Ms S Wilson v London Borough of Hammersmith and Fulham: 2213439/2023 and 2200566/2024

EMPLOYMENT TRIBUNALS

Case No 2213439/2023, 2200566/2024

Between

Ms S WilsonClaimant

London Borough of Hammersmith and FulhamRespondent

Before

Employment Judge Galbraith-Marten

In person for claimant

Mr. M. Salter (instructed by Counsel) for respondent

Date 7 March 2025

JUDGMENT

[1]The claimant’s claim of constructive unfair dismissal is not well founded and is dimissed.

[2]The claimant’s direct sex discrimination claims are not well founded and are dismissed.

[3]The claimant’s direct religious discrimination claims are not well founded and are dismissed.

[4]The claimant’s direct disability discrimination claim is not well founded and is dismissed.

[5]The claimant’s harassment related to sex claim is not well founded and is dimissed.

[6]The claimant’s unlawful deduction from wages claim is not well founded and is dismissed.

[7]The claimant’s breach of contract claim is not well founded and is dismissed.

REASONS

[1]Judgment was given orally on Friday 7 March 2025 and the Tribunal dismissed all the claimant’s complaints. On 10 March 2025 and in accordance with Rule 60(4) of The Employment Tribunal Procedure Rules 2024, the claimant requested written reasons and they are provided below in accordance with that request.

Introduction

[2]The claimant pursued the following complaints Constructive Unfair Dismissal, Direct Sex Discrimination, Direct Religious Discrimination, Direct Disability Discrimination, Harassment related to Sex, Unlawful Deduction from Wages and Breach of Contract.

[3]The parties provided three bundles for the hearing. A witness statement bundle of 54 pages, a pleading bundle of 198 pages and a large document and correspondence bundle of 789 pages.

[4]The claimant represented herself. The respondent was represented by Mr. Salter of Counsel, and it called four witnesses, Mr. Sotiris Alba, Supervisor in the CCTV team, Mr. Neil Thurlow, Director of Public Protection, Ms. Nicola Ellis, Director Chief Operating Officer Corporate Services and Ms. Maria Harding, HR Business Partner. The respondent provided a written witness statement for Mr. Ryan Moultesz, Supervisor in the CCTV team but he was not called to give evidence.

[5]Each witness gave evidence under oath and the parties had an opportunity to cross examine each other’s witnesses. Preliminary Issues

[6]Before commencing the evidence, I informed the claimant of a potential personal interest and I gave the claimant an opportunity to consider whether she wanted to object and ask that I recuse myself. I advised her the Tribunal would not consider that amiss if she did object. The claimant was given time to consider her position and she did not object. I informed her that I would record that she had waived her right to complain subsequently.

[7]A second preliminary issue arose in the form of the issues to be determined as it became apparent shortly after the commencement of the claimant’s evidence, that she was not in agreement with the final list of issues appended to Employment Judge Tegerdine’s order of 22 January 2025 included in the pleadings bundle at pages 170 - 174.

[8]The list was revised at the end of the first day and again on the morning of the second day.

[9]I wanted to ensure I understood the claimant’s position regarding the complaints she was pursuing under each of the separate heads of claim, and the claimant was clear there were several complaints in what was purported to be the final list of issues that she did not pursue. On the second day of the hearing I informed the claimant that some of the complaints she wasn’t pursuing were clearly set out in her claim forms, and if she no longer wished to pursue them, they would be considered withdrawn and I would not determine them. The claimant could however refer to those issues by way of background.

[10]The claimant maintained her position that she was not pursuing certain direct sex discrimination and harassment complaints and as a result, her direct sex discrimination claim was reduced to three allegations and her harassment on the grounds of sex claim was reduced to a single allegation. The other heads of claim remained the same.

[11]The complaints that were withdrawn as appended to Employment Judge Tegerdine’s order were the direct sex discrimination claims (a),(b),(e),(f),(g),(i),(j) & (k). The harassment related to sex complaints that were withdrawn were (b),(c),(d),(e),(f) & (g).

The Issues

[12]The parties were provided with the final list of issues on 4 March 2025 and there were as follows. 1. Time limits1.1 Given the date the first and second claim form were presented (10 August 2023 & 19 September 2024) and the dates of early conciliation (23 June 2023 to 4 August 2023 and 4 December 2023 to 15 January 2024), any complaint about something that happened before 24 March 2023 in respect of the first claim and 5 September 2023 in respect of the second claim may not have been brought in time.

1.2 Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

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

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

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?

1.3 Were the unfair dismissal, unauthorised deductions and breach of contract complaint made within the time limit in section 111 and 23 of the Employment Rights Act 1996 and section 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994? The Tribunal will decide:1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination or the date of payment of the wages from which the deduction was made etc?

1.3.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one?

1.3.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?

1.3.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Constructive Unfair Dismissal 2.1 Was the claimant dismissed? The claimant resigned with immediate effect on 17 October 2023.

2.1.1 Did the respondent do the following things:2.1.1.1 Put the claimant on the wrong pay scale and grade from August 2021 to February 2022. The claimant states she was placed on the 2020 pay scale instead of the 2021 pay scale. She alleges she was treated different to Wayne O’Dwyer who did the same role as her but who was put on the correct pay scale.

2.1.1.2 When the above was corrected in March 2022, did the respondent fail to rectify the mistake and reimburse the difference in pay for the above period.

2.1.1.3 Cited her health condition to deny her the opportunity to work overtime between June 2022 and 19 January 2023.

2.1.2 Did that breach the implied term of trust and confidence? The Tribunal will need to decide:2.1.2.1 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

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

2.1.3 Did that breach the claimant’s statement of terms and conditions?

2.1.4 Did the breaches either singularly or together amount to 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.

2.1.5 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.

2.1.6 Did the claimant affirm the contract before resigning? The Tribunal will need to decide whether the claimant’s words or actions showed that she chose to keep the contract alive even after the breach(es). 3. Direct Religious Discrimination

3.1 The claimant is a Christian.

3.2 Did the respondent do the following things:3.2.1 In the workplace concerns and resolution investigation report of 14 April 2023, the respondent’s investigating manager told the claimant that her conversation with a colleague about faith and LGBT was inappropriate for the workplace.

3.2.2 In the workplace concerns and resolution investigation report of 14 April 2023, the respondent’s investigating manager recommended the claimant receive comprehensive and bespoke EDI and unconscious bias training.

3.2.3 In the workplace concerns and resolution investigation report of 14 April 2023, the respondent’s investigating manager stated the use of the term blood of Jesus in the workplace was not appropriate.

3.3 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. The claimant has not named anyone in particular who she says was treated better than she was. The claimant relies on a hypothetical comparator who is not Christian.

3.4 If so, was it because of religion?

3.5 Did the respondent’s treatment amount to a detriment? 4. Direct Sex Discrimination

4.1 Did the respondent do the following things:4.1.1 Act on the claimant’s concerns regarding verbal abuse from a mini cab driver on 19 August 2022.

4.1.2 Act on the claimant’s concerns regarding verbal abuse from a police officer on 20 August 2022.

4.1.3 Complaints were made against the claimant (the collective grievance) on or before 14 March 2023.

4.2 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. The claimant has not named anyone in particular who she says was treated better than her. Therefore, she relies on a hypothetical comparator who is a man.

4.3 If so, was it because of sex?

4.4 Did the respondent’s treatment amount to a detriment? 5. Harassment related to sex

5.1 Did the respondent do the following things: 5.1.1 Fail to support the claimant or intervene when the police ignored the claimant and verbally assaulted her in August 2022.

5.2 If so, was that unwanted conduct?

5.3 Did it relate to sex?

5.4 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?

5.5 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. 6. Direct Disability Discrimination

6.1 The respondent concedes the claimant’s lower back condition amounted to a disability. The claimant’s condition was diagnosed in April 2022 and the respondent had knowledge from 18 May 2023.

6.2 Did the respondent do the following things: 6.2.1. Stop the claimant from doing overtime from June 2022 until 19 January 2023.

6.3 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 (including in respect of disability a person’s abilities). The claimant says she was treated worse than Stephen Burroughs who has asthma and disabetes.

6.4 If so, was it because of the claimant’s disability?

6.5 Did the respondent’s treatment amount to a detriment? 7. Unauthorised deductions 7.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted? 8. Breach of Contract

8.1 Did this claim arise or was it outstanding when the claimant’s employment ended?

8.2 Did the respondent do the following: 8.2.1 Fail to pay the claimant the correct wages between August 2021 and February 2022.

8.3 Was that a breach of contract?

Findings of Fact

[13]My findings of fact do not seek to address every point about which the parties disagree. I only deal with the points that are relevant to the issues as finalised on 4 March 2025.

[14]The claimant commenced employment with the respondent as a CCTV Officer in the parking services division in 2010 and she transferred to the public CCTV team on 1 August 2021. Her original statement of employment particulars was included in the bundle at pages 125 – 133. CCTV Team

[15]The respondent’s public CCTV team operate over 2000 CCTV cameras in Hammersmith & Fulham. The CCTV team comprised 8 CCTV operators including the claimant, two supervisors, Mr. Alba & Mr. Moultesz, and responsibility for the staff sits with Mr. Thurlow. The claimant was the only female in the team.

[16]The respondent requires its CCTV operators to obtain an SIA qualification as they monitor the cameras in Hammersmith & Fulham and as a contractor for other local authorities.

[17]As set out in Mr. Alba’s statement, the team’s main purpose is to deter crime, capture evidence footage for police investigations and to assist the police in real time incidents. The team are in constant contact with the police via their radio channels and they are involved in safety critical work that is often time sensitive. The team operates 24 hours a day 7 days a week and on any one shift there are two CCTV operatives. The normal shift pattern in the team is 4 days on and 4 days off over 8 days, and the standard shift is 12 hours. Salary

[18]When the claimant transferred to the public CCTV team, she received revised terms and conditions effective from 1 August 2021 and they were included in the bundle at page 146. The claimant was placed on the respondent’s 2020 pay scale 5, point 15, which equated to £28,005 per annum. This was confirmed by reference to the respondent’s 2020 pay scale included in the bundle at page 134.

[19]Ms. Harding gave evidence regarding the respondent’s staff pay negotiations in respect of the 2021 pay award in her witness statement at paragraph 5. She stated all staff were on the 2020 pay scale until March 2022 due to protracted negotiations with the respondent’s trade unions. Only in March 2022 were all staff placed on the 2021 pay scale and they received back pay to 1 April 2021.

[20]This was confirmed in the respondent’s intranet story included at page 739 of the bundle. The claimant stated she did not see that story and she received no direct communication from the respondent regarding the 2021 pay award.

[21]The claimant’s March 2022 wage slip was included in the bundle at page 702, and a fuller version was supplied by the respondent on 6 March 2025, and it shows the increase in the claimant’s salary to £31,155, scale 6, point 20 of the respondent’s 2021 pay scale. This was included in the bundle at page 736. It also shows payment for arrears of pay from 1 April 2021.

[22]The claimant alleged her colleague Mr. Wayne O’ Dwyer was placed on the 2021 pay scale when he commenced employment with the respondent one month after her on 1 September 2021. His letter of appointment was included at page 155 of the bundle. His starting salary was scale 6, point 20, which equated to £30,618 per annum on the respondent’s 2020 pay scale.

[23]Mr. O’ Dwyer was placed on the 2021 pay scale in March 2022 and this was confirmed in his pay slip included in the bundle at pages 731 – 734. His salary was uplifted to £31,155, scale 6, point 20 of the respondent’s 2021 pay scale, the same as the claimant.

[24]There was some confusion amongst the respondent’s witness regarding Mr. O’ Dwyer’s starting salary. Mr. Alba told the Tribunal both the claimant and Mr. O’ Dwyer were placed on scale 6 only after they completed their SIA licence training. He informed the Tribunal that Mr. O’ Dwyer was in possession of an SIA licence but it had expired, and he was only required to undertake refresher training whereas the claimant had to do the full training course.

[25]The claimant completed her training on 21 October 2021 and her salary was amended in November 2021 to scale 6 as set out in her November 2021 wage slip included in the bundle at page 698 and in a letter from the respondent included at page 159.

[26]However, Mr. Thurlow accepted and Ms. Harding changed her evidence from the information contained in her witness statement to accept that Mr. O’ Dwyer was placed on scale 6 of the respondent’s 2020 pay scale directly upon appointment despite not having completed his refresher training. 1:1s

[27]The claimant had monthly 1:1s with her supervisor Mr. Alba. Copies of the 1:1 handwritten notes were included in the bundle. The claimant stated in evidence she was unaware of what Mr. Alba was writing as he hid the forms from her when he was completing them. The claimant implied Mr. Alba altered the forms after their meetings and on occasion he would ask her to sign blank forms.

[28]In evidence, Mr. Alba confirmed he categorically did not ask his team to sign blank forms, nor did he alter them after meetings. I was provided with no evidence to support that allegation, and I preferred Mr. Alba’s evidence on this point.

[29]On 3 March 2022 Mr. Alba raised issues with the claimant regarding her communication with the police. This is noted in the 1:1 record included in the bundle at pages 185 - 187. The note refers to the extra sheet information.

[30]The extra sheet information was included at page 188 of the bundle, and it is titled LEMMA issues and set out 6 specific logging issues namely, the claimant had not included or incorrectly included the location of cameras. During that meeting Mr. Alba advised the claimant that as a result she would be subject to a three month performance review period.

[31]Mr. Alba also informed the claimant that he had received verbal and in person complaints regarding her communication style from the police. They were not written complaints. Mr. Alba stated the claimant wasn’t the only CCTV operator who received complaints but she had more complaints than the others. The police struggled to understand her instructions and Mr. Alba set the claimant three targets; take time when logging incidents, keep comms brief and clear and remember to take breaks.

[32]During that 1:1 the claimant also informed Mr. Alba that she was experiencing back pain and she had an x ray regarding that. The claimant rated her happiness score at 7 and she signed the 1:1 form.

[33]On the 13 April 2022 the claimant was required to leave her shift early as she was unwell.

[34]The following day Mr. Alba and the claimant had their next planned 1:1. Prior to their meeting at 4.05pm, Mr. Alba sent the claimant an email highlighting that he believed she had arrived late for work on four separate occasions since their last meeting. He wanted to discuss that with the claimant, and he also stated in the email “it can be seen as fraud if you are being paid to be here and you are not actually here”. A copy of the email was included in the bundle at page 198. The claimant responded at 10.07pm with her explanations and her email was included in the bundle at page 197.

[35]A copy of the 1:1 form dated 14 April 2022 was included in the bundle at pages 191 – 193. Mr. Alba informed the claimant that her logs had improved and there had been fewer complaints save for an issue involving Prevent. They also discussed the lateness concerns, the fact that claimant had been diagnosed with anaemia, and that she was doing a course at university and didn’t intend to be there in 2 years time. The claimant confirmed her happiness score remained at 7 and Mr. Alba recorded the claimant would like a reduction in her shifts from 12 to 8 hours subject to her travel arrangements. Mr. Alba agreed to reduce the claimant’s shifts.

[36]Mr. Smith referred the claimant to Occupational Health in April 2022 at her request and given she had to leave work due to feeling unwell on 13 April 2022 and she been diagnosed with anaemia. That referral was included in the bundle at pages 164-166 and the Occupational Health report dated 29 April 2022 was included in the bundle at pages 206 - 207. The Occupational Health advisor confirmed the claimant was fit for work but would benefit from a temporary reduction in hours.

[37]The claimant’s shifts were reduced from 12 hours to 8 hours effective from 1 May 2022 and she worked 3 days on and 5 days off thereafter.

[38]The next 1:1 took place on 13 May 2022 and that form was included in the bundle at pages 208 – 210. The claimant raised an issue with PC 51 who wasn’t engaging with her on the radio, and she confirmed she would be happy to undertake further radio training. In relation to her health, the claimant stated the reduction in hours had helped and her happiness score had increased to 8 as a result. Unfortunately, there had been some further log errors and complaints regarding her communication style. Overtime

[39]Between June 2022 and January 2023, the claimant alleges the respondent reduced her ability to work over time because of her health condition and she also alleges that was direct disability discrimination as the respondent accepts her lower back condition amounted to a disability.

[40]The team’s overtime record for the duration of the claimant’s employment was produced at pages 678-679 of the bundle. Mr. Brown worked the highest levels of over time during that period and the claimant had the lowest level of the team. However, the team, save for the claimant, had comparable over time earnings during this period and therefore, it doesn’t appear that one operative had more access to over time than any other. Furthermore, the claimant was absent from work for 1.5 months in 2022 and 8 months during 2023 when she was unable to work over time.

[41]Mr. Alba stated in evidence that voluntary over time was open to anyone in the team to volunteer for by checking the gaps in the rota on the team’s teams channel and it was allocated on a first come first served basis. However, the claimant stated in evidence that she had also been approached to do over time by text and email, and that was supported by the text messages at page 779 of the Bundle. I accepted that both channels were used by the respondent to cover gaps in the rota.

[42]The claimant asserted that Mr. Stephen Burroughs in particular undertook a lot of over time, and he also worked 8 hour shifts. Mr. Alba confirmed that he did work over time as he lived a short walk from the office and was partially retired, and as he also worked 3 x 8 hour shifts per week he had more availability than those who worked full time and he also didn’t work nights. Mr. Thurlow confirmed Mr. Burroughs has asthma and diabetes and is unable to work past midnight and that was reflected in his shift pattern.

[43]During 2021 the claimant earned an average of £625.53 per month in over time and that figure varied each month. During 2022 the claimant earned an average of £127.16 per month in over time. However, the claimant was absent from work due to sick leave from 19 August 2022 until the beginning of October 2022 and was unable to work over time, but she did work over time every month prior to that in 2022. However, she did not work over time in October, November, December 2022 and in January 2023.

[44]There was a note on the table at page 678 of the bundle which states GS (Mr. Smith) recommended the claimant undertake no further over time due to medical recommendation on 15 December 2022. Mr. Alba confirmed in evidence that Mr. Smith did state the claimant should not undertake over time from 15 December 2022 as he wanted to protect her rest days.

[45]The Occupational Health report dated 15 December 2022 was included in the bundle at pages 283 – 284. It described the claimant’s various medical conditions, and it stated the claimant was fit to work without restriction but she would benefit from a DSE assessment.

[46]I accepted Mr. Alba’s evidence that Mr. Smith told him the claimant could not work over time from 15 December 2022 but that could not have been because of the Occupational Health advice. Mr. Alba was sent a copy of that report and was aware the claimant could work without restriction. However, I accept Mr. Smith made that decision.

[47]Mr. Thurlow realised that Mr. Smith had erred in that instruction and apologised to the claimant for that error in his email of 13 June 2023 included in the bundle at page 752 of the Bundle. Taxi Incident

[48]Mr. Alba referred the claimant to Occupational Health again in September 2022. This followed an incident that took place at the respondent’s premises on 19 August 2022. It was during a public transport strike and the respondent had booked a mini cab to collect the claimant and take her to the office. The claimant understood the mini cab had been paid for by the respondent but upon arrival the driver expected payment from the claimant which she refused. This resulted in a verbal altercation between the two that was caught on the respondent’s CCTV cameras. The claimant said she felt vulnerable as it was late at night, she was alone, and the driver followed her onto the respondent’s premises to seek payment from her even though she had told him the respondent had already paid. In evidence the claimant stated she was well supported on the day by Mr. Moultesz but not by the respondent after the incident. She stated if she didn’t proactively chase the respondent about the incident, she didn’t know what was going on.

[49]The claimant reported the incident to the police on 20 August 2022 who she alleges were abusive in response. She felt that her concerns were not given due consideration by the police. She alleged the officer who received her report suggested she was at fault for not paying the driver and he declined to investigate her complaint about the mini cab driver.

[50]As the claimant remained concerned about the incident, Mr. Thurlow organised for the Neighbourhood Police Inspector Debbie Fields to review the officer’s decision not to investigate and to call the claimant directly to discuss it. He stated in evidence this is not something the public or other members of staff would be able to access as it was due to his police contacts.

[51]Inspector Fields told the claimant the police would not be pursuing the matter and if she wanted to pursue a legal claim it would need to be a civil action. The claimant was unhappy with the response from Inspector Fields as she believed she had spoken the officer who dealt with her on the day, and she preferred his version of events.

[52]The claimant commenced sick leave on 19 August 2022 and she was absent until the beginning of October 2022.

[53]The Occupational Health report dated 29 September 2022 was included in the bundle at pages 259 – 260. It records the claimant was off work because of the incident and the reaction of the police officer. The claimant informed the Occupational Health advisor the police officer treated her like the criminal and that concerned her given her role is to work with the police. The occupational health advice was a phased return and to work shorter shifts for a period of 2-4 weeks. Return to Work

[54]In evidence the claimant stated the respondent’s Employee Assistance Programme (EAP) advised that she complain about the mini cab driver on his company website, and she should investigate the possibility of a legal claim. She asked the respondent questions to establish whether she had such a claim. As a result, Mr. Smith reviewed the CCTV footage of the incident and there was an exchange of heated emails between the claimant and Mr. Smith culminating in a response from Mr. Smith on 14 October 2022 at page 261 of the bundle confirming the respondent would not be taking forward a civil claim on the claimant’s behalf as the incident appeared to be 50/50 and that was insufficient to proceed. In his evidence, Mr. Thurlow stated the respondent would follow the same procedure for any member of staff in those circumstances.

[55]On 26 November 2022 Mr. Smith wrote to the claimant and informed her that he had had discussions with the police, and he had concerns that she was not able to follow instructions or to act in a professional manner while dealing with the police. That email was included in the bundle at pages 277 & 288. The claimant emailed Mr. Smith in response, and she then reached out to Mr. Thurlow to discuss the email exchanges between herself and Mr. Smith.

[56]The claimant’s email to Mr. Thurlow dated 16 December 2022 was included in the bundle at page285. Mr. Thurlow agreed to speak with the claimant and he also had a meeting with Mr. Smith on 21 December 2022 that he captured on one note. That note was included in the bundle at page

286. Mr. Smith recounted the chronology of events to Mr. Thurlow and they agreed Mr. Alba would set targets for the claimant in the new year and she should have additional police training.

[57]Mr. Thurlow did not keep a record of his discussion with the claimant, but she was sure their meeting also took place on 21 December 2022 but Mr. Thurlow couldn’t recall if that was correct nor what they discussed. The claimant stated in evidence that she expected Mr. Thurlow to intervene between her and Mr. Smith but that did not happen and he did not get back to her after their meeting.

[58]The next 1:1 took place with Mr. Alba on 3 January 2023 and that note was included in the bundle at pages 288-290. The claimant confirmed she had experienced an issue with Mr. Smith, but she wanted to start the year with a clean slate. There were no issues with the claimant’s team members from her perspective, and she was to attend Hammersmith Police Station on 10 January 2023 for police training.

[59]In February 2023 seven of the claimant’s colleagues separately submitted workplace concerns regarding her behaviour including both supervisors and Mr. Smith. A summary of the concerns were included in the bundle at pages 341 - 343. The concerns related to comments made by the claimant regarding LGBT issues, autism and Christianity in the workplace.

[60]In evidence Mr. Alba stated he had been advised to put his concerns regarding the claimant in writing by Mr. Robin Collins, who is one of the respondent’s HR Business Partners. Given he was the claimant’s supervisor, I asked whether he felt that was unusual advice given he was and had been managing her performance. He agreed in hindsight perhaps it was, but he worked two shifts in a row with the claimant around that time and on the first shift he had witnessed the claimant’s interaction with the police, who were asking the claimant to repeat everything, and she was shouting into the radio. However, the following day when they were both on shift again, there was no issue with her communications with the police.

[61]That was the final straw for Mr. Alba, namely, the claimant’s inconsistency with her police communications. He said it was embarrassing for the team, he was at the end of his tether, and he needed senior management to step in. Therefore, he submitted his concerns. He stated he had gone above and beyond for the claimant including reducing her hours, moving her shifts, she wasn’t working during the team’s peak hours, and they had organised a sit stand desk following her DSE assessment.

[62]In his witness statement Mr. Alba stated he felt the claimant may have been deliberately frustrating the police and he stood by that evidence when questioned. He referred to the difference in the claimant’s demeanour on those two shifts to support his belief. In response the claimant stated she did not have an anti-police attitude. She had worked with the police in her previous role and in her work since leaving the respondent and she has relatives who are police officers.

[63]I did not accept the claimant would interfere with public safety by deliberately obstructing the police whilst employed by the respondent, but following the incident in August 2022, her trust in the police had been shaken and that may have subconsciously played a part in her subsequent interactions with the police. Workplace Concerns

[64]Mr. Thurlow informed the claimant that concerns had been raised about her by colleagues on 13 March 2023. He informed her that Ms. Ellis would be investigating the concerns, and he confirmed that in his email of the same date included at page 381 of the bundle. When asked whether he believed the collective grievance raised against the claimant was because of her sex, Mr. Thurlow said it had nothing to do with that.

[65]Ms. Ellis wrote to the claimant on 20 March 2023 confirming who had raised the concerns against her. That letter was included at pages 395 – 396 of the bundle.

[66]The claimant stated she didn’t receive that letter and the first she became aware of who had raised the concerns was on 24 March 2023 when she received a summary by email and that was included in the bundle at page 392. The claimant became unwell on 28 March 2023 and she was declared unfit due to stress at work on 29 March 2023. The claimant did not return to the workplace before her resignation.

[67]Ms. Ellis completed her investigation into the workplace concerns regarding the claimant on 14 April 2023. Her report was included in the bundle at pages 446 - 460. Four complaints were partially upheld;(a) two concerns raised by Mr. Nathan Lesley regarding his conversation with the claimant on 4 February 2023 in relation to sexuality, Christianity and his autism diagnosis,(b) one concern raised by Mr. Ryan Moultesz regarding a conversation with the claimant about children, sexuality and Christianity and, (c) one concern raised by Mr. Mark Dennis in relation to the claimant using the words “blood of Jesus” and a derogatory remark she allegedly made about Mr. Smith.

[68]In evidence the claimant accepted she used the term “blood of Jesus” and that she had called Mr. Smith a snake in the presence of Mr. Dennis, which she does not regret, but she was talking to herself so she did not understand why he would be offended.

[69]She accepted the conversation with Mr. Lesley took place, but it was consensual, and they had a difference of opinion, but it was not a major issue from her perspective. However, when it became apparent Mr. Lesley was upset she apologised to him.

[70]Regarding Mr. Moultesz again it was a two way conversation and she was expressing her views.

[71]Ms. Ellis concluded the conversation with Mr. Lesley was not appropriate in the workplace. Mr Moultensz’s complaint was partially upheld as it was a consensual conversation, but it had the potential to cause offence and therefore it was also not appropriate in the workplace. Finally, in relation to Mr. Dennis’s complaint again, references to the “blood of Jesus” were not appropriate in the workplace. Notwithstanding four of the concerns regarding the claimant’s conduct were upheld, Ms. Ellis concluded there was no case for the claimant to answer at a formal disciplinary hearing, but she made several recommendations both for the claimant and the team.

[72]She recommended the team manager and supervisors receive performance management training, as the team had tried to manage the claimant by using the workplace concern procedure rather than the appropriate policy, the team were to be made aware of the importance of confidentiality, the team should receive bespoke and comprehensive Equality, Diversity & Inclusion (EDI) and unconscious bias training and a value and behaviours framework should be created for the team.

[73]Regarding the claimant, Ms. Ellis recommended specific EDI training as with the team, a back to work support plan, she raised the possibility of mediation, and redeployment could be considered for the claimant. The claimant was provided with the report on 11 May 2023.

[74]On 8 May 2023 the claimant submitted a grievance against her colleagues who had raised concerns about her and the HR Business Partner Mr. Collins. Her grievance alleged discrimination, victimisation, unfair treatment, false allegations, a smear campaign, her religion and verbal conduct, loss of earnings (in respect of over time) and bullying and harassment. Ultimately, the claimant felt targeted by her team and discriminated against. The claimant’s grievance was included in the bundle at page 492. Resignation

[75]The claimant resigned with immediate effect on 17 October 2023. Her email resignation was included in the bundle at page 656. She stated she was resigning because of constructive dismissal. By this date the claimant had been on long term sick leave since 28 March 2023 and her absence was being managed. She attended a final long term absence review meeting on 18 September 2023. The outcome of that meeting was provided on 22 September 2023, and it was decided the claimant was to be referred to a Chief Officer hearing in line with the respondent’s Long Term Sickness Absence policy. A copy of that letter was included in the bundle at pages 654-655.

[76]When I asked why she resigned when she did, the claimant stated she didn’t believe she would progress with the respondent, she had also requested all her wage slips in August 2023 as she never believed that her payments were correct despite regularly querying it with Mr. Smith with no satisfactory answers and her wage slips concerned her and finally, she was unwell. Therefore, she chose to resign with immediate effect and that decision had a huge impact on her family due to her worsening financial situation, and she was required to use foodbanks and her mental and physical health suffered.

[77]After her employment terminated, the claimant received the outcome of her grievance on 22 December 2023, and this was included in the bundle at pages 664 - 671. The investigating officer decided the claimant had been treated unfairly by her colleagues when they submitted their collective grievance, and although unfair, this was not on the grounds of any protected characteristic. They were following HR advice.

[78]The claimant’s ability to work over time was also considered and the conclusion was the team manager (Mr. Smith) had decided that once adjusted hours were in place the ability for an officer to work over time was not advisable, but this was not communicated to the claimant nor was it occupational health advice. That part of her grievance was not upheld. Submissions

[79]The respondent provided written submissions on 6 March 2025 and the Claimant made oral submissions. Respondent

[80]The respondent submitted the claimant was subject to various complaints from the police regarding her communications with them. There were also concerns regarding the claimant’s logging skills. Also, her behaviour at work led to a series of complaints from her colleagues. Some of those complaints were upheld by Ms. Ellis who made a series of recommendations. The claimant was absent from work between 28 March 2023 and 17 October 2023 when she resigned shortly after being informed that she would be moving to a process that could result in her dismissal.

[81]The respondent maintained the claimant had not shifted the burden of proof in respect of any of her discrimination complaints, and almost all of them had been submitted out of time and all her claims should be dismissed.

[82]In relation to the constructive unfair dismissal claim, the position regarding the claimant and Mr. O’Dwyer’s pay and the backdating of the 2021 pay award as described by the claimant did not occur and therefore those allegations could not amount to a breach of contract. The claimant was paid at her contractual rate at all times.

[83]Regarding the over time allegation, the claimant did in fact work overtime during 2022, it was voluntary and at no point did the claimant complain that she had been prevented from doing so. Therefore, again this could not be a breach of contract and the respondent had reasonable and proper cause for its actions and they were not calculated or likely to damage or destroy the implied term of trust and confidence.

[84]Even if any of the allegations did amount to a breach of contract the claimant waived any such breach as she remained in employment for many months following the pay issues being resolved.

[85]Regarding the direct religious discrimination complaints, the respondent submitted the complaints made by the claimant did not amount to a detriment, she did not adduce any evidence to show that she was treated less favourably to a comparator and there were no facts from which the Tribunal could properly and fairly conclude the difference in treatment was due to religion. There was a non discriminatory reason for all the conduct complained of namely the conversations between the claimant and her colleagues that she accepts took place and the recommendation for EDI and unconscious bias training was as a result of the need to improve the relationships and working environment within the CCTV team generally.

[86]The respondent submitted in relation to the direct sex discrimination and harassment complaint regarding the incident with the mini cab driver and the police response, the respondent did in fact address the claimant’s concerns regarding the police. Notwithstanding the respondent is not responsible for the actions of the police, the respondent arranged for the claimant to meet with Inspector Fields to discuss her concerns. There was no evidence of any dismissive attitude towards the claimant, the CCTV footage of the incident was reviewed by Mr. Smith and the respondent took legal advice. The claimant failed to identify what more could have been done by the respondent.

[87]Therefore, there was no evidence the respondent’s actions were unwanted, the claimant was seeking its support. There was no evidence the actions the respondent took were to create a prohibited environment for the claimant. This did not amount to a detriment or less favourable treatment and the claimant did not adduce any evidence to show that she was treated less favourably to a comparator and there were no facts from which the Tribunal could properly and fairly conclude the difference in treatment was due to sex.

[88]In relation to the collective grievance direct sex discrimination complaint, again the respondent disputed this amounted to a detriment and the claimant did not adduce any evidence to show that she was treated less favourably to a comparator and there were no facts from which the Tribunal could properly and fairly conclude the difference in treatment was due to sex.

[89]The direct disability discrimination complaint related to the claimant’s ability to work overtime. Any restriction on overtime was a misunderstanding and the claimant did not provide any evidence to show that she was treated less favourably than Mr. Burroughs or a hypothetical comparator. Mr. Burroughs is not an appropriate comparator as his circumstances were materially different to the claimant both in terms of his hours of work, his abilities and capabilities. Furthermore, there were no facts from which the Tribunal could properly and fairly conclude any difference in treatment was due to disability. Any detriment was not due to disability.

[90]Finally, the unlawful deduction from wages claim was submitted out of time and there was no breach of contract so the Tribunal does not have jurisdiction to hear those claims. Claimant

[91]The claimant submitted that she is a qualified HR professional and as such she knows what to expect from conduct in the workplace.

[92]In relation to her direct sex discrimination claim she was verbally abused by the mini cab driver and the police officer and not supported by the respondent. She was traumatised and off sick for nearly two months as supported by the fit note from her GP included at page 259 of the bundle. The police did not undertake any investigation and she was not protected and the driver was trespassing on the respondent’s premises. She was a vulnerable as a woman in the dark with an aggressive male and the respondent was responsible for her safety.

[93]Regarding the complaints made against her, they were opinion conversations between herself and Mr. Lesley regarding his autism. The claimant also submitted she has a lower back condition and both Mr. Lesley and herself are protected under the Equality Act 2010 and for a grievance to have been submitted against her it was sex discrimination.

[94]Mr. Thurlow stated at paragraph seven of his witness statement that he spoke to Inspector Fields but there was no proof of that. She was not supported by the respondent at all and they investigated the mini cab incident themselves and came up with their own report.

[95]Her ability to work overtime between June 2022 and January 2023 was reduced and she only did a few hours. In comparison to Mr. Burroughs, who did many hours of overtime and he couldn’t work past midnight due to his health issue.

[96]In conclusion the claimant submitted the evidence was clear and she has proven enough injustice has been done to her. Her grievance outcome was provided sox months after she submitted it and that was no way to conduct an investigation. She has been subjected to a lot of stress as a result of the grievance.

[97]Finally, Ms. Harding changed her evidence under oath and that must impact on her credibility. The Law Constructive Unfair Dismissal

The Law

[98]An unfair dismissal claim can be pursued only if an employee has been dismissed. As set out in Section 95(1)(c) and s.136(1)(c) Employment Rights Act 1996 an employee is dismissed by her employer if: “the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct.”

[99]In the leading case of Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

Lord Denning stated:“ If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.” This is an objective test, and it is not sufficient the employee subjectively perceives a fundamental breach of contract.

[100]To claim constructive unfair dismissal an employee must establish;(i) there was a fundamental breach of contract on the part of the employer,

(ii) that caused the employee to resign and,

(iii) she did not delay too long in doing so thereby affirming the breach. An employee can resign in response to a breach of an express term of the contract or an implied term of the contract, including the implied term of trust and confidence. The claimant relies on both.

[101]One of the implied terms of employment contracts is the implied term of mutual trust and confidence as confirmed in Courtaulds Northern Textiles Limited v Andrew [1979] IRLR EAT. In Malik and Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

, the House of Lords stated an employer shall not “…without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.”

[102]In Morrow v Safeway Stores plc

[2002] IRLR 9

, the EAT held that a breach of the implied term of mutual trust and confidence is inevitably fundamental. The Tribunal must determine whether the employer’s conduct complained of by the employee has a reasonable and proper cause, and if not, whether the conduct was calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence.

[103]In Sharfudeen v TJ Morris t/a Home Bargains EAT 0272/16/LA, the Employment Appeal Tribunal confirmed that even if the employee’s trust and confidence in the employer is in fact undermined, there may be no breach, if viewed objectively, the employer’s conduct had reasonable and proper cause.

[104]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

, the Court of Appeal listed five questions that it should be sufficient to ask to determine whether an employee was constructively dismissed:• What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered their resignation?

• Has the employee affirmed the contract since that act?

• If not, was that act (or omission) by itself a repudiatory breach of contract?

• If not, was it nevertheless a part (applying the approach explained in Waltham Forest v Omilaju

[2004] EWCA Civ 1493

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of mutual trust and confidence?

• Did the employee resign in response (or partly in response) to that breach?

[105]In WE Cox Toner (International) Ltd v Crook

[1981] IRLR 443

, EAT the Employment Appeal Tribunal held that while mere delay by itself does not constitute an affirmation of contract, if the delay went on for too long it could be very persuasive evidence of an affirmation. In Chindove v William Morrison Supermarkers,

UKEAT/0201/13/BA

the Employment Appeal Tribunal concluded affirmation is not just about the passage of time, it is one of conduct. What matters is whether, in all the circumstances, the employee’s conduct has shown an intention to continue in employment rather than resign. Direct Discrimination

[106]Section 13 of the Equality Act 2010 defines direct discrimination as follows: ‘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.’ In this matter the claimant relies on the protected characteristics of sex, religion and disability.

[107]The time limit for pursuing discrimination claims is set out in s.123 Equality Act 2010 which provides. 123 Time limits (1) Subject to 140B proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. (3)For the purposes of this section— (a)conduct extending over a period is to be treated as done at the end of the period; (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

[108]To succeed with a direct discrimination claim a claimant must have been treated less favourably than a comparator because of the protected characteristic. The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly considering whether that treatment is because of the protected characteristic.

[109]A comparator must not share the protected characteristic. S.23(1) Equality Act 2010 provides there must be no material difference between the circumstances relating to each case. In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL Lord Scott explained this means ‘the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class’.

[110]There are additional provisions in respect of direct disability discrimination in terms of the proper comparison to be made. In Bennett v MiTAC Europe Ltd

2022 IRLR 25

, EAT, His Honour Judge James Tayler explained that, in the case of disability discrimination, the relevant circumstances include a person’s abilities, and therefore when assessing such a claim it is necessary to compare the treatment of the claimant with an actual or hypothetical person with comparable abilities.

[111]Tribunals are encouraged to address both stages of the test by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? Again, in Shamoon, the House of Lords commented that by tying themselves in knots attempting to identify a comparator, Tribunals run the riks of failing to focus on the primary question, namely, why was the claimant treated as she was.

[112]The question whether an alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did. This is the ‘reason why’ question and the test is subjective in accordance with Nagarajan v London Regional Transport

[1999] IRLR 572

, HL.

[113]This was confirmed recently in Gould v St John’s Downshire Hill

[2021] ICR 1

, EAT, the Employment Appeal Tribunal stated; ‘The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… the influence of the protected characteristic may be conscious or subconscious.’

[114]However, the fact the claimant has been subjected to unreasonable treatment is not, of itself, sufficient as a basis for an inference of discrimination to cause the burden of proof to shift. This was established by the House of Lords in Glasgow City Council v Zafar

1998 ICR 120

, HL. However, the position may be different if the conduct is unexplained, as held by the Court of Appeal in Igen v Wong

[2005] ICR 931

, CA.

[115]Furthermore, even if a claimant can establish unfair or unreasonable conduct, which may amount to less favourable treatment than that which was (or would have been) meted out to a comparator (whether real or hypothetical) a Tribunal must not automatically assume that such conduct was motivated by the protected characteristic relied on and was thus directly discriminatory. There must be some evidential basis for drawing such a conclusion or adverse inference. Burden of Proof

[116]The standard of proof the Tribunal must apply is the civil standard that is the balance of probabilities. Something asserted by a party can only be a fact if it is shown by sufficient evidence to be more probable than not.

[117]In relation to discrimination claims the burden of proof rule is set out in s.136 Equality Act 2010 which provides where a claimant proves facts from which a tribunal could conclude in the absence of an adequate explanation that the respondent has discriminated against the claimant (a prima facie case), the Tribunal must uphold the complaint unless the respondent proves that it did not discriminate.

[118]How that works in practice was discussed in Igen v Wong

[2005] IRLR 258

, CA & Madarrassy v Normura International Plc

[2007] ICR 867

, CA. In Madarassy the Court of Appeal stated: at the first stage the claimant must prove a prima facie case and, ‘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.’ If the claimant establishes a prima facie case, the second stage is the burden shifts to the respondent to prove it has not committed an act of unlawful discrimination.

[119]Evidence of direct discrimination is unusual and Tribunals can draw inferences from facts, all the relevant surrounding circumstamces and an examination of the actions of the alleged discriminator but motive is not relevant as provided in Ahmed v Amnesty International UKEAT 0447/08. However, clear findings of fact are required. As Lord Justice Peter Gibson stated in Chapman v Simon

1994 IRLR 124

, CA, ‘a mere intuitive hunch… that there has been unlawful discrimination is insufficient without facts being found to support that conclusion’.

[120]However, the burden of proof rule should not be applied in too strict or a mechanical manner. In Hewage v Grampian Health Board

[2012] UKSC 37

, the Supreme Court approved the obiter comments of Justice Underhill in Martin v Devonshires Solicitors

[2011] ICR 352

that there might be cases when there are clear non-discriminatory reasons for the treatment in question without the need to resort to the burden of proof rule. He stated while ‘the burden of proof provisions in discrimination cases… are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination — generally, that is, facts about the respondent’s motivation… they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law’. This was endorsed by the Supreme Court in Efobi v Royal Mail Group Ltd

[2021] ICR 1263

, SC. Harassment

[121]Section 26(1) of the Equality Act 2010 provides that “A person(a) (A) harasses another

(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

[122]Section 26(3) Equality Act 2010 states “In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account;(a) the perception of B,

(b) the other circumstances of the case,

[123]Unwanted conduct can include an omission or failure to act. Whether that conduct is sufficiently serious to ‘violate’ a claimant’s dignity is a question of fact for the Tribunal.

[124]Section 26(1) requires that the conduct in question be related to a relevant protected characteristic. In Hartley v Foreign and Commonwealth Office Services [2016] ICR D17, the Employment Appeal Tribunal held that a Tribunal considering this element of harassment must evaluate all the evidence in the round recognising that witnesses will not readily volunteer that a remark was related to a protected characteristic. Unlawful Deduction from Wages

[125]Section 13 Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless; “(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”

[126]The time limit for presenting unlawful deduction from wages claims is set out in Section 23(2) Employment Rights Act 1996 and that provides. Section 23 complaints to employment tribunals (2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (3)Where a complaint is brought under this section in respect of— (a)a series of deductions or payments, or the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (4)Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. Breach of Contract

[127]Article 4 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 provides that complaints can be pursed before the Tribunal in respect of the recovery of damages or sums if the claim arises or is outstanding on the termination of the employment of the employee. Those complaints must be presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim. Conclusions Constructive Unfair Dismissal

Conclusions

[128]Did the respondent without reasonable and proper cause, by its conduct, breach the implied term of mutual confidence and trust or an express term of the claimant’s contract of employment? The conduct relied on is:(a) Put the claimant on the wrong pay scale and grade from August 2021 to February 2022. The claimant states she was placed on the 2020 pay scale instead of the 2021 pay scale. She alleges she was treated differently to Wayne O’Dwyer who did the same role as her but who was put on the correct pay scale.

(b) When the above was corrected in March 2022, did the respondent fail to rectify the mistake and reimburse the difference in pay for the above period.

[129]The clamant was on the respondent’s grade 5 between 1 August 2021 and 1 November 2021 and then she was placed on grade 6. She was on the 2020 pay scale until March 2022 when the 2021 pay scale was implemented and this was backdated to 1 April 2021.

[130]However, Mr. O’ Dwyer was placed on grade 6 upon appointment. Therefore, they were on differing rates of pay between 1 September 2021 when Mr. O’Dwyer was appointed and until 1 November 2021 when the claimant was placed on grade 6.

[131]The complaint is that Mr. O’ Dwyer was placed on the 2021 pay scale upon appointment while the claimant remained on the 2020 pay scale. That is not factually correct. None of the respondent’s staff were placed on the 2021 pay scale until March 2022 and although Mr. O’ Dwyer was on a higher scale point initially, it was on the 2020 scale.

[132]Regarding the different treatment of Mr. O’ Dwyer upon his appointment when he was placed directly on a higher scale than the claimant, there was no satisfactory explanation from the respondent in relation to that. However, that took place in September 2021 and formed no part of the claimant’s reason for resigning in October 2023. Indeed, she and Mr. O’ Dwyrer were on the same rate of pay from November 2021 onwards.

[133]The claimant also complains the respondent didn’t rectify this mistake and provide her with the relevant back pay in March 2022. Again, this is not factually correct, and the claimant was provided with her 2021 pay award back pay in March 2022 as confirmed in her wage slip.

[134]In relation to the respondent citing the claimant’s health condition (the claimant’s lower back condition) to prevent her from working over time between June 2022 and January 2023, the claimant did work overtime in June & July 2022 as set out in the note at page 678 of the bundle. Between 19 August 2022 and the beginning of October 2022 the claimant was absent from work on sick leave and could not work over time. When she returned to work the claimant did not undertake any over time in October, November or December 2022 or in January 2023.

[135]Mr. Smith informed Mr. Alba the claimant was not to work over time following her phased return to work in October 2022. He informed Mr. Alba this was because of occupational health advice, but that was not correct. The advice was the claimant was to undertake shorter shifts for a period of 2-4 weeks by way of a phased return. Mr. Smith was not available to give evidence as he is no longer employed by the respondent, so we do not know why he gave that instruction to Mr. Alba. The Tribunal noted the heated exchanges between the claimant and Mr Smith in their email correspondence in October & November 2022 which may have played a part.

[136]However, Mr. Alba believed Mr. Smith’s instruction was well intentioned to ensure the claimant had sufficient rest days between her shifts and it was not because of her lower back condition. In any event, the claimant’s sickness absence between 19 August 2022 and the beginning of October 2022 was not due to that condition, it was stress related because of the mini cab incident. Furthermore, the claimant did not assert this behaviour was a reason for her resignation in October 2023.

[137]As the first two allegations are not factually correct, they cannot amount to either an express or an implied breach of the claimant’s contract of employment.

[138]As over time was voluntary it cannot amount to an express breach of the claimant’s contract of employment, it was an alleged breach of the implied term of trust and confidence.

[139]Was the respondent’s behaviour in ensuring the claimant did not work over time between October 2022 and January 2023 calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent and did it have reasonable and proper cause for doing so? I find that it was not. I accepted Mr. Alba’s evidence there was a reasonable and proper cause for doing so i.e. it was a supportive measure given the claimant had experienced a traumatic event in August 2022 and she had only recently returned to work following a period of absence and occupational health advised she work shorter shifts for a period of 2-4 weeks. Working over time would have been inconsistent with that albeit this was not communicated to the claimant properly.

[140]Therefore, I find that in respect of the three allegations regarding the respondent’s conduct, they neither cumulatively or separately, amounted to a fundamental breach of contract entitling the claimant to resign and claim constructive unfair dismissal and as such the claimant was not dismissed.

[141]In the circumstances, the claimant’s claim for constructive unfair dismissal is not well founded and is dismissed. Direct Religious Discrimination

[142]There are three allegations of direct religious discrimination and the claimant alleges the respondent treated her less favourably because of her religion as;(a) Ms. Ellis told her that her conversation with a colleague about faith & LGBT was inappropriate in the workplace,

(b) Ms. Ellis recommended she receive comprehensive and bespoke EDI and unconscious bias training and,

[143]It is factually accurate that Ms. Ellis made those findings and that recommendation in her investigation report regarding the collective grievance submitted against the claimant.

[144]I do not find any of these issues could amount to less favourable treatment because of the protected characteristic of religion given the context of the workplace concerns raised against the claimant and the fact she accepts the conversations took place. Furthermore, the entire team was recommended to undertake EDI training and not just the claimant.

[145]The reason why Ms. Ellis made those findings, and that recommendation were because of the outcome of her investigation.

[146]I did not consider there were facts from which I could conclude in the absence of an adequate explanation that the respondent had discriminated against the claimant.

[147]The only fact relevant is the conversations in question were in part about religion but that alone is not sufficient to shift the burden of proof, and I was not presented with any evidence which indicated something more that the claimant’s religion had anything to do with those findings and recommendation.

[148]The complaints of direct religious discrimination are not well founded and are dismissed. Direct Sex Discrimination

[149]The claimant alleged the respondent treated her less favourably because of her sex by disregarding or failing to reasonably act on her concerns regarding verbal abuse from the mini cab driver on 19 August 2022, the police officer on 20 August 2022 and by the submission of a collective grievance against her on or before 14 March 2023.

[150]I found as a matter of fact that the respondent did not fail to act on the claimant’s concerns regarding the mini cab driver or the police officer. Mr. Moultesz was very supportive on the evening of 19 August 2022 as accepted by the claimant in evidence, Mr. Smith reviewed the CCTV footage of the incident, and Mr. Thurlow asked Inspector Fields to review the officer’s decision not to proceed with a criminal investigation.

[151]What the respondent did not do was support the claimant pursue a civil claim and that was based on advice from its internal legal department as that matter did not have more than reasonable prospect of success and I do not find that was in any way influenced by the claimant’s sex, it was the prospects of success of the case.

[152]Therefore, the respondent did not fail to act on the claimant’s concerns regarding the mini cab driver nor the police officer and as such those complaints are not well founded and are dismissed. In any event those complaints have been presented outside of the statutory time limit for discrimination complaints (the first claim form having been presented on 10 August 2023) and the claimant did not present any evidence or address me on why I should extend time on a just and equitable basis in relation to those allegations.

[153]In respect of the third allegation and the collective grievance. I accept this is capable of amounting to less favourable treatment of the claimant given she was the person about whom concerns had been raised. However, I do not find that less favourable treatment was because of the claimant’s sex.

[154]The reason why the collective grievance was submitted was due to the claimant’s conduct at work. I am satisfied that is the reason the collective grievance was submitted and I was not presented with any evidence which indicated the claimant’s sex had anything to do with it.

[155]In respect of this allegation, I did not consider that there were facts from which I could conclude in the absence of an adequate explanation that the respondent had unlawfully discriminated against the claimant. The only pertinent fact is the claimant is a woman, and all of the complainants were men, but I did not consider that alone sufficient to shift the burden of proof. If I am wrong about that and the burden shifts, then I find respondent did prove there was some other ground for the treatment, namely the claimant’s conduct in the workplace and it had nothing whatsoever to do with her sex. Therefore, this complaint of direct sex discrimination is not well founded and is dismissed. Harassment related to sex

[156]There is a single allegation of harassment, did the respondent fail to support the claimant or intervene when the police ignored her and verbally assaulted her in August 2022.

[157]As a matter of fact, I found the respondent did intervene with the police as Mr. Thurlow spoke to Inspector Fields and asked her to review the police officer’s decision. Therefore, this cannot amount to unwanted conduct and even if it had amounted to unwanted conduct for the reasons provided in respect of the claimant’s direct sex discrimination complaints it was not related to the claimant’s sex. In any event this complaint has been presented outside the statutory time limit (the first claim form having been presented on 10 August 2023) and the claimant did not present any evidence or address me on why I should extend time on a just and equitable basis in relation to this allegation.

[158]Therefore, this complaint is not well founded and is dismissed. Direct disability discrimination

[159]The allegation of direct disability discrimination relates to the respondent preventing the claimant from working over time between June 2022 and January 2023. The claimant’s disability is a lower back condition which the respondent accepted is a disability.

[160]I found the claimant did not work over time between October 2022 and January 2023 because of an instruction from Mr. Smith. I accept that is capable of amounting to less favourable treatment. However, I do not find that the less favourable treatment was because of the claimant’s disability.

[161]The reason why was the claimant had just returned from a period of sick leave (unrelated to her disability), and the occupational health advice from 29 September 2022 was shorter shifts during a phased return and the respondent wanted to protect the claimant’s rest days. There was also underlying tension between the claimant and Mr. Smith. I am satisfied those were the reasons and I was not presented with any evidence which indicated the claimant’s disability had anything to do with this decision.

[162]I did not consider there were facts from which I could conclude in the absence of an adequate explanation that the respondent had unlawfully discriminated against the claimant. The only pertinent fact is the claimant had a disability, which did not cause her to be absent from work, and that was not sufficient alone to shift the burden of proof. Even if the respondent prevented the claimant from undertaking over time between October 2022 and January 2023 because of her health condition, that condition was stress and not the claimant’s disability.

[163]The claimant did refer to Mr. Burroughs being a comparator for the purposes of this claim but I do not agree he was in all the same circumstances as the claimant as he had not returned from sick leave as a result of work related stress. Therefore, I do not find he was an appropriate comparator, and I was not presented with any evidence that a hypothetical comparator in the same circumstances as the claimant would have been treated more favourably.

[164]This claim is not well found and is dismissed. It has also been presented outside the statutory time limit in any event (the first claim form having been presented on 10 August 2023) and the claimant did not present any evidence or address me on why I should extend time on a just and equitable basis in relation to this allegation. Unlawful Deduction from Wages & Breach of Contract

[165]The wages said to be outstanding are those that were payable to the claimant between August 2021 and February 2022. As set out above in respect of the claimant’s constructive unfair dismissal claim, the claimant was provided with her backdated 2021 pay award in March 2022. Therefore, the respondent did not fail to pay the claimant the wages that were properly payable nor was there a breach of contract. Neither complaint is well founded and both are dismissed.

[166]The wages claim was also presented outside the statutory time limit (the first claim form having been presented on 10 August 2023 and the second on 19 September 2024), and the claimant did not present any evidence or address me on why it wasn’t reasonably practicable for her to present her complaint in time.