[1]Following a leak to the media about a well-known member of the Party, the claimant was suspended from her work as an investigating officer in the Governance and Legal Unit (LGU) of the Labour Party, on suspicion of unauthorised access to data. After investigation she was dismissed for gross misconduct on 4 March 2024. She had been cleared of suspicion of leaking, but it was found she had accessed data other than for her work, and had misled managers about how she found out about the leak. A wide ranging grievance about race discrimination that she had lodged shortly after being suspended was then investigated but not upheld. Claims and Issues[2]The claims before the tribunal are unfair dismissal and race discrimination. Claims of discrimination because of religion and belief, and dismissal for making public interest disclosures, were withdrawn by the claimant’s solicitors on 16 February 2023.[3]The agreed issues for this hearing are: Unfair Dismissal 1. What was the reason (or, if more than one, the principal reason) for the Claimant’s dismissal on 4 March 2022?a. Misconduct (Respondent’s case)b. Race (Claimant’s case). 2. Was the reason for dismissal potentially fair - s 98 ERA 1996?[4]If so, was the dismissal fair in all the circumstances - s 98 (4) ERA 1996?a. Did the Respondent’s managers genuinely believe the Claimant had committed the misconduct?b. If so, did they have reasonable grounds for such belief?c. Had the Respondent carried out as much investigation as was reasonable in the circumstances?d. Did the Respondent follow a fair procedure?e. Was dismissal within the band of reasonable responses?[5]If unfairly dismissed,a. Would the Claimant have been dismissed in any event? If so, when?b. Did the Claimant contribute to her own dismissal? If so, to what extent? Direct race discrimination[6]The Claimant identifies as a Brown British Muslim of South Asian and Bengali heritage.[7]Did the Respondent treat the Claimant less favourably than a comparator? The Claimant relies on Lee Gingell, Josh Heath, Richard Bennett and TP as white comparators and also on a hypothetical comparator. The Claimant relies on the following less favourable treatment:a. her suspension;b. the conduct of the disciplinary investigation, in particular the length of time taken; andc. her dismissal.[8]If the Respondent did treat the Claimant less favourably than a comparator (real or hypothetical), was the difference in treatment because of her race?
Evidence
[9]The tribunal heard evidence from: Halima Khan, the claimant Alex Barros-Curtis MP, Executive Director-Legal Affairs until the recent Parliamentary election, who had initiated the investigation Sinead James, HR manager Anna Hutchinson, former Executive Director-Elections, Field and Delivery, who dismissed the claimant Martin Beecroft, Executive Director- People and Talents, who was part of the appeal panel.[10]There was a hearing bundle of 728 pages. We read those documents to which we were directed. Omitted from the bundle were an internal report leaked to the press in April 2020, the EHRC report into complaints handling and antisemitism, released in the autumn of 2020, and the report of Martin Forde investigating the matters in the leaked report, which the claimant told us was on the labour Party website. We understand they are documents in the public domain and they are referred to obliquely in some witness statements, but not being in the hearing bundle we have not been able to read them, although It seems they contain material about complaints handling which might helped us understand the parties’ cases. Disclosure Concerns[11]The tribunal is concerned that the respondent’s disclosure of relevant material has not been as conscientious or thorough as it should have been. An email of 18 June 2021 from a media organisation was an important feature in the decision to suspend the claimant, but it was not disclosed, and only came to light when Alex Barros-Curtis was asked about it in the course of the evidence, as the email was mentioned in the investigator’s interviews, but in her report she did not list it in the documents she had been shown. He proceeded to look it up on his laptop, despite being in the middle of giving sworn evidence, astonishing behaviour for a practising solicitor. We are concerned that there may have been communications between managers and the investigator which have not been disclosed in these proceedings (how else did she know about the email of 18 June) although clearly they are relevant and necessary to understanding the respondent’s decisions and their fairness. It should not be necessary for a party to proceedings to ask for a document (as Mr Barros-Curtis suggested to the claimant in the hearing).[12]A Subject Access request was made by the claimant’s former solicitors in March 2023, but was never answered. (In July 2024 the respondent’s solicitors said it had ‘only recently’ come to the attention of the respondent’s HR department). Such requests are made under the Data Protection Act, rather than procedural rules, but they can be a useful source of information to litigants particularly those acting in person. In addition, none of the grievance investigation material was disclosed to the claimant until the respondent was ordered to do so at a case management hearing on 10 July 2024, barely three weeks before this final hearing, despite a request for specific disclosure made in March 2024. even though the decision on the claimant’s appeal against dismissal had been held up so that the grievance investigation could conclude. Nor do we have material documents about the named comparators. The respondent has kept its cards very close to its chest.[13]There was a useful cast list and chronology. Conduct of the hearing[14]The hearing was open to the public, and several observers, including some journalists, attended from time to time. Copies of the witness statements and the documents bundle were made available to observers by means of a link in the chat room during the hearing, subject to a warning that they must not be copied or used for any purpose other than following the hearing.[15]At the start of the hearing the claimant applied for orders to be made for the attendance of four witnesses. She did not have a witness statement for any of these witnesses, and had not discussed their evidence with them. She did not have addresses for service, were orders to be made. One was another former employee who had been suspended at the same time as her, and later dismissed, for unauthorised use of data. Others had featured in her grievance, but it was not clear how their evidence would assist our findings on the disciplinary process and whether it was fair or unlawfully influenced by the claimants race. Witness orders were not made on the basis that the evidence appeared to be of limited usefulness, no explanation was given why the application was made so late, they would likely hold up completing the case in the time allocated, there had been five case management hearings and witness evidence had been discussed with her, including at the last hearing on 10 July, and there had been two late postponements of the final hearing. Some witnesses might require an order to enable them to give evidence after settling claims, but taken in all, making orders now was disproportionate to the issues we had to decide when the late application jeopardised the hearing.[16]The tribunal is concerned that (as we learned on day 4) the respondent’s Martin Beecroft was asked by one former colleague (who would not have been able to give evidence about the disputed events, and was not one of those for whom the claimant sought an order), if she could give evidence without breaching the terms of an agreement she had made with the respondent. He told her to seek advice, but only after telling her that her evidence was not relevant to the case. This may have deterred the witness, and was better not said. The tribunal adds that no court or tribunal has made a “non-disclosure order” (as the claimant believes) affecting these potential witnesses. Any requirement of confidentiality arises from an agreement between them and their employer and would not prevent them giving relevant evidence under a witness order.[17]The claimant had had some legal advice in the course of proceedings, but has not had solicitors since July 2023 (when the final hearing was first postponed). She instructed counsel for a case management hearing in January 2024, but has not been represented at this hearing. The tribunal tried to assist by allowing breaks for additional preparation and review, and help formulating questions.[18]Counsel for the respondent had prepared a useful preliminary skeleton argument setting out the relevant law and a succinct account of the respondents case. We heard oral submissions from the parties at the conclusion of the evidence and then adjourned to make a decision.[19]The respondent applied under rule 50 of the Employment Tribunal Rules of Procedure for the six comparators, for the subject of the complaint, and one other who had been said to have leaked information about this. At a hearing on 10th July Employment Judge Klimov declined to order that any of them should be anonymous or subject to restricted reporting orders. All were referred to by name therefore in the course of the public hearing. However, we have decided that in the reserved judgment we will refer to two of the comparators and the one other by initials only. This is because some of the facts found might suggest wrongdoing on their part, they have not been party to proceedings, or given evidence or had an opportunity to put their side of the story, while the written judgment will be available on the public website for all time. Having heard the case, we are in a better position than the previous judge to assess what is proportionate. Balancing their right to privacy against the requirement for open justice, we decided open justice was little infringed by this limited degree of anonymity.
Findings of Fact
[20]The Labour Party is a political party registered in the United Kingdom with the Electoral Commission. The respondent to this claim is its National Executive Committee (NEC), the Party’s governing body and administrative authority.[21]When the claimant was suspended from work in July 2021, there were 350 employees. By December 2021 the headcount had been reduced to 262 by means of a voluntary severance scheme.[22]The claimant was employed from 11th March 2019 as an investigations officer in the Governance and Legal Unit (GLU), initially on a 12 month fixed term contract, made permanent in February 2020. Her job was to investigate complaints made about members of the Party and present the cases to the NCC for decisions on these complaints. In the meantime the member could be administratively suspended. The GLU then had 11 investigators, allocated one to each region, although by the time the claimant was suspended numbers had reduced to 7, not enough to allow one investigator per region. The claimant’s line manager, Patrick Smith, described her as: “very professional, she produced good work, she was someone if you were looking at something complex I felt I had confidence she could deliver”.[23]It was not an easy job. About 80% of the complaints, we were told, were about anti-Semitism. A few were about Islamophobia. We also heard in evidence that the claimant, as with some other investigators, was sometimes given a hard time before the NCC. Her manager (Patrick Smith) explained that NCC panels were unhappy about a proposal (which we believe came from the EHRC report in autumn 2020) to disband them, and took it out on the investigators. He also confirmed a complaint by the claimant that when she came to work one Monday morning in February 2020, not knowing that over the weekend someone for whose recent expulsion from the Labour Party for antisemitism she was responsible, had died of a stroke, a senior Governance officer had joked about GLU: “murdering anti-semites, saying “We’re anti-semite killers”. The claimant was very unhappy, both about the news, and the tasteless attitude of the colleague.[24]Nor was it an easy place to work. It was riven by politics and factionalism. The claimant was not herself a member of the Party. Early on she was told by a colleague that BAME staff were thrown under the bus. We do not know what this was about, but this remark contributed to the claimant’s mistrust of colleagues. She adds that in any case the GLU as a whole was extremely busy because of media pressures, leaving little time to form relationships, and was also viewed with hostility within the Party “because it is seen as a secret operative unit”.[25]Staff morale had also deteriorated after losing the December 2019 general election.[26]Parallel with the EHRC enquiry, the Labour party had prepared an internal report on the workings of the GLU, and in particular its handling of antiSemitism. We have not seen this report, but understand that it reflected factional differences between Blairites and Corbynites within the party. In April 2020, around the time that Keir Starmer was elected leader of the Labour Party, the internal report was leaked to the press. The claimant was very unhappy that of the 11 investigators in the GLU at the time, she was the only one named in the report, and she was the only member of the unit from an ethnic minority group. She felt her identity was being used to score political points about diversity. According to the claimant (as the report is not in the hearing bundle we do not know if this is accurate quotation) the report also contained “WhatsApp exchanges between senior Labour Party officials making racist and violent comments about black and Muslim members”.[27]Staff morale was further impacted when the Equality and Human Rights Commission (EHRC) reported in the autumn of 2020. This is another report that is not in the bundle. Mr Beecroft told us that the report concluded the Labour Party was guilty of racist anti-Semitism. The party was put into special measures to take a list of actions to an agreed timetable. The complaints process was to be changed. The EHRC required complaints to be decided by independent panels, rather than subcommittees of the NEC, so as to exclude politics from decisions. This proposal was put to the party membership at the September 2021 conference. The 2020 Named Comparators[28]Arising from the April 2020 leaking of the internal report, on 3rd July 2020 Alex Barros-Curtis was told by Joseph Perry that he was investigating potential data breaches on the part of three employees, Josh Heath, Lee Gingell and Richard Barrett, who in May and June 2020 had accessed the party’s Member Centre (where data is held on members) to look up some of the individuals named in the report. His evidence on what action the Party took appears second hand, as he continues: “I understand that”, but he reports that each had looked up information “out of nosiness”, but had not saved, shared or used it. The data breaches were reported to the ICO on 3rd July 2020. The three staff members’ access to the Member Centre was removed, and each undertook data protection training before that access was reinstated. Mr Barros-Curtis says that each of the three was spoken to by their line managers.[29]Mr Barros-Curtis said the source of his information was “my records”, but if there are any documents on this process held by the respondent, they have not been disclosed. Data Policy[30]Within the hearing bundle there is a confidentiality policy of seven pages dated 1st January 2019. (There is also a data security and confidentiality policy, undated, of 6 pages).[31]The 2019 policy emphasises the need to confine communication to secure systems, in effect the party’s own Outlook software, and access via a VPN system, and “any breaches will be investigated and dealt with under the disciplinary policy where appropriate”. Managers are asked to check the login records when visitors and volunteers have used the system. Then there is a section headed “Careless Talk”, asking managers to maintain the awareness of employees about information security and the risk of being overheard: “Great care should be taken when discussing sensitive issues within the premises of the Labour Party, but more so when in public. Confidential issues shall not be discussed within hearing of the public, particularly when travelling, in restaurants, bars etc”.[32]Next it says “users should not attempt to access the Labour Party systems without authorisation. Any attempt to gain unauthorised access to Party systems, successfully or otherwise, will be investigated and dealt with under the disciplinary policy where appropriate, and may constitute a criminal offence as detailed in the Computer Misuse Act 1990”. Users should be aware that, even if they have authorised access to the computer system, they may still commit a criminal offence if they exceed their authorisation levels within that system. Users are limited to access only those parts of the computer system which are needed in order to carry out their normal duties. Then: “users may not pass any information obtained from the computer or the network to unauthorised persons, or provide access to such information to a third party for unauthorised use”.[33]The respondents say that after the leaking of the internal report the data policy was tightened up by means of line managers speaking to their teams about it. The claimant does not recall such meetings nor any data policy training on what use was authorised and what was not. There are no documents to support this assertion.[34]That is an undated disciplinary policy. As well as setting out procedures, it gives examples of what is viewed as misconduct and what is gross misconduct. Gross misconduct includes “unauthorised use, processing or disclosure of personal data”, “a serious breach of confidence”, and “serious misuse of the Labour Party's property or name”. Diversity and Inclusion[35]There is no evidence from the respondent about ethnic breakdown of the workforce. The claimant told the grievance investigator there were few BAME employees (about 50) at the time of the leaked report, and many of those were let go as fixed-term contracts expired in 2020, so down to 20 or so. She was the only ethnic minority investigator in GLU. The UK census of 2021 records that 18% of the population identifies as non-white.[36]She was probably right about there being few ethnic minority employees because when in June 2020 David Evans was appointed General Secretary of the Party, one of his stated main aims was for the party to win the next election., and another was to improve diversity and inclusion in the party. He met the BAME staff network and sought their help to establish a Diversity and Inclusion board, work to be led by his deputy Helene Reardon Bond.[37]The claimant had joined the Labour Party's BAME (black and minority ethnic) staff network in September 2019. She was elected secretary, later chair, around June 2020. From then she worked with other members of the network to draft Codes of Practice for the Party, one on Islamophobia and another on Anti-Black racism. In November 2020 the network recommended Islamophobia training. The network is a voluntary association within the Labour Party and this was not part of her work. Nevertheless, the claimant’s line manager (Patrick Smith) allowed a reduction in her caseload to accommodate what she was doing. Workload[38]GLU caseloads were very high. Patrick Smith told the grievance investigation in March 2022 that until 2021 investigating officers would manage their own caseload, so he could not say how the claimant’s caseload differed to that of her colleagues. He added: “we don't have a proper case management system... everything has been managed by spreadsheet”. He knew which complaints were ongoing and whether the member complained about had been “administratively suspended” while the investigation was ongoing, because he had to prepare a quarterly report on complaints. There was no formal way of allocating cases to individual investigators, other than the expectation that an investigator would take complaints arising in their own region. It was not possible to tell by looking at a file to whom the case had been allocated. The information had to be pieced together by checking emails. Ben Jameson (Head of complaints, appointed in March 2021, but not managing the claimant) told the disciplinary investigator that the claimant had 579 open cases in May 2021. When he started, the GLU as a whole had 2,500 open files and was getting 30 new complaints a day, and there was a backlog of 12,000 emails. He agreed with senior managers there should be triage system and a target of 20 cases per investigator. More staff were seconded to GLU pending a recruitment process. By May 2021 these changes had started but were not yet effective. The tribunal comments that with these caseloads it is not surprising that staff felt overwhelmed.[39]The claimant had applied in January for the Head of Complaints post that went to Ben Jameson. She was interviewed on 1 February 2021 and was the runner up.[40]Ben Jameson met the claimant in March 2021 to discuss GLU complaints handling. He indicated she should reduce the time spent on non GLU work. He became concerned that she was not actioning work when requested. He gives as examples that he asked her to review an anti-Semitism case on the 10th March, chased it up on 31st March, when she recommended suspension, but despite getting the authority she did not. By 13th May there was another complaint and he assigned the work to a different investigating officer. In another case he had asked her on 18th February to issue an urgent investigation notice to an RBKC councillor, which he followed up on 25th February, but never got a reply. On 28th April he asked her to deal with a complaint from an MP received by the general secretary's office.[41]Mr Jameson says that after his meeting in March he “attempted to arrange a number of regular meetings” which she did not attend on which were cancelled. He reported this to Patrick Smith who noted that the Codes of Conduct might be taking up her time.[42]In April 2021 BAME network sent Alex Barros-Curtis the draft Codes of Conduct they had been preparing.[43]In March 2021 the General Secretary decided to suspend the Newham constituency Labour Party. The claimant was instructed to lead a team of four on the investigation of both East Ham and West Ham constituency labour parties. There were “hundreds” of complaints attached to Newham. The claimant says this meant that she became incredibly overworked, because she was already working on the Codes of Conduct and had three ongoing NCC hearings, as well as the largest region with the most active cases.[44]When she started work and read the contents of the report on which the complaint was based she considered it displayed racist views. She voiced her concerns with Ben Jameson. There is no clear account of what she said then, but in her July 2021 grievance she was concerned that the complainant, a Labour staff member, spoke (in her words) of “a coordinated attempt to infiltrate Newham by members of a particular group from the Pakistani community”.[45]Ben Jameson told the disciplinary investigator he had had agreed with her that the first stages would be complete by 5th April, but when they met on 12th of April the work was ongoing, and she had asked for more time. At the next meeting he asked for the work to be complete by 5th May. She did not come to the meeting on 5th May, and he could not access the work file to check status because it was on an online spreadsheet to which he had no access. She did not come to the next meeting on 19th May either. Ben Jameson emailed asking why she had missed the meeting and she replied that her mental health was “taking a battering from a number of circumstances”; she was speaking to her GP and Patrick Smith about it and would catch up with him when she found felt able. She did not come to another meeting on 25 May. Ben Jameson emailed her about Newham on 28th May 2021: “given the other things you have going on at the moment I've picked this up and updated Andy with the first stages. We're at a stage to allocate the investigations to IGOs now so nothing further needed from you in terms of overseeing the first three stages”[46]The claimant was upset not to be consulted and believes that it was her raising concern about racism in the Newham complaints that led to her suspension. The respondent’s case is that the work had to be done and she was not coming to meetings. Trevor Phillips[47]Sir Trevor Phillips, former Head of the Commission for Racial Equality and then of its successor, the EHRC, had been suspended from the Labour Party in February 2020 because of a complaint of Islamophobia. Investigation of the complaint had been allocated to the claimant. In October 2020 Alex BarrosCurtis emailed the claimant asking for the status of the case, as: “we're getting a few chases on this, so it will be good to know where we stand on it”. The claimant replied that Trevor Phillips had not responded to the charges, but had asked some procedural questions and criticisms. She had drafted her response, and reinforced his requirement to respond to the charges “in order to move the investigation to the next stage..we will hope to have his NEC report heard in the next two weeks”. Mr Barros-Curtis replied on 12th October 2020 that this was helpful ,and “if you could keep me updated as to how it progresses, how he responds, etc, that would be great. I can then manage the stakeholders who keep chasing me”.[48]Trevor Phillips’s concerns had come in on 30 September. The claimant sent her draft answering these concerns to her line manager Patrick Smith on 9 October. Patrick Smith wanted to check whether the Labour Party had adopted the APPG (All Party Parliamentary Group) definition of Islamophobia, with which Trevor Phillips did not agree. He did not however get back to her. She did not chase it up. Nor did she update Alex Barros-Curtis. Nothing happened.[49]In May 2021 Alex Barros-Curtis was being chased once more about lack of progress on the Trevor Phillips case. He discussed it with Ben Jameson. He was told that there was no case log of actions taken by the claimant and no record of any investigation. At the time (see above) the claimant was not attending meetings, or if she had attended, her camera had been switched off. The outcome of this discussion on 18 May 2021 was a decision to lift the administrative suspension of Trevor Phillips, and to ask TP, another investigating officer in GLU, to continue the investigation. TP is white. TP wrote to Trevor Phillips on 19 May saying his suspension was lifted.[50]This happened 10 days before she was taken off work on Newham complaints (see above). However the claimant was not told the Trevor Phillips case had been assigned to TP. She did not attend a meeting on the 19th May with Mr Jameson when she might have been told, nor did she attend a meeting on the 25th May.[51]The claimant did however attend a meeting of the Diversion and Inclusion Board on 20th May 2021, where she raised concerns about whether staff advocating for Palestine risked their employment doing so. In raising the subject she said that she had been on the front line tackling anti-Semitism and had improved the party's processes. General Secretary David Evans responded that he would get back to her on that.[52]As noted, the claimant began to report a downturn in her mental health. On the 18th May she had emailed Patrick Smith about an NCC hearing of a councillor that she was due to present, saying she did not want this to jeopardise the mental health. She needed support “because of everything that is going on in Palestine/Israel, and the rise of Islamophobia”. He arranged for someone else to do the hearing. On 19th May she had emailed Ben Jameson about missing the 19th May meeting, saying that her mental health was “taking a battering from a number of circumstances” and she was speaking to her GP. On 21st May Patrick Smith replied expressing sympathy with her experiences before the NCC and asked if he could call her about her welfare. He reported this to Ben Jameson and Sinead James; Sinead James replied with list of organisations and support Labour Party could provide. On the 1st June Patrick Smith met the claimant, who reported that her mental health was extremely poor for number of reasons and she had lost two stone recently. He discussed the support the party could offer and that she should contact her GP. Next day he emailed details of the support the party could provide including EAP and occupational health.[53]On a date “towards the end of May or beginning of June”, the claimant attended a demonstration about Palestine, where she heard that Trevor Phillips’ suspension had been lifted. On 1st June she looked up the Trevor Phillips complaint files and could see that this was the case.[54]The claimant says she had struggled to keep going at work for some time, but finding out that the case had been reallocated without telling her was something of a last straw, and on 4th June she went to see her doctor and was signed off sick. On 11 June this was extended to the 5th July. Patrick Smith wrote on 16th June, again offering support, including 1:1 sessions with a therapist .[55]The claimant says the doctor “informed” her to write a grievance about her treatment. The panel comments that this is unlikely advice, but that is what the claimant did.[56]On 15th June she looked up the Trevor Phillips file again. She also approached a colleague, LM, who is not in GLU but works on the membership centre. They had worked together on a BAME report in 2020. She asked: “you know you mentioned at the protest about Trevor Phillips’ suspension being lifted. Could you please tell me who told you?” She mentioned she was writing a grievance. He replied: “yeah no worries I get it (GM) and (TP) were talking about it, but on side with you so try not to worry overthink things”. He suggested she speak to the union. She commented: “I don't get why they wouldn't tell me about it but would rather run around and tell other people”.[57]On 18 June Labour Muslim Network, a campaign group, approached the Labour Party saying: “we are just following up a report we received from members that Trevor Phillips has now been reinstated into the party following the conclusion of the investigation into his islamophobia complaints. Can you confirm if this is true and any sanctions (if any) he faced following the investigation”. (This was only partly true. Investigations had not concluded.)[58]On 21st June 2021, still on sick leave, the claimant e-mailed the General Secretary about a senior Labour person briefing the Daily Mail about Batley and Spen constituency, which she considered Islamophobic. She wrote on behalf of “several distressed BAME staff and Muslim staff” about a statement that Muslims had a propensity for anti-Semitism. To blame Labour’s unfavorability among Muslim voters on the work on anti-Semitism was: “dangerous white supremacist dogma that pits minorities against each other”.[59]On 28th June she approached LM again, asking for support with writing her grievance, because there weren't many people she could trust. She wanted his view on “if it's appropriate to include some of the cases I've been working on to help with the narrative everything I've suffered in the organisation”.[60]No other messages have been disclosed. The grievance is long, detailed, and quotes emails verbatim. We assume therefore that she or her colleague did access party files while she was writing it.[61]While the claimant was off sick, the party's senior managers wanted to implement the Codes of Conduct on Islamophobia and Anti-Black racism quickly, not least because of publicity about Batley and Spen, where in a recent bye-election many Muslim voters had deserted Labour for George Galloway. In her grievance the claimant complains that the BAME’s draft Codes had been “whitewashed”, in that references to “gendered islamophobia and misogynoir” had been edited out. She also complains that the finalisation had been deliberately speeded up while she was away from work. Trevor Phillips Decision and the Media[62]Just as the claimant returned from sick leave on 5 July, the Labour Party press office had questions from Labour List, a news blog, asking: “was the suspension of Trevor Phillips lifted without due process? Was the investigations officer working on it, also the only Muslim member of staff in GLU, excluded from the decision”. This suggested some inside information – that the claimant had been the caseworker.[63]On the same day there was an inquiry from the Guardian legal affairs correspondent, saying he had been “told that Trevor Phillips has had his suspension from Labour for alleged Islamophobia lifted. Furthermore, I was told that this happened without the case going before the NEC”.[64]The Guardian then published. Under the headline “Labour lifts Trevor Phillips’ suspension for alleged Islamophobia”, the story printed on 6 July included: “The Guardian understands Phillips was reinstated at least three weeks ago, without the matter having gone to a National Executive Committee disciplinary panel. A Labour source told the Guardian the investigation into Phillips is ongoing and its procedures allow for this to happen even after a member’s suspension has been lifted. “Nevertheless, his readmission to the party comes amid suggestions that the party is facing significant discontent among Muslim voters. Last week Labour held Batley and Spen with a razor-thin majority after the divisive candidate and pro-Palestine campaigner George Galloway won more than 8,000 votes”. The “Dishonest” Email[65]On 6th July 2021 the claimant emailed Andrew Whyte, Alex Barros-Curtis, Patrick Smith and Ben Jameson, subject “Assigned Caseload Concerns”, saying that on the day she was due to return to work she was “deeply disappointed and concerned that I have found the below information through the media, regarding a case I had been working on. Adding to the injury, having reviewed the disputes sent box, this was done prior to me going on sick leave - there is no justifiable procedural reason why I was not informed of the decision.[66]She provided a link to the Guardian article, and went on: “I am aware that another colleague had been instructed to send a letter to progress the case, one that I had written months prior and sought approval repeatedly to no avail. As the only Muslim member of staff in GLU, and as the staff member who drafted the NEC Codes of Conduct on Islamophobia and anti black racism, this is wholly inappropriate and exceptionally troublesome, given my position as chair of the BAME staff network. I have already been contacted by other BAME staff regarding this matter -some of whom are aware that London is my region. This potentially damages my integrity and the wider work that I do for the organisation on racism.” She therefore asked for clarity on why the decision was made without informing her, and for the case to return to her. “This is not the first time this has happened, where I have been made aware through media or external individuals about progression on my cases without my involvement or consultation or at the bare minimum, kept in the loop”. (We assume this is a reference to Newham; in her 30th July grievance she linked Newham to the Trevor Phillips reallocation, and to not being allocated Jeremy Corbyn's suspension although he was a London regional member).[67]That afternoon she was contacted by Laura Murray, Labour’s former Head of Complaints, about the Guardian story. She told the claimant she wanted to contact the paper to say that ordinary processes were subverted to lift a suspension without going to the NEC, “and that the investigation officer -who is also the only Muslim member of staff in GLU - was also completely excluded from the decision. I think people need to know what an outrage this is!”. She did not want to cause the claimant trouble: “obviously it wouldn't mention you as anyone could have told (and in fact TP and GA already had told me).” The claimant replied “thank you Hun, I think at the moment just feeling all over the place - it's been a bit intense and I don't feel comfortable I'm sorry”.[68]That evening she emailed again the managers again, saying she had been getting numerous calls from unknown numbers claiming to be journalists, and other staff members had been asked to disclose her full name. She wanted some guidance on how to manage the situation. She provided a link to a story about Trevor Phillips suspension in Labour List, which included: “ Labour List has been told that the investigations officer working on the case – the only Muslim staffer in Labour’s governance and legal unit – was not included in the process.”[69]Alex Barros-Curtis responded expressing sympathy, asking if she could identify phone numbers so they could check if these were journalists, and if she could identify the staff members who had been approached. She replied that two calls came to her personal phone and when challenged had put the phone down. She had not answered two number-withheld calls. She preferred not to say who had been asked for her name. She was frightened about her name being in the public domain.[70]Looking to see who might have leaked the Trevor Phillips suspension story, a check was made on IT logs, and it was found that the claimant had accessed 5 files on Trevor Phillips on 1st June, and one other on 15 June. LM had also accessed the file. Suspension[71]The claimant was called to a meeting on 14th July, accompanied by a GMB trade union representative, and told that she was suspended from work until further notice pending an investigation into allegations of gross misconduct against her. The allegation was that she had brought the Labour Party into serious disrepute and that there had been a serious breach of confidence. These allegations related to specific incidents: that she accessed confidential personal data and was unauthorised to do so. They could add to the allegations in the light of investigation. A meeting would be arranged shortly.[72]Unfortunately the claimant did not receive the letter confirming this for another 4 weeks, because her access to Labour Party e-mail had been cut off while the suspension meeting was going on. The Grievance[73]Two weeks after being suspended, on 30 July the claimant submitted a 32 page grievance letter complaining of race discrimination, covering events back to 2019. Disciplinary Investigation[74]On 6th August Angela Cartwright, Director of Commercial, was appointed to investigate the claimants access to data on Trevor Phillips. She interviewed the claimant on the 11th of August.[75]The claimant agreed that she had accessed Trevor Phillips’s files on the 1st and 15th June, saying: “it's my case, there is no reason why I couldn't access them”. She hadn't been told it had been taken off her. The claimant linked this action to matters in her grievance, which Angela Cartwright had not seen. She said the grievance was relevant because: “there is a whole narrative that does add to this both in relation to Trevor and other cases which have been taken off me without my knowledge”. Many of her cases were deeply contentious and “the reason this was taken off me is because I'm a Muslim and this is a high profile Islamophobia case”. She was also the only investigating officer to be suspended. Asked about accessing work when on sick leave (15th June) she pointed out that there was no policy forbidding this.[76]They moved on to her 6th July e-mail. She said she had been disappointed to find out about the suspension being lifted through the media, but she had already looked at the file and read the letter confirming the suspension had been lifted on the 1st June, and Ms Cartwright said: “please could you talk us through why you stated that had found out through other means, when the evidence suggests that you already knew”. The claimant said it was because she found out from the media, not her directors.[77]When put to her that accessing the file at the time the story was released to the media could cause a serious breach of confidence, she said that was “libelist and complete racially motivated”. Taking work away from colleagues without telling them was “an act of gross misconduct”. Accessing her own file was not a breach of confidence and did not justify suspension. Angela Cartwright then asked about 18th June 2021, when Labour Muslim Network had asked for the Party for comment on Trevor Phillips being reinstated - had she shared information about the case? The claimant said: “I think that question in itself is absolutely offensive. I am the only Muslim member of staff in my team. Why is it assumed that I have associated with LMN”. “The ridiculousness of this is that white colleagues have done it and they wouldn't be asked the same question right now.” She had no contact with LMN, and if she had passed on documents they would have been published them in full. As for the source of the information, she wasn't going to give names, but “how it actually came out was that two individuals who are still working they were aware of this and had been in social gathering talking about it”. Labour List got the information from that social conversation. She was not going to share information because she was concerned about further briefings about her.[78]After speaking to the claimant, Angela Cartwright interviewed Ben Jameson and LM on 31 August. Ben Jameson explained the complaint’s workload and the changes he had been making, that the claimant had been “largely absent” over March to May, and had been having difficulty balancing case work with Diversity and Inclusion Board work. On removing her from the Trevor Phillips file, he said the Newham case timing was relevant. The claimant was not told she had been taken off the case, as “it just wasn't clear which cases she had and because there was no communication I didn't know what she was holding or dealing with”. There was no log of actions taken, just two copies of the suspension letter and the response, nothing else. Asked about GDPR training, he said he had been trained, but he hadn't asked for the investigation officers to do it. However “there is an expectation you would have completed that”.[79]Most of the meeting notes on LM have been redacted, save his answer to Angela Cartwright’s question about how Labour List might have got the information they published in their article on the Trevor Phillips case. He said: “my guess is that it was leaked by someone in GLU. It is well known that it was leaked by two Caucasians”. Further comments have been redacted. Asked if he would identify who had leaked he said: “no I wouldn't, that's your job”.[80]Angela Cartwright completed the report on 18th October. In the meantime she approached Martin Beecroft, head of HR, at the Labour Party conference at the end of September and among other things asked him how seriously breaches of data policy should be treated. Martin Beecroft says he did not ask for detail but gave her some guidance on what was and was not gross misconduct.[81]In the report she concluded that although the claimant had not been told that the case had been reassigned, there was an issue in relation to her “accessing the TP case files for purposes not pertaining to her role, which could be a breach of trust and a breach of data protection”. It was also an issue that the claimant was “potentially dishonest in how she found out about the lifting of Trevor Phillips’s suspension”, first suggesting it was the Guardian article, then that she had heard it at a protest. Accessing the TP files on 15th June, followed shortly afterwards by the LMN approach to the Labour Party, suggested she was the source of leak. Not identifying two unnamed others could be a “smokescreen”, and could suggest the claimant “had something to do with the leak of information”. She recommended disciplinary action on the basis of: dishonesty in her 6th July e-mail about how she found out, being responsible for leak of information to Labour Muslim Network and Labour List, and unauthorised use of data in breach of the data security confidentiality policy.[82]Aside from this she recommended setting a clear policy for access to case files while on sick leave, an improved system of assigning cases, so was clear who was assigned to each case, and that case files should be secured so that only authorised persons could access them.[83]The documents she listed as having been having been seen were just the IT log of access to TP files, and the 6th July e-mail. There is no mention of the 18 June e-mail from Labour Muslim network, or how she found out about it, even though it was she who put it to the claimant when they met on 11 August. Disciplinary Hearing[84]Anna Hutchinson was appointed to hear the disciplinary case. She had some experience of hearings, but never in relation to employment. The claimant was invited to a disciplinary hearing on the 26th of October 2021. The allegations for the hearing were(1) dishonesty, in that she had implied she had heard the news in the media when in fact she heard it at a protest,(2) leaking to media, and(3) unauthorised access to files. At the claimant's request the hearing was postponed to the 1st November 2021 but on that day she wrote with some matters she wanted addressed before the hearing. She did not want Sinead James involved in the process, because she had included her in her grievance (not getting the suspension letter). She was concerned the contents of the grievance had been shared with others. She objected to not having had her email of 6th July at the interview on 11th August; they could not use the evidence of LM, because he was undergoing disciplinary proceedings himself; and hey should interview her own line manager Patrick Smith, not just Ben Jameson. Finally, she named TP and GA as the source of her information.[85]Meanwhile, Sinead James reassured the claimant that no one but the HR team and the external firm instructed to investigate the grievance had seen the grievance. On 8th November 2021 the claimant was interviewed by the external investigator, although the grievance investigation report was not concluded until 11 August 2022.[86]On 17th November 2021, LM was dismissed for accessing the Trevor Phillips file without authority. We have no other information about what he did or whether he was considered responsible for a leak.[87]On 23rd November the claimant sent HR screenshots of some exchanges with LM, but said she did not consent to this data being used against TP, it was only because Angela Cartwright had suggested it would exonerate her. She did not believe TP had leaked the case directly, but it was he who passed the information to former Labour Party staff.[88]A new date was set for the hearing, 21st February 2022, and the claimant was sent all the evidence and the notes of previous meetings. The claimant now objected to Anna Hutchinson chairing the meeting. She said that in her capacity as chair of the BAME staff network she was: “aware of racialised harassment Daniel Lewis experienced while working with Anna” and of a complaint by Fatima Mahmoud that Ms Hutchinson was Islamophobic, on which the party had taken no action. The claimant has not told the tribunal what this was about, or whether Daniel Lewis had complained. She added that the allegations against her are “totally racially motivated”. She wanted confirmation that the screenshots she had provided about TP and GM were included in the report going to Anna Hutchinson, and she added the WhatsApp conversation from Laura Murray about the source of the briefing to the media.[89]The meeting was rearranged for 28th February 2022. In the meantime she was reassured that complaints about Anna Hutchinson had been investigated and found to have no merit. She would make sure Anna Hutchinson had the LMN e-mail and the Laura Murray WhatsApp. The screenshots were not being incorporated into the report because the source of the leak was “being looked into separate to your case”.[90]The hearing was put back from 9:00 am to 10:00 am so the claimant could do a school run. It lasted just over an hour. She asserted Ben Jameson must have known that she was assigned to the case, he had not considered her work on the Codes of Practice important, that TP was still at work despite leaking, and that she had never been told she could not access files in order to prepare a grievance. She had not mentioned the source in the e-mail of 6th July because it was not important - what she wanted to ask was why she had not been told she had been taken off the case. As for whether the e-mail was true, the claimant said it was relevant context that she was on a phased return from sick leave, that was why she was not “eloquent”. Miss Hutchinson said it was not about eloquence: “you have stated one thing which simply wasn't true. Can you see how that would create a serious breach of trust and confidence”. The claimant said that she would prefer to have been asked questions and then she would have handed over the WhatsApp messages. She did not trust the people she was writing to not to penalise her. She was frightened for her own safety because of the air of suspicion. The briefing to the press about the case being the only Muslim member of staff and taken off the case had to come from someone within the unit. She was being used “in factional warfare”. The allegations were racially motivated, as shown by Ben Jameson saying he did not trust her to manage the file.[91]It was Anna Hutchinson's last day of employment before she left to train as a teacher. She wrote up her report and sent it to Sinead Jones later that evening, inviting Ms James to insert material about progress on the grievance. She provided a private email so she could check the final version. Dismissal[92]The claimant was dismissed by letter on 4th March 2022. Ms Hutchinson upheld the allegation of dishonesty. The claimant had clearly intended to provide a false impression that she had found out about the Trevor Phillips suspension from the newspaper article, when she actually found out from someone at a protest. It was very serious that she had chosen to deliberately mislead senior management, it was a breakdown of trust. She did not however uphold the second allegation that she was responsible for leak about the Trevor Phillips case, because of the WhatsApp messages she had supplied. On data use, she had accessed data without authority. On 1st June she knew the case had been reassigned and that she might not have permission to access it. She did not ask her line manager for clarity. On 15th June she accessed it solely to prepare her grievance. She did not have access for that purpose. She said: “any one of these allegations on its own would constitute gross misconduct. As a result of those allegations which have been upheld, I am writing to confirm that I have decided that your employment should be terminated, with immediate effect and without notice, for gross misconduct”. She considered the sanction appropriate because during the hearing she had been very clear that she did not believe she had done anything wrong. It was therefore possible she might do the same again. Trust and honesty were integral to a working relationship.[93]She was advised of her right to appeal. She was also told that Ms Hutchinson was recommending that the Labour Party investigate the leak to the media to identify those responsible, she endorsed the investigator’s recommendations about strengthening processes around case assignment security and access. She recommended that the grievance investigation should continue. Appeal Against Dismissal[94]The claimant appealed. Her appeal was heard on 18th March 2022 by Sam White, accompanied by Martin Beecroft as head of HR, and Vidia Alakeson, Director of External Relations, the claimant having requested a person of colour on the panel.[95]The claimant’s grounds for appeal were that the party had consistently discriminated against with racial bias, highlighted in the original allegations made against her which were the grounds for suspension. Not informing her of that in writing for a month had caused her distress. After the leak, several people had access to data, and there was no evidence that a leak related to her. They had not looked for the source. On access to files, she did not know the case was no longer hers. On the allegation of dishonesty in her 6th July email, it was wrong to add it after the investigation interview. It showed that she was targeted to remove the only Muslim member of staff in GLU. On not asking senior management about whether the case had been reassigned, she had lost trust in her superiors when she heard the news informally, which caused her to go on sick leave. She disputed whether she was taken off because she did not attend meetings. Ben Jameson not trusting her meant that he considered a white colleague more trustworthy on a subject like Islamophobia. On accessing data for preparing a grievance, she said that the party encouraged members of staff to submit grievances on allegations of racialised harassment, breakdown of mental health, and other allegations. This would discourage staff members from submitting accounts of abuse. On both occasions of access, she asserted that she was the author of the files she accessed. Patrick Smith did not know she had been reassigned, so if she had contacted him he would not have been able to tell her. They had failed to investigate the source of the leak and two BAME members of staff “who clearly had nothing to do with it” were dismissed. She repeated her objections to Anna Hutchinson as chair because of the previous complaints.[96]At the hearing the panel pointed out that they were all relatively new to the Party and she could count on them not to come with past baggage. She responded that “there is a lot that plays into this” in her 32 page grievance. They then discussed the matters set out in her appeal letter.[97]On 21st April 2022 Sam White informed the claimant that they had decided to wait for the outcome of the grievance before making any final decision.[98]The grievance outcome was finally available on 11th August. The 44 page report concluded by not upholding the claimants allegations.[99]While the claimant was waiting for the appeal against dismissal to be decided, she posted a message on her public Twitter account on 26 May 2022, which still described her as chair of the Labour Party's BAME staff network, and part of the Labour Party Governance and Legal Unit staff. The martyrdom of Ibrahim Nablusi pained her because she knew what he meant to the people and many died to protect him. He was “hero for the whole of Palestine who became the main target for Israel for his strength and determination in resisting the occupation”. Alex Barros-Curtis sent it to Martin Beecroft and Sinead James on 12th August 2022 (the day after the grievance outcome report but before the appeal against dismissal was decided), drawing their attention to her profile showing her connection with the Labour Party, adding that Ibrahim al-Nabulsi was the commander of the Al Aqsa Martyrs Brigade, designated a terrorist organisation by the US and the EU, and sanctioned by the UK. He suggested they clarify this with her when they next corresponded. The respondent argues that had she not been dismissed in March 2022, she would have been dismissed for this tweet as bringing the Labour Party into disrepute. The claimant answers that she had overlooked the need to change her Twitter account, and in any case had she not been dismissed, she would not have been in Palestine (where she was when she sent it).[100]Sometime between 11 August and 30 August Martin Beecroft spoke to Sam White. He says the decision not to allow the appeal was made by Sam White. Mr Alakeson was not involved. They did not consider it legitimate to access files for the purpose of writing a grievance. He does not say whether they discussed the al-Nabulsi tweet.[101]Sam White wrote to the claimant on 30th August 2022 to say the party had been right to want to investigate the source of the leak, even though they had dropped that charge against her. As for adding an allegation of dishonesty, that was something that came to light from the interviews, and she had had plenty of notice of this allegation. The party had not treated anyone else differently. There was insufficient mitigation for breaching the party's data security and confidentiality policy. The dismissal stood.[102]The claimant appealed the grievance outcome in August and there was a hearing on 23rd November 2022. She was told on the 20th December 2022 that the grievance appeal had not been upheld.[103]The tribunal asked Sinead James what had happened about the recommendations made by Anna Hutchinson. The member centre has been changed so the only those authorised can access it. However, there has been no investigation of the leak.[104]On 28th December 2022 Martin Beecroft wrote to the claimant asking, now that the disciplinary and grievance processes had been concluded, if she would reconsider letting them see the WhatsApp messages so that they could consider investigating the leak. She did not reply. Mr Beecroft told the tribunal that without any evidence they did not consider they could speak to any staff about what the claimant said. Relevant Law Unfair Dismissal
Relevant Law
[105]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), 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), of which conduct is one. A reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee - Abernethy v Mott Hay and Anderson (1974) ICR 323, CA.[106]Under s.98(4): “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.”[107]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4). They have been guided by the EAT in British Home Stores v Burchell (1978) IRLR 379 to take the decision in stages:(1) did the respondents 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? 105. Finally, tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for that reason. A reasonable employer may have a band of responses available to him. It is not for a tribunal to substitute its own decision for that of a reasonable employer – Iceland Frozen Foods Ltd v Jones (1982) IRLR 439 106 There can be a range of reasonable responses at all stages . The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed - Sainsbury’s Supermarkets Ltd v Hitt (2003) IRLR 23, CA. Race Discrimination[108]Section 13 Equality Act 2010 prohibits discrimination: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[109]Race is a protected characteristic, and is defined to include colour, nationality, and national or ethnic origin.[110]Because people rarely admit to discriminating, may not intend to discriminate, and may not even be conscious that they are discriminating, the Equality Act provides a special burden of proof. Section 136 provides: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[111]How this is to operate is discussed in Igen v Wong (2005) ICR 931. The burden of proof is on the claimant. Evidence of discrimination is unusual, and the tribunal can draw inferences from facts. If inferences tending to show discrimination can be drawn, it is for the respondent to prove that he did not discriminate, including that the treatment is “in no sense whatsoever” because of the protected characteristic. Tribunals are to bear in mind that many of the facts require to prove any explanation are in the hands of the respondent.[112]Anya v University of Oxford (2001) ICR 847 directs tribunals to find primary facts from which they can draw inferences and then look at: “the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the actual decision complained of in the originating applications were” because of a protected characteristic. There must be facts to support the conclusion that there was discrimination, not “a mere intuitive hunch”. Laing v Manchester City Council (2006) ICR 1519, explains how once the employee has shown less favourable treatment and all material facts, the tribunal can then move to consider the respondent’s explanation. There is no need to prove positively the protected characteristic was the reason for treatment, as tribunals can draw inferences in the absence of explanation – Network Rail Infrastructure Ltd v Griffiths-Henry (2006) IRLR 88 - but Tribunals are reminded in Madarrassy v Nomura International Ltd 2007 ICR 867, that the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”.[113]We can draw inferences from other factors, such as statistical material, which may “put the tribunal on enquiry” – Rihal v London Borough of Ealing (2004) ILRLR642, where a “sharp ethnic imbalance” should have prompted the tribunal to consider whether there was a non-racial reason for this. McCorry v McKeith (2017) IRLR 253 noted that the “reluctant, piecemeal and incomplete nature of discovery” could be a factor indicating discrimination, as can omissions and inaccuracies -Country Style Foods Ltd v Bouzir (2011) EWCA Civ 1519.[114]Shamoon v Royal Ulster Constabulary (2003) ICR 337 discusses how, particularly in cases of hypothetical comparators, tribunals may usefully proceed first to examine the respondent’s explanation to find out the “reason why” it acted as it did. Glasgow City Council v Zafar 1998 ICR 120, and Efobji v Royal Mail Ltd 2017 IRLR 956, remind tribunals that the respondent’s explanation must be “adequate”, but that may not be the same thing as “reasonable and sensible”. Discussion and Conclusion[115]We looked first of all at the respondent’s decision to suspend the claimant while they investigated her access to the Trevor Phillips files. The letter which now featured in the press had been sent on 18th May. That must have been a leak, most likely by GLU staff or someone else accessing the files. They knew there had been an approach from Labour Muslim network about it on the 18th June, even if there was no press until 6 July. They knew from the IT log that the people who had accessed the files were the claimant, LM and TP. When the claimant complained on 6th July that she had found out from the Guardian that the file had been reallocated, they knew this could not be right, because she had looked at the files on 1st and 15th June. The claimant may have been innocent of discussing the case outside work, as she was protested, and as Anna Hutchinson found, but they had reasonable cause to suspect her involvement. Any reasonable employer would have done this, any reasonable employer would have proceeded to investigate, and we also considered it entirely reasonable to suspend her access to Labour Party records while they did this, in case there were more leaks of confidential information..[116]The reason given to her for suspension was very narrow, when in fact they suspected she had leaked, in part because she had deliberately deceived them, but it was enough. She knew from context why they were concerned.[117]It was not really clear to us why, if they were looking for a leak, the respondent did not investigate not just the claimant and LM, but also TP, who was the other GLU staff member who knew about Trevor Phillips suspension being lifted. Nevertheless, they had cause to suspect the claimant..[118]The investigation stage took far too long, and delayed disciplinary processes can lead managers to think that because it has lasted a long time it must be serious, leaving aside the strain on the suspended employee and the waste of an organisation’s resources. However, Angela Cartwright asked the right questions. The puzzle is how she knew about the LMN e-mail to ask the claimant questions about it, when she made no mention of the e-mail in her report. As far as we know, the claimant did not see it until this final hearing, and it is perhaps not surprising that her reaction to Angela Cartwright’s question was angry. It could also have been difficult for the claimant to comment on her 6th July e-mail in detail when she no longer had access to email, but she knew what she had said in broad terms, and had included the text in her grievance. As the claimant said little about how she found out, save to say that she heard it at a protest just before the 1st June, and refused to name others, Angela Cartwright cannot be blamed for being left with a suspicion that the claimant’s 6th July e-mail could be a smokescreen to throw people off her trail, and that she had been in contact with outsiders. She did not get much help from the defiant LM either.[119]Angela Cartwright did establish from the conversation with Ben Jameson that knowing who a case was allocated to was not a simple matter, and that the claimant had not been told about reassignment, even though still at work at that point. This could have made the claimant’s action on 1st June understandable - the rumour could have been wrong. She took a view that accessing files in order to write a grievance while off sick was not authorised. We had some concern that looking to Martin Beecroft for a steer on the seriousness of accessing data was an odd thing for an independent investigator to do, and odder still for him to say anything when he knew he would be involved in any appeal, but data breaches aside, given that the claimant had not explained or even admitted her lack of frankness in the 6th July e-mail, and that she might be trying to throw people off the scent by suggesting unnamed others were responsible, there was enough to proceed to a disciplinary hearing. She did then get more evidence from Patrick Smith at the claimant’s suggestion, which went before the disciplinary hearing.[120]Of the decision to dismiss, the tribunal has been concerned that once the case has been investigated and the claimant explained herself at the disciplinary hearing two and two no longer made four. Looking at the file on 1 June to see if it was true she had been removed from the case and not told about it was understandable. As the claimant says, as far as she knew it was her case. Of course she could have asked Patrick Smith about it - she says she did not trust her managers, but he had been sympathetic, and conspicuously helpful about workload in May 2021, but it is hard to find that any reasonable employer would conclude that looking at the file on this occasion and for this purpose was gross misconduct. It is of course open to employers to make any unauthorised data breach an act of gross misconduct meriting dismissal without notice, but it is not fair to do so without adequate training of the workforce, so that they have a clear understanding of what is authorised and what is not. (By way of example, when the construction industry wanted strict enforcement of wearing helmets on site, they posted signs saying “No hat, no job”, a blunt and clear message). Given the chaotic and haphazard maintenance of complaints case work at the time, the lack of any GDPR training for GLU staff, and the claimant’s evidence, not challenged, that GLU staff often looked at each other’s case files for precedents and guidance, it was unreasonable and unfair to consider this breach so wrong as to be gross misconduct. There is less excuse for looking at the file on 15th June in order to write a grievance, but if the claimant was simply checking she had her facts right, it is borderline. The tribunal does not agree with the claimant that employers “encourage” staff to write grievances, or that they are employed to write them, only that there is a grievance procedure which they can use, but her access on that date was not idle curiosity, nor, as Ms Hutchinson concluded, did she leak the information to others. Again we could not understand that a fair employer would view this as gross misconduct meriting instant dismissal. Nor do we accept that the claimant’s access to the file was more serious than the three individuals who received advice and training in 2020. We were not persuaded that there had been a change in advice and training on data access since then.[121]The picture however changes when we look at the e-mail of 6th July. The claimant maintains that it was not dishonest or deliberately misleading because the content was true, namely she had not been informed the case had been reallocated. Of course that is the truth, but it was not the whole truth. It would not have been difficult for the claimant to say (for example) that she had heard about it on the grapevine, and it was unpleasant only to hear about it in a public forum rather than from her managers. As a tribunal we cannot see that any reasonable employer could trust an employee who saw nothing wrong in misleading them by omitting relevant material which contradicted her claim that she only found out about it in the press, and who would therefore do the same thing again. It might have been different if she had conceded that the e-mail was in fact misleading, and blamed her poor mental health for lack of judgement, but she has insisted, and continues to insist, that it was not deceptive.[122]We have considered this very carefully, because we were concerned that the respondent's initial strong suspicion that she was the responsible for the leak had transferred across to the view taken of the seriousness of her other conduct, and that they may have failed to review the seriousness of what she had done when they concluded that she had not leaked, the more so as Martin Beecroft may have given the investigator a steer on data breaches. However, it was clear that this dishonesty weighed substantially in Anna Hutchinson's decision. We may not agree that a fair minded employer would have considered that either of the allegations constitute a gross misconduct, but this attempted deception when the claimant could and would not recognise that it was, is not something an employer could tolerate in an ongoing relationship, where trust and confidence is essential. Trust was especially important in this job, because the claimant was handling complaints and confidential material.[123]As for the appeal, the claimant’s arguments were heard and answered. There was no unfairness in the investigator adding the dishonesty charge. The claimant had from October to February to consider her answer to that. There is no evidence that Ms Hutchinson was biassed. There was enough evidence that files were allocated away from her because she was not able to keep up with the workload, and that was meant by not trusting her, that is trust her to get the work done, and in any capability and performance were not the reason she was dismissed. We may have been concerned if Sam White had been told about the al-Nabulsi tweet, but there is no evidence that Martin Beecroft told him.[124]We concluded that the unfair dismissal claim does not succeed. The respondent's belief in misconduct was genuine, based on reasonable investigation and fair process, and dismissal for misconduct in the deceptive email was within the range of responses of a reasonable employer.[125]Had we decided the dismissal was unfair, we would not have found she would have been dismissed for the May 2022 tweet about Ibrahim al-Nabulsi. There is no evidence of other social media posts which would have embarrassed the Party. We considered it unlikely she would have sent this had she still been employed. Technically she could still have been reinstated if the appeal had succeeded but she probably had no confidence it would. Race discrimination[126]The claimant has alleged that the decision to suspend her, the handling of the investigation, and the decision to dismiss were materially influenced by race, and after being suspended but before the investigation began she submitted a lengthy grievance which made some very specific allegations of discrimination by Party staff against black and minority ethnic employees, and discrimination against Muslims in particular.[127]The claimant has explained that she withdrew her claim of religion and belief discrimination because she is not a practising Muslim, and has redrawn her protected characteristic of race as being “brown British Muslim of South Asian and Bengali heritage”, pointing out that Bengalis from Bangladesh (as distinct from Bengalis from West Bengal) are mostly Muslim, such that prejudice against Muslims can include prejudice against Bengalis. Quotes to consider discrimination against Muslims when she has withdrawn a claim of religion and belief discrimination, but will consider the race claim on the basis that discriminators may not consider very deeply whether brown-skinned people are or are not Muslim, and often make erroneous and stereotypical assumptions. It is also the case that within the United Kingdom Muslim communities are often seen as associated with people from Pakistan and Bangladesh, and even some members have national origins in the Middle East, or Southeast Asia, or Africa, and as a whole are considered non-white.[128]What facts has the claimant proved from which we could infer, In the absence of explanation, that discrimination occurred?[129]In no particular order, she is a British Asian. She was the only non-white person in the GLU. If the figures we have for BAME staff at the time are correct, non-white people were under represented in the workforce when looking at the UK population as a whole, and almost certainly under represented given the higher non-white population of London. This could represent past discrimination and raise the index of suspicion of race as a factor in treatment. She was active in the BAME network and had been spending a lot of time on drafting Codes of Conduct, which Ben Jameson considered should take second place to her GLU work. He had said he could not trust her: was this workload or that he thought she was allowing her own views to intrude on work. She had voiced concern to him about Islamophobic assumptions made about South Asian or Pakistani members in the Newham complaints. She had (as she believed) embarrassed the general Secretary by her question on Palestine and the Diversity and Inclusion Board meeting. She had voiced an objection to the party briefing on Batley and Spen in June, before suspension. She suspected tokenism, in the way colleagues thought of her, both because in April 2020 she alone had been identified by name, and because in June and July 2021 others thought it significant that “the only Muslim investigator” had been taken off the Trevor Phillips file (the Laura Murray inquiry and the story in Labour List). She might reasonably consider that white colleagues were using her for political point-scoring. It is also the case that disclosure of documents on relevant matters, namely discussions on whether, when and why she, or others, it should be suspended in July 2021, has been, to say the least of it, sparing. The tribunal could infer that this, and the failure to answer a Subject Access request, is because there are emails or WhatsApp messages which do display suspicion that she had leaked because she was BAME, or a Muslim with strong views on Islamophobia.[130]There is the fact that her unauthorised access to Trevor Phillips files in June 2021 was viewed extremely sternly, even after it had been determined that she was not the source of the leak, in contrast to treatment of her white colleagues a year earlier. As discussed above, it is in no way clear that access on the 1st June was unauthorised, and on the 15th June it was borderline excusable, and in the absence of training or explicit warning, it was not gross misconduct.[131]Further, if the Labour Party were really looking for the source of the leak, they should also have investigated TP, as the other member of GLU who knew what was happening on the Trevor Phillips file. They could have asked him about it when the LMN approach was made and they knew news had got out, and they could have asked him about it when the claimant and LM told Angela Carpenter that two white people were responsible. If the claimant's account of how the news got out is believed, then he was guilty of “careless talk” to outsiders that got the media involved. We could infer that Alex BarrosCurtis and others jumped to the conclusion that the claimant was responsible because of her BAME network challenges and views, the timing of the LMN approach and because of her deceptive email.[132]We do not however consider the claimant has proved prejudice by managers getting her name (Halima/Hamila) and other ethnic minority names wrong on occasions. Such mistakes are not uncommon. They were not consistent. Noone made deliberate errors. Most people make mistakes about names from time to time (including the claimant, who during the course of the hearing sent an e-mail to the wrong clerk - both have Muslim names).[133]We also considered it unlikely that she was taken off the Trevor Phillips case because it concerned Islamophobia. We doubt that Ben Jameson had no idea (as he suggested) it was her case, but here had been no action for several months and she had not updated Alex Barros-Curtis despite his request. She was behind on other tasks. She was not attending meetings. It would have been better management to e-mail her before reallocating, but we put this oversight down to impatience. She was informed of reallocation of Newham and that was clearly because there had been no known progress for some time.[134]Taking all these into account, we considered the burden shifted to the respondent to explain their reasons for the detrimental acts and the dismissal and to show that they were not tainted by the claimant’s race. We were concerned in particular that there was no explanation that made sense for treating her access to files on two occasions of itself more seriously that the “nosy” comparators a year earlier, and that it continued to be treated as gross misconduct even when they had her explanation and concluded she was not responsible for a leak, which would have made it far more serious.[135]Of the suspension, we considered that race played no part. The press had wind of a story, just after her second look at the file. She had looked at the file when she was not working on it. She sent an email which was misleading as to when she had looked it up and how she had found out. A white person would have suspended in these circumstances. TP had not sent a misleading email and had been asked to work on the file.[136]In the investigation, the claimant was so unforthcoming about how she found out, and so reluctant to see anything wrong with her email, that there were real grounds for concluding that she may have leaked, that she had intended to deceive, and that there should be a disciplinary hearing, and a white person in these circumstances would have been treated the same.[137]When it came to dismissal, we were sceptical that a conclusion that her data access was gross misconduct has an adequate explanation. Employers can act unreasonably without race being a reason, but the factual context suggests that her data access was treated more strictly than merited by the standards applied to others who are white. We cannot assess whether LM (also black) is materially comparable because we know so little about what he accessed or what else he did. It is possible however that Anna Hutchinson’s view of the claimant’s deception explains why she took such a stern view of data access. As she expressed it in this hearing, when the claimant said she had authority to look at the file because she could access it, ”just because you could, doesn’t mean you should”. However, race played no part in how the respondent viewed her 6 July e-mail. Both Angela Cartwright and Anna Hutchinson heard the claimant’s explanation and could not understand how it could not be considered to undermine trust. It was knowingly deceptive. The claimant’s evidence to the tribunal shows that they were not mistaken. Anna Hutchinson considered that this failure to understand how it was deceptive was important, not least because she would do it again if she continued to be employed. She was clear that the deceptive e-mail was sufficient gross misconduct of itself to justify dismissal. We accept this explanation. Race did not play a part in dismissal.