Mrs D Allen v Chartered Institute of Architectural Technologists and others: 2200042/2023 and 2200044/2023
EMPLOYMENT TRIBUNALS
Case No 2200042/2023, 2200044/2023
Between
Mrs D AllenClaimant(1) Chartered Institute of Architectural Technologists (2) Ms F Berriman (3) Ms J Rowland (4) Mr E Weir (5) Mr K Crawford (6) Ms T Page (7) Mr G SouterRespondent
Before
Employment Judge Joffe
Members
Ms T MarshallMr S PearlmanRepresented herself for claimantMs A Rumble (instructed by counsel) for respondentDate 21 October 2024
JUDGMENT
[1]The Tribunal has no jurisdiction to hear the claimant’s claim of unfair dismissal and it is dismissed.[2]The claimant did not have a disability within the meaning of the Equality Act 2010 at the time of her employment by the first respondent.[3]The claimant’s claims of disability discrimination are dismissed. Note: Oral reasons were given for this Judgment at the hearing. Written reasons will not be provided unless requested by a party within 14 days of the Judgment being sent to the parties. Case Number: 2200042/2023 & 2200044/2023
REASONS
[1]The First Respondent (‘CIAT’), which describes itself as a global membership qualifying body for the Chartered Architectural Technologist profession, is a not-for-profit regulated professional body funded by its members and affiliates. It is a small organisation with a headcount which has rarely exceeded 20, operating from headquarters in the City of London.[2]The Second to Seventh Respondents were at all relevant times employees or elected officers of CIAT.[3]The Claimant, Mrs Debbie Allen, is a black British woman of Caribbean heritage born in 1966. She is a conspicuously able and articulate individual, educated to Degree level, and shared with the Tribunal’s some information about her wide interests and accomplishments. Sadly, she has also faced challenges and sorrows in her personal and family life which have adversely affected her mental health. She was employed by CIAT in the full-time role of Projects and Events Assistant at an annual salary of £27,500 from 23 March 2022 until 19 December 2022, when she was dismissed with pay in lieu of notice, purportedly on the ground of poor performance.[4]By her claim form in case no. 2200042/2023, presented on 6 January 2023, Mrs Allen brought complaints of unfair dismissal and unlawful treatment under the Equality Act 2010 (‘the 2010 Act’) based on or related to her stated personal characteristics of race, sex, age and disability. All claims were resisted by all Respondents.[5]A second claim, also issued on 6 January 2023 (case no. 2200044/2023), added nothing to the first and we have accordingly dismissed it by consent without reference to its substance (Judgment, para (1)). What follows addresses case no. 2200042/2023 only.[6]At a preliminary hearing in public on 28 September 2023, Employment Judge Joffe dismissed the unfair dismissal claim for want of qualifying service and the disability discrimination claim on the ground that the mental health condition on which she relied was not shown to amount to a disability within the meaning of the 2010 Act.[7]At a private preliminary hearing on the same day, Employment Judge Joffe recorded the claims brought and the issues to which they gave rise. Her formulation was not challenged at the time and has been accepted by both parties as correct throughout, subject only to the need for it to reflect a subsequent amendment to the claim form.[8]That amendment was made at a further private preliminary hearing on 8 January 2024 before Employment Judge Brown. She granted an application by Mrs Allen to add a complaint of victimisation based on the conduct and outcome of her appeal against the decision to dismiss her. The judge made it clear that permission was granted subject to the right of the Respondent to resist the victimisation claim not only on its substance but also on the ground that it had been brought (by amendment) out of time.[9]The final version of the agreed list of issues is included as an appendix to these reasons.[10]The matter came before us in the form of a final, ‘face-to-face’ hearing on 7 October this year, with eight sitting days available. Mrs Allen appeared in person, with the support of a friend, Ms A Kenefeck. Although she understandably found the experience emotionally draining, she presented her case ably and with admirable restraint. The Respondent had the advantage of being represented by Mr B Jangra, counsel. Owing to anxiety, Mrs Allen made several requests for unscheduled breaks, which we were happy to grant. We also intervened on a number of occasions to assist her on matters of procedure and on the applicable legal framework.[11]We read into the case on day one of the allocation. On the morning of day two it emerged that the disclosure given by the Respondent might be incomplete because a set of documents (mainly, it seems, notebooks) accumulated by Ms Francesca Berriman, the Second Respondent, over her many years with CIAT, had not been scrutinised or passed to the Respondents’ solicitors for scrutiny. Mr Jangra’s instructions were that the documents might, or might not, shed material light on the issues before us and that no safe assessment could be made without abandoning the hearing and putting the necessary enquiries into train. The documents were part of a large collection stored in no particular order in a garage in Lincolnshire. It was agreed on all sides that a short adjournment of (say) 24 or 48 hours would not be sufficient to enable all necessary searches to be completed, all relevant or potentially relevant documents inspected, all necessary disclosure given, copying and pagination completed and so on. We explained to Mrs Allen that, in light of the most unsatisfactory turn of events, it was for her to decide on her strategy. She could argue for the hearing to be adjourned to a fresh date so that disclosure could be completed or she could content herself with the freedom to comment strongly on the Respondents’ evident failure to honour its disclosure obligations in full. Having been given time to reflect, Mrs Allen told us that she wished the hearing to go ahead. In all the circumstances, we considered that it was just and in keeping with the overriding objective to take the course which she proposed.[12]We then proceeded to hear evidence over days two to four, adjourning late that afternoon to day six (Monday, 14 October) to allow the parties time to prepare closing submissions. It was agreed that Mr Jangra would deliver his written submissions to Mrs Allen and the Tribunal by 5.00 p.m. on day five (the Friday). The effect of this was to allow Mrs Allen three days to prepare her closing submissions, with sight of Mr Jangra’s submissions throughout more than two of those days. On the morning of day six, having read the written submissions on both sides, we heard Mr Jangra’s brief oral argument, followed by the oral address of Mrs Allen. Shortly before the lunchtime break on that day, with the agreement of the parties, we reserved judgment. Our private deliberations occupied the remainder of the sitting day. The Legal Framework Direct discrimination
The Legal Framework
[13]The 2010 Act protects employees and applicants for employment from discrimination and analogous torts based on, or related to, a number of ‘protected characteristics’, which include sex, race and age. Chapter 2 lists a number of forms of ‘prohibited conduct’. These include direct discrimination, which is defined by s13 in (so far as material) these terms: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. By s23(1) and (2)(a) it is provided that, for the purposes of (inter alia) a direct discrimination claim, there must be no material difference between the circumstances of the claimant’s case and that of his or her comparator and that (for these purposes) the ‘circumstances’ include the claimant’s and comparator’s abilities.[14]In Nagarajan v London Regional Transport [1999] IRLR 572 HL Lord Nicholls construed the phrase ‘on racial grounds’ in the Race Relations Act 1976, s1(1)(a), in these words: If racial grounds … had a significant influence on the outcome, discrimination is made out. High authority establishes that introduction of the ‘because of’ formulation (which replaced ‘on racial grounds’, ‘on grounds of sex’ etc in the pre-2010 legislation) did not materially change the law (see eg. Onu v Akwiwu [2014] ICR 571 CA). Harassment 15 2010 Act defines harassment in s26, the material subsections being the following: (1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in sub-section (1)(b), each of the following must be taken into account – (a) the perception of B; (a) the other circumstances of the case; (b) whether it is reasonable for the conduct to have that effect.[16]The EHRC Code of Practice on Employment (2011), which does not claim to be an authoritative statement of the law, deals with the ‘related to’ link in s26(1)(a) at paras 7.9 to 7.11. It states that the words bear a broad meaning and that the conduct under consideration need not be ‘because of’ the protected characteristic. We agree, subject to the caveat that more is required than a mere contextual (or ‘but for’) connection. There must be an evidence-based finding of a connection between the relevant protected characteristic and mental processes of the putative harasser (see Unite the Union v Nailard [2019] ICR 28 CA).[17]Despite the ample ‘related to’ formulation, sensible limits on the scope of the harassment protection are, we think, ensured by the other elements of the statutory definition. Two points in particular can be made. First, the Claimant must show that the conduct was unwanted. Second, the requirement for the Tribunal to take account of all the circumstances of the case and in particular whether it is reasonable for the conduct to have the stated effect (subsection (4)(b) and (c)) connotes an objective approach, albeit entailing one subjective factor, the perception of the complainant (s26(4)(a)). Here the Tribunal is equipped with the means of weighing all relevant considerations to achieve a just solution.[18]Central to the objective test is the question of gravity. Statutory protection from harassment is intended to create an important jurisdiction. Successful claims may result in very large awards and produce serious consequences for wrongdoers. Some complaints will inevitably fall short of the standard required. To quote from the judgment of Elias LJ in Land Registry v Grant [2011] ICR 1390 CA (para 47): Furthermore, even if in fact the [treatment] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. In determining whether actionable harassment has been made out, it may be necessary for the Tribunal to ascertain whether the conduct under challenge was intended to cause offence (ibid, para 13). More generally, the context in which the conduct occurred is likely to be crucial (ibid, para 43). Victimisation[19]By the 2010 Act, s27, victimisation is defined thus: (2) 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 – …(c) making an allegation (whether or not express) that A or another person has contravened this Act.[20]When considering whether a claimant has been subjected to particular treatment ‘because’ he or she has done a protected act, the Tribunal must focus on ‘the real reason, the core reason’ for the treatment; a ‘but for’ causal test is not appropriate: Chief Constable of West Yorkshire v Khan [2001] ICR 1065 HL, para 77 (per Lord Scott of Foscote). On the other hand, the protected act need not be the sole reason: it is enough if it contributed materially to the outcome (Nagarajan, cited above). Protection against discrimination, harassment and victimisation[21]Discrimination is prohibited in the employment field by s39 which, so far as relevant, states: (2) An employer(a) (A) must not discriminate against an employee of A’s(b) (B) – …(c) by dismissing B;(d) by subjecting B to any other detriment. A ‘detriment’ arises in the employment law context where, by reason of the act(s) complained of a reasonable worker would or might take the view that he or she has been disadvantaged in the workplace. An unjustified sense of grievance cannot amount to a detriment: see Shamoon v Chief Constable of the RUC [2003] IRLR 285 HL.[22]Employees enjoy parallel protection against harassment and victimisation under the 2010 Act, ss40(1)(a) and 39(4) respectively. 23 2010 Act, by s136, provides:(1) This section applies to any proceedings relating to a contravention of this Act.(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.[24]On the reversal of the burden of proof we have reminded ourselves of the case-law decided under the pre-2010 legislation (from which we do not understand the new Act to depart in any material way), including Igen Ltd v Wong [2005] IRLR 258 CA, Villalba v Merrill Lynch & Co Inc [2006] IRLR 437 EAT, Laing v Manchester City Council [2006] IRLR 748 EAT, Madarassy v Nomura International plc [2007] IRLR 246 CA and Hewage v Grampian Health Board [2012] IRLR 870 SC. In the last of these, Lord Hope warned (as other distinguished judges had done before him) that it is possible to exaggerate the importance of the burden of proof provisions, observing (judgment, para 32) that they have ‘nothing to offer’ where the Tribunal is in a position to make positive findings on the evidence. Lord Leggatt, giving the only substantial judgment in the Supreme Court in Efobi v Royal Mail Group Ltd [2021] 1 WLR 3863, passed similar comments, adding (para 41): I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or decline to draw, inferences from the facts of the case before them without the need to consult law books before doing so. But if and in so far as it is necessary to have recourse to the burden of proof, we take as our principal guide the straightforward language of s136. Where there are facts capable, absent any other explanation, of supporting an inference of unlawful discrimination, the onus shifts formally to the employer to disprove discrimination. All relevant material, other than the employer’s explanation relied upon at the hearing, must be considered.[25]By the 2010 Act, s123(1) it is provided that proceedings may not be brought after the end of the period of three months ending with the date of the act to which the complaint relates,1 or such other period as the Tribunal thinks just and equitable. ‘Conduct extending over a period’ is to be treated as done at the end of the period (s123(3)(a)). Acts which are not discriminatory (or otherwise unlawful under the 2010 Act) cannot form part of ‘conduct extending over a period’ for the purposes of s123(3)(a) (South Western Ambulance Service NHS Foundation Trust v King EAT 0056/19). The ‘just and equitable’ discretion is a power to be used with restraint (Robertson v Bexley Community Centre [2003] IRLR 434 CA). Evidence and Documents[26]We heard oral evidence from Mrs Allen and her supporting witness, Ms Kenefeck. On behalf of the Respondents, evidence was given by Ms Berriman (already mentioned), formerly Chief Executive, Ms Joanne Rowlands, Project Management Executive, Mr Eddie Weir, Immediate Past President, Mr Kevin Crawford, President, Ms Tara Page, Chief Executive (formerly Education and International Director), Mr Gordon Souter, Honorary Secretary, Mr Adam Endacott, Communications Director, and Ms Ashton Burns, Education Officer.[27]In addition to witness evidence we read the documents to which we were referred in the main bundle of documents of over 1300 pages.[28]The paperwork was completed by sundry documents prepared by the parties, including a chronology, a cast list, the written closing submissions of Mr Jangra and Mrs Allen’s ‘Legal Argument’ and written closing submissions. 1 Now, under the Early Conciliation provisions, the period is further extended by the time taken up by the conciliation process. The Facts Setting the scene
The Facts
[29]The two individuals against whom Mrs Allen directs her principal allegations of discrimination, Ms Berriman and Ms Rowlands, were responsible for the decision to recruit her. Ms Rowlands attended both interviews; Ms Berryman chaired the second. Mrs Allen was preferred to the two other candidates, both of whom (one male, one female) were white and younger than her. The shared view of both interviewers at the second interview was that she was a strong candidate and had demonstrated impressive and relevant skills and experience. Ms Rowlands’s only concern was that she might be overqualified for the assistant post which she was seeking.[30]The letter of appointment drew attention to the fact that the position was subject to a three-month probationary period, which could be extended for a further period of up to three months. It went on to say that, on satisfactory completion of the probation, Mrs Allen’s performance would be assessed and her salary reviewed.[31]In her witness statement, Ms Berriman summarised Mrs Allen’s main duties as follows.13. The Claimant’s role as a Projects and Events Assistant included but was not limited to maintaining the diaries of the CEO, President and President- Elect/Immediate Past President (alternate years) when required. This included if required assisting in the booking of accommodation and transport for external events. … the Claimant would also assist in organising some of the internal meetings and events run by the First Respondent, including Council meetings. This would typically include the booking of the events, any accommodation if required, ensuring that the event [was] catered for and taking note of any dietary requirements. For some of these meetings the Claimant would be expected to take the minutes for approval prior to issue, and on a few occasions the preparation of the Agenda, for example, [for] the Heads of Department meetings.14. The Claimant would also assist in the administering of the recruitment of staff which would entail the uploading of job advertisements on websites such as Indeed, or Guardian Jobs and any other administration tasks that I or any other relevant department would need in relation to the recruitment of staff. When a new starter [joined], the Claimant would also assist with setting up the new starter on the systems and the processes for managing absence policies. The Claimant was never asked to draft a job description, this would be done either by myself or the relevant heads of department. The Claimant was never involved in recruiting in any other way. The Claimant was never permitted to change staff policy on HR issues, this could only be done by myself as Chief Executive.15. One of the Claimant’s other key and daily duties was to collate and maintain the central HR calendar and ensure that staff records were kept up to date in respect of leave, sickness and other authorised absences. This was a very important task as it allowed the First Respondent to accurately manage absences for the calculation of sick pay, its absence management policy and ensure that the annual leave entitlement is accurately calculated. …[32]CIAT was divided operationally into five Departments. Mrs Allen’s role sat within the Chief Executive’s Department. She worked alongside Ms Rowlands and Ms Berriman, the latter being her line manager. The main narrative[33]Mrs Allen complained before us that she was not inducted or trained, or at least not properly inducted or trained. We find that a lot of time and effort was invested in inducting and training her. At the outset she was presented with a full and detailed handover note. Ms Rowlands had numerous one-to-one meetings with her in the early days and in addition took time frequently outside such meetings to acquaint her with the organisation’s policies and administrative practices.[34]Another complaint of Mrs Allen’s was that she was overworked. We accept that the office was busy and that her role involved a wide range of tasks. But we find no substance in her allegation of overworking. There was no contemporary complaint and what is now said is not easily reconciled with her parallel complaint that some individuals wrongfully failed to add to her workload (for example, by eschewing ‘diary sessions’). Like other staff, she was not expected to work outside her contracted hours and there is no evidence that her workload was such that it could not be completed within those hours. During the early days of her employment she was asked to assist with some tasks which fell outside the four corners of her job description document (relating in particular to arranging minor building maintenance work). Again, we cannot accept that this placed an excessive or improper burden upon her. It was just another feature of her broad office administration role.[35]The Respondents’ case was that Mrs Allen made a lot of errors in performing her function. Her response before us was somewhat ambiguous: in part she seemed implicitly to accept what was said and blame it on the lack of training, but another strand of her case consisted of denying alleged failings and maintaining that they were made up in order to justify a discriminatory project to remove her from the organisation. As we explained to her, it is not our function to judge her. But we do find that there was ample evidence of errors and imperfections in her work and that these caused Ms Berriman and Ms Rowlands genuine concern, which increased as time went by.[36]One area of particular concern was Mrs Allen’s management of the Outlook calendar and the HR spreadsheet. The importance of these documents is explained in the extract from Ms Berriman’s witness statement set out above. Repeatedly, it was found that they were not up-to-date, which led to difficulties with management of staff absences and other matters. Mrs Allen’s case on this aspect was not easy to follow. She referred to the documents being ‘tampered with’ by some unnamed person or persons with a view to undermining her. But at other points in her evidence she appeared to say or suggest that any unreliability of the documents was simply a consequence of an unsatisfactory system which enabled other staff members to make entries (certainly on the Outlook calendar) without reference to her, so that she had no way of knowing that any consequential updating was required. We reject the remarkable theory of wilful and malicious tampering, for which no evidential basis is offered. We note what Mrs Allen says about the system being unsatisfactory, although we must also observe that Ms Berriman and Ms Rowlands gave unchallenged evidence that, until Mrs Allen’s arrival, it had worked without difficulty. Rightly or wrongly, they were not persuaded that there was any systemic problem that needed to be addressed.[37]Ms Berriman and Ms Rowlands also perceived that Mrs Allen was prone to ignoring, or deviating from, guidance and instructions given to her. One example was her unilateral decision in September 2022 to change the layout of a spreadsheet used in preparation for the Architectural Technologists (‘AT’) Awards, an event which Ms Berriman described as the highlight of the CIAT year. She had no authority to redesign the document and it had been made clear to her that she was not free to make changes to standard documents on her own initiative. Ms Berriman’s view was that Mrs Allen’s action had a resulted in failure to capture all the relevant information which the spreadsheet was designed to record and might have caused serious harm since it omitted reference to one guest’s serious medical condition. The AT Awards spreadsheet was found to be defective and unreliable on the further ground that it contained entries which were inaccurate and/or not up-to-date.[38]There were many other concerns about Mrs Allen’s attention to detail. For example, in September 2022 Ms Berriman learned that an employee had benefited from a significant overpayment of contractual sick pay owing to what she judged to be Mrs Allen’s failure to keep a proper sick pay record in relation to that person. Ms Rowlands gave another example, of Mrs Allen researching flights for Mr Weir by reference to the wrong airport of departure.[39]Ms Berriman and Ms Rowlands worried as time went by that Mrs Allen appeared unresponsive to training, guidance and instruction. They perceived that this might explain why (as they saw it) the level of errors was not improving. They also developed a sense that she was resistant to authority, which did not bode well for relationships in the longer term. One illustration of this mindset (as they saw it) occurred in early September 2022. Mrs Allen produced a draft document intended for the CIAT President. Ms Berriman deleted part of it. Mrs Allen then amended Ms Berriman’s re-draft to restore the deleted item and, without further reference to her, sent the finished document to the President. This resulted in embarrassment and frustration for Ms Berriman when the President contacted her to query the (restored) item which she had deleted.[40]Ms Berriman and Ms Rowlands also perceived an increasingly casual attitude on the part of Mrs Allen to attendance and timekeeping. Ms Rowlands documents in her witness statement (paras 61-66) five instances between 7 and 23 September 2022 (including two substantial absences on successive days, purportedly in order to visit the Passport Office to deal with the problem to do with a passport of a family member). Although it was evident that she understood that the rule was that one needed permission to be absent from work during contracted working hours, the impression formed by Ms Berriman and Ms Rowlands was that, faced with what she saw as a pressing need to be elsewhere, she thought it acceptable simply to leave the workplace to attend to it.[41]Before us, Ms Berriman and Ms Rowlands were also very critical of Mrs Allen in relation to preparations for the CIAT Conference on 9-10 September 2022, noting a series of alleged administrative errors and her late arrival (without explanation or apology) some five minutes before the conference was due to start.[42]On 5 October 2022 Mrs Allen sent to all staff a version of the CIAT Leave and Absence Policy, having unilaterally made certain amendments to it. She had no authority to do such a thing. Within a few hours, Ms Berriman suspended her.[43]As we have mentioned, Mrs Allen’s letter of appointment referred to a probationary period of three months, extendable for up to another three months. Ms Berriman told us that the power to extend for three months had been exercised, but accepted that there was no documentary evidence to that effect. We are prepared to accept that Ms Berriman and Ms Rowlands may have decided to treat the probationary period as extended, but if they did that important matter was not agreed with the Claimant. (Even if it had been, the extended period, limited in any event to a further three months, would have expired in late September 2022 at the latest.) The promised performance assessment and salary review did not take place. In answer to questions from the Tribunal, Ms Berriman accepted personal responsibility for the managerial failure to administer the probationary period properly.[44]All this said, Mrs Allen did not suggest that the suspension came out of a clear blue sky. The letter of suspension signed by Ms Berriman includes, ‘I have also had meetings with you over the last few months advising you of my concerns of your mistakes, errors and omissions and that accuracy was essential and that failure to maintain accuracy would be unsustainable due to the impacts of the mistakes, financially and reputationally.’ We find that these remarks correspond with events. Ms Berriman and Ms Rowlands did repeatedly draw Mrs Allen’s attention to the need (as they saw it) to eliminate errors and generally improve the standard of her work, particularly in the two or three months immediately prior to the suspension.[45]A disciplinary process followed. A bundle of papers was collated by the Respondents’ solicitors and Mrs Allen was invited to attend a disciplinary meeting, which was scheduled for 7 December 2022. The meeting was chaired by Ms Berriman and Mr Graham Chalkley, Assistant Practice Director, took a note. Mrs Allen attended supported by Ms Kenefech. Ms Berriman steered the discussion by reference to a briefing note designed to cover the main shortcomings (as she saw them) in Mrs Allen’s performance of her duties. Specific episodes and events were debated. She was given a full opportunity to set out her position. The meeting was long (the notes run to 27 closely-typed pages).[46]In an eight-page letter dated 19 December 2022 Ms Berriman set out her findings, which were consistent with what we have recorded about her perception, developed over months, of numerous deficiencies in Mrs Allen’s work and of what she saw as a problematical attitude to her employer and those in authority over her. She concluded that she had no confidence in her ability to continue in her role and accordingly advised her of her immediate dismissal, with pay in lieu of notice to follow. She also gave notice of her right to appeal.[47]Mrs Allen exercised the right to appeal, challenging Ms Berriman’s findings and including complaints of discrimination in various forms. An appeal hearing was convened on 31 January 2023. It was chaired by Mr Souter (a witness before us) together with Mr Doug Fewkes, Honorary Treasurer. Mrs Allen and Ms Kenefeck attended together as before. Ms Fateha Begum, Practice and Conduct Officer, was also present to take a minute. The discussion was full and thorough, lasting the best part of three hours. Mrs Allen had a full opportunity to make all points she wished to make. By a 14-page letter dated 30 March 2023, Mr Souter gave the determination of the appeal panel, which was to dismiss the appeal. In his letter he addressed numerous points of substance considered by Ms Berriman, very largely approving her findings and reasoning. He also rejected Mrs Allen’s allegations of discrimination, giving reasons. Further facts relating to miscellaneous claims Unauthorised absence[48]The perception of Ms Berriman and Ms Rowlands regarding the Claimant’s attendance at work have already been mentioned. Mrs Allen complained of being criticised for unauthorised absence from work. We have found that there were such criticisms, in the letter of suspension and, in fuller detail, in the disciplinary process. Mrs Allen contended that such criticism involves treating her less favourably than other employees. We are not persuaded on the evidence that this complaint has any substance. We find that it was clear and well understood within the office that employees needed to have permission to leave their work during contracted hours and that the rule was evenly applied. We further find that Mrs Allen was aware of this requirement herself and, on occasions, complied with it. The ‘unlocked building’ episode[49]Early in the morning of 17 August 2022 Mrs Allen arrived at CIAT’s premises and saw that the outer door was open. She may have formed an impression that the inner door was also open. This seems to have caused her a high degree of anxiety (associated, as she told us, with prior experiences dating back to before her association with the Respondents). She went at once to a nearby pub where she sent a message to Ms Berriman and Ms Rowlands referring to her anxiety and saying that she was going home and would work from there. Ms Burns was present during some or all of this episode and sensed that Mrs Allen was in some distress. She went into the building and proceeded with her day. Ms Berriman replied to Mrs Allen’s message attempting to reassure her that the building would not be left unlocked. Several further messages passed in each direction culminating in Ms Berriman remarking sympathetically that ‘there can be triggers’ (for anxiety) but adding, ‘What did, however, concern me is that you chose to go home, and leave the building which you thought was not secure …’ If, as the agreed list of issues suggests, Mrs Allen interpreted this as meaning that Ms Berriman expected her to go into an empty, unlocked building when feeling vulnerable, we simply note that her message did not say that. Training on the HR spreadsheet[50]We have made general findings above concerning the training which Mrs Allen received. The spreadsheet was not complicated. It had only a few columns. Mrs Allen described herself within a few weeks of starting as being ‘up and running’ and signalled no wish or need for training (or further training) on the HR spreadsheet. Mrs Allen’s name not placed on the website[51]We accept the Respondents’ case that the CIAT practice is to place the names of confirmed appointees on to the website. Mrs Allen was suspended just over six months after her employment began. At that point, her appointment had not been confirmed and her prospects of retaining her job were in obvious peril. She told us that other employees had appeared on the website within a very short time of starting employment. We were supplied with no detail to make good this assertion. On the evidence before us there is nothing pointing to any departure from the norm in her case. Recruitment generally and of Ms Burns and Ms Berriman (junior) specifically[52]Mrs Allen appeared to complain that she had been excluded from work to do with recruitment. Her role carried no responsibility for any recruitment decisions. She was involved in administrative tasks relating to recruitment exercises. There is no evidence that she was excluded from any such task.[53]Mrs Allen relies on the appointments of Ms Burns and Ms Berriman (junior) as detriments suffered by her. We will comment on this in our secondary findings and conclusions in due course. For present purposes, a very simple narrative is all that is required. Ms Burns resigned her role with CIAT, then titled Education and Membership Administrator, in November 2021. Some four months later, she made contact with the organisation and asked if there was any vacancy for which she might be considered and was told that her former role, now known as Education Officer, was still available. She expressed interest and was reappointed. This development was warmly welcomed by CIAT: Ms Burns had been a most satisfactory employee and two recruitment rounds launched with a view to replacing her had come to nothing.[54]Ms Berriman (junior) is the daughter of Ms Berriman, at all relevant times CEO of CIAT. She was offered three months’ scanning and filing work with CIAT ending at Christmas 2022. She was familiar with the Respondents’ systems and procedures, having undertaken a casual work with them on a previous occasion. Diary checks[55]Mrs Allen complained that she was excluded from carrying out diary checks with certain Board members. She had no entitlement to perform such work. It was merely one of many tasks which fell to her as and when required. There were times when some Board members did not need such a service.[56]Mrs Allen complained specifically about Mr Crawford avoiding using her for the purposes of diary checks. This is simply unfounded. Documentary evidence demonstrates interaction between the two for this purpose on a number of occasions. On the other hand, Mr Crawford sometimes preferred to make arrangements such as travel bookings personally rather than through Mrs Allen. Eye tests[57]Mrs Allen complains that a query to Ms Rowlands in the early days of her employment about a refund for an eye test was met with advice that she should speak to ‘Sharon’. It seems that Mrs Allen had had an uncomfortable conversation with that person and was put out at having to communicate with her again. Ms Rowlands told us that she had no recollection of any conversation of the kind referred to but that if it happened, she may well have given the reply complained of since Ms Sharon Boyd, a member of the Accounts team, was indeed the person to whom eye test queries needed to be referred. Equipment[58]Mrs Allen complained that on one occasion she asked Ms Berriman for a second screen to attach to her computer. Ms Berriman replied that since office refurbishments were planned (or perhaps already underway) the organisation was not in a position to procure fresh equipment for the time being. But she went on to say that the second screen was not necessary and showed Mrs Allen how she could ‘split’ her screen so as to work on two documents simultaneously.[59]Mrs Allen also approached Mr Endacott (a witness before us) asking to be provided with a reading light. The query was referred back to Ms Berriman who explained (again) that the procurement of fresh equipment was not possible at the time but offered her own lamp. We do not recall any evidence as to whether the offer was taken up.[60]Mrs Allen made a further complaint about being denied training on the use of the Webex phone system. We find that this complaint is misplaced. As documents in the bundle show, Mr Endacott responded to messages from her on this subject, providing advice and guidance. We also accept his oral evidence recalling an occasion when he provided her with training face-to-face on the ground floor of the CIAT building. There was no formal training programme relating to the phone system. We are satisfied that there was no material difference between the Respondents’ treatment of Mrs Allen and its treatment of other members of the workforce in relation to the phone system. Diversity group[61]Mrs Allen complained that she was excluded from CIAT’s Equality, Diversity and Inclusivity Group. We find that she was not. The group was for members of CIAT only. There was no such body for staff. Mrs Allen did approach Mr Endacott on the subject of the group. He did not respond directly but passed the matter to Ms Berriman. We accept her evidence that she spoke to Mrs Allen and explained to her that the group was for members of the Institute only. Further contextual and ‘background’ facts ‘Good luck on James’s’[62]Mrs Allen placed reliance on an email exchange in May 2022. It began with her telling Ms Berriman that she would need to be guided by Ms Rowlands on the way in which the leave entitlement of one colleague, ‘James’, was to be calculated. (It was common ground that his case was unusual and necessitated tricky calculations.) Ms Berriman replied, ‘ha ha good luck on James’s’. In evidence, she told us that this had been a light-hearted comment referring to the mental gymnastics which might be involved in dealing with a particular individual’s leave records. We accept that. There was no contemporary complaint from Mrs Allen but she told us that she felt that the message was a signal that she was on her own and would not be supported. If that really was her perception, we find no basis for it. Diversity and inclusion generally[63]Mrs Allen expressed the view that CIAT’s general record on diversity pointed to a culture which was liable to foster or tolerate discriminatory practices. She appeared to accept that, at lower levels, the workforce was reasonably diverse, but argued that the picture was different at managerial level and across the leadership of the Institute’s members. Ms Berriman’s evidence on these points (witness statement, paras 6-10) was unchallenged and we accept it. This points to a higher distribution of women than men across the organisation (including its upper reaches) and a wide diversity of ages among employees. So far as senior leadership roles are concerned, Ms Berriman accepted that there were currently no positions held by people who were visibly members of any ethnic minority group. But she gave examples of individuals of black Caribbean, mixed and Asian heritage who had held senior posts in the past. Analysis and Conclusions Discrimination and harassment Detrimental or harassing treatment?[64]On the facts found, most of Mrs Allen’s allegations fall away at once because they do not disclose any treatment about which any legal complaint can reasonably be made. For direct discrimination, the first requirement is ‘detrimental’ treatment; for harassment, the first requirement is unwanted conduct capable of amounting to harassment (see the 2010 Act, s39(2)(c) and s26(1)(b) respectively) will. We will take the complaints which fail these tests in the order in which they appear in the list of issues.[65]It was not a detriment to Mrs Allen to be criticised in the disciplinary process for taking unauthorised leave. That was contrary to the Respondents’ rules and processes. We find no evidence that those rules and processes were applied unevenly to her disadvantage. Mrs Allen was not told that she was expected to enter an unlocked, empty building. Ms Berriman merely made the point that, on her own case, it appeared that she had gone home in circumstances where she thought that the building was open and not secure. The remark was reasonable and not detrimental (although, as later transpired, no risk to CIAT occurred as Ms Burns was on hand). The Respondents did not fail to give Mrs Allen suitable training, in relation to the HR spreadsheet, the Outlook diary or generally. Taking account of her experience and skills, they provided, we find, a more than reasonable level of training and support. Mrs Allen’s supportive function in relation to recruitment was not usurped. The recruitment of Ms Burns and Ms Berriman could not amount to an actionable detriment to Mrs Allen, whether she disapproved of it or not. Mrs Allen was not denied her function of managing diary checks but it was no detriment to her that some individuals preferred, on occasions, to make their own arrangements. It was no detriment to Mrs Allen to be advised to direct her query about an eye test to the appropriate staff member in the appropriate team. Mrs Allen was not treated detrimentally in relation to the phone system and/or rota. She received reasonable and adequate assistance and support. Mrs Allen was not excluded from the Exclusion, Diversity and Inclusivity group. That group was not one in which she, or any member of CIAT’s workforce, was entitled to participate. She was appropriately advised of this fact by Ms Berriman.[66]In so far as Mrs Allen seeks to put any of the complaints discussed in the previous paragraph as allegations of harassment, her position is untenable. As noted above, the 2010 Act, s26 employs strong language, requiring treatment which ‘violates’ a person’s dignity and/or has the purpose or effect of creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for him or her. If the low bar of establishing a detriment is not cleared, there can be no question of the definition of harassment being satisfied.[67]Our analysis so far leaves potentially detrimental treatment in relation to the ‘failure’ to place the Claimant’s name on the CIAT website and, much more substantially, the institution, conduct and outcome of the disciplinary process and appeal. Here, we find arguable detriments and will assume (with considerable misgivings) that potentially harassing treatment is also shown. Treatment ‘because of’ or ‘related to’ any relevant protected characteristic?[68]Our analysis so far has eliminated all sex discrimination and sex -related harassment claims, but in case we are wrong in any of our prior reasoning, what follows will address all three protected characteristics by reference to which Mrs Allen complains.[69]On a number of occasions, Mrs Allen referred to factors other than race, sex and age. We were careful to remind her that her claims are confined to those protected characteristics. In particular, a claim for disability discrimination had gone as a consequence of the judgment of Judge Joffe to which we have referred.[70]We have reminded ourselves that the ‘because of’ connection applies to direct discrimination; for the purposes of harassment, a looser ‘related to’ link is sufficient.[71]In our judgment there is an obvious explanation for the fact that Mrs Allen’s name was not entered on the website. We have found that it is more likely than not that Ms Berriman and Ms Rowlands proceeded on the basis that her probationary period should be regarded as extended by three months. There was no agreement at any point that she had ‘passed’ her probation and as time went by they became increasingly dissatisfied with her performance. They certainly failed to think through and operate a fair and sensible probationary procedure (a point to which we will return), but we are clear that, given that they treated the initial probation as having been extended and Mrs Allen’s performance was judged to be, if anything, deteriorating during the second three-month period, Ms Berriman and Ms Rowlands felt increasingly uncertain about whether she would be retained on a permanent basis. We do not know whether thought was given by anyone in authority to the question of entering her name on the website. But if it was, we are confident that that possibility was excluded given growing doubts about the likelihood of her remaining in the organisation.[72]We are equally clear that there is no rational basis for inferring that the absence of Mrs Allen’s name from the website was a consequence of any adverse motivation based on or related to any relevant protected characteristic. Although she asserted otherwise, we are unable to find any evidence of the Respondents applying different treatment to any other person in circumstances the same as, or not materially different from, hers. We think it deeply unlikely, as a matter of common sense, that they would have caused the name of an imaginary white and/or male and/or younger comparator judged not to have passed the initial probationary period and seen as performing worse in the extended period to be placed on the website.[73]Turning to the complaints based on the disciplinary process, we again find no arguable basis for inferring unlawful discrimination in any form. We have found that Ms Berriman and Ms Rowlands were increasingly disappointed by, and critical of, Mrs Allen’s performance in her role. As we said to Mrs Allen more than once, it is not our function to judge her and we decline to do so. But in judging the Respondents, we have no hesitation in finding that their assessment of her work was sincere and supported by ample evidence. We are confident that Ms Berriman genuinely judged that she had failed to demonstrate a capacity to perform her function to the level which was required and that there was no realistic prospect of the quality of her work materially improving. That was the reason for her decision to dismiss. The appeal panel’s decision to dismiss the appeal was based on the fact that it agreed with Ms Berriman’s assessment.[74]Although we have reminded ourselves that the critical question focuses on the ‘reason’ for the Respondents’ treatment of Mrs Allen, not its reasonableness, we find no substance in her process-based complaints. We reject the complaint that it was unfair for Ms Berriman to conduct the disciplinary hearing. It naturally fell to her, as Mrs Allen’s line manager, to do so, and had the task been given to someone further removed from the material events, the procedure might have been criticised on the basis that the decision came from someone who was not sufficiently well-informed. And at both stages Mrs Allen was made fully aware of the subject-matter to be investigated and given ample opportunity to respond to the concerns raised.[75]If we are right so far it does not necessarily follow that the complaints of discrimination and harassment are doomed. As we have noted above, if proscribed considerations (here, race, sex or age), materially influenced, or were materially related to, the institution, conduct or outcome of the disciplinary process, Mrs Allen would be entitled to succeed. We find, however, no basis for inferring any such influence. There is nothing in any ‘background’ evidence pointing to any tendency to discriminate or any ‘culture’ tolerant of discrimination. And we cannot ignore the fact that it was Ms Berriman and Ms Rowlands who jointly recruited Mrs Allen only some six months before she was suspended, preferring her to white, younger candidates one of whom was male. We have not ignored unsatisfactory aspects of the Respondents’ case. The failure to apply the probationary procedure does not reflect well on them. Nor does the late disclosure of the existence of potentially relevant documentary material. But we did not find here or in any other part of the case anything suggestive of an underlying discriminatory motivation. The failure to operate a proper probationary procedure cannot be seen as a device to disadvantage Mrs Allen. Its effect was rather to disadvantage the Respondents, who deprived themselves of a relatively straightforward procedure for dismissing a recent appointee judged to be performing unsatisfactorily, and thus necessitating a more difficult, cumbersome and time-consuming disciplinary/capability procedure. As for the disclosure issue, we have no reason for thinking that the documents in question contained any ‘smoking gun’ which the Respondents were anxious to suppress. Had that been the intention, one would not have expected Ms Berriman to be so open about the existence of the documents.[76]In all the circumstances, we find in the evidence nothing to support the theory of discrimination or harassment because of, or related to, any relevant protected characteristic. Victimisation[77]The ‘protected act’ (namely, the allegation of discriminatory treatment contained in the claim form) being established, the only question is whether the conduct and/or outcome of the appeal was ‘because of’ (ie at least materially influenced by) the protected act. As noted above, what is required is that the protected act be the reason, or a material reason, for the detrimental treatment. ‘But for’ causation is not the test.[78]In our judgment, the victimisation claim is also quite unfounded. We have found that the appeal panel conducted the appeal fairly and in a reasonable way. Its central reasoning, which we find entirely permissible, was that Ms Berriman had arrived at a proper decision based on sound reasons. We can see no evidential basis for a theory that it was influenced to any material extent by the fact that Mrs Allen had brought Employment Tribunal proceedings alleging discrimination.[79]For the reasons we have given, the result is that all claims fail on their merits and must be dismissed. Having been put in possession of all the evidence needed in order to determine the facts, we have not had resort to the burden of proof provisions. For the avoidance of doubt, however, had we applied those provisions, the result would have been the same. We would have found that Mrs Allen had failed to demonstrate a prima facie case of discrimination and that her claim fell at the first stage of analysis. We would have further found in the alternative that, had the burden shifted to the Respondents to show that they had not contravened the 2010 Act in any of the manners alleged, they had amply discharged it. Time[80]The question now arises whether parts of Mrs Allen’s case fail for the further reason that, on time grounds, they fall outside the Tribunal’s jurisdiction in any event. We agree with Mr Jangra that, on the face of it, all claims based on acts or omissions occurring before 6 October 2022 are out of time. Is any brought within time by the 2010 Act, s123(3)(a) on the basis that it forms part of a piece of ‘conduct extending over a period’ ending after 6 October 2022? The inevitable answer is no. The reference in the section to ‘conduct’ means unlawful conduct and we have found none. Should we then rescue the pre-6 October 2022 claims (or any of them) by substituting a more generous limitation period than the ‘default’ three months (see the 2010 Act, s123(1))? Again, the obvious answer is no: it would make no sense for the Tribunal artificially to bring within time claims already found to be without merit. Accordingly, we hold that all claims based on acts or omissions occurring before 6 October 2022 fail not only on their substantive merits but also for want of jurisdiction. Outcome and Postscript[81]For the reasons given, all claims are dismissed.[82]We would not wish to leave this case without addressing brief observations to both parties. To start with the Respondents, we hope that the regrettable failure to adopt and apply a fair and reasonable probationary policy will not be repeated. Such a policy, properly operated, serves the interests of the employer and employee in circumstances where the employer judges that the employee’s performance is inadequate. It may enable the employee to improve his or her work sufficiently to make a success of the appointment. If not, it should facilitate a clear and practical path to a parting of the ways with as little expense as possible on all sides, in terms of upset and managerial time. As was mentioned at the hearing, current plans for legislative changes may have the effect of leaving employers who manage matters as the Respondents did here with a painful and entirely avoidable liability for unfair dismissal.[83]Lastly, we wish to pay tribute to Mrs Allen. She brought claims which were plainly sincere and presented them with consummate courtesy. The personal and family difficulties with which she has had to contend have been enormous. She is plainly a person who has a great deal to offer, within the workplace and outside it. We wish her well for the future.