassett. The Claimant attended but without her trade union representative.

[185]The meeting was recorded and a transcript was included in the Bundle [973]. We would say at this juncture that we accepted that both this transcript and indeed transcripts and notes of previous meetings (e.g. those conducted by Helen George) were likely to be a fairly accurate representations of what had been discussed at such meetings. If there were any differences between what had been said and the transcripts, we found that this was likely to be a product of human error and drew no inferences from such a difference.

[186]The meeting was lengthy and, by way of summary only, the discussions included the following:a. The Claimant confirming that she needed an ergonomic chair and an assessment was taking place later that week;

b. That she had a number of managers for aspects of her employment including leave, training, her PADR;

c. She spoke of the work that she had been undertaking for both Frances Howell and David Wastell indicating that this work had helped her. She did state that she considered that she was undertaking work at a Band 8 in analysing and auditing;

d. She complained that Carol Seabourne had by this time attended her home with the equipment that she required to work from home and that this had upset her. She indicated that she had asked for an ergonomic chair;

e. She challenged the notes of the meeting that Helen George had held with her on 6 September 2023 as part of the Respect and Resolution investigation and explained why she had not agreed to their content. She considered that the meeting that day was to address that September meeting which she considered ‘neglectful’.

[187]The remainder of the meeting dealt with the core aspects of the Claimant’s complaint and are incorporated into these written reasons by reference.

[188]By a letter dated 16 April 2024, Janice Cole-Williams provided the Claimant with her decision on the outcome to the Respect and Resolution complaint which again we incorporate by way of reference into these written reasons [615]. She set out her conclusions which, again by way of summary only, included the following. She did not uphold concerns:a. of breach of contract regarding working beyond her job description, in that she concluded that the duties outlined within the Claimant’s job description were in line with a nurse at Band 6 and that the investigation had not evidenced tasks over and above that which would constitute a job description review of re-banding;

b. regarding the refusal to support the Claimant’s application for an MSc., whilst acknowledging that this was disappointing for the Claimant; or

c. incorrect sick pay.

[189]Again, on the basis of our own findings, the Tribunal found that these were reasonable conclusions to have reached.

[190]In relation to the Netcall and rota manipulation, she requested further investigation.

[191]Finally, whilst the Claimant’s concerns were not upheld in relation to the allegations of bullying, defamation and harassment, whilst the PIP meeting and the Claimant’s communication style was discussed, the specific allegations as to what Gordon Wragg had said to the Claimant on that day, which now form the subject of the Claimant’s harassment related to race claim, were not addressed.

[192]Janice Cole-Williams concluded that it was evident from the investigation content and findings that the Claimant’s return to the WLSS would not be advisable given the irretrievable breakdown in relationships,

[193]We found that this was a reasonable conclusion to have reached, as was the recommendation that Claimant be deployed to an alternative area. Whilst we have also found that her consideration and outcome did not deal with the specific complaints regarding the comments made by Gordon Wragg on 25 January 2023, taking into account the breadth of the Claimant’s complaints (as set out in her Respect and Resolution complaint) and the focus of the Claimant’s complaints which, in the Tribunal’s view was very much on the MSc application and the lack of support, this was not entirely surprising. It was not a significant issue at that time albeit it has become a significant issue in these proceedings although the Claimant had clearly included this as part of her grievance. Furthermore, we did not find that the failure to expressly deal with the specific comments was unreasonable for the same reasons and did not undermine the reasonableness of the conclusions on the breakdown in the relationship or the need to redeploy the Claimant out of WLSS.

[194]Due concerns that the Claimant had raised regarding her health, Jancie ColeWilliams also recommended that a further occupational health assessment should be undertake which would assist in exploring redeployment options [646]. The Claimant was provided with a right of appeal.

[195]It was this conclusion that started the events that eventually led to the termination of employment. In light of her decision, she directed that Mandy Davies, Assistant Director of Nursing and Quality Improvement, meet with the Claimant and discuss her redeployment with the consequences being that if redeployment could not be found, the Claimant’s employment would end. 2 May 2024 Meeting

[196]By the date of this outcome, the Claimant had, since August 2023 been temporarily redeployed formally being managed by Marilize du Preez (in terms of sickness and annual leave absence etc.).

[197]Whilst we accepted that Carol Seabourne and Mary Davies were still recorded on the Respondent’s personnel system, ECM, as being responsible for the line management of the Claimant, we also found it likely that the Claimant was aware that they were not responsible for line managing her at this time. We also accepted that during the period of redeployment, the Claimant also had to report to and liaise with a number of other managers including Lesley Jones, Debora Harry (Lead Nurse,) Frances Howells (Head of Infection,) and David Wastell (Senior Nurse Resuscitation,) doing some work on audit and data entry dependent on the ad hoc pieces of work that she was undertaking for them.

[198]Whilst live evidence was not heard from either Frances Howells or David Wastell, the Claimant did not persuade us on the evidence that she had given that at any time had she been undertaking work that was above and outside of a Band 6 role, a conclusion that Janice Cole-Williams had reached. We accepted her evidence on this point.

[199]Indeed, there also appeared to be no dispute from the Claimant that during this time the Claimant found time to enrol and start on her MSc course and also sign up for additional work with an agency.

[200]We therefore did not find that the Claimant’s workload during this period was too heavy, either quantitively (in terms of the amount of work) or quantitatively (in terms that she was not required to undertake work above her Band 6 grade).

[201]On 2 May 2024, a meeting was arranged for the Claimant with Mandy Davies and Julie Bassett and the Claimant was informed that a further OH would need to be made [646]. Whilst no notes of that meeting were contained in the Bundle, we were taken to the notes prepared by Mandy Davies following an email that the Claimant had sent later that day to Sharon Daniel, Executive Director of Nursing, Quality and Patient Experience with her concerns regarding the meeting [653]. At that meeting, the Claimant was upset that reference had been made to the PIP that had been put in place in January 2023. With regard to alternative employment, the Claimant’s requirements for adjustments were discussed and we found that it was likely that the Claimant was informed that further occupational health recommendations were needed.

[202]Essentially, the Claimant was unhappy with Mandy Davies’ comments at that meeting and had complained setting out that she had been accused of fraud, threatened with referral to the NMC amounting to harassment and had defamed her [657]. She stated that she felt bullied by HR.

[203]We considered the evidence that was given by Mandy Davies. Whilst we accepted her evidence that she did not have any involvement in the decisionmaking or the outcome of the Respect and Resolution, we also found that by the date of her involvement she too had concluded that the relationship between the Claimant and WLSS had broken down, that she accepted the decision from Janice Cole-Williams that the Claimant would need to be redeployed and that if she could not be redeployed, then her employment would be terminated. Indeed, we also found that she had personally considered the relationship had broken down within WLSS as early as January 2023 and that this formed part of the reason why she had considered it appropriate for an independent investigation into the Claimant’s complaints. First Respect and Resolution Appeal

[204]Prior to that meeting with Mandy Davies and on 29 April 2024, the Claimant had appealed the outcome of the First Respect and Resolution Complaint of by way of letter [637]. Her nine-page letter set out her grounds of appeal which again is incorporated by way of reference. The Claimant broadly reiterated her First Respect and Resolution complaint.

[205]She again repeated that at the January 2023 PIP meeting with Carol Seabourne and Gordon Wragg it had been noted that she “Continues to lead using a dictatorial style’’ and had said “You behave like a Russian a German” , albeit again she did not indicate that she believed that this was harassment related to race or any form of discrimination related to race [639]. Again, despite both being referred to in the appeal documentation, they were not significant elements of the appeal.

[206]The appeal hearing took place on 15 May 2024, before Sharon Daniel, Director of Nursing, who was supported by Lisa Hughes, Assistant Head of Workforce. A copy of the transcript was included in the Bundle which we accepted was likely to be a fairly accurate record of the matters discussed [1007].

[207]Whilst undated, the outcome letter from the appeal was sent to the Claimant within the following weeks and likely buy 28 May 2024 when the Claimant contacted ACAS on her First Claim [687, 17].

[208]The appeal was not upheld.

[209]Sharon Daniel did specifically deal with the comments that had been said on 25 January 2023. She found that as there were no witnesses to support either version of events, there was insufficient information for her to make a determination on the point [688]. This was a perplexing conclusion to have reached in our view as it did not appear that Gordon Wragg had denied such comments within his written statement for the investigation, Carol Seabourne had been present so she had been a witness and that the Claimant’s management style had been described as ‘dictatorial’, had been recorded in writing within the PIP.

[210]Despite that however, we did still accept that her conclusion on the PIP more generally, that the managers had authority to address matters of concern with the Claimant, was a reasonable one to have reached and was not undermined by her failure to make positive conclusions on what had been said at the meeting on 25 January 2023.

[211]Likewise, we found that her conclusions on the remaining elements of the appeal to be reasonable ones on the evidence before her, as was the conclusion that the Claimant’s relationship with the WLSS had broken down and that it was not feasible for the Claimant to return to her substantive post there [693].

[212]The Claimant’s additional concerns regarding her meeting of 2 May 2024 with Mandy Davies were also dealt with by way of letter dated 5 June 2024 by Sharon Daniel who did not uphold her concerns [708]. By this point, it appeared to the Tribunal that Mandy Davies was concerned that the Claimant’s working relationship her was also breaking down as a result of the Claimant’s reaction to Mandy Davies’ management of her.

[213]On 28 May 2024, the Claimant entered into early conciliation with ACAS in respect of the First Claim [17].

[214]By this date, the Claimant’s relationship with Marilize du Preez was also appearing to be breaking down with suggestions that the Claimant was refusing to meet with Marilize du Preez in connection with a work plan and the referral to OH, part of the action plan out in place by Sharon Daviel to ensure that the Claimant’s health needs were met moving forward.

[215]As a result on 30 May 2023, Lisa Hughes, Assistant Head of Workforce emailed the Claimant stating that she understood that the Claimant was refusing to meet Marilize due Preez and confirmed that a meeting with herself and Mandy Davies would be arranged to discuss redeployment [725].

[216]The Claimant responded confirming that she was not refusing to meet, but that she had lost trust and confidence in Marilize du Preez in that she had shown no support or compassion towards her. She again raised concerns regarding funding for her MSc and questioned whether she should be managing her as she had been involved in her grievance. She considered it a conflict for Marilize du Preez and Mandy Davies to manager her as they had been involved in her Respect and Resolution despite the outcome of the appeal [724].

[217]A meeting was arranged via Teams for 19 June 2024 and the Claimant was asked to return the risk assessment forms prior to the meeting [723]. She did not.

[218]On 3 June 2024, Carol Seabourne requested that a Premium High Backed Operator chair be delivered to the Respondent’s premises at Hafan Derwen, a request that was resubmitted on 12 June 2024 [816]. Fifth and Final Occupational Health Report

[219]Marilize Du Preez made a management OH referral for the Claimant and that was conducted by a Dr Alex Mijares by telephone on the same date.

[220]Their report of 17 June 2024 was provided to the Respondent (Fifth Occupational Report )[726] and reflected that the Claimant spoke of stress at work and her underlying Gynaecological Condition and that she needed regular breaks to exercise and empty her bladder. The Claimant had also reported that being able to work from home had a ‘paramount beneficial impact on her ability to manager her symptoms’.

[221]The report concluded that the Claimant may be fit to remain in work provided management was in a position to support the recommendations and concluded that the situation was a medical problem that was a consequence of work – a medicalisation of what was otherwise a managerial issue. They recommended exercising an active management approach and suggested that management may consider the following adjustments:a. Flexibility in terms of sickness absence triggers and working hours and shifts with regular breaks;

b. Time to attend appointments with doctors and therapists and that whether this was time in lieu or annual leave etc was a managerial decision;

c. A phased return to work after periods of sickness absence;

d. Regular meetings with management;

e. That a risk assessment should be carried out and recorded if and when concerns were raised during such meetings.

[222]They suggested that the Claimant refrain from heavy lifting etc, and recommended that management may wish to consider allowing the Claimant to work remotely from home as much as reasonably possible.

[223]Whilst a copy of the referral letter was not included in the Bundle, it was evident that the OH adviser was asked if any reasonable adjustments were needed to support the Claimant to identify suitable roles for redeployment. It was unclear what information the OH adviser had been provided about the outcome of the Respect and Resolution process i.e. whether they had been aware that the outcome was that the Claimant would be redeployed from her role in the WLSS. We found that it was likely that the OH adviser had not understood that the Claimant would no longer be continuing in her role at the WLSS as they spoke of redeployment only if the adjustments recommended could not be accommodated. Meeting on 19 June 2024

[224]On 19 June 2024, the Claimant met with Mandy Davies and Lisa Hughes as arranged, with confirmation at that meeting that the Claimant’s line management was being changed to Mandy Davies [1032][752].

[225]On 20 June 2024, early conciliation ended [17] and on 24 June 2024 the Claimant filed her first employment tribunal claim (“First Claim”) [18].

[226]Following the meeting of 19 June 2024 and by way of letter dated 1 July 2024, the Claimant was sent a letter summarising points of the meeting and its outcome [789]. In summary, this included that:a. The Claimant was being placed on the redeployment register given her relationship with staff at the WLSS having broken down and that it was untenable for her to remain in her substantive position there;

b. WLSS staff had declined to mediate and therefore redeployment would continue;

c. The Claimant had indicated that she had not been willing or in agreement to engage in the redeployment process but that she had expressed an interest in two alternative positions.

[227]The Claimant was informed that there was a 12 week time limit on the redeployment register that had commenced on 20 June 2024 and that if no alternative employment was secured within such time, her employment would be terminated for ‘some other substantial reason’ on 11 September 2024.

[228]The Claimant’s PIP, that had been instigated in January 2023 had been again discussed, and the Claimant was advised that areas of effective communication still needed support and improvement and that measures and support would be taken. The Claimant considered that in raising the January 2023 PIP again at this meeting, time began running again for her to issue and employment claim in the Tribunal.

[229]A further meeting was arranged with the Claimant and Mandy Davies on 9 July 2024 to discuss redeployment and the PIP. She was also warned that aspects of her own conduct would also be discussed including attendance at study leave sessions without management approval, the continued application for study leave and pay for the MSc that she had commenced and her accusations of fraud by the WLSS team. The Claimant was advised that a further OH referral had been made (for 3 July 2024) [791]

[230]On 9 July 2024, Mandy Davies, accompanied by Lisa Hughes of HR met with the Claimant [794,1048] and on 15 July 2024, Lisa Hughes wrote to the Claimant setting out a summary of the discussion [797].

[231]This letter referenced that:a. The Claimant’s employment would terminate if she was unable to secure alternative roles through the redeployment process

b. The Fifth OH Report which the Claimant had just given permission to be released but which had not been seen by the Respondent

c. The adjustments that the Claimant had indicated she needed that included a private personal bathroom

d. The requirement for the Claimant to continue with the PIP instigated in January 2023, but adjusted to reflect that she was no longer working in WLSS and adjustments that the Claimant might require;

e. An acknowledgment that the Claimant considered reference to her communication with staff as false and defamatory.

[232]The Claimant was invited to a further meeting on 24 July 2024. Second Respect and Resolution

[233]The Claimant was unhappy at both the meeting and the letter from Lisa Hughes and on 17 July 2024, by way of email the Claimant submitted a further Respect and Resolution complaint (“Second Respect and Resolution”) [801]. In that complaint, the Claimant raised the following concerns:a. Continuous harassment and defamation, disability discrimination, victimisation;

b. Continuous breach of contract;

c. that Mandy Davies and Lisa Hughes were using their positions of power to trigger and exacerbate her conditions.

[234]On 21 August 2024, the Claimant met with Rebecca Noyce (Assistant Head of Workforce) as part of the Second Respect and Resolution [1063].

[235]In that meeting the Claimant indicated that she went off sick with stress referencing the regular meetings she had been having with managers and complaining that she had not been supposed to line manage any staff. She spoke of her MSc and how management had refused to give her references for that Masters’ course. She complained that Marilize du Preez had delayed her return to work in August 2023 and that her pay had reduced to half pay. She spoke of the work she had been undertaking since August 2024. She said she wanted to return to her substantive WLSS role and that she had not agreed to redeployment which was a term of the Redeployment Policy.

[236]The Claimant indicated that the PIP was defamatory and untrue and that it was unfair of Mandy Davies to have raised the PIP in meetings with her. She complained of her lack of pay progression and of the redeployment that had been ongoing and the adjustments required to return to work.

[237]On 21 August 2024, the Claimant emailed HR having just received delivery of the chair, laptop riser and ergonomic keyboard. She considered that it was the wrong chair as it was a standard office chair and not an ergonomic chair that had been recommended. She also complained that the laptop riser was too short and that she needed a higher one or an extra monitor [862]. Redeployment progress

[238]In the interim, the Claimant sought consideration for alternative roles outside of WLSS, but was not considered suitable for any. These were as follows:a. On 3 July 2024, the Claimant was interviewed for the post of OH Nurse;

b. On 5 August 2024, the Claimant applied for consideration of Senior Patient Safety and Assurance Officer [819]

c. On 21 August 2024, the Claimant expressed an interest in the role of Professional and Practice Development Nurse (Band 6) [874]

d. On 22 August 2024, the Claimant sought consideration as a Coaching Coordinator [867]; and

e. On 27 August 2024, the Claimant expressed an interest in OD Practitioner: Talent Management and Succession Planning [871]. Termination of employment

[239]On 14 August 2024, the Claimant met with Ceri Griffiths, Interim Assistant Director of Nursing , a meeting that was reflected in the letter sent by email of 19 August 2024 from Ceri Griffiths, in which the Claimant was given formal notice of the termination of her employment with effect from 26 September 2024 with pay in lieu of 6 weeks’ notice [859, 860] On 19 September 2024, the forms confirming termination were completed [884].

[240]The letter reflected the steps that had taken by the Claimant to obtain alternative work but that unfortunately the Claimant had either failed to meet the essential criteria for the role and that the Claimant had indicated that her Gynaecological Condition limited her in terms of ward-based nursing. The Claimant had also confirmed that she was unable to accept a lower banded nursing or administration / clerical role that might enable her to continue homeworking. Ceri Griffiths confirmed that her employment would be terminated on the basis of ‘some other substantial reason’ due to the breakdown in the relationship with employees in the working team. She was provided with a right of appeal.

[241]By a letter dated 30 August 2024, the Claimant appealed her dismissal. Within that appeal letter the Claimant complained of the following:a. That the dismissal was unfair, a continuous breach of contract, discrimination and victimisation;

b. That Mandy Davies and Lisa Hughes had continued a campaign of harassment, discrimination and victimisation and defamation as reflected in her Second Respect and Resolution Complaint;

c. The Redeployment Policy had been breached as she had been placed on the redeployment register without her agreement;

d. Despite that, she had expressed an interest in five roles but that these had been already advertised before being offered to employees on the redeployment register; and

e. The interviews that she had had been ‘humiliating’ with the post of Professional and Practice Development Nurse not accommodating her disability. Second Respect and Resolution Outcome

[242]On 11 October 2024, the Claimant entered into a second early conciliation process that ended on 29 October 2024 [51].

[243]By way of letter dated 17 October 2024, the outcome of the Second Respect and Resolution complaint was sent to the Claimant by Kay Isaacs [894]. In that letter, the following was addressed:a. The provision of equipment and reasonable adjustments, which was not upheld;

b. The Claimant’s PIP, where it was confirmed that this had already been addressed as part of the First Respect and Resolution and would not be revisited as part of this second complaint ;

c. The Claimant’s concerns that her professional registration had been compromised was not upheld as it was determined that the Claimant had been able to undertake her revalidation;

d. Mandy Davies’ approach to the Claimant’s mental health, where it was noted that the meeting on 9 July 2024 had been difficult but that she fund that meetings had been undertaken as sensitively as possible and the complaint was not upheld;

e. Her concerns that the Redeployment Policy had been breached was not considered having been part of the appeal from the First Respect and Resolution;

f. Likewise, the WLSS had not provided her with an employment reference had also been considered as part of the first complaint;

g. Her allegation that Lisa Hughes had shouted at her on 9 July 2024, was not upheld but it was acknowledged that this was a difficult meeting;

h. That her pay progression had been deferred to August 2025 was partially upheld in that the pay step review meeting had not been complied with.

[244]In terms of resolution, it was confirmed that a return to WLSS would not be considered as an outcome to the Second Respect and Resolution as it had formed part of the first grievance, again confirming that mediation was not possible as it had not been an acceptable option from members of the WLSS team. She confirmed that arrangements were in place for her pay progression to be reinstated and arrangements were made for outstanding monies to be paid to the Claimant.

[245]The Claimant was provided with a right of appeal on the outcome of the Second Respect and Resolution complaint. Appeal against dismissal

[246]On 24 October 2024, Keith Jones, Director of Secondary Care, chaired the hearing of the Claimant’s appeal against termination. He was provided with support by Stephen Morgan, Deputy Director of Workforce. A transcript of that hearing was included in the Bundle [1103].

[247]Mandy Davies presented the management case against the appeal and she was supported by Lisa Hughes and i preparation for that appeal, Mandy Davies had prepared and submitted a Management Statement of case [1407].

[248]After the hearing, Keith Jones did not provide his response within 7 days as indicated by the Respect and Resolution Policy. Rather, he determined that he would need to await the outcome of the Claimant’s appeal against the outcome of the Second Respect and Resolution complaint that the Claimant had submitted on 4 November 2024 as her concerns on victimisation and harassment were still ongoing. Whilst outside the policy time guidelines, we accepted that this was a reasonable response and did not lead to unfairness for the Claimant.

[249]Meanwhile, the Claimant:a. Filed her Second Claim on 5 November 2024 [52]; and

b. continued applying for roles, on 17 November 2024, applying for a job title Lead Nurse, Health Protection and Immunisation [903] and on 3 December 2024, for a job title Internal Audit Manager [904].

[250]In the interim, Keith Jones directed that Steve Morgan approach various current managers from WLSS, including Carol Seabourne, Marilize du Preez and Mandy Davies regarding the breakdown in working relationships. Subsequently, Steven Morgan forwarded to Keith Jones the emails he had received from each [1139]. He confirmed that he too considered that none were prepared to mediate with the Claimant and that in his view if the Claimant were to return to WLSS, there would be a significant impact on patient care particularly as Carol Seabourne had raised concerns that staff had felt unable to approach the Claimant.

[251]Keith Jones was satisfied that most staff still worked at WLSS and weighed up how practical it was for the Claimant to return. He concluded that it was not; that the Claimant still did not appreciate that staff had raised concerns about her behaviour towards them and that there was no prospects of recovery of those relationships; that the breakdown remained and was fundamental on the basis of the evidence before him.

[252]In relation to the Redeployment Policy, he accepted that the Claimant had wanted to return to WLSS but had also been clear that she cold not work with either Carol Seabourne or Mandy Davies, both senior managers within WLSS that the Claimant would have needed to communicate with had she stayed within the team.

[253]He accepted that the Claimant had not signed the Redeployment Policy form but concluded that the Respondent had notwithstanding that acted in good faith and had applied the principles of the policy and that as a return to the WLSS was not a practical consideration, redeployment had allowed the Claimant time and opportunity to secure and alternative role and that she had actively participated. He concluded that had this not arisen then the Claimant’s employment could have been terminated even sooner. We found that this was a reasonable conclusion to have reached in the circumstances and was a reasonable response.

[254]He considered the alternative roles that the Claimant had applied for and took into account the Claimant’s requirement that she worked from home or required a private bathroom with shower facilities. He was satisfied that the Claimant either did not meet the essential criteria of the alternative roles.

[255]He concluded that the decision to dismiss the Claimant followed what he considered was a fair and reasonable process.

[256]He confirmed his decision by way of letter dated 13 January 2025, the reason for the dismissal being for ‘some other substantial reason’ and as a result of a breakdown in working relationships [913]. Appeal on outcome of Second Respect and Resolution

[257]As indicated, on 4 November 2024, the Claimant had appealed the decision on her Second Respect and Resolution Complaint.

[258]On 5 November 2024 the Claimant filed her Second Claim [52].

[259]That appeal hearing took place on 6 December 2024 before Alwena Hughes Moakes. who was supported by Rachel Dolling, Senior Workforce Manager. Again, the transcript of the hearing was in the Bundle and we accepted that this was likely and accurate record of the matters discussed [1148].

[260]On 16 December 2024, the Claimant was sent the letter confirming the outcome to the Second Respect and Resolution which upheld the original decision [905]. Submissions

[261]The parties provided written submissions at the completion of the oral evidence The Tribunal will not attempt to summarise those submissions, but incorporates them by reference

[262]The Respondent’s Written Submissions ran to some 29 pages and the Claimant’s Written Submissions ran to some 8 pages and references to relevant case law were considered.

[263]Oral submissions were also taken from both with the Claimant indicating that the relationship had broken down when Gordon Wragg had said that she had behaved like a Russian or German and followed that comment by referring to a dictatorial style of management which the Claimant indicated she found very upsetting. When asked why she had said she had found such comment hostile and related to her Romanian background, she indicated that she could say no more than what she had included in her statement and that she had felt that he had been targeting her.

[264]She complained of the delay in permitting her to return to work and the number of managers that she had felt that she had in the August 2023- September 2024 period. The Claimant indicated that when her PIP was mentioned she became distressed and that she felt that each time she was ‘travelling back’ to the 25 January 2023 and the comments made

[265]With regard to time limits, the Claimant submitted that all acts of discrimination were continuous and each time the PIP was mentioned the time was reactivated. The Claimant also submitted that the time that she was on sick should be discounted and the unreasonable delay in the grievance.

[266]Within her written submissions, the Claimant had provided a number of cases but was unable to provide citations or references for such cases and had not provided copies. Despite some efforts by Respondent counsel and the Tribunal to find some of the cases, this proved unfruitful. The Claimant was unable to provide references and indicated that she had researched through an AI applications, such as ChatGPT and was unable to provide references or give an indication of how they were relevant. She was informed that unless she was able to do so, they would not be relied upon and were not.

Relevant Law

[267]We have provided a brief reference to the relevant legal principles that is applicable in these complaints and the references to the various relevant case authority in the written submissions are incorporated by reference also. Disability

[268]Equality Act 2010 defines a disabled person as a person who has a disability (s.6(2)) and s.6(1) provides that a person has a disability if he or she has a ‘physical or mental impairment’ which has a ‘substantial and long term adverse effect on his or her ability to carry out normal day to day activities.

[269]Supplementary provisions for determining whether a person has a disability is contained in Part 1 Sch 1 EqA 2010.

[270]Furthermore, a non-exhaustive list of how the effects of an impairment might manifest themselves in relation to these capacities is contained in the Appendix to the Guidance on matters to be taken into account in determining questions relating to the definition of disability. Whilst the guidance does not impose any legal obligations in itself, tribunals must take account of it where they consider it to be relevant,

[271]The burden of proof is on the claimant to show she or she satisfied this definition and the time at which to assess disability is the date of the alleged discriminatory act. This is also the material time when determining whether the impairment has a long-term effect. Direct Discrimination – s13 Equality Act 2010

[272]Section 13(1) provides that a person(a) (A) discriminates against another person

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

[273]The provisions are designed to combat discrimination and it is not possible to infer unlawful discrimination merely from the fact that an employer has acted unreasonably: Glasgow City Council v Zafar

[1998] ICR 120

and in Nagarajan v London Regional Transport and others

[1999] IRLR 527

HL, the House of Lords held that the Tribunal must consider the reason why the less favourable treatment has occurred or, why the Claimant received less favourable treatment. The concept of treating someone “less favourably” inherently requires some form of comparison. Section 23 provides that when comparing cases for the purpose of Section 13 “there must be no material difference between the circumstances related to each case.”

[274]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

Lord Scott noted that this means, in most cases, the tribunal should consider how the Claimant would have been treated if they had not had the protected characteristic. This is often referred to as the hypothetical comparator.

[275]It is well established that where the treatment of which the claimant complains is not overtly because of the protected characteristic, the key question is the “reason why” the decision or action of the respondent was taken. This involves consideration of the mental processes, conscious or subconscious, of the individual(s) responsible; see the decision of the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] IRLR 884

and the authorities discussed at paragraphs 31- 37. The protected characteristic must have had at least a material influence on the decision in question. Unfair treatment by itself is not discriminatory; what needs to be shown in a direct discrimination claim is that there is worse treatment than that given to an appropriate comparator; Bahl v Law Society

2004 IRLR 799

. Harassment - s.26 EqA 2010

[276]Section 26 of the Equality Act defines harassment under the Act as follows: (1) A person (A) harasses another (B) if –a. A engages in unwanted conduct related to a relevant protected characteristic, and

b. the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B

[277]Section 26(4) EqA 2010 provides that in deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account –a. the perception of B;

b. the circumstances of the case; and

c. whether it is reasonable for the conduct to have that effect.

[278]EHRC Code Part 7 provides that unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. The broad nature of the ‘related to’ element means that a finding about what is the motivation of the individual is not the only possible route to the conclusion that the conduct in question is related to the particular characteristic but nevertheless there must still be some feature of the factual matrix identified by the Tribunal which properly leads it to the conclusion that the conduct is related to the protected characteristic and the Tribunal must articulate what those features are (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

)

[279]In Grant v HM Land Registry

2011 IRLR 748

the Court of Appeal again reiterated that when assessing the effect of a remark, the context in which it is given is highly material. An Employment Tribunal should not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive” as they are an important control to prevent trivial acts causing minor upset being caught up in the concept of harassment.

[280]The phrase “related to” a protected characteristic encompasses conduct associated with the protected characteristic (of sex in that case) even if not caused by it; Equal Opportunities Commission v Secretary of State for Trade and Industry

[2007] ICR 1234

. Failure to make reasonable adjustments –s20 and s21 EqA 2010

[281]The duty comprises three requirements and we are looking at the first requirement only which is a 282. ‘requirement where a provision, criterion or practice puts 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’ (s20(3) EqA 2010)

[283]Guidance on the approach to be taken in reasonable adjustment claims has been given by the EAT in the Environment Agency v Rowan

2008 ICR 218

which has stated that an Employment Tribunal must consider the PCP applied on behalf of the employer; then identity if appropriate of a non-disabled comparator; and the nature and effect of the substantial disadvantage suffered by it.

[284]In HM Prison Services v Johnson

2007 IRLR 951

Mr Justice Underhill stated that it was necessary for a Tribunal to identify with some particularity what ‘step’ it is that the employer has said to have failed to take in relation to the employee.

[285]The onus is on the claimant to identify in broad terms at least the nature of the adjustment or step that would ameliorate the disadvantage. The burden then shifts to the respondent to show the disadvantage would not have been eliminated or reduced for the proposed adjustment and/or that the adjustment was not a reasonable one. Discrimination arising from disability – s15 EqA 2010

[286]Discrimination arising from disability is defined in s15 EqA 2010:(1) 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.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[287]Section 15(2) applies only if the employer did not know (and could not reasonably have been expected to know) about the disability itself: ignorance of the consequences of the disability is not sufficient to disapply s15(1).

[288]If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified (EHRC Code, para 5.21).]

[289]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.

[290]When considering justification, 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. Victimisation – s27 EqA 2010

[291]Under s27(1) EqA 2010, victimisation occurs when a person(a) (A) subjects another person

(b) (B) to a detriment because B has done a protected act, or because A believes B had done (or may do) a protected act. Bringing proceedings which include a claim under the EqA 2010 is a ‘protected act’. Burden of Proof

[292]Section 136 EqA 2010 provides that: (2) If there are facts from which the court (which includes a Tribunal) could decide, in the absence of any other explanation, that a person (A) contravenes 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 provisions. 56.

[293]Guidance as to the application of the burden of proof was given by the Court of Appeal in Igen v Wong

2005 IRLR 258

(Igen) as refined in Madarassy v Nomura International Plc

[2007] ICR 867

. The Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the respondent. They are not, without more, sufficient material from which a Tribunal could properly conclude that, on the balance of probabilities, the respondent had committed an act of discrimination. The Court of Appeal explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd

2003 ICR 1205

, EAT.

[294]Madarassy v Nomura International plc, Lord Justice Mummery stressed that judicial guidance is no substitute for applying the statutory language, and that a tribunal will not err in law simply by failing to recite the Igen guidance in its decision or by failing to work through the guidance paragraph by paragraph. Time

[295]Section 123 EqA 2010 sets the time limit for bringing any complaint in contravention of Part 5 of the EqA 2010 and provides that proceedings may not be brought after the end of:a. The period of three months starting with the date of the act to which the complaint relates; or

b. Such other period as the employment tribunal thinks just and equitable.

[296]For the purposes of s.123 EqA 2010, conduct extending over a period is to be treated as done at the end of the period and a failure to do something is to be treated as occurring when the person in question decided on it (s.123 EqA 2010). Further s.124(4) EqA 2010 provides that in the absence of evidence to the contrary, a person is to be taken to decide on failure to do something:a. When a person does an act inconsistent with doing it, or

b. If a person does no inconsistent act, on the expiry of the period in which a person might reasonably have been expected to do it. Ordinary unfair dismissal – s98 ERA 1996

[297]With unfair dismissal, we first have to consider the reason for the dismissal and whether it was a potentially fair reason for the dismissal.

[298]In this regard, the Respondent bears the burden of proving on balance of probabilities, that the claimant was dismissed for one of the potentially fair reason set out in section 98(2) Employment Rights Act 1996. The Respondent states that the Claimant was dismissed for some other substantial reason which was a potentially fair reason for dismissal and was capable of justifying the dismissal of an employee holding the position which the employee held.

[299]After considering the reason for dismissal, on the presumption that we identified a potentially fair reason for dismissal, we then have to consider whether the application of that reason in the dismissal for the Claimant in the circumstances was fair and reasonable in the circumstances (including the respondent’s size and administrative resources). This should be determined in accordance with equity and the substantial merits of the case and the burden of proof in this regard is neutral. Unlawful deductions

[300]The following provisions of the ERA 1996 are relevant: 13 Right not to suffer unauthorised deductions(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction 14 Excepted deductions (1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a) an overpayment of wages, or (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment,made (for any reason) by the employer to the worker. [. . .] 23 Complaints to employment tribunals (1) A worker may present a complaint to an employment tribunal— (a)that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).

(2) Subject to subsection (4), an [F1employment tribunal] shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

[301]Unlawful deductions claims must be brought with the time limits set out in s.23(2) and s.23(3) ERA 1996 which provide that (subject to s.23(4) ERA 1996) an Employment Tribunal shall not consider a complaint under section 23 ERA 1996 unless it is presented within three months beginning with the date of payment of the wages from which the deduction was made and where the complaint is in respect of a series of deductions , the last deduction. Time may be extended where the Tribunal is satisfied that it was not reasonably practicable for a complaint under s.23 ERA 1996 to be presented before the end of the relevant period of three months if it is presented within such further period as the tribunal considers reasonable. There is a further limitation within s.23(4) ERA 1996 which provides that the Tribunal is not to consider so much of a complaint as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. ending with the date of presentation of the complaint Conclusions Harassment related to race - s.26 EqA 2010

Conclusions

[302]The Tribunal had made positive findings that on 25 January 2023 Gordon Wragg had said to the Claimant “You behave like a Russian or German” and had described her management style as “dictatorial”, something that had been repeated within the written PIP.

[303]The Tribunal further found that such comments were unwanted by the Claimant, she reacted adversely them both considering them to have negative connotations and ones which she did not accept. She considered the comments to be ‘hostile’.

[304]Whilst in isolation we did not consider that being described as ‘dictatorial’ could be said to be related to race, comparing her behaviour to national stereotypes of Russian and Germans was, in the Tribunal’s view, self-evidently related to race, albeit not the Claimant’s race or nationality. As such, speaking of having a ‘dictatorial’ style of management in the same context as comparing her behaviour to Russian or a German, could also be viewed as being related to race.

[305]We considered whether such comments had the purpose of creating the relevant statutory environment for the Claimant. Whilst we concluded that management was frustrated by the Claimant’s behaviour by this point, we did accept the evidence of Carol Seabourne that Gordon Wragge was seeking to explain different cultural approaches rather than offend the Claimant. We did not conclude that the purpose of the comments were to create the statutory environment for the Claimant.

[306]However, when considering harassment it is not necessary for the purpose of the relevant conduct to harass, only that the effect was to create the statutory environment.

[307]We did view reference to a ‘dictatorial’ style of management as part of the circumstances of the case in concluding that it was reasonable for both comments to be considered related to race and to have the required effect on the Claimant. We were persuaded that the effect of the comment, comparing the Claimant to those national stereotypes of German or Russian, and in turn referencing her management style as ‘dictatorial’ created an offensive environment for her; that she felt that it was a derogatory reference to her Romanian heritage, that such remarks amounted to unwanted conduct.

[308]We placed no weight on the fact that the Claimant had included the statutory elements of s.26 EqA 2010 into her statement. This was not a relevant consideration and did not undermine our conclusions.

[309]Whilst we did not accept that the Claimant had exaggerated the remark has had been submitted by the Respondent, we did view the comment in the context of how it had been raised by her in her Respect and Resolution complaint, which was that it was just one small part of a wider grievance, a grievance that focussed on the failure to support her in a funded MSc. and had not been specifically linked to her race.

[310]When assessing the effect of a remark, we know that the context in which it is given is highly material and we should guard against trivial acts causing minor upset being caught up in the concept of harassment.

[311]However, in the context of this PIP discussion and accepting the Claimant’s evidence that such comments had impacted on her that day and in turn her ability to recall anything else about that meeting, we did conclude that the comments made by Gordon Wragge on 25 January 2023 did amount to unlawful harassment related to race contrary to s.26 Equality Act 2010 in that the words created a hostile environment for the Claimant12.

[312]However, we further considered that by the date that the First Claim had been filed on 24 June 2024, that comment had been made 17 months earlier and any complaint was significantly out of time. We considered separately whether it was just and equitable to extend that time and in turn whether we had jurisdiction to consider such a complaint.

[313]We considered whether the complaint was made within the time limit in section123 of the Equality Act 2010 and if not, why were the complaint had not been made to the Tribunal in time. The Claimant had offered no evidence for why her complaints had not been made until 24 June 2024.

[314]The Claimant had been told to listen carefully to the Respondent’s submissions on the issue and she had also had the benefit of the Respondent’s written closing submissions.

[315]In submissions, when asked to specifically address us on the time point, she had simply referred to the fact that the First Respect and Resolution had taken so long and that time limits restarted every time the PIP had been mentioned. She 12 CWS§16 did not deny that she was aware of time limits for bringing complaints under the EqA 2010, and we concluded that having brought tribunal proceedings previously (a matter that was not in dispute,) the Claimant would have been aware of such time limits. There was also no dispute that for a considerable portion of the time in question and from February 2023 the Claimant had also been represented by her union.

[316]We concluded that the remarks made on 25 January 2023 was not conduct extending over a period but a one-off act. That the ‘dictatorial’ style of management had been referenced in the written PIP which was referred to by subsequent managers when the Claimant returned to work, did not in our view, make this a ‘continuing act’, albeit it might have had continuing consequences for the Claimant as she felt that references to the PIP took her back to the January 2023 meeting. We did not consider that referencing the PIP formed any form of connected conduct that could have made this any form of continuing act.

[317]The early conciliation that had been entered into had not commenced until 28 May 2024, over a year after the primary limitation period had ended and was therefore not a factor in determining primary time limits.

[318]The Tribunal decided that the s.26 EqA 2010 harassment claim had not been made to the Tribunal within three months of the act to which the complaint relates. The comments had been made on 25 January 2023 such that any complaint should have been brought by 24 April 2023.

[319]We turned our minds to considering whether the claim had been made within a further period that the Tribunal thought was just and equitable.

[320]We considered Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, CA, in which Court of Appeal stated that when employment tribunals consider exercising the discretion under what is now S.123(1)(b) EqA, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.’ noting that this did not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds.

[321]We decided whether we should exercise our discretion to allow this out-of-time claim to proceed, noting that the checklist contained in s.33 of the Limitation Act 1980 (as modified by the EAT in British Coal Corporation v Keeble) whilst a ‘valuable reminder’ of what may be taken into account, their relevance depended on the facts of the individual cases, and tribunals do not need to consider all the factors in each and every case.

[322]We acknowledged that the fact that a claimant has awaited the outcome of his or her employer’s internal grievance procedures before making a claim is just one matter to be taken into account by an employment tribunal in considering whether to extend the time limit for making a claim and that there is no principle of law that pursuing an internal grievance process will automatically render it just and equitable to extend time and that an ongoing internal process was just one factor to be balanced with all other relevant factors.

[323]The complaint regarding the 25 January 2023 remarks had been included in the First Respect and Resolution, albeit not couched in terms of race discrimination. This was not particularly relevant as the facts plainly raised Equality Act 2010 issues: she did refer to discrimination in the context of a breach of contract. That initial outcome had concluded on 16 April 2024 with the decision from Janice Cole-Williams although she did not specifically address those comments. On the appeal Sharon Daniel however had specifically addressed them in her outcome letter that had been communicated that to the Claimant. The letter was undated but we had found that the First Respect and Resolution had therefore been exhausted by 28/30 May 2023 at the latest.

[324]The Claimant did not file her ET until 24 June 2024, a further 24 days after the end of the exhaustion of the Respect and Resolution process.

[325]As indicated, whilst the Claimant had entered into early conciliation that began on 28 May 2024 and ended on 20 June 2024, this period had no impact on time limits falling outside the primary limitation period and the Claimant provided no explanation for what had been in her consideration within that period. Even discounting the period during which the Claimant was pursuing her First Respect and Resolution grievance, there was still an unexplained delay of nearly a month and we concluded that she had not acted with promptness after she received her internal appeal outcome.

[326]When considering whether it was just and equitable to extend time we did not focus solely on whether the Claimant ought to have submitted his or her claim in time. We also weighed up the relative prejudice that extending time would cause to the Respondent on the one hand and to the Claimant (in the loss of a valid claim) on the other.

[327]We acknowledge the prejudice to the Claimant in not extending time: this was the only complaint that was successful and to not extend the time would mean that the Claimant was without a successful claim against the Respondent.

[328]However, we also took into account the prejudice that the delay had caused the Respondent. She had not articulated within her Respect and Resolution that she considered the remarks to be harassment related to race (accepting however that the substance of the complaint did indicate a breach of the EqA 2010) and the delay was lengthy, some 17 months.

[329]We considered the prejudice to the Respondent and concluded that the cogency of the evidence of Gordon Wragg and Carol Seabourne had likely been adversely affected by the delay, particularly when at no time had they been made aware that the Claimant was going to complain of race discrimination. We concluded we would have had clearer evidence and greater specificity on exactly how that meeting had gone, from Gordon Wragg and Carol Seabourne as well as the Claimant had the claim been made sooner, as we were unable to make clear findings of fact about that meeting beyond the specific comment being made which made it difficult to determine all the circumstances of the case albeit that limited findings were made as a result of an admission that the comments were made and the effect on the Claimant. That said, we had made clear findings on the effect of the comments on the Claimant.

[330]Whilst we concluded that an absence of an explanation for that delay was not on its own be determinative against the granting of an extension, the Claimant’s failure to explain that further and significant delay of 24 days, after a delay of over a year, was a significant factor in the matrix for us however. On that basis, we concluded that the balance of prejudice lay with the Respondent and declined to extend time. Direct race discrimination s.13 EqA

[331]We had not been persuaded on the evidence from the Claimant to find that the workload that had been given to the Claimant at any time had been too heavy, either in amount of work or in terms of the quality or level of work i.e. of the kind that would be undertaken by higher banded nurses.

[332]We deal with this in two parts; the period of time that the Claimant worked at WLSS and the period of time from when she returned to the workplace in August 2023 until the termination of her employment in September 2024.

[333]Whilst we accept that the Claimant appeared to have been unhappy to be undertaking any line management during her time at the WLSS, there was no evidence to lead us to conclude that the Claimant was required to carry out the tasks assigned to bands 3,5,6,7 & 8.

[334]Whilst our findings in relation to the harassment comments made on 25 January 2023, made us scrutinise more carefully what work had been placed on the Claimant during this period and why, to seek to identify if there were any inferences of discrimination which would discharge the primary burden, we had been satisfied that the role undertaken by the Claimant was that of a Band 6 at WLSS and that she did not undertake any work in excess of that band.

[335]We found that asking the Claimant to line manage two new call-handlers was something that the Claimant had been unhappy about, and this element of the job description for the Claimant could have been clearer, but we did not consider that requiring the Claimant to undertake such line management ‘too heavy’ a workload or was outside what the Respondents could reasonably expect a Band 6 nurse to manage. In any event this obligation had almost immediately been removed once the Claimant raised concerns.

[336]Regarding the Claimant’s workload in answering calls and regarding Netcall specifically, save for the Claimant’s limited oral evidence, none of the Respondent’s documented evidence had supported such concerns and the little documentation we were taken to demonstrated that she had not taken more calls than others over a specific period that had been reviewed.

[337]We accepted that there had been a ‘pinch-point’ of work for the Claimant over one week in December 2022, but concluded that the reason why was staff illness at that particular time and no evidence that the reason why that had been was driven by the Claimant’s race or indeed anything other than that staff illness.

[338]That the Claimant may have had to take, and did take the more complicated calls that had been escalated to her, was part of her Band 6 role and did not amount to workload that could be considered too heavy.

[339]On the facts, the Claimant has failed to prove facts from which we could infer or find discrimination related to race in respect of the period of time in WLSS.

[340]In the period when she returned to work in August 2023, to the date of termination of her employment, again there was no evidence that the Claimant was required to carry out the tasks assigned to bands 3,5,6,7 & 8. This period of time was split over a number of temporary duties working under the supervision of a number of managers including Frances Howell, David Wastell and Ceri Griffiths.

[341]Frances Howell has not given evidence and we placed little weight on her witness statement as she had not been questioned by the Claimant. Debora Harry, Lead Nurse in Professional Standards had given evidence which we had accepted, that the workload had not been excessive and that during the Claimant’s time doing work for her and David Wastell, they had both struggled to find meaningful work for her to undertake on a fulltime basis. We had also found that during this time the Claimant had time to start her Masters’ course and look for agency work. Whilst we accept that it was an unsatisfactory situation for the Claimant to have been seemingly reporting to a multiple of managers for an extended period, the Claimant had provided no evidence that the workload itself was excessive.

[342]There was no evidence from the Claimant that her workload was too heavy during the period from June to September 2024 i.e. from the date of the formal redeployment to termination of employment.

[343]Again on the facts, there was no evidence to persuade us that the Claimant’s workload from August 2023 to the termination of her employment was too ‘heavy’ and we drew no inferences from comments that had been made by Gordon Wragg in January 2023.

[344]We had no evidence to find or infer in any event that the treatment of the Claimant during this time was any different to how a Welsh comparator would have been treated differently.

[345]On that factual basis, the Claimant’s claim of direct race discrimination failed. We were not persuaded that the claims were out of time as whilst there was a break in time whilst the Claimant was on sick leave from February 2023 to August 2023 when the Claimant undertook no work, we did not view the issues of heavy workload from management as distinct separate passages of treatment but could and should be viewed as a continuing act that did not terminate until date of termination of employment. Disability – s.6 EqA 2010

[346]The Claimant suffered with a chronic Gynaecological Condition from 2021 until 24 June 2024 and the Respondent has conceded both that disability and that they had knowledge of the Claimant’s condition from 7 December 2021. The Respondent has also conceded that the Claimant suffered with Anxiety from 1 February 2023 until 24 June 2024 and that the Respondent had knowledge of the Claimant’s Anxiety from 7 February 2023.

[347]That the Claimant was disabled by reason of some form of musculoskeletal condition was disputed.

[348]The Tribunal concluded however that the Claimant had not demonstrated on the evidence before us that at the material times she was disabled by reason of that condition accepting the Respondent’s submissions and for the following reasons:a. We accepted that there was limited evidence of any impairment albeit we accepted that during this hearing in November 2025, the Claimant was exhibiting some physical issues. This was not relevant as we needed to determine the issue of disability as at the time that the Claimant asserts that she was discriminated against;

b. Whilst medical diagnosis is not necessary to prove disability, we did not find that there was any medical evidence to support any condition that could be described as musculoskeletal other than the Claimant’s own evidence which is that she had suffered some form of condition from August 2023, around the time that she returned to work after sick leave but working from home which could assist us in determining that there was any long term functional impact for the Claimant;

c. The Claimant’s report of 11 January 2024, what appears to be an assessment of her mental health, only suggests that the Claimant herself was reporting low back and hip pain after prolonged sitting;

d. We did not consider the occupational health reports assisted at all save that they referred to the Claimant’s Gynaecological Condition and made no reference to any musculoskeletal condition.

[349]Whilst we accepted that the Claimant may have been in some discomfort after prolonged sitting, and there was no doubt that the manual handler trainer report had recommended aids such as screens and footstool, we were not persuaded that this supported a case that the Claimant was disabled by such prolonged sitting or that there was any long term substantial adverse effect on the Claimant’s ability to carry out day-to-day activities.

[350]On that basis, we did not conclude that the Claimant was disabled at the material times and any complaint which in some way related to this particular impairment relied on would also not succeed and be dismissed. Reasonable Adjustments - sections 20 & 21EqAct 2010

[351]We were not persuaded by the Claimant that the Respondent had either:a. a PCP of a practice of refusing to allow home working or breaks as recommended by Occupational Health; or

b. a PCP of a practice of failing to review stress risk assessments.

[352]With regard to the first PCP of a practice of refusing to allow home working or breaks as recommended by Occupational Health, we had found that:a. the Claimant had been working from home from November 2022, following her application in September 2022;

b. was working from home for two days per week from January 2023, following the Second OH Report and accepted the Respondent’s evidence that the Claimant could also work from home when symptomatic;

c. from February 2023 the Claimant was on sick leave and at home; and

d. following her return in August 2023, worked permanently from home.

[353]There was no practice of refusing to allow home working as recommended albeit there was one specific event that was in evidence, that the Claimant had been prevented from leaving early on one day in January 2023. We did not consider that this was an unreasonable refusal on that day particularly in light of the circumstances and the fact that the Claimant at that time did not say that she was experiencing symptoms of her Gynaecological Condition. This did not lead us to conclude that the Claimant had either established the PCP or, if that was wrong, that this was an unreasonable failure to comply with any duty to make a reasonable adjustment in relation to home-working.

[354]Likewise, that the Claimant was generally required to be on site save for her non-working days, did not mean that the Respondent had applied the PCP relied upon.

[355]With regard to the breaks, we had found that regular breaks had been recommended in the Second OH Report and also that the Claimant whilst in the call centre had been located close to toilets and had been able to take breaks when required. She had not been prevented from doing so and she had the ability to not take calls from patients in order to use the toilets.

[356]The Claimant had however presented as sick from February 2023 from WLSS and had not at any time returned to work subsequently.

[357]The primary time limit for presenting such a complaint therefore expired by the end of June 2023 at the latest and there was no repetition of any failure in respect of this adjustment as she did not return to work and the complaint was therefore out of time. There was no real submissions as to why time for this complaint should be extended and neither the grievance nor even mentioning the PIP were relevant. Failure to comply with any duty under s.20/21 EqA 2010 was not a continuing act and it was not just and equitable to extend time.

[358]However, even if wrong on that jurisdictional issue, the first PCP relied on, of a practice of refusing to allow home working or breaks as recommended by Occupational Health, had not been established by the Claimant in any event and it followed that any complaint of a failure to comply with the duty to make a reasonable adjustment in respect of that first PCP would fail and be dismissed in any event.

[359]We did not consider there to be significant time issues with regard to the second PCP or the third reasonable adjustment complaint in relation to failure to provide auxiliary aids (which fails in any event by reason of the disability conclusion).

[360]With regard to the second PCP, of failing to review stress risk assessments, it became clear during the Claimant’s evidence that she relied on a failure to review the very first SAR of 15 November 2022, on the basis that the Third OH Report of March 2023 had suggested a ‘review’ of the Claimant’s stress risk assessment when she returned to work. The Claimant does not dispute that she was requested to undertake fresh risk assessments and we had found that she had not done so.

[361]Even if it could be technically said that there was a practice of failing to ‘review’ or in some way revisit that specific November 2022 SRA, we concluded that the Claimant had not demonstrated any disadvantage accepting the Respondent’s submissions that she had been encouraged and asked to prepare fresh stress risk assessments for her new environment and work setting and had declined to do so. Any fresh SRAs would have highlighted and indicated any new or additional needs for the Claimant that were more contemporaneous and relevant to any new setting. There was therefore no disadvantage to the Claimant.

[362]The complaint in respect of the second PCP relied on therefore fails and is

[363]As the Tribunal had concluded that the Claimant was not disabled by reason of any musculoskeletal condition, the failure to make a reasonable adjustment claim in respect of the lack of auxiliary aids, namely the provision at her home of an ergonomic chair, footrest, laptop raiser and extra-large monitor at home fails and is dismissed. Discrimination arising from disability (Equality Act 2010 section 15)

[364]There is no doubt that the Claimant was dismissed and we accept that dismissal is unfavourable treatment. We also accept that there was, in a general sense, a requirement to comply with occupational health recommendations but in no sense did we conclude that the Claimant had been dismissed because of the requirement to comply with occupational health requirements.

[365]Those recommendations, over the Second OH Report and Third OH report were essentially as follows: Second OH Report- December 2022a. Additional home working when Claimant was symptomatic or when the working temperature was likely to be compromised or she was symptomatic;

b. Regular comfort breaks;

c. Refrain from heavy lifting;

d. Time be allowed to attend medical appointments

e. Tolerance be given for sickness absence triggers; Third PH Report – March 2023

f. That it may be beneficial to review her stress risk assessment;

g. Management allow time to attend medical and well-being appointments

h. Allowing time to attend appointments and that the Claimant could ubmit a flexible working request for Aquafit and to accommodate relationships with colleagues

[366]Whilst we acknowledge that the ‘something’ for the purposes of a s.15EqA 2010 claim does not need to be the sole or main reason for, in this case, dismissal it must have more than a trivial influence to amount to an effective reason (Pnaiser).

[367]The recommendations that had been made had been put in place and there was no suggestion that these had caused any difficulties for the Respondent. We concluded that the reason that the Claimant was dismissed was because of the irretrievable breakdown in the relationship between the Claimant and staff within WLSS.

[368]We then considered whether the consequential failure to obtain alternative employment during the formal redeployment period subsequent to the outcome of the First Respect and Resolution process was as a result of any requirement to comply with occupational health requirements accepting that the Claimant did have some limitation on what she was capable of undertaking.

[369]We concluded that it did not. The Claimant had failed to meet the essential criteria for a number of the roles and the Claimant’s requirements, of home working or a private toilet facilities had not been recommended adjustments by OH for the Claimant and did not arise out of the Claimant’s disability. We therefore concluded that the requirement to comply with OH recommendations had no significant influence on the Claimant’s redeployment options.

[370]The complaint under s.15 EqA 2010 was not well founded and was dismissed. Victimisation (Equality Act 2010 section 27)

[371]We concluded that both the First Respect and Resolution in April 2023 and second in June 2024 amounted to protected acts in that both made reference to ongoing discrimination. Likewise, within the First Claim, the Claimant sought to bring complaints of discrimination and therefore that too was a protected act.

[372]The Respondent did also subsequently dismiss the Claimant which was detrimental treatment.

[373]The Tribunal did not conclude that the dismissal was because of any of the protected acts however.

[374]Whilst we had had concluded that the comments made on 25 January 2023 constituted unlawful discrimination, this did not in itself lead us to find or infer that the dismissal almost twenty months later and after a lengthy grievance process into the Claimant’s complaints, was an unlawful act of discrimination such that the burden of proof would have shifted to the Respondent.

[375]Whilst the First Respect and Resolution process had resulted in an investigation addressing the Claimant’s concerns, this did not lead us to conclude that the reason for her dismissal was because she had raised such concerns or played any part in that decision.

[376]Whilst we acknowledge that the Second Respect and Resolution was submitted close to the Claimant’s dismissal and that managers such as Mandy Davies also personally considered that the relationship was breaking down with her personally, this did not lead us to infer or find that the reason for the dismissal was the protected act or acts.

[377]Rather, we concluded that the reason why the Claimant was dismissed was because the Claimant had not found a suitable redeployment opportunity after the First Respect and Resolution process had been conducted and exhausted, with the conclusion of that process being that the Claimant was not to return to WLSS due to the breakdown in the working relationship between the Claimant and the WLSS team.

[378]This conclusion was supported by evidence that responsibility for this process (both the initial outcome and appeal) was entirely removed from those who managed or had responsibility for the Claimant or the WLSS, with:a. An independent investigation by Helen George;

b. Janice Cole-Williams reaching conclusions that the Claimant could not return to the WLSS; and

c. Sharon Daniel upholding that decision.

[379]The claim of victimisation was therefore not well-founded and is also Unfair dismissal

[380]We were satisfied that the Respondent had demonstrated that the reason or principal reason for dismissal was a breakdown in the working relationship between the Claimant the WLSS team.

[381]We were satisfied that this had been demonstrated from the evidence before this Tribunal of an independent and lengthy internal process borne out of the Claimant’s First Respect and Resolution process, that involved:a. An independent investigation by Helen George;

b. A decision by Janice Cole-Williams, a manager independent from the WLSS team and Assistant Director of Nursing, that there was an irretrievable breakdown in the relationship between the Claimant and WLSS staff, impacting negatively on all;

c. Confirmation of that on appeal by Sharon Daniel, who also confirmed that it was not feasible for the Claimant to return and agreed that the Claimant should be redeployed; and finally

d. A decision made by the Respondent’s Director of Planning, Keith Jones, after further albeit limited investigation through Steven Morgan regarding working relationships, after also being satisfied that there was a significant breakdown in working relationships

[382]The Respondent says that this reason was a substantial reason capable of justifying dismissal, which we accept falls within a potentially fair reason for dismissal.

[383]We then considered whether the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that breakdown in working relationships as a sufficient reason to dismiss the Claimant. We concluded that it did for the following reasons.

[384]We would repeat our conclusions on the s.15 EqA 2010 and s.27 EqA 2010 claim in that the decision was made after a lengthy and detailed grievance process that investigated relationships and the Claimant’s concerns.

[385]Those involved in that process were all independent from the WLSS and that Mandy Davies as Assistant Director of Nursing did the initial assessment and determined that an investigation independent of the WLSS should be undertaken, did not undermine that conclusion and was a reasonable response.

[386]We concluded that the conclusions of those independent managers involved in that process, Helen George, Janice Cole-Williams, Sharon Daniel and Keith Jones, were reasonable responses to the evidence before them and it was reasonable for them to conclude that there were substantial and genuine concerns regarding the working relationship in the team.

[387]We accepted that there had been a delay in investigating the Claimant’s Respect and Resolution particularly in the period between submission and when Helen George had met with the Claimant. However, we were satisfied that for a large part of that period, Helen George had also been collating information and this was not a grievance that could reasonably be expected to be determined within a short time-scale. Whilst not ideal, we were not persuaded that the length of the investigation led to unfairness in the ultimate dismissal of the Claimant. We were also satisfied that the delay did not in any way compound any breakdown in the relationship.

[388]Further, we had not been persuaded that there had been a failure to follow OH recommendations and this did not impact in our view on the fairness of the Claimant’s dismissal.

[389]Whilst the Claimant considers that the breakdown in the relationships was created by the Respondent, in the remarks made by Gordon Wragg, that fails to recognise the existing issues that the WLSS team had with the Claimant’s communication and her failure to address concerns raised regarding her conduct.

[390]Prior to terminating the Claimant’s employment, mediation was again explored and discounted due to lack of amenity to such a process by the majority of staff that would be working with and managing the Claimant. It was impossible to ascertain how the Claimant could have returned to that department, albeit by that time Gordon Wragg had left, when the Claimant herself was expressing concerns about remaining managers. Likewise, it was not possible to determine how the Claimant could have in some way returned to WLSS and not reported to those managers.

[391]Alternative employment was sought for the Claimant through the Redeployment Policy which again was a reasonable response. Whilst the Claimant did not sign indicating agreement, she did have the benefit of being put on the Redeployment Register and whilst a technical breach of the Redeployment Policy, we concluded did not lead to unfairness to the Claimant but was a reasonable response to enable her to source work as an alternative to termination of employment.

[392]Whilst Mandy Davies did not interfere with the determinations made by Janice Cole-Williams and Sharon Daniel, that the Claimant could not return to WLSS, in that she managed the eventual dismissal of the Claimant in conjunction with Ceri Griffiths, this was to an extent an administrative exercise to seek to obtain alternative employment for the Claimant and was again a reasonable response.

[393]In those circumstances we were satisfied that the procedure that the Respondent had adopted eventually established to them that there was sufficient evidence to conclude that the relationship between the Claimant and the WLSS had broken down. That in turn led us to conclude that the Respondent had shown that they had a genuinely held belief that it had a fair reason to dismiss and had genuinely believed that the relationship between the Claimant and the WLSS team had broken down and could not be retrieved.

[394]In those circumstances the dismissal was a reasonable one and fell within the range of reasonable responses after attempts to find alternative work were unsuccessful. The complaint of unfair dismissal was also not well-founded and was dismissed. Unauthorised deductions

[395]We had made positive findings that the Claimant’s continuity of employment with the Respondent for the purposes of sick pay and notice did not start to accrue until 2018 and that the Claimant was entitled to and did receive full sick pay for five months only before the reduction to half pay from June 2023.

[396]On that basis the Respondent did not make unauthorised deductions from the Claimant’s wages in relation to sick pay between June-August 2023.

[397]In any event, the complaint is out of time, it was reasonably practicable to bring a complaint within three months of the last of the sick pay payments, the Claimant failed to do so and even taking into account the lengthy Respect and Resolution complaint, that was exhausted by the end of May 2024 at the latest and the claim was not brought until 24 June 2024. The claim was not presented within a reasonable time and time is not extended.