Ms NK Dhillon v Leeds Teaching Hospitals NHS Trust and Ms E McDougal: 1800222/2019
EMPLOYMENT TRIBUNALS
Case No 1800222/2019
Between
Ms NK DhillonClaimantLeeds Teaching Hospitals NHS Trust and Ms E McDougalRespondent
Before
Employment Judge MaidmentIn person for claimantMs C Souter (instructed by Counsel) for respondentDate 1 April 2022
JUDGMENT
[1]The Claimant’s claims of unfair dismissal and of unauthorised deductions from wages (holiday pay) were brought outside the applicable three month time limits in circumstances where the Tribunal was not satisfied that it was not reasonably practicable for the claims to have been presented in time. The Tribunal having no jurisdiction to hear them, the complaints of unfair dismissal and of unathorised deductions from wages are hereby dismissed.[2]The Claimant’s complaints of disability discrimination relating to her dismissal were brought outside the applicable three month time limits but in circumstances where it was just and equitable to extend time. Those complaints will proceed to be heard subject to the determination of any other preliminary issues.
REASONS
There is no reasonable prospect of the original decision being varied or revoked. The claimant participated fully in the preliminary hearing on 28 August 2019 without any indication to the tribunal that she was unwell. The claimant of course informed the tribunal the following morning that she was then unwell after a day in the tribunal involving, in particular, lengthy periods of sitting. The second day of the preliminary hearing which was to deal with issues not already determined on the first day was therefore postponed. The claimant had an opportunity to put forward a full explanation on 28 August for her delay in submitting her tribunal complaint and indeed she did so. The claimant is effectively seeking to reargue the time limit issue or refer to matters which could reasonably have been put to the tribunal at the original hearing. The claimant made representations at that hearing regarding a delay in the internal appeal process. It was not part of her case that illness caused her to miss the time limit and indeed that would not have been consistent with what the claimant did manage to do. JUDGMENT[1]The claimant was not a ‘disabled person’ at the material time, by reason of the impairments of ‘root canal treatment’, ‘bartholin’s cyst’ or ‘pre-cancerous cervical cancer’.[2]The claimant no longer relies upon the impairment of ‘foot surgery’ and that part of her claim is dismissed upon withdrawal.[1]This preliminary hearing is to decide whether the claimant is a disabled person by relation of the three impairments she now relies upon of i. Root canal treatment ii. Bartholin’s Cyst iii. Pre-cancerous cervical cancer[2]The claimant identified for each impairment, the evidence she relies upon from her bundle of documents, the additional documents produced for this hearing and her impact statement (pages 50 – 53 in the claimant’s bundle and pages 117 – 118 in the respondent’s bundle). For each impairment it is for the claimant to prove that the impairment satisfies all the requirements of section 6 of the Equality Act 2010 which provides that: “A person P has a disability ifa. P has a physical or mental impairment andb. The impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities”.[3]The burden of proof is on the claimant to prove disability. She gave evidence and from the evidence I saw and heard I found as follows: Findings of Fact Root Canal Treatment.
Findings of Fact
[4]The claimant has provided from her dentist as the root canal treatment is a dental procedure. Treatment began in December 2015 and was completed by 30 March 2016. In the claimant’s own impact statement at page 118 she describes it as a ‘short-term condition’ identifying the dates of December 2015 to March 2016.[5]Schedule 1 paragraph 2 of the Equality Act 2010 provides that the effect of an impairment is long term if: a) It has lasted for at least 12 months. b) It is likely to last for at least 12 months, or c) It is likely to last for the rest of the life of the person affected.[6]The claimant has on her own evidence accepted that the root canal treatment lasted less than 4 months. It was not long term and fails to satisfy the requirements of section 6 of the Equality Act 2010. The claimant was not a disabled person by reason of the impairment of ‘root canal treatment’. Bartholin’s Cyst[7]The evidence the claimant relies upon is summarised in her GP’s report dated 2 July 2018 (page 59 in her bundle). The report states: “Miss Dhillon was diagnosed with a Bartholin’s cyst in September 2017 and was referred to the Gynaecology team. Unfortunately, the cyst recurred and Miss Dhillon was prescribed Flucloxacillin in December 2017, prior to an emergency admission to hospital. The cyst ruptured following admission and surgical intervention was not required. The cyst recurred in February 2018 and a further course of antibiotics was issued prior to this also rupturing. Miss Dhillon was issued an emergency supply of Flucloxacillin in June 2018, in case the cyst recurred while she was away on holiday”[8]In cross examination Mr Sugarman took the claimant through her medical records. The Gynaecology Clinic assessed the cyst on 16 October 2017 and identified it as a 1cm small Bartholin’s Cyst. The treatment/advice given by the Gynaecology Clinic is “if it gets persistently bigger or becomes infected then referral to operate”. The evidence does not indicate there were any effects or any other treatment required after that assessment.[9]Subsequently no effects were reported and no treatment was given for the cyst by her GP or by the Clinic. It was only when the cyst become infected in December 2017, that the claimant was admitted to hospital for removal. The cyst ruptured and a course of antibiotics was prescribed to deal with the infection. No further effects or symptoms are identified in the records.[10]On 16 February 2018, the cyst ruptured, the claimant attended her GP. The GP examined the claimant and recorded a marble sized cyst, treated by antibiotics for the infection. Although the claimant refers to ‘pain’ on that occasion but treatment other than the antibiotics was advised. In June 2018, the claimant’s GP had examined her and had noted “no distinct cyst present”. As a precaution the GP provided a course of antibiotics for the claimant in case it became infected while the claimant was on holiday. On 24 July 2018, the claimant attended her GP, she reported that there had been a rupture of the cyst during the flight. No adverse effects are recorded in the GP’s notes at that time.[11]The claimant relies upon the cyst as a physical impairment that has a substantial long-term effect on her ability to carry out normal day to day activities. She refers in her impact statement (page 118) to the cyst causing “disfigurement in the genital area where there is scarring from previous surgery and during periods of flare up pain and discomfort in walking”.[12]The only symptom/effect recorded in the medical notes is one reference to ‘pain’ after the rupture on 28 February 2018. The GP’s contemporaneous notes at the time do not record that the claimant was reporting any significant effects on normal day to day activities as a result of the cyst.[13]Mr Sugarman points to the relevant period that the claimant relies upon to prove disability. From her account the cyst becomes infected in December 2017 and was last infected in July 2018. Any effects of the impairment were for less than one year and not long term. That was the only period when the cyst is said to have the adverse effect and it is only on occasions when the cyst ruptures that any treatment is required. The treatment is a course of antibiotics to treating the effects of infection. No other effects are recorded or treated either at the time of rupture or in the intervening period.[14]Against that evidence the claimant says that the cyst is likely to recur based on the three ruptures that she has experienced in December 2017, February 2018 and July 2018. During periods of infection the claimant says that the cyst does cause pain and discomfort when she is walking. She says taking antibiotics repeatedly has an adverse effect. She does not provide any other evidence of how she says the effects she identifies are substantial adverse effects on normal day to day activities[15]Section B of the ‘Guidance on the Definition of Disability 2011’ provides some guidance as to the meaning of substantial adverse effect and the factors that the Tribunal should consider, in deciding whether there is a substantial adverse effect on normal day to day activities. This includes looking at the activities identified, the time it takes to carry out the activity, the way in which the activity is carried out, the effects of any behaviour, for example coping or avoidance strategies to deal with the effects described, whether there are cumulative effects and the effects of treatment.[16]Based on the evidence provided the claimant has failed to satisfy me that the effects of the cyst are substantial adverse effects on her ability to carry out normal day to day activities in the context of walking which is the activity identified. She refers to the disfigurement in the genital area and I considered the guidance given at B24 which provides that in assessing the severity of a disfigurement the tribunal must consider factors such as the nature size and prominence of the disfigurement and location to consider substantial adverse effect. The example given is that a disfigurement on the back being is less severe as opposed to the face because of visibility. I accept it was a concern for the claimant, who already had scarring in the genital area. However, the location does not in my view make it a severe disfigurement for it to be treated as having a substantial adverse effect on her ability to carry out normal day to day activities.[17]On the evidence presented to me I was not satisfied the claimant has proved the impairment of a Bartholin Cyst meets the requirements of section 6 of the Equality Act 2010. Pre-Cancerous Cervical Cancer[18]There was no diagnosis of cancer which is what is required if the claimant is to be able to rely on Schedule 1 regulation 6(1) of the Equality Act 2010 to treat it as a disability.[19]The claimant requested a report from her GP asking for the GP’s assessment on the 4 conditions she relied upon. Her request is for an opinion “beginning with the routine smear test (please give exact date of this) that was detected as abnormal which led to precancerous cervical cancer surgery and consequent follow up appointments and medication related to post-surgery infection.[20]The GP’s report of 2 July 2018 answers this confirming “Miss Dhillon underwent LLETZ procedure in December 2014, following a smear test which demonstrated severe dyskartosis. Following this, swabs were completed which demonstrated an infection for which Co-Amoxiclav was prescribed”.[21]There was no evidence of any diagnosis of precancerous cervical cancer. The only evidence the claimant provided shows that following a smear test and a colposcopy procedure some abnormal cells were identified. The results of CIN 1 were given.[22]The respondent has produced some ‘NHS Guidance’ to assist me to understand the terminology used in the medical records produced. Guidance states that “abnormal cells may be detected while a colposcopy is carried out. About 6 in every 10 women have abnormal cells in their cervix known as ‘cervical intra epithelial neoplasia’ (CIN). A CIN 1 means “it’s unlikely the cells will become cancerous and they may go away on their own: no treatment is needed a routine test in 12 months to check they have gone”.[23]It is for the claimant to provide evidence confirming a diagnosis of cancer which she has failed to do.[24]She has also failed to identify a diagnosis of ‘pre-cancerous cervical cancer’. Mr Sugarman has helpfully referred me to the case of Lofty-v-Hamis t/a First Cafe where on the facts in that case, a precancerous diagnosis has been held by the Employment Appeal Tribunal to fall within regulation 6.[25]In that case based on the medical evidence presented by Mrs Lofty, the Employment Tribunal clearly did identify that Mrs Lofty had a diagnosis of an early stage of skin cancer diagnosed which was why the term pre-cancer was used. The EAT found the evidence before the ET suggested it was indeed to be understood as cancer. There was no such diagnosis or evidence in this case. Secondly, at paragraph 47, the EAT judgment is clear “Schedule 1 para 6 does require the complainant to have one of the specified conditions it is not sufficient that they might develop a relevant condition in the future”. Mr Sugarman submits that the claimant had a routine cervical smear test which revealed some abnormal cells. She then had a biopsy and subsequent tests which confirmed that there was no cancer or pre-cancer diagnosis. She was then left to be monitored under the normal cycle of annual or three yearly assessments. Therefore, the claimant cannot rely upon any diagnosis of cancer to prove disability[26]I agreed and accepted that submission. The claimant has either misunderstood or misinterpreted the evidence and has tried to rely on a diagnosis of cancer that was never given. She cannot rely on Schedule 1 regulation 6(1) for the impairment she labels as ‘precancer cervical cancer”.[27]Therefore, all three impairments that the claimant relies upon fail, because they do not satisfy me that the requirements of section 6 of the Equality Act 2010, therefore the disability discrimination complaints fail and are dismissed. JUDGMENT having been sent to the parties on 8 April 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided, based upon the oral decision delivered immediately upon the conclusion of the case:.
Findings
[28]As we have said the claimant was suspended on 13 August 2017 pending a disciplinary investigation. That was delayed partly because of the unavailability of the claimant or her union representative, but more particularly because of an intervening period of sickness absence. So it was not until 8 March 2018 that it was proposed that the claimant should first meet with the investigating officer, Louise Buchanan. On the date of that proposed meeting, which was then in fact further postponed, the claimant provided written representations. They included as well as her comments on the disciplinary allegations a statement setting out that she was now submitting a formal Dignity at Work grievance against Emily McDougall. That itemises seven reasons for bringing that complaint and also appends to it a request that the ongoing disciplinary proceedings be put on hold to await a “disposal by consent”. That is a procedure where it would be possible, in appropriate circumstances, for the employee and the employer to agree on a disciplinary sanction without going through any formal process at all.[29]In relation to that first document from 8 March, the first point reiterates that the complaint is about events on 22 August 2017. The only matters that could possibly reference a complaint of disability discrimination in some form are the fact that the claimant describes her attendance at that meeting as a return to work following a sickness absence, and states that she felt that Ms McDougall was “overlooking the sickness I had”. But her principal complaint is about the way she was treated and spoken to. All other references within that first document are complaints of feeling that she was singled out and that “I feel that providing a false accusation to my character or conduct is a form of bullying or harassment”. Generalised allegations of being singled out or of being bullied or harassed are not at all obviously references, even inferentially, to any protected characteristic or to any contravention of the Act.[30]Having submitted that document in the first instance to Ms Buchanan the claimant was advised that it ought to go to Fiona Halstead to deal with as a Dignity at Work complaint. And so it was forwarded to Mrs Halstead on 13 April 2018, and it was then elaborated upon. As well as the seven points there were a further three, numbered 8 to 10. Again the only reference to any possible complaint of disability discrimination is in paragraph 8 referring back again to the events of 22 August claiming that at the end Ms McDougall had “walked out of this return to work meeting with me even though I was ill and required support”. Paragraph 9 again repeats an allegation of harassment described as “constructive harassment”, again without any reference or even allusion to a protected characteristic.[31]Mrs Halstead then advised that if it was to be pursued as a formal Dignity at Work complaint rather than an informal one (the policy at that stage provided for those two alternatives), it should be on the approved form which is that at Appendix 1. The claimant then did that and sent it through to Mrs Halstead on 26 April. So that is the finalised version.[32]At this stage the claimant adds a further two allegations numbers 11 and 12. Within those she does reference an appointment she had on 16 October when she was requesting leave to work from home throughout the course of the day before attending late in the afternoon ,which request was refused. She refers to that as a gynae appointment and complains that Ms McDougall refused “flexible options” for attending.[33]The form then goes on to ask for specific further information including the names of potential witnesses. Within that box the claimant states, in the past tense, that she felt the “management did not take this seriously as a reasonably temporary adjustment could have been made whilst I was recovering from surgeries and under antibiotic medications” and that she feels that Ms McDougall has not empathised with her sickness or taken it seriously.[34]So the time she was referencing this matter as of 26 April 2018 it was in relation to the problems occasioned by her surgery which had not resolved as quickly as expected after August 2017 but which by then had indeed resolved. When asked to give details of how she felt affected by the maters of complaint she again referenced the fact that she had been on antibiotic medication and had been trying to explain to Ms McDougall the serious illnesses I have undergone.[35]She again reasserts, as she had done earlier that the verbal accusations against her she described as harassment and bullying. And then finally she says that in the future regarding any surgery she was unclear of what reasonable adjustments may be provided.[36]So there is some reference to her health concerns but largely relating to matters in the past, the resolved issue about her foot surgery. There are references to “reasonable adjustments”; one of those is to temporary adjustments whilst returning for work after that earlier surgery, and the other is prospective looking into the future. The issue was that if, hypothetically, she required further treatment for any newly arisen complaints whether reasonable adjustments would be made, but not a complaint that she had not been given such adjustments nor any indication that she would necessarily have any future grounds for making such a complaint.[37]So applying the principles from the relevant case law given that those are the only matters that could be something about the complaint to show it is a complaint to which at least a potentially the Act applies, we on balance conclude that it falls below that threshold.[38]So neither of the alleged protected acts in fact qualifies. (2) The detriments[39]So far as the detriments alleged are concerned, the first of those is a failure to investigate the formal Dignity at Work complaint once raised. That is specifically by reference to the fact that the named witnesses were not spoken by the investigating officer who was Ms Mackenzie.[40]As we have said there was a section in the formal complaint which asks the claimant to identify potential relevant witnesses and that she did. And at that point she references a conversation which she took exception to in the kitchen which was witnessed by Kim Williams in August. She also identifies Wendy, Sadia and Jackie by reference to the time in September when she says that Ms McDougall, who was trying to conduct a telephone conversation in the open office, had “shouted to us all to be quiet”.[41]So firstly that allegation of what happened when she says that everyone was shouted at is not an allegation which could possibly amount to discrimination against her under the Equality Act. It is a complaint about Ms McDougall’s conduct towards everybody. It is not even at that point singling out the claimant, let alone singling her out because of any protected characteristic, nor, specifically, does it have anything to do with any alleged disability.[42]When Ms Mackenzie prepared her draft report she included in the preface an acknowledgement that although she had spoken to the claimant and to Ms McDougall she had not in fact contacted any of the other potential witnesses. That was picked up by Mrs Halstead, whose role at this stage was described as the commissioning manager. That is that she had delegated an investigation of the claimant’s concerns to Ms Mackenzie, but when that recommendation report was prepared it would come back to Mrs Halstead to actually make the final decision on the outcome.[43]Mrs Halstead and indeed her HR support, the witness before us Alison Wilkinson, both observed that Ms Mackenzie had not spoken to witnesses and the chain of emails indicates that that was pursued with an intent that she should do so if appropriate. Ms Mackenzie’s HR support at this time was a Phil Robinson and he contacted Ms Mackenzie with the details of some witnesses to approach. They included Kim Williams and Wendy but not Sadia, Jackie or David. Ms Mackenzie did then seek to consider whether she should speak to Kim and Wendy who were identified on the list but that was not practicable because Kim was on maternity leave and Wendy had left the Trust’s employ. Therefore to seek to speak to them in those circumstances would have delayed the conclusion of her report and also further delayed the conclusion of the conduct investigation, which although still continuing was not to be concluded until after the resolution of the Dignity at Work complaint.[44]There is not a satisfactory answer as to why at this point, when the question of the non-interviewing of witnesses was being discussed ,nobody either Ms Mackenzie, Miss Wilkinson or Mrs Halstead or indeed Mr Robinson averted to the fact that a number of the named people - even if named by first name only - had not been identified as potential witnesses. But the claimant was aware at the point the outcome of Ms Mackenzie’s investigation was reported to her on 31 August that these people had not been spoken to and she took no exception to that at the time. She did not raise it as an issue, and in fact did not seek to appeal or challenge that outcome at all and certainly not on that basis.[45]We are satisfied that there is not in fact any detriment to the claimant in this regard. That is most particularly because having spoken to Emily McDougall about this incident Ms McDougall accepted that she had, if not in fact shouting, indeed raised her voice across the open office. So all that those witnesses might have done was corroborate a fact that there was a raising of the voice and the only issue be whether they agreed with the claimant that he should be described as “shouting” or not. It did not materially add anything to Ms Mackenzie’s investigation and as we have said this was not any allegation of discrimination.[46]The second alleged detriment is the failure to advise the claimant of her rights to appeal against the outcome. It is correct that in the outcome letter sent to by Mrs Halstead following the verbal report of the decision on 30 August 2018, she does not refer to the right under the policy under a section which is headed “appeal”. In fact this so-called appeal process relates to the possibility of bringing a formal grievance if the employee is dissatisfied with the informal Dignity at Work process. However the claimant had had access to that policy since 29 September 2017 and even if Mrs Halstead did not avert to that right within her outcome letter the claimant was fully aware of the possibility of her bringing a grievance against Ms McDougall. Indeed she had already sent an email on 16 May 2018 indicating that she thought she would have grounds for doing so under the Equality and Diversity policy because of an alleged breach of confidentiality and that she was taking further advice upon that matter.[47]So the claimant, even if not formally advised by Mrs Halstead, was well aware of the possibility of her bringing an “appeal”, that is by way of raising a further grievance, but she expressly chose not to do so. As she told the disciplinary officer Dr Herbert and as she repeated in her ET1 claim form she elected not to do so because she would have preferred to follow the recommendations of Mrs Halstead that even though the Dignity at Work complaint had not been upheld there should be the possibility of mediation between the claimant and Ms McDougall.[48]So the claimant was not in fact subjective to any detriment whatsoever simply by reason of the fact that Mrs Halstead omitted a reference to that part of the policy in the outcome letter.[49]The third alleged detriment is accepted, that is the dismissal by Dr Herbert. The key question then would be what was the reason for the decision to dismiss the claimant, and was it in any material sense influenced by the fact that she had raised her Dignity at Work complaint. So even though we have found that that did not in fact qualify as the doing of a protected act we do look at the issue of causation. (3) The reason why[50]The claimant had been issued with a final written warning on 24 July 2017. She was charged with further instances in relation to her conduct and she well understood, as is clear from her 8 March 2018 document when she sought disposal by consent as an alternative, that she was therefore in a precarious position. Whilst being subject to a live final written warning if she committed any further act of misconduct whether or not in fact it was of a similar type to that for which she received the earlier warning she was, and well knew herself to be at severe risk of dismissal.[51]Dr Herbert heard the disciplinary hearing over two sessions on 1 and 15 October 2018. He was looking at six specific allegations. We have heard evidence of the substance of those matters but we do not need for present purposes to repeat it because all we have to find is that Dr Herbert genuinely concluded, notwithstanding any mitigation purportedly put forward by the claimant, that she had been guilty of misconduct. That was in relation to non-adherence to the reporting procedures for sickness absence, failure to follow procedure for the authorisation of booking of study leave (by which Mr Herbert meant training sessions), inappropriate conduct in leaving a training session which she had booked on 5 October 2017 earlier than agreed with her line manager. It was also in respect to persistent lateness: the claimant having agreed on her return to work on 2 August 2017 to start at 8.30, there were then numerous occasions -13 out of 14 days in September and a further 8 to 10 days up to the suspension in October - when she failed to attend at the due time including on the day of the training on 5 October where she had negotiated an earlier finish and agreed therefore to come in half an hour earlier at 8 o’clock but had not arrived on time. On an allegation of Insubordination there was specific reference, as there had been in the early disciplinary in July 2017, to her sending multiple emails to line management despite requests not to do so and unnecessarily copying other Trust staff into emails. Dr Herbert expressed he did not find that that specific part of the allegation was proven, but did consider there was nonetheless evidence of insubordination in the conduct of the claimant. The final matter was that at a supportive meeting held on 28 September 2017 she had been instructed to attend training that was scheduled for 9 October but failed to do so. Dr Herbert considered all those matters. He considered the counter arguments put forward by the claimant and then nonetheless concluded that she was guilty of that misconduct. We are quite satisfied that was a conclusion that was entirely open to him on clear evidence before him.[52]Having come to that conclusion, given that the claimant was already subject to a final written warning, he took the decision that the appropriate sanction was dismissal. He need not have done so but again his decision to do so was clearly because of his findings on misconduct.[53]So the reason why the claimant was found guilty of misconduct and the reason why she was dismissed was, as Dr Herbert maintains, because that was his conclusion after a careful investigation at the disciplinary hearing. It was not anything to do with the raising of the earlier Dignity at Work complaints, whether a verbal one to Mrs Halstead or the written one subsequently.[54]It is right that Dr Herbert was aware of those matters, but that was only because the claimant had produced the documentation before him when she sent in her documents in mitigation for the disciplinary hearing on 10 September 2018. Within that documentation, which included her Dignity at Work complaint from 26 April 2018, she alludes to the conversation with Mrs Halstead and of course it sets out the substance of her complaint in its final version, and also there was the outcome letter from Dr Halstead sent on 3 September.[55]Just because he was aware of these matters (a in as much as they were certainly referenced in the documents before him) it does not mean that Dr Herbert took his decision because the claimant had done those things. Prior to her bringing this to his attention all that he knew about the Dignity at Work complaint was that it had happened, that it had been concluded and that it had not been upheld. That was communicated to him either directly or indirectly by Mrs Halstead, but when asked by her if he therefore wanted at that stage to see any additional information he had said no. So Dr Herbert was not seeking to elicit information about the subject matter of that complaint. That was something that was put before him only by the claimant. But it was not, we repeat, in any material respect at all the reason why he took the decision which he did.[56]For way of completeness on the issue of causation in respect to the other alleged detriments, the failure to interview some of the witnesses who might have been available was not because the claimant had made her Dignity at Work complaint. Clearly the intention was to ensure a careful investigation by Mrs Mackenzie. We do not know why that oversight happened but we accept the evidence in Mrs Halstead’s statement and corroborated by the contemporaneous emails on the subject was because it was indeed an oversight. It is somewhat ludicrous to suggest that at a time when Mrs Halstead and Miss Wilkinson were seeking to ensure that witnesses had been spoken to they nonetheless deliberately excluded investigation of some witnesses because the claimant had brought a particular type of complaint.[57]Similarly the omission from Mrs Halstead’s outcome letter of any reference to a right of appeal or the right to raise a further grievance is quite clearly not because the claimant had brought the complaint that she did. We repeat that it was of course Mrs Halstead who had initiated the Dignity at Work process in the first instance by informing the claimant that this appeared to be appropriate policy to follow and by providing her with the appropriate form so she could put in her complaint. Again it is nonsensical to suggest that within that process she somehow, because of the nature of the complaint, decided to omit a reference to a right of appeal particularly in circumstances where as we have said the claimant knew full well that she could have appealed or raised a further grievance.[58]Because there has been reference to the “disposal by consent” as an alternative to the disciplinary process we refer to it briefly, but quite clearly that was not an appropriate route to take in this case. That is only applicable where there are uncontested facts in relation to the misconduct of the employee. That is selfevidently not the case here. The claimant has in fact contested each and every single allegation brought against her both within the investigative stage of the disciplinary, at the disciplinary and in the course of this Tribunal hearing. Also in circumstances where any finding, admitted or otherwise, of misconduct would render her liable to dismissal because of the existence of the previous warning it would not have been appropriate to seek to bypass that process. The real question was for Dr Herbert to decide on the sanction. That is to decide whether he had heard any potential mitigation such that looking at all the circumstances he was prepared to step back from dismissing. It was not appropriate to exclude the disciplinary hearing in its entirety and move to a pre-arranged disposal that avoided that outcome. But as we have said in the event Dr Herbert reviewing the matter fully and properly and was entitled to come to the view that it merited dismissal on notice which was the decision with which he took.[59]Although a number of other matters have been raised within this hearing we only need to deal with those that are relevant to the issues before us and none of those other matters impact upon the decision that we have just announced.[60]So the conclusion of the Tribunal is that the claim fails. There was not the doing of a protected act in either alleged instance. There was only one detriment suffered which was dismissal and neither that nor any of the other putative alleged detriments had anything to do with the fact the claimant had raised her grievance, even if it had met the definition of a protected act within section 27. So the claim is dismissed in its entirety.
Findings
[1]We have concluded that the victimisation claim which we decided at the final hearing between 28th March and 1st April 2022 had no reasonable prospect of success. The precondition for making a costs order against the Claimant under rule 76 (b) of the Employment Tribunals Rules of Procedure 2013 is therefore satisfied.[2]The determination of whether or not the Claimant had done a protected act was something which could only properly be determined after hearing evidence. Although we decided on that evidence that neither of the matters relied upon did in fact constitute an express or implied breach of the Equality Act under section 27, it cannot be said that that element of a victimisation complaint had no reasonable prospect of success from the outset. It is noted that, for essentially the same reason, neither Employment Judge Deeley ay the case management hearing on 20th November 20202 nor Employment Judge Licorish’s tribunal on 9th March 2021 considered that this question was properly determinable as a preliminary issue.[3]The issue of whether or not the Claimant had been subjected to a detriment was similarly not one which could be said to have had no reasonable prospect of success. Although we decided that neither the alleged failure adequately to investigate the Dignity at Work complaint nor the failure to advise the Claimant of her right to appeal the outcome of that investigation did constitute any actual detriment to her, it is not disputed that certain witnesses were not interviewed nor that the outcome letter itself did not expressly refer to any right to appeal. In any event the third alleged detriment, the dismissal, was conceded to be such.[4]However, as set out in the Reasons for the initial judgment, there was no reasonable prospect of the Claimant establishing any causal link between any putative doing of a protected act and any of these three possible detriments. The fact of the Claimant having raised the Dignity at Work complaint was clearly not the reason why witnesses, whose evidence was not in any event at all crucial to the issues, were not in the event interviewed. Nor was it the reason why a reference to a possible appeal against the informal resolution, which would in practise have been effected by the submission of a fresh formal grievance, was omitted from the outcome letter. Indeed, no facts or arguments were ever advanced by the Claimant in the course of the hearing to even suggest that this might have been the reason for her having been subjected to these alleged detriments.[5]Similarly, there was never any reasonable prospect of the Claimant establishing, and nor did she establish any facts from which we might have concluded even that she could have been dismissed because she had made a Dignity at Work complaint. The Claimant was undoubtedly dismissed for having committed a number of proven acts of misconduct whist a final written warning for similar matters was stull current.[6]Having concluded that the claim therefore had no reasonable prospect of success we further consider that we ought to exercise our discretion to award costs under rule 76.[7]It was not until after the preliminary hearing before Employment Judge Rogerson, on 10th December 2019, where the Claimant was found not to have been disabled, that the issues on the sole remaining claim of victimisation could be finally identified. Unfortunately, all subsequent conduct of the proceedings suggests that the Claimant has still refused or been somehow unable to acknowledge the very limited scope of her subsisting victimisation complaints. Nor, therefore, does she appear to have engaged properly with the insurmountable evidential difficulties she faced in pursing this claim. It has however been brought to her attention in three costs warning letters, dated 16th January 202, 16th September 2020 and 25th February 2021 that the Respondent considered her victimisation claim to have no reasonable prospect of success and that it reserved the right to apply for costs and to refer to that without prejudice correspondent when doing so. Given the Claimant’s failure to heed those repeated warnings, even though they did not in terms spell out the precise deficiencies in the claim as now brought, and her persistence in bringing a claim which objectively had no reasonable prospect of success, we consider that she ought to pay a proportion of the Respondent’s costs, as sought, in its continuing to defend this claim after the end of the disability hearing.[8]The prolonged nature of these tribunal procedures has not, however, been solely due to the Claimant’s stance. The initial hearing on 2nd and 3rd September 2020 was adjourned part-heard because of technical difficulties in the CVP hearing and the Claimant’s reported ill-health. That adjournment directly necessitated the further preliminary hearing on 30th November 2020. The resumed hearing on 8th to 10th March 2021 then had to be further adjourned, again because there were technical issues but also because the tribunal itself had identified a good potential ground for the Claimant applying for further reconsideration of the strike out ff her unfair dismissal claim as being out of time, when it now transpired that it had in fact been brought within 3 months of the actual effective date of termination. The reconsideration hearing on 21st July 2021 was effectively therefore at the instigation of the tribunal. The matter then had to be remitted to an entirely new panel, rather than continue part-heard before Employment Judge Licorish’s tribunal, but again that is no fault of the Claimant.[9]It would not, therefore, be just and equitable to make the Claimant bear the Respondent’s costs of attending at these further hearings, although she should still be liable for all preparation costs after 11th December 2019 up to the eventual conclusion of the unmeritorious claim, and for the costs of the re-arranged 5-day final hearing.[10]Also under rule 84 we may have regard to the Claimant’s ability to pay in deciding the amount of any costs order. Because the Claimant is presently out of work, and has been since 31st March 2022, and reports limited assets, and because the expectation of her coming into any future inheritance is merely speculative on the part of the Respondent, we conclude, notwithstanding the fact that she does still have a potential earning capacity and has only limited outgoings whilst continuing to live with her parents and grandmother, that her immediate inability to pay a substantial sum should be taken not account.[11]The maximum sum claimed, subject to taxation in the County Court, but presumably including the hearing costs which we have discounted, is £69,831.20. The total cost over the entire history of this case will, of course, be appreciably higher. Whatever the taxed figure actually is, it still likely therefore to be well in excess of the £20,000.00 limit upon summary assessment, had we been invited to approach the application in this way rather than to remit it for detailed assessment. Taking account of ability to pay we consider that an order of this magnitude would not be appropriate. Although we are prepared to mitigate the impact upon the Claimant, the Respondent has nonetheless incurred significant costs. We therefor cap the total amount of any assessed costs at £17,000.00, whether or not that sum can be immediately recovered in any enforcement proceedings. It may be, therefore that it is not necessary actually to refer this matter for assessment.