Ms D El Farra v Securitas Security Service (UK) Ltd: 2204848/2019
EMPLOYMENT TRIBUNALS
Case No 2204848/2019
Between
Ms D El FarraClaimantSecuritas Security Service (UK) LimitedRespondentDate 22 July 2021
JUDGMENT
The Claimant’s application dated 24th July 2021 for reconsideration of the Judgment sent to the parties on 22 July 2021 (and reissued with a certificate of correction on 27th July 2021) is refused under rule 72 of the Employment Tribunals Rules of Procedure 2013. It is not necessary in the interests of justice for this matter to be reconsidered.
REASONS
[1]Following the Judgment sent to the parties on 22nd July 2021 the Claimant now applies for a reconsideration. She says it is in the interests of justice that we fully comprehend her claims “and that employers are not permitted to discriminate against their employees”. It is clear that she disagrees and is disappointed with the Tribunal’s judgment.[2]Under Rule 70 of the Employment Tribunal Rules of Procedure 2013 a Tribunal “may reconsider any judgment where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked.[3]Rule 72 provides that an Employment Judge should consider the request to reconsider, and if the judge considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it.[4]Under the 2004 rules prescribed grounds were set out, plus a generic “interests of justice” provision. The prescribed grounds were that the decision was made because of an administrative error, a party did not receive notice of the hearing, the decision was made in the absence of a party, or that new evidence had become available since the hearing provided that its existence could not have been reasonably known of or foreseen at the time. As for the interests of justice test, the case law establishes that while this allows for a broad discretion, it must be Case no 2204848/19 exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[5]The Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown UKEAT/0253/14/LA that the 2013 rules did not change the approach to be adopted or broaden the scope of the grounds for reconsideration. A reconsideration is not a means by which a party can reargue the case that was made at the hearing. Something particular is required to establish this ground, beyond the fact that the party is disappointed with the decision.[6]The Claimant refers to a failure to pass any Judgment on victimisation. The issues were clearly set out at the case management hearing and explained and referred to during the hearing and do not include a claim for victimisation. There was no objection to the list of issues and no application to amend the issues to include a claim for victimisation. The heading to her witness statement refers to “direct racial discrimination, racial harassment and discriminatory constructive dismissal” and her closing submissions refer only to sections 13 and 136 of the Equality Act.[7]Beyond that the submissions made by the Claimant are largely an attempt to reargue her case and to repeat or elaborate on submissions that have already been made. She makes submissions on matters that the Tribunal has already considered and decided. She does not present new evidence that was not available at the original hearing. The Tribunal has heard and considered the evidence and submissions of both parties and come to a conclusion. There are no grounds for a reconsideration and no reasonable prospect of the original decision being varied or revoked. . CERTIFICATE OF CORRECTION Under the provisions of Rule 69 of the Employment Tribunals Rules of Procedure 2013, I hereby correct the clerical mistake in the Reasons for the Judgment dated 22 July 2021 by deleting the said Judgment and Reasons and substituting the Judgment and Reasons attached. The correction is that in paragraph 3 of the Reasons the words “The Claimant is British but her parents are Kuwaiti and she describes herself as of Arab ethnicity” are deleted and replaced by “The Claimant is British. Her parents are also British but from Kuwait, and she describes herself as of Arab ethnicity”. The Claimant’s witness statement stated that her parents were from Kuwait (without more) and the Judge understood this to mean that they were Kuwaiti. The Claimant is anxious that the published version reflects that her parents are British. The corrected Judgment does so.[1]This is a case of direct race discrimination and harassment related to race contrary to sections 13 and 26 of the Equality Act 2010. Background and introduction[2]The Respondent is contracted to provide, among other things, visitor engagement services to the National Gallery. The Claimant worked for the Respondent as a visitor engagement assistant (a VEA) at the National Gallery from 26th March 2018 until she resigned on 10 November 2019. From 26 March 2018 to 3 September 2018 she was engaged under a casual worker contract. On 3rd September she was engaged under a contract of employment working on a 4/7 shift pattern until, at her request, she reverted to casual worker status from 2nd September 2019.[3]She now brings claims of race discrimination and harassment related to race. The Claimant is British. Her parents are British but from Kuwait, and she describes herself as of Arab ethnicity. In her claim form the Claimant refers to discriminatory remarks by Italian staff regarding her Arab ethnicity, feeling excluded by Italian staff conversing in Italian, and complains that she was discriminated against in the shift allocation and other matters.[4]The case management order did not set out the basis of any racial comparison that the Claimant was making but the remarks about which she complains relate to her heritage.[5]However, much of the Claimant’s witness statement was devoted to complaints that Spanish and Italian staff were being given preferential treatment and she spoke of “ethnic nepotism” and the doubling of Italian and Spanish VEAs. We sought to clarify the comparison that the Claimant was making at the start of the hearing. She told the tribunal that it was her case that she was treated worse than “everybody else”. When pressed, the Claimant said that, in relation to her complaint about the failure to allow flexible working, she compared her treatment to that afforded to those of Italian descent/nationality and, in relation to her other complaints, she compared herself with all others who were not of Arab descent.[6]During the course of the evidence the comparisons being made shifted, depending on the issue that was being dealt with. At times she compared her treatment with Italian staff, while at other times her complaint was that BAME workers were treated less favourably than white British VEAs. In relation to one aspect of her claim (office duties) the Claimant compared to treatment to that of Ms Sharma who is mixed race (Asian and white). On another occasion she compared her treatment to that of Ms Hancock who is white British, but during the hearing this comparison was withdrawn.[7]At the start of the hearing Claimant sought an anonymity order. She considered that her Arab ethnicity should not be disclosed publicly as this was personal to herself and was not generally known. Ms Young objected to the anonymity order. The Respondent was aware of the Claimant’s Kuwaiti heritage and it was the basis of the Claimant’s claim.[8]We could see no grounds on which we could derogate from the usual rule that judgments of tribunals should be published in full, including the names of the parties. The starting point is the principle of open justice, and the disclosure of the Claimant’s ethnic background is not something which is of itself so confidential, nor does it engage any competing convention rights, such as to override that general principle.[9]The issues had been set out in the case management order made at a Preliminary Hearing on 12 March 2020 as follows: Time limits / limitation issues(i) Were all of the Claimant's complaints presented within the time limits set out in sections 123(1 )(a) & (b) of the Equality Act 2010 ("Equality Act 2010)?(ii) Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 10 July 2019 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it. EQA, section 13: direct discrimination because of race(iii) Has the Respondent subjected the Claimant to the following treatment:a. In May 2019, Tiziana Carbutti declining the Claimant's flexible working request;b. In June 2019, Tiziana Carbutti demoting the Claimant from the correspondence team;c. From September to October 2019, Debora Bean excluding the Claimant from shift allocation;d. In October 2019, Debora Bean penalising the Claimant for shift cancellation;e. Language exclusion [Italian staff conversing in Italian in the Claimant's presence;f. In July 2018 in the Wilkins boardroom, Marcella Meloni and Debora Bean asking the Claimant if she would consider 'going back home' saying 'maybe you should think about it' because 'it's your country';g. In March 2019, in the Sainsbury Wing staffroom, Angelica Vallone saying 'there's nothing wrong with asking where you're from. You should be proud of your origin.';h. In March 2019, in the Sainsbury Wing cloakroom office, Tiziana Carbutti saying on discovering that the Claimant spoke Arabic, 'Really? I didn't know that. But there’s nothing wrong with that.';i. In March 2019, following a holiday in Egypt, Ms Carbutti describing 'a lot of poverty' in Egypt;j. In an email in May 2019, Ms Bean asking what the Claimant's 'native country' and 'mother tongue' were in order to confirm which country flag the Claimant should wear to represent her Arabic speaking skills;k. In July 2019 at the Sainsbury Wing Information Desk, Giovanna Zampagni telling the Claimant about an Egyptian migrant her family had 'adopted' in Italy who was 'very poor' and an orphan, when the Claimant informed her about her Arab ethnicity;l. In August 2019, in the Sainsbury Wing cloakroom, Tiziana Carbutti saying 'Dana, just fuck off.';m. In September 2019 in the Sainsbury Wing cloakroom, Angelica Vallone telling the Claimant to 'go away' and find another job;n. Investigating the Claimant's use of email as follows. These are allegations against Ms Carbutti and/or Mr Greer. i) In May 2019, Tony Greer investigating the Claimant for sending an email describing signing up members to the gallery, suggesting that the client had complained, which was untrue. A comparator, Michelle Hancock, was not told she might be dismissed and instead was told she had nothing to worry about; ii) In May 2019, when the Claimant responded to Mr Greer by email from a helpdesk, Mr Greer using that as a new reason to investigate the Claimant. Ms Hancock is a comparator; she had also sent emails from the helpdesk but was not investigated; iii) In May 2019 when the Claimant continued to send email from the office, Mr Greer saying that she was not allowed to send emails from the office and saying there would be an investigation about that. When the Claimant asked if she should send emails from home, Mr Greer telling her not to check her emails and to find a hobby; iv) In July 2019, when the Claimant responded to a client's query about a lost oyster card in the course of which reply she advised the client to contact Transport for London, Ms Carbutti calling the Claimant to the office and saying she was investigating the matter and that the Claimant had been patronising and unprofessional; v) In August 2019, when the Claimant advised a member of the public that she could not give out the email address of a curator, Ms Carbutti calling the Claimant in for an investigation; vi) In October 2019, Ms Carbutti stopping the Claimant doing emails and said that she was going to investigate an email the Claimant sent in September 2019, which the Claimant says was just a standard reply. o) Was the Claimant constructively dismissed, i.e.: i) Did the Respondent's conduct at a) - n) breach the so-called 'trust and confidence term', i.e. did it, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously to damage the relationship of trust and confidence between it and the Claimant? ii) If so, did the Claimant affirm the contract of employment before resigning? iii) If not, did the Claimant resign in response to the Respondent's conduct (to put it another way, was it a reason for the Claimant's resignation - it need not be the reason for the resignation)?(iv) Was that treatment "less favourable treatment", i.e. did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated others ("comparators") in not materially different circumstances?(v) If so, was this because of the Claimant's race? EQA, section 26: harassment related to race(vi) Did the Respondent engage in conduct as follows: The matters set out at a) - n) above(vii) If so was that conduct unwanted?(viii) If so, did it relate to the protected characteristic of race(ix) 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 The further matters set out in the Claimant's agenda at Box 4.1 are relied on by the Claimant as background evidence in support of her claims.
Relevant Law
[10]Section 39 of the Equality Act 2010 prohibits an employer discriminating against its employees by dismissing them or subjecting them to any other detriment. Section 13 defines direct discrimination as follows:-“A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others. Race is a protected characteristic.[11]Section 13 focuses on “less favourable” treatment. A claimant must compare his or her treatment with that of another actual or hypothetical person who does not share the same protected characteristic. In comparing whether the employee has been treated less favourably than another, section 23 of the Equality Act provides that “on a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case.” It is not necessary for all the circumstances to be the same provided that the circumstances are materially similar. In other words for the comparison to be valid, like must be compared with like.[12]Section 40 prohibits an employer from harassing its employees. Section 26 (1) defines harassment as follows “A person (A) harasses another (B) if (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in 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.[13]In Richmond Pharmacology v Dhaliwal (2009 ICR 724)the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find and employer liable for harassment:a. Did the employer engage in unwanted conductb. Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/herc. Was that conduct on the grounds of the employee’s protected characteristic?[14]In a case of harassment a decision of fact must be sensitive to all the circumstances. Context is all-important. The fact the conduct is not directed at the Claimant herself is a relevant consideration, although this does not necessarily prevent conduct amounting to harassment, and will not do so many cases.[15]Not every racially slanted comment constitutes violation of a person’s dignity etc. Tribunals must not encourage a culture of hypersensitivity by imposing liability on every unfortunate phrase (Richmond Pharmacology v Dhaliwal. Tribunals must not cheapen the significance of the meaning of the words used in the statute (i.e. intimidating, hostile, degrading etc).They are an important control to prevent trivial acts causing minor upset being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment created. (Grant v Land Registry 2011 IRLR 748).[16]Although isolated acts may be regarded as harassment, they must reach a degree of seriousness before doing so[17]An action that is complained of must be either direct discrimination or harassment but it cannot be both. Equally such an action cannot be both harassment and victimisation. It must be one or the other. (Section 212). This is because the definition of detriment excludes conduct which amounts to harassment,[18]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.[19]The burden of proof is set out at Section 136. It is for the Claimant to prove the primary facts from which a reasonable Tribunal could properly conclude from all the evidence before it, in the absence of an adequate explanation, that there has been a contravention of the Equality Act. If a Claimant does not prove such facts she will fail – a mere feeling that there has been unlawful discrimination, harassment or victimisation is not enough. Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise. Could conclude means “a reasonable Tribunal could properly conclude from all the evidence”. As set out above at the first stage the claimant must prove “a prima facie case”. “However the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude that there has been discrimination. Each case is fact specific and it is necessary to have regard to the totality of the evidence when drawing inferences.[20]Once the burden of proof has shifted it is for the Respondent to show that the relevant protected characteristic played no part whatsoever in its motivation for doing the act complained of.[21]It is however not necessary in every case for the tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal pointed out in Laing v Manchester City Council 2006 IRLR 748 “If the tribunal acts on the principle that the burden of proof may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”.[22]This approach to the burden of proof has been confirmed by the Court of Appeal in Ayodole v City Link and another 2107 EWCA Civ 1913.[23]The Claimant also claims discriminatory dismissal. She has insufficient service to bring a claim of unfair dismissal but in relation to her claim that she was dismissed, she needs to establish that she was constructively dismissed i.e. that the Respondent breached the implied term of trust and confidence and that she resigned in response to discriminatory conduct.[24]As to time limits Section 123 of the Equality Act 2010 provides that complaints of discrimination should be presented within three months of the act complained of. An act extending over a period is treated as done at the end of that period although this should be distinguished from a single act with continuing consequences. The concept of an act extending over a period was considered in Commissioner of Police of the Metropolis v Hendricks 2003 IRLR 96 and given a wide interpretation. Evidence[25]This was a hearing held by cloud video platform (CVP). The Tribunal had copies of all the documents and the witness statements electronically. References to page numbers in this judgment are to the electronic page numbering which differs from the number in the hardcopy bundle.[26]The Tribunal heard evidence from the Claimant. For the Respondent we heard evidence from the following:a. Ms T Carbutti, a Visitor Engagement Managerb. Mr T Greer, Account Managerc. Ms D Bean, Schedulerd. Mr H Taskin, Commercial Managere. Ms E Ward, Contract Support Managerf. Mr K Woolley, London Key Accounts Director Relevant facts[27]The Claimant began working for Securitas as a Visitor Engagement Assistant (a VEA) on 26 March 2018 on a casual contract. The terms of the casuals’ contract provide (397) that it is not an employment contract, and that there is no obligation on either side to accept or provide work.[28]The Respondent provides Visitor Engagement Services to the National Gallery. The VEAs provide assistance to visitors to the National Gallery responding to queries, providing visitor information, selling and scanning tickets to exhibitions, working in the cloakroom providing information generally. They work a shift pattern. 16 VEAs are required as part of the core requirement at the National Gallery each day, including weekends.[29]The duties of a VEA were many and various. The National Gallery requires 16 core Visitor Engagement duties each day. Rotas in the bundle evidence the range of activities that a VEA might undertake. Ms Bean would allocate who was on duty each day, allocating those on a permanent contract first and then allocating casuals. Ms Carbutti would do the daily roster (i.e., allocating the duties) for all the VEAs when she was on duty, but if she was not on duty then that task will be undertaken by different visitor engagement manager.[30]Each VEA might undertake 4 or 5 different activities each day which varied from work in the office, to scanning tickets when there was an exhibition, to working in the cloakroom, in the education centre or on the information desk. The VEAs might also work at the Getty Desk. The terms of the Respondent’s contract with the National Gallery required certain functions to be covered at all times and also required two VEAs to be in the office at all times. The duties to be allocated were not the same each day but would vary depending on a number of factors including whether there was an exhibition on, and whether it was in term time. In allocating duties, the Visitor Engagement Managers had to bear in mind which VEAs were working that day or shift, and which ones had been trained on which duties. There were always a fair amount of last-minute changes and a rota might go through several versions.[31]Although the job description of a VEA included all the different activities that VEA might be required to do, some VEA’s were trained to do specific activities such as correspondence or sales or education or school bookings, so that only VEAs who had been trained in the relevant activity would do those duties. In August 2018 Mr Jones, one of the Visitor Engagement Managers asked the Claimant to join the correspondence team. This team is responsible for queries from visitors, comment forms, social media and so forth. The Claimant enjoyed this work.[32]The cast list provided by the Respondent evidences that the Visitor Engagement team drew its staff from very many nationalities and backgrounds. While the Respondent employed a significant number of Italian and Spanish staff there were very many different nationalities and ethnic backgrounds represented.[33]In August 2018 the Claimant asked to become a permanent member of the staff and was interviewed by Ms Carbutti and another manager. The Claimant was successful and signed a contract working a shift pattern of 4 days in 7 beginning on 3rd September. The Claimant complains that she requested a locker and was told that none were available but was in a queue. Another Italian employee (Ms Vallone) who had joined the department after her had been given a locker. When the Claimant complained, it was explained to her that the Respondent’s policy was that preference should be given to those who worked full time. However, she complains that this could not be true as another Italian VEA (Mr Beneveli) who was on a .6 contract was also given a locker before her.[34]We accept Ms Carbutti’s evidence that the lockers were situated in the female and male cloakrooms. As there were more female VEAs than male VEAs, there was less pressure on the male lockers than on the female lockers. Offensive comments[35]The Claimant alleges that numerous comments were made which were derogatory and offensive in relation to her Arab ethnicity and which the Claimant describes as racial micro-aggressions. The Respondent does not accept all of these remarks were made and we set out below our finding in relation to each of them a) In July 2018 there was a staff party. Ms Bean who is Italian, met the Claimant at the party for the first time and asked her where she was from. When the Claimant said she came from London Ms Bean asked her where she was “originally” from. The Claimant said that her parents came from Kuwait. Ms Bean asked the Claimant if she had ever been to Kuwait and, when the Claimant said not, said something like “that’s a pity should go and visit your mother country to reconnect with your family origins”. Ms Bean gives a slightly different account but accepts that she said something along those lines. She says she was pleased to meet the Claimant and was trying to be friendly. The Claimant’s name didn’t sound British, just as her name did not sound Italian, and she had the same experience. She thought the Claimant might be interested in her “mother country” and origins. Having heard Ms Bean in evidence we accept that she was trying to be friendly. Given the context and the diversity of the workforce, her questions were a way of getting to know the Claimant, and in the absence of a clear indication that the Claimant was offended we do not regard these comments as inherently hostile or offensive such as to meet the threshold of harassment in section 26. (The use of the phrase mother country is not an English turn of phrase and may be a direct translation from the Italian.) b) In September an Italian VEA, Ms Milone, asked the Claimant where she was from. When the Claimant said she was from London Ms Milone said, “but your name isn’t English”. She also asked her if she had been to school in the UK because she crossed her sevens. She infers from this that the Italian members of staff had been discussing her ethnic origins. We do not accept that this would be a natural inference to draw. c) The Claimant alleges that in February 2019, when the Claimant put her coat and bag on the bench beside her, Ms Carbutti said “what is this are you opening a market” - but did not comment when, on another occasion a few weeks later, an Italian VEA did the same. However, we prefer Ms Carbutti’s evidence that she made a comment about a market before a morning briefing when she saw a mess by the briefing meeting point, and it was directed at everyone. The Claimant says that the reference to market was because of her Arab ethnicity and a scathing stereotype about Arab culture but we do not accept that the remark was directed at her, or that using the word “market” is a stereotype about Arab culture. d) In March 2019 the Claimant had reacted defensively to a question about her ethnicity. An Italian VEA, Ms Vallone said to the Claimant “there is nothing wrong with asking where you are from. You should be proud of your origins.” We have not heard from Ms Vallone, and we accept that this was said. The Claimant was offended. She told us that she was not ashamed but was wary of disclosing her background. e) When returning from a holiday in Egypt in March 2019 Ms Carbutti, when the Claimant asked how her holiday was, said there was a lot of poverty in Egypt. Ms Carbutti said she did not recall making any such comment and said that she was not staying in a poor area of Egypt, so she thought it was unlikely she would have said it. On the balance of probabilities, we accept that Ms Carbutti made the statement, but we do not accept that it was a slur on those of Arab ethnicity. f) The Claimant alleges that Ms Carbutti asked the Claimant if she spoke Arabic and, when she said yes, said “I didn’t know that but there’s nothing wrong with that.” We have had no evidence about the context in which this remark was made or why, or whether the Claimant objected. Ms Carbutti says she did not remember saying this or remarking upon whether the Claimant spoke Arabic. On balance we find the Claimant’s evidence on this implausible and in the absence of any context we conclude it was not said. g) In an email in May 2019 Ms Bean asked the Claimant about her “native country and “mother tongue” and suggested she would wear a Kuwaiti flag, even though the Claimant said she was from London. (See further below) h) Another Italian VEA Ms Zampagni in July 2019 asked the Claimant where she was from. On being told she was from London she was asked where her parents were from. When she said they came from Kuwait she told the Claimant about an Egyptian migrant her family had adopted in Italy who was very poor and an orphan. The Claimant says that the jump from learning that the Claimant’s parents came from Kuwait to talking about adopting a poor orphan from Egypt was a micro-aggression. i) An Italian VEA Mr Fasano asked the Claimant if she went to school in the UK. The Claimant believes that this confirmed that Italian staff were discussing her ethnicity in her absence.[36]The email referred to at 35g above (280) was written in the context of an initiative by the National Gallery that the VEAs should wear name badges which contained small stickers identifying, by reference to a country flag, languages spoken by that VEA. On 13 May 2019 Ms Bean emailed the Claimant and another VEA (Faiza) as follows “I have been contacted by Securitas people who are arranging flags badges for the team, and I have been asked what is your native country? This is to identify your mother tongue with the appropriate flag, and it is not mandatory, so I hope you are still happy to wear your flag? I would! Faiza, I know your one should be Algeria, but I thought it better to double check with you because I don't trust my memory."[37]The Claimant responded in terms which made it clear that she would object to wearing any flag other than a British one and that she would not wear a flag which reflected a country she had never been a national of. She sent Ms Bean a copy of her birth certificate. Ms Bean responded to say that the Claimant had told her a while ago that she spoke Arabic, which is why she had asked her the question, but she guessed that there was no point in ordering a badge for her. (279) There the matter ended.[38]This was a clumsy way of asking whether the Claimant spoke other languages and, if so, would she be willing to wear a badge of a particular country. Ms Bean’s first language was not English and while the Claimant objected to the use of “native country” and “mother tongue” the question was asked in the context of all the staff being asked to identify whether they would be prepared to wear a flag to indicate another language spoken (215 – 223). The Claimant considers that it was racially motivated because the email was only sent to her and Faiza, but we do not accept that. Ms Bean asked them because she was responsible for compiling a spreadsheet of languages spoken by the VEAs, the Claimant had told her that she born in Kuwait and spoke Arabic, so she wanted to confirm the position. Likewise, she knew that Faiza was from Algeria.[39]In evidence the Claimant said that she was the only member of the VE department who did not get a badge and that she had to wear the badge of another VES (Dayo) with a handwritten sticker replacing the “yo” with a “na” to read “Dana”. However, we accept that Mr Taskin had ordered the Claimant a badge and if the badge did not find its way to the Claimant, we would have expected the Claimant to have raised it at the time. Flexible working request[40]It is the Claimant’s case that she was treated less favourably than Italian workers in the Respondent’s handling of her flexible working request and that she was treated less favourably than those not of Arab ethnicity in failing to allocate her sufficient time in the office, in excluding her from shift allocation and in the way that the Respondent investigated emails sent by the Claimant at work.[41]In May 2019 the Claimant wished to reduce her working hours to 3 shifts per week instead of 4. She asked Ms Bean about this, who clearly thought that this would not be a problem, but said that she would need to speak to Mr Greer. However, Mr Greer responded that the Claimant would need to fill in a flexible working request and that there would be a meeting arranged to discuss it. Ms Bean then sent the Claimant a flexible working policy which at that time was out of date. The Claimant duly completed a flexible working application (300) stating that she wanted to maintain a balanced working pattern. Ms Carbutti, on the instruction of Mr Greer, immediately responded by refusing her request (299) without any meeting “as the reason provided by you doesn’t fall under Securitas policy”. On 14th May the Claimant submitted a new and amended request and asked the Respondent to disregard her earlier request, pointing out that flexible working could be requested by anyone, even those who were not parents or carers and threatening litigation. (285) Ms Carbutti then contacted HR who provided her with the updated policy, advising that everyone could apply but the answer depended on whether it suited the business.[42]The following day her request for flexible working was again declined by Ms Carbutti without a formal meeting to discuss it. (305) The Respondent’s case is that by granting the Claimant’s flexible working application to reduce the number of her working days there would be a discrepancy in the “core manning”, that there was a recruitment freeze, and the Respondent would be required to recruit an additional member of staff at an additional cost to the company if the Claimant were to reduce her hours.[43]On 15 June 2019 Mr Greer refused in similar terms a similar flexible working request submitted by Verity Flute (308) who is white British and who also wished to reduce to a three-day rota.[44]On 16th June the Claimant appealed the refusal of her flexible working request (311) and this appeal was heard by Mr Taskin on 27 June 2019. Mr Taskin refused the flexible working request on 12th July on the basis that a permanent adjustment to her working pattern “would have resulted in having an employee short for one day every week” and that this would cause continuous pressure on the scheduling team to ensure that they fulfilled the contractual number of staff to the National Gallery. Mr Taskin said that the Exhibition period was coming up and during this period the causals did almost full-time hours so that they could not guarantee that there would be casuals who would take those shifts.[45]We accept that at the time there were genuine business reasons why the Respondent declined the Claimant’s request. Ms Flute was also refused. It is not for us to say if the reasons were good reasons, but we accept that they were genuine. In the end the Respondent’s approach did not assist as, on 12th July 2019 following the refusal of the Claimant’s flexible working request, the Claimant requested to revert to a casual contract. Ms Bean agreed suggesting that the Claimant revert with effect from 2nd September as the August rota was about to be published. The Claimant agreed and sent her dates to Ms Bean for September.[46]Three months later in September 2019 an Italian VEA, Mr Fasano, was permitted to work fixed days by Ms Ward in order to attend a postgraduate degree course on Mondays and Tuesdays (though there was no reduction in his hours). In January 2020 Ms Ward permitted him to switch from a 5 day in 7 pattern to a 4 day in 7 working pattern, after the Exhibition period had finished.[47]Mr Greer also permitted Ms Curci (who is Italian) to reduce her five-day pattern to a three-day pattern with effect from April 2020. Mr Greer permitted this flexible working request because by April 2020 the VEAs were no longer providing services to the cloakroom (which were now being provided by the Security team) and that this had reduced the need for the number of VEAs.[48]While we understand that the Claimant may have felt that Italian staff were being preferred to her in the way that the flexible working requests were dealt with, we accept that by January 2020 circumstances had changed so that there was less pressure on cover for VEAs. investigations into the Claimant’s emails.[49]The Claimant complains that the Respondent treated her less favourably than others not of Arab ethnicity when they investigated her for sending a number of emails.[50]As part of the Respondent’s contract to provide Visitor Engagement Services at the National Gallery, National Gallery staff monitor responses sent on its behalf by the Respondent’s staff and highlight to senior management at the Respondent any communications that they did not like. Effective communication was a part of the Respondent’s KPIs in its contract with the National Gallery. The Respondent also monitored emails sent by its staff.[51]On 15th April 2019 Ms Keltie of the National Gallery forwarded to Mr Greer and Mr Taskin an email trail “with multiple concerns” and asked the Respondent to take immediate action to stop any further such use of communication. The email trail (243) contained comments about visitor communications passing between the Claimant and 2 other VEA’s (Ms Hancock and Mr Feitosa Nunes) and was against the email guidelines set by the National Gallery (230). Mr Greer sent an email to the whole VEA department instructing them not to send emails voicing personal opinions via the National Gallery’s email system (245) and held investigation meetings with the Claimant and the others during which they were told that the investigation was confidential. The Claimant now accepts that her comparator Ms Hancock was also investigated by Mr Greer and no longer relies on this investigation as an act of direct race discrimination or harassment related to race.[52]However, the day after the Claimant had attended an investigation meeting to discuss the email trail, the Claimant sent an email to the National Gallery staff, apologising for her earlier email but justifying its content. (251) When Mr Greer found out he was not pleased and emailed the Claimant on 7th May (252) asking her to explain why she had sent this email when she had been told it should not be discussed.[53]After this there was a considerable pushback by the Claimant. On 9th May the Claimant sent Mr Greer four emails (263 – 266), relating to the investigation into the email trail, complaining, amongst other things, of a difference in treatment between herself and her colleague Ms Hancock and demanding an explanation. Mr Greer responded (264) that she should not have been sending emails while she was stationed at the ticket desk because she should have been dealing with customers and because she was in a location open to the public. He told the Claimant not to send “any further emails while you are meant to carry out other tasks”. These new emails would be investigated this separately.[54]The Claimant responded by return email to Mr Greer that her colleague Ms Hancock had sent an email from the ticket desk on Monday but was not investigated. She wanted an explanation for the difference in treatment and said that she was feeling discriminated against. The to and fro continued, with Mr Greer saying he would add the Claimant’s latest email to the investigation (265). Mr Greer asked Ms Carbutti to investigate both the Claimant’s 4 emails sent from the ticket desk and the email she subsequently sent saying that she was being discriminated against.[55]Ms Hancock had sent an email from the ticket desk. The email provided feedback from a member who did not wish to renew his membership. Mr Greer considered that this was an appropriate email to send from the ticket desk - and we accept that the Respondent’s objection was not to all emails from the ticket desk- but that emails which were unrelated to their duties should not be sent.[56]We do not accept the Claimant’s contention that Mr Greer was thereby clamping down on her freedom of expression and that this was a violation of her human rights (WS Para 31).[57]The Claimant attended an investigation meeting with Ms Carbutti in relation to the 4 emails she had sent from the ticket desk on 10th May (287) and the email she subsequently sent to Mr Greer from the office. Ms Carbutti told the Claimant that she would need to send emails of that nature during a break, or in the office from a corner desk where others could not see. No further action was taken.[58]As well as the investigations in May, the Claimant also complains that she was treated less favourably in July when Ms Carbutti told the Claimant that she would investigate an email sent by the Claimant to a visitor to the National Gallery who was enquiring about his lost Oyster card. The Claimant complains that this was unnecessary and part of a plan to demote her from the correspondence team.[59]A visitor to the gallery had asked whether anyone had found his Oyster card. The Claimant had spent time investigating whether an Oyster card, which had been found 3 days before the individual visited the gallery, could be his. Ms Carbutti spoke to the Claimant about her email exchanges with the visitor saying that there had been no need to apologise for not being able to find the Oyster card and that it had been patronising for the Claimant to instruct him “to follow her earlier advice” to report the card as missing. This was not an investigation but informal advice and part of the business of normal day-to-day management.[60]In August 2019 Ms Carbutti spoke to the Claimant again about her emails to a researcher, which had not been helpful, and had resulted in some fairly shirty emails from the researcher. This was perfectly proper managerial advice. Another Visitor Engagement Manager Mr Cloudsley responded to the researcher providing an email address for the curatorial team and apologising for the inconvenience. The Claimant responded by asking to stand down from the correspondence team because Mr Cloudsley had described her efforts as “an inconvenience” to the enquirer. Ms Carbutti told her that correspondence remained part of her duties, and she accepted that.[61]On 14 September 2019 the Claimant sent an email to a visitor who had complained about a gallery warden having left his radio on loudly and enquiring why the National Gallery did not require the wardens to use air pieces. The Claimant’s response was not in standard form and contained incorrect information about the use of earpieces by the security staff. Mr Greer asked Ms Carbutti to investigate this email. (No complaint had been made by the National Gallery staff, but the email had been picked up by Mr Greer who was monitoring email traffic because the client had been raising wider concerns about responses by Securitas staff to the public.)[62]Ms Carbutti asked the Claimant to attend a meeting with her to discuss the email on 6 October 2019. (453) (The delay was caused by the fact that Ms Carbutti and the Claimant had not worked the same shifts before that date.) Ms Carbutti told the Claimant that she should have used the standard reply. The Claimant raised a grievance about this meeting; see below.[63]Following this investigation meeting the Claimant cancelled her shift on 7th October - see further below[64]In September after the Claimant had become a casual, she expressed an interest in stepping up to cover managerial duties which was not responded to. (412). This was not however part of the issues before the tribunal. Other potential claims of harassment / less favourable treatment[65]In September 2018 Ms Carbutti told the Claimant that she should not bring her bag to her while she was on post. The Claimant subsequently protested to Ms Carbutti that she had not objected to the rucksack of a Spanish VEA which was hanging on the back of her seat. Ms Carbutti told the Claimant at the time that she hadn’t seen it. We accept that explanation, given that the Claimant’s complaint relates to only one occasion.[66]On 27 August 2019 the Claimant emailed Ms Vallone, copying in all the Visitor Engagement Managers, saying “yesterday morning in the cloakroom you advised me to find another job and you used the precise words “go away” (direct quote). You also proceeded to advise me about registering with other employment agencies.” She said it was very impolite and offensive to use the word go away and was a comment which had “historical connotations with discrimination”. She said she would not be bullied and, as a British national, had every right to work at the National Gallery.[67]Ms Carbutti asked the Claimant for further details of the incident, but the Claimant refused. Ms Carbutti asked Ms Vallone and another colleague, Ms D’Avino, who was present in the cloakroom during the conversation for their account. Neither supported the Claimant’s allegation that Ms Vallone had told the Claimant to “go away”. Both reported that the Claimant had been complaining about not having as many shifts as the other casuals and Ms Vallone and her colleague suggested different museums and galleries that were looking for casuals. They said that the conversation had been pleasant, and they had intended to be helpful.[68]The Claimant chased Ms Carbutti for an outcome and Ms Carbutti wrote to the Claimant on 30th September (434) to say that she had investigated, that Ms Vallone and her colleague had said that they were making suggestions to help her find additional work as a casual in other museums and the matter was closed.[69]Although we have not heard from Ms Vallone the context of their contemporaneous account rings true and we find that, if Ms Vallone used the words, go away and find another job,” it was in the context of seeking additional casual work (rather than instead of the work at the National Gallery) nor was it said in the bald, unfriendly manner that the Claimant had suggested.[70]The Claimant sent another email to another Italian VEA complaining that his comments were ageist, and she was offended. He apologised and the Claimant complains that he was not investigated for sending an email while at work.[71]The Claimant says that in August 2019 Ms Carbutti told her to “F… Off”. There is no context to this remark in the witness statement. Ms Carbutti says she does not recall this being said and that she would only say this in reply to a joke. In cross examination the Claimant put to Ms Carbutti that it was said when the Claimant was accused of “skyving”, and the Claimant had said that this was not right. Ms Carbutti was equivocal about whether she said this, and we conclude that she did say it. We consider that this was said because the Claimant was difficult to manage, and not because the Claimant was of Arab heritage. Grievance speaking Italian.[72]On 17 August 2019 (360 and 358) the Claimant complained that the Visitor Engagement Managers Ms Carbutti and Lucia (who is Spanish) both continually conversed with colleagues in Italian and Spanish. Mr Greer then met with Ms Carbutti, and Mr Taskin met Lucia about the concerns which had been raised about speaking in Italian and Spanish respectively. In evidence the Claimant accepted that thereafter she had not personally experienced language exclusion again. Demotion from the correspondence team[73]It was a significant part of the Claimant’s case that Ms Carbutti demoted the Claimant from the Correspondence team. In the issues the Claimant says that she was “demoted” in June 2019. The Claimant said in her witness statement that she had been “promoted” to the correspondence team by Mr Jones in August 2018, but that after he had left Ms Carbutti tried to demote her by not assigning her office time to work on her correspondence duties. Mr Jones left the Respondent on 24 June 2019.[74]However, working in the correspondence team was not a promotion. As set out above it was simply that different VEAs got additional training on some aspects of their duties. The Claimant had also previously been in the sales team and to chosen to step down from that team.[75]The Claimant enjoyed office duties and various examples of complaints which she made about insufficient office time appear in the bundle. (9 November 2018 (134) and 12th and 24th and 28th June 2019 (302, 318, 327)). Two of these are before Mr Jones left. She complains that part time staff working 3 days a week and causal staff who are not experienced get more office time than she does.[76]She also complains Ms Carbutti instructed her to cover other positions such as cloakroom - while shown on the rota as in the office - “So that it appeared that I had been assigned office time when I had not been”. She complains that she was instructed to train new cloakroom staff which was not part of her duties while Ms Carbutti remained in the office. However, changes were made on the ground for time to time for operational reasons and there was no evidence from which we could infer that Ms Carbutti changed the Claimant’s duties for anything other than operational reasons.[77]The Claimant also says that, in the attempt to demote her from the correspondence team, Ms Carbutti carried out unnecessary investigations into her emails about the Oyster card (see above) and the use of earphones by security staff, and that, from the end of August, she was effectively downgraded to cloakroom/ticket scanning positions. She also says that a significantly higher number of Black, Asian, and Minority Ethnic workers were given these menial tasks, while Ms Carbutti gave more office time to white British VEAs.[78]In support of her position that the Claimant was not given correspondence duties she produced a table showing the number of office hours per shift worked by the Claimant and her colleague Ms Sharma. This showed that in the period July to November the Claimant worked consistently fewer office hours per shift than Ms Sharma, ranging from 1.71 office hours per shift compared to Ms Sharma 2.56 in July to 0.38 office hours in October compared to Ms Sharma’s 2.22.[79]Ms Carbutti does not accept this. She says that allocating duties was a complicated task, balancing a significant number of variables and that her only concern was to ensure that all the duties were covered by the right staff.[80]The Claimant’s claim that there had been a reduction of correspondence duties was investigated by Ms Ward as part of the Claimant’s grievance (see below). She investigated the Claimant’s shifts in September and found that she had been allocated 16 hours and 15 minutes office time across 13 shifts and had therefore had more office time than the average VEA. In cross examination the Claimant accepted this but said first, that she should have more time in the office than others, because she was on the correspondence team and secondly, that the office time in September only came about because Ms Carbutti was on holiday/away for much of September.[81]We note the Claimant’s table above, but we do not find it indicative of less favourable treatment because of race. The Claimant considered that she was less favourably treated than Ms Sharma but, to establish race discrimination, a difference in treatment and a different in race is insufficient. The tribunal must have material from which we could infer that the reason for the treatment was because of the Claimant race.[82]The rotas in the rota bundle provided to the tribunal evidence the complexity of the task before those doing the allocations. There were a huge number of variables including who was on duty and what the duties were. The duties assigned to the VEAs would differ depending on whether there was an exhibition on, whether it was term time or school holidays, which entrances and cloakrooms to the National Gallery were open. The tasks which needed to be covered had to be juggled with the identity of the staff available to cover (who had been trained in correspondence or sales or education, any adjustments that need to be made for health reasons, which casuals were available). The Claimant herself implicitly acknowledged this when it was put to her that her office hours in May (before Mr Jones left) were similar or lower than her office hours after he had left. She said that that difference was explained by the fact that she was on the sales team in May. In respect of her higher hours in July (when she was still on the sales team) she said that there were no exhibitions on so she would not be selling.[83]For all those reasons it would not have been possible to ensure that all the VEA’s had the same or similar amount of time on each duty. In September and, October the Claimant was casual, which would also affect, in part, her allocation of office time.[84]Although the Claimant did have less office time per shift than Ms Sharma there is nothing to suggest that we should infer that this was related to the Claimant’s Arab ethnicity, rather than to the variabilities highlighted above. When the Claimant said she wanted to leave the correspondence team in August 2019 Ms Carbutti told her that correspondence was part of her duties. Since there are many VEAs who do not do correspondence duties this is not consistent with an individual who is on a campaign to demote the Claimant from the correspondence team because of her ethnic origin.[85]Moreover, it was not always Ms Carbutti who allocated the office duties. As the Claimant says Ms Carbutti was away for much of September and the allocation of office time in November and October was largely determined by Mr Cloudsley. Exclusion from the shift allocation.[86]The Claimant became a casual with effect from 2nd September. She alleges that she was treated less favourably because of her Arab ethnicity by Ms Bean when she was left off the shift allocation in September and October.[87]The Claimant sent her September availability to Ms Bean in July. However, when Ms Bean sent out the rota on 23rd August the Claimant was given no assigned shifts and her name was “greyed out”. The Claimant emailed Ms Bean on receipt of the rota who immediately apologised, saying that the Claimant’s name had not yet been added to the casuals’ contract list and allocating her shifts. We accept that this was an accident because the Claimant had been left off the list of casual staff. It can be seen from the Claimant’s own table that she did 12 shifts in September, a similar number to the number of shifts that she had done in July when she was a permanent member of staff. This is not consistent with an individual who had been influenced to leave the Claimant out of the rota by her race. Miss Flute, who had become a casual at the same time, had been allocated some shifts but was left off the email distribution list by which the shift allocations were advised to casual staff. We also accept that Ms Bean’s workload had greatly increased in August 2019, making mistakes more likely.[88]The Claimant sent her availability for October to Ms Bean on 26th August. When the Claimant received the October rota on 23rd September her name had again been omitted. The Claimant emailed Ms Bean who was annual leave on 24 September so was not able to immediately respond. Her colleague Petra, who was not aware of the background, sent a standard response about casuals not always getting the shifts that they wanted, though there remained plenty of availability.[89]The same day at 8.21 the Claimant emailed Mr Greer (423) stating that this was the 2nd month in a row that her shifts had been excluded from the rota and she was interpreting it as a form of constructive dismissal. She asked for an investigation. Mr Greer asked her for further details. She sent those details at 10 a.m. that morning saying that she thought that there was an agreement amongst the staff to exclude her from work, that it was discriminatory and bullying. She also complained about(i) Ms Carbutti’s failure to investigate complaints that the Claimant made 27th and 30th August about Ms Vallone’s alleged “go away” comment and(ii) Ms Carbutti’s telling the Claimant to “F off” on 19th August. She also complained about being left off the rota on 22nd September, despite being scheduled to work. Mr Greer asked Ms Ward to investigate.[90]At some point before the end of September the Claimant was allocated shifts for October and her witness statement indicates that she worked 16 shifts in October. Grievance[91]Following her complaint that she had been excluded from the rota and that this was constructive dismissal, the Claimant attended a grievance meeting with Ms Ward on 2nd October. Ms Ward identified her complaints as follows (448). i. that it took over a month for Ms Carbutti to update Claimant on a resolution about the “go away “comment ii. that she was not being allocated sufficient time in the office to allow her to do her correspondence duties and that Ms Carbutti gave preference to Italian nationals; iii. that she was not offered stepping up duties when she had said she was interested; iv. that there was nationality discrimination. Her managers, and in particular the sales manager, Lucia, preferred Spanish members of the team, while Ms Carbutti and Ms Bean who were Italian, preferred Italian members of the team. She said her desired outcome was more office time and for Ms Carbutti and Lucia to be mindful of diversity issues. (We note in passing that the grievance was no longer about not being given shifts) Cancellation of shifts[92]On 7th October, after the grievance meeting, but before Ms Ward had sent an outcome, the Claimant emailed Ms Bean that “due to an incident” reported that morning she could not attend her shift the following day. She also raised a further formal grievance against Ms Carbutti. (460)[93]Her complaint was that that the previous day (6th October) Ms Carbutti had(i) conducted an investigation meeting without warning during a time when she was assigned to work on correspondence duties,(ii) was attempting to demote her from her correspondence duty and(iii) was bullying her and discriminating against her due to her ethnic background. She complained that a fellow member of the correspondence team – Emily Sills – had been assigned four hours in the office that day and she had been stationed at the education centre with no access to emails. (This is the investigation meeting described at paragraph 62 above.)[94]The Claimant said that Ms Carbutti had carried out this investigation without authorisation, and had done so deliberately to undermine her and prevent her from carrying out the correspondence duties. She complained of being bullied and discriminated against because of her ethnic background. She said she would not attend her shift the following day as she had been psychologically shaken by Ms Carbutti’s behaviour.[95]Ms Bean enquired as to the nature of the Claimant’s absence – was she sick. The Claimant said she was not sick and that she was not cancelling her other shifts that week- on 10th 12th and 13th.[96]However, having discussed matters with Mr Greer, Ms Bean cancelled the remaining shifts that week pending an investigation into her complaint. Mr Greer emailed her to say that the shifts would be cancelled to allow time to meet to find out why she had cancelled the shift and to address any outstanding issues. The Claimant complains that this was a penalty, and discrimination, that other staff cancelled their shifts without having a penalty. Mr Greer in turn told the Claimant that(i) they would arrange a meeting, for which she would be paid, to investigate her allegations and(ii) that she had said that the incident had caused her distress and it was not appropriate for her to be placed in the same situation until they had reviewed the situation.[97]Further emails followed – the Claimant complaining that the cancellation of the shifts was a penalty and discrimination and Mr Greer maintaining that as a casual they could cancel her shifts; and they wanted to close out the issues against her line manager before she could return to work in the same environment. Instead, the Respondent arranged shifts for the Claimant at the Tate Modern on her shift days. The Claimant protested that she did not want to go to the Tate. She declined to meet Ms Ward again to discuss the new grievance saying that her email was enough.[98]In any event, having met with Ms Carbutti on 9th October 2019, Ms Ward sent the Claimant an outcome to her grievance on 11th October (498). She reinstated the Claimant’s shifts from 12th October onwards. The Claimant worked the remaining shifts in October.[99]The outcome letter dealt with the grievances raised in the 2nd October grievance meeting as well as the subsequent complaint dated 7th October against Ms Carbutti.[100]As regards office duties Ms Ward sampled the Claimant’s shifts in September and found that on average, she had had more office hours than the average VEA. She also reviewed the daily rotas but could find no evidence that the Claimant had been targeted for duty swapping. Ms Ward also interviewed Ms Carbutti, Lucia and reviewed the notes of the investigations into the members of the VE team about whom the Claimant had made her complaint - Ms Vallone, Ms D’Avino and Mr Fasano. She rejected the assertion that Ms Carbutti was carrying out unnecessary investigations.[101]None of the grievances were upheld although, with regard to the delay in investigating the Claimant’s complaints, Ms Ward communicated to all managers that they should conclude all grievances within 7 days.[102]The Claimant contacted ACAS on 9 October 2019 and the early conciliation certificate was dated 9 November 2019.[103]The Claimant appealed on 15th October 2019. She complained thata. there continue to be an imbalance in the allocation of office hours amongst the casual workersb. she had not received an acknowledgement of her expression of interest in stepping up dutiesc. Ms Carbutti should provide advance warning of investigatory meetingsd. Her flexible working request was rejected, and she was excluded from shift allocatione. there was a pattern of verbal abuse aimed at her by Italian members of stafff. favouritism was applied to Italian members of staff and to Spanish members of staff by the Italian and Spanish managers respectively.[104]The grievance appeal hearing was heard by Mr Woolley on 31st October 2019 and the outcome was sent to her on 5th November (522). The appeal was not upheld. In relation to stepping up duties (not part of the claim to this Tribunal) he concluded that it would be very difficult to offer causal staff stepping up duties because of the unpredictable nature their work patterns,[105]On 10 November 2019 the Claimant wrote to Ms Ward to say that she would no longer be attending any further shifts at the National Gallery. When asked to clarify whether or not she was resigning, the Claimant confirmed that she was and that she would be escalating her grievance to the Employment Tribunal. Her claim was presented the following day 11 November 2019. Submissions[106]For the Respondent Ms Young submitted that all acts of alleged race discrimination or harassment which took place before 8th July 2019 were out of time and did not amount to acts extending over a period. She submitted there was no continuing course of conduct and the events relied on were months apart and not linked. There was no reason why the tribunal should allow such acts to be heard out of time on just and equitable principles.[107]In relation to the Claimant’s claim of direct discrimination the Claimant’s case been inconsistent in the comparisons that she drew. She submitted that the Claimant failed to establish primary facts which the Tribunal could draw an inference of race discrimination and/or harassment. She also submitted that in relation to the Claimant’s case that her dismissal amounted to an act of race discrimination/harassment, the Claimant had resigned - and there had been no breach of the implied term of trust and confidence.[108]The Claimant also made submissions on the facts and submitted that she had been treated less favourably than others. She submitted that these “contraventions” had not occurred in relation to other staff, or would not have occurred to them; and that the Respondent had failed to provide any explanation as to the rationale behind them - so that the Tribunal must hold that the contraventions occurred.
Conclusions
[109]Many of our conclusions are in fact set out in the facts above. We have considered the Respondent’s conduct both individually and standing back and making appraisal of the whole to see whether we could draw inferences of conscious or subconscious racial motivation for any of the Respondent’s actions. We have concluded that we cannot, and that the Claimant has not established the primary facts from which we could, in the absence of an adequate explanation infer race discrimination or harassment related to race. For completeness however we set out our conclusions in relation to each identified issue.[110]The refusal of the flexible working request. This is pleaded as both direct discrimination and harassment, but the Claimant put her case as one of less favourable treatment. She complains that the Respondent focused on whether she had childcare responsibilities, which they should not have done, failed to carry out a proper meeting with her to discuss it, sent her an out-of-date policy and had no good reason to refuse. It is her case that she was treated less favourably than those of Italian descent/nationality and refers to the fact that Mr Fasano and Ms Curci’s flexible working request were accepted.[111]In fact, it was not Ms Carbutti who accepted Mr Fasano’s flexible working request (as the Claimant had believed) but Ms Ward - and he was not permitted to reduce his shift pattern until January 2020- over 6 months later. By then the position on the ground had changed. Consequently, the circumstances of the Claimant when she made her request and that of Mr Fasano and Ms Curci were different so there was no less favourable treatment. There were undoubtedly errors in the process but there was no other material from which we could infer that a hypothetical Italian comparator whose request was considered at the same time as the Claimant’s would have been treated any differently, or that the refusal was related to race.[112]Demotion from the correspondence team. We are satisfied that there was no “demotion”. It is the Claimant’s case that Ms Carbutti carried out unnecessary investigations of her emails in order to formally demote her from the correspondence team. In her witness statement the “demotion” is inextricably linked with the investigations – though the issues are separately set out in the list of issues. We do not accept that there was an attempt to remove the Claimant from correspondence duties. Although there were investigations into her emails, the evidence indicates that these were appropriate.[113]The Claimant submits that Ms Sharma had more office time per shift than she did in the months from July to November. There was a dispute between the parties as to when Ms Sharma became a casual (the Respondent saying that she only became a casual in November and the Claimant disputing this), but either way we do not accept that the reason that Ms Sharma got more average office hours per shift was related to the Claimant’s Arab ethnicity. The Respondent, in drawing up the allocation of daily duties was juggling a number of variables, as set out above, and it would never have been possible for each VEA to have exactly the same number of hours in the office per shift. Although the Claimant has suggested that the reduction in office hours coincided with Mr Jones having left, the evidence did not establish that she worked significantly more office time before he left then after. We accept Ms Ward’s evidence that the Claimant – at least for the month of September - was allocated more than average hours in the office. Further a number of different people were responsible for the rotas – it was not always Ms Carbutti.[114]Exclusion from the shift allocation by Ms Bean. As we have said, the Claimant was left off the shift allocation in September in error. The error was very swiftly rectified. There is no evidence that would lead us to infer that Ms Bean left the Claimant off the allocation because of the Claimant’s Arab ethnicity. As to October, we do not accept that this amounted to less favourable treatment on the grounds of the Claimant’s Arab ethnicity. We cannot conclude that an individual who was not of Arab ethnicity would have been treated any differently. We find that the Claimant’s shifts were cancelled because she had made a complaint and Mr Greer wanted to get her out of Ms Carbutti’s orbit until the investigation had taken place. Once that was done her shifts were reinstated. The evidence before us does not suggest that the cancellation of her shifts was related to race.[115]Language exclusion. The Claimant does not refer to this in her witness statement, but it does appear in the list of issues, and she did raise a grievance about this which was investigated by Ms Ward. Ms Carbutti accepted that she spoke Italian to some staff and that Mr Greer had raised this as a concern with her. The Claimant accepted that, after she had complained in her grievance of 17 August 2019, she had not experienced language exclusion again. While speaking in a language that others cannot understand could in many circumstances amount to harassment related to race, in the circumstances where the Claimant’s complaint was taken seriously and the practice stopped, we find that the language exclusion was not sufficiently serious to meet the test of harassment in section 26.[116]Comments and questions about the Claimant’s ethnicity. Our findings are set down from paragraph 35 onwards. The Claimant was sensitive about questions relating to her ethnicity. That is not a criticism. She is British and such questions can indeed be offensive. However, these questions need to be looked at in the context of the Respondent’s workplace where employees were drawn from all over the world and may be regarded as attempts to get to know each other. The Claimant did not complain officially, so that the various different employees about whom the Claimant complains may not have been aware of her objections. We find that, whether taken individually or together, and in the context of the Respondent’s workplace, these comments do not meet the threshold where they can be said to have violated her dignity, or to have created an intimidating, hostile, degrading, humiliating or offensive environment for her.[117]The Claimant has complained about other comments such as Ms Carbutti telling her to “F off” and Ms Vallone telling the Claimant go away and find another job. We have set out our findings of fact in relation to those above. We do not accept the F off comment was related to the Claimant’s Arab ethnicity – but was related to the fact that the Claimant was difficult to manage. Ms Vallone did not tell her to go away and find another job. On the contrary she was trying to be helpful to the Claimant in suggesting ways in which she could boost her income.[118]Investigations into the Claimant emails. Providing effective and courteous responses to emails was key to the contract which the Respondent had with the National Gallery and part of their KPIs. The Claimant may have disagreed with some of the criticisms made of her emails but there was nothing to suggest that the criticisms were not genuine. Ms Keltie had complained, and the Claimant was aggrieved. However, Mr Greer had reason to be annoyed that the Claimant had then made matters worse by seeking to justify her emails to the client. Ms Hancock is not of Arab ethnicity was also ticked off. Other emails were considered to be in breach of the Respondent’s guidelines. We have seen those emails and, in each case, consider that there were proper grounds for the Claimant to be spoken to. It was Ms Carbutti’s job to manage the Claimant and there was nothing before the tribunal to suggest that she would have treated an employee who was not of Arab ethnicity in any different way in materially similar circumstances. Nor could there be said to be any harassment related to race - this was normal day to day management.[119]Constructive discriminatory dismissal. The Claimant resigned. The Respondent was not in fundamental breach of contract. The Claimant had presented a grievance which was investigated but not upheld. There was nothing inherently discriminatory in the way the Respondent dealt with the grievance. We do not accept that the investigations were unnecessary or that the Claimant was treated differently because of her ethnicity.[120]The claim is dismissed.