Ms S Younis v United Colleges Group: 2206175/2022 and others

EMPLOYMENT TRIBUNALS

Case No 2206175/2022

Between

Ms S YounisClaimant

United Colleges GroupRespondent

Before

Employment Judge Glennie

In person for claimant

Mr A Bryant (instructed by Counsel) for respondent

Date 6 February 2025

JUDGMENT

[1]The complaint of unfair dismissal is struck out on the grounds that it has no reasonable prospect of success. Save for this, the Respondent’s application to strike out the claims is refused.

[2]The Claimant has permission to amend the claims by adding the following allegations:2.1 That the acts of Mr Daley in October 2021 complained of in the claim form were acts of discrimination because of religion or belief in addition to race and sex.

2.2 That the acts of Mr Daley on 5 May 2022 were acts of discrimination because of religion or belief in addition to race and sex.

2.3 That the Claimant’s dismissal was an act of discrimination because of race and/or sex and/or religion or belief in addition to victimisation.

[3]The other amendments sought by the Claimant are refused.

[4]A preliminary hearing for case management with a time estimate of 2 hours will be listed on a date to be notified to the parties.

REASONS

[1]The Claimant, Ms Younis, has made three claims to the Tribunal, which can be summarised as follows: 1.1. Claim number 2206175/2022, presented on 22 August 2022, while her employment was still continuing. This made complaints of discrimination because of race and sex. The Claimant referred to 2 incidents in which a colleague, Mr Daley, refused to allow her to use a photocopier, to the grievance she raised about this, and to the grievance appeal. 1.2. Claim number 2207948/2022, presented on 19 October 2022, after her employment had been terminated. This made complaints of unfair dismissal and victimisation. The Claimant referred to her dismissal and said that she believed that she was being victimised due to bringing an Employment Tribunal claim and raising complaints of discrimination in the past. 1.3. Claim number 2208864/2022, presented on 17 November 2022. This also made complaints of unfair dismissal, although giving more detail than in 2207948/2022, and of victimisation due to reporting 2 incidents of micro-aggressions of racism on 5 May 2022.

[2]A preliminary hearing for case management took place before me on 4 April 2023. At that hearing, I identified with the Claimant 8 factual heads of claim on which she wished to rely. I made an order for the Claimant to summarise in a single document all of the claims in the 3 claims to the Tribunal. (There were 10 numbered paragraphs in my record of the claims: numbers 9 and 10 identified the protected characteristics and the protected acts).

[3]I also listed the present preliminary hearing to determine any applications arising from the further information / clarification to be given in the Claimant’s summary. I anticipated that the Respondent would argue that some of the information to be given had not previously appeared in the claim forms (as they in fact argue).

[4]There was an agreed bundle of documents for the present hearing. The Claimant’s document setting out the further information about the 8 heads of claim was at pages 107 to 116.

[5]The Claimant gave oral evidence explaining why she had not included in the claim forms those matters that were new in the further information, and was cross-examined by Mr Bryant.

[6]Where it was contended that the claims had not previously been made, the Respondent argued that the Claimant required permission to amend the claims in order to be able to rely on them, and that such permission should not be given. The Respondent also applied to strike out all of the claims on the grounds that they had no reasonable prospect of success, or for deposit orders on the grounds that they had little reasonable prospect of success.

[7]I have structured these reasons by considering each of the 8 heads of claim in turn, determining in respect of each whether there are new claims which require permission to amend; if so whether such permission should be given; and (where applicable) whether each claim should be struck out or made the subject of a deposit order. It is therefore convenient to set out a summary of the relevant law before turning to the claims individually.

[8]Rule 37 of the Rules of Procedure includes the following provision about striking out a claim: (1) ……a Tribunal may strike out all or part of a claim….on any of the following grounds – (a) That it………has no reasonable prospect of success.

[9]The requirement that there be no reasonable prospect of success does not mean, at one extreme, absolutely no possible chance of success, nor at the other, that the claim is more likely to fail than to succeed. It involves the Tribunal assessing whether the claim has no reasonable prospect of success, taking the pleaded claim at its highest, and generally assuming that any disputes of fact will be resolved in the Claimant’s favour. If the Tribunal finds that there is no reasonable prospect of success, striking out does not follow automatically. The Tribunal has a discretion (which must be exercised judicially) which allows it to strike out the claim if appropriate.

[10]Deposit orders are governed by rule 39, which includes the following provisions:(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim…has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

[11]The test of little reasonable prospect of success envisages a better prospect of success than that of no reasonable prospect, while still falling well short of a 50-50 prospect. Again, there is a discretion to be exercised if the requirement of little reasonable prospect of success is met. When setting the amount of any deposit, the Tribunal should not impose an order that has the effect of striking out the claim by default, in that the amount ordered is beyond the Claimant’s ability to pay.

[12]With regard to all of the complaints under the Equality Act 2010 I had in mind the provisions of section 136 concerning the burden of proof, in the following terms:(1) ………

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[13]In Efobi v Royal Mail Group

[2021] ICR 1263

the Supreme Court confirmed that the test under section 136 remained the same as under the equivalent provisions of the earlier legislation. At the first stage, a claimant has to show a prima facie case of discrimination which needs to be answered. If the claimant does so, the claim will succeed unless the respondent can discharge the burden place on it at the second stage. The approach set out by the Court of Appeal in Madarassy v Nomura International PLC

[2007] ICR 867

remains applicable. The bare facts of a difference in protected characteristics and a difference in treatment are not, on their own, sufficient to allow a Tribunal to conclude that the discrimination had occurred. There must be “something more” (which might not, in itself, be very significant) to satisfy the first stage and place the burden of proving that discrimination did not occur on the respondent.

[14]As to amendment of a claim, in Chaudhry v Cerberus Security

[2022] EAT 172

HHJ Tayler propounded a two-stage test for applications of this nature. The Tribunal should first identify the amendment sought; and second, should balance the injustice and/or the hardship of allowing or refusing the amendment, taking account of all the relevant factors including, to the extent appropriate, those identified in Selkent v Moore

[1996] ICR 836

[15]Having set out these generally applicable principles, I shall refer to others as they arise in the context of the particular complaints identified as numbers 1 to 8 in the record of the case management discussion on 4 April 2023. I have considered the claims so identified by the Claimant, and the contents of her document produced in response to order 3 made on that date.

[16]Complaint 1 was originally pleaded as a complaint of discrimination because of race and/or sex. It involves an allegation that on a date in October 2021 a colleague, Mr Daley, first refused to allow the Claimant to use a printer, and subsequently allowed her to use it grudgingly. In her further information, the Claimant stated that Mr Daley told her that the printer was not for the use of the Art and Design department, and that when she subsequently informed her manager of this, he said that he did not know why Mr Daley would say that. The Respondent’s case is that Mr Daley denied the allegation; the Claimant says that he gave untrue accounts of interactions between them. The Claimant further seeks to add religion or belief to the protected characteristics that she relies on in this regard. I am satisfied that this was not raised in the claim form and that permission to amend is required if the Claimant is to be permitted to rely on this.

[17]Similar considerations arise in relation to Complaint 2, in which the Claimant complains of another incident on 5 May 2022 involving Mr Daley refusing to allow her to use a printer. Her case is that, on this occasion, he did not give a reason. Again, the Claimant relied on the protected characteristics of race and/or sex in the claim as originally pleaded, and seeks to add religion or belief by way of amendment.

[18]Mr Bryant argued that complaint 1 was presented out of time, as the events concerned occurred in October 2021 and the first claim was presented on 22 August 2022, and section 120 of the Equality Act provides for a primary time limit of 3 months from the date of the act complained of, as extended (if applicable) by the early conciliation period. Taken in isolation, complaint 1 would indeed be out of time. Subsection (3) of section 120, however, provides that conduct extending over a period is to be treated as done at the end of the period. Although the alleged events were some 10 months apart, given that the complaints are against the same individual and of a similar nature, I find that it is not the case that there is no reasonable prospect of a Tribunal finding that there was conduct extending over a period within the meaning of section 120(3).

[19]Mr Bryant further argued that there was no, or little, reasonable prospect of complaints 1 and 2 succeeding on their substantive merits. He submitted that these were classic examples of a difference in protected characteristic and a difference in treatment, without there being something more that would enable the Claimant to raise a case requiring an answer from the Respondent.

[20]I accept that, on the face of the matter, there is nothing that would positively indicate that Mr Daley’s two refusals to allow the Claimant to use the printer were made because of a protected characteristic. It is also true that, on the Claimant’s case, he gave a reason on the first occasion. The Claimant, however, challenges that reason. I do not know what findings a Tribunal will make about these matters. It is, however, possible that a Tribunal will find that the Claimant’s account of her interactions with Mr Daley is correct, and that the explanation he gave on the first occasion was untrue. On those findings, there would be two refusals, one with an untrue explanation being given and one with no explanation. I consider that a Tribunal could, in those circumstances, conclude that the untrue explanation and the lack of explanation provided the “something more” that would place the burden of disproving discrimination on the Respondent. I am not, of course, saying that a Tribunal will reach this conclusion: but I find that it could do so.

[21]I do not therefore find that these complaints, as originally based on the protected characteristics of race and sex, have no reasonable prospect of success. Whether they have little reasonable prospect of success is, in my judgement, quite finely balanced. The case is not an easy one for the Claimant, and would depend on her succeeding on a number of different points. Ultimately, I do not find that the test of little reasonable prospect of success is satisfied, although the case comes close to it. If I am wrong about the test itself, I would not as a matter of discretion make a deposit order, because of the marginal nature of the decision on little reasonable prospect in a fact-sensitive case.

[22]I then considered whether to allow the application to amend these complaints so as to add the protected characteristic of religion or belief. The Claimant’s explanation for not including this characteristic in the claim form was that it was only on reflection that she had thought that her religion had played a part. Mr Bryant submitted, and I accept, that apparently nothing had changed such as to lead the Claimant to conclude that her religion might have been relevant. I find, however, that there would be little, if any, prejudice, to the Respondent if I were to allow the Claimant to rely on religion as well as race and sex. These two complaints concern what Mr Daley did, and why he did it. His evidence about this will presumably be the same whatever protected characteristics are relied on. I find that there would be greater prejudice in not allowing the Claimant to rely on religion when she wishes to do so, and that there is no compelling reason for preventing this. I therefore allow the amendment to these two complaints.

[23]Complaint 3 concerns the grievance that the Claimant raised about the two incidents involving Mr Daley. Her case is that the grievance was not investigated properly by Mr Clark, and that the outcome favoured Mr Daley. The Claimant makes a similar complaint with regard to the appeal, which was heard by a panel of 2 (or 3 if the notetaker is included). The complaint is of discrimination because of race and/or sex.

[24]In her further information the Claimant made a number of criticisms of the grievance process. She said that Mr Clark was dismissive of her complaints; that he found Mr Daley’s account to be sufficient; and that he did not investigate alleged interactions that the Claimant said Mr Daley had invented. The Claimant said that the appeal panel also did not follow up the allegedly invented interactions; that the fact that the Claimant stated that one of the witnesses was a friend of Mr Daley was ignored; and that the outcome was to protect the reputation of the college.

[25]I find that all of these are the sort of criticisms that an employee might make of a grievance and appeal outcome with which they were dissatisfied. They do not involve anything which in itself suggests that race or sex might have been a factor. The suggestion that the appeal decision was reached in order to protect the college’s reputation tends, if anything, to run counter to the Claimant’s case.

[26]I considered whether all of this means that the complaint has no reasonable prospect of success. I found that the prospects were not quite as poor as that. If the Tribunal were to find that Mr Clark was dismissive of the grievance, or did not follow up what the Claimant said about the interactions, it would be bound to ask itself why that was so. The point is less strong with regard to the appeal panel, as there is no allegation that they were dismissive, but it seemed to me to be unrealistic to draw too fine a distinction between the two aspects of the process.

[27]For the reasons given in paragraph 25 above, I concluded that this complaint has little reasonable prospect of success. I considered whether, as a matter of discretion, I should make a deposit order. I concluded that I should, so as to give the Claimant reason to consider whether she should continue with this complaint. I will address the amount of the deposit below.

[28]Complaint 4 arises from the Claimant’s dismissal. The complaints are of unfair dismissal and victimisation.

[29]I find that the complaint of unfair dismissal has no reasonable prospect of success. Section 108(1) of the Employment Rights Act provides that, subject to certain exceptions (none of which applies in the present case) section 94 (providing the right not to be unfairly dismissed) does not apply to the dismissal of an employee who has not been continuously employed for a period of not less than 2 years ending with the effective date of termination. The Claimant’s pleaded case is that her employment began on 2 December 2021 (which appears to be a mistake, as the Respondent pleads 5 October 2021 and she complains of an interaction with Mr Daley in October 2021) and ended on 1 September 2022. In any event, the Claimant did not have 2 years’ continuous employment and cannot maintain a complaint of unfair dismissal. There are no reasons why that complaint should not be struck out, and I find that it should be.

[30]Turning to the allegation of victimisation, in her further information the Claimant states that on 30 August 2021 (the date must in fact be 2022) she received an email asking her to a probation review meeting on 1 September. At that meeting she was dismissed for failing her probation period and underperforming. The Claimant specifies 5 reasons that were given to her as amounting to poor performance, and states that she has evidence to counter each of them. She says that her dismissal was an act of victimisation for having made the complaints about Mr Daley. She also seeks to add a complaint that the dismissal was an act of direct discrimination because of race and/or sex and/or religion.

[31]I find the position regarding this complaint to be similar to that of the complaint about the grievance process. Nothing in the information given by the Claimant of itself suggests that her grievance, or her race, sex, or religion might have been a factor in the decision to dismiss her. The route by which the claim might succeed seems to me to be that of the Tribunal finding that the allegations against the Claimant were not well-founded, and asking itself why, then, they had been made. I find, in a similar way to my finding on complaint 3, that this complaint has little reasonable prospect of success, in any of its pleaded forms.

[32]I therefore decided that I should make a deposit order in respect of this complaint. Again, I consider that doing so will give the Claimant reason to consider whether she should continue with this complaint.

[33]I have also decided to allow the application to amend this complaint so as to enable the Claimant to rely on the same facts as allegations of direct discrimination on grounds of race and/or sex and/or religion or belief. My reason for doing so is essentially the same as in relation to complaints 1 and 2. The witnesses on the Respondent’s side will be giving evidence about why they made the decisions that they did, and there would be little, if any prejudice in allowing the Claimant to maintain a complaint of direct discrimination as well as victimisation. I also consider, however, that the complaint has little reasonable prospect of success when formulated as one of direct discrimination, for the same reasons as apply to it as a complaint of victimisation. Again, I will deal with the amount of the deposit orders separately.

[34]Complaints 5 to 8 all raise matters which I find were not previously included in the claim forms. The Claimant therefore needs permission to amend the claim(s) in order to be able to rely on them.

[35]I will deal with these complaints together as my conclusions apply to all of them. Complaint 5 is that the review of the Claimant’s probation, which was due after 12 weeks, was delayed. The Claimant states that the review should have taken place on around 25 February 2022 (incorrectly shown as 2021 in the further information) and that delaying it was an act of victimisation arising from the complaints about Mr Daley, and an act of discrimination because of race and sex. Complaint 6 is that the Claimant was not promoted. This also is presented as an act of victimisation in response to the complaints about Mr Daley, and as discrimination because of race and religion.

[36]Complaint 7 is of “gaslighting”, meaning blaming the Claimant for things that were not her fault. This complaint is wide-ranging and put in general terms, including allegations that she was “accused of being rude, unsupportive and dismissive of students” and that “I was accused of ongoing work relation issues throughout my employment. By all but one of the Art team members making complaints about my behaviour and attitude between January and June 2022. During these conversations, I was accused of using inappropriate, rude, negative language and not understanding boundaries.” The Claimant’s case is that this amounted to discrimination because of race, religion and potentially sex. Complaint 8 is of microaggressions by 2 members of staff, Ms Dhak and Mr O’Callaghan and refers to incidents in January, February and June 2022. The Claimant relies on the protected characteristics of race, sex and religion.

[37]Applying the test of the balance of hardship as between allowing and refusing the applications, I find that in all of complaints 5 to 8, the hardship to the Respondent were I to allow them would outweigh the hardship to the Claimant if I did not. I have reached this conclusion for the following reasons:37.1 There is some hardship to the Claimant in not permitting her to put forward complaints that she wishes to advance. It is difficult, however, to discern what might be the “something more” in each case that could lead the Tribunal to conclude, in the absence of an explanation from the Respondent, that discrimination had occurred. I find that this is particularly so as there is no obvious reason why the protected characteristics relied upon should vary, as they do, from one complaint to another. Apart from victimisation, complaint 5 relies on race and sex; complaint 6 on race and religion; and complaints 7 and 8 on race, sex and religion. There is nothing in the factual allegations advanced by the Claimant that points to any particular protected characteristic being relevant.

37.2 The hardship to the Claimant is therefore mitigated by my finding that the complaints would have little reasonable prospect of success.

37.3 I find that the hardship caused to the Respondent were I to allow these amendments would be considerable. The complaints are wideranging and would add a great deal to the evidence that the Respondent would need to obtain and call. Complaint 7 is expressed in general terms which would be difficult to address. The length of the hearing would be increased. There would be prejudice to the Respondent in having to meet further claims which have little reasonable prospect of success.

[38]I now turn to the question of the amount of the deposit orders. Having reminded the Claimant that she remained on oath, I asked for information about her ability to pay. She said that she is in receipt of Universal Credit; that she has no dependants; she has around £1,500 in savings; lives in rented accommodation; and is in arrears with the rent. She said that she was not able to pay a deposit.

[39]Mr Bryant pointed out, correctly, that there was no documentary evidence showing the Claimant’s financial position. I did not, however, see any reason to disbelieve what she told me, and I accepted her evidence about this.

[40]I found that the Claimant had some ability to pay a deposit. I did not take it that the whole of her savings, or even the greater part of them, should be regarded as available for this purpose. I concluded that a total of £400 would be reasonable and affordable. This will be reflected in deposit orders (which will be contained in a separate Order) of £100 in respect of each of the following 4 allegations:40.1 In complaint 3, the complaint that the grievance was not properly investigated, and that this was an act of discrimination because of race and/or sex.

40.2 In complaint 3, the complaint that the way in which the appeal was conducted was an act of discrimination because of race and/or sex.

40.3 In complaint 4, the complaint that the Claimant’s dismissal was an act of victimisation.

40.4 In complaint 4, the complaint that the Claimant’s dismissal was an act of discrimination because of race and/or sex and/or religion or belief.

[41]The claims will be listed for a preliminary hearing for case management, to take place after the time for paying the deposits has expired. The Claimant is not required to pay any of the deposits: she may decide not to proceed with all or any of the relevant complaints.

The Facts

[42]Around this period issues also arose with a female colleague of the claimant’s. A meeting was held about the disputes between them on 2 February 2022 with Mr Casey. An email dated 3 February 2022 from Mr Casey to the claimant notes that in the meeting various targets were set for her: “Below are the three targets we went through in our meeting yesterday afternoon. These will be reviewed in a meeting on Wednesday 2nd March: 1. Ensure your emails to colleagues are professional and meaningful. Avoid language that could be misunderstood and if a face-to-face meeting would be more efﬁcient, organise this with the relevant staff member. 2. Ensure your communication with students is respectful and professional. They are our number one priority and we must do all we can to ensure the student experience is of the highest standard possible. 3. Resolve issues around the Level 1 & 2 assignment briefs, and liaise with the teaching teams to develop a weekly plan to ensure you know what you are teaching ahead of time.”

[43]Again we make no findings as to the dispute between the claimant and her colleague, but simply note at this point a number of issues had been raised with the claimant and targets had been given to her to meet.

[44]On 25 February 2022 the same female colleague raised an issue with the claimant by email in relation to the attendance levels at her classes, which were said to be low. We note that in the one to one on 11 March 2022 Mr Casey notes that he shared the attendance policy with the claimant and her role as a class teacher. Incident 2 – 5 May 2022

[45]Mr Daley says that there was a further incident with the claimant in April 2022, prior to the incident on 5 May 2022 which is the subject of the complaint. He states that on this occasion the claimant informed him that she had been using a printer and there was a paper jam or some issue with the machine. He thanked her for letting him know and assured her the problem would be addressed. The claimant was dissatisfied the machine would not be fixed immediately. Mr Daley was able to fix the printer within around 20 minutes, and notes that the claimant was able to use a different printer in the meantime, there being 13 available in the building.

[46]We accept his evidence in relation to this incident. He provides clear detail, and there is no reason to make up an incident of this nature. We also accept his evidence in cross examination that for him this was an everyday interaction. He is likely to recall it because the claimant had expressed dissatisfaction when he considered he had fixed the issue very promptly. The fact that the claimant cannot remember this small interaction does not mean it didn’t happen. Nor would we expect it to have been recorded in writing anywhere as the claimant suggested in her cross examination of Mr Daley, however we do note that Mr Daley recalled this incident during his grievance interview on 27 May 2022.

[47]The next incident between the claimant and Mr Daley occurred on 5 May 2022. Again there is a dispute between them as to what occurred.

[48]In her witness statement the claimant contends that she needed to print a student’s work. There was no printer in the studio (which is where she was working) and the one she normally used in the Information Centre was unavailable. As she was not able to leave her class for long she went next door to the reprographics room. She alleges that she saw a contracted staff member waiting outside who allowed her to go ahead of him. When Mr Daley opened the door halfway, she asked if she could use the printer, explaining she was teaching next door and urgently needed to print something for one of her students. Mr Daley stood in the doorway blocking her entry and aggressively refused, saying “No”. She asked for clarification and he repeated the refusal without providing an explanation. She felt his conduct was intentionally condescending and undermining.

[49]Mr Daley’s account of the incident in his statement is that the claimant was in the reprographics room with Mr Lavery from the respondent’s building maintenance company. Mr Daley goes on in his witness statement to say that it is uncommon for anyone to knock on the door for printing services as staff receive a comprehensive induction pack which includes guidelines for printing on joining the respondent.

[50]He recalls that the bell rang and Mr Lavery answered the door to find the claimant standing outside with a stack of papers. She requested to do some photocopying. He informed her she could not enter as the reprographics room was not accessible to staff or students, and that she had access to all the other machines in the building. She asked if he could make an exception and he said he could not, following which the claimant remarked to the effect of, “I’m staff, I should be able to use it,” and “You’re so rude”. She then stormed off. Mr Lavery commented afterwards that the only person who had been rude was the claimant.

[51]Mr Daley accepted in cross examination that Mr Lavery must have been outside the room, not inside. Save for that detail, we prefer Mr Daley’s account of this incident, for the following reasons:

[52]An account of the incident was provided by Mr Lavery on the same day, having been requested his account by Mr Smith after the claimant complained. His account was as follows: “Earlier today I went to see Aiden at the reprographics room to ask if I could get some printer paper. I knocked on the door and Aiden was at his computer, he asked me to wait a minute which I did. While I was waiting a lady came to the repo door and asked if someone was there, I said Aiden was there, he will be a minute. Once Aiden had come to the door I invited the lady to go first. She then asked Aiden to photocopy some pages in the repo room and Aiden said he couldn’t and that the repro room is for the college use only. The lady asked if she could use the room once and Aiden advised the lady that she should use one of the thirteen machines around the college. The lady then said to Aiden “there is no reason to be rude, you are a very rude man..” I have to say Aiden was not rude to the lady. She seemed upset that Aiden hadn’t done what she wanted. It was her being rude, not Aiden.”

[53]We find this account of Mr Lavery, which accords much more closely to the account given by Mr Daley to that given by the claimant, is an independent account. The claimant suggested in her appeal submission on 12 July 2022 that they were friends, such that “of course he is going to take his side”. What the claimant is implying by this is that both Mr Daley and Mr Lavery have falsely created an account together. The claimant accepted in cross examination however that she did not know either of them well. She said she saw them being friendly with each other but this is very different to her suggestion in the appeal submission. There is nothing in the evidence to suggest Mr Daley and Mr Lavery had a prior friendship or that Mr Lavery had any reason to falsify what he said in his email.

[54]The claimant’s first written account is in her email to Mr Smith on 5 May 2022, after her account of the alleged incident in October: “… 2) Today I was teaching in the downstairs art studio and normally I would go and print in the information centre. The centre was closed due to an incident. I knocked on [Mr Daley’s] door and asked if I could use the colour printer quickly to print off a students work as I was just next door. In front of another member of staff he refused to let me in and use it. I firmly believe he is racist or has an issue with women. His behaviour is not acceptable at all.”

[55]This account in fact broadly accords with AD’s account and Mr L’s account, save for suggestion earlier in the email that Mr Daley was ‘incredibly rude and dismissive’. The email is set out in full below.

[56]The second account given by the claimant was in her grievance meeting. More detail is provided. She says Mr Daley stated she could not access the printers in the reprographics room. No reason was given and it was rude not to provide it. This is a very different account to that given in her witness statement, where the claimant contends that he simply said “No”, and that she requested clarification and there was a further refusal.

[57]The claimant’s account in her appeal against the grievance outcome and in her attachment to the claim form repeats the content of the 5 May 2022 email.

[58]The account given in the claimant’s witness statement was then altered in cross examination, when she suggested that rather than opening the door halfway Mr Daley had his foot in the door. This change to her account was made when it was suggested to her she would have been able to see the type of printers in the room, namely big printers obviously for higher volume printing.

[59]The claimant in cross examination refused to accept that she said to Mr Daley “There’s no reason to be rude” as recorded by Mr Lavery, as this was ‘not in her vocabulary’, however we note this is almost exactly the same phrase that she herself said in the grievance meeting on 27 May 2022 that she said to Mr Daley in October 2021. On her own account therefore this is language she uses.

[60]The only change to Mr Daley’s account it that he accepted in cross examination Mr Lavery did not come into the room and he was wrong about this in his statement. In his interview on 27 May 2022 Mr Daley states the interaction was observed by a third party contractor but does not say where Mr Lavery was standing. His witness statement is therefore the first time he has had to recall this and may simply have got this wrong with the passage of time. Mr Daley’s account otherwise consistent.

[61]For all these reasons we consider Mr Daley’s account to be more reliable than that of the claimant. Grievance 5 May 2022

[62]After the interaction with Mr Daley the claimant sent a message to the Creative Industries Staff Teams chat: “Hi Guys, Is it just me or has anyone else had issues with Aidan Daley? Since I have been at CWC he has been incredibly rude and dismissive when I have asked for his help”

[63]We accept Mr Casey’s evidence that this chat included 48 teachers and 5 managers, and that he did not monitor it regularly. We find that even if he had seen this message he would not have appreciated it was addressed to management or required his immediate intervention. It does not say, as the claimant suggested in cross examination, that she was looking for managerial support, nor does it give any details of what she now says occurred at the reprographics room.

[64]Around half an hour later, the claimant sent her email of complaint about Mr Daley to his manager, Mr Smith: “I am reporting a member of your staff Aidan Daley. Since I have been at CWC as a member of teaching staff in Creative Media your colleague Aidan Daley has been incredibly rude and dismissive to me. 1) Back in October last year I did not have access to the printers on 3rd floor, Aidan was printing something at the big printer near the art and design resources department. I asked him if he could kindly print something in colour for me. He snapped at me in front of my student and said that the printers were not for the use of art and design. 2) Today I was teaching in the downstairs art studio and normally I would go and print in the information centre. The centre was closed due to an incident. I knocked on his door and asked if I would use the colour printer quickly to print off a students work as I was just next door. In front of another member of staff he refused to let me in and use it. I firmly believe he is racist or has an issue with women. His behaviour is not acceptable at all.”

[65]The next morning Mr Smith replied that he would investigate. He also sent an email to Mr Casey asking to discuss the matter. He must in fact have started investigating before this email, because Mr Lavery’s email account was sent to him at 3.25pm on the afternoon of 5 May 2022.

[66]On 6 May 2022 the claimant emailed Mr Daley about a student’s request for printing. She copied in a male colleague and Mr Casey. Mr Daley replied: “All files have to be uploaded via the online portal as a print request. Please come and see me on Monday morning when you get in and I will show you how to do this. I will then print them out for Aisha. Have a great weekend.”

[67]The claimant put to Mr Casey in cross examination that she was forced to have this communication with Mr Daley and that by copying him in Mr Casey ought to have realised that having just put in a grievance she was looking for support. We accept Mr Casey’s reading of the email that none of that is evident in the content of the email.

[68]We find that the claimant’s expectation that Mr Casey would realise that she wanted him to intervene from her brief message sent to Teams on 5 May 2022 or that by copying him into the email to Mr Daley on 6 May 2022 that she wanted support and not to have to communicate with Mr Daley is unreasonable. In any event the communications between Mr Daley and the claimant on 6 May 2022 were perfectly polite and to the point.

[69]The claimant contends that on 19 May 2022 she was given a ‘verbal promotion’ by Mr Casey during a brief meeting, namely that he offered for her to teach the Foundation course the next term. We find that the conversation did take place, as Mr Casey accepted in cross examination. However, we also accept Mr Casey’s evidence that teaching the Foundation course did not amount to a promotion in any way. It was simply teaching one course rather than another.

[70]The grievance was escalated to Mr Nick Clarke, Assistant Principal. A grievance investigation meeting was arranged for 27 May 2022. The claimant was accompanied by a colleague. We have not heard evidence from Mr Clark. We accept the claimant’s evidence that Mr Clarke was initially hesitant about the claimant’s colleague being present but did agree. He asked the clamant questions. She requested a copy of his hand written notes, and he said he would send her a typed version.

[71]On 10 June 2022 the claimant emailed Mr Clark seeking notes of the meeting and asking what the next stage was. A reply was sent to her by Mr Casey stating that he would be sharing this in their one to one meeting that day. At the meeting Mr Casey provided the claimant with Mr Clarke’s typed notes and the outcome, namely that the grievance was not substantiated. It is not clear exactly what was said to the claimant in this meeting, however we note Mr Clarke had typed up his recommendations and conclusions as follows, which it appears from his later grievance outcome letter was provided to the claimant during the meeting: “Recommendations & Conclusions The accusation of racism and sexism is unsubstantiated. It’s inappropriate for SY to make assumptions of racism and misogyny based on the limited interactions with AD. There’s no evidence to conclude that Ads comments and behaviour towards SY can be construed as rude or inappropriate. It’s not clear whether SY has had the guidance on how they should access reprographics services for themselves or their Art students. Further guidance from SY’s line manager is needed to set expectations about reprographics services.”

[72]The claimant asked how she could take the matter further and Mr Casey advised her to speak to HR. The claimant was upset during this meeting.

[73]The claimant met with HR Manager Ms El Atrash the same day, and we accept Ms El Atrash’s evidence that the claimant was upset and her communications heated. Ms El Atrash asked her to forward her complaint and suggested that the claimant took the remainder of the day off work. The claimant forwarded her grievance on the same day.

[74]Ms El Atrash emailed the claimant later that day sharing contact details for the EAP support programme the respondent offered.

[75]On 13 June 2022 Ms El Atrash emailed the claimant to advise her that as her grievance had not been upheld the next step was for her to appeal, and that she should put this in writing.

[76]On 16 June 2022 the claimant requested a meeting with Ms El Atrash to go over the process in more detail.

[77]We accept Ms El Atrash’s evidence that in the meantime she had been concerned that only a verbal outcome had been given, and arranged for Mr Clarke to prepare a formal grievance outcome. This was prepared and sent to the claimant.

[78]We accept Ms El Altrash’s account of what happened in this meeting, which is supported by her minutes of the meeting. She discussed with the claimant the process of how to appeal the grievance outcome. The claimant requested that Mr Daley be moved, and Ms El Atrash explained that reprographics had a set room and could not be moved. Various proposals were made to accommodate the claimant, including a change of room for her and people to accompany her to classes for the duration of the grievance. The claimant requested that a person of colour should be on the panel for her appeal. At some point thereafter she also requested that the panel should include a woman.

[79]The claimant prepared a written appeal dated 20 June 2022.

[80]On 23 June 2022 the claimant emailed Mr Casey about her probation review. He replied he was not sure it was going to happen that day due to his workload.

[81]We accept that the claimant chased up what was happening about her appeal on around 30 June 2022. We do not have a copy of the email but it is referred to in later correspondence.

[82]A probation review meeting was arranged by Mr Casey for 4 July 2022 however he cancelled this on 1 July 2022, emailing the claimant to say that it clashed with another meeting.

[83]On around 5 July 2022 Ms El Atrash invited the claimant to an appeal hearing to be held on 14 July 2022, which was 11 working days after sending the appeal. We accept Ms El Atrash’s evidence that the appeal could not be arranged sooner because it took time to find suitable individuals to meet the claimant’s requested panel composition.

[84]The claimant declined a hearing on this date. Ms El Atrash offered the 15 July 2022. The claimant responded that she was not available for the next two weeks. Ms El Atrash responded as follows on 8 July: “Your grievance raised has serious allegations against an individual and you disagree with the outcome of the initial investigation and have requested an appeal. Therefore the allegations are still live against the named individual and we cannot have an inordinate delay to hear the appeal. With this in mind, you have the option to attend face to face with the nominated appeals manager or alternatively you can put your reasons for appeal and any evidence you may have in writing and the appeals manager will consider these in your absence. This appeal hearing would proceed and minutes be taken and shared with you following the meeting.”

[85]The claimant replied the same day that she had commitments at another teaching institution, and that her union representative was on leave until 23 August 2022. She requested the appeal be postponed until the next term (in September). She wanted to attend in person.

[86]Ms El Atrash replied the same day reiterating her stance that the hearing could go ahead in person or evidence and statements could be provided instead, noting the difficulties there had been in arranging the ethnic and gender mix the claimant had requested for the panel.

[87]The claimant replied she would be seeking legal advice.

[88]Ms El Atrash asked whether the claimant would be attending or submitting in writing the following week. The claimant said she would not be attending and would not submit a statement in writing.

[89]In the meantime on 7 July 2022 the respondent’s Staff Award Ceremony took place. Mr Daley was given award for ‘Excellent Customer Service’. Ms El Atrash received an award for ‘Outstanding Service Delivery’. Assistant Principal Mr Bobat, who was peripherally involved in the claimant’s grievance, also received an ‘Outstanding Service Delivery’ award.

[90]The claimant alleges that these awards amounted to a ‘culture of systemic cover-up’ and felt like a collective dismissal of her concerns and reinforced an institutional culture of denial and exclusion. She placed a great deal of focus on these awards in her cross examination.

[91]We accept Ms El Atrash’s oral evidence as to the way the awards worked. Her explanation is common sense and there is no evidence to suggest why she might be dishonest about this detail. The assistant to the chief executive emailed all staff on 16 June 2022 to inform them nominations were open. All directly employed staff, amounting to around 600 individuals, could nominate each other. The nominations were then sent to the Chief Executive and Group Principal, Mr Stephen Davis. The nominations were discussed with the strategic leadership team, and Mr Davis would have the final say. Mr Daley received nominations in three categories from 7 members of staff, 4 women and 3 men with diverse ethnicities.

[92]The claimant’s suggestion that these annual staff awards were deliberately manipulated in order to somehow cover up or dismiss the grievance she had raised is wholly unsubstantiated. The staff awards were nothing to do with the claimant. The claimant’s allegation would require collusion at the highest levels of the respondent’s organisation to compromise staff nominated awards in order to send some message to the claimant about a grievance they would not themselves have been concerned with or involved in. We find it wholly unreasonable that the claimant would reach such a conclusion.

[93]A further arrangement was made for the claimant’s probation review to take place on 8 July 2022, which was the last day of term. We accept Mr Casey’s evidence that he postponed the review again on that day, firstly because it was a very busy day being the last day of term, and secondly because he had been advised by HR to leave the probation review until after the grievance appeal had been concluded. It may have been more transparent if the claimant had been advised of this recommendation, however the decision to resolve the grievance first was not unreasonable.

[94]The claimant commenced ACAS early conciliation on 8 July 2022 and obtained a certificate on 11 July 2022.

[95]On 12 July 2022 Ms Claire Collins, Director of People & Communications, who was chairing the appeal, emailed the claimant noting the ACAS guidance on rearranging grievance meetings requiring a meeting to be rearranged on a single occasion within 5 days where the employee’s chosen companion is unable to attend, reiterating the reason why the appeal had not been convened when the claimant was available, namely due to arrangements to provide the claimant’s preferred panel composition, and reiterating the offer to attend in person or provide submissions in writing.

[96]The claimant emailed in reply later that day attaching a written statement.

[97]The claimant’s grievance appeal hearing took place on 14 July 2022. The claimant did not attend. Minutes were taken which show there was a full discussion between the two panel members.

[98]A grievance appeal outcome was sent to the claimant on 15 July 2022. The outcome conceded that the grievance process could have been expedited in a more timely way, however it was concluded that this did not materially impact the outcome. The panel had found no evidence that the claimant had been discriminated against, and the appeal was not upheld. The claimant’s probation review and dismissal

[99]The claimant presented her claim on 22 August 2022.

[100]On 30 August 2022 Mr Casey emailed the claimant to invite her to her probation review: “This is an invite to your probation review meeting, where we will review your performance since your direct employment with the college from January 2022. There are some serious concerns that will be addressed in the meeting, and it may be the case that your employment is not continued.”

[101]On 1 September 2022 Mr Casey sent the claimant a document prepared for her probation review. This noted that attendance at the claimant’s courses had been far below the respondent’s benchmark, that there had been numerous student complaints against the claimant, and that there had been ongoing work relation issues with all but one of the Art team making complaints about her behaviour and attitude.

[102]The review meeting took place the same day. The claimant was accompanied by a colleague. The other attendees were Mr Casey, Mr Bobat, Ms El Atrash, and a notetaker from HR. We have been provided with and have considered the minutes of the meeting which are very full. The outcome of the meeting was that the claimant’s employment was terminated with immediate effect and pay in lieu of notice.

[103]On 9 September 2022 the claimant appealed against her dismissal. In her appeal she asserted that the accusations of student complaints were false and malicious, and had been made up with malicious intent to damage her character and reputation as a teacher. She asserted that there was discrimination and that she was being victimised due to bringing an employment tribunal claim and raising complaints of discrimination in the past.

[104]The appeal hearing took place on 28 September 2022, chaired by Mr Wilson. The claimant attended and the minutes demonstrate a full discussion of her appeal points took place. Mr Casey attended to explain his decision and the claimant had the opportunity to put questions to him.

[105]There was a delay in the outcome being provided and it was sent to the claimant on 18 October 2022. The dismissal was upheld.

[106]We accept Mr Wilson’s evidence that at the point he was dealing with the appeal he was aware that the claimant had lodged a grievance but not the content of it. He had deliberately kept out of the matter in case he might be called upon as a more senior person to address it.

[107]In the outcome letter Mr Wilson asserts that the respondent was not aware that the claimant had brought an employment tribunal claim until 12 October 2022, more than a month after dismissal. The claimant has forcefully and repeatedly asserted that this is untrue, and that the respondent was notified of the claim by the Tribunal by a letter dated 27 September 2022.

[108]The notice of claim is indeed dated 27 September 2022. We note this is well after 1 September 2022 when the decision to dismiss was taken. We have seen a chain of emails starting on 10 October 2022 in which HR sends a notification of a preliminary hearing to the respondent’s solicitors. The solicitor then emails the Tribunal the same day indicating that they were instructed for the respondent, and that the respondent had received the notice of hearing but not notice of the claim. It was requested that copy of the claim and notice was sent urgently. The Tribunal sent this on 12 October 2022, which corresponds to the date given by Mr Wilson.

[109]We accept the respondent’s position as noted in this correspondence that for whatever reason the notice of claim sent on 27 September 2022 had not come to the respondent’s attention. There may be any number of reasons for this, including post going astray in the internal system. This is not uncommon and the Tribunal regularly deals with applications for extensions of time to present responses on a similar basis. There is no logical reason why the respondent would ignore the claim if the notice of claim had come to their attention. By that time they had already dismissed the claimant. Solicitors were promptly instructed to deal with the matter once notification of the hearing was received and there is no reason to suggest the same would not have happened if the claim form had been received at the time it was sent.

[110]We accept that Mr Wilson did consider the content of the dismissal to ensure that it was not influenced by the grievance and that it was his view that the dismissal was fair. As set out in his outcome letter, he found that the evidence before him was of a pattern of behaviour from the outset of the claimant’s employment that had given rise to multiple complaints from staff and students alike. He was comfortable that the decision to terminate the claimant’s employment was appropriate and based on genuine concerns about her attitude and the impact it was having on colleagues and students.

[111]We note there are no allegations of discrimination against Mr Wilson or in relation to the way in which the dismissal appeal was conducted. The Law Direct discrimination

The Law

[112]Section 13(1) Equality Act 2010 provides: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[113]Section 23 provides that a comparator must be in circumstances that are not materially different from those of the claimant. A comparator may be real or hypothetical.

[114]Whether treatment is less favourable is determined objectively. It is not enough that the claimant considers it to be less favourable (Land Registry v Grant

[2011] ICR 1390

[115]Demonstrating a difference in treatment is not sufficient. There must be ‘something more’ from which the Tribunal could conclude that the reason for the less favourable treatment was discriminatory in order to shift the burden of proof to the respondent (Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, HL; Madarassy v Nomura International Plc

[2007] ICR 867

[116]When considering whether treatment is ‘because of’ the protected characteristic, the protected characteristic does not have to be the only reason for the treatment in question provided that it was a significant influence (Nagarajan v London Regional Transport

[1999] ICR 877

). This must be an influence which is more than trivial (Wong v Igen Ltd

[2005] ICR 931

[117]In R v The Governing Body of JFS and the Admissions Appeal Panel

[2010] UKSC 15

, it was discussed that there are some cases in which it is self-evident that discrimination is taking place because the act of alleged discrimination includes, directly or indirectly, reference to a protected characteristic (for example, in James v Eastleigh Borough Council

[1990] 2 AC 751

a policy of giving free entry to a swimming pool for those of pensionable age plainly discriminated against men who reached pensionable age at 65, compared to women who reached it at age 60). In such cases it is not necessary to examine the motives of the alleged discriminator at all. Where discrimination is not obvious, it may be necessary to examine the mental processes of the alleged discriminator to determine whether or not treatment is being afforded because of the relevant protected characteristic. The Tribunal must determine the facts that operated on the mind of the discriminator, not his motive for discriminating.

[118]Respondent’s counsel gave a slightly different emphasis to the treatment of motivation in his written submissions, however we agree with the conclusion he reached that it follows from this decision that a good motive does not amount to a defence to a claim of direct discrimination. Discrimination may be conscious or unconscious. Associative direct discrimination

[119]Section 13 requires that the less favourable treatment has to be ‘because of’ a protected characteristic. It is not required that it this has to be a protected characteristic of the claimant. For example, the Employment Appeal Tribunal in Saini v All Saints Haque Centre

[2009] IRLR 74

upheld a complaint of discrimination where the claimant was subject to harassment because of the faith of his colleague; both were Hindu. It was held that if an employee establishes that he has been subjected to less favourable conduct because of his employer pursuing a discriminatory policy against the religious beliefs held by another employee that would be enough to establish discrimination. Victimisation

[120]Section 27 Equality Act 2010 provides: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

[121]There is a detriment if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment. An unjustified sense of grievance does not suffice (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[122]When considering whether treatment is ‘because’ the claimant has done a protected act or it is believed the claimant has done, or may do a protected act, the same principles of causation apply as to direct discrimination. It must however be established that the alleged discriminator knew or suspected that the claimant had done or would do the protected act, or there could be no causal link to the less favourable treatment (Scott v London Borough of Hillingdon

[2001] EWCA Civ 2005

, CA).

[123]When determining whether a claimant has acted in bad faith, the primary question is whether they have acted honestly in giving the evidence or information or in making the allegation. The issue is not the employee’s purpose, but their belief. The Tribunal will already have established that the evidence, information or allegation was false, though this may be a relevant consideration (the more obviously false the allegation, the more a Tribunal may be inclined to find that it was made without honest belief). Motivation could also be part of the relevant context, for example that a employee dishonestly made a false allegation or were wilfully reckless as to whether an allegation was true because they had some collateral purpose, however the primary focus remained on the question of their honesty (Saad v Southampton University Hospitals NHS Trust

[2019] ICR 311

). Time limits

[124]For the reasons set out below we did not need to consider the legislation or authorities provided by the respondent in relation to time limits. Conclusions Direct discrimination

Conclusions

[125]The first question for the Tribunal is whether the treatment alleged to be less favourable occurred.

[126]The first matter relied upon is that Mr Daley refused to allow the claimant to use the printer in 2021. Even on the claimant’s own case this is not true, because she now accepts that he did permit her to use it. In any event we have preferred Mr Daley’s evidence as to this incident and find there was no refusal at all for her to use the printer. In the circumstances the incident relied upon is not made out and we do not need to consider whether there was any less favourable treatment in relation to this incident because of race, sex or the religion or belief of the student whom the claimant alleges was with her. Nor do we need to consider whether the complaint in relation to this incident was brought in time.

[127]The second matter relied upon is that Mr Daley refused to allow the claimant to use the printer on 5 May 2022. It is not in dispute that he refused to let the claimant use the reprographics room printers.

[128]We ask then whether this was less favourable treatment. The comparator relied upon by the claimant is a hypothetical male, not of Pakistani-British origin. We find that there is no evidence from which we could conclude that this is the case. The respondent had a clear policy in relation to use of the reprographics room due to the confidential nature of documents being reproduced in it and the high volume printing it was set up to deal with. There is no evidence to suggest that Mr Daley would have permitted any other member of staff without formal authorisation to use the room given its purpose and the clear policy.

[129]In so far as the claimant may have implied in her questions in cross examination that Mr Lavery was an appropriate comparator, we find that he is not. He was only in attendance to collect printing paper, not to seek to use the reprographics room printers. He was not therefore in the same circumstances as the claimant.

[130]Further we have no doubt that the reasons why Mr Daley refused the claimant’s request were entirely to do with the respondent’s policy and nothing to do with the claimant’s race or sex. We are mindful that discrimination may be unconscious, however we found Mr Daley to be a straight forward, honest and credible witness and his explanation for what occurred was reasonable and compelling.

[131]In the circumstances the claimant has not demonstrated that there is any evidence from which we could conclude that the refusal to let her use the printer on this occasion was less favourable treatment because of race or sex. The burden of proof does not pass to the respondent but nevertheless we are satisfied with the respondent’s clear explanation of the refusal.

[132]The direct discrimination complaints therefore fails. Victimisation

[133]The first question for the Tribunal is whether there are matters which could, leaving aside section 27(3), amount to protected acts within the meaning of section 27(2).

[134]The first matter relied upon by the claimant is her grievance email dated 5 May 2022. In this email the claimant suggests that Mr Daley ‘is racist or has an issue with women. His behaviour is not acceptable at all’. This is sufficient to amount to an allegation that another person had contravened the Equality Act 2010, and therefore falls within the ambit of section 27(2)(d) subject to the exclusion in section 27(3).

[135]The claim 22 August 2022 brought proceedings under the Equality Act 2010 and therefore complied with the requirement in section 27(2)(a), subject to the exclusion in section 27(3).

[136]The question then arises whether the claimant made false allegations in her grievance and/or her Tribunal claim and did so in bad faith.

[137]The attachment to the claim form in this matter adopts almost identical wording to the grievance email of 5 May 2022 (noting the date given for the May incident is incorrect). The claimant alleges that Mr Daley was incredibly rude and dismissive, then sets out two paragraphs dealing briefly with the incidents in October 2021 and on 5 May 2022. The grievance alleges that Mr Daley was racist or had an issue with women, whereas the attachment to the claim form refers to experiencing racism/discrimination and the claim form itself ticks boxes for both race and sex discrimination.

[138]The first question is whether either document contains false allegations. We have found that the October 2021 incident did not occur in the way described in either document. This allegation is therefore false. In relation to the 5 May 2022 incident, we have found that the brief description in numbered paragraph 2 of the email was in fact broadly accurate, however this is caveated by the claimant’s assertion at the head of the email that Mr Daley was incredibly rude and dismissive which we have found was not true. Taken as a whole therefore, and leaving aside the claimant’s subjective view that she had been subjected to discrimination, the allegations made in this email, which are repeated almost verbatim in the attachment to the claim form, are on balance false.

[139]Applying the guidance in Saad, we go on to consider whether the claimant act dishonestly in bringing her grievance or her Tribunal claim. While the extent of the falsehood and the purpose in making the allegations are relevant, our focus must be on whether the claimant was honest or not.

[140]The respondent submits that the claimant’s motivation for bringing the claim and her conduct generally is that she does not like not getting what she wants, has no regard for rules and instruction if it does not align with what she wants, and has a propensity to make serious allegations. The claimant’s submission is that her grievance was raised with good intention, and to suggest otherwise is an attack on her character and values.

[141]In determining whether the claimant was honest or not in bringing her grievance and subsequent claim we have had regard to the totality of the evidence before us.

[142]We considered the extent of the falsehood in the documents. We find that the claimant must have known that she was falsely reporting the incident in October 2021. Even on her own account in these proceedings the claimant accepts that Mr Daley did not refuse to permit her to use the printer. Given that she had no access herself, he must have actively assisted her and she would have known this. It is notable that she did not raise a complaint that this incident was discriminatory in any way at the time. We find that this minor interaction has been included only to bolster the claimant’s complaint about Mr Daley’s conduct on 5 may 2022.

[143]What was said in the grievance about the incident of 5 May 2022 is broadly accurate, save that the claimant must have known that Mr Daley was not ‘incredibly rude or dismissive’. However, the way the claimant went on to describe the incident in the grievance meeting with Mr Clarke, namely that Mr Daley did not give her a reason why she could not access the reprographics room, was false. We have found he did provide a reason, as confirmed by Mr Lavery. The claimant at this point had elaborated her account, which would give a stronger impression that Mr Daley had been rude to her. By the time she presented her claim form, although this contains the same brief account, the claimant would have known that she was presenting a claim which would rely on a false version of events. This is supported by the even more elaborate version the claimant gives in her witness statement, that Mr Daley simply said ‘No’ to her and repeated his refusal after the claimant asked for clarification, which is not consistent with any of her earlier versions and we have found is not true.

[144]We have considered whether the respondent is correct as to the claimant’s motivation in making these allegations. We find that the claimant has been willing to elaborate and make false serious allegations to improve her case. This includes, for example:(i) the new version of events on 5 May 2022 in her witness statement;

(ii) Her baseless allegation that Mr Lavery was friends with Mr Daley, implying their account was fabricated;

(iii) Her baseless and somewhat bizarre allegation that very senior management colluded to fix the staff awards as a systemic cover up;

(iv) Her allegation that in October 2021 she was accompanied by a student wearing a headscarf, which we have found was not true and which was not mentioned at all until well into these proceedings.

[145]We ask ourselves why the claimant would do this. We find the most likely explanation is that she was angered by Mr Daley’s refusal to do what she wanted, and wanted the respondent to take some form of punitive action against him. This included moving him from the reprographics room (which could obviously not be moved itself) which was his primary responsibility, so that she did not have to interact with him at all.

[146]Taking all this together, we find that the way in which the allegations against Mr Daley and then against the respondent have been elaborated upon and escalated with time is demonstrative that the claimant has not accepted the respondent’s conclusions in relation to the grievance and lack of action against Mr Daley, and that the claim is designed to punish both Mr Daley and the respondent as suggested by the respondent. There is no other reasonable explanation for the claimant putting forward matters we find she must have known were false, and adding additional or different false detail with time in an effort to bolster her allegations, and the claimant has provided no good explanation for the inconsistencies in her accounts. Rather during cross examination she attempted to change her version of events again (for example by suggesting Mr Daley blocked the door with his foot, rather than opening it halfway) to attempt to deal with problems with her account raised by the respondent.

[147]Answering the question posed by Saad, we find that, in deliberately including allegations that she knew to be false in her grievance and claim, motivated as we find she was to punish Mr Daley and by the time of the claim the respondent, the claimant was on an objective view and by ordinary standards dishonest.

[148]Therefore her conduct in bringing both the grievance and the claim was in bad faith and falls into the exception in section 27(3).

[149]The claim for victimisation must therefore fail.

[150]If are wrong about that, then in any event we are satisfied that there is no evidence from which the Tribunal could conclude that any of the matters relied upon by the claimant as detriments were because she had raised a grievance which included a complaint of discrimination or presented a claim that included complaints of discrimination.

[151]Taking the allegation of a failure to investigate the grievance properly, we find that the grievance was investigated properly by Mr Clarke, in that he sought accounts from the claimant, from Mr Daley and from the independent witness Mr Lavery. There may have been procedural failings in the way Mr Clarke dealt with the matter, namely that he did not ensure that the claimant was provided with a written outcome at the time he reached his conclusions. However there is nothing to suggest that his reason for not providing a written outcome was because the claimant had made a complaint of discrimination. This appears to have been an oversight which may have been caused by a lack of HR support as suggested in evidence by Ms El Atrash. There is nothing more the claimant has pointed to which shifts the burden of proof to the respondent.

[152]Similarly there is nothing to suggest that the way in which the grievance appeal was dealt with was because of the fact the complaint was a discrimination complaint. We find that the explanation provided for the timing of the appeal hearing after the end of term was entirely reasonable given the request the claimant had made for a specific panel composition. The only matter which we find might have been done differently was to postpone the appeal hearing to a date in the new term which the claimant and her union representative could attend in person. However we understand the respondent’s reluctance to leave the matter that long given the seriousness of the allegations made. This was because of the potential impact on the individuals concerned, not because a complaint of discrimination had been made in itself. There was in any event no detriment to the claimant as she was able to provide full submissions in writing which were fully considered.

[153]As to the dismissal, we find there was no connection to the grievance whatsoever. It is plain from Mr Casey’s one to one records, which we have found to be an accurate reflection of matters discussed, that multiple complaints had been raised against the claimant by both students and staff and discussed with the claimant throughout her employment. Her class attendance levels had also been discussed. By the time Mr Casey was considering the probation review the grievance had already been concluded, including the appeal. It was on the advice of HR that he delayed the probation review for that reason. There is no evidence at all that Mr Casey would be motivated to dismiss the claimant by the fact that she had raised a discrimination complaint. The complaint was not about him, and it had been fully concluded by the time he made his decision. Moreover he could not have known about the claim at the time the decision was made given the date of notification of the claim and our findings as to when it was in fact brought to the respondent’s attention. The decision to dismiss was plainly based on the claimant’s own conduct as regards staff and students, was well reasoned, and, while we need not make any findings as to whether the complaints made against the claimant were well founded, the fact that multiple complaints were made has been well evidenced during the course of these proceedings.

[154]The claim for victimisation therefore fails. Consequential matters

[155]The claimant has enquired when she might make a preparation time order. Either party is entitled to make an application for costs or for a preparation time order as appropriate within 28 days of the date this judgment is sent to the parties. The parties’ attention is drawn to the circumstances in which such orders may be made as set out in rule 74 of the Employment Tribunal Procedure Rules 2024.

Conclusions

[1]The respondent’s application dated 5 March 2025 for reconsideration of the Judgment sent to the parties on 12 February 2025 is refused.

[2]The Tribunal would like to correct a typographical error in the judgment, namely that the members hearing the case were Ms J Cameron and Mr S McLaughlin.

Conclusions

[1]The claimant’s application is brought pursuant to Rule 69 of the Employment Tribunal Procedure Rules 2024.

[2]On 21 February 2025 the Tribunal granted the claimant’s application to extend time to make an application for reconsideration to take account of her dyslexia. Time was extended to 5 March 2025.

[3]Under Rule 70 the Tribunal must consider any application made under Rule 69. If the Tribunal considers there is no reasonable prospect of the judgment being varied or revoked, the application must be refused and the Tribunal must inform the parties of the reason for refusal.

[4]There is no reasonable prospect of the original decision being varied or revoked, and the application is therefore refused for the reasons set out below, adopting the same headings as the claimant’s application (save that ‘Incident 1’ was in October 2021, not October 2022). Incident 1 – October 2021 3. The Tribunal considered the addition in Mr Daley’s account in this matter in relation to the student (Judgment paragraph 31). The Tribunal considered in detail the claimant’s allegation that Mr Daley obstructed her from using the printer and rejected it (Judgment paragraphs 21 to 33). Incident 2 – 5 May 2022 4. The Tribunal rejected the claimant’s account in relation to the first incident and it cannot therefore have formed part of a pattern of discriminatory conduct in relation to the second incident. Further the Tribunal rejected the claimant’s account of the second incident. Failure to address comparator

[5]The Tribunal specifically considered the position of Mr Lavery as a comparator, despite him not being pleaded as a comparator (Judgment paragraph 129). Good faith

[6]The Tribunal considered in detail the reasons for the claimant’s actions and whether her actions were in good faith. It was not submitted by the claimant that not escalating her concerns about the first incident straight away should have been considered a sign of good faith.

[7]Mr Casey’s acknowledgment that the claimant had spoken to him in relation to the first incident was specifically considered (Judgment paragraph 33). Failure to follow grievance procedures

[8]The claimant’s allegations relating to the grievance procedures were relevant to the victimisation claim. That claim failed because the Tribunal found that the claimant had made her grievance and her claim in bad faith (Judgment paragraphs 133 to 149). It went on in any event fully to consider the claimant’s allegations, including consideration of the respondent’s procedural failings (Judgment paragraphs 150 to 152). Key misunderstood facts from the grievance and victimisation claim/ Retaliation and victimization

[9]The Tribunal considered chronology of events in relation to the bringing of the grievance and claim, and whether there was any link to the timing of the probation review and rejected the claimant’s position (Judgment paragraph 153). Misuse of the facts section and lack of objectivity

[10]It is the task of the Tribunal to make findings of fact and to draw conclusions from its findings. This legitimately includes consideration of the reliability and credibility of witnesses. The claimant has failed to identify any part of the judgment she relies upon in this regard. The Tribunal’s Mistake in Understanding the Case

[11]The claimant has not identified any legal principles which she says the Tribunal failed to apply. In any event such matters should be addressed by way of appeal not reconsideration. The claimant has not identified in this section how she contends the Tribunal has failed to properly assess the evidence. Judgment based on the Straw Man Fallacy

[12]The claimant has not identified how it is suggested the Tribunal has ‘distorted’ her claims. The Tribunal’s Failure to Apply the Burden of Proof Correctly

[13]The victimisation claim failed because the Tribunal found the claimant had brought her grievance and claim in bad faith. The Tribunal went on to find specifically that there was no prima facie case of victimisation (Judgment paragraph 150 to 153). The burden of proof did not therefore shift to the respondent. Inconsistent Testimony and Clear Contradictions

[14]The Tribunal specifically addressed the inconsistencies in Mr Daley’s account in relation to the second incident (Judgment paragraph 51, 60) and rejected the claimant’s suggestion that there was disparate treatment with Mr Lavery because they were not asking for the same things (Judgment paragraph 129). The Tribunal also specifically addressed the timing of Mr Daley referring to a student in the first incident (Judgment paragraph 31). Mislabelling of the Tribunal’s Judgment Document

[15]March 2017 refers to the date of the template used for judgments and was not inserted by this Tribunal.

Introduction

[16]The claimant submitted in relation to her application to adduce a revised witness statement (i.e. revised and added to from the version submitted by the deadline set by the Tribunal) that as a litigant in person with dyslexia it was very hard for her to deal with changes made to the bundle, which was time she would have been spending on her witness statement. In the Tribunal’s decision given orally, of which paragraph 7 of the Judgment is a brief summary, it was made clear that the Tribunal accepted what the claimant said that her dyslexia impacted on her ability to meet the tight deadline set, particularly when documents were added to the bundle in a way she may not have expected, and the application was therefore decided in her favour. The stated impact of the claimant’s dyslexia was the sole reason the Tribunal considered there had been a change in circumstances from Employment Judge B Smith’s order such that her application should be granted. The claimant did not suggest at the time that the Tribunal had misunderstood her position. It is therefore not understood why the claimant contends that the Tribunal’s approach, which was entirely in her favour and for the reasons given by her, is discriminatory or in any way affects the remainder of the judgment.

Facts

[17]The remaining 102 pages of the claimant’s application for reconsideration deal with and criticise specific findings of fact and conclusions drawn by the Tribunal paragraph by paragraph. Having read this in full, this is no more than an attempt to re-argue matters which were considered and rejected by the Tribunal in its decision, albeit with submissions being made in considerably greater detail than was done at the time. As stated in the Judgment, all evidence which the Tribunal heard or was referred to was considered even if not specifically noted in the written reasons. The claimant has not identified any obvious errors in the tribunal’s treatment of the evidence or conclusions which warrant reconsideration. It is disproportionate to address the claimant’s application point by point.