Ms E Young v London Borough of Islington: 2217674/2023

EMPLOYMENT TRIBUNALS

Case No 2217674/2023

Between

Ms E YoungClaimant

London Borough of IslingtonRespondent

Before

Employment Judge Henderson

In person for claimant

Mr R O’Dair (instructed by Counsel) for respondent

Date 22 May 2025

JUDGMENT

[1]The claim form presented by the claimant on 6 November 2023 was not in the prescribed form.

[2]The claim form presented on 6 December 2023 was presented with a reasonable time for the Reasons set out below. Claims relating to acts or omissions before 7 June 2023 are out of time, except as specified below (paragraph numbers are as per the List of Issues discussed at the Preliminary Hearing and attached as Schedule 1 below): - Paragraph 5.1.2 (Mr Ceesay’s treating the claimant with disdain from January 2022 to 13 June 2023) Direct Race and Direct Discrimination claims - Paragraph 8.3.2 (Ms Jackson’s refusal to deal with claimant’s appeal points at the appeal hearing on 17 August 2023) Direct race and sex discrimination (intersectionality) claims. - Paragraph 8.3.4 (Mr Cessay demonstrating personal antipathy (“disdain”) to the claimant from Jan 2022 to 13 June 2023. Direct race and sex discrimination (intersectionality) claims. - Paragraph 10.1.2 (Mr Ceesay demonstrating disdain to claimant because she is Black of Caribbean origin and his is Black African). Harassment due to race claim.

[3]The claims for Unfair Dismissal and Unlawful Deductions of Wages are within the relevant time limits.

[4]The claims for Detriments on ground of a Protected Disclosure are out to time except for paragraphs 5.1.2. 5.1.8 5.1.9 and 5.1.10 of the List of Issues.

[5]Disability Status. The respondent has accepted that the claimant is a disabled person at the relevant times as regards her medical conditions of sciatica and asthma. The claimant has not established that she is a disabled person (within the meaning of section 6 of the Equality Act 2010 (EQA)) as regards her alleged condition of cataracts.

[6]None of the alleged Failures to make Reasonable adjustments (as set out in Paragraph 9 of the List of Issues) are brought within time and any relating to the alleged condition of cataracts cannot be pursued as the claimant has not established that this was a disability at the relevant times.

REASONS

[1]At the start of the hearing, I confirmed with the claimant that she needed some practical adjustments which were: an adjustable chair (this was provided) and that documents be printed in a font size (no less than 16) which she could read. This was arranged as far as possible. The claimant had omitted to bring her magnifying glass which she used to assist with reading smaller print. I asked her to ensure that she brought this (or appropriate spectacles) to any future hearings.

[2]I also discussed with the parties, the purpose of the PH. This was set out in the Case Management Order of EJ Smart (June 2024) as being to decide (at the Judge’s discretion) the following issues: - Was the ET1 form presented by the claimant on 9 November 2023 in a “prescribed form”? if not, - Were any of the claims presented out of time and if so should the Tribunal exercise its discretion to extend time on the relevant applicable test for that type of claim. (Reasonably Practicable for the Unfair Dismissal; Unlawful Deduction of Wages claims and Whistleblowing Detriment claims – and Just and Equitable for the Discrimination claims) - Was the claimant a disabled person under section 6 Equality Act 2010 at the relevant dates? The respondent had conceded that the claimant was disabled as regards her impairments of asthma and sciatica but disputed that the problems with her vision (described by the claimant as “cataracts”) was a disability - Should a deposit order be made in respect of any of the claimant’s claims? - Any further case management necessary

[3]I queried whether it was appropriate for me to deal with the issue of whether certain discrimination claims were out of time as the claimant alleged a continuing act and such matters were often best dealt with as part of the overall evidential context of a Final Hearing.

[4]Mr O’Dair accepted that this was often the position taken by the Tribunal but said that in this case the last alleged act of discrimination related to the conduct of the appeal hearing on 17 August 2023 against the claimant’s dismissal. The claimant accepted that this was correct. The claimant also accepted that she had pleaded only one protected disclosure made on 3 December 2021 (page 74).

[5]It was agreed that I would hear the claimant’s evidence and the parties’ submissions on all the issues for the PH. However, I did not commit to making a decision on the continuing act issue, which I may still reserve to be decided at the Final Hearing.

[6]The proposed timetable was initially that the claimant’s evidence would be heard on the afternoon of 12 May. Mr O’Dair would then prepare short written submissions which he would send to the claimant around 7-8pm that evening, so that she could read this in good time for her to make her own oral submissions along with Mr O’Dair’s oral submissions on the morning of 13 May.

[7]We also agreed that following submissions, we would go through the most recent version of the list of issues (pages 366-375) clarifying the dates of each of the claimant’s allegations and her various claims. If this could be concluded by lunchtime, I would then try and give the parties my decision on the PH issues at the end of day on 13 May.

[8]As with each of the other PH’s there were problems with bundles and practical issues. The hearing was held in person, but the respondent had failed to provide hard copy bundles for the witness table. Also, the respondent had not provided copies of the claimant’s two witness statements in appropriate font size (16) to deal with her visual impairment. The claimant had provided further original documents (in no order and unpaginated). She had not sent copies to the respondent, and she had not provided copies for the Tribunal. The claimant had also asked the Tribunal to provide some emails explaining the sequence of events relating to the lodging of her claim in December 2023.

[9]The respondent provided a hard copy bundle (in 2 parts of 711 pages). This included the claimant’s two witness statements (at pages 159-170 of March 2024 and 242-248 of May 2024).

[10]The claimant said she had also wished to call three further witness: Debbie Japal, Sevim Sonmez and Annika Smith. However, on considering exactly what evidence each of these witnesses could give with regard to the relevant issues for the PH, the claimant accepted that her own evidence could cover all the relevant matters. It was agreed that no other witnesses were necessary for the PH.

[11]We adjourned at 11.45 for me to read the key documents in the bundle. We were due to recommence at 2pm to allow time for the parties to carry out the relevant copying and to include a break for lunch. However, due to various further failures as regards copying documents, the claimant did not commence her evidence until 2.40 pm. The hearing closed on 12 May at 4.30 pm. Day 2

[12]We were due to commence with submissions at 10am. However, there was a discrepancy raised by the claimant between the written submissions handed to the Tribunal by Mr O’Dair and the version sent to the claimant the previous evening. The parties adjourned to resolve the outstanding discrepancies, if any.

[13]I then heard oral submissions from each party on the disability issue, followed by the issues relating to the submission of the ET1 form and on extension of time. I also asked the claimant for information about her financial situation which I needed to know if I decided to make a deposit order. This process concluded at 1pm.

[14]Following the lunch break we went through the list of issues in some detail. I went through with the claimant each of her allegations for protected disclosure detriment and discrimination – checking dates and the general content of the allegation and where appropriate, cross-checking the content of the allegations with the claimant’s Particulars of Claim (pages 46 -50).

[15]This process concluded at 3.20 pm. I explained that given the time, I would not be able to give the parties a decision but would provide my decision with written reasons within in the next two weeks. This decision would include a version of the list of issues taking into account my decision on whether claims were out of time etc. The resulting document is set out at Schedule 1 and is marked up to reflect the decisions made following the PH.

[16]I also suggested that we should take the opportunity to list the case for a Final Hearing (which we duly did for 5 days (liability only; in person; before a Judge alone) starting on 22 June 2026. We also agreed a date for a Further Case Management Hearing on 14 August 2025 10am (3 hours; in person) to agree a final List of issues and make other directions in preparation for the Final Hearing.

[17]I also asked the claimant about taking legal advice. The claimant said she had contacted her local law centre twice but both times the advisor was ill. She had not tried any other organisations. The claimant said she was a trade union member but had not been helped by her Union after the appeal hearing in August 2023.

[18]The claimant could not recall whether she had received the Tribunal’s list of Sources of Free Legal Advice. I gave the claimant a copy of that list at the PH and suggested that she try and obtain some legal support. The claimant said she would attempt to do this. Findings of Fact The Claimant’s Evidence Disability - Cataracts

Findings of Fact

[19]The claimant said that following a fall in May 2022 and upon visiting the Emergency Department of Moorfields on 9 July 2022 (page 177) she was told by doctors originally that she had Optic Neuritis and then subsequently that she had cataracts. The letter from Moorfields (dated 10 July 2022-page 179) makes no mention of either of these conditions. There is reference to “bilateral diabetic retinopathy” – but this is described as long standing. The claimant confirmed that her disability claim did not relate to her Diabetes 2 condition.

[20]The claimant accepted that she was unable to present any documentary medical evidence of the diagnosis of cataracts or optic neuritis prior to her dismissal in June 2023 or at all – other than a recent reference in October 2024 to her waiting for operations on her cataracts (but this was after her employment ended).

[21]The claimant could not point to any reference to cataracts or optic neuritis in her GP notes for the relevant periods.

[22]The recent medical evidence presented by the claimant on the morning of the hearing all related to appointments with the Ophthalmology outpatient department scheduled at Moorfields at North Middlesex Hospital. There was no medical assessment of her condition in those letters.

[23]Whilst it is accepted that the claimant suffered some loss of vision following the trauma of her fall in May 2022, there is no documentary medical evidence of her alleged impairment of cataracts (as alleged) during the period May 2022 to June 2023 when she was dismissed.

[24]The claimant was referred in cross examination to an OH report dated 10 February 2023 (page 231/2). This was the last OH report prior to her dismissal in June 2023. The claimant accepted that this report referred to an improvement in her condition. The report also noted that the claimant was unlikely at this stage to be covered by the Equality Act (though this was of course a legal not medical decision) but the position could change if her symptoms lasted longer than 12 months.

[25]There was a reference to Optic Neuritis in this report, but there was no written evidence of a medical diagnosis, merely reporting what the claimant had said. The claimant said that the doctors she had seen at Moorfields told her she had this condition but accepted that there was no reference to it in their letters.

[26]The claimant also accepted that there was no reference in her GP reports over the relevant period (May 2022 to June 2023) of her vision loss. She said that she had not discussed this with the GP, but the Moorfields’ letters had been sent to a branch of her GP surgery.

[27]The clamant set out the impact of her alleged cataract condition on her normal day-to-day activities (page 246-248). The claimant has to enlarge text on her mobile phone and computer. She cannot drive, especially in dark conditions and avoids nighttime commuting on public transport. The claimant says she finds it difficult to watch TV and so listens to the radio. She reads newspapers with the aid of a magnifying glass. The claimant can carry out normal household tasks but misses small stains if cleaning.

[28]The claimant was not cross examined on this part of her statement. However, I note that the claimant predominantly uses the present tense in her statement when describing the impact on the daily activities, which suggests she is referring to the current position and does not identify similar impacts at the relevant times. She does refer to having difficulty while at work with reading large amounts of documents but that of itself is not necessarily an adverse effect on normal day to day activities.

[29]The claimant was dismissed on 15 June 2023 for alleged gross misconduct.

[30]The ACAS EC Certificate (page 6) sets out the period of 6 September to 16 October 2023 as the early conciliation period. The claimant accepted in cross examination that she was a specialist in Employee Relations and was familiar with disciplinary processes and employment law generally (though she was not a qualified lawyer).

[31]The claimant said she was aware of the 3-month time limit for bringing Tribunal claims. She said that she knew (and had been told by ACAS) that she was required to bring her claims by 16 November 2023.

[32]The claimant said that although she knew she could submit her form online, she also knew she could put in her claim form by hand, which she did on 9 November 2023. She said that she was visiting her sibling who lived near Russell Square, and she wanted peace of mind to know she had handed in the claim at the Tribunal. There was a receipt for this (page 29). The claimant had enlarged the form when she printed it for submission so that she could read the text. However, this meant that the form did not appear it the usual way and that some pages appeared to be missing. I also note that the claimant’s particulars of claim were submitted in a different and significantly smaller font (pages 20-24), which suggests that the claimant may have been able to serve the form in smaller text.

[33]By a letter dated 14 November 2023 the Tribunal wrote to the claimant (page 30) to say that the claim submitted by hand was rejected as it had not been presented on the prescribed ET1 form. The claim should be resubmitted. The claimant did not challenge the rejection of her ET1 and did not apply for reconsideration of that rejection.

[34]The claimant resubmitted the ET1 on 6 December 2023 and this claim was then accepted. However, the respondent raised the fact that this claim was brought

[35]The claimant had said that she only received the Tribunal letter dated 14 November which rejected her initial claim form on 5 December 2023. She went to collect it from the Post Office having received a notification of a recorded delivery document. She had re-submitted her claim promptly on 6 December 2023.

[36]At the Case Management Hearing in June 2024, the respondent had questioned why the Tribunal letter dated 14 November had not been received until 5 December 2023.

[37]The claimant pursued this matter with the Tribunal and eventually on 1 August 2024 the Tribunal confirmed to the claimant that the letter dated 14 November 2023 was in fact sent by the Tribunal on 1 December 2023 (this was a Friday) and so had probably only been received by the claimant on 5 December as she had said. The claimant said she had sent the email from the Tribunal dated 1 August 2024 to the respondent. The respondent did not recall receiving this email. The claimant’s correspondence with the Tribunal was presented at the hearing.

[38]I accept the claimant’s evidence regarding the timing of her receipt of the Tribunal’s correspondence, which is supporting by emails from the Tribunal Administration. Submissions Disability

[39]As regards the submissions on the claimant’s disability (cataracts): the respondent accepted that the claimant had suffered from vision loss in her right eye following a fall in May 2022; that this was a physical impairment and did not dispute the claimant’s evidence as regards the effect on her day-to-day activities as per her witness statement at pages 246/7.

[40]The respondent said that the key dispute was the issue of whether this condition was known to be long term over the relevant period (namely from May 2022 when the claimant had her fall to15 June 2023 when the claimant was dismissed). This element would be required for the claimant to establish that her vision problem was a disability at the relevant times.

[41]Mr O’Dair said that the Tribunal should not take account of developments in the claimant’s condition after her dismissal and up to the present time. He cited no authority for this submission or indeed for any of his submissions on disability.

[42]I explained the point to the claimant. We went through all of the medical evidence documents in the bundle including the claimant’s GP notes and the claimant accepted that none of the documents referred to her vision loss being long term. The claimant agreed that she had not, during the period May 2022 to June 2023, consulted her GP about any problems with her vision (other than regular diabetic screenings).

[43]The OH report in February 2023, which is the last available evidence prior to the claimant’s dismissal suggests an improvement in her medical condition, with the claimant did not deny. The claimant maintained that her from her point of view she had suffered from loss of vision since May 2022 and that was long term.

[44]The claimant’s submission was straightforward. She said that although she had experience as an Employee Relations Officer, she was nevertheless a Litigant in Person and not a qualified lawyer.

[45]The claimant said it was unfair that she should be penalised because her vision issues had led to her having to print out the form in large font and submit it in person on 9 November 2023. She had submitted it within the time frame she understood and had been told by ACAS, that is by 16 November 2023.

[46]The claimant reiterated the sequence of events following the submission of the ET1 form on 9 November. She said that once she had received the letter about rejection of her claim on 5 December 2023, she promptly resubmitted the form on 6 December, and this was reasonable.

[47]The claimant said that she had been aware that discrimination claims could be brought during employment, but that she had been “scared” to bring such claims while she was in service. However, she did not elaborate on why she had concerns about doing so.

[48]Mr O’Dair’s submissions on out of time were more lengthy and complicated. He said that the claimant had not given any explanation as to why it was not reasonably practicable to serve her claim within time. Although I note from the evidence presented that the claimant had originally submitted her claim within time – but not in the correct form. She had then submitted it in the correct form the day after she received notification from the Tribunal that her original submission was invalid.

[49]Unless the allegation is that is the claimant deliberately submitted an invalid form (which has not been expressly made or put to the claimant in cross examination), then it does appear that the claimant had acted reasonably in all the circumstances as regards the submission of her claims.

[50]Mr O’ Dair also made some complex oral submissions, for which he did not give any legal authorities. He suggested that if I allowed the 6 December claim as being in time, I should extend the cut off date for calculating when claims would be regarded as out of time by the ACAS EC extension period (40 days from 6 September 2023 to 16 October 2023) as set out in section 207B Employment Rights Act 1996 (ERA).

[51]This would mean that instead of any claims prior to 7 June 2023 being out of time (namely 3 months prior to ACAS notification on 6 September 2023), I should treat claims prior to 28 July 2023 as being out of time (by adding 40 days to 7 June 2023).

[52]I do not accept this submission. Section 207B ERA relates to adding the ACAS EC period onto the time limit for lodging a Tribunal claim. It does not expressly apply to the calculation of whether claims are out of time. Further, I was given no case authority by O’Dair to support his argument.

[53]As regards the claimant’s claims for discrimination as continuing acts, Mr O’Dair noted that the claimant’s allegations were that some claims were for race, sex and disability discrimination and some were only for race discrimination, and some were for an intersectional claim of sex and race discrimination (namely that the claimant was a Black woman of Caribbean origin).

[54]As a result, he said that the last alleged discriminatory act by Ms Jackson on 16 August 2023 was only for race discrimination and so could not be used to bring into time earlier acts of sex and/or disability discrimination. That is not strictly correct. The claimant alleges that Ms Jackson’s actions on 16 August were direct race & sex discrimination under paragraph 8.3.2 of the List of Issues discussed at the PH.

[55]Mr O’Dair referred to the case of Concentrix CVG Intelligent Contact Limited and Obi (EAT/2020/000365) and in particular paragraphs 71 and 72. These said that where a Tribunal is considering a number of complaints which it finds to be discrete incidents of discriminatory treatment , and which have occurred over a period of time and which amount to conduct extending over a period of time, but which are still out of time, the Tribunal is not necessarily required take an “all or nothing approach” as to whether they are within time. The Tribunal may, in applying the just and equitable test, take into account issues of forensic prejudice and only extend time in relation to the most recent incident in its own right. Deposit Order

[56]I explained the principle of a Deposit Order to the claimant. The claimant said she understood this.

[57]Mr O’Dair said that the claimant’s claims of discrimination had little prospect of success and that I should make a Deposit Order in respect of all of those claims. He did not suggest a sum for the deposit.

[58]The claimant said that she based on her own estimation of the way she was treated that she had more than a reasonable prospect of success. The claimant then said that she had been treated worse that other disabled employees and employees of her race and gender.

[59]I pointed out to the claimant that to succeed in a direct discrimination claim she needed to show that others who did not share her relevant protected characteristic would be treated better. The claimant said she could do that as well. I repeated my recommendation for the claimant to obtain free legal advice if at all possible.

[60]I also reminded that claimant of the relevant burden of proof under the EQA, namely that she would have to show facts from which the Tribunal could conclude that discrimination had occurred. Her own belief was not of itself sufficient evidence. The claimant said she understood this.

[61]I asked the claimant about her financial situation in the event that I decided to make a deposit order. The claimant said she was not working currently but living off her savings which were now in the region of £6000. She had done some agency work in December 2024. The claimant’s total monthly outgoings were around £950/1000 per month. She had approximately £200 disposable funds per month. Conclusions Disability

Conclusions

[62]The claimant has not shown to the requisite standard (balance of probabilities) that over the relevant period May 2022 to 15 June 2023, her loss of vision was an impairment which had a long term significant adverse effect on her normal day to day activities.

[63]It is accepted that the claimant did suffer from loss of vision and that this condition has worsened and that following her dismissal, the condition has been identified as cataracts, although even then the claimant did not produce a formal medical diagnosis of this condition.

[64]I also note that the claimant’s witness statement does not specify the periods over which she suffered from the adverse impacts on her normal day to day activities. This point was made clear in paragraph 12 of EJ Adkin’s Case Management Order of March 2024 which noted that the witness statement should say “What were the effects of the impairment on the claimant’s ability to do day-to-day activities? The claimant should give clear examples. If possible, the examples should be from the time of the events the claim is about. The Tribunal will usually be deciding whether the claimant had a disability at that time”.

[65]Accordingly, the claimant has not established that she is a disabled person for the alleged condition of cataracts. Therefore, her disability discrimination claims related to that condition cannot continue are marked according on the annotated List of Issues attached at Schedule 1.

[66]I should add that this finding does not in any way detract from the claimant’s current condition. She has continued to have problems with her vision, and these appear to have worsened since her dismissal in 2023. However, as explained to the claimant at the PH the Tribunal must consider the relevant tests for disability over the relevant period May 2022 to June 2023. The claimant does not satisfy those tests over that period.

[67]The ET1 submitted on 9 November 2023 was not made in the correct form. The Tribunal’s rejection of this claim was not challenged by the claimant and must therefore stand.

[68]I have accepted the claimant’s evidence that she was unaware of the Tribunal’s rejection of her claim until 5 December 2023 and that she promptly re-submitted her claim on 6 December 2023, which claim was accepted by the Tribunal. That claim form stands.

[69]However, given the relevant Early Conciliation period any claims relating to acts/omissions prior to 7 June 2023 are outside the relevant 3-month time limit. I then need to consider whether the claimant has provided adequate explanation for the Tribunal to apply its discretion to extend time on the relevant bases for the specific claims.

[70]For the claims made under the ERA (unfair dismissal; unlawful deductions and protected disclosure detriments), the test is whether it was reasonably practicable for the claimant to bring such claims within the time limit and if not, whether the claim was made within a reasonable time.

[71]For the claims made under the EQA (all the discrimination claims) the test it whether it is just and equitable for the Tribunal to extend the time limit to allow the claims to continue. The claimant also alleges that as regards her discrimination claims there was conduct extending over a period (continuing acts).

[72]The claimant was clear in her evidence that, given her work experience and knowledge as an Employee Relations Officer, she was fully aware of the 3-month time limit to bring Tribunal claims. She was also fully aware that claims for discrimination and for protected disclosure detriments could be brought while she was still in employment, as she had dealt with others who had done so. The claimant also said that she had the help and advice of her Union until the appeal hearing in August 2023.

[73]The claimant said she was “scared” to bring such claims while in employment but did not elaborate on her concerns. I do not find this evidence from the claimant to be plausible.

[74]The claimant made her alleged protected disclosure in December 2021 and also appeared as a witness in Ms Japal’s Tribunal hearing (for discrimination claims) in November 2018. There was no evidence given by the claimant to suggest that she gave her evidence in Ms Japal’s case under the compulsion of a witness order. If the claimant was willing to take these steps while still in employment it is not plausible that she would be afraid to pursue her own discrimination claims as and when they arose.

[75]Therefore, where claims are out of time, I do not grant the claimant an extension, either on the reasonably practicable or the just and equitable grounds. Discrimination Claims / Continuing Acts

[76]As was made clear in the leading case of Hendricks v Metropolitan Police Comr

[2002] EWCA Civ 1686

[2003] IRLR 96

[2003] ICR 530

, the key issue is whether the claimant has shown that there was an ongoing situation or continuing state of affairs which amounted to discrimination. So, if there were numerous alleged incidents of discrimination which were linked to one another this could amount to evidence of a continuing discriminatory state of affairs covered by the concept of 'an act extending over a period' even if there was no clear policy or rule which was discriminatory.

[77]I find that the allegations made by the claimant as set out in the List of Issues do not appear to show such a continuing state of affairs. The allegations often relate to the refusal to give her a second laptop – which relates to her eye problems (which have been found not to be a disability). Other allegations relate to a query about her return date from annual leave.

[78]I also note Concentrix case, which said that where a Tribunal is considering a number of complaints which it finds to be discrete incidents of discriminatory treatment , and which have occurred over a period of time and which amount to conduct extending over a period of time, but which are still out of time, the Tribunal is not necessarily required take an “all or nothing approach” as to whether they are within time. The Tribunal may, in applying the just and equitable test, take into account issues of forensic prejudice and only extend time in relation to the most recent incident in its own right.

[79]I apply this approach as I note that many of the claimant’s allegations date back to 2021 and 2022 and that it would be difficult for both parties and their witnesses to recall exact details of such events.

[80]Accordingly, I allow only the claimant to pursue the following acts of discrimination as per the List of Issues: - Paragraph 5.1.2 (Mr Ceesay’s treating the claimant with disdain from January 2022 to 13 June 2023) Direct Race and Direct Discrimination claims - Paragraph 8.3.2 (Ms Jackson’s refusal to deal with claimant’s appeal points at the appeal hearing on 17 August 2023) Direct race and sex discrimination (intersectionality) claims. - Paragraph 8.3.3 (Mr Cessay demonstrating personal antipathy (“disdain”) to the claimant from January 2022 to 13 June 2023. Direct race and sex discrimination (intersectionality) claims. - Paragraph 8.3.8 ( Mr Ceesay failing to deal with authorising the claimant’s second laptop on 13 June 2023). Direct race and sex discrimination (intersectionality) claims - Paragraph 10.1.2 (Mr Ceesay demonstrating disdain towards the claimant because she is Black of Caribbean origin and his is Black African from January 2022 to 13 June 2023). Harassment due to race claim. Unfair Dismissal and Unlawful Deductions

[81]The claimant’s claims for unfair dismissal and for unlawful deductions are within time and therefore can be pursued. Detriments on ground of making a Protected Disclosure

[82]Even if the claimant were to succeed in establishing that she made a protected disclosure on 3 December 2021, the majority of the alleged detriments took place well before 7 June 2023. The exceptions are paragraphs 5.1.2, 5.1.8, 5.1.9 and 5.1.10. These complaints can continue under this head of claim, but not necessarily as acts of discrimination under the Equality Act 2010. Deposit Order

[83]I considered this application under Rule 40 of the Tribunal Rules of Procedure 2024. Given the limited submissions made by the parties and given the limited information available to the Tribunal, I find that there it would be preferable for the remaining claims made to proceed to a merits hearing, and I do not make a Deposit Order against the claimant. SCHEDULE 1 – THE LIST OF ISSUES DISCUSSED IN DETAIL WITH THE PARTIES AT THE PRELIMINARY HEARING. THE TRIBUNAL’S DECISIONS MADE IN THIS

Conclusions

[1]Time limits (to be determined at a preliminary hearing)1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 7 June 2023 may not have been brought in time.

1.2 Were the discrimination claims 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? THE JUDGMENT AND REASONS SET OUT WHICH CLAIMS ARE GRANTED AN EXTENSION OF TIME ON JUST AND EQUITABLE GROUNDS.

1.3 Were the unfair dismissal /unauthorised deductions made within the time limit in section 111/23 of the Employment Rights Act 1996 respectively? 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 and/or acts complained of / date of payment of the wages from which the deduction was made?

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

1.3.3 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? THESE CLAIMS ARE IN TIME

[2]Unfair dismissal – IN TIME2.1 It is not in dispute that the Claimant was dismissed on 15 June 2023.

2.2 What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed gross misconduct.

2.3 If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether:2.3.1 there were reasonable grounds for that belief;

2.3.2 at the time the belief was formed the Respondent had carried out a reasonable investigation;

2.3.3 the Respondent otherwise acted in a procedurally fair manner;

2.3.4 dismissal was within the range of reasonable responses.

2.4 Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? That is likely to involve consideration of:2.4.1 Did the Respondent apply a fair procedure in dismissing the Claimant?

2.4.2 Was the dismissal within the band of reasonable responses in all the circumstances?

[3]Remedy for unfair dismissal3.1 Does the Claimant wish to be reinstated to their previous employment?

3.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?

3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

3.5 What should the terms of the re-engagement order be?

3.6 If there is a compensatory award, how much should it be? The3.6.1 What financial losses has the dismissal caused the Claimant?

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

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

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

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

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

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

3.6.8 If the Claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

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

3.6.10 Does the statutory cap of fifty-two weeks’ pay or [£105,707] apply?

3.7 What basic award is payable to the Claimant, if any?

3.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

[4]Protected disclosure4.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The4.1.1 Did the Claimant on 3 December 2021 submit a grievance reporting a colleague, John Kitching, for punching a fist thereby making a threat of violence. 1.1.1 Did she disclose information? The Claimant alleges that the exact wording of the alleged qualifying disclosure is set out in her email of 9.12.21 @ 12:39 to John Kitching and Lamin Ceesay and copied to David Hodgkinson.

4.1.2 Did she believe the disclosure of information was made in the public interest?

4.1.3 Was that belief reasonable?

4.1.4 Did she believe it tended to show that:4.1.4.1 a criminal offence had been, was being or was likely to be committed;

4.1.4.2 the health or safety of any individual had been, was being or was likely to be endangered;

4.1.5 Was that belief reasonable?

4.2 If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer.

[5]Detriment (Employment Rights Act 1996 section 48)5.1 Did the Respondent do the following things:5.1.1 Did David Hodgkinson, Julie Foy, Tamara Hanton, Shakeel Yasin and/or Amanda Jackson each fail to deal with a protected disclosure made by the Claimant by early January 2022? (ie did they each fail to deal with the matters raised in the Claimant’s email of 03.12.21); OUT OF TIME

5.1.2 Did Mr Ceesay treat the Claimant with 'distain' following her grievance? The Claimant alleges that Mr Ceesay started to treat her with disdain either from around 12.01.22 and that the last date on which she was treated with ‘distain’ by him was at her disciplinary hearing on 13.06.23; EXTENSION GRANTED – IN TIME

5.1.3 Did Mr Ceesay 'lie' when he mentioned complaints that had been made against the Claimant by other staff members? Tia Hillaire- Samms (25.5.22), Jessica Brenan (15.07.22), Dyon Mackenzie (May 2022) – OUT OF TIME

5.1.4 On 17.05.23 and confirmed in writing on 26.05.23, did Mr Ceesay allocate the Claimant over 300 more staff to manage than any other ERS? – OUT OF TIME

5.1.5 Did Mr Ceesay fail to deal with the authorisation of the Claimant’s second laptop? The Claimant alleges that it became clear to her that Mr Ceesay would not deal with it either on 20.03.23. – OUT OF TIME

5.1.6 Did Mr Ceesay fail to implement the recommendations in the Occupational Health Report of 30.09.22 by 03.10.22? – OUT OF TIME

5.1.7 Did Mr Ceesay fail to implement the Occupational Health recommendation in the report of 10 February 2023, to order the requested laptops? Should have done, says by 17th February 2023 – OUT OF TIME

5.1.8 Did Mr Ceesay fail to respond to an email sent from ‘digital’ to Linda Nicholls on 3rd June 2023 wherein ‘digital’ requested authorisation for a second laptop? This email was forwarded by Ms Nicholls to Mr Ceesay but Mr Ceesay allegedly failed to respond by 13 June 2023. EXTENSION GRANTED – IN TIME Did Mr Ceesay fail to respond to being chased by Ana Ramo-Gill on 7 June 2023, for authorisation for the laptop(s)? – EXTENSION GRANTED - IN TIME FOR DETRIMENT CLAIM ONLY

5.1.9 Did Mr Ceesay lie by saying, in response to an email from the Claimant sent on 13 June 2023, that he couldn’t see any requests for approval and that he needed a budget code? Did he again fail to authorise the laptop? The Claimant alleges this response was a lie and he was deliberately denying knowledge of the request for authorisation. EXTENSION GRANTED - IN TIME FOR DETRIMENT CLAIM ONLY

5.1.10

5.2 All protected disclosure detriments set out at 5.1.1 – 5.1.10 above are also alleged by the Claimant to be acts of direct race and/or direct disability discrimination by the Respondent by reference to a hypothetical comparator, who does not share the relevant protected characteristic of the claimant, but who is otherwise in the same material circumstances. ALL OUT OF TIME EXCEPT FOR 5.1.8

[6]Remedy for Protected Disclosure Detriment6.1 What financial losses has the detrimental treatment caused the Claimant?

6.2 What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that?

[7]Disability 7.1 (To be determined at a Preliminary Hearing) Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Respondent accepts that the claimant was a disabled person in respect of her sciatica and asthma. As regards the claimant’s alleged disability of cataracts , the7.1.1 Did she have a physical or mental impairment?

7.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?

7.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?

7.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

7.1.5 Were the effects of the impairment long-term? The7.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?

7.1.5.2 if not, were they likely to recur? THE TRIBUNAL DECISION IS THAT THE CLAIMANT IS NOT A DISABLED PERSON WITHIN THE MEANING OF SECTION 6 EQA 2010 AS REGARDS HER ALLEGED CONDITION OF CATARACTS. THEREFORE, REFERENCES TO DISCRIMINATION RELATING TO THAT CONDITION SHOULD BE REMOVED FROM THE LIST OF ISSUES

[8]Direct race & sex discrimination (Equality Act 2010 section 13) Intersectional claim8.1 The Claimant identifies as a woman of Black-British of Caribbean origin.

8.2 It was discussed at the hearing on 24 June 2024 and clarified that the Claimant does not bring a claim of direct disability discrimination (other than as referred to in paragraph 5.2 above).

8.3 Did the Respondent do the following things:8.3.1 Did the Director of HR (Julie Foy) and the Assistant Head of HR (Tamara Hanton) refuse to consider the Claimant's grievance? The Claimant alleges that she expected a grievance meeting to take place on 12.01.23 when she returned from annual leave. –

8.3.2 Did Amanda Jackson (the dismissal appeal officer) refuse to consider the Claimant's appeal points or her grievance? The Claimant alleges that this refusal occurred at her appeal hearing on 17.08.23? EXTENSION ALLOWED – IN TIME

8.3.3 Did Lamin Ceesay demonstrate personal antipathy towards the Claimant? The Claimant alleges that the last date on which Mr Ceesay demonstrated antipathy to her was at her disciplinary hearing on 13.06.23? EXTENSION ALLOWED – IN TIME

8.3.4 Did Mr Ceesay refer to the Claimant as 'dead wood'? The Claimant alleges this occurred in a Teams call on 03.12.22. – OUT OF TIME

8.3.5 Did Mr Ceesay allocate more work to the Claimant than for other staff? The Claimant alleges that this allocation took place on 17.05.23 and was confirmed in an email dated 26.05.23.- OUT OF TIME

8.3.6 Did Mr Ceesay lie to the Claimant when he stated that three different colleagues (Tia Hillaire-Simms, Dyon McKenzie and Jessica Brennan) had made complaints about her? The Claimant alleges that Mr Ceesay stated the same on 25.05.22 in relation to complaints from Tia Hillaire-Simms and Dyon McKenzie. In relation to the complaint from Ms Brennan, the Claimant states that Mr Ceesay mentioned the complaint on 06.06.22 and on 15.07.22, the Claimant realised that this was a lie when Ms Brennan wrote an email on 15.07.23 to the Claimant denying that she had complained. ALL OUT OF TIME

8.3.7 Did Mr Ceesay fail to deal with the authorising of the Claimant’s second laptop? The Claimant alleges that it became clear that Mr Ceesay would not deal with it on 13.06.23. EXTENSION ALLOWED – IN TIME

8.4 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated who did not share both of the claimant’s protected characteristics. There must be no material difference between their circumstances and those of the Claimant. The Claimant has not named an actual comparator If there was no actual comparator in the same circumstances as the Claimant the Tribunal will decide whether she was treated worse than a hypothetical comparator would have been treated.

8.5 Did the Respondent’s treatment amount to a detriment?

8.6 If so, was it because of the Claimant’s race or sex?

[9]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)9.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? If so, from what date?

9.2 Did the lack of auxiliary aids, namely an ergonomic chair, [a second laptop, a larger screen in the office and a larger screen at home and/or a personal assistant] TO BE REMOVED AS THESE RELATE TO THE CLAIMANT’S ALLEGED DISABILITY OF CATARACTS put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that in the case of the chair she suffered from backache and in the case of the other aids struggled to do her work?

9.3 Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

9.4 Did the Respondent fail to take those steps, specifically in the periods: Ergonomic chair: the issue began in Autumn 2022 and 229.4.1 the Claimant identified two particular occasions when it allegedly became clear to her that she would not get the chair she requested. The first was 12 November 2022 when it allegedly became obvious to her that Mr Ceesay would not be ordering an ergonomic chair at a supervision meeting. The other was on 20 March 2023 when Jaya Patel had conducted a risk assessment and it became obvious within two weeks of that risk assessment, that a chair was not going to be provided;

9.4.2 Second laptop: December 2022 until 20.03.23, when the Claimant alleges that she knew she would not get her second laptop; TO BE REMOVED AS RELATED TO ALLEGED CATARACTS

9.4.3 Larger screens: the Claimant alleges that she knew by 10.06.22 that she would not get the larger screens; TO BE REMOVED AS RELATED TO ALLEGED CATARACTS

9.4.4 OH Report of 30.09.22: did Mr Ceesay refuse to implement the recommendations (namely reducing the claimant’s screen time) by 03.10.22? TO BE REMOVED AS RELATED TO ALLEGED CATARACTS

9.4.5 OH report of 10.02.23: did Mr Ceesay refuse to consult with relevant professionals and/or fail to implement the recommendations in the report? The recommendations are stated to be:

(a) provision of a member of staff to support her personally (auxillary aid);TO BE REMOVED

(b) reduction in admin work reading (auxiliary aid); TO BE REMOVED

(d) the failure to follow OH advice from the report on 10 February 2023 is also claimed to be a failure to make reasonable adjustments. The Claimant says she was placed at substantial disadvantages of making it difficult to do her work and eye strain causing discomfort because of the practices of th e Respondent failing to implement or follow OH advice and recommendations and also requiring her to work longer hours. The adjustments relied upon are the ordering of new laptops for the Claimant with an appropriate set up to assist her and the other recommendations in that report of 10 February 2023. TO BE REMOVED

[10]Harassment (Equality Act 2010 section 26) 10.1 What conduct on the part of the Respondent does the Claimant say was an act of harassment? The Claimant alleges the following were acts of harassment:10.1.1 an email sent to her personal email account by Mr Ceesay on 12.04.23 querying her return date from annual leave. The Claimant alleges that this related to her race (Black Caribbean) and that Dankay Wurie, a Black-African woman also on annual leave at the time, did not receive such an email. The Claimant alleges that Mr Ceesay is a Black-African man. – OUT OF TIME

10.1.2 The alleged disdainful treatment of her by Mr Ceesay. She alleges that this was because she is BlackCaribbean and he is Black-African. She states such alleged disdainful treatment occurred between January 2022 and 13.06.23; EXTENSION ALLOWED – IN TIME

10.1.3 Being allegedly referred to by Mr Ceesay and Mr Kitching as ‘’dead wood’’ during a teams meeting on 03.12.21. The Claimant asserts that this was because she is a Black-Caribbean woman and Mr Ceesay is a Black-African man and Mr Kitching is a White British Man; OUT OF TIME

10.1.4 The alleged failure to consider her grievance on 12.01.22. The Claimant states that this failure related to her protected characteristics of sex, disability and race. – OUT OF TIME

[11]Did such conduct occur, as alleged by the Claimant or at all?

[12]If so, did such conduct have either the purpose or effect of:(a) violating the Claimant’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. If such conduct did have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, was it reasonable for the conduct to have that effect?

[13]Victimisation (Equality Act 2010 section 27)(i) Has the Claimant done a protected act? It is accepted by the Respondent that she appeared as a witness at Ms Japal’s tribunal hearing (in November 2018 and that this constitutes a protected act;

(ii) Was the Claimant subjected to a detriment by the Respondent? Namely, did Tamara Hanton refuse to postpone the Claimant’s disciplinary hearing?; (26th May 2023) – OUT OF TIME

(iii) If so, did the Claimant suffer such detriment because of that previous protected act? 13.1 The Claimant agreed to withdraw this allegation at the PH on 27.06.24.

[14]Remedy for discrimination14.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

14.2 What financial losses has the discrimination caused the Claimant?

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

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

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

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

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

14.8 Did the Respondent or the Claimant unreasonably fail to comply with it?

14.9 If so, is it just and equitable to increase or decrease any award payable to the Claimant?

14.10 By what proportion, up to 25%?

14.11 Should interest be awarded? How much?

[15]Unauthorised deductions – IN TIME15.1 Did the Respondent make any deductions from the Claimant’s wages and if so, on what date did this/these deductions occur and in what amount? The Claimant alleges that she should have been treated as being in employment while her appeal against her dismissal was pending and she is therefore owed the sum of £1775. She states this should have been paid on 26.07.23 but she did not receive it.

15.2 If the Respondent did make a deduction from the Claimant’s wages, was this authorized or unauthorised?

[16]Remedy for Unauthorised Deductions 16.1 If the Respondent did make an unauthorised deduction from the Claimant’s wages:16.1.1 should the Tribunal make a declaration to this effect?

16.1.2 how much was the unauthorised deduction?

16.1.3 Should the Respondent be ordered to repay this amount?

16.1.4 Is the Claimant entitled to interest on the unpaid sum? If so, how much?

16.1.5 Did the Respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures in making this unauthorised deduction?

16.1.6 If so, is the Claimant entitled to any uplift on the unpaid sum (up to 25%), due to that unreasonable failure?

16.1.7 If the Claimant is so entitled, what percentage uplift should this be? Approved by: