Miss D Verma v Kings College London and Others: 2210867/2023
EMPLOYMENT TRIBUNALS
Case No 2210867/2023
Between
Miss D VermaClaimantKings College London and OthersRespondent
Before
Tribunal Judge RE Peer acting as an Employment JudgeMr Michael Dhliwayo (instructed by MLS Legal) for claimantMr Gus Baker (instructed by Counsel) for respondentDate 12 February 2025
JUDGMENT
(1) The claimant’s application to amend her claim is refused and discretion is not exercised to permit the amendments sought.(2) The claimant’s complaints of harassment related to religion other than the allegations that statements were made to her by the second respondent that ‘you have plenty of time to decorate toys in your office’ referring to a statue of Ganesh and ‘I do not have time for this’ are struck out under Rule 37(1)(a) because they have no reasonable prospects of success.(3) The claimant’s complaint of wrongful dismissal is struck out under Rule 37(1)(a) because it has no reasonable prospects of success.(4) The third respondent is removed as a party. JUDGMENT having been given orally on 7 June 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Issues
[1]The claimant worked as an operations officer for the first respondent, a university, from 23 January 2023 until May 2023. The second and third respondent are employed by the first respondent. Early conciliation was from 1 May 2023 to 12 June 2023. The claimant presented her claim form on 29 June 2023 bringing claims for race discrimination, direct religion discrimination, harassment and wrongful dismissal. The claimant resigned on 19 April 2023 on notice and claims her notice was curtailed wrongfully by the respondent. The respondent denies discrimination and says that the claimant was offered early release from her contract by way of being in work for a few days and then using up annual leave and was not wrongfully dismissed. PRELIMINARY HEARING[2]On 21 February 2024, the parties were sent Notice of Preliminary hearing on 7 June 2024 with a one day time allocation to consider:a. Claimant’s application to amend ET1 to add the pursued claims which are not in her ET1;b. Respondent’s strike out/deposit application; andc. Case management directions.[3]The hearing was a remote hearing. The form of remote hearing was fully remote by Cloud Video Platform. The parties agreed in advance to the hearing being held as a remote hearing. A remote hearing was practicable and all issues could be determined in a remote hearing.[4]In the ordinary way, it was confirmed at the outset of the hearing that all participants could see and hear each other clearly. The claimant was represented by Mr Dhliwayo and the respondents were represented by Mr Baker. The hearing proceeded effectively as a remote hearing and no party raised any objection.[5]The tribunal ensured that members of the public could attend and observe the hearing. This was done via a notice published on Courtserve.net.[6]There was a hearing bundle of 184 pages (HB). The bundle contained copies of the claim form and particulars of claim, response forms and accompanying grounds of resistance, tribunal correspondence and orders, claimant’s further information document, respondent’s correspondence, claimant’s skeleton argument, respondent’s skeleton argument, agenda and agreed list of issues together with other documents.[7]I heard submissions from each party in respect of the applications before me.[8]I read the evidence in the bundle to which I was referred and refer below to key documents relied upon when reaching my decision.[9]I took time to deliberate and then gave my decision and reasons orally. Written reasons were requested by the claimant. PROCEDURAL HISTORY[10]On 8 September 2023, a case management hearing was held before EJ Singh who ordered the claimant to provide further information by 6 October 2023 because as set out at paragraph 2 of the CMO “the Claimant’s claim was not clear from the pleadings”. EJ Singh listed a further case management hearing for 23 November 2023.[11]Further information was provided by the claimant (HB 95-106) on 27 October 2023. The respondent indicated its view that the further information contained new pleaded facts.[12]The parties prepared submissions in advance of the 23 November 2023 hearing. In particular the claimant set out both that the further information document was not an amendment but also that ‘amendments sought are to elucidate and enhance the understanding of the existing claims, rather than introducing new causes of action’. The 23 November 2023 hearing did not go ahead.[13]On 15 February 2024, a case management hearing was held before EJ Tinnion (HB 143). The claimant withdrew all her race discrimination claims and they were dismissed upon withdrawal. EJ Tinnion was not able to decide any application to amend the claim because as set out at paragraph 6 of the CMO by EJ Tinnion, “There was insufficient time at the PHCM on 15 February 2024 to decide the claimant’s application to amend, given the amount of time and attention required just to go through those further particulars to determine whether they are no more than further particulars of existing claims in the ET1 or raise new factual allegations (and/or new causes of action in respect of existing factual allegations) which will require the Tribunal’s leave in order to bring as claims.” EJ Tinnion produced a schedule attached as Appendix 1 (HB 139-142) to his Case Management Order listing allegations and as to whether or not they consisted of facts pleaded in the originating claim and/or whether or not they were brought as legal claims within the originating claim. EJ Tinnion identified 7 claims for which the claimant required permission to amend in order to pursue and listed a public preliminary hearing for 7 June.[14]EJ Tinnion ordered the claimant to state why the tribunal should grant the application to amend to add those 7 claims which were not in her ET1 by 18 March 2024. The claimant did not comply with this case management order.[15]EJ Tinnion ordered the respondent to state whether or not they consented to the amendment application and summarise reasons by 3 April 2024.[16]On 3 April 2024, the respondent set out its objections to any application to amend (HB 147-149). The respondent noted the claims would be out of time on the basis that they were to be treated as presented at the time the amendment is allowed, Galilee v Commissioner of Police of the Metropolis [2018] ICR 634; reliant on witness memory subject to fading over time; had no reasonable prospects of success as they did not show a prima facie case for a causal connection between the alleged detriment and protected characteristic which factor could be taken account of before allowing an amendment, citing Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT in which it was stated ‘plainly not be allowed as it would be pointless’; and the Claimant had in any event failed to explain why any application to amend should be granted.[17]On 4 April 2024, the claimant emailed the tribunal to apologise for ‘oversight’ in not complying with EJ Tinnion’s case management order and again set out that amendments were not to add new causes of action but to elucidate the existing claims.[18]In advance of today’s hearing the parties each filed skeleton arguments. The claimant’s skeleton addresses an application to amend. The hearing bundle of 184 pages includes an email exchange between the parties (HB 165) which confirms that a list of issues is agreed. The claimant’s email of 1 June 2024 also states: ‘The Claimant has no applications to amend at this stage.’ However, at the hearing, the claimant’s representative told the tribunal this statement in his email was wrong and the claimant did wish to apply to amend her existing claim to include the 7 claims identified by EJ Tinnion which required the tribunal’s permission to proceed. Mr Baker indicated that he would be able to address that application notwithstanding the indication in advance of the hearing that the claimant was not pursuing any application to amend. APPLICATION TO AMEND[19]The claimant applied to amend her claim to add the claims at 1,2,3,4,6,9 and 19 of Appendix 1. These are all claims which were not pleaded in the originating claim form. There is no real explanation as to why they were not initially included and/or as to the timing and manner of seeking to add these claims. These claims appear to have emerged as a result of the tribunal working to clarify the claimant’s claims and through the provision of further and better particulars or information about the stated existing claims rather than in any deliberate, clear or considered fashion.[20]Claims(1) to (4) are allegations where it is accepted the facts were pleaded in the originating claim form but not as legal claims of direct religion discrimination. The allegations are as follows:• (1) on 24 April 2023, C’s 1 month notice period was abruptly shortened and C blames Heather Kneale (HK), Daria Sulima (DS) and Bethan Jones (BJ)•(2) on 24 April 2023, C was asked to leave early and C blames HK, DS and BJ•(3) on 25 April 2023, C’s access to work-related systems (Sharepoint, shared inbox) was revoked by HK, impeding C’s ability to work effectively during her remaining days•(4) on 26 April 2023, HK asked C to leave work early (2-3 hours earlier than C’s normal finishing time)[21]Claim (6) is an allegation where it is accepted the facts were pleaded in the claim form but not as the legal claim the claimant now seeks to pursue of direct religion discrimination. The allegation is as follows:• (6) ‘incident 2’ on 26 April 2023, HK asked C to return laptop, office key, ID card directly to HK, not Technical team.[22]Claim (9) is an allegation that the claimant accepts was neither pleaded factually or as a legal claim of harassment related to religion in her originating claim form. The allegation is as follows:• (9) ‘incident 1’ on 25 April 2023 at 1739, HK sent C email accusing C of actions she did not commit.[23]Claim (19) is an allegation of victimisation where the claimant accepts no protected act was pleaded in her originating claim. The allegation is:• (19) ‘The Claimant’s protected act was a formal complaint to HR on April 25 2023, raising concerns about discriminatory treatment and potential misuse of personal information.’ The originating claim form does not plead that the claimant was subjected to any detriments as a result of any protected act. At the hearing, the tribunal was told what the detriments were. I note as I have reviewed the further information document that there are alleged detriments set out therein but that of course is different from them being pleaded in the originating claim.[24]I considered the authority of Selkent Bus Co. Ltd v Moore 1996 ICR 836. I have discretion with regard to whether or not to permit amendments. It is worth setting out that the guidance in Selkent includes that: “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.” In Selkent, three factors are set out as ‘certainly relevant’ but those factors are not exhaustive. I therefore considered the three factors identified in Selkent together with all the circumstances and balanced the injustice and hardship of allowing or refusing the amendment. Nature of amendments sought[25]I noted that claims (1) to (4) and (6) relate to facts pleaded which the claimant now seeks to bring as direct religion discrimination claims. The factual allegations all relate to the circumstances at the end of the claimant’s employment after she had handed in her resignation. By way of her originating claim form, the claimant brings several claims of direct religion discrimination. I note that this initially presents as a re-labelling of existing fact. I noted that claim (9) introduces a new factual allegation.[26]Although the word ‘victimisation’ is used in the originating claim form, claim (9) introduces a new factual and legal claim of victimisation. The protected act relied upon is stated to be a complaint to HR on 25 April 2023. It is unclear what the claimant wishes to plead as detriments due to the protected act although the further information refers to work access revocation, improper equipment surrender request and early dismissal from work on her last working day as detriments and as to when these occurred sets out ‘particularly intense from April 19, 2023 (date of resignation) to April 26, 2023 (last working day).’ A victimisation claim is that a person is subjected to detriments due to doing a protected act thus the detriments must occur after the protected act. Timing and manner[27]I refer to the procedural history set out above as to the timing and manner of the new claims the claimant now seeks to pursue by way of amendment to her originating claim form. The claimant has legal representation. As recently as 1 June 2024, the claimant was indicating that she had no application to amend. Prior to that references to the further information were ambiguous as to whether there were amendments sought or not. The claimant produced lengthy, detailed and discursive particulars of claim with her originating claim form and a lengthy further information document. Extensive time has been taken by the tribunal to support, clarify and understand the claims brought. The claimant has at no point set out in writing in one place with any clarity the amendments sought and the claims she now says she wishes to pursue by way of amendment have surfaced through case management and are scattered across several documents.[28]There is no real explanation from the claimant as to why if she was seeking to bring direct religion discrimination claims she did not frame (1) to (4) and (6) as direct discrimination claims in her originating claim form where they are pleaded as facts related to her wrongful dismissal claim. The respondent submits that as now set out, the causal link between the treatment alleged and that it was because of the claimant’s religion is entirely absent and that account can be taken of the merits when deciding whether or not to exercise discretion to permit amendments. The same point arises in relation to (9) in that it is unclear why the alleged instance of harassment was not pleaded originally or how as now set out it is said the alleged unwanted conduct is related to the claimant’s religion.[29]The claimant took me to the further information document and in particular a passage (HB 106) which sets out the claimant’s recall of a conversation with BJ. That conversation is understood to have taken place on 24 April 2023 and was followed by an email timed 1734 on 24 April 2023 from BJ to the claimant setting out a proposal for her to be relieved of working her entire notice period further to her resignation. As such it is not clear how that conversation can relate to a protected act on 25 April 2023 or be clearly understood other than by being directed to decipher that information in that document as setting out why any alleged treatment or detriment was done either due to a protected act, because of or related to religion. Time limits[30]The respondent relies on Galilee as authority for the proposition that limitation relates to the time any amendment is permitted. If these amendments are permitted at this time they arise as claims approximately 12 months out of time. In so far as they emerge from and/or are set out in the further information document that was presented 6 months after the end of employment. The ordinary time limit laid down in statute is 3 months from the date of the act complained of. I acknowledge that some of the claims concern facts pleaded in the originating claim form as legal claims now framed and sought to be pursued as different legal claims. There remains however no real explanation as to why these claims were not advanced with the originating claim form which is detailed or any clear reason advanced as to why it would be just and equitable to extend time. In other words, there is no real explanation or evidence before me on which to exercise my just and equitable discretion. I note the submissions made in the claimant’s skeleton. Implicitly, the claimant submits time should be extended as it would be procedurally unfair not to allow relevant claims to proceed. That submission could be made in relation to any out of time claim and does not explain why these particular new claims compel an exercise of discretion to permit amendment in circumstances where discretion also needs exercising to extend time or limitation will have to be decided at trial. It also does not address why there would be no procedural unfairness to the respondent in such circumstances given statutory time limits. It cannot be that all and any claims a claimant seeks to pursue at any point must proceed otherwise there would be no time limits laid down in statute or provision regulating amendments.[31]The claimant’s skeleton also refers to coherence but it is not clear how permitting the amendments sought adds coherence to the existing claims. Allegations against HK relating to events occurring at the end of employment relating to handing back equipment do not readily present as adding any coherence to the existing claims or explain allegations against DS during employment. All the circumstances – balance of injustice and hardship[32]I considered the prejudice and injustice of the claimant not being able to bring these claims. The claimant has direct religion discrimination claims proceeding to trial and it is not maintained that there are no merits in those particular claims. The claimant would not be prevented from referring to factual matters as background information if context was needed. As set out above, adding these new claims does not add coherence not least given the chronology. I can take account of the merits and that the new claims of direct religion discrimination taking the facts pleaded at their highest do not enable me to discern any link with the protected characteristic relied upon or from which discrimination might be inferred at trial shifting the burden. As such, if the amendments are permitted the claimant would be proceeding to trial with all the cost, time and anxiety that can entail with claims that lack any obvious merit.[33]I considered the prejudice to the respondent. The respondent would likely need to file amended grounds of resistance responding to the amended claim. At this point, there is of course no single document such as a proposed amended claim form setting out in writing the new claims the claimant now seeks to pursue. There is unfairness to the respondent if it remains in a position where it has no coherent claim to which to fully respond. These proceedings should reasonably have been timetabled for trial by now given that there have been several case management hearings since the claim was presented on 29 June 2023. Allowing the amendments builds in additional delay. Delay impacts on witness evidence as memories fade with the passage of time causing a degree of forensic prejudice to the respondent although, again, I acknowledge that some lines of factual enquiry as to alleged incidents are equivalent to those in the existing claim. Overall expanding the claims that proceed to trial adds to the costs for both parties and increases the allocation of tribunal resources to these proceedings.[34]Accordingly, I have considered all the circumstances of the case including the nature of the amendments sought, the timing and manner of the amendments and time limits and the balance of injustice and hardship. I decided not to exercise discretion to permit the amendments sought. APPLICATION FOR STRIKE OUT AND/OR DEPOSIT ORDERS Strike outs general and no reasonable prospects of success ground[35]In appropriate cases, strike outs can minimise the anxiety, expense and time inherent in taking claims to trial, Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108, EAT.[36]In relation to strike out on the ground that a claim or response has no reasonable prospect of success under Rule 37(1)(a) of the Employment Tribunal’s Rules of Procedure 2013, the test is not whether the claim or response is likely to fail and the tribunal must be able to properly conclude that the claim or response has no reasonable prospect of success on consideration of the available material. The facts relied on by the claimant (or indeed a respondent) must be taken at their highest and where there are conflicts of fact, a tribunal must be cautious to strike out at the preliminary stage. Approach to strike out of discrimination claims[37]In Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL the House of Lords emphasised that discrimination claims should not be struck out save in the most obvious cases as they are generally factsensitive and require full examination to make a proper determination.[38]In advance of the hearing, the parties agreed a list of issues based on the existing claim. The respondent confirmed that it does not seek to have the direct religion discrimination claims or two of the allegations of harassment struck out or deposit ordered. The respondent applies to strike out and/or deposit order all other allegations of harassment related to race and the wrongful dismissal complaint.[39]The claimant’s allegation of direct religion discrimination is that she was subjected to less favourable treatment by way of comparison with a Muslim because she is a Hindu by HK declining to move a box of alcohol from her office because of the presence of a Muslim colleague on that floor.[40]The claimant claims harassment related to religion and raises several allegations of unwanted conduct against Daria Sulima, the second respondent, including as set out at 4(f)(iii) and (iv) of the agreed list of issues that DS said “in the claimant’s last catch up with DS after the claimant had handed in her notice: … (iii) when the Claimant explained what other work she was doing: “You seem to have many excuses when it comes to work but you have plenty of time to decorate toys in your office” (referring to a statue of Ganesh kept by the Claimant in her office; (iv) when the Claimant told Ms Sulima she was talking about the Claimant’s god: “I do not have time for this. I want this (the recruitment task) to be completed and put on to the system by tomorrow””[41]The respondent explained that the direct discrimination claim and the allegations of harassment related to religion at 4(f)(iii) and (iv) as pleaded contain a basis for discerning a link between what is pleaded – bearing in mind when considering strike out the facts pleaded are to be taken at their highest – and the protected characteristic of religion. The respondent submitted that otherwise the allegations of harassment as pleaded set out no causative link and it is insufficient to plead various alleged detriments or treatment without also pleading that the alleged detriment/treatment is because of the protected characteristic. In those circumstances, the allegations clearly have no reasonable prospects of success because the tribunal at trial will not be able to discern facts from which discrimination might be inferred so as to shift the burden.[42]The allegations of harassment that the respondent applies to strike out and/or deposit order are that the second respondent said:(a) when the Claimant asked about a pay increment after probation, “Well that’s if you pass the probation, but for that you need to do as you’re told”.(b) “You are here as a support service to our staff and students, it’s what you are paid for”, then reiterate parts of the Claimant’s job description when the Claimant tried explaining that she was busy and trying to attend multiple things at once. The Claimant says this happened many times;(c) When a meeting took place via MS Teams rather than in person, “Well what is your excuse for not being in this week? I had told you I wanted our catch ups to take place in person”;(d) When the Claimant explained that she was not in work because she had a blood test appointment: i. that the Claimant was making “pathetic excuses” ii. “You need to be in when I say”; iii. “You need to be in when I want”; iv. “This works for me so you should adjust”; v. “You’re still on probation”; vi. “I’m not convinced that you know what you are doing because your new and I don’t want you to eff things up”;(e) in the Claimant’s last catch up with Ms Sulima before handing in her resignation: i. “I have a problem with you, you don’t seem to ask any questions like the others do”; and ii. “you’re not like the other Operations Officers” and(f) In the Claimant’s last catch up with Ms Sulima, after the Claimant had handed in her notice: i. when the Claimant told Ms Sulima she needed additional information from another colleague to complete a recruitment task which was pending: “I thought I had told you to chase Person A about this” ii. when the Claimant told Ms Sulima she was awaiting a response from Person A: “It doesn’t take this long to do, what else are you doing”[43]The respondent also applies to strike out and/or deposit order an allegation of harassment related to religion that HK removed the Claimant’s access to work related systems on 25 April 2023 thus impeding the Claimant’s ability to work effectively for the remaining day of her employment; and an allegation of harassment related to religion that HK asked her to leave work two-three hours earlier than her normal finishing time.[44]The respondent further submitted that the available facts cannot possibly be construed as indicating wrongful dismissal and that the wrongful dismissal claim ought to be struck out as having no reasonable prospects of success. The claimant resigned on notice on 19 April 2023. The respondent referred to email exchanges between the claimant and BJ (HB161-163) whereby on 24 April 2023 BJ offered to release the claimant from her notice period early on the basis that she would work and hand over on 25 and 26 April 2023 then take her annual leave such that her last day of employment would be 11 May 2023. The claimant set out in an email on 25 April, ‘I can confirm acceptance of the proposed arrangements.’[45]The claimant relied on Anyanwu which I refer to above. I remind myself that the power to strike out should be used sparingly especially in relation to discrimination allegations which are particularly fact sensitive and I reflected carefully on this. The case law also provides that strike out can minimise distress and ensure that time taken for trial is proportionate. I also remind myself that in considering whether allegations have no reasonable prospects of success, I am to consider the facts pleaded at their highest. Taking the available facts at their highest, there is no reasonable prospect of the claim for wrongful dismissal succeeding. I found the respondent’s submissions had merit in that as pleaded the discrimination allegations did not set out any discernible basis for a causative link between the facts pleaded and the protected characteristic relied upon and taking the facts pleaded in those discrimination allegations at their highest, it was not possible to discern facts from which discrimination might possibly be inferred.[46]None of the allegations proceeding to trial are against the third respondent and accordingly, I have removed Bethany Jones as a party. SUMMARY OF DECISIONS[47]I therefore decided that I would not exercise discretion to permit the amendments sought by the claimant. I also decided that the claimant’s complaint of wrongful dismissal and her allegations of harassment other than the alleged statements of the second respondent about the claimant’s statue of Ganesh and her God have no reasonable prospects of success and as such should be struck out as applied for by the respondent. Tribunal Judge Peer acting as an[1]The issues were set out by EJ Peer following a case management hearing on 7 June 2025. Equality Act 2010, section 13: direct discrimination because of religion 1.1. Has the first respondent subjected the claimant to the following treatment: Heather Kneale declining to move a box of alcohol from the claimant’s office because of the presence of a Muslim colleague on that floor? 1.2. Was that treatment “less favourable treatment”, i.e. did the first respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on the following comparators: hypothetical comparator of a Muslim person. 1.3. If so, was this because of the claimant’s religion? The claimant is Hindu. Equality Act 2010, section 26: harassment related to religion 1.4. Did the second respondent say the following things in the claimant’s last catch-up meeting with her after the claimant had handed in her resignation: 1.4.1. when the claimant explained what other work she was doing: “You seem to have many excuses when it comes to work but you have plenty of time to decorate toys in your office” (referring to a statue of Ganesh kept by the claimant in her office); 1.4.2. when the claimant told the second respondent she was talking about the claimant’s god: “I do not have time for this. I want this (recruitment task) to be completed and put on the system by tomorrow”? 1.5. If so, was that unwanted conduct? 1.6. Did it relate to religion? 1.7. If so, did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 1.8. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Evidence[2]The tribunal heard evidence from the claimant and Victor Gbadebo (formerly Technician at the Centre) on behalf of the claimant and from Heather Kneale (Operations Manager for the Centre), Bethan Jones (School Manager at the School) and the second respondent on behalf of the respondents. Credibility[3]On balance, where there was a conflict of evidence, we preferred the evidence of the respondents’ witnesses to the claimant’s evidence. We found Victor Gbadebo to be a truthful witness, but his oral evidence was not consistent with his witness statement. For example, his witness statement suggests that the reason the crate of alcohol was not moved partly revolved around the Muslim colleague’s religious considerations. In oral evidence he repeatedly stated that there was ‘good intention’ to move the alcohol but it did not happen due to lack of space and that he did not think anyone wanted to cause offence.[4]Our reasons for finding the claimant’s evidence less credible than Heather Kneale, Bethan Jones and the second respondent are as follows: 4.1. the claimant’s evidence is inconsistent and confused. For example, she refers to asking Heather Kneale to move the alcohol from her room in the first two weeks of her employment (which started on 27 January 2023) but also says that she found the alcohol in the first month of her employment. We note that Heather Kneale was not her manager in the first two weeks of her employment and Heather Kneale was off-site until 6 February 2023. Her allegation in the List of Issues is against Heather Kneale for not removing the alcohol due to the presence of a Muslim colleague but her witness statement attributes that to Bethan Jones. 4.2. Many of the claimant’s allegations are unclear and she is unable to provide dates or details. For example, she alleges that the second respondent bullied her and treated her badly in verbal communications, which is why there is no documentary evidence of this. However, she has not provided the dates or context of these exchanges, or the words allegedly used by the second respondent. 4.3. The claimant relied on a written statement of Victor Gbadebo which he admitted he had not written himself. It did not reflect the oral evidence which Victor Gbadebo gave to the tribunal. The claimant said during her cross examination that Victor Gbadebo could not move the alcohol because of his own religious beliefs. He told the tribunal that he had no problem touching alcohol and had taken bottles from the crate for use in events within the School. 4.4. The claimant submitted medical evidence in order to support her case. It was not ordered to be disclosed and the respondents did not request it. Having decided to include this information, the claimant redacted the documents in white so that it was not obvious what had been redacted. The claimant eventually disclosed some unredacted documents which showed that her redactions were misleading. For example, the redacted document states ‘I was bullied’, which was intended to be evidence of the impact of the respondents’ actions. However, the unredacted text reads ‘I was bullied at school’. Not only were the redactions misleading, but her evidence in cross examination was also incorrect as she said the only redactions were to exclude her private details and to delete minor errors in the information. The content she had redacted included page numbers which indicates an intention to mislead. Facts[5]We have only found facts on those matters which we believe need to be resolved in order to determine the issues before us as set out in the List of Issues.[6]The first respondent is a University based in London which is comprised of a number of Faculties, within which there are Schools, within which there are Departments. It operates the Centre of Gene Therapy and Regenerative Medicine (the “Centre”) which is part of the School of Basic and Medical Biosciences (“School”), which is part of the Faculty of Life Sciences and Medicine.[7]The second respondent is HR and Finance Manager of the School.[8]The claimant was employed as an Operations Officer in the Centre. She was interviewed for the role on 12 December 2022 by Heather Kneale, Giuseppe Avagnale (Research Manager for the School) and the second respondent. There is a dispute whether the level of expected attendance in the office was expressly discussed. The respondents say that the claimant was told by the second respondent that she needed to attend mostly in the office during the six-month probationary period but afterwards a hybrid working arrangement could be considered.[9]Her employment started on 23 January 2023. She underwent a handover with Linda Almici, the outgoing Operations Officer. Shortly after she joined, there was a restructure of the management arrangements. Heather Kneale became her line manager but the HR and Finance Manager and the Research Manager also had responsibility for overseeing her work in respect of tasks allocated to her by them.[10]The claimant was allocated her office which was located on the 23rd floor. Some other members of the team worked from the 8th floor. There were a number of items which had been stored in her office which included a closed blue mover’s crate which turned out to contain bottles of alcohol. There were also boxes containing stationery and items on the shelves. When the claimant settled into her office, she set aside an area on her desk where she put a religious idol of Lord Ganesh.[11]At the start of her employment, the claimant attended the office most days. After a while, the claimant opened the blue crate and found that it contained alcohol. She says that she regards as inappropriate to have alcohol in the vicinity of her Lord Ganesh idol.[12]She asked Mateo (Technical Manager) for advice on moving the alcohol. He told her that the ‘booze cupboard’ was full. He left shortly after this exchange.[13]There was a conflict of evidence regarding whether the issue of the crate of alcohol was raised with Heather Kneale. The claimant says she escalated it to Heather Kneale within 2-3 weeks of joining and was explicit that she was uncomfortable with its presence due to her religious beliefs. She suggests that she persistently asked about this and nothing was done. The claimant accepts she did not raise this in writing. Heather Kneale denies being aware of the issue until she read the Claim Form submitted by the claimant.[14]For the reasons set out above, we prefer the evidence of Heather Kneale.[15]The claimant also alleges that she discussed the alcohol with Bethan Jones who cited the presence of a Muslim colleague on the 8th floor as a reason why the alcohol could not be moved there. We heard evidence from the respondents’ witnesses that there were Muslim colleagues on the 23rd floor and that there was alcohol stored on the 8th floor. Bethan Jones denies that this conversation took place.[16]For the reasons set out above, we prefer the evidence of Bethan Jones.[17]Towards the end of February 2023, the claimant started working from home three days a week, Wednesday to Friday, and coming to the office Monday and Tuesday. We find that this coincided with her receiving a laptop which allowed her to work from home.[18]The second respondent returned to work after a period of sickness leave on 1 March 2023. She was on a phased return to work, mostly working from home at first. She arranged a first meeting with the claimant on 17 March 2023 in the claimant’s office. The second respondent said that she noticed that the room was ‘bare and clinical’ in that all the previous contents stored there in boxes and on the shelves had gone. All that was in the room was the blue crate and the Ganesh idol.[19]They discussed the claimant’s Hindu faith and the second respondent asked if any adjustments needed to be made to accommodate this. The claimant said she would let her know. The second respondent asked about the crate and was told it contained alcohol. The second respondent asked the claimant if she wanted it removed and she said ‘no it is being dealt with’. The second respondent took no further action. We find that it would have been inappropriate for the second respondent to take any action to escalate the issue behind the claimant’s back. The claimant explained that she did not ask the second respondent to move the crate because she had already asked Heather Kneale (verbally) and she did not need to mention it again.[20]The claimant worked closely with the second respondent and their relationship rapidly deteriorated. The claimant complained that she was micro-managed and belittled. We do not see this from the written evidence before us in the form of Teams messages. We find the second respondent’s messaging to be normal management communications. If anything, the communications show a degree of rudeness from the claimant towards the second respondent. The claimant accepted that the second respondent’s message were not what she was complaining about and said that she was referring to verbal communications. However, we were given no evidence of the conversations she relies on or the dates and circumstances of these conversations.[21]On 30 March 2023, there was an exchange of emails between the claimant and Heather Kneale about her working arrangements and about milk storage as milk was sometimes stored in the claimant’s office. In the course of the email exchange, Heather Kneale asked if there was ‘anything else kept in your office that we might need a backup store for when it is locked’. The claimant replied ‘There definitely isn’t anything other than the milk that is kept in my office that everyone else uses’. She went on to add that there were some bits and pieces of stationery and that she was planning to move some of this. She was also planning to have a ‘bit of a sweep’ in her office to move things that are not necessary to be kept there. The claimant did not mention the crate of alcohol.[22]There was a Teams catch-up meeting between the claimant and the second respondent on 18 April 2023 which lasted 22 minutes. The claimant alleges that, during the course of this meeting, the second respondent made a comment that the claimant had plenty of excuses when it came to work but she time to ‘decorate toys in the office’. The second respondent denies making this comment. We find that the claimant has not provided sufficient evidence to support her allegation. We note that the meeting was not in the claimant’s office as she was working from home and it is questionable whether the second respondent would refer to something in the claimant’s work office, particularly where she had not been in that office recently. This was the last meeting between the second respondent and the claimant.[23]On 19 April 2023 Heather Kneale clarified that the claimant was expected to attend the office at least three days per week and she asked to meet the claimant. 25 minutes later, the claimant resigned and cancelled her regular catch-up meetings with Bethan Jones and the second respondent. In her resignation email, she did not refer to any of the matters she now relies on. After submitting her resignation, Bethan Jones observed that the claimant was offline consistently for the next couple of days. She therefore reached out to her as she was concerned about her. They arranged to meet in person on 24 April 2023.[24]On 20 April 2023, an academic followed up with the second respondent in respect of an ongoing request to advertise for a post for her team. Two days earlier, the claimant had said she would pass the matter to the second respondent for approval. The academic stressed the urgency of the request to the second respondent. The second respondent replied to the academic, saying that the claimant had not contacted her and asking the academic some follow-up questions. The claimant was copied in on this exchange and replied privately to the second respondent saying that the reason she hadn’t contacted the second respondent was because she was busy with other work which was more urgent. The second respondent pushed back and pointed out that she had not specified what work she was busy with, and it was hard for her to be aware as she had cancelled all their catch-up meetings. The claimant responded by email saying ‘Don’t send me such emails.’ She then sent another email a few minutes later saying ‘I’d like to stress please kindly do not send me such emails’.[25]On 24 April 2023, the claimant met with Bethan Jones. In that meeting, the claimant referred to the second respondent being rude and that she could not continue to work with her. The claimant showed Bethan Jones the exchange of emails as evidence of the second respondent’s rudeness. Bethan Jones did not agree that it showed rudeness. At that meeting, the claimant did not mention allegations of religion discrimination, the alcohol crate issue or the ‘toy’ allegation. When the claimant saw that Bethan Jones did not agree with her criticisms of the second respondent, she became distressed and stormed out of the office. Bethan Jones then made a note of the meeting. She sent the claimant an email summarising what had happened at the meeting.[26]On 25 April 2023, the claimant sent an email to the Professor Shitij Kapur, ViceChancellor and President of the first respondent, complaining of her treatment. Most of the email is a complaint about the second respondent, whom the claimant accuses of disrespect, ill-treatment and bullying. She complained about the issue of working remotely, the imbalance between managers and subordinates and she said she believed the treatment she received was racially motivated because she was Indian. In this email the claimant mentions the crate of alcohol and says this was despite her religious beliefs being flagged to the second respondent in a catch-up meeting.[27]Her employment ended on 26 April 2023.
Relevant law
[28]The relevant law relating to direct discrimination and harassment related to religion is as follows. Equality Act 2010, section 13: direct discrimination because of religion[29]Direct religion discrimination occurs if, because of religion, the respondent treats the claimant less favourably than it treats or would treat others. The claimant must show facts from which the tribunal could decide, in the absence of any other explanation, that the respondent discriminated against the claimant. In these circumstances, if the respondent is unable to show that it did not discriminate, the claimant will succeed.[30]In Madarassy v Nomura International plc [2007] ICR 867, the Court of Appeal held that there must be ‘something more’ than a difference in treatment between the claimant and the comparator to show a prima facie case of discrimination.[31]Guidance on the burden of proof was given by the Court of Appeal in Igen v Wong [2005] ICR 931. In Igen the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e. on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove — again on the balance of probabilities — that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[32]Unreasonable or unfair treatment is not sufficient to transfer the burden of proof to the respondent. There must be other indications of discrimination relating to the treatment in question according to the EAT in Commissioner of Police of the Metropolis v Osinaike [2010] UKEAT 0373. Equality Act 2010, section 26: harassment related to religion[33]A person harasses another if he engages in unwanted conduct related to a religion which has the purpose or effect of either violating that person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.[34]In determining whether the conduct has that effect, the tribunal must consider the perception of the claimant, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. There is therefore a subjective element and an objective element.[35]In Richmond Pharmacology v Dhaliwal [2009] IRLR 336, the EAT noted “not every racially slanted adverse comment or conduct [would violate] a person's dignity. 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. While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” Determination of the Issues Has the first respondent subjected the claimant to the following treatment: Heather Kneale declining to move a box of alcohol from the claimant’s office because of the presence of a Muslim colleague on that floor?[36]We find that Heather Kneale did not decline to move the box. We are not satisfied that the claimant ever asked her to move it but, if she did, it is clear that Heather Kneale had forgotten about it or overlooked it and the claimant would have to ask again. We do not accept that she asked persistently. She has not said whether she made Heather Kneale aware of the religious reasons for her request, even if we accept she did make a request.[37]We note that she never mentioned the request in any of her written communications. It would have been a natural thing to mention, for example, in the milk storage emails. She did not refer to this in her resignation letter or her resignation meeting. In her email to the President & Principal, she does not mention that she had repeatedly asked Heather Kneale to move the box. In fact, she makes reference to the box as follows: ‘…senior management here though it was completely acceptable to leave a box of alcohol in my office on the 28th floor…despite my religious beliefs being flagged to Daria Sulima in one of my catch ups’. She does not say that she asked the second respondent to move the box, only that the second respondent was aware of her religious beliefs as being a Hindu. There is no evidence that she told the second respondent (or any of the managers) of a link between her religious beliefs and the presence of alcohol in her office.[38]The claimant is comparing herself to a Muslim colleague. That person has not been identified and it was not put to the respondent’s witnesses that the reason the alcohol had not been moved was due to a sensitivity of another employee on the 8th floor. The claimant’s witness, Victor Gbadebo, suggested that there was an intention to move the crate but it hadn’t happened due to a shortage of space to move it to.[39]The claimant’s evidence about the alcohol issue is inconsistent and confusing, relying on conversations with both Heather Kneale and Bethan Jones and criticising the second respondent in her email to the Professor Kapur.[40]To the extent that the crate was not moved, we find that this was not related to her religion. There are many, more likely, non-discriminatory reasons why it might not have been done, such as the relevant person not being aware of a problem, having nowhere to move it to or the issue being forgotten about and not followed up.[41]We therefore find that the claimant has not shifted the burden of proof as she has failed to show a difference in treatment with her comparator, she has failed to show any link between her religion and the failure to move the box and we are not satisfied that she asked Heather Kneale to move the box. Did the second respondent say the following things in the claimant’s last catch-up meeting with her after the claimant had handed in her resignation: when the claimant explained what other work she was doing: “You seem to have many excuses when it comes to work but you have plenty of time to decorate toys in your office” (referring to a statue of Ganesh kept by the claimant in her office); when the claimant told the second respondent she was talking about the claimant’s god: “I do not have time for this. I want this (recruitment task) to be completed and put on the system by tomorrow”?[42]It was accepted that there was no catch-up meeting after the claimant had handed in her resignation on 19 April 2023. The last meeting between the claimant and the second respondent took place on 18 April 2023 via Teams.[43]If that is the case, we find that this issue does not arise as there was no meeting as described in the List of Issues. The List of Issues was drawn up in June 2024 and the claimant has not sough to amend this point or correct it despite being legally represented throughout.[44]However, we will consider the issue as if it referred to the last catch-up meeting on 18 April 2023. We find that it is unlikely on the balance of probabilities that the second respondent would have said such a thing in a Teams meeting when the claimant was working from home. If the meeting had been in the claimant’s office, and the Lord Ganesh idol had been present, it is plausible that the idol might have been in the minds of the parties. Given that the meeting was on Teams and the idol was not visible to anyone, we accept the second respondent’s evidence that she did not say these words.[45]In respect of the second limb of this allegation, this appears to be a reasonable management instruction from a manager who is losing patience.[46]We note that the allegation was not mentioned at all in the email to Professor Kapur, nor was it mentioned to Bethan Jones in the meeting on 24 April 2023. We find that the claimant has not shown evidence from which we could conclude that she had been harassed due to her religion.[47]We find that the breakdown in the relationship between the claimant and the respondents was due to the claimant’s unwillingness to work from the office and her reluctance to be managed by the second respondent. We do not find that her religion was a factor in any of the interactions between her and her colleagues.[48]We were taken to the first respondent’s Religion and Belief Policy. Although not directly an issue before us, we do not find that either respondent has breached this policy.[49]In conclusion, we find that the claimant’s claims against the first respondent and the second respondent are dismissed.[50]The remedy hearing listed for 30 April 2025 will be vacated.