Miss C Elliott v The Arts Council of England: 2200252/2022

EMPLOYMENT TRIBUNALS

Case No 2200252/2022

Between

Miss C ElliottClaimant

The Arts Council of EnglandRespondent

Before

Employment Judge M Joyce

Mr J Jenkins (instructed by Solicitor) for claimant

Mr M Pilgerstorfer KC (instructed by Counsel) for respondent

Date 21 October 2024

JUDGMENT

The judgment of the tribunal is that: 1.1. the respondent’s application to strike out the claimant’s claims is dismissed; 1.2. the respondent’s application for a deposit order is dismissed. JUDGMENT On hearing Counsel for the Claimant and Counsel for the Respondent, the unanimous judgment of the Tribunal is:

[1]The Claimant’s claims for direct race discrimination fail and are dismissed;

[2]The Claimant’s claims for race related harassment fail and are dismissed;

[3]The Claimant’s claim for a constructive race discriminatory dismissal fails and is dismissed;

[4]The Claimant’s claims of indirect discrimination, victimisation and unfair dismissal are dismissed upon withdrawal. The reasons for this decision were given orally at a hearing. Written reasons will not be provided unless they have been requested in writing by any of the parties within 14 days of the date this judgment was

[1]The Respondent’s application for costs succeeds against the Claimant;

[2]The Respondent’s application for costs fails against Graceland Solicitors;

[3]The Claimant is ordered to pay to the Respondent costs in the amount of £9,870 under rule 76 (1) (a) and (b).

REASONS

Background and the issues to be decided

Background

[1]Judgment was given orally at the full merits hearing on 13 October 2023.

[2]Written reasons were requested by the Respondent and these were sent to the parties on 1 March 2024. There has been no reconsideration application.

[3]This costs application was an unnecessarily long drawn out affair that took place over three separate hearing days.

[4]There was a hearing on 13 March 2024, which was abortive. Another hearing followed on 24 June 2024 and a deliberations day was held on 2 September 2024.

[5]The first hearing was delayed for a number of reasons, which we need not go into. Directions were set and the hearing was relisted.

[6]The hearing on 24 June 2024, had about 50% of it spent with the parties negotiating on a potential settlement of the costs issue between all three parties to the costs application with the Tribunal’s permission.

[7]Those negotiations fell through. Consequently, the hearing continued with the Claimant giving evidence, hearing submissions from everyone and then it was adjourned because there was insufficient time for any deliberations to take place.

[8]Before the Tribunal was the following evidence and other documents: 8.1. Witness statement and amended witness statement of the Claimant. This exceeded the 2500 word limit imposed by the tribunal previously by consent; 8.2. A statement letter of 21 June 2024 from Graceland but with no witness to testify to it; 8.3. A bundle of 646 pages plus index; and 8.4. Skeleton arguments of all three parties.

[9]All documents we were sent and referred to were read and taken into account whether in the bundle or otherwise. The issues

[10]At the outset of this hearing, it was evident that privilege had been waived by the Claimant and the Respondent was no longer pursuing its full costs. Instead, the application made against either the Claimant and/or Graceland would be limited to the cap of £20,000 contained within the Employment Tribunal Rules of Procedure 2013.

[11]References to numbers in squared brackets are references to pages from the trial bundle referred to in the written reasons or otherwise. The reasons section of the written reasons is attached as Annex A to this Judgment.

[12]The issues were discussed and agreed at the start of the hearing and were as follows: 12.1. Did any of the below conduct meet the threshold to trigger consideration of a costs aware under rules 76 (1) (a) or (b)? 12.2. Was the bringing of the proceedings unreasonable, in particular: 12.2.1. Claire Toogood’s (CT) exchange with the Claimant in 2019 – the Claimant accepted in cross-examination that she did not think CT was motivated by race, but this was her “experience”. This race discrimination claim is alleged to have been vexatious, abusive, unreasonable and had no prospects of success. 12.2.2. Huey Walker (HW) allegations – The Claimant is alleged to have changed her position in evidence and conceded that HW did not say “black staff don’t work”. The Tribunal accepted HW’s evidence on this point and found the Claimant’s evidence to be unreliable. 12.2.3. Chloe Brooks allegations in 2019 - The Claimant was not present at this alleged exchange and relied upon hearsay only. The Tribunal again found the Claimant’s evidence on this point to be unreliable about what was said, when it was said, how it was said, and in what context. 12.2.4. KC’s “You” email in March 2020 - The content of KC’s email was an entirely normal and supportive email and it was unreasonable to allege this was an act of race discrimination. 12.2.5. HW/KC allegations in early June 2021 about contacting her emergency contact - The Tribunal found that KC made the call to the Claimant’s mother because she genuinely believed the Claimant may have been in danger and that KC was genuinely looking after an employee’s wellbeing. Furthermore, the Tribunal found that this was nothing to do with race and it was unreasonable for the Claimant to believe it was. 12.2.6. KC notifying OH in June 2021 about the procurement card breach - the Claimant was being chased for money she owed to the Respondent that she had taken in breach of the Respondent’s procurement card policies. The Tribunal found the Claimant’s allegation that KC’s actions were racially motivated as difficult to understand. The Tribunal also said that there is “no way a reasonable person would reach such a conclusion”. 12.2.7. KC’s invite to a meeting on 6 July 2021 was not a disciplinary meeting in disguise - The contents of emails about this were entirely proper and supportive. The Tribunal agreed with this view and concluded that many employers may not have taken such an understanding view of the procurement card issue and instead may have considered it a potential issue of misconduct. 12.3. Was the Claimant’s conduct abusive and unreasonable? In particular: 12.3.1. The Claimant repeatedly refused to answer the question – from day 2 of the hearing onwards she was evasive, combative, and sought to deflect onto other matters in a bid to avoid answering (simple) questions where they were unhelpful to her case. 12.3.2. The Claimant refused to admit the obvious – for example, that the circumstances of her colleague’s mistaken use of the procurement card were plainly different to her own [445] or that KC, in seeking to call a meeting in early July 2021, was following OH advice [276]. 12.3.3. The Claimant reached and maintained unfounded conclusions: e.g., that a manager seeking to know an employee’s whereabouts when they did not attend a planned meeting and there was no response from them (following various attempts to contact them) amounted to micromanagement or a microaggression; similarly, that contacting her next of kin against a background of previous hospitalisation, knowing she lived alone, and had not attended meetings or responded to various attempts at contact, amounted to harassment; that KC’s use of “You” in a subject line of an email amounted to “verbal violence”; that the Respondent should have no contact with OH where an employee who is absent; that there was a campaign/ agenda to dismiss her when the Respondent was trying to get her back to work due to reported stress at work; that social media is “not real” so it doesn’t matter if what you put there is true or not. 12.3.4. The Claimant demonstrated propensity to dishonesty – she told the Tribunal that what she had written on social media was untrue showing that she is prepared to mislead. 12.3.5. The Claimant failed to provide evidence of her income for the proceedings despite being requested to do so for the purposes of the procurement card allegations. She also sought to deny a link between her personal income and income from Speech Debelle Limited. 12.4. If so, should the Tribunal exercise its discretion to award costs taking into account: 12.4.1. All relevant circumstances; 12.4.2. the gravity, nature and effect of the conduct; 12.4.3. Whether that conduct resulted generally in increased costs being incurred; 12.4.4. the means of the Claimant and/or their representative to pay an award. 12.4.5. If the Tribunal exercises its discretion, how much should the costs order be, when considering the means of the paying party to pay and that costs are compensatory rather than punitive. 12.5. Is any of the above conduct attributable to the Claimant’s representative’s firm leading to the threshold being reached to consider a costs order under rule 80 (1), namely, unreasonable, improper or negligent acts or omissions in the conduct of the proceedings? 12.5.1. In particular, is Graceland responsible for conduct at the outset of the full merits hearing and the various applications to amend the Claimant’s Particulars of Claim? The Tribunal concluded that such applications were hopeless and bound to fail from the outset. The applications led to significant delay and unnecessary extra work for the Respondent. 12.6. If so, should the Tribunal exercise its discretion to make a costs order when considering the nature of the default, its gravity and effect, the means to pay and where relevant the considerations in Ridehalgh and Mardell (see the law section below)? 12.7. If the Tribunal exercises its discretion, how much should the costs order be? Findings of fact

[13]At all material times after submission of the ET1, the Claimant was represented by both solicitors and counsel.

[14]The Claimant first engaged Graceland in 2022.

[15]In cross examination, the Claimant said that she was unhappy with some of the response times from her solicitor Mr. Jenkins during these proceedings. She alleged that she was going to look for other solicitors. However, the Claimant decided to stick with her instructed solicitors and did not want to move solicitors overall because she said she felt that Mr. Jenkins “understood the fight” and the importance of it to her.

[16]It is also significant that the Claimant says Graceland advised her that her case wasn’t a strong one, and that this had been the advice from the beginning. However, there was no advice that we were referred to that suggested the case had no reasonable prospect of success.

[17]In Graceland’s response to the application, there is a letter containing confirmation of instructions and advice given at exhibit GS1 dated 4 March 2022. The following key advice is given within it: 17.1. Graceland were instructed after the first ET1 had been submitted; 17.2. Graceland advised the ET1 was defective and would need amendment; 17.3. The race claim would only have reasonable prospects of success if the Claimant could adduce evidence about comparators and produce witnesses to support her. 17.4. That any disability discrimination complaint would be difficult to prove in the absence of strong medical evidence or proof that the Employer was informed of the Claimant’s disability. 17.5. That the Respondent had applied to have the case struck out and that the Respondent would struggle with that application.

[18]In advice given, we observe by the unwise medium of text message, Graceland said, in the context of advice about a witness statement: “You have been advised that this case lacks prospect, so to be able to convince the court otherwise and without proper evidence might be an uphill battle. So please try and give this statement real thought…”

[19]In addition, despite the Claimant being advised that her case “lacks prospect” in another text message, the Claiamnt also had a friend of hers who was said to be a magistrate. The Claimant says she was being given support and general advice by the Magistrate. The Claimant confirmed the Magistrate was not aware of the details of the case, but was quoted as having said to the Claimant to keep going with her claim, despite Graceland’s advice that it was weak.

[20]In response, Graceland said “I understand that she advises to keep going. I have looked at the claim head again-we really do not have a strong case to go in-I appreciate you instruct that we carry on but I am [concerned] on the cost consequences. I would advise that we withdraw tomorrow. However if you instruct that we go on we will struggle. Think about it.”

[21]The Claimant instructs in response: “yes we go on” then “she sits on these cases all the time” then “only cost if they show it’s vexation” when discussing the advice she said has been given by the Magistrate.

[22]Consequently, it is clear to us that Graceland advised the Claimant, certainly by the point that she was due to submit her witness statement, that her claim was weak and she should withdraw it. In addition, Graceland advised the Claimant of the potential for there to be costs consequences if she failed to withdraw her claim.

[23]Consequently, the allegations the Claimant now makes that she was not provided with such advice or the costs consequences of the costs warning letter, is wrong.

[24]We have not been taken to the basis of the advice provided by Graceland to the Claimant and are therefore looking at the advice with hindsight. However, after reviewing all the evidence at the final hearing, such advice from Graceland appears to have been reasonable and appropriate if Graceland had assessed the Claimant’s case at the time, in its professional view, as being weak.

[25]On 27 May 2022, the Respondent sent a costs warning letter to the Claimant.

[26]On 20 June 2022, the Claimant’s application to amend her case to include disability discrimination was dismissed. Disability discrimination was therefore never before the Tribunal as an issue to determined and the Claimant knew that.

[27]On 16 December 2022, Employment Judge M Joyce dismissed the Respondent’s application for a strike out and deposit order. Consequently on a summary view, the Tribunal concluded that the tests of both no reasonable prospects of success and/or little reasonable prospects of success were not met.

[28]The natural consequence of that was that the we find the Claimant thought she at least had an arguable case, at least about the aspects of the case she genuinely believed were acts of race discrimination and excluding those we now know the Claimant did not genuinely believe were acts of race discrimination at the time, as per our liability Judgment.

[29]At the final hearing, the Claimant pursued an amendment application. Our decision and reasons for refusing that application are contained at paragraphs 18 to 58 of the written reasons. We do not revisit those findings and conclusions.

[30]Graceland argued that the applications to amend the case made at the final hearing, were made with full knowledge and instructions from the Claimant due to a change in her circumstances.

[31]We find that Claimant instructed her lawyers to submit the application and have it argued by Mr Bullock, her counsel at the full merits hearing.

[32]At the final hearing, one of the Respondent’s submissions was that all the Claimant’s claims were unfounded and she did not genuinely believe they amounted to race discrimination. This was therefore a live issue relevant to determination of the claims before us to decide when making conclusions about the factual background in general, the precise arguments about each specific factual claim and indeed the merits of any harassment claim when considering part of the legal test for such a claim is the Claimant’s subjective views and whether it was reasonable for her to have those views in all the circumstances.

[33]About the specific issues the Respondent alleges have amounted to unreasonable conduct, we note our previous findings from the written reasons that are relevant to his application: 33.1. That the Claimant did not genuinely believe that Ms Toogood’s conduct in 2019 was caused by her race at paragraph 213.3 and the Claimant’s version of events was implausible. 33.2. That to describe Ms Toogood as having committed “violence toward diverse people” was unjustified, inexplicable and had no foundation at para 202. 33.3. That the Claimant’s view of the incident involving Chloe Brooks was not a reasonable view to have at paragraph 262. 33.4. That to describe the email Ms Coundon sent to the Claimant entitled “You” was verbal violence, dehumanizing, insulting and made her feel worthless when it contained a genuinely supportive message was bizarre, extreme and we found the Claiamnt did not genuinely believe this was an act of race discrimination at the time it took place or when she submitted her grievance about other conduct at paragraphs 269 – 277.5. 33.5. When considering the allegations about the meeting on 9 June 2021 that the Claimant was unreasonable to have considered the actions of Ms Coundon and Mr. Walker as being negative in anyway at paragraphs 285 – 286.2. 33.6. That it was difficult to understand why the Claimant felt the behaviour of Ms Coundon in writing to the Claimant using her personal email address whilst she was off sick about OH involvement etc. was racially motivated at paragraph 304. 33.7. Our findings about the issues involving the procurement card at paragraphs 338 – 344.5. In summary, we found the Claimant had no intention of paying back misappropriated procurement card funds and then her allegations that the chasing of these funds was because of her race or harassment related to race was unreasonable.

[34]We also agree with the Respondent that the Claimant was at times evasive, and made exaggerated, inflammatory, unreasonable and serious unfounded allegations that the Respondent had committed verbal violence or made dehumanising statements about, for example, a single word in an email title.

[35]When considering the Claimant’s means we make the following findings based on the Claimant’s answers to questions from both the Tribunal and Ms O’Halloran: 35.1. The Claimant has set up a crowd fund for the purposes of the litigation with the help of others she knows. 35.2. She owns an Audi TT sports car she bought in 2016, which is fully paid for and worth approximately £11,000 – £12,000; 35.3. The Claimant has a basic income of £3,000 per month net. However, she must have more capital than that because she pays for both her own mortgage and the mortgage of her mother’s house. The total mortgage costs per month are £2,500. 35.4. The Claimant receives rental income of £1,250 per month. 35.5. In March 2022 the Claimant paid herself a dividend of £65,000. 35.6. The Claimant has an outstanding personal tax bill of over £35,000 as at 5 February 2024 for the previous tax year. This must mean that income for that tax period was in the region of roughly £87,500 if she is a higher rate tax payer, which we think is likely. 35.7. The Claimant can also issue dividends to herself from her company Speech Debelle Limited that she owns and runs as a sole shareholder/director. 35.8. The Claimant had approximately £75,000 of outstanding invoices for money she was owed for work already completed through her company. 35.9. The Claimant had spent £25,000 to help her mother with house renovations in the recent past. 35.10. The Claimant had accountancy fees outstanding of £3,700. 35.11. She explained that her voice over work had dwindled recently. 35.12. The Claimant’s monthly outgoings for normal day to day bills were approximately £5,447. 35.13. The Claimant has failed to provide evidence about her personal savings, despite submitting extracts of her bank statements.

[36]The Respondent has submitted its costs application on time and no issues were raised about the timing of the application. The Law

[37]The Tribunal rules say as follows, where relevant to this application: “General power and applicable rules Definitions 74.(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses.

(2) …

(3) … 75. (1) A costs order is an order that a party (“the paying party”) make a payment to: (a)another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b)the receiving party in respect of a Tribunal fee paid by the receiving party; or (c)another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual's attendance as a witness at the Tribunal. (2) … (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make. When a costs order or a preparation time order may or shall be made 76. (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that (a)a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b)any claim or response had no reasonable prospect of success; or (c)… (2) … (3) …

(4) …

(5) … Procedure 77. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. The amount of a costs order 78. (1) A Costs order may (a)order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b)… (c)… (d)… (e)… (2) … (3) … When a wasted costs order may be made 80. (1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs— (a)as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or (b)which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”. (2) “Representative” means a party's legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit. (3) A wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative's own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party. Effect of a wasted costs order 81. A wasted costs order may order the representative to pay the whole or part of any wasted costs of the receiving party, or disallow any wasted costs otherwise payable to the representative, including an order that the representative repay to its client any costs which have already been paid. The amount to be paid, disallowed or repaid must in each case be specified in the order. Procedure 82. A wasted costs order may be made by the Tribunal on its own initiative or on the application of any party. A party may apply for a wasted costs order at any stage up to 28 days after the date on which the judgment finally determining the proceedings as against that party was sent to the parties. No such order shall be made unless the representative has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application or proposal. The Tribunal shall inform the representative's client in writing of any proceedings under this rule and of any order made against the representative. Allowances 83. … Ability to pay 84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.”

[38]Without prejudice correspondence marked “without prejudice save as to costs” can be considered when deciding a costs application, However, all other without prejudice communications should be excluded Hossani v EDS Recruitment Limited

[2020] ICR 491

[39]It is now well settled that the Tribunal must answer the below three questions in order before a costs order can be safely made after the cases of Vaughan v London Borough of Lewisham

[2013] IRLR 713

, Hossani (above), J v K and L

[2022] UKEAT 131

and FDA and Others v Ms U Bhardwaj

[2022] UKEAT 97

. STAGE 1 – GROUNDS - Have any of the circumstances allowing consideration of making a costs order or mandating a costs order been triggered?

[40]Here every Tribunal needs to be careful about how they have expressed themselves in the decision made about liability, before a costs application has been made so that they do not fall into the trap of apparent bias following the case of Oni v NHS Leicester City

UKEAT/0144/12/LA

. Here Richardson J said: “Firstly, it is in the interests of justice that the tribunal which dealt with the liability hearing should also deal with the question of costs. Secondly, the mere fact that the Tribunal has expressed itself in terms adverse to the Claimant in the course of giving reasons for the liability judgment is not a ground for recusal. In this case, for example, the Tribunal was required, in order to resolve issues of fact which it had to determine, to take a view of the Claimant's credibility. It was bound to express its view in its reasons. This would not cause the fair minded and informed observer to suppose that the Tribunal had pre-judged the issue of costs. Further the Tribunal was entitled, when deciding the question of race discrimination, to point out that the Claimant and Dr Oni had been unable to say why they believed particular acts to have been done because of their race. This was relevant to the issue of discrimination. … In all these respects the Tribunal's reasoning was called for in order to deal with its liability reasoning. Its conclusions would no doubt be relied on by the Respondent in order to support an application for costs; but they were not directed primarily to such an application and they did not of themselves prejudge such an application. The fair minded and informed observer would not take them as indicative of bias. Thirdly, however, the Tribunal should not express itself in a way which tends to demonstrate that it has already made up its mind, prior to hearing argument, not only on the issues it had to decide but also on issues which only fall for decision if an application for costs is made. If a Tribunal does this, the fair minded and informed observer will conclude that there is a real possibility that the Tribunal has pre-judged the question of costs. … The lesson, it seems to us, is this. A Tribunal dealing with the question of liability can and should express itself fully and properly on that issue, making if called for trenchant findings about credibility, and explaining if necessary a case management decision during the hearing even if this involves expressing views about the reasonableness of the conduct of a party which led to the case management decision in question. A Tribunal should not however reach or express concluded views which really anticipate arguments on the question of costs which have not yet been put before it. We recognise, of course, that there are some decisions which an Employment Judge or Tribunal takes where the very decision itself involves a threshold decision about costs. We have in mind striking out decisions under the various headings within rule 18 of the Employment Tribunal Rules of Procedure. In such cases, unlike this case, the hearing will have called upon the Tribunal to adjudicate upon the issue and the parties will have addressed the Tribunal on it. It will have judged the issue: there can be no objection to that. In this case, however, the Tribunal pre-judged the issue.”

[41]If therefore it is the same tribunal hearing the costs application that also determined liability, the tribunal should satisfy itself that it did not step over the mark with its stated findings on liability.

[42]If the ground relied upon by the applicant is that the behaviour warranting a costs order was that the case had no reasonable prospect of success, the Tribunal must only take into account the information known to the potential paying party either at the start of the proceedings or at any material point during the proceedings Radia v Jeffries International Limited

UKEAT/0007/18/JOJ

[43]The test is a two stage test per Auerbach J: 43.1. What were the reasonable prospects of the case at the outset (or at the point the case is said to have no reasonable prospects of success)? 43.2. If the answer is that there were no reasonable prospects of success at the applicable time, did the potential paying party actually know or ought reasonably to have known that at the time? “65. I should say something further about how the Employment Tribunal should approach an application seeking the whole costs of the litigation, on the basis that the claim “had no reasonable prospects of success” from the outset. It should first, at stage 1, consider whether that was, objectively, the position, when the claim was begun. If so, then at stage 2 the Tribunal will usually need to consider whether, at that time, the complainant knew this to be the case, or at least reasonably ought to have known it. When considering these questions, the Tribunal must be careful not to be influenced by the hindsight of taking account of things that were not, and could not have reasonably been, known at the start of the litigation. However, it may have regard to any evidence or information that is available to it when it considers these questions, and which casts light on what was, or could reasonably, have been known, at the start of the litigation.” STAGE 2 - EXERCISING DISCRETION

[44]The Tribunal’s discretion is broad, but is to be exercised having regard to all the circumstances: AQ Ltd v Holden

[2012] IRLR 648

, EAT.

[45]Costs orders are the exception rather than the norm because the Employment Tribunal is not currently a “costs follow the event” jurisdiction.

[46]No precise causal link is necessary under rule 76 applications. In Yerrakalva v Barnsley MBC

[2012] IRLR 78

, CA [41], Mummery LJ said: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submissions to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct and the specific costs being claimed. In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.”

[47]If the ground relied upon is that a party behaved unreasonably, after McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

, CA [40], per Mummery LJ. “…the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring the receiving party to prove that specific unreasonable conduct by the paying party caused particular costs to be incurred”

[48]Therefore there need not be a causal link proven between the conduct complained of and the specific costs incurred. There just needs to be a review of the whole picture and that the adverse conduct caused an increase in costs generally. The costs award is not obliged to reflect the full costs incurred by the innocent party, which are attributable to the unreasonable conduct decided upon.

[49]In deciding whether the conduct of litigation is unreasonable, the Tribunal must bear in mind that in any given situation there may be more than one reasonable course to take. The Tribunal must not substitute its view for that of the litigant: Solomon v University of Hertfordshire, Hunter and Hammond (

UKEAT/0258/18

-19/DA) at para 107.

[50]In addition, incompetent presentation of a case causing an increase in costs incurred by the opposing party is not necessarily unreasonable conduct Francois v Castle Rock Properties limited

UKEAT/0260/10

[51]Dishonesty and deliberate mistruths are likely to be unreasonable conduct and should usually result in a costs order but do not automatically do so. All the circumstances including the impact the dishonesty had on the proceedings and costs incurred should still be considered before exercising discretion Kapoor v Governing Body of Barnhill Community School

[2014] All ER (D) 261

(Feb).

[52]Notice of costs is relevant to exercising discretion but is not a pre-requisite Millin v Capsticks Solicitors LLP

[2014] All ER (D) 12

(Dec).

[53]After Pranczk v Hampshire County Council [2020]

UKEAT/0272/19/VP

, the consideration of means must be done judicially as per paragraph 79 of that Judgment. STAGE 3 - AMOUNT

[54]Costs orders are compensatory and must not be punitive: Lodwick v Southwark London Borough Council

[2004] IRLR 554

, CA [23].

[55]The cases and principles about means above are also relevant to determination of the amount of an award after the Tribunal has decided to exercise its discretion to award costs. However, the issue of means to exercise discretion and consideration of means to determine the amount of a costs order should not be conflated, meaning it is an error of law to decide to exercise discretion to grant a costs order and then award £0 for the costs order. The Law – Rule 80 wasted costs orders

[56]This is governed by rules 80 - 84 of the Tribunal rules which states where relevant: “When a wasted costs order may be made 80.—(1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs—(a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or

(b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. Costs so incurred are described as “wasted costs”. (2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit. (3) A wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative’s own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party.” “Ability to pay 84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”

[57]The leading general guidance is contained in the judgment of the Court of Appeal in Ridehalgh v Horsefield

[1994] Ch 205

[1994] 3 All ER 848

, approved by the House of Lords in Medcalf v Mardell

[2002] UKHL 27

[2003] 1 AC 120

[2002] 3 All ER 721

), from which the general principles applicable were considered and discussed.

[58]The Ridehalgh principles were as follows: 58.1. When considering whether to make a wasted costs order, a three-stage test should be applied: 58.1.1. Has the legal representative of whom complaint was made acted improperly, unreasonably or negligently? 58.1.2. If so, did such conduct cause the applicant to incur unnecessary costs? 58.1.3. If so, is it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs? 58.2. 'Improper' covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. 58.3. 'Unreasonable' aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. The acid test is whether the conduct permits a reasonable explanation. 58.4. 'Negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. 58.5. A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or defence which is plainly doomed to fail, unless it was clearly an abuse of process to do so. It is not always easy to distinguish between the hopeless case and the case which amounts to an abuse of process. The legal representative is entitled to the benefit of any doubt. 58.6. Wasted costs can only be ordered if the threshold of conduct in rule 80 (1) has been met and only then (unlike the situation in a costs order against a party) a causal link between the conduct and the costs wasted must be proven and the order for costs if made, must be compensatory to the costs wasted and not for an amount above the costs wasted.

[59]The Mardell principles were as follows where relevant: 59.1. ''Only rarely will the court be able to make “full allowance” for the inability of the practitioner to tell the whole story or to conclude that there is no room for doubt in a situation in which, of necessity, the court is deprived of access to the full facts on which, in the ordinary way, any sound judicial decision must be based'.” 59.2. ''Even if the court were able properly to be sure that the practitioner could have no answer to the substantive complaint, it could not fairly make an order unless satisfied that nothing could be said to influence the exercise of its discretion. Only exceptionally could these exacting conditions be satisfied. Authorities in the skeleton arguments

[60]We have also taken into account all other authorities cited in the skeleton arguments of the parties to this application including Graceland. Discussion and conclusions

[61]During submissions, Counsel for the Claimant argued that the conclusions we made about whether the Claimant genuinely believed at the time of the incidents in question, that race was involved were “unnecessary” findings for the Tribunal to make.

[62]We reject that submission. What the Claimant genuinely believed at the time and the fact she admitted that she did not believe the behaviour of some of the Respondent’s witnesses was motivated by race at the time events took place is highly relevant to all the harassment claims, the credibility of the Claimant and the plausibility of her other evidence.

[63]In any case, we revisited the Written Reasons to satisfy ourselves after Oni that were had not gone too far in our findings or indeed had made unnecessary findings about the case to the extent that there was a sufficient indication of bias precluding us from considering he costs application.

[64]Having done so we concluded we had not fallen into that trap. We did not make decisions or conclusions pre-empting a costs application and have not expressed ourselves in language that goes beyond resolving factual disputes, plausibility and/or credibility of the evidence or resolving the legal tests we needed to, to safely conclude the proceedings.

[65]We therefore considered the merits of the costs application. The Respondent’s application generally under 76 (1) (b)

[66]When considering the Respondent’s application that none of the claims had any reasonable prospects of succeeding and the Claimant therefore met the threshold for a costs award as a result, we reject that submission save as set out in our conclusions below.

[67]We have rejected it because the test is no reasonable prosects of success, rather than little reasonable prosects of success. In addition, after the rejection of the strike out application, the deposit application and applying Radia, we have not found sufficient evidence that the case had no reasonable prospects of success generally. Race was clearly at least in the backdrop to some of the allegations because of the words used and subject matter of conversations. The Respondent’s application against Graceland rules 76 and 80

[68]We are not persuaded that Graceland were at any time negligent, improper or unreasonable in their conduct of the proceedings.

[69]It was quite plain to us that the Claimant was advised at witness statement stage to withdraw her case because it was weak. She chose not to do so.

[70]The Claimant chose not to do so because she was receiving advice from a friend she trusted generally and whose advice she held in high esteem.

[71]Ultimately, the case against Graceland in this costs application was weak and did not come close to meeting the threshold of considering whether to make a wasted costs order or any of the thresholds in rule 76.

[72]The costs application against Graceland is therefore dismissed in full under all the rules mentioned. The application against the Claimant – Stage 1 threshold Unreasonable and vexatious conduct or claims

[73]It is self-evident from the liability findings that the Claimant has knowingly brought false claims of discrimination against the Respondent for the following issues: 73.1. Claire Toogood (CT) exchange in 2019. 73.2. KC’s “You” email in March 2020. 73.3. KC notifying OH in June 2021 about the procurement card breach.

[74]The first two claims the Claimant did not genuinely believe were related to

[75]When considering the third, the stark facts were that the Claimant made purchases with the procurement card that she was not allowed to make and then deliberately tried to avoid paying those purchases back when she was both morally and legally obliged to do so, even making a promise to pay them back on the way, that she did not keep. She then alleged this was race discrimination, when in our view she did not genuinely believe that it was.

[76]Consequently, we find that these allegations were vexatious and unreasonable ones to make. We find the Claimant has added these allegations to the Claim as “make weight” allegations to try to bolster her claim. They are disingenuous. Unreasonable conduct or claims

[77]We have also concluded that the below allegations/behaviour were unreasonable. In making that finding, underneath each one we explain why we have come to that conclusion. 77.1.1. HW/KC allegations in early June 2021 about contacting her emergency contact. 77.1.1.1. It was plainly unreasonable for the Claimant to view the Respondent’s concern for her wellbeing to be anything other than that on the evidence we reviewed and considered. This was especially so given the Claimant had a medical emergency in the then recent past when she had failed to attend a different meeting because she was seriously unwell. 77.1.1.2. We considered this allegation to be an exceptional one and, whilst there was insufficient evidence to prove for that Claim the Claimant didn’t genuinely believe the behaviour was motivated by her race, it was clearly unreasonable for her to have thought so given the circumstances of this case. 77.1.2. The amendment application made at the final hearing. 77.1.2.1. The amendment application was submitted unreasonably late, on vague grounds and was misconceived. Whilst the Respondent argued the Claimant’s representatives were responsible for this, on balance, we find the Claimant to have instructed her lawyers to continue with the amendment application. The Claimant’s representatives were following her instructions. 77.1.2.2. We say this because the people named in the application and the change of circumstances alleged by Graceland, could, in our view, have only come from the Claimant. 77.1.2.3. For the reasons set out in the written reasons, the application was hopeless and should not have been made. It has therefore met the threshold for a costs order to be considered. Stage 2 – exercising discretion

[78]Bringing any allegations of discrimination against a colleague, when you personally know the circumstances are not motivated by or related to any protected characteristic is dreadful and unacceptable behaviour.

[79]Unjustifiable discrimination is equally dreadful and unacceptable both morally and legally. That is why it has been outlawed.

[80]Discrimination is notoriously difficult to prove and that is why discrimination claims are often brought based upon the combined feelings and subjective interpretation of evidence and behaviour.

[81]It is quite common for an employee to bring claims they genuinely believe were acts of discrimination, but they simply cannot prove it and don’t have enough evidence to shift the burden of proof to the Respondent for the it to prove the alleged behaviour wasn’t discrimination. That is a situation that can, very often, be excused and is the norm for many discrimination cases.

[82]In our view Tribunals should be slow to consider exercising its discretion to award costs against Claimants who have based their allegations of discrimination in good faith either on a genuine belief they were discriminated against at the time or, where behaviours has accumulated to the point where, looking back on reflection, later on they genuinely conclude that there has been a discriminatory undertone all along and they didn’t realise it until things started to build up.

[83]It is, however, quite another to allege discrimination against a colleagues when the accuser knows that the allegation is a false allegation because they knew at the time the behaviour complained about was not based on the characteristic alleged or to make claims based on simply a hunch.

[84]Discrimination allegations are damaging to people emotionally, physically and reputationally, after all, any serious allegations are unpleasant and can result, even if the allegations has been disproven beyond any doubt, in the accused becoming stigmatised just as much as the accuser might be.

[85]Discrimination allegations suggest the individual accused is in some way immoral, which can be incredibly hurtful, upsetting and can result in real physical and financial harm for an individual. Allegations of discrimination can result in people losing their jobs, livelihoods and personal relationships.

[86]It is therefore an exceptional case when a Claimant brings discrimination claims knowing that they were not discrimination at the very time the events happened and before the claim was raised, which the Claimant has done here.

[87]Similarly, the amendment application submitted on the Claimant’s instructions was exceptional because of how vague and hopeless it was.

[88]When considering the nature, gravity and effect of the conduct after Yerrakalva and McPherson, we consider the false allegations to have been very grave indeed given their potential consequences for the individuals and organisation accused. They meant the Respondent needed to put forward witness evidence and documents, that were unnecessary putting people to more time stress and expense. They lengthened the hearing and resulted in increased costs and complexity to the case.

[89]The application to amend the claim had less serious consequences but did result in additional time, expense and resources being spent defending it.

[90]All of the above conduct impacted on the Tribunal’s resources generally making the hearing length longer than it needed to be.

[91]We have been careful not to automatically think that a poor application to amend is unreasonable conduct or itself after Francois. However, it was unreasonable to bring the application at all given how unsupported it was and that it was based on amendments to pleadings that had never formed part of the Claimant’s permitted pleadings.

[92]Similarly, we have considered Kapoor and have not automatically found that a costs order should be made simply because of dishonest conduct happening. In the Claimant’s case her disingenuous claims have resulted in increased time, effort, complexity and expense to the Respondent.

[93]When considering Millin, the Claimant was warned about costs consequences by the Respondent and indeed by her own solicitors. They advised her to withdraw her claim before witness statements were exchanged and she failed to do so.

[94]We have considered the principle in Solomon and that it is not for us to substitute our view for that of the Claimant. Given that it cannot be said that all of her claims were unreasonable to bring and some were clearly in the backdrop of race being discussed at work, we simply find the Claimant has had fair warning of costs from her lawyers and the Respondent and understood the consequences if she then went on to lose her case.

[95]We now turn to means.

[96]We are persuaded that the Claimant has sufficient means to pay a costs order within the tribunal cap of £20,000 which is being claimed. She also has irregular but significant income from her company and must also have personal income in addition to that given the amount of her tax bill. Indeed, she had recently invoiced for approximately £75,000 of work.

[97]Consequently, given the gravity, nature and effect of the unreasonable conduct and the fact the Claiamnt has means to pay a costs award within the £20,000 cap, we are minded to exercise our discretion and make a costs order against the Claimant. Stage 3 - amount

[98]When considering the schedule of costs we have calculated as below for the various elements of unreasonable conduct of the proceedings by the Claimant. This has by its nature needed to be a broad calculation rather than a scientific one given that there were various hourly rates and levels of fee earner involved in the costs and interplay and overlap between solicitors, counsel and witnesses etc.

[99]We have considered the time and rates for each level of fee earner and believe the correct blended rate for work done is the rate of an associate namely £240 per hour. We consider this to be an affordable by the Claimant given her means.

[100]We have taken a broad view of the costs we think should be paid in light of the reasonable amount of time we things pieces of work should have taken, but this is not by any means precise. We have taken a broad view.

[101]For the amendment application, we consider that application resulted in increased costs of about 3 hours of counsel’s time in the amount of £900 being the refresher fee per day divided by 5 hearing hours.

[102]For the allegations involving Ms Toogood we consider this would have resulted in unnecessary costs of 11 hours of Associate time (£2,640) for drafting the statement and any associated review and collation of documents etc. plus counsel’s time of 2.5 hours (£750) making the total unnecessary costs £3,390.

[103]For the “You” email, this was a small part of Ms Coundon’s evidence. We estimate this would have caused unnecessary costs of half an hour for Counsel and a similar amount of time for the relevant section of her witness statement, plus any cross referencing to other aspects of the case of a further 2 hours at the Associate rate totalling £750.

[104]For the Respondent’s concern about the procurement card, we consider the impact on costs to be approximately 20% of Ms Coundon’s witness statement and took up about 1.5 hours of hearing time in cross examination etc. In our view this was £450 for counsel’s time and approximately 6 hours of associate time (£1,440) making the unnecessary costs £1,890.

[105]For the Respondent being concerned when the Claiamnt failed to attend a meeting allegation, we considered this would have taken about 1 hour of Counsel’s time at the hearing (£300) and 3 hours of Associate time (£720) making a total of £1,020.

[106]Finally, the overall interplay of all the above allegations, in our judgment, would have caused an additional day’s worth of consequential fees at the rate of an associate, being 8 hours at the rate of £240 per hour namely £1,920 in total.

[107]The above unnecessary costs therefore total £9,870. Outcome

[108]Judgment for the Respondent in the amount of £9,870 in costs to be paid to it by the Claimant. The application made against Graceland is dismissed. 109. EMPLOYMENT JUDGE SMART 21 October 2024 Judgment sent to the parties on ……28 October 2024…………. ……………………...……………. Annex A – reasons extracted from liability Judgment

[109]The question of whether the Respondent had either of the prohibited purposes – to violate the Claimant’s dignity or create the requisite environment – requires consideration of each alleged perpetrator’s mental processes, and thus the drawing of inferences from the evidence before the Tribunal GMB v Henderson

[2016] EWCA Civ 1049

[110]As to whether the conduct had the requisite effect, there are clearly subjective considerations – the Claimant’s perception of the impact on her (they must actually have felt or perceived the alleged impact) – but also objective considerations including whether it was reasonable for it to have the effect on this particular Claimant, the purpose of the remark, and all the surrounding context. That much is clear from section 26 and was confirmed by the Employment Appeal Tribunal in Richmond Pharmacology Ltd v Dhaliwal

[2009] ICR 724

. The words of section 26(1)(b) must be carefully considered. Conduct which is trivial or transitory is unlikely to be sufficient.

[111]Mr. Justice Underhill, as he then was, said in that case: “A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the Tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt …” and “…We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…”

[112]Similarly in the case of HM Land registry v Grant

[2011] EWCA Civ 769

, Elias LJ as he became said, when discussing the descriptive language of subparagraph 1: “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.”

[113]In the case of Greasley-Adams v Royal Mail

[2023] EAT 86

EAT for harassment to have occurred, the person must have been aware that it had happened to perceive that it was harassment. Therefore, if comments are made behind an employee’s back that they become aware of later, for example because of an investigation into their grievances about other matters, to determine whether harassment has taken place, the correct approach is to look at C’s perception of the situation at the date and time the alleged harassing incident took place. Consequently, if C was not aware of the harassment at the time, they could not perceive that they had been harassed at the time.

[114]Further, if they then later found out about the harassment event, it could well still amount to harassment at the time they find out about it. However, whether it is reasonable for C to believe that they have been subject to harassment in accordance with section 26 (4) (c), that question is to be determined in the context of events taking place at the time C finds out about the harassing event. In the context of Greasley-Adams, this meant that finding out about a harassment event during an investigation meeting into his grievances and claiming this was violating his dignity, was unreasonable in the context of the employer investigating C’s concerns in good faith.

[115]Violating and intimidating are strong words, which will usually require evidence of serious and marked effects. An environment can be created by a one-off comment, but the effects must be lasting. Who makes the comments, and whether others hear, can be relevant, as can whether an employee complained, though it must be recognised that is not always easy to do so. Where there are several instances of alleged harassment, the Tribunal can take a cumulative approach in determining whether the statutory test is met Driskel v Peninsula Business Services Ltd.

[2000] IRLR 151

. Direct discrimination

[116]The Equality Act 2010 defines direct discrimination as with irrelevant parts removed: “13. Direct discrimination (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. (2)… (3)… (4)… (5)If the protected characteristic is race, less favourable treatment includes segregating B from others. (6)… (7)… (8)This section is subject to sections 17(6) and 18(7).”

[117]The comparison in direct discrimination cases must be a comparison focussing on the individual claiming to have been discriminated against. Therefore, in Her Majesty’s Chief Inspector of Education, Children’s Services and skills v Interim Executive Board of C School

[2017] EWCA Civ 1426

where an Islamic faith school segregated boys and girls the comparison was not whether girls as a group had been treated less favourably because of their sex, it should be whether an individual girl who wanted to socialise with boys had been treated less favourably because of her sex. The Court of appeal said at paragraph 50 of the judgment: “…The starting point is that EA 2010 s.13 specifies what is direct discrimination by reference to a “person”. There is no reference to “group” discrimination or comparison. Each girl pupil and each boy pupil is entitled to freedom from direct discrimination looking at the matter from her or his individual perspective.”

[118]There are two aspects to direct discrimination that must be considered by the Tribunal. One is less favourable treatment and the other is the reason for the treatment complained about with the associated causal link between the two.

[119]Unreasonable behaviour should not give rise to an inference of discrimination Strathclyde Regional Council v. Zafar

[1997] UKHL 54

. It is usually an irrelevant factor.

[120]In the same way that less favourable treatment does not mean unreasonable treatment, it also does not mean simply different treatment Shmidt v Austicks Bookshops Limited

[1977] IRLR 360

EAT. There must be a comparison either actually or hypothetically that shows less favourable treatment.

[121]It is the treatment rather than the consequences of the treatment that are the subject of the comparison Balgobin v Tower Hamlets London Borough Council

[1987] ICR 829

. Comparators

[122]Whether less favourable treatment is proven requires a comparison to a suitable comparator. There is a general requirement that there be no material difference between the people being compared either actually or hypothetically. Section 23 Equality Act 2010 says: “23 Comparison by reference to circumstances (1)On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. (2)…

[123]The comparators need not be identical Hewage v Grampian Health Board

[2012] UKSC 37

because if every single aspect of a comparator was the same between the complainant and comparator, then the less favourable treatment could only be because of the protected characteristic, which would be make it almost impossible to defend a direct discrimination claim.

[124]When considering hypothetical comparators, it is necessary for evidence to be put forward about how actual comparators who are in different but not wholly dissimilar situations have been treated to build the neighbourhood from which it can be determined how a hypothetical comparator in the same or similar circumstances would have been treated Vento v The Chief Constable of West Yorkshire

[2001] IRLR 124

EAT.

[125]Following the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

, it will often be appropriate to consider the reason for the treatment first and then decide whether that reason meant the treatment was less favourable. Therefore, if the reason for the treatment was because of the protected characteristic, then it might be that the finding of less favourable treatment is inevitable.

[126]Whether something is less favourable treatment is an objective test Burrett v West Birmingham Health Authority

[1994] IRLR 7

EAT, but if a subjective view is being put forward as showing why the complainant says the treatment was less favourable, then such a view can be upheld as evidencing less favourable treatment so long as the view held was reasonable Birmingham City Council v Equal Opportunities Commission

[1989] IRLR 173

HL.

[127]In all cases, it is irrelevant whether the alleged discriminator has the same protected characteristic as the complainant s24 Equality Act 2010.

[128]When considering whether the less favourable treatment was because of the protected characteristic, the Equality Act wording of “because of” has the same meaning as the old legislation wording of “on grounds of” Onu v Akwiwu

[2014] EWCA Civ 279

[129]In addition, there is no legal causal link as such. Instead, the Tribunal should focus on the “real reason” why the alleged discriminator subjected the complainant to the treatment they allege was direct discrimination Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

, which is a subjective rather than legal test.

[130]Following R v The Governing Body of JFS and the Admissions Appeal Panel

[2009] UKSC 15

, the following approach should be taken: 130.1. Where it is self-evident that discrimination is taking place because there is reference made to the protected characteristic, it is not necessary to analyse the motives of the discriminator, they are irrelevant; 130.2. Where discrimination is not obvious, it is necessary to analyse the motivation of the alleged discriminator but only for determining whether the characteristic played any part in the alleged discriminatory behaviour; 130.3. In all other circumstances, motivation is irrelevant to a direct discrimination claim.

[131]To sum up the current situation about causation in direct discrimination cases, Underhill LJ said in the case of CLFIS (UK) Limited

[2015] IRLR 562

: “As regards direct discrimination, it is now well-established that a person may be less favourably treated "on the grounds of" a protected characteristic either if the act complained of is inherently discriminatory (e.g. the imposition of an age limit) or if the characteristic in question influenced the "mental processes" of the putative discriminator, whether consciously or unconsciously, to any significant extent…” Constructive Dismissal

[132]Whilst the Claimant’s claim is brought under the Equality Act 2010, the wording for section 95 (1) (c) of the Employment Rights Act 1996 is almost identical. Consequently, cases decided under s 95 of the 1996 act are in our view directly informative about situations being decided under s39 (7) (b) of the 2010 Act.

[133]Section 95 (1) (c) says: “Circumstances in which an employee is dismissed. (1)For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2). . . , only if)— (a)… (b)… (c)the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[134]When considering whether a constrictive dismissal was also discriminatory, section 39 of the EA 2010 provides as follows: “… (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. … … … … (7) In subsections (2)(c) and (4)(c), the reference to dismissing B includes a reference to the termination of B's employment— (a) … (b) by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice.”

[135]For a resignation to amount to a dismissal under section 95 employment rights act 1996, the following must be answered following the case of Kaur v Leeds Teaching Hospitals

[2018] EWCA Civ 978

: 135.1. What was the most recent act on the part of the employer which the Claimant alleges caused her resignation? 135.2. Has the contract been affirmed since that date? 135.3. If not was it a repudiatory breach of contract? 135.4. If not was it part of a sequence of events that collectively breached trust an confidence? 135.5. Did the employee resign in response to that breach within a reasonable time?

[136]There is an implied term of mutual trust and confidence that exists in every employment contract Malik v BCCI SA (in Liquidation)

[1998] AC 20

[137]Neither party to the contract of employment should behave in a way that either destroys or seriously damages the implied term Claridge v Daler Rowney Limited

[2008] ICR 1267

[138]In a case where the breach of the implied term of mutual trust and confidence is alleged, this clause will only be breached where following the case of Gogay v Hertfordshire County Council

[2000] IRLR 703

: 138.1. A party behaves in a way that has the purpose and/or effect of breaching mutual trust between the parties; and 138.2. That behaviour was without reasonable and proper cause.

[139]A series of events, which may amount to minor issues may amount to a cumulative breach of the implied term when looked at as a whole and the employee has resigned in response to the last act or “last straw” Lewis v Motorworld Garages limited

[1986] ICR 157

[140]The last straw must be at least part of the reason for the resignation Omilaju v Waltham Forest London Borough Council

[2004] EWCA Civ 1493

[141]For a constructive dismissal to be tainted by discrimination such as to make it a discriminatory dismissal, the final straw need not be discriminatory of itself. However, there does need to be at least one discriminatory act in the cumulative course of events leading to the constructive dismissal and discriminatory acts must sufficiently influence the overall repudiatory breach as to render the constructive dismissal discriminatory De Lacey v Wechseln Limited t/a The Andrew Hill Salon

[2021] IRLR 496

EAT. Generally

[142]When considering anything brought under the Equality Act 2010, we must have regard to the statutory code of practice when making our decisions about any part of the case where the code is relevant.

[143]Of particular assistance in this case were he paragraphs about harassment. These are at paragraphs 7.7 - 7.11 and 7.16 – 7.19.

[144]Also of particular assistance was the section about comparators in direct discrimination cases namely paragraphs 3.22 – 3.28.

[145]We considered the fact that evidence could be led about colleagues of the Claimant who were not in the same circumstances as the Claimant, but who were informative about how the Respondent may have behaved in circumstances of the same seriousness or gravity that the Claimant faced but who would not fit the test of actual comparators. Findings of fact

[146]With reference to the list of issues, the Tribunal unanimously found the facts to be as set out below. Background and timeline

[147]For the purposes of this claim, the Claimant identifies as a black African Caribbean woman. Her artist name is Speech Debelle and her legal name is Corynne Elliot.

[148]On 7th August 2017, the Claimant commenced employment with the Respondent in the role of relationship manager, music including education hubs for London (bundle page 134). She was employed in this role with at least one secondment to another team (the southeast team) until the effective date of the termination of her employment, which was not disputed as being 16 September 2021.

[149]As at 3 July 2017, the Claimant earned £19,583 gross per annum. This increased to £20,883.96 by the time the Claimant had left the Respondent’s employment (bundle page 20).

[150]The Claimant also ran her own company called Speech Debelle Limited, from which she paid herself dividends (Bundle pages 500 – 501).

[151]The Claimant was the sole controlling mind of that business and this was the company through which money made from her music was paid.

[152]These dividends were paid to her on 31 March 2021 for £2,000 and on 31 March 2022 for £65,000. We say no more about this now other than to note that the £65,000 dividend appears to have been paid after the Claimant’s employment ended.

[153]At all material times, the Respondent had an active dignity at work policy (Bundle pages 152 – 173), grievance policy and procedure (pages 145 – 151) and Sickness Absence policy (bundle pages 290 – 296).

[154]We observe that the sickness absence policy appears to be incomplete and does not clearly identify what process, if any, is to be followed if an employee is regarded as being absent from work with a genuine long term health issue regarding occupational health. It is also silent on how any OH referral will be made or the process that needs to be followed afterwards. This was not entirely satisfactory, but we do not believe this influenced any of the conduct the Claimant alleged was discrimination.

[155]The relevant parts of the policy as we found them were as follows: 155.1. At clause two, it states that staff and managers’ responsibilities are to encourage staff performance and assist employees in resolving any difficulties with attendance, at page292. 155.2. At clause 3 it states that following any period of sickness absence, the line manager should meet the employee to discuss the sickness absence on their first day back or as soon as possible after that. This informal meeting should be concluded sympathetically by the line manager, and the employee should be welcomed back at page

293. 155.3. Also at page 293, clause 4 provides the absence management procedure. Here it lists three examples of where recurrent sickness absence may affect an individual's capability to adequately perform their duties: 155.3.1. The first is short term intermittent sickness absent as a result of unconnected minor ailments regardless of whether these may be covered by medical certificates; 155.3.2. The second is intermittent absence as a result of an underlying medical condition; 155.3.3. Finally the third is a protracted period of absence of one month or more due to ill health or other incapacity. 155.4. At page 294 in the bundle, the Respondents trigger points are listed, the relevant one being whether ten or more days absence in any six month period have occurred on two or more occasions.

[156]At some points during her employment, the Respondent raised concerns about the Claimant's grammar and the way that she was expressing judgments that she had made for example at funding panels. We were taken to an example in the bundle at page 182.

[157]We regarded these criticisms as professional in nature, constructive and supportive, offering guidance on how to improve. We go into more detail about this, later.

[158]It was clear to us that performance concerns were discussed with the Claimant by the Respondent, which included failing to respond to emails or requests promptly, the Claimant becoming, as Mr. Huey Walker (her line manager) described it in emails, panicked over approaching deadlines, the quality of her written work, her preparedness for meetings, whether the Claimant was working efficiently and fully using her time and the quality of her decision making at funding panel meetings. Examples were in the bundle of each including, but not limited to the following: 158.1. An email from Mr. Walker to the Claimant about the quality of the VutureFest appraisal and grammatical errors at page 182; 158.2. An email from Mr. Walker to the Claimant about being prepared for a panel meeting at page 187; 158.3. An email from Claudia West to Mr. Walker about the Claimant being unresponsive at page 230 in the bundle; 158.4. An email chain involving Claudia West, Mr. Walker and the Claimant about the workload split between South East and London Areas at pages 232 – 233 158.5. An email from Mr. Walker to the Claimant about time management and financial budgeting issues at page 256 in the bundle.

[159]It was equally clear to us, that when the Respondent tried to manage the Claimant appropriately and professionally or when the Claimant was asked to do a task that she did not want to do, the Claimant either took offence or became difficult to manage at times.

[160]It is significant that in late 2019, when her performance was being questioned, it is at this point the Claimant alleges that racially discriminatory behaviours against her started (paragraph 8 Claimant’s statement).

[161]On 27 November 2019, the Claimant raised a formal grievance with the Respondent about a number of incidents, including an incident involving Claire Toogood, a complaint about a panel meeting, complaints about the Cambridge office and incidents involving Chloe Brooks, as logged in the investigation report at page 195 in the bundle.

[162]On 10 December 2019, a grievance meeting was conducted by Huey Walker and Karen Coundon to better understand the complaints as noted in the email, at page 22 bundle.

[163]Also at this meeting, the Claimant withdrew the complaints about Chloe Brooks and the Cambridge Team, but wanted these to be considered in more general terms at page 223.

[164]Craig Ashcroft of the Respondent was appointed to investigate the grievance and his investigation report was in the bundle at page 195 – 210.

[165]Mr. Hussain was then tasked with considering the report and the evidence and deciding the outcome of the grievance.

[166]On 21 January 2020, Mr. Hussain wrote to the Claimant with the outcome to her grievance (page 236 – 244). The key findings were: 166.1. There was no racial bias in any of the events; 166.2. The grievance against Claire Toogood was partially upheld because the Respondent found her behaviour could have come across as being more direct or directive in her interactions than she would ordinarily have been given and that the urgency of the work that needed to be completed as well as the interruption of the Claimants meeting could have been construed as being discourteous or disrespectful. (This is discussed further below). 166.3. All other concerns were not upheld.

[167]In approximately November 2020, the Claimant started to experience facial neurological symptoms such as numbness, fire crackling or shooting sensations and pain.

[168]On 18 January 2021, the Claimant went to see a specialist and investigations were undertaken as per the reports at pages 260 – 263. The Claimant was diagnosed with Atypical Face Pain.

[169]In April 2021, the Claimant started a period of absence because of this diagnosis. She improved, and by late April 2021 the Claimant was working a 50% hours phased return to work.

[170]On 29 April 2021, the Claimant was referred to occupational health for a telephone consultation to discuss her atypical face pain. The report is at pages 267 – 272 in the bundle.

[171]On 10 May 2021, the Claimant’s hours increased to a 75% phased return to work.

[172]It is relevant at this point to mention that since December 2020, the Respondent had been attempting to recover money from the Claimant for repeated unauthorised use of her procurement card, which was provided to her so she could carry out her duties. The relevant emails and documents are at pages 1A – 1E from the Respondent’s late disclosure.

[173]The Respondent had sought an explanation from the Claimant about the payment irregularities it had discovered. One payment appeared to have been legitimate. Another was partially legitimate for an office chair for home working and the others, spanning over 4 months, the Claimant said were mistakes because she was using the wrong card in her apple pay wallet by mistake. These purchases were for takeaways, taxi journeys and a driving license renewal. The Respondent accepted this explanation, despite the fact that it is fair to say many employers wouldn’t have.

[174]By 26 May 2021, despite the Claimant saying that this was a mistake, she had still not paid back any of the expenses she had wrongfully used the procurement card to pay for, despite being offered a repayment plan over three months and despite the Claimant giving assurances that these would be paid off, including providing a date for doing so to the Respondent (document 1A). This was therefore referred to Ms. Coundon as HR, to organise an investigation into why this had not been paid and was not being paid. This becomes an allegation of discrimination we discuss later.

[175]On 9 June 2021, the Claimant failed to attend a meeting via teams. Attempts were made to contact her via phone, text and email without success. Due to her recent health issues, including a hospitalisation, and due to the fact the Claimant lives on her own, the Respondent’s Mr. Walker and Ms Coundon were concerned about the Claimant’s wellbeing. We believe them.

[176]By 10 June 2021, there was still no contact from the Claimant. Ms. Coundon therefore contacted the Claimant’s emergency contact number, which was her mother.

[177]During the phone call, the Claimant’s mother explained that she had spoken to the Claimant that morning and she was fine. It turned out that the Claimant says she had sent an email response explaining that she would not be at the meeting, but that this had not sent and remained in her drafts folder. This becomes an allegation of discrimination that we consider later.

[178]On 11 June 2021, the Claimant commenced a period of absence from work for work related stress at page 266 in the bundle. Before this, there had been a number of short-term absences from December 2019 onwards as per the fit notes at pages 214 – 221 in the bundle.

[179]On 23 June 2021, the Claimant had a second occupational health appointment. The resultant report is at pages 273 to 279.

[180]On 2 July 2021, as a result of the recommendations made in the report, the key one being that before the Claimant could return to work, the Respondent should try to resolve the stress triggers the Claimant said she was subjected to, Ms Coundon emails the Claimant to invite her to attend a meeting to discuss the outcome of the report, as well as ways in which the stress triggers can be resolved at pages 283 – 285 in the bundle. This also becomes an allegation of discrimination that we consider later.

[181]On 30 July 2021, the Claimant submits her second grievance at page 297 – 298. This grievance included historic allegations about micromanagement and alleged racially motivated poor treatment by Mr. Walker, who is mixed race, bullying by Ms. Coundon who is white, (which was not labelled as being racially motivated at the time) and more general historic allegations of “micro-aggression” from 2018 – 2020.

[182]On 11 August 2021, the Respondent appoints an entirely independent external investigator, to investigate the Claimant’s grievances, namely Mr. Adrian Lennox – Lamb. The investigation to the grievance was ongoing between 4 August 2021 and around 22 September 2021.

[183]On 30 August 2021, the Claimant resigns by email at pages 299 – 300.

[184]On 16 September 2021, the Respondent and Claimant agree to pay the Claimant in lieu of the remainder of her notice period effectively terminating her employment.

[185]On 22 September 2021, Mr. Lennox Lamb completes his report at pages 301 – 426 in the bundle.

[186]On 4 October 2021, Tonya Nelson writes to the Claimant to provide the outcome to her grievance at pages 427 – 432. Ms Nelson rejects all the Claimant’s grievances.

[187]On 8 October 2021, the Claimant appeals against that decision at pages 433 – 435.

[188]On 27 October 2021, Francis Runacres, Executive Director of Innovation and Enterprise writes to the Claimant to inform her that her appeal has been unsuccessful at pages 436 – 440.

[189]In late September 2023, the Respondent published a report into how it was performing when it came to inclusion and diversity, following an anonymized survey of employees. The Respondent scored highly overall in terms of inclusion and diversity being labelled as an “Inclusive” employer.

[190]However, the report also stated that work needed to be done especially around gender identity and that black and other racially or ethnically diverse groups within the Respondent, felt that they were subjected to microaggressions, a lack of representation and a lack of transparency in certain aspects of their employment experience within the Respondent.

[191]When considering the report, and we do not diminish its importance or the experiences of the Respondent’s employees in any way, the report is what it is. It is a survey of employee views and experiences. It does nothing more than identify the perceptions of various groups as a whole and report on those perceptions and views. It is not the conclusion to an inquiry and gives rise to no factual findings other than describing untested employee experiences in a group by group way. Findings of fact about the specific incidents, conclusions and analysis

[192]We now turn to the specific incidents alleged to be discrimination or contributing to the Claimant’s decision to resign in chronological order and as per the list of issues.

[193]Where we refer to a “negative work environment” we mean an environment which violates the Claimant’s dignity or is intimidating, hostile, degrading, humiliating or offensive. We are using this as shorthand for he wording of Equality Act 2010, section 26 so the Judgment reads more easily. Incident of 27 November 2019 involving Claire Toogood

[194]On 27 November 2019, there was an incident between the Claimant and Claire Toogood a Senior Relationship Manager. The background to this issue is as follows: 194.1. On 8 November 2019 (page 189 bundle) after a period of the Claimant being unwell, Ms Toogood had emailed the Claimant expressing her hope that the Claimant was feeling better, also thanking her for some work already undertaken and offering support for the completion of annual hub letters that need to be completed. 194.2. Ms Toogood is trying to plan when the work will be able to be completed as she says that the deadline is 4 weeks away and the Claimant had some leave coming up so enquired about when that leave was due to take place and time need to be allowed for Ms Toogood to formally moderate the letters too. 194.3. Ms Toogood also asked for any updates to feedback to the national team, apologized for the Claimant being inadvertently missed out of a meeting invite by mistake and saying that she was happy to chat with the Claimant at any time. 194.4. We conclude that this is an entirely normal, professional management email discussing work in a relaxed and uncontroversial way. 194.5. The Claimant does not seem to respond to the email until 25 November 2019 (page 188) some two weeks later. 194.6. There is then some further professional and good-natured emails between the Claimant and Ms Toogood, attempting to organize a meeting to discuss things following the Claimant’s return from leave (also on bundle page 188). 194.7. The Claimant fairly accepted during cross examination that this work was of high importance and that by this time Ms Toogood would have felt under pressure to deliver on this work in accordance with the deadline. 194.8. At page 230, the Claimant’s former line manager Claudia West, raises a concern with the Claimant’s line manager Huey Walker that despite Ms Toogood requesting a discussion about the annual letters, the Claimant had not responded prior to going on leave. 194.9. In the end, the deadline for the letters to be submitted was extended to 19 December 2019 (bundle page 230). 194.10. A meeting is arranged for 27 November 2019 between Ms Toogood and the Claimant. During the emails arranging the meeting, the Claimant gives a clear indication to Ms Toogood that she will be free from 12.30 onwards for the rest of the day (bundle age 188). 194.11. Things then go wrong. The Claimant breaks a filling and needs dental treatment at the last minute, right at the time the meeting is organised (bundle page 191). This was not challenged by the Respondent. 194.12. The Claimant emails Ms. Toogood, to inform her that this has happened and Ms Toogood sends an entirely supportive and professional response back trying to rearrange the meeting to a few hours before the dental appointment at 12.30 – 13.00. Ms Toogood also tried to contact the Claimant by phone, which the Claimant did not answer. 194.13. Ms Toogood then sees the Claimant in the lobby of the Respondent’s offices (the environment is significant) at 12.30, speaking to a colleague Anita Dinham (Relationship Manager). 194.14. Ms. Toogood politely interrupts the Claimant’s conversation to let the Claimant know that she was ready to discuss the annual letters and moves to a nearby office to wait for the Claimant to speak to her. It is suggested by the Claimant and Ms Dinham that they would be finished in 10 – 15 minutes (page 227 in the bundle). 194.15. The Claimant fails to come and speak to Ms. Toogood despite the conversation a few minutes ago agreeing that she would in about 10 – 15 minutes. Therefore, Ms. Toogood reasonably went back to the Claimant and asked if the Claimant was free now. Ms. Toogood was then surprised to be told that this meeting wasn’t possible because she was still in a meeting with Anita Dinham. 194.16. Ms. Toogood again, quite reasonably, reminded the Claimant that this was a time critical task and asked whether Ms Dinham minded if they had a quick meeting. Ms Dinham said she didn’t mind and the Claimant was put out by the request. (Claire Toogood statement paragraphs 17 – 19). 194.17. The Claimant then met with Ms Toogood. 194.18. When discussing the work, the Claimant tried to get another colleague Adrian Cooke to do the letters. When Ms Toogood explained that this wasn’t the plan agreed between Claudia West and herself, the Claimant laughed at Ms Toogood (CT paragraph 21). In our view, this was an unprofessional response from the Claimant to Ms Toogood’s comments and did nothing to assist the tone of the meeting. The Claimant then abruptly left the meeting, which was again in our view unprofessional. 194.19. On 28 November 2019, Ms Toogood emailed the Claimant to apologise for interrupting her meeting (bundle page 193). This email is entirely professional and reiterates her reasonable concerns about the timelines for completing the annual letters. We believe Ms. Toogood correctly identified that the meeting did not go well and was apologising to try to maintain a good working relationship with the Claimant despite the difficult meeting. We do not believe that Ms. Toogood was apologising because she felt she had done something wrong.

[195]The Claimant alleged that Ms. Toogood’s behaviour was bullying and harassment based on hierarchy and race. She alleged that Ms. Toogood was hostile, angry and attempted to physically block the Claimant from leaving the meeting (paragraph 19e POC). She also alleged during the grievance that the way Ms. Toogood behaved were examples of acts of violence against diverse people.

[196]The Respondent argued that Ms. Toogood was simply trying to manage a time critical and important project with an employee who was difficult to set up a meeting with. There was no racial motivation whatsoever.

[197]During cross examination, the Claimant was asked directly whether, at the time, she believed that Ms Toogood had any racial motivation towards the Claimant during this incident. The Claimant said in response “It’s about the experience I have. I didn’t think she had a motivation towards my race it would have been unfortunate if she had.”

[198]In our judgment, this significantly undermined the credibility of the Claimant on this point. Despite at the time believing Ms Toogood’s intentions were not racially motivated, the Claimant has then issued proceedings about it alleging race discrimination, which is unsatisfactory. There is no evidence to indicate why the Claimant’s view of the motives to this situation involving Ms. Toogood would have changed in the intervening period and none was put forward by the Claimant. She fails to justify why this issue is now believed to be motivated by race.

[199]Having also considered the investigation report, grievance outcome and what everyone had to say about the incident on 27 November 2019, we cannot identify what Ms Toogood has done wrong. Yes, she accepts she was maybe more direct or “pushy” than she would ordinarily have been, but we consider she had good reason for being so.

[200]There is no direct evidence that she was rude to the Claimant. It may have been perceived in that way, but we do not conclude that Ms Toogood was in fact rude.

[201]There is no evidence, other than the Claimant’s say so at paragraph 19 in the POC that Ms. Toogood behaved in the way the Claimant alleges. The Claimant’s witness statement is virtually silent on this meeting.

[202]We are unanimous in our view that to describe how Ms Toogood behaved as being an example of “violence toward diverse people” in the grievance procedure in 2021 and maintaining that during the hearing, in our judgment is unjustified, inexplicable and has no foundation whatsoever. It does not fit with reality and is not a reasonable view of the situation even on the Claimant’s own evidence provided during cross examination.

[203]Similarly, we cannot understand why this interruption had been viewed as “passive aggressive” by the Claimant. It is significant that both Anita Dinham and the Claimant were subordinate in the hierarchy to Ms Toogood, so whether the interruption was expected or not, this was a situation where a more senior manager was interrupting two less senior colleagues.

[204]The fact that both appear to have been put out by this, is neither here nor there. More senior colleagues are entitled to interrupt meetings of less senior colleagues, so long as this is done in an appropriate way and for good reason, otherwise you end up in a situation where subordinate staff are dictating how more senior managers should behave, which would undermine the authority of people in leadership roles.

[205]We find that it could not be passive aggressive to wait in a meeting room nearby, when all witnesses to this event agree that Ms Toogood asked to speak to the Claimant, Ms Dinham said she didn’t mind the interruption and all parties agreed that the Claimant said she would come and meet with Ms Toogood in 15 minutes. It was perfectly normal and reasonable for Ms Toogood to have then waited in another room nearby until the fifteen minutes or so had expired, especially given the background to this situation.

[206]Ultimately, Claire Toogood was a more senior manager to the Claimant, made reasonable requests to speak to her about annual letters that were important and time critical. She offered support, help and guidance all of which was not properly taken up by the Claimant and we accept Ms Toogood’s evidence that the Claimant was avoiding both speaking about the work with Ms Toogood and doing the work. The Claimant herself described being disengaged from the work and we believe this disengagement was present before the incident of 27 November 2019 took place, which the Claimant was not entitled to do as an employee.

[207]It would not have been clear to Ms. Toogood at the time, that a meeting was in fact taking place until she spoke to the Claimant and Ms. Dinham because they were simply talking in the lobby, not in a meeting room.

[208]The Claimant tried to assert that she did not know who Ms Toogood was when this incident occurred. We find that implausible given the previous contact by email and in previous meetings some of which were said by Ms. Toogood and we believe to be video meetings. In any case, we also believe that Ms Toogood introduced herself at the time.

[209]It is also informative that the grievance outcome letter of Mr. Hussain (bundle page 236) stops short of directly criticising Ms. Toogood and only goes as far as to say that how she behaved could have been interpreted as being rude, not that it actually was. During cross examination, this changed to him saying he believed Ms Toogood had been rude, but we prefer the contemporaneous evidence of what he found as per the letter. Alternatively, we do not believe in the circumstances we have needed to review, that Ms. Toogood was rude on our review of the evidence. Just because someone apologises, does not mean they have done something wrong. It all depends on the circumstances. We believe the apology was an attempt to maintain a decent working relationship.

[210]We find that, because Ms Toogood did the constructive thing of apologising and reflecting on the situation after it had not gone how she would have hoped, Ms Toogood appears to have opened the door for a critical finding against her in circumstances where the Claimant’s behaviour was, at the very least, not appropriate and unprofessional given both she and Ms. Dinham were less senior than Ms. Toogood.

[211]The Claimant seems to fundamentally misunderstand that it was not appropriate for her, as an employee, to attempt to dictate to the Respondent what work she would undertake and when. It was not appropriate for her to believe that the hierarchy of the Respondent should not have interfered with how the Claimant wanted to manage her day and workload because that was inconvenient to her meeting with another less senior colleague. Equally it was not appropriate for her to have said that she would meet with Ms. Toogood in 15 minutes and then fail to keep to her word about that.

[212]This situation is alleged to have been both harassment and direct discrimination in comparison to a hypothetical comparator.

[213]Dealing with harassment first: 213.1. Whilst clearly the Claimant did not want to meet with and speak with Ms. Toogood at the time the conversation on the lobby with Ms Dinham was occurring and seems to have taken issue with the way Ms. Toogood conducted herself, we do not accept the version of events put forward by the Claimant. Ms. Toogood is a far more credible witness. 213.2. We do not accept that Ms. Toogood was rude, stared at the Claimant, was passive aggressive or tried to block the Claimant from leaving the office. 213.3. We do not accept that anything said or done during this situation was in any way related race. No evidence has been put forward to say that it was and the Claimant even says that she did not think it was racially motivated at the time. Consequently, in our judgment, the Claimant did not genuinely believe this situation was race discrimination. 213.4. Consequently, none of Ms. Toogood’s conduct had the purpose or could reasonably be viewed as having the effect of creating a negative work environment.

[214]When considering the direct discrimination case: 214.1. Our primary conclusion is that, assuming the Claimant has proven facts from which it could be inferred that discrimination has taken place, applying Laing, the Respondent has discharged its burden of proof. 214.2. The Respondent has proven that Ms. Toogood’s behaviour was not because of race at all. Applying Khan, the real reason why Ms. Toogood behaved how she did was because she was trying to manage an important and time constrained project where the Claimant was in her words “disengaged” from the work. Ms. Toogood’s behaviour was in no way whatsoever because of race. 214.3. We don’t therefore technically need to address the remainder of the test. However, we also found that there was no less favourable treatment compared to an employee who was not a black African Caribbean woman who was also involved in a time critical project but who had failed to meet with Ms. Toogood to discuss it causing a lack of progress in similar circumstances to this situation. 214.4. There was also no evidence at all, as in Vento, to paint the picture of what a hypothetical comparator would look like. We are therefore not persuaded that a hypothetical comparator would have been treated any differently in the same or not materially different circumstances to 214.5. The Claimant therefore failed to discharge the burden of proof in any event. The WhatsApp messages about a racial divide, the comments made by Chloe Brookes and Mr. Walker’s alleged failure to act

[215]This issue is pleaded at paragraphs 20 – 25 in the Particulars of Claim. The Claimant’s case is basically that Mr. Walker new about concerns about racism and did nothing about it, which breached the dignity at work policy. The WhatsApp messages and comments about “black staff don’t work” WhatsApp messages

[216]This allegation initially confused us when the Claimant was giving evidence. We say this because during our reading we had been given the impression that the WhatsApp messages were made between the Claimant and Mr. Walker, because this is what the investigation report of Mr. Lennox-lamb had reported at page 312 in the bundle.

[217]However, when asked during cross examination about who these messages were between and their content, the exchange went as follows: “Xx: Page 491 - 1st text message: you were not party to this conversation between Ms Pryce and the ex staff member were you? C: this message was between Mr. Walker and Ms Pryce.”

[218]Later, this exchange also occurred during: “XX: Page 493… C: the WhatsApp between HW and NP? XX yes, the part about promoting ourselves, who wrote that? C: HW”

[219]XX is Respondent’s counsel. C is the Claimant. NP is Natalie Pryce and HW is Huey Walker.

[220]In the first message at 491, the second part of the message says “Paul’s name and speeches was also mention[ed]”. Clearly this message was not written by the Claimant as it mentions her artist name.

[221]Consequently, we concluded that the WhatsApp messages were between Mr. Walker and Ms Pryce otherwise they wouldn’t have referred to Speech in the third person and this finding is supported by the Claimant’s answers to questions.

[222]At some point in 2019, Natalie Pryce messaged Mr. Walker to raise an issue about a racial divide she had been informed about (Claimant’s statement paragraph 9). The message read as follows at page 491 in the bundle: “I just got info from good authority from a ex Arts Council member of staff that there is supposed to be a division between the music team, specifically black and white divide. Apparently members of the team has said that I'm never there! I don't see any of my clients and I'm doing no work! And that all the new black members of staff are not pulling there weight. So this puts Mithila comments into perspective. So please advise as all my meetings are in my diary and I’ve met all of my clients and I’m not comfortable that this type of dialogue is being discussed outside of the organisation.”

[223]There are a few more exchanges between Mr. Walker and Ms Pryce and at one point, Mr. Walker said this in the context of Ms Pryce saying she felt bullied by what was going on: “Also we need to think about internal comms…how “we” (the black staff) promote ourselves and our input.”

[224]Also Mr. Walker later texts: “Don’t worry we can discuss tomorrow. It’s more their problem than yours.”

[225]The Ms Pryce says in response: “And sad that we have to work harder to appease the white members of the team”.

[226]Mr. Walker then suggests meeting Ms Pryce and she agrees with an x (a kiss) afterwards indicating to us that she felt this conversation had been acceptable and friendly.

[227]The Claimant says she was informed of this issue by Natlie Pryce who forwarded the messages to her.

[228]We do not know when this was forwarded to her, but we believe that she had it in her possession by 11 August 2021 at which point reference is made to it as part of her second grievance procedure.

[229]When considering the text messages, it struck us that this was all hearsay evidence in documentary form.

[230]The messages indicate that the original allegation has gone through at least three different people before the Claimant found out about it. Noone can be identified as being the source of this comment. We also found it strange that the “good authority” had not been identified either by Ms Pryce or by the Claimant.

[231]When questioned about the messages, the Claimant fairly conceded that there is no evidence that the comments made about a racial divide were correct because she was not present for the conversation between Natalie Pryce and the unknown person or people, or that the allegation had been correctly relayed to the Claimant by Ms Pryce.

[232]It is clear from the messages that Mr. Walker intended to speak to Ms Pryce about it the next day, but there is no detail provided about any meeting that then followed.

[233]The Claimant’s case about this situation was that Mr. Walker new about potential issues of racial prejudice going on but failed to act. Further, during cross examination about this issue, the Claimant stated that she believed the WhatsApp messages showed that Mr. Walker “was on the back foot because I understand that he didn’t do anything about that…” when referring to the allegation of a racial divide in the messages.

[234]The Respondent argued that the texts were not less favourable treatment of the Claimant or unwanted conduct towards her as an individual and that, therefore, the claims about this situation did not get “off the ground”.

[235]From the statement that the Claimant “understands” that Mr. Walker did not do anything about the allegations, this clearly shows us that the Claimant did not know, and still doesn’t know, whether anything was done or not about the alleged situation. This was simply what she had been told and understood from Natalie Pryce. The Claimant’s case is therefore an unevidenced assumption.

[236]Neither side adduced any evidence as to what Mr. Walker did do or did not do about this issue, which made the situation difficult to determine. However, the text messages clearly show that Mr. Walker intended to meet with Ms Pryce.

[237]Neither Ms Pryce nor Mr. Walker were called to give evidence. The Claimant’s original grievance letter at page 297 does not raise this particular issue when talking about Huey Walker.

[238]This allegation was alleged to have been an act of both harassment and direct discrimination.

[239]Dealing with the harassment claim: 239.1. This issue discussed in the text exchanges was clearly related to race. 239.2. These messages were relayed to the Claimant after they had taken place without the Claimant’s knowledge. 239.3. Applying Greasly-Adams, we therefore needed to decide whether the harassment test was met at the time the Claimant discovered the objectionable messages alleged. We decided the Claimant discovered the messages on or around 11 August 2021. 239.4. The unwanted conduct is alleged to have been the lack of action taken because of this incident. However, the Claimant simply does not know what has or has not happened because of this text exchange, which she accepted in cross examination. She has therefore not proven that there was any unwanted conduct to shift the burden of proof as she alleges. 239.5. We need not consider the remainder of the harassment test. It did not get past the first hurdle.

[240]When considering the direct discrimination claim, there was simply no less favourable treatment of the Claimant, as an individual, put forward. The claim was not pleaded on that basis. It was pleaded as a failure to act about discriminatory comments allegedly about a group of “black people” and “black counterparts”, which included the Claimant. Applying C School, group discrimination is not capable of being direct discrimination unless an act can be said to have directly affected an individual.

[241]Consequently, this claim failed. Black staff don’t work comment

[242]Then we come onto the incident where the Claimant alleges at paragraph 18 of her witness statement, that during a 1-2-1 meeting in 2021, Mr. Walker allegedly said that “black staff don’t work”.

[243]In her second grievance letter at page 297 in the bundle, the Claimant had expressed the issue as Mr. Walker “Has expressed to me I should prove my worth to the ACE employees who believed "the black staff don't work as much as the rest of us”.

[244]Then in her particulars of claim, at paragraph 23, the Claimant pleads the issue as “the Claimant alleged that during a face to face meeting in 2021, Mr. Walker made a racial statement that there is a prevailing impression that “black staff don't work” and that she must prove her worth by showing up to the office more often, but later apologised.”

[245]During cross examination, the Claimant clarified that Mr. Walker hadn’t actually said that black staff don’t work. He said there was an impression they don’t work and then said the Claimant needed to prove herself.

[246]The Claimant argued that this was Mr. Walker basically conducting the racism on behalf of the Respondent by getting black people to prove themselves simply because white colleagues had said they thought black people were lazy.

[247]The Respondent’s case was that, in the grievance procedure, Mr. Walker clearly denied this happened and said there was a conversation about the Claimant needing to be in the office more and proving herself but that was simply to do with developing the Claimant and nothing to do with allegations made by white people or because of race. Those allegations, it argued, had happened in 2019 and therefore could not be reasonably related to this alleged conversation on 2021.

[248]We are not persuaded that Mr. Walker said anything in 2021 about an impression or statement that black staff don’t work. There is evidence of similar comments in the WhatsApp messages from years earlier, but they are, by 2021, historic having taken place in 2019 and, in our view, cannot be reasonably linked to alleged comments made in 2021.

[249]Mr. Walker is documented as saying during the investigation that there was a conversation with the Claimant about visibility generally and unrelated to race. Given that the Claimant’s evidence in cross examination differed from her witness statement on this point, we find her version of events unreliable and prefer Mr. Walker’s documented version of events during the investigation.

[250]The Claimant raised this as an example of both harassment and direct

[251]When dealing with the harassment issue: 251.1. In our judgment, the Claimant has failed to prove that any unwanted conduct occurred related to race. We prefer the version of events put forward by the Respondent. 251.2. We therefore agree that this claim is a non-starter as the Respondent submitted. Nothing said or done was related to race.

[252]When considering direct race discrimination: 252.1. When considering whether this was less favourable treatment, the Claimant has failed to prove that she has suffered any less favourable treatment about these issues compared to any hypothetical comparator. 252.2. We are not persuaded that the conversation between her and Mr. Walker happened how the Claimant described it. 252.3. No evidence was present to support the allegation that a hypothetical employee who was not sharing the Claimant’s race, who was perceived by Mr. Walker as not being visible enough in the office, would have received more favourable treatment. 252.4. In any case, Mr. Walker’s behaviour was not because of race. We decided that the real reason for it was because of the Claimant’s perceived performance issues. Incidents with Chloe Brooks

[253]This incident is pleaded at paragraphs 21 and 22 of the particulars of claim at page 74 in the bundle. The Claimant first alleges that a comment made at an away day she did not attend was racist. The Claimant also claims that Ms Brookes harassed her and subjected her to less favourable treatment because of race when Ms Brookes said she was disappointed the Claimant was not present at an away day, as she would have liked the Claimant to have taught her about hip hop music and culture as she knows little about it.

[254]The Respondent’s case was that the Claimant did not genuinely believe that this was a case of discrimination because she wanted this situation treated generally, rather than because of race, at the time she grieved about it. This was not complained about again and, in any case, it was denied.

[255]When considering this allegation, the Claimant’s evidence was confused. For example, the Claimant stated this incident actually happened in 2018 not 2019 as pleaded. This therefore meant that, strictly speaking, any claim about anything said in 2018 was not before the Tribunal therefore it should fail on this ground alone.

[256]Alternatively, we were taken to evidence about it in the bundle at page 551 where Ms Brookes provides an explanation as to what happened on the 2018 away day.

[257]Ms Brookes describes in this email, that she had said to Natalie Pryce that she was disappointed the Claimant wasn’t present at the away day because she wanted to hear more about the Claimant’s specialisms. She said her knowledge in this area was lacking and that was why the Claimant had been employed to increase investment in those genres of music.

[258]What is significant here is; 258.1. First, the Claimant was not present for this conversation. We find it occurred between Ms Brookes and Ms Pryce. This would account for why the Claimant was confused about the dates. 258.2. Secondly, Ms Pryce has clearly, on balance, fed this conversation back to the Claimant. During cross examination, the Claimant asserted that it was Paul Bonham who had informed her of this conversation, not Ms Pryce. However, this is not supported by the information we have reviewed. In the Claimant’s own witness statement, she asserts that both Natalie Pryce and Paul Bonham informed her of this and then she changed her evidence under cross examination when being accused of colluding with Natalie Pryce about the allegations the Claimant has made. She then answered that it was Paul Bonham who had informed her.

[259]Consequently, we found the Claimant’s evidence on this point to be unreliable. We believe Ms Pryce alone fed this back to the Claimant.

[260]Given that the Claimant has now, on a couple of occasions, appeared to change her evidence or case throughout the course of the proceedings, we prefer Ms Brookes version of events in the email at page 551.

[261]It was also put to the Claimant, by the Respondent, that what Ms Brooks had said was a compliment rather than a negative statement. In response the Claimant said in cross examination “I don’t agree. I was asked to do more work because of my race.”

[262]We do not agree that the Claimant’s view is a reasonable one to have. First, we prefer the version of events put forward by Ms Brookes in her email, largely because Ms Brookes was present for the conversation rather than hearing what was said second hand. Secondly, there was no requirement for the Claimant to do any work during this conversation. We agree it was more an expression of a desire to chat to the Claimant to learn more about the Claimant’s specialism on an away day. Thirdly, we could not identify any link to race in what Ms Brookes was saying. Ms Brookes was enquiring about the Claimant’s music specialism, not about the Claimant’s race.

[263]Then there is the second issue of Ms Brookes apparently calling out the Claimant’s name with “hostility” at an “unusual rate” causing Claudia West to intervene. Neither Ms Brookes, Mr. Cooke nor Ms West gave evidence. Taking the Claimants case at its highest, even if we were to agree that this happened, which in fairness is not really challenged by the Respondent, we cannot identify any evidence supporting a link to these allegations being done because of race, except for the Claimant’s say so.

[264]In addition, at the time the Claimant first complained about this issue, the Claimant asked that this complaint be withdrawn and treated as a more general picture of micro aggression (bundle page 196). We can therefore only conclude that this is not as big an issue to the Claimant as she is now trying to make out.

[265]When considering these issues about Chloe Brookes and whether Mr. Walker should have made a complaint about them being race discrimination, having found that there was no evidence of any racial link to these events, we conclude that there was no reasonable complaint that Mr. Walker could have made about those issues if indeed he took no action as the Claimant alleges.

[266]These incidents were raised as both harassment and direct discrimination. Dealing with harassment first: 266.1. The incidents as described by the Claimant were examples of unwanted conduct. 266.2. However, the Claimant has failed to satisfy us that these incidents were related to race. There is not a prima facie case of discrimination made out here. 266.3. We therefore do not need to consider these events further.

[267]When considering direct discrimination: 267.1. The Claimant has failed to prove any less favourable treatment. 267.2. For the first incident, no evidence has been adduced to prove that Ms Brooks would have spoken about a non-black colleague any differently if they hadn’t shown up to the away day and it was a specialism that Ms Brooks knew nothing about. 267.3. Similarly, no evidence was adduced to prove that Ms Brooks wouldn’t have spoken to non-black colleagues in the same way as she had spoken to the Claimant at the meetings the Claimant attended.

[268]Consequently, the Claimant has failed to shift the burden of proof about these claims. The email from Karen Coundon entitled “You” on 10 March 2021

[269]This is pleaded at paragraph 28 POC. The Claimant takes issue with the title of the email sent by Ms Coundon to her. It was entitled “You”. The Claimant claims that this email was an insulting and unsolicited email, which pretended to be concerned about her health. She also took issue with it being sent whilst she was off sick and the Claimant says it was a “dehumanizing” title which made her feel worthless and was an act of bullying and harassment meant to cause her to leave her job (Claimant statement para 21).

[270]The email in question entitled “You” can be found at page 411 and said: “Hi speech I just wanted to touch base and see how things were going. Whilst I'm aware that you may not be wholly satisfied with the outcome of the recent grievance I trust that things are moving forward in a constructive way for you in London. I also hope that the Clore programme is proving useful to you. Kindest Karen”

[271]When considering why Ms Coundon sent this email and what her intentions were, both in her statement and in cross examination, Ms Coundon’s evidence was robust and clear. She says she was simply emailing the Claimant to check she was ok, knowing that the grievance outcome was not what the Claimant would have wanted.

[272]We have no reason to doubt what Ms Coundon said. We believe her and we believe Ms Coundon was genuinely trying to be pleasant in sending the email. We were also impressed with the fact that Ms Coundon now won’t send any emails with that title to anyone else again, after realising that it may not come across well.

[273]Clearly, the Claimant did not want to receive this email and felt it was unwanted conduct both by the fact it was sent in the first place and by the title of it.

[274]We also accept that it was an unusual way of addressing an email as Ms Nelson did when looking into the Claimant’s grievance about it at page 430. However, there is no way this email can reasonably be characterised in the bizarre and extreme way the Claimant has described it in her witness statement. It is obviously a professional email that was intended to be supportive. Calling it dehumanising has no foundation whatsoever.

[275]What is also significant, is when the Claimant grieved about this email, she did not raise it as an issue of race discrimination, yet in her particulars of claim, she claims this is both race harassment and direct race

[276]The Respondent submitted this claim was clearly nothing to do with race and it was surprised the allegation had not been abandoned because it was clear that no reasonable person could have genuinely believed that this was an act of race discrimination.

[277]When considering harassment: 277.1. In our judgement there is no evidence that this email was sent because of race at all. 277.2. We do not believe the Claimant genuinely believed this to be because of race either, as shown by the fact she did not raise this as such at them time. A label of race discrimination has been added to the situation years after the issue first happened where we could not see what had changed in between to cause the Claimant to now claim it was race discrimination. 277.3. In cross examination the Claimant’s evidence was that, to her, entitling the email as “You” was “verbal violence”. This is a baseless and bizarre way to describe this professionally worded email. Applying Dhaliwal, we conclude the title of the email being a single one word issue that was in no way intended to be offensive, was trivial and transitory in nature. 277.4. Similarly, there is no evidence at all that the email amounted to less favourable treatment compared to a non-black person in similar circumstances to the Claimant. In fact, during their evidence, both Ms Coundon and Ms Toogood confirmed that Ms Coundon had emailed Ms Toogood with the same title. 277.5. In any case, the proven real reason why Ms Coundon entitled the email “you” was because it was about the Claimant as a person, not about any of the Claimant’s individual characteristics. The 9 June 2021 incident where the Claimant’s emergency contact was phoned

[278]This is pleaded at paragraphs 52 – 54 of the POC and is also mentioned at paragraph 31 POC. Here the Claimant alleges further harassment and direct discrimination when Mr. Walker tried to contact her with multiple attempts because she failed to attend a meeting.

[279]The next day, after no further contact, Ms Coundon decided to call the Claimant’s emergency contact to check she was safe and well. The Claimant took issue with this claiming it was race harassment, unreasonable and inappropriate. The Claimant also alleges that this caused both her mother and her to become distressed (Claimant statement paragraph 22).

[280]In our judgment, the incident was triggered by the fact that the Claimant had not attended a team meeting without informing Mr. Walker that she would be absent.

[281]Mr. Walker tried to contact the Claimant twice by text to check she was ok, once by email and once by telephone call. He received no response to any of these and so mentioned it to Ms Coundon in HR, undoubtedly because he was concerned about the Claimant’s welfare.

[282]Ms Coundon said that Mr. Walker did this because he was concerned for the Claimant and Ms Coundon’s unchallenged evidence was that about 3 weeks prior to this missed meeting, the Claimant had also failed to attend a meeting, hadn’t contacted Mr. Walker until late in the day, and it turned out she had been hospitalised (KC paragraph 20).

[283]On 10 June 2021, there had still been no contact from the Claimant, so Ms Coundon contacted the emergency contact number that the Claimant had provided for employment purposes and spoke to her mother to confirm that she was safe and well. A note of the conversation is at page 548 in the bundle.

[284]Ms Coundon believed that this was a perfectly appropriate response to the situation because the Respondent knew of the recent hospitalization following a similar lack of contact by the Claimant, she lived alone, the Respondent had a duty of care to the Claimant and she had not mentioned that she was going to miss the meeting.

[285]We believe that both Mr. Walker and Ms Coundon behaved reasonably in the circumstances of this situation, given the backdrop of the Claimant’s then recent hospitalisation. We believe that when Ms Coundon made the call to the Claimant’s mother and when Mr. Walker made repeated attempts to contact the Claimant without success, they genuinely believed that the Claimant may have been in danger. We do not understand why the Claimant has taken issue with this.

[286]When considering this as alleged harassment: 286.1. Whilst the Claimant clearly thought this was unwanted conduct, there is no evidence linking it to race. 286.2. We find that this had neither the purpose or that any reasonable person could believe it had the effect of creating a negative work environment. To the extent the Claimant thought that it created such an environment, that was an unreasonable view to have in the circumstances.

[287]When considering direct discrimination: 287.1. The primary finding here is, again following Laing, the Respondent’s explanation for why it behaved as it did is clearly proven. The real reason why Ms Coundon and the Respondent behaved as they did, was because of genuine concern for the Claimant’s well-being and in no way whatsoever because of the Claimant’s race. 287.2. The Claimant has totally failed to adduce any evidence to show that a non-black female in the same or similar circumstances would have been treated any differently. 287.3. Whilst an unusual situation, there was no less favourable treatment here. Ms Coundon’s clear evidence was that she would have done this for anyone in the same circumstances regardless of race and we believe her. The second OH report of 23 June 2021

[288]The Claimant takes issue with information disclosed to the OH doctor, namely that Ms Coundon included reference in it to the use of the procurement card.

[289]The Claimant had been absent from work since 11 June 2021 with work related stress.

[290]On 16 June 2021, Ms Coundon emailed the Claimant at page 549 in the bundle expressing her sympathies for the Claimant being unwell again and informing her that she had reached trigger points in the Absence Management Policy.

[291]Significantly, Ms Coundon quite reasonably believed that the procurement card issue may be a contributing factor to the Claimant’s absence. She therefore informed the Claimant that she would inform Occupational health about this issue and said in her email: “Do let me know if you have concerns about this suggested course of action. It is intended to be supportive rather than to add to your current stresses. Can I also ask if you were able to put your out of office onto your work account (just notice it's not there) this hopefully will enable those seeking to contact you to access support from colleagues during your absence. If you are having difficulties do let me know and I will ask IT if they can assist…”

[292]We conclude that this email, when viewed as a whole document, was a very empathetic and sensitive way to handle what was likely to be a contentious issue about the procurement card.

[293]To the Claimant’s credit, in cross examination, she accepted this was a pleasant email and accepted that she was grateful to be referred to occupational health.

[294]The Claimant seems to take issue with the fact it included the procurement card, it was sent to her personal email address and was sent whilst she was absent from work.

[295]In our view, it was perfectly reasonable to email the Claimant in this way in the way that Ms Coundon did.

[296]The Respondent has a duty of care to the Claimant. It was reasonable for an experienced HR professional, such as Ms Coundon, to believe that the Claimant’s health may have meant that adjustments to her duties, hours or workplace may need to have been considered.

[297]It is also our experience that, in a stress at work case, to try to support the person who is stressed, everyone including the Claimant would benefit from identifying clearly and early what the stress inducing factors are and, where reasonable and appropriate, try to remove those stress inducing factors.

[298]Independent medical professional input is almost always required in such scenarios, and required fairly quickly, so that things do not deteriorate. A broad explanation of the current circumstances of the Claimant was therefore necessary, to provide the Occupational Health specialist with full relevant information.

[299]When considering sending the email to the Claimant’s personal email address, again, we cannot see any problem with Ms Coundon doing that.

[300]Ms Coundon’s evidence was clear that the reason why she used the personal e-mail address, was because the Claimant was currently absent on sick leave and therefore it could not be assumed that the Claimant was checking her work e-mail address. It also ran the risk of not being seen by the Claimant because of her absence if the work e-mail address had been used. This was all perfectly reasonable.

[301]The Claimant seems to be under the impression, that when she is on sick leave, if the Respondent was to contact her in any way then that amounts to an improper intrusion to her private life. That is not the state of the law and it is also an unreasonable view to have.

[302]So long as any contact during sick leave is made for good reason to support the employee in line with legal obligations such as, for example, its duty of care to employees, and is not excessive, then it is appropriate and indeed necessary communication.

[303]We conclude, in the Claimant’s circumstances, Ms Coundon’s handling of the occupational health situation was normal, professional, sympathetic and genuinely supportive.

[304]It is also clear to us that any racial element to the way Ms Coundon is interacting with the Claimant is entirely absent and the fact that Claimant seems to think there is a racial motivation to this situation is difficult to understand.

[305]When considering this as a harassment allegation: 305.1. The Claimant has failed to prove that, whilst reference to the procurement card and the address to which this email was sent were unwanted, there was any link to race. SH has not proved a orima facie case here to shift the burden of proof.

[306]When considering the allegation of direct discrimination: 306.1. There is obviously no less favourable treatment here. The Respondent is treating the Claimant favourably and responsibly. 306.2. No evidence was put forward by the Claimant that a non-black colleague in similar circumstances would have been treated any differently. 306.3. Either way, the Respondent has easily proven that its behaviour was in no way whatsoever because of race, so would have discharged the burden it had anyway, even if the Claimant had proved a prima facie case of discrimination. The occupational health process allegations

[307]These allegations are pleaded at paragraphs 30 - 42 in the POC. The email of 2 July 2021 from Ms Coundon

[308]On 28 June 2021, the occupational health report was received and reviewed by Ms Coundon. The report made the following key points and recommendations (made by Nurse Jessica Lewis): 308.1. The Claimant informed Ms Lewis that the Respondent chasing her for payment of the procurement card debt was partially to blame for her stress at page 275; 308.2. The issue with her mother being contacted had also caused her stress, but that “on reflection” the Claimant had then found that a draft email she thought she had sent to her manager, was still in her draft folder. We find that because the words “on reflection” were used by Ms Lewis, the Claimant was clearly identifying that she may have been at least partially at fault for the situation. 308.3. It stated “I have advised Miss Elliott that I feel once a management meeting has been held to discuss and address her stress-related triggers and implement some control measures for these she will be able to successfully return back to the working environment. I will therefore suggest some adjustments in question 6 that I feel will support Miss Elliott with this matter.” At page 276 in the bundle. 308.4. Those relevant suggested measures were described as: 308.4.1. “I feel miss Elliott will be fit to return to the working environment once a management meeting has been held to discuss her stress related triggers” 308.4.2. “It would be suggested that a management meeting be arranged at the earliest convenience to address miss Elliott's stress related triggers in the hope of these being resolved I then feel that she will be able to return to the working environment without concern.” 308.4.3. “A management meeting is now recommended to discuss the contents of this report and to address the stress related triggers with miss Elliott in further detail.” 308.4.4. “She has highlighted that there is some concern between herself and the support she feels she is receiving from her line manager. He may therefore wish to complete some mediation. 308.4.5. “Miss Elliott has highlighted that she feels it would be supportive for her union representative to be involved in any future meetings and this may be of benefit to her at this time though this is ultimately a management decision.” 308.4.6. “I would suggest that a stress related risk assessment is implemented to address any further stress related triggers and for control measures to be implemented.”

[309]Also, in late June, the Claimant had been signed off for a further few weeks at page 221 in the bundle.

[310]On 2nd July 2021, Ms Coundon emails the Claimant acknowledging receipt of the occupational health report, and acknowledging that a copy of the report has been supplied to her by the occupational health provider.

[311]She goes on to explain her understanding of the situation namely that this is a situation of situational stress and summarises the recommendations as Ms Coundon understands them.

[312]Ms Coundon also summarises what she understands the stress triggers to be and gives the opportunity for the Claimant to respond if any stress triggers have been missed. The e-mail also logs that it was Ms Coundon’s intention to be helpful.

[313]We consider this e-mail to be nothing other than a professional, genuinely supportive and responsive e-mail to the situation of the Claimants stress. In our view it is wholly compliant with the advice given by occupational health.

[314]A few hours after the e-mail is sent, the Claimant responds to the e-mail with a very brief response saying that she is currently on sick leave until the 19th of July and has attached the occupational health report as a reference at page 416 in the bundle.

[315]On 3 July 2021, Ms Coundon emailed the Claimant to organise the management meeting that the report had suggested as well as other suggested measures. The e-mail appears in the bundle that page 415 – 416.

[316]In this email, Ms Coundon stated that the Respondent is seeking to arrange an early meeting to discuss the Claimants stress triggers.

[317]Significantly, the e-mail also offers adjustments to allow the Claimant to properly engage with the meeting such as limiting the meeting to 1.5 hours in length and ensuring that the claim was able to take breaks as appropriate. It also offers the Claimant chance to let Ms Coundon know if there are any other measures that could support the claims attendance at the meeting.

[318]In addition, it offers the Claimant the chance to be accompanied and also, given that the report highlighted that the Claimant was having difficulty with the way that her manager Mr. Walker was communicating with her, the email suggests there be a meeting with someone other than Mr. Walker.

[319]We consider this e-mail to be nothing other than sympathetic, genuinely supportive, responsive to any perceived need to make adjustments for the Claimant and an entirely professional and normal management e-mail.

[320]The Claimant takes issue with the fact that the e-mail of the 2nd of July refers to the instigation of a fact-finding process about why the procurement card payments have not been made by the Claimant back to the Respondent. However, in our view, that is not a reasonable stance for the Claimant to take.

[321]We say this because, clearly, the occupational health report has indicated that before a return to work can safely happen, there needs to be a management discussion to resolve all the indicated stress inducing factors that are mentioned in the occupational health report. One of those is the issue of the procurement card. Without any repayment, it was perfectly reasonable for the Respondent to suggest that a fact Finder meeting about the non-payment should be convened.

[322]We conclude that the Respondent has been incredibly patient with the Claimant about the repayment of money which does not belong to her being paid back for the accidental purchases.

[323]Indeed, the Claimant by now has been chased for nearly a year and has not complied with previous indications, given voluntarily by her, that she would pay the procurement card payments back by certain dates either partially or fully.

[324]We are in no doubt that, first, many employers would not have believed that these were accidental procurement card purchases.

[325]Secondly we are also in no doubt that many employers would not have been as patient with the Claimant as the Respondent had been and would have instigated a disciplinary investigation far sooner than the Respondent has.

[326]Consequently, the Respondent is behaving reasonably, professionally and in a supportive manner, even about a potential issue of gross misconduct.

[327]Eventually, the Claimant involves her union representative Clive little. He emails the Respondent on 5th July 2021 at page 414, quoting the return to work meetings section of the absence management policy.

[328]He appears to be under the mis-apprehension that the Respondent’s request that the Claimant attend a meeting to discuss the occupational health report and stress triggers, was a return to work meeting.

[329]In fact, clearly and obviously, it was nothing of the sort. It is not labelled as a return to work meeting. It is not listed as being a return to work meeting under the absence management policy. It is clearly and obviously a request to meet in line with the recommendations of the occupational health report whilst the Claimant is still signed off as unfit for work.

[330]To clarify matters later, on 5th of July 2021 at page 412 in the bundle, Ms Coundon replies to Mr little to try to clarify the situation.

[331]In this e-mail she explains that this is not a return to work interview. Rather, it followed on from advice from occupational health that an early meeting be arranged to discuss the triggers underpinning the Claimant’s continued absence because of stress.

[332]Ultimately, no meeting ever takes place and the Claimant resigns before returning to work after this period of absence. Alleged covert disciplinary procedure

[333]The Claimant also alleges that the attempt to organise this meeting following the occupational health report is a sham and is a disguise to try to discipline

[334]We reject that argument entirely and with ease.

[335]There is simply no evidence put forward to support the Claimant's view that this was a disguised disciplinary process. The Respondent is fully open and transparent about the fact that it needs to have a fact finder meeting with the Claimant about the procurement card issue.

[336]Secondly, it is only inviting the Claimant to a fact find a meeting. It is not at this stage inviting the Claimant to attend a disciplinary meeting. Fact finder meetings may result in a disciplinary meeting but, then again, they may not.

[337]It was bizarre and does not make sense why this situation has been pleaded as being a sham meeting to conduct a covert disciplinary process when the Respondent was obviously being fully open and transparent about the situation as is clearly proven by the email correspondence. The procurement card issue

[338]The Claimant claims that pursuing the issue of the unauthorised spend on the procurement part is an act of both direct race discrimination and harassment.

[339]The way we see it is as follows: 339.1. The Claimant accepts that she has made purchases with the procurement card by mistake that should not have been made; 339.2. This means that the Claimant has bought personal items with her employer’s money without consent; 339.3. The Claimant has then, in our view and without a proper explanation, failed to pay back the money within any reasonable timeframe; 339.4. In addition, the Claimant seems to have a poor attitude to this situation. We say this because in the bundle at page 445, the Claimant emailed a colleague who made a single mistaken purchase using their procurement card. In this e-mail, the Claimant says that the Respondent has been "bugging” her about the accidental use of her procurement card. 339.5. There was also a dividend payment of £2000 in March 2021, paid from the Claimant’s company to the Claimant privately. This therefore meant that the Claimant had the means to be able to at least make a token payment towards the debt she owed to the Respondent and had chosen not to.

[340]In our judgment, the use of the word “bugging” suggests to us that the Claimant believed that the Respondent chasing her over a significant period to return money that does not belong to her, annoying and inconvenient.

[341]This shows the Claimant had an unsatisfactory belief that she was entitled to keep money that did not belong to her for as long as she wanted until, at some point unknown, it became convenient for her to pay the money back, if at all.

[342]In our judgment, the Claimant had no intention of returning the procurement card money within any reasonable time frame. This is further supported by the fact that the money only became repaid when the Respondent deducted the amount owing from the Claimants final wage payment after the termination of her employment.

[343]When considering these allegations as harassment claims: 343.1. Whilst the Claimant clearly believed the Respondent’s conduct to be unwanted, none of the Respondent’s conduct was related to race. 343.2. The Claimant has entirely failed to prove any link between this behaviour and race and it was unreasonable for her to have believed any link. No reasonable person would conclude that the respondent’s behaviour in any way whatsoever had the purpose or effect of creating an negative work environment.

[344]When considering these issues as direct discrimination: 344.1. We have no hesitation in concluding there was no less favourable treatment compared to anyone else either hypothetical or actual from what we have been referred to. 344.2. The OH report, suggested management meeting and mention of the procurement card issue, were all done by the Respondent in an attempt to get the Claimant to return to work. This was nothing to do with race. 344.3. When considering the card purchases, in her evidence the Claimant attempted to allege that Charlotte Penny was treated more favourably than her by the Respondent when she misused her card and was not subject to a fact finder meeting. A description of what Ms Penny did is in the bundle at page 445. 344.4. However, Ms Penny was not in anywhere near the same or similar circumstances to the Claimant about this issue. We say this because: 344.4.1. Ms Penny went to finance about her mistake, the Claimant waited for finance to come to her; 344.4.2. Ms Penny’s mistake was a single transaction, the Claimant’s mistakes were numerous over a long period of time; 344.4.3. Ms Penny sorted the repayment of the debt out herself by completing a form on SAP (the Respondent’s HR platform). The Claimant failed to repay the debt she owed. 344.4.4. Ms Penny was proactively sorting the mistake out herself and was therefore the Respondent did not have to do anything about it. The Claimant was subjected to a suggested fact finder meeting because she failed to keep to her word about repayments and was delaying repayment for over a year. 344.5. Therefore, the Claimant has failed to prove that there was any less favorable treatment because of her race and the Respondent has easily proven that its conduct was in no way whatsoever because of the Claimant’s race. It was because the Claimant had repeatedly failed to repay misappropriated funds. Lack of support and management interactions with Huey Walker

[345]We then move on to the final point in the list of issues that we have not yet addressed about the discrimination claims that the Claimant believes that the Respondent did not provide adequate support to her.

[346]This is pleaded at paragraph 27. The Claimant’s case is that following the Claimant complaining about how she was being treated, she was not provided with support and instead increased the Claimant’s stress by subjecting her to inappropriate criticism creating a hostile work environment.

[347]In our view this allegation is not particularised and we are left guessing as to what the specifics of this claim actually are. This claim therefore fails.

[348]The Claimants second grievance indicates that the Claimant was taking issue with the way that she was being managed by Mr. Walker. However, a grievance is not a claim.

[349]She also includes phrases such as “doubling down” on the Claimant. We understand this to be a saying which means an increase in effort to follow a particular path or strategy. We therefore find this is akin to an allegation of victimisation, which to the extent that it was pleaded by the Claimant in the ET1 has been withdrawn.

[350]In any event, throughout the hearing, we have been referred to numerous examples of management interactions between Mr. Walker and the Claimant discussing her workload, the problems she has with understanding and processing numerical information, and support offered because of what the Claimant once thought was dyslexia.

[351]Looking at the way that Mr. Walker has both interacted with the Claimant as a whole, from the evidence we have been referred to in the bundle, we are content that all the interactions between Mr. Walker and the Claimant were supportive, professional and genuine attempts at proper line management of

[352]We agree with the submission made by counsel for the Respondent that the Claimant seems to view professional and proper management of her as an employee, as being micromanagement of her as an employee.

[353]We have also already identified that the Claimant was reluctant to engage in any sort of line management of her, which she did not either want to happen or agree should be happening.

[354]Clearly here, all Mr Walker was doing in his interactions with the Claimant was trying to resolve in a supportive manner performance concerns with the Claimant and also conduct concerns with the Claimant where she may not have been perceived to have been following correct process is and procedures.

[355]That said, the claim is unclear, no evidence is put forward in her witness statement about it and it is not for the Tribunal or Respondent to guess about what is meant. Carriage of putting forward an understandable claim rests with the Claimant. Summary of s13 and s26 Equality Act 2010 discrimination claims

[356]In summary, we are not persuaded that the Claimant has proven facts from which this Tribunal can infer that any discrimination has taken place whether that be direct discrimination under section 13 of the Equality Act 2010 or whether it be harassment under section 26 of the Equality Act 2010.

[357]Consequently, all the Claimant’s allegations of direct race discrimination and/or race harassment fail and are dismissed. Constructive discriminatory dismissal s39 (2) (c) and (7)

[358]We then move on to the issue of constructive discriminatory dismissal.

[359]The Claimant case here was that all the acts of discrimination alleged amounted either individually or cumulatively to breaches of contract entitling her to resign in response.

[360]Given that all the discrimination claims have failed, we are not persuaded that the Respondent has, at any time, behaved in a manner that either cumulatively or for any individual act alleged amounted to any breach of the Claimant’s contract of employment either of an express term or an implied term. At all times the Respondent had reasonable and proper cause for behaving how it did.

[361]Even if it had breached the Claimant’s contract of employment, most of the breaches alleged would have been affirmed by the Claimant, especially those that took place in 2018, 2019 and 2020, because she remained employed afterwards.

[362]Given our findings that there has been no breach of contract by the Respondent, we can only conclude that the Claimant resigned and was not constructively dismissed.

[363]We therefore do not need to consider any other part of the test for constructive dismissal.

[364]Consequently, the Claimant's claim that she has been discriminated against in breach of section 39 of the Equality Act 2010 because of constructive discriminatory dismissal fails and is also dismissed.

[365]In addition, the subsequent agreement between the parties for the Claimant to be paid in lieu of her notice causing the Claimant’s actual termination of employment, was not argued as being an act of discrimination in any case.

[366]To the extent that any other claims included in the Claimant’s particulars of claim and have not been pursued by the Claimant, those claims are dismissed upon withdrawal by the Claimant.

[367]Finally, as we have found against the Claimant on all allegations, we do not need to consider whether parts of the Claimant’s case were out of time or not.

[368]That is the unanimous judgment of the Tribunal about all allegations made by the Claimant. The Claimant’s claim is therefore dismissed in its entirety. END