Ms Johnson v The Secretary of State for Levelling Up, Housing and Communities: 2207963/2023

EMPLOYMENT TRIBUNALS

Case No 2207963/2023

Between

Ms JohnsonClaimant

The Secretary of State for Levelling Up, Housing and CommunitiesRespondent

Before

Employment Judge E Burns

Represented herself for claimant

Patrick Keith (instructed by Counsel) for respondent

Date 23 April 2024

JUDGMENT

The unanimous decision of the Tribunal is as follows:(1) The complaints of direct age discrimination are not well-founded and are dismissed.

(2) The complaint of direct race discrimination relating to the meeting where her invitation was cancelled and she was not invited to the rescheduled meeting is well founded and succeeds. This complaint was not presented within the applicable time limit, but it is just and equitable to extend the time limit.

(3) The remaining complaints of direct race discrimination are not well- founded and are dismissed.

(4) The complaint of unfair constructive dismissal is not well founded and is dismissed.

REASONS

[1]This was a claim arising out of the Claimant’s employment by The Secretary of State for Levelling Up, Housing and Communities. A Transfer of Functions Order (TFO) (SI 2024/991) was made by His Majesty in Council on 2 October 2024 and laid before Parliament on 9 October 2024. The TFO transferred all functions, property, rights and liabilities of the “Secretary of State for Levelling-Up, Housing and Communities” to the with effect from 30 October 2024. As these written reasons are being promulgated after 30 October 2024, we have referred to the Respondent as the Secretary of State for Housing, Communities and Local Government

[2]The Claimant resigned from her employment on 30 January 2023. The Claimant is a black woman who describes her race as Black British Caribbean. At the relevant times for the purposes of the claim she was 37 and 38 years old.

[3]Her claim was for direct race discrimination based on her own race, direct age discrimination based on her perceived age, which she said was younger than her actual age and unfair constructive dismissal.

[4]The issues we decided are set out in an appendix, with slightly adapted numbering from the list used at the hearing. We have also separated out the allegation of the meetings as there were two different types of meeting.

[5]The Tribunal dismissed all of the Claimant’s complaints except one (16.3), namely the Claimant’s complaint of direct race discrimination arising out of the fact that she had been invited to a meeting, which turned was scheduled for 14 October 2022, but was subsequently uninvited and so excluded from the meeting which took place without her.

[6]In summary, the reason the Tribunal reached this decision was because we found that the Claimant had established, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent had committed an act of unlawful race discrimination. This shifted the burden of proof onto the Respondent in relation to all of the Claimant’s complaints of direct race

[7]The Respondent adduced cogent evidence in respect of all of the other complaints of race discrimination that meant we were satisfied that the reason for its conduct towards the Claimant was not because of her race. However, it did not do this in relation to why the Claimant had been invited to the meeting, and then uninvited and so the Tribunal upheld this single allegation.

THE HEARING

[8]The issues had been discussed at a case management hearing held on 22 August 2023. However there had been confusing subsequent correspondence between the parties about the issues in advance of the hearing which the Tribunal sought to resolve at the start of the hearing.

[9]The issue we were required to address was the Respondent’s desire to know who the Claimant was alleging was responsible for discriminating against her in relation to the meetings allegation. This was in order for it to be able to identify which witnesses it should call.

[10]The Claimant had said in the relevant correspondence that she believed in relation to the series of meetings (referred to the attached list of issues as number 16.2), that all of the four attendees had decided to meet without her. In relation to the meeting to which she was invited then uninvited, she said she did not know who the decision maker was. She did not think the employee who had sent the meeting invites was responsible for making the decision to uninvite her, but that he had been asked to do this by someone. The Claimant thought this may have been her line manager, Ms Standring or possibly even Ms Stewart or Mr Kennedy.

[11]The Respondent sought to argue, at the beginning of the hearing, that the Claimant could not argue that Mr Kennedy and Ms Standring were the decision makers for the reasons set out in their email to her dated 4 March 2024 (966). Following discussion, we settled on the position, with the agreement of the parties, that Mr Kennedy would be referenced on the list of issues, but not Ms Standring. The reason for including Mr Kennedy was that he was previously referred to in the list of issues, albeit not by name. The Respondent was content to proceed with the hearing without calling witness evidence from him, although we did say that we would allow a late witness statement from him and/or consider a postponement. The Claimant was content to withdraw the reference to Ms Standring.

[12]The Claimant gave evidence. For the Respondent we heard evidence from:• Anisha Ahuja, Head of Business Operations and the Claimant’s line manager

• Gillian Stewart, Chief Technology Officer (CTO) between June 2020 and October 2022, Chief Digital Officer from October 2022 onwards

[13]There was an hearing bundle of 1031 pages. We read the evidence in the bundle to which we were referred.

[14]We explained our reasons for various case management decisions carefully as we went along and also our commitment to ensuring that the Claimant was not legally disadvantaged because she was a litigant in person. We regularly explained the process, visited the issues and explained the law when discussing the relevance of the evidence.

[15]In addition to making closing oral submissions, the parties prepared written submissions. We thank them for those submissions.

[16]We gave an oral judgment and subsequently received a request for written reasons from the Respondent. Employment Judge E Burns apologises for the length of time that it has taken to prepare these reasons.

FINDINGS OF FACT

[17]Having considered all the evidence, we find the following facts on a balance of probabilities. Some of our findings on disputed factual issues are dealt with in our conclusions.

[18]The parties will note that not all the matters that they told us about are recorded in our findings of fact. That is because we have limited them to points that are relevant to the legal issues.

[19]We have made our findings based on the witness evidence at the hearing and the contemporaneous documents contained in the bundle. As well as pursuing a claim to the Tribunal, the Claimant had submitted a grievance to the Respondent. The documents generated as a result of the grievance investigation process, and subsequently grievance appeal process, were contained in the bundle. These included interviews with the Claimant, Ms Ahuja and Ms Stewart and other individuals employed by the Respondent who did not attend the Tribunal hearing to give evidence.

Background

[20]The Respondent is a government department. It has a grading structure which starts with EO, then moves up to HEO, SEO, Grade 7, Grade 6, Deputy Director and Director and beyond.

[21]The Claimant commenced employment with the Respondent on 1 October 2018. At this time she was an HR Business Manager at an SEO grade within the People, Places and Change Directorate. In this role she had reason to interact with Frances Standring, HR Pay and Reward Lead and Gavin Kennedy, who joined as a deputy director while she was there. Mr Kennedy briefly mentored the Claimant, assisting her with her career development. It is relevant to note that both Ms Standring and Mr Kennedy are white.

[22]The Claimant looks younger than her age. She told us that when she first met Ms Standring she got the impression that Ms Stranding thought she was younger than she was. This was because she had spoken to the Claimant about her teenage daughters. The Claimant felt Ms Standring had assumed the Claimant was closer in age to them than to her.

[23]In late 2019, the Claimant applied for and was offered a temporary role in the Respondent’s Digital Directorate to provide maternity cover. The role was a Grade 7 role and was offered to the Claimant with a temporary responsibility allowance (TRA).

[24]Offering TRAs is a common practice across government departments.

[25]The Respondent has a policy on the use of TRAs which says that while on a TRA an employee remains in their substantive grade, but receives an uplift in their remuneration.

[26]The policy also deals with when TRAs are permitted. There are restrictions on the use of TRAs to cover posts where there is a permanent need. This is because of the requirement that all civil service posts should be subject to fair and open competition. TRAs are therefore meant to be used in limited circumstances and for limited time durations. They are also meant to be kept under regular review. If a temporary post is converted into a permanent post, there is no guarantee that the incumbent will be offered the permanent position. They have to apply for it in an open competition.

[27]The Claimant’s new role was in the Digital Corporate Office, which at that time was made up of three people: the Head of the Corporate Office, Ms Anisha Ahuja, Lindsey Dodd (who was taking maternity leave) and a Finance Manager. The Claimant reported to Ms Ahuja, whose title was Head of Business Operations. Ms Ahuja was a Grade 6. Ms Ahuja reported to Paul Maltby, Chief Digital Officer, who was a Director.

[28]It is also relevant to note that Ms Ahuja describes her race as British Indian. She was the Diversity and Inclusion lead in the Digital Directorate.

[29]The Digital Directorate was made up of around 120 employees. We were not provided with precise details of the ethnic make-up of the directorate because none of the Respondent’s witnesses were able to tell us this information. Ms Ahuja told us that it was roughly 30% non-white and 70% white. She also confirmed that, later when the Claimant was working at a Grade 6, she was the most senior black (i.e. of African/Caribbean heritage) person in the directorate. We were told that the senior management layer, including Mr Maltby, was largely, but not exclusively white.

[30]Another relevant background matter is the government’s approach to professionals working within it. There is a recognition that various categories of professionals are employed across its various departments. Work is undertaken to ensure that it is aware of the numbers of such professionals, as they are not necessarily all employed in the same departments. The government is also keen to ensure it is meeting the needs of such professionals by way of learning and development. One of the professional areas is Digital Data and Technology, commonly referred to using the acronym DDaT.

[31]Mr Maltby held the role of Head of the Digital Data and Technology profession in the Digital directorate. At some point during the period the Claimant was providing temporary cover, she became involved in work involving the DDaT professionals following the departure of a contractor. She considered herself, accurately in our judgment, as taking a leading role for DDaT professionals and took responsibility for example, for completing the regular counting exercises of them within the Directorate. She also managed the budget for Learning and Development activities for DDaT professionals subject to approval from Mr Maltby.

[32]In early 2020, three Grade 7 Senior Business Roles were created in the Digital Directorate. In March 2020, the Claimant applied for and was offered one of these roles and the opportunity to remain in the Digital Corporate office. Ms Dodd, who was still on maternity leave, was also promoted to one of the Grade 7 roles. They both continued to report to Ms Ahuja.

[33]On Ms Dodd’s return from maternity leave in September 2020, responsibilities in the team were shared between her and the Claimant. These had been undertaken by the Claimant and Ms Ahuja while Ms Dodd had been absent. It is relevant to note that Ms Dodd had responsibility for recruitment, while the Claimant continued to be involved with the DDaT professions. She also became the lead for the directorate’s Learning and Development Plan and administration. They also each took responsibility for line managing one member of staff. In Ms Dodd’s case this was the Digital Finance Manager in the team. In the Claimant’s case, this was the Director’s PA. Line Management of the PA

[34]The Director’s previous PA had resigned to take up a promotion in August 2020. The Claimant was responsible for recruiting his replacement. It therefore made sense for her to line manage the replacement.

[35]On 29 June 2020, Gill Stewart, had joined the Respondent in the role of Chief Technology Officer in the Digital Directorate at a Deputy Director grade. She reported to Mr Maltby. It is relevant to note that that she is white.

[36]The new PA was joined in November 2020. She was employed as the PA to the Director and to provide diary management to Ms Stewart. She was a white women thought to be in her sixties.

[37]The PA’s employment was subject to a probationary period. The Respondent’s probationary period policy and procedure require a review to be undertaken at one month, three months and five months before probation is confirmed. There is a specific requirement that if probation is to be extended at five months, a warning must have been given at the three month review that the employee is not meeting expectations.

[38]Reviews were therefore required to be undertaken for the PA in December 2020, February 2021 and April 2021. In order to conduct the reviews with the PA, the Claimant sought feedback from Mr Maltby and Ms Stewart.

[39]The recollections of the parties as to the reviews undertaken, the feedback sought and the discussions between them about the PA differed in their evidence before the Tribunal.

[40]The Claimant was convinced that as well as seeking feedback from Ms Stewart for the month one and month five reviews, she also sought feedback from her at the month three stage. In addition, she specifically recalled that Ms Stewart had shared her feedback for the three month review with the PA which the Claimant had felt was inappropriate. The Claimant told us that she emailed Ms Stewart about this.

[41]The bundle contained the written feedback that Ms Stewart had provided on 7 December 2020 and 12 April 2021. Ms Stewart accepted that it was likely that the Claimant had also sought feedback at the three month stage, but told us she had not been able to find any written record of this and that she had kept all her emails. Ms Stewart said she could not recall sharing any feedback with the PA ahead of the month 3 review, but this would be something that she would do. We noted that following receipt of the 12 April 2021 feedback, the Claimant questioned something Ms Stewart had said, and we wondered if this exchange was what the Claimant was remembering. We did not find it necessary to resolve this factual dispute.

[42]The bundle also contained the written feedback that Mr Maltby had provided on 31 March 2021.

[43]The feedback from Ms Stewart was almost exclusively positive. The feedback from Ms Maltby was more balanced and he identified some areas of development for the PA. However, he was also mainly positive and he wanted the Claimant to convey that he felt he would be in a mess without the PA.

[44]The Claimant told us that she found her line management relationship with the PA somewhat strained. She considered the PA was very set in her ways. The Claimant felt that the PA was refusing to take direction from her. The Claimant believed this was because she was younger than the PA and that it might also be connected her race. The Claimant felt that the PA got on better with white colleagues compared to non-white colleagues.

[45]At the three month stage, the Claimant considered in her own mind, whether or not to extend the PA’s probation. This was because it was important to set this in train at the three month stage if it was to be done. The Claimant did not speak to Mr Maltby or Ms Stewart about this option directly. She did, however, discuss it with her line manage, Ms Ahuja, but the Claimant did not share her concerns that the PA’s behaviour was influenced by race.

[46]There was a dispute between the Claimant had Ms Ahuja as to the precise nature of the discussion. The Claimant’s evidence was that Ms Ahuja was initially in agreement with her that she should extend the PA’s probationary period, but wanted to discuss it with Ms Stewart and Mr Maltby first. She came back to her, however, to say that they did not agree to extending the PA’s probation, but instead wanted the Claimant to provide her with more support in meeting her objectives.

[47]Ms Ahuja’s evidence was that the Claimant only raised the possibility of extending the PA’s probationary period in passing during a conversation about something else. In response, she told the Claimant it was her (the Claimant’s) decision whether or not to extend the PA’s probationary period, but advised her to speak to Mr Maltby and Ms Stewart about it first. She also told us that she told the Claimant that it would be difficult to justify extending the PA’s probation unless there was clear evidence of poor performance, attendance or conduct.

[48]Ms Stewart told us that she had no recollection of Ms Ahuja speaking to her about the possibility of extending the PA’s probationary period.

[49]These discussions were not documented discussions and so the ability of any of the participants to recollect precisely what was said is inevitably problematic. In our judgment, even if the Claimant is correct and Ms Ahuja offered to and did speak to Mr Maltby and Ms Stewart about the PA for her, this was in order to provide her with information to make her own decision about the PA’s probationary period. The Claimant’s own evidence was that she was only thinking about the possibility of extending the probationary period rather than having decided it was required.

[50]We find that the Claimant was not instructed not to extend the PA’s probationary period.

[51]The Claimant confirmed the PA as passing her probation at the five month review. The feedback the Claimant wanted to give the PA at this stage was not exclusively positive. She had identified some areas of development for the PA and tried to convey this when they had the final probationary review meeting The Claimant felt that the PA was not prepared to listen to her about this and so she adjourned the final probationary review meeting. She asked Ms Ahuja to join her to complete the meeting.

[52]The Claimant says that the PA continued to be disrespectful of her at the reconvened meeting and that she was also disrespectful of Ms Ahuja. Ms Ahuja denied this. Ms Ahuja told us that it was evident that the Claimant and the PA did not get on. She could see the tension in their bodies during the meeting. She considered this was due to clash of personalities and just one of those situations that arises in the workplace.

[53]Following the PA’s probation being confirmed, Ms Ahuja asked Ms Stewart if she would take over line management of the PA. Ms Ahuja explained to us that this was in part due to the tension between the Claimant and the PA. The main reason for the change, however, was because she felt it made more sense for Ms Stewart to manage the PA as the PA was working in part for her.

[54]Subsequently, the PA stopped working for Mr Maltby. This was due to her becoming overwhelmed with the volume of work involved when Mr Maltby took on a new responsibility. The PA took some time off work unwell. Her return was to reduced duties. Rather than work for both Mr Maltby and Ms Stewart, the PA only worked for Ms Stewart from April 2020 onwards. Ms Stewart continued to find the PA’s work for her to be of an acceptable standard.

[55]It is relevant to note that at around the time the PA returned from sickness absence, the Claimant emailed Ms Stewart to ask her if the PA could take over responsibility for a particular responsibility that her predecessor in the role had done, albeit that in the period between his departure and the PA’s arrival the work was being covered by Grade 7s.

[56]Ms Stewart failed to reply to the Claimant’s email. She told us that the reason for this was because of the sensitivity of discussing the PA’s health with the Claimant. Instead of replying to the Claimant in an email which the PA would have been able to access, she spoke to Ms Ahuja to explain the position to her. We accept this explanation. Projects and TRA

[57]In November 2021 the Claimant was moved onto a temporary responsibility allowance (TRA) at Grade 6.

[58]The main reason for the TRA was because the Claimant was going to be working on a particular project. The Local Government Digital and Cyber team had had a business case approved to roll out a 3 year programme to support local councils become more digital and increase their cyber defences in October 2021. The Claimant’s Grade 6 role was to support the team in achieving the 3-year plan by setting up a Programme Management Office (PMO) function for them. The Claimant continued in her role as a Senior Business Manager within the Corporate Team at the same time as working on this project. The Claimant was also asked to get involved in another project. This project was the implementation in the directorate of the new Capability and Pay Framework for employees undertaking DDaT roles. This had been developed by the Cabinet Office because the Civil Service was struggling to recruit and retain certain types of DDaT professionals across all areas of government. As a result there was a heavy reliance on third party contractors. The rationale for the new DDaT Pay and Capability Framework was to enable members in the DDaT profession to be paid extra depending on their capabilities, and as a result aimed to improve retention and recruitment of staff in these roles with less reliance on contractors. The DDaT professionals had been split into three groups, with Group 1 being the hardest to recruit and retain. They were therefore the priority group for implementation.

[59]Given her DDaT profession responsibilities, the Claimant had been invited to participate in various planning meetings where a business case was created to implement the framework in the Directorate and therefore it was sensible for her to become involved in this project. Ms Standring and Ms Stewart had also been involved, Ms Standring in her capacity as Head of Pay and Reward, given that the project concerned pay and Ms Stewart because of her role as CTO.

[60]Initially the Claimant’s work on the Local Government Digital project had gone well, but for reasons that are not relevant for us to record, the project ground to a halt in around April 2022. The Claimant’s focus therefore changed to became the implementation of the DDaT Pay and Capability Framework for Group 1 DDaT professionals.

[61]A DDaT Project Team was created made up of Ms Ahuja, the Claimant, a member of the pay and reward team and a Business Analyst from a third party contractor. It was also envisaged Ms Dodd would become involved, when required, as implementing the DDaT Pay and Capability Framework would have an impact on recruitment to DDaT roles. There were some significant initial steps to be undertaken before reaching that point, however which included capturing and assessing information about the existing capabilities of DDaT professionals within the directorate. The initial group to be assessed were the group 1 DDaT professionals. The assessments were to be undertaken by a third party over the summer.

[62]The Claimant believed that because she had been given a Grade 6 TRA that her hierarchical status in the DDaT project team was equal to that of Ms Ahuja, but we find that this was not the case. Ms Ahuja, was responsible for the overall strategy and work of the project team and was the de facto project lead.

[63]As is common with project work, there are periods of intense activity with periods that are quieter in between. Following an initial period of very intense activity with the DDaT project, there was a lull. This meant the Claimant returned to the Local Government Digital project. As it transpired, it was still not up and running and eventually, by September 2022, the Claimant left the project altogether.

[64]In the meantime, however, a small restructure had taken place which had meant that the Digital Communications team had moved into the Digital Directorate. The Claimant was asked to be responsible for this team. She had one direct report, an SEO, who himself manged three team members. Some of the Claimant’s time was spent with this team.

[65]The Claimant also began to reflect on her own career development. She briefly spoke to Mr Maltby at the Directorate Away Day about the possibility of a business analyst role. He suggested she follow this up with Ms Stewart which she did. She also completed a Managing Successful programmes course. Meetings

[66]In August 2022, a relatively minor issue arose in the DDaT project as a result of a misunderstanding about how assessment outcomes for DDaT professionals should be communicated. When sending these out, the project team had used a particular email address for queries. However, the people receiving emails to that address were not made aware of the project and so were not able to respond to queries. This led to a difficult meeting between Ms Standring, Ms Ahuja and the Claimant. The Claimant was picked up in the meeting by Ms Standring for rolling her eyes. Her evidence was that Ms Ahuja interjected and took responsibility for the use of the email address.

[67]In early September, the DDaT project was in full flow. At this point in time, there was still a need to assess some of Group 1 DDaT professionals and put in place pay enhancements. There was also a need to consider how the assessments would be regularly refreshed and extended to Group 2 and Group 3. It was envisaged that a third party would be required to undertake this work and the Claimant was tasked with writing a business case for the next phase of work.

[68]There was, however, a desire at the top of the Respondent’s organisation to accelerate the project’s progress. In order to so this, it was agreed between Mr Kennedy and Ms Stewart that there should be some short weekly meetings between key people in the People, Places and Change Directorate and the Digital Directorate. The purpose of the meetings was to identify potential stumbling blocks in the progress of the project and to find solutions to them. It was considered important for senior staff from the two directorates to work closely together.

[69]Five weekly meetings were scheduled. The first meeting was on 9 September 2022 and the last meeting was on 7 October 2022. The meeting that was due to take place on 30 September 2022 did not take place however because of annual leave.

[70]Ms Stewart told us that she and Mr Kennedy decided who should attend the meetings together. In Mr Kennedy’s interview for the purposes of the investigation into the Claimant’s grievance, he confirmed this. They decided together that the meetings should be kept small with no more than two people from each directorate so that the meetings would remain short and to the point. In our judgment this was a sensible position for them to have taken and we had not reason to doubt that it was genuine.

[71]Having decided that it was sensible to keep the meetings small, Mr Kennedy and Ms Stewart decided that both of them should attend together with Ms Standring, whose involvement stemmed from the pay and reward side of things and Ms Ahuja who was leading the project team doing the detailed work. We note that both Mr Kennedy and Ms Stewart were deputy directors with Ms Ahuja being a grade 6. Ms Standring was in the same position as the Claimant, namely she was a substantive grade 7, but on a TRA to grade 6.

[72]Mr Kennedy acknowledged in his interview for the grievance investigation, when asked direct questions about the relationship, that there had been some tension between Ms Standring and the Claimant. He attributed this to them having similar personalities in terms of being very direct and outcome focused. He said that this had been a minor factor in the decision making as to who should attend the meeting, but also that had there been no tension between Ms Standring and the Claimant the same decision would have been made.

[73]The Claimant did not learn about the meetings until January 2023. We find that this was not because Ms Ahuja, or indeed, anyone else, kept them from her. Ms Ahuja did not proactively discuss the meetings with the Claimant, but did copy her into an email in which she mentioned one of them.

[74]Another separate meeting was arranged as part of the DDaT project work. This was a meeting to discuss a recruitment issue that had arisen which was what to say in adverts for DDaT roles about salary. Luis Amaral, Resourcing Partner emailed Ms Ahuja and the Claimant on 30 September 2022 explaining that he was involved in revising job description templates and wanted some assistance form them to incorporate the new DDaT Pay and Capability framework. Ms Ahuja replied to suggest a meeting. An initial meeting took place in which it was recognised that a further meting was required that included Ms Standring.

[75]In response, on 12 October 2022, Mr Amaral sent a meeting invite to her for a meeting on 13 October 2022. He invited several people, including Ms Standring, the Claimant and Lindsey Dodds. Within around 15 minutes of sending the original invite, the proposed meeting was then moved to 14 October 2022. Although he originally invited the Claimant to the meeting on 13 October 2022, he cancelled the invitation for the Claimant to attend the meeting on 14 October 2022. Everyone else continued to be invited. In fact, the meeting did not proceed on 14 October 2022, but took place on 18 October 2022. The Claimant was not invited to attend, even though she was available to attend.

[76]The Claimant told us that she asked Ms Ahuja and Ms Dodds why she had been uninvited to the meeting that day at a drinks event held in the office after work. She said both appeared to be uncomfortable with the discussion and she did not mention it again.

[77]Neither Ms Ahuja or Ms Stewart were able to explain to us why the Claimant’s invitation to the meeting was cancelled. Ms Ahuja confirmed that she did not ask Mr Amaral to take the Claimant off the invite, albeit that she did not think the Claimant necessarily needed to be at the meeting as it was a meeting to focus on recruitment and drafting job descriptions rather than the assessment of the capabilities of DDaT professionals which the Claimant had been working on.

[78]Mr Amaral was asked about why he cancelled the meeting invite when interviewed for the purposes of the Claimant’s grievance. He was unable to explain why he had cancelled the invitation for the Claimant to attend. He was not sure if he had been told by others that the Claimant could not attend the meeting at the revised time or if it was simply human error. He acknowledged that he was aware that Ms Standring and the Claimant did not get on well, but he didn’t think that had anything to do with the meeting as there had been other meetings with both present. Claimant’s Aspiration to Become a Business Analyst

[79]The Claimant continued working on the DDaT project throughout the rest the year. During this time she became increasingly focussed on the idea of becoming Business Analyst and also moving into a permanent Grade 6 position. There had been a business analyst assigned to the DDaT project, provided by the external third party, who had left. The Claimant considered she was doing the work of that person on the project and even began to use the title Business Analyst in her signature.

[80]The Claimant discussed her aspiration with Ms Ahuja. Ms Ahuja denied when giving evidence that she had asked the Claimant to prepare a job description for the role of a Grade 7 Business Analyst in the Digital Corporate Office. She said she suggested that a business case would need to be prepared.

[81]We found, however, that there was a conversation between her and the Claimant in which Ms Ahuja, a supportive line manager, encouraged the Claimant in her aspirations and suggested that the first step would to identify what a grade 7 Business Analyst role might look like.

[82]We do not find that Ms Ahuja required the Claimant to prepare a draft job description, as in made her do it. The idea of the Claimant creating the job description, however, flowed naturally from their discussion and was a logical consequence of it. We also do not find that Ms Ahuja made any kind of commitment to the Claimant about the creation of a job for her at Grade 7. This was not a matter that was within Ms Ahuja’s gift and the Claimant was well aware of that.

[83]On 14 October 2022, Ms Stewart had been temporarily promoted into Mr Maltby’s role on a TRA at director level. She was subsequently confirmed in the role following an open competition on 2 June 2023. This change meant that Ms Stewart became responsible for leading the entire directorate and also that Ms Ahuja became one of her direct reports.

[84]Ms Ahuja was not aware, when discussing the Claimant’s career aspirations with the Claimant, that Ms Stewart had begun to think differently about the future direction of the DDaT project. In Ms Stewart’s mind, it made little sense to continue to undertake the labour intensive assessment of the capabilities of DDaT professionals manually. Instead, she was leaning towards wanting to develop a digital capability to do this. She was aware that the directorate could not do this itself, but would need external support to produce a digital solution. Once in place however, the work needed to input into the assessment process would be much reduced.

[85]Ms Stewart’s thinking about the DDat project was crystallised when she received an email from Jenny Tobin, HR Business Partner on 12 January 2023. Ms Tobin wrote to her about the TRAs within the directorate. She had identified that there were eleven people in the directorate on permanent contracts who were working at a higher grade on a TRA. Ms Tobin explained that a temporary relaxation of the normal recruitment controls had been agreed from that day, which meant there would be a streamlined process for by which employees on TRAs could be confirmed permanently in their higher grade roles, albeit there would still need to be an application and appointment process. Ms Tobin suggested that Ms Stewart review the TRAs, with a particular focus on those with a TRA lasting 12 months or more, and decide which might become permanent using the streamlined process.

[86]The Claimant was one of the eleven people on the list. At this time, her TRA was due to end on 1 March 2023. She was the only black person on the list.

[87]As it transpired, the Claimant was the only person on the list who did not get an opportunity to apply for a permanent role. Instead the decision that Ms Stewart took was to let the Claimant’s TRA run its course, following which the Claimant would revert to her substantive grade. This was because she decided to move forward with the new direction for the DDaT project which she had been thinking about. The consequence of this was that there would be no enduring need for a Grade 7 role and therefore no justification to make the Claimant’s role permanent. In addition, the local government digital project which had been the original basis for the Claimant’s TRA no longer required a TRA.

[88]Ms Stewart had not shared her thinking with Ms Ahuja when Ms Ahuja had been discussing the Claimant’s future with her. However she did so at some point between 13 and 20 January 2023. The Claimant had emailed her draft job description to Ms Ahuja in early January 2023 and she had made some initial comments on it. They then arranged to meeting on 20 January 2023. Ms Ahuja used this meeting to tell the Claimant that Ms Stewart had decided not to extend her TRA and not to create a permanent Grade 7 role. This meant the Claimant would revert back to her grade 6 role in March 2023.

[89]There was subsequently a discussion about what the Claimant could do going forward. Ms Stewart identified a need for a Business Analyst skill set on a project in the CTO team for 6 weeks. There was also a possibility of further BA work, but it would not be at Grade 7. When the Claimant asked about the DDaT project, she was told that she could remain working on it if she wished. As part of this discussion, the Claimant learned that as a result of Ms Standring being unhappy about the work she and Ms Ahuja had done on the DDaT project she had raised the issue with Mr Kennedy. This was also when the Claimant learned about the a series of meetings involving Mr Kennedy, Ms Stewart, Ms Ahuja and Ms Standring.

[90]Ms Ahuja did not suggest that there had been a formal complaint from Ms Standring about the Claimant. However, as was evident from the subsequent correspondence, the Claimant came away form the discussion believing that it was Ms Standring’s difficulties with the Claimant that had led to her being excluded from the series of strategic meetings and the recruitment meeting.

[91]An announcement was made soon after these discussions that the Claimant would be undertaking the project in the CTO team. Resignation

[92]The Claimant resigned shortly after these discussions on 30 January 2023. Her resignation letter said the following: “As a substantive G7, I understand that I have to give a 3 month notice of leaving, please accept this letter as my notice of resignation. I feel that my time in the department has to come to an end for multiple reasons. As you know I have been on a TRA to G6 since Nov 2021 and have worked on whichever projects my skillset has been needed on. Having worked at this grade for over a year, and not receiving any feedback that I am not performing to the level I should, to not have my TRA extended or have the opportunity to be made substantive makes me feel that what I have been producing over this period has not been acknowledged or appreciated. In the 4+ years I have been in the department I have watched many others get TRA’s and promotions with ease yet mine has been challenged or withdrawn at each opportunity. The way in which a complaint against me has been handled also contributed to my decision. I was aware that something was going on and that I was being left out of discussions about the work I was doing. However, when I queried this, I was told there had been an impromptu discussion and nothing further was raised with me. 4 months later I find out that not only were my suspicions correct but regular meetings were happening, that I was being intentionally left out of, to discuss work that I was leading on. I feel that I have not been given the opportunity to hear what the complaints were, to even begin to defend myself against them, but there was a collective effort to move on from it as if I were guilty of something. What has made this worse is that I am only finding out this information because it is still desired that I lead the work and will have to work with the person who made the complaint, but again this was approached as if I had raised a complaint about them. If I have done something wrong, I am more than happy to have this pointed out to me so that it can addressed but, in this instance, I feel as if I was seen as a problem that nobody wanted to discuss the situation with. There are many processes I have implemented in this department over the years, that are still in use but I feel there is little acknowledgment of these. Whilst there may be more Business Analyst development opportunities available to me, I feel that I can mentally give no more to this department, who I feel has failed to recognise my contributions, and therefore feel I have no option but to hand in my resignation.”

[93]Ms Ahuja and the Claimant met to discuss her resignation. The essence of there discussions is captured in subsequent emails. Ms Ahuja asked the Claimant to reconsider her decision to resign but the Claimant was adamant that she wanted to leave.

[94]The Claimant subsequently submitted a grievance. She appealed against the grievance outcome. Her TRA was extended to 31 May 2023. Her last day in work was 16 march 2023, although her employment did not end until 31 May 2023. Between 16 March and 31 May she was on annual leave.

[95]After the Claimant left, Ms Ahuja took over her work on the DDaT project for a limited period of time. The change in direction envisaged by Ms Stewart was out in place and as at the date of the hearing, there is now a digital assessment tool in place. There is an ongoing internal staffing need to administer the DDaT capability assessment process, but this is now undertaken by someone at SEO level. THE LAW Discrimination Claims

THE LAW

[96]The Claimant’s discrimination claims included direct race and age discrimination claims. In this section, we set out the legal tests that have to be applied to such claims.

[97]Race is one of the protected characteristics identified in section 4 of the Equality Act 2010. Section 9(1) of the Equality Act 2010 says race includes colour, nationality and ethnic or national origins.

[98]Age is another protected characteristic identified in section of the Equality Act 2010. Detriment

[99]Section 39(2)(d) of the Equality Act 2010 requires that an employer must not discriminate against any of its employees by subjecting them to detriments.

[100]A detriment can encompass a range of treatment from general hostility to dismissal. It does not necessarily entail financial loss, loss of an opportunity or even a very specific form of disadvantage.

[101]The test for detriment was formulated in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

where it was said that it arises where a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work. Direct Discrimination

[102]Section 13 of the Equality Act 2010 provides that ‘A person(a) (A) discriminates against another

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

[103]The language used in section 13 means that a claimant does not need to have the protected characteristic they are relying on. Direct discrimination can arise where they are perceived to have the protected characteristic.

[104]Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[105]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[106]We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[107]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as she was. Burden of Proof in Discrimination Cases

[108]Section 136 of the Equality Act sets out the relevant burden of proof that must be applied. A two-stage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful

[109]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s race. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was nondiscriminatory.

[110]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

and we have followed those as well as the direction of the court of appeal in the Madarassy case. The decision of the Court of Appeal in Efobi v Royal Mail Group Ltd

[2019] ICR 750

confirms the guidance in these cases applies under the Equality Act 2010.

[111]The Court of Appeal in Madarassy, states: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ (56)

[112]It may be appropriate, on occasion, for the tribunal to take into account the respondents’ explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others

[2006] IRLR 748

; Madarassy v Nomura International plc

[2007] IRLR 246

, CA.) It may also be appropriate for the tribunal to go straight to the second stage, where for example the Respondent assert that it has a non-discriminatory explanation for the alleged discrimination. A Claimant is not prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd

[2019] ICR 750

, para 13).

[113]In some cases, as observed in Hewage v GHB

[2012] ICR 1054

and Martin v Devonshires Solicitors

[2011] ICR 352

, the burden of proof provisions will require careful attention. However, they may have little to offer where we in a position to make positive findings on the evidence one way or the other. Where such an approach is adopted, however, it is important that the Tribunal does not fall into the error of looking only for the principal reason for the treatment but properly analyses whether discrimination was to any extent an effective cause of the reason for the treatment.

[114]It is important to remember that at all times, our focus “must at all times be the question whether or not they can properly and fairly infer… discrimination.” (Laing v Manchester City Council, EAT at paragraph 75) In addition, allegations of discrimination should be looked at as a whole and not simply on the basis of a fragmented approach (Qureshi v London Borough of Newham

[1991] IRLR 264

, EAT). We must “see both the wood and the trees” (Fraser v University of Leicester

UKEAT/0155/13

at paragraph 79.) Justification in Direct Age Discrimination Claims

[115]Section 13(2) of the Equality Act enables an employer to justify direct discrimination so that it is not always unlawful. We have not set the law out dealing with this as the Respondent in this case denied that there had been any age discrimination rather than sought to justify that it was justified. Time limits – discrimination claims

[116]The relevant time-limit is at section 123 Equality Act 2010. According to section 123(1)(a) the tribunal has jurisdiction where a claim is presented within three months of the act to which the complaint relates.

[117]The normal three-month time limit needs to be adjusted to take into account the early conciliation process and any extensions provided for in section 140B Equality Act.

[118]By subsection 123(3)(b), a failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary. A person is taken to decide on a failure to do something when that person does an act which is inconsistent with doing it or, in the absence of such an inconsistent act, on the expiry of the period on which that person might reasonably have been expected to do it.

[119]By subsection 123(3)(a), conduct extending over a period is to be treated as done at the end of the period.

[120]In Hendricks v Metropolitan Police Commissioner

[2002] EWCA Civ 1686

, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the Claimant was treated less favourably. An example is found in the case of Hale v Brighton and Sussex University Hospitals NHS Trust

UKEAT/0342/17

where it was determined that the Respondent’s decision to instigate disciplinary proceedings against the Claimant created a state of affairs that continued until the conclusion of the disciplinary process.

[121]Alternatively, the tribunal may still have jurisdiction if the claim was brought within such other period as the employment tribunal thinks just and equitable as provided for in section 123(1)(b). It is for the Claimant to show that it would be just and equitable to extend time.

[122]The tribunal has a wide discretion to extend time on a just and equitable basis. As confirmed by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, the best approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. This will include the length of and reasons for the delay, but might, depending on the circumstances, include some or all of the suggested list from the case of British Coal Corporation v Keeble

[1997] IRLR 36

. Constructive Unfair Dismissal

[123]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

[124]The burden of proof lies with the Claimant to establish that, on the balance of probabilities, there has been a fundamental breach of contract.

[125]In this case, the Claimant claims there was a breach of what is known as the implied term of trust and confidence. A breach of this implied term is necessarily a repudiatory breach of contract (Morrow v Safeway Stores

2002 IRLR 9

)

[126]The implied term of trust and confidence in full, as owed by the employer to an employer, is articulated as follows: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”

[127]It is relevant to note that there are two limbs to it. When deciding whether or not it has been breached, we need to consider not simply whether there was conduct by the employer which destroyed trust and confidence, but also whether the employer had reasonable and proper cause to act as it did.

[128]It is the impact of the employer’s behaviour, assessed objectively, on the employee that is significant - not the intention of the employer (Malik v BCCI

[1997] IRLR 462

). It is irrelevant that the employer does not intend to damage the relationship, if effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it (Woods – v- Car Services (Peterborough) Limited)

[1981] ICR 666

[129]Discriminatory conduct on the part of the employer will usually breach the term of mutual trust and confidence, but this is by no means certain (Ahmed v Amnesty International

2009 ICR 1450

). As captured above, the tribunal must make an objective and context specific assessment of the employer’s behaviour. The subjective view of the Claimant, while relevant, is not determinative.

[130]Usually, in order to succeed in a claim of constructive unfair dismissal, an employee must act promptly in response to the employer’s conduct said to amount to a breach and resign within a reasonable period. If this is not done, the employee is treated as having waived the breach and affirmed the contact of employment.

[131]The breach of the implied obligation of trust and confidence can consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In such circumstances, known as “last straw” cases, the position in relation to affirmation of the contract is modified.

[132]In Kaur v Leeds Teaching Hospitals NHS Trust

2018 EWCA Civ 978

the Court of Appeal listed 5 questions that should be asked in order to determine whether an employee has been constructively dismissed in a “last straw” case:(a) What was the most recent act (or omission) on the part of the employer which the employee says cause, or triggered, his or her resignation? We note that in Omilaju v Waltham Forest LBC [2005] ICR the Court of Appeal said that the last act may be relatively insignificant, but must not be utterly trivial.

(b) Has he or she affirmed the contract since that act?

(d) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation)

(e) Did the employee resign in response (or partly in response) to that breach? (Nottinghamshire County Council v Meikle

[2004] EWCA Civ 859

[133]Where a tribunal finds that there is a dismissal within the terms of section 95(1)(c) we must consider whether that dismissal was fair or unfair within the terms of section 98 of the ERA. In these circumstances it is for the employer to show what was the reason for the dismissal and whether that reason was a potentially fair reason for dismissal falling within section 98(1).

[134]It is, somewhat artificial to require an employer who denies having dismissed an employee to show a reason for the dismissal. The Court of Appeal addressed this problem in Berriman –v- Delabole Slate Limited

1985 ICR 546

where the Court said that, in the case of a constructive dismissal, the reason for the dismissal is the reason for the employer’s breach of contract that caused the employee to resign. This is determined by analysis of the employer’s reasons for so acting, not the employee’s perception (Wyeth v Salisbury NHS Foundation Trust UK

EAT/061/15

[135]However, even where there is a potentially fair reason for dismissal, the question is whether in the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee. In practice, what this means in a constructive dismissal case is that we should ask ourselves whether the employer’s reason for committing the fundamental breach of contract was, in the circumstances, sufficient to justify that breach. ANALYSIS AND CONCLUSIONS Approach

[136]We began by considering whether the allegations made by the Claimant were made out on their facts. We did this in chronological order.

[137]Where the facts were proven, we next considered the allegations said to be acts of discrimination. The reason for considering them first was because many of the same allegations were said to be both fundamental breaches of contract and acts of discrimination. Where something constitutes an act of discrimination, it is likely to also amount to a fundamental breach of contract, so it is important to consider if it is discriminatory first. Whether or not it also amounts to a fundamental breach will depend on the facts in each case, however.

[138]Having identified the acts of discrimination, we turned to the question of constructive dismissal. Factual Conclusions Undermining the Claimant in relation to the management of a PA in April 2021, by interfering with her decision to extend a probationary period and telling her to confirm the PA’s appointment. Allegation made against line manager Anisha Ahuja and CTO Gillian Stewart (Issues 3.1.3.1 and 16.1)

[139]Our finding was that this allegation was not made out on the facts. We found that the Claimant was not given an instruction to confirm the PA had passed her probation rather than extend it. We also did not find any evidence that the Claimant was undermined.

[140]Our finding is that if Claimant felt strongly that there was evidence of poor performance, attendance or conduct and that the PA’s probationary period should be extended, it was open to her to make this case directly with Mr Maltby and Ms Stewart. The evidence was that neither of them thought this was necessary based on their own interactions with the PA, but we feel confident that they would have respected the Claimant’s view had she shared it with them and acknowledged that it was her decision to make.

[141]In reaching this conclusion we have taken into account the subsequent events following the end of the probationary period including the decision to change the PA’s line management arrangements and the subsequent issues with her performance. We consider it was sensible to change the PA’s line management in the circumstances that she and the Claimant had a difficult relationship. Excluding the Claimant from meetings regarding the Claimant's work on DDaT pay and Capability taking place between her line manager, her director, an HR Deputy Director (Gavin Kennedy) and an HR pay and reward lead (Frances Standring). Allegation made against her line manager, the director and Mr Kennedy. (Issue 3.1.3.2 and 16.2)

[142]It was not disputed that the Claimant was not invited to participate in the weekly meetings that took place from 9 September 2022 to 7 October 2022. Excluding the Claimant from a meeting on 14 October 2022. Allegation made against her line manager, the director and Mr Kennedy. (Issue 3.1.3.3 and 16.3)

[143]Our finding is that the Claimant was originally included in the invitation to this meeting (when it was due to take place on an earlier date), but her invitation to the rearranged meeting was cancelled. We find this allegation is proven on the facts. Requiring the Claimant to draft a job description in approximately December 2022 for a Grade 6 role that she was performing on an acting basis in the period November 2021 – April 2023 and then deleting that role (Issues3.1.1 ) Expecting the Claimant to carry on doing the above role from March 2023 onward but not paying her for it (Issue

3.1.2 )

[144]We considered these two allegations together. It was not in dispute that the Claimant had been performing a grade 6 role since November 2021. Originally the Grade 6 TRA was created because of the Local Government digital project rather than the DDaT project, but for a period of time the Claimant worked on both and towards the end of her employment her focus was on the latter.

[145]The Claimant was not required to draft a job description for the role she was doing. The Claimant had two aspirations, one to become a Business Analyst and two to be permanently confirmed as a Grade 6. Elements of her role towards the end of 2022 involved using Business Analyst skills, but she was not offered the TRA in the role of a Business Analyst.

[146]Because of her aspirations, the Claimant was encouraged by Ms Ahuja, who was a supportive line manager, to prepare a job description. Ms Ahuja did not require the Claimant to do this. It was simply a part of their ongoing discussions.

[147]In January 2023 Ms Stewart decided that the Claimant’s TRA should come to an end on 1 March 2023. This was because she did not envisage a permanent need for a grade 7 role to administer the DDaT professional assessment process in the future. This was because of a change in direction in the project. We also note that Ms Stewart also did not envisage the need for a Business Analyst at a Grade 7 within the Corporate Team, which was the role that the Claimant envisaged for herself.

[148]At the time the Claimant was told about the decision to bring her TRA to an end, there was an ongoing need for work on the DDaT project, but it was for a limited time. She was not therefore going to be required to do the same work on less pay. In addition, she was also offered the option of discontinuing working on the DDaT project so that she could focus on Business Analyst roles.

[149]We therefore found that the only element of these two allegations that was factually correct was the element that refers to deletion of the Claimant’s role. However, what the Claimant meant by this was that her TRA was to be stopped and she was not to be offered the opportunity apply for the role she was doing on a permanent basis. This has never been disputed. Age Discrimination

[150]We agreed with the Claimant that she looks younger than age. However, we did not consider she presented any evidence to support her assertion that the relevant decision makers at the Respondent thought she was younger than she was.

[151]Both Ms Ahuja and Ms Stewart told us that they were not aware of her actual age, but thought she was around the age that she was at the relevant times. We had no reason not to believe their evidence on this point. Although Mr Kennedy was not present to ask, he had had a couple of mentoring meeting with the Claimant at which she discussed her career development aspirations. We consider it is likely that as a result he was also aware of her actual age, given that they would have discussed her career history to date.

[152]The Claimant adduced evidence about two matters which could be considered as evidence that others at the Respondent thought she was younger that she was.

[153]The first piece of evidence was what she told us about her first meeting with Ms Standring. As Ms Standring was not present at the hearing she did not have a chance to comment on this. In our judgment, however, even if what the Claimant said was correct and Ms Standring had talked to her about her teenage children, this does not establish that Ms Standring thought the Claimant was closer in age to them rather than her. Lots of people in work talk about their families. Ms Standring may even have thought that the Claimant was old enough to have her own teenage children.

[154]The second piece of evidence was what the Claimant told us about the PA’s attitude towards her. We are unable to say what the PA felt about the Claimant’s age. However, we do not consider it to be relevant because her attitude about age did not matter. Our focus was on the relevant decision makers

[155]Taking the above into account, we considered the Claimant failed to prove any primary facts from which we could conclude that the Respondent committed any act of direct age discrimination. There was no shifting of the burden of proof and we did not uphold any of her complaints of direct age Race Discrimination

[156]In our judgment, the Claimant proved a number of contextual, general primary facts, from which we could conclude, absent any explanation from the Respondent, that the Respondent had committed act(s) of direct race discrimination. As a result we decided that the burden of proof shifted to the Respondent under section 136 of the Equality Act 2010 and it was for the Respondent to provide cogent evidence that the treatment of the Claimant was not materially influenced by her race.

[157]The facts that we took into account were the ethnic make up of the digital directorate and the fact that the Claimant was the most senior black employee within the directorate.

[158]When it came to the ethnicity of the meetings she complained about, none of the other preferred participants was black.

[159]Finally, and for us this was the most striking primary fact, the Claimant was the only black person on the list of people with TRAs and the only person who was not given an opportunity to apply to be confirmed as permanent at her higher grade.

[160]Turning to the actual allegations, however and taking into account the Respondent’s explanation, we were satisfied that the Respondent’s reason for not inviting the Claimant to the series of strategic meeting was not because of her race.

[161]The reason why the Claimant was not invited to the meetings was because the organisers of the meetings, Mr Kennedy and Ms Stewart, wanted to keep the number of attendees small so that the meetings could be short and focussed. Ms Ahuja was more senior than the Claimant and had responsibility for the overall strategy on the DDaT project and so she was the logical person to invite.

[162]The Claimant made the point that if the reason for not inviting both her and Ms Standring to the meetings was because of the tension between them, this might be based on an unconscious racial stereotype that she was at fault. This was because the Respondent was prepared to tolerate blunt and forthright behaviour from a white woman, but not from a black woman despite them being on the same grade. We considered this, but did not find this is what happened. This is because Mr Kennedy had made clear that even if the two women had been getting on, the same choice would have been made about the attendees.

[163]With regard to the recruitment meeting due to take place on 14 October 2022, we were not satisfied with the respondent’s evidence that the reason the Claimant’s invitation was cancelled was not influenced by her race. The evidence adduced by the Respondent did not clarify this at all. All that it clarified was that the person who was responsible for sending the meeting invite and the cancelation was Mr Amaral and that it had not been Ms Ahuja who had asked him to cancel the Claimant’s invitation. The evidence did not clarify the reason for the cancellation. Given the shift of the burden of proof onto the Respondent, this led to us finding the Claimant’s allegation made out.

[164]The final issue we considered in relation to the recruitment meeting was whether there was any detriment to the Claimant on not attending given that she was not leading on recruitment matters. The Respondent argued that there was no detriment.

[165]We disagreed. The Claimant had been involved in earlier recruitment discussions and had a great deal of knowledge about the detail of the Capability Framework and assessment process. She had also been led to believe that she would be present at the meeting. She found it upsetting that her meeting invitation was cancelled without an explanation. In our judgment the Claimant’s grievance about being left out of the meeting was not unjustified, but was such that a reasonable worker would take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work. Constructive Dismissal

[166]We next considered whether the allegations we found to be proved on their facts amounted to a beach of the implied term of trust and confidence either by themselves individually or when considered cumulatively.

[167]We did not consider that leaving the Claimant out of the strategy meetings held between 9 September and 7 October 2022 constituted such a breach. There was a sensible reason for this.

[168]We also did not consider that the Respondent’s decision to bring the Claimant’s TRA to an end, rather than create a permanent Grade 7 role and offer her the opportunity to apply for it constituted a fundamental breach of contract. Based on our findings of fact and the reason why the decision was taken, there was no breach of the implied term of trust and confidence.

[169]We have held that the cancellation of the Claimant’s invitation to the recruitment meeting was an act of direct race discrimination. This would normally lead to the conclusion that it was also a breach of the implied term of mutual trust and confidence. In this case, however, we considered that it fell into the exception envisaged in the Ahmed case and was not so serious that it constituted such a breach.

[170]In the alternative, if our conclusion about the treatment not amounting to a breach of the implied term was incorrect and there was such a breach, we would have found that the Claimant accepted the breach and it was not the cause of her resignation. The breach occurred in October 2022 and the Claimant knew about it on 12 October 2022. Having asked Ms Ahuja and Ms Dodds about it, she decided to take the matter no further. Based on our findings of fact, there was no subsequent event that enabled the Claimant to revive the earlier breach under the last straw doctrine.

[171]The Claimant’s claim of unfair constructive dismissal therefore failed. Time Limits

[172]The Claimant’s successful complaint of direct race discrimination was presented to the Tribunal outside of the normal time limit contained in section 123 of the Equality Act 2010.

[173]As we did not find any of her other complaints to constitute unlawful discrimination, there was no continuing act. Time therefore began to run from the time when the Claimant became aware of her cancelled meeting invite. She told us that was this on 12 October 2022. In order to present her claim in time, she would have needed to commence the Acas early conciliation process by 11 January 2023. She did not do this, however, until 7 April 2023.

[174]We decided to grant the Claimant an extension of time on a just and equitable basis. The delay was not very long and did not prejudice the Respondent’s ability to defend the complaint. It was understandable that the Claimant did not present her claim until after her resignation. Employment Judge E Burns 18 November 2024 11 December 2024 ...................................................................... ...................................................................... For the Tribunals Office Appendix List of Issues (Questions for the Tribunal) Time limits

List of Issues

[1]Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 8 January 2023 may not have been brought in time.

[2]Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

2.2 If not, was there conduct extending over a period?

2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:2.4.1 Why were the complaints not made to the Tribunal in time?

2.4.2 In any event, is it just and equitable in all the circumstances to extend time? Constructive unfair dismissal

[3]Was the Claimant dismissed? 3.1 Did the respondent do the following things:3.1.1 Requiring her to draft a job description in approximately December 2022 for a Grade 6 role that she was performing on an acting basis in the period November 2021 – April 2023 and then deleting that role;

3.1.2 Expecting the Claimant to carry on doing the above role from March 2023 onward but not paying her for it;

3.1.3 Undermining the Claimant in ways which she says amounted to discrimination:3.1.3.1 undermining the Claimant in relation to the management of a PA (Lea) in April 2021, by interfering with her decision to extend a probationary period and telling her to confirm Lea’s appointment. Allegation made against line manager Anisha Ahuja and CTO Gillian Stewart;

3.1.3.2 excluding the Claimant from meetings regarding the Claimant's work on DDaT pay and Capability taking place between her line manager, her director, an HR Deputy Director (Gavin Kennedy) and an HR pay and reward lead (Frances Standring). Allegation made against her line manager, the director and Mr Kennedy.

3.1.3.3 excluding the Claimant from a meeting on 17 October 2022. Allegation made against her line manager, the director and Mr Kennedy.

[4]Did that breach the implied term of trust and confidence? The Tribunal will need to decide:4.1 whether the respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the respondent; and

4.2 whether it had reasonable and proper cause for doing so.

[5]Was the breach a fundamental one? The Tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end.

[6]Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation.

[7]Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach. What was the reason for the breach of contract? Was it a potentially fair reason?

[10]Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant? Remedy for unfair dismissal

[11]If there is a compensatory award, how much should it be? The Tribunal will decide:11.1 What financial losses has the dismissal caused the Claimant?

11.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

11.3 If not, for what period of loss should the Claimant be compensated?

11.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

11.5 If so, should the Claimant’s compensation be reduced? By how much?

11.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

11.7 Did the respondent or the Claimant unreasonably fail to comply with it?

11.8 If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

11.9 If the Claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?

11.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

11.11 Does the statutory cap of fifty-two weeks’ pay or £93,878 apply?

[12]What basic award is payable to the Claimant, if any?

[13]Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? Direct age and race discrimination (Equality Act 2010, section 13) Detriment (Equality Act 2010, section 39(2)(d))

[14]The Claimant described her race as Black British Caribbean.

[15]The Claimant was at the time of material events 37 or 38 years old. Her claim is that she was perceived to be younger and was treated differently as a result.

[16]Did the respondent do the following things:16.1 undermining the Claimant in relation to the management of a PA (Lea) in April 2021, by interfering with her decision to extend a probationary period and telling her to confirm Lea’s appointment Allegation made against line manager Anisha Ahuja and CTO Gillian Stewart;

16.2 excluding the Claimant from meetings regarding the Claimant's work on DDaT pay and Capability taking place between her line manager, her director, an HR Deputy Director (Gavin Kennedy) and an HR pay and reward lead (Frances Standring). Allegation made against her line manager, the director and Mr Kennedy

16.3 excluding the Claimant from a meeting on 17 October 2022. Allegation made against her line manager, the director and Mr Kennedy. Was this a detriment?

[18]Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether she was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who she says was treated better than she was.

[19]If so, was it because of the Claimant’s race and/or perceived age, which she says is younger than it was? Remedy for discrimination

[20]Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

[21]What financial losses has the discrimination caused the Claimant?

[22]Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

[23]If not, for what period of loss should the Claimant be compensated?

[24]What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

[25]Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

[26]Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

[27]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

[28]Did the respondent or the Claimant unreasonably fail to comply with it?

[29]If so is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

[31]Should interest be awarded? How much? REMEDY JUDGMENT The Tribunal awards the Claimant £3,000 for injury to feelings and a further £504.00 by way of interest. The Respondent is therefore ordered to pay the Claimant £3,504.99