Miss S Bailey v Chief Constable of South Yorkshire Police and others: 1800715/2021 and others

EMPLOYMENT TRIBUNALS

Case No 1800715/2021

Between

Miss S BaileyClaimant

Chief Constable of South Yorkshire Police and othersRespondent

Before

Employment Judge Maidment

Members

Ms M Cairns

Mr M Brewer

In person for claimant

Mr O Thorne (instructed by Counsel) for respondent

Date 4 March 2022

JUDGMENT

[1]The claimant’s complaint of direct sex discrimination against the fourth respondent is dismissed upon the claimant’s withdrawal of it.

[2]The claimant’s remaining complaints of unlawful discrimination, harassment and victimisation all fail and are dismissed.

REASONS

Issues

[1]The claimant has in fact brought 3 separate tribunal complaints in relatively quick succession which have been consolidated, managed and listed to be heard together at this final hearing. Within such complaints there are 8 named respondents. Within these reasons the term respondent should be read as covering the first respondent and all other respondents. However, where consideration is given to claims against the individually named respondents, they are also referred to by their name.

[2]The claimant’s complaints had been identified in relatively broad terms during the case management process. The parties were then to agree a list of issues. The claimant had prepared a table of allegations (which appears at pages 125 – 133 of the agreed bundle) from which the respondent had put together a list of issues (at pages 122-124). The claimant agreed that this was an accurate list and encompassed the entirety of her complaints.

[3]The claimant firstly brings complaints of direct race and/or sex discrimination. The acts of less favourable treatment were said to be: Mr Lee and Ms Marshall insisting that the claimant did a dyslexia test on 3 November 2020, Mrs Humphries sending the claimant home from duties on 12 November 2020 and Mr Harpham arranging for the claimant to be removed from the floor of the control room on 21 January 2021. The claimant was relying on the comparators Jordan Milner and Thomas Morrisroe, white British male employees who had been engaged to commence training to be switchboard operatives at the same time as the

[4]The claimant next brings a complaint of direct discrimination on the grounds of perceived disability. This relates to Mr Lee and Ms Marshall insisting that she did a dyslexia test on 3 November 2020. No actual comparator is relied upon. In the alternative, this treatment is said to amount to harassment i.e. unwanted conduct related to the protected characteristic of (perceived) disability.

[5]The claimant then brings separate complaints of victimisation. It is accepted by the respondent that the claimant’s grievance dated 16 November 2020 represented a protected act. The claimant maintains that because of that protected act: Ms Humphries invited the claimant to a probation review meeting, Ms Garrett denied the claimant access to the grievance outcome report, Ms Turp denied the claimant access to an Eyecare voucher and, finally, Mr Harpham recommended that the claimant’s employment be terminated. For the avoidance of doubt, it was clarified with the claimant that her complaint of victimisation extended to the act of dismissal itself. Mr Thorne did not maintain that this amounted to any widening of the issues requiring an application to amend.

[6]In a further complaint of victimisation, the claimant relies on her first employment tribunal claim brought under case number 1800715/2021 as representing a protected act. The respondent accepts that to be the case. The claimant is then said to have suffered the following detriments because of that protected act: the first respondent seeking to recover an overpayment of salary and Ms Dodwell providing the claimant with redacted documents (with third party information/data removed) when replying to her subject access request.

[7]The claimant withdrew her complaint of sex discrimination against Ms Marshall towards the end of the claimant’s cross examination of her. Evidence

[8]The tribunal had before it an agreed bundle of documents numbering in excess of 2033 pages and contained within 5 files. On the first day of the hearing the tribunal was provided with such bundle also in electronic form.

[9]Having identified the issues with the parties, the tribunal took time to privately read into witness evidence and relevant documentation on the first day of the hearing. Live evidence commenced on the second day. The tribunal heard firstly from the claimant. She had provided a witness statement. Towards the end of that witness statement she also however referred to 3 separate sets of correspondence during the proceedings where she said that she further detailed her claims, predominantly relating to the issue of the alleged overpayment and the redaction of the response to her subject access request. Without objection from the respondent, pages 1592 – 1599, 1663 – 1668 and 1346 – 1353 were accepted as additional witness statement evidence of the claimant. Then, on behalf of the respondent, the tribunal heard evidence from Mr Jamie Lee, communications trainer, Rachel Marshall, communications trainer, Emma Garner, tutor, Sally Pooley, tutor, Adele McGowan, resource manager, Rachel McMahon, tutor, Julie Humphries, tutor unit team leader, Suzanne Garratt, people specialist, Diane Turp, performance and support assistant, Taylar-Jayde Dodwell, information compliance clerk, Mr David Harpham, contact resolution centre manager, Joanne Jackson, head of people and organisational development Jacqueline Bland, director of resources and Mr Malcolme Jones, exchequer supervisor.

[10]The claimant represented herself and referred at times to herself suffering from stress and anxiety caused by the respondent’s treatment of her. Appropriate breaks were taken throughout the tribunal proceedings to aid the claimant and the tribunal ensured that she had advance notice of the stage reached in the proceedings so that she could properly prepare, in particular, in her cross examination of relevant witnesses. On an occasion where the claimant was unable to access the questions she had prepared on her computer, the tribunal adjourned to allow a cross examination to continue the following day.

[11]The claimant had taken time to prepare her questioning of the respondent’s witnesses. The tribunal at various times urged the claimant to focus on the issues in her tribunal complaint. At times the claimant was reluctant to put to witnesses the reason why she said she had been treated to her detriment. The tribunal ensured that each witness was faced squarely with the allegations made against them so that they had an opportunity to respond. All of the individual respondents were very firm in their denial of any discriminatory reason for their treatment of the claimant. The claimant did not always explore the basis of her allegation with the witnesses beyond, for instance, her being the only black female student in her intake, the lack of a history of black employees on switchboard and there being a conspiracy to remove her. The tribunal sought to assist the claimant in putting her case, but it could not, on the facts, always do so in terms beyond the claimant’s bare assertion of discrimination

[12]Having considered all the relevant evidence, the tribunal makes the factual finding set out below. Facts

[13]The claimant commenced employment with the respondent on 2 November 2020 to be trained as a switchboard operator and subject to a probationary period. She was one of 137 applicants for the position of switchboard operator of which a total of 16 were successful. Of those, 5 were male and 11 female. The claimant was the only black person recruited. The recruits included 2 Asian male employees. One of the 2 people on the claimant’s interview panel was Ms Julie Humphries, tutor unit team leader based at Atlas Court. Traditionally, the switchboard had been operated by a quite stable and small group of only around 6 – 8 employees. The respondent had, however, after a reorganisation, decided to increase the team in order to improve customer service. The evidence suggests that the claimant was the first black recruit into this team. The vast majority of trainee switchboard operators passed their probationary periods. In the claimant’s intake, she was the only person who did not.

[14]The respondent publishes an equal opportunities policy statement and expects all of its employees to comply with a code of ethics which includes adherence to a workplace fairness policy. The tribunal has heard evidence of the respondent being commended in broadening recruitment and participation, in respect of which it had outperformed other police forces, and of tactical initiatives to seek to be more representative of the community it serves. The respondent’s witnesses have accepted that work remains to be done before that objective is met. The initiatives described appeared to be focused on operational/frontline staff.

[15]The claimant accepted that whilst some of the calls received by a switchboard operator would be routine, others could be ones of an emergency nature involving a risk of harm. She agreed that there was a need to deal with calls consistently well, that there was a safety issue if an operator was not properly trained and that someone not giving their full attention to work would be a risk.

[16]The claimant was 45 minutes late for her first day at work and for the commencement of a 6 day period of classroom training. This element of training focused on customer service, knowledge of the law, risk assessments, IT systems and gaining an understanding of the various departments and procedures within the respondent. The training was delivered through a mixture of teaching, practical sessions and online training modules known as NCALT. This phase had been reduced from a normal 8 day to 6 day period. Ordinarily all students would complete a dyslexia test as a matter of course on the first day of classroom training to assist in identifying any areas where the respondent could provide additional support. Such tests were ordinarily conducted by Julie Humphries, tutor unit team leader, on the afternoon of the first day. However, the decision was made, due to the truncated timetable, to conduct this once the students moved on to the tutor unit (which was headed up by Ms Humphries) for the second tutoring/mentoring phase of the training.

[17]The initial classroom stage was led by two communication trainers, Mr Jamie Lee and Ms Rachel Marshall at Robert Dyson House. Their evidence is that on the first day they both observed the claimant falling asleep and that, when completing paper exercises, the claimant was the last to finish. They described the remaining tutees sitting and waiting for the claimant to finish (for as long as an additional 10 minutes), becoming impatient and frustrated at having to wait before moving on to the next stage. The trainers made a point of not highlighting the claimant as taking longer than the others. However, their evidence was of the claimant taking significantly longer to complete paper exercises, which in some cases involved a simple tick box self-assessment as to, for example, how they would each categorise their own listening style. Their evidence was also detailed and graphic as to the claimant closing her eyes and her head nodding and jolting on a number of occasions. They were adamant that they were not mistaken that the claimant had been “nodding off”. The claimant’s position is that on this day and on all of the other occasions when Mr Lee, Ms Marshall and a number of other people, as described in subsequent paragraphs, described the claimant as being asleep, she was not in fact asleep at all. She was, however, unable to explain these observations of her as being mistaken. In fact, her case is that all of the trainers and tutors who reported her being asleep were inventing this as part of a conspiracy to ensure that she failed her probationary period and was removed from the respondent’s employment. Mr Lee and Ms Marshall’s evidence as to their genuine perception that the claimant was falling asleep is accepted on the basis of their own credible accounts and as corroborated by similar observations, as will be described, throughout the claimant’s employment. The weight of evidence is such that the tribunal finds that on the balance of probabilities the claimant was for periods during her training not fully awake.

[18]Before the tribunal, the claimant has focused on Ms Adele McGowan, resource manager at Atlas Court, as orchestrating an effective campaign of disinformation to remove the claimant from her employment. Such role has previously been attributed by the claimant to Ms Humphries. Mr Lee and Ms Marshall denied that they had ever been spoken to about the claimant in this context by either of those managers. Again, their evidence was entirely convincing and, beyond the claimant’s assertion, the tribunal has been pointed to nothing which might evidence the existence of what, on the claimant’s case, would be an extremely wide ranging conspiracy by the point her employment terminated.

[19]The tribunal accepts that Mr Lee and Ms Marshall discussed whether they should speak to the claimant on her first day but decided against this, being conscious of the pressures there can be on the first day of a new job. Instead, they decided to observe the claimant’s behaviour the following day.

[20]On Tuesday 3 November Mr Lee and Ms Marshall observed the claimant with her eyes shutting and head slumping forward. The claimant might at one moment be alert, but within a few minutes her eyes were observed to be closed again and they believed that she was drifting in and out of sleep. Again, the claimant denied before the tribunal that this was the case. On balance her evidence is not to be preferred. The tribunal also accepts that they believed the claimant to be struggling with 2 further paper exercises, still answering questions up to 15 minutes after the last student had finished. To them, the claimant appeared to be having difficulty reading the paper and she was holding it up, moving it in and out and rotating it from side to side as if trying to focus on it. Mr Lee thought that the claimant might be having some difficulty in reading – he understood that for some people words could appear to swim around the page and that is what the claimant appeared potentially to be experiencing from what he observed. The tribunal notes that the claimant does require glasses to read – Mr Lee’s evidence was that the claimant was not wearing glasses whilst doing the paper exercises. The claimant, before the tribunal, said that she did nothing which amounted to a cause for concern. Again, this cannot be accepted.

[21]At the end of the training day, Mr Lee and Ms Marshall asked for a short meeting with the claimant in a private office. The claimant, in cross examination, denied that her behaviour suggested that she was struggling - the tribunal rejects such contention. This was indeed the purpose of the meeting. Mr Lee told the tribunal that the claimant said she had been doing “stuff” on the computer the previous night and this might explain why she was tired. The claimant agreed that she could have said this to him. This is both corroborative of the claimant’s sleeping having been raised with her and an, at least partial, recognition, by the claimant at the time that she may have appeared tired. The claimant said to the tribunal that being tired was different from falling asleep, but then denied that she said she was tired.

[22]They asked the claimant whether there were any domestic or medical issues that may have been causing her to fall asleep, but she said that there were not. In relation to apparent difficulties in completing the student exercises, Mr Lee asked the claimant if she had ever been tested for diagnosed with any form of dyslexia. She said that she never had been. The claimant agreed that she was then offered the opportunity to complete a dyslexia test the following day. She was told that this could be done confidentially during an extended lunch break. The claimant said that she was offended by the suggestion and at various times during this hearing has described it as an insult to her intelligence. She said that she had told Mr Lee that she was “articulate”.

[23]The claimant was referred to her claim that Mr Lee and Ms Marshall had ‘insisted’ that she did the test and to a reference in her subsequent grievance to having been ordered to do it. She said that this was accurate, because she had no choice to opt out. She accepted however that after 3 November there was no mention of the test. When the claimant refused, Mr Lee, in response to the claimant saying that she did not want to do the test but would do if forced, said that she was not going to be made to do it then but that it might help them to better support her with her training. He explained that the test would ordinarily have been completed by everyone on the first day and that all students would be doing it later when they transferred to the tutor unit. The claimant said that she would rather wait until then.

[24]Mr Lee and Ms Marshall both told the tribunal that the claimant was offered the test because she was the only student who was noticeably having difficulty with the exercises and they wanted to identify whether there was any underlying reason for this so she could be provided with support. They did not believe that she suffered from dyslexia. They recognise that they were not qualified dyslexia assessors. That was a possibility, but they simply wanted to identify if there was an underlying cause and thought it better for the claimant to take the test at the earliest possible point so that, if there was any support which could be provided, this could immediately benefit her and enhance her ability to learn when she was still in the early stages of her classroom learning. They thought that this was better than only identifying potentially sources of support after this teaching had been completed. The dyslexia test had been a useful tool for identifying, not just the possibility of dyslexia, but highlighting other specific difficulties tutees might have and how they might be assisted. Mr Lee thought that it might eliminate a potential reason why the claimant was having problems. Ms Marshall said that she had previously helped students by offering to provide the material in different coloured paper or with different font sizes. The claimant has not suggested that any other tutee was perceived as struggling with the course. She maintains that she was the only person of colour on the course and the only person asked to undertake a dyslexia test. Mr Lee said that no similar suggestion was made to another student as the claimant was the only student having difficulties/struggling with the course. The evidence of Mr Lee and Ms Marshall is accepted.

[25]The evidence, which can the tribunal accepts, is that Mr Lee and Ms Marshall believed that on Wednesday 4 November the claimant again appeared to be drifting off to sleep at various points, albeit not so frequently. Recognising that there had been some improvement, they decided not to raise it with the claimant that day.

[26]On Thursday 5 November, the claimant arrived on time but left the room and returned a few minutes after training had been due to start and proceeded to eat out of a styrofoam tray with a knife and fork. Mr Lee felt this to be disrespectful towards himself and the other tutees, but did not wish to challenge the claimant in front of the class. The claimant, in evidence, did not accept that she had eaten a full meal but rather “just a snack”. He noted then that once she had finished eating, she again began falling asleep with even greater frequency than she had done on the Tuesday – Mr Lee described the claimant as being asleep for around half of a lesson he presented. He explained that he could see the claimant clearly as she was sat at the front, commenting that these were the last chairs to be occupied and the claimant arrived later than other students. When she did ask some questions, he felt that they disclosed that she was not following the session.

[27]Mr Lee did, during a break, ask one of the students if anything had been distracting them and was told that the claimant sleeping and eating in class was distracting. He said that they were aware of this and would take action. He and Ms Marshall did try to speak to Adele McGowan, resource manager, but she was on leave that week. Ms Marshall did speak to another manager, Carla Rossiter, who advised speaking to the claimant and challenging her behaviour.

[28]At lunchtime everyone was given an extended break to give Mr Lee and Ms Marshall the opportunity to speak to the claimant. They spoke to her in a classroom away from other students and raised their concerns regarding her sleeping and eating, what they described as a full breakfast, in the class. The claimant agreed that they asked her if she had any medical issues. They also asked if there were any issues outside of work which were affecting her. She said that there were no such issues. She denied that she had been sleeping. They told the claimant that they would be reporting their concerns to their managers as her behaviour was not acceptable and was having a detrimental effect on other students. The claimant said that she was being picked on in response to which the claimant was told again that the issues were being raised because of her timekeeping, eating in class and primarily her inability to stay awake during lessons. The claimant’s said that she wanted to speak to the respondent’s equality officer. They said they would find out who that was and provide her with details. The claimant in her witness evidence suggested that she was harassed by Mr Lee and Ms Marshall constantly coming over to her, but in cross examination the claimant could not recall any other instances where they had spoken to her other than as just described.

[29]The tribunal rejects the claimant’s contention that the aforementioned concerns about her were invented as not credible.

[30]Mr Lee and Ms Marshall thereafter spoke to 2 members of the senior command team, Julie Lane and David Harpham, contact resolution centre manager. They advised them to keep a timeline of what had happened, which they then did by way of additions to a “day book” – a piece of paper used to maintain a record of anything that happened on the course, which might include student concerns. Mr Harpham recalled being told by Mr Lee in very general terms of the claimant falling asleep and her wanting details of the equality lead. He was given little detail and himself gave general advice on how to ensure that the claimant had the information she was requesting and about keeping a record of events. Mr Simon Mellors was also identified as the equality officer who confirmed that he was happy for his details to be passed to the claimant and also advised that they keep an accurate record of what had happened. That afternoon, Mr Lee wrote up the relevant events of the preceding days and added to the day book log as issues arose.

[31]In the afternoon break, the claimant asked Ms Marshall for the details of the grievance procedure stating that she felt she was being picked up and that her and Mr Lee did not want her to progress. She replied that they were seeking to support her. She asked how to put a grievance in. At the end of the day the claimant was given contact details for Mr Mellors, HR and the respondent’s grievance form.

[32]On 6 November the claimant was late in arriving. Mr Lee noted her as falling asleep on 3 occasions during his explanation of the NCALT training. He also noted that she seemed to be unfamiliar with basic IT procedures and functions. The claimant had difficulties in changing her call status from “ready” to “not ready”. The tribunal rejects the claimant’s contention that these detailed records of her performance were all lies. The claimant maintains that, if she had been behaving in such a manner, she would have been subject to disciplinary action. In fact, the respondent wished not to respond so quickly and in a formal manner, but rather to continue to monitor the situation. The final day of classroom training was on Monday 9 November. The claimant was again observed at times falling asleep and as struggling to log onto the training system causing a 15 minute delay in starting the exercises for the remainder of the class.

[33]The claimant was due to start the more practical tutoring phase of her training on Tuesday 10 November. She had previously asked if she could do this at Snig Hill rather than Atlas Court where she had been allocated. On 9 November, Ms Humphries emailed her to say that another tutee, Tim, was being moved over to Atlas Court to accommodate her request. She was told that her tutors would be Ema Garner for the first week and Heather Smith for the subsequent 2 weeks. The claimant responded saying that she was immensely grateful and that she was thoroughly enjoying her training. The claimant told the tribunal that this was a reference to the course itself, and she had not liked the way she had been treated.

[34]The claimant duly took the aforementioned dyslexia test with the rest of the cohort on 10 November as was the date planned for the test within this truncated training programme. She agreed then in cross examination, that her reference to the respondent insisting and ordering her to do the test was to the test she took together with all of the other tutees on 10 November. She agreed that on this day she did not say that she did not wish to do the test. She agreed in cross examination that she did not feel “degraded” on that day, as everyone did it together. There were no dyslexia indicators emerging from the claimant’s test.

[35]Prior to the tutor phase of the training, there was no formal debrief given to Ms Humphries as to the tutor unit team leader. Mr Lee had, however, called her on 9 November explaining, in particular, issues with the claimant falling asleep. The following day he sent her and Ms McGowan a copy of his log of events. Ms Humphries chose not to share this information with the tutors so as not to influence them and on the basis of her experience of some individuals struggling with classroom training, yet progressing better in the tutor unit which was a different learning environment.

[36]On 10 November Ms Garner noticed that the claimant was falling asleep when listening to her taking calls, with her eyes closed and her head nodding. Again, her evidence was detailed in a contemporaneous note made in her notebook and with the claimant only able to assert a blanket denial of ever falling asleep at all during her probationary period. That evening, Ms Garner emailed Ms Humphries stating: “Whilst I have been sat taking calls Sabrina has been falling asleep. When I have noted it I have tried to be a bit louder. I got up to get some water and suggested she get up for a walk around.” The claimant’s contention is that she was being scrutinised all the time and that this communication was part of a conspiracy involving all of the tutors. There is no evidence of such a conspiracy.

[37]On 11 November, the claimant asked Ms Garner if she could do some NCALT courses at home. The claimant denied before the tribunal that this was because she was worried about being slow, but said it was rather that the tutors were constantly coming over to her and not allowing her the time to complete them. Ms Garner suggested that it was better not to spend her time off doing the courses and said she would have a chance to complete them during the tutoring phase. On balance this evidence is indicative of the claimant struggling to complete the training. There is no evidence that the tutors were distracting the claimant. Later in the day, Ms Garner noted the claimant as being very slow on NCALT and that another tutor, Sally Pooley had noted the claimant to be sat with her eyes closed. Ms Garner emailed three of the tutors on 11 November saying that she had had a chat with Ms Humphries and asked them to keep an eye out as she couldn’t see the claimant from behind and to email her if she looked to be nodding off. Ms Pooley emailed Ms Garner at 13:45 reporting that the claimant was nodding off. Ms Garner replied that she could tell from standing behind the claimant, noting that she was on that part of the NCALT “for ages”.

[38]At 12:18, Ms McGowan emailed HR referring to them having had a conversation with Mr Harpham and Ms Lane about the claimant. She reported that on the claimant’s first day in the tutor unit everything had gone well until around 18:00 when the claimant was seen to be asleep when listening to a tutor taking calls. She said that she had asked that the claimant be monitored on that day, 11 November, and should she fall asleep again then spoken to in order to check on her welfare. She said that, being mindful of the previous week’s events, she did not wish to place any of the tutors in a compromising position with the claimant and asked for advice about managing the claimant moving forward.

[39]On 11 November, Ms Garner spoke to the claimant in a private office saying that she appeared to be falling asleep during the NCALT training and on the previous day when listening to her taking calls. The claimant said that she had not been sleep but had been resting her eyes in line with training on the use of display screen equipment which suggested that users blink their eyes every so often when using screens. The claimant accepts that she said that. Again, the claimant’s response is corroborative of the respondent’s staff genuinely perceiving her to be falling asleep. Ms Garner said that others had noticed the claimant falling asleep as well. She advised the claimant to be mindful of resting her eyes for long periods as it does look like she is asleep. Ms Garner emailed Ms McGowan shortly after her discussion with the claimant by way of an update.

[40]Ms Garner noted the claimant to be again closing her eyes whilst listening into a colleague taking calls between 17:15 to 17:50. She emailed Ms McGowan with this further update.

[41]The tribunal has seen some private messages between Ms McGowan and Ms Lane on 11 November. A message at 15:26 from Ms McGowan stated: “Sabrina Bailey fallen asleep yesterday and today!!” In another at 15:27 she stated: “Sabrina says the NCALT DSE says you should blink your eyes regularly. This is what she is doing apparently. Absolute joke.” Whilst the claimant was critical with Ms McGowan in cross examination as to how she had been referred to, this correspondence is not indicative of the allegation of sleeping being invented, certainly not by Ms McGowan.

[42]At 07:21 on 12 November Ms McGowan responded to Ms Garner thanking her for the update and asking her to continue to monitor the claimant. She shortly afterwards emailed Clare Rushen of HR asking if she was available to talk and describing the claimant as falling asleep at her desk amongst other issues. Sally Pooley emailed Ms Garner at 09:22 on 12 November describing the claimant as not just resting her eyes as her head was nodding and waking her up. The claimant said that this could not be true she had only just started work that morning at 08:00.

[43]On the morning of 12 November, Ms Humphries bought herself up to date with the issues raised regarding the claimant falling asleep – she had been copied into Ms Garner’s emails. She contacted Ms McGowan to say that the claimant had been seen again sleeping that morning. Ms McGowan decided to send the claimant home in circumstances where she was concerned that the claimant was not fit to be at work. She felt it would be best for the claimant to get some rest and see her GP. This was against the background of the reports of the claimant regularly falling asleep throughout her time in training. She asked Ms Humphries to speak to the claimant. She advised Ms Hunter of HR of her decision at 10:06 by email saying that she had sent the claimant home, stating: “she was fast asleep at her desk.”

[44]Ms Humphries indeed around that time met with the claimant in the presence of Ms Garner. The claimant has not materially disputed the note taken of that discussion. Ms Humphries asked the claimant how she was as she appeared to be falling asleep on a regular basis. The claimant denied that she had fallen asleep. She said that on one occasion she was just resting her eyes. When working on her NCALT she had her head down. Ms Humphries explained what tutors had observed. She asked if the claimant was sleeping okay or if there was any other reason for her falling asleep. The claimant said there was not and again disputed that she was falling asleep. Ms Humphries said she was concerned about the claimant’s health and suggested she speak to her GP. The claimant said that she was fit and healthy and there was nothing wrong with her. She said that this was a conspiracy against her and that they were making things up about her. Ms Humphries said to the claimant that this was not the case and that they wanted to support her to ensure she had the help she needed. The claimant did not agree. Ms Humphries at this point told the claimant to go home, saying she had concerns about her being fit enough to work and that she would be telephoned in the afternoon. The claimant duly left work.

[45]Ms Humphries spoke to Ms Rushen to advise her of the situation. She suggested holding a review meeting with the claimant on Monday 16 November. Ms McGowan also emailed Ms Humphries at 11:05, having taken her own advice from HR which was to the effect that they arranged a probationary review meeting the following Monday or Tuesday and then look to give the claimant a further 2 weeks to improve in the absence of which they would be looking to terminate her employment. She asked Ms Humphries to ask the claimant to consider visiting her GP if she felt it appropriate.

[46]Ms Humphries telephoned the claimant around 17:00 asking if she was okay. She told her that there would be a review meeting on the Monday and asked if she had contacted her GP. The claimant said that she hadn’t done this as she was a strong person, was fit and healthy and with no problems. She said that she had not been falling asleep and had been singled out by Mr Lee who she felt insulted her by suggesting she had a dyslexia test before the others. She suggested that allegations made about her performance were false. She described herself as feeling like “a lamb to the slaughter”. She said that she had been in the job 10 days. Ms Humphries should not be deceived by Ms Garner, who had fabricated everything and got her friends to lie about the claimant falling asleep. She said that a tutee, Joanna, would say that the claimant hadn’t fallen asleep and that she wished that there was some CCTV to confirm this. She said that if she was a white person this wouldn’t happen, her colour made her stand out to her instructors and that she had been treated less favourably than her white counterparts. She asked for a copy of the grievance procedure. Ms Humphries said that they were there to support her and that was what she was trying to do.

[47]On 13 November the claimant sent a leavers form to HR giving notice of her resignation. Within this she stated that she had been the victim of unfair and discriminatory treatment. Ms Rushen wrote to the claimant to ask if she wanted the opportunity to discuss her issues. On 16 November the claimant replied saying that she was happy to have a discussion the following day. At the same time, she provided a grievance she wished to submit. She said that she was the victim of discrimination and constructive unfair dismissal. She believed that there was a conspiracy to make her lose her job because she was black. She referred to her meeting with Ms Humphries where she said that she had been told: “You shouldn’t be here. You need to go home”. She said that when she tried to tell Ms Humphries that the allegations were completely false, she shut her down every time. She said that there were no women of colour at the Snig Hill site.

[48]Ms Garratt, people specialist (HR) spoke to the claimant on 17 November and sought to assure her that her concerns would be fully and independently investigated. She asked if the claimant would consider rescinding her resignation to allow this investigation to take place and the claimant confirmed that she would. She wrote to the claimant on 18 November confirming their conversation and to notify her that her resignation had been treated as rescinded. It was agreed that the claimant would remain at Snig Hill, but that her tutor would not report to Ms Humphries.

[49]It is noted that the claimant’s resignation had resulted in discussions involving Ms McGowan who questioned: “Why have her in the Department?”. This was a reference to her not believing that the claimant should attend work during her notice period. The claimant had expressed an intention to continue working and had emailed Ms Humphries on 16 November asking when she should return to work and what her shifts would be. The tribunal accepts Ms Humphries’ unchallenged evidence that ordinarily employees in this tutoring phase would not be required to work during their notice period as there would be little value in training an individual who would then be leaving. It was for that reason that she had not already provided the claimant with shifts and had not progressed in arranging the review meeting which had originally been scheduled to take place on the Monday. Ms Humphries discussed the issue with HR and it was agreed that the claimant could continue to attend work. The claimant indeed did return to work on 17 November tutored by Heather Smith, who was to report to another tutor, Rachel McMahon.

[50]On 19 November Chief Inspector Sharon Hancock was appointed as the Resolution Officer to determine the claimant’s grievance.

[51]On 20 November, Ms Smith noted that the claimant had been closing her eyes whilst doing NCALT, stating that she did this 5 times and looked very sleepy. She noted that the claimant kept jumping as though she was dozing off, then waking up. Another tutee, Sarah Morgan, was noted as suggesting that the claimant went to get a coffee as she looked like she was dropping off. The claimant replied that she was okay. The claimant denied that anything of the sort had occurred. Again, on the balance of probabilities the claimant did appear to be struggling to stay awake. The evidence is specific and from yet more sources.

[52]Ms McMahon also saw the claimant falling asleep on that day. She held a meeting together with Ms Smith on 23 November to address this. The claimant denied falling asleep and said that she had been blinking as advised to do so on the online training she had completed. The claimant said that she felt that “all eyes were on her”.

[53]The claimant emailed Ms Smith about their meeting on the afternoon of 23 November. She said that she was always awake and saw when Ms Smith was looking at her and repeatedly looking over at Ms McMahon. She said that she felt she was under the microscope. She described herself as the only new starter which had this level of scrutiny. This email was forwarded firstly to Ms McMahon and then on to Ms McGowan. She responded asking them to explain that the claimant was not being treated any differently to her colleagues and that everything was done with the intention of supporting tutees to embed their training. It was suggested that they explain that they did log onto other tutees machines if necessary. Indeed, tutors were able to listen in to the calls of those they were teaching by remote access.

[54]Ms McGowan emailed Ms Garratt on 24 November saying that she understood from Ms McMahon that tutoring the claimant was causing Heather Smith to feel very stressed and quite poorly. She referred to the claimant keeping her grievance emails open on her screen when she knew that Ms Smith could see them. She said that she appreciated that the claimant’s grievance was being looked into, but said that she was unsure how long they could continue with the situation given the constant emails and challenges made by the claimant of the staff tutoring her. Before the tribunal, the claimant said that she was simply working on her grievance whilst at work as she had been given no separate time to do so.

[55]Ms Smith emailed Ms McGowan shortly afterwards on 24 November saying that the claimant was looking up “harassment in the workplace” on her computer and was leaving correspondence such as her grievance on the screen. She said that she felt the claimant was intentionally doing this so that Ms Smith would see it.

[56]Ms McMahon emailed Ms McGowan on 24 November saying that one of the claimant’s colleagues had noticed her nodding off again and asked if they should address this with her. Ms McGowan replied asking her to mention this to the claimant if she had seen it herself, which she confirmed she had, and make a note of it. Ms McMahon and Ms Smith met with the claimant again on 24 November and explained the reasons for the way in which she was being tutored. The claimant repeated that she felt that she was being scrutinised and singled out. The claimant was advised that she should not be worried about asking either of them questions and that they were there to support her. Ms McMahon continued that she had advised the claimant that she had seen her nodding off again that afternoon, but the claimant denied this saying that she sometimes might close her eyes, but that this didn’t mean she was asleep.

[57]All of the tutees were seen by Ms McMahon on 24 November for their oneto-one meetings regarding performance. She did not, however, hold such a meeting with the claimant given the meeting she had had with her accompanied by Ms Smith. Due to the discussions on 23 and 24 with the claimant, she didn’t see the point in a separate one-to-one meeting. She felt that the claimant had had a chance to discuss her tutoring and any development issues during these discussions.

[58]Ms McMahon emailed Ms McGowan on 26 November asking if the claimant was going to be starting her switchboard role with the others the following week. She continued: “Heather says her performance has improved greatly this week and cannot foresee any issues of her capability. I’m aware she missed some days and I was wondering if she will be offered those extra days tutoring or if she’s just going to be mentored like the rest.” Ms Humphries was not aware of this email until these tribunal proceedings. Ms McGowan responded asking that the claimant was to be given the 3 days she had missed to ensure that she received the same support as her colleagues. When put to her that this was supportive, to ensure that she did not miss out on any training, the claimant said it was a façade, it was to put her at a disadvantage and to prevent her from passing the training phase. She said that there was no issue with her capability. She said that Ms McGowan wanted to get rid of her and “is a racist lady”.

[59]Ms McMahon emailed Ms McGowan on 27 November with an extract from her notepad recording that she had noticed the claimant falling asleep, as had Ms Pooley and subsequently Ms Smith. The claimant said that those suggestions were not true and now that they could not stop her progressing for performance reasons, they switched to criticising her regarding sleeping. The issue of the claimant sleeping was on balance a continuation of her previous pattern of behaviour and not invented.

[60]Ms McGowan emailed HR on 30 November. She said that by the end of 7 December the claimant would have had her full tutoring hours and would then be due to be back in work on 12 December potentially performing her switchboard role solo. She reiterated that there were serious concerns about her being fit to perform the role given the number of occasions she had been seen asleep albeit recognising that the claimant constantly challenged this. It was agreed with HR that they would seek to support the claimant by way of a referral to occupational health. On 3 December Ms McGowan sent the claimant a text introducing herself and asking if she could speak with her – the claimant was not at work on that day.

[61]A call duly took place that day during which Ms McGowan explained to the claimant that issues had been raised with her regarding her falling asleep and she would like to make a referral to occupational health to support her. She said that she would send the claimant a copy of the referral, so the claimant could decide if she agreed to it or not. The claimant said that she was upset that Ms McGowan was saying that she had been falling asleep when she had never met her. Ms McGowan explained that this was based on what had been reported to her. She apologised for upsetting the claimant. The claimant’s evidence was that she had said her preference was to go to her own GP, albeit she confirmed that she did not refuse at this stage to be seen by occupational health. During the conversation the claimant asked if she could have a camera on her return over her desk. Ms McGowan said that she would look into this but couldn’t guarantee it. Ms McGowan was told that this would not be possible, but did not revert to the

[62]By email of 4 December Ms McGowan provided to the claimant a summary of their discussion and a potential occupational health referral. She confirmed that it was entirely the claimant’s decision whether to see occupational health, but asked her to confirm whether or not she was happy for the referral to be submitted. The draft referral referred to the claimant having been seen falling asleep at her desk, but also to the claimant disputing that to be the case.

[63]The claimant agreed that she said that she might go to see occupational health. An appointment was made for 17 December. It is noted at this stage that occupational health informed Ms McGowan on 14 December that the claimant had decided to decline their assistance and that the appointment had been cancelled.

[64]On 4 December the claimant chased Ms McGowan for a response to a request she had made to have a one-to-one meeting. Ms McGowan emailed Ms McMahon saying that she appreciated she had had many conversations with the claimant in recent days, but asked if a dedicated one-to-one could be carried out as soon as possible. Ms McMahon, as already referred to, told the tribunal that while she had had one-to-one meetings with all of the tutees on 23 November, she had not arrange such a meeting with the claimant as she had already spoken to her on a number of occasions regarding the aforementioned performance issues. The claimant was seen on the afternoon of 4 December by Ms McMahon. The claimant said that she was really enjoying her new role. The claimant was described as settling in well and now being happy to be working at Atlas Court as it had a better atmosphere. She said she was happy with the tutoring she received although at the time she had felt scrutinised and singled out.

[65]On 7 December PC Nicola Millward emailed Ms McGowan describing the work the claimant had done and referring to her as integrating well with her colleagues. She noted, however, that on a couple of occasions late afternoon she closed her eyes and nodded, but quickly corrected herself.

[66]The claimant met with Ms Hancock on 7 December to go through the outcomes of her grievance investigation. Ms Hancock had concluded that there was no evidence of discrimination and noted the support which had been offered to the claimant since she commenced her employment. However, she made a number of recommendations aimed at improving the respondent’s processes in the future. Ms Garratt understood that the claimant told Ms Hancock that she was not going to appeal. Before the tribunal, the claimant said that she had told Ms Hancock that she didn’t know whether she was going to appeal.

[67]The claimant had in fact emailed Ms Garratt on 30 November to confirm that once she received the findings of the grievance she did not wish to go through with the submission of her notice of resignation. In this, she said she had come to the realisation that it would be foolish of her to allow racism to force her out of her workplace.

[68]On 7 December Ms Hancock sent Ms Garratt the grievance report confirming that she had discussed her findings with the claimant. On 11 December the claimant wrote to Ms Hancock saying she had not received the written outcome and felt that information was being withheld about herself. Ms Hancock replied on 12 December assuring her that no information had been withheld and that Ms Garratt would be providing the claimant of a copy of Ms Hancock’s recommendations. Ms Garrett had been hoping to send the recommendations out on 11 December but ran out of time. The outcome letter together with the recommendations (and giving the claimant a right of appeal) was then sent out on the morning of 14 December. The claimant replied explaining that it been wrongly stated that Natalie Brown of HR had been present at the outcome meeting. This was Ms Garratt’s misunderstanding, who then provided the claimant with a corrected copy of the outcome letter.

[69]Ms Garratt did not provide a full copy of the grievance report, but rather simply the recommendations. Ms Hancock told her that her general practice was not to provide a copy of the full report and only to provide a summary of the findings and recommendations. Ms Garratt discussed the matter with Natalie Brown - her view was that the disclosure of the full report which would include interviews with other people could sometimes adversely affect future working relationships. Therefore, it was not always appropriate to disclose it. The full report was not therefore provided. Ms Garratt’s evidence was that this was the first formal grievance she had managed. The respondent’s grievance procedure referred to sending the “report/findings” to the complainant giving sufficient time for the contents to be reviewed before the outcome meeting. The respondent accepts that there had been no sharing of information at all prior to the outcome meeting.

[70]On 7 December, the claimant was receiving additional tutoring from Julie Whitehouse. Ms Whitehouse spoke to Ms McGowan and advised that she (Ms Whitehouse) felt that the claimant was not ready to progress from the tutor unit at that stage. She said that she felt that the claimant was not dealing with calls effectively in that she was not controlling the call and asking questions effectively. Based on those concerns and the concerns which had regularly been raised regarding the claimant falling asleep, Ms McGowan decided that it was appropriate for the claimant to remain within the tutor unit for a further period to demonstrate that she was able to carry out the role of switchboard operator with minimal supervision. Ms McGowan met with the claimant on 7 December in the presence of Natalie Brown. The occupational health referral was discussed which the claimant at this stage agreed could be submitted. Ms McGowan also made the claimant aware that there were still some areas of her performance which needed further development and that she would be provided with an action plan.

[71]Later that day Ms Humphries met with the claimant who said that the claimant would receive one-to-one support to help meet objectives. The claimant complained before the tribunal that she was given greater tutor support than others (she would term it greater scrutiny) and that this had prevented her from progressing. It did not. It enabled more support to be given to the claimant and was provided in a way which allowed the claimant to get on with her calls. Ms Humphries said that she would go through the objectives with the claimant on 21 December and that they would be reviewed again on 8 January 2021. During their meeting, they also discussed the eye test voucher scheme available through the respondent. Ms Humphries printed off a voucher which they completed at the meeting in respect of such eye test.

[72]The claimant was then absent on a period of leave from 8 December. On 16 December she lodged an appeal against the grievance outcome. The claimant returned to work on 20 December.

[73]On 21 December, Caroline Denton, switchboard team leader emailed Ms Humphries stating that an individual, Deborah, had just told her that when she went over to say hello to the claimant the previous day, the claimant was asleep and then woke up saying that it was NCALT that made her sleepy.

[74]Ms Humphries met with the claimant as planned on 21 December to discuss her objectives. Vivienne Davison of HR attended the meeting remotely. Ms Humphries had prepared an action plan prior to the meeting setting out the objectives she wished the claimant to work to. To support her in achieving those objectives it was confirmed that it was arranged for her to continue to have one-to-one tutoring for the duration of the action plan and for daily feedback reports to be prepared. Ms Davison emailed the claimant following the meeting outlining what had been discussed. The claimant was positive about Ms Waterhouse tutoring her, but said to the tribunal that she never wanted more tutoring and that Ms Waterhouse in fact was never genuine in wanting the claimant to succeed.

[75]On 31 December, Caroline Denton reported that the claimant was asleep and snoring on duty. PC Millward raised a concern that the claimant had been asleep during her shift on 28 December. She also reported that a switchboard operator, Sarah Morgan, had told her that she had been sat opposite the claimant and had seen her asleep several times during the afternoon. Again, it is unlikely that such reports were invented. These reports caused Ms Humphries to meet with the claimant again on 31 December accompanied by Ms Denton. She asked how the claimant was. The claimant said she had not been asleep and accused Ms Denton of spying on her. Ms Humphries asked if she would reconsider a referral to occupational health. The claimant said that they were trying to sabotage her. The claimant said that there had been some background noise from a computer stand which must have been what Ms Denton had heard. After the meeting, this was checked by Ms Humphries who added a paragraph to her note confirming that there was quite a lot of background noise.

[76]The review meeting with the claimant took place as planned on 8 January conducted by Ms Humphries accompanied again by Ms Davison. Ms Humphries had spoken regularly with the claimant’s tutors during this extended period in the unit, Lisa Foster and Julie Whitehouse. She had reviewed the daily feedback reports and had listened to a sample of the claimant’s calls. It was evident to Ms Humphries that, whilst the claimant had made some improvements and was dealing with some calls unaided, there were still inconsistencies in her performance, particularly with regard to listening, questioning, taking control and recognising emergencies. It was determined that the claimant would continue within the unit for another week i.e. to 16 January with one-to-one tutoring to allow a full appraisal of her performance to be conducted. This was explained to the claimant.

[77]Ms Humphries view was that, given the concerns about the claimant’s performance and the occasions of her sleeping on shift, it was necessary to convene a probationary hearing. That was the stage, conducted by a member of the senior leadership team, where consideration was given to whether a probationary period ought to be extended or whether employment ought to be terminated within that period. This Humphries, with the assistance of HR, began to put together a management statement of case.

[78]One of the claimant’s grounds of appeal against the grievance outcome referred to her not having been provided with the full report. Megan Dilworth of HR acknowledged the claimant’s grievance on 18 December, apologised for the claimant not receiving a full copy of the investigation report and confirmed that it would be provided. Ms Garratt’s evidence was that Ms Dilworth had spoken to her around this time and asked her to provide the claimant with a copy of the report. She described being significantly affected by events outside of the workplace at this time and that she understood in hindsight that she ought not to have been at work. She described her head as not being in the right place and that she had forgotten to deal with the matter and had somehow formed the view that Ms Dilworth was going to provide the report herself. The claimant chased this up by email of 10 January. This resulted in Ms Dilworth speaking to Ms Garratt, who told the tribunal that her error then became clear to her. She then provided the claimant with a full copy of the report (in unredacted form) on 11 January and apologised for the delay. She was adamant that she did not deliberately withhold the report and certainly not to punish the claimant for raising her concerns about discrimination. Her evidence was detailed and wholly convincing.

[79]Ms Humphries produced a very detailed management statement of case for the probationary review meeting. This included a log of events covering the entire period of the claimant’s training. Action plans and notes of meetings were included. Ms Humphries incorporated a schedule of calls from 21 December to 8 January 2021 identifying the number of calls which were dealt with unaided with no concerns, calls dealt with unaided where improvement was required and calls where there was a need to provide additional guidance and prompts. Whilst performance fluctuated, there were days where a significant number of calls had not been dealt with satisfactorily. On 21 December 51 calls were dealt with unaided, 8 were unaided but required improvement and 43 were not dealt with. On 7 January the figures were 17, 10 and 22 respectively and on 8 January 35, 11 and 9. A detailed log of individual calls during the period was included. On 23 December at 19:20, a caller had wanted to know when a particular police constable was on duty. The caller explained the officer’s involvement in the incident, but had to repeat this when the claimant asked for a second time whether that officer was dealing with the matter. On 5 January at 18:28, there was a comment from Julie Whitehouse that the claimant had her eyes closed and her head was nodding forward to the point where her chin was resting on her chest. That was the background to the claimant taking this particular call, where the claimant had not been able to hear clearly what the caller said and had put him through to communications without clarifying the issue. On 6 January at 18:51, a caller had reported a female having been released from court, but where there were concerns about her whereabouts. The claimant advised that he could be put through to communications but there was a long way time of 31 minutes as they were busy. It was noted that the claimant appeared to be confused as to what the caller was ringing about. On 7 January at 12:15 the claimant was noted as allowing the caller to explain too much information and taking almost 5 minutes to put the call through to communications. It is noted that the claimant did not suggest to Ms Humphries in cross examination that the call logs were inaccurate or incomplete.

[80]The claimant was invited by letter of 13 January to attend a probationary review hearing on 19 January before Mr David Harpham, contact resolution centre manager. She was given the right to be accompanied. The claimant asked for this to be rearranged for 22 January after she was due to receive her grievance appeal outcome and she was advised that it could be moved to 10:00 on 21 January, with the grievance outcome meeting arranged for 08:00. The claimant wanted to attend the meeting by Skype and arrangements were made for her to use a computer in a ground floor office.

[81]Mr Harpham was employed as a member of the senior command team on the same level as Ms McGowan. This was the third probation hearing he had chaired since taking up his role and has since chaired a further one. Prior to the hearing he had considered Ms Humphries statement of case and all the appendices. He asked Ms Humphries for recordings of calls, particularly where it had been said that the claimant had not met her objectives and listened to those himself. He ensured that he read through all the calls logged including those classified as “green” under a warning light system indicating that the claimant had performed the call satisfactorily and unaided. He noted that she had managed to complete a significant number of calls unaided, but considered that there were still a large number of calls where concerns had been raised or had required intervention. For him, those calls were of significance because of the potential risk to the respondent and the public. He wanted to ensure that the concerns raised were justified. It is noted that Ms Humphries had not included within the pack the email where Ms Smith on 26 November 2021 had noted an improvement in the claimant’s performance and that she was capable of working unaided – she did not in fact know about it. Ms Humphries accepted that she had not included all evidence and that it was recognised that the claimant had periods where she worked better. However, when reviewing performance in January and looking at the totality of the picture it was clear to her that the claimant had not managed to sustain a satisfactory level of performance consistently. Mr Harpham ultimately came to that conclusion also.

[82]As already referred to, the claimant was situated on the ground floor and attended the meeting by Skype. Mr Harpham was located on the second floor which is where the control room and switchboard staff were based. Ms Humphries was in the meeting room with him presenting the management case. Ms Davison attended by Skype. The video function within Skype was not however enabled and the meeting took place effectively as a telephone conference call.

[83]Mr Harpham explained at the outset of the hearing that they were there to discuss the claimant’s performance. The claimant wished to focus on issues she had regarding Ms Humphries and her tutors. She maintained that there was a conspiracy to remove her from the respondent. Mr Harpham formed the view that the claimant was unwilling to reflect on her performance or accept that there were any issues with it. That was a reasonable conclusion on the evidence.

[84]The claimant did not challenge Mr Harpham’s conduct of the meeting or how he had viewed her call handling in her cross examination of him. An issue did arise, however, when he came to adjourn the hearing to consider his decision. Mr Harpham asked the claimant to remain on the ground floor and not to come up to the second floor. He told the tribunal that he gave an identical instruction to other staff when dealing with sensitive meetings as he did not wish to put either the staff member or their colleagues in a potentially difficult or awkward position partway through a hearing which may result in the recommendation of a termination of employment. Asking the individual to remain on the ground floor also made it easier to locate them once he was ready to reconvene the hearing. The claimant had access on the ground floor to the canteen and a toilet if needed. When he asked the claimant to stay in the ground floor she raised no objection and gave no reason as to why she might wish to access the second floor.

[85]The claimant’s evidence is that during the adjournment she wished to check the computer system to see how much annual leave she had outstanding. Her view was that she was still employed and she did not see why she should not have access to the systems. Within a few minutes of the hearing being adjourned, the claimant came up to the second floor for that purpose. Mr Harpham saw her. He spoke to Ms Humphries. He did not wish to bring everyone’s attention what was going on by asking Ms Humphries to walk across the control room floor. He therefore asked her to ask Caroline Denton, who was managing the claimant at the time and who was in the switchboard area already, to speak to the claimant and ask her to return to the ground floor. There is no evidence that this request was carried out other than with an appropriate degree of sensitivity.

[86]The hearing was then reconvened after a further period of time. Mr Harpham confirmed that he was going to recommend that the claimant’s employment be terminated. He explained that his recommendation would be considered by HR for them to make a final decision. Having considered all the evidence, he did not have confidence that the claimant would reach the required standard of performance within a reasonable timeframe. This was despite evidence of extensive and extended levels of support being offered to the

[87]Mr Harpham subsequently prepared a management summary which he sent to Jo Jackson, head of people and organisational development. This included information from the management statement of case together with his own conclusions. In making his recommendation he said that the key considerations were the claimant’s inability to consistently achieve performance in line with expectations or reasonable timeframes, including the quality and accuracy of information given to members of the public, a lack of active listening, the length of time calls took, asking of irrelevant questions and the lack of effective decision-making. He viewed this against the extensive support which had been given to the claimant and the level of continued supervision required. Furthermore, he noted her inability or unwillingness to reflect on areas of improvement needed and therefore to take accountability. He considered that there was a continued risk to members of the public. He told the tribunal that the performance issues, together with the evidence he accepted of the claimant falling asleep at work, necessitated his recommendation that her employment be terminated.

[88]Having received Mr Harpham’s report on 26 January, Ms Jackson proceeded to consider this. She had a telephone call with Mr Harpham on 29 January during which Mr Harpham went through his report and answered comments Ms Jackson had marked up on it where she required some clarification. After the call she came to the decision that it was appropriate and reasonable for the claimant’s employment to be terminated. She was satisfied that the claimant’s performance had not reached the required standard and that she would not be able to undertake the role independently within a reasonable timeframe. She was satisfied that the claimant had been provided with appropriate support. Particularly significant to her was the claimant’s apparent unwillingness to accept that there were any issues regarding performance. She confirmed her decision to the claimant by letter of 29 January 2021, confirming also that she had the right for this decision to be reviewed in writing by Jackie Bland, director of resources.

[89]On 1 February the claimant emailed Ms Bland saying that she wished to exercise her right to a review and on 5 February provided her with grounds of appeal which raised, amongst other things, allegations of discriminatory treatment. She considered Ms Jackson’s review letter along with the management summary prepared by Mr Harpham. On reviewing the documentation, she believed that the decision was fair and ought to be upheld. She was satisfied that there was sufficient evidence to show that the claimant did not reach the required standard and that this was the basis for her dismissal which was in no way related to the grievance she had previously raised. As regards her suggestion that she was subjected to increased scrutiny than her colleagues, Ms Bland noted it was correct that her performance was closely monitored during the probationary period but without any evidence to suggest that this was disproportionate in any way. She confirmed her decision to the claimant by letter of 18 February.

[90]Whilst the claimant’s employment had been terminated with effect from 29 January, the claimant had not been processed administratively as a leaver and as such she had continued to be paid on 15 February for the month of February. The claimant was paid in the middle of each month, effectively 2 weeks in advance and 2 weeks in arrears. Originally an invoice had been sent to the claimant dated 2 March 2021 for a total amount of £1770.98. Ms Garratt within HR had been unaware of that at the time, but she had come to look into the matter with the finance department in April 2021. It became apparent to her that this figure had not taken into account the fact that the respondent owed the claimant a payment of 1 week’s money in lieu of notice and an amount for accrued but untaken holiday entitlement. Taking those elements into account, the total overpayment came to the reduced sum of £1404.11. Ms Garratt subsequently worked on a letter to be sent to the claimant from Jo Jackson providing a breakdown of the respondent’s calculation of an overpayment and apologising for the error. It was recorded in that letter of 12 May 2021 that it was regrettable that the original invoice was sent out without any accompanying explanation.

[91]On 4 June 2021, the claimant emailed Ms Bland seeking clarification as to whether or not she had been paid up to 18 February 2021. Ms Bland consulted with Natalie Brown who investigated and confirmed that the claimant had in fact been overpaid. Ms Brown drafted a letter on her behalf which was sent explaining the payments made and an amount which was said to have been overpaid.

[92]In cross examination, the claimant was taken through her payslips and other records indicating a payment on 13 November for that month in the net sum of £1337.80 with a tax code of 1250L. A net payment was made on 15 December for the whole of the month of December in the net sum of £1347.50 with a tax code of 181T. A payment was made on 15 January for the whole of January in the net sum of £1347.50 with that same tax code. The claimant left the respondent’s employment on 29 January and was paid on 15 February a net sum of £1412.80, again with the 181T tax code.

[93]The claimant maintained then that the respondent had deliberately applied the incorrect tax code to reduce her pay and that she had not in fact being overpaid. The (unchallenged) evidence of Malcolme Jones, temporary exchequer supervisor, was that the respondent had a real-time interface with HMRC who generated the tax code which the respondent had no option other than to apply. Any overpayment of tax was a matter he said which fell to be dealt with by the individual directly with HMRC.

[94]The claimant made a subject access request on 25 January for 2 emails from Ms Pooley to Ms Garner about her and an email from a work colleague to a supervisor about her on 24 November 2020. By email of 4 March she asked the respondent to ignore the request regarding the colleague’s email. She also, however, asked in particular for her grievance outcome report dated 7 December 2020 prepared by Ms Hancock. The claimant received the emails she requested with the names of third parties deleted. The claimant told the tribunal that her main concern was about the provision of the grievance outcome report.

[95]The claimant’s request was dealt with by Taylar-Jayde Dodwell, information compliance clerk. The claimant’s request had initially been assigned to one of her colleagues, but Ms Dodwell had just completed her training and was passed a pile of subject access requests to fulfil which were seen, on their face, as ‘quick wins’. The claimant’s subject access request was one of the first she had ever dealt with following her training.

[96]She responded to the claimant on 17 March. She explained to the tribunal that she redacted the information which she did not consider represented the personal data of the claimant and removed third-party data. In terms of the grievance report specifically, she redacted the statements that had been provided by other employees as statements made by third parties are generally considered to be their personal data. She also redacted all but one of the recommendations from the report as she considered them to be administrative data as to how the force could learn from a case like the claimant’s and improve processes in the future. This contrasted, she believed, with the personal data that the claimant be referred to occupational health. This recommendation was not redacted. Before the response was sent to the claimant, it was reviewed by a compliance officer who had been training Miss Dodwell.

[97]The claimant then emailed Miss Dodwell saying that she had denied her access to the grievance outcome report and that saying that her conduct was unprofessional. She said that she was going to make a complaint about her to the respondent’s professional standards department, which she subsequently did.

[98]An internal review was subsequently carried out in respect of the subject access request and it was determined that a less redacted version of the grievance outcome report could be provided. It was determined that no changes were required to the reductions made from the emails requested by the claimant. Miss Dodwell told the tribunal that unfortunately there had been a mix up internally and the outcome of the internal review was based on the less redacted version of the grievance report rather than the more heavily redacted version Miss Dodwell had originally sent to the claimant. The tribunal has seen an email from a data protection officer, Amanda Winder, of 30 September 2021 to the claimant in relation to a complaint that had then been received via the Information Commissioner. She explained that when the claimant emailed the respondent after receiving the original grievance outcome provided by the data compliance team, an internal review was opened and some of the redactions were removed. However, when another member of the team worked on the internal review their response was in relation to that lesser redacted version, unbeknown to them that this had not been the original version of the report sent to the claimant.

[99]Miss Dodwell told the tribunal that she was simply trying to do her job to the best of her ability in circumstances where she was new to the role. The redactions she had made were true and honest in line with the training she had received and in circumstances where it had to be recognised that there were grey areas and matters of personal judgement when it came to the degree of appropriate redactions. At the time she dealt with the request, she was not aware that the claimant had made a complaint to an employment tribunal although she was, given that she was reviewing the grievance outcome report, aware that the claimant had previously raised a grievance alleging discrimination. Miss Dodwell was a straightforward and convincing witness. The claimant could not point her to any evidence that she was following the instructions of anyone else who might have been seeking to frustrate the claimant’s request.

[100]It is to be noted that the claimant had of course already received a completely unredacted version of the grievance outcome report from Ms Garratt in January 2021. The claimant’s evidence before the tribunal was that she was seeking to determine whether the grievance outcome the respondent held on its own systems was the same which had been provided to her.

[101]The tribunal has already referred to Ms Humphries signing off an approval for an eye test voucher for the claimant. Ms Diane Turp is employed as a performance and support assistant, at an office away from where the claimant worked and not as part of the respondent’s HR function. Part of her role involved administering the respondent’s eyecare voucher scheme.

[102]Eye tests are funded by the respondent for employees who use display screen equipment. Individuals requiring glasses for visual display screen use, as confirmed by their optician, were then entitled to a £50 voucher towards the cost of the glasses. A separate scheme was available for individuals who needed to wear glasses for work with the option of purchasing glasses from the Norville Optical Range for which an employee would be charged a maximum of £42.70. Those were effectively reinforced safety classes, rarely requested and then only for the use of frontline staff.

[103]The necessary form, countersigned by Ms Humphries for an eye test voucher, was supplied to the claimant along with an accompanying information sheet. The sheet explained the two different types of schemes. The claimant subsequently returned the certificate of recommendation from her opticians along with the completed information sheet in an email dated 15 January. In that email she stated that she was seeking approval for a voucher to the value of £50 towards the purchase of glasses. However, the opticians’ prescription stated that her glasses were required for general use, not for use with visual display units. In such circumstances she was not entitled to the voucher. Ms Turp explain this to the claimant in her reply of 18 January.

[104]On 26 January the claimant responded saying that she was confused and that she thought she was entitled to assistance towards spectacles in the Norville Optical Range. The claimant asked that Ms Turp respond to her home email address. Ms Turp noted that the claimant had also ticked a box to say that she was requesting glasses from that range. Essentially, the claimant, on the face of it, was asking for both forms of assistance available.

[105]Ms Turp sought guidance as to the claimant’s entitlement before replying on 11 February apologising for the confusion and explaining the process for obtaining the Norville glasses. Ms Turp produced a voucher to present to an optician for glasses from the Norville range. To satisfy any optician, this had to be presented on the respondent’s letterhead and therefore a hard copy confirmation was sent to the claimant at her work address. Ms Turp was unaware of the claimant’s home postal address, but in any event assumed, inaccurately, that the claimant was still in the respondent’s employment. Applicable law

[106]The claimant complains of direct discrimination. In the Equality Act 2010 direct discrimination is defined in Section 13(1) which provides: “(1) A person(a) (A) discriminates against another

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

[107]Race, sex and disability are all protected characteristics listed in Section 4 of the 2010 Act. Section 23 provides that on a comparison of cases for the purpose of Section 13 “there must be no material difference between the circumstances relating to each case”. Section 39(2)(d) covers “any other detriment” as a potential act of unlawful discrimination.

[108]The Act deals with the burden of proof at Section 136(2) as follows:- “(2) If there are facts from which the court 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 provision”.

[109]In Igen v Wong

[2005] ICR 935

guidance was given on the operation of the burden of proof provisions in the preceding discrimination legislation and in particular the guidance set out as follows, albeit, with the caveat that this is not a substitute for the statutory language:- “(1) ….It is for the Claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the Claimant which is unlawful by virtue of Part 2…….. (2) If the Claimant does not prove such facts he or she will fail (3) It is important to bear in mind in deciding whether the Claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be ill intentioned, but based upon the assumption that “he or she would not have fitted in”. (4) In deciding whether the Claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. (5) It is important to note the word “could” in section 63A(2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw ….. from an evasive or equivocal reply to a questionnaire …………. (8) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts…….. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the Claimant has proved facts from which conclusions could be drawn that the employer has treated the Claimant less favourably on the ground of sex, then the burden of proof moves to the employer. (10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. (12) That requires a Tribunal to assess not merely whether the employer has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the Respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[110]The Tribunal also takes notice of the case of Madarassy v Nomura International Plc

[2007] ICR 867

. There it was recorded that Mr Allen of Counsel had put forward that the correct approach was that as Ms Madarassy had established two fundamental facts, namely, a difference in status (e.g. sex) and a difference in treatment, the Act required the tribunal to draw an inference of unlawful discrimination. The burden effectively shifted to the respondent to prove that it had not committed an act of discrimination which was unlawful. Mummery LJ stated:- “I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in treatment of her. …….. The Court in Igen Ltd v Wong

[2005] ICR 139

expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the Respondent committed an unlawful act of discrimination. … 57 “Could….conclude” …. must mean “a reasonable Tribunal could properly conclude” from all evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the Respondent contesting the complaint. Subject only the statutory “absence of an adequate explanation” at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like …..; and available evidence of the reasons for the differential treatment 58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the Respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the Tribunal then moves to the second stage. The burden is on the Respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.”

[111]The Supreme Court in Hewage v Grampian Health Board

[2012] UKSC 37

made clear that it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other.

[112]Pursuant to section 27 of the Equality Act 2010: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because – (a) B does a protected act; …. (b) Sub-paragraph (2) of this section provides: (2) Each of the following is a protected act – (a)bringing proceedings under this Act;…. (d) making an allegation (whether or not express) that A or another person has contravened this Act

[113]In this case there is no dispute that the claimant indeed did a protected act in her grievance of 16 November 2020 and by bringing Employment Tribunal proceedings where amongst other things it was alleged that she had been unlawfully discriminated against for reasons relating to race.

[114]As regards the meaning of “detriment” the Tribunal refers to the case of Chief Constable of West Yorkshire Police –v- Khan [2001] 1 WLR where it was said that the term has been given a wide meaning by the Courts and quoting the case of Ministry of Defence –v- Jeremiah

[1980] QB 87

where is was said that “a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”.

[115]To succeed in a complaint of victimisation, the detriment must be “because” of the protected act. This requires knowledge of the protected act.

[116]In the Khan case Lord Nicholls put forward that the “by reason that” element “does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach. For the reasons I sought to explain in Nagarajan –v- London Regional Transport, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases “on racial grounds” and “by reason that” denote a different exercise: Why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”

[117]It is clear from the authorities that a person claiming victimisation need not show that the detrimental treatment was meted out solely by reason of the protected act. If protected acts have a “significant influence” on the employer’s decision making, discrimination would be made out. It is further clear from authorities, including that of Igen Limited –v- Wong

[2005] ICR 931

, that for an influence to be “significant” it does not have to be of great importance. A significant influence is rather “an influence which is more than trivial. We find it hard to believe that the principle of equal treatment would be breached by the merely trivial.”

[118]The complaint of harassment is brought pursuant to Section 26 of the Equality Act 2010 which states: “(1) A person(a) (A) harasses another

(b) (B) if - A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of— violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B…. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— the perception of B; the other circumstances of the case; whether it is reasonable for the conduct to have that effect.”

[119]Harassment will be unlawful if the conduct had either the purpose or the effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. A claim based on “purpose” requires an analysis of the alleged harasser’s motive or intention. This may, in turn, require the tribunal to draw inferences as to what the true motive or intent actually was. The person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. In such cases, the burden of proof may shift from accuser to accused.

[120]Where the claimant simply relies on the “effect” of the conduct in question, the perpetrator’s motive or intention – which could be entirely innocent – is irrelevant. The test in this regard has, however, both subjective and objective elements to it. The assessment requires the tribunal to consider the effect of the conduct from the complainant’s point of view. It must also ask, however, whether it was reasonable of the complainant to consider that conduct had that requisite effect. The fact that the claimant is peculiarly sensitive to the treatment accorded him does not necessarily mean that harassment will be shown to exist.

[121]Harassment and direct discrimination complaints are mutually exclusive. A claimant cannot claim that both definitions are satisfied simultaneously by the same course of conduct – ‘detriment’ does not include harassment (Section 212(1) of the 2010 Act).

[122]Having applied the relevant legal principles to its factual findings, the Tribunal reaches the following conclusions.

Conclusions

[123]The tribunal considers firstly the complaints of the claimant regarding the raising with her of a dyslexia test by Mr Lee and Ms Marshall.

[124]The tribunal has found that they genuinely perceived that the claimant was slow in completing paper exercises and appeared to be struggling to read or process the written information, as illustrated by the way in which she held and rotated the paperwork. The evidence the tribunal has heard as regards the claimant’s apparent difficulties was detailed and convincing. The evidence of her being slow to complete the tasks was also indicative of the claimant standing out from the other tutees in her cohort in that they were being forced to wait for the claimant to complete a task, thus delaying the ability of everyone to move on to the next exercise.

[125]It was standard for the respondent to put all switchboard tutees through a dyslexia test. Indeed, this would ordinarily have occurred on the very first afternoon of the training. Due, however, to the truncated nature of the course, the date of the test had been put back until the tutees joined Ms Humphries’ tutor unit - she was the person qualified to undertake the test. Ms Marshall’s evidence was that she considered that the sooner any potential means of supporting the claimant was identified, the better, so that the claimant could obtain the full benefit of the switchboard training. The tribunal accepts her rationale.

[126]The complaint against Mr Lee and Ms Marshall is that they singled out and targeted the claimant in insisting that she did the dyslexia test. It is noted that there was no such insistence. Undertaking the dyslexia test was presented as an opportunity for the claimant. She was not told that she was ‘required’ to undertake it at an earlier stage to the rest of the cohort. When the claimant declined, Mr Lee and Ms Marshall sought to explain why they were raising the issue of the dyslexia test in an effort and hope that the claimant would see that it was a supportive measure which might identify ways of helping her in her learning.

[127]In any event, they are both said to have treated the claimant in so doing, less favourably because of her race. The claimant relies on Mr Jordan Milner as her comparator, an individual identified as white British. It was not suggested to Mr Milner that he undertake an earlier dyslexia test. However, there is no evidence whatsoever that he was struggling with the training or perceived to be, for instance, slower than anyone else or struggling with the paper exercises. He is not therefore a true comparator. The claimant’s complaint of race discrimination is reliant wholly on her being the only black tutee in this particular cohort. Her difficulty in showing facts from which the tribunal could reasonably infer discrimination is, however, that she was, on the evidence, the only person who was struggling with the training. There is no basis upon which the tribunal could conclude that the dyslexia test was raised because of the claimant’s race. Indeed, the tribunal is in a position to make the positive conclusion that the reason it was raised with her was as a means of potentially flagging up any support the claimant could be provided with in her training and at the earliest opportunity. In no sense whatsoever was it raised because of her race.

[128]The complaint of direct sex discrimination is pursued now against Mr Lee only. The rationale for that limitation in the claimant’s claim would appear to be simply that he is male. In this claim, however, the claimant cannot even say that she was the only woman in the cohort. Indeed, the majority of the tutees were female. Mr Milner is raised as a relevant male comparator but again what distinguishes his circumstances from the claimant’s is the fact that he was not perceived as struggling with the training material. The burden of proof does not shift, but again the tribunal is satisfied that the respondent has shown a non-discriminatory reason, already referred to, for the raising of the dyslexia test.

[129]The claimant then maintains that the raising of the dyslexia test was an act of direct disability discrimination. The claimant does not maintain that she was at any material time a disabled person, whether due to dyslexia or anything else. Her case is based upon Mr Lee and Ms Marshall perceiving that she was disabled. The tribunal concludes that they did not, however, have such perception. It is noted in this context that a person does not satisfy the definition of being a disabled person straightforwardly by a diagnosis of dyslexia. Dyslexia can and does affect people to varying degrees and many dyslexic individuals would not be individuals suffering a substantial adverse effect on their ability to carry out normal day-to-day activities.

[130]In any event, the tribunal, on the evidence, concludes that there was no perception of dyslexia. Mr Lee and Ms Marshall considered that there was a possibility that the claimant might be dyslexic, but no more. The dyslexia test is used by the respondent as a standard tool to identify not just any potential diagnosis of dyslexia but also any weaknesses a tutee might have which in turn could flag up the need to provide particular support to them. The only relevant perceptions that Mr Lee and Ms Marshall had were there genuine observations that the claimant appeared to have difficulty in reading and processing information. Even if there had been a perception of disability, there is no basis upon which the tribunal could reasonably conclude that they would have treated anyone who was observed as completing tasks significantly more slowly than the rest of the cohort and rotating the paperwork around in a way which suggested an inability to see/read the written information any differently. Any such individual would, on the evidence, have been asked if they would undertake the dyslexia test. All of the tutees were going to take the test regardless and any individual seen at an early stage in this particular training programme to be struggling would have been asked if they might take the test earlier so that they could be provided with any necessary support at the earliest possible stage rather than allow them to struggle on through a period of their training before any assistance might be provided.

[131]Finally, the raising of the dyslexia test is said to be an act of disabilityrelated harassment. Again, there was, contrary to the claimant’s assertion, no insistence that she undertake the test but rather the opportunity given for her to do so. The respondent asking the claimant if she would undertake the test was not related to any perceived disability. Mr Lee and Ms Marshall did not perceive the claimant to be a disabled person. They perceived her to be an individual who appeared to be struggling and who might benefit from support which might in turn be identified from the results of a dyslexia test the respondent used for all tutees as a standard tool. Mr Lee and Ms Marshall certainly did not have the purpose of creating an offensive environment for the claimant. The raising of the dyslexia test certainly did, on the evidence, have that effect. However, the tribunal concludes that it was not reasonable for the treatment to have had that effect in circumstances where, as a matter of fact, the claimant was significantly slower than others and struggling to complete the paper exercises. The claimant remains in complete denial in this regard, but the evidence and the claimant’s demeanour during this tribunal hearing is indicative in fact of the claimant struggling with her eyesight without the necessary corrective glasses or other aids. The claimant knew and must have known that she was struggling in completing the paper exercises. All of the claims of discrimination in respect of the dyslexia test fail and are dismissed.

[132]The claimant next raises as an act of direct race and sex discrimination, Ms Humphries sending the claimant away from the workplace in a manner which did not comply with the respondent’s policy/procedural guidance. The tribunal refers to its findings that the claimant was perceived to be frequently falling asleep including by Ms Garner and Ms Pooley at this stage. The claimant had been spoken to about this, but flatly denied that she was falling asleep. Ms Humphries genuinely believed the reports which were made to her. Indeed, she had already received reports from Mr Lee and Ms Marshall that the claimant had been falling asleep during the first phase of training, yet had not disclosed to the claimant’s tutors this observed pattern of behaviour. She did not wish the tutors to be influenced by what had been observed by others, but, when these new tutors reported that the claimant was falling asleep, it reasonably in the eyes of Ms Humphries provided further convincing evidence that this is what was occurring. Ms McGowan was of the same view.

[133]This caused Ms Humphries to speak to the claimant, on Ms McGowan’s direction. The claimant maintained that she was fit and well and had not been asleep. Ms Humphries asked the claimant to leave the workplace on 12 November during that discussion, again as Ms McGowan had directed.

[134]The claimant’s complaint of race discrimination is based on her being the only black tutee. She was not the only female tutee. Her difficulty is that she was the only tutee who was and was perceived as frequently falling asleep at work. That perception was why she and she alone was spoken to about sleeping. Ms Humphries and Ms McGowan treated this behaviour of the claimant as raising the potential of a health and welfare issue rather than one of misconduct. Ms Humphries tried to discuss the issue in an effort to persuade the claimant to seek medical assistance. The claimant would not recognise any problem. In the circumstances Ms Humphries thought that the claimant should leave the workplace i.e. in circumstances where she did not regard her as fit to be there.

[135]The claimant has pointed to no policy or procedure for dealing with such matters. Again, this was not any form of disciplinary suspension. On the facts, there is no basis whatsoever for the tribunal being able to conclude that the claimant was asked to go home because of her race and/or sex. The tribunal can again, however, make a positive conclusion that the only reason she was sent home was arising out of a concern for the claimant’s welfare and ability to be trained in circumstances where she was habitually falling asleep.

[136]Ms Humphries inviting the claimant to a probation review meeting is then raised as an act of victimisation. By this time, the claimant had raised a grievance against Ms Humphries which is accepted to have been a protected act in that it raised allegations of unlawful discrimination. The grievance had, however, been heard and the respondent’s understanding, on the basis of what the claimant had said having been given the outcome, was that she was not raising an appeal.

[137]The question is then the reason why Ms Humphries invited the claimant to a probationary review meeting. Of course, concerns regarding the claimant falling asleep and not meeting the performance standards requested, predated the claimant’s raising of a grievance. These were significant issues which remained to be resolved at the point the claimant raised her grievance. The tribunal has then found that instances of the claimant falling asleep and concerns regarding her dealing with calls and understanding the respondent’s systems persisted. They persisted to the point where the tribunal concludes that Ms Humphries genuinely considered that the claimant was not going to be able to be confirmed in post as a switchboard operator - a role which the claimant has described as at times a very easy and straightforward one, but which in fact is vital in terms of the respondent’s efficiency and public safety. An operator unable consistently to answer calls promptly and efficiently was not going to be an effective one. The claimant can and does point to calls which she dealt with unaided and to a satisfactory standard. She makes reference to Ms Humphries being aware of an email from Heather Smith on 26 November 2020 which recorded that the claimant had shown an improvement and suggested that she might be able to progress. However, the clear evidence is that any improvement was not in fact sustained.

[138]There is no basis upon which the tribunal could reasonably conclude that the invitation to the probationary meeting was because of the claimant’s sex or race. Again, the only comparator raised is Mr Milner who is not relevant comparator in circumstances where there were no concerns about him sleeping or not being able to perform the role. The tribunal concludes that any individual causing the respondent concern regarding their sleeping and not performing in the way the respondent observed of the claimant would have been invited to a probationary review meeting. The tribunal accepts that performance/sleeping was the reason for the invitation by Ms Humphries, untainted by any consideration of the claimant’s sex or race.

[139]Whilst not pursued in any questioning of the witnesses, the tribunal notes that in the claimant’s schedule of complaints she makes reference to the timetabling of the probation review immediately after the scheduled provision to the claimant of the outcome of her grievance appeal. Ms Humphries has explained to the tribunal that the probation review meeting was in fact scheduled for an earlier date and why 21 January 2021 was ultimately decided upon as the appropriate date where indeed the availability of Vivienne Davison was a particular consideration. It was not put to her that she ensured that the meeting followed soon after the claimant’s grievance appeal outcome had been provided and, if so, why. The tribunal is not therefore in a position to conclude that the timing was influenced by the claimant having raised the initial grievance against Ms Humphries. The tribunal does note that it might objectively be regarded as efficient to have dealt with and concluded the grievance process before the probationary review meeting.

[140]The claimant then as an act of victimisation complaints of Mr Harpham’s decision to recommend the termination of her employment. The tribunal concludes that he made that decision because of the view he took regarding the claimant sleeping on duty and not being able to meet performance standards as indicating that she would not be an effective switchboard operator and that her employment during the probationary period therefore ought to be terminated. Clearly, Mr Harpham did not take this decision lightly and only after a substantial review of calls which the claimant had handled and the evidence provided to him of her being asleep at work which he discussed in detail with the claimant at the review meeting and in circumstances where the claimant remained in complete denial regarding there being any problem. The claimant has suggested that Mr Harpham considered only negative instances of performance and did not take due account of occasions when she had met the required standards. That is not borne out by the evidence. Mr Harpham clearly viewed and had information of the claimant’s entire call history noting that a substantial number had been classified as calls conducted unaided and which might be classified as ‘green’ under the respondent’s warning light system. He was not aware of the aforementioned email from Ms Smith regarding the claimant improving in a particular time period, but he was aware of the much wider and detailed picture of the claimant’s performance at work. There are no facts from which the tribunal could reasonably conclude that his recommendation was because of the claimant’s raising of her earlier grievance and indeed the tribunal can and does positively conclude that the reason was solely because of his consideration of her sleeping/performance.

[141]Of course, Mr Harpham, under the respondent’s procedures, could and did only make a recommendation. That recommendation of the termination of employment was approved and actioned by Ms Jackson and upheld on an effective appeal by Ms Bland. Again, their decisions were based upon a review of all the evidence before Mr Harpham which they considered presented a picture of genuine concerns regarding the claimant’s ability to carry out the role. Their decisions were uninfluenced by any consideration of the claimant’s earlier grievance.

[142]A separate complaint of direct race and sex discrimination is brought against Mr Harpham arising out of his behaviour during the probationary review meeting. In particular, at the point where the meeting was adjourned for him to consider his decision, he asked the claimant to remain on the ground floor. The claimant agreed. Mr Harpham, the tribunal finds, did not want to put the claimant and others in a difficult and potentially embarrassing situation. The tribunal accepts that it was his normal practice to keep individuals who might be subject to a threat of termination of employment away from their colleagues during the hearing and decision making process. The claimant did not tell Mr Harpham she wished to access the second floor to check her annual leave records or for any other reason. When she did attend the second floor, he asked for the claimant to leave in a sensitive and subtle manner ensuring that Ms Humphries was not seen marching across the floor to escort the claimant out, but instead that the person then managing the claimant could have a quiet word with her to that effect. The claimant raises as a comparator a white male employee, Thomas Morrisroe. The tribunal has no idea why he is named as a comparator, for instance, instead of Mr Milner. There is no evidence that Mr Morrisroe was subject to a probationary review or any other type of performance-related meeting or allowed to remain or come into the presence of his work colleagues during an adjournment pending a decision regarding his future employment. He again appears to be a comparator merely because he is white and male but without reference to him being in any circumstances comparable to the claimant.

[143]There is no basis upon which the tribunal can conclude that she was asked to leave the second floor for any reason related to sex or race. Again the tribunal can make a positive conclusion that the claimant was asked to go back to the ground floor because she was in breach of an agreement to remain there which indeed was part of Mr Harpham’s normal practice of separating people subject to the possibility of dismissal from their colleagues. That decision was untainted by considerations of the claimant’s race or sex.

[144]A separate complaint of victimisation is brought in respect of Ms Garratt alleging that she denied the claimant access to the grievance outcome report because of the claimant’s protected act in raising her grievance. The claimant was told of the outcome at a meeting by Ms Hancock 7 December. Ms Garratt had hoped to send out the outcome on 11 December but did so in fact on 14 December. The full report was not sent to the claimant but rather an outcome and the recommendations. This was in circumstances where Ms Hancock had told Ms Garratt that her normal practice was not to provide the full report on the conclusion of a grievance. Ms Garratt had very limited experience within the respondent of handling grievances at this stage. The respondent’s policy refers to a requirement to provide the “report/findings” but not explicitly to the provision of the whole report. Natalie Brown of HR also advised Ms Garratt that sending the whole report, which included interviews with colleague witnesses, was not conducive to good future relationships. The tribunal accepts that that is why the full report was not sent at this stage.

[145]However, the claimant’s complaint appears to relate to a later stage. The claimant appealed against the grievance outcome on 16 December. One of her grounds was the lack of provision of the full report. Ms Megan Dilworth of HR determined that the full report ought to be disclosed to the claimant on 18 December. This did not occur however. The claimant chased the provision of the full report on 10 January. This prompted a discussion between Ms Dilworth and Ms Garratt as a result of which the report was sent to the claimant in full by Ms Garratt on 11 January. Ms Garratt gave the tribunal a very detailed and convincing account of how she was feeling at that time and that, due to circumstances outside the workplace affecting her, she really ought not to have been at work and was not in the right state of mind to efficiently perform her duties. She said that her failure to provide the full report was a mistake on her part and whilst assertions of mistakes might sometimes be treated by a tribunal with some scepticism, that was certainly not the case here, where also Ms Garratt described a misunderstanding whereby she had thought that Ms Dilworth was going to send the report to the claimant herself rather than that she expected that Ms Garratt to undertake the task. The was in no sense whatsoever related to the fact that the claimant had in her grievance made a protected act.

[146]The claimant then quite separately complains as an act of victimisation of Ms Turp’s failure to provide the claimant with an eye care voucher. The claimant sought an eye care voucher. She was provided with a leaflet which related to the provision of glasses where employees are required to view computer monitor screens for significant periods. The same information sheet referred to a separate scheme where safety glasses could be provided to employees at a significantly reduced cost. The claimant did apply for glasses for display screen usage. However, her optician provided a prescription for glasses for general use only. The claimant then filled in a request form where she in fact ticked a box asking for safety glasses.

[147]Ms Turp understood that the claimant was all along seeking glasses for computer use, but that a voucher to put towards such glasses could not be provided in circumstances where the optician’s prescription was not for that type of glasses. Whilst there was some confusion in the claimant’s request, perhaps not aided by the respondent using a single form for two different types of benefit relating to eyewear, Ms Turp’s decision was for the reasons she stated and unrelated to the claimant having done a protected act in her 16 November 2020 grievance. It is noted that the claimant was in fact going to be provided with safety glasses by the respondent at the reduced cost and, indeed, despite the fact that by the time this benefit was actioned she had already left the respondent’s employment. The claimant had asked Ms Turp to correspond with her at her personal email address which Ms Turp did. However, the authorisation to be given to an optician had to be on headed notepaper and provided in hardcopy form. That is why Ms Turp sent the hardcopy authorisation to the claimant’s workplace rather than electronically. The claimant obviously did not receive this in circumstances where she was no longer in employment.

[148]The tribunal notes in any event that Ms Turp was completely unaware of the claimant’s grievance. She worked in an administrative capacity outside the claimant’s line management chain and in a separate building in circumstances where she had no dealings with those who worked with or above the claimant other than in the processing of this type of otherwise innocuous request. Ms Turp’s evidence on that point was convincing and could not be challenged.

[149]The claimant then maintains that the respondent seeking to recover an overpayment from her was an act of victimisation. The tribunal has found that the claimant’s leavers form was not submitted when it ought to have been and therefore the claimant was not recorded in the respondent’s system as having left her employment as at 29 January. The claimant was paid in the middle of each month effectively two weeks in advance and two weeks in arrears. She had been paid in November for that month, in December for the month of December and on 15 January for the month of January. She was not due any payment of wages beyond that. However, due to the lack of recording of the claimant’s leaving date, she received her full payment of wages for the month of February on 15 February in circumstances where she had not been employed at all during that month. The claimant should simply have received then or, due to missing the payroll cut-off date, perhaps in March 2021, her one week’s payment in lieu of notice and a payment in respect of accrued but untaken holiday entitlement.

[150]This was subsequently recognised by the respondent, which resulted in it issuing a credit note and a revised invoice for a lesser sum which reflected that the claimant should retain an amount representing her notice and holiday entitlement and only repay the excess. A payslip was issued in June reflecting that adjustment.

[151]The claimant was overpaid and legitimately an overpayment was sought to be recovered. The only reason for the respondent seeking to recover the overpayment was that it was owed the money and as a public body it had an obligation and standard practice of recovering such overpayments of public money. That practice was not challenged in evidence. Its action was in no sense whatsoever related to the claimant having made an employment tribunal complaint.

[152]The claimant may well have been, during her employment with the respondent, on an incorrect tax code. There is no evidence however that the respondent falsely and deliberately put her on the wrong code, as was suggested albeit without any evidential basis. Any tax deductions flowed automatically from the code assigned to her, but any overpayment of tax fell to be dealt with personally by her with HMRC. The issue of tax was entirely separate to the recoupment of overpayment by the respondent which was with reference to the payment of gross salary for the month of February to which the claimant had no entitlement.

[153]The claimant finally as a complaint of victimisation maintains that Ms Dodwell provided the claimant with a redacted grievance outcome when replying to her subject access request. Initially the claimant had complained in respect of the redaction of names from 2 emails, but it was clear in her evidence and questioning of the respondent’s witnesses that the issue related to the grievance outcome. The tribunal has accepted Ms Dodwell’s evidence that she redacted what she thought ought to be redacted in compliance with data protection principles as reflected in the training which she had only recently completed. She believed that third-party information and any recommendations which amounted to administrative actions, rather than resolutions personal to the claimant, ought to be redacted. That belief is indeed reflected by the redactions she made. The retained recommendation relating to the claimant being referred to occupational health was personal to her and was not, the tribunal finds, left in to seek to put the respondent in a good light.

[154]The tribunal notes that Ms Dodwell had never met any of the claimant’s managers and has found that she received no instructions regarding the redaction of the grievance outcome. The request was given and put on a pile of requests to work through which were seen as potential “quick wins”. The tribunal notes that issues of personally sensitive information and information which ought to be disclosed pursued a subject access request are often a matter of judgement where different people can come to different conclusions. The fact that Ms Dodwell’s redactions were subsequently reduced in consultation with colleagues does not suggest any ill intent. Ms Dodwell did not victimise the claimant, who in any event already had the full unredacted grievance report.

[155]The tribunal would note finally that the claimant’s complaint is brought upon the basis of there being an overarching conspiracy driven by Ms McGowan and at times human resources to ensure that the claimant was removed from the respondent’s employment. There is no evidence whatsoever of any such conspiracy. The claimant might genuinely believe there to have been one, but it is a mere assertion in circumstances where the claimant clearly has had difficulties in recognising any failings on her own part and has demonstrated a lack of self-reflection.

[156]All of the claimant’s complaints fail and are dismissed.