Dr M E Hernandez-Hernandez v Imperial College Of Science, Technology And Medicine and others: 2206195/2022
EMPLOYMENT TRIBUNALS
Case No 2206195/2022
Between
Dr M E Hernandez-HernandezClaimantImperial College Of Science, Technology And Medicine and othersRespondent
Before
Employment Judge AnthonySelf-representing for claimantMr D Isenberg (instructed by Counsel) for respondentDate 4 December 2024
JUDGMENT
[1]Complaint 1(a) - The first respondent’s conduct consequent to the claimant requesting time off to attend a “Preliminary Hearing” amounted to harassment related to race.[2]Complaint 1(c) - The first respondent’s conduct in referencing potential “legal processes” arising from any mistakes in examination setting amounted to harassment related to race.[3]Complaint 1(e) - The first respondent not placing the claimant upon a shortlist for the vacant I-X Lectureships amounted to discrimination on account of the claimant’s race.[4]Complaint 1(f) - The second respondent not placing the claimant upon a shortlist for the vacant I-X Lectureships amounted to discrimination on account of the claimant’s race.[5]Complaint 1(g) - The aforementioned harassment and discrimination constituted breaches of the implied contractual term of trust and confidence.
REASONS
Introduction
[1]On 16 February 2023, the claimant was ordered to pay a deposit of £2,500 divided as follows: Complaint 1(a): £250 Complaint 1(b): £250 Complaint 1(c): £250 Complaint 1(d): £250 Complaint 1(e): £500 Complaint 1(f): £500 Complaint 1(g): £500[2]On 31 March 2023, the claimant made a payment of £500.00.[3]The claimant sent an email dated 3 April 2023. The email states: “I have paid the deposit order to continue with my harassment claim against Respondent 1, Prof Guy Nason. Specifically, the payment corresponds to allegations 1a. and 1c. in Paragraph 1 of the Deposit Order issued by ET Judge Moxon.”[4]It would appear that the claimant, when sending the email dated 3 April 2023 may have been mistaken as to who respondent 1 and respondent 2 were. It seemed to the Tribunal that the claimant’s intention was to only pursue the complaint referencing attendance at a “Preliminary Hearing” and the complaint referencing “legal processes” against the second respondent, Professor Guy Nason. It seemed it was not the intention of the claimant to pursue these two complaints against the first respondent. However, the claimant also stated without ambiguity that she wished to pursue complaints 1(a) and 1(c) as set out in the Deposit Order.[5]The claimant informed the Tribunal that her mistake regarding respondent 1 and 2 had been noted and flagged by the respondents. Mr Isenberg took the Tribunal to the email dated 5 April 2023 from the claimant to the Tribunal (hearing bundle page 1461). The claimant clarified in this email that she was pursuing complaints 1(b) and 1(d) and the deposit payment was in respect of those complaints. Mr Isenberg confirmed this was the respondents’ understanding and the respondents were content that the payment pursuant to the deposit order was in respect of complaints 1(b) and 1(d).[6]On the basis of the parties’ submissions and the documentary evidence, complaints 1(a), 1(c), 1(e), 1(f) and 1(g) are struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013 due to non-payment of a deposit.[1]The claims arise out of the claimant’s employment with the first respondent (“the College”). From 1 November 2020 until 30 October 2022, the claimant was employed by the College as a Teaching Fellow in Statistics pursuant to a fixedterm contract that was subsequently extended.[2]The second respondent, Professor Guy Nason, is a Chair in Statistics at the College and was Head of Section for Statistics at the times relevant to the claimant’s claim. He line managed the claimant from around September 2021 until September 2022.[3]The third respondent, Professor David van Dyk, is also a Chair in Statistics at the College and was the Head of Department at the times relevant to the claimant’s claim. He was Professor Nason’s line manager.[4]The claimant’s claims can be grouped into three categories.[5]Firstly, the claimant alleges that Professor Nason subjected her to harassment related to her race (Mexican nationality). These allegations are referred to in the Agreed List of Issues as the “Nason Harassment Claims”.[6]Secondly, the claimant brings complaints as to Professor van Dyk’s conduct when she raised her concerns about what Professor Nason had said in a meeting with him. Additionally, the claimant also brings a complaint about Professor van Dyk’s written responses to the claimant’s grievance. These are referred to in the Agreed List of Issues as the “van Dyk Victimisation Claims”.[7]Thirdly, the claimant makes allegations that the College victimised her in how it handled the grievance. These allegations are referred to in the Agreed List of Issues as the “College Victimisation Claims”.[8]Reference is made throughout this judgment to the documents provided by the parties. The letters followed by numbers in brackets refer to the page numbers in either the joint hearing bundle (“HB”); the witness statement bundle (“WSB”); or the claimant’s supplementary bundle (“CSB”).
The Evidence
[9]The claimant gave evidence on her own behalf. The Tribunal heard evidence from Professor Nason, Professor van Dyk, followed by evidence from Professor Matthew Piggott, Ms Maria Langton, Ms Ann Kelly, and Ms Laura Honey.[10]The Tribunal was provided with: a) a joint hearing bundle totalling 1915 pages; b) a witness statement bundle totalling 135 pages; c) index to claimant’s supplementary bundle totalling 4 pages; d) claimant’s supplementary bundle totalling 242 pages; e) supplementary bundle totalling 18 pages; f) claimant’s opening note totalling 7 pages; g) respondent’s opening note totalling 15 pages; h) respondent’s authorities bundle totalling 289 pages; i) joint hearing bundle for the preliminary hearing on 16 February 2023 totalling 342 pages; j) claimant’s closing submissions totalling 38 pages; k) claimant’s index and summary of authorities totalling 9 pages and copy of Moseka v Sheffield Teaching Hospital NHS Foundation Trust UKEAT/0517/13/SM; l) respondent’s closing submissions totalling 30 pages; and m) copy of Kelly v Covance Laboratories Limited UKEAT/0186/15/LA and Bakkali v Greater Manchester Buses (South) Ltd (EAT) [2018] ICR. Preliminary/ Ancillary Matters[11]There were a number of preliminary/ ancillary matters which the Tribunal dealt with. Some matters arose on the first day of the hearing and others during the course of evidence. Own Recording and Transcription Service[12]The claimant made a request on the first day of the hearing for a transcript of the day’s evidence to be provided to her to assist her in her preparation as a litigant in person. In the alternative, she requested permission from the Tribunal to make her own recording of the evidence which she stated she could listen to at the end of each day.[13]Further and in the alternative, the claimant requested that the Tribunal allow a sufficient gap between the closing of evidence and before the Tribunal hears oral submissions. The claimant considered a sufficient gap to be adjourning the oral submissions to another day or in the alternative, she agreed with Mr Isenberg’s suggestion that the Tribunal could hear submissions on Day 5 (after the weekend).[14]In relation to adjourning oral submissions to another day, Mr Isenberg objected on the basis that the respondent would incur additional costs. Having considered the claimant’s request and the respondent’s objections, the Tribunal refused the request to adjourn the hearing of oral submissions to another day because it would be disproportionate to deal with the matter in this way. We find the claimant has had ample opportunity to inform the Tribunal well in advance of the hearing that she was of the view the timetabling required additional time to be built in for her own preparation. She has not done so. It is too late on the first day of the hearing to add additional days into the listing of this matter.[15]In relation to the request for a transcript to be provided, we have taken into consideration the ‘Presidential Practice Direction: Recording of Employment Tribunal hearings and the transcription of recordings’. We also made enquiries with the Tribunal administration. We informed the parties that it was not possible for a live transcript to be provided at the end of each day. The Tribunal administration confirmed that the transcription service is carried out by a third party and will take a number of weeks to be processed. There will be a fee which the party requesting the transcript will have to bear. It is therefore not possible to provide a transcript at the end of each day to the claimant.[16]We considered the claimant’s request for permission to record the proceedings taking into consideration the ‘Presidential Guidance: Recording of Employment Tribunal hearings and the transcription of recordings’ at paragraph 10 and 11. We find the Presidential Guidance requires a person who wishes to make their own recording of a hearing to make an application to the Tribunal as early as possible in the proceedings. We find the application was only made on the morning of Day 1 of the hearing.[17]We find there is an exception to the general prohibition on recording. Those circumstances are where the making of such a recording is necessary in the interests of justice to ensure the effective participation of a vulnerable party or witness or by way of reasonable adjustment for a person with a disability, and for which supporting evidence has been provided. We find the application was not accompanied by any medical or supporting evidence. There is nothing to indicate that the claimant requires this by way of a reasonable adjustment because of a disability. We therefore refused the claimant’s application for permission to make a recording of the proceedings.[18]We observed in our decision communicated orally to the parties that the matter may perhaps be resolved pragmatically. The respondent has a team of solicitors who may well be making a note of the proceedings. If the respondent is willing, and in the spirit of cooperation to ensure that this hearing proceeds without undue delay, we indicated that the respondent could consider sharing their note at the end of each day with the claimant. Mr Isenberg confirmed that he would take instructions and would revert to the Tribunal.[19]The Tribunal received an email from the respondents which was sent to the claimant and the Tribunal after 6 p.m. on Day 1 stating the respondent would not be able to accommodate the Tribunal’s suggestion to share their note of the proceedings with the claimant. The respondents provided reasons for why they felt unable to do so and explained why they have decided to send an email – namely to provide the claimant with as much notice as possible so that the claimant has the opportunity to make her own notetaking arrangements overnight. On commencement of the hearing on 25 September 2024 (Day 2), the claimant confirmed she received the email and was content to take her own note of the proceedings. Deposit Order[20]Mr Isenberg required confirmation from the Tribunal that the claimant had made a payment as required by the deposit order dated 16 February 2023 (as amended on 10 July 2023) to pursue allegations 1(b) and 1(d). Having made enquiries with the Tribunal administration and having established that a payment of £500 had been made on 31 March 2023, both the claimant and Mr Isenberg agreed that the deposit payment was in respect of allegations 1(b) and 1(d). Claimant’s Objection to pre-reading the Deposit Order Reasons[21]The claimant in her opening note objects to the inclusion of the Deposit Order in the Tribunal’s pre-reading. The claimant argues that the reasons provided by Employment Judge Moxon in the deposit order are not relevant to the Tribunal hearing her claim “given that the final hearing should proceed independently and without undue influence from prior procedural findings.”[22]The Tribunal panel received the claimant’s opening note on Tuesday, 24 September 2024 at 9 a.m. As explained to the claimant orally, it is not possible for the Tribunal panel to “un-read” the reasons set out by Employment Judge Moxon in the Deposit Order. The pre-reading had already been carried out by the panel the previous evening on 23 September 2024 and on the morning of 24 September 2024, prior to receipt of the claimant’s opening note.[23]The Tribunal has nevertheless considered whether there is any reason to think that the Deposit Order should not have formed part of the pre-reading. We find that the pre-reading of the deposit order and the reasons set out therein to be essential to proper case management of this hearing; to deal with the respondent’s query as to whether the deposit had in fact been paid and to understand which allegations have been automatically struck out by reason of non-payment of the deposit.[24]The claimant contends that, having paid the deposit order, she “has the right to a full and impartial hearing, free from any undue influence based on earlier procedural decisions.” The claimant states there should not be any reliance placed on the reasons for the Deposit Order issued by Employment Judge Moxon and that this Tribunal should assess the evidence with fresh eyes, impartially, and without influence from earlier findings.[25]We concur the claimant has the right to a full and impartial hearing. As explained to the claimant, the Tribunal is required to hear all the evidence and submissions before the Tribunal is able to make findings of fact on the evidence and make a decision in respect of the complaints set out in the Agreed List of Issues. This process is carried out independent of the reasons given by Employment Judge Moxon, who was required to apply a different legal test when considering whether to make a Deposit Order.[26]The claimant’s argument is that key evidence has emerged since the making of the Deposit Order which strongly indicate the reasoning set out in the Deposit Order no longer stands. The Tribunal is required to understand the reasons set out in the Deposit Order because once the Tribunal has reached its findings of fact, the Tribunal will need to assess whether the reasons reached by the Tribunal is for substantially the reasons given in the Deposit Order or otherwise (rule 39(5) of the Employment Tribunal Rules of Procedure).[27]If the claimant is correct that the new evidence will lead the Tribunal to reach different findings of fact/ reasons, then the claimant will have succeeded in demonstrating that she has not acted unreasonably in pursuing that specific allegation or argument. In that instance, the deposit will be refunded. We do not consider that a fair minded and informed observer, in possession of the full facts, would conclude the Tribunal was biased simply because it had read the Deposit Order (Locabail (UK) Ltd v (1) Bayfield Properties Ltd [2000] 1 All ER 65). Claimant’s Supplementary Bundle[28]The parties were unable to agree on the inclusion of a significant number of documents. The respondents’ documents which had not been agreed by the claimant appear at Tab F of the joint hearing bundle. These amount to 256 pages. The claimant’s documents which had not been agreed by the respondents appear in the claimant’s supplementary bundle. When the index is included, these amount to 246 pages. Preliminary Hearing Bundle[29]On Day 3 (26 September 2024), during Professor Nason’s evidence, Mr Isenberg objected to a line of questioning by the claimant and to the documents on page 34, 36 and 42 of the claimant’s supplementary bundle being shown to Professor Nason. The objection was two-fold. Firstly, the question posed by the claimant was relevant to an allegation where the claimant had not made a payment in respect of the deposit order and secondly that the documents shown to Professor Nason were incomplete/partial documents. Mr Isenberg stated that the fuller version of these documents had previously been provided in the bundle prepared for the Preliminary Hearing held on 16 February 2023.[30]We informed the parties we have not had sight of the bundle previously served. If there was any dispute regarding the completeness of the documents in the claimant’s supplementary bundle, and if the Tribunal will be directed to the bundle previously served, then it was prudent for that bundle to also be placed before this Tribunal. We paused the hearing for 30 minutes to enable the respondent to provide the joint hearing bundle served for the Preliminary Hearing. Mr Isenberg directed the Tribunal to consider page 252, 255 and 259 of that bundle. Revised Timetabling[31]Due to the large body of information, the Tribunal indicated that the pre-reading time was insufficient and that the remainder of Day 1 should be allocated to pre-reading. Both parties were also content to commence the proceedings earlier at 9.30 a.m. every day of the hearing to ensure that this matter concludes within the allocated time.[32]In discussing the revised timetabling, the Tribunal stated that it would seem likely that Day 2 and the morning of Day 3 would be allocated to the claimant’s evidence. It was likely the respondent’s evidence would conclude by the lunch break on Day 5, which it did. That would leave the claimant the remainder of Day 5 and the morning of Day 6 in which to prepare her written and oral submissions. The Tribunal agreed that the parties would exchange written submissions at 12 noon on Day 6 and the Tribunal will hear oral submissions at 2 p.m. on Day 6. The claimant and the respondent confirmed that they were content with the proposed revised timetabling.[33]We received the claimant and the respondent’s written closing submissions on 1 October 2024 at noon and heard oral submissions in the afternoon on 1 October 2024. There was insufficient time for the Tribunal to deliberate and provide a decision. The Tribunal panel reconvened on 25 to 27 November 2024 to deliberate and to make a decision on all of the issues on the Agreed List of Issues.
The Issues
[34]It was agreed by the parties that the Agreed List of Issues (HB/86) was correct and that this reflects the position since the non-payment of the deposit pursuant to the deposit order dated 16 February 2023 (as amended on 10 July 2023) in respect of allegations 1(a), (c), (e), (f) and (g).
Relevant Law
[35]The burden of proof is on the claimant to establish facts from which the Tribunal could conclude that, absent any other explanation, the respondents harassed and/or victimised her (section 136(2) of the Equality Act 2010). If the claimant is able to do so, the burden then shifts to the respondents to prove that they did not contravene the Equality Act 2010 (section 136(3)). Harassment[36]In Richmond Pharmacology v Dhaliwal [2009] ICR 724, Underhill J (as he then was) stated that it would be a “healthy discipline” for the Tribunal, when considering a claim of harassment to specifically address (in its reasoning) each of the three distinct elements under section 26(1) of the Equality Act 2010: a) whether there was unwanted conduct; b) whether it had the proscribed purpose or effect (of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her); and c) whether it relates to a relevant protected characteristic (the claimant’s nationality).[37]As to whether conduct is ‘unwanted’, where a claimant has made it clear through their own conduct that they have no objection to it, that conduct will not be ‘unwanted’ (IDS Employment Handbook, Volume 5, paragraph 18.21- 18.24). That consideration also overlaps with whether a claimant can realistically contend that such conduct had the proscribed effect (Thomas Sanderson Blinds v English, UKEAT/0317/10/JOJ, 21 February 2011).[38]On the second of the questions above, Underhill J held in Dhaliwal at [22] that “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended”. Isolated incidents are unlikely to amount to harassment unless they reach a sufficient degree of seriousness because an ‘incident’ is not the same as creating the proscribed “environment”. (General Municipal and Boilermakers Union v Henderson [2015] IRLR 451 at [99]). However, an environment may be created by a one-off incident, but its effects must be of longer duration to come within section 26(1)(b)(ii) of the Equality Act 2010.[39]In deciding whether the relevant environment has been created under section 26(1)(b), the Tribunal is required to consider both the subjective and objective elements (Pemberton v Inwood [2018] ICR 1291 at [88]): “In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances — sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.”[40]On the third question, the Tribunal will need to consider whether any unwanted conduct, even if it did have the proscribed effect, actually had a sufficient nexus to a protected characteristic: (Ukeh v Ministry of Defence (UKEAT/0225/14/DM, 18 May 2015). In that regard, whether comments can be said to ‘relate to’ the relevant protected characteristic will take into account the context in which the comments were made, including (where relevant) by reference to earlier comments (Bakkali v Greater Manchester Buses (South) Ltd [2018] ICR 1481 at [39]). Equally, that question can, itself, be closely related to whether the protected characteristic was the reason for the relevant comment (Kelly v Covance Laboratories Limited (UKEAT/0186/15/LA) at [31]). Victimisation[41]The question of whether the claimant has been subjected to a ‘detriment’ has both subjective and objective elements. It is a question to be considered from the claimant’s point of view, but her perception must be reasonable (Warburton v Chief Constable of Northamptonshire Police [2022] ICR 925 at [50]-[51]).[42]The House of Lords held in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at [31]: “Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings.”[43]Where an employer fails to investigate a complaint or grievance relating to discrimination or harassment, that will not, in itself amount to victimisation unless there is a material link between the fact/substance of the complaint (as a protected act) and the failure to investigate (A v Chief Constable of West Midlands Police (UKEAT/0313/14/JOJ, 21 April 2015); Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] IRLR 1022 at [95]-[96]).[44]In that regard, when the Tribunal is considering the reasons why a claimant was subjected to a detriment, it must do so specifically by reference to the doing of the relevant protected act[s] (JJ Food Service Ltd v Mohamud (UKEAT/0310/15/JOJ) at [19]). Findings of Fact and Associated Conclusions Overall View of the Witnesses[45]We were unimpressed with the claimant’s evidence. We found the claimant tended to misconstrue things and was evasive in her evidence. We also found her evidence evolved throughout the journey of her claim. We preferred the respondent’s witnesses’ evidence, all of whom we found, gave their evidence honestly and without embellishment. Nason Harassment Claims Meeting of 9 August 2021 Did Professor Nason say to the Claimant to apply for jobs at less reputable institutions?[46]The claimant states in her ET1 claim form that during the meeting of 9 August 2021, Professor Nason had told her to look for jobs elsewhere in less reputable institutions. The claimant states this was disappointing to her. However, we find the claimant does not refer to this in her witness statement at paragraph 32 (WSB/8). We find that it is reasonable to expect the claimant to mention this in her witness statement if Professor Nason had told her to look for jobs elsewhere in less reputable institutions. We also find the claimant did tell Professor Piggot in her grievance meeting that there was no bad blood between her and Professor Nason prior to December 2021 (HB/1130). If Professor Nason had told her to look for jobs elsewhere in less reputable institutions and if this was disappointing to the claimant, it would be reasonable to expect the claimant to mention this to Professor Piggot.[47]We place weight on Professor Nason’s witness statement at paragraph 5 (WSB/74). We find Professor Nason did not say “less reputable” in his discussion with the claimant. We find Professor Nason did talk about the fact that it was a competitive jobs market and that the claimant should consider and apply to as many places as possible. We also accept Professor Nason’s evidence that he did not specifically encourage the claimant to pursue a career at the College. We find in any event the claimant did not enquire about a potential job at the College and furthermore, the Statistics Section had no jobs advertised at the time. We do not accept that Professor Nason told the claimant to look for jobs elsewhere in less reputable institutions. Mexican Nationality[48]The claimant states that during this online discussion with Professor Nason, she told him that she was of Mexican nationality. The claimant states that this arose in the context of the discussion about where she did her first degree. We accept the discussion about where the claimant did her first degree may have come up in this online meeting. We find this to be plausible given this was her first meeting with Professor Nason and it is normal to expect that one’s academic background would be discussed. However, we do not accept that the claimant’s nationality was discussed as one does not have to be Mexican to study in Mexico. Even though we have found a discussion about where the claimant did her first degree may have come up, we prefer Professor Nason’s evidence that the focus at this meeting was the claimant’s PhD and postdoctoral position at the University of Warwick. We find this aspect of the claimant’s experience would have been most pertinent and of interest to Professor Nason given the claimant was about to teach high-level undergraduate and Masters students.[49]The claimant’s evidence is that she always emphasises in any discussion, including this discussion, that she is of Mexican nationality. The claimant states that she does this to emphasise the cultural differences. We do not accept that the claimant mentioned she was of Mexican nationality at this meeting. We find there would simply be no reason why the topic of her nationality would come up in the context of a discussion about her academic background. We reject her evidence that she told Professor Nason her nationality in this meeting. Email of 13 September 2021 Did Professor Nason Register the Claimant’s nationality?[50]Professor Nason asked the claimant in an email dated 13 September 2021 what type of employment contract the claimant had with the College (HB/315). The claimant replied the same evening with a long and detailed email setting out the length of her first fixed term contract. She also explained that she was on a Tier 2 (General) Visa which was expiring on 13 November 2021. She mentioned her Mexican nationality and the fact she would be applying for Indefinite Leave to Remain in the first week of November 2021 (HB/314-315).[51]Professor Nason in his evidence stated that whilst he was told of the claimant’s nationality, he did not specifically register her nationality. We accept his evidence that the HR Compliance email which copied him in, meant he was aware that the claimant was a non-UK national, but her particular nationality was irrelevant to the topic under discussion which was whether she would continue to have the right to work. We also accept Professor Nason’s evidence that the key information that he needed to be aware of was highlighted in bold in the claimant’s email but the claimant’s nationality was not highlighted for his attention. We find that Professor Nason, upon receipt of the claimant’s explanation of her next steps and the relevant dates, gave no further thought to the topic of the claimant’s nationality because there was nothing he was required to do. Meeting of 6 December 2021
Background
[52]The claimant had an online meeting with Professor Nason on 1 December 2021. The claimant informed Professor Nason that she needed two days of annual leave during term time (18 and 28 January 2022). There was a discussion about the fact that the teaching timetables had not been finalised and there was a possibility that the requested annual leave would clash with the claimant’s teaching schedule. We accept the claimant discussed teaching coverage. We find Professor Nason sought further information, including whether the reason was related to the claimant’s visa status which the claimant clarified that it was not. We find there is no dispute the claimant did not provide any further details at this stage. We accept the claimant told Professor Nason that she would come back to him if indeed there was a clash with her teaching schedule.[53]We find there was a discussion between the claimant and Professor Nason as to the Department’s ‘Leave of Absence’ online form, which staff are expected to complete for absences. We find Professor Nason had explained that a reason is normally required for in-term annual leave request. We accept his evidence that the form has a drop-down box titled ‘Purpose of Application’, which requires a reason to be given (HB/1801-1802). We find Professor Nason did explain that the Department did not like staff to take in-term annual leave due to the difficulty arranging cover.[54]We find that the College’s requirement for staff to give a reason for one’s request for in-term annual leave is reasonable as it would have enabled managers considering the in-term annual leave request to understand the need for leave.[55]On 5 December 2021, the claimant sent an email updating Professor Nason. She stated she had in person class on 28 January 2022 which was one of the dates she was unavailable. The claimant requested a meeting with Professor Nason to discuss the issue which was impacting on her availability. Professor Nason and the claimant agreed to meet online at 10 a.m. on 6 December 2021. Are you the ‘subject’ or are you the ‘witness’?[56]We find there was no dispute the claimant did not provide Professor Nason with a reason for her requested in-term annual leave. We find the claimant was reluctant to provide a reason and when pressed told Professor Nason that she needed to attend a Preliminary Hearing.[57]The claimant’s evidence is that upon disclosure that she needed to attend a Preliminary Hearing, she observed a shift in Professor Nason’s demeanour and that he asked her 'Are you the ‘subject’, or are you the ‘witness’?[58]The claimant’s evidence is that she was unfamiliar with the term 'subject' because her Employment Tribunal claim used the terms 'Claimant,' 'Respondent,' and 'witnesses.' She told Professor Nason that she was the ‘subject’.[59]Professor Nason stated in his evidence that he did not have a detailed knowledge of the legal system and furthermore, with having little information from the claimant, he asked the question whether she was a ‘subject’ or ‘witness’ purely to ascertain how much further time off she would require because a subject is likely to require more time off in contrast to a witness.[60]In oral evidence, the claimant was questioned at length by Mr Isenberg regarding this matter. The claimant agreed with Mr Isenberg that at the time of this meeting on 6 December 2021, she was still of the view that Professor Nason’s question could have related to whether she was a party in an Employment Tribunal claim or civil proceedings. We find from the claimant’s oral evidence that if she thought that Professor Nason was under the impression it was a criminal matter, she would have corrected him. We conclude from the claimant’s evidence that at this stage, she had no reason to think that Professor Nason suspected she was a defendant in criminal proceedings. Redacted document[61]The claimant states she prepared a redacted version of the Notice of Hearing she received in her Employment Tribunal claim against her former employers, the University of Warwick. The claimant accepts she did not offer this document to Professor Nason. She stated that she was waiting to be asked for the document (HB/517).[62]Professor Nason states that he had already asked for a reason for the requested annual leave and none was provided (HB/987). We find he would have no reason to think the claimant had prepared any redacted document in readiness to provide him if he had asked. We find the claimant did not offer any reason for why she required in-term leave and it is entirely reasonable for Professor Nason to conclude she did not wish to provide any further information or documentation in relation to this. Post Meeting Research[63]Following this meeting, Professor Nason states that he carried out research into what a Preliminary Hearing might relate to. He states that he had safeguarding concerns. He states at paragraph 17 of his witness statement that his search on this date was not filtered to UK only sites and that his search generated information mostly relating to criminal proceedings. Professor Nason has produced the search results generated applying a UK only filter and one without (HB/1803 - 1804). We find there is a difference between the two search results. We find the unfiltered search was more weighted towards criminal proceedings.[64]We accept given the lack of information from the claimant regarding what those Preliminary Hearings entailed, that it was only reasonable for Professor Nason to undertake some rudimentary research into what a Preliminary Hearing entailed. Angela Kehoe[65]On the same day, Professor Nason emailed Angela Kehoe of HR and Professor van Dyk for advice (HB/345). He explained that the claimant had told him about her need to attend two Preliminary Hearings which he believed was some form of a legal hearing; that she was a subject and not a witness and that it was not related to her visa status. We find Professor Nason does explain that he had undertaken some limited research and that his research might indicate a) that it was a serious trial or b) the fact there were two hearings might indicate more than one offence. Professor Nason sought advice as to whether the claimant had an obligation to provide more information about the hearing.[66]We find Ms Kehoe responded the same day advising Professor Nason that employees do not have to declare any further information once employed and that they would only have to make such a declaration prior to commencing employment. She makes the recommendation that “in spirit of openness and transparency” the claimant ought to declare this matter to the Head of Department.[67]Professor Nason then wrote to Professor van Dyk later that day summarising the information he had gathered from his limited research. We find he did qualify what he had set out by stating it may not be criminal charges. Following these emails, Professor Nason approved the claimant’s annual leave request on 13 December 2021 without further request for information (HB/351-352). Although Professor van Dyk stated in his email that he would seek advice from the Faculty Operations Officer, we were not taken to any correspondence or meeting notes in respect of this discussion. Criminal Trial[68]Professor Nason in his response to the claimant’s grievance states that he thought he heard the claimant say it was a Crown Court matter (HB/991, paragraph 32). He acknowledges in his response to the grievance that he may have misheard. We find this aspect of his evidence is not supported by the contemporaneous email he sent to Ms Kehoe detailing his post hearing research (HB/345). We accept from his oral evidence that his recollection at the time of preparing his response to the grievance was not complete. We place more weight on the email to Ms Kehoe as it is contemporaneous. We accept that Professor Nason may have used his knowledge of the post meeting research as a basis for stating in his response to the grievance that he thought he heard the claimant mention it was a Crown Court matter.
Our Analysis
[69]We find the claimant’s evidence of this meeting to be confused and inconsistent across the various documentary evidence. In the claimant’s witness statement at paragraph 40, the claimant states that she herself had undertaken some research and that her research did not yield any results to support “either interpretation”. The claimant appears to suggest her research did not support the word “subject” to mean either “claimant” or “respondent”. It is unclear whether her research led to any conclusive findings and if so what they might be. The claimant states that despite the inconclusive research, that this led her to conclude Professor Nason must have presumed she could not be a “claimant”. We are unable to follow the claimant’s line of reasoning. We cannot see how a piece of research which did not yield any conclusive results would have led the claimant to think that Professor Nason must have concluded she was not a claimant in some form of civil proceedings.[70]Having heard oral evidence from the claimant, we find her evidence is not any clearer on this issue. We find the claimant focussed on Professor Nason’s use of the word “subject” to justify her position that he thought she was a defendant in criminal proceedings. The claimant states that the use of the word “subject” usually means criminal proceedings. However, we find Professor Nason presented the claimant with a choice – “subject” or “witness”.[71]If the claimant was of the view that “subject” equated to criminal proceedings, then it unclear to the Tribunal why the claimant chose to tell Professor Nason she was a “subject”. Why not say she was a “witness”? Furthermore, we find that if the claimant did genuinely think “subject” equated to criminal proceedings, then there would be no reason for her to carry out her own research. We find the only reason she carried out research was because she did not know what Professor Nason meant by his use of the word “subject”.[72]We find this episode was a misunderstanding as clearly Professor Nason did not know what the claimant meant when she said she needed to attend a Preliminary Hearing. We find the claimant also did not know what Professor Nason meant by his use of the word “subject”. We find that none of the misunderstandings would have arisen if the claimant had told Professor Nason the nature of her Preliminary Hearings or provided Professor Nason with the redacted document that she had prepared.[73]The claimant cross examined Professor Nason regarding his email dated 6 December 2021 to Professor van Dyk on whether it was the case that he did not wish to grant annual leave until he had more information. In that email, Professor Nason pondered regarding the nature of the Preliminary Hearings, “…what if it were drugs-related, or trafficking, or child sex offences. If convicted, then there might be action that Imperial might have to take…” (HB/343-344). Professor Nason stated in cross examination that what was stated was not definitive. He referred to his safeguarding duties and the need to raise concerns. We find this is supported by his email the following day to Professor van Dyk where he states, “To be honest, I think I’ve done my duty in raising this and I will do what I’m told - e.g. if HR don’t want us to do anything special then so be it.” (HB/343). We accept Professor Nason had firmly in his mind safeguarding duties.[74]In relation to the granting of annual leave, Professor Nason stated that “… depending what her situation is, this grates a little.” We accept Professor Nason’s evidence that he did not have the necessary information in order to grant annual leave. We accept Professor Nason’s evidence that he would have liked more information before granting the claimant’s annual leave but given he was advised by Ms Kehoe that he did not need to ask the claimant to declare anything further regarding the Preliminary Hearings, he proceeded to grant the claimant’s annual leave.[75]The claimant in her cross examination of Professor Nason focussed on the lack of support from him. We find this was not a matter which was pleaded in her Particulars of Claim (HB/38, paragraph 25). We find the claimant did not wish to divulge details of her Preliminary Hearing to Professor Nason. In the circumstances, it is difficult to see what else in the form of support Professor Nason could have provided without knowing the nature of the proceedings she was involved in. We find there were many other matters brought up in the claimant’s witness statement, oral evidence and in cross examination of the respondent’s witnesses which were not pleaded in her Particulars of Claim and did not relate to her complaints of harassment. We make no findings in respect of these matters because they were not pleaded and not contained within the Agreed List of Issues.[76]We find there was nothing said by the claimant at the time or made clear through her own conduct that she had any objection to the question “are you the ‘subject’ or are you the ‘witness’ ”. We conclude that Professor Nason’s conduct in asking the question was not ‘unwanted’ conduct.[77]In relation to whether such conduct had the proscribed effect, we find there is nothing to indicate at the time in question that the claimant perceived her dignity to have been violated, or an adverse environment created. In any event, we find the conduct should not have that effect as it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for her. Email of 8 January 2022 – Mexican Nationality[78]In the claimant’s cross examination of Professor Nason, the claimant suggested to Professor Nason that he would have known by 8 January 2022 that she was of Mexican nationality because she was in Mexico and had been to see her family doctor. Professor Nason agreed that seeing one’s family doctor in Mexico may well indicate that one was of Mexican nationality but that the claimant’s precise nationality was not of vital importance. We conclude from Professor Nason’s evidence that by this point, he had knowledge that the claimant was of Mexican nationality. Email of 12 January 2022 - “Do you think you will be back for your hearing on the 18th?”[79]On 12 January 2022, the claimant informed Professor Nason that she had contracted Covid19 and that she could not travel back to the UK for in person teaching. On the same day, Professor Nason responded to enquire as to whether the claimant would be back for her hearing on 18 January 2022 and what might happen if she could not attend. Professor Nason also wished the claimant a speedy recovery, emphasised that her recovery was the main thing and expressed his appreciation of the claimant’s efforts to continue to work.[80]The claimant’s case as presented in the ET1 claim form is that this email constituted harassment. She stated in her witness statement that she felt enraged, disappointed and appalled (WSB/18, paragraph 66). The claimant in her oral evidence sought to justify how she felt by stating Professor Nason should not have started his email by asking about the hearing and should have showed more concern. When it was put to her by Mr Isenberg whether she would have felt better if Professor Nason had wished her a speedy recovery first, the claimant then stated that it would not have made any difference because he was not able to support her with the hearing and he did not cover her teaching on 28 January 2022. The claimant acknowledged in her oral evidence that her reaction may not be reasonable. We find the claimant’s emphasis on how sentences are constructed in an email to be unreasonable. We find Professor Nason did emphasise that the claimant’s recovery was the “main thing”. As we have already found, it is difficult to see what else in the form of support Professor Nason could have provided without knowing the precise nature of the proceedings she was involved in.[81]We have carefully considered the email exchange between the claimant and Professor Nason (HB/563). We find Professor Nason emailed the claimant on 9 January 2022 to enquire of the claimant’s well-being and her expectations of him for her teaching days on 18 and 28 January 2022. The claimant replied to inform Professor Nason that she would only require teaching cover for 28 January 2022 and that she would try to re-arrange the session. We find this is entirely consistent with the arrangements they had discussed on 13 December 2021 (HB/349). We find that the options available to the claimant since her meeting of 13 December 2021 has always been to a) rearrange the in person teaching; or b) find suitable cover which may include Professor Nason teaching her class. We do not find the claimant behaved reasonably when she stated that Professor Nason failed to support her by refusing to cover her teaching on 28 January 2022. There were many other examples which the claimant gave of what she thought were examples of lack of support from Professor Nason. We find those examples had evolved over the course of her claim. We have not sought to deal with all of her complaints regarding lack of support because these were not pleaded in her ET1 claim form and Particulars of Claim. For the avoidance of doubt, we find these to be immaterial to the claims.[82]We have carefully considered the claimant’s email of 12 January 2022 in response to Professor Nason’s email. We find there is simply nothing to indicate the claimant was enraged or upset by Professor Nason’s email. We find she thanked him twice in a short email consisting of three sentences. We do not accept the claimant’s oral evidence that she did not mean what she had said in this email. We find the email, which was her response at the time, plainly indicated she was grateful for Professor Nason’s support. We conclude that Professor Nason’s conduct in asking the question was not ‘unwanted’ conduct.[83]In relation to whether such conduct had the proscribed effect, we find there is nothing to indicate at the time in question that the claimant perceived her dignity to have been violated, or an adverse environment created given she thanked him twice. In any event, we find the conduct should not have that effect as it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for her. Email of 19 January 2022 - “Yesterday”[84]Another example provided by the claimant of Professor Nason’s lack of support is his email of 19 January 2022 entitled “Yesterday” (HB/587). The claimant does not plead in her ET1 claim form that the email of 19 January 2022 was harassment from Professor Nason. She states in her witness statement that Professor Nason’s choice of the subject title was inappropriate because it implied his primary focus was on the Preliminary Hearings and not on her welfare (WSB/19, paragraph 69).[85]We disagree. We find the email does discuss her wellbeing. We find Professor Nason did not ask any questions about the Preliminary Hearing. We find there is nothing to indicate Professor Nason harboured any suspicions about the claimant from a plain reading of this email. We find the email indicated he was concern about her welfare in light of the Preliminary Hearing the day before. We conclude there is simply nothing to indicate that the email could be ‘unwanted’ conduct.[86]In relation to whether such conduct had the proscribed effect, we find there is nothing to indicate that the claimant perceived her dignity to have been violated, or an adverse environment created. We find she responded in a friendly manner and again, thanked him twice for asking about her health (HB/587). In any event, we find the conduct should not have that effect as it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for her. Email of 26 January 2022 – “Possible Outcomes”[87]The claimant states that Professor Nason sent another email harassing her for details about her Preliminary Hearing which he was not entitled to receive. She also states that his email showed he thought her case was a criminal case which the claimant found humiliating, degrading and offensive. The claimant was of the view that Professor Nason should have followed HR advice on 6 December 2021 by informing the claimant to declare her situation to the Head of Department.[88]On the point about making a declaration to Professor van Dyk, we find nothing turns on this. Even if the claimant had been told about what HR had said, we are wholly unpersuaded that the claimant would have made the necessary declaration to Professor van Dyk. We place weight on Professor Nason’s written and oral evidence that he felt the claimant wanted to keep the details of those Preliminary Hearings private (WSB/79, paragraph 22). Furthermore, given HR had confirmed no further information was required, we accept his evidence that he did not see any utility in passing on the information from HR. We find an omission to pass on information from HR plainly cannot be ‘unwanted’ conduct.[89]We have carefully considered the email exchange dated 26 January 2022 between the claimant and Professor Nason (HB/366-367). We find Professor Nason does use the word “trial”. However, we have already found that Professor Nason was not familiar with the legal system and it is clear that he would not have appreciated the difference between a Preliminary Hearing and a trial. Given the lack of information from the claimant regarding the nature of her Preliminary Hearings and Professor Nason’s own research, we find that Professor Nason was concerned about safeguarding and the claimant’s welfare, and wanted to express support for the claimant for her impending hearing that week. We find there is nothing to indicate this email could be ‘unwanted’ conduct.[90]In relation to whether such conduct had the proscribed effect, we find there is nothing to indicate that the claimant perceived her dignity to have been violated, or an adverse environment created. We find this is supported by the claimant’s own reaction to this email where she expressed her appreciation and thanked Professor Nason three times. We find the fact the claimant thanked Professor Nason three times is an indication she did not perceive it as ‘unwanted’ conduct. In any event, we find the conduct should not have that effect because it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for her.[91]Additionally, we find the claimant’s email of 26 January 2022 to be misleading. We find the claimant told Professor Nason she was “dragged” into the proceedings. However, we find she could not be “dragged” into proceedings because she had initiated proceedings in the Employment Tribunal against her former employer. We find the claimant’s misleading response then led to the second misunderstanding on 26 January 2022. Email of 26 January 2022 – Crown Court Proceedings[92]Professor Nason upon receipt of the claimant’s response then responded indicating that he was reassured that the claimant was merely a ‘witness’ and not a ‘subject’ in Crown Court proceedings. Professor Nason informed the claimant that he had been concerned that there may be further hearings.[93]We find this was a credible reaction for two reasons. Firstly, he was sufficiently reassured that the claimant was not involved in proceedings which may unduly impact on her wellbeing and secondly, that she was unlikely to require further in-term annual leave given she told him she was a witness. We do not accept his reaction was ‘unwanted’ conduct.[94]In relation to whether such conduct had the proscribed effect, we find there is nothing to indicate that the claimant perceived her dignity to have been violated, or an adverse environment created. We also find it was not reasonable for the claimant to be offended given she did not provide Professor Nason with any information in respect of those proceedings (WSB/82, paragraph 29).[95]Furthermore, we find that when the email is considered in the round, it is an email which shows concern for the claimant’s health and welfare. We find Professor Nason did express concern for the claimant’s IBS. We find that none of this was challenged by the claimant in her cross examination of Professor Nason. Additionally, we find the claimant had previously thanked Professor Nason for his concern and enquiries. We find it is only reasonable for Professor Nason to think it was appropriate to make further enquiries of the claimant’s health and her legal proceedings.[96]The claimant also states in her ET1 claim form that Professor Nason had stereotypical Trumpian views of Mexican people because he had been exposed to news coverage of the President of the USA’s views. We find it is a huge leap to suggest that anyone who had been exposed to such coverage would harbour racist views of those of Mexican heritage. We find the claimant’s assertion that her Mexican nationality underpinned Professor Nason’s interactions with her is entirely speculative and frankly not credible.[97]We find the claimant did not challenge Professor Nason’s written evidence that he does not harbour such views of those of Mexican heritage. We find Professor Nason gave an example which demonstrated that he was not racist to those of Mexican heritage in his witness statement (WSB/91, paragraph 67). We find the claimant did not challenge this aspect of Professor Nason’s evidence in cross examination but then sought to discredit his evidence in her written closing submission (paragraph 71). We find it is wholly inappropriate to attack Professor Nason’s evidence in her written and oral closing submissions without providing him with an opportunity to respond. For those reasons, we place little weight on this submission. For the avoidance of doubt, we reject the claimant’s assertions that any of Professor Nason’s responses in the various interactions we have considered above were because of his alleged racist views of those of Mexican heritage or nationality. 14 March 2022 – Exam Setting[98]One aspect of the claimant’s role as a Teaching Fellow involved the setting of student exam papers. As part of that process, the setter’s proposed paper would be internally reviewed for consistency and compliance with the College’s standards. Professor Nason was the internal checker of the claimant’s paper, and he provided his comments on her draft on 8 March 2022 (HB/379). He described her work in headline terms as “Overall good- well done. Setting good exam papers is a hard job and time consuming.” His specific comment on Question 5 was as follows (HB/381): “I thought this question was not very challenging. Could you perhaps convert some of the parts to make it a bit more challenging?”[99]The claimant responded to Professor Nason’s comments on 11 March 2022 (HB/387-390). She acknowledged that she did not address the remarks regarding the level of difficulty. On 14 March 2022, Professor Nason responded with comments on the claimant’s second draft, in which he refers to people/universities having been sued and taken through legal processes, and having the name of lecturer and university paraded through the national press.[100]The claimant’s complaint regarding this email pertained to Professor Nason’s reference to “legal processes”. The claimant states that his reference to “legal processes” indicated that he was still suspicious about the claimant. The claimant also said that Professor Nason’s comment “felt like a threat” and that it was humiliating and offensive to her to read his suggestion that lecturers involved in legal proceedings should feel ashamed.[101]Having read the email from Professor Nason (HB/393) and his written evidence (WSB/85-86, paragraph 43), we find Professor Nason was speaking from his own experience of a former student bringing a challenge against the University of Bristol. We find this was not challenged by the claimant in cross examination. We find it is expected that Professor Nason as the internal checker would do his job by carrying out a thorough check into the standard and quality of examination questions. We find there is simply nothing to indicate that Professor Nason was suspicious of the claimant or made those comments to humiliate the claimant. We are reinforced in our view by his email of 15 March 2022 where he offers to make final changes to the paper and proceeded to suggest that another academic act as the internal checker of his work to ensure quality and standards were maintained and to guard against future legal process issues (HB/398). We are satisfied this is a reference to himself and not the claimant. We find Professor Nason clearly had in mind quality control, not just for the claimant’s work, but his own work too. We find this is not ‘unwanted’ conduct and his comments were not designed to humiliate the claimant. We find it is not reasonable for the claimant to have felt that way because Professor Nason was simply doing his job. Limitation[102]We have already substantively considered the claimant’s ‘Nason Harassment Claims’ and we have found these not proven. In the circumstances, we do not need to consider whether the complaints were out of time; whether there was conduct extending over a period which is to be treated as done at the end of that period or whether it is just and equitable to extend time. Van Dyk Victimisation Claims Meeting of 17 March 2022 Failed to Listen[103]On 10 March 2022, the claimant requested a meeting with Professor van Dyk (HB/621). The online meeting was arranged for 17 March 2022. According to the claimant, the meeting lasted 1 hour 8 minutes. This is not disputed by Professor van Dyk. We accept and find from Professor van Dyk’s evidence and the diary invite that the meeting was only scheduled for 20 minutes (HB/623).[104]The claimant states that Professor van Dyk failed to listen to her during this meeting. We find the meeting lasted three times longer than scheduled. We find there is no indication from the length of the meeting that Professor van Dyk did not listen to the claimant.[105]Professor van Dyk’s evidence is that the claimant started crying when he attempted to explain the annual leave policy to her. We find that at this stage, the only matters that had been discussed were the claimant’s health and her need to take annual leave in January 2022 (HB/527). We find there is simply nothing to indicate that Professor van Dyk berated the claimant for requesting in-term annual leave. We find that his explanation of the annual leave policy was confined to the explanation that the policy required a good reason for granting in-term annual leave.[106]We find the claimant had not at this stage done a protected act. We find the discussion about in-term annual leave would reasonably require a discussion of the annual leave policy. We find the claimant took offense at the explanation of the annual leave policy and that this was before she had done any protected act. We find even on the claimant’s own account, she had not at this stage of the meeting (before she started crying) raised her concerns about her treatment by Professor Nason.[107]We have considered the claimant’s written closing submissions at paragraph 113. We find she did not put these points to Professor van Dyk in her cross examination. In any event, we find from considering all of the evidence, that there is nothing to indicate Professor van Dyk attempted to shift the discussion away from the issues she had with Professor Nason. Furthermore, we find from the claimant’s closing submissions that she appears to concede she did not do a protected act because she was prevented from raising issues related to discrimination, racial bias, and Professor Nason’s assumptions about her. Issue 3.1.1(a)[108]The claimant relies on the protected act of verbally informing Professor van Dyk at the 17 March 2022 meeting that she was concerned that Professor Nason was biased against her and had assumed she was a criminal when she informed him about her attendance at two Preliminary Hearings.[109]The claimant states at paragraph 32 of her Particulars of Claim that Professor van Dyk’s attitude was one of disapproval and that he was judgmental. The claimant states that he did not handle her case in a sensitive way and made assumptions at the outset about the facts of her case. We find the claimant has not specified how Professor van Dyk’s attitude was one of disapproval; in what way he was judgmental; in what way he did not handle her case in a sensitive way and in what way he had made assumptions at the outset about the facts of her case. We find from the claimant’s own witness statement that there is no further detail on this part of the meeting (WSB/32, paragraph 123). We find there is also no further detail in her grievance letter (HB/527). We conclude there is nothing within the evidence to support the claimant’s claim within the Particulars of Claim that Professor van Dyk’s attitude was one of disapproval and that he was judgmental; that he did not handle her case in a sensitive way and made assumptions at the outset about the facts of her case.[110]Professor van Dyk’s handwritten notes (HB/400) and his witness statement records that the claimant said during this meeting “You people are making assumptions”. Professor van Dyk in his oral evidence stated that he felt the claimant was worried about departmental gossip about her. We accept and find from Professor van Dyk’s evidence that this part of the note, “You people are making assumptions” related to the claimant’s concern of departmental gossip. We find this is not the claimant accusing Professor van Dyk of making assumptions about the facts of her case. We find it is clear from the note that the claimant herself did not voice any views that Professor van Dyk had already made assumptions about her. We place weight on the handwritten note as it is a contemporaneous note of the meeting.[111]We have carefully considered Professor van Dyk’s handwritten note of the meeting in relation to the claimant’s narrative of the various episodes involving Professor Nason. We acknowledge there is a reference within the note to “was I discriminated against?”. We find this is the claimant’s thoughts regarding Professor Nason’s questions in relation to the claimant attending two Preliminary Hearings. We find there is nothing within Professor van Dyk’s handwritten note, the claimant’s witness statement or her grievance letter to indicate she had mentioned the discrimination took place in the context of her nationality. We find the phrase “discrimination” was mentioned in the context of her being discriminated against because she needed to attend two Preliminary Hearings and the possibility that Professor Nason thought it may have related to a Crown Court matter.[112]We find that even after the claimant had explained her perceived treatment by Professor Nason, we can find nothing within the evidence to indicate the claimant had done a protected act because she had not specified what was the protected characteristics which underpinned her claim that Professor Nason had contravened the Equality Act 2010. We find that being accused or viewed as someone involved in Crown Court proceedings is not a protected characteristic. We find there is nothing within the claimant’s account of this meeting and Professor van Dyk’s account that the claimant had mentioned her Mexican nationality. Issue 3.1.1(b)[113]We find the claimant does not raise this in her witness statement nor in her ET1 claim form. We find from considering all of the documentary and oral evidence that there is simply nothing to indicate this was discussed during the 17 March 2022 meeting. We place weight on Professor van Dyk’s statement. We find he did not know that the claimant had applied for the I-X role. We find the claimant did not do a protected act because she did not say in this meeting that her job application had been rejected because of Professor Nason’s assumption about her Mexican nationality and that this was discrimination against her.[114]We place weight on the claimant’s grievance letter specifically at paragraph 58(i) (HB/528). We find the claimant’s own evidence does not indicate that she had brought up the subject of the I-X lecture role. Furthermore, we find the claimant agreed with Mr Isenberg in cross examination that she does not remember saying that her application was rejected because of her race/ Mexican nationality. We conclude the claimant did not do a protected act of verbally informing Professor van Dyk at the 17 March 2022 meeting that she was concerned that her job application had been rejected because of Professor Nason’s assumptions about her Mexican nationality and that this was discrimination against her. Issue 3.1.1.(c)[115]We find the claimant does not raise this in her witness statement nor in her ET1 claim form. We place weight on Professor van Dyk’s statement (WSB/95, paragraph 9.6.3): “ “(c) about the treatment of vulnerable groups in equivalent situations (e.g., how she should respond if students ask about hospital appointments or medical matters)” – I do not think Elena asked me how she should respond in such a situation. She did tell me that she had a student with certain worrying health issues, and that it never occurred to her to ask the student about the nature of their health issues.”[116]We find this discussion did not come up. We find Professor van Dyk’s account is consistent with the claimant’s account in the grievance (HB/528, paragraph 58(h)). We conclude the claimant did not do a protected act of verbally informing Professor van Dyk at the 17 March 2022 meeting about the treatment of vulnerable groups in equivalent situations e.g. how she should respond if students ask about hospital appointments or medical matters. Issue 3.1.1(d)[117]The claimant relies on the protected act of verbally informing Professor van Dyk at the 17 March 2022 meeting that she was concerned in light of what she had been asked by Professor Nason, about confidentiality, specifically, whether Professor Nason had shared information (and with whom) about Professor Nason’s views about her and her attendance at two Preliminary Hearings with others.[118]The claimant states Professor van Dyk made assumptions at the outset about the facts of her case. Professor van Dyk’s handwritten notes and his witness statement records that the claimant said during this meeting “You people are making assumptions”. We have already made our findings of fact regarding this issue, namely that Professor van Dyk felt the claimant was worried about departmental gossip about her. We accept his evidence that he had reassured the claimant that the information about her Preliminary Hearing was only known to Professor Nason and himself and had not been shared with anyone else within the department. We observed that Professor van Dyk did also reassure the claimant that he would check with Professor Nason whether Professor Nason had discussed it with anyone else within the department.[119]We rely on Professor van Dyk’s handwritten note where it records the claimant saying that it was no one’s fault (HB/400). We accept the note to be an accurate reflection of the discussion that took place. We find the claimant did not do a protected act because she did not specify the protected characteristic. Furthermore, we find it is clear from the note that the claimant herself did not voice any views that Professor van Dyk had already made assumptions about her.[120]Even if the claimant did mention a protected characteristic (which we do not accept), we find there is nothing within this part of the claimant’s account which would indicate this was a protected act. Taking the claimant’s case at its highest, we find her expression that it was no one’s fault strongly indicated at the time that the elements of section 27(2) of the Equality Act 2010 were not met.[121]In conclusion, we find the claimant did not do a protected act of verbally informing Professor van Dyk at the 17 March 2022 meeting that she was concerned in light of what she had been asked by Professor Nason, about confidentiality, specifically, whether Professor Nason had shared information (and with whom) about Professor Nason’s views about her and her attendance at two Preliminary Hearings with others. Issue 3.1.2 and Paragraph 32 Particulars of Claim[122]If we are wrong and the claimant had done a protected act, we have proceeded to determine whether the claimant suffered any detriment.[123]The claimant states that Professor van Dyk did not allow her to explain herself in relation to the conduct of Professor Nason and the other alleged detriments outlined at paragraph 32 of the Particulars of Claim. We rely on our findings of fact above. We have already found the claimant was able to talk at length during this meeting which lasted three times longer than originally scheduled.[124]We now deal with the other alleged detriments at paragraph 32 of the Particulars of Claim. The claimant states at paragraph 32 of her Particulars of Claim that Professor van Dyk’s attitude was one of disapproval and that he was judgmental. The claimant states that he did not handle her case in a sensitive way and made assumptions at the outset about the facts of her case.[125]We have already found the claimant has failed to specify in what way Professor van Dyk’s attitude was one of disapproval; in what way he was judgmental; in what way he did not handle her case in a sensitive way and in what way he had made assumptions at the outset about the facts of her case. We rely on our findings of facts above that there were no further detail in the claimant’s own witness statement and in her grievance letter. “I do not know who I am”[126]It is not disputed that during this meeting Professor van Dyk declared himself a gay man and that there was a discussion about pride in one’s identity in spite of discrimination. The claimant states that Professor van Dyk had implied that the claimant did not know who she was and that is why she was affected by his discussion. Having considered all of the evidence, we conclude the claimant has plainly misconstrued this discussion. We find the claimant was already upset by the explanation of the annual leave policy and that any other topic of discussion was viewed in a negative way. We do not accept the claimant suffered any detriment. Professor van Dyk explains in his witness statement that this was not meant to be an apology for racist or discriminatory comments and was meant to be positive (WSB/96, paragraph 9.8). We accept Professor van Dyk’s explanation that his discussion was not intended to cause the claimant distress.[127]We find from considering the notes of the meeting as a whole and the length of the meeting indicated Professor van Dyk’s willingness to listen. We find he was late for another meeting that day due to the meeting with the claimant taking longer than anticipated. We find that the claimant’s negative reaction was principally due to how Professor van Dyk responded to a discussion about in-term annual leave at the very start of the conversation, which we find the claimant had misconstrued. We find her negative reaction throughout the meeting to anything else he had said must be viewed in the context of her earlier reaction.[128]If we are wrong, we find the interruption by Professor van Dyk to explain the annual leave policy cannot be a detriment. Having considered the oral and written evidence of both the claimant and Professor van Dyk, we prefer Professor van Dyk’s account and recollection of this meeting because his recollection was more consistent with the contemporaneous notes of the meeting in contrast to the claimant’s evidence which had evolved over time. We accept and find that he did not disapprove of the claimant’s request for annual leave but simply indicated that the policy would require one to provide a good reason for the leave request. We have already found the claimant did not provide a good reason for her leave request apart from a vague reference to the need to attend a Preliminary Hearing.[129]Given our findings that the claimant had not done a protected act, we find Professor van Dyk did not subject the claimant to that detriment because of any protected act she had done. Post Meeting Written Representation dated 17 March 2022[130]Following her meeting with Professor van Dyk, the claimant provided him with a document setting out all the events that had happened since December 2021. We find the written representations were provided to Professor van Dyk at the end of his meeting with the claimant and therefore, there was no opportunity for him to read the document and to respond at the time. We find none of this is disputed by the claimant. We find Professor van Dyk did subsequently read the document and on 18 March 2022, had a meeting with Professor Nason. We find this is confirmed in Professor Nason’s email dated 20 March 2022 (HB/423). We find the claimant’s complaints were not dealt with at the time because the claimant was on sick leave from 15 March 2022 to 17 April 2022. Issue 3.2 Grievance[131]On 3 May 2022, the claimant lodged a formal grievance/ Resolution Request. The respondent admits the allegations concerning Professor Nason discriminating against the claimant constituted a protected act. Issue 3.2.2 and 3.2.3[132]The Claimant also relies on the following protected acts contained in her grievance/ Resolution Request dated 3 May 2022 and/or document emailed to Professor van Dyk on 17 March 2022: a) The allegation of unfair and/or less favourable treatment for being involved in Preliminary Hearings and legal proceedings. b) Allegations of potential breaches of the Harassment, Bullying and Victimisation Policy. c) Allegation of breaches of internal policies and guidelines (Imperial Expectations, Imperial Values, and Imperial’s Equality, Diversity and Inclusion Strategy) by Professor Nason and Professor van Dyk, related to the Equality Act. d) Allegations of potential unconscious bias, stereotyping, and racial profiling. e) Concerns regarding the protection that the College needs to guarantee to vulnerable groups (e.g., students), who may be subject to a similar unlawful behaviour to the one suffered by the Claimant, which was caused by Professor Nason and Professor van Dyk.[133]We find that all of the above points were raised in the claimant’s grievance (HB/530-532) and some of the acts were raised in the post meeting representations dated 17 March 2022 (HB/666).[134]The respondent concedes that the allegations in respect of Professor Nason constituted a protected act. The respondent does not concede any of the other allegations constituted a protected act.[135]We find that the above points have to be considered through the lens of what was pleaded in the ET1 claim form. We find the claimant in paragraph 33 to 34 of her Particulars of Claim (HB/47) was specifically referring to Professor van Dyk’s response to her grievance where he stated the claimant’s: “complaint regarding her meeting with me on 17 March 2022 is a complete misrepresentation of events. Her overall complaint is replete with unsubstantiated accusations and fanciful thinking. Her pretence that she was a victim of racism and discrimination are completely unfounded and appears to be designed to trigger.” (page 1638)[136]We find this document was Professor van Dyk’s response to the allegations against him. We find he was perfectly entitled to defend himself when faced with serious allegations such as those raised in the claimant’s grievance. We therefore find Professor van Dyk was entitled to express his genuine view to Professor Piggott. The claimant questioned the appropriateness of Professor van Dyk’s language namely that it was not appropriate to refer to “fanciful thinking” in relation to someone who had been off sick for anxiety and depression.[137]Having considered all of the evidence, we find there is no suggestion that such language was used to target the claimant in any way. Secondly, we find this is not a disability-related harassment claim. Thirdly, we accept Professor van Dyk’s explanation that he considered such language to be merely ‘descriptive’ and furthermore, he had specifically removed an earlier reference to ‘paranoia’, precisely because that might have had negative connotations.[138]We have given consideration to Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] IRLR 1029 at [95] (Respondent’s Authorities bundle, page 246).[139]We find Professor van Dyk found the claimant’s allegation against him, namely that he was willing to tolerate racist or discriminatory behaviour to be a highly offensive statement. We find that in terms of the legal test for victimisation, even if Professor van Dyk’s response could amount to some form of detriment, it was plainly not as a result of any protected act within the meaning of section 27(2) of the Equality Act 2010. We find those remarks to which he was responding were not making direct allegations of any contravention of the Equality Act 2010. Instead, we find they were alleging a general attitude of Professor van Dyk that he was willing to tolerate racism. Direct allegations of any contravention of the Equality Act 2010 would have potentially been a protected act, but alleging a general attitude of Professor van Dyk, we find, is not a protected act.[140]In the claimant’s witness statement, the claimant states that the draft prepared by Professor Nason was shared with Professor van Dyk (WSB/56, paragraph 223 and 224). The claimant suggests there was collusion between Professor Nason and Professor van Dyk when preparing their response to her grievance. We find the claimant did not cross examine Professor Nason or Professor van Dyk on this issue. If the claimant was genuinely concerned about collusion, we find the claimant should have raised this in her cross examination of both Professor Nason or Professor van Dyk. We find the claimant did cross examine Maria Langton on this issue. We find from Ms Langton’s evidence that she was unaware that Professor van Dyk had commented on Professor Nason’s response. We place no weight on the claimant’s assertion that there was collusion because these matters were not put to Professor Nason or Professor van Dyk.[141]We do not need to deal with whether anything said by Professor van Dyk in his two written responses to the claimant’s grievance amount to subjecting the claimant to a detriment in light of our findings of fact above. We find Professor van Dyk was perfectly entitled to defend himself when faced with serious allegations such as those raised in the claimant’s grievance. College Victimisation Claims Issue 4.1.2[142]We have considered whether the Claimant had raised in her grievance, that Professor Nason and Professor van Dyk had breached: a) internal College policies/procedures “which are related to the Equality Act” (being the Harassment, Bullying and Victimisation Policy) and b) “the College’s values; and the Equality, Diversity and Inclusion strategy”, and/or raise any other matters listed in 3.2.2(a)-(e).[143]We find she did. Issue 4.1.3[144]We have considered whether those contentions amount to protected acts within the meaning of section 27(2) of the Equality Act 2010. We find that these contentions do amount to protected acts within the meaning of section 27(2) of the Equality Act 2010 because the claimant did mention her Mexican nationality. Issue 4.2[145]We have considered whether the College subjected the Claimant to any of the detriments alleged at the Particulars of Claim at paragraph 38 in the handling of her grievance. The claimant states that the College failed to deal with her grievance promptly. The claimant states that Maudlyn Aaron deliberately delayed actioning her grievance. We deal with each of the allegation set out in the Particulars of Claim in turn. Paragraph 38(a) and (b) of the Particulars of Claim[146]The claimant states at paragraph 38(a) of her Particulars of Claim that the Resolution policy document states that the first meeting to investigate her grievance should have taken place within 10 days of receipt of her grievance and that the College deliberately delayed actioning her grievance for two and a half months.[147]The claimant states at paragraph 38(b) of her Particulars of Claim that even though the grievance policy and the Harassment, Bullying and Victimisation policy does not oblige the employee to resort to informal options, the College tried to avoid the investigation of her grievance by insisting on discussing an informal option which the claimant felt was inadequate to resolve the issues she had raised.[148]We have considered the timeline and whether there was delay in actioning the claimant’s grievance. We have also considered whether the College avoided the investigation of the claimant’s grievance by insisting on discussing an informal option.[149]The claimant submitted her grievance on 3 May 2022. On 9 May 2022, Ms Aaron emailed the claimant to request a meeting to discuss the possibility of a “Facilitated Conversation.” We find that the ER Team had discussed the claimant’s grievance and they considered that a facilitated conversation would be suitable (HB/693).[150]We have had regard to the Resolution Policy at section 9 and 10 (HB/263). We find there are two stages to the grievance process. We find from the policy document that the College expects staff to give proper consideration to the informal options which includes a facilitated conversation before going down the formal route. We find that this process is voluntary. We find that the timelines suggested are only meant to be guidelines.[151]We find there was no delay between 3 to 9 May 2022 because it was perfectly reasonable for Ms Aaron to enquire whether the claimant would like a facilitated conversation. We find there is nothing to indicate the College avoided the investigation of the claimant’s grievance by insisting on discussing an informal option. We find that there is an expectation that staff had given proper consideration to the informal options which includes a facilitated conversation before going down the formal route and it was perfectly reasonable for Ms Aaron to explore this with the claimant.[152]The claimant confirmed on 9 May 2022 that she was not interested in a facilitated conversation. She discussed her reasons and said she had endured “this situation” for five months and that she had no interest in the informal route (HB/721-722). We find the claimant did agree to a meeting with Ms Aaron. On 14 May 2022 (HB/720), Ms Aaron provides a few suggested dates for the meeting. The claimant expressed her concerns regarding the delay in the progress of her grievance in an email of the same date. She also confirmed again that she was not interested in a facilitated conversation and this time stated she did not wish to have a meeting. On 18 May 2022, the claimant again stated she did not wish to have a Facilitated Conversation.[153]We find there was no delay between 9 to 18 May 2022 because at this stage, we find it was still perfectly reasonable for Ms Aaron to attempt to arrange a meeting with the claimant to better understand her complaints. Secondly, as stated above, we find that pursuant to the policy, the College expected staff to give serious consideration to the Section 9 informal routes. Given the claimant did not appear to have explored any informal routes, we find it was perfectly reasonable for Ms Aaron to use the time between 9 to 18 May to explore this with the claimant.[154]The claimant states she had already lodged a formal grievance pursuant to Section 10 and that the College was not permitted to revert to Section 9. We find the claimant’s understanding of the policy to be misconceived. Firstly, it is clear that Section 9 should at least be considered before initiating a complaint under Section 10. Secondly, the policy does not require the College to rigidly adhere to the timetable set out within the policy. Furthermore, we find there is nothing to indicate within the Resolution Policy itself that the policy is contractual. We have had regard to the Core Terms and Conditions of Service, which expressly state that: “No College policy or procedure forms part of your terms and conditions of employment unless it is specifically stated to have contractual effect.” (HB/141). Accordingly, we find there is an element of flexibility within the policy.[155]When it became clear that the claimant did not wish to pursue the informal route, we find the College then sought to appoint an Investigating Officer. We find on 19 May 2022, the claimant complained about the delay (HB/747). We find Ms Aaron advised the claimant that she was attempting to secure an Investigating Officer. Paragraph 38(c) and (d) of the Particulars of Claim[156]We find the College appointed Professor Piggott on 20 May 2022. We find that four days after he was appointed, he held a scoping meeting with Ms Aaron on 24 May 2022. We find there was no delay between the time he was appointed and the date of the scoping meeting. We accept that during this meeting, Professor Piggott and Ms Aaron had decided that Ms Aaron would take responsibility for communicating with all of the persons involved in the grievance. The claimant in her cross examination of Professor Piggott sought to suggest this was inappropriate. We find there is nothing to suggest that it was inappropriate for Professor Piggott to delegate the responsibility for communication to Ms Aaron. We accept Professor Piggott’s evidence that he was fully aware of his responsibility as an Investigating Officer which was to investigate and make a decision on the grievance. We find that matters of communication with those involved could properly be delegated. We accept he had received the Investigating Officer’s training (HB/736).[157]We find that during this meeting, Professor Piggott and Ms Aaron also considered the timescales set out in section 10 and on that basis, set a meeting for the 9 June 2022 with the claimant. We find there is no dispute this happened.[158]We find there was a second scoping meeting on 31 May 2022. We accept Professor Piggott’s evidence that during this meeting, it became apparent to him that there was a lack of clarity as to who was in scope for the investigation i.e. who were the subject(s) of the claimant’s complaints. We find Professor Piggott’s view was supported by the fact the claimant’s grievance did name other individuals such as Professor Ioanna Papatsouma. Secondly, Professor Piggott was unclear as to whether Professor Nason and Professor van Dyk had been provided with a copy of the grievance. Thirdly, it was also unclear to him whether all of the allegations had to be investigated. On that basis, he made a decision that the meeting of 9 June 2022 should be rescheduled and enquiries made to ascertain the answers to his queries.[159]We find that on 6 June 2022, Ms Aaron emailed the claimant to raise the above issues and to cancel the meeting scheduled for 9 June 2022 and to set a timeline for the next steps (HB/761). The claimant states that Ms Aaron had attempted to blame her for the delays by alleging that she did not have a clear understanding of the claimant’s grievance because the claimant declined to have a meeting with her. We find there is nothing to suggest Ms Aaron had sought to lay the blame with the claimant. We find it is a matter of fact that had the meeting proposed by Ms Aaron on 14 May 2022 proceeded, it is likely that Ms Aaron would have understood the claimant’s complaints better. Had there been clarity at an earlier stage, we find that the meeting of 9 June 2022 would not have had to be cancelled because it is likely that Professor Nason and Professor van Dyk would have been provided with a copy of the grievance at an earlier stage.[160]Having regard to the timeline of events, although we find there was a delay, we find that any delay was legitimate because Professor Piggott had to be clear who were the subject(s) of the claimant’s complaints. Give the issues raised, we accept his evidence that he did not wish to send the grievance document to persons who were not within scope of the grievance.[161]On 7 June 2022, the claimant wrote to Ms Aaron and copied in Professor Piggott, raising concerns about the handling of her grievance to date (HB/761- 767). We accept Professor Piggott’s evidence that he was fully aware of the need to deal with the process in a timely manner. We accept he was trying to do just that and that he had no interest whatsoever in delaying the process.[162]We do not accept the claimant’s assertions that the College gave “baseless and appalling” reasons for cancelling the claimant’s grievance meeting. We find there were legitimate reasons for doing so. We find that on 10 June 2022, Ms Aaron wrote to the claimant to seek confirmation of the names of the individuals within the scope of the grievance; confirmation that she did not want to make any amendments to her grievance; and an acknowledgment that the grievance would be sent to any named individuals. On the final point, we observed that Ms Aaron raised this only to highlight to the claimant in the event that the claimant wanted to amend her grievance. Again, we find this was entirely legitimate as it was unclear to Ms Aaron or Professor Piggott whether the claimant was aware at the time of submitting her grievance that copies would be sent to the named individuals. We find Professor Piggott was fully aware of the claimant’s concerns as voiced in her grievance over the spread of information (HB/777-778). We find it was entirely reasonable for Professor Piggott to provide the claimant with one final opportunity to amend her grievance in light of her expressed concerns.[163]On 16 June 2022, the claimant went on sick leave to 30 June 2022. On 20 June 2022, the claimant’s grievance was sent to Professor van Dyk and Professor Nason for their responses. The claimant complains that according to the policy, both Professor van Dyk and Professor Nason should have been given five working days only to respond to her grievance when in reality they had been given eight working days. The claimant’s case is that the extension contributed to further delay in the handling of her grievance.[164]We note from the policy that the normal timeframe would be five working days (HB/264). We find in the email of 6 June 2022, Ms Aaron had indicated to the claimant that Professor van Dyk and Professor Nason would be given five working days to respond to the complaint. However, she also indicated that those individuals were likely to ask for an extension to the deadline. Ms Aaron told the claimant that if this did happen, then the claimant would be informed. (HB/761-762). We observed the table accompanying this email did state eight working days instead of five working days.[165]We find a later version of the timeline sent by Ms Aaron to the claimant on 15 June 2022 referred to the individuals being given eight working days (HB/931-932). We find the claimant did object to the individuals being offered three additional working days, so Ms Aaron agreed to give them five working days, saying “As I have not yet contacted the named individuals, I can ask that they return their comments within five working days, but please be prepared for their request for more time” (HB/930-931).[166]Having considered Professor Piggott’s statement, we accept that he was unaware as to the reason why Professor Nason and Professor Van Dyk were given eight working days instead of five. We accept Professor Piggott’s explanation that Ms Aaron may have pre-empted a request for an extension and therefore built into the timeline a three day extension. In any event, we find that on 23 June 2022, Professor Nason did request an extension and this was granted (HB/958). Overall Conclusion on Delay – Paragraph 38 of the Particulars of Claim[167]Having heard oral evidence and considered all of the documentary evidence, we find that any delay by the College was justified. We find the claimant in cross examination accepted that there was no collusion or a conspiracy between the various individuals involved in the handling of her grievance to deliberately delay the resolution of her complaints. We find the claimant accepted they may not have been very good at following the policy. We find the claimant agreed in cross examination that they were not intentionally punishing her. We conclude the College did not victimised the claimant by deliberately delaying the resolution of her complaints. We find there was no detriment. Paragraph 38(e) of the Particulars of Claim[168]On 8 June 2022, the claimant sent an email to Ann Kelly, Ms Aaron’s line manager raising 3 issues: a) violation of the grievance policy; b) Concerns regarding the objectivity, impartiality and training of the people handling her grievance; c) concerns of victimisation.[169]The claimant stated that Ms Kelly did not provide a satisfactory explanation. We find the reason the claimant had emailed Ms Kelly was because her meeting on 9 June 2022 had been cancelled (HB/770-773). We find from Ms Kelly’s evidence that she was unaware of the reason for the cancellation of the claimant’s meeting with Professor Piggott on 9 June 2022. We find from the correspondence within the bundle that Ms Kelly emailed Maria Langton to enquire of the reason for the cancellation. She was then referred to Ms Aaron email (HB/769- 774). We find Ms Kelly then asked Ms Aaron to draft a response for her (HB/775).[170]On 10 June 2022, Ms Kelly sent a holding response to the claimant (HB/849). On 14 June 2022, Ms Kelly responds to the claimant dealing with the claimant’s complaints about the delay in the handling of her grievance (HB/ 848). We find Ms Kelly has explained each of the period of delay and the reasons why. The claimant stated in her evidence that Ms Kelly should have responded line by line to her email of 8 June 2022. Having considered the claimant’s email, we find that it would not have been appropriate for Ms Kelly to comment on the ongoing investigation by Professor Piggott. We find the email from the claimant contained many further allegations and it would have been Professor Piggott’s role to identify whether those should be investigated. We find it was not Ms Kelly’s role to investigate those allegations and to respond to them in her email. We find Ms Kelly’s response to be a satisfactory response. We find there was no detriment.[171]On 16 June 2022, the claimant responded to Ms Kelly stating she was unhappy with the response (HB/919). Following this, there was a discussion between members of the ER team. We find from Ms Kelly’s correspondence with Ms Aaron that she was of the view that further delay was not appropriate even though Ms Aaron had some concerns about claimant’s mental health which were explored (HB/918).[172]We find that Ms Aaron did sensitively raise with the ER team the question of whether the claimant had “really taken on board the impact her complaint will have on her being and future work position”. We find the context of that observation is clear, namely it is not a suggestion that anyone would wish to ‘punish’ the claimant for raising her complaints. We find Ms Aaron’s concern was principally about the claimant’s wellbeing. We find this was most likely based on her experience of how such matters typically play out. We find Ms Aaron was particularly concerned in light of the claimant’s delicate mental health at the time, and so was “just concerned how she will respond once they have receive[d] her complaint”.[173]We find Ms Kelly described the point being made by Ms Aaron as the fact that once it is written, it cannot be unwritten. We agree with Mr Isenberg that Ms Aaron’s observations were, in fact, somewhat prophetic because she realised that those accused by the claimant would likely defend their conduct, which might be difficult for the claimant to read in her current state. We find that is precisely what happened in respect of Professor van Dyk’s grievance response which led to the expansion of the claimant’s grievance to incorporate his written response as a victimisation complaint.[174]While it appears to us that what might have been on Ms Aaron’s mind was the risk that relationships could breakdown and the claimant might resign asserting constructive dismissal, the underlying concern was accurate: namely that, as drafted, and through the formal process, there was a risk that the temperature could rise, which could have a detrimental impact on the claimant through no fault of anyone. We find there was no suggestion that the claimant should change or withdraw her grievance in any way.[175]We conclude there was a concerted effort at this stage, driven by Ms Kelly, to ensure there would be no further delay in the handling of the grievance. Furthermore, we have already found the email from the claimant contained many further allegations and that it was not Ms Kelly’s role to respond to those. We conclude from our findings of facts that Ms Kelly’s response was a satisfactory response. We find there was no detriment. Paragraph 38(f) of the Particulars of Claim[176]The claimant states that section 10.1.3 of the Resolution policy was not implemented. The claimant states that the College should have informed her who she should approach in case she wanted to discuss a work-related matter. The claimant states the College failed to ensure she felt safe working whilst the investigation was carried out.[177]Paragraph 10.1.3 of the policy states: “Following advice from the ER representative and in consultation with the Investigating Officer, and an appropriate representative from Faculty/Support Services and HR Strategic support, consideration will be given as to whether any specific action should be taken in relation to contact between parties. In some cases, a recommendation may be made for time off or working from home or another location, where possible for either, or both, parties for a temporary period while the matter is under investigation. Any change in working location or time off will be without prejudice to the eventual outcome of the investigation and will be without salary detriment to the individual(s)”[178]We have also considered the written and oral evidence of Maria Langton. Having considered paragraph 10.1.3 of the policy, we accept Ms Langton’s evidence that this part of the policy relates to stage one of the formal resolution. We find that when the claimant submitted her grievance, Ms Aaron was still liaising with the claimant as to the possibility of having a Facilitated Conversation and therefore, paragraph 10.1.3 of the policy did not apply.[179]We have considered the claimant’s complaint that there should have been a change in line management. Having considered the evidence of Ms Langton and paragraph 10.1.3 of the policy, we find that the policy does not specifically mention a change in line management. We find the adjustment mentioned in paragraph 10.1.3 relates to “contact between parties” and provides the examples of time off or a change in working location. We accept and find from Ms Langton’s evidence that a change in line management is sometimes also considered. However, we accept that the College does not always change a complainant’s line manager just because they have made a complaint and whether they do would depends on the circumstances.[180]We accept and find from Ms Langton’s evidence that the ER team do consider a change in line management in serious cases of sexual harassment or bullying, where it is not considered reasonable or appropriate to expect the parties to continue to work together whilst a formal process is ongoing. We find the factual matrix of the claimant’s complaint did not raise such issues.[181]We accept the ER team would also consider a change in line management if the complainant expressly asked for a change of line manager. We accept and find that a change in line manager is considered to be a more extreme step and lesser measures would generally be considered first. In this case, we find the claimant herself had not requested a change in line management. We find the claimant cannot expect the ER team to know this was her wish if she did not verbalise or expressly state this was what she wanted. Furthermore, we find from the correspondence that the claimant had been sufficiently comfortable with Professor Nason at the time she raised her formal grievance that she undertook her return to work meeting with him and Ms Honey that same day.[182]Additionally, we accept Ms Langton’s written evidence that this matter could only be discussed once Professor Nason was aware of the complaint (WSB/108, paragraph 32). We find he was not told of the complaint until 20 June 2022. We find that at this point, the issue of a change in line management was duly considered (HB/1647 and 1655). However, at the time in question, the claimant was on sickness absence. We find that when the claimant returned to work following her sick leave, she was seen by Occupational Health (HB/1280). When Occupational Health recommended a change in line management be considered in early September, we find from Professor Nason’s evidence that the recommendation was duly actioned (WSB/90, paragraph 64).[183]In conclusion, we find that paragraph 10.1.3 was initially not implemented because there was still the possibility of having a Facilitated Conversation. Secondly, the claimant herself felt sufficiently comfortable with Professor Nason because she undertook her return to work meeting with him and Ms Honey. Thirdly, the claimant did not request a change in line management and it is not reasonable for the claimant to expect the respondents to know this was what she required. Fourthly, the claimant’s complaint did not raise serious issues of sexual harassment or bullying. Fifthly, the claimant was on sick leave throughout most of this period and we find Professor Nason’s role was mainly confined to managing the claimant’s sickness absence. We find the College did not subject the claimant to a detriment.[184]Even if we are wrong and the respondent had failed to implement paragraph 10.1.3 of the Resolution policy, we find there is simply nothing to indicate that any failure to implement paragraph 10.1.3 of the Resolution policy was because the claimant had done a protected act. Paragraph 38(g) of the Particulars of Claim[185]On 3 May 2022, the claimant submitted her grievance. It is not disputed the claimant did ask for support in accessing Occupational Health (“OH”) and Confidential Care (HB/512). The claimant complains at paragraph 38(g) of her Particulars of Claim that the only support she received was a link to Confidential Care and that she received no other support. The claimant states that the College misleads their employees in making them believe they will have support whilst facing such a difficult process or alternatively, that if the College does provide such support, that they deliberately did not provide it to the claimant. Policy Advice[186]We find there is simply nothing to indicate the claimant required ‘policy advice’. We find the claimant has not stated in what way such advice was lacking. In any event, we find from her interactions with ER that the claimant was plainly very familiar with the Resolution Policy. Occupational Health[187]We find that on 3 May 2022, the claimant also attended a return to work meeting with Professor Nason and Laura Honey (HB/705). Following that meeting, on 5 May 2022, Ms Honey sent the claimant an email which we accept was a follow up of the discussion they had during the meeting on 3 May 2022 (HB/712).[188]We accept a referral to OH was discussed during the meeting (HB/706). We find Ms Honey emphasised in her follow up email that OH were completely independent and would not have access to the claimant’s HR files or sick notes and would only work with the information provided by the claimant. We find she recommended the claimant took the management referral route (HB/712).[189]We find the claimant replied on 10 May 2022 to Ms Honey stating that “I will try to get a self-referral to the Occupational Health team” (HB/831). We find the claimant thanked Ms Honey on 15 June 2022 for reminding her about the OH. The claimant stated “I should have tried to approach them last week, but with everything happening I just forgot that this was still an option” (HB/829). We find the claimant opted at that point to take up Ms Honey’s offer of a management referral, which Ms Honey drafted for her (HB/832).[190]The claimant’s evidence on this issue was that she did not pursue the OH referral offer with Ms Honey following the return to work meeting on 3 May 2022 because she had flagged this on her formal resolution request form. However, we find the claimant gave no satisfactory explanation as to why she saw these two OH routes as mutually exclusive. Furthermore, we find the claimant has not explained why she did not wish to use the route offered by Ms Honey in favour of going via the ER team, especially when she and Ms Honey were already in discussions about OH in early May. Additionally, we find the claimant does not explain why she did not flag this with Ms Honey at the time.[191]We find the claimant cannot legitimately complain that the OH referral was channelled via one particular HR route as opposed to another. Even if she could make such a complaint (which we do not accept), we find the claimant does not suggest that the OH outcome or process would have been any different had it been facilitated by the ER team. Having considered all of the evidence, we find the College did everything to offer the claimant OH support at various points, and it is the claimant who failed to take up the offer of an OH referral. We find the College did not subject the claimant to a detriment. Confidential Care[192]We find from the claimant’s oral evidence that she accepted the two forms of support referenced in the email chain dated 15 July 2022 between Ms Langton and Ms Aaron (HB/1675) were precisely the two forms of support she had requested. We find the ER team did provide the claimant with information relating to the Confidential Care service which the claimant in fact thanked them on 16 May 2022 (HB/723). Furthermore, on 24 May 2022, we find Ms Aaron again reminded the claimant of the Confidential Care service (HB/754) and on 6 June 2022 (HB/759). We find the claimant was plainly aware of the Confidential Care service as the claimant even directly quoted one of these references to Confidential Care signposting in her email to Ms Kelly of 8 June (HB/773).[193]We find it is plainly misleading for the claimant to state in her Particulars of Claim that the only support she received was a “link to Confidential Care” and that she received no other support. We find the evidence we have considered and analysed above does not support her assertion. We find that there is no detriment. Paragraph 38(h) of the Particulars of Claim[194]The claimant complains that she had requested a Spanish translator for the grievance meeting but the College did not provide it. The claimant states that the College was reluctant to provide one and made the claimant choose between having a meeting without a translator or delaying the meeting so she could have a translator.[195]We find there is simply nothing to indicate the College was reluctant to provide a translator. We find it is clear from Ms Aaron’s email dated 14 July 2022 that the original translator that had been booked was unable to attend due to sickness absence (HB/1081). We find Ms Aaron had requested a replacement translator but wanted to inform the claimant that she could not guarantee that one could be secured in time for the meeting. We find the purpose of Ms Aaron’s email was to ask the claimant’s preferences if one could not be arranged. We find the tone of the email and the options presented was entirely appropriate in light of the claimant’s previous complaints of delays. In contrast, we find it is the tone of the claimant’s response which was inappropriate - “since the College is forcing me to choose between one of the following disadvantageous options” (HB/1089).[196]We find the claimant did concede in cross examination that Ms Aaron was in fact being mindful of the claimant’s own desire that there would be no further delays and so engaged the claimant’s preferences as between having the meeting as soon as possible versus waiting for translation services to be arranged. Furthermore, we find it was open to the claimant to respond to Ms Aaron to enquire how long any delay would likely be if she did opt to ensure a translator could be present, however, the claimant chose not to do that. We find the College did not subject the claimant to a detriment. Contract Claims[197]We find the claimant did concede under cross-examination that the Resolution Policy was not incorporated into her contract of employment. We find from the claimant’s Contract of Employment that it is explicitly clear that the Policies and Procedures do not form part of the claimant’s contractual terms however she is required to abide by them (HB/299). We have also had regard to the Core Terms and Conditions of Service, which expressly state that: “No College policy or procedure forms part of your terms and conditions of employment unless it is specifically stated to have contractual effect.” (HB/141). As for the Resolution Policy itself, we find that it does not specifically (or otherwise) state that it is to have contractual effect (HB/260). We find there is nothing by way of documentary evidence to indicate that the Resolution Policy was incorporated into the claimant’s contract of employment. For this reason, we find the claimant’s contract claims fail. Deposit Order[198]Having made our findings of fact and associated conclusions above, we return to the reasons set out in the Deposit Order in respect of allegation 1(b) and 1(d) to assess whether the reasons reached by the Tribunal is for substantially the reasons given in the Deposit Order or otherwise (rule 39(5) of the Employment Tribunal Rules of Procedure). We conclude that our findings on allegation 1(b) and 1(d) against the claimant were for substantially the reasons given in the Deposit Order.