Employment Judge AyreMr J Yamba (instructed by lay representative) for claimantMr N Price (instructed by counsel) for respondentDate 28 July 2023
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The claim for automatic unfair dismissal fails and is dismissed.[2]The respondent breached the claimant’s contract of employment by giving her one week’s notice of termination rather than four weeks. The respondent is ordered to pay the sum of £1,355.65 net to the claimant by way of damages for breach of contract.[3]The claim for pregnancy and maternity discrimination fails and is dismissed.[4]The claim for direct race discrimination fails and is dismissed.[5]The claim for victimisation fails and is dismissed.[1]The claim for automatic unfair dismissal fails and is dismissed.[2]The respondent breached the claimant’s contract of employment by giving her one week’s notice of termination rather than four weeks. The respondent is ordered to pay the sum of £1,355.65 net to the claimant as damages for breach of contract.[3]The claim for pregnancy and maternity discrimination fails and is dismissed.[4]The claim for direct race discrimination fails and is dismissed.[5]The claim for victimisation fails and is dismissed.
REASONS
[1]On 24 June 2022 the claimant issued proceedings in the Employment Tribunal following a period of early conciliation that started on 24 April 2022 and ended on 25 May 2022. Her claim included complaints of automatic unfair dismissal, discrimination on the grounds of sex and/or pregnancy or maternity, victimisation, and breach of contract.[2]The respondent is a charity that provides housing and support services to vulnerable young people including unaccompanied asylum seeker children. The claimant was employed by the respondent from 1 March 2021 to 21 February 2022 as a Residential Support Worker.[3]A Preliminary Hearing took place before Employment Judge Evans on 20 September 2022. At that hearing the claimant withdrew her claim of sex discrimination. A judgment dismissing that claim on withdrawal was sent to the parties on 3 October 2022. The claimant was allowed to amend her claim to include a complaint of race discrimination. There was a discussion about the issues in the claim, and it was identified that the claimant is bringing the following claims: Automatic unfair dismissal; Breach of contract; Pregnancy and maternity discrimination; Race discrimination; and[5]Victimisation. The Issues 4. The issues that fell to be determined at the hearing were identified at the Preliminary Hearing. At the start of this hearing the parties confirmed that they remain the issues in the claim, with one exception. The claimant applied to amend her claim of direct race discrimination to add another comparator, Lauren Lomas. For the reasons set out below we allowed the application to amend. 5. On day 3 of the hearing Mr Price conceded, on behalf of the respondent, that there had been a breach of the claimant’s contract of employment. This followed concessions made during the evidence of the respondent’s witnesses that the respondent had not complied with the provisions of the claimant’s contract in that the claimant had not been notified in writing that her probationary period was being extended.
The Issues
[6]The issues that fell to be determined therefore were the following: Automatic unfair dismissal (section 99 Employment Rights Act 1996)[7]The respondent admits that it dismissed the claimant.[8]Was the reason or principal reason for dismissal a reason falling within section 99 of the Employment Rights Act 1996 (“the ERA”)? The claimant says she was dismissed for a reason falling within regulation 20(1) and (3) of the Maternity and Parental Leave etc Regulations 1999, namely for a reason connected with her pregnancy – her absence from work due to a miscarriage. The respondent says that the reason for dismissal was a combination of performance and conduct. Pregnancy and maternity discrimination (Section 18 Equality Act 2010)[9]Did the respondent treat the claimant unfavourably by dismissing her?[10]Did the unfavourable treatment implement a decision taken in the protected period? The respondent says it did, because it says the decision to dismiss was taken in December 2021. It is common ground that the dismissal itself did not take place in a protected period because the claimant’s pregnancy ended on 25 January 2021 when the claimant had a miscarriage, and the dismissal took place more than two weeks after that.[11]If so, was the dismissal because of the claimant’s pregnancy or because of illness suffered by her as a result of it? Direct race discrimination (section 13 Equality Act 2010)[12]Was the dismissal of the claimant less favourable treatment? The claimant relies upon two actual comparators, Ms Kimberley Holland, and Ms Lauren Lomas, who the claimant says also failed to follow Covid guidance during lockdown, and upon a hypothetical white comparator whose performance during the first 11 months of employment was the same as the claimant’s. If so, was it because of race?[14]Did the claimant do a protected act on 22 December 2021 when she sent an email to Tracey Jackson (with Mr Marshall and Ms Lomas copied in)? The claimant accepts that the email did not contain an express allegation of a breach of the Equality Act but says that when read in context the email did contain an implied allegation of race discrimination. Was the dismissal of the claimant a detriment?[16]If so, was it because the claimant did a protected act? The Proceedings[17]The hearing was originally due to take place in person. The claimant applied to convert it to a remote hearing on medical grounds and her application was granted. The hearing therefore took place via Cloud Video Platform. Documents[18]There was an agreed bundle of documents running to 259 pages. There was a second bundle of documents running to 13 pages, which had been prepared by the respondent. The claimant did not object to the introduction of the second bundle but asked that some of the documents contained within that bundle be provided in an unredacted version.[19]The redactions that had been made to the documents were to remove the names and details of another employee or employees to protect their confidentiality. Having heard submissions from both parties it was the unanimous decision of the Tribunal that the documents should be admitted into evidence in the redacted form. The identity of the individuals contained within the documents is not relevant to the issues that we have to determine. It was open to Mr Yamba to question the respondent’s witnesses about the protected characteristics of those individuals if he wished to do so.[20]At the start of the hearing the claimant sought to introduce into evidence two additional sets of documents: 1. WhatsApp messages between the claimant and a Victor Gakanje, and a reference purportedly given for the claimant by Mr Gakanje; and 2. Medical evidence in relation to the claimant’s mental health following her dismissal by the respondent.[21]The respondent sought to introduce a letter purportedly prepared by Mr Gakanje in which he suggested that the reference had been ‘fraudulently extracted’ and that he did not support the claim that the claimant is bringing. My Gakanje, it appears, is an employee of the respondent.[22]We heard submissions from both parties on the admissibility of the additional documents and having retired to consider the position, it was the unanimous decision of the Tribunal that: 1. The documents relating to Mr Gakanje would not be admitted into evidence. They appear to have no relevance to the issues that the Tribunal had to decide, which in summary were (at the point we considered their admissibility, before the respondent’s concession in relation to the breach of contract claim)(a) what was the real reason for the claimant’s dismissal and(b) did the respondent properly extend the claimant’s probationary period. Allowing them into evidence would in our view divert from the real issues in the case and could prolong the hearing to little benefit. Both parties indicated they wanted Mr Gakanje to attend the hearing to be questioned. 2. The medical evidence would be admitted into evidence as it is potentially relevant to the question of injury to feelings and therefore to remedy. Mr Price would have the opportunity to question the claimant about it and to make submissions on the weight to be placed upon it.[23]On the second day of the hearing the respondent sought to introduce three additional documents, namely emails sent to the respondent relating to complaints made by a young person to his social worker about the way in which the claimant treated him. Mr Yamba did not object to the introduction of these documents, and they appeared to the Tribunal to be relevant as the complaint was relied upon by the respondent when dismissing the claimant. They were therefore admitted into evidence. Witness evidence[24]We heard evidence from the claimant and, on behalf of the respondent from: 1. Tracey Jackson, Deputy Chief Executive 2. Neil Marshall, Group Living Service Manager; and 3. Lauren Lomas, Project Manager.[25]It was originally intended that the claimant would give evidence first. However, it became apparent as she was about to start her evidence that she did not have a hard copy of her statement or the bundle. The claimant had joined the CVP hearing on her mobile telephone and told us that she also had electronic versions of the witness statements and bundle on her telephone. The claimant did have access to a laptop, but the Tribunal was concerned that she may be impeded in giving her evidence if she did not have a hard copy of the statements and bundle.[26]By agreement therefore, the respondent gave its evidence first to allow time for the statements and bundle to be sent in paper form to the claimant. An Order was made separately to that effect. The claimant was subsequently able to give evidence with a hard copy of the bundle and her witness statement in front of her. Application to amend[27]At the start of the hearing Mr Yamba applied for permission to amend the claim to include an additional comparator for the direct race discrimination claim, Lauren Lomas. Mr Yamba submitted that Ms Lomas is an appropriate comparator because she had been in contact with someone who had Covid on 21 December 2021 but was not dismissed. The respondent objected to the application to amend, and we heard submissions from both parties on the issue.[28]Having carefully considered the representations of each party, the Tribunal decided unanimously to allow the amendment. Whilst we were concerned that the application to amend was made at a very late stage, delay in itself is not a bar to an application being granted.[29]The nature of the amendment was not substantial. The claimant was not seeking to bring a new claim or to change fundamentally the existing claim. She was merely seeking to add a comparator. The comparator was present at the hearing, as were the decision makers in relation to the dismissal. They could all be asked about the suggestion that Ms Lomas was an appropriate comparator and why she had not been dismissed. We could see no hardship to the respondent if the amendment were allowed.[30]For these reasons we were of the view that the balance of hardship and injustice favoured allowing the amendment.
Remedy
[31]At the end of the hearing, having found for the claimant on the complaint of breach of contract following the respondent’s concession that it had breached the claimant’s contract, the parties were given some time to consider the question of remedy. Having done so, the sum of £1,355.65 net was agreed as being owing to the claimant in respect of three weeks’ salary.
Findings of fact
[32]The following findings of fact are made on a unanimous basis.[33]The claimant was employed by the respondent as a Residential Support Worker from 1 March 2021 until 28 February 2022 when she was dismissed.[34]The respondent is a charity that provides accommodation and support to young homeless people. 90 – 95 % of the young people that the claimant worked with were unaccompanied asylum seeking children. Most of them are vulnerable and have experienced trauma.[35]The respondent is an ethnically diverse organisation, both in terms of its staff and the young people it works with. It takes diversity seriously. It has an Equality, Diversity and Inclusion policy and provides equality and diversity training to all staff and managers.[36]The claimant’s employment and her dismissal took place against the background of the Covid pandemic when the pandemic was still at its height and guidance and regulations were changing frequently. As part of the social care sector the respondent was in the eye of the pandemic storm throughout the period of the claimant’s employment.[37]The claimant was one of 5 Residential Support Workers based at the respondent’s site in Granville Road. This site operated 24 hours a day and was staffed by 5 Residential Support Workers and a Project Manager. The site provided semiindependent accommodation for young people, many of whom were asylum seekers and all of whom were considered to be vulnerable. The claimant’s role was primarily to provide support to those young people, but she was also required to ensure that the public areas of the site were clean. Although the young people living in the accommodation were encouraged to keep it clean themselves, staff were expected to assist them to do so.[38]The claimant worked shifts, including waking night shifts, on a rota basis. She was initially employed part time, 30 hours a week. On 1 November 2021 her working hours were increased to full time, 37 hours a week. The claimant described this in evidence as a promotion. It was not. At the time the respondent was struggling for staff and extended the hours of other Residential Support Workers, not just the claimant. There was no change to the claimant’s terms and conditions other than an extension of the hours she was working and a commensurate increase in salary to reflect the additional hours.[39]The first four weeks of the claimant’s employment were an induction period. The claimant struggled with some aspects of her role and her induction period was extended. Three weeks after the start of her employment Neil Marshall, Group Living Service Manager, met with the claimant to discuss how she was getting on. He raised several issues with the claimant including that personal telephones should not be used whilst at work, the importance of cleaning, particularly given the Covid 19 pandemic, and the need to have her camera on and to be engaged during staff meetings.[40]At the time many of the respondent’s meetings were taking place remotely due to the pandemic. The respondent had noticed that the claimant was sometimes late to remote meetings, had her camera turned off and did not seem to be engaged. Tracey Jackson, the respondent’s Deputy Chief Executive Officer held an induction meeting via Zoom with new staff including the claimant. The claimant attended the meeting whist outside walking and with her camera switched off. This caused Ms Jackson concern, which she raised both with the claimant and Mr Marshall at the time.[41]On other occasions over the course of her employment the claimant also appeared to be attending work related meetings in inappropriate locations including public spaces and places where other people were present. This was of particular concern to the respondent because meetings included confidential discussions about vulnerable young people.[42]There were therefore concerns about aspects of the claimant’s professionalism and performance from an early stage. Initially however Mr Marshall sought to give her the benefit of the doubt and to support and encourage her to improve.[43]The claimant in her evidence to the Tribunal completely rejects the suggestion that she behaved in any way unprofessionally. She was also unwilling to accept that there were any issues with her performance or conduct.[44]During significant periods of time, particularly during night shifts, the claimant was the only worker on site, and she was therefore a lone worker. In light of this, and of the fact that some of the respondent’s staff were working from home due to the pandemic, communication between colleagues was particularly important. The claimant failed to check emails and to respond to them as quickly and regularly as the respondent expected.[45]There were also issues with the claimant not completing her time sheets in a timely manner, and Mr Marshall raised this with her.[46]Mr Marshall conducted a supervision meeting with the claimant on 8 June. During that meeting he gave the claimant positive feedback about her hard work, flexibility, and commitment to the role. He also raised a number of issues with her, including: 1. The need to ensure that the site was clean when she handed it over; 2. That she should be checking emails and dealing with them on each shift because much of the information about the young people was shared by email; 3. Time management because tasks were not being completed, particularly on waking night shifts when the young people were in bed asleep for much of the time;[47]Mr Marshall prepared a record of the supervision but did not share it with the claimant at the time. The claimant denies that the content of the supervision record was accurate or that there were any issues whatsoever with her performance of the role.[48]The claimant’s contract of employment contained the following clause: “3.3 This post is subject to a probationary period of six months, during which the employment may be terminated by either side with one week’s notice. Roundabout may decide to terminate employment if an employee has not consistently performed to a level commensurate with the post. Roundabout may alternatively decide to extend the probationary period to continue to monitor performance levels, which will be notified in writing, including agreed timescales to review the performance. You will continue to be supported by your line manager to achieve the desired levels of performance during any extension of your probationary period. 3.4 Except for dismissal for gross misconduct, the minimum notice of termination from both parties i.e.: Roundabout Ltd and the employee is as follows: Up to the end of the satisfactory probationary period 1 week Following successful completion of probationary period 4 weeks or statutory notice (whichever is greater). Statutory notice is currently 1 week for every full year of service. 3.5 The employer reserves the right to make a payment in lieu of notice should it so wish or to require you to remain away from work during your notice period. This is known as garden leave. “[49]The claimant’s probationary period was due to come to an end on 1 September 2021. No probationary review was carried out, and nothing was put in writing to the claimant to say whether she had passed her probationary period or not. She was not the only employee who did not have a timely probationary review. The reason for this was that the respondent, and Mr Marshall in particular, was under a great deal of pressure due to the pandemic. A number of staff were off with Covid or isolating at any one time and Mr Marshall’s priority, understandably, was to keep the service running in the best interests of the young people.[50]On 5 October 2021 Mr Marshall carried out a further supervision meeting with the claimant. He documented the meeting, but again did not share his notes with the claimant. This was unhelpful for the claimant. There was no discussion during this meeting of the probationary period.[51]During this meeting Mr Marshall again gave the claimant some positive feedback, with a view to encouraging and supporting her, but also raised some concerns. These included that: 1. She should not be spending time on her telephone whilst at work; 2. Her camera should be on during staff team meetings; and 3. She should read her emails.[52]The lack of any written extension of the probationary period, combined with the increase in the claimant’s working hours, which she was informed of in October 2021, and which came into effect on 1 November, caused the claimant, quite reasonably in our view, to form the view that she had passed her probation.[53]In September 2021 there was an incident involving the claimant on a trip to Skegness for young people and staff. The claimant fell asleep on the coach on the way back to Sheffield, and one of the young people filmed her sleeping. When the claimant realised this, she became combative with the young person, angry, animated, and unprofessional. The young person apologised, and Mr Marshall asked the young person to delete the video, which he did. Mr Marshall told the claimant that it was not acceptable or professional to ‘go off’ at a young person in the way that she had, and the claimant apologised.[54]The claimant’s evidence to the Tribunal was that in October 2021 she became pregnant, but sadly miscarried and lost the baby late in October. She also said that she became pregnant again in early December 2021 and lost the baby on 25 January 2022. She provided medical evidence however that was inconsistent with this version of events in terms of the dates, in the form of a letter dated 18 July 2022 from a Dr Joanne Hew. That letter referred to the claimant having early miscarriages in December 2021 and February 2022, on each occasion four weeks into the pregnancy. No explanation was provided for this discrepancy in dates.[55]The claimant told the Tribunal that she had informed Lauren Lomas, who was at the time her manager, of the first of these pregnancies at some point in October 2021. Ms Lomas’ evidence was that she had no knowledge that the claimant was pregnant until late January 2022 when the claimant told her that she had miscarried. In light of the inconsistences in the claimant’s evidence, including the inconsistency between her witness evidence and the medical evidence she relied upon, we prefer Ms Lomas’ version of events. We accept that Ms Lomas did not know that the claimant was pregnant or had suffered a miscarriage until 25 or 26 January 2022 when the claimant told her about the miscarriage in the second pregnancy.[56]We also find that Mr Marshall and Ms Jackson did not know that the claimant was pregnant until on or around 25 or 26 January 2022. The first time that the claimant suggested she had informed the respondent that she was pregnant in October 2021 was during her oral evidence to the Tribunal. She did not mention it in her claim form or in her witness statement. We find that she did not tell the respondent about her first pregnancy until giving evidence at this hearing.[57]During the period of the claimant’s employment, the respondent was particularly concerned to prevent the spread of Covid at its sites. If there were two or more confirmed cases of Covid at any site, that site could be closed down. This could have resulted in the young people living at the site becoming homeless as other agencies would not have been able to take them in. We accept that this was a situation that placed the respondent and Mr Marshall under extreme pressure.[58]The respondent implemented strict procedures designed to prevent the spread of Covid. These procedures changed over time, as government guidance and regulations changed. By December 2021 the respondent’s rules were that members of staff should carry out a Lateral Flow Test before coming on to site, should not attend site if they had any symptoms of Covid or had been in contact with someone who had tested positive, and should let their managers know if they had symptoms of Covid, had tested positive or had been in contact with someone who had.[59]On 20 December Neil Marshall sent a message to the respondent’s group WhatsApp chat asking if anyone needed any extra Lateral Flow Tests. The claimant replied that she did not have any Lateral Flow Tests at home. 21 December 2021[60]The following day the claimant came into work shortly before 11 am. She was coughing and displaying symptoms which are commonly associated with Covid. She wore a mask in the office. The claimant said in her witness statement that the symptoms she was experiencing that day were not ones of Covid, but rather ones of pregnancy. She did not however say what the symptoms of pregnancy were, and when asked in cross examination if she had been ‘coughing and spluttering’ that day, did not answer the question. The first time that the claimant suggested that her ill health on 21 December was due to pregnancy was during these proceedings.[61]There was a conflict of evidence as to what happened on 21 December. We prefer the respondent’s evidence which was consistent and credible, in contrast with the claimant’s. Lauren Lomas’ evidence was that the claimant appeared to be coughing frequently at work on 21 December and stated she was unwell. Mr Marshall when he spoke to her that day, records that she was coughing and spluttering and generally sounding unwell. He asked the claimant how she was, and she said she was really unwell but sat at work with a mask on.[62]Shortly after arriving at work the claimant received a text message from a friend who she had recently been in contact with saying that he had tested positive for Covid. She told Lauren Lomas who asked her if she had done a Lateral Flow Test before coming to work, in line with the respondent’s protocol. The claimant replied that she had not done one, and Ms Lomas asked her to take one there and then[63]Ms Lomas left the room as she was concerned about remaining with the room with the claimant who potentially had Covid and wanted to take advice as to what to do next. She asked the claimant to stay in the room and not to have any contact with the residents.[64]Ms Lomas sent a WhatsApp message to the management group chat asking for advice. She also called Mr Marshall who told her he would ring the claimant himself, as he was confused as to why she had turned up to work with Covid symptoms without doing a test and without telling management in advance.[65]Ms Lomas then went to buy some cigarettes, and when she returned to the office the claimant was emptying her drawers. Ms Lomas asked her why and the claimant replied that she would not be spoken to like a child, and that nobody could demand that she book a PCR test. The claimant became agitated and told Ms Lomas that she did not know how to do her job. The claimant then left the office and went home.[66]The claimant’s evidence to the Tribunal was that on 21 December she told Ms Lomas that she was pregnant. Ms Lomas’ evidence was that she did not. We prefer Ms Lomas’ evidence on this issue and find that the claimant did not disclose her pregnancy on 21 December. Ms Lomas was a credible witness whose evidence was consistent. In contrast, whilst we have no doubt that the claimant believed that she was telling us the truth, her version of events lacked credibility. It was not supported by any contemporaneous documentary evidence, and the claimant made allegations, including that documents such as the supervision records had been fabricated, without any evidence to support those allegations. During cross examination she repeatedly failed to give direct answers to questions that were put to her.[67]After the claimant went home on 21 December she was off work until 25 January., when she attempted to return. The reason recorded in the respondent’s records for her absence was that she was isolating. This is consistent with the claimant’s absence at that time being related to Covid rather than pregnancy.[68]Whilst the claimant was in the office on 21 December, Mr Marshall spoke to her by telephone after Lauren Lomas called him. The claimant answered the telephone coughing and spluttering. Mr Marshall asked her if she had tested positive and she replied ‘no’ but that she had been in contact with two people who had tested positive and had been suffering symptoms since 19 December. Mr Marshall asked her if she had any Lateral Flow Tests at home and she said that she did not.[69]Mr Marshall told her he was concerned that she had not followed procedure and would need to go home and isolate when Ms Lomas returned and book a PCR test. At this point the claimant became combative and said that no one would tell her what to do and that she would book a PCR test in her own time. The claimant put the phone down on Mr Marshall and ended the call.[70]The claimant said in evidence that Mr Marshall had shouted at her during this call. Mr Marshall denied this. We prefer Mr Marshall’s evidence on this issue. We found him to be a credible witness who was willing to accept that he had made mistakes and to make concessions where appropriate. For example, he acknowledged that he had not carried out a probationary review or sent the supervision notes to the claimant when he should have done.[71]The claimant remained off work until January 2022. On 25 January she attempted to return to work and Lauren Lomas began a return to work meeting with her. The claimant said that she was not feeling well and needed to call 111. Ms Lomas supported her to do this. The claimant then left work to go to the walk-in centre as the 111 call handler had suggested, and subsequently sent in a sick note saying that she had been seen at the Northern General Hospital for lower abdominal pain.[72]On either the 25 or 26 January 2022 the claimant told Ms Lomas by telephone that she had had a miscarriage. She subsequently submitted fit notes dated 1 February and 14 February certifying her as unfit for work due to miscarriage. Comparators[73]One of the claimant’s colleagues, a white employee named Kimberley Holland, tested positive for Covid on 5 July 2021. She woke up feeling unwell and contacted her manager to make the manager aware. At that point the respondent was not asking staff to carry out Lateral Flow Tests before coming into work. Ms Holland came into work, took her temperature in line with the respondent’s procedure at the time, and her temperature was normal.[74]Towards the end of her shift Ms Holland developed new symptoms, namely a problem with her sense of smell, and took another Covid test. She got the results of that test at approximately 8.30 pm, which was 30 minutes before her shift was due to end. She told her manager that she had tested positive and was asked to remain in the office and to sanitise her workspace, until the claimant (who was due to start work at 9pm) arrived. The manager then carried out the shift handover outside, Ms Holland left the building and isolated for 10 days.[75]Ms Holland complied with the respondent’s procedures as they were in force in July 2021. In contrast the claimant did not comply with the respondent’s procedures on 21 December because she did not test before coming into work and did not tell her manager that she had symptoms.[76]The claimant also compared herself to Ms Lomas, who is also a white employee. On 21 December after she had finished work, Ms Lomas went home and discovered that her partner was displaying Covid symptoms. She asked him to do a test, which he did, and the results of that test were positive. Ms Lomas then told the respondent that she had been in contact with someone who had tested positive for Covid and self-isolated for ten days. Ms Lomas also complied fully with the respondent’s covid procedures in place at the time.[77]The claimant’s evidence to the Tribunal was that Ms Lomas came into work on 21 December knowing that her partner had tested positive and that she had been in contact with him. We do not accept that evidence. We prefer Ms Lomas’ evidence, that she did not know whilst at work on 21 December that her partner either had symptoms of Covid or had tested positive, and that she only found this out after work that day. Decision to dismiss[78]The respondent had some concerns about the claimant’s attitude, performance and conduct throughout the course of her employment. Initially those concerns were not sufficiently serious for the respondent to take action. Matters came to a head however in December 2021 and in particular with the incident on 21 December, which Mr Marshall described as the catalyst for the decision to dismiss.[79]Mr Marshall was particularly concerned that by coming into work with symptoms of Covid and without testing the claimant was putting other people, particularly the young residents of the site, at risk of contracting Covid. The claimant also, on or around 22 or 23 December, removed herself from the respondent’s WhatsApp group chats, and appeared to have blocked the respondent’s telephone numbers. Several attempts were made to contact the claimant by telephone and WhatsApp without success. WhatsApp messages sent to the claimant were shown as undelivered, which is consistent with the sender of the message having been blocked by the recipient. This caused the respondent further concern and made it very difficult for them to contact her.[80]On 2 December 2021 Mr Marshall received a complaint from the social worker for one of the young people living at Granville site, M. The social worker worked for Sheffield City Council’s Children Looked After Service and was therefore independent of the respondent. She told Mr Marshall that she had received an email from M’s Independent Reviewing Officer who worked for a different part of Sheffield City Council (“the IRO”). M had raised concerns with the IRO about the claimant’s treatment of him. He said that he felt he was being treated differently to others and that made him feel he wanted to move and didn’t like the place where he was living. He gave examples to support his concerns.[81]Mr Marshall investigated the incident although was not able to speak to the claimant as she was off work.[82]On 4 January Mr Marshall received an email from the IRO herself asking for an update on the investigation and whether matters had been resolved. She sent a further email on 6 January in which she told Mr Marshall that she had been able to speak with M, who had told her that as the claimant was off work, the problems had been resolved.[83]As part of the respondent’s supervision processes, managers ask employees for their feedback on colleagues. On 13 January 2022 Ms Lomas carried out a supervision with a member of staff who gave feedback that the claimant needed to be more cheerful, and that the claimant was rude to Ms Lomas on the group WhatsApp chat. On 20 January 2022 during a different supervision meeting, another member of staff told Ms Lomas that the claimant created a sense of anxiety in staff and young people, set unrealistic targets and singled staff out, making them feel uncomfortable.[84]During December 2021 Mr Marshall and Ms Jackson began discussing the possible termination of the claimant’s employment. On 19 January 2022 Ms Jackson, Mr Marshall and Ms Lomas spoke about the issue, which they referred to as not extending or passing the claimant’s probation, because they were under the mistaken impression that the claimant was still within her probationary period. Ms Lomas was asked to begin preparing a probationary review document using a template that had been used for other staff, which she did.[85]Originally the intention was that what was called a probationary review meeting would be carried out on 27 January 2022 by Ms Jackson and Ms Lomas, as Mr Marshall was on annual leave. In the event, however, the meeting did not take place until 21 February because of the claimant’s ongoing sickness absence.[86]On 22 December 2021 Mr Marshall sent an email to the claimant, copying in Tracey Jackson, Lauren Lomas, and another colleague, with the heading “Can you call me back please”. In the email Mr Marshall explained that he had been trying to contact the claimant via phone and WhatsApp to discuss her absence from work and asked her to call him as soon as possible. He also asked her to clarify whether she had taken a PCR test. Alleged protected act[87]The claimant replied to his message in an email in which she wrote the following: “Also, it appears as though you overlook certain things that Lauren would do. I could be wrong but with all honesty. It is not the best feeling to have in a work environment. Lauren shouldn’t have left project that day, leaving me alone it my presence was a “concern”. Lauren should have address me and advised me to go home immediately. Instead, she decided to go out to buy some fags. I’m sure this will not be addressed. I am sure my opinion does not count anyway, but I thought to mention anyway. Thank you…”[88]Tracey Jackson replied to the claimant’s email suggesting a meeting in the new year to discuss the claimant’s concerns. In the event no such meeting took place.[89]The claimant suggested that her email of 22 December 2021 amounted to a protected act falling within section 27 of the Equality Act 2010 because it contained an implied allegation of race discrimination. Neither Ms Jackson nor Mr Marshall interpreted it as such. There was no evidence before us that the claimant ever complained of race discrimination during the course of her employment. The first time that the claimant raised the question of race discrimination was more than six months after the termination of her employment at the preliminary hearing in September 2022 when she applied to amend her claim to argue, in the alternative, that her dismissal was an act of race discrimination. Neither Mr Marshall nor Ms Jackson interpreted the email as containing a complaint of discrimination.[90]The claimant returned to work on 21 February 2022 and Mr Marshall held a meeting with her that he described as a probationary review meeting. It is regrettable that there was such a delay in arranging the probationary review meeting, and the claimant was not in any way to blame for that.[91]Mr Marshall was accompanied at the meeting on 21 February by Jonathan Edwards, Prevention Service Acting Manager who took notes. At the start of the meeting, the claimant asked if she could record it. She was expressly told that she could not record it. Notwithstanding this direct instruction she proceeded, without the knowledge or consent of Mr Marshall, to record the meeting.[92]At the hearing a transcript was provided of that meeting. There was no mention in the transcript of race, of the claimant’s pregnancy or of the email sent by the claimant on 22 December. At the end of the meeting having been told that she was being dismissed the claimant said: “…it’s fine, it’s all come to an end which is absolutely fine. Thank you for the opportunity that you’ve provided me with and I’m grateful for this moment right now. I wish you all the best.”[93]The meeting lasted approximately 50 minutes. During the meeting Mr Marshall shared with the claimant the concerns that he had about the claimant’s professionalism, conduct and attitude. He discussed the complaint received from the young person’s social worker and IRO, the incident following the trip home from Skegness, feedback from the claimant’s colleagues, and concerns about trust.[94]During the meeting Mr Marshall shared with the claimant a document headed ‘6 month probationary review meeting’ which summarised the concerns that the respondent had, including that: “…you did not follow procedure when showing COVID-19 symptoms and after being in contact with someone who had tested positive. …you became seemingly unwilling to engage with LL or NM when you were required to undertake a PCR test as per government guidelines to ensure there were no risks to other staff and young people… …we have several concerns about your conduct and attitude as a Roundabout staff member. There have been occasions when you have been confrontational in meetings, on the telephone, in person and via email. On one occasion this had to be challenged by the Deputy CEO in December when emails were unprofessional and combative towards your direct line manager and Group Living service manager. In addition, there has been a complaint from a young person to their IRO and social care about your attitude and work practice. Clearing out your work drawers, taking yourself out of work group chats, blocking your line manager/Granville Road landline numbers and responding to the team rather than your line manager and service manager are additional examples of a poor attitude that has been prevalent over the course of your recent employment…. You can be unprofessional and seemingly uninterested in staff team meetings. You are not always a team player, can be dismissive in your approach to essential work tasks and more recently, have been disrespectful towards management…”[95]Mr Marshall then told the claimant that, because of the concerns, the respondent considered that she was not performing effectively in her role and would not be passing her probationary period. He told her that she was being given one week’s notice of the termination of her employment, and that she could take that week as garden leave.[96]On 23 February 2022 a letter was sent to the claimant confirming that she was being dismissed on 28 February 2022 and setting out the final payments that would be made to the claimant. A further letter was sent the next day enclosing the claimant’s payslips and explaining that her pay had been recalculated following the end of her sick leave.[97]The claimant’s employment terminated on 28 February 2022. The decision to dismiss was taken in late December during discussions between Mr Marshall and Ms Jackson. There were then further discussions in January 2022 which involved Ms Lomas also, as she was asked to begin preparing the necessary paperwork. The decision to dismiss the claimant was taken jointly by Ms Jackson and Mr Marshall, at a time when they did not know that the claimant was or had been pregnant. At the time they took the decision to dismiss the claimant they did not consider her to have done a protected act under the Equality Act 2010. The law Automatic unfair dismissal for family leave
The law
[98]Section 99 of the Employment Rights Act 1996 provides that: “(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –(a) The reason or principal reason for the dismissal is of a prescribed kind, or(b) The dismissal takes place in prescribed circumstances. (2) In this section “prescribed” means prescribed by regulations made by the Secretary of State. (3) A reason or set of circumstances prescribed under this section must relate to – (a) pregnancy, childbirth or maternity…”[99]Regulation 20 of the Maternity & Parental Leave etc Regulations 1999 contains the right not to be unfairly dismissed in proscribed circumstances. The relevant provisions are the following: “(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if – (a) The reason or principal reason for the dismissal is of a kind specified in paragraph (3)… (3) The kinds of reason referred to in paragraph (1) and(2) are reasons connected with – (a) the pregnancy of the employee; (b) the fact that the employee has given birth to a child; (c) the application of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act; (d) the fact that she took, sought to take or availed herself of the benefits of, ordinary maternity leave or additional maternity leave…” Wrongful dismissal[100]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 gives Tribunals the power to hear claims for breach of a contract of employment or other contract connected with employment where the claim arises or is outstanding on the termination of the claimant’s employment. Discrimination on the grounds of maternity or pregnancy[101]Section 18 of the Equality Act 2010 states as follows: “(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity. (2) A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably – (a) because of the pregnancy, or(b) because of illness suffered by her as a result of it. (3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave. (4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave. (5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period). (6) The protected period, in relation to a woman’s pregnancy, begins when the pregnancy begins, and ends – (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.” Direct race discrimination[102]Section 13 of the Equality Act provides that: “(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”[103]Section 23 of the Equality Act deals with comparators and specifies that: “there must be no material difference between the circumstances relating to each case.” Shamoon v chief Constable of the Royal Ulster Constabulary [2003] ICR is authority for the principle that the relevant circumstances must not be materially different between the claimant and the comparators.[104]When determining questions of direct discrimination there are, in essence, three questions that a Tribunal must consider: 1. Was there less favourable treatment? 2. The comparator question; and 3. Was the treatment ‘because of’ race?[105]Section 136(2) of the Equality Act 2010 sets out the burden of proof in discrimination claims, with the key provision being the following: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision…”[106]There is therefore, a two stage burden of proof (see Igen Ltd (formerly Leeds Careers Guidance and others v Wong [ 2005] ICR 931 and Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205) which is generally more favourable to claimants, in recognition of the fact that discrimination is often covert and rarely admitted to. In Igen v Wong the Court of Appeal endorsed guidelines set down by the EAT in Barton v Investec, and which we have considered when reaching our decision.[107]At the first stage, the claimant must prove facts from which the Tribunal could decide that discrimination has taken place. If the claimant does this, then the second stage of the burden of proof comes into play and the respondent must prove, on the balance of probabilities, that there was a non-discriminatory reason for the treatment. This two stage burden applies to all of the types of discrimination complaint made by the claimant.[108]In Ayodele v Citylink Limited and anor [2017] EWCA Civ. 1913 the Court of Appeal held that “there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the respondent’s act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage.”[109]The Supreme Court has more recently confirmed, in Royal Mail Group Ltd v Efobi [2021] ICR 1263, that a claimant is required to establish a prima facie case of discrimination in order to satisfy stage one of the burden of proof provisions in section 136 of the Equality Act. So, a claimant must prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.[110]In Glasgow City Council v Zafar [1998] ICR 120, Lord Browne-Wilkinson recognised that discriminators ‘ do not in general advertise their prejudices: indeed they may not even be aware of them’. The Tribunal therefore has the power to draw inferences of discrimination where appropriate. Inferences must be based on clear findings of fact and can be drawn not just from the details of the claimant’s evidence but also from the full factual background to the case.[111]It is not sufficient for a claimant merely to say, ‘I was badly treated’ or ‘I was treated differently’. There must be some link to the protected characteristic or something from which a Tribunal could draw an inference. In Madarassy v Nomura International plc [2007] ICR 867 Lord Justice Mummery commented that: “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 had committed an unlawful act of discrimination.”[112]In Deman v Commission for Equality and Human Rights and others [2010] EWCA Civ 1276, Lord Justice Sedley adopted the approach set out in Madarassy v Nomura that ‘something more’ than a mere finding of less favourable treatment is required before the burden of proof shifts from the claimant to the respondent. He made clear, however that the ‘something more’ that is needed to shift the burden need not be a great deal. Examples of behaviour that has shifted the burden of proof include a non-response or evasive answer to a statutory questionnaire, or a false explanation for less favourable treatment.[113]Unreasonable behaviour is not, in itself, evidence of discrimination (Bahl v The Law Society [2004] IRLR 799) although, in the absence of an alternative explanation, could support an inference of discrimination (Anya v University of Oxford & anor [2001] ICR 847).[114]Under section 27 of the Equality Act: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith…”[115]Although Tribunals must not make too much of the burden of proof provisions (Martin v Devonshires Solicitors [2011] ICR 352), in a victimisation claim it is for the claimant to establish that she has done a protected act and has suffered a detriment. There needs to be some evidence from which the Tribunal could infer a causal link between the protected act and the detriment, for example, the detriment occurs soon after the protected act, or others were not treated in the same way.[116]It has been suggested by commentators that the three stage test for establishing victimisation under the pre-Equality Act legislation, endorsed by Baroness Hale in Derbyshire and ors v St Helens Metropolitan Borough Council and ors [2007] ICR 841 can be adapted for the Equality Act so that it involves the following questions:a. Did the alleged victimisation arise in any of the prohibited circumstances set out in section 27?b. If so, did the respondent subject the claimant to the alleged detriment(s)?c. If so, was the reason the claimant was subjected to the detriments that the claimant had done, or might do, a protected act?[117]Following the decision of the House of Lords in Nagarajan v London Regional Transport [1999] ICR 877 it is not necessary in a victimisation case for the Tribunal to find that the employer’s actions were consciously motivated by the claimant’s protected act. Victimisation may occur if the discriminator was subconsciously affected by the protected act, and it had a ‘significant influence’ on his or her treatment of the claimant. An employer can be liable for an act of victimisation even where the motives for the treatment of the claimant are benign.[118]Although an allegation that the employer has contravened the Equality Act does not need to be express in order for it to amount to a protected act, there must be some indication that the allegation relates to the Equality Act. In Beneviste v Kingston University EAT 0393/05 the claimant alleged that various grievances she had raised amounted to protected acts. She accepted that she had not at the time complained that her treatment was because of race or sex but said that she did not think that mattered. The Employment Tribunal held that the grievances did not amount to a protected act. That decision was upheld by the EAT which held that a mere criticism of an employer without any suggestion of discrimination is not a protected act.[119]Even an express mention of discrimination in a grievance may not be sufficient to amount to a protected act. In Chalmers v Airpoint Ltd EAT 0031/19 the EAT upheld the decision of an Employment Tribunal that a comment that actions ‘may amount to discrimination’ was not a protected act. In Fullah v Medical Research Council and anor EAT 0586/13 an allegation that the claimant had been ‘physically, verbally and psychologically bullied and harassed, discriminated and victimised both directly and indirectly; and I was at a loss to understand why’ was held, in context, not to amount to a protected act. The claimant had, on another occasion, made an explicit allegation of race discrimination, was articulate and well educated. The EAT accepted that the word ‘race’ did not have to appear in the complaint in order for it to amount to a protected act, but the context of the complaint must indicate that it falls within section 27.
Conclusions
[120]The following conclusions are reached on a unanimous basis having considered the legal principles set out above, the evidence before us and the submissions of both parties.[121]Following the concession made by the respondent in relation to the claim for breach of contract, there is just one key issue in this case: What was the reason for the dismissal or, if more than, one the principal reason? The respondent says that it was a combination of conduct (including attitude) and performance which caused it to lose trust in the claimant. The claimant says that it was, alternatively, the fact that she was absent due to pregnancy related illness, her race, the fact that she was pregnant, and/ or the fact that she says she raised a complaint of discrimination on 22 December 2021. Automatic unfair dismissal[122]The key question in this claim is whether the reason or, if more than one, the principal reason for dismissal was one of the reasons proscribed in section 99 of the Employment Rights Act 1996. The claimant asserts that the reason fell within Regulation 20(1) and (3) of the Maternity and Parental Leave etc Regulations 1999 in that it was a reason connected with her pregnancy because it was her absence from work due to a miscarriage.[123]The claimant did not adduce any evidence to support this assertion other than fit notes dated 1 and 14 February 2022 stating that she was absent from work due to a miscarriage and the aftereffects of that miscarriage. Although those notes were dated prior to the claimant being informed of her dismissal, they were dated after the decision to dismiss had already been taken.[124]We find on the evidence before us that the decision to dismiss was taken in December 2021 before the respondent even knew that the claimant was or had been pregnant, and before her sickness absence related to the miscarriage in January. The dismissal could therefore not be linked to either the pregnancy or the pregnancy related absence following the miscarriage on 25 January 2022. We do not accept the claimant’s evidence that she told Lauren Lomas about her first pregnancy in October 2021 and that she told her of the second pregnancy on 21 December. None of those involved in the decision to dismiss the claimant were aware, at the time they took the decision to dismiss, that the claimant was or had been pregnant.[125]We find that the claimant’s sickness absence and attendance were not part of the reasons why the claimant was dismissed. They are not mentioned in the probationary review meeting document. We accept the respondent’s evidence that the reasons for dismissal were those set out in the probationary review document and in the evidence of the respondent’s witnesses.[126]We find that the true reasons for the claimant’s dismissal were those set out in the probationary review document and discussed with the claimant at the meeting on 21 February, namely a cumulation of: 1. Concerns about the claimant’s professionalism; 2. Concerns about the claimant’s attitude and conduct; and 3. A loss of trust in the claimant.[127]We therefore find that neither the claimant’s pregnancy nor her absence from work following the miscarriage formed part of the respondent’s reasons for dismissing the claimant. The claim for automatically unfair dismissal therefore fails and is dismissed. Wrongful dismissal / breach of contract[128]The claimant was dismissed with one week’s notice. The respondent accepted in its evidence that it had breached the claimant’s contract of employment by not extending the probationary period in the manner set out in the contract. The claimant was therefore entitled to four weeks’ notice, rather than the one week provided by the respondent.[129]The claim for breach of contract therefore succeeds. The claimant is entitled to an additional three weeks’ pay by way of damages for breach of contract. The parties agree that the amount due in respect of three weeks’ pay is £1,355.65 net. By consent, the respondent is ordered to pay the sum of £1,355.65 net to the claimant. Pregnancy / maternity discrimination[130]For the reasons set out above we find that the decision to dismiss the claimant was taken before the respondent knew that the claimant was and had previously been pregnant. The respondent only became aware of that on or around 25 or 26 January 2022 when the claimant telephoned Lauren Lomas and told her that she had suffered a miscarriage.[131]We accept that the true reasons for the claimant’s dismissal were those set out in paragraph 126 above.[132]The claimant was not dismissed because of either her pregnancy or maternity and this claim therefore fails and is dismissed. Direct race discrimination[133]In reaching our decision on the race discrimination claim, we have reminded ourselves that discriminators rarely admit to discrimination. We have also considered whether, as Mr Yamba suggested, we should draw an inference that the real reason for the claimant’s dismissal was her race.[134]The claimant compared herself with two actual comparators and a hypothetical comparator.[135]We find that neither of the actual comparators that the claimant relied upon were in the same or similar circumstances to the claimant. Both Ms Holland and Ms Lomas had complied with the Covid protocols and rules that were in place at the relevant time. Ms Lomas did not become aware that she had been in contact with a positive Covid case until after she got home on 21 December, at which point her partner tested positive. She then followed the rules, informed the respondent and selfisolated. Ms Holland also complied with the rules in place at the relevant time, albeit that they were different to the ones applicable in December. There was, at the time that Ms Holland caught Covid, no requirement for the respondent’s employees to test themselves before coming to work.[136]In any event, the claimant was not dismissed just because of her breach of the Covid rules on 21 December, although that was the catalyst for her dismissal. She was also dismissed because of other concerns about her professionalism, performance, attitude, and conduct. There was no evidence before us to suggest that the respondent had any such concerns about either Ms Holland or Ms Lomas. There were, therefore, material differences between their circumstances and those of the claimant such that they are not appropriate comparators for the race discrimination complaint.[137]We have also considered whether the claimant was treated less favourably than a hypothetical white comparator whose performance was the same as the claimant’s would have been. There was no evidence before us to support this assertion, which was just that – a bare assertion, not supported by any evidence. In any event, the claimant was not dismissed just because of performance, but also because of concerns about her conduct and attitude. A white comparator about who the respondent only had performance concerns would not therefore have been in the same or a similar situation as the claimant.[138]The respondent is a diverse organisation whose service users are primarily asylum seeking children. It provides training in diversity and equality to members of staff and has a diverse workforce. There was no evidence before us from which we could draw an inference that the reason the claimant was dismissed was her race. Even the claimant did not suggest that the dismissal was linked to race until more than six months later.[139]The claimant has not discharged the first hurdle in the burden of proving that her dismissal could, in the absence of any alternative explanation, be due to race. In any event, the respondent has adduced credible evidence, which we accept, to show an alternative reason for the dismissal which was not linked to race.[140]The race discrimination claim therefore fails and is dismissed.[141]The first question in relation to this complaint is whether the claimant did a protected act falling within section 27 of the Equality Act 2010.[142]The complaint raised by the claimant on 22 December did not mention race or complain of discrimination. There was nothing in the circumstances surrounding the email that could have led the respondent to conclude that the claimant was complaining of race discrimination. No other allegations of discrimination were made by the claimant, and the claimant herself did not raise the issue of race discrimination until September 2022 some nine months after sending the email.[143]In line with the principle applied by the EAT in Beneviste v Kingston University EAT 0393/05 we find that the email sent by the claimant on 22 December 2021 was a mere criticism of an employer without any suggestion of discrimination. It is therefore not a protected act within the meaning of section 27 of the Equality Act 2010.[144]The claim for victimisation therefore fails at the first hurdle.[145]In any event we also find that the claimant’s dismissal was nothing to do with the email she sent on 22 December but was instead for the reasons set out above.[146]The victimisation claim therefore fails and is dismissed.
Conclusions
[1]On 22 July 2023 the claimant applied for reconsideration of the judgment which was delivered orally to the parties on 20 July. She also applied for written reasons, and these were sent to the parties on 7 August 2023.[2]Rule 70 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) provides that a Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original judgment may be confirmed, varied, or revoked.[3]Rule 71 of the Rules provides that applications for reconsideration shall be made either in the hearing itself or, in writing, within 14 days of the date on which the judgment is sent to the parties. The claimant’s application for reconsideration is therefore made in time.[4]Rule 72 of the Rules contains the process that must be followed when an application for reconsideration is made. The first stage is for the Employment Judge to consider the application and decide whether there are reasonable prospects of the judgment being varied or revoked. If the Employment Judge considers that there are no reasonable prospects of the judgment being varied or revoked, then the application shall be refused.[5]If the application is not refused at the first stage, there may be a reconsideration hearing and the parties will be asked for their views on whether the application can be determined without a hearing. The other party will also be given the opportunity to comment on the application for reconsideration.[6]When dealing with applications for reconsideration, the Employment Judge should take into account the following principles laid down by the higher courts:a. There is an underlying public policy interest in the finality of litigation, and reconsiderations should therefore be the exception to the general rule that Employment Tribunal decisions should not be reopened and relitigated. Finality in litigation is central to the interests of justice (Ebury Partners Ltd v Acton Davis 2023 EAT 40);b. The reconsideration process is not designed to give a disappointed party a ‘second bite at the cherry’. It is “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before” (Lord McDonald in Stevenson v Golden Wonder Ltd 1977 IRLR 474);c. The Tribunal must seek to give effect to the overriding objective of dealing with cases fairly and justly, which includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense;d. The Tribunal must be guided by the common law principles of natural justice and fairness;e. The Tribunal’s broad discretion to decide whether reconsideration of a judgment is appropriate must be exercised judicially “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation” (Her Honour Judge Eady QC in Outasight VB Ltd v Brown 2015 ICR D11); andf. The interests of both parties should be taken into account when deciding whether it is in the interests of justice to reconsider the judgment.[7]The overriding consideration when dealing with applications for reconsideration is whether it is necessary in the interests of justice to reconsider the judgment.[8]The claimant applies for reconsideration on the ground that, after hearing the respondent’s evidence during the course of the final hearing, she has obtained new evidence from one of her comparators in the discrimination claim, Ms Holland. That evidence, the claimant submits, tends to show that the respondent’s witnesses have misled and lied to the Tribunal.[9]The new evidence obtained by the claimant is in the form of WhatsApp messages which appear to be between the claimant and Ms Holland, in which Ms Holland appears to indicate that she did not take a lateral flow test before coming into the office on the day that she tested positive for Covid and did not take a test until she was in the office at 6pm.[10]In support of the application for reconsideration the claimant relies on the case of Ladd v Marshall [1954] 3 All ER 745 which she says is authority for the proposition that new evidence will be admissible if it:a. Was not obtainable with reasonable diligence for use at the original hearing;b. Is relevant and would probably have had an important influence on the hearing; andc. Is apparently credible.[11]The unanimous findings of fact made by the Tribunal in relation to Ms Holland are set out at paragraphs 73 to 75 of the judgment. The relevant findings can be summarised as follows:a. Ms Holland woke up feeling unwell and contacted her manager to make the manager aware;b. At the time the respondent was not asking staff to carry out lateral flow tests before coming into work;c. Ms Holland came into work, took her temperature in line with the respondent’s procedure at the time, and her temperature was normal;d. Towards the end of her shift she developed new symptoms and tested positive for Covid; ande. Ms Holland complied with the respondent’s procedures as they were in force in July 2021. In contrast the claimant did not comply with the respondent’s procedures.[12]The conclusions reached by the Tribunal on the question of Ms Holland are set out at paragraphs 135 and 136 of the judgment. The Tribunal found that Ms Holland was not in the same or similar circumstances to the claimant because she complied with the Covid protocols in place at the time (albeit that they were different protocols), whereas the claimant did not. The Tribunal also found that the claimant was not dismissed just because of her breach of the Covid rules, but also because of other concerns about her professionalism, performance, attitude, and conduct, and that there was no evidence that the respondent had any such concerns about Ms Holland.[13]The question as to whether Ms Holland did or did not carry out a lateral flow test before coming into the office is not material to any of the conclusions reached by the Tribunal in this case. The Tribunal would have reached the same conclusion whether or not Ms Holland did such a test. Firstly because the respondent did not require staff to carry out such tests at the time Ms Holland contracted Covid, and Ms Holland complied with the rules in place at the relevant time, and secondly because the claimant was not dismissed just because of her breach of the respondent’s Covid protocols, but for other reasons instead.[14]The new evidence that the claimant seeks to introduce would not therefore have changed the outcome of the hearing.[15]There is therefore no reasonable prospect of the original decision being varied or revoked, and the claimant’s application for reconsideration is refused. 14 August 2023