Ms F Grabe v The Untied Reformed Church: 2204367/2012
EMPLOYMENT TRIBUNALS
Case No 2204367/2012
Between
Ms F GrabeClaimantThe Untied Reformed ChurchRespondent
Before
Employment Judge A M SnelsonDate 8 February 2022
JUDGMENT
On hearing the Claimant in person and Dr E Morgan, counsel, on behalf of the Respondents, it is adjudged that:(1) It was not reasonably practicable for the Claimant to present her claims under the Employment Rights Act 1996, the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 and the Working Time Regulations 1998 within the primary limitation period of three months and they were presented within a further period which was reasonable. Accordingly, the Tribunal’s jurisdiction is not excluded on time grounds.(2) For the purposes of the Claimant’s claims under the Equality Act 2010, it is just and equitable to extend time for presentation of the claims by 40 days. Accordingly, any claim in respect of which time ran from the termination of the (alleged) employment, 8 June 2012, is not excluded from the Tribunal’s jurisdiction on time grounds.(3) A Preliminary Hearing (Case Management) shall be held at 10.00 a.m. on 20 April 2017 with two hours allocated.
REASONS
Introduction
[1]The Respondents are a Christian denominational church formed in 1972 by the union of the Congregational Church of England and the Presbyterian Church of England. I will refer to them as ‘the Church’.[2]Between about 24 November 2008 and 8 June 2012 the Claimant was an ordinand (or trainee minister) of the Church. The Church/ordinand relationship, which she characterises as one of employment, was ended by the Church through its decision to terminate her candidacy for ordained ministry. That decision was communicated to her in a report of the Church’s Assessment Board dated 3 March 2012 but did not become final until her appeal was dismissed on 8 June.[3]By her claim form presented to the Tribunal on 17 October 2012 the Claimant has brought complaints of unfair dismissal, breach of contract, direct racial discrimination and victimisation, together with claims for arrears of pay and holiday pay.[4]The claims are resisted on a variety of jurisdictional and substantive grounds.[5]The antiquity of this litigation is largely explained by the fact that it was staed for an extensive period owing to the Claimant’s ill-health. Fortunately, she has recovered sufficiently to enable the Tribunal to lift the stay.[6]The matter came before me on 13 March this year in the form of a preliminary hearing to determine the following issues (I quote from the order of Employment Judge Hodgson made on 30 August and promulgated on 7 September 2016): 1. Has the claim of unfair dismissal been presented within the period allowed under section 111(2), the Employment Rights Act 1996? If not, was it not reasonably practicable to present the claim in that time? If so, was it presented in such further time as was reasonable? 2. Have the discrimination claims been presented within the period allowed by section 123, the Equality Act 2010? If not, is it just and equitable to extend time? 3. Are there any other claims and have they been presented in time? If not, should time be extended? The Claimant appeared in person and the Respondents were represented by Dr E Morgan, counsel. I heard evidence from the Claimant and Ms Fiona Thomas, the Church’s secretary for Education and Learning. Although two days were allowed, I was able with the co-operation of the parties to complete the evidence and argument on day one and I decided to reserve judgment then in order to spare both sides the trouble, anxiety and expense of attending on day two.[7]Before me, Dr Morgan accepted that the ‘discrimination claims’ (Issue 2) should be read loosely as including various complaints under the Equality Act 2010 (‘the 2010 Act’) and that the claim form also contained money claims which, for the purposes of the preliminary hearing (and without prejudice to the Church’s fundamental objection that there was never any form of employment relationship between them and the Claimant), could properly be seen as arising or being outstanding on 8 June 2012.
The relevant law
[8]The first requirement of any complaint of unfair dismissal is a dismissal. By the Employment Rights Act 1996 (‘the 1996 Act’), s95, it is provided (so far as material) that: (1) For the purposes of this Part an employee is dismissed by his employer if (and … only if) – (a) the contract under which he is employed is terminated by the employer (with or without notice …[9]The same Act, s111 includes: (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint [of unfair dismissal] unless it is presented to the tribunal –(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[10]The ‘not reasonably practicable’ formulation sets a high standard for claimants who bring proceedings late. The statutory language has been interpreted as importing a requirement to show that it was not ‘reasonably feasible’ to claim within the primary three-month period (see Palmer-v-Southend on Sea Borough Council 1984 ICR 372 CA).[11]In principle, a claimant’s ignorance of his or her rights may make it ‘not reasonably practicable’ to present a claim within the primary three-month period. But the authorities have consistently held that the statutory test requires the Tribunal to examine the plea of ignorance with care. In Dedman-v-British Building Ltd [1974] ICR 53 CA, Lord Denning MR observed:1 What is practicable “in the circumstances”? If in the circumstances the man knew or was put on inquiry as to his rights, and as to the time limit, then it was “practicable” for him to have presented his complaint within [the primary period] and he ought to have done so. But if he did not know, and there was nothing to put him on inquiry, then it was “not practicable” and he should be excused. Although the statutory test brought in by the Trade Union and Labour Relations Act 1974 (‘the 1974 Act’), sch 1, para 21(4) and now preserved in the 1996 Act, s111 is slightly different in that “practicable” is qualified by “reasonably” and “in the circumstances” has disappeared, the guidance in Dedman has been consistently applied. In Avon County Council-v-Haywood-Hicks [1978] ICR 646, a case decided under the 1974 Act, the EAT observed that the Court of Appeal were not to be read as having decided in Dedman that “ignorance however abysmal and however unreasonable” was a universal excuse. Regard must be had to common sense. Overturning the decision at first instance, the EAT held that the claimant, “an intelligent, well-educated man” ought to have known of his rights even if he did not and that accordingly it had been “reasonably practicable” to present the claim within the primary three-month period.[12]The Tribunal has jurisdiction to consider claims for (inter alia) breaches of employment contracts or sums due under such contracts by virtue of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 (‘the 1994 Order’). The time limit for bringing such claims is three months beginning with the ‘effective date of termination’ (Art 7(a)), subject to the same ‘not reasonably practicable’ proviso as applies in unfair dismissal cases (Art 7(c)).[13]The provisions protecting workers from suffering unauthorised deductions from wages under the 1996 Act, Part II and those entitling them to paid annual leave and compensation on termination for outstanding leave under the Working Time Regulations 1998 (‘the 1998 Regulations’) incorporate the same limitation regime as applies to unfair dismissal and breach of contract claims. In the former case, time runs from the date of the payment from which the alleged deduction was made (s23(2)(a)) and in the latter, from when the relevant right should have been permitted or the relevant payment made (reg 30(2)(a)).[14]By the 2010 Act, s123(1) it is provided that proceedings may not be brought after the end of the period of three months ending with the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. “Conduct extending over a period” is to be treated as done at the end of the period (s123(3)(a)).[15]In Eduombi-v-La Retraite RC Girls School UKEAT/0180/16 DA (unreported, judgment delivered 30 December 2016) Elizabeth Laing J, sitting alone in the EAT, 1 p 61D-E. The test then (under the Industrial Relations Act 1971) was whether, “in the circumstances it was not practicable” to present the complaint within the primary period. reviewed the law on limitation under the 2010 Act. Her judgment included the following: 21. ... The EJ stated five correct propositions … :(1) the “just and equitable” test is a broader test than the “reasonably practicable” test in the Employment Rights Act 1996;(2) it is for the Claimant to satisfy the ET that it is just and equitable to extend time;(3) the ET has a wide discretion;(4) there is no presumption that the ET should exercise the discretion in favour of a Claimant - it is the exception rather than the rule (Robertson v Bexley Community Centre [2003] IRLR 434 CA); and(5) there is no general principle that an extension of time will be granted where the delay is caused by an internal grievance or appeal hearing (Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116 CA). …[22]… the ET referred to British Coal Corporation v Keeble [1997] IRLR 336 EAT, one of the many cases in which the time limit has been considered. The ET summarised this decision as showing that the ET should consider the prejudice that both parties would suffer and should have regard to all the circumstances, including the length of and the reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued had co-operated with any request for information, the promptness with which the Claimant acted once he or she knew of the facts giving rise to the cause of action and the steps taken to get professional advice once she knew of the cause of action. Those factors are derived from section 33 of the Limitation Act 1980 (“the 1980 Act”).[23]Mr Coghlin draws attention to paragraph 33 of the decision of the Court of Appeal in London Borough of Southwark v Afolabi [2003] ICR 800, in which Peter Gibson LJ said that it was not an error of law for the Tribunal not to go through all of the matters listed in section 33(3) of the 1980 Act … Submissions 16 The Claimant’s case was simple. Her principal contention was that her mental health in the summer of 2012 (and for a significant time before and after then) had been such as to disable her from taking measures to safeguard her own interests, including in particular inquiring into her legal rights and issuing Employment Tribunal proceedings to protect them. 17 Dr Morgan helpfully produced outline submissions in writing, which he supplemented orally. Wisely, he did not suggest that the delay in presenting the claim form had occasioned any prejudice. He also accepted that the question whether the Claimant could show that the acts complained of amounted to “conduct extending over a period” for the purposes of the 2010 Act, s123(3)(a) could only be addressed at the end of the case, on a review of all the evidence. Accordingly, his challenge to jurisdiction, for present purposes, proceeded on an assumed footing that time ran for all purposes from 8 June 2012.2 The nub of his argument was that, when properly examined, the evidence did not substantiate the explanation offered for the failure to present the claim in time. The facts 18 The relationship between the Claimant and the Church appears to have run into difficulties at quite an early stage. In January 2010 the Church took the 2 It might be argued that, for the purposes of any claim under the 1996 Act, Part II or the 1998 Regulations, a slightly later date applied, but nothing turns on that point here. decision to suspend her pastoral placement in Clapton. Her appeal against that decision, held in March 2010, succeeded and the placement was resumed. Unfortunately, however, the concerns (or, as she would say, professed concerns) about her performance as an ordinand and about her suitability for sacramental ministry did not abate and in early 2011 the decision was taken to suspend her from the formation programme. 19 It seems very likely that this turn of events was the cause, or at least a factor which contributed to, an exacerbation of certain physical and mental problems which had begun to affect the Claimant in 2010 or before. She spent some months in the early part of 2011 in Germany (her native country) and visited a spa at Bad Schoenborn, near Kronau. After returning to London she travelled to France, staying first at a mill near Lourdes and then on a farm. The latter period lasted from about October 2011 to February 2012. Thereafter, she was continuously resident in her London flat until some weeks after the Church brought her candidacy for ministry to an end on 8 June 2012, when she returned to France and took up residence again at the mill. She did not return to the UK until after the proceedings were commenced. 20 In her evidence the Claimant described the effect upon her of her increasingly unhappy association with the Church. She listed a range of conditions and symptoms which she attributes to treatment applied to her by decision-makers within the Church, ranging from gastritis (said to have been stress-related) to sudden and early menopause, to fibromyalgia, to severe insomnia, to depression. I cannot describe her narrative as measured or focused or concise or methodical. That said, I accept the picture which she painted as broadly reflecting her experience. I find that the bad news which she received in early 2011 and the worse news of June 2012 (which appeared to mark the very end of her aspirations to a future as a member of the Church’s clergy) hit her very hard. I accept her evidence that she found it exceedingly difficult to attend to any task. For long spells in 2011 and 2012 she had great difficulty even in getting out of bed. Her cognitive functions, including memory, were badly affected. During much of her time in France she retreated into a profoundly isolated existence. 21 The Claimant told me, and I accept, that not long after 8 June 2012 she visited the offices of Bindmans, solicitors with a view to obtaining advice as to her legal position. She did not have an appointment. She saw a receptionist who advised her to set out her story in writing. She left with a business card. Around the same time she visited a CAB. She was seen by a volunteer new to the organisation who suggested that she should return when she felt a bit better. That advice seems to me to have been consistent with the Claimant’s description of her own troubled mental state at the time, or at least with her having presented as distressed and troubled. 22 Neither the receptionist nor the volunteer said anything to the Claimant about time limits for bringing claims. That is not intended as any form of criticism: I imagine that neither was qualified to offer any advice on that subject. 23 The Claimant told me, and I accept, that she was not aware until October 2012 that it might be open to her to bring an Employment Tribunal claim. I further accept that she knew nothing of the Employment Tribunals system or the time limits which operate in this jurisdiction. And there was no suggestion that she had any experience of litigation in any other forum, in this country or anywhere else. She was not and is not a worldly individual. I accept her evidence that she had long since given up watching television.
The facts
[24]When, in early July 2012, the Claimant travelled again to France and stayed again at the mill near Lourdes, I have no doubt that she was in a bad way. I will not repeat my general findings at para 20 above. In and after August she was telephoned regularly by Dr Isabelle Sicard, a university lecturer friend. That contact may have stimulated her to take action in relation to her grievance against the Church. She managed to put together some sort of narrative in manuscript. Eventually, on 2 October 2012, she spoke by telephone with a solicitor at Bindmans. That was one of several lengthy conversations which took place over the ensuing fortnight. As a consequence of advice received in the course of one or more of those conversations she understood for the first time that there was, as she put in evidence, “a time pressure”. It seems that she succeeded in assembling a typewritten account (no doubt modelled at least in part on her handwritten notes), which she sent to the solicitor by email. As I have mentioned, the claim form was presented on 17 October 2012.[25]In reaching my findings I have had regard not only to the Claimant’s evidence but also to the further material from other sources which she put before me. In the end it was necessary for me to hear from only one of the long list of witnesses whom she originally intended to call, namely Ms Elizabeth Smith. She has had a long association with the Claimant through her counselling service which operates from the Kenton Baptist church. She is not qualified in psychiatric medicine. I do not ascribe to her medical expertise which she does not profess. But I found her a frank and straightforward witness and her evidence helpful to the Claimant as corroborating her general case as to the symptoms which she experienced in the summer and autumn of 2012 and their impact on her ability to function. During that time she had regular contact with her, initially face to face and, after the Claimant travelled to France, by Skype, email and text messages.[26]The supporting evidence also includes numerous letters and reports from medical practitioners in Germany and the UK. I find that material broadly corroborative of her account. Among many other things it confirms her assertion that she was prescribed Fluoxetine, an antidepressant, in 2011 (see the report of Dr Hanna Hund of 10 May 2011). Documentary evidence also shows that in July 2012 she was taking that medication in “high dosages”. I have no reason to doubt her evidence that she continued to do so well into 2013.[27]I have found further support for the Claimant in the written statements of a number of individuals with no medical or quasi-medical background who have given telling descriptions of her state, particularly in 2011 and 2012 (Bundle, pp269-300).[28]Dr Morgan drew attention to a number of points in support of his central thesis that the Claimant’s case as to her mental state at the relevant time was substantially overstated. I have had careful regard to all of them. The most important, in my view, are the following. First, although the documents refer to post-traumatic stress disorder (‘PTSD’) there is no evidence of a diagnosis before 2013. Second, the Claimant declared herself in late 2011 to be fit to attend an appeal against her suspension from the formation programme, and was judged by her GP and Inter Health (an occupational health provider) to be well enough to do so. Third, she was able, in March 2012, to produce a coherent and properly reasoned appeal against the decision of the Assessment Board and did not rely on her impaired health as an obstacle to the timely pursuit of the appeal. Fourth, she was able, as early as 30 June 2012, to write an email setting out a series of money claims.3 Fifth, she continued to be involved in some ‘ministry opportunities’ following the setbacks of early 2011 and June 2012. (There was, however, as Ms Thomas accepted in cross-examination, no evidence of such activity between June and December 2012.) Analysis and conclusions[29]Was it reasonably practicable (or reasonably feasible) for the Claimant to present the complaint of unfair dismissal and the money claims within the primary three-month period? In my judgment it was not. I am satisfied that the Claimant cannot reasonably be criticised for having been unaware of the applicable time limit. In the first place, it was by no means obvious that if any legal remedy was open to her, it would be accessible through proceedings in a forum designed for employment disputes. (Indeed, the Church contends strongly that this litigation is not about an employment relationship at all and, as an Employment Tribunal claim, is accordingly misconceived.) Secondly, given the Claimant’s mental state, I consider that it would be quite unfair to hold that she ought to have been aware of the applicable limitation period. That view may reasonably be taken in the case of someone unencumbered by ill-health contemplating a claim based on something recognisably amounting to a workplace dispute. Barring unusual circumstances, such a person can fairly be said to be put on enquiry as to his or her employment rights and a failure promptly to ascertain and enforce those rights may render him or her a casualty of the somewhat harsh ‘not reasonably practicable’ regime. But I am very clear that this case is different. It involves someone understandably unaware of the legal remedies which might be open to her and afflicted at all relevant times by a disabling mental state. I do not accept Dr Morgan’s contention, moderately and tactfully advanced, that her evidence was substantially exaggerated and overstated. The fact that, before the events of June 2012, she was able to pursue the appeal against the 2011 decision does not cause me to doubt her evidence about her state after 8 June 2012. Nor does the fact that, in the crucial period from 8 June to 2 October 2012, she wrote one email making claims for money said to be owing to her. Having placed the burden of proof firmly upon her, I am entirely persuaded that hers falls into the unusual category of case in which it was not reasonably practicable to meet the primary time limit.[30]Was the claim presented within such further period (7 September to 17 October) as was reasonable? In my judgment it was. I bear in mind that the focus of the legislation is upon the reasonableness of the period, not the explanation. Nonetheless, the explanation for the delay must feature in the assessment of 3 For reasons which do not matter for present purposes, the email was in fact sent to Westminster College, Cambridge. reasonableness. I have found that the Claimant was unaware of her rights or the time within which they could be enforced and cannot fairly be reproached for her ignorance. I have accepted that she found it inordinately difficult to piece together her story. I have little doubt that she found it very hard to bring herself to make fresh contact with Bindmans. And after contact was made, there was rapid progress (the time danger having become clear), enabling the claim to be presented within a fortnight. I find no culpable delay and I find that such delay as occurred was not unreasonable.[31]For the purposes of the claims under the 2010 Act, would it be just and equitable to substitute a longer period for the primary three-month period? In my judgment it plainly would. The factors which inform my decision under the 1996 Act apply, and are all the more compelling, here. I have taken account of the explanation for the delay, the extent of the delay, the (admitted) absence of any prejudice attributable to the delay and all the other circumstances of the case. I am satisfied to a high standard that it would be just and equitable to substitute for the primary period a longer period such that, applying that period, the claims under the 2010 Act are within time. Outcome and further conduct[32]For the reasons I have given, I hold that any claim for the purposes of which time began to run on 8 June 2012 is within the Tribunal’s jurisdiction. In so far as there is a dispute about whether, for the purposes of any claim under the 2010 Act, time ran from an earlier date, it will be for the Tribunal at the final hearing to decide(a) whether time did run from an earlier date and, if so, which date; and(b) depending on its adjudication on (a), whether the Tribunal has jurisdiction to consider that claim.[33]The question of a final hearing needs, however, to be put to one side, at least for the time being. As Employment Judge Hodgson has already directed, the next stage in this litigation must be to determine whether, for the purposes of any of her claims, the Claimant was ‘employed’ within the meaning of the applicable legislation. Preparation of a preliminary hearing to resolve that issue will be the subject of the next case management hearing which, with the agreement of the parties, I listed on a provisional basis for 10.00 a.m. on 20 April this year. Given my decision on the time issue, that date stands and is hereby confirmed.
Law
[34]As to the remaining criteria they are all fairly clearly met, save for the Claimant being bound to serve and comply with instructions of the Respondent – which is disputed. As to that, the Claimant’s submission was that the obligation to serve and comply with instructions can be seen most clearly by examination of the draft Learning Agreements and that the analysis of what actually happened is of some probative value in informing the analysis of what it was envisaged would happen.[35]The Respondent submitted that an apprentice enters into a contract to work which has an educational element to it. The Claimant is, it submitted, in the reverse situation: she entered into (if there was a contract at all) a contract to be educated, which had a “work element to it”. One must look, the Respondent submitted, at the dominant purpose of any contract from the perspective of an objective third party.[36]The Respondent was insistent that one must judge that dominant purpose at the moment of formation of the contract, in this case it said in November 2008; that was the time at which one had to determine the legal character of the agreement and it warned that one must be astute not to obscure the objective of the relationship tested in that way by consideration of what in fact happened thereafter.[37]The Respondent pointed to the fact that there was an academic component in the programme as it was outlined in November 2008, which was never formally removed; though without going into detail it is right to say that the documents made clear that had the EM1 proceeded to completion, it looked likely that it would be removed in the Claimant’s case.[38]The Respondent pointed to the fact that the payment of the grant and allowances was not for consideration of a service and was not intended and was not susceptible to Tax and National Insurance. The Respondent pointed to an analogy with a person undertaking a Post-Graduate Certificate of Education. I found the analogy not entirely helpful, largely due to my own ignorance of the detail of the arrangements involved in that; and as the Claimant pointed out in reply, if one were to derive any assistance from the analogy one might have to amend the factual circumstances of what I at least understand does happen.[39]As to the analogy or comparison with pupilage, the Respondent’s position was that even a fully funded pupil who was not required to or indeed perhaps permitted to work on their own account in their second six, would still not be working under a contract of apprenticeship. I asked what the difference between such a contract and a trainee solicitor contract would be and at the end, again, it was submitted it turned on whether or not there was that obligation on the pupil to serve and comply with instructions.[40]As to Section 83 of the Equality Act, the Respondent noted that the only specified activity was Sunday morning services and not all of those, but their fundamental submission was that the Claimant was not remunerated in consideration for that or any other work that she was supposed to or ended up doing to the benefit of the Clapton Park URC.[41]In the end, the Respondent very fairly expressed its position as being that one starts with the contract as made orally and evidenced in writing in November 2008 and one looked to see what can properly be identified as in the words of Dr Morgan the “out-working” of that initial contractual arrangement and disregard matters that cannot be so characterised. Broadly speaking I agree.[42]In reply when pressed on the point of how one should infer an obligation for the Claimant to serve and comply with instructions from the Respondent, the Claimant made the point that as well as the admitted obligation to do a certain number of Sunday services, one could also draw further inferences from the documents which were created (initially at least) before and at the time of the LMP beginning in September 2009, which set out not only the Claimant’s but also to some extent the Respondent’s understanding of what should happen. I have already quoted from one of the pages of the September 2009 document at page 214. I agree with the Claimant that it is possible to infer from that and other documents and the evidence in particular of Ms Thomas, that the out-working of the November 2008 contract was along the lines set out in that draft document in September 2009. I do not see the fact that in November 2008, knowing that a Learning Agreement had to be put in place in advance preferably of the placement beginning, the absence of more specific obligations set out in November 2008 as being inconsistent with the existence of a contract of apprenticeship.
Conclusions
[43]For the reasons given above – although not without some hesitation, but in the end fairly clearly in my own mind – I do find that there was a contract of apprenticeship. The Claimant did meet the various criteria (that I agree are the correct criteria, as I think the Respondent does) as set out in the Claimant’s submissions that I have quoted, including the most controversial of them on the facts of this case, the obligation to serve and comply with instructions to at least the necessary minimum extent. I do think that that was very much foreseen in November 2008 and what followed was the outworking of that foreseen programme.[44]In case I am wrong about the issue of apprenticeship, I now turn to the other relevant part of the definition in Section 83(2), whether there was a contract personally to perform work. I have actually found this question more difficult. The requirement is that the Claimant be employed under a contract of employment in the extended sense and in particular that she performed services for the Respondent in return for which she received remuneration. The Claimant did perform services for the Respondent; and she was as I have found obliged to some extent perform those services as part of the LMP; but that is not the consideration in return for which she was paid the grant and allowances, or at least not the consideration in return for which she primarily was paid the grant and allowances. Like most apprentices, including the ones described in Edmunds, that is not the reason why the apprentice master or chambers/pupil supervisor or solicitor’s firm or carpenter pays the apprentice. The benefit for the chambers or the firm or the carpenter are more generalised and more long term as described in Edmunds, I therefore find that the Claimant does not satisfy this part of the test in Section 83(2).
The issues
[1]The issues which the tribunal had to determine are set out in Annex A. The claimant’s claims arise out of the period spent by her as a Trainee Minister (Ordinand) of the respondent between September 2009 and June 2012, the termination of that training and subsequent events. The proceedings[2]There is a lengthy history to these proceedings, both leading up to the hearing, and then at the hearing itself. In order to keep the main part of this judgment to a more manageable length, the detail in relation to that is set out in Annex B. The claimant’s assumed disabilities[3]The List of Issues identifies the following disabilities the claimant is said to have: PTSD, severe reactive depression, chronic severe Insomnia, severe Fibromyalgia, early and sudden onset of Menopause, Gastritis, Ulcers, lateonset Epilepsy, deterioration of visual Acuity, severe Occlusion with breaking of teeth, and borderline diabetes. In this judgment, we determine in due course whether they are disabilities and if so from what dates. However, in considering the adjustments required for this hearing, we have assumed that the claimant had those disabilities during the hearing. The following adjustments were made as a result. Agreed Reasonable Adjustments[4]Before the hearing concluded on Tuesday 16 November, the following adjustments were considered and, except where indicated to the contrary below, were agreed.(1) If new documents were introduced, the Claimant was to be given additional time to read and absorb them.(2) Breaks would be built into the timetable, due in part to the composition of the tribunal having to be changed at the last minute as one of the members was no longer available. This meant that the tribunal would not be sitting on the afternoon of 24 November, nor on 25 November, or 9, 10 and 13 December. Further flexibility was also built into the witness timetable - see below.(3) During cross examination, the claimant was allowed to make notes of the questions asked of her during cross examination and the document she was referred to, if any. A file with clean sheets of paper were used for this purpose which the tribunal could see had not been written on.(4) The claimant asked for at least a day to prepare for her own reexamination. It was agreed that the claimant’s cross-examination would take place on Monday 22, Tuesday 23, Wednesday 24 (morning only) and the morning of Friday 26 November. It was agreed that the claimant’s re-examination would then take place on Monday 29 November, allowing her time over the weekend to prepare that. Considerable guidance was given to the claimant about what reexamination should and should not include.(5) The claimant was allowed to give further brief evidence in chief, after her own re-examination had been concluded.(6) The claimant was concerned that when she started cross-examining the witnesses for the respondent, she may ‘fall to pieces’. The claimant therefore requested that she be allowed to start cross-examining all witnesses after the lunch break, and then be allowed to continue to cross examine them all the following morning. The claimant was requesting this adjustment not only in relation to those witnesses whose evidence was likely to take a day, but also in relation to those witnesses whose evidence would only take about an hour. The tribunal agreed this adjustment in relation to those witnesses whose evidence was likely to take up to a day, but not in relation to the witnesses whose evidence would take less than that, because it was not practicable to have a number of witnesses returning the following morning, in order for further cross-examination to take place.(7) The tribunal requested that the draft witness timetable be changed by the respondent’s solicitors, to facilitate this, subject to the witnesses’ availability. The timetable was changed accordingly. For example the respondent was asked to arrange for Dr Bradbury to commence his evidence on the afternoon of 7 December, so his evidence could continue the next morning. The attendance of Revd Catherine Lewis was rearranged to enable that.(8) The claimant was told that if she provided her cross examination questions in writing, the tribunal would be willing to ask those on her behalf. This was reiterated throughout the proceedings. On Tuesday 7 December 2021 the claimant was again encouraged to provide her cross examination questions for the remaining witnesses who were timetabled to give evidence during the final week of the hearing, before the hearing started that week. Failing that, the tribunal indicated that if the claimant was unable to conduct her own cross examination, it would be minded to allow the remaining witnesses to be called; any examination in chief to take place; the panel would then ask their own questions of the witness, if any; and re-examination would then take place as usual. In the event, that was not necessary as the claimant remained able to ask the questions of witnesses herself at all times when the hearing took place.(9) The tribunal explained that the hearing each day would normally commence at 10am and continue until 1pm; then reconvene at 2pm and continue until 4pm to 4.30pm, with breaks mid-morning and midafternoon. The claimant did not request any change to this, although the tribunal stressed that at any stage the claimant was entitled to ask for more frequent breaks if required. In the event, adjustments were indeed made to the timetable. For example, on those days when the claimant was starting to tire in the afternoon, or suffering from miniseizures, the tribunal agreed to finish early and then commence the hearing earlier the next day. On 23 November the hearing concluded at 3.45 pm as the claimant was not able to return to the hearing room. On 2 December the tribunal adjourned at 2.30 pm to enable the claimant to call her GP (the tribunal had been concerned that she obtain advice about her seeing blood when she vomited. The tribunal was subsequently informed by the claimant that her GP had advised her this symptom was because of her ulcers). On 6 December we adjourned at 2.45 pm, recommencing at 9.30 am on 7 December, and concluding at 2.45 pm at the claimant’s request. The hearing then recommenced at 9.30 am on Wednesday 8 December.(10) On 30 November 2021 the claimant was not able to attend the tribunal hearing centre for health reasons. The claimant requested that she be given the opportunity to join the hearing via video link or telephone. Attempts were made to enable the claimant to join by video link but those attempts were not successful, presumably because of an inadequate internet connection. The claimant was however able to join the hearing by audio link. Although this led to a delay in the proceedings re-commencing that day, the claimant was able to continue with the cross-examination of Revd Thomas, and the crossexamination of Revd Furley-Smith in the afternoon. The claimant was allowed to continue to join the hearing by audio link for the rest of the hearing. [We note in passing that two of the respondent’s witnesses joined via video link with the leave of the tribunal. The members of the tribunal also joined remotely for parts of the remainder of the hearing, particularly as the Covid-Omicron variant became more widespread.](11) During the hearing, the claimant became flustered or upset a number of times. On each occasion the tribunal encouraged the claimant to take the time needed to recompose herself, and/or continue writing a note if that is what she felt she needed to do; to take her time in doing so; and let the tribunal know when she was ready to continue.(12) The tribunal continued to provide guidance to the claimant at the beginning and end of most days as to what the tribunal would be covering the following day and, as and when appropriate, subsequent days/weeks. This included a detailed explanation about the process of re-examination and the purpose of submissions.(13) The tribunal refrained as much as possible from intervening or interrupting the claimant when, for example, the points being made by her during re-examination were not re-examination points; or when during cross examination of the respondent’s witnesses, the claimant started making submissions/introducing her own evidence after the witness had answered the question. When the tribunal did intervene, it was continually stressed that no criticism was intended of the claimant. This adjustment was made for the claimant both as a litigant in person (LiP) as well as a person presenting with mental and physical disabilities.(14) On numerous occasions the tribunal re-phrased the claimant’s question, when either the claimant was struggling to put the question to a witness and/or the witness was struggling to understand the question. This was at all times subject to the claimant being entitled to tell the tribunal if the re-phrased question was not the question she intended to ask.(15) Dr Morgan QC agreed to provide his written submissions to the claimant by 9am on Friday 10 December. They were also filed with the tribunal that day, on the basis that the tribunal would not open or read them until the evidence had been concluded. The claimant was given until 9am on Thursday 16 December to file her own written submissions, if any. The claimant did not do so. As a result, the tribunal subsequently agreed that the claimant could file and serve any written submissions she wished to rely on by 4pm on 30 December 2021, with any response to those from the respondent to be filed and served by 4pm on 7 January 2022.(16) The claimant requested that the respondent’s witnesses should be asked to read all of her witness statements. The tribunal did not consider this was necessary and it was not agreed. It was for the respondent’s legal team to advise the witnesses appearing for the respondent which sections of the claimant’s witness statement it was necessary for them to read, prior to them being called as witnesses.(17) The claimant suggested that the hearing should be adjourned between the claimant completing her own re-examination on Monday 29 November and Wednesday 1 December, to allow her further time to prepare cross-examination questions. This was not agreed on the basis that there were twenty-one witnesses for the respondent, a number of days for the final hearing were already no longer available because of the unavailability of some of the members of the tribunal, and the loss of a further 1.5 days from the remaining 20.5 days was not practicable. The bulk of the witness evidence had been provided to the claimant in line with the amended orders, several weeks before the hearing commenced. Minor changes were made to those witness statements just before the hearing but most of the evidence remained the same.
The hearing
[5]The hearing took place over 20.5 days, within the original trial listing, during which evidence was heard from witnesses and submissions on liability were made. Five extra days were then arranged for the tribunal to deliberate and arrive at this decision. Judgment was reserved. Witnesses[6]The tribunal heard live evidence from the claimant; and considered the statements of Dr Joanne Stubley, Consultant Psychiatrist and Psychoanalyst; and Ms E Smith, Psychotherapist. We also considered the contents of the statements submitted by the claimant in relation to the time limit issue, although we did not find those relevant to the issues before us.[7]For the respondent, we heard from Revd Sue McCoan, a Minister of the respondent; Revd Susan Durber, Former Principal of Westminster College, Cambridge, between 2009 and 2013; Revd Samantha White, Principal of Westminster College from 2019; Rod Boucher, a member of Clapton Park URC during the relevant period; Revd Catherine Lewis Smith, Principal of Westminster College since September 2020; Revd Elizabeth Welch, a Minister for the respondent; Revd Janet Tollington, a Minister for the respondent and teacher at Westminster College between 2008 and 2012; Revd Anne Lewitt, an ordained Minister for the respondent; Revd Mark Robinson, an ordained Minister for the respondent; Neil McInnes, a member of Clapton Park United Reformed Church (URC) since 1996, an Elder of the Church and Trustee of the Church Funds Charity since September 2009; Revd Dr John Bradbury, a member of staff at Westminster College during the relevant period; Revd Julian Templeton, Minister of the Pond Square Chapel of the URC, Highgate, 1996-2016; Revd Fiona Thomas, Secretary for Education and Learning for the respondent; Revd John Proctor, a Teacher at Westminster College and Director of Studies; Revd Craig Bowman, a Minister for the respondent and Secretary of the Ministries Committee during the claimant’s formational training (the Assessment Board being a sub-committee of the Ministries Committee); Revd Neil Thorogood, Director of Pastoral Studies; Revd Matt Stone, a Minister of the respondent; Revd Melanie Smith, a Minister of the respondent; and Revd Nicola Furley-Smith, a Minister of the respondent and Secretary for Ministries of the United Reformed Church who services the General Assembly Ministries Committee. Statements were submitted from Aniema Aaron, member of Clapton Park URC since 1995; and Mary Fagan, a member of the Clapton Park URC from the late 1990s onwards and were considered although since they were not called as witnesses, little weight was attached to their evidence. The bundle[8]There was a trial bundle of 5807 pages. Issues with the bundle are referred to in Annex B. Nothing further need be said in this part of the judgment. Credibility and reliability – general comments[9]Whilst the members of this tribunal do not usually make general comments about the credibility and reliability of witnesses, we consider that in the unusual circumstances of this case, it is appropriate to do so.[10]During cross examination, the claimant failed to answer the questions put to her on numerous occasions. When contemporaneous documents were put to the claimant, the contents of which clearly contradicted the case that she was putting before the tribunal, the claimant refused to concede the point. Numerous examples of that are referred to in the findings of fact below.[11]The claimant’s conduct and approach to cross examination can be contrasted with the approach and conduct of the respondent’s witnesses who were willing to make concessions when appropriate and whose accounts corresponded to the record set out in contemporaneous documents. Further, the respondent’s witnesses readily conceded when they could not remember specific incidents due to the passage of time.[12]It is the respondent’s case that the claimant’s perception of what happened to her, and/or her recollection and interpretation of events, is at odds with what actually happened. The tribunal was provided with a specific example of that, on 22 November, when the claimant alleged that the Employment Judge had praised the respondent on the first day of the hearing, for the way that the evidence had been put together. That was not the case. The Judge had simply thanked the respondent for providing a further USB stick, together with a laptop, for use by the claimant during the hearing, in order for her to be able to access the bundle electronically. On that being pointed out, the claimant withdrew her remark. Nevertheless, the tribunal considers the incident to corroborate the general point being made by the respondent.[13]On another occasion, the claimant was asked about her allegation, set out in paragraph in 9e of the Amended Particulars of Claim, that she was not allowed to attend a week-long workshop at the beginning of her training. The Claimant argued that she was not claiming that she was not allowed to attend a week-long workshop which gathers all ordinands and supervisors in Cambridge once a year. The claimant was taken to paragraph 9e which says just that. The claimant then argued that this was not the right document. The claimant subsequently took back that remark. The claimant also asked a number of the comparators why they were giving evidence, even though they had been named by the claimant as comparators in further particulars provided by her.[14]Bearing in mind the above, this is a case where the tribunal considers it appropriate to make a general finding to the effect that we found most of the claimant’s evidence not to be credible or reliable. By contrast, we found the evidence of the respondent’s witnesses to be both credible and reliable.[15]In most of our fact-finding, the tribunal has been able to makes clear findings of fact on the particular matter in question by reference to the contemporaneous documentation. Where that is not available, for the above reasons, we have generally found for the respondent on the balance of probabilities, on any disputed factual issues.[16]It was a regular lament of the claimant throughout the hearing that those she met during her training did not try and discover ‘the real me’ because they approached her with preconceptions. It became increasingly clear to the members of the tribunal however, as more evidence was heard and considered, that the claimant was indeed judged on her actual behaviour, not on any preconceptions about her. The way the claimant behaves towards others is not how she believes she behaves. The claimant’s response has been to accuse others of ‘gaslighting’ her. We understand gaslighting to be a form of emotional abuse where the abuser misleads the target of their abuse, creating a false narrative and making them question their own judgments and reality. The sad reality of the situation however is that the claimant’s case is founded on a perception and understanding of events that is so often at variance to the perception and understanding of everyone else who we have heard evidence from. We have concluded that it is the claimant’s perception and understanding of event that is at variance with what actually happened, not that of the respondent’s witnesses.[17]We mean no criticism of the claimant by saying so. On the contrary, it appears to the tribunal to be desperately sad that so much of the last ten years has been spent by her pursuing a claim based on such misconceptions about what actually occurred during her period of training as an Ordinand. Fact findings[18]References in square brackets below are to the relevant page in the bundle, unless otherwise stated. The respondent church[19]The respondent (the URC) is a Christian Denominational Church, incorporated under an Act of Parliament. The main constitutional documents of the respondent are the Basis of Union and the Structure. The Basis of Union sets out the core beliefs of the respondent and the nature of its faith and order. The Structure provides details of its governance.[20]The churches within the URC makes decisions through the respondent’s councils. The main Councils are the Church Meeting and Elders Meeting of each local church; the Synod (made up of numerous churches within a geographical area); and the General Assembly of the respondent. Each council has its own particular functions within the structure. Each council is a separate body which consists of its members and are unincorporated associations. These councils represent the members of the respondent through their local church; the members of the wider geographical area within which a local church resides, through the Synod (which number thirteen); and finally, through the General Assembly which is the national body and ultimate decision-making council of the respondent.[21]The respondent is a congregational church, a tradition which emphasises the role of the local church. The role of the Church Meeting, in which all members are able to express their thinking and understanding about the church is key to this tradition.[22]Each local church is a separate legal entity. A minister is accountable first to the Elders meeting; second to the church; and thirdly, in terms of anything beyond the competence of the local church, the Synod Moderator (the respondent’s equivalent of a bishop). At the level of the local church, the Minister convenes the meeting of the Elders. However, if the Minister disagrees with the Elders’ Meeting decisions, he/she has no power to overrule the decision.[23]Those attending a church can express a willingness to be appointed as formal ‘members’ of the church. The existing members of the church decide whether or not to accept that person as a member. Meetings of members are known as Church Meetings. Church Meetings have overall responsibility for the life of the church. The respondent’s General Assembly cannot tell a local church what to do, where the decisions taken are those for the local church. Insofar as the activities of a local church are charitable, they are undertaken through an independent charity.[24]Church meetings are entitled to elect Elders of the local church. A person eligible to be nominated can be put forward as a potential elder, and the elders are then elected (or not) by a decision of the Church Meeting. Elders are ‘ordained’ by the respondent; although that is a different type of ordination, to ordination as Minister of the Word and Sacraments, with which this case is principally concerned. A call to Ministry[25]If a member of a local church wishes to discern a potential call to Ministry for the respondent, the local church refers the applicant to the regional Synod. If the Synod agrees, the candidate then attends an Assessment Conference made up of two parts. The first is the Assessment Board. The second is an interview with representatives of the Educational and Learning Committee of the respondent, during which the candidate’s qualifications and general knowledge about the respondent church are ascertained and discussed. If the Assessment Board decides that the candidate is an appropriate person for formational training, this is indicated to the candidate; together with a recommendation put forward by the Education and Learning Committee, indicating the anticipated formational training appropriate for that candidate.[26]Whilst undergoing formational training, candidates are known as ‘Ordinands’. The formational training is provided by independent educational establishments, known as Resource Centres for Learning (RCLs), which includes Westminster College. The respondent acts in effect as the sponsoring body that outsources the training of Ordinands to the RCLs.[27]The United Reformed Church uses three Resource Centres for Learning (RCLs) for the education and training of student ministers before ordination as a Minister of Word and Sacraments; Westminster College, Northern College and the Scottish Theologian College.[28]Following a preliminary hearing on 14 and 15 September 2017, EJ Segal QC determined that the claimant was, during her period of training as an Ordinand, in effect employed under a contract of apprenticeship; further, that the claimant was ‘in employment’ for the purposes of s.83(2) Equality Act 2010. The claimant maintains that the contractual terms of her training include matters set out in the Recommendation provided following the Assessment Conference, the ‘Training for Ministry’ document, the ‘Amber Light’ Policy and the ‘Living Ministry’ document. The claimant has sought to include for the first time, reference to other documents in her submissions which she says contain contractual rights. The claimant has not set out which parts of those documents are said to contain the contractual rights relied on. In any event, it has not been necessary to consider those other documents in order to determine the issues before us.[29]The recommendation made following the Assessment Conference is not set in stone. It may develop or change over time, as the training progresses. Any changes are normally made through a process of dialogue between the RCL and the Ordinand. Should proposed changes involve further expenditure for the respondent, the proposal will be reported to the Secretary for Education and Learning of the respondent, for consideration and approval by the Assessment Board.[30]The recommendation in relation to both the practical training and the academic study elements of the Ordinand’s training is based on the assessment of what the candidate might need support on during their training and study. This in turn is based on the abilities the candidate is seen to have already, and those they may need to develop in order to be successful in their training and go on to become a Minister at the conclusion of it. Part of the purpose of the training is to provide a greater knowledge of and experience of the URC. The training enables the RCL and the respondent to assess the suitability of the Ordinand for Ministry. The skills and abilities required by a Minister include self-awareness, the ability to listen to others, and communication skills.[31]In common with most employment relationships, whilst the respondent and/or the College would seek to agree any changes/proposed changes to the recommendation with the Ordinand, both the respondent and/or the college had a right to impose their decision on the Ordinand if agreement could not be reached. We were provided with a specific example by Revd McCoan, who did not want to study the further undergraduate degree she was put forward for. She challenged that. Her challenge was rejected. Having completed her studies, Revd McCoan understood why that recommendation had been made and was the right one for her.[32]Statistics provided by the respondent, which were not challenged by the claimant, show a broad range of people applying for and accepted by the respondent for Ministry, in terms of age, nationality, overseas status, marital status and race. Westminster College[33]Westminster College (the College) is one of three RCLs used by the respondent. It is a separate legal entity to the respondent. The College is an independent educational establishment and a full member of the Cambridge Theological Federation. Through that Federation, it is registered to provide teaching on behalf of a number of universities such as Durham, Cambridge and Anglia Ruskin. It has no power to award academic qualifications itself. Ordinands gain academic qualifications, if at all, through one of the universities the College works with. Further, the training provided by the RCL on behalf of the respondent does not lead to a qualification in itself.[34]Whilst undertaking the academic element of the formational training (if any), the Ordinand usually lives in or near to the College. Depending on the agreed programme of academic study, an academic qualification may well be obtained during or even sometime after the formational training itself. It is for the respondent to decide whether an Ordinand subsequently becomes an ordained Minister following the training provided, not the College.[35]The Principal and teaching staff of Westminster College are appointed by the respondent’s General Assembly. Many of the teaching staff are also ordained Ministers of the URC. Once appointed, staff come under the management of the College. Should an allegation of misconduct be made against a member of the teaching staff, that will be addressed in accordance with College procedures, independently of the respondent.[36]The College is responsible for the welfare of its students and Ordinands. This includes health and safety and safeguarding. Pastoral care is however provided by the Ordinand’s regional Synod.[37]Teaching staff are members of a body called Senatus. Senatus considers proposals for academic study and any proposed changes or other issues arising during that study. Decisions of Senatus do not carry weight independently but must be carefully considered and discussed by the Board of Studies (or Studies Board), before a decision is taken. Contrary to the assertion of the claimant to the contrary, we find that the Studies Board does not simply rubberstamp decisions of Senatus. We accept as more reliable the evidence of the respondent’s witnesses that Senatus reports to and is accountable to the Studies Board, which makes independent decisions based on their careful consideration of the matters before them. The Studies Board also exercises oversight in connection with applications by ordinands to attend placements during their training and/or external courses including the costs associated with them. The Living Ministry Programme – the LMP[38]The College arranges the Living Ministry Programme (the LMP) which forms the major part of the Ordinand’s practical training. The Ordinand usually lives near to their placement and so far as possible, the LMP is arranged in a place which enables the Ordinand to continue to live at their usual residence. Once the location of a placement has been agreed in principle, a Learning Agreement is entered into between the Ordinand and the Supervising Minister, who is a Minister of the respondent.[39]The arrangement is subject to regular supervision and assessment by both the Supervising Minister and the Director of Pastoral Studies at Westminster, together with the Ordinand. The Supervising Minister should also arrange for congregational companions to provide informal support to the Ordinand. If an LMP has been recommended as part of the training, it must be successfully completed before the Ordinand is able to progress to the next stage of becoming an ordained Minister.[40]If the college comes to the view that the Ordinand should not continue at the College, the College is able to terminate the Ordinand’s student registration. In such a situation, the individual is referred back to the sponsoring body - the respondent - for consideration through its Assessment Board. It is for the Assessment Board to determine whether the Ordinand might be better suited to study at a different RCL; or whether they are unsuitable for Ministry, and terminate the Ordinand’s training.[41]The RCL sends a progress report to the Assessment Board once a year, to enable the Ordinand’s progress to be monitored by the respondent.[42]The respondent pays the course fees for the Ordinand. In addition, it pays them a basic grant, plus (if applicable) a Two Homes Allowance, and/or a Rent Allowance. During her time as an Ordinand, the claimant received all three, when eligible.[43]During the formational training period, the Synod should keep in touch with the Ordinand, providing pastoral support and maintaining a connection with the Synod. It is a matter for each Synod to decide how such support will be provided. With some it is provided on a regular basis, with others it is more sporadic. The Settlement Process, Leaving Certificate and Ordination[44]If the training progresses well, confirmation of which is provided by the penultimate report received by the Assessment Board, the Ordinand starts the ‘settlement process’. This is the process under which the Ordinand is introduced to local churches of the respondent which have vacancies for Ministers. Should the local church and the Ordinand come to the view that they are suited to each other, the local church is able to issue a ‘call’ to the Ordinand. Before that can happen, the Ordinand has to finish and pass their course. If so, a Leaving Certificate is issued by the College, together with a final year report which is assessed by the Assessment Board.[45]The Assessment Board then discerns whether or not the Ordinand is suitable for Ministry. If so, the Synod decides whether to concur with the call. It is only if the Synod concurs, that the Ordinand is able to accept the call, if any, from the local church. If so, the Ordinand is subsequently ordained and inducted into the local church.[46]Neither commencement on a course of training as an ordinand, nor the issue of a Leaving Certificate, inevitably leads to ordination as a Minister of the URC. Further, a Leaving Certificate may be issued, but no call is subsequently made by a local church. There is a provisionality and conditionality about every element of the Ordinand’s training process.[47]This was acknowledged by the claimant. In her application form for training, in answer to the question “Do you understand that there can be no guarantee that you will be called to serve as a minister of the URC when you have completed your training?”, the claimant answered: “Yes”.[48]We accept the evidence of Revd Furley Smith of an example where an individual had received a Leaving Certificate, but withdrew their application, before they were dismissed by the Assessment Board. Despite obtaining the Leaving Certificate, the Ordinand would not have been eligible to be ordained.[49]We further accept the evidence of Revd Bowman that on another occasion, a Leaving Certificate was issued for a British male ordinand, but the Assessment Board determined that the LMP had not been sufficiently robust enough and decided that the Ordinand should complete a further placement.[50]We also accept the evidence of Revd Thorogood that he was aware of about four to five Ordinands who, between the period 2005 to 2020, began their training but did not complete it. In one or two cases this was because of legal issues (in one, serious criminal legal matters which resulted in a conviction); in one or two cases, they did not complete their academic training; and in the other one or two cases, issues arose during their placement about their suitability to be a minister, for example because of their lack of ability to work in a collaborative way with other people. The claimant’s early involvement with the respondent[51]The claimant is a German national. She is celibate.[52]The claimant commenced theology studies in 1984, and completed her studies in Heidelberg in 1994. She also studied an MA at the University of Kent between 1994 and 1997.[53]The claimant started attending the respondent church in 2001, at Ponds Square Chapel, Highgate, London. Application for Ministry[54]In about February 2008, the claimant indicated to her local church that she wanted to explore the potential for ordained Ministry. On 24 February 2008, the Highgate URC Church Council endorsed the claimant as a potential candidate to undergo training. The purpose of the recommendation for training was to enable consideration to be given to the claimant’s suitability for Ministry following appropriate training.[55]On her own account, the claimant had substantial ecumenical experience, in addition to her substantial academic experience. For example, her application for Ministry stated: I am not doing a lot at the moment. I am taking on average two Sunday services a month mostly in the URC, but also in Germany and France. The Taize service is a service in London takes place weekly at the Methodist Church King's Cross. I am part of it and create an average 1 in 4 of the services full. Once a month we create a Bible sharing.… From the age of 14-20 I was leading the children's service at our church nearly every Sunday. [sic][56]In a reference provided at the time, Revd Julian Templeton, who was at the time the Minister of the Ponds Square Chapel, stated the following, based on his experience of the claimant over the preceding seven years: By her own account, her family life was dysfunctional. This, I believe, has resulted in residual insecurity. This insecurity has been channelled into her relationship with God and with the Church, and in both she has evidently found much security and fulfilment. However, the insecurity surfaces in the need for reassurance and affirmation from others, and in the occasional patronising of others who she perceives as rivals or a threat. Having mentioned these two weaknesses, I don't believe that they constitute a barrier to ordination so long as there is a greater selfawareness on Felicitas' part of the need to improve her communication and to ameliorate the effects of insecurity.[57]On the claimant’s case, this document is central because she argues that it adversely influenced others against her, and in particular, Revd Thorogood. We find that the claimant’s central reliance on this document is sadly misplaced. We accept the evidence of Revd Thorogood that this document had no influence on any of the key decisions taken in relation to the claimant. The Assessment Conference[58]The claimant was interviewed by the Synod on 8 July 2008. A referral was subsequently made to the Ministries Assessment Board. The claimant was interviewed between 21-23 November 2008 at the National Assessment Conference.[59]During the Assessment Conference, candidates undertook the Myers-Briggs test, a test based on 16 different personality types. The test was conducted by a HR specialist who is also a psychologist. The results of the test were then discussed with the applicants on a one-to-one basis. The applicants were asked to consider whether they considered that the personality type suggested by the test was accurate. The test was not intended to be a formal psychological assessment; nor was it forwarded to or seen by Westminster College staff.[60]Following the Assessment Conference, the Education and Learning Board recommended that the claimant complete a two year programme of training as follows: 1. Completion of the United Reformed Church Introductory Course including the weekend programme of study entitled 'Our Church - a course on the ethos and history of the United Reformed Church for those serving in it'. This is scheduled to take place from the 3rd to the 5th of July 2009 at Westminster College, Cambridge. 2. 2 years of full-time study towards the MA in Pastoral Theology at Westminster College, alongside an internship year and other significant placements. The Panel recognised that Felicitas already has more than the necessary academic requirements for ministry, and was heartened by her obvious passion for learning and desire to go deeper into her chosen subjects. The reason for recommending the MA is therefore less to do with gaining the qualification, and much more about providing Felicitas with a solid grounding and reflection on the practices of the United Reformed Church from within a learning community. [649][61]The MA in Pastoral Theology is run by Anglia Ruskin University, which has a campus in Cambridge.[62]The Assessment Board also recommended the claimant for training for Ministry. [916] Both documents were sent to the claimant on 24 November 2008. The claimant was also sent two booklets – ‘Becoming a Minister’ [927] and ‘Becoming a Minister – Financing Your Training’.[63]The claimant made an application for financial support on 24 November 2008. The claimant subsequently received a grant in the period 2009 to 2012, made up of a basic grant, two homes allowance and rent allowance, as applicable - £11,236.65 in 2009/10; £11,988.32 in 2010/11; and £8,195.90 in 2011/12. Meeting with Revds Proctor and Bradbury – mid-January 2009[64]In mid-January 2009 the claimant met with Revd John Proctor and Revd Dr John Bradbury to discuss how her training programme would unfold. Following the meeting, it was suggested that the claimant do the internship year first, so that as they got to know her, they could help her to choose the appropriate university work for the following year – assuming further academic study was required at all. Following the meeting, Revd Proctor stated in an email to the claimant: We have suggested doing the lnternship first, because we are not yet sure what would be the best way of using another year of training beside the internship. It may be that, after a few months' internship, you will be keen to get ordained as soon as possible. If so, we can consult the Assembly's Assessment Board, and ask whether they would like us to reduce the period of your training from two years to one, so that you could go into ministry in 2010. But it may equally be that, as the internship progresses, you will want to do some Master’s or Doctor's level study from 2010 onwards. If that is so, we shall gladly speak with you about how to achieve and arrange that: taught Master's, or Master's by research, or PhD; fulltime, or part-time alongside the early years of ordained ministry, or a combination of these. None of these is a college decision alone. But there are many possibilities and the church will want us to speak with you about these.[65]In putting forward that suggestion, Revd Proctor took into account the claimant’s decade in University academic work. There was also a clear indication in the claimant’s application papers that she was unusually broadly experienced in church life and unusually deeply educated. The claimant had been involved in a variety of Christian service in wide-ranging places and as far as was apparent, was somebody who could both fit into and contribute well in a wide range of church contexts. Further, Revd Proctor considered that it would have been difficult to work out at the initial stage what was best to go forward with in terms of further learning on the basis of what had already been done. Doing the Living Ministry Placement (LMP) first enabled the College to get to know the claimant better and vice versa, and through dialogue consider the best way forward academically. We accept the evidence of Revd Proctor that he kept the possibility of the claimant doing a PhD or MPhil firmly in mind throughout the claimant’s training.[66]The claimant replied on 21 January 2009 to say: I wouldn't mind at all to go ahead with the placement/internship and to take anything else the future could bring from there. I thought already two weeks ago that your idea and the reasoning for it were very good. [3617][67]Whilst it was unusual for a candidate to be asked to complete the LMP first, it was not unique. We accept the example given by Revd Proctor that prior to the claimant commencing her training, an ordinand from Germany who had completed their theological degree in Germany, undertook a one-year LMP without any subsequent academic training. Revd Bradbury recalled the same example. Revd Bradbury also recalled another example, which we accept, of an ordinand who already had a theological degree, and just undertook a oneyear programme.[68]The claimant told us that she formally objected to doing the LMP first. We reject that evidence which is at odds with the written record of her email of 21 January 2009. It is also at odds with the contents of an email dated 30 January 2009, from Revd Thorogood to Revds Durber, Bradbury and Proctor which states: I have had, this afternoon, a good discussion with Felicitas who now seems more comfortable with the internship. [999] Proposal of Clapton Park URC for the LMP[69]Further, we accept the evidence of Revd Proctor that it was not many weeks after this interview that a placement at Clapton Park URC was suggested by Westminster College as a potential placement. Clapton Park URC is close to the claimant’s home address in London. The claimant lost no time in going to Clapton Park and beginning to build up relationships and plans for the placement. The claimant attended a Sunday service and introduced herself as a potential LMP student to Revd Welch. This was before Revd Thorogood had had the opportunity to confirm that the College wished to make such an arrangement and the supervision arrangements had been finally agreed with Revd Welch.[70]Yet further, the claimant submitted a proposal for her assessed service (which forms part of the assessment carried out during the LMP) in an email to Revd Thorogood sent on 4 September 2009 [1006]. The suggested date was 17 January 2010. All of the above actions are inconsistent with the claimant objecting to the LMP year being first.[71]The suggestion that the claimant carry out the internship first was not referred back to the Assessment Board by the College because it was not seen as a major change to the programme, merely a decision as to the order in which the two elements of the training would take place. As noted above, the claimant in any event had indicated her agreement to this.[72]Prior to the placement commencing, the claimant was provided with a copy of the Westminster College Handbook and Revd Thorogood discussed that with the claimant early on in the placement. The claimant was provided with a proposed Learning Agreement by Westminster College on 4 September 2009 [1302]. The learning agreement suggested 2 hours supervision every other week. Student status[73]During her internship, the claimant was a student of Westminster College. The claimant was on the roll of the college from September 2009. Whilst on placement, Ordinands visited Cambridge once a week during term-time to reflect with other Ordinands on their practical church work. The claimant did so. Supervision on the LMP[74]The claimant’s supervisor was Revd Elizabeth Welch, who had been appointed as the Minister at Clapton Park a year earlier. Revd Welch was brought up in apartheid South Africa, in a family who were opposed to the apartheid regime. Revd Welch left South Africa to study at a university elsewhere, because she did not wish to study in a South African university which at that time only allowed people of a white racial background to study.[75]Since Revd Welch worked part-time, it was agreed that supervision sessions with the claimant would take place on a fortnightly basis. The intention was that the claimant work on Sundays, Mondays, Tuesdays and Wednesdays for the main part of her placement, working on average eight hours a day (less on a Sunday). That was a total of 32 hours or less. The intention was that the claimant could spend Thursdays (and if she wanted, Fridays) at Westminster College, with Saturday being her day off. LMP duties and working hours[76]The claimant’s LMP duties included helping out at services (which included involvement in preaching and leading worship on Sunday mornings), and assisting with a number of the more informal services the church held on Sunday evenings and during the week. The claimant also helped with pastoral care, community engagement, attending elders and church meetings, other meetings as agreed, and some administrative tasks.[77]The reality was that the claimant worked longer hours than intended. Revd Welch was not however aware of this and we are satisfied that if she had been aware, she would have intervened. It was not Revd Welch’s expectation that the claimant work long hours. To the contrary, Revd Welch was attentive to her own work-life balance well and expected the claimant to do the same.[78]The claimant also complains that she had to cancel all but one of her days’ holiday. To the extent that she did so, we find that this was because of time management issues, rather than because Revd Welch or Westminster College forced the claimant to do so or expected her to do so. There is no independent evidence that the claimant had been prevented taking leave or had her days off cancelled. There is evidence to the contrary in emails dated 14 November 2010, in which the claimant had asked Revd Thorogood if she could be excused from attending the intensive workshops in January 2011 [3037]. His response was that: ‘the need for holiday outweighs the intensives’. To the extent that the claimant felt she was not allowed to take holiday, we find that this was due to her misunderstanding what was said to her and/or what was expected of her. Dissatisfaction with the LMP[79]The claimant was unhappy with various aspects of her placement from an early stage. The claimant had been raising some of those issues in the weekly meetings on Thursdays with fellow Ordinands at Westminster College. Revd Thorogood asked the claimant to write the matters down, and send them in an email to him, since he felt that too much time in the meetings was being spent on discussing the claimant’s issues with her placement. That did not amount to an instruction to the claimant not to discuss the matters with any of the other Ordinands, or other members of staff.[80]In about mid-October 2009, the claimant sent an email to Revd Thorogood about her perceived issues about the LMP at Clapton Park. [1010]. This stated: I don't think that a lot of her critic of me, or her cutting me short or her not wanting who I am is personal. In any of the many meetings and committee group situations too she tries to control their content. In these settings she hardly says anything, but only what she wants to be done is put forward to a vote or gets into the minutes, or is picked up there after. The same control happens in the supervision. The only difference is that here she can also speak. [sic][81]Revd Thorogood considered the list of the claimant’s concerns and made some suggestions as to how she should raise them with the Revd Welch. It is not unusual for the first few months of an Ordinand’s placement to give rise to difficulties. In the usual course of events, such difficulties settled down after that initial bedding in period. Revd Thorogood expected that would be the case here too. He therefore took a relatively hands-off approach at this stage.[82]Revd Welch experienced difficulties with the claimant. For example, at the beginning of supervision sessions the claimant would spend an hour talking. Revd Welch would listen carefully and attentively. That careful and attentive listening was not then reciprocated by the claimant. Revd Welch tried to encourage to the claimant the importance of relationality and dialogue. ‘Wrong chair’ incident[83]On 25 October 2009 the Claimant had tried to summon the Elders of the Clapton Park church to pray in the vestry. That was not the area in which the Elders would normally sit. The claimant had not discussed this proposed change with Revd Welch prior to her implementing it. Revd Welch was at the time trying to get the service started, and was irritated by the claimant’s actions. As a result she snapped at the claimant, outside of the worship area. Revd Welch regretted that afterwards. We reject the claimant’s contention that Revd Welch told the claimant it was ‘because she was German’. On the basis of Revd Welch’s background and history, we consider it inherently improbable that she would have used such a term towards the claimant. November 2019 Case Study[84]As part of their discussions with other ordinands on Thursdays at the college, Ordinands would prepare case studies. A case study was prepared by the claimant and discussed on 19 November 2009 in the group meeting. Revd McCoan saw case studies as a helpful tool for Ordinands to explore what they needed to learn. This case study and the discussion surrounding it suggested to Revd McCoan that the claimant felt that she was doing a better job than the supervising minister and considered the report highly critical of the Minister. The panel agrees with that assessment of the case study. Revd McCoan was upset by the discussion about it at the College. She felt uncomfortable with how critical the claimant was about Revd Welch. She told us: ‘It was as if she was seeing the world from a different perspective from the rest of us’. We find this to be a useful example of how the claimant’s actions were negatively perceived by others but the claimant did not accept or understand that. It also demonstrates how the claimant has difficulty engaging in dialogue.[85]Revd Thomas describes in her witness statement [#58] the tendency of the claimant to take what people say and misinterpret it/take out of context. She says: A consistent pattern emerged of the claimant’s tendency toa. take comments from individual conversations out of context when reporting these in other conversations;b. exaggerate her own achievements and influence prior to entering EM1;c. appeal to external supporters whenever her views on what her EM1 should contain were not accepted after discussion. We accept Revd Thomas’ evidence to that effect. Interim LMP Report[86]During the LMP, an interim report is prepared by the supervisor, in conjunction with the trainee. An interim report was prepared by Revd Welch about the claimant’s LMP and is dated 16 December 2009. Revd Thorogood also commented. The report contains a number of positive comments about the claimant. It was not wholly negative. The report observed that the claimant and Revd Welch had a different understanding as to their respective roles of trainee and supervisor: I would be happy if we could arrive at a shared understanding of what supervision is about, but it feels like we are a distance away from this.[87]At point 3, Revd Thorogood noted [2332]: In the course of these discussions it has become clear, and Felicitas has acknowledged, that she has significant personal issues to deal with that this experience of supervision has touched powerfully upon, and we have openly talked about the need for professional therapeutic help and space in which major issues can be explored and, ultimately, need to be dealt with.[88]On 16 December 2009 a meeting took place between Revd Thorogood, the claimant and Revd Welch. The intention of the meeting was to rebuild trust between Revd Welch and the claimant. At that stage, both the claimant and Revd Welch wanted to make the placement work. During cross examination, the claimant was asked whether she considered that it was only necessary for Revd Welch to change, not her. The claimant confirmed that was her case.[89]In a document provided by Revd Thorogood to the claimant and to Revd Welch following that meeting, titled ‘Revising and Improving the Placement’ and dated 22 December 2019, Revd Thorogood observed (in a similar vein to the interim report referred to above): There is not a common mind on what supervision should be or how it should function and there is a degree of misunderstanding and mistrust which makes the supervision relationship unproductive, frustrating and fraught.[90]The document quoted from the guidance on Beginning the Supervision Relationship, in Section 6 of the LMP Handbook. Under the heading ‘Educating’ he noted the following: Felicitas needs to be able to embrace Elizabeth's experiences of URC ministry and Elizabeth needs to be able to open up the placement experience in the light of what Felicitas brings to the conversation and Elizabeth's understanding of the context and ministry. To some extent Felicitas has transferred to Westminster major reflective time. Westminster is not intended to be the main location for reflection. There needs to be deep and meaningful learning in supervision with Elizabeth so that Elizabeth can refer to this in reporting to Westminster. Currently Elizabeth cannot have the evidence Westminster is looking for.[91]Under the heading Modelling he noted: We agreed that agreement between Felicitas and Elizabeth is not the essential goal! Instead what we need is the sort of open conversation in which both can be heard and both can bring their gifts, without having to agree on everything. Ministry can look very different to different people. But there needs now to be a positive exchange of views and perspectives. Decision to end the Clapton Park LMP[92]The claimant alleges that on 5 January 2010 Revd Thorogood told her, when they were both queuing for coffee at Westminster College, that she was dismissed from her work in Hackney, her training has stopped and termination of her training was threatened. We reject the claimant’s evidence to that effect which is inconsistent with the substantial efforts made by Revds Thorogood and Proctor to find an alternative placement for the claimant, as set out below.[93]On 6 January 2010 Revd Welch sent an email to Revd Thorogood referring to the claimant’s ‘recent ill health’. That was a reference to a flu-type illness. In a follow up email on 7 January 2010 Revd Welch suggested an extra supervision session on the claimant’s return from holiday, to give three supervision sessions prior to the proposed assessed service. [1018][94]At a Senatus meeting on 8 January 2010, the difficulties with the claimant’s LMP were discussed [1019]. The record of the discussion states: Felicitas Grabe's working relationship with her intern supervisor had given rise to serious difficulties, and NRT's careful and considered suggestions about how to retrieve the placement had then led into a long, inconclusive correspondence. There was not yet any easy all-round agreement about how to go forward, and NRT raised the possibility of Felicitas moving to a different church. After discussion Senatus agreed to end the present LMP placement at Clapton and to seek a full nine-month placement elsewhere. It would be important for NRT to take a strong role in the drafting of a new Learning Agreement, so that important issues were addressed[95]Substantial efforts were subsequently made to find another placement for the claimant, as evidenced by an email from Revd Thorogood to Revd Proctor dated 13 January 2010 [1021]. This confirmed that there were about six real possibilities for alternative placements for the claimant. Revd Thorogood noted that he had avoided any placement too close to Clapton Park, to avoid discomfort for the claimant. The email suggested a potential start date of 1 March 2010. Revd Thorogood put a considerable amount of effort into exploring alternative placements. He attached a list setting out the name of the Minister, the location, and the travel time from the claimant’s home. [2544] Issues regarding the claimant’s mental health[96]The claimant met with Revd Thorogood on 16 January 2010 [3592]. In an email sent the following day she stated: Creating doubt and insecurity, far beyond there actual subject [sic], are those stories which touch upon the unpleasantness of my childhood but were not witnessed by others. These stories I know as truth, but I do not know if they are true. I know those stories contain history but I do not know if they are mirror images of the history.[97]The claimant talked about the possible use of hypnotherapy to try and explore these issues. The claimant was aware at this stage of the possibility of a further placement being organised.[98]On 21 January 2010 a letter was sent to Revds Thorogood and Proctor from the claimant which stated: … in the peace of last night, and in between sleeping soundly, it was easy to hand over Clapton Park. It was easy too to let go of any notion that 'I'd have to do' the next internship immediately. … I think we all agree that my future ministry and I would benefit from some additional work with professional psychological support. I am happy to be guided by you as to how long that process should take.[99]The claimant alleges that on 21 January 2010, at Westminster College, Revd Proctor said to her words to the effect of: Your (personality) problems are too heavy for the URC to deal with, but it is amazing how far you have come considering where you have come from. This was denied by Revd Proctor. We accept his denial. On the balance of probabilities, we find that this is another example of the claimant misinterpreting or mishearing what was actually said to her. Board of Studies Meeting - 28 January 2010[100]A meeting of the Board of Studies took place on 28 January 2010. The Minutes record [1894]: The Board spent a considerable amount of time discussing Felicitas' placement and agreed that for a number of reasons it had not been successful. The Board resolved, on the motion of Senatus, that she should not return to this placement. She will need to undertake another LMP placement in 2010-11 but may need some therapeutic help before then. If she is to take a Cambridge degree, this should follow a successful LMP placement, rather than precede it.[101]The Board of Studies produced a report on 29 January 2010 for discussion with the claimant which noted: The Board of Studies agreed … There are bigger issues at stake here than the placement. Felicitas needs to have space and the right input and support to help her engage with some very complex and deep issues that have been influencing some of her responses. It has become clear, and she has acknowledged, that she has significant personal issues to deal with that her recent experience of supervision has touched powerfully upon. She has talked openly with college teachers about the need for professional therapeutic help and for space in which major issues can be explored and, ultimately, be dealt with. This must be the priority, ahead of anything that the college can arrange for Felicitas.[102]Paragraph 2 states: Felicitas then needs to complete a LMP placement successfully, and we believe this depends on the Clapton Park placement ending now, and an opportunity being given for a fresh start in the autumn.[103]The report confirmed that a new placement would start in September 2010 and run until June 2011, with a full-time supervisor. The intention was that further academic work could then commence in 2011/12.[104]The final paragraph records: This afternoon's conversation is first for information - to let Felicitas know the above. Felicitas certainly has the right to comment on these points, but we should also try not to return to ground we have covered at length in earlier conversations. The main constructive emphasis in our conversation today might be around paragraph 1 above, and how this important healing work can be carried forward. Meeting to discuss the Board of Studies Report[105]A meeting took place between the claimant, Revd Proctor, and Revd Thorogood on 29 January 2010 to discus the report [1022/2335-6]. Revd M Smith (who was at the time a fellow Ordinand and went by the name Ms Frew) attended that meeting with the claimant as an impartial friend. We accept Revd Smith’s recollection that (contrary to the claimant’s assertion to the contrary) the meeting involved a balanced discussion and expression of views and there was nothing untoward in the way that the meeting was conducted.[106]A note of the meeting was prepared and sent to the claimant and Revd Smith (Ms Frew). The notes record that the claimant was told that her candidacy for Ministry was being affirmed and that it was recognised: that the claimant had rich gifts, and everyone at the college eagerly hoped to see these used in the ordained ministry of the URC. The entire intent of the Board and of the Senatus was positive, to enable Felicitas to enter well into ordained ministry of the URC.[107]The note also records that the decision does not mention fault. Further, that: Felicitas, in the Board's view, needs to deal with some acknowledged personal issues, before she takes her ministerial training further, either in intensive placement work or in advanced study. Without skilful professional advice, none of us In Westminster (even Felicitas herself) will really know how serious these personal issues are.[108]Revd M Smith confirmed that the notes were a fair summary of the discussion in an email sent on 1 February 2010, subject to two clarifications [3533]. The email confirmed: Felicitas accepted the decision that professional psychiatric advice would be sought. However, she shared a past experience which made her reluctant to pursue this type of help as she doubted it would be effective. At no point did the claimant respond to any of these emails to say that what was written did not reflect the discussion that had taken place about her mental health.[109]The claimant alleges that she was accused of having a personality disorder by Westminster College staff. Those words do not appear in any of the documents we were taken to during the hearing to describe the claimant’s mental health issues. The tribunal accepts the evidence of Westminster College staff that whilst inevitably there was speculation and discussion about what could be causing the claimant to encounter the obvious difficulties in developing and maintaining relationships with the teaching staff and other Ordinands, they recognised that they were not qualified to make any formal diagnosis about the claimant’s mental health and nor did they attempt to do so. Appeal against termination of placement[110]Despite agreement having apparently been reached with the claimant about the termination of the Clapton Park LMP and the implementation of a new placement in September 2010, following a period of psychiatric/psychological counselling/support, the claimant lodged an appeal against the termination of the Clapton Park placement on 8 February 2010 [2045]. The appeal was amended on 7 March 2010. The appeal notes [1888]: Please note that I do not suspect malice….. I hope that the appeal panel to the Governors will be very positive and decisive already now concerning point 5 underneath on the last page of my original appeal. This would help me not to have to worry about future decision-making procedures of the college concerning me.[111]The reference to Point 5 is a reference to a further year being agreed for academic study (from the original 2 years following the 2008 Assessment Conference), which for the claimant would involve study for an MPhil/PhD [see 1896 and 1910]: Such a way forward in 2011/12 would depend on the URC supporting a third year of training, but we think this is likely. Any study beyond that year would not at all be part of basic ordination training, and would require careful and separate negotiation, if the time comes, with the URC or other funding bodies. Referral for psychological assessment[112]On 16 February 2010, the claimant emailed Revd Durber, agreeing to a psychological assessment. In her reply, Revd Durber confirmed that she would be happy to arrange that.[113]We accept the evidence of Revd Durber that there was considerable discussion about the nature of the psychological help that may be given to the claimant. The College wanted the claimant to have the kind of help that would assist her. Revd Durber was anxious that when the claimant spoke to a psychologist, the claimant felt able to open up, to ensure that the kind of help recommended would be what was best for the claimant, not what was best for the College. A report was not therefore requested.[114]The claimant subsequently met with a psychoanalyst Jean Thompson. The College paid the cost of the consultation. The claimant’s recollection as to what Ms Thompson told her are set out below. No report was subsequently provided to the College. Appeal hearing and outcome – 25/26 March 2010[115]The claimant’s appeal took place on 25 March 2010. The appeal was upheld [1886]. The decision was communicated to the claimant by Cecil White, the Clerk to the Board of Governors in a letter dated 26 March 2010. The decision was however subject to the following conditions: 1 It will be necessary for you to make up the three months lost from your placement, within the context of the College's normal Living Ministry programme before you may proceed to any further study. 2 You may return to your placement at Clapton Park, subject to the conditions laid down by the Revd Elizabeth Welch in her letter to Mr Thorogood of 7 February 2010, namely: a) the programme will not recommence until after Easter; b) Ms Welch and you will need to revisit the pattern and content of supervision to see how this would work, and agree a pattern, signed by both of you. In relation to Ms Welch' s other condition concerning the length of the remaining programme, the Panel agreed, for the reason stated in § I , that it should continue until 1 December 2010. Before the placement recommences it will be necessary for Mr Thorogood to receive a document, signed by both of you, accepting all these conditions. … 4 Thames North Synod will be requested to ensure that the officer responsible for overseeing the training of ordinands, or another member of the Committee concerned, attends meetings between you, Elizabeth and Mr Thorogood, as an observer. 5 If you or Ms Welch do not accept these conditions, or are unable to agree a pattern of supervision, the Panel agreed that you should do a second Living Ministry placement in 2010-11.[116]In a letter to Revd Durber, dated 27 March 2010, the Chair of the Appeal Panel, Professor David Thompson wrote [2315]: The first thing we want to say is that we entirely support the actions taken by Senatus and the Board of Studies at their meetings in January, and believe that they were entirely justified by the evidence available to them at that time. In the circumstances they acted wisely and well. We also want to pay tribute to the care taken in relation to this case by both Neil and John, which was clearly evident to us at the hearing but seemed not to be appreciated by Felicitas. We were particularly concerned by the way in which Felicitas relentlessly questioned Neil … We believe that Neil acted throughout December and January with the best interests of the candidate and the Church in view and that his care for the student and the Church is exonerated by the Panel. The Panel has accepted the main request of the Appeal, not because the previous decision was poor or wrong, but because, having considered the statements of intent and commitment about the relationship made by Felicitas and what has been reported as the attitude of the Supervisor, it is willing to accede to the wish of both to have another opportunity to make the placement work. To a very significant extent our decision was influenced by new evidence, which only became available to us at the hearing, and was not available to either Senatus or the Board of Studies in January. Reference to the psychological assessment[117]On the proposed psychological assessment, Professor Thompson said: I should perhaps mention that at the beginning of the hearing I explained why I had not pursued Felicitas's request for a psychological assessment at this stage. My reason was that I could not see, on the documentation submitted to the Panel, how the possession of a psychological report would assist us in deciding whether or not to continue the placement. However, Felicitas informed us that she had sought a report from someone recommended by Mr Bryant. Although, she said, such reports are not usually written down (contrary to my experience in the University), she proceeded to tell us what the psychologist had said. In brief, this was that she was charismatic and congregations would love her, that those in authority would fear her, that she was not in need of any psychological help, that her reactions to what she had been told were entirely legitimate and understandable, and that, if anything, she should have been more aggressive in her appeal and her criticisms of Neil than she was. This seemed to the Panel useful information for Senatus to have, even if we did not change our view on its relevance or necessity.[118]The claimant disagrees with this summary. However, in a letter to Ms Rominger sent on 15 April 2010, the claimant said the following about the assessment: I demanded an assessment. [Revd Thorogood] was asked to set one up, but failed to do so. I then persisted to have that assessment and had a couple of meetings with a psychologist of the college's choice before my appeal hearing. I also gave that psychologist all available documentation so that she could make up her mind as independently as possible. Of course I passed. The psychologist stated that I was a very charismatic person whom, both as a facilitator and as a leader any congregation would love to have as their minister, but that some of my Superiors sometimes would perhaps feel threatened. She also stated that I had been trapped between two authorities in a very messy situation. She also thought that I had worked on wounds of the past more than sufficiently. She wished that I would be more aggressive and less innocent, but I hope that I never will be that. [1882][119]A written report was not produced. The tribunal does not accept that what the claimant says Jean Thompson told her accurately reflects what she was in fact told. We find it inherently improbable that a therapist would use the words alleged. Nevertheless, this is what the claimant reported to Westminster College. Appeal panel recommendations[120]In a section headed ‘Recommendations of the Appeal Panel to Senatus, the Board of Governors and the student’ dated 27 March 2010, the panel reaffirmed, amongst other things:• the need for supervisors in the programme to be trained to ensure they understand what the programme is intended to achieve and what their particular role is in it;• that congregational companions should be regular members of the congregation where the student is based, and should receive appropriate training to ensure that they understood their responsibilities.• Changes to the grievance procedure were recommended, including specific reference to how complaints against a supervisor/members of Senatus were to be handled. Continuation of Clapton Park LMP[121]The claimant was concerned about the LMP continuing until December 2010 and continued to raise that in meetings with Revds Thorogood and Durber. The claimant was concerned that it interfered with her preference to start an MPhil at Cambridge, starting in the Autumn of 2010. Nevertheless, it was formally accepted, which is evidenced in a memo of a conversation between the claimant, Revd Durber and Revd Proctor on 22 April 2010 and a signed acceptance dated 21 April 2010. [1027] The claimant told us she felt she was being forced to accept the continuation of the LMP at Clapton Park. That may have been her perception. If so however, it did not reflect the reality of the situation. The claimant had appealed against the decision to terminate the placement, presumably because she was, on reflection, unhappy with that decision. The claimant was still given the option by the appeal panel to take up another placement, as evidenced by the appeal decision letter. The claimant declined that option. The claimant signed to accept the conditions, just before the first of the Cambridge Easter term classes were due to start.[122]We accept the evidence of Revd Durber and others that after the decision of the appeal panel to continue with the placement, College staff agreed that due to a breakdown of trust, and because they believed they would be quoted as saying things that they had not said, they would in future only meet with the claimant with another colleague present. A decision was also taken by Senatus that Revd Bradbury and Revd Thorogood would teach the college based part of the LMP jointly.[123]The claimant complains that from April 2010 onwards, she was prevented from attending Bible studies meetings at the College. We accept Revd Proctor’s evidence that those meetings took place at a time of the week when students doing the academic element of their training were on campus in Cambridge but LMP students were attending their placement. The claimant was treated no differently to other Ordinands in that regard.[124]A meeting regarding the resumption of the Clapton Park LMP placement took place on 28 April 2010 [2485]. Present were the claimant, Revd Tony Haws from Thames North Synod, Revd Welch and Revd Thorogood. A note of the meeting was agreed on 7 May 2010. The agreed version confirmed amongst other things: We agreed that it will be an essential part of reporting on progress to Westminster that the Interim and Final Reports for submission to the Board of Studies are written by Elizabeth and signed by both Elizabeth and Felicitas without extensive additional commentary being required…. We looked at the appeal panel' s findings and the clarification on timescale sent by the Clerk to the Westminster Governors (and to the panel). We agreed that this clearly required that the placement run during the Westminster term rather than over the vacation. Felicitas wondered if Elizabeth wished to contact the Westminster Governors with her to question this requirement. Elizabeth did not wish to. So we agreed the following timetable for the remainder of this placement.[125]A further meeting took place on 7 May 2010 between Revds Durber and Proctor, David Trafford, a member of Thames North, and the claimant. During the meeting, the claimant asked Senatus to help her in two ways. First, by recommending to the Board of Studies in June that she be approved to go forward to higher study, subject to the completion of a successful LMP. Second, to ask the Board to approve her doing some retreat training at Loyola Hall or St Beuno's (in Wales) in the first half of 2011.[126]The claimant was subsequently asked to put forward a proposal in relation to St Buenos. She did so. This recorded that with a contribution from the claimant towards the fees, the total cost of the course would be £4630, rather than the £6590 which was the full cost of the course.[127]On 27 May 2010 the claimant alleges that she was belittled for bringing strawberries in with chocolates to an LMP meeting. We reject the claimant’s evidence about this allegation. We find it is another example of the claimant mis-interpreting whatever was said to her.[128]An Interim Report was put forward by Revd Welch about the LMP on 2 June 2010 [2505]. This was based on the report of December 2009 and maintained the numerous positive comments in that report about the claimant. It also contained shared reflections from two supervision sessions and time spent together in May 2010. The report states [2511]: The last few months have been a struggle for Felicitas, as she faced an uncertain future. She has come back to Clapton Park with new enthusiasm and energy, and is now more attentive to the needs of the church as a community and the needs of individuals within the community. She has quickly settled back into life at CPURC and is making a distinctive contribution to the church.[129]In a report to the Board of Studies on the claimant’s appeal, dated 9 June 2010 it was noted at point 3 [2296]: 3 The Panel accepted the main request of the Appeal, not because the previous decision was poor or wrong, but because, having considered the statements of intent and commitment about the relationship made by Felicitas and what has been reported as the attitude of the Supervisor, it was willing to accede to the wish of both to have another opportunity to make the placement work.[130]At point 6, the decision to recommend continuation of the placement was described as ‘a high risk strategy’.[131]A meeting took place to consider the interim report on 14 June 2010 [2491]. The record of the meeting, attended by the claimant, Revd Welch, Revd Haws and Revd Thorogood confirmed that the claimant had enjoyed coming back to Clapton Park and felt her return was smooth. The note records: Felicitas said she loved supervision now and felt that she and Elizabeth were working well together.[132]Revd Welch is recorded as saying: Elizabeth felt things were going well since the restart of the placement.[133]Point 39 notes: Tony, in conclusion, saw the placement and this report now offering an opportunity to move forward. He saw the need for Felicitas to be sensitive to critique and felt that it was all to play for. Felicitas could have a major influence on how things developed in the placement and supervision from here on. Decision on St Buenos’ application[134]Revd Proctor wrote to the claimant on 24 June 2010 setting out the reasons for refusing the application to attend the retreat at St Beunos: You will see that the Board is asking you to be a member of the Westminster community during Lent and Easter Terms 2011, and to take your part in the learning and life of the college. There is material in the Cambridge Theological Federation teaching menu that should offer you some worthwhile learning, and I have suggestions to make about this. Time with your URC peers will help you much more, as preparation for URC ministry, than a period at St Beuno's of comparative detachment from the life of our denomination. The panel's reasoning, therefore, was:(i) the course you requested is more specialist than one expects of a student at this stage;(ii) some comment from the Living Ministry supervisor suggests that you could gain from putting down deeper and broader roots in the life of the URC, and this can be better done at Westminster than at a Catholic institution;(iii) work on taught Federation modules will give you a chance to refresh and develop your skills in academic writing, and this may give you a stronger platform for applying for graduate work in 2011-12. We did not discuss directly whether you should apply for such work, but we tried to take seriously your wish to do this, and to give you a chance to lay the ground for it. We do not expect that you will welcome this decision. But I hope you will realise that it has been taken with care, and that the intent is constructive. The college wants to commit itself to the course that will give you the best possible preparation for URC ministry.[135]The claimant alleges that she was forbidden to attend the UK visit of the Bishop of Rome in or about 2010. However, the respondent already had a representative for that visit. The claimant was not forbidden from attending. International ‘placements’[136]The claimant claims that she was prevented from attending the laying of the foundation for an orphanage/school/hospital for a Christian tribe in Bangladesh. The claimant did not tell us who it was who she alleges prevented her from attending, whether any attendance would have been during the LMP placement rather than holiday days, what the cost of her attendance would have been and what she was claiming in terms of the cost the attendance from the church. We have been referred to no documentation in which any formal request to attend was made. In those circumstances, we conclude that the claimant was not prevented from attending. On the balance of probabilities we find that to the extent this was the claimant’s perception as to what had occurred, she had misinterpreted or misunderstood any conversation she had had about it.[137]Similarly, the claimant claims that she was ridiculed for asking if she could travel to Haiti during the 2010 earthquake to offer help, following a text for such help from a bishop of a diocese near Port-au-Prince. No details are provided as to who it is said to have ridiculed the claimant. The allegation was not put by the claimant to any of the respondent’s witnesses during the crossexamination of them. We have note been referred to any documentation in which any formal request to attend was made. All we were referred to was an email to colleagues at Westminster College making a request for prayer for those affected [3586]. In those circumstances, we conclude that the claimant was not prevented from attending or ridiculed for asking. Further, on the balance of probabilities we find that to the extent this was the claimant’s perception as to what occurred, she had misinterpreted or misunderstood any conversation she had about it. Other miscellaneous allegations[138]The claimant alleges that she was told by Westminster College that her ten years of theological full-time studies in Germany were no foundation for further studies here in the UK. Again, we find that was a misinterpretation/misunderstanding as to what was said. As noted above, the claimant was to be allowed to undertake further academic study once the LMP was completed.[139]The claimant alleges that on 17 and 20 October 2010 she was criticised by Revd Welch for allowing a homeless person to kiss her cheek. The tribunal accepts that an issue was raised, but because Revd Welch was concerned about this as a safeguarding issue. 26 October 2010 meeting[140]A meeting took place on 26 October 2010 between Revd Robert Courtney, Revd Durber, the claimant and Revd Proctor, about the ongoing placement at Clapton Park [2835]. The note of the meeting records: 4) JP introduced a conversation about FG's programme. He re-iterated the decision of the Board of Studies (made in June) that FG should not undertake courses at St Beuno's, but instead engage fully in the Westminster community and also engage in an academic course based here. JP also reported to FG the decision of the Board made in September that, at this stage, entry to an MPhil programme should not be pursued, but rather that FG should, on completion of the LMP, enrol on the MA in Pastoral Studies.[141]In the same meeting it was also stated: JP began by saying that FG does not always manage situations well where relationships become difficult. She finds it hard when people do not agree with her or conflict with her. SD added that there are times when FG seems to polarise people; they are either 'with her' or 'against her'. Sometimes FG's tone, manner and approach in, for example, e-mail, is rather unyielding and stern. There remains a concern about how FG would handle relationships with Elders and church members that become difficult, as almost inevitably some relationships do. … SD also said that FG seems to have no sense of self-doubt, and there is no evidence of selfcritique. Can she ever admit that she might have been wrong or misjudged something? FG replied that she had stopped reflecting on her doubts with people at the college. SD said that it is we at the college who need to know that FG is ready for ministry and that these concerns do need to be addressed. FG said that she was willing to engage in more conversation about these concerns and that she was always ready to learn.[142]The claimant was cross-examined about these comments. It was the claimant’s evidence that the matters complained about were unfounded, and that the respondent made no real attempt to find out who she really was. We reject that interpretation of the events. We find that the comments made above were indeed well-founded, and a reflection of the claimant’s behaviour at that time.[143]Following the meeting, on 29 October 2010 Revd Durber emailed the claimant as follows [3101]: 1) It is clearly the Board's intention that you undertake modules of the MA in Pastoral Theology in the period January to May. 2) There is time yet to discuss what will follow that. It may be right for you to complete the MA, and if this is the way forward, then the Board's willingness to request an extra term's finance for your training will take you up to December 2011. 3) If, however, you want to press the case for the Cambridge MPhil in 2011 -12, there is time for the Board to consider this in January. 4) The Board will consider in January whether to forward your name to the Moderators, for you will by then have completed your LMP and you may be within a year of the end of your programme. Change in tutor – November 2010[144]A further meeting took place on 4 November 2010 between the claimant, and Revds Durber and Proctor [2827]. The claimant argues that she was ‘frogmarched’ into the office by them. We reject that description as unreliable. The claimant was offered email communication as an alternative to the meeting but agreed to meet to discuss the issue of a new tutor, without a representative present, on the basis that there would be a follow-up email after the meeting. The meeting was held at short notice, for the reason explained in the note of the meeting. This records: … JP and SD had previously told FG that they would tell her about the Senatus response to her request that she might have a new tutor, as soon as they could. This moment had come. The meeting had necessarily been arranged at very short notice. FG had been offered the option of email communication instead of meeting, and had agreed to meet as long as this would also be followed up by email. JP explained that Senatus has considered FG's request and decided to recommend that FG should be transferred to Janet Tollington for the purposes of tutorial care and support. Furthermore, this new tutorial relationship could now be conducted one-to-one (as tutorial relationships normally are) so that this new arrangement could be a new beginning in two ways. …. FG made some statements in which she suggested that JP had lacked good judgement on academic issues. She said that JP had failed to suggest opportunities to her, for international placements for example, which other students had received from their tutors.[145]It was rare for Westminster College to receive a request to change tutors. Nevertheless, it was considered and agreed in the claimant’s case. It was hoped that this would provide a fresh start. It did not.[146]On 9 November 2010, Revd Welch emailed Revd Thorogood as follows: Can I say, confidentially, that I'm feeling a little anxious about the final report for Felicitas - especially with regard to knowing how much weight will be given to it in assessing Felicitas' ongoing training/suitability for ministry. I still have some outstanding points of concern, but I wouldn't like to be the one, who in raising concerns, led her to not proceeding for ministry. She has much to offer, but it also feels like there are some points which need continued attention.[147]The claimant alleges that on 21 November 2010 she was criticised for being ‘gregarious’ by Mr Boucher, Revd Welch and Revd Bradbury. Again, we do not consider that allegation to be reliable. We accept as more reliable the evidence of Revd Welch that it was normal for members of the congregation to socialise after meetings and services and there is no reason why the claimant would be criticised for being outgoing. If anything was said, we consider that on the balance of probabilities, it was misinterpreted by the claimant. The claimant’s qualifications and experience as a preacher in Germany[148]The claimant was not an ordained minister in Germany. She was a ‘Predakantin’ between 2005 and 2011, after which such status expired. As a Predakantin, the claimant could take services, present her own sermons, marry people, conduct christenings and lead Holy Communion. The claimant’s Predakantin status did not however entitle her to apply for a certificate of eligibility to the respondent’s own roll of Ministers. Further, that status did not entitle the claimant to act as a Minister of the Word and Sacrament of the URC. Had that status given the claimant such an entitlement, it would not have been necessary for the claimant to apply for training as an Ordinand in the first place. Further, the claimant’s Predakantin status did not allow her to administer the Eucharist, without special dispensation from the respondent. Alleged remark by Mr Boucher[149]The claimant alleges that on 21 November 2010 Rod Boucher told her at her assessed service “that a nice girl like you should not need to bother with big things like ministry”. During cross examination Mr Boucher told us that the claimant heard what she heard, but as is often the case, what the claimant heard is not what was said. We accept his evidence and that assertion. We also take note of and accept his assertion that he supported the next Ordinand who attended Clapton Park who was also female. The assessed service – 22 November 2010[150]The claimant’s assessed service took place on 22 November 2010. Following the service, Revd Bradbury produced a report, based on the claimant’s assessed service and conversations with members of the congregation, the congregational companions and the claimant following worship. We accept as reliable and credible the evidence of Revd Bradbury that the companions /members of the congregation he spoke to after the assessed service were thoughtful and considered in their comments about the claimant and that there was general consensus about the concerns they raised. The report notes, in relation to comments from the congregational companions: It was felt that her reactions to comments about her worship that had just been made were typical - she only generally receives criticism by defending her actions and explaining herself, and it was felt there was very little general engagement with any issues they might raise with her. A number of the companions said that they had stopped making any constructive critical comments because they were not received well and they felt it did not get them anywhere.[151]The report continued: There was also grave concern expressed over the fact that Felicitas had asked for all the comment forms from Companions and members of the congregation to be collected so they could come to the college as well as the supervising minister's report. Felicitas has stated to members of the congregation that 'Elizabeth is going to write me a bad report', and thus she would need the responses themselves to forward to the college, not being happy to rely on Elizabeth's summaries thereof. Companions had asked Elizabeth about this, who was not aware of having said anything of the like to Felicitas. The report expressed concern that the claimant was not a team player.[152]We find that the report of Revd Bradbury accurately reflected what was reported to him and his own honest assessment of the claimant. We accept Revd Bradbury’s evidence that this was the first time such serious concerns had been reflected back to him following an assessed service. On the overwhelming majority of visits, the members of the congregation had come to love and cherish their Ordinand; and in Revd Bradbury’s experience they were more likely to be non-critical, than critical.[153]The claimant alleges that in December 2010, a comment was made to her by Revd Welch about the United Preaching Robe the claimant wore for services, along the lines of: ‘It must be a German thing’. We reject the claimant’s evidence, preferring the evidence of Revd Welch on this matter, for the general reasons previously given. Revd Welch’s evidence which we accept is that whilst it: is not unusual in the United Reformed tradition for ministers to wear a preaching robe, it is not normal for a student to do so. I would have mentioned this custom and practice to Ms Grabe as one of the areas of difference between the URC and her previous work in German churches, but not as a criticism (it was immaterial whether she continued in the practice).[154]Revd Welch is also alleged by the claimant to have made a comment to the claimant to the effect of: ‘In this country we do it differently’. Again, we prefer the evidence or Revd Welch that, in the light of her background, far from being biased against people of German nationality, her view of the German church and people is that they have a rich theology, background and understanding, from which Revd Welch has learned and benefited. There are numerous examples in paragraphs 50 to 59 of the witness statement of Revd Welch’s links with German churches, congregations and ministers, which we do not repeat here but which we accept. Finally, we accept Revd Welch’s assertion that it was the claimant who introduced the word German into the conversation, not her. Email regarding the taking of sick leave[155]The claimant alleges that she was told by Revd Tollington in December 2010 that it would be ‘taken in her favour’ if she did not speak with her doctors and seek sick leave [2965]. On 12 December 2010 the claimant wrote to Revd Tollington to ask: Would you be so kind to give once more the reasons for your decision that I shouldn't go to a GP and have sick leave.[156]Revd Tollington replied as follows on 14 December 2010 [2964]: Let me set the record straight at the outset: I did NOT decide that you should not go to a GP and have sick leave, nor did I say that you should 'cooperate in order to make the College's timetable possible'. … During our conversation on 30th November you told me that Julian Templeton had told you that you should go sick. In light of the fact that you had told me (twice) that you were OK, only tired, I said that it probably wasn't a good idea to go sick unless you were truly sick. I said that if you had something like chickenpox then of course you would have to go sick; but otherwise it was probably sensible to attend the planned meetings (the schedules of which you had agreed) if you were able to. We note that is yet another example of the claimant mis-interpreting /misunderstanding what was actually said to her. Final report into the Clapton Park LMP[157]The final report on the claimant’s Clapton Park LMP is dated 15 December 2010 [D1388]. In the report, the conclusion of Revd Welch was that the claimant: .. had made some progress towards ministry at this stage of this placement, but [there is] cause for concern in certain aspects.[158]One of the remaining causes of concern was the claimant’s ability to see matters from another’s perspective and her misinterpretation of what others were saying. Paragraph 9 notes: Felicitas has been a supportive colleague, sharing different concerns about the church and the people of this community. She feels more at ease when she is able to present her thinking on an area of work, than ln engaging in dialogue between different perspectives. One of the supervisions which she found more difficult revolved around me trying to present an alternative perspective to the one which Felicitas held. (This focussed on an apparently small issue - the date for her farewell service, but raised issues of self awareness and URC polity in terms of the view that she took of what the Elders and the church meeting has said.) She does not find it easy to receive or reflect on comments that are at variance with her way of thinking.[159]The claimant’s view of herself during the placement is set out in her selfevaluation in which it is stated [2438/2445]. All way through my placement I had created very good and in depth relationships with different individual users of our church building….. I am very grateful for what Elizabeth has written in her reports. Perhaps her thoughts are mirrored in that quite a lot of members, staff, ministers and ordinands say and write "I tick all the boxes", that I am a minister already.[160]On 1 December 2010 the claimant had emailed her tutor Revd Tollington to say [2996]: With regards to the MA the College wants me to do, I do understand what you said about not starting with an independent learning module. As that is so, may I then confirm that I would like to do both 'Worship' and 'Feminist Theology'. The 'Core Course' will always be available should you want me to continue with the MA thereafter.[161]On 10 January 2011 Revd Tollington emailed the claimant about the MA. Her email stated: Just to let you know that I have spoken with Alison about this matter today (my first day back after the vacation and the OT Society meetings in Durham last week). The documentation that I had sent to her at the end of term had been held up by the internal mail service but she has it now. I have also clarified with her Zoe's agreement that you can do the worship module. Details about the modules, and the timetable for their delivery can be found on the Federation website. If you want to know anything else please ask me as your Tutor, or John Bradbury as Acting DOS for Anglia awards.[162]We note that this indicates that the claimant appeared to accept that studying some modules on the MA was a sensible way forward. If she thought differently, that was not said by her at the time.[163]On 14 January 2011, a final report was prepared for the Board of Studies by Revd Thorogood, based on Revd Bradbury’s report of the assessed service, and the supervisor’s report which had been discussed on site on 15 December 2010. Revd Thorogood’s conclusion, on the basis of the report and his meetings with Revd Welch and the claimant was that: Whilst it is clear that Felicitas has many gifts it is the case that the supervision process and relationship has not been fruitful, with both Elizabeth and Felicitas by the end continuing to hold significantly different perspectives upon the supervisions. The concerns about self-awareness, engagement with others and responding to opinions with which Felicitas disagrees remain.[164]The Board of Studies met on 20 January 2011. The Board considered the Final Placement Report and the Revd Bradbury report. The former paper concluded that the claimant’s LMP had not been satisfactorily completed. Issues regarding the placement were summarised as follows: - A lack of self-awareness. - An inability to perceive accurately the needs of other people. - An inability to form appropriate working relationships with other people and to acknowledge appropriate boundaries. - An inability to respond appropriately to constructive criticism. The report was accepted by the Board.[165]The Board accepted that the decision on 20 January 2011 was made before the claimant had been given the opportunity to comment and decided on 22 January 2011 to call a Serious Concern Review Meeting. The Board took the view that the relationship with the claimant had broken down. The amended decision of 22 January 2011 records: A Serious Concern Review Meeting will be called by the Convenor of the Board of Studies, as outlined in the Westminster College Policy Document: 'When there are concerns about a student's progress towards ministry'. Until such time as the Serious Concern Review Meeting takes place, the Student will be suspended from Westminster College, and will not embark on the MA studies as planned. [2025][166]The decision was sent to the claimant by letter on 22 January 2011. The claimant was informed of her right to appeal [2679].[167]On 24 January 2011 there was a meeting with the claimant at Church House to discuss the Board of Studies decision. Revd Durber, and Revd Kristin Ofstad, convenor of the Board of Studies were present, together with Revd Templeton, who accompanied the claimant. The claimant alleges that Revd Templeton was ‘chosen’ as her companion. We find that Revd Templeton was not chosen as the claimant’s companion. He was there because it was agreed between him and the claimant that he would act as her companion at that meeting. The claimant was not under any obligation to agree that Revd Templeton accompany her. Alleged referral to Sexual Therapist[168]The claimant alleges that on 3 February 2011 the respondent tried to refer her to a Psychosexual therapist Barry Gower. This issue was not explored by the claimant in any detail during the hearing in cross examination with the respondent’s witnesses. None of the relevant documents were put to the respondent’s witnesses. The claimant provided a list of references in the bundle in relation to this allegation on 7 January 2022.[169]We note from an email exchange in the bundle on page 4666 that the claimant applied for counselling support through The Churches Ministerial Counselling Service (CMCS) in about February 2011. The CMCS offers counselling services to a number of denominations, including the respondent. It is independent. It appears that the claimant was referred by the CMCS to Barry Gower a Sexual and Relationship Therapist.[170]In an email dated 7 February 2011, the claimant asked Enid Gear to refer her to someone else. It appears from documents in the bundle that Enid Gear is a Regional Liaison Officer for CMCS, not the respondent. In her email, the claimant asked to be referred to someone other than Barry Gower because according to her email, he “specialised in therapies with regards to sexual relationships”. As noted above, he is in fact a Sexual and Relationship Therapist.[171]Enid Gear replied on 11 February 2011. She stated: Sorry to be so long in coming back to you but I needed to discuss this with a consultant. He has now spoken to me and says that you need to make another appointment with Barry before considering seeing anyone else. If it really doesn’t work with Barry we can then think about another referral.[172]It is apparent that the therapeutic relationship did not work out because the claimant started therapeutic work with Ms E Smith on 1 June 2011 and the respondent continued to pay for counselling sessions with Ms Smith into 2012. Questioning of the use of Amber Light[173]In February 2011, Revd Templeton wrote to the College on the claimant’s behalf, questioning why Amber Light had not been used. The Amber Light policy is to be used when there are substantial and significant concerns about a student's suitability or readiness for ministry.[174]His letter included the following: I must emphasise that in my conversations with Felicitas she has expressed her eagerness to engage directly with the substantive concerns raised by the Board of Studies. To date, she believes that her attempts to engage directly with criticisms made by her Placement Supervisor and College Staff have not been adequately facilitated. It seems to me that the almost complete breakdown of trust on both sides of these relationships has been both cause and effect of this failure to achieve the necessary engagement and communication.[175]On 7 February 2011 Revd Kristin Ofstad replied, setting out the options facing the claimant at this stage. She explained why Stage 2 of the Amber light procedure had been proposed [2026]. The Amber Light policy was approved by the Governors on 26 November 2010 and by the Board of Studies on 20 January 2011. Revd Ofstad explained that stage I is a discussion stage. The College considered that the many discussions that had already taken place had satisfied that stage. In any event, the breakdown of the relationship between the claimant and Senatus rendered the discussion stage impractical and inappropriate. In conversations with Revd Templeton around that time, the claimant accepted that she had lost trust in Westminster College staff. Breakdown of relationship with Westminster College[176]Revd Durber wrote to Revd Craig Bowman, secretary to the Ministries Committee, regarding the relationship breakdown with the claimant, on 10 February 2011 [2302]. The letter noted: It is the case, as things stand at the moment, that the teaching staff here would find it hard to commend Felicitas to a university department, given the deterioration in her relationships with us here.[177]The claimant presented a MED3 to Westminster College and commenced sickness absence on 10 February 2011. The certificate recorded the reason for absence as epigastric pain. No decision was made by the claimant at that stage as to how she wanted to proceed in terms of an appeal. A further MED3 was provided dated 21 February 2011, referring to abdominal pain.[178]Westminster College withdrew the claimant’s student status on 24 February 2011. Revd Tollington ceased to be the claimant’s tutor on that date and had no further involvement with her. Nor did she have any involvement in the Assessment Board’s subsequent decision to cease the claimant’s training for Ministry. Further MED3s and OH referrals[179]A further fitness for work certificate (MED3) was provided by the claimant dated 21 March 2011 referring to ‘abdominal pain, awaiting treatment’. That was acknowledged by Revd Ofstad by letter on 24 March 2011 [1866].[180]The respondent referred the claimant for an occupational health (OH) assessment in July 2011. The report dated 21 July 2011 [965/2125] stated the following and suggested a referral for a further assessment in mid-September 2011: Felicitas described symptoms of gastritis, insomnia and nausea since January 2010. She explained these symptoms developed due to the situation that has evolved within her training. She told me that there are no personal or home issues. Her GP has certified her off sick until mid September and her specialists support this. It is my opinion that she is clinically not well enough to attend or prepare for appeal, review or assessment meetings at this current time.[181]Ms Smith wrote ‘to whom it may concern’ letters about the claimant to the respondent on 20 July 2011 and 26 January 2012 [961-2]. Neither letter contains any recommendations regarding the claimant. Rather, the letters provided an update about the positive impact that the therapeutic work was thought to be having for the claimant.[182]A further OH assessment took place on 29 September 2011 [2127]. The report dated 29 September 2011 recommended: Felicitas has requested representatives at the hearings and I think this would be beneficial for her to reduce her stress levels.[183]A further report dated 11 November contained a similar recommendation [2029]. In an email of 15 November 2011 to the claimant, Revd Thomas stated that her understanding: is that the word "representative" is also being used in a generic sense, and the presence of such a person is included in the processes already outlined by the College. The claimant responded the same day to say: I am glad to hear that policies with regards to representation seem to have changed since last year. I am sure it won't harm the procedures to be allowed someone who is permitted to speak with you and for you during hearings.[184]The respondent provided confirmation to Ms Smith on 23 November 2011 that it would fund up to 12 additional counselling sessions, as recommended in the OH report [1815]. We accept Ms Smith’s evidence that the last of the twelve sessions, paid for by the respondent, took place in January 2012. Appeal against Board of Studies decision/Referral to Assessment Board[185]On 1 December 2011 the claimant notified the Board of Studies that she had decided to appeal the decision of the Board of Studies to hold a Serious Concern Meeting under stage 2 of the Amber Light policy [E1812]. Steps were taken to organise a hearing of that appeal.[186]On 22 December 2011, Revd Bowman became aware that an annual report for the claimant had not been received from Westminster College. He made enquiries and was advised that a report had not been submitted. He was informed that the difficulties between the claimant and Westminster College had developed to the extent that the College considered it was unable to continue to provide training to the claimant. Revd Bowman subsequently liaised with the Convener of the Assessment Board on 13 January 2012, who determined that an Assessment Board meeting should be convened in order to determine whether the relationship between the claimant and Westminster College had broken down [1934]. The claimant was informed of that decision on 26 January 2012 [1936].[187]The date proposed for the meeting was 20 February 2012. The process to be followed was briefly explained and the claimant was informed of her right: ‘to have a friend attend this meeting with you but the panel will be in conversation with you’.[188]In an email to Revd Bowman dated 2 February 2012, the claimant stated: If your letter and the meeting with the Assessment Board Panel thus mean that another RCL will be chosen where my training towards the ordained ministry of Word and Sacrament in the URC finally will start for me - Yes, please! And if you decide I shall go back to Cambridge - Yes please, either way it is ok. You will have read in the reports you have requested and received from lnterhealth last September that ever since the summer I am very willing and fit to proceed with the hearings I was told to decide about. Moreover, even during the last year, I never stopped training and full-filling the duties of ministry I was offered. Some bits in me wish you would have allowed my appeal to be heard first. I am confident that you would have seen then that there is nothing which should stop you to train me for the Ministry.[189]The claimant also explained that she had not been able to change the prearranged commitments she had for 20 February. The hearing was therefore rearranged to 28 February. Attached to the email were documents from Westminster College to the Assessment Board, in relation to the proposed hearing. These included a letter from Revd Durber to Revd Bowman dated 10 February 2011 (but which was actually prepared and sent in 2012) [2032].[190]On 3 February 2012, the claimant was informed by Revd Bowman that as a result of the Assessment Board deciding to hold its own meeting, the College’s internal procedures had been put on hold, pending the Assessment Board meeting [1945].[191]Further documents were sent to the claimant by Revd Bowman on 17 February 2012. The claimant told Revd Bowman in a reply sent on the same day that a number of the documents were new. She asked for more time to provide her response. The claimant was asked by Revd Bowman to try and send her contribution as soon as possible after the deadline, so the proposed hearing on 28 February 2012 could still go ahead. The documents were sent by the claimant on 21 February 2012 and Revd Bowman acknowledged receipt of them [1966]. The final instalment of the claimant’s submission was sent on 23 February 2012. Revd Bowman was not aware of that until 27 February 2012 as it had been copied to the Ministries PA who had opened the email. It therefore appeared in Revd Bowman’s inbox as having been read. No issue was taken by the Assessment Board about the late receipt of the claimant’s submission and supporting documents. The Assessment Board meeting – 28 February 2012[192]The Assessment Board met as planned on 28 February 2012. There are no formal minutes of the meeting itself. Revd Bowman took some brief notes as an aide-memoire, as clerk to the Ministries Committee. The panel heard first from the representatives of the College, without the claimant present; and then from the claimant, who attended with her companion Tony Haws, without any of the College representatives present. The Board then met without either side present, to reach their decision.[193]The decision of the Board is recorded in a report dated 3 March 2012 which was prepared by Revd Bowman in the presence of the Panel and checked and proofread by them [718]. The tribunal finds that the report accurately reflects the decision and the reasons for it. The report records: The board continues to appreciate the many gifts with which Felicitas is blessed and which can be used in the work of God's kingdom. She is a charismatic person with a deep spirituality. Alongside her strong musical gifts she has skill in leading worship that is well thought through, structured and insightful. She has also demonstrated her ability to engage a diverse group of people in conversation, especially those on the margins of the church. Nevertheless the board is convinced that it would not be right to continue with her training. Westminster College has detailed a situation where the key relationships have broken down dramatically. The mutual trust and the understanding essential for good tutor-student relationships are absent and it seems impossible that these can be re-established. Felicitas agreed with this assessment. In our discussions with Felicitas we encountered nothing that would lead us to have confidence that the same thing would not happen again in this or an alternative training institution. We saw in Felicitas a very limited sense that she may have contributed to this breakdown, rather a continued highlighting of the shortcomings of others.[194]The decision was sent on 6 March 2012 to the claimant and re-sent on 12 March. [1991] The email from Revd Bowman stated: The decision of the Assessment Board is a discernment decision and is therefore not appealable. However if you believe the process has not been followed properly then there can be grounds for appeal. As the Assessment Board is a sub-committee of the Ministries Committee any appeal about process must be made to that committee following the procedure which I will include in the body of this email. As I heard from a third party that you had difficulty reading the original report the decision of the board was given to you again on 6th March 2012, and it is to that date that the 21 day period for appeal would apply. Appeal against Assessment Board decision[195]On 12 March 2012 Revd Templeton emailed the claimant setting out why he considered that the claimant ought not to appeal the Assessment Board’s decision to cease her formal preparation for Ministry. The claimant claimed before us that Revd Templeton did so because he feared that supporting her would interfere with his own career. The email suggests no such fear and Revd Templeton denied it. The tribunal finds that the email contained his honest opinion and that the suggestion that he was worried about his career is fanciful. [3766] Amongst other points, the email states: 5. You are excessively litigious and pedantic about trying to influence any report by someone else about you that portrays you and your work in a less-than-flattering light. You take thousands of words in order to tell things your way; but in doing so you both try the patience of others and alienate them.[196]The claimant appealed the Assessment Board decision on 2 April 2012 [1785]. Receipt was acknowledged by Revd Bowman on 3 April 2012 who passed the documents onto Richard Mortimer, secretary to the appeal panel, to process. Revd Bowman had no further involvement with the appeal decision or process.[197]A letter was sent by the respondent to the claimant regarding the payment of grant pending the appeal on 18 May 2012 [1777]. The claimant was informed that payment of the grant was to cease from the end of the academic year, in mid-June 2012. The payments made to the claimant were exceptional and were more than had been paid before or since to an ordinand on sick leave [FTWS69, page B:580].[198]The appeal hearing took place on 1 June 2012. This comprised of Revd Kevin Watson, the chair of the appeal, Revd Yolande Burns and Judith Johnson. Richard Mortimer acted as the clerk to the appeal.[199]The appeal was rejected. The claimant was notified of the decision on 8 June 2012. An email was sent to Westminster College about the appeal decision on 19 June 2012 via Revd Durber. [1766] As well as confirming that the appeal was not upheld, the record of the decision states: The Panel added a rider, requesting Thames North Synod to provide pastoral care and appropriate support to help Felicitas discern where next with her life and how her Christian service might be lived out.[200]Following the notification, Revd Prasad made efforts to arrange a meeting with the claimant [1760].[201]Revd Thomas wrote to the claimant on 20 July 2012 regarding outstanding payments due to her (which totalled £443.31 for the accommodation allowance) [E1756]. Alleged victimisation – May 2013[202]On 29 April 2013, the claimant wrote to one of the Ponds Square Chapel Elders, John Thompson, alleging that Revd Templeton had approached Mr Thompson and spoken against her. In a reply dated 1 May 2013 Mr Thompson stated: To be fair to Julian, what he said was that because of the dispute the elders felt that the invitation to you to preach on 3 November should be withdrawn. He did not speak against you but explained how the dispute had arisen.[203]On 8 May 2013, Revd Templeton wrote to the claimant communicating the decision of the Elders Meeting of the Pond Square Chapel, Highgate, that the serving Elders had agreed that it would not be appropriate for the claimant to lead worship, whilst the claimant was in the process of pursuing legal proceedings against the respondent. That could be seen as support for the claimant. The letter concluded: I wish to make it clear that this decision affects only your leadership of worship at our church whilst you are pursuing legal proceedings against the United Reformed Church; the decision is not intended to change any other aspect of your relationship with Highgate United Reformed Church.[204]We accept the evidence of Revd Templeton, given during the hearing, that as the letter suggests, the decision was intended to last only whilst the claimant was pursuing legal proceedings. The assumption was that once the proceedings had been concluded, there was no reason why the claimant could not be invited. At that stage, no-one could have envisaged that the proceedings would still be ongoing nearly nine years’ later.[205]We accept the evidence of Revd Templeton that he did not attempt to influence any other party outside the local church. The Elders and Church meetings of each local United Reformed Church has the competence to make its own decisions in those matters. There was no evidence, other than a bare assertion by the claimant, of any other attempts, whether by Revd Templeton or any others.[206]We accept the evidence of Revd Durber that she did not approach Revd Andrew Prasad, and Revd Fiona Thomas or anyone else at Thames North Synod, in an attempt to persuade them not to support the claimant.[207]In the Autumn of 2021 an advert appeared for the role of Minister for the Pond Square chapel in Highgate. The claimant applied for that role. Strictly speaking, there is no need to make any findings of fact in relation to the application because it is not an issue before us, and any facts in relation to it are not going to assist as in relation to the conclusions we have to draw about the matters that are before us. However, for the sake of completeness, we find that the claimant’s application was not taken forward because she did not meet some of the essential skills required for the role. These included her not being a trained and ordained minister; and not being a person with strong interpersonal skills, willing to listen to others. Alleged ‘sabotaging’ of application for role of Chaplain, Whittington Trust[208]At some stage after her traineeship ended, the claimant applied to be a Hospital Chaplain at the Whittington Health NHS Trust. Revd Templeton was not approached for a reference for that role. No evidence was put before the tribunal as to how Mr Prasad ‘sabotaged’ the claimant’s application. The decision as to who to appoint to a vacancy for Chaplain rests solely with the NHS Trust, not the respondent. Comparators[209]The claimant relies on a number of named comparators. Our findings of fact in relation to each of them are as follows. Reverend Matt Stone[210]Revd Matt Stone attended Westminster College as an Ordinand between September 2006 and July 2010. He was brought up within the United reformed Church and was very therefore very well versed in the practices and constitution of the respondent church.[211]Revd Stone studied an undergraduate degree in geography. He started his Ordinand training immediately after. During his ordinand training, he studied the Cambridge Tripos, which he completed in two years, followed by the MA in Pastoral Theology.[212]During the academic period of his training, Revd Stone resided at Westminster College. By the end of the second year a flat became available. When it came to considering a placement, he asked for a placement somewhere close enough to Cambridge City to allow him to continue living in the College. His LMP was arranged in Hitchin, 30 minutes drive from Cambridge. Revd Stone commuted there each day.[213]In the Autumn of 2008, before the claimant started her formational training, Revd Stone travelled to the Columbia seminary in Colombia USA. In 2009, during the summer holiday, he went on a URC trip to Israel. That was available to everybody but subject to a financial contribution. In September 2009 he spent three weeks in India before he started his LMP, with the Council for World Mission. Between 4 and 28 June 2010 he attended the Global Institute of Theology and World Communion of Reformed Churches. He spent a period of four weeks in Grand Rapids and Chicago. He attended Atlanta on an exchange programme.[214]Revd Stone’s LMP was in the Eastern Synod. He saw the Synod training officer for a pastoral visit once a year. In each October, the Synod moderator would also visit the Ordinands from the Synod and would usually go for a meal with them and discuss how they were progressing. The Thames North Synod had a less structured approach to visiting its Ordinands. Revd Melanie Smith (Frew)[215]Revd Melanie Smith underwent her Living Ministry Programme between 2011 and 2012, having attended Westminster College for formational training for a period of four years starting in 2008. Her learning recommendation from the Assessment Conference was a three year Cambridge Bachelor in Theology (BTh), followed by a one-year LMP at a local church in Cheshunt. During the LMP she lived close to the local church to which she was attached.[216]During her first year of formational training, Revd Smith separated from her husband. The claimant alleges that Revd Smith failed to comply with ‘relationship restrictions’. The claimant provided no details as to how any alleged relationship restrictions were breached. Revd Smith is not aware of any such restrictions and no reliable evidence was presented to the tribunal during the hearing that the respondent imposes any such restrictions. We are satisfied there were none. We are further satisfied that there was nothing untoward about the behaviour of Revd Smith at that time.[217]Revd Smith recalls that there were other single Ordinands during the time that she was an Ordinand. Being single was not out of the ordinary.[218]Revd Smith attended an international placement with the Evangelical Lutheran Church in America for three weeks in South Dakota, USA, during her LMP. Revd Anne Lewitt[219]Revd Lewitt started her formational training in 2009, commencing with the three-year BTh, with her LMP taking place at the end of the training, in 2012/13.[220]Revd Lewitt was, like the claimant, from Thames North Synod. Revd Lewitt and other colleagues from Thames North noticed that other students from other Synods were visited more often by representatives of their Synod than her and her Thames North colleagues. Revd Lewitt went to speak to Thames North Synod staff and as a result, pastoral visits did start.[221]Revd Lewitt spent three weeks in New Zealand at the Presbyterian church of a friend who was a minister in New Zealand during one of the summers of her training period. The NZ church Minister happened to be on sabbatical at Westminster College, and there was a three-way conversation between Revd Lewitt, the Minister, and a member of staff. Revd Lewitt’s attendance at the pastor’s church in New Zealand was considered to be of benefit to her and the respondent. Hence it was approved. Her air-fare was paid. Revd Lewitt was provided by a member of the church with free accommodation during her stay and she was picked up from and returned to the airport. She paid all other expenses associated with the trip. Revd Catherine Lewis-Smith[222]Revd Lewis-Smith attended Westminster College for formational training between 2009 and 2015. She spent three years in academic study, initially on a BTh at Cambridge. She did not find the course stimulating and following a conversation with her tutor Revd Proctor, it was agreed that she study the Cambridge Tripos, this being a BA in Theology and Religious Studies. Her LMP took place between 2011 and 2012. During that time she applied to do a PhD in Biblical studies which was undertaken between 2012 and 2015 through Lucy Cavendish College. As this extended her training, she was asked to seek scholarships to mitigate some of the costs of the additional study and succeeded in doing so.[223]During her LMP year, Revd Lewis-Smith received what she felt was constructive criticism. She recalls one area where feedback was received about her not sitting on the front row during worship but at the front of the church.[224]Revd Lewis-Smith had previously suffered from chronic fatigue syndrome (CFS). In 2009 she suffered from a number of infections and was concerned that she might relapse back into chronic fatigue. She discussed that with the college and adjustments were made, such as some supervision on essays taking place during the Easter vacation to spread out her workload. Lucy Cavendish College arranged exam accommodation for her. When necessary, Revd Lewis-Smith could go and lie down in one of the rooms within the College. Following discussion, she was also allowed to miss worship on one of the days, to avoid a long walk to the lecture room from the chapel.[225]Revd Lewis-Smith found the claimant’s behaviour challenging. For example, during a car journey, the claimant made comments about Revd Lewis-Smith’s weight and body shape. The conversation left Revd Lewis-Smith feeling very uncomfortable. The claimant was completely oblivious to the impact of what she said.[226]Revd Lewis-Smith also recalls an incident involving a fellow ordinand, who was struggling with the study of Hebrew. The claimant told the student how easy learning Hebrew was, without any apparent awareness of the potential adverse impact of her remarks on the student, who was genuinely struggling with her learning. Revd Mark Robinson[227]Revd Robinson’s Ordinand training took place between 2007 and 2011. He had studied a BA in Media Studies as an undergraduate and had an MSc in Marketing. He studied the Bachelor in Theology degree during the first three years and undertook his LMP in the final year of his training.[228]During the placement, Revd Robinson worked about 40 hours per week. He was based at a joint pastorate, Emmanuel URC and Cherry Hinton URC, in Cambridge. The supervising minister led most of the services at Emmanuel URC during the LMP and Revd Robinson led most of the Sunday services at Cherry Hinton. Occasionally they would alternate between the two. He also undertook pastoral duties.[229]Revd Robinson recalls the claimant suggesting during one of the Thursday meetings in College that the congregation at Clapton Park liked her more than the supervising minister, Revd Welch. Revd Robinson was concerned at such a suggestion. Due to such behaviour, Revd Robinson subsequently maintained a distance from the claimant.[230]Revd Robinson had one international placement. A minister of a church in New Zealand did a sabbatical at Westminster College. Revd Robinson was invited to attend his church in New Zealand and he took up the invitation, that having been approved by the College. Chairing of meetings[231]The claimant has made a general allegation that Ms Welch, Mr Thorogood, Ms Thomas and Mr Bowman, prevented her from chairing meetings in 2010, 2011 and 2012 without providing any specific details about which meetings or when. We find the claimant was not prevented by them from chairing meetings, and that this is yet a further example of the claimant misinterpreting/misunderstanding what was said to her, if anything. The companions[232]Mary Fagan was one of the claimant’s congregational companions. Ms Fagan recalls that role as being informal. Ms Fagan was at the time a busy secondary English teacher and only around regularly on Sunday mornings. Mr Boucher was a companion for a brief period of a few weeks towards the end of the claimant’s training. The Disability issue[233]The List of Issues refers to the following disabilities: PTSD, severe reactive depression, chronic severe Insomnia, severe Fibromyalgia, early and sudden onset of Menopause, Gastritis, Ulcers, late-onset Epilepsy deterioration of visual Acuity, severe Occlusion with breaking of teeth, and borderline diabetes. The claimant was asked by the tribunal to provide further details about the effect of those alleged disabilities on her and her response is included in the following.[234]Complex PTSD – there was no formal diagnosis of PTSD until after the claimant’s training had been terminated.[235]The tribunal accepts that from January 2010 the claimant suffered from insomnia. The claimant told us that when the appeal was put on hold in January 2012, this caused a further trauma. The claimant says her symptoms included stomach problems, brain fogging, and not eating enough.[236]Severe reactive depression – the claimant alleges this started from the first week or so of her being at Clapton Park. She told us that the alleged events left her feeling rather low. Her symptoms fairly quickly became severe. The claimant alleges that from 26 November 2009 she started crying a lot, and in January 2010 she ‘could not stop crying’. Revd Proctor did not recall this. Revd Welch accepted that the claimant was often tearful but she would then gather herself, recover and continue. Revd Welch tried to be attentive to the claimant’s distress and address it. The claimant would also smile a lot of the time and seemed full of energy and was keen to get on with the work. On those occasions when the claimant became tearful during supervision, she would quickly recover and be able to function again, as she did during the hearing on a number of occasions.[237]Severe Fibromyalgia – this gives rise to physical pain – the symptoms were noted by Dr Trefzer in 2010, although the condition was not formally diagnosed until early 2011. The more the claimant failed to sleep, the worse the condition became, all over her body. According to the claimant, if any part of her body is touched, it ‘screams with pain’.[238]Early and sudden onset of menopause - this began during 2011. No details were provided of the physical effects of that on the claimant.[239]Gastritis and Ulcers – the claimant told us she started to suffer nausea on 4 January 2010, and stopped eating properly. She was informally diagnosed in the summer of 2010. A formal diagnosis occurred in 2011, following a gastroscopy. The symptoms became particularly acute from January 2011, and are the reason set out on the fit notes for absence. It was noted by Interhealth in their OH reports as being the reason for absence.[240]Late-onset epilepsy – the claimant was diagnosed as having frontal lobe epilepsy in January 2018. In 2010 the claimant says that she started fainting. The claimant says this happened nearly every Thursday when at Westminster College and at Clapton Park several times. The only incident of fainting any of the other witnesses could recall, was one incident in Revd Durber’s study. We accept Revd Durber’s evidence that during this incident, Revd Durber expressed concern towards the claimant, who brushed aside the offers of help and insisted she was okay.[241]Deterioration of visual Acuity – the claimant told us that by about February 2010 she could not read properly and had to start ‘blowing up’ documents in order to be able to read them.[242]Severe Occlusion with breaking of teeth – the claimant told us this resulted in her jaw hinges not moving smoothly and clicking a lot. Often her jaw does not open and her teeth are stuck together. She also tends to grind her teeth. She told us she now has four teeth missing in her upper jaw and one has been extracted from her lower jaw.[243]Borderline diabetes – the claimant alleges that this happened from 5 January 2010 when her intake of white sugar was 7 to 12 teaspoons in each cup of tea. The condition was properly diagnosed in 2011. The symptoms suffered were lack of concentration and spacing out. Relevant Law Unfair dismissal
Relevant Law
[244]The legal issues in an unfair dismissal case are derived from section 98 of the Employment Rights Act 1996. Section 98(1) provides that it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or capability or for some other substantial reason.[245]For the purposes of s 98(1) and (2) ERA 1996, the reason for dismissal can be other than the reason given to the employee by the decision-maker. In The Royal Mail Group Ltd v Jhuti [2019] UKSC 55) the Supreme Court held: if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason. (‘The Jhuti principle’).[246]Section 98(4) provides: … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.[247]The reasonableness of the dismissal must be considered in accordance with s.98(4). Tribunals have been given guidance by the EAT in British Home Stores v Burchell [1978] IRLR 379; [1980] ICR 303. There are three stages in a conduct dismissal:(1) did the respondent genuinely believe the claimant was guilty of the alleged misconduct?(2) did they hold that belief on reasonable grounds?(3) did they carry out a proper and adequate investigation?[248]Whereas the burden of proving the reason for dismissal lies on the respondent, the second and third stages of Burchell are neutral as to burden of proof and the onus is not on the respondent (Boys and Girls Welfare Society v McDonald [1996] IRLR 129, [1997] ICR 693).[249]In deciding whether it was reasonable for the respondent to dismiss the claimant for that reason, case law has determined that the question is whether the dismissal was within the so-called ‘band [or range] of reasonable responses (‘the range’). ‘The range’ does not equate to a perversity test. See Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, [1983] ICR 17 at 24- 25; Foley v Post Office [2000] ICR 1283 at 1292D – 1293C, per Mummery LJ, with whom Nourse and Rix LJJ agreed.) The Employment Tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. Instead, the Tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable employer might have adopted’. An ET must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any internal appeal process (West Midlands Co-operative Society Ltd v Tipton [1986] 1 AC 536)) and not on whether in fact the employee has suffered an injustice. (The logical conclusion of which is that a Tribunal might consider that the dismissal was unjust, but was nevertheless ‘fair’.[250]The failure to offer an appeal will not necessarily result in a finding of unfair dismissal: Moore v Pheonix Product Development Ltd [2021] UKEAT 0070/20. In delivering judgment in that case, Choudhury J observed: Although an appeal will normally be part of a fair procedure, that will not invariably be so, as to take that fixed approach would be to disregard the clear terms of the statute, which dictate that the circumstances are to be taken into account. Here, the relevant circumstances included the fact that the Claimant was a board-level director and employee; that the Respondent was a relatively small organisation with no higher level of management; that the Tribunal had found that the Claimant himself had brought about an “irreparable breakdown” in trust and confidence (para. 125); that this was considered to be “destructive”, destabilising and a “dragfactor” for the company (para. 114); that he was unrepentant about his conduct and attitude (para. 127); and that he had not shown any sign that he was likely to change (para. 128). 44. In my judgment, it was open to the Tribunal to conclude, in these circumstances, that an appeal would have been futile; this was not the kind of organisation where the Claimant’s shortcomings and the consequent threat to the Respondent’s future could be addressed through some sort of re-training programme, or where different managers might be found to work with him more effectively. In fact, the conclusion of the independent reviewer, Mr Bicket, was that the Claimant would “sabotage any CEO coming into the business” (see para. 39). The fact that the loss of trust and confidence was only manifest in two of the directors at the time of dismissal does not advance Mr Powell’s case; it is clear that by the time of the decision to dismiss, four of the directors had come to that view, with only the Claimant dissenting. The loss of trust and confidence amongst his fellow directors was, therefore, complete. Disability (section 6)[251]A person has a disability if she has a mental or physical impairment; which is long term (i.e. has lasted 12 months or more or is likely to do so); and has a substantial adverse effect on her ability to carry out normal day to day activities (S.6 and Schedule 1 Equality Act 2010). The term ‘normal day to day activities’ includes the ability to participate in professional working life. Direct discrimination (section 13)[252]Section. 13 (1) Equality Act 2010 provides: A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The critical question to ask in every case is what was the reason why the alleged discriminator acted as they did? What, consciously or unconsciously, was their reason? See Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48.[253]Claimants must demonstrate that they have been treated less favourably than an actual or hypothetical comparator who was in not materially different circumstances to the claimant, (section 23(1) EqA), save that they are “not a member of the protected class” (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL, [110]).[254]In cases of disability discrimination, the “circumstances” must include the disabled person’s abilities, (section 23(2)(a) EqA), such that the tribunal must consider how a person with the same abilities as the claimant would have been treated. Burden of proof (section 136)[255]Under s136, if there are facts from which a tribunal could decide, in the absence of any other explanation, that person A has contravened the provision concerned, the tribunal must hold that the contravention occurred, unless A can show that he or she did not contravene the provision.[256]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258. The tribunal can consider the respondents’ explanation for the alleged discrimination in determining whether the claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others [2006] IRLR 748; Madarassy v Nomura International plc [2007] IRLR 246, CA.)[257]The Court of Appeal in Madarassy, a case brought under the Sex Discrimination Act 1975, held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. LJ Mummery stated at paragraph 56: Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the respondent had committed an unlawful act of discrimination.’[258]Further, it is important to recognise the limits of the burden of proof provisions. As Lord Hope stated in Hewage v Grampian Health Board [2012] IRLR 870 at para 32: They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. Inherent probabilities[259]Questions about the burden and standard of proof are directed to the resolution of a single question, namely: did the accused conduct themselves in the manner complained of? As noted by the Supreme Court in Re B (Children):[260]The Tribunal will of course be required to formulate its factual findings by reference to the civil standard (i.e. the balance of probabilities). The nature of the standard has been described by Lord Hoffman in the following terms: There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. Discrimination arising from disability (section 15)[261]Section 15 Equality Act 2010 reads:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[262]In a disability discrimination claim under section 15, an employment tribunal must make findings in relation to the following:(1) The contravention of section 39 of the Equality Act relied on – in this case either section 39(2)(c) – dismissal; or (d) - detriment.(2) The contravention relied on by the employee must amount to unfavourable treatment.(3) It must be “something arising in consequence of disability”; for example, disability related sickness absence.(4) The unfavourable treatment must be because of something arising in consequence of disability.(5) If unfavourable treatment is shown to arise for that reason, the tribunal must consider the issue of justification, that is whether the employer can show the treatment was “a proportionate means of achieving a legitimate aim”.(6) In addition, the employee must show that the employer knew, or could reasonably have been expected to know, that the employee or applicant had the disability relied on. Knowledge that the something arising led to the unfavourable treatment is not however required. See the decisions of the EAT in T-Systems Ltd v Lewis UKEAT0042/15 and Pnaiser v NHS England [2016] IRLR 170 (EAT). Harassment (section 26)[263]Section 26 EqA provides:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[264]A harassment case therefore involves five questions. First, did the conduct took place at all. Second, was the conduct unwanted? Third, was the conduct related to sex? Fourth, did the person responsible for the conduct have the proscribed purpose. Fifth, if not, did the conduct have the proscribed effect, taking into account(a) the perception of B;(b) the other circumstances of the case; and(c) whether it is reasonable for the conduct to have that effect. Victimisation (section 27)[265]In order to succeed in a victimisation claim, a claimant must demonstrate that she did a protected act. This includes making a complaint of discrimination covered by the Equality Act. A claimant must then show that she was subjected to a detriment because of the protected act(s) (S.27 EQuA).[266]In Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830, [2001] ICR 1065, HL, a police officer complained of victimisation following his chief constable's refusal to provide a reference for him for a new job. The Chief Constable's position was that he was unable to comment as to the officer's suitability for fear of prejudicing his (the Chief Constable's) case in proceedings in which the officer was pursuing a racial discrimination claim against him in the tribunal. In other words, the reference was refused because of pending proceedings. It was argued that this was not victimisation, because the same response would have been given in the case of anyone who had brought proceedings against the Chief Constable. The House of Lords, disagreeing with the approach taken in the courts below, accepted there was no victimisation—on the grounds of how a comparator would have been treated. The proper comparator was another employee of the police service who had requested a reference, not another employee who had brought proceedings under a different type of claim. That approach was helpful to the claimant. But at the end of the day, there was no victimisation because the reference had been refused, not because proceedings had been brought, but because proceedings were pending. The House of Lords indicated that if the same action had been taken when the proceedings had been concluded, that might well have been victimisation—but that was not the situation that applied here.' Whistleblowing[267]To succeed in her claim of automatically unfair dismissal for making a protected disclosure, the claimant must establish that she made one or more protected disclosures.[268]Under section 43A Employment Rights Act 1996, a protected disclosure for the purposes of section 103A must be a “qualifying disclosure” as defined in section 43B: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following— (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject (d) that the health and safety of any individual has been, is being or is likely to be endangered…[269]The claimant must therefore establish each of the following:(i) that she made a disclosure to her employer (or other relevant person); and(ii) that the disclosure was of “information”; and(iii) that she believed that the information tended to show a s.43B factor; and(iv) that belief was reasonable. It is not in dispute that the claimant was dismissed. So finally,(v) the claimant must establish that making a protected disclosure was the reason, or if more than one, the principal reason for her dismissal – section 103A. Time limits[270]The relevant time-limit is at section 123(1) Equality Act 2010. The tribunal has jurisdiction if the claim is presented within three months of the act of which complaint is made. By subsection (3), conduct extending over a period is to be treated as done at the end of the period. If the claim is presented outside the primary limitation period, i.e. the relevant three months, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable.
Conclusions
[271]In reaching our conclusions, we have borne in mind the burden of proof provisions in the Equality Act 2010. In all instances however, we have been able to make positive findings on the evidence before us.[272]We have considered each alleged incident of discrimination separately and we have also considered them collectively. The latter exercise only reinforced our initial conclusions about each separate incident.[273]The sub-headings below refer to the allegations set out in the List of Issues. Unfair dismissal - Issues 1) and 2)[274]We conclude that the termination of the claimant’s training amounted to a dismissal of the training relationship by the respondent. Reason for dismissal[275]We refer to the findings of fact above in relation to the reasons given by the Assessment Board for the termination of the training relationship. In summary, this was because of the breakdown of relationships between the claimant and staff at Westminster College; and the view taken by the Assessment Board that if the claimant was offered training at another RCL, the same problems would arise. The Board was also concerned that the claimant had no insight into her own responsibility for the breakdown of working relationships. For all those reasons, the Assessment Board concluded that the claimant was not an appropriate person for ordination as a Minister for Word and Sacraments and that her training should be terminated. We conclude that all this amounts to ‘Some Other Substantial Reason’, one of the potentially fair reasons for dismissal. Fairness of dismissal[276]As to the fairness of the dismissal, we conclude that there was a fair procedure followed. Staff at Westminster College did their best to try and make the relationship work, as did Revd Welch. The claimant was fully aware that her training contract could be terminated and why that was the case. Prior to the Assessment Board hearing on 28 February 2012, the claimant was sent all of the relevant documentation relating to the concerns of Westminster College staff, and given a reasonable opportunity to provide her response in writing. The timetable for doing so was extended to facilitate that.[277]The claimant then had the opportunity to put forward her case orally at the Assessment Board meeting on 28 February 2012. We conclude that the decision of the Assessment Board that the claimant was not suitable for Ministry due to her inability to develop effective working relationships with staff and fellow board members at Westminster College, and her lack of insight into that state of affairs was a reasonable conclusion for the respondent to come to in all of the circumstances. We conclude therefore that the claimant’s dismissal was fair.[278]Whilst under the respondent’s procedures, the claimant was able to appeal, she was only able to appeal on procedural grounds, rather than the substantive reason for her dismissal. We note the observations of the then President of the EAT in the Moore case, referred to above. We conclude that in the circumstances of this case, the failure of the respondent to provide an appeal in relation to the substantive decision did not render the dismissal unfair, simply on that basis. We remind ourselves that the failure to offer an appeal does not necessarily result in a finding of unfair dismissal. In this case, the claimant did have a right of appeal, although that right was limited as set out above. We take into account the fact that the respondent did not at this stage consider that an Ordinand’s training involved an employment relationship. In those circumstances, it is understandable that the procedures available were not as robust as might be expected in the usual employment situation. The respondent might wish to re-visit their procedures in light of what has happened since and EJ Segal QC’s judgment on employment status.[279]The tribunal notes, by reference to the matters referred to by Choudhury J in the Moore case, as quoted above that the claimant was not in a senior position, but in a very much subordinate position; that the decision to terminate the claimant’s training had serious implications for her desire to become an ordained Minister; the claimant did exercise her right to appeal; and the respondent was well able to find individuals to conduct the appeal who had not already been involved in the decision-making process (which indeed they did).[280]On the other hand, the tribunal also notes the many similarities between the claimant’s case, and the Moore case. These include that the claimant had caused the breakdown in trust between herself and staff at Westminster College; her actions were destructive and destabilising; the lack of trust was illustrated by the fact that members of staff would not meet the claimant without another individual being present; the claimant had little insight into the effect of her actions on others; and there was no indication that she was likely to change. In those circumstances, an appeal in relation to the substance of the decision would have been futile. Substantial efforts had already been made by Westminster College staff and by Revd Welch to help the claimant to succeed in the LMP. The fact that it was not successful was the fault of the claimant, not them.[281]Bearing all of that in mind, the tribunal concludes that the failure to offer the right of appeal in relation to the substance of the decision, did not in these particular circumstances make the dismissal itself unfair. In any event and for the sake of completeness, the tribunal records that even if the dismissal had been found to be unfair on this limited basis, the tribunal would have concluded that the claimant had contributed to her dismissal 100 per cent and would not in those circumstances have awarded any basic or compensatory award. Wrongful dismissal/breach of contract - Issues 3) to 18)[282]There are a number of sub-elements under this heading. We will deal with each in turn. In each case, for the sake of brevity later on and to help keep this judgment as short as reasonably possible, we set out our conclusions firstly as to whether or not there was a breach of contract; and second, where we have found the alleged treatment actually occurred, our conclusion as to the reason for the treatment alleged. Ordering the Claimant not to enrol to live nor to receive the usual training as a full-time Ordinand at Westminster College, Cambridge or any other URC Training Centre – Issue 3)[283]There was no order from the respondent, nor from Westminster College staff, not to do any of the above. Rather, they were the reasonable consequence of the claimant being asked to undertake the LMP first. This meant that the claimant usually attended Westminster College on Thursdays, when her fellow Ordinands were present. The suggestion of the College that the claimant undertake the LMP first did not amount to a breach of contract. The recommendations of both the Assessment Conference and Education and Learning Board were just that – recommendations. They were not set in stone. They did not contain any contractual stipulation as to whether the academic training should come before the LMP or vice versa. The claimant did not have a contractual right to academic study first. In any event, the claimant agreed to undertake the LMP first. For all of these reasons there was no breach of contract.[284]Further, we conclude that the reason for Westminster College suggesting that the claimant undertake the LMP first was her extensive academic and spiritual experience. On the basis of the qualification and experience which the claimant was understood to have on the basis of the contents of her written application, it was envisaged that the claimant may be eligible for Ministry within a year, without the need for further academic study at all. Nevertheless, the possibility of further academic study was kept firmly in mind by the College during the LMP. None of this had anything to do with any of the protected characteristics relied on by the claimant.[285]Nor was this a decision of the respondent in any event and it would not have succeeded against the respondent for that reason either. The respondent is a separate organisation to Westminster College. Unless specific conclusions are made to the contrary below, the actions of Westminster College/Westminster College staff cannot be attributed to the respondent. Requiring the Claimant to enrol at Anglia Ruskin University – Issue 4)[286]The claimant was not required to enrol at Anglia Ruskin University. As a result of the first LMP being unsuccessful, and the claimant’s subsequent appeal, the placement at Clapton Park URC had to continue between April and the end of December 2010. It was the College’s understanding that the claimant could not register in January 2011 for an MPhil. That was incorrect - but it was a genuine misunderstanding by College staff at the time. The College also took the view that studying modules on the MA would give the claimant a chance to re-hone her academic skills. The claimant agreed to do so and applied to study on two of the modules.[287]In these circumstances, there was no breach of contract.[288]As for the reason, we accept Revd Proctor’s evidence (WS bundle page B:555, para 9b) that the Anglia Ruskin MA in pastoral theology is primarily rooted in a reflective practice methodology. As it was experience of the lived reality of the United Reformed Church and its ministry that the claimant required, this would have been a better fit with helping her progress to ordination than the more purely academic University of Cambridge MPhil or PhD. The latter may be perceived by some to be of a higher status in terms of academic qualifications and institution, but in terms of progress towards ordained ministry, given the claimant’s academic background, the Anglia Ruskin MA would have made more sense. Nevertheless, the possibility of the claimant studying an MPhil or PhD was kept firmly in mind. We conclude that these were the reasons why it was suggested that the claimant enrol, which the claimant agreed to do without protest.[289]Ultimately, any further academic study was dependent on the successful completion of the LMP. None of this had anything whatsoever to do with any of the protected characteristics relied on.[290]Further, this was not a decision of the respondent but of Westminster College and it would not have succeeded against the respondent for that reason either. Preventing the Claimant from applying for or enrolling on international and local placements – Issue 5)[291]Acceptance for training for ministry does not give an ordinand any contractual right to an international placement as part of that training. In those circumstances, no breach of contract can possibly arise.[292]As for the reason why the claimant did not attend any international placement during her period of training, we conclude as follows. First, the respondent reasonably concluded that the claimant already had extensive international experience. She was proficient in 4 languages, and had lived and worked in France, Germany, and the UK. Whilst the claimant makes mention of wanting to attend both Haiti and Bangladesh during 2010, no evidence was presented to us of any formal request having been made. Nor is there any evidence as to whether the proposed attendance was during holiday periods, or when the claimant was due to be working on the LMP. Further, there is no evidence that the claimant was prevented from making an application for an international placement. This allegation therefore fails because the claimant has failed to establish the facts necessary for the claim to have any chance of succeeding. Preventing the Claimant from doing a PhD – Issue 6)[293]The claimant did not have a contractual right to study a PhD during her training. As noted above, and as reflected in our findings of fact, it was initially envisaged that the claimant may wish to conclude her training after one year, without any further academic study. Whilst that was considered as a possibility, the College staff also kept an open mind in relation to the direction that further academic study might take - see above regarding Issue 4).[294]As for the reason, then as noted above, any further academic study was dependent on the successful completion of the LMP. None of this had anything whatsoever to do with any of the protected characteristics relied on.[295]Further, this was not a decision of the respondent but of Westminster College and it would not have succeeded against the respondent for that reason either. Preventing the Claimant from attending the annual weeklong workshop with other ordinands – Issue 7)[296]The claimant did not have a contractual right to attend the annual workshop during the first year of her training when she was undertaking the LMP. The claimant was not ‘prevented’ from attending.[297]As for the reason, had the claimant successfully completed the LMP in the first year and gone on to do further academic study, she would have been invited to attend in September 2010, the first year of academic study. In any event, we conclude that none of this had anything whatsoever to do with any of the protected characteristics relied on.[298]Further, this was not a decision of the respondent but of Westminster College and it would not have succeeded against the respondent for that reason either. Preventing the Claimant from attending the meetings with Bishops, Synod Moderators and other Church leaders – Issue 8)[299]The claimant did not have a contractual right to attend meetings with Bishops, moderators and other Church leaders. Further, at no stage was she prevented from attending such meetings. No evidence was presented to the tribunal to suggest otherwise, other than a bare assertion to that effect by the claimant which we do not consider to be reliable. In relation to the visit of the Pope in 2010, the respondent had already chosen its delegates.[300]As for the reason, none of this had anything whatsoever to do with any of the Preventing the Claimant from preparing and leading services at the Chapel of Westminster College Cambridge – Issue 9)[301]The claimant did not have a contractual right to prepare and lead services at the chapel of Westminster College, Cambridge. In any vent, during the LMP, the claimant usually attended on Thursdays. Only students who attended Westminster College for full-time academic study were invited to prepare and lead services at the chapel. The claimant was in no way disadvantaged by any of this, because she already had substantial experience in preparing and leading services.[302]As for the reason, none of this had anything whatsoever to do with any of the[303]Yet further, this was not a decision of the respondent but of Westminster College and it would not have succeeded against the respondent for that reason either. Preventing the Claimant attending Bible studies meetings – Issue 10)[304]See above in relation to issue 9). Bible study meetings took place on Mondays when the claimant was not usually at Westminster College, but at her placement at CPURC. There was no breach of contract in any event since the claimant did not have a contractual right to attend Bible study meetings during her LMP, if at all.[305]As for the reason, none of this had anything whatsoever to do with any of the[306]Yet further, this was not a decision of the respondent but of Westminster College and it would not have succeeded against the respondent for that reason either. Requiring the Claimant to work over her contractual 36 hours per week and cancelling all but one of her days off – Issue 11)[307]We refer to our findings of fact above. To the extent that the claimant worked in excess of her contracted hours (which were 32 not 36), that was because she chose to do so, not because she was required to do so. In such circumstances, no breach of contract claim arises. We have found as a fact that the claimant’s days off were not cancelled.[308]As for the reason, none of this had anything whatsoever to do with any of the Failing to give the Claimant contractual/prescribed Supervision, Feedback, LMP-Companions, Time scales, Pastoral Care, Tutor or Permission to use prescribed Training Tools – Issue 12)[309]We conclude that there was no specific contractual right to any particular level of supervision/feedback. It was dependent on the availability of the supervising Minister concerned. In the claimant’s case, it was envisaged that she would receive fortnightly supervision of two hours rather than weekly supervision of one hour which her contemporaries received, because Revd Welch worked part-time. Given the difficulties that subsequently arose in the working relationship, the fortnightly rather than weekly supervision was perhaps unfortunate, but those difficulties could not have been predicted at the time the LMP was organised. Inevitably, there may have been occasions when supervision sessions had to be cancelled or rearranged, due to the unavailability of either party but again that did not amount to a breach of contract.[310]As for the question of congregational companions and pastoral care, again we conclude that the claimant was not contractually entitled to any particular level of pastoral care, or to any particular number of congregational companions. The congregational companions worked on a voluntary basis. They were not available, and nor was it envisaged that they would be available, on a 24/7 basis. There was an issue with the level of pastoral care provided by Thames North Synod, which was noted by a fellow ordinand Revd Lewitt. She raised that in a constructive manner with Thames North Synod, which resulted in improvements for all concerned.[311]The tribunal does not understand the claimant’s case in relation to ‘Time Scales … Tutor or Permission to use prescribed Training Tools’ and those claims fail because the claimant has not established the necessary facts.[312]Finally, for the sake of completeness, as for the reason, the tribunal is entirely satisfied that none of this had anything whatsoever to do with any of the Throughout 2009 repeatedly giving the Claimant incorrect information regarding her programmes, resulting in her not being able to continue her contractual training as an Ordinand. In particular, the Claimant contends the Respondent misled her regards:a. “I was to start with the Final Year of Training first” (Jan 2009);b. “a new and functioning LMP would be created” (Jan 2010),c. “Amber Light would be followed” (Jan 2010),d. “my MPhil/PhD, Placements, Courses, and additional Training would be made possible” (Jan 2009-Sept 2010) – Issues 13) a. - d.[313]We conclude that the claimant was not misled in relation to a. The matter was discussed and it was agreed that the claimant would undertake the LMP first. There was no breach of contract.[314]In relation to b, efforts were made to find a new placement for the claimant, but before that could be implemented, she appealed against the termination of the placement, and those attempts were rightly put on hold. The claimant’s appeal against the termination of the Clapton Park LMP was successful and the Clapton Park LMP therefore continued, with the support and agreement of both Revd Welch and the claimant, subject to the conditions which the Board of Governors had stipulated. The claimant agreed to those conditions and the continuation of the placement. There was no breach of contract.[315]As for c, the Amber Light Policy was not in place in January 2010. The claimant could not have any contractual rights arising from a policy that was not in existence at that time.[316]As for d, see our conclusions above. The possibility of study for an MPhil/PhD was kept open. There was no breach of contract.[317]As for the reason, for the sake of completeness, the tribunal is entirely satisfied that none of this had anything whatsoever to do with any of the protected characteristics relied on. It was for the reasons set out above. Failing adequately to handle or respond to the Claimant’s first formal grievance and appeal. Failing adequately to handle or respond to the Claimant’s second formal grievance and appeal. In particular, in relation to the grievances and appeals:a. Not following “Amber light”;b. Cancelling the appeal hearing for the grievance and appeal lodged in December 2011;c. Not allowing the Claimant to bring a companion or legal representative of her choice to meetings;d. Not permitting the Claimant to make presentations other than on one occasion;e. Not permitting the Claimant to challenge statements made against her;f. Not allowing minutes to be taken and/or falsifying and/or improperly editing the minutes – Issues 14), 15) and 16) a.-f.[318]As for a., as noted above, the Amber Light Policy was not in place in relation to the first appeal in 2010. It was by the time of the second decision in relation to the LMP, but we conclude that it was reasonable for the respondent to move to a Serious Concern Review meeting at stage 2 of the Policy, given the history of the placement prior to the decision, and that numerous informal discussions had already taken place. Stage 1 informal meetings would at that stage have been futile. The move to Stage 2 did not therefore amount to a breach of contract.[319]As to b., the appeal hearing in relation to the appeal lodged in December 2011 was put on hold by Westminster College because the Assessment Board decided that it was necessary for them to hold a meeting first. Given that a decision by the Assessment Board to terminate the claimant’s training would render superfluous the appeal to Westminster College about the decision to move straight to Stage 2 of Amber Light, the tribunal concludes that it was reasonable, and was not a breach of contract, for the appeal to Westminster College to be put on hold.[320]As to c., the claimant was entitled to bring a companion of her choice to the meetings. She did not have a contractual right to bring a legal representative to any of those meetings.[321]As for d., the claimant was able to fully participate at the first grievance appeal to the Board of Governors. We accept the observations of a number of witnesses, that her questioning of Revd Thorogood was excessive and was upsetting for him – hardly a sign that the claimant was not able to participate fully. As for the Assessment Board hearing, the claimant was entitled to and did set out in writing her response to the Westminster College decision. She was entitled to put her case at the Assessment Board hearing itself. Further, the claimant was entitled to attend the appeal hearing on 1 June 2012 and put her case.[322]As for e., the claimant was entitled to challenge statements made against her. The fact that she did not have the opportunity to cross examine witnesses at the Assessment Board meeting because they attended separately to her, did not amount to a breach of contract. She had no contractual right to cross examine them under the procedures.[323]Finally, regarding f., there was no contractual right of the claimant to minutes of meetings. We wholly reject the claimant’s allegation that minutes were falsified or improperly edited. We conclude that the allegation is unfounded. The claimant and her chosen companions were entitled to comment on minutes of certain meetings, and did so. There were no formal minutes of the Assessment Board meeting, but there was a clear record of the decision taken, and the reasons for it.[324]Finally, as for the reason, the tribunal is entirely satisfied that none of this had anything whatsoever to do with any of the protected characteristics relied on. Failing to follow the recommendations of Interhealth made 2011, the Psychologist made 2008, the Psychoanalyst made 2010, the Psychotherapist made 2011 + 2012 – Issue 17)[325]The claimant’s claims in this respect are misconceived. The reference to the 2008 report is to the Myers-Briggs test undertaken by all candidates. That was an opportunity for self-reflection. It did not contain any recommendations. A copy was not provided to the respondent.[326]As for the 2010 assessment with Jean Thompson, there was no written report. We only have the claimant’s account of what Jean Thompson said, which we do not consider to be reliable. In any event, none of what the claimant said Jean Thompson told her, amounted to recommendations. To the contrary, the claimant was saying that she was perfectly well, there were no underlying issues and that it was the actions of College staff that had made her unwell. Finally, as to Ms Smith’s reports of 2011 and 2012, they did not contain any recommendations either. They simply confirmed that the psychotherapeutic relationship was positive, and the counselling sessions were helping the claimant. There was no request in 2012 that the respondent continue to pay for them. Even if there had been, there was no contractual right to the counselling sessions being paid for indefinitely. Through their handling of the Claimant’s training contract, grievance and appeals, causing a breakdown in the Claimant’s emotional and physical wellbeing – Issue 18[327]To the extent this is a free standing claim for personal injury, it is not within the jurisdiction of the tribunal - see Article 3 of the Employment Tribunals Extension of Jurisdiction Order (England and Wales) Order 1994. Freestanding claims for personal injury must be pursued in the County Court /High Court.[328]To the extent that this is a remedy issue, it is not before the tribunal which is considering liability only at this stage. It is only if any of the claimant’s claims had been upheld that this issue would have become relevant. Wrongful dismissal[329]The claimant had been employed for more than two but less than three years at the date of her dismissal. The training contract did not give any specific right to notice. Under the Employment Rights Act 1996 the claimant is entitled to 2 weeks notice, based on her length of service. The training relationship having been terminated on 28 February 2012, the claimant was entitled to a maximum of two weeks notice pay after notification of that. The claimant was in fact paid until 15th of June 2012, and therefore no further payment is due to her.[336]In the alternative, to the extent that the claimant’s employment relationship did not formally end until she was she was notified of the decision of the appeal panel on 8 June 2012, the claimant had already been notified that her grant would cease on 15 June 2012, subject to the outcome of the appeal process. She was not therefore entitled to any more notice.[337]In any event, the reasons for the dismissal are set out above and the tribunal is entirely satisfied that the respondent was entitled to terminate the claimant’s training without notice, on the basis that her actions and behaviour amounted to a breach of the implied term of trust and confidence, a repudiatory breach. Direct disability discrimination - Issues 19) to 24) Was the Claimant a disabled person in accordance with the Equality Act 2010 (“EA 2010”) at all relevant times because of the following condition(s): PTSD, severe reactive depression, chronic severe Insomnia, severe Fibromyalgia, early and sudden onset of Menopause, Gastritis, Ulcers, late-onset Epilepsy, deterioration of visual Acuity, severe Occlusion with breaking of teeth, borderline diabetes? Issue 19)[338]Before examining this issue in more detail, the tribunal reminds itself that the question of disability has to be judged by reference to the claimant’s health and symptoms at the relevant time, not on how the claimant presented at the tribunal, or any current evidence we have about the effect of the various conditions upon her. Physical impairments[339]The tribunal concludes, in relation to the various physical impairments, that the claimant did not have a disability at the relevant time, i.e. between September 2009 and June 2012. There is no evidence that the claimant was suffering from severe fibromyalgia at the time. For example, there was no suggestion by any of the other witnesses the tribunal heard from that the claimant was seen to be suffering from extreme pain, if her body was touched. We have been provided with no evidence in relation to the impact of the early and sudden onset of menopause on the claimant, nor for how long any such symptoms lasted. As for gastritis and ulcers, whilst those matters became serious enough to result in several months’ sickness absence in 2011, those matters appear to have resolved in or about October 2012 such that the claimant was fit to proceed with her appeal. Whilst the tribunal accepts that in 2021, the impact of the late-onset epilepsy was substantial, the only evidence from the time of her training was that the claimant fainted on one occasion in Revd Durber’s study. Such evidence that there is does not therefore suggest that the effects of any of the physical impairments were substantial at that time.[340]We note that the July 2011 OH report confirmed that the claimant had told OH that she did not have any personal or home issues and was expected to get better within a few months. The report says: She and her Doctors are confident that she will recover fully over the next few months [2213]. That did not suggest that any of the conditions were long term. Further, we note that the claimant’s sickness absence in 2011 was said to be due to physical impairments, namely gastritis and related stomach problems, not mental health issues, which we consider next. Mental impairments[341]As for the mental impairments, namely complex PTSD, severe reactive depression and/or insomnia, again we note that what evidence is available from the relevant period of time suggests that the impact on the claimant was relatively minor. For example, whilst Revd Welch noted that the claimant was tearful on occasion, we have accepted her evidence that the claimant quickly recovered and was able to continue to participate in the meetings and the LMP.[342]The respondent received reports from Ms E Smith in July 2011 and in January 2012, which confirmed that the therapy sessions were helping the claimant. There was nothing in those reports to suggest that the claimant had a disability at that time, as a result of any mental impairment.[343]The claimant’s letter to Revd Bowman dated 2 February 2012 stated: You will have read in the reports you have requested and received from lnterhealth last September that ever since the summer I am very willing and fit to proceed with the hearings I was told to decide about. Moreover, even during the last year, I never stopped training and full-filling the duties of ministry I was offered. (sic)[344]Again, that did not suggest that the claimant was suffering from any mental impairment that had been or was having a substantial adverse impact on her ability to carry out normal day-to-day activities at that time. Rather, it indicated that the claimant was and had been reasonably fit and well.[345]For all of the above reasons, the Tribunal concludes that the claimant has failed to establish that at any point between September 2009 and June 2012, she had a disability, as a result of any physical or mental impairment, or a combination of them. Alternatively, did the Respondent at the material time perceive the Claimant to be disabled? - Issue 20)[346]We conclude that the respondent did not perceive the claimant to be disabled, nor did staff at Westminster College. During the claimant’s period of training, staff at Westminster College were understandably concerned to understand what it was that was causing the claimant to experience such difficulties in establishing and maintaining effective working relationships. An opportunity was arranged for the claimant to obtain a psychological assessment. The result of that was the claimant telling the Westminster College Board of Governors that there were no unresolved issues from her past and that her own actions were an understandable reaction to what had happened to her.[347]Whilst the ongoing difficulties did lead Westminster College staff to continue to question whether there were in fact some personal issues that needed resolving, and the claimant was considered to have an unusual personality, the staff rightly recognised that they were not qualified to make any formal diagnosis. Nor did they attempt to do so. Revd Proctor for example thought of the claimant as a person with a complex personality who was raising complex issues. That did not however amount to a perception that the claimant had a disability. Knowledge?[348]Even if the tribunal had found that the claimant had a disability or disabilities during the relevant period, we would have concluded, on the basis of all of the above, that the respondent did not know or could not reasonably have been expected to know that the claimant had a disability. Alleged discriminatory acts[349]The Claimant relies on the following alleged acts of discrimination, which are dealt with in turn. Whilst, because of our findings on the disability issue, it is not strictly speaking necessary to arrive at conclusions in relation to the following, we do so for the sake of completeness. As will be clear from these conclusions however, even if we had found that the claimant had a disability, her direct disability discrimination claims would not have succeeded. The matters relied on for unfair dismissal/wrongful dismissal/breach of contract – Issue 21) a.[350]We refer to our conclusions above in relation to those issues. The tribunal has already concluded that where the alleged incidents did actually happen as alleged, the reason for the treatment had nothing to do with any protected characteristic, including disability. We re-affirm that conclusion. In July/August 2011 both in writing and on the phone to the Claimant that if she required more sick leave after August/September she would be dismissed from her training contract – Issue 21) b.[351]We refer to our findings of fact on this issue above, which is to the effect that no such statement was made. This claim therefore fails. Dismissal – Issue 21) c.[352]We refer to our conclusions above in relation to the dismissal. We have concluded that the claimant’s dismissal had nothing whatsoever to do with any protected characteristic, including disability. We re-affirm that conclusion. Where relevant, did each of those acts constitute a detriment? Issue 22)[353]We note that Dr Morgan QC, on behalf of the respondent, accepts that the alleged treatment could conceptually amount to detriments in law. We accept that concession. However, given our conclusions in relation to the other elements of this head of claim, the allegations are not upheld. Was each act “less favourable treatment” The Claimant relies on the following comparators in respect of the following matters: (Issue 23)) Catherine LewisSmith – Circumstances alleged to be similar to the Claimant’s in that she had “severe incapacitating chronic Fatigue”, but was “allowed all adjustments she asked for, Cambridge Degrees and PhD and ordained 2016” – Issue 23 a.[354]In the light of our conclusions, there is no need to examine these issues in any detail. Revd Lewis Smith is not in our judgment an appropriate comparator. Revd Lewis Smith was ordained because she successfully completed her training. The claimant did not. In relation to reasonable adjustments, we refer to our findings and conclusions that there were no recommendations made by any of the treating psychologists/psychotherapists that the claimant saw before or during her employment with the respondent, save that the claimant be allowed representation at the formal hearings. That was allowed. Further, save for that one instance, neither the claimant nor any of those acting on her behalf, requested any reasonable adjustments. Yet further, we note that the list of issues does not in any event include any claim for reasonable adjustments. Finally, Revd Lewis-Smith was known to have had CFS and the College was aware of and sensitive to that. Liz Thomson – Circumstances alleged to be similar to the Claimant’s because she had “severe incapacitating mental health issues”, but was “allowed all adjustments she wanted and ordained around 2013” – Issue 23 b.[355]The same conclusions apply as in relation to Revd Lewis-Smith. Anne Lewitt – A non-disabled comparator in respect only of(i) the allegation concerning meetings with the Thames North Moderator; and(ii) ordination/dismissal – Issue 23 c.[356]As noted above, Revd Lewitt raised the lack of pastoral visits with Thames North Synod in a constructive manner and as a result, pastoral visits increased. The same comments apply as in relation to Revd Lewis-Smith, in relation to ordination/dismissal. And/or hypothetical comparators[357]We have already concluded that the reason for the alleged treatment had nothing to do with any protected characteristic. There could therefore no less favourable treatment by reference to hypothetical comparators. If so, was this because of the Claimant’s disability and/or because of perceived disability (i.e. was the treatment materially influenced by the protected characteristic)? Issue 24[358]In light of our firm conclusions above, no conclusion needs to be reached on this particular issue. Discrimination arising from disability - Issues 25) to 29)[359]The acts of unfavourable treatment relied on are the same as for direct disability discrimination. However, the section 15 claims must necessarily fail, because of our conclusion in relation to the disability issue. There can therefore be no ‘something arising from disability’ affecting any of the decisions made. Further, this claim would fail on the issue of knowledge.[360]There is strictly speaking no need to consider any of the other issues in relation to this head of claim. The tribunal would simply add that it is arguable that the claimant’s inability to establish and maintain effective working relationships with others, and/or her lack of insight into the effect of her actions on others and or her inability to accept criticism could be linked to a mental impairment. Whilst those clearly were factors that led for example to the claimant’s dismissal, the decision to terminate the claimant’s training was fully justified by reference to, amongst others, the legitimate aim of safeguarding those working for, and participating in the activities of the respondent (see the amended response, para 26L, [A:96]). Direct nationality/national origins discrimination – Issues 30) to 33)[361]There is no dispute that the claimant is of German nationality and origin.[362]The Claimant relies on the following alleged acts of discrimination. of contract – Issue 30) a.[363]We refer to our conclusions above in relation to those issues. The tribunal has treatment had nothing to do with any protected characteristic, including the claimant’s nationality/national origins. Refusing to allow her to lead Eucharistic or Baptismal Services and refusing to accept her German qualifications – Issue 30) b.[364]In relation to the leading of Eucharist and Baptismal services, the claimant needed special dispensation from the respondent to do so. That was not applied for or given during the claimant’s training because the claimant was not required to carry out such services.[365]As for the refusal to accept the claimant's German qualifications, we refer to our findings of fact. The claimant's Predakantin status expired in 2011. In any event, that status did not give the claimant the right to be treated as a person qualified to administer the Word and Sacraments for the respondent. Had that been the case, the claimant would not have needed to apply for training in the first place. The claimant could simply have asked the respondent to recognise the equivalence of that status. She did not do so because it is not equivalent. Ms Welch criticising the Claimant for allowing a homeless person to kiss her on the cheek – Issue 30) c.[366]We refer to our findings of fact on this issue. Any issues raised by Revd Welch about this matter were due to safeguarding. They had nothing to do with the claimant’s nationality/national origins. Ms Welch shouting at the Claimant for sitting on the wrong chair and saying it was because the Claimant was German – Issue 30 d.[367]We refer to our findings of fact on this issue. Revd Welch accepts that she snapped at the claimant about this issue and regretted doing so. The claimant was not told the incident happened because she was German. The tribunal is satisfied that Revd Welch’s reaction had nothing to do with the claimant’s nationality or national origins. Dismissal – Issue 30) e.[368]We refer to our conclusions above in relation to the dismissal. We conclude that the claimant’s dismissal had nothing whatsoever to do with any protected characteristic, including nationality/national origins. Where relevant, did each of those acts constitute a detriment?[369]We note that Dr Morgan QC, on behalf of the respondent, accepts that the alleged treatment could conceptually amount to detriments in law. We accept that concession. However, given our conclusions in relation to the other elements of this head of claim, the allegations are not upheld. Was each act “less favourable treatment” … The Claimant relies on Catherine Lewis-Smith, Liz Thomson, Matthew Stone, Anne Lewitt and Mark Robinson and/or a hypothetical comparator[370]We refer to our findings of fact relating to these comparators and our conclusions above. There was no less favourable treatment compared to the above individuals. Had they been asked to conduct Eucharistic or baptismal services, special dispensation would also have been required for them. If so, was this because of the Claimant’s national origins/nationality (i.e. was the treatment materially influenced by the protected characteristic)?[371]See our conclusions above. The alleged treatment had nothing whatsoever to do with any protected characteristic, including nationality/national origins. Direct philosophical belief discrimination – Issues 34 to 37[372]The Claimant’s relies on the following beliefs: freedom to live in celibacy and freedom to live a Christian and Protestant Faith. We conclude that both are protected philosophical beliefs. Revd Bradbury accepts that he was informed by students that the claimant was celibate so to that extent the respondent was aware of that.[373]The Claimant relies on the following alleged acts of discrimination. of contract – Issue 34 a.[374]We refer to our conclusions above in relation to those issues. The tribunal has treatment had nothing to do with any protected characteristic. That includes the claimant’s philosophical beliefs. Further, we fail to understand how it could reasonably be argued by the claimant that the respondent Christian organisation would discriminate against her because she wanted to live ‘a Christian and Protestant Faith’. Referral of the Claimant to a Sex Therapist in 2011 – Issue 34 b.[375]We refer to our findings of fact above. The claimant was not referred to a Sex Therapist. She was referred, via an independent organisation, the CMCS, to a Sexual and Relationship therapist. This claim is misconceived too.[376]Further, the claimant’s claim in relation to her belief in celibacy appears to be predicated on the suggestion that the respondent somehow disapproved of that and wanted to encourage her to engage in a sexual relationship by referring her to a sex therapist. If that is indeed the claimant’s case, the tribunal considers it to be a ludicrous suggestion. Yet further, the referral was the result of actions taken by CMCS independently, not the respondent. Refusing to allow her to lead Eucharistic or Baptismal Services – Issue 34 c.[377]We refer to and repeat our above conclusions on this issue in relation to the alleged nationality/national origins discrimination. Ms Welch shouting at the Claimant for sitting on the wrong chair and saying it was because the Claimant was German – Issue 34 d.[378]We refer to and repeat our above conclusions on this issue in relation to the alleged nationality/national origins discrimination. Dismissal – Issue 34 e.[379]We refer to and repeat our above conclusions on this issue in relation to the alleged nationality/national origins discrimination. Where relevant, did each of those acts constitute a detriment? – Issue 35)[380]Again, we note that Dr Morgan QC, on behalf of the respondent, accepts that the alleged treatment could conceptually amount to detriments in law. However, given our conclusions in relation to the other elements of this head of claim, the allegations are not upheld. Was each act “less favourable treatment”. The Claimant relies on: - Catherine Lewis-Smith, Liz Thomson and Anne Lewitt – Issue 36[381]We refer to and repeat our conclusions in relation to these comparators above, under the heading of direct disability discrimination. Matthew Stone – circumstances alleged to be similar because he also required adjustments to the LMP demands as a result of international placements and holidays, but was nonetheless successful in being ordained[382]Revd Stone was given the opportunity to go on international placements, because he made applications to do so. The respondent reasonably concluded that it would be beneficial to both him and the respondent for the placements to go ahead. He was ordained because unlike the claimant, he successfully completed his training. None of this had anything to do with any of the claimant’s protected characteristics, including philosophical belief. Mark Robinson – Alleged more favourable treatment in relation to reduction in work, not having to lead a whole service for the final assessment, and was successful in being ordained[383]We refer to our findings of fact above in relation to Revd Robinson and in relation to the claimant’s working hours. The suggestion that he did not lead a whole service for his final assessment was not put to him during cross examination and to the extent necessary, we find that he would have conducted a whole service. Further, Revd Robinson was ordained because he successfully completed his training. None of this had anything to do with any the claimant’s protected characteristics, including philosophical belief. And/or a hypothetical comparator[384]We have already concluded that the reason for the alleged treatment, if it occurred at all, had nothing to do with any protected characteristic. There could therefore no less favourable treatment by reference to hypothetical comparators. If so, was this because of the Claimant’s religion or belief (i.e. was the treatment materially influenced by the protected characteristic) – Issue 37[385]See our conclusions above. The alleged treatment had nothing whatsoever to do with any protected characteristic, including philosophical belief. Direct sex discrimination – Issues 38 to 41[386]The Claimant is female. The Claimant relies on the following alleged acts of discrimination. of contract – Issue 38 a.[387]We refer to our conclusions above in relation to those issues. The tribunal has treatment had nothing to do with any protected characteristic, including the claimant’s sex. Rod Boucher telling the Claimant at her assessed service “that a nice girl like you should not need to bother with big things like ministry” – Issue 38 b.[388]We refer to our findings of fact. We have found that the alleged words were not said. This claim is dismissed. Expecting the Claimant to lead more parts of services than male ordinands (para 35.b) (The Claimant identifies the following people as doing this: Ms Welch, Mr Bradbury, Mr Thorogood, Ms Thomas, Mr Bowman, 2010 + 2011 + 2012 Panels.) – Issue 38 c.[389]We refer to the comparator evidence above. It was not the case that the claimant was expected to lead more parts of services than male ordinands. This claim fails. Not permitting the Claimant to chair meetings (The Claimant identifies the following people as doing this: Ms Welch, Mr Thorogood, Ms Thomas, Mr Bowman, 2010 + 2011 + 2012 Panels) – Issue 38 d.[390]We refer to our findings of fact above. We have found that the respondent did not refuse to allow the claimant to chair meetings and this claim necessarily fails and is dismissed. Dismissal (including in particular taking into account Mr Boucher’s arguments and/or referring to the Claimant as “having problems with authority”) – Issue 38 e.[391]We refer to and repeat our above conclusions on the dismissal issue in relation to alleged nationality/national origins discrimination. We note that Mr Boucher did say in his report about the claimant that she was: too forceful at times; a lack of understanding of being under ministerial and college authority; an individualist more than a team player; she has difficulty taking directions from others; has difficulty keeping quiet and listening; too quick with her own solutions which takes little account of the (unknown to her) experience and history of others; I never have a sense that she may be open to being wrong; she needs to lead; is defensive when given a critique [4175].[392]The tribunal is satisfied that none of these comments were made because of the claimant’s sex. Rather, they were the honest and reasonable opinion of Mr Boucher, about the claimant, based on his experience of her. To the extent that they influenced the decision to terminate the claimant’s training contract, they cannot assist the claimant. In any event, even if we had concluded that they were based on the claimant’s sex, that could not have tainted the respondent’s decision (see CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439). Where relevant, did each of those acts constitute a detriment – Issue 39[393]See above - yes. Was each act “less favourable treatment” … The Claimant relies on Matthew Stone, Mark Robinson and/or a hypothetical comparator – Issue 40[394]We refer to our conclusions above in relation to the alleged comparators, in relation to the philosophical belief allegations. For the reasons given, they are not appropriate comparator and there was no less favourable treatment. If so, was this because of the Claimant’s sex (i.e. was the treatment materially influenced by the protected characteristic) – Issue 41[395]See our conclusions above. The alleged treatment had nothing whatsoever to do with any protected characteristic, including sex. Direct sexual orientation discrimination – Issues 42 to 45[396]It is the claimant’s case that she was perceived to be a lesbian. No evidence was put before the tribunal in support of the contention, save for the claimant’s bare assertion that it was the case. The allegation was not put to any of the respondent’s witnesses. If we understand the claimant’s case correctly, she is suggesting that the respondent concluded that if the claimant was celibate, it must be because she was a lesbian (see the amended particulars of claim at #31). There was no evidence put before the tribunal upon which such a tenuous link could be established. We conclude that no such link was made. Further, we conclude that there was no perception that the claimant was a lesbian. It follows that this claim must fail and there is no need to consider any of the other issues in relation to this head of claim. Victimisation – Issues 46 to 49[397]The clamant relies upon the following protected acts.a. Concerns about slurs against the Claimant’s race and belief raised to Ms Welch and Mr Thorogood from October 2009 orally and in writing. The Claimant relies on the following specific matters: “1) I raise concerns about Ms Welch's judgemental and discriminatory behaviour expressed in her repeated slurs “In my country/In my Church ...” first used (in front of me) aggressively with the “chair incident” and then quickly becoming her short cut to condemn much of what I do - I raise these concerns with Ms Welch (starting 25/10/2009), Mr Thorogood and Mr Proctor (11/11/2009); 2) As it does not stop I continue to raise these concerns plus that the contractual adjustments for me not being British born and URC bred is all the time explicitly forbidden, i.e. that I needed to be allowed to live and train in URCRCL I raise with Ms Thomas, Mr Bowman, Ms Sardeson (3+4/2/2010), Revd Gould as District/Area Chair (30/3/2010). 3) I raise the concern about Ms Welch's continuing racial discrimination also on 4/1/2011 to Mr Thorogood and via the Board to Ms Thomas and Mr Bowman”.b. Concerns about breaches of her contract raised to Mr Proctor, Mr Brad[bury], and Mr Thorogood both orally and in writing from 2009 onwards. The Claimant relies on the following specific occasions: “1) I raise profound concerns that I am supposed to start with the final year and not in URCRCL breaching what the contract, assessment, and need for adjustment had stated (30/1/2009) to Mr Thorogood. 2) I raise profound concerns that the LMP supervisor neither honours nor even plans to honour the contract (28/9/2009) to Mr Thorogood; 3) I raise all of these concerns and additional ones regards all the disabling breaches of and exclusions from my contract to Mr Proctor and Mr Thorogood (29.1.2010)”;c. Concerns raised orally and in writing from 2010 onwards with Mr Proctor, Mr Thorogood, Ms Sardeson, Ms Thomas and Mr Prasad about people being misled into thinking the Claimant was disabled with personality disorder issues. The Claimant identifies the following specific occasions: “1) I raise these concerns with and request permission from Mr Thorogood and Mr Proctor (29/1/2010) to be professionally psychologically assessed. 2) I raise these concerns formally with and request the contractually promised and identifiable help and procedures from Mr Bowman (via his PA Mandy Adams), Ms Thomas, Mr Prasad (via his PA Sue Russel), Ms Sardeson (all 3+4/2/2010), and Ms Thomas (19/4/2010). 3) I repeat these concerns with and request the contractually promised proceedings from Ms Thomas and Mr Bowman, directly and via Interhealth (21/7/2011, 29/9/2011)”.d. The Claimant’s first grievance;e. The Claimant’s first appeal;f. The Claimant’s second grievance;g. The Claimant’s second appeal;h. The Claimant’s claim in these proceedings.[398]In relation to a., b. and c. above, none of those matters were put to the respondent’s witnesses by the claimant during cross-examination. Were the tribunal to reach firm conclusions in relation to each of them, further substantial time would inevitably have to be spent finding the necessary facts in relation to the various allegations. Further, in relation to matters d to g, the claimant has not referred us to any particular sections of those documents, with relevant page reference numbers, in which it is alleged that she raised Equality Act claims. As to h., it is not in dispute that the claimant’s ET claim amounts to a protected act.[399]The tribunal does not consider that it is proportionate or necessary to reach any conclusions on the protected acts set out at a. to g. above. In relation to the alleged acts of victimisation which pre-date the dismissal, the tribunal has been able to reach firm conclusions as to the reasons for any of the alleged acts which the tribunal found did occur. Our conclusions in relation to those matters have already been well canvassed above. The claimant has not come anywhere near to establishing that any of the matters set out in the alleged protected acts affected the reasons for any of the alleged treatment. They were for the reasons discussed above and just as they had nothing to do with any protected characteristic, nor did they have anything to do with any purported protected disclosure.[400]The Claimant relies on the following alleged acts of victimisation: The matters relied on as unfair dismissal/wrongful dismissal/breach of contract (in each case as occurring after a protected act) – Issue 47 a.[401]See above. We are entirely satisfied that, just as those matters had nothing whatsoever to do with any of the claimant’s protected characteristics, nor were they in any way influenced by those matters alleged to be protected acts. Dismissal - Issue 47 b.[402]As above. The claimant relies on three alleged acts of victimisation post-termination as follows. First, Ms Durber, Mr Prasad and Mr Templeton telling pulpit organisers that the Claimant was not available any more (para 38.b.1) and that because she lodged the Employment Tribunal and had lodged Appeals she was not allowed to preach and lead services etc – Issue 47 a.[403]This claim fails for two main reasons. First, the decision was made by the Ponds Square Chapel, which has a separate legal status to the respondent. The claimant has not presented any evidence to prove that the decision of the local church was influenced in any way by the respondent. Revd Templeton was the Minister of the church, which was the claimant’s local church. He had acting in a supportive role towards the claimant, during her dispute with the respondent.[404]Second, the decision taken by Ponds Square Chapel not to invite the claimant to preach, whilst her Employment Tribunal claim was ongoing, was taken because the church was anxious not to be seen to be endorsing the claimant, whilst she was in dispute with the wider church. On the authority of the House of Lords decision in Khan, that did not amount to an act of victimisation. Second, Mr Templeton and Mr Prasad ‘sabotaging’ the Claimant’s engagement as Hospital Chaplain (para 38.b.2);[405]We refer to our findings of fact above. No convincing evidence has been put before the tribunal to suggest that the respondent had anything whatsoever to do with the decision by the Trust not to progress the claimant’s application for the role of Hospital Chaplain. This claim therefore fails on the facts and is dismissed. Third, not providing the Claimant with Pastoral Care following her dismissal (para 38.c).[406]The evidence that the tribunal has been referred to, shows that the respondent did contact the claimant in order to provide pastoral care, following the rejection of her appeal against the termination of the training contract. We have no evidence before the tribunal, other than the claimant’s bare assertion, which we find to be inherently unreliable, that no pastoral care was provided following her dismissal. This claim therefore fails on the facts and is dismissed. Where relevant, did each alleged act constitute a detriment?[407]Again, the tribunal accepts that the alleged acts could conceptually amount to detriments in law. However, given our conclusions in relation to the other elements of this head of claim, the allegations fail. If so, did the Respondents do the act(s) because the Claimant had done a protected act and/or because the Respondent believed the Claimant had done, or might do, a protected act?[408]See above. Nothing more needs to be said in relation to this issue. Protected disclosures / whistleblowing – Issues 50 to 53[409]We note in relation to this head of claim that the claimant relies upon the same disclosure of information she alleges she made in relation to be protected acts. Further, that the alleged detrimental treatment that the claimant relies on is the same as for the victimisation claim.[410]The claimant did say during the hearing that she was not aware that she had made any whistleblowing claims. Nevertheless, the tribunal decided to keep it as an issue which we would need to decide in due course, rather than invite the claimant to withdraw the claim, so that they could be dealt with on their merits, insofar as that was possible.[411]Our conclusions in relation to the substance of the claims, as to whether or not there was any connection before the matters which the claimant alleges she said or did, and the alleged treatment, is exactly the same as in relation to the victimisation claim. In other words, there is no connection whatsoever and in the absence of any such causal link, the claims must necessarily fail and be dismissed.[412]In those circumstances, it is not proportionate or necessary to consider whether the claimant made any protected disclosures. In any event, the claimant has failed to provide any evidence or make any submissions in relation to the question as to whether or not she held the requisite subjective belief that the information disclosed tended to show one or more of the matters set out in s 43B(1), nor what those matters are. In those circumstances, it would not have been open to the tribunal to conclude that any of the alleged disclosures of information amounted to protected disclosures. Harassment related to disability/perceived disability/nationality/national origins/religious or philosophical belief/sex/(perceived)sexual orientation – Issues 54 to 57[413]The conduct relied on by the claimant is as follows. The matters relied on for unfair dismissal/wrongful dismissal/breach of contract[414]We refer to our conclusions above as to the reasons for any of the alleged treatment which we found had occurred. We have arrived at firm conclusions that those reasons have nothing whatsoever to do with any of the protected characteristics relied on. We similarly conclude that those matters were in no way related to any of these protected characteristics either. The matters relied on as acts of discrimination[415]We have no hesitation in arriving at the same conclusion as above. Prohibiting the Claimant from contact with a list of individuals to whom she was not allowed to speak, specifically: Mr Thorogood, and later in addition others “in Authority” e.g. Ms Durber, Mr Bowman forbid me to share truthfully with any other Ordinand about anything bad going on in my “Training”. When I do e.g. in Nov 11th, 2009, and Nov 4th, 2010, it is used in dismissing me; Misinterpretation and misunderstanding. Did not forbid her - Issue 54 c. i.[416]We refer to our findings of fact above. The claimant was not given any such instruction. This is yet another example of her misunderstanding /misinterpreting what was said to her. This claim fails on the facts and is dismissed. After Revd Jim Gould raises his own formal concern with e.g. the then Head of the Church and Ms Thomas, on how I am treated, the massive breaches of my contract, the utter unsuitability of Ms Welch and Mr Thorogood I am told by e.g. Mr Thorogood that it will be thought of disfavourably if I continue contact with Revd Gould, starting Spring 2010 – Issue 54 c. ii.[417]Again, the tribunal has no evidence before us in relation to this allegation, save for the claimant’s bare assertion to that effect. For the reasons already canvassed at length above, we do not consider the claimant’s account to the credible or reliable. In his witness statement at paragraph 285, we note that Revd Thorogood states: I have no memory of saying Felicitas should not contact Revd Gould. If the LMP was restarting at Clapton Park I may well have said that there was no need to continue discussion about an LMP elsewhere.[418]On the balance of probabilities, we conclude that Rev Thorogood’s recollection is more reliable than the claimant’s. This claim fails on the facts and is dismissed. Mr Prasad is told by URCRCL and URC Headquarters (the Respondent has refused to disclose by who exactly, Ms Thomas and Mr Proctor were mentioned) to tell the German Synod not to employ me anymore, not to meet me and to inform them of the perceived Psychopathological Personality Disorder and problems with authority I am supposed to have. He and one of the panel members/clerks/chairs dismissing me from the URC complies with that demand on at least three occasions in 2015 – Issue 54 c. iii.[419]In its Judgment dated 1 October 2019, in relation to the claimant’s claim against the Synod of German-speaking Lutheran, Reformed and United Congregations in Great Britain and another (ET claim number 2200328/2016) the tribunal concluded: 71 On 10 September 2015 Mr Kostlin-Buurma held a one-day meeting at his home with representatives of the congregations in his region. Such meetings take place twice-yearly for the purpose of planning future work and activities. Under the Church's rules, it is for the congregations to decide what work they want the Pastor(s) to undertake. Mr Kostlin-Buurma proposed increasing the number of church services offered provided that he was assured of adequate Pastoral Assistant support. The representatives of the congregations disagreed. They considered that increasing the workload would make it difficult to find a successor at the end of Mr Kostlin-Buurma's tenure of the Senior Pastor role. They also determined that he must personally lead church services at least every other month. 72 The effect of the parish representatives' decisions was that, unless some separate project or other source of work could be found for her, Miss Grabe's employment under a 50% contract could not be justified. She had been employed on the footing that she would be preparing and officiating at services on a monthly basis but would now only be required in alternate months. The new circumstances argued for the substitution of a 25% contract. …[Ms Grabe was subsequently notified of this proposal] 76 By an email sent on 22 September 2015 addressed to "Friends in the Synod Council" and others, Miss Grabe stated, apparently in reliance upon advice received from ACAS, that the Church's proposal to terminate her contract was for various reasons unlawful, as were a number of the terms in the draft (50%) contract. On the latter aspect, she revived earlier points (already mentioned) about her hours and her rate of pay. She then proposed that if, after taking legal advice, the intention was still to reduce her to a 25% contract, it should be on the following terms:(1) The five "worship service months" per annum must be consecutive.(2) At least three of the seven consecutive "service-free months" must be in summer.(3) She must be permitted to celebrate Holy Communion "at least one service month" each year.(4) The Synod must otherwise in all respects comply with UK law.(5) The Synod must offer the next three "potential vacancies" for Pastoral Assistant jobs to her before advertising them.(6) The Synod must "instruct" the URC, the Evangelical Church of Germany or some other denomination to ordain her. 77 Mr Kostlin-Buurma forwarded Miss Grabe's email the same day to the members of the Synod with the observation that her response had made it clear to him that he could not work with her. Accordingly, he proposed that her contract be terminated on 31 October 2015 and that she be released from performing any further with work with effect from 1 October 2015. The Synod members agreed. One, Mrs Cramer, remarked in an email to her colleagues that Miss Grabe's message had set all her alarm bells ringing. Others expressed similar sentiments.[420]The tribunal concluded that the claimant’s subsequent dismissal was not discriminatory. All of the claimant’s other claims were dismissed. Whilst we take note of the fact that the claimant has appealed against that decision, we accept and adopt its conclusions, unless and until her appeal succeeds. It is clear from the passages quoted above that the claimant’s dismissal by the German Lutheran Church had nothing to do with anything said or done by the respondent. It was an independent decision made by them and in particular, Mr Kostlin-Buurma’s conclusion that he could no longer work with the claimant and concerns by members of the Synod about the terms proposed by the claimant. None of those reasons relate in any way to any of the protected characteristics relied on by the claimant in this claim. This claim fails and is dismissed. Utilising defamatory statements against the Claimant, in particular: Publicly criticising the Claimant (para 43.c) (The Claimant relies particularly on: “a.1) September 2009 – June 2012, The Respondent also was using the hurtful and discriminatory statement “in this country we do it differently”, “in my country…”, “in my Church ...” whenever they tried a short-cut to put me down. This was done by Ms Welch, Ms Durber, the February 2012 Panel and sanctified by Mr Thorogood, Mr Bradbury, Mr Bowman, Ms Thomas.[421]Bearing in mind our specific findings of fact above and our general conclusion on the lack of reliability and credibility in relation to the claimant’s factual assertions, we find that these allegations did not happen as a matter of fact. This allegation therefore fails and is dismissed. 2) 25/10/2009 when I sat down on a different chair to the one Ms Welch would have used to sit on during a service, she shouted at me across the Church before the congregation at my first Sunday Morning Service she was attending, and she then used those racial slurs afterwards as “excuses” on why she had acted as she had and why I had been “wrong” to do as I did.[422]We refer to our conclusions above in relation to the direct discrimination claims in relation to the same facts. Just as we have concluded that this incident was not because of those protected characteristics, we conclude that nor was it related to any of them. 3) 28/2/2012 when I was shouted at and refused greetings and introductions and instead of stopping some of the aggressions like from “Val”, these people defended themselves by stating “in my church/in my country”. It is discrimination or in the alternative defamation to pretend that I do not know this country, this church.[423]Bearing in mind our specific findings of fact above and our general conclusion on the lack of reliability and credibility in relation to the claimant’s factual assertions, we find that these allegations did not happen as a matter of fact. This allegation therefore fails and is dismissed. 4) January 2010, 21/1/2010, Mr Proctor cuts my way of escape short in a communal hallway and declares to all who are listen: “Your (personality) problems are too heavy for the URC to deal with, but it is amazing how far you have come considering where you have come from.””[424]We have found as a fact that those words were not used by Rev Proctor and this allegation therefore fails and is dismissed. Criticising the Claimant for being “gregarious” with the congregation before and after services (para 43.i.1) specifically October 2009 – December 2010, 1) 21/11/2010 by Mr Rod Boucher, Ms Welch, Mr Bradbury, and then 2) January 2011, February 2012 used by Mr Thorogood, Mr Proctor, Ms Thomas, Mr Bowman to dismiss me[425]As above. Ms Welch criticising the Claimant for allowing a homeless person to kiss her on the cheek[426]We refer to our conclusions above in relation to the direct discrimination claims in relation to the same facts. Just as we have concluded that this matter was not because of those protected characteristics, we conclude that nor was it related to any of them. To the extent this was raised at all, it was raised as a safeguarding issue. Refusal to deal adequately or reasonably with Revd Tony Haws’ request in Spring 2012 that the Respondent withdraw defamatory statements about the Claimant from the Respondent’s dismissal papers[427]The claimant has not clarified in evidence or submissions what the alleged defamatory statements are. We conclude that the record of the decision of 28 February 2012 was an honest and reasonable record of the reasons why the claimant’s training was terminated and there is no reason why they need to be rewritten. They are in no way related to any of the protected characteristics. Subjecting the Claimant to Occupational and Psychological Health Assessments but not following the health official’s recommendations;[428]We refer to our conclusions above in relation to the direct discrimination claims in relation to the same facts. Just as we have concluded that this matter was not because of those protected characteristics, we conclude that nor was it related to any of them. To the extent that this was raised at all, it was raised as a safeguarding issue. The dismissal[429]We refer to our conclusions above in relation to the direct discrimination claims in relation to the dismissal. Just as we have concluded that the dismissal was not because of those protected characteristics, we conclude that it was not related to any of them either. If so was that conduct unwanted?[430]The tribunal accepts that conceptually, the alleged treatment could be classed as being unwanted. This does not however assist the claimant, because of our above conclusions. If so, did it relate to any of the protected characteristics?[431]See above. No conclusion needs to be reached on this issue. Did the conduct have the purpose or (taking into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect) the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[432]Due to our above conclusions, the harassment claims necessary fail, and it is not necessary to consider or arrive at any conclusions in relation to this issue. Time limits / jurisdiction issues Were all of the Claimant’s complaints presented within the time limit set out in section 123(1)(a) of the EA 2010?[433]Since we have concluded that none of the claimant’s claims succeed, it is not necessary, or proportionate or indeed possible, to determine the time limit issue. Overall Conclusion[434]For all of the above reasons, the claimants claims fail in their entirety and are dismissed. We sincerely hope that this will now allow all of those involved in these proceedings to move on and experience a sense of closure in relation to them. Employment Judge A James