Miss A Agili-Odion v Central London Community Healthcare NHS Trust: 2204969/2023
EMPLOYMENT TRIBUNALS
Case No 2204969/2023
Between
Miss A Agili-OdionClaimantCentral London Community Healthcare NHS TrustRespondent
Before
Employment Judge SinghIn-person for claimantMs D Van Den Berg (instructed by Counsel) for respondentDate 22 February 2024
JUDGMENT
[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of direct age discrimination is not well-founded and is dismissed.[3]The complaint of constructive discriminatory dismissal is not wellfounded and is dismissed. Protected disclosure[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.[2]The complaint of automatic unfair (constructive) dismissal under s.103A of the Employment Rights Act 1996, is not well-founded and is dismissed. 10.7 Judgment with reasons – rule 62 March 2017 Case No: 2204969/2023[1]The complaint of direct race discrimination is not well-founded and is dismissed.[2]The complaint of direct age discrimination is not well-founded and is dismissed.[3]The complaint of constructive discriminatory dismissal is not wellfounded and is dismissed. Protected disclosure[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.[2]The complaint of automatic unfair (constructive) dismissal under s.103A of the Employment Rights Act 1996, is not well-founded and is dismissed.
REASONS
[3]On 19th October 2021, the Claimant began working for the Respondent, an NHS Trust, as a Band 5 Clinical Psychological Assistant Practitioner.[4]As part of the Claimant’s induction, Dr Walsh provided an induction plan. The Claimant disputes that this was sufficient.[5]Two incidents took place during assessments with service users that are relevant to the complaints of race discrimination. These were on the 26th January 2022 and the 1st February 2022. The Claimant alleges that she was subjected to race discrimination by service users and there were inadequate steps taken by the Respondent during and after the incidents.[6]A mid probation review took place on the 8th February 2022 with Dr Walsh. The decision was made to extend the Claimant’s probation by a further 4 weeks.[7]The Claimant alleges that she completed a DSE assessment in March 2022 which recommended some equipment be provided for, when working at home and at the Respondent’s offices. The Claimant alleges that this equipment was not provided.[8]The Claimant also alleges that she raised health concerns she had with Dr Daddi on multiple occasions between January and July 2022 but that these were ignored by him.[9]On the 25th April 2024, the Claimant attended a meeting with Dr Daddi and Dr Gopal. In this meeting, the Claimant gave a presentation about data security. The Claimant explained in the presentation the new rules that needed to be followed to ensure emails containing sensitive or confidential information were sent securely.[10]By the 5th May 2022, Dr Walsh and Dr Daddi had put together a “End of probation” report setting out the concerns about the Claimant.[11]A further probation review meeting took place on the 17th May 2022 with Dr Daddi and the Claimant. At that meeting, Dr Daddi decided that the Claimant had not passed her probation as she had not met the expected standards of work. It was his recommendation that the Claimant’s employment be terminated.[12]The Claimant was invited to a final probation hearing on the 13th June 2022 in order that the Claimant could argue against the decision to end her employment because she had failed her probation.[13]A day prior to that meeting, the Claimant submitted a detailed written response. As such the meeting was postponed. The Claimant then went on sick leave between 22nd June 2022 and 4th August.[14]The formal probation review hearing eventually took place on the 11th October 2022, chaired by the Director of Operations, Phillipa Johnson.[15]The Claimant resigned her employment on the 12th October 2022. She was placed on special leave, as per her request, until the end of her notice period.[16]The Claimant made a formal complaint on the 28th October 2022. The basis for this complaint was a breach of confidentiality/data protection. The Claimant complained that Dr Daddi had breached her confidentiality by sharing the probation review with other members of staff to seek their comments.[17]The Claimant’s employment ended on the 12th December 2022.[18]Natalie Stewart carried out the investigation into the Claimant’s grievance and produced a report on the 12th April 2023. This was sent to the Claimant on the 12th May 2023. Claims and issues[19]The Claimant’s complaints were as followsDirect race discrimination[20]The Claimant is of Black ethnicity.[21]The Claimant claims that she was subjected to the following acts of less favourable treatmenti. On 26th January 2022, following a client racially harassing the Claimant, Dr Walsh not ending the session, and not warning the client as per the Respondent’s traffic light policy or reasonable alternative, and completing a Datix describing the incident as indirect racism and connecting the Claimant with a black woman for support. ii. On 1st February 2022, following a client racially harassing the Claimant, Lucy Kearney not ending the session, and not warning the client as per the Respondent’s traffic light policy or reasonable alternative, and that Dr Daddi did not provide the Claimant with access to peer support. iii. By ignoring health concerns raised by the Claimant. Specifically, that the Claimant raised health concerns to Dr Daddi on multiple occasions from January 2022 to July 2022. The concerns were: that she was not able to sleep and that her focus and attention had reduced; that the DSE had made recommendations to adapt her work environment which were not actioned ; and her levels of stress and low mood. iv. By the Respondent not providing the Claimant the equipment recommended for her following her second DSE assessment, (and raised in her email of 25 March 2022 to Dr Daddi) at any time. v. On 17 May 2022, Dr Daddi sharing with Dr Walsh, Dr McKellar and Dr Gopal, the Claimant’s probation report. vi. Following the Claimant raising a complaint about data protection breaches on 27 October 2022, and chasing for a response on a number of occasions up to 06 February 2023, the Claimant being ignored in the sense that as at 06 April 2023 she had received no reply.[22]The tribunal must first determine whether or not those incidents occurred.[23]Next, the tribunal must determine whether or not the acts amounted to less favourable treatment. This is done by comparing the Claimant to a comparator. The comparator can be a real or hypothetical person but must be someone with similar circumstances to the Claimant, save that they do not share the protected characteristic being relied upon by the Claimant.[24]In relation to this claim the Claimant relied upon a hypothetical white comparator.[25]Finally, the tribunal must decide whether the reason for the treatment was race. Direct Age discrimination[26]The Claimant was aged 26-27 during her employment with the Respondent.[27]The act of direct age discrimination alleged is i. The Respondent providing the Claimant with an onboarding plan which was outdated and did not provide all of the information the Claimant required to do her job well.[28]The Claimant relies upon a hypothetical comparator aged in their midthirties.[29]Again, the tribunal must determine if the reason for the treatment was age. If this is shown, the tribunal must go on to determine if the Respondent can justify the treatment as being a proportionate means of achieving a legitimate aim. Protected disclosure detriment[30]Did the Claimant make a protected disclosure when giving the presentation to Dr Gopal and Dr Daddi about secure emails? Specifically, i. Was this a disclosure of information rather than a mere allegation? ii. Did the Claimant believe that the disclosure was being made in the public interest? Was it reasonable for C to hold such a belief? iii. Did the Claimant believe that the disclosure tended to show that a relevant malpractice pursuant to s43B(1)(b) of the Employment Rights Act 1996 had been committed? (i.e. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, namely breach of the duty to ensure patient data is sent securely and not to breach the GDPR. iv. Was it reasonable for the Claimant to hold such a belief?[31]If so, was the Claimant subjected to the following detriment because of that disclosure? i. On 17th May 2022, Dr Daddi sharing with Dr Walsh, Dr McKellar and Dr Gopal, the Claimant’s probation report. Constructive discriminatory dismissal[32]Although the Claimant was not dismissed, she claims that her resignation as a constructive dismissal. The Claimant was not employed for at least 2 years as at the date of the employment ending and so could not pursue a claim of ordinary unfair dismissal but alleged that her constructive dismissal was discriminatory. In order to determine this, the Tribunal must consider the following issues-[33]Did the Respondent discriminate against the Claimant, in a way that was also a fundamental breach of the Claimant’s contract of employment amounting to a repudiation of the contract, entitling t h e Claimant to terminate the employment without notice, within the meaning of s.39(7) of the Equality Act 2010? i. The alleged acts upon which the Claimant relies as constituting such breach are the acts of direct race and age discrimination and the Respondent not properly investigating and the delay in addressing the Claimant’s complaint about the disclosure of her probation report and the probation process which she raised verbally to Dr Daddi and Dr Walsh during a meeting In May 2022, and raised again in writing to HR on 10th June 2022.[34]Did the Claimant resign in response to such a breach?[35]If so, did the Claimant do anything to affirm her contract of employment? Constructive Protected Disclosure Dismissal[36]The Claimant also alleges that her resignation was because she made a protected disclosure. The tribunal therefore also needed to determine the following-[37]Did the Respondent subject the Claimant to a detriment contrary to s.47B of the Employment Rights Act 1996, in a way that was also a fundamental breach of the Claimant’s contract of employment amounting to a repudiation of the contract, entitling her to terminate the contract without notice, within the meaning of s.95(1)(c) of the Employment Rights Act 1996?[38]The alleged acts upon which the Claimant relies as constituting such breach is Dr Daddi sharing the report on the 17th May 2022.[39]Was the reason for the treatment the fact that the Claimant had made a protected disclosure?[40]Did the Claimant resign in response to such a breach?[41]If so, did the Claimant do anything to affirm her contract of employment? Jurisdiction[42]In respect of the Equality Act claims that arose prior to 6th December 2022, the Respondent asserts that those claims are prima facie out of time as they took place more than three months prior to the Claimant contacting ACAS on 5th March 2023.[43]In respect of those acts or omissions which occurred prior to 6th December 2022: i. Do any or all those acts or omissions form part of a course of conduct by the Respondent extending over a period of time within 3 months of the presentation of the claim, subject to ACAS early conciliation? ii. If not, is it just and equitable to extend the time limit in respect of those allegations?[44]In respect of any Protected Disclosure Detriment claims, the Respondent asserts that those claims are prima facie out of time as they took place more than three months prior to the Claimant contacting ACAS on 5th March 2023.[45]In respect of those acts or omissions which occurred prior to 6th December 2022: i. Do any or all of those acts or omissions form part of a series of detriments, with the last in the series having occurred within 3 months of the presentation of the claim, subject to ACAS early conciliation? ii. If not, was it not reasonably practicable to bring the claims within the three-month time limit, and if so were they brought within such further period as the Tribunal considers reasonable? The law Direct discrimination
The law
[46]Section 13 of the Equality Act 2010 (“EqA”) provides: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[47]A tribunal must firstly consider that the alleged act of discrimination occurred.[48]If that is accepted, they must then go on to consider whether there has been less favourable treatment.[49]The Claimant must compare themselves to a comparator. That comparator can be a real or hypothetical person but must be of similar circumstances to the Claimant, save for the protected characteristics being relied upon.[50]The tribunal must decide whether or not that comparator would have been treated the same or better than the Claimant in the same circumstances.[51]If that is accepted, the Claimant must then show to the tribunal that the reason for the treatment was the protected characteristic.[52]If they are unable to provide clear evidence of this, a Claimant can establish a prima facie case of discrimination in order to shift the burden of proof. If the Claimant is able to provide examples of other discriminatory treatment or conduct which, in the absence of any other explanation, would allow tribunal to make a finding that the reason for the treatment was the protected characteristic, the burden will then shift to the Respondent to provide a non-discriminatory reason.[53]If the Respondent is unable to provide such a reason which the tribunal accepts, then the claim will succeed.[54]In Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) ICR 337, Lord Nicholls in the House of Lords (NI) said that the Tribunal should focus on the primary question which was why the complainant was treated as he or she was? The issue essentially boiled down to a single question: did the complainant, because of a protected characteristic, receive less favourable treatment than others? At paragraphs 7 of his judgment we find the following passage: "Thus the less favourable treatment issue is treated as a threshold which the Claimant must cross before the tribunal is called upon to decide why the Claimant was afforded the treatment of which she is complaining.[55]And further at paragraph 11: “Employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others."[56]In Nagarajan v London Regional Transport (1999) ICR 877, a case concerned with the definition of direct discrimination under the previous legislation of the Race Relations Act 1976 (which referred to treatment ‘on racial grounds’), the House of Lords considered the proper approach to dealing with discrimination cases. In that case Lord Nicholls said: “a variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds… had a significant influence on the outcome, discrimination is made out’. The crucial question, in every case, was ‘why the complainant received less favourable treatment..?”[57]In Chief Constable of West Yorkshire Police v Khan (2001) ICR 1065 the House of Lords made it clear that in a case of alleged subjective discriminatory treatment the test to be adopted was: a tribunal must ask itself why did the alleged discriminator act as he or she did? What, consciously or unconsciously, was his or her reason?[58]In the case of Stockton on Tees Borough Council v Aylott [2010] ICR 1278, CA, Mummery LJ (at paragraph 49) said: ‘Direct discrimination claims must be decided in accordance with the evidence, not by making use, without requiring evidence, of a verbal formula such as “institutional discrimination” or “stereotyping” on the basis of assumed characteristics. There must be evidence from which the employment tribunal could properly infer that wrong assumptions were being made about that person's characteristics and that those assumptions were operative in the detrimental treatment.’ Protected disclosure[59]Section 43B of the Employment Rights Act 1996 sets out the definition of a protected disclosure.[60]The tribunal must first consider whether there has been a qualifying disclosure. This must be a disclosure of information and must be more than a mere allegation. A detailed consideration of what amounts to a ‘disclosure of information’ for the purposes of S.43B was undertaken by the EAT in Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325, EAT[61]The disclosure must do more than make accusations of voice concerns. There must be information conveyed about what is being alleged. The induvial must convey facts to the employer.[62]This disclosure must be about one of the alleged offences set out in section 43B and it must be, in the reasonable belief of the individual, in the public interest.[63]That does not mean however that complaints about private employment contractual obligations cannot be in the public interest. In the case of Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening) 2018 ICR 731, CA, the tribunal decided that if the issue affected a large enough group of employees, it could be deemed in the public interest.[64]The same outcome may arise if the Respondent is a public service such as a government department or an NHS Trust, given they are funded by the public and work direct for the general public so any of their misdeeds are likely to be in the public interest.[65]If the tribunal finds that a protected disclosure has been made, then they must go on to find that the reason for the treatment was the protected disclosure. S47B of the Employment Rights Act 1996 states that A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[66]In any detriment claim under that provision, it is for the employer to show the ground on which any act, or deliberate failure to act, was done. This means that once the Claimant has established that they have made a disclosure and that they have been subjected to a detriment, the burden will shift to the Respondent to prove that the worker was not subjected to that detriment because of the disclosure.[67]The mere fact that a ‘detriment’ arises and that the worker suffers as a result is not enough. In order for liability under S.47B to be established, the worker must show that the detriment arises from the act or deliberate failure to act by the employer, other worker or agent. Only then can the worker say that he or she has been ‘subjected to’ the detriment in question.[68]The test is different however for an unfair dismissal claim. S103A of the Employment Rights Act 1996 states that An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[69]As seen from that wording, the tribunal must find that the disclosure was the reason or principal reason for the dismissal, rather than just being “on the ground of” the disclosure. The latter claim may be established where the protected disclosure is one of many reasons for the detriment, so long as the disclosure materially influences the decision-maker, whereas S.103A requires the disclosure to be the primary motivation for a dismissal.[70]The principal reason is the reason that operated on the employer’s mind at the time of the dismissal as set out by Lord Denning MR in Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA. If the fact that the employee made a protected disclosure was merely a subsidiary reason to the main reason for dismissal, then the employee’s claim under S.103A will not be made out. Findings of fact Induction
Findings of fact
[71]On 19th October 2021, the Claimant began working for the Respondent, an NHS Trust, as a Band 5 Clinical Psychological Assistant Practitioner.[72]The tribunal accepted that the Claimant had no previous practical experience in the role. The Respondent was aware of this and hired her to the post despite her lack of experience. The Claimant was under a 6- month probation period.[73]The Claimant’s clinical supervisor was Dr Jessica Walsh. Her superior was the team leader, Dr Inderpal Daddi. Dr Daddi was absent from work on paternity leave between 18th January to 14th March 2022 and Dr Sheetal Gopal substituted for him.[74]The Claimant alleges that the “Onboarding Plan” that she was provided with when she started was outdated and did not provide all the information, she needed to be able to do her job well.[75]The Tribunal did not accept this. The Tribunal heard evidence from Dr Walsh about the induction plan that was provided for the Claimant. She took the tribunal through the induction plan that was included in the bundle (page 642). This set out a plan for the Claimant for each day over her first 3 weeks of employment with the Respondent.[76]There was also a document entitled “New Stater Induction & Checklist” (page 617) which was a 25 page document providing information about the service the Claimant would be working in. The Claimant alleged that this document was “the bare minimum” and was not thorough enough but did not explain what information was missing from this which would have been necessary to allow her to do her job well.[77]We noted that the Claimant did not say during her employment that the induction document was insufficient or that she felt she needed more training.[78]We noted also that the Claimant accepted that Dr Walsh also provided additional training documents and guidance to the Claimant to help her learn about her role. The Claimant also accepted that Dr Daddi provided the Claimant with additional resources during her employment.[79]The tribunal took all those things- the induction document, the induction timetable and the additional information provided by Dr Walsh and Dr Daddi to form the “Onboarding plan” for the Claimant. It was clear to the tribunal from the evidence of the Respondent’s witnesses that they were acutely aware of the Claimant’s lack of experience in a role such as this and wanted to do all they could to help her get to grips with it.[80]On that basis the Tribunal did not accept that the Onboarding Plan did not provide the Claimant with all the information she needed to carry out her role.[81]Further, in relation to it being “outdated” the Claimant explained that she meant that some of the template documents that were referred to in the induction document were out of date as they were not the ones being used by the team at the time.[82]The Claimant explained that she used the ones being indicated in the induction document but was then “told off” for using the wrong ones. She later found out that the team was using different, updated versions. The tribunal accepted that out of date templates were referred to in the Onboarding Plan.[83]However, there was no evidence that any other new starter who started at the same time as the Claimant would have received a different Onboarding Plan or access to the up-to-date templates. The racist incidents[84]Two incidents took place during assessments with service users that are relevant to the complaints of race discrimination.[85]On the 26th January 2022, during a telephone assessment with Dr Walsh and a client, which the Claimant was sitting in on, the Claimant alleges that comments were made by the client which were racist in nature. Neither party provided specific details as to what was said and the comments themselves were not part of the claim.[86]Dr Walsh’s evidence was that she did give a warning to the Client. She said that she told the client that the comments were not appropriate and that there were no further comments after that. The Claimant accepted this in cross examination. The session however was not terminated early- both parties agreed this.[87]The Claimant claims that Dr Walsh failed to follow the correct procedure regarding “Tackling unacceptable behaviour” by failing to warn the client when they made the comments and then failing to terminate the session early when the warnings were not heeded.[88]The Tribunal were taken to the “Tackling unacceptable behaviour” document. The policy states that the immediate actions the staff member should take were to tell the individual to stop the behaviour, confirm which words being used or behaviour is unacceptable and if there is potential or physical assault that this should be reported to the police immediately.[89]Neither party to the claim suggested there had been a physical assault or potential one. The incident appeared confined to words used towards the Claimant which were racist.[90]We noted that the policy did state that staff members should give warnings and then follow through with consequences, however there was not anything specific in the policy which said sessions should be terminated.[91]The yellow and red cards referred to in the policy were written warnings sent out after the session, rather than warnings given during the session that would have a similar consequence to such cards in a sports matchi.e. that the yellow is a warning and a repeated offense will lead to a red card, that is, the session being terminated immediately.[92]Dr Walsh confirmed in her evidence that the client in this incident had a “Mild” learning disability, mild enough that the assessment could be carried out over the phone rather than needing to be in-person. This client took part in the assessment without a caregiver.[93]It was put to Dr Walsh whether it would have been possible or appropriate to end the session or break it up into more than one. Dr Walsh said that she would only do that if there was a clinical need to do so and only if there was no risk of the client being upset.[94]We found that therefore it would have been at least possible to end the session early and continue at a later date, however, as stated, nothing in the Respondent’s unacceptable behaviour policy stated that this is what must be done. Nor was there evidence that the Claimant requested that the session be terminated early because she was upset by what the client had said.[95]Following the incident, Dr Walsh completed a “Datix” report. The Claimant alleges that Dr Walsh called the incident “indirect racism”.[96]We read the Datix (page 187). Dr Walsh did not use the phrase “indirect racism” but twice said that the incident/comments “could be interpreted as racism”.[97]Dr Walsh explained she had used that phrase because the comments were directed to her and therefore, she was saying they could be interpreted as such by the subject of the comments (that is, the Claimant).[98]Following the incident, on the 28th January 2022, Dr Walsh emailed a member of staff, Judith Davis, who was the facilitator of the Respondent’s Race Equality Network. It was confirmed that Ms Davis was a black woman.[99]In that email Dr Walsh says that during the incident she explained to the client how his comments could be interpreted as racist. She asks whether the Claimant could connect with someone who may have experienced similar situations. Dr Walsh asks if, as the REN facilitator, whether Ms Davis could assist in finding someone for the Claimant to talk to. Ms Davis replies and says the Claimant can connect with her.[100]A further incident took place on the 1st February 2022. This time the Claimant was observing a colleague, Lucy Kearny. In this therapy session the Claimant was again subjected to racist comments by a client. Again, the Claimant alleges that proper warnings were not given, and Ms Kearny did not terminate the session when the warnings were not heeded. Ms Kearney was not present during the hearing due to being out of the country but had provided a witness statement.[101]Again, we were not given details of the comment that was said to the Claimant. The comment itself was not the subject of any of the Claimant’s complaints so we did not pry further into it. Both parties agreed that it was racist in nature.[102]Ms Kearney’s statement said that she addressed the comment made at the time it occurred. She says she told the client “We don’t tolerate this and its not acceptable” or something similar.[103]She agrees she did not terminate the therapy session. Ms Kearney says that the client took on board the warning that had been given and did not make any further inappropriate or racist comments.[104]Ms Kearney said she did not terminate the session because she did not want to fracture the client/psychologist relationship.[105]Ms Kearney said that following the session, she spoke with the Claimant and the Claimant did not seem upset or allege that Ms Kearney had mis-handled the situation.[106]The Claimant accepted in her evidence that Ms Kearney had said to the client that what they had said was “not acceptable”. The Claimant also accepted that the client didn’t make any further racist comments after that warning was given.[107]On that basis, we felt that Ms Kearney had followed the Respondent’s procedure and given appropriate warnings.[108]The Claimant said that she felt that the session should have been ended. In evidence the Claimant said that she felt that Ms Kearney should have taken a break to see how the Claimant was.[109]Whilst it was correct that the session wasn’t stopped and there was no break, we note that the Claimant did not say that she asked for a break and that Ms Kearney refused to have one.[110]The Claimant was asked whether a break was appropriate, given what Dr Walsh had previously said about avoiding breaking up sessions to maintain client relationships and for clinical reasons. However, the Claimant said that she felt it was appropriate and she felt confident to be able to say it was because she had read this client’s notes before the session.[111]The Claimant also alleges that she was not provided with access to Peer Support after that incident. Dr Daddi said in his evidence that there was an assistant psychologist at the same band as the Claimant and that she was encouraged to approach them for support.[112]However, this was at the start of the Claimant’s employment and there is no evidence that Dr Daddi took additional steps to provide peer support to the Claimant following the 1st February 2022 incident. Health concerns[113]The Claimant said that she raised health concerns with Dr Daddi between January 2022 and July 2022 and that these were ignored.[114]She says she raised that she was not able to sleep and completed a DSE assessment that made recommendations about workplace adjustments that were not carried out by Dr Daddi.[115]There was a “Report Following Employee Referral to Employee Health Service” in the bundle (page 146). This was dated 25th January 2022 and addressed to Dr Daddi.[116]Dr Daddi’s evidence was that he did not see this until March 2022, as he had been off work from 18th January 2022. We note in his absence that Dr Gopal was taking on his duties.[117]Dr Daddi accepted he didn’t take any action upon seeing the form. He said that he had a handover with Dr Gopal upon his return and she didn’t tell him that there was anything outstanding that needed to be done about the referral form.[118]The tribunal felt that this was a case of the buck being passed and no one taking ownership or responsibility for the form. However, the Claimant did not say that she ever chased Dr Daddi to get him to follow up on the referral form.[119]In relation to the workplace adjustments, Dr Daddi took us through the steps he took following the DSE assessment. He received an email from the Claimant on the 25th March 2022 setting out the adjustments needed.[120]He then arranged a meeting with the Claimant on the 28th March 2022 to discuss the adjustments needed. A further email set out what was discussed and agreed (page 471). Dr Daddi said he would contact Employee Health about the adjustments. He emailed Employee Health that same day and copied the Claimant in. He asked for the adjustments to be provided.[121]Dr Daddi chased this again on the 31st March 2022. He was directed by Employee Health to the Health and Safety Team. He emailed them on the 1st April 2022.[122]On the 25th April 2022, he sought to chase up further by emailing 2 other people- Kunden Patel and Phil Williams. One of the Health and Safety Team, Andy Basham, emailed the Claimant and Dr Daddi on the 25th April to apologise for not replying sooner. He asked for a copy of the DSE assessment and for the Claimant to send photos of her workstation. The Claimant replied on the 27th April to say she would provide the pictures but needed some time.[123]On the 10th May 2022, Dr Daddi enquired with the Claimant as to whether she had provided the pictures. He chased Mr Basham and the Claimant again on the 13th June 2022. The Claimant must have provided them by this point as Mr Basham replies on the 14th June 2022.[124]Mr Basham agrees the Claimant could benefit from some additional equipment and directs her to where she can see what equipment is available to purchase. On the 14th June 2022, Dr Daddi requests that some equipment for the Claimant to use at home is ordered. He then tells the Claimant that equipment she needs for working in the office is already available at the office. He offers that she can work in the office until the order has been delivered. The Claimant is asked to sign a form and on the 14th June 2022 says she will do it the next day.[125]Dr Daddi puts through an order on the 16th June 2022. This then appears to go out of Dr Daddi’s hands and the person who is responsible for the order- Frances Cassius takes over. The Claimant chases them in August 2022 for the equipment. Kunden confirms that it was signed off by the 31st August 2022.[126]On the 7th September 2022 the Claimant confirms she has collected two items from the office and asks for the rest to be sent to her home address.[127]It was clear from the documentary evidence that Dr Daddi did action the DSE recommendations. He took steps to discuss them with the Claimant, contacted the right departments to have them ordered and even chased things up on a regular basis. His own involvement stopped In June 2022 but the Respondent organisation continued to process the Claimant’s order. The Claimant’s probation report.[128]A mid probation review took place on the 8th February 2022 with Dr Walsh. Dr Walsh states that she raised concerns about the Claimant’s time keeping, attention to detail, relationships with colleagues, knowledge of colleague’s roles and prioritisation skills in those meetings.[129]Dr Walsh states that although the Claimant had made some progress, she still had concerns about the Claimant’s ability to carry out her role. The decision was made to extend the Claimant’s probation by a further 4 weeks.[130]By the 17th May 2022, Dr Walsh and Dr Daddi had put together a “End of probation” report setting out the concerns about the Claimant, as well as the support that had been provided to her. A further probation review meeting took place on the 17th May 2022 with Dr Daddi and the Claimant. At that meeting, Dr Daddi decided that the Claimant had not passed her probation as she had not met the expected standards of work. It was his recommendation that the Claimant’s employment be terminated.[131]Dr Daddi then put together a further document called “Final Review Report”. He said he was instructed by HR to out this together. It was different from the first document as it appears to be more formally structed, as well as having NHS logos on it. Dr Daddi said that he had support from the Respondent’s HR to complete this document.[132]Dr Daddi confirmed in his evidence that he had carried out probation reviews before, but this the first time he had done one where there were concerns about someone passing their probation. This was not challenged by the Claimant.[133]Dr Daddi then sent the report to 9 other members of staff. When questioned about this, the Claimant stated that she did not object to the report being sent to most of those people, however she did object to it having been shared with Dr Walsh, Dr McKellar and Dr Gopal.[134]The tribunal questioned Dr Daddi as to why those people had been sent the report to review.[135]In relation to Dr Gopal, Dr Daddi said that he had sent her the report as she had been responsible for supervising the Claimant when Dr Daddi was absent and, in particular, during the time of the Claimant’s midpoint review. He felt that her feedback as to how the Claimant had progressed since then would have been useful. The Claimant did not challenge this.[136]In relation to Dr McKellar, Dr Daddi explained that he had offered the Claimant ongoing support sessions on “what it means to be a clinical psychologist”. Dr Daddi therefore felt that it was necessary to share the report with Dr McKellar so he could confirm the accuracy of the statements about what support the Claimant had received. Dr Daddi also said he wanted Dr Walsh to feedback on the Claimant as a whole. Again, this was not challenged by the Claimant.[137]In relation to Dr Walsh, she had been involved in the creation of the report.[138]The Claimant was invited to a final probation hearing on the 13th June 2022 in order that the Claimant could argue against the decision to end her employment because she had failed her probation.[139]A day prior to that meeting, the Claimant submitted a detailed written response. As such the meeting was postponed. The Claimant then went on sick leave between 22nd June 2022 and 4th August, delaying the meeting further.[140]The formal probation review hearing eventually took place on the 11th October 2022, chaired by the Director of Operations, Phillipa Johnson.[141]The Claimant resigned her employment on the 12th October 2022. She was placed on special leave, as per her request, until the end of her notice period.[142]The Claimant made a formal complaint on the 28th October 2022. The basis for this complaint was a breach of confidentiality/data protection. The Claimant complained that Dr Daddi had breached her confidentiality by sharing the probation review with other members of staff to seek their comments.[143]The Claimant also made a complaint to the ICO about the fact the report was shared with others and the ICO replied on the 22nd May 2023 (page 611) to say that the Trust had investigated and accepted that the report had been inappropriately disclosed to members of staff which was not necessary. The ICO found that there had been an infringement of data protection law on that basis.[144]The Claimant’s employment ended on the 12th December 2022. Investigation into the Claimant’s complaints[145]The Claimant’s complaint of the 28th October 2022 asked for an investigation into the breach of “GDPR, confidentiality and good conduct” regarding Dr Daddi sharing the probation report. The Claimant complained that the report had been shared without her knowledge or consent.[146]Natalie Stewart carried out the investigation into the Claimant’s grievance and produced a report on the 12th April 2023. This was sent to the Claimant on the 12th May 2023.[147]Mark Mbogo wrote to the Claimant on the 10th June 2023 with his decision on the grievance, based on the report prepared by Natalie Stewart. The Tribunal heard evidence from Mr Mbogo.[148]Mr Mbogo said that the Claimant received an email on the 9th November 2022 telling her the complaint was being looked into. This was sent by Phillipa Johnson who said she was trying to appoint an investigator.[149]She then appointed Annabel Rule by December 2022. It was clear from her email of the 6th December 2022 (page 607) that she had spoken to the Claimant so by then the Claimant would have been aware someone had been nominated to investigate and was moving it forward.[150]Due to Ms Rule’s workload, the investigation was then passed to Natalie Stewart on 13th January 2023. We did not hear evidence as to when Ms Rule identified that she would be too busy to complete the investigation or why this wasn’t picked up earlier.[151]Ms Stewart interviewed Ms Rule on the 9th January 2023, Dr Daddi on the 8th February 2023 and Caroline Law on the 21st March 2023. Mr Mbogo explained that Dr Daddi had been on career break between 30th December 2022 and 6th February.[152]We note that there was no contact with the Claimant from Ms Stewart after she took over the investigation. However, we also noted that the Claimant did not chase anyone at the Respondent to find out what was happening with regards her grievance. The protected disclosure[153]On the 25th April 2022, the Claimant attended a meeting with Dr Daddi and Dr Gopal. In this meeting, the Claimant gave a presentation about data security. The Respondent had recently migrated to all staff using a different email server (from gov.uk to nhs.net) and that the rules for ensuring that emails were sent securely were different. The Claimant explained in the presentation the new rules that needed to be followed to ensure emails containing sensitive or confidential information were sent securely.[154]The Claimant presented the information in the form of a PowerPoint presentation, but we hadn’t been supplied with a copy to see.[155]Following that meeting, Dr Daddi sent an email to all his team relaying what the Claimant had explained to him and setting out the correct way to ensure emails were sent securely.[156]He also completed a Datix on either the 25th or 26th April 2022. This was responded to by the Respondent’s IG Facilitator. The facilitator said that there was no need to follow the instructions the Claimant had said needed to be followed as gov.uk emails were secure anyway.[157]Dr Daddi responded to correct the facilitator that he was talking about sending emails from the nhs.net email accounts. The facilitator replied to Dr Daddi and other people in the Trust to ask that the information is shared to the teams, so everyone is aware of the correct process to ensure nhs.net emails are secure. The emails about this were at pages 212-214 of the bundle.[158]Dr Daddi was asked whether he thought that the Claimant was “stepping out of line” when she provided this information to Dr Daddi and Dr Gopal. He said that he did not he thought that the feedback was “really helpful” and that was evidenced by the fact that he had then shared the information to the rest of the team and the wider Trust.[159]The tribunal felt that Dr Daddi was credible here. There was no evidence that he was annoyed or unhappy that the Claimant had provided this information. It was agreed that if he had been, it was highly unlikely that he would have shared the information or been so enthusiastic about going to the wider Trust about it. Decision on claims and issues Direct race discrimination• Dr Walsh’s conduct following the 26th January 2022 incident[160]The Claimant alleges that, following the client racially harassing her in the 26th January 2022 session, Dr Walsh failed to warn the client as per the Respondent’s traffic light policy or a reasonable alternative, then completed a Datix describing the incident as “indirect discrimination” and finally connected the Claimant to a black woman for support.[161]Each of the parts of the allegations were considered separately.[162]In relation to the first part- not ending the session, Dr Walsh accepts that she did not do this. She stated in her evidence that it was in her opinion better for the session to be completed rather than split into two. Dr Walsh stated that had she ended the session early, she would have had to continue it at a later date with the client. She explained that breaking up the session would have been detrimental to her relationship with the client.[163]We accepted Dr Walsh’s evidence around this. It was clear to us that that was the reason she continued with the session.[164]The Claimant relied upon a hypothetical comparator. The tribunal therefore needed to consider whether a hypothetical white person would have been treated the same way in those circumstances.[165]Given Dr Walsh’s explanation as to why she continued with the session, the tribunal found that she would have continued with the session even if a white comparator had suffered harassing comments from the client. On that basis, that aspect of the allegation failed.[166]In relation to the warnings, the Claimant referred to a “traffic light” system. This was a reference to the Respondent “Tackling Unacceptable Behaviour” policy. This did not set out a specific type of warning to be given out.[167]As stated, the Claimant accepted that Dr Walsh did give a warning during the session and no further comments were made by the client after that. On that basis, we find that Dr Walsh did give a warning that was a “reasonable alternative” to what the Claimant suggests under the Respondent’s traffic light policy and therefore this claim fails on factual grounds.[168]In relation to the Datix, Dr Walsh accepted that she referred to the incident as “indirect discrimination” and the tribunal saw the same on the document. Dr Walsh explained that she wrote this because she wanted to describe the fact that she felt the client hadn’t intended to be racist.[169]We had to consider whether a white comparator would have been treated the same- that is had a similar phrase used by Dr Walsh when writing up a Datix. We accepted Dr Walsh’s explanation. It appeared to the tribunal that she wasn’t aware of the legal phrase “indirect discrimination” and instead thought the phrase meant someone who was “inadvertently” racist- that is made a comment that was not overtly racist. In light of this, we accepted that Dr Walsh would have also used the same phrase if a white comparator had been subjected to a similar comment about white people. On that basis, this aspect of the allegation failed.[170]Finally, in relation to the referring the Claimant to a black woman for support, Dr Walsh again accepted that she did this. Dr Walsh explained that she did this because she wanted to support the Claimant by getting her in touch with someone who could empathise with the Claimant.[171]It was difficult to find whether Dr Walsh would have done something different for a white person, given that the inherent nature of the action of Dr Walsh was based on the Claimant being not white. However, we found that this was not an example of less favourable treatment, but of more favourable treatment. Dr Walsh was taking an extra step to ensure the Claimant felt supported. Given that we found there was no unfavourable treatment, this aspect of the allegation failed also.• Lucy Kearny’s conduct during the 1st February 2022 incident[172]The Claimant alleged that Ms Kearny not ending the session and not warning the client were direct race discrimination.[173]As set out above, Ms Kearny accepted that she did not end the session but states that she did give a warning. The Claimant accepted that a warning was given and therefore that aspect of the claim fails.[174]In relation to not ending the session, Ms Kearny gave the same reason as Dr Walsh in that she did not wish to risk rupturing the client/psychologist relationship.[175]Although the Claimant challenged this, given that 2 more experienced people had said this we accepted that this would be the reason that termination of sessions should be avoided unless absolutely necessary. We also took into account that the Claimant accepted that no further comments were made after the warning was given by Ms Kearny.[176]On that basis, we found that, as with the Dr Walsh incident, Ms Kearny would have done the same for a white comparator- that is avoided ending the session early, especially where no further comments were made. As such, this aspect of the allegation failed.• Dr Daddi not providing the Claimant with peer support in Feb 2022.[177]Whilst we accept that Dr Daddi did not connect the Claimant with any particular person as peer support beyond what he did when she first started, we did not find that there had been less favourable treatment.[178]There were no grounds put forward by the Claimant upon which we could find that Dr Daddi would have acted differently to a white comparator. Although we feel Dr Daddi could have done better, race was not a factor in his actions and therefore this claim for direct discrimination failed.• Dr Daddi ignoring the health concerns raised by the Claimant.[179]As stated above, the tribunal accepted there was a failure by Dr Daddi here. There was a passing of the buck between Dr Gopal and Dr Daddi. We find that a reasonable manager would have spoken to the employee directly if they became aware of something like this in a handover, rather than wait for the employee to come to them.[180]However, as above, we did not find that there was any less favourable treatment proven here. Whilst Dr Daddi’s management decision left something to be desired, there was no evidence or arguments put forward upon which the tribunal could find that he would have acted differently for a hypothetical white comparator. This claim therefore failed.• Failing to follow DSE recommendations and provide the equipment recommended.[181]As set out in our findings of fact above, we did not agree with this allegation. It was out finding that the Respondent did follow the DSE recommendations and work with the Claimant to provide the equipment recommended.[182]The equipment required so she can work from the office is provided by around June 2022. Dr Daddi orders the equipment needed so the Claimant can work from home at the same time and offers that the Claimant can work in the office until it does. 2 pieces of the home equipment is provided by the 7th September 2022 and the Claimant requested the remainder be sent to her home address.[183]The wording of the allegation set out in the Case Management Order of EJ Spencer on the 18th July 2023, was that the Respondent had failed to provide the DSE equipment “at any time”. This was clearly not the case. Most of the equipment was provided prior to the Claimant’s employment ending.[184]Even if it were accepted that there was a failure by the Respondent because they did not provide every single piece of equipment suggested by the DSE report, we did not agree that this was less favourable treatment. There were no grounds put forward by the Claimant which showed us that a hypothetical white comparator would have been treated better. As such, the claim fell on this part of the test.• Dr Daddi sharing the probation report with Dr Walsh, Dr Mckellar and Dr Gopal.[185]Dr Daddi admitted to doing this. He stated his reason for doing this was he wanted input from others as this was his first time compiling a probation report where the individual had failed their probation.[186]Whilst we agreed that this was likely to have been distressing for the Claimant and we didn’t agree with Dr Daddi’s actions, that was not what we were here to decide. It was not for us to say what we would have done, but to decide whether Dr Daddi would have done the same for a white comparator.[187]Given there was no reasoning or evidence put forward by the Claimant which would show us that Dr Daddi would have acted differently for a hypothetical white person, we found that there was no less favourable treatment and that this claim failed.• Not responding to the Claimant’s data protection complaints.[188]There were failings by the Respondent in relation to this, but not to the extent alleged by the Claimant.[189]The Respondent did respond to the Claimant on the 9th November 2022 notifying her that she was appointing someone to investigate. That person (Annabel Rule) spoke to the Claimant on the 6th December 2022.[190]A different investigator was appointed in January 2023 and she conducted the interviews which formed the basis for the report. The outcome was not sent to the Claimant until the 12th May 2023.[191]Whilst we accept that there was a period of silence between January and May 2023, and the Claimant had not had the outcome by the 6th April 2023, there had clearly been an acknowledgement of the complaint and the Claimant was aware that it was being looked into.[192]The explanation given by the Respondent was that there was a delay in completing the investigation firstly due to having to change investigators because Ms Rule was too busy and then because of witnesses being unavailable. However, this would not have in our opinion prevented the Respondent from updating the Claimant to let her know that there was going to be a delay until she received her outcome.[193]Again, whilst we were critical of the Respondent’s actions, there was no evidence that a different course of events would have taken place for a hypothetical white comparator. The Respondent had failed in its duty to keep the Claimant updated but this had nothing to do with race on the basis of the evidence presented to us.[194]This claim also failed therefore.• Providing an outdated on-boarding plan which did not provide the Claimant with all the information necessary to do her job well.[195]As per our findings above, we found that the onboarding plan provided was comprehensive and was not “outdated” as suggested by the Claimant. This claim therefore failed on factual grounds.• Constructive discriminatory dismissal[196]The Claimant alleged that she had been constructively dismissed and that was a further act of discrimination.[197]The alleged acts that constituted a fundamental breach of the employment contract were the allegations set out in the direct discrimination section above, as well as the Respondent not properly investigating the Claimant’s complaints about the disclosure of the probation report and the delay in receiving the outcome of the same.[198]In order to succeed with her claim, we would need to find that the acts occurred and that they were discriminatory. We would then need to consider whether they amounted to a repudiatory breach of the employment contract.[199]In relation to the acts in the direct discrimination claim, we have found that none of them amounted to direct discrimination. As such, they would not be able to form the basis for a constructive discriminatory dismissal claim for the Claimant.[200]In relation to the allegations about the not dealing with her complaints about the data protection issue, the Claimant alleges firstly that she raised this in May 2022 to Dr Daddi, verbally and then secondly in an email to HR in June 2022.[201]We can see that the Claimant did mention that she was upset that the report had been shared in her “Response to Report” document that was sent around June 2022. However, although the Claimant says that she is upset, she doesn’t at that stage allege that this is an act of discrimination.[202]Further, as per our findings of fact, we decided that the reason Dr Daddi shared the report was to get the input of his colleagues, as he was unsure about sending out a probation report for someone who was not going to pass. There was no evidence that Dr Daddi’s actions amounted to race discrimination, as per our findings above.[203]We also accepted that HR did not take any action to investigate the Claimant’s complaint in her “Response to Report” document . It was only after the Claimant made a complaint in her resignation letter that they sought to investigate.[204]However, again, there was no evidence that the Respondent’s actions here amounted to race discrimination. The Claimant put no arguments forward to show us that the Respondent’s failures were either because of, or related to race.[205]As such, we could not find that there were grounds for the Claimant to claim constructive discriminatory dismissal and this claim failed. Protected disclosure claims• Did the Claimant make a protected disclosure?[206]The tribunal firstly considered whether there had been a disclosure of information. As set out above, this must be more than a mere allegation. There must be some substance to it. It must convey facts rather than voicing general concerns.[207]The terms “allegation” and “information” are not mutually exclusive, but the allegation cannot be devoid of specific factual content. It must show the employer information about the alleged failure.[208]In this case, we found that there had been nothing more than a mere allegation made. The Claimant had provided a PowerPoint presentation about the correct way to ensure emails are sent securely, but she confirmed in evidence that she did not give specific details of people not sending emails securely, or confidential information being shared with the wrong person or being accessed by the wrong person.[209]In the absence of such detail, we found that there had not been a disclosure of information. As such, there had not been a protected disclosure made by the Claimant and the claims related to that failed.• Was the Claimant subjected to detriments because of the protected disclosure?[210]Although we found that there had not been a protected disclosure made, we went on to consider whether, hypothetically, the alleged detriments were caused by the alleged disclosure.[211]The Claimant claimed that the detriment for the protected disclosure claim was Dr Daddi sharing the probation report with Dr Walsh, Dr McKellar and Dr Gopal.[212]Dr Daddi gave an explanation as to why each of these 3 people had been sent a copy of the report, which have already made findings on. We accepted Dr Daddi’s reasons for sending the report for comments to people who had all been part of the Claimant’s development during her time with the Respondent.[213]We accepted the evidence Dr Daddi gave for the reason for the alleged detriment. He was credible under cross examination. We also found that his actions after being told about the “secure email procedure” by the Claimant supported his assertion that he was actually happy that she had raised this. He sent an email to his staff and the IT department to spread the information further and ensure that practices were being followed. There was nothing to suggest he was unhappy or would want to take any malicious action against the Claimant for having raised the issue.[214]On that basis, we found that, even if there had been a protected disclosure, there was no causal link between that and Dr Daddi sharing the report. We found that the Respondent had proven on balance of probabilities that the alleged disclosure was not the reason for the detriment.• Protected disclosure dismissal[215]As we had made a finding that there had been no protected disclosure, the Claimant’s claim for automatic unfair dismissal (that is, a constructive dismissal because of a protected disclosure) could not succeed.[216]This claim also failed therefore.