Miss C Dublin v Greenacre Recruitment Ltd and others: 2216649/2023
EMPLOYMENT TRIBUNALS
Case No 2216649/2023
Between
Miss Carla DublinClaimant(1) Greenacre Recruitment Limited (2) Miss Sharron Rooney (3) London Borough of Ealing SITTING AT: London CentralRespondent
Before
Employment Judge G SmartDate 9 July 2025
JUDGMENT
[1]Following the refusal of the claimant’s application to amend the claim in relation to the first respondent, Greenacre Recruitment Ltd, the claim is dismissed against the first respondent as it contains no complaints against the first respondent.[2]The claim as against the second respondent, London Borough of Ealing, remains and will proceed to a final hearing.
REASONS
[1]An oral judgment with reasons was given on the third day of the hearing 14 May 2025 dismissing both complaints.[2]The Claimant requested written reasons. 1 of 18 Hearing & evidence We had a three day in person hearing.[4]We had the benefit of a bundle of documents which is 477 pages in length.[5]We received a witness statement from the Claimant and three witness statements from Respondent witnesses.[6]All witnesses have been subject to cross examination by the other side and questions from the Tribunal.[7]We had a few additional documents which have been added to the bundle at request of the Tribunal. Findings of Fact Recruitment
Findings of Fact
[8]Two of the Respondent’s witnesses and alleged discriminators, Ms Sharron Rooney (Programme Office Manager) and Dawn Kent-Payne (Assistant Director) made the decision to recruit two agency workers: Maria Goerbe who is the Claimant’s white comparator and the Claimant herself into temporary roles through a recruitment agency.[9]These were the only candidates that were interviewed.[10]They both joined a team which is of mixed ethnicity.[11]Maria Goerbe the comparator started the week before the Claimant.[12]The Claimant had originally discussed with Emma Carroll at the Greenacre recruitment agency a role of Executive Assistant.[13]The Respondent witnesses deny this and say that they do not have such a role. The conversation between Ms Carroll and the Claimant is outside their knowledge, however. We can see from a contemporaneous email that there was communication between the Claimant and Emma Carroll about an Executive Assistant role. That was the role the Claimant was originally discussing at least with Emma Carroll. Claimant’s role[14]On 3 July 2023 the Claimant started her assignment working for the Respondent as a Project Administrator. Allegation 1: Ms Goerbe asked to help despite workload[15]The first allegation is that in the second week of the Claimant’s engagement, either on Tuesday 11 or Wednesday 12 July 2023, Dawn Kent-Payne, Manager of Sharron Rooney in the presence of the Claimant asked Maria Goerbe to “come 2 of 18 with them and help with another meeting” in circumstances in which Maria Goerbe had just complained about her high workload, that is the allegation.[16]The Claimant recalled that a comment had been about workload. We accepted that the Claimant heard Ms Goerbe make a comment about her workload.[17]We accepted Ms Kent-Payne’s evidence that she did not hear a comment about workload. On balance we accepted Ms Kent-Payne’s account that she had not heard Ms Goerbe’s comment. There is no evidence suggesting that she had heard this comment. Catch up discussion & dispute about line manager[18]On 19 July 2023 there was due to be a discussion between the Claimant and Sharron Rooney, there is a document at page 229 which relates to that.[19]What the Claimant says is this was due to be essentially a one to one catch up with her line manager which was Ms Rooney. Ms Rooney denies that she was the Claimant’s manager.[20]In that the email discussion on that day the Claimant says that she had currently broken down on the motorway and she was with her dog, her clutch had gone, awaiting recovery. That was sent at 15:00 which was a working day, a day that the Claimant was to be working from home.[21]The one to one meeting did not take place. The Claimant says that the fact of their being such a meeting demonstrates that Ms Rooney was her line manager and maintains that the Respondent is lying about the status of her line manager. We found that the reality was that Ms Rooney’s responsibility was for a whole team of project workers of which the Claimant was one, who would be allocated to other departments within the Respondent.[22]Confusingly during the course of evidence the Respondents told us that the Claimant’s official line manager was someone called Collette who the Claimant says (which we accept) that she had never met and never heard of.[23]This point of dispute does not need to be resolved, but it is fair to say that Ms Rooney was appointed contact for the Claimant in terms of allocating her different roles but also a point of contact with the agency which the Claimant had been supplied through. Irrespective of her formal status she was from the Claimant’s point of view something akin to a line manager. Allegation 2: Ms Kent-Payne asks Claimant to prompt a colleague[24]The second allegation is that on or around 24 July 2023 Dawn Kent-Payne asked the Claimant to walk over to a staff member who was then visible to both herself, Sharron Rooney and Dawn Kent-Payne in order to request the staff member who was one of Dawn Kent-Payne’s direct reports to reply to Dawn Kent-Payne’s email. 3 of 18[25]Although Ms Kent-Payne does not remember the incident she does not deny making such a request and suggests that she was in the middle of a telephone call and asked the Claimant to chase for some information which she needed urgently.[26]The Claimant disputes that this was the context and says that the two of them were stood up. She also says “I found this degrading and slave like, she could have asked this herself, why ask me”.[27]Although Ms Kent-Payne does not remember this incident we accept the Claimant’s evidence that a request was made.[28]As to the organisational context in which it happened, Ms Kent-Payne was an Assistant Director of the department with in the region of 100 people and the Claimant was a new temporary project worker. We found it fairly unremarkable in the circumstances that Ms Kent-Payne would ask a junior colleague to get another colleague’s attention to respond to an email. This struck us a sort of thing that routinely happens in an office. The Claimant has not suggested that there was any language used that was obviously disrespectful or inappropriate. EDI training[29]On 31 July 2023 the Claimant said she inherited a task of administering some EDI training. She said that people due to receive training were unaware of it and some of it needed to be rescheduled, she explained her low work rate in significant part of August. The Respondents perspective was that was rescheduling was not a huge task. The Claimant was not actually delivering the training which was being delivered by an external agency and in any event this was all over by August. It is clear to us that the Claimant was working on the scheduling of the EDI training in the middle of July, the documents we have suggest that there were workshops which took place on 31 August and also 1, 3 and 4 August. We accept the Claimants evidence in response to something apparently said at the preliminary hearing that this was only an hour and half work but it did represent more than an hour and half of her work. We do not have any evidence that this went beyond 4 August 2023. Allegation 3: certificate uploads[30]The Claimant’s allegation is that in the first week of August 2023 Sharron Rooney gave the Claimant the task of uploading thousands of certificates to the system with a group of other non-white employees.[31]The timing of this is that on 27 July 2023 the Claimant was provided instructions to upload certificates to the system. She was given the job of uploading certificates to do with electrical compliance. The task was to check whether a certificate had been properly uploaded and if not upload it to the “True Compliance” system sometimes abbreviated to TC within the Respondent.[32]There were nine members of this team including Annie Dormer, Ben Carcessat, Cheryl Owolabi, David Kamau who was a witness for the Respondent and Fiona Robinson. Three of these, Annie, Ben and Fiona were white others were nonwhite. Every other person apart from the Claimant was doing this alongside other 4 of 18 responsibilities. The Claimant was the only person doing this taking up the whole or at least most of her working hours subject to small discrete tasks such as training administration. Allegation 4: Ms Goerbe not uploading[33]It is alleged that in the same period Sharron Rooney directed Maria Goerbe to attend meetings and participate in projects and did not direct the Maria Goerbe to share in the task of certificate uploading.[34]We accept that allegation, but with the following comment. On the balance of probabilities, we do not find that the Claimant was ever on a “job share”. We find it somewhat implausible that someone on a temporary contract would have been told they were on a job share.[35]We do find that the Claimant had a temporary role which had the same title as Maria Goerbe and we find that the Claimant may have been told that there were shared tasks. Respondent’s criticisms of the Claimant’s work[36]The Respondent has made some criticisms of work that was carried out by the Claimant.[37]The first criticism is of a document which appears at page 188, minutes of a meeting on 6 July 2023. We can see in that document that there are various amendments made in track changes and various comments. We understand from the Claimant and accept her evidence that she had taken those notes at the meeting on a voluntary basis, essentially to show willing and it seems to us that the comments now made by the Respondent bearing in mind the comments that we have seen in track changes seem a little harsh to the Claimant in terms of her performance. There are a number of comments made suggesting changes but essentially it seems to the Tribunal that the Claimant had produced a useful first draft document.[38]The other area where criticisms are made of the Claimant’s performance at this stage are in creation of an organisation chart. There is an organisation chart that appears at page 222. The Claimant has queried the authorship of that document and pointed out that there is not a document that shows who created it. She has not in terms denied that it was produced by her but rather queried who produced it. On the balance of probabilities we find that this was the document that produced by the Claimant. The criticisms that were made of the organisation chart are that the lines are not fully aligned and go off the page. This document is not complete. There are boxes which are not connected to the rest of the organisation chart. The Respondent has made a point of comparison between that document and a document which appears at page 203, which is a different organisation chart. That second document is much large organisation chart which we can see from page 204 was produced by the Claimant’s comparator Maria. That document does appear to be closer to a finished form. It is neat and all the lines line up. It seems to the Tribunal that there is perhaps here a legitimate point to be made about 5 of 18 whether or not the Claimant’s organisation chart was completely finished. It does not seem to be completely finished document. Allegation 5: certification work query[39]The fifth allegation made by the Claimant is on 21 August 2023, Sharron Rooney and Dawn Kent-Payne complained that the Claimant had not been doing her certification work when she was unable to do so because of working on urgent equality training.[40]We have not seen evidence of a complaint having been made in August, there was a complaint made in September which we will come on to. We note that the Claimant acknowledges that she did slowdown in her work in August and we also note her comment that she found that the work was monotonous. She says believed that was worse for her because she suffered from ADHD. In fact there appears to have been a complaint to the agency on 14 September 2023 by telephone following on a short email sent by Ms Rooney to the agency. Allegation 6: refusal of alternative work & allegation 7:[41]On or around 24 August 2023 the Claimant alleges that Sharron Rooney refused her alternative work in order to relieve the monotony of the certificate uploading task and also taking this together with allegation seven on 24 August 2023 Sharron Rooney identified a new stream of work relating to “bandwidth” but denied the Claimant’s request that she and Maria Goerbe could help. Ultimately the work was carried out by Maria Goerbe and Sharron Rooney at Dawn Kent-Payne’s request.[42]In fact “Bandwidth”, which was the title of the email was simply a reference to understanding how much capacity they had to do some work that she was looking to resource. This tends to suggest that she did not have a tight grasp on what the Claimant was doing. She was also however open to including the Claimant project. Thursday, August 24, 2023 12:13 PM To: Maria Goerbe; Carla Dublin Subject: Bandwidth Hi both Can you please let me know what you are working on at the moment? We have a request to work on another project, just trying to gauge if you have any bandwidth or not. Please advise. Many thanks Sharron Sharron Rooney Interim PMO Manager 6 of 18[43]The Claimant replied: I would love to I’m still doing the certificates but should be done next week. Even if I do half and half to break things up until we have caught up, as this can be so repetitive all day?[44]Ms Rooney replied Thanks Carla How many certs are left? Maybe we can get you both working on the new stuff, I am just trying to find out what they actually need. Leave it with me.[45]The Claimant replied You’d have to speak to David but we need 85% loaded on TC and im guessing were around 75% By next week we should reach 85% hopefully[46]Ms Roony replied OK – blitz those certs first as they are a priority so we can request the notice to be removed. Then once get to 85% please let me know, then we can get you to work on some other projects. Thank you and well done on getting the certs uploaded.[47]To which the Claimant replied No problem Work for leasehold and income department[48]That is then followed up by a communication from Ms Rooney sent not to the Claimant but to Kevin Kalyana who is in a different department interim head of leasehold and income. That email is headed “project resources”. Maria Goerbe is also sent that email. Its made clear to Mr Kalyana that Ms Goerbe is going to be available for some landlord service project. We do not receive much detail about what that project entails. Hi both Following on your request for additional project resource, I am cc’ing Maria who has bandwidth and able to help you with your projects. Maria has been working with Daniel on some Landlord Services projects so she should be au fait with any requirements you may have. 7 of 18 Please contact Maria directly to help you, and if you find you need any additional resources, please let me know, and we can organise accordingly @Maria Goerbe – Kevin/Daria will contact you directly to enlist your help with their projects. Similarly, if you find that you don’t have enough time to perform all your tasks please let me know and we can find additional support. All, if you have any queries please let me know. Allegation 8: instructions withheld[49]The Claimant originally alleged that David Kamau withheld the correct instructions for the certificate uploading task for the end of July 2023 until 18 September 2023 despite requests made by the Claimant asking questions about instructions during this period.[50]The Claimant to her credit accepted during her questions and Mr Kamau that this was in reality no more than a miscommunication between the two of them in essence Mr Kamau she accepted did not really understand what she was asking him. Allegation 9: complaint about work rate[51]The next allegation number nine is on or around 11-18 September 2023 Sharron Rooney complained about the Claimants slow rate of work on the certificate task.[52]The context we find is this that Dawn Kent-Payne had a responsibility to report to the Board on progress with uploading the electrical certificate. She became concerned in September that there was not sufficient progress being made. She made the point that several hundreds of certificates should have been processed each week, and this did not appear to be happening. It was this that lead to the Respondent analysis how many certificates of each of the people doing this work had processed.[53]Someone from compliance called Chen Ko ran a report and there was some analysis.[54]After some initial confusion on the part of the Respondent witnesses in this Tribunal hearing trying to explain the data we understood pages 386-388 that represented Ms Rooney’s summary of work the Claimant had been doing and that is by reference to the underlined data which appears at page 383-386.[55]The data shows certificates that the Claimant had been working on, some had been successfully uploaded and some unsuccessfully loaded and the total.[56]It is the Respondents case that working diligently a worker could process between 100-150 certificates a day, on 19 September the Claimant did manage to achieve that work rate and process 126 certificates. By contrast there were thirteen separate days where the Claimant processed zero certificates and there were other 8 of 18 days where there were very few certificates processed. The Claimant says she had a problem with certificates syncing which she worked out how to resolve on the 18 September 2023 which significantly increased her productivity.[57]The 18 September follows on a few days later after a complaint made through the agent about the Claimants productivity on 14 September. It is right to record that the week commencing 18 September was relatively speaking more productive nevertheless we can see that even without that improvement the Claimant was capable on a good day for example 24 August 2023 processing as many as 73 certificates in one day. The Claimant complains that David Kamau did not give her the right guidance although she asked him about this more than once. Not working from home[58]The Claimant found the work monotonous she says that there were occasions working at home where she was simply crying rather than doing the work, we find the reality is unmonitored the Claimant was not putting in a nine hour day uploading certificates. The Claimant did take one day off the 15 August which was the day before her birthday, but the payslips and authorisation slips that had been submitted suggested that she worked on other days in August although she processed no certificates at all. The picture is not completely consistent, but our impression is that dates where the Claimant was working in the office were broadly speaking ones of higher productivity. Allegation 10: office working day[59]The Claimant’s tenth allegation is that Sharron Rooney on 19 September deprived the Claimant of choice in relation to the second day of the working week when she needed to attend the office despite giving that choice to Maria Goerbe and telling the Claimant that she had the same choice at the outset of her assignment.[60]We find that Ms Rooney did give direction about the Claimant’s attendance at work due to her concerns about the Claimant’s productivity and that she wanted the Claimant in the office with the rest of the team who were doing similar work. There is no evidence of an equivalent problem with productivity in relation to Ms Goerbe. Allegation 11: lack of feedback[61]Allegation eleven Sharron Rooney did not provide the Claimant with feedback about her performance despite requests made by Emma Carroll at Greenacre Recruitment Limited between August and September 2023.[62]The Respondent accepts that feedback came via the agency Emma Carroll and but not directly to the Claimant that happened in September. Ms Rooney’s account was that she did not want conflict, and her practice was to manage agency workers through the agency. We found that it was unremarkable that communication came through the agency. At the end of August Dawn Kent-Payne says that the Claimant was involved in a meeting with her to take minutes which were then produced three weeks after they were redrafted by Ms Rooney. There is email correspondence showing that minute being provided late. 9 of 18[63]Around the middle of September 2023 Mr Kamau handed over leadership of the team to Fiona Robinson. Allegations 12-14: Ms Rooney ignoring Claimant and negative body language[64]There allegations made by the Claimant about Ms Rooney either ignoring her (allegation twelve) or scowling at her (allegation thirteen) or rolling her eyes at her (allegation fourteen).[65]We find that the Claimant was picking up from Ms Rooney’s body language that Ms Rooney was concerned about her performance and we will deal with that in more detail in our conclusions. Allegation 15: termination of assignment[66]Ms Rooney ended the Claimant’s assignment via Emma Carroll from the agency on behalf of the Respondent; telling Emma Carroll incorrectly that the Claimant had not logged into worked on 22 September 2023 and committed gross misconduct.[67]We find that there was on the balance of probabilities something of a mismatch between what was said by Ms Rooney and what was repeated by Ms Carroll. We accept what the Claimant says that Ms Carroll did talk about gross misconduct and not logging in. We find its likely that the term “gross misconduct” was being used as a kind of shorthand since the Claimant was not in fact an employee. We find that Ms Rooney must have said something to Ms Carroll about the Claimant not having done work on 22 September and something gave Ms Carroll the idea that it was something close to gross misconduct. Allegation 16: appeal not considered[68]Sharron Rooney and her manager Dawn Kent-Payne refused to consider an email from the Claimant with evidence showing their conclusion was in correct or speak to the Claimant further after their dismissal without notice.[69]On 22 September 2023 we accept the evidence of Ms Rooney and Ms Kent-Payne that they did look at the email, but it did not change their view, and it is right to say that they did not reply to the Claimant. Allegation 17: no notice pay[70]Sharron Rooney did not give the Claimant any notice that her assignment would end on 22 September 2023 and it is right to say that the Claimant was not given notice and was not paid for any notice period. Tribunal claim[71]The Claimant subsequently presented a claim to the Tribunal on 21 November 10 of 18 Conclusion Harassment[72]We are going to deal with the complaint of harassment related to race under s.26 compendiously i.e. we are going to look at the whole picture rather than each individual allegation. The first question we have to ask and this is in the issues in: 1.2 Was there unwanted conduct?[73]We do not doubt that the actions identified by the Claimant were unwanted by her. 1.3 Was it related to race.[74]The Claimant identifies her race as black.[75]For the complaint of harassment, there is not a comparative exercise e.g. less favourable treatment, it’s not because of race but its relating to race.[76]The “relating to” race may be a direct connection or in may be an indirect connection but there must be a connection. In respect of this we have not found any connection between the unwanted conduct identified by the Claimant and her race as a black person. There is nothing said or done which relates to race or even suggests an indirect connection or allusion to race.[77]The allegation of harassment does not succeed.[78]It has not been necessary for us to deal with the other elements of harassment in view of that finding. 1.4 Direct race discrimination[79]The allegation of direct race discrimination requires us to look at whether any of the actions were because of race.[80]This is a comparative exercise. There is an actual comparator Maria Goerbe. There is also hypothetical comparator.[81]By contrast with the complaint of harassment, this has required us to look at each allegation in more detail to identify whether any of the treatment was because of race.[82]Before we come to the first allegation we have noted that the Claimant was interviewed at the recruitment stage by Sharron Rooney and Dawn Kent-Payne, the alleged discriminators. Plainly they were both aware of the Claimant’s race at the outset. We find that this is not a case where they were reluctant to give her a role working for the Respondent based on her race. That is not an answer to all the allegations since race discrimination may be more nuanced, but that is background context. 11 of 18[83]As to allegation 1, this is about Maria Goerbe being asked to come and help with another meeting. The Claimant accepts, in fairness to her, that she was new in the role and she accepted that that might provide an explanation. She has told the Tribunal that she has never experienced discrimination before in 20 years of employment. For this reason she gave the Respondent the benefit of the doubt to start with, until she experienced further treatment which lead her to question it. It was at that point she started looking back at events more critically.[84]For the Respondent we have Ms Kent-Payne saying that she did not recall Maria Goerbe saying that she had a high workload. We accept that this was something that Ms Goerbe remarked upon but found that it was not something that Ms KentPayne was aware of. The Respondent says that Ms Goerbe was there the week before and had previously been involved in this matter. This evidence was not challenged.[85]We find that Ms Goerbe being asked to go to a meeting rather than the Claimant in these early stages of the two women temping we have not found that this was sufficient establish a prima facia case i.e. the initial burden on the Claimant of discrimination. We note that Ms Kent-Payne did ask the Claimant to accompany her to attend a meeting to take a minute the following month and so we accept the Respondents submission that the burden of proof does not shift in relation to allegation 1.[86]Allegation 2 which is about Ms Kent-Payne asking the Claimant to walk over to a staff member to ask them to reply to an email. We did accept the Claimant’s version of the bare facts, that this did happen. There is minimal context we find on the Claimants recollection so we do not know for example who it is the staff member that was asked to do this and what the precise context was.[87]Ultimately we did not find that a senior employee in this case an Assistant Director asking an agency worker to give a colleague a prompt to respond to an email to be particularly surprising or remarkable. There is nothing about the wording said that was inappropriate. Our conclusion is that there is nothing suggested that race was a factor nor that it might be a factor. We find that the burden of proof is not satisfied by the Claimant.[88]Allegation 3 this is about the task of uploading certificates on to the system with a group of other non-white employees.[89]The way that this allegation was framed is misleading and does not reflect the facts as we have found them. There were three white employees including Fiona Robinson who was a manager who was also doing this task. 12 of 18[90]We noted that all other employees both non-white and white were doing this alongside other responsibilities. In the case of the Claimant this took up much of her time.[91]We accepted the Claimant’s evidence that this was a repetitive, monotonous and boring job. We think that the Claimant found that this was beneath her level and not the kind of thing she was hoping to do when she applied for an executive assistant role and that is understandable we find. That sort of role might be expected to provide varied and interesting work rather than a repeated administrative task.[92]We find that this role probably was worse for the Claimant who suffered from ADHD and she found it demotivating. This was a boring job. Nevertheless we find that it was important and needed doing. It was also a finite job. There were a certain number of certificates that needed checking. Once finished there were different jobs that would need doing.[93]The problem with the Claimants contention in relation to this allegation that it was because of race is that there were white employees who were also doing this job. The facts alleged therefore are not made out and because by implication of the allegation it was only given to non-white employees where as we find it was also given to white employees.[94]Allegation four, that Sharron Rooney directed Maria Goerbe to attend meetings and participate in projects and Sharron Rooney did not direct Maria Goerbe to share in the task of certificate uploading.[95]We find the Claimants contention that she was in a job share with Ms Goerbe was misconceived. They were performing the same role as agency workers and for that reason Ms Goerbe is a good comparator. This allegation has been framed in terms of things that happened to something else, rather than less favourable treatment suffered by the Claimant. This substantially overlapped with allegation 6 which we will deal with below.[96]Allegation five on 21 August 2023 Sharron Rooney and Dawn Kent-Payne complained that the Claimant had not been doing her certification work when she was unable to do so because of working on urgent equality training.[97]The Claimant was rearranging the scheduling of training not delivering it. This cannot have taken all of August. We accept that she spent more than 1.5 hours on this. We accept that this rescheduling took up work on more than one day. The evidence we have is that this training was completed by 4 August. We do not find that this could explain why the Claimant had processed no certificates at on several days in August and very few certificates on many other days in August.[98]The factual basis for this allegation is made out. It is not the case that the Claimant was unable to do the certification work for the entirety of this period and it follows 13 of 18 that it was perfectly appropriate for the Respondent’s managers to question the Claimant’s productivity.[99]Allegation 6 is that on 24 August Sharron Rooney refused the Claimant alternative work, to relieve the monotony of the certificate uploading.[100]The exchange of messages on 24 August 2023 on page 289 is instructive. It shows the following things. First, Ms Rooney was not entirely sure what the Claimant and her colleague Maria were doing at that time. Second, she was considering both the Claimant and Maria for some other work.[101]Third, the Claimant told her that the certification work was going to be completed the following week. In other words the certification work was nearly at an end. Later in the exchange the Claimant clarified that they would get to 85% complete by the following week which was a milestone they were aiming for.[102]Fourth the Claimant was told Ms Rooney that the work was repetitive and she was suggesting that she do half and half to break things up, i.e. she was asking if she could do something else to break up the monotony. That was we find a perfectly reasonable request on the part of the Claimant.[103]Fifth, at that stage it was still unclear what other work was coming up. Sixth, Mr Rooney suggested that the Claimant “blitz” the remaining certificate, which was a priority. Once they have got to 85% of the certificate she had in mind that they could get the Claimant onto other work. The follow up email which is page 291 shows that Mr Rooney offered Maria Goerbe as an available resource to a colleague Kevin Kalyana in the Landlord Services Project.[104]It seems to the Tribunal that Ms Rooney was focussing on getting the important compliance work to the next milestone rather than providing a varied stream of work for the Claimant, this was not an outright refusal but there was a suggestion that the Claimant should keep going on the certification work for now. With the benefit of hindsight it would have been better had Ms Rooney taken up this point about the work being repetitive, mentioned it to David Kamau or perhaps sought another task. Ms Rooney was not aware that the Claimant believed that she ADHD or that she was struggling to the extent that the Claimant has explained to the Tribunal.[105]There are in our view a couple of management failings here. First the Claimant’s output was not being monitored which might have flagged up a problem with her. Second, this question about being repetitive work perhaps could have been explored with her or in some way ameliorated. We are not however carrying out an audit of management practice. The Claimant was a contract worker, she was available to do the work and had some experience of it by this stage although it was not technically demanding. It seems from what the Claimant was saying to Ms Rooney that the work was coming towards an end. By this stage the Claimant and her colleague Maria Goerbe were not in the same situation the Claimant had apparently been working on this work for four weeks or so although in fact unbeknownst to Ms Rooney she had not been applying herself at all on some days, 14 of 18 not doing any work on it, in other words she was in the middle of the task whereas Maria Goerbe had not been working on this.[106]We cannot lose sight of the fact that the Claimant was claiming for and being paid money to do work on days where she did nothing or very little.[107]We have not drawn an inference from the circumstances that race was or reasonably might thought to be the reason for Ms Rooney suggesting that the Claimant keep going with this work. This allegation does not succeed.[108]Allegation seven, that Ms Rooney identified a new stream of work relating to “Bandwidth” but denied the Claimants request that she and Maria Goerbe could help.[109]As clarified in our reasons above, the reference to “bandwidth” was simply the title of the email in which Ms Rooney was trying to understand what the two women were doing.[110]In terms of the reason for the Respondent’s actions, there is similar reason as for the previous allegation. Ms Goerbe was available whereas the Claimant was still in the middle of the certification task. There was a logic to this based on what Ms Rooney understood from the email exchange, i.e. that the Claimant would be available the following week to do some alternative work since the certification work was close to coming to an end. It is not clear from the Claimant’s email at page 289 that she was actually suggesting that Ms Goerbe should do the work. The email suggests most likely that she should do half of this and half of something else. Ultimately though we have not drawn a conclusion from the circumstances that race was or reasonable might be thought to be the reason for Ms Rooney suggesting that Claimant keep going with this work. Given her experience at it and that the finishing post was in sight we can see from Ms Rooney’s point of view it made sense to allow the Claimant to finish this work off.[111]Allegation eight, David Kamau withheld the correct instructions for a certificate uploading the task from July 2023 to 18 September 2023.[112]The Claimant accepted during her evidence under cross examination of Mr Kamau that this was a genuine misunderstanding and race was not a part of it.[113]Allegation nine, that 11-18 September Ms Rooney complained about the Claimants slow rate of work.[114]The Claimant accepted during her cross examination Ms Rooney in answers to the Tribunal question that she had a slow rate of work. She said she was at home demotivated and crying. Ms Rooney’s data shows there were periods where she was doing nothing at all. While the Claimant says that the early discrimination set 15 of 18 the scene for this situation we do not find that complaining entirely accurately about the slow rate of work on certificate task was discriminatory. The entire reason for this complaint was that the Claimant was not doing the work, not her race.[115]Allegation ten, Sharron Rooney on 19 September deprived the Claimant of the choice in relation to the second day of the working week.[116]The Tribunal accepted Ms Rooney’s evidence that by later on in September 2023 she was concerned by the Claimant’s productivity and was concerned about ensuring that she was in the office with other members of the team, that is the explanation we find and not the Claimant’s race.[117]Allegation eleven, Ms Rooney did not provide the Claimant with feedback about her performance despite requests made by Emma Carroll at Greenacre Recruitment.[118]We accept that the Claimant would have preferred to have direct feedback to her but we also accept that Ms Rooney did not want conflict and her practice was to manage agency workers through the agency, her comment on this was “whether you are black or white”. We find that that was her practice generally and she did not want conflict and the Claimants race was not a part of it. Allegations 12, 13, 14[119]The next few allegations we are going to take together: Allegation twelve that Ms Rooney had ignore the Claimant; allegation thirteen which she scowled at the Claimant; and allegation fourteen that she rolled her eyes at the Claimant.[120]Ms Rooney admitted that by this stage she had concerns about the Claimant’s performance. In essence it was not going well. Ms Rooney says that she was professional and nothing about her body language would have given away to the Claimant that she had concerns. We note that body language may operate at the subconscious level. We accept her evidence that she did not scowl or roll her eyes. She had serious concerns about the Claimant’s productivity however and the Claimant clearly picked this up through the body language and her reluctance to engage with the Claimant.[121]We find that the reason for this was the productivity information she had obtained not the Claimant’s race and that is the case that all of those allegations.[122]Allegation fifteen, Sharron Rooney ended the Claimant assignment via Emma Carroll on behalf of the Respondent telling her incorrectly that she had not logged on to work on 22 September and had committed gross misconduct. 16 of 18[123]The Tribunal finds that the chain of communication from Mr Rooney to Ms Carroll and to the Claimant may have set the stage for some miscommunication. We find that Ms Carroll used the expression “gross misconduct” in her discussion with the Claimant and told her the Claimant had not logged in. Strictly speaking this would not be gross misconduct since the Claimant was not an employee it would be a breach of contract.[124]There is evidence that the Claimant had done some work that day there were thirteen certificates that were processed, looking at the matter in the round however the substantial lack of productivity including days on end when the Claimant did not do any of the certificate work was something akin to gross misconduct in the sense that the Claimant was taken wages for not doing work.[125]We find on the balance of probabilities that Ms Rooney had noticed the Claimant had not logged in and had raised it, the fact that the Claimant may have logged it or done some work during that day does not detract from the fact that there had been blameworthy conduct on the part of the Claimant in not doing work and also and also that there were periods where she was not logged in. We find that these communications are completely explicable by refence to the erratic productivity on the part of the Claimant.[126]Allegation sixteen, Sharron Rooney and her manager Dawn Kent-Payne refused to consider an email from the Claimant with evidence showing their conclusion was incorrect or to speak with the Claimant further after her dismissal without notice on 22 September 2023.[127]We find that this email was considered but there was not a response. While the Claimant may have perceived this as being discourteous, in circumstances where the Claimants had failed to do work days and her being an agency worker we find it unremarkable that no further correspondence was entered into on this point, we do not find that the Claimant’s race was anything to do with it.[128]Allegation seventeen, Ms Rooney did not give the Claimant any notice that her assignment would end on 22 September 2023.[129]We find that there was not any contractual entitlement and in the circumstances the Claimant’s failure is to perform work on days on which she was being paid and her being an agency worker we do find it unremarkable that no notice was given or no notice payment made.[130]We find that the Claimants race was not a part of it.
Conclusion
[131]It follows from our findings and conclusions above that we dismiss both the Claimants of harassment and also direct race discrimination. 17 of 18
FINDINGS OF FACT
[132]R1 received feedback from R3 about the Claimant good or bad and this is what happened in practice when R3 had performance concerns about the Claimant (see later).[133]Mrs Carroll on behalf of R1 admitted that the Claimant would come to her as if R1 was human resources if there were any issues to do with R3. However, that was the Claimant’s perception of how things worked. R1’s view was that it was simply acting as an intermediary. Essentially, in my judgment, R1 had taken on the unenviable task of trying to keep everyone happy.[134]Given the above, R1 was not a customer of the Claimant. The Claimant provided no services to R1.[135]It was also clear that R1 failed to pass on any concerns to Paystream, despite saying that it was an intermediary between R3 and Paystream. The relationships between the Claimant and R2, Mrs Kent Payne and R3[136]When discussing R2, the Claimant described a relationship in her witness statement, and in answers to questions, that argued that R2 was her manager whilst at work, and Mrs Kent – Payne was R2’s line manager for the purposes of all work related activity, whilst the Claimant was assigned to R3. Indeed, this is supported by R2’s title whilst she was assigned to R3, which was Programme Office Manager.[137]The Claimant utilised R3’s equipment whilst she was assigned to it such as its laptop computer, which she was asked to return when the assignment was terminated. By having the agency workers use its laptops, R3 could monitor the work output of its staff both agency and employees.[138]Whilst assigned to R3, there was no evidence that the Claimant worked for anyone else.[139]R3 was not a customer of the Claimant. The Claimant provided services to it yes, but there was no contract between R3 and the Claimant. R1 would invoice R3 for the Claimant’s services. R3 would pay R1 for those services. Consequently, R3 was the customer of R1.[140]There was no legal relationship between R2 and the Claimant, other than R2 acting as the Claimant’s direct supervisor generally, manager of the Claimant’s day to day non-project work and being a colleague of the Claimant. Again, there was no customer relationship here.[141]One important piece of information was provided by R2 in cross examination. R2 and R3 were arguing that another person, David Kamau, was the line manager of the Claimant whilst she was assigned to R3. R2 was therefore asked by the Claimant why Mr Kamau never spoke to R1 if he was her manager. R2 responded “Because I was the central resource. I was managing the central Programme Management Office [“PMO”] function….”[142]R2 also confirmed that she initially reported into Mrs Kent-Payne and a Darren Heneghan, but Mr. Heneghan had then left as Director of housing, leaving her reporting line to Mrs Kent – Payne only.[143]R2 argued that she was only providing information to the Claimant whilst the Claimant worked for R3 and had no management responsibility.[144]However, it was not in dispute that R2 would delegate work to the Claimant, and that she relayed performance concerns about the Claimant to R1 when there started to become an issue with the Claimant’s work output as per paragraph 6 of her statement.[145]There was no contract between the Claimant and R2 and she was obviously not the Claimant’s employer or principal in any way, which was also common ground amongst the parties.[146]To come to a decision about the relationship between R2 and R3, Mrs KentPayne’s evidence and her relationship with R2 and R3 was crucial, given that she was the person who was said to have line managed R2 and any authority R2 had would come via Mrs Kent - Payne.[147]The significant parts of Mrs Kent-Payne’s evidence were as follows: 147.1. Although she said she was not an employee of R3 and had no contract with R3, Mrs Kent – Payne described herself as assigned to R3 as a temporary Interim Assistant Director of Housing Asset Management and she was therefore covering a permanent employment role. 147.2. She was effectively the indirect line manager of everyone in her team and that included both people employed by R3 in employment positions and agency workers. 147.3. She was responsible for the delivery of all housing, building and floor safety. 147.4. She was responsible for managing a budget of £40M – £50M. 147.5. She described having the power to make decisions about anything within her remit and if she needed anyone to deputise for her it would be heads of service that reported into her who would do that, depending on what remit the meeting was discussing. 147.6. Mrs Kent – Payne described a situation where the day to day general work would be delegated to the Claimant by R2 but if there was a specific piece of project work that the Claimant was to be assigned to work on then the manager in charge of the project would supervise the work for that project and not R2. She said in answer to questions “I am covering a permanent post with a proper line manager. In the project office there was not an actual manager. Work was allocated rather than managed to suit the needs of the business.” 147.7. She also described R2 as co-ordinating a lot of the work and said she had no direct conversations with the Claimant about who the Claimant’s line manager was whilst she was assigned to R3. 147.8. Mrs Kent – Payne also said that R2 had some autonomy and wouldn’t need to run everything past her before she could make decisions to manage workers and people resources from one piece of work to the next or one project to the next. 147.9. When considering the recruitment and selection of agency staff, Mrs KentPayne said that all the decisions about actually signing contracts for assignments or recruitment would be done by her not R2. R2 would simply be a go between and communicate the decisions and would organise the agency labour. 147.10. She also confirmed that R2 had spoken to R1 after discussion with her, about any performance concerns they had with the Claimant. 147.11. What appears to be in contrast to the evidence that there was no actual manager is that Mrs Kent-Payne also said, in her evidence in response to my question about what R2’s role was: “She runs the project office for me”. This is important because, in my view, it gets to heart of what happened in practice. 147.12. If R2 ran the projects office for Mrs Kent-Payne, then she was managing that office as a manager. This fits with the Claimant believing R2 managed her, it fits with R2 having autonomy to make general day to day decisions without involving Mrs Kent-Payne, but also the need for R2 to work closely with Mrs Kent-Payne under her general supervision and management about more involved decisions such as signing contracts, taking on staff or letting staff go.[148]I therefore find that R2 was the Claimant’s supervisor and general day to day management point of contact. Whilst not strictly the Claimant’s line manager all the time, R2 did manage all day to day functions and the work allocation in that office. Other managers supervised the Claimant’s project work if she was reassigned to a specific project, rather than doing business as usual work. R2 was effectively line manager for all non-project work, making the Claimant’s relationship reporting lines fluid, which no one appears to have properly explained to the Claimant.[149]R2 was line managed and reported into R3 via Mrs Kent – Payne, the latter of which was clearly at the very least an agent of R3 because of her broad remit to make autonomous decisions on behalf of R3, at director level, involving £40M – 50M of public money and because she was effectively covering a permanent employment role (I also discuss this later on).[150]When Mrs Kent – Payne attended a meeting, she was representing and making decisions on behalf of R3. When it came to the decisions Mrs Kent - Payne made, in my judgment these were the same decisions that would have been made had she been employed directly into the interim Assistant Direct of Housing Asset Management role, rather than supplied via an umbrella company.[151]When taking on staff or letting staff go, R2 would be the mouthpiece for R3 liaising between the candidates and agencies as and when necessary, giving them R3’s instructions about whether R3 had decided to take a candidate on or whether it needed to terminate a person’s engagement or employment if they had been supplied by the agency.[152]R2 therefore had the ability, on behalf of R3, to terminate and engage people in legally binding contracts when given authority to do so by Mrs Kent-Payne which, on the evidence I have seen, was always sought.[153]Consequently, R2 was essentially stepping into the shoes of R3 when she was carrying out Mrs Kent-Payne’s instructions.[154]R1 when dealing with R2, considered R2 and R3 to be one and the same thing. Indeed, in her witness statement at paragraphs 15 and 16, Mrs Carroll described the conversations she was having as being with R3 via R2, for example clearly expressing R2 and R3 as one and the same: “15. On 18th September 2023, I received a telephone call from Sharron Rooney from the London Borough of Ealing. Sharron explained to me the claimant’s output was very low. She was uploading a maximum of 70 certificates in a day, compared to 400+ by each other member of the team. 16. Therefore, on the same day, I phoned the claimant to let her know that the London Borough of Ealing were not happy with her performance…”[155]Mrs Carroll also stated in her evidence at paragraph 21 “Ms Rooney also explained that the claimant’s output had not improved, and she asked me to let the Claimant go with immediate effect”.[156]I believe her evidence here and, yes, it would actually be the Claimant’s employer who would or could dismiss the Claimant. However, this is strong evidence that R2 was essentially stepping into the shoes of R3 when it came to entering into or terminating legal relationships involving agency workers.[157]This was not a case where there was some ancillary service that R3 had little or no influence over, control over or input into, such as a company providing a canteen service to R3 for example.[158]R2 was an integrated part of the management structure in the office she worked in, whilst she was assigned to work there. She was essentially part of the chain of command.[159]R3 was not a customer of the Claimant in the arrangements described above. The relationship between R1 and Paystream[160]Mrs Carroll at paragraph 13 described this relationship and I was taken to no evidence that would suggest what she said was not an accurate reflection of this arrangement.[161]Paystream would invoice R1 for the work undertaken by the Claimant. R1 would then pay that invoice, so long as the work hours were authorised by R3.[162]Therefore, R1 provided an employee to Paystream. Paystream then provided that employee to an end user also sourced by R1 with R1 being the point of contact for the end user and the intermediary for payment. The Claimant was therefore provided to R3 through R1 on a standard employment agency basis.[163]The terms of the relationship between R1 and Paystream were in the bundle at pages 131 – 154. That document described the relationship at clause 3 as follows: “3. RELATIONSHIP BETWEEN THE EMPLOYMENT BUSINESS, THE UMBRELLA COMPANY AND THE HIRER 3.1. The Employment Business will try to find suitable Assignments for the Umbrella Company performing the agreed Type of Work. 3.2. The Umbrella Company shall not be obliged to accept an Assignment offered by the Employment Business. 3.3. The Umbrella Company acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that: 3.3.1 . only the Employment Business will determine the suitability of the work to be offered; 3.3.2. the Employment Business shall not be liable to either the Umbrella Company or an Agency Worker if it does not offer assignments to either of them. Independent contractor 3.4. The Umbrella Company acknowledges that it provides the Umbrella Company Services to the Employment Business as an independent contractor and that the contract between the Umbrella Company and the Employment Business is a contract for services. …”[164]R1 also agreed to pay Paystream for the hours the Claimant worked, regardless of whether it had been paid by R3 at clause 8.1 of the contract. The relationship between R1 and R2[165]It was clear, and not in dispute, that if there were any concerns about the Claimant’s performance or indeed that of Ms Goerbe, one of the Claimant’s colleagues, R2 would contact the agency to feed that back. In the Claimant’s case that agency was R1.[166]This is precisely what happened when the Claimant’s contract was terminated. Mrs Kent-Payne asked for the performance concerns about the Claimant to be fed back to R1 by R2.[167]It was therefore fairly obvious that R2 would give instructions to R1 about workers R1 had placed with R3 either directly or via an umbrella company indirectly and R1 would follow those instructions.[168]R1 would accept the instructions and deal with R2 as if R2 was a representative of, and part of, R3. The relationship between R1 and R3[169]This relationship was governed by the terms of business R1 sent to R3 when engaging the Claimant as a contract worker. These are in the bundle at pages 97 – 129 and were not in dispute between R1 and R3.[170]The terms of business were what you would usually expect to find between an agency and end user and they require R3 to pay the recruitment fees agreed and any transfer fees should R3 wish to engage the Claimant directly in the future. It was under this contract that R1 made its money.[171]The client terms of business between R1 and R3, were agreed and electronically signed by Mrs Kent-Payne as an audit report for the Claimant’s engagement stated at page 130 in the bundle.[172]There was no evidence or reason to doubt that the contractual documents in the bundle between R1 and R3 truly reflected the relationship they had with each other both on paper and in practice.[173]R3 was therefore a customer of R1. The flow of money and work[174]I therefore see the relationship between Paystream, the Claimant, R1 and R3 like this when it comes to who receives what money from whom and for what: 174.1. R1 found permanent employment for the Claimant and she could elect whether this would be directly with R1 as the employer or as Paystream being the employer. 174.2. The Claimant chose to go via Paystream. 174.3. Paystream and the Claimant signed a contract of employment. Paystream paid the Claimant’s wages on a continuous basis for the guaranteed hours in its contract with the Claimant and assumed responsibility for all employment rights. 174.4. Ancillary to this, Paystream charged the Claimant an admin fee for liaising with R1 to secure the Claimant’s wages from R1. 174.5. R1 enters into a contract with Paystream and agrees to pay the money received for the Claimant’s work from R3, to Paystream, upon receipt of an invoice from Paystream. 174.6. R1 enters into a contract with the hirer R3 and receives a fee as well as payment for the Claimant’s hours of work from R3. R3 receives an agency worker to perform the assignment.[175]Therefore, R3 gets work services provided to it and pays R1 a fee for that. R1 passes on the equivalent to the Claimant’s wages to Paystream after deducting the fee payable by R3. Paystream pass on the wages to the Claimant after deducting tax and national insurance etc. via the PAYE system. Paystream get paid an admin fee by the Claimant, for liaising with R1 as the intermediary.[176]Consequently, R3 gets its work covered. R1 gets a fee from R3. Paystream gets an ancillary fee from the Claimant. The Claimant gets her wages regardless of what she worked, on a continuous basis, from Paystream. Analysis and conclusions for issues 2 - 9 Issue 2: The Claimant’s employment and contractual relationship (if any) with R1 and/or R3 and whether she was therefore a worker or employee in accordance with s83 Equality Act 2010 or an employee at common law for the notice pay claim;[177]Applying Cotswold Developments, the only contract between the Claimant and other Respondents organisations was with Paystream My Max.[178]The nature of the relationship between the Claimant and R1 was purely that of a candidate and agency. The Claimant provided no services to R1 in that relationship and R1 had no control over the Claimant at all in that relationship. Consequently, there could be no worker or employment contract between the Claimant and R1.[179]Applying Belcher, Buckborough, Kalwak and Szilyagi, I heard no evidence that would lead me to conclude that the documented terms between the Claimant and Paystream did not reflect the true nature of the contract between them.[180]The taking the structured approach in Sejpal and looking at the first two Ready Mixed Concrete points in turn: 180.1. I was not taken to any evidence that the Claimant had any right of substitution envisaged in Tanton or MacFarlane and the contract with Paystream was silent on this issue. It is therefore clear that the Claimant was providing a personal service to Paystream and that she was paid a wage by Paystream for that service when she was working. 180.2. Looking at the issue of control, the Claimant was obliged to follow various policies and procedures that Paystream put in place including, for example, social media policies the employee handbook. This gave Paystream general control over the Claimant when applying the guidance in White, because day to day supervision and control about tasks would be performed by the end user, here R3, rather than Paystream by the nature of the contract. 180.3. When considering Humberstone, ultimate authority over the Claimant, in my judgment, rested with Paystream. 180.4. Although R1 seemed to have accepted communications from R3 about the Claimant’s alleged poor performance issues, R1 did not ultimately deal with those issues. On balance, it was Paystream who would ultimately deal with those issues as per the contract of employment. 180.5. Consequently, Paystream had sufficient control of the Claimant for there to possibly be an employment relationship.[181]Now I turn to mutuality of obligation. There was clearly a contract with legal obligations between the Claimant and Paystream as considered in Clark [1998] and Carmichael.[182]Any other analysis is not relevant to this case because only one assignment was ever performed under the contract. Consequently, I didn’t need to analyse whether there was any mutuality of obligation in between assignments.[183]Now onto the third key part of the Ready Mixed Concrete test, that of the overall picture.[184]I reminded myself that I needed to look at the situation when considering the knowledge of the parties at the time after Atholl House.[185]The Claimant did not need to provide her own equipment. R3 provided that whilst she worked for R3.[186]After Lorimer, only one person paid the Claimant’s wages and that was Paystream.[187]After Pimlico Plumbers EAT, the Claimant did not accept any financial risk from the assignment. Nothing in the contract between Paystream and the Claimant was risky or taking on any business risk. Paystream paid the Claimant’s expenses, the income tax and guaranteed her minimum hours.[188]Indeed, the overall risk between all the individuals and organisations involved in these relationships rested with Paystream, because it was obliged to pay her wages on a continuous basis for minimum work hours, whether or not any assignments for the Claimant were available, and with R1 because it was obliged to pay Paystream for the Claimant’s hours of work with R3 whether or not R3 paid R1 for those hours.[189]Looking at other factors in Market investigations, whilst reminding myself this is not a checklist situation and no one item is determinative, it cannot be said that the Claimant had any chance to profit from Paystream other than receive wages. She cannot therefore have been in business on her own account.[190]None of the other factors identified in that case apply or are significant to the Claimant’s situation.[191]Given that there was insufficient evidence that Paystream were in any other relationship with the Claimant, other than an employment one, for this assignment with R3, the Claimant could not be employed by both R3 and Paystream or by both R1 and Paystream after United Taxis.[192]I considered whether there was a need for there to be an implied contract between R3 and the Claimant after James.[193]In my view, it was not necessary to imply a contract between R3 and the Claimant because the contracts I have seen between everyone involved were genuinely how the contracts worked in reality.[194]All contracting parties here, namely R1, R3, Paystream and the Claimant had rights and obligations they could enforce through their contracts or by nature of their statuses (including those I come on to later).[195]When considering Tilson, given the burden of proof is on the Claimant to prove an implied relationship with either R1 or R3, in my view, she has failed to shift that burden for the reasons outlined above.[196]Consequently, the Claimant was an employee of Paystream. She was never an employee or direct worker with either R1 or R3 either via statute or at common law. Issue 3: The nature of the relationship between R1 and R2[197]There was no contract between R1 and R2. As per the findings of fact above, R2 would liaise with R1 and give R3’s instructions to R1 on behalf of R3. Issue 4: The nature of the relationship between R1 and R3[198]There was a contract between R1 and R3 which was simply a contract for employment agency services where R3, as the customer, would accept agency workers from R1 to perform assignments. Issue 5: The nature of the relationship between R2 and R3 and in particular whether R2 acted as a worker, employee or agent of R3[199]Like the Claimant, it is likely that R2 was at least a contract worker for R3 as the Principal. I do not need to decide whether R2 was an employee of R3.[200]I now turn to agency.[201]The function of R2 whilst she was engaged with R3 was to manage the programme office function within Mrs Kent-Payne’s team. Part of that function was to distribute work, liaise with agencies or, if the case may be, umbrella companies about taking on agency workers, terminating their assignments, their time sheets, work delegation and general day to day supervision and management of agency workers on behalf of R3 and with R3’s authority via Mrs Kent – Payne.[202]Mrs Kent-Payne’s functions included being ultimately responsible for the Programme Office and its budget.[203]Having identified those functions, applying the principles in Kemeh: 203.1. R2 was not simply just present and doing work at R3, she had general day to day autonomous decision making responsibilities having been given authority to do so by Mrs Kent – Payne, who in turn had authority to do so from the senior leadership of R3. 203.2. R2 was therefore part of the chain of command for R3 when it came to the Claimant and other agency workers. She had management responsibility for the programme office function and the people subordinate to her within it. Mrs Kent-Payne had ultimate authority for everything R2 did. 203.3. There was a sufficient degree of control in an agency context over R2, as evidenced by the fact that R2 would go back to seek authority from R3 via Mrs Kent – Payne for any decision she needed to action on behalf of R3, before going to any third party organisation to implement those instructions. Mrs Kent – Payne was under the control of R3’s Directorate. 203.4. I reminded myself that the fact that R2 or Mrs Kent - Payne might be employees of their umbrella company (although I expressly state I make no findings about that issue) is not fatal to there being an agency relationship with R3. 203.5. I find that this was not a case where R2 was simply integrated into R3 and carrying out work. 203.6. Clearly, as evidenced by both Mrs Kent-Payne and R2, for R3 to take on any agency workers in the Programme Office or to terminate their engagement, R2 would need to seek specific authority from Mrs KentPayne first before going to an agency either verbally accepting or terminating an Agency worker or in writing accepting or terminating an agency worker. R2 would also liaise with Mrs Kent-Payne about any performance or conduct concerns about a worker and gain authority from Mrs Kent – Payne before communicating those concerns back to the Agency or any other organisation. Specific authority, in this case, is therefore made out. Mrs Kent – Payne was clearly given authority by R3 to make decisions about everything in her remit and manage a significant amount of taxpayer’s money. 203.7. Finally, looking at Anderson, it is not necessary for R2 or Mrs Kent - Payne to have the power to affect R3’s legal relationships with third parties for an agency relationship within the context of s109 Equality Act 2010 to exist. However, here both R2 and Mrs Kent – Payne did have the power to affect R3’s relationships with third parties, because they both had the power to terminate agency worker assignments and take on agency workers triggering all the legal consequences of those contracts relevant to the agency, umbrella or the agency worker directly. Mrs Kent-Payne would make the ultimate decision and would then instruct R2 to make that decision happen by speaking to the other organisation.[204]Consequently, R2 was an agent of R3 when carrying out the functions she was assigned to and had authority to undertake including any communication, dealing and or facilitation of taking on agency workers, terminating agency worker assignments, arranging work for agency workers to do and communicating about any conduct, performance or grievance issues with any external organisations such as agencies or umbrella companies. Issue 6: Whether the Claimant was a contract worker in accordance with s41 of the Equality Act 2010[205]It was fairly obvious that the Claimant was a contract worker of R3 within the meaning of s41 Equality Act 2010 and, consequently, R3 conceded this point early in the hearing. Issue 7: Whether R1 was an employment services provider in accordance with s55 of the Equality Act 2010[206]Simply looking at the clear wording of the statute at s56 of the Equality Act 2010, it is clear (and wasn’t in dispute) that R1 was an agency trying to find employment for the Claimant and indeed R1succeeded.[207]R1 was therefore, at all material times, an Employment Service Provider under sections 55 and 56 Equality Act 2010. Issue 8: Whether R3 was a Principal (“end user” in industrial language) in accordance with the Equality Act 2010[208]Given that R3 conceded the Claimant was a contract worker, it must also be the principal under section 41.[209]Given my finding that R2 was an agent of R3, it is also the principal for that relationship too under section 109.[210]Consequently, R3 is principal in these two distinct relationships. Issue 9: Consequently, in answering the above issues, whether the Claimant is able to bring her claims against R1, R2 and/or R3 under sections 39, 40, 41, 55 and/or 111 (instructing, causing, inducing discrimination) and/or 112 (Aiding discrimination), when taking into account the automatic effects of s109 (liability of employers and principals) and s110 (liability of employees and agents) and if so, which section(s) applies/apply as her cause(s) of action.[211]Given all the findings so far, the Claimant can bring her claims as follows: 211.1. The Claims against R1 can be brought by the Claimant only under s55 Equality Act 2010. 211.2. No claims may be brought against R2 because they were struck out for failing to comply with ACAS early conciliation. 211.3. The allegations made against R2 may be brought by the Claimant against R3 under section 109 Equality Act 2010 because R3 was the principal of its agent R2. 211.4. The allegations made against R3 may be brought against it because it was the principal of the Claimant under section 41 Equality Act 2010 and principal of Mrs Kent – Payne who acted as agent for R3 in her role.[212]No arguments under sections 111 or 112 Equality Act 2010 were actively pursued by any party and they were not therefore considered. Notice pay claim against R1 and R2[213]Due to the Claimant not being employed at common law by either R1 or R3, the tribunal has no jurisdiction to hear those complaints and they have no reasonable prospect of success.[214]Consequently, the notice pay claims were struck out under rule 37 (1) (a). Other applications[215]After listing the case for future hearings and directions, to prepare the case for trial, there was no time to consider the Claimant’s application to amend her claim or R3’s deposit order application.[216]A further preliminary hearing was therefore organised and case management directions issued.[217]We also listed the case for final hearing and directions relevant to trial.[218]All the directions and hearing dates were issues in a case management order previously sent to the parties on 21 August 2024. Reasons approved by:
FINDINGS OF FACT
[1]An oral judgment with reasons was given on the third day of the hearing 14 May 2025 dismissing complaints of direct race discrimination and harassment relating to race. The Claimant requested written reasons, which was provided in a document dated 9 July 2025.[2]The Respondent made an application for costs dated 6 August 2025 in relation to: 2.1. a claim for unpaid notice pay struck out at a Preliminary Hearing by Employment Judge Smart following a hearing on 15 – 16 August 2024; 2.2. the substantive hearing of the claim at a full merits hearing before a full panel presided over by Employment Judge Adkin 12 – 14 May 2025.[3]The Respondent requested that the costs application be dealt with as a paper exercise, to avoid the cost of a further hearing.[4]Following email correspondence between Employment Judge Adkin and the parties it was agreed that the costs application would be dealt with as two separate paper exercises by the two judges sitting alone, given that the issues related to each were distinct. 1 of 5 Application[5]The basis for the Respondent’s application in relation to the substantive hearing is: 5.1. The Claimant sought to relitigate the dismissed notice pay claim under a new head of claim, specifically, race discrimination, which amounted to an abuse of process as it fell foul of the principle of issue estoppel. 5.2. The Claimant brought what the Tribunal described at paragraph 89 of its Judgment dated 9 July 2025 as a “misleading” allegation that certificate upload tasks were reserved to BAME members of staff. It is submitted that pursuing misleading allegations is, self-evidently, unreasonable conduct.
Law
[6]The Employment Tribunal Procedure Rules 2024 contains the following provision: When a costs order or a preparation time order may or must be made 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party …. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success[7]There is a two-stage exercise to making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether the discretion should be exercised to make order (Oni v Unison ICR D17).[8]Costs orders in the Employment Tribunal are the exception rather than the rule (Gee v Shell [2003] IRLR 82, Lodwick v Southwark [2004] ICR 844). Conclusions Abuse of process
Conclusions
[9]The elements of the race discrimination and harassment relating to race complaints which related the dismissal without notice were: 2 of 5 1.1.16. Sharon Rooney and her manager Dawn Kent-Payne refused to consider an email from the Claimant with evidence showing their conclusion was incorrect or to speak with the Claimant further after her dismissal without notice on 22 September 2023; 1.1.17. Sharon Rooney did not give the Claimant any notice that her assignment would end on 22 September 2023.[10]The allegations that the way that the termination of the Claimant’s temporary contract was dealt with were examples of harassment related to race or alternatively less favourable treatment because of race discrimination pursuant to sections 13, 26 and 39, 40 of the Equality Act 2010 are different legal claims to a claim for notice pay, which was struck out under the (old) rule 37(1)(a). That latter complaint was struck out on the basis that the Claimant was not an employee of the Respondents.[11]The two allegations of race discrimination, allegation 16 & 17 in the substantive hearing were dealt with in the substantive merits, having heard live evidence from the Claimant and relevant Respondent witnesses and considered whether the evidence supported that the Claimant’s race was a reason why the Claimant was treated less favourably or alternatively amounted to harassment related to race. These were different claims to which different legal tests applied, albeit that there was a common element of termination of the contract without notice.[12]The Claimant was entitled to bring those claims. I do not accept the argument that this was an abuse of process. This does not satisfy the threshold for the making of a costs order. Misleading[13]The second part of the application in relation to the substantive hearing is brought on the basis that allegation three was described as “misleading”. The allegation was: 1.1.3. In the first week of August 2023 Sharon Rooney gave the Claimant the task of uploading thousands of certificates to the system with a group of other non-white employees;[14]The reason that this was misleading was that although it was correct that the Claimant was carrying out this task with other non-white employees, the wider context was that there were three white employees who were also doing this task.[15]Going back to the narrative attached to the claim form, the Claimant wrote “the members of staff chosen to this awful task were all non white, except the lady bought in to manage the team who was unavailable at all times i tried to contact her.” 3 of 5[16]It follows that even in the way that the allegation was described by her in her claim form she acknowledged that there was at least one person who was white doing this case.[17]This was not a case of the Claimant misleading the Tribunal but telling untruths, but rather the way that the allegation of fact had been framed did not reflect the wider context.[18]In any event, it seems to me that this is not a case of the tribunal being misled and the threshold test is not met. Discretion[19]In case I am wrong about the threshold tests for the making of costs orders being satisfied, I have considered whether in the circumstances I would have exercised discretion.[20]Even had the “abuse of process” argument succeeded, I would have to bear in mind that the claimant is a litigant in person. From her point of view these are two distinct things – there is the claim of unpaid notice and the race discrimination/harassment claims. It did not seem to be inherently unreasonable for her to pursue one after the other had been struck out. I would not be minded to exercise discretion to make a costs order in respect of that element.[21]As to the second argument about “misleading”, if there had been a genuine untruth told, this would be a different sort of situation and a costs might have been appropriate. I do not find that fairly characterises the situation. I have to bear in mind the way that claims set out by a non-lawyer as part of their claim form are then dealt with at a case management hearing. There is plenty of scope for claims to be framed or reframed in a list of issues in way that turns out not to reflect the reality, without a claimant really appreciating the consequences of it. It seems to me that that is probably the situation in the present case. I would not have been minded to exercise discretion to make a costs order in respect of this element.
Summary
[22]For the reasons given the Respondent’s application for costs in relation to the substantive hearing is refused.[23]Employment Judge Smart will deal separately with costs at the Preliminary Hearing.
The Facts
[24]At the time she submitted the claim I find that, to her as a lay person, it was not unreasonable for her to have a view that the third Respondent might be her employer, especially as the Third Respondent did not make it clear who was responsible for what and who her line managers/supervisors were in a team that blended agency staff with employees.[25]In my judgment there was a significant blurring of boundaries about who were employees, who weren’t and how internally the two types of workers should be handled day to day.[26]The Respondent has not met its burden in proving that the Claimant ought reasonably to have known or perceived things to be otherwise.[27]Consequently, the Costs application is refused. Judgment approved by: