Ms M Campbell v Department for Education: 2218131/2024 and 6008104/2024
EMPLOYMENT TRIBUNALS
Case No 2218131/2024, 6008104/2024
Between
Ms M CampbellClaimantDepartment for EducationRespondent
Before
Employment Judge Keogh, Mr D Schofield, Mr T CookIn person for claimantMs R Mellor (instructed by Counsel) for respondentDate 16 December 2025
JUDGMENT
[1]The claimant’s claims numbers 2218131/2024 and 6008104/2024 are unsuccessful and are dismissed.
REASONS
[1]This case is about the claimant’s probationary employment with the respondent between 1 September 2023 and 5 June 2024, on which date the respondent says it was terminated for a failure of probation relating to performance and conduct issues. The claimant contends that she was subjected to discrimination throughout her employment, and that the termination of her employment was the culmination of a campaign of victimisation against her after raising grievances and raising the first claim. The claimant issued proceedings in claim number 2218131/2024 on 10 April 2024 (“First Claim”), and in claim number 6008104/2024 on 9 August 2024. The claimant brings the following complaints: First Claim1.1 Direct race discrimination1.2 Direct age discrimination1.3 Harassment related to race1.4 Harassment related to age1.5 Victimisation Second Claim1.6 Direct race discrimination1.7 Direct disability discrimination1.8 Direct sex discrimination1.9 Failure to make reasonable adjustments1.10 Victimisation1.11 Wrongful dismissal / breach of contract
The hearing
[2]The hearing was initially listed as a ten day hearing. Due to judicial availability it was then reduced to nine days, and the Tribunal could not sit on two further days. As a result, it was not possible to complete the hearing in the remaining time allocated. The Tribunal therefore arranged further days for deliberations and it was agreed that a reserved judgment on liability would be sent to the parties.[3]We received a bundle of documents, a supplemental bundle, and witness statements from the claimant, and for the respondent Ms Rachel Smith, Mr Derek Coombes, Mr Philip North, Ms Tinu Saide, Ms Catherine Sparkes and Mrs Naomi Ramsay (ne Schweitzer).[4]The first day of the hearing was allocated as a reading day and the parties did not attend. Due to judicial availability on that day, some further time for reading was required on the second day of the hearing.[5]At the outset of the second day of the hearing we discussed whether any reasonable adjustments would be required. The claimant indicated that she suffered from menopausal symptoms including brain fog. It was offered that breaks could be taken whenever required, in addition to the mid-morning, lunchtime and mid-afternoon breaks already scheduled. The claimant did avail herself of this on a few occasions, including to give her time to consider particular issues and how to proceed in her cross examination of the respondent’s witnesses. She was also permitted to use a stress ball. On the respondent’s side it was indicated that two witnesses also need additional breaks, though in the end none were requested during the course of their evidence.[6]The parties had not agreed a timetable in advance of the hearing, and the claimant could not give an indication how long she might need to question the respondent’s witnesses. We therefore took an indication from Ms Mellor as to how long she might require to cross examine the claimant, and during the break for further tribunal reading we constructed a timetable which, in our experience, would give a fair allocation of time to each side and ensure that evidence and submissions would be concluded by day 7. The timetable was agreed with both parties.[7]We dealt with a number of outstanding applications:7.1 The claimant applied for respondent’s counsel to be recused from presenting the respondent in the proceedings on the basis that she sat as a fee-paid Employment Judge and this gave rise to a conflict of interest or bias. The Tribunal is not in a position to ask Counsel to recuse themselves, as this is a matter for Counsel. Had there been any prior relationship between Ms Mellor and any of the panel then that might have given rise to a recusal of the Judge or a Member. However, we were entirely satisfied that no issue of conflict of interest or bias arose, none of the Tribunal having interacted at all with Ms Mellor previously, and Ms Mellor sitting in a different area of England and Wales. Ms Mellor also confirmed that she had no prior interaction with Employment Judge McDonald who had dealt with the previous case management hearing, the discussion at which and the assistance Ms Mellor gave the Judge in that hearing having been the basis for the application. We were satisfied that there had been no conflict of interest at that hearing either, and that nothing arose from the interaction described. It was explained to the claimant that it is perfectly normal for a Judge at a case management hearing, or indeed at a final hearing, to seek assistance from Counsel to explain the procedural background to a case where the other side is unrepresented.7.2 The claimant applied under Rule 49 for certain information to be excluded from any written judgment. The information appeared to be relevant to remedy rather than liability, and in those circumstances we considered the application might be revisited at that point, if necessary.7.3 The claimant applied for a witness order in respect of her former line manager, Ms Nina Taylor, so that she could cross examine her. That application was refused. It was explained to the claimant that if she applied for a witness order for a witness, she would be calling that witness and would not then be able to cross examine that witness. It was generally in her favour if the respondent did not call a key witness, as that witness would not then be present to challenge the claimant’s evidence as to their interactions. In any event, the respondent gave a reasonable explanation at the hearing as to why Ms Taylor had not given evidence. We heard oral evidence from all witnesses.[9]During the claimant’s cross examination of the respondent’s witnesses assistance was given to frame questions (which were often expressed as multiple questions at once) and guidance given on multiple occasions as to the need for questions to be relevant to the list of issues and the need to put the claimant’s case as set out in the list of issues in full to each witness as was relevant to them. The legal tests in respect of direct discrimination and victimisation in particular were explained more than once and the claimant was reminded that if she considered a witness had done something because of race, age etc or because a grievance had been raised, that needed to be put to them. No criticism is made of the claimant in this regard, as she is a litigant in person. We record the matter here for completeness as, despite the guidance given and repeated opportunities to put further questions, there were a number of areas in the list of issues the claimant did not explore at all in her questions.[10]During the course of Mr North’s evidence, the claimant asked questions about excerpts from a policy he had referred to which did not match the version of the policy which had been disclosed by the respondent and included in the bundle. This was a document the claimant had previously asked for. Mr North indicated in answer that he had cut and paste parts of the policy which could be found on the intranet, and that the respondent should be able to provide a copy. As the respondent has a continuing duty of disclosure, Ms Mellor was asked to make enquiries to see whether the correct document could be located. The document was located and provided after the claimant had finished her cross examination. The claimant was permitted time to consider the relevant extract and asked additional questions about it.[11]We received written submissions from both parties. The claimant was given guidance to follow the list of issues in preparing her submissions, but did not do so. Indeed, her submissions did not mention direct discrimination at all, and included lengthy sections on unfair dismissal and procedural fairness, when there is no unfair dismissal complaint. In relation to disability the claimant provided a 2021 paper entitled ‘Menopause and the Workplace: Call for Evidence – Response from the Employment Lawyers Association’. We considered this document but did not find it of assistance in assessing the issues specific to the claimant in the second claim. The claimant provided a separate document in relation to her breach of contract complaint. Part of that document related to an allegation of automatically unfair dismissal under section 103A Employment Rights Act 1996 (whistleblowing) and/or under section 27 Equality Act 2010 (victimisation). The victimisation claim is already included in the list of issues under that heading, however there is no claim for automatic unfair dismissal and we did not consider the same.[12]We have considered all the written and oral evidence and the documentary evidence in the bundle to which we were referred and the submissions made to us, where relevant to the list of issues. If we do not mention a particular fact or dispute in this judgment, it does not mean we have not taken it into account, only that it is not material to our conclusions. We have referred at points to excerpts of documents, however we have read each document referred to in full. All our findings of fact are made on the balance of probabilities. Our decision was unanimous.
The Issues
[13]A list of issues was agreed at a hearing before Employment Judge Clark on 13 March 2025. It is apparent that some time was spent at that hearing attempting to finalise a list of issues, however it appeared to the Tribunal that there was still clarification required. The list of issues was discussed at the outset of the hearing and further information was sought from both parties. The claimant indicated she was not pursuing issue 7(f), which is struck through to maintain the paragraph numbering. It was noted that the complaint of breach of contract was an unusual one and submissions would be required from the claimant as to the basis on which this was a complaint the Tribunal could hear. On that basis that complaint was left in the list as it was. A final list of issues was produced as follows: First Claim – 2218131/2024 Time limits
The Issues
[1]On 23 February 2024, the Claimant contacted ACAS. On 20 March 2024, ACAS issued its EC Certificate. On 10 April 2024, the Claimant presented her ET1. Complaints about conduct that took place on or before 23 November 2023 may not have been brought in time.[2]Were the Claimant’s Equality Act 2010 complaints based on conduct which occurred on or before 23 November 2023?[3]If yes, did the relevant conduct form part of conduct extending over a period of time in respect of which the Claimant presented a timely ET1 at the end of the period?[4]If not, is it just and equitable to extend time? Direct age/race discrimination (s.13 Equality Act 2010)[5]The Claimant’s age group is 55 and over. She compares her treatment to the Respondent’s treatment of people aged 39-50.[6]The Claimant relies on the following protected characteristics of race:(i) skin colour – black(ii) national/ethnic origin – black Caribbean. The Claimant does not rely upon citizenship. Her comparators are white skinned of British/European national/ethnic origin.[7]Did the Respondent do the following things: a) On or around 1 October 2023, Rachel Smith (Claimant’s line manager) gave the Claimant a baseless ‘inconsistent’ performance rating on month one b) On or around 27 December 2023, Rachel Smith took 5 weeks to send the Claimant’s three-month probationary review to the Claimant (it should have been sent on 29 November 2023) c) Rachel Smith added unrealistic objectives to that three- month probationary review d) On or around 21 December 2023, Rachel Smith and Nina Taylor placed the Claimant on a Performance Improvement Plan (PIP) which included unmeasurable items, biased items with no evidence e) On 21 December 2023, Nina Taylor gave the Claimant unachievable unrealistic and not SMART objectives in the PIP f) Nina Taylor and Rachel Smith denied the Claimant training which other colleagues were allowed to go on (i) 4-6 December 2023 - a 3-day workday training event (Ryan Cartwright attended) g) The Respondent offered work to others which it did not offer to the Claimant. (i) On 29-30 November 2023 – Nina Taylor offered ‘ownership of modules’ work to Anna Beck but not the Claimant. h) On or around 21 December 2023, Nina Taylor and Rachel Smith gave the Claimant objectives to complete in order to pass her probation objectives which they gave to other members of staff (including Jonathan Lomas, Ryan Cartwright) as just regular system housekeeping month-to-month business with no measures i) Nina Taylor and Rachel Smith wrongly stated in the Claimant’s PIP that she received bad stakeholder feedback when in fact she had received good stakeholder feedback (from Maggie Swindon) (comparators Ryan Cartwright, Jonathan Lomas). Nina Taylor and Rachel Smith included the negative feedback on the PIP which was the first time the claimant was made aware of it and was not given a chance to respond prior as the person that gave the negative feedback was never revealed so she could not give her side of actual events The positive stakeholder feedback from Maggie Swinden (Stakeholder) was never considered in the claimant’s favour. j) On or around 21 December 2023, Nina Taylor and Rachel Smith queried the Claimant’s job application k) Around 7 December 2023, Derek Coombes (higher manager) shared the Claimant’s health information with Rachel Smith without the Claimant’s consent.[8]If the conduct occurred, did the Respondent thereby treat the Claimant less favorably than it did treat the following comparators (all are comparators for each allegation, save where individual comparators are specified): a) Age Comparator:a. Ryan Cartwrightb. Jonathan Lomasc. Anna Beck b) Race Comparators a. Ryan Cartwright b. Jonathan Lomas c. Anna Beckd. Andrew Wilson c) Claimant also relies upon a hypothetical white British comparator aged 39-50.[9]If the treatment was because of the Claimant’s age, was the treatment a proportionate means of achieving a legitimate aim? The Respondent will say its legitimate aims were: a) The requirement for all employees to successfully complete the probationary period b) The requirement for all employees to adhere to the Probationary Policy c) The requirement for all new employees to be subject to the same Talent Grid Assessment d) The health, safety, and wellbeing of all employees e) The requirement for all employees to have 2+ years’ workday Configuration experience and to evidence this in a reasonable time or following a reasonable management request[10]In deciding the issue of proportionality, the Tribunal will consider: a) Was the treatment an appropriate and reasonably necessary way to achieve one or more legitimate aim b) Could something less discriminatory have been done instead c) The balancing of the needs of the Claimant and the Respondent. Harassment related to age or race (s.26 Equality Act 2010)[11]Did the Respondent do the following things: a) On 11 December 2023, Rachel Smith questioned the Claimant about her health via MS Teams based on the information concerning the Claimant’s health which Derek Coombes had wrongly shared with her[12]If the conduct occurred, was it unwanted by the Claimant?[13]Did the conduct relate to the Claimant’s age or race?[14]Was the purpose or effect of the conduct (taking into account her perception, the other circumstances of the case, and whether it was reasonable for the conduct to have that effect) a) To violate the Claimant’s dignity b) To create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? Victimisation (s.27 Equality Act 2010)[15]Did the Claimant do a protected act as follows: a) Claimant’s grievance submitted 17 January 2024 b) Claimant’s grievance submitted 17 May 2024 The respondent accepts these are protected acts.[16]Did the Respondent do the following things: a) After her return to work from sick leave on 2 February 2023: i. Derek Coombes did not allow the Claimant to resume her role, do her normal work, or attend pre-planned meetings ii. Derek Coombes did not permit the Claimant to attend business meetings within her role and job description b) the Respondent did not provide a timely response or any response to the Claimant’s SARS request made around 21 March 2024 c) On 12 April 2024, Teams meeting attended by the Claimant and others was concluded, but Jonathan Lomas and Andrew Wilson restarted the meeting which went on for a further 43 minutes without the Claimant d) The Claimant’s dismissal by Philip North on 5 June 2024 e) The Respondent paid the Claimant’s 5 weeks' notice pay late (it should have been paid on 5 June 2024) f) The Respondent paid the Claimant’s 8 days holiday pay late (it should have been paid on 5 June 2024) g) The Respondent did not investigate the Claimant’s second grievance h) The Respondent did not follow its own probation policy and procedure in the following respect: the Claimant’s probation should have lasted 6 months, not 3 months.[17]By doing so, did the Respondent thereby subject the Claimant to a detriment?[18]If it did, did the Respondent subject the Claimant to the detriment because the Claimant had done one (or more) protected act?
Remedy
[19]Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the claimant? What should it recommend?[20]What financial losses (if any) did the Respondent’s unlawful conduct cause the Claimant?[21]Has the Claimant taken reasonable steps to mitigate any loss arising from her dismissal?[22]For what period of loss should the Claimant be compensated?[23]Did the Respondent’s unlawful conduct injure the Claimant’s feelings – if yes, what is the appropriate award for that injury?[24]Did the Respondent’s unlawful conduct cause the Claimant to suffer a personal injury? If yes, what is the appropriate award for that personal injury?[25]Is there a chance the Claimant’s employment would have ended in any event? If yes, how great a chance?[26]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If it did:(i) Did the Respondent unreasonably fail to comply with it?(ii) If they did, is it just and equitable to increase any award payable to the Claimant, and if so, by how much?[27]Is the Claimant entitled to interest on any award? If yes, how much? Second claim – 6008104/2024 Time limits 1. On 5 August 2024, the Claimant contacted ACAS. On 20 8 August 2024, ACAS issued its EC Certificate. On 9 August 2024, the Claimant presented her ET1. Complaints about conduct that took place on or before 5 May 2024 may not have been brought in time (subject to any submissions in relation to the effect of the second ACAS certificate). 2. Were the Claimant’s Equality Act 2010 complaints based on conduct which occurred on or before 5 May 2023? 3. If yes, did the relevant conduct form part of conduct extending over a period of time in respect of which the Claimant presented a timely ET1 at the end of the period? 4. If not, is it just and equitable to extend time? Disability[1]Was the Claimant disabled with the definition of s.6 Equality Act 2010, at the time of the events the claim is about specifically from 6 March 2024. The Tribunal will decide: a) Did the Claimant have a physical or mental impairment? The Claimant relies on menopausal symptoms including brain fog, fatigue and mental health issues. b) Would the impairment have had a substantial adverse effect on the Claimant’s ability to perform day to day activities without the treatment or other measures? c) Did they last at least 12 months, or were they likely to last at least 12 months? if not, were they likely to recur? d) Did the Respondent have knowledge of the Claimant’s disability? If not, ought the Respondent to have been reasonably aware that the Claimant was a disabled person? e) From what date did the Respondent have knowledge of the Claimants disability? (constructive or actual)? The respondent accepts it had knowledge of the impairment from and was made aware on 17/5/24 but denies that the impairment amounts to a disability. Direct race / disability / sex discrimination[2]The Claimant relies on the following protected characteristics of race: black of black Caribbean ethnic origin, menopause symptoms, and a woman.[3]Did the Respondent subject the Claimant to the following alleged less favourable treatment? a) On or around 7 May 2024 changing the Claimant’s duties from that of a workday analyst to that of a script tester. b) Unilaterally “pausing” and suspending the Claimants probationary period on 23 February 2024. c) Holding the probationary meeting on 29 May 2024 in circumstances where the claimant was unfit to attend it. d) Failure to provide an occupational health assessment on or after 12 April 2024. e) Failure to provide a risk assessment despite being made aware of the Claimant’s fragile mental health on 13 May 2024.[4]Does the Tribunal find that such treatment occurred?[5]If so, has the Claimant proven facts from which (absent any other explanation) an unlawful act of discrimination could be inferred? If not, the claim fails.[6]The Claimant says she was treated worse than hypothetical comparators and the following comparators in respect of race:a. Ryan Cartwrightb. Jonathan Lomasc. Anna Beckd. Andrew Wilson[7]If so, has the Respondent demonstrated that the unfavourable treatment was not connected to the Claimant’s alleged race/disability /sex Failure to make reasonable adjustments[8]What is the PCP, physical feature or lack of auxiliary aid that the Claimant alleges put her at a substantial disadvantage compared to persons who are not disabled? a. There is a practice to not provide a detailed written agenda prior to meetings or to follow the agenda in meetings.[9]What was the substantive disadvantage to which the Claimant was put compared to persons who are not disabled? a. The Claimant states that she was unable to actively participate and be properly prepared for meetings.[10]Did the Respondent know, or ought reasonably to have known that the Claimant was likely to be placed at a substantial disadvantage because of their alleged disability in respect of the PCP? a. The Claimant states that the Respondent was made aware on 17 May 2024.[11]Did the Respondent take such steps as were reasonable to avoid the disadvantage?[12]What reasonable adjustment does the Claimant say the Respondent should have made? a. The Claimant states that she should have been provided with a written detailed agenda prior to any meeting.[13]Was the adjustment reasonable in the circumstances?[14]Would that reasonable adjustment in question have alleviated the substantial disadvantage? Wrongful dismissal / Breach of contract[15]The terms of the contract relied upon are; a) The implied term of trust and confidence. b) The implied term of duty of care for an employee’s health and safety c) The express entitlement to complete a six month probationary period as set out in the Claimant’s statement of main terms and conditions of employment. d) The implied term that the Respondent would provide accurate information on tax documentation to the Claimant.[16]The Claimant relies on the following matters as individually cumulatively amounting to a breach of her contract; a) Not affording the Claimant the full 6 month probationary period. b) Failing to provide a mental health first aider at the formal meeting on the 29th May 2024 c) Failing to make an occupational Health referral to check if the claimant was in a mental fit state to attend the formal meeting on 29 May 2024 Health and Safety d) Suspending the Claimant’s probationary period and subsequently failing to restart it e) Changing the Claimant’s duties from that of a workday analyst to that of a script tester f) The Respondent’s failure to properly investigate the Claimants claims, i.e. by appointing the same person throughout, specifically; i. Philip North was appointed as the grievance decision maker on 17 January 2024 and 22 May 2024, ii. Philip North was the investigator of the claims on 22 February iii. Philip North conducted a formal probationary review on 29 May 2024, and probationary meeting on 5 June 2024 iv. Philip North’s Line Manager Naomi S heard the Dismissal appeal which was not upheld this was bias just two senior managers involved in the dismissal from the same management line nd grievance, on 22 May 2024 Philip v. Failure to consider the 2 North stated that it would be discussed at the formal probationary review meeting[17]Did these events occur? If so, did this amount to a breach of the contract?[18]Did the Claimant waive or affirm any of the alleged breaches of the implied terms relied upon?[19]Insofar as the Tribunal finds that there has been a dismissal, was this a wrongful dismissal?[20]Did the Claimant do a protected act as follows:(a) Claimant’s grievance submitted 17 January 2024;(b) Claimant’s grievance submitted 17 May 2024; and(c) Bringing proceedings. The respondent accepts these are all protected acts[21]Did the Respondent do the following things: a) Refuse the Claimant’s request for a reasonable split of work of Testrail on 7 May 2024. b) Failure to give due consideration to the grievance appeal dated 22 May 2024 on 29 May 2024. c) Failure to provide a fair probationary review on 29 May 2024. d) Holding a probationary review which was in the nature of a disciplinary hearing. e) Refusing the Claimant’s request to have only one manager undertake the monthly ABLE performance review. f) From 17 April 2024 Derek Coombes stopping communicating with the Claimant, ignoring all emails so the Claimant could not carry out her work effectively to add the work to my probationary review. Working on TestTrail did not provide and prove her skillset in relation to the PIP and objectives set by her managers which disadvantaged her g) Failing to comply with the contract in that the Respondent did not permit the Claimant to complete the probationary period where others were allowed to complete the period. h) Failing to consider any alternative options i.e. extension of the probation period. i) Claimant agreed to partake in mediation to resolve workplace issues the two managers rejected this suggestion j) Failing to take into account the Claimants successful progress and vast workday experience in the work. k) The Respondent insisted on holding the meeting dated 29 May 2024, without providing a detailed written agenda, or giving due consideration to whether the Claimant was fit to attend the meeting. l) Dismissed the Claimant on the basis of an unsuccessful probation which was meant to last 6 months but was in place for 4 months. m) The Claimant received her final payments over two payments, which were due June 2024 and only received in July 2024 and as such was taxed at a higher rate. n) Failing to provide a response to the DSAR and subsequent data requests made on 26 February 2024, 21 March 2024, 27 March 2024, 17 October 2024, 22 November 2024. o) Dismissal[22]By doing so, did the Respondent thereby subject the Claimant to a detriment? a) The Claimant states that she was unable to complete her probation period and thus secure permanent employment. b) The Claimant was unable to properly prepare and participate in the meeting on 29 May 2024, as the agenda was not reflective of the meeting and Philip North did not pause to provide adequate breaks, as he said he would do[23]If it did, did the Respondent subject the Claimant to the detriment because the Claimant had done one (or more) protected act?
Remedy
[24]What financial losses has the discrimination / unlawful conduct caused the Claimant?[25]Has the Claimant taken reasonable steps to mitigate her loss?[26]If not, for what period of loss should the Claimant be compensated?[27]What injury to feelings has the discrimination / unlawful conduct caused the Claimant and how much compensation should be awarded for that?[28]Should interest be awarded? How much?[29]Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[30]Did the Respondent unreasonably fail to comply with it?[31]If so, is it just and equitable to increase or any award payable to the Claimant?[32]By what proportion, up to 25%?[33]Should any recommendation be made? The Facts The parties 14. The respondent is government department. Within that department this case is concerned with the Human Resources and Transformation Directorate. There were around 175 people in the directorate. Mrs Ramsay was the Director. Under her line management there were 16 Deputy Directors, including Mr North, Ms Sparkes and Ms Saide, who were each responsible for discrete and large areas of work. Mr North had line management responsibility for Mr Coombes, who in turn had line management responsibility for Ms Taylor and Ms Smith. 15. Beneath this was a small team of Higher Executive Officers (HEO) / Human Resources Information Technology (HRIS) Analysts, known as the development team. 16. Their role was to manage a software platform used by the respondent for HR functions called Workday. 17. The claimant is an information technology professional with previous experience of Workday. The claimant’s recruitment 18. Before September 2023 the respondent advertised a position for a HEO / HRIS Analyst to join the development team. 19. At that point in time there were four members of the development team, none of whom were on probation. They were all white, with three male and one female. 20. The terms of the advert were as follows in terms of the job description (page 174): “Key responsibilities of the role include:• Partnering with key stakeholders to understand their business requirements and how the system can best support these.• Being proactive in understanding system functionality and future roadmaps to ensure we are optimising our use of Workday.• Supporting, analysing, troubleshooting, and resolving Workday issues• Working closely with our Data and IT teams to develop and maintain integrations into downstream business solutions• Delivering and supporting optimisation projects and enhancements• Documenting technical specifications and mapping of impact across the business• Escalation for complex queries relating to Workday business processes to ensure effective system service delivery. Working closely with the HR, Payroll and Expenses teams to ensure a seamless user experience• Training and upskilling key stakeholders in the use of Workday• Analysing system performance and suggest improvements.• Manage the review, impact analysis and implementation of the bi- annual Workday release cycle• Deliver Products, Tools, and Documentation, ensuring the delivery of change is made against a fully auditable process• Maintaining the security for the system including; testing, assurance, data privacy and best practices.” 21. The essential criteria included: “Workday Pro or equivalent Workday training (6+ Workday certified courses to include HCM Fundamentals, Report Writer, Business Process Fundamentals plus one specialism i.e. Learning, Time Off, Performance)” 22. The claimant applied and in her application referred to 6 such courses (page 188): “I have completed Workday certified courses in HCM Fundamentals, Report Writer, Business Process Fundamentals Time Off and Time Tracking Compensation and Advanced Compensation…” 23. The claimant was successful in her application and commenced employment on 1 September 2023. 24. The terms of her contract provided as follows (p194 onwards): “Introduction Your Employment with the Department for Education (DfE) is in accordance with the employment conditions contained within this contract of employment and those which are found as part of the policies and procedures contained on the DfE’s Intranet site. … Probation Your employment with DfE will require the completion of a successful probationary period. The department’s probationary period duration is six months, therefore you will be on probation until 1 March 2024. We will confirm your appointment provided you have shown that you can meet the normal requirements of your grade HEO and your attendance and conduct have been satisfactory. If you do not reach the required standard we will normally terminate your contract. In exceptional circumstances we may extend your period of Your appointment may be terminated at any time during the probationary period if your service is unsatisfactory and it is clear that you will not be able to reach the required standard before the end of the probationary period. … Notice … The Crown has the power to dismiss at will, and this contract is subject to that power. If your contract is terminated by DfE (other than for summary dismissal or redundancy) then you will receive the notice period set out below:• Continuous Service for up to four years is five weeks• Continuous Service for four years and over is one week plus one week for every year of continuous service up to a maximum of 13 weeks. You will receive no notice if your employment is terminated early by mutual consent. If for any reason the department prefers you not to remain at work during any notice period, you may be given payment in lieu of notice.” 25. One of the policies we have been referred to during the hearing is the Probation Policy. The version which was disclosed and provided in the bundle notes as footnote ‘Last updated Apr’16’. The claimant quite rightly noted in these proceedings that disclosed document did not match the excerpts provided in correspondence to her, and raised this in cross examination with Mr North. As discussed above, a further document was then produced and further cross examination was permitted. We accept Mr North’s explanation that the excerpts in correspondence were taken from the respondent’s intranet and cut and pasted. We also accept the new version is the correct version which applied to the claimant’s employment at the time. Although we appreciate the claimant’s valid concern that the incorrect document was disclosed despite her specifically asking for this document, we do not consider the fact that the wrong version disclosed impacts on Mr North’s credibility as a witness as he personally was not responsible for the disclosure exercise. He was able to provide information in evidence as to where the correct document was to be found and it was then swiftly located. 26. We therefore only refer to the updated version which was provided during the course of the hearing. This provides for a six month probation period for all new employees to the department. The policy requires line managers to undertake two formal probation reviews at three and six months. In relation to informal reviews, the policy provides (page 1007): “Regular informal reviews help line managers to provide employees with support throughout probation and to identify and address any concerns or minor misconduct early in the process. The performance management process (ABLE) applies to employees on probation. As such, line managers should also use monthly check-ins as informal probation reviews during the probation period. The probation checklist (Word, 8 pages) shows the issues that should be covered at informal reviews. Line managers must retain brief notes of monthly informal probation reviews for their records. All notes must be shared with the employee in line with record keeping guidance. However, line managers do not need to wait until the monthly check-in to have an informal discussion with the employee - they can take place whenever immediate or early intervention is needed. Line managers must retain brief notes of any such discussions for their records. In such cases, line managers must discuss with the employee:• the area(s) of concern• the standard expected• timescale for improvement (usually no more than one month)• additional support / guidance to be provided• how this will continue to be monitored and reviewed If the problem persists or is more serious (e.g., gross misconduct), formal action may be more appropriate. Line managers should contact the CSHR Casework Service for advice.” 27. There is then a section entitled ‘Outside formal reviews’ which states (page 1008): “If a serious issue (including gross misconduct) arises in relation to the employee’s conduct, attendance and / or performance that cannot be dealt with informally, line managers can arrange a formal meeting at any time during probation. ….” 28. In respect of formal meetings, the policy provides (page 1010): “The decision maker will, where possible, be senior to the line manager and have authority to consider the appropriate level of sanction. The decision maker must be at Deputy Director level (or at least one grade above the employee concerned if the employee is DD level or above) where the outcome of the formal meeting is likely to be dismissal.” 29. Under the heading ‘Dismissal – unsuccessful probation’ it is provided (page 1013): “Dismissal can only be considered if the employee has already been issued with a written warning during the probation process and their attendance / conduct / work performance has not improved in the timescale specified unless gross misconduct applies. A formal meeting must be held prior to any decision to dismiss. Dismissals can only be made by a Deputy Director (DD, or at least one grade above the employee concerned if the employee is DD level or above), who should seek advice from the CSHR Casework Service. The employee must have been made aware in the letter about the formal meeting and at the actual meeting that the outcome could result in action up to and including dismissal.” 30. Under the heading ‘Suspending probation’ the policy provides that if line managers are unable to assess an employee’s suitability for the role due to a lengthy period of absence during the probation period, they may suspend the probation period temporarily. It notes that probation should normally be suspended where employees are temporarily unable to work in their substantive role. It also notes that probation may be suspended temporarily to deal with a dispute and resume once a dispute has been addressed. The policy provides that when the employee returns to work, managers must arrange an informal discussion to resume the probation period and process. 31. Separately, the respondent has a ‘Managing under performance policy’. The overview provides (page 887): “This policy applies to all grades who are underperforming or are at risk of underperforming and have completed probation. For those who have not completed probation, view the probation policy. Underperformance is a capability issue and can be identified through poor quality of work, failure to meet deadlines or targets, low volume of work achieved and negative actions and behaviours that impact on others. Issues outside of this are likely conduct issues and should be dealt with under the disciplinary policy.” 32. Under the heading ‘Managing underperformance informally’ the policy provides: “In most cases, dealing with dips in performance should be dealt with through monthly check-ins and additional 121s. Line managers should discuss their expectations and causes of underperformance in their check-ins. They should provide targeted support, constructive feedback, and development opportunities to help employees achieve and maintain good performance standards within an agreed timeframe. To do this, a performance improvement plan may be discussed with the employee and implemented. Performance, including any improvement plans, should be monitored, and regularly reviewed. If underperformance is linked to ill health, disability, or gender reassignment, you should contact the Occupational Health Service and consider any reasonable adjustments.” The claimant’s employment 33. The claimant joined the team under the line management of Ms Smith, although Ms Taylor was also involved in managing the claimant during the first three months, and formally took over line management on 21 December 2023.
issues
[34]On 7 September 2023 Ms Taylor sent a message to the claimant (page 191): “…I’m just sorting your learning/named support contact account on Workday Customer Centre. Please could you let me have your previous email address that you were registered with and then they will link your account so that your learning history feeds through…”[35]The claimant provided her previous email address.[36]Pre-employment checks for the claimant were satisfactorily completed on 8 September 2023. We accept Ms Smith’s evidence that these were identity checks. They did not include checks in relation to Workday certifications. A Workday transcripts showing what courses had been attended could only be requested after the commencement of employment.[37]On 13 September 2023 Ms Taylor emailed the claimant in relation to her training record, after the claimant confirmed she had no training with her previous employer (page 203): “Ahhh OK. I might be able to get any previous training transferred if you want, but entirely up to you [smiley emoji]”[38]The claimant replied the next day that she would leave it for now.[39]Part of the assessment of probationers was a ‘Talent Matrix Placement’ which was used to grade probationers at the end of monthly Able one-toone meetings. On 11 October 2023 Ms Smith rated the claimant ‘Inconsistent’ on this document.[40]Related to this is an email dated 7 June 2023 before the claimant started her employment, from the Head of HR Operations and Transformation Ms Milikouris to various individuals, including Ms Smith (page 190): “Here’s my notes with actions from our discussion: 1. Action for all re new starter placement – please discuss with your managers – we had a conversation about the landing position on the Talent Grid for new starters and concluded that, going forward, we will generally (depending on – for example – whether they are new to grade) expect to see them in ‘Inconsistent’ initially before (quickly providing no performance issues) moving to another box on the grid. This is instead of using ‘Early Promise’ as the default (although this may be the right box for new starters by exception).”[41]The claimant accepted in cross examination her score would be ‘Inconsistent’ in accordance with that email, but suggested that positive feedback could also have been added. Ms Smith explained in her cross examination that probationers have monthly Able conversations, which influenced but were not directly linked to the Talent Matrix Placement ratings. The documentation for this did not include a free text box, only drop-down options. There was however a separate feedback tool where people could share feedback about an employee or colleague by reference to specific skills, however this was not a function widely used across the department. We accept Ms Smith’s evidence on this point. It is consistent with the type of positive feedback which we have seen screenshotted and included later in the claimant’s Performance Improvement Plan.[42]We note that the following further ratings were given during this period (page 866): 3 November 2023 – Effective (rated by Ms Smith) 18 December 2023 – Inconsistent (rated by Ms Smith) 21 December 2023 – Inconsistent (rated by Ms Taylor)[43]The claimant alleges that at around the end of November 2023 Ms Taylor offered ‘ownership of modules’ work to the claimant’s colleague Ms Beck, who refused it, and did not offer the work to the claimant. The claimant stated in cross examination that when she asked whether she could do this work she was told perhaps, but they (we infer Ms Smith and Ms Taylor) wanted to see she had the fundamental learning course on Workday, which she accepts she did not have. Ms Smith states in her witness statement that Ms Beck had previously been responsible for the module and had completed the relevant training, therefore had the skill set needed to undertake the work required. The Tribunal accepts both accounts, which are not inconsistent.[44]On 29 November 2023 Ms Smith and Ms Taylor together held the claimant’s three month probation review meeting. The record of the meeting notes a summary of things that had gone well, and two areas for improvement, namely project management and stakeholder management. The claimant was at this point on track to complete the probation period successfully. The record states that the following actions were agreed: “-Take ownership of the Job Profiles project to enable us to see your full capability. -Provide clear and timely updates through Jira. -Project Manage to ensure key deliverables remain track for deadlines.”[45]The claimant states that during this meeting she was asked to transfer her core learning from Workday to the respondent. Ms Smith states that she raised the requirement for the Claimant to provide confirmation of her training history as part of her review. In addition, she reiterated that she had refused access to the system to other people who had not completed the required training and as such it was very important that the claimant provide her training confirmation. We prefer Ms Smith’s account of what was said about training. It is clear from the respondent’s consistent evidence throughout the hearing that it was important for the claimant’s training record to be verified by the respondent and thus evidenced by the claimant. The claimant did not have good recall of this meeting in cross examination. We also find that there was a full discussion about the areas for improvement, which related to the claimant taking on the Job Profiles project. We are supported in this by the emails written later to the claimant by Ms Smith on 18 December 2023 at 14.44pm and 19 December 2023 at 14.33pm, set out below.[46]We note that the formal record was not in fact shared with the claimant until around 18 December 2023, as discussed below.[47]It was around this point the claimant transferred part of her Workday transcript which showed four (but not all) of her completed courses.[48]On 1 December 2023 Ms Taylor emailed the claimant with priorities for the following week, stating that objectives would be put on Workday when she returned from leave. This included a piece of work on a Job Profiles project. Ms Taylor set out a number of points for the claimant to complete in December, and referred to ‘Jiras’ which were tasks set out in more detail on the respondent’s online system, giving the claimant a clear deadline for three of the tasks to be completed and noting that they would meet to go through together on Ms Taylor’s return. The email mentions ‘BAU’, referring to ‘Business as usual’, which for this team included regular UDS checks, which the claimant was at this point not trained to do. The email stated it would be good to get the claimant to a point where she could pick up this work, but that would be left to January (page 844).[49]On around 7 December 2023 Mr Coombes relayed to Ms Smith that he had seen the claimant in the office and she had been feeling unwell. Mr Coombes sent Ms Smith a message with a draft email to send to the claimant confirming that she could work at home under the hybrid policy and asked her to get in touch with Ms Smith to discuss (page 231). An email with the same text was sent to the claimant by Mr Coombes on the same day (page 466).[50]We accept Mr North’s uncontested evidence that it was brought to his attention on the morning of 7 December 2023 that the claimant was complaining about having to attend the office while unwell. At that time all employees had been asked to attend the office 60% of the time, and Mr North considered the claimant did not appreciate that this expectation could be adjusted if an employee felt unwell but was able to work from home. It was him who contacted Mr Coombes and asked him to contact the claimant to inform her that if she was unwell she did not need to attend the office. We further accept Ms Smith’s evidence that Mr Coombes relayed to her verbally in a weekly Teams meeting, of which there is no written record, that the claimant hadn’t been feeling very well in the office. The reason for this was that Ms Smith was not based at the same location. Mr Coombes clarified in cross examination that the reason for the draft email was that he was the countersigning officer, the line manager’s manager, and hadn’t been working closely with the claimant at this time. He wanted to make sure the message to the claimant landed well as hybrid working had been the source of some tension in the organisation. The intention was for the message to be supportive.[51]On 11 December 2023 Ms Smith sent messages to the claimant between 8.40am and 10.02am asking if the claimant was feeling better, to which the claimant responded that she was ok but did not want to spread it, and saying that the claimant should have said the previous week that she was not well (page 489).[52]On 15 December 2023 there was a series of emails between the claimant and Ms Taylor about the claimant’s courses. At 16.01pm Ms Taylor emailed (page 849): “I just wanted to touch base on your training record. I saw the notifications (as NSC) that Workday have linked some of your previous records (Arriva and Nuffield Health I think). This has pulled through your HCM Fundamentals, Business Process Fundamentals, Report Writer and Configurable Security Fundamentals. Please could you arrange for your record to be linked that evidences your Time Off Fundamentals, Time Tracking Fundamentals, Compensation Fundamentals and Advanced Compensation Fundamentals. Sorry this is proving to be difficult in terms of getting your records linked, but given these are essential requirements of the role we have to verify the certifications. I will hopefully be around more next week and we can catch up then. But just wanted to flag this in the meantime so that you can be liaising with Workday to get the remaining certifications confirmed.”[53]The claimant replied at 17.10pm: “Can you let me know where it is required that I have done all the courses listed? Is this a requirement for all the team? I thought the key courses were HCM Fundamentals, Business Process Fundamentals, Report Writer and Configurable Security Fundamentals, which I have referenced in my workday learning record. I have declared the courses relevant for the role please let me know if this is not the case.”[54]Ms Smith responded at 17.12pm (page 850): “I’ve attached the job advert which outlines the essential criteria for the role of Workday Pro or equivalent Workday training (6+ Workday certified courses to include HCM Fundamentals, Report Writer, Business Process Fundamentals plus one specialism i.e. Learning, Time Off, Performance) I’d asked for the specific courses below as they are the ones you’d stated in your application which made up the 6+ certifications including the specialism (in your case around Compensation, Time Tracking and Time Off) We’ve got some time in on Wednesday so we can pick up then.”[55]At 17.47pm the claimant emailed Ms Taylor asking for a copy of her three month probation review record from 29 November 2023. Ms Taylor replied that she and Ms Smith were looking at how best to transition line management between them and copied in Ms Smith to send a copy of the report.[56]On 17 December 2023 Ms Taylor emailed the claimant to provide her clarity on ongoing priorities in order for the claimant to build out her objectives over the next couple of months, and extending deadlines for some work as they had not had a meeting the previous week. She requested the claimant to send her the initial slide decks she had drafted that were detailed in the Jiras the following morning so that Ms Taylor could prioritise looking at these and provide feedback for the claimant to refine them for the remainder of the week.[57]On 18 December 2023 Ms Taylor invited the claimant to attend a meeting about her Workday certifications, which the claimant requested to have recorded. At 11.31am she emailed to confirm the conversation (page 855): “To confirm our conversation earlier, the information we require is your training record which confirms you have carries out the courses below in full and as such have ‘passed’ the course. Basically exactly the same as attached for the HCM, Report Writer, Configurable Security and Business Process courses. You’ll see some will show as ‘passed’ and others as ‘do not track’. I’m not worried about that element (it is dependant upon the trainer as to how they complete). I just need to be able to see that you have fully attended each of the course and they are successfully completed. Please could you now link in with Workday to get your remaining course history that evidence the courses below, which you have confirmed you’ve attended linked to your learning record so that we have this evidence. Ideally if you could get this in advance of our check in on Wednesday please that would be great.”[58]Ms Taylor sent a further email at 11.48am (page 856): “As we explained during the meeting and stated in the email below, the essential requirements for the role are: Workday Pro or equivalent Workday training (6+ Workday certified courses to include HCM Fundamentals, Report Writer, Business Process Fundamentals plus one specialism i.e. Learning, Time Off, Performance) The outstanding courses that we require confirmation of are those outlined on your application. These are stated below but for ease they are:• Time Off Fundamentals• Time Tracking Fundamentals• Compensation Fundamentals• Advanced Compensation Fundamentals. If you can get Workday to evidence your full attendance on these courses then that will provide what we need.”[59]At 12.08pm the claimant emailed Ms Taylor and Ms Smith asking again for her probation review report. Ms Smith sent this by return email at 12.45pm with her apologies for the delay. We accept her evidence that she had simply forgotten to send it.[60]At 12.49pm Ms Taylor emailed the claimant stating she had been reflecting on the meeting and that it was not normal practice to record meetings and would ask that the claimant did not record meetings going forward.[61]At 13.21pm the claimant emailed Ms Smith and Ms Taylor about the probation review report (page 860): “Thank you both for my 3-month Probation outcome. Unfortunately, the below was not discussed as dependencies against my successful probation completion and therefore this review is not accurate as to what was discussed . The 3 denoted in red were not even discussed at all and are ambiguous and a complete surprise to me.• Take ownership of the Job Profiles project to enable us to see your full capability.• Provide clear and timely updates through Jira.• Project Manage to ensure key deliverables remain track for deadlines.• Project Management [marked in red]• Stake Holder Management [marked in red] Please can you evidence the bullets in red as to where we discussed or referenced this and how and what they can be measured against for my success. As I don't even have a starting point as we never discussed them.”[62]There followed a series of emails between them all debating what had been discussed, and the claimant requested a meeting to discuss the objectives set and seeking SMART clarity.[63]This included an email from Ms Smith at 14.44pm in response to the claimant’s email at 13.21pm (page 283): “The below is in relation to the conversation we had regarding the new Job Profiles project. We discussed that by taking ownership of this project it would give you a better opportunity to take forward Key deliverables and deadlines within the project requirements and give an opportunity to create good relationships with Key Stakeholders within the project.”[64]The exchange culminated in Ms Taylor sending a lengthy email at 16.23pm (page 863). “Sure, we will pick up in your monthly 1-1 on Wednesday. In the meantime, I would refer you to the Jira’s in terms of the Specific, Measurable, Achievable and Realistic elements of SMART and the email below (the yellow highlighted part) where I’d outlined the deadline for getting the draft slide decks prepared in terms of the Timed element. I’d asked you to link in with Rachel in my absence so that I’d got a draft to review when I returned from leave. Have you got anything that I can be looking at in advance of our meeting on Wednesday as that will enable us to make best use of our time when we catch up? I have copied the detail of the objectives below – all except the first BAU one are a direct copy of the information which I’d put into Jira. I’d purposely invested time prior to my annual leave working up much more detailed Jira’s than I’d normally draft to ensure you had the clarity needed to make progress against this in my absence. The deadlines for each strand are on each Jira. I’d revised the due date of Objective 2, 3 and 4 from the initial date of 15 December to the 22 December to recognise that I unfortunately had to cancel the meeting last week given personal circumstances. I do though really need to have sight of the draft slide decks in order to best support you in meeting the deadline of Friday so could please send those onto me/provide a link (even in draft form). As there are no updates on the Jira’s I’m currently unable to see where you are at with each of the tasks below, what insights you have found from communities etc which would enable me to support you more remotely.”[65]She then copied and pasted the objectives from Workday.[66]On 19 December 2023 at 9.37am the claimant sent an email to Ms Taylor (page 269): “I have a lot to offer this team, and I think together we can make a positive difference for the business, but I respectfully ask for some consideration, as I do not feel supported, or that I have been set up for success. I hope we can find a way forward.”[67]Ms Taylor responded that this would be covered in the one to one meeting, and that she would reply to the claimant’s other emails in advance of the meeting to discuss then (page 269).[68]At 9.55am the claimant emailed Ms Taylor expressing an interest in further Workday training and responding to Ms Taylor’s email of 15 December 2023 in relation to Workday certifications, (page 287): “I was quite surprised to receive the below rather than any word on the above, and that my previous workday learning courses was brought into question, as Rachel stated the core workday courses have to have been done, Which I have evidenced. I have been given Talent as part of my objectives, and as you know I have not undertaken this workday course, so one might have thought I would have been offered the course as part of setting me up for success, as I understand my colleague recently undertook a workday course to support his work assignments. I really hope I can be considered and afforded the same opportunities at some point.”[69]Ms Taylor responded at 13.38pm that there had not been training credits available since May 2023, and those had been assigned to colleagues in post at the time. She continued (page 287): “ The immediate focus is for you to provide your Workday learning record to demonstrate you have undertaken the courses outlined on your application form. For clarity these are:• Time Off Fundamentals• Time Tracking Fundamentals• Compensation Fundamentals• Advanced Compensation Fundamentals. You confirmed yesterday that you have undertaken these and that you would link in with Workday to update your training history. Please could you prioritise doing that ahead of our monthly 1-1 tomorrow.”[70]Ms Smith then emailed at 14.33pm in relation to the claimant’s objectives (page 281): “ The objectives that you have in place through the Job Profiles project links in with the three areas you have highlighted below and so no further objectives are required to meet this. The two main areas for improvement are Project Management and Key Stakeholder Management. You should be able to demonstrate these through delivering against the actions of Take ownership of the Job Profiles project to enable us to see your full capability, Provide clear and timely updates through Jira and Project manage to ensure that key deliverable remain on track for deadlines. Key Stakeholder management although not stated as a separate action falls within the scope of the project delivery. Happy to discuss these further if you need to in our meeting tomorrow.”[71]The one to one meeting with Ms Smith and Ms Taylor was due to go ahead on 20 December 2023. The meeting started at 15.00pm however at 15.01pm the claimant messaged in the chat as follows (page 290): “I find having two Line managers conduct my monthly check-in rather intimidating, and I would respectfully ask that only one conduct my 1-1…”[72]In response Ms Taylor cancelled the meeting. She emailed the claimant at 18.13pm explaining that the reason for them both attending was that Ms Smith was still the claimant’s line manager but that Ms Taylor had been task managing the majority of the work the claimant had been doing. They both attended one to ones for other staff in the same way. She went on (page 291): “It concerns us both that you feel our joint attendance at your monthly check in is intimidating for you. You need to have your monthly check-in in order for us to appropriately support you through your performance and development and, as you are still in it, your probation period too. As such to enable you to feel comfortable in attending your monthly checkin, I will reschedule it for tomorrow. I will assume formal line management responsibility for you and attend your check in on my own, as your line manager, so that we can prioritise supporting you. This is done in your full knowledge that if I am unable to continue to act as your line manager, for the reasons I have shared, that this may swap back to Rachel and so on. I will pick this up with you tomorrow in terms of why you feel it is intimidating so we can understand that and hopefully move towards the approach that we feel will best support you going forward. I will also cover at the start, for any avoidance of doubt, what the purpose and scope of the monthly check-ins is.”[73]The meeting therefore took place the following day with just the claimant and Ms Taylor. Ms Taylor confirmed what was discussed in the meeting in a very lengthy email the following day, copying in Mr Coombes (page 300). In brief summary, this included a discussion about the events of that week, including the number of requests made by Ms Smith and Ms Taylor in previous one to one meetings about access to the claimant’s Workday learning course history in order to confirm her attendance on the courses outlined in her application form, and that the claimant’s experience and training history had formed part of the rationale for making a pay case for a higher rate of pay for the claimant. Ms Taylor had explained that she had found the claimant’s behaviour very challenging and, in some cases, confrontational, and maintained that it was a reasonable management request and required the claimant to link with Workday to provide confirmation of her attendance on the courses before the next one to one on 2 January.[74]Ms Taylor explained that the Payroll security work the claimant had been leading on had been handed over to a colleague at the same grade to free up the claimant’s capacity to focus on job profile work.[75]There was then a discussion about the request made by Ms Taylor to provide slide decks and that the claimant’s evasive behaviour in terms of not providing the slide deck or update in itself had detrimentally impacted on the claimant’s performance.[76]Ms Taylor confirmed that due to the behaviours she had observed in the past fortnight and the impact these were having on the claimant’s performance, measures would be put in place to support underperformance informally for the next month, and a Performance Improvement Plan would therefore be put in place.[77]Ms Taylor expressed her concern that the claimant did not feel supported and offered mediation with herself and Ms Smith to rebuild the relationship. The claimant was signposted to the Fair Treatment Ambassadors and the Employee Assistance Programme.[78]The claimant does not dispute in her witness evidence that this was an accurate summary of what was discussed. She describes this document in her witness statement as a detailed email to confirm all that Ms Taylor expected of her.[79]A detailed Performance Improvement Plan dated 21 December 2023 was then drafted and sent to the claimant. The areas for improvement were communicating and influencing (in relation to the heated email exchanges); not responding to reasonable management request in a timely manner (in relation to Workday training attendance and the slide decks); managing the governance and ways of working within the team to ensure appropriate workflow and planning; independent working/making progress against deadlines; and stakeholder management. In relation to stakeholder management, it was noted that colleagues in payroll had fed back that they would have liked to see more clarity on how the work was due to progress and what they were looking to achieve, and that the process had felt more disjointed than they were used to. This work had been handed over to a colleague.[80]On 21 December 2023 the claimant received good stakeholder feedback from a colleague. This was later added to the PIP under the stakeholder management section.[81]The next one to one meeting between the claimant and Ms Taylor was held on 2 January 2024. In an email at 13.03pm Ms Taylor referred to the request she had made for the claimant to confirm her attendance on Workday courses as discussed in the meeting, and the claimant’s request to speak to a Fair Treatment Ambassador. Ms Taylor confirmed that she had intended to make a final request at the meeting before she considered the claimant’s refusal a conduct issue, however given the claimant’s request she set a new deadline to make the request to Workday by 10 January 2024.[82]The claimant has not disputed that this discussion took place. She forwarded the email to the Fair Treatment Ambassador, Ms Gray, and had a meeting with her later that day.[83]A further meeting was held between the claimant and Ms Taylor on 9 January 2024. After the meeting the claimant emailed Ms Taylor seeking an occupational health referral and stating that she was feeling overwhelmed and quite stressed about her current work situation (page 329).[84]Ms Taylor responded she would arrange this and that they should also carry out a stress risk assessment. The claimant requested that the assessment should be done by another manager, and this was arranged to be completed by Mr Coombes on 10 January 2024.[85]Ms Taylor responded again at 10.28pm detailing the discussions they had at the meeting and reiterating the deadline of 10 January 2024 to contact Workday. Ms Taylor confirmed she would arrange the occupational health referral and again referred the claimant to the Employee Assistance Programme. She noted that the claimant had said she would not find mediation helpful, and that they had discussed the dispute resolution process. There had not been a chance for a full discussion in relation to progress on the PIP, and Ms Taylor proposed that now the claimant had commented on it they could track progress and priorities.[86]On 10 January 2024 the claimant reported sick. On 11 January 2024 Ms Taylor acknowledged her absence (page 342). She asked if the stress risk assessment could be conducted while the claimant was absent, and confirmed the claimant’s occupational health appointment. The claimant responded that she did not wish for Mr Coombes to carry out the appointment unless this was compulsory.[87]On 11 January 2024, the deadline for contacting Workday having passed, Ms Taylor prepared a document entitled, ‘Formal Probationary Meeting: Management Report’, asking for an investigation into the claimant’s conduct following her failure to provide evidence of her full Workday training history. The decision maker was asked to consider a number of points, including whether this was a breach of the Civil Service Code and values, specifically around honesty and integrity, whether this had resulted in a breakdown of trust and confidence between employee and employer, and whether based on this the decision maker felt there was a case of Gross Misconduct.[88]On 17 January 2024 the claimant had a telephone consultation with occupational health and a report was produced. The report included the following as to her condition: “ Francesca indicated a recent build of stress symptoms which she attributes to perceived work-related stress. Francesca states that she has no previous difficulties with her mental health or work-related stress prior to this current incident. … Francesca reports that following an incident where she describes as a clash of personalities, she perceives that her current working environment has deteriorated. She has been commenced on a performance improvement plan (PIP) and so far, has attended two meetings. Francesca felt as though her perceived work-related stress was escalating, therefore she sought advice from her GP and has been currently signed off work. Francesca describes having disturbed sleep, often waking through the night thinking about work. She would feel fatigued during the day and was finding she required a nap in the day and her appetite was reduced. Francesca feels as though these symptoms have started to improve following her period of sickness absence. … General information and recommendations Francesca has described stress associated with the perceived issues at work and there is no evidence of any medical reason why she should not have medical capability for work. … It is unlikely Francesca’s condition will meet the requirements of the Equality Act 2010, as it is not a longstanding condition nor have significant impact on her daily activities. This however remains a legal rather than a medical decision.”[89]On the same day, the claimant raised a formal grievance against Ms Taylor and Ms Smith, alleging discrimination in relation to her age and race (page 347). The grievance covers a number of issues, some of which are now raised in the claim.[90]The grievance was forwarded to Mr North, who appointed Ms Zara Ahmed as an independent investigator. The claimant’s line management was transferred to Mr Coombes.[91]The claimant provided a GP note on 25 January 2024 citing ‘Stressrelated problem’ and on 1 February 2024 again citing ‘Stress-related problem’ and at that point recommending a phased return to work.[92]Ms Ahmed held a grievance interview with the claimant on 1 February 2024.[93]On 2 February 2024 the claimant met with Mr Coombes to discuss arrangements for her return to work. Mr Coombes emailed at 13.03pm to confirm the content of the discussion (page 411). The claimant was allocated work on ‘ZD tickets’ meaning Workday related Zendesk tickets, where staff had raised queries to be responded to. Ms Taylor was to allocate some Jiras to the claimant to give her some ‘quick wins’. A further meeting was arranged in case she had any queries.[94]On 8 February 2024 Mr Coombes emailed the claimant about the work she should be doing during his leave to 21 February. By this point she was still working on supporting Zen Desk tickets and was also working on building out Testrail scripts for testing business processes when they changed or through future releases. The claimant was told who to contact if there were any issues or if she needed more work.[95]On the same day the claimant emailed Ms Taylor and Mr Coombes asking if she should attend a meeting the following day at 1pm relating to Workday Product Release. She offered to move the hours she was working on her phased return so she could attend (page 414).[96]Mr Coombes replied: “No you don’t need to attend this, it’s related to release testing which you don’t need to work on during your phased return.”[97]On 13 February 2024 Ms Taylor sent an email to Mr Coombes relaying some issues with the Zen Desk work the claimant had been doing.[98]On 14 February 2024 the claimant provided a fit note from her GP to extend her phased return.[99]On 15 February 2024 Ms Taylor emailed Mr Coombes and Mr North about an HEO team meeting which had taken place that day and what she described as challenging behaviours by the claimant. She indicated she was flagging this for later, potentially to be picked up once the grievance was resolved.[100]On 22 February 2024 the claimant emailed Ms Ahmed and Mr North alleging that since her return to work she had been victimised, and requested further matters against Ms Taylor and Ms Smith, and also matters against Mr Coombes, to be investigated as part of her grievance (page 458).[101]Mr North responded asking if the claimant had spoken to Mr Coombes and tried to resolve the matters informally.[102]The claimant replied that she had not, and repeated her request for the matters to be investigated or for a formal meeting to discuss.[103]Mr North replied again encouraging the claimant to speak to Mr Coombes to deal with the matter informally and explaining why this was appropriate.[104]The claimant’s further response was that she had been placed under a huge amount of work related stress, and had been totally unsupported. She requested independent support outside of her management chain if she was to talk with Mr Coombes informally (page 456).[105]The claimant then went on leave until 23 February 2024.[106]On 23 February 2024 the claimant met with Mr Coombes at 9am. At 9.46am the claimant emailed Mr North about the meeting (page 455): “I am back in the office today. I met with Derek for a catch up, at 9am and he said that you had informed him of the below, Derek also stated that he had not been passed the details or content and asked if I was able to share the contents of the victimisation claim with him as my LM. I explained that unfortunately I do not feel any trust between us and gave Derek the example of him writing everything down during our catch ups without telling me. He agreed and admits that yes, he is taking notes, and he will share them at the end of the call this is a typical example of Derek's behaviour towards me. Derek then went on to talk about our team away day and the set up for the day via teams, Derek then said " on the day I will get to me the three new members that he also hasn't met" - Not meeting the new team is my email to you regarding the victimisation that Derek stated he has not yet seen. This points towards an unfair process been levelled against me, and I am requesting that this is taken into account going forward.”[107]Mr North responded at 12.36pm: “I mentioned to Derek yesterday that you had some issues with the way he was supporting you and that I hoped you would talk to him about them and try and resolve them. There was certainly no mention of your victimisation case in that conversation, though he is of course aware of it and is trying to support you, Nina and Rachel through it. I would like to understand better why you don’t trust him – I am not sure someone writing a note of a conversation is an example of that – sharing a note of a meeting is in both parties’ best interest and helps make sure there is no misunderstanding. In terms of not meeting the team, I don’t understand the reference to unfair process unless you are suggesting I have shared the details of your email with him – which I haven’t – and he has then chosen to address it in your conversation? It seems to me to be perfectly logical, given he was off last week, for him to be explaining to you when you will both meet the new team members (which addresses your concern that you weren’t being introduced). Should we meet and have a chat next week – probably best to talk it through in case I am misunderstanding you.”[108]At 13.12pm the claimant replied, reiterating her request to have a manager other than Mr Coombes investigate her complaint of victimisation and stating that the reference to ‘trust’ in Mr North’s email was ‘irrelevant and misleading to this request’.[109]Mr North responded at 15.43pm, referring to a meeting they were due to have, and stating that he had referred to trust because the claimant had raised her lack of trust in Mr Coombes.[110]A little earlier at 13.47pm Mr Coombes emailed the claimant with a note of their meeting, copying in Mr North (page 450). He notes in this email he had asked the claimant whether she felt able to share the concerns she had raised with Mr North, which she did not as she had no trust in her line management chain, including him. They had a discussion about the sick pay policy. Under the heading ‘Suspending your probation period’ Mr Coombes wrote as follows: “ I spoke about your probation period and that I had requested that it had been suspended and that Phil had approved this. I communicated the reason which is that I could not fairly assess your probation period since your absence had started on the 10 January and in case any of the concerns you had raised in your formal grievance related to the period of informal under performance that your previous line manager had placed you in. I confirmed that I would send you a letter confirming this and that we’d review when it was appropriate to resume your probation period (i.e. un-suspend it) following the outcome of your grievance.”[111]He sent her a link to the probation policy that he had made the decision under, and attached a formal letter. There was then discussion about attending a Team Awayday and a new area of work for her.[112]The formal letter of 23 February 2024 states: “I am writing to confirm the suspension of your probation period from the commencement of your sick absence on the 10 January. The probation period will resume when you have fully returned to work and once the grievance you have raised has been decided by the decision manager (Phil North). The total duration of the probation period in working time will remain as six months but will now be completed over a longer period.”[113]On the same day the claimant contacted ACAS to commence the early conciliation process.[114]On 26 February 2024 at 9.20am the claimant emailed Mr Coombes and Mr North, stating that the email sent to her on 7 December 2023 by Mr Coombes was the reason why she had no trust and confidence in Mr Coombes with regards to him being impartial in matters concerning her. She had asked Ms Ahmed to add this to her grievance (page 466).[115]At 10.56am the claimant emailed Mr North asking him for the process to raise the victimisation she alleged to have suffered. Mr North sent her the guidance on raising a complaint in response. They shared further emails as to what was required by the process, and Mr North indicated they could discuss the complaint at their meeting the next day 27 February 2024.[116]On 28 February 2024 the claimant emailed Mr Coombes stating that the information in the suspension of probation letter was ambiguous, and she would like to know the dates of stop and restart of her probation end date so she had something to work towards. She quoted from the probation policy about the requirement for a meeting once the probation period resumed.[117]On 29 February 2024 the claimant emailed Mr North raising a formal complaint about the email sent by Mr Coombes on 7 December 2023, asserting that this was a potential data breach in that Mr Coombes had shared information about her health, and seeking an investigation.[118]On 6 March 2024 the claimant emailed Mr Coombes, copying in Mr North, attaching a workplace adjustment passport in relation to the menopause and seeking accommodation of her additional requirements going forwards (page 495). Under details of disability the claimant states: “496 yellow[119]In relation to workplace adjustments she stated she may need regular and frequent comfort and posture breaks during meetings. In relation to communication, she stated: “As I sometimes have brain fog, I find it useful for discussions to be both verbal and confirmed in writing, action points to be noted and for meeting invites and agendas to be issued to my electronic calendar. A wrap up discussion with colleagues following key meetings to ensure I have picked up all the relevant details and actions would be beneficial. I would appreciate sensitivity and understanding from management and colleagues.”[120]Under ‘Additional information’ she states: “I would also like it if we had an agenda item for all 1-1 meetings so I can prepare and keep on track this is to include my 1-1 ABLE Check-ins.”[121]Mr Coombes held a meeting with her the same day and later emailed her attaching an updated passport with adjustments agreed (page 505). The updated passport has a series of adjustments agreed, including: “Line manager (Derek) and Task manager (Nina) will look to put context and/or any agenda points in the meeting invites and in time for you to review/suggest anything else you'd like to cover to support preparation for meetings. Line manager (Derek) and Task manager (Nina) to send key points/summary of manager & task meetings. Francesca to then decide if any further wrap up discussion is needed.”[122]On 7 March the claimant emailed Mr Coombes and Ms Taylor about the project she was working on. Ms Taylor had a call with the claimant to discuss, and sent an email dated 8 March 2024 at 9.04am summarising the call. At two points in this email Ms Taylor gave her view that the claimant had expressed her frustration during the call.[123]In response, the claimant wrote at 9.25am: “I rebut your term below "frustration" and see this as yet a further attack on my character. I needed to stop the call, urgently and you saw that as me interrupting you. Both you and Derek have been instrumental in planning my failure at this project and have been decisive and unsupportive, your late additions to the Project plan evidence of this. @COOMBES, Derek I have asked you how this piece of work is to be graded / measured / credited to me and you are yet to respond, but i'm sure you will be able to record any negative aspect of this piece of work that you seem fit ,I am been victimisation yet again.”[124]On 8 March 2024 Mr North prepared a note summarising the discussions at the meeting on 27 February 2024 about each point of concern raised by the claimant (page 522). He saw no evidence to support the allegations and saw no justification for taking further action, but remained happy to discuss. He emailed this note to her on 11 March 2024 (page 521).[125]On 11 March 2024 Ms Ahmed produced her investigation report into the claimant’s grievance. Ms Ahmed states in the Executive Summary: “From the evidence seen as part of this investigation, the overall recommendation is that there is no case to answer. The evidence I have seen does not suggest that Nina and/or Rachel set out to disadvantage Francesca, nor that their treatment towards Francesca amounted to a breach of the Civil Service Code. I can find no evidence to support the claim of discrimination from the evidence obtained.”[126]On 19 March 2024 the claimant responded to Mr North’s email of 11 March, asking for her victimisation complaint to be dealt with formally. Mr North forwarded this to Ms Sparkes on 21 March 2024 asking her to investigate despite his reservations as to whether a full investigation was required or justified (page 707).[127]The claimant received her ACAS early conciliation certificate on 20 March 2024.[128]On 26 March 2024 Mr North held a meeting with the claimant to deliver the outcome of the grievance, which was not upheld. Mediation was again recommended. The claimant was given a letter dated 26 March 2024 confirming the outcome and setting out the procedure for any appeal (page 602). Mr North also produced a note of the meeting the following day (page 604). We accept his evidence, which accords with the note of the meeting, that at this meeting the claimant was asked about her Workday qualifications, and she stated that she was not prepared to share the evidence of having them. The note was subsequently sent to the claimant.[129]The day before this, on 25 March 2024, Ms Taylor emailed the claimant in relation to a carers leave project which she was supporting, and offering that she could continue with the Testrail project or if she preferred could take on a different project, namely bereaved parents leave. It was noted that the claimant had technical capability to deliver it and as such it would take less oversight so that she would find it less stressful.[130]A one to one meeting was held between the claimant, Mr Coombes and Ms Taylor on 28 March 2024 about various matters, including the work the claimant should be undertaking. This was confirmed by email from Mr Coombes at 17.18pm (page 613), in which he noted that the claimant had said it had been hard to undertake the carer’s leave project due to this requiring a functioning relationship between her and Ms Taylor, and did not feel she could work on another project at this time. The claimant had suggested Zendesk queries however Mr Coombes did not feel this would help or negate Ms Taylor’s involvement. He noted that the claimant had been tasked with Testrail script writing which was still needed. Ms Taylor also emailed the claimant 17.35pm stating that the focus of her work for the next couple of weeks was to be on building out the test library on Testrail (page 617).[131]The claimant sent an appeal against the grievance outcome dated 8 April 2024.[132]The claimant presented her first claim on 10 April 2024.[133]On 11 April 2024 the claimant had a one to one meeting with Mr Coombes. The claimant emailed Mr Coombes at 1.44pm. In this she discusses the work she had been tasked with: “As you know I asked you on 28 March if I could resume working on Zendesk you consulted with Nina and declined my request, and you both agreed I should work in isolation on Testrail as no other person in the entire DfE uses the system, so I have had no interaction with any other person, you also raised in our meeting of 28 March that working Zendesk would give exposure to Rachel Smith and you weren't sure how that would work. I would also like to let you know, working on testrail, creating test scripts, soley has been very demoralising, and has negatively impacted, both for my mental health and my career, as a workday analyst. I also would like you to be aware that no other team members in the development team have contributed to testrail populating test scripts, prior to the workday external data load that went in the year 2021.”[134]Mr Coombes responded on the same day with a lengthy email. He confirmed the claimant should be attending team meetings. He noted that the claimant was looking for work that struck a balance between work that did not require the sort of relationship with himself, Ms Taylor and Ms Smith that project work required, and work that was not demoralising due to its repetitive nature as this risked negatively impacting on the claimant’s health and career. He noted that the claimant was not making the progress expected on Testrail. He asked that she continue with the Testrail work for now which he considered what work was available that can minimise the risks she felt the current work was causing.[135]On 12 April 2024 a team meeting was held. The claimant alleges that after the meeting concluded, her colleagues Mr Lomas and Mr Wilson restarted the meeting without her, which went on for 43 minutes.[136]We have seen a screenshot of the times at which participants entered and left the meeting (page 758). The meeting was started by Mr Lomas at 9.30.15am, and Mr Wilson joined around 20 seconds later, and the claimant a further 7 seconds after that. The meeting lasted around 8 minutes. A third colleague dialled in at 9.58.21am, and left at 9.58.41am, within a second of Mr Lomas and Mr Wilson rejoining. The claimant also rejoined a few minutes later at 10.02.56am but only for 14 seconds. Mr Lomas and Mr Wilson were on the call until 10.23.16am, at which point only Mr Wilson remained on the call on his own until 10.42.10am.[137]At 11.28am the claimant emailed Mr Coombes: “I have been subject to victimisation yet again. On your instruction I attended the Dev team meeting today. The eight-minute meeting below consisted of talk about easter eggs and other social things. it was very awkward to say the least as no one was talking about work. I took the initiative and asked should we terminate seen as no one is speaking, they both agreed. The meeting ended at 9.38 They then start the meeting again at 09.58 the meeting now lasts 43mins without my presence. It is clear the team is not comfortable with my presence on meetings and you asking me to attend has deeply affected my mental health Please can this behaviour towards me be investigated.”[138]At 11.34am the claimant sent a further email to Mr Coombes responding to his email of the previous day, reiterating that her mental health had suffered on the tasks set and seeking an occupational health referral for the workplace stress she was experiencing.[139]Mr Coombes emailed the claimant at 11.36am, at which point there had been a chat from the claimant (at 11.27am) saying that she wasn’t feeling well and was leaving work for the day. He asked her to share the reason for her absence when she was feeling better. We infer that he had not at that point read the email of 11.34am.[140]At 12.35pm the claimant replied she had spoken to her GP and was experiencing work related stress.[141]At 15.20pm the same day Mr Coombes sent a further email replying to the 11.34am email and setting out the support he felt had been offered to the claimant and asking what she wanted occupational health to advise on (page 645). The email opens as follows: “It is really important that I am clear with you, as you recognise, the support that is being provided and is available to you, which is the main purpose of this email. Firstly, as I and Phil have recognised on a number of occasions with you, the currents processes in train are hard and putting a strain both on your and others. I set out in previous emails how we are looking to support you through these process, whilst recognising that relationships have broken down with your previous line managers and to an extent myself that this can feel very hard for all and potentially is impacting how much you feel you are able to access the support we are offering.”[142]Later that day the claimant sought assistance from a mental health first aider.[143]On 15 April 2024 the claimant responded to Mr Coombes’ most recent email: “I raised my mental health concerns with you regarding the challenges I faced during the time you had off over Easter, regarding the work that had been set in an email to you on 11 April, you responded by setting another meeting for 12 April to further discuss my work even though we already met on 11 April, along with Nina to discuss what I had done to date. You then set the additional meeting on 12 April to further discuss what we already discussed; this heightened my stress levels as I could not see any positive reason to discuss the work over again, in yet another meeting. At no point can I recall that as my Line Manager, you have signposted to services, that may be able to support me, during my return to work in this challenging time, please correct me if I've missed when you have. I myself, did manage in my state, on Friday 12 April manage to seek out the Mental First Aider service, and reached out to someone on the list to see if I could get some advice as I was very anxious about our pending meeting scheduled for 2.30pm. You also insisted that I start attending team meetings again, which I did on Friday, I sent both yourself and Phil the evidence on how that went, that coupled with the above contributed greatly to my already high workplace stress levels. Your statement below of - "relationships have broken down with your previous line managers and to an extent myself" implies perhaps you may no longer have an unbiased approach to managing me, please can you clarify what you mean by this statement and why you feel this way towards managing me now? as I thought our Employee / Line Manager working relationship had made good progress throughout this challenging time.”[144]She then responded to points raised by Mr Coombes by annotating his email below in the chain.[145]On 17 April 2024 the claimant emailed Mr Coombes again (emphasis in original): “I would like to revert back to the below, sent to me on 12 April - as your statement in bolden is of concern to me. Can you elaborate on how you feel, yourself and my working relationship is broken down to an extent? Your statement of - "relationships have broken down with your previous line managers and to an extent myself" I would also like to progress the below as I have sent you a complaint about the behaviours towards me by the team, which you are yet to respond to You also insisted that I start attending team meetings again, which I did on Friday, I sent both yourself and Phil the evidence on how that went, Your suggestion of me picking a day that the team can manage to engage / tolerate me does not sound like a progressive solution, and does not appear inclusive, and your suggestion, only serves to appease and condone their behaviour towards me and continues to keep me isolated and segregated from the teams. If the team can't conduct themselves in an unbiased professional manner, then perhaps that is where the issue lies and it is not with me, as I attempted to attend the team meeting on Friday 12 April and as my line manager, I would also expect you to be unbiased in this matter.”[146]Mr Coombes responded on the same day: “On your first point more than happy to elaborate. I experienced you last week as being unable or unwilling (I don’t know which, as we never got to discuss it on Friday) to talk openly with me about i) How you had approached your work and ii) Why you were not feeling well enough to work. Similarly you have expressed how my meeting request on Friday as being too stressful for you and contributed toward you feeling unwell that day (you communicated this, this week). For me (as you asked what I meant by the statement below), these are signs that our relationship has deteriorated, as a work relationship should be able to hold these types of conversations when required. As to the implications you have suggested you could draw from my comment, "implies perhaps you may no longer have an unbiased approach to managing me” - I am confident and have learnt from my 24 years to date as a manager, that I am able to manage staff in an unbiased way even when relationships are under strain. In fact for me recognising and acknowledging where our relationships are experience a strain is a key part of being able to do so (recognising my experience of another, helps me to consider how I am responding to these feelings and informs my behaviour) and I also believe is healthy. I acknowledge your complaint and have referred it to Phil. I do not recognise your statement below regarding, ‘Your suggestion of me picking a day that the team can manage to engage / tolerate me’. As always I am more than happy to hear from you why you have taken this meaning from what I actually proposed and again I feel that would be more productively done in conversation.”[147]This was the last email Mr Coombes sent to the claimant.[148]On 19 April 2024 Mr North emailed the claimant: “I am going to put some time in for a probation meeting and a general update on where we are with things next week. In the meantime, did you get any where with sharing your qualifications with Derek or anyone else?”[149]The claimant replied on 22 April 2024 asking for an update and stating that Mr Coombes had not left any instruction for her and she was unsure what she should be working on (page 671).[150]Mr North responded at 14.32pm: “I can find out from Nina/Rachel – what were you working on last week? On the below – I will book a time for us to meet to discuss your probation. And I was asking if you had provided the evidence of the qualifications to anyone, or if you want to send them to me? When we spoke you said you wouldn’t be prepared to do that, but I am hoping you have changed your mind so we can resolve it.”[151]The claimant replied at 14.37pm that she had requested a meeting about her qualifications evidence.[152]Mr North replied at 15.11pm: “If you want to meet to discuss your qualifications, then I thought it might help if I summarise where I am with that issue. The investigation confirmed that the qualifications were included as essential criteria in the job advert you applied for. Then, when you were going through the onboarding process, you confirmed to us that you had them. We hired you on that basis and paid you accordingly. To date you haven’t provided evidence of having these qualifications and when you and I last spoke, I asked you again if you could provide evidence of having them. You told me you have the evidence, but you would never provide us with the clarification we were wanting. I was hoping that your position on that had changed. Hope that helps.”[153]There followed another two emails back and forward on this subject, with the claimant suggesting that what had been said by Mr North was confusing. Mr North referred her back to the investigation report.[154]On 23 April 2024 the claimant emailed Mr Coombes asking if he had investigated her complaint about the team meeting on 12 April 2024. This led to a series of emails culminating in Mr North stating that he was not agreeing to another investigation on the basis of what the claimant had provided, but would consider it further if the claimant could provide more information.[155]On 23 April 2024 the claimant was sent an invitation to her grievance appeal.[156]On 24 April 2024 the claimant emailed Mr Coombes asking what she should be working on. She did not receive a response from him, however Mr North responded the following morning asking her to continue with the work allocated to her, which was Testrail.[157]Also on 24 April 2024 Ms Sparkes sent a letter to the claimant confirming she had gained sufficient information about the victimisation complaints and would meet with the claimant to discuss her findings to date on 2 May 2024.[158]On 29 April 2024 a meeting was held between the claimant and Mr North. The content of the meeting is discussed in an email from Mr North to the claimant dated 2 May 2024. By that point the claimant had shared the Workday training certifications. He provides his conclusions about the events of 12 April 2024, finding that the screenshots of the meeting showed “a slightly confused series of events where people join and leave a call” but that there was no evidence to suggest that this was done deliberately to exclude her. In relation to ongoing work, he states: “Ongoing work – when we spoke, I summarised things as I understand them. You have previously indicated that it had been very hard to undertake the carer’s leave project, due to this type of work requiring a functioning relationship between the project manager (you) and the task manager (Nina). You recognised that the ongoing management action in relation to the grievance you submitted meant that the relationship wasn’t in a good place and that action is still ongoing. You had also said you do not feel you could work on another project which required a similar management approach in terms of the stress it caused you. While you had done some interim work on Zendesk, we then identified working on test scripts in Testrail as work that could be done without supervision as a good option in the interim. I asked about this work and Nina helpfully explained why it is important to have robust test scripts in place and why this work is worthwhile. You have then said you find that isolating, monotonous and therefore stressful and that it doesn’t use your WD skills – ‘it is deskilling you’. While it wasn’t agreed with anyone that you should stop this work, I understand you haven’t done any of it since the 16th of April. The lack of progress was mentioned to you, but you refused to talk about it with Derek. That means you are not undertaking any work allocated to you by your management team. You have asked about picking up project work and despite saying you couldn’t work in this way before, we talked about an email from Derek suggesting that you might be able to pick up on the bereaved parent leave configuration – using the same approach to delivery as you used for the 'carers leave configeration’. He was hopeful this might need less oversight from Derek and Nina. He had planned to talk to you about this a couple of weeks ago on Friday 12th, but that conversation ended up being about the ongoing issues you have with him and how you feel you are being treated. I have spoken to Nina and to Derek to see if we are able to allocate this work to you now and if we can put in place the right oversight that would give you the necessary support (given the historical/ongoing concerns with your performance, communication, updating/following our governance process and working independently). I concluded that looks very difficult at the moment. You have ongoing complaints about all your managers and no effective working relationship with any of them. Given they (Nina and Rachel in particular) are the only people qualified to provide management oversight, and without making progress on your issues, the provision of suitable meaningful work is the best option. If you could continue with the Testrail work, we can see what more we can do to resolve things. Happy to discuss”[159]The claimant’s appeal hearing in relation to the grievance took place on 1 May 2024, chaired by Ms Saide. Notes of this hearing were produced (page 709).[160]On 2 May 2024 the claimant had her grievance meeting with Ms Sparkes, where the claimant was asked questions about her victimisation complaints (page 736).[161]On the same date, Mr North invited the claimant to a formal probation meeting by letter (page 714): “I am writing to invite you to attend a formal meeting to discuss on-going concerns about your performance / conduct in line with the department's probation policy. I appreciate the last few months have been challenging in terms of the ongoing and wide-ranging disputes you raised against your managers (in addition to concerns over your performance. This has resulted in a breakdown of the employee/employer relationship to the extent we are unable to allocate to you work for which you were originally employed. The above issues have been raised and discussed with you separately and at length. I am confident that action has been taken investigate concerns you have raised, and extensive support has been provided to you (which includes suitable workplace adjustments). At this meeting, we will discuss concerns in relation to your performance and consider if there is any further, reasonable, action we can take together to improve. I must however advise you that this meeting may result in formal action up to and including dismissal.”[162]The claimant was given the right to be accompanied.[163]At 12.31pm the claimant emailed Mr Coombes, copying in Mr North (page 711): “I trust that the workday learning manuscript, I provided last week regarding my workday courses, of 6+ have been sufficient to demonstrate my competence for my role. I am keen to make progress during my probation period and would appreciate it if you could either assign me to appropriate projects/work, or direct me to a colleague who is able to do so?”[164]Mr North replied that he would write to her separately about work.[165]On 3 May 2024 the claimant responded to Mr North’s email of 2 May 2024, asserting that it contained inaccuracies. In relation to work, she stated (page 739): “I do note your instruction of continuing to work on testrail, but we previously discussed this work is harming my already fragile mental health, and I would really appreciate to be assigned to something else. I did actually start on the project plan for the Bereaved Leave and can share with Derek.”[166]At 2.31pm the claimant sent a further email to Mr North chasing him about her work, and stating that she had asked to work on bereavement leave. She also asked where she could get support for her work related stress (page 739).[167]Mr North replied at 15.06pm (page 738) “I have tried to be clear on the work situation. I appreciate that you say you want to pick up work like Bereavement Leave, but that is not currently possible, for the reasons I have set out below. There are ongoing concerns with your performance and no clear way of providing you with the necessary oversight in line with our governance. You are part of a very small team and the only people who can provide that oversight are the subject of your grievances. I have considered if there is anyone else or some sort of peer support that might help – but I don’t think that is possible given the above. I also need to consider that you have already said the alternative ways of trying to manage/support you on project work were impacting on your mental health (that is the arrangement we had in place between you, Derek and Nina). If you are saying that isn’t now an issue – then I am happy to talk about that. I very much want you to be working. Given your skills, the issues you have with your managers and colleagues, and the fact it is a small team – it is quite difficult to simply move you to a different team and different work while your grievances are worked through (which is what I would normally do). We thought the work on Testrail would be a reasonable fit (for reasons already explained). I do appreciate that you say working on Testrail is impacting your mental health, I happy to talk about that some more to see if we can help mitigate that. Indeed, I am happy to hear if there is anything else that you would find more acceptable for you to do – I could see if there is work that we could identify elsewhere in HR (or further afield) if that would help – but that wouldn’t be in the Workday system and I am conscious that you are very reluctant to do work outside of Workday. We can speak again next week and explore the options in more detail. Please see the information below on our employee assistance programme. If you are suffering from stress, you can seek immediate support from them today – they are very good. Hope that helps clarify things.”[168]Also on 3 May 2024, Ms Sparkes emailed the claimant at 11.52am with the outcome of the victimisation complaint, which was not upheld. The claimant was given a right to appeal (page 731 and 734).[169]On 7 May 2024 the claimant emailed Mr North requesting a split of work between Testrail and another task, as solely writing test scripts was monotonous and affecting her mental health (page 754).[170]The following day the claimant called Employee Assistance and was rerouted to the emergency services (page 749).[171]On 9 May 2024 the claimant received a formal diagnosis of menopause, describing symptoms of hot flushes, insomnia, brain fog, poor concentration, adverse impact on mood and low energy levels. She was prescribed Hormone Replacement Therapy (page 1001).[172]On 13 May 2024 there was a series of emails between the claimant and Mr North. Mr North replied to the claimant’s email of 7 May 2024 at 10.40am (page 754): “How are you? Sorry for being slow to reply – I need to speak to Derek and I was out Wed and Thur last week. I asked him if there are things you can do on the project plan etc. that can give you a mix of things to do. He is going to come back on that. In the meantime, please manage the work to make sure you have breaks regularly etc.”[173]The claimant replied at 10.56am: “My mental health is still suffering the effects of the isolation and monotony of Testrail, and not doing any work related to the role I am employed to do. I rang the EAP on 8 May, and they routed my call to the emergency services (999) I also had a telephone consultation with my GP on 9 May regarding the work stress, and how this has exacerbated, my menopausal symptoms, I am now on prescribed medication.”[174]Mr North replied at 10.59am: “I am sorry to hear that. If you don’t feel up to working, then please let me know.”[175]The claimant replied at 11.14am: “Thanks Phil I am "up to" working in the role I am employed to do. Something that with respect seems to be difficult for you, to co-ordinate.”[176]Mr North replied at 11.22am: “I will see what we can do, but as you must appreciate, you have made numerous unfounded allegations of discrimination and victimisation against all the people who manage you, and who would supervise you in doing the work you were employed to do. That makes a typical employee/manager very difficult.”[177]The claimant replied at 11.26am: “I have not yet had a response to my appeal, so surprised you conclude the below.”[178]Mr North replied at 11.29am: “I can only state the position based on what I have seen/concluded and I have seen no evidence to support any of the claims you have made.”[179]At 12.07am Mr North sent a further email: “Derek is unwell today and may not be available this week. I have managed to talk to him, and he said you can work on the bereaved parental leave project plan. That will allow you to vary your work. I will check in with Nina about the best way to support/supervise – but if you keep Derek in the loop.”[180]At 12.47pm the claimant replied: “Thank you for your graciousness towards me, in allowing me to undertake meaningful work commensurate to my role. I hope I will see an improvement in my current shattered mental state soon.”[181]The claimant’s probation meeting was due to take place on 17 May 2024. At 1.42pm, shortly before the meeting was due to start, the claimant emailed Mr North (page 762): “I have called in sick today because the thought of the meeting at 2pm fills me absolute dread and I cannot concentrate on anything. My mental health is really suffering as a result of my treatment and all of this. Based on the below (and my grievance), I believe the PIP process should be stopped altogether. However, if my employer decides to press on ahead with the process, then it should be postponed until my grievance appeal and additional grievance (see below) have been dealt with.”[182]The remainder of the email contains a number of grievances, alleging further discrimination, including in relation to the requests made for her training certification and in relation to the work she had been doing. The claimant asserted her behaviour had been affected by her menopausal symptoms in the meeting where the PIP was put in place, such that it should not be pursued against her, and that her menopausal symptoms were a disability under the Equality Act. The claimant also requested: “If the employer decides to press on with the probation meeting, I would like adjustments made to the process such as providing me with a detailed agenda in advance (at least 10 working days beforehand) to allow me time to digest it, taking into account my brain fog and mental health issues.”[183]The claimant requested a move to another department, team or group.[184]Mr North replied to the claimant’s email at 15.14pm, annotating the claimant’s email with his responses. He noted that the claimant’s appeal outcome was imminent, and he would not have made any decisions regarding her employment until it was complete. In relation to the agenda requested, he responded: “We will be going ahead with the meeting as soon as is practicable. I have already provided you with an outline of its purpose. If it is helpful the agenda I will follow will be: 1. Introductions 2. Purpose of the meeting - this is a formal probation meeting. We will discuss concerns in relation to your performance and consider if there is any further, reasonable, action we can take together to improve. I must however advise you that this meeting may result in formal action up to and including dismissal. 3. For context ref 2 above, I will provide a summary of your probation period from 1 September to date. 4. I will invite you to comment and we can discuss if there is any further reasonable action we can take.”[185]He stated that a move to another department, team or group was not possible with the issues with the claimant’s performance and her[186]The claimant provided a GP note dated 17 May 2024 citing that she was not fit to work until 31 May 2024 as a result of stress-related problems and menopausal symptoms (page 763).[187]The outcome of the grievance appeal was sent to the claimant on 21 May 2024. The appeal was not upheld, on the basis that Ms Saide was unable to identify any procedural errors or new evidence. She enclosed the notes of the appeal meeting (page 769).[188]On 22 May 2024 the claimant emailed Mr North asking for an agenda prior to the probation review meeting to assist with her workplace stress and menopausal symptoms. Mr North replied at 9.36am with the same four agenda points provided previously.[189]At 11.30am the claimant emailed Mr North raising a second formal grievance, in relation to the probation review and the PIP alleging breaches of the probation policy, the work that had been allocated to the claimant alleging harassment and bullying by Mr Coombes and Mr North, and the failure to respond to her subject access request (page 778).[190]Mr North replied the same day that the issues raised could be discussed when they met the following week.[191]The claimant replied at 12.29pm that she thought the additional grievance raised would be investigated separately (page 777).[192]There were a further three emails, culminating in Mr North confirming he would determine what the next steps would be after discussion at the meeting.[193]The claimant replied on 24 May 2024 at 10.03am: “In light of the fact that I have raised an additional grievance which you have acknowledged, I feel that talking through the additional claims at the same formal probation meeting on 29 May would be too much for me bearing in mind I am signed off sick with menopausal symptoms and processing this on the fly would be a challenge, especially as my menopausal symptoms (disability under the Equality Act) include brain fog and I feel I would just get bamboozled with all the extra information. This is even more so with the huge stress/anxiety/depression I have been and continue to suffer with. I can’t believe that my additional grievance that has raised new points is just being swept up into this meeting where I might be dismissed. In addition, your responses below are too vague and confusing and not adhering to my work adjustments passport. I asked for an agenda but it’s not detailed enough – for example, I don’t understand why my request for the summary of my probation period from 1 September 2023 to date couldn’t have been provided to me in advance of the meeting as a reasonable adjustment given my menopausal symptoms, anxiety and depression. … I am also shocked at how short the grievance appeal letter is. It’s like I can’t even be afforded the decency of any reasoning. I also find it incredible that you’ve arranged the meeting for a date that’s covered by my existing sick note and without going to OH to see if I can even be considered well enough to attend the meeting. Given all of the above, and as a reasonable adjustment under the Equality Act given my menopausal symptoms and poor state of mental health, I respectfully ask that this meeting goes ahead in writing. That way I would have enough time to digest it all and respond. Please could you urgently confirm that the meeting due to take place on 29th May will take place in writing across several days instead, allowing me adequate time in between asking for my replies.”[194]Mr North replied at 12.16pm (page 783): “I have acknowledged the issues you have raised, not that they should be dealt with as a grievance. The meeting will take place and I have provided you with an agenda. I have explained that I am happy to allow time for regular breaks and to answer questions you might have. After the meeting I will provide you with a detailed note of what was discussed (considering the points you have raised below) and that will include my decision on what will happen next with regards your Please let me know if you don’t plan to attend.”[195]The probation review meeting took place on 29 May 2024. The claimant did attend and was accompanied by a trade union representative. The claimant was told at the outset of the meeting that she could take a break at any time, and did request a break during the course of the meeting. The meeting was lengthy and detailed. The notes of the meeting (page 784) indicate some information had been inserted for clarity. This includes reference to Annex 2, which was further investigation conducted after the meeting following a question posed by the claimant’s union representative. The claimant was also sent Annex 1, which contained excerpts from the probation policy taken from the intranet (as discussed above).[196]Mr North emailed the claimant on 5 June 2024 attaching the notes of the meeting with annexes, and a letter with the formal outcome (page 797). Mr North concluded that the claimant’s performance had not met the required standards. The letter acknowledges and discusses the claimant’s menopausal symptoms and the effect that may have had on her performance. Mr North notes that he had considered a warning or an extension of the probation period but considered the respondent would not see any meaningful improvement in the claimant’s performance or behaviour. He concluded that the claimant’s employment should be terminated with immediate effect and she should be paid in lieu of 12 weeks’ notice. She was given the right to appeal.[197]On 7 June 2024 the claimant emailed Mr North stating her contract entitled her to 5 weeks’ notice, and asking him to confirm the reason for dismissal (page 804).[198]He replied that she was correct in relation to the notice period, and confirmed that the reason for dismissal was the failure of her probation.[199]The claimant appealed her dismissal on 11 June 2024 (page 801).[200]The appeal was dealt with by Mrs Ramsay (then Ms Schweitzer). She acknowledged the appeal by letter dated 20 June 2024, summarising the points of appeal as she understood them and inviting her to an appeal hearing on 3 July 2024: “Thank you for your letter of 11th June advising that you wish to appeal the decision taken at the formal review meeting on 29th May 2024 on the following grounds: 1. Concerns regarding the Performance Improvement Plan process applied to your case. 2. Concerns regarding the conduct of the formal review meeting. 3. Concerns about accuracy of claims regarding your engagement with line managers. 4. You feel you have addressed the points on the Performance Improvement Plan. 5. You would like to address some new information relating to your case. 6. Concerns about some of the content in the review letter.”[201]The dismissal appeal hearing took place on 3 July 2024. The claimant was not accompanied. The claimant was asked at the end of the meeting whether she had any further points to raise, and she indicated she wanted to send further evidence. Notes of the meeting were produced (page 810).[202]On 4 July 2024 the claimant emailed Mrs Ramsay with points of clarification in relation to her ‘performance’, and attaching various documents (page 814).[203]Ms Ramsay sent the appeal outcome by letter dated 16 July 2024 (page 832). The dismissal was upheld. Mrs Ramsay found that there was no evidence to support the majority the claimant’s grounds of appeal. She was satisfied that the claimant was unable to maintain relationships with her managers and colleagues, directly leading to dysfunctional relationships and poor team morals which damaged the ability of the team to deliver important outcomes. She did agree that the claimant’s performance against the PIP should not have been relied upon as grounds for dismissal. However Mrs Ramsay considered that the claimant’s performance and behaviour at work overall were unsatisfactory, that she had received ongoing feedback and support which extended beyond the PIP right up to the point of dismissal, and during that period she had refused to accept the necessity of management oversight and did not accept the need for her performance or conduct to improve. She had been supported in relation to her menopausal symptoms. She also accepted that Mr North had not followed all the steps set out in the Probation policy, however given all the circumstances did not believe there was any reasonable prospect of the claimant’s performance or conduct improving and therefore she supported the decision to dismiss.[204]We accept Mrs Ramsay’s evidence that she received an email from the claimant around 19 July 2024 about outstanding holiday pay which she passed on to the relevant team (although we were not taken to the email itself). We note that on 22 July 2024 there were emails sent between the payroll team and Ms Sparkes seeking approval for an emergency pay request as the claimant’s accrued holiday had been recalculated (page 834).[205]The claimant entered into a second period of ACAS conciliation on 5 August 2024 and received a second certificate on 20 August 2024. In the meantime, the claimant presented her second claim on 9 August 2024. The Law Jurisdiction
The Law
[206]Section 123 Equality Act 2010 provides: “(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.” Disability and Knowledge of disability[207]Section 6 Equality Act 2010 provides: “(1) A person (P) has a disability if—(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[208]Schedule 1 paragraph 2 provides: “(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”[209]We were referred to authorities in relation to knowledge of disability, however in the event did not need to consider them. Direct discrimination[210]Section 13(1) Equality Act 2010 provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[211]Section 23 provides that a comparator must be in circumstances that are not materially different from those of the claimant. A comparator may be real or hypothetical.[212]The burden of proof which applies to each complaint of discrimination is set out at section 136: “(1) This section applies to any proceedings relating to a contravention of this act. (2) If there are facts from which the court could decide in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[213]Whether treatment is less favourable is determined objectively. It is not enough that the claimant considers it to be less favourable (Land Registry v Grant [2011] ICR 1390).[214]Demonstrating a difference in treatment is not sufficient. There must be ‘something more’ from which the Tribunal could conclude that the reason for the less favourable treatment was discriminatory in order to shift the burden of proof to the respondent (Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, HL; Madarassy v Nomura International Plc [2007] ICR 867).[215]We have considered the lengthy guidance given by the Supreme Court in Efobi v Royal Mail Group Ltd [2021] UKSC 3, included in the respondent’s submissions, as to how to reach a decision whether the burden of proof has shifted.[216]In determining what inferences can be drawn from the primary facts, the Tribunal must ignore any explanation for them until the burden has shifted to the respondent.[217]When considering whether treatment is ‘because of’ the protected characteristic, the protected characteristic does not have to be the only reason for the treatment in question provided that it was a significant influence (Nagarajan v London Regional Transport [1999] ICR 877). This must be an influence which is more than trivial (Wong v Igen Ltd [2005] ICR 931).[218]In R v The Governing Body of JFS and the Admissions Appeal Panel [2010] UKSC 15, it was discussed that there are some cases in which it is self-evident that discrimination is taking place because the act of alleged discrimination includes, directly or indirectly, reference to a protected characteristic (for example, in James v Eastleigh Borough Council [1990] 2 AC 751 a policy of giving free entry to a swimming pool for those of pensionable age plainly discriminated against men who reached pensionable age at 65, compared to women who reached it at age 60). In such cases it is not necessary to examine the motives of the alleged discriminator at all.[219]Where discrimination is not obvious, it may be necessary to examine the mental processes of the alleged discriminator to determine whether or not treatment is being afforded because of the relevant protected characteristic. The Tribunal must determine the facts that operated on the mind of the discriminator, not his motive for discriminating. Discrimination may be conscious or unconscious. Reasonable adjustments[220]Section 20 Equality Act 2010 provides: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage …”[221]Section 21 provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”[222]Schedule 8, Part 3 paragraph 20 provides: “(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— … (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.” Harassment[223]Section 26 Equality Act 2010 provides: “(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[224]In Weeks v Newham College of Further Education UKEAT/0630/11 guidance was given as to how to approach the assessment needed under section 26(1)(b)(ii). It was emphasised that an ‘environment’ is a state of affairs. It may be created by an incident, but the effects are of longer duration. Words spoken must be seen in context; that context includes other words spoken and the general run of affairs within the office or staff-room concerned.[225]When considering the effect of unwanted conduct, a Tribunal will consider whether, subjectively, the claimant felt or perceived their dignity to be violated or an intimidating, hostile, degrading, humiliating or offensive environment to be created, and whether, objectively, it was reasonable for the conduct to have that effect, and all other circumstances (Pemberton v Inwood [2018] ICR 1291.[226]In Richmond Pharmacology v Dhaliwal [2009] ICR 724 it was considered that: “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”[227]Similarly in Betsi Cadwaladr University Health Board v Hughes UKEAT/0179/13 it was considered: “The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.”[228]Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495 dealt with the definition of ‘related to a relevant protected characteristic’, finding that a Tribunal must “articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged.”[229]Section 27 Equality Act 2010 provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”[230]There is a detriment if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment. An unjustified sense of grievance does not suffice (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[231]When considering whether treatment is ‘because’ the claimant has done a protected act or it is believed the claimant has done, or may do a protected act, the same principles of causation apply as to direct discrimination. It must however be established that the alleged discriminator knew or suspected that the claimant had done or would do the protected act, or there could be no causal link to the less favourable treatment (Scott v London Borough of Hillingdon [2001] EWCA Civ 2005, CA).[232]The alleged discriminator does not have to be wholly motivated to act by the protected act having been carried out. All that is needed is that the discriminatory reason should be of sufficient weight in the decision making process to be treated as a cause of the act thus motivated (Nagarajan v Agnew [1994] IRLR 61, approved in O’Donoghue v Redcar and Cleveland Borough Council [2001] EWCA Civ 701).[233]In Martin v Devonshires Solicitors UKEAT/0086/10 it was held that “there would in principle be cases where an employer had dismissed an employee in response to a protected act but could say that the reason for dismissal was not the act but some feature of it which could properly be treated as separable.” Breach of Contract[234]The Tribunal has jurisdiction to consider breach of contract claims arising or accrued on termination of employment. This can include financial compensation for actionable loss arising from breach of a specific contractual term.[235]Damages for a wrongful dismissal will generally be limited to compensation for the loss of the notice period and (if applicable) the employer's failure to follow a contractually agreed disciplinary period. Damages for the manner of the dismissal are irrecoverable, as claims for (non-contractual) losses following dismissal lie within the province of a statutory claim for unfair dismissal (referred to as the Johnson exclusion (Johnson v Unisys Ltd [2001] IRLR 279)).[236]Also in the realm of unfair dismissal claims, a claimant may complain of constructive unfair dismissal, where the employee complains of a fundamental breach of contract by the employer, usually a breach of the implied term of trust and confidence, which may comprise a number of cumulative issues. The present case does not include such a claim. Conclusions – 2218131/2024 Direct discrimination related to age and/or race[237]For convenience, we have considered together the claimant’s complaints of direct race discrimination and direct age discrimination in the first claim. Issue 7a)[238]The claimant alleges that on or around 1 October 2023, Rachel Smith (Claimant’s line manager) gave the Claimant a baseless ‘inconsistent’ performance rating on month one.[239]The claimant did not deal with this allegation in her witness evidence and stated in cross examination she did not want to pursue this allegation. We have nevertheless considered it as the claimant did not formally withdraw this allegation. In cross examination the claimant confirmed that as a result of the email of 7 June 2023 the respondent would have to put an inconsistent rating, but her complaint was that nothing positive had been added to this. The claimant did not say when it was put to her in cross examination why this was anything to do with her age or race. We find that the claimant has not identified any evidence from which we could conclude that there was any detriment or less favourable treatment because of her age or race. The person she relied on as a comparator was not an appropriate comparator because he joined before the email of 7 June 2023. The burden of proof therefore does not pass to the respondent. We are in any event satisfied that the reason for the inconsistent rating was because of the application of the guidance in the 7 June 2023 email. This complaint therefore fails. Issue 7b)[240]The claimant alleges that on or around 27 December 2023, Rachel Smith took 5 weeks to send the Claimant’s three-month probationary review to the Claimant (it should have been sent on 29 November 2023).[241]The claimant asserted in cross examination that the delay was deliberate. She did not give evidence why she thought that was the case or how this might be connected to age or race, or why she contended there was treatment which was less favourable than anyone else was treated or would have been treated. She did not challenge Ms Smith’s evidence that it had slipped her mind, which we have accepted was the case. The document was sent within an hour when the claimant reminded her on 18 December 2023 (which we note is three weeks, not five). The burden of proof therefore does not pass to the respondent. We are in any event satisfied that Ms Smith has given a reasonable explanation which is nothing to do with age or race. This complaint therefore fails. Issue 7c)[242]The claimant alleges that Rachel Smith added unrealistic objectives to that three-month probationary review.[243]The allegation appears to be that there were points added to the three-month review document sent on 18 December 2023 which the claimant says were not discussed in the review meeting. We have found they were discussed in the meeting, and formed part of the Job Profiles project which had been allocated to the claimant. The claimant asserted in cross examination that the work given to her kept increasing. We do not find that this was the case. The various emails setting out deliverables, Jiras and objectives provided were all directed towards this project and simply provided further clarity as to what was required. There was therefore no detriment.[244]The claimant has not provided any evidence of less favourable treatment compared to colleagues.[245]In the circumstances the burden of proof does not shift and the Issue 7d)[246]The claimant alleges that on or around 21 December 2023, Rachel Smith and Nina Taylor placed the Claimant on a Performance Improvement Plan (PIP) which included unmeasurable items, biased items with no evidence.[247]The claimant does not address in her witness statement why she says the matters set out in the PIP were unmeasurable, biased or with no evidence. She accepted in cross examination that matters such as the slide deck had been raised with her previously, and that items relating to complying with reasonable management requests, having been pointed out in the PIP, could easily be improved upon. She accepted that the PIP recorded positive aspects of her work. She did not agree that the PIP was supportive and asserted that it was an exit management tool.[248]We find that the PIP was a detailed document which set out clearly what the areas were which Ms Taylor considered to show underperformance and what was expected of the claimant to improve (in Column 2). The claimant has not shown anything which might show the PIP contained matters which were unmeasurable, biased or unevidenced. Nor has she provided any evidence which connects the content of the PIP to her age or race in any way. The burden of proof therefore does not shift to the respondent. We also accept in any event the explanations given by Ms Smith in evidence as to how the PIP was intended to work. This Issue 7e)[249]The claimant alleges that on 21 December 2023, Nina Taylor gave the Claimant unachievable unrealistic and not SMART objectives in the PIP.[250]The claimant had already received SMART objectives in Ms Taylor’s detailed email of 18 December 2023. We repeat our conclusions above in relation to Issue 7d) as to the content of the PIP. There is no evidence of less favourable treatment because of age or race, and this Issue 7g)[251]The claimant alleges that The Respondent offered work to others which it did not offer to the Claimant, namely that on 29-30 November 2023, Nina Taylor offered ‘ownership of modules’ work to Anna Beck but not the Claimant.[252]We have found that Ms Beck was offered this work and not the claimant. However, Ms Beck is not an appropriate comparator, either as an actual or an evidential comparator. Ms Beck had the relevant training and skills set to undertake the work required, whereas the claimant did not. The claimant accepted in cross examination she did not have the learning fundamentals course. There is therefore no less favourable treatment made out, and in any event nothing whatsoever to connect this matter with age or race. This complaint therefore fails. Issue 7h)[253]The claimant alleges that on or around 21 December 2023, Nina Taylor and Rachel Smith gave the Claimant objectives to complete in order to pass her probation objectives which they gave to other members of staff (including Jonathan Lomas, Ryan Cartwright) as just regular system housekeeping month-to-month business with no measures.[254]This allegation appears to relate to the inclusion of BAU (business as usual) work in the claimant’s objectives. We find the claimant’s colleagues are not appropriate comparators as they had completed probation. At the time objectives were set in December 2023 the claimant was not yet doing this work and it was intended she would shadow Mr Lomas to learn how to undertake the tasks required (as confirmed in the email of 18 December 2023, under Objective 1). In the circumstances the claimant has not evidenced any less favourable treatment, nor any connection with her age or race. The burden of proof does not therefore shift to the respondent. In any event we are satisfied with the respondent’s explanation as to why the claimant was given this work. This complaint Issue 7i)[255]The claimant alleges that Nina Taylor and Rachel Smith wrongly stated in the Claimant’s PIP that she received bad stakeholder feedback when in fact she had received good stakeholder feedback (from Maggie Swindon) (comparators Ryan Cartwright, Jonathan Lomas). Nina Taylor and Rachel Smith included the negative feedback on the PIP which was the first time the claimant was made aware of it and was not given a chance to respond prior as the person that gave the negative feedback was never revealed so she could not give her side of actual events The positive stakeholder feedback from Maggie Swinden (Stakeholder) was never considered in the claimant’s favour.[256]We accept the evidence of Ms Smith that feedback had been given to Ms Taylor from a number of individuals and that by the point the PIP was put in place the relationship had broken down with the team. There is nothing the claimant has pointed us to that suggests anyone else who had received such feedback during their probation would have been treated differently. Nor is there anything to connect this with age or race. In relation to the positive feedback from Ms Swindon, this was provided on the same day as the PIP and we find therefore that the timing meant it wasn’t included, though it was added later. Again this is nothing whatsoever to do with age or race. This complaint therefore fails. Issue 7j)[257]The claimant alleges that on or around 21 December 2023, Nina Taylor and Rachel Smith queried the Claimant’s job application.[258]The issue of the claimant having failed to provide evidence of her Workday training was included in the PIP on 21 December 2023. We accept the evidence of Ms Smith that this was not a query about her job application, it was about the continued failure of the claimant to provide the evidence requested. The claimant has not pointed to anyone else who was treated differently in this regard, or anything to suggest a hypothetical person in her circumstances would have been treated differently. Nor is there any connection whatsoever to the claimant’s age or race. We are in any event satisfied with the consistent and well evidenced explanation given by the respondent as to this matter. This complaint therefore fails. Issue 7k)[259]The claimant alleges that around 7 December 2023, Derek Coombes (higher manager) shared the Claimant’s health information with Rachel Smith without the Claimant’s consent.[260]It is not in dispute that around 7 December 2023 the claimant had attended the office with a common cold. We find that Mr Coombes informing the claimant’s line manager that she had been in the office and unwell cannot amount to a detriment. It was self-evidently intended to be a supportive measure, to ensure that the claimant was aware of the hybrid working policy.[261]The claimant suggested I cross examination that the information being shared was ‘clearly a tool to be used against me’ but provided to explanation why that would be the case. This is a perfectly ordinary interaction which the claimant has blown out of all proportion. There is no evidence whatsoever that the interaction was anything to do with age or race. This complaint therefore fails. Harassment related to age and/or race Issue 11a)[262]The claimant alleges that on 11 December 2023, Rachel Smith questioned the Claimant about her health via MS Teams based on the information concerning the Claimant’s health which Derek Coombes had wrongly shared with her.[263]We find that Ms Smith’s messages on 11 December 2023 were a perfectly ordinary, supportive measure. If it was in fact unwanted conduct as the claimant suggests, it cannot be construed in any way as being related to age or race, nor can it be suggested that obviously supportive measure could reasonably be construed as having either the purpose or effect of violating the claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The complaint[264]The respondent has accepted that the grievances submitted on 17 January 2024 and 17 May 2024 were protected acts (we note the second grievance was in fact sent on 22 May 2024). Issue 16a)[265]The claimant alleges that after her return to work from sick leave on 2 February 2023,(i) Derek Coombes did not allow the Claimant to resume her role, do her normal work, or attend pre-planned meetings and(ii) Derek Coombes did not permit the Claimant to attend business meetings within her role and job description.[266]We accept Mr Coombes’ evidence given in his witness statement that the tasks given to the claimant were intended to alleviate stress. This is recorded contemporaneously in the email of 2 February 2024. We find therefore this allocation of work did not amount to a detriment. Similarly, in relation to attendance at meetings, on 8 February 2024 the claimant asked whether she should attend a particular meeting which was outside the hours agreed for her to work during her phased return, and was simply told it was not necessary, as it was not relevant to the tasks she was undertaking at that point. We find that after her phased return there was an expectation that the claimant should attend team meetings and she was told to do so (see email from Mr Coombes to the claimant 11 April 2024, page 632).[267]In any event we accept Mr Coombes’ evidence that the reason for these decisions was not because the claimant had raised a grievance, but in order to support her phased return to work.[268]This complaint therefore fails. Issue 16b)[269]The claimant alleges that the Respondent did not provide a timely response or any response to the Claimant’s SARS request made around 21 March 2024.[270]We accept Mr North’s evidence as to the discussion on 26 March 2024 about this, as recorded in his meeting note. In short, the claimant had received a response to her SAR but thought there must be a document containing the conversation between Mr Coombes and Ms Smith on 7 December about her having a cold, which he explained there may not be. The claimant was still insisting during the hearing that this document must exist. We have found that it did not, and that the exchange was verbal. This allegation is therefore not made out.[271]In any event we accept the respondent’s evidence that Subject Access Requests were dealt with by a different team. There is no evidence at all that team would have known about the grievance of 17 January 2024, nor that anyone in that team would be motivated by the fact a grievance relating to discrimination had been made to deliberately exclude documents from a straightforward Subject Access Request.[272]This complaint therefore fails. Issue 16c)[273]The claimant alleges that on 12 April 2024, Teams meeting attended by the Claimant and others was concluded, but Jonathan Lomas and Andrew Wilson restarted the meeting which went on for a further 43 minutes without the Claimant.[274]We find that this meeting which went short because another colleague was missing, and then when that colleague turned up Mr Lomas and Mr Wilson joined again, at the same time that the other colleague left. The claimant did then join again and left of her own accord. There is nothing at all to suggest she was being excluded, and no evidence that Mr Lomas or Mr Wilson even knew about her grievance or would have any reason to treat the claimant in a detrimental manner. This complaint Issue 16d)[275]The claimant alleges that she was dismissed by Philip North on 5 June 2024.[276]The claimant in her submissions relied on two matters to suggest that there was evidence from which it could be concluded that she had been victimised:(i) the timing of the decision to dismiss, and(ii) comments relating to ‘parking’ concerns until after the grievance. Both of these points are readily explained by the claimant’s managers wanting to wait until the grievances were concluded before dealing with probation issues. There is nothing to suggest that it was because the claimant had made discrimination complaints per se that led to the dismissal.[277]The only connection between the claimant raising her first grievance and the dismissal was that the fact the claimant was continually raising complaints about her managers, which were all shown to be unfounded, which meant that in the small team she was in there was then a limited amount of work that she could do because of the supervision required. This was a factor in the dismissal. This is not however evidence that the dismissal was because of the protected act in the sense required by s27, applying Martin. The impact of the grievances having been raised on the work the claimant was able or willing to do is properly separable from the fact of the protected act.[278]These matters had all arisen and were due to be dealt with in the probation meeting on 17 May 2024, before the claimant raised her second grievance on 22 May 2024, and therefore the second grievance cannot have been causative in any event.[279]Further, in any event we accept Mr North’s evidence that the reason for terminating the claimant’s employment was that she had failed to meet the required standards of her grade, and there were no assurances given by her that she was willing to work effectively with her managers. The matters which were discussed in the probation hearing and set out in his letter were all evidenced. Although on appeal it was found that he should not have relied on the PIP from a procedural perspective (see page 833), that does not suggest those were not the real reasons he relied upon when making his decision. We note that Mr North’s decision to dismiss was in fact upheld based on the claimant’s inability to maintain relationships with her managers and colleagues, directly leading to dysfunctional relationships and poor team morale which damaged the ability of the team to deliver important outcomes for the children and learners the respondent was there to serve. This was nothing whatsoever to do with the fact that the claimant had raised discrimination grievances.[280]This complaint therefore fails. Issue 16e) and f)[281]The claimant alleges that the Respondent paid the Claimant’s 5 weeks' notice pay late (it should have been paid on 5 June 2024) and that the Respondent paid the Claimant’s 8 days holiday pay late (it should have been paid on 5 June 2024).[282]We find that matters of pay were dealt with by the respondent’s payroll team. There is no evidence whatsoever that the payroll team knew about the claimant’s grievances. What little evidence we have about this period suggests the claimant told Mrs Ramsay she had holiday pay outstanding, and this was passed on promptly to the payroll team and the recalculated accrued leave approved promptly when requested by Ms Sparkes. This complaint therefore fails. Issue 16g)[283]The claimant alleges that the Respondent did not investigate the Claimant’s second grievance.[284]It is not in dispute that the second grievance was not investigated, which the claimant could reasonably perceive to be a detriment. There is no evidence however to suggest that this was done because the claimant had raised the first grievance, or because of the nature of the second grievance containing further allegations of discrimination. The burden of proof does not therefore shift to the respondent.[285]In any event we accept the explanation given by Mr North in his evidence that the issues raised in the second grievance were broadly the same ones as he had answered in his response to the claimant on 17 May. It was confirmed that the issues could be discussed on 29 May 2024, which the claimant subsequently declined in her email of 24 May 2024. This complaint therefore fails. Issue 16h)[286]The claimant alleges that the Respondent did not follow its own probation policy and procedure in the following respect: the Claimant’s probation should have lasted 6 months, not 3 months.[287]The claimant’s contract provided in respect of probation: “Your appointment may be terminated at any time during the probationary period if your service is unsatisfactory and it is clear that you will not be able to reach the required standard before the end of the probationary period”[288]The respondent was therefore entitled to consider whether the claimant’s probation should be terminated prior to the end of the six month probationary period. The probation policy also allowed for ‘Outside formal reviews’ at any time there were serious performance concerns, as set out above. In the circumstances we find the respondent was acting within the bounds of the claimant’s contract and its own policies, and there was therefore no detriment to the claimant in that respect.[289]In any event for the same reasons as set out above we accept Mr North’s evidence as to why the respondent held a formal probation meeting when it did, and find that this was nothing to do with the fact that the claimant had raised discrimination grievances.[290]This complaint therefore fails.
Conclusion
[291]The first claim therefore fails entirely and it has not been necessary to consider time limits. Conclusions - 6008104/2024 Disability[292]The Claimant relies on menopausal symptoms including brain fog, fatigue and mental health issues. The relevant period is said in the list of issues to be from March 2024, however all allegations relating to disability relate to the period around May 2024, culminating in the probation review meeting on 29 May 2024. We accept the claimant had those issues at that time, as reported in the letter from her GP dated 17 January 2025 (page 1001) which includes reference to a formal diagnosis of Menopause on 9 May 2024.[293]We go on to consider whether those symptoms had a substantial adverse effect on the claimant’s ability to perform day to day activities without treatment or other measures. We find that they did. Although we had sparse evidence as to the frequency and severity of the symptoms experienced by the claimant, there is some evidence of sufficient impact in terms of the claimant’s ability to concentrate, difficulties with memory recall and fatigue impacting on her ability to undertake daily tasks that she completed a workplace adjustment passport in March 2024 requesting discussions to be both verbal and confirmed in writing with action points and agendas for meetings.[294]Most of the claimant’s disability impact statement refers to stress and anxiety pre-dating menopause, which is not the impairment relied upon. However, we accept that her mental health would have been worsened by her menopausal symptoms, to the extent that the claimant was referred to the emergency services on 8 May 2024, the day before her formal diagnosis. We find that there was sufficient connection to this episode to conclude that the claimant’s condition of menopause did have a substantial adverse effect on her day to day activities in relation to the impact on her mood, which on 8 May 2024 required emergency medical intervention.[295]Taking these two points of evidence together, we are just satisfied that the claimant has demonstrated that at this time in May 2024 there was a substantial impact on her ability to carry out normal day-to-day activities as required by section 6 Equality Act 2010.[296]The next question is whether the symptoms lasted at least 12 months, or were they likely to last at least 12 months, and if not, were they likely to recur? We remind ourselves that this question must be assessed at the time of the alleged discrimination, and cannot be considered in hindsight. We agree with the respondent that it cannot be assumed that all menopausal women will have symptoms which last 12 months or more. The longevity of the substantial adverse impact must be assessed in the same way as any other impairment, and evidenced. The claimant has provided limited medical evidence and has not discussed the issue further in her witness statement. Nor is the issue of longevity discussed in the disability impact statement. The fact that the claimant continued to have symptoms is not to be taken into account. The Tribunal can only take into account evidence which was available at the relevant time. There is insufficient evidence provided by the claimant to show that she would have had a level of symptoms having a substantial adverse effect for more than 12 months in the absence of treatment.[297]In the circumstances we find that the claimant has not fully satisfied the requirements for a finding that she was disabled within the meaning of section 6 Equality Act 2010. Direct race, disability and/or sex discrimination[298]As for the first claim, for convenience we have considered each complaint of direct discrimination on grounds of race, disability and/or sex together. As we have found there was no disability in this case, the claimant cannot have been treated less favourably because of her disability, and we are not invited to consider any perceived disability. We have nevertheless for completeness looked at causation in relation to each element claimed in the alternative in the event we are wrong in our conclusions on disability. Issue 3a)[299]The claimant alleges that on or around 7 May 2024 the respondent changed her duties from that of a workday analyst to that of a script tester.[300]In the run up to May, the claimant had been asked to undertake work on Testrail, and in relation to a carers leave project. We note that on 25 March 2024 the claimant was offered to continue with Testrail, or instead to work on a project related to bereaved parents leave. However on 28 March 2024 the claimant confirmed to Mr Coombes and Ms Taylor she did not feel she could work on a project at this time. The claimant was therefore asked to focus on the Testrail project. On 11 April 2024 she was asked to continue with that project. There were various communications after that in relation to what work the claimant should be doing, and it was consistently confirmed she should be working on the Testrail project. The key document in the run up to 7 May is Mr North’s email of 3 May 2024 at 15.06pm (page 738). In this email he set out again why the claimant was on Testrail rather than project work given the complaints she had with her managers and the ongoing grievance process. He offered to explore other work that might be acceptable to the claimant in other areas of HR or further afield, noting her reluctance to work outside of Workday.[301]On 7 May the claimant emailed Mr North seeking a split of work between Testrail and another project. There was a short delay in dealing with this request due to Mr Coombes’ absence due to ill health, however on 13 May 2024 Mr North had been able to speak to him and a split was agreed between Testrail and the bereaved parents leave project. In the circumstances, Mr North appears to have been doing everything he could to accommodate the claimant’s requests at this time, while constrained by the individuals the claimant was prepared to work with.[302]We have considered whether the claimant has made out the detriment alleged, that her duties were changed from that of a Workday analyst to a script tester. We find that she has not. We accept Mr North’s evidence that Testrail was still Workday analyst work, and was work that was needed by the respondent. In any event, the claimant’s request made on 7 May 2024 for a split of work was accommodated. The claimant has not made out the detriment alleged.[303]Nor is there any less favourable treatment compared to the comparators relied upon, who were not in the same material circumstances as the claimant, in that they had not raised complaints against managers which limited the type of work they could do.[304]Nor is there any connection whatsoever with the claimant’s race, sex or any disability. Further, the contemporaneous correspondence summarised above shows clearly the reason why the claimant was given Testrail work.[305]In the circumstances this complaint fails at every hurdle. Issue 3b)[306]The claimant alleges that the respondent unilaterally “paused” and suspended the Claimants probationary period on 23 February 2024[307]Pausing a probationary period is permitted by the respondent’s probation policy, in circumstances where there is absence and/or where there is a grievance to resolve. If anything, this was of benefit to the claimant, as it gave her more time to demonstrate the required levels of performance. We find therefore that there is no detriment.[308]In any event, there is no evidence whatsoever of less favourable treatment. The comparators relied upon by the claimant were not in the same material circumstances as her, in that they were not on probation.[309]Nor is there any evidence at all of any connection to the claimant’s race, sex or any disability.[310]In the circumstances this complaint also fails at every hurdle. Issue 3c)[311]The claimant alleges that the respondent held the probationary meeting on 29 May 2024 in circumstances where she was unfit to attend it.[312]We find the respondent did do this. The meeting took place during the claimant’s sick leave, two days before her GP note due to expire. The claimant made it clear she was not fit to attend and wanted to have the meeting in writing, if it is was to go ahead she would want 10 days notice and an agenda (though an agenda had already been provided). It was Mr North’s choice to proceed. We further find that this was a detriment to the claimant. Although she was able to attend and had union representation, nevertheless she was at that time unwell.[313]However, the claimant has not pointed to any evidence from which it could be concluded that Mr North’s decision was at all connected with her race, sex, or any disability. The comparators relied upon were not in the same materials circumstances as the claimant, not is there anything to suggest the respondent would have acted any differently in relation to another colleague without those characteristics who had the same performance and conduct issues as the claimant while on probation. The burden of proof does not therefore pass to the respondent.[314]In any event we accept Mr North’s explanation given in his witness statement, that it was his preference to go ahead verbally as writing could be open to misinterpretation. In response to a question from the Tribunal as to why he went ahead with the meeting while the claimant was still on sick leave, he stated there was nothing to suggest to him the claimant would not be well enough to attend, and it was not in best interests to delay the meeting further. He had been trying since April to have a conversation about probation and was still waiting for the outcome of the grievance appeal, and he understood the claimant herself was very keen to know what the situation was, so that was the decision he took. Whether this was good practice or not, we accept that this was genuinely what Mr North had in mind, and that his decision to go ahead was nothing whatsoever to do with the claimant’s race, sex or any disability. Issue 3d)[315]The claimant alleges that the respondent failed to provide an occupational health assessment on or after 12 April 2024.[316]The claimant made a request for an occupational health assessment for some support for the workplace stress she was experiencing in an email of 12 April 2024. Mr Coombes responded that the claimant had last had an assessment three months ago which had made suggestions which had been supported. He asked what specific things the claimant would want occupational health to provide advice about (page 646). The claimant did not respond to this, and no referral was made. This is potentially a detriment.[317]However, the claimant has shown nothing from which the Tribunal could conclude that, in the absence of an explanation, there was less favourable treatment than the named comparators (or even a hypothetical comparator), or that any failure to make a second referral was anything at all to do with the claimant’s race, sex or any disability. The burden of proof does not therefore shift to the respondent.[318]In any event, it is readily explainable why a second referral was not made, namely that there had already been a recent referral and the claimant did not respond to a question as to what another referral would advise on. Issue 3e)[319]The claimant alleges that the respondent failed to provide a risk assessment despite being made aware of the Claimant’s fragile mental health on 13 May 2024[320]This is dealt with in the same email from Mr Coombes on 12 April 2024. He notes he had offered a stress management assessment to the claimant before she had gone on sick leave in January 2024, and she had declined to participate. He stated that if the claimant had changed her mind she should say so and he would organise. The claimant’s response to this was to accuse Mr Coombes of not offering any new or additional support since her return to work. She does not request a risk assessment to be undertaken. As at 13 May 2024 we find the claimant would have been fully aware that she could request a risk assessment. She did not do so at any point.[321]We find there is nothing to suggest the respondent would have treated anyone else differently where a risk assessment had previously been declined and there was no further request despite an offer to arrange the same. There is nothing to suggest any of the named comparators were in the same material circumstances as the claimant. Nor is there any evidence which might suggest that any failure to conduct a risk assessment was in any way to do with the claimant’s race, sex or any disability.[322]In the circumstances this complaint fails. Failure to make reasonable adjustments[323]This complaint must fail because of our finding that the claimant was not disabled within the meaning of section 6 at the relevant time. We have nevertheless considered it in the event that our conclusion on disability is incorrect.[324]The claimant relies on a practice to not provide a detailed written agenda prior to meetings or to follow the agenda in meetings. This allegation appears to relate to the meeting on 29 May 2024.[325]The respondent invited the claimant to the meeting in accordance with its policy, and on 17 May 2024 provided an agenda by email. Mr North did concede in evidence that the agenda could have included more detail, but noted that at that stage the claimant should have been very familiar with the issues raised against her. The meeting notes shows Mr North covered what he said he would do. We do not find that this one-off interaction amounts to a practice, applying Ishola.[326]In any event the claimant was not placed at a disadvantage. She did actively participate in the meeting and had the support of her trade union representative. The only point she complained of in her evidence was that the agenda did not specifically mention the PIP. Given that this was a probation review meeting, we find it should not have been surprising that Mr North wished to discuss the PIP. Despite having a trade union representative there, we note the claimant did not ask for a postponement or for any documents to be provided to her.[327]This complaint therefore fails in any event. Breach of contract[328]The alleged breaches of contract relied on by the claimant are those set out at 16(a) to (f) in the List of issues. These are said to individually (or) cumulatively amount to a breach of contract, namely a breach of the implied term of trust and confidence and/or or the implied term of duty of care for an employee’s health and safety. It is not controversial that such implied terms would exist in the contract. The claimant also contends for an express entitlement to a complete six month probationary period, which we consider below, and an implied term that the respondent would provide accurate information on tax documentation to the claimant, which does not appear to be relevant to any of the matters relied upon.[329]The only matter in this list relied upon by the claimant in submissions is a), not affording the claimant the full 6 month probation period. Nevertheless, we have considered each point in the list of issues, leaving aside for the time being the question whether any of the matters relied upon, if proven, resulted in actionable loss. Issue 16a)[330]We have already considered the issue of an alleged failure to follow the respondent’s probation policy in that the claimant’s probation should have lasted 6 months, not 3 months, at issue 16h) in the first claim. We repeat our conclusions that the respondent was acting within the bounds of the claimant’s contract and its own policies in terminating her probation before the end of the 6 month period. There is therefore no breach of contract in this regard. Issue 16b)[331]The claimant contends that the respondent failed to provide a mental health first aider at the formal meeting on the 29 May 2024. We have already concluded that the meeting took place when the claimant was unfit to attend it (see issue 3c) in this claim). The question is whether the respondent breached either the implied term of trust and confidence or the implied term relating to health and safety by not providing a mental health first aider. Factually, the respondent did not provide one. However, we note the claimant attended the meeting with union representation and did not request or suggest she needed a mental health first aider or an adjournment on the day as a result of being unwell. In those circumstances we do not consider there was a positive duty upon the respondent as an employer to suggest or arrange this, nor do we consider this would amount to a breach of either of the implied terms. Issue 16c)[332]The claimant contends that the respondent failed to make an occupational Health referral to check if the claimant was in a mental fit state to attend the formal meeting on 29 May 2024. It appears this is alleged to be a breach of the implied term relating to health and safety. We have already considered what occurred in relation to issue 3d) in this claim. Although a request for a referral was made, and that was not done, the reason for this is that the claimant had not responded to a question posed as to what another referral would advise on, given that she had recently had a referral. In circumstances where a reasonable request had been made by the respondent as to what a second referral might address, and in the absence of a response, we do not consider it was a breach of the implied term not to arrange a second referral. Issue 16d)[333]The claimant alleges the respondent suspended her probationary period and subsequently failed to restart it. We have already considered the policy in relation to this under issue 3b) in this claim, and have found that pausing the probationary period was, if anything, a benefit to the claimant and was not in breach of the policy. We cannot therefore conclude that this was a breach of any implied term, as the policy expressly provides for it. In relation to restarting the probationary period, it was explained to the claimant at the outset of the meeting on 29 May 2024 that the probationary period had been paused to allow for the conclusion of the claimant’s grievances which had been investigated and not upheld, and that this was now a formal probation meeting. We find this effectively restarted the probation period, even though probation was in the end terminated after the meeting. The minutes also note that the claimant understood the reason for the meeting (page 784-785). This was in accordance with the same part of the policy, and we find no breach of contract arose. Issue 16e)[334]The claimant alleges that the respondent changed her duties from that of a workday analyst to that of a script tester. We have already considered this matter in relation to issue 3a) in this claim and concluded that this did not occur. There cannot therefore be a breach of contract in this regard. Issue 16f)[335]The claimant contends that the respondent failed properly to investigate the claimant’s claims in that the same person (i.e. Mr North) was appointed throughout. In her written submissions the claimant contended that Mr North was the decision maker in relation to a recommendation to dismiss for gross misconduct on 11 January 2024. That is not in the list of issues and in any event no decision was made in relation to Ms Taylor’s investigation report around that time or subsequently. There is nothing inappropriate in Mr North investigating the claimant’s grievances, although in fact he appointed Ms Sparkes to investigate the victimisation complaints made in February 2024. He was a senior manager and appropriate person to deal with the claimant’s grievances. The claimant contends in her written submissions that he then became her line manager. This is not in the list of issues, and it is not clear why exception is taken to this, but in any event is readily explained by the deterioration in the relationships between the claimant and all her other managers. Once Mr North took over line management it was then in our view entirely appropriate for him to conduct the meeting on 29 May 2024. In relation to the second grievance in May 2024, we have already considered what happened to this in our conclusions on issue 16g) in the first claim, namely that Mr North invited the claimant to discuss these issues at the 29 May 2024 meeting and she declined this opportunity. We cannot identify anything inappropriate in relation to the appointments or actions of Mr North, who was suitably placed as a senior manager to deal with these matters. The claimant has not identified any conflict of interest or bias that might arise from this.[336]The remaining issue relates to Mrs Ramsay (then Schweitzer) dealing with the claimant’s dismissal appeal. Mrs Ramsay was the director of that line of business and Mr North’s line manager. We find it is perfectly normal and acceptable industrial practice for an appeal to be dealt with by the next level of management up, as was the case here. Mrs Ramsay was sufficiently independent to deal with the matter.[337]We also note that it was not only Mr North and Mrs Ramsay involved in dealing with the claimant. For example, Ms Sparkes investigated the claimant’s victimisation complaints, and Ms Saide dealt with the claimant’s grievance appeal. It is therefore not correct to suggest the same person was appointed throughout.[338]We therefore conclude that there was nothing in the respondent’s actions which amounted to a breach of any implied term. Cumulative breach[339]We have also considered whether any of these matters, although not breaches of contract taken individually, could cumulatively amount to a breach of the implied terms ending with the matters relating to the meeting on 29 May 2024. We find there is nothing sufficiently serious, even considered together, to amount to a cumulative breach of contract. We also remind ourselves that cumulative breaches are normally considered in the context of a constructive unfair dismissal claim, and there is no such claim here. If the claimant is contending that a cumulative breach of contract led to her dismissal (it is not entirely clear from her submissions), then this would be excluded by Johnson. The breach of contract Wrongful dismissal[340]We have considered separately the issue of wrongful dismissal, which requires the claimant to show that her contract was breached in relation to the payment of notice pay. It is not in dispute the claimant received the 5 weeks’ notice pay to which she was entitled. This complaint[341]The respondent has accepted that the claimant’s grievances of 17 January 2024 and 17 May 2024 (the correct date in fact being 22 May 2024), and the bringing of the first claim (on 10 April 2024), constituted protected acts. Issue 21a)[342]The claimant contends that the respondent refused ‘the Claimant’s request for a reasonable split of work of Testrail’ on 7 May 2024. This is essentially the same matter as we have considered in relation to issue 3a) in this claim. We repeat what is said there in relation to the reasons why specific tasks were allocated to the claimant. Given the date this cannot relate to the second grievance. We find the only possible connection to the first grievance brought in January 2024 (or the bringing of the first claim, which essentially relates to the same matters), is that the claimant had made complaints about her managers, and her refusal to engage with those managers restricted the work that could be allocated to her, as discussed in correspondence at the time. There is no evidence at all that the allocation of this work was because the claimant had brought a discrimination grievance or proceedings, as opposed to the fact that she refused to engage with her managers. The two matters are properly separable, applying Martin. The burden of proof does not shift to the respondent and in any event we have accepted the respondent’s explanation, which is nothing whatsoever to do with a discrimination complaint having been made. This complaint therefore fails. Issue 21b)[343]The claimant alleges there was a failure to give due consideration to the grievance appeal dated 22 May 2024 on 29 May 2024. This must relate to the second grievance brought on 22 May 2024 rather than any appeal. As discussed previously, we have found that Mr North offered to consider these matters at the meeting of 29 May 2024 and the claimant in her email of 24 May 2024 declined this. The detriment alleged is therefore not made out and this complaint fails. Issue 21c)[344]The claimant alleges the respondent failed to provide a fair probationary review on 29 May 2024. The claimant has not in her evidence or submissions explained what she considers to be unfair, save for the procedural matters we have already considered, namely(a) going ahead when the claimant was unwell,(b) failing to arrange an occupational health referral,(c) failing to arrange a mental health first aider and(d) the appointment of Mr North to deal with the hearing. We have already accepted the respondent’s explanations for all of these matters. The claimant has not pointed to any matter which she says evidences that the reason for the way in which the meeting was conducted was because she had raised grievances or had brought proceedings. The complaint remains wholly unparticularised. In the circumstances there is nothing we can find which would shift the burden of proof to the respondent, but in any event we accept the respondent’s explanations for these matters. This complaint Issue 21d)[345]The claimant alleges that the respondent held a probationary review which was in the nature of a disciplinary hearing. We find that the content of the probationary meeting on 29 May 2024 was to discuss the claimant’s performance during the probation period, which was exactly as expected under the probation policy. The claimant was not subjected to any disciplinary process at any point (we note that a conduct process was considered in January 2024 but was not progressed). Having considered carefully the documentary and witness evidence as to what occurred at the meeting, we conclude that the meeting was not in the nature of a disciplinary hearing and the matters discussed were reasonably necessary and related to the claimant’s performance during her probation. The claimant has therefore not made out the detriment alleged and this Issue 21e)[346]The claimant alleges that the respondent refused her request to have only one manager undertake the monthly ABLE performance review. The claimant accepted in evidence that this was not correct. The only time she requested a single manager to undertake her review this was agreed. The detriment is therefore not made out and this complaint fails. Issue 21f)[347]The claimant alleges that from 17 April 2024 Mr Coombes stopped communicating with her, ignoring her emails so that the claimant could not carry out her work effectively, further that working on Testrail did not provide and prove her skillset in relation to the PIP and objectives set by her managers which disadvantaged her.[348]On 17 April 2024 there was an exchange of emails between the claimant and Mr Coombes, where Mr Coombes noted that their relationship had deteriorated and he had referred the claimant’s complaint about him to Mr North. This was indeed his last email to her. However, it is not correct to suggest that this meant the claimant could not carry out her work effectively. Mr North emailed on 19 April 2024 to offer a probation meeting and general update the following week, and from that point effectively took over the claimant’s line management. The claimant and Mr North were then in regular communication, and a meeting was held on 29 April 2024 where the work the claimant should be undertaking was discussed in detail. It was noted in Mr North’s summary of the meeting in his email of 2 May 2024 that the claimant had not in fact been undertaking the Testrail work since 16 April, such that there was a lack of progress. It was the same day that he invited the claimant to a probation review meeting to discuss her performance concerns. There were further email discussions between them and on 13 May 2024 the claimant was permitted to undertake the bereaved parental leave project. We have already found that the Testrail project was appropriate work for the claimant as an analyst, and note that in any event the reasons for termination of her probation were much wider than her performance on that project.[349]In those circumstances we find the detriment alleged is not proven and this complaint fails. Issue 21g)[350]The claimant alleges that the respondent failed to comply with the contract in not permitting her to complete the probationary period where others were allowed to complete it. We have already concluded there was no breach of contract in terminating the claimant’s probationary period early and that this was in accordance with policy. The detriment alleged is therefore not made out and this complaint fails. Issue 21h)[351]The claimant contends that the respondent failed to consider any alternative options i.e. extension of the probation period. We accept Mr North’s evidence that at this point there had been a complete breakdown in the relationship such that the respondent could not trust the claimant or allocate work to her for which she was originally employed. We further accept what is said in the reasons given in writing for termination, that although the probation policy suggested a warning and period to improve, Mr North did not believe there would be any further meaningful improvement in terms of performance or behaviour. Alternative options were therefore expressly considered and rejected. The detriment alleged is therefore not made out and this complaint fails. Issue 21i)[352]The claimant contends that the claimant agreed to partake in mediation to resolve workplace issues and her two managers rejected this suggestion. Mediation was first offered by Ms Taylor in January 2024 and the claimant declined. Mediation was then recommended in the grievance outcome of 26 March 2024. The respondent accepts in submissions that this was declined by the claimant’s managers. The claimant’s only evidence about this is in cross examination was that she thought her managers were ‘aggrieved’ at this point. There is nothing however which might suggest that the reason for that, if correct, was that a discrimination grievance had been brought, nor was any of this put to Ms Smith in cross examination. The burden of proof does not therefore pass to the respondent. This complaint therefore fails. Issue 21j)[353]The claimant contends that the respondent failed to take into account the claimant’s ‘successful progress and vast workday experience in the work’. It is assumed that the claimant means her progress and experience was not taken into account in the probation review meeting on 29 May 2024.[354]We accept Mr North’s evidence in cross examination that the respondent considered the claimant had the necessary skills and experience to undertake her work, and that if something was completed it was acknowledged. He had the PIP which described positive issues. There were however issues with process, and allowing the right checks and balances. The claimant was not a ‘good fit’, in that she did not work in the way that managers wanted her to in terms of testing and documenting, and may not previously have been required to work with such accountability and visibility. There was also the opportunity to discuss such matters in the meeting. In the circumstances the detriment alleged is not made out and this complaint fails. Issue 21k)[355]The claimant contends that the respondent insisted on holding the meeting dated 29 May 2024, without providing a detailed written agenda, or giving due consideration to whether the Claimant was fit to attend the meeting.[356]We have already considered the circumstances surrounding this meeting in the context of the reasonable adjustments complaint in the first claim and issue 3c) in this claim. In short, an agenda was provided, albeit it was accepted that it could have been more detailed, and we have already found that the claimant was not fit to attend. Mr North did give consideration as to whether the meeting should go ahead, and concluded it should. The claimant did attend, with the benefit of union representation. In the present context we need to consider whether there is anything from which we might conclude that the lack of further detail in the agenda or the decision to go ahead with the meeting during the period of the claimant’s sickness absence were anything to do with the fact that the claimant had done protected acts. We have not found any evidence from which such a conclusion could be drawn. The burden of proof does not therefore shift to the respondent. In any event, we accept Mr North’s explanations for his actions, which are nothing whatsoever to do with the fact that the claimant had done protected acts. This Issue 21l)[357]The claimant alleges that the respondent dismissed the Claimant on the basis of an unsuccessful probation which was meant to last 6 months but was in place for 4 months.[358]We have already deal with the policy surrounding the termination of the claimant’s probation before the expiry of the 6 month probation period at numerous points in this judgment, finding that this decision was in accordance with both the claimant’s contract and the probation policy. We do not consider in those circumstances that there is a detriment to the claimant. In any event, there is nothing from which it could be concluded that the termination was because the claimant had done protected acts. We have accepted Mr North’s reasons for termination, which were not to do with the fact that the claimant had made complaints relating to discrimination. In so far as her various grievances meant that she was not engaging with her managers and relations had broken down, this is properly separable from the content of such complaints, applying Martin. This complaint therefore fails. Issue 21m)[359]The claimant contends that she received her final payments over two payments, which were due in June 2024 and only received in July 2024 and as such was taxed at a higher rate.[360]We repeat our conclusions in relation to issue 16f) in the first claim. We accept the respondent’s evidence that matters of payroll were dealt with by a separate team. There is no evidence at all that team knew about the claimant’s grievances or proceedings, let alone would be motivated by them to delay payment for one month. This complaint Issue 21n)[361]The claimant alleges that the respondent failed to provide a response to the DSAR and subsequent data requests made on 26 February 2024, 21 March 2024, 27 March 2024, 17 October 2024, 22 November 2024.[362]Again we find that such requests are dealt with by a separate team, and the claimant has not pointed to any evidence at all that team would have known about her protected acts or been motivated by them not to respond to requests. This complaint therefore fails. Issue 21o)[363]The claimant contends that her dismissal was an act of victimisation. We repeat what we have previously concluded about the reasons for termination at numerous places in this judgment, including at issue 21l). There is no evidence from which we might conclude that the claimant’s dismissal was because she had done protected acts. This
Conclusion
[364]In summary, all of the claimant’s complaints in this claim fail. In the circumstances we have not had to consider time limits. Judge’s Note[365]Employment Judge Keogh apologises for the delay in this judgment reaching the parties. The final morning of deliberations and writing up of the judgment were delayed due to a prolonged period of absence for personal reasons.[1]There is no reasonable prospect of the original decision being varied or revoked, for the following reasons.[2]It is not clear from the document sent whether the claimant is requesting reconsideration or an appeal, or both. The accompanying email asks for reconsideration however, it is therefore assumed that the claimant is seeking a reconsideration on the same grounds as set out in her appeal document, each of which is considered below. The claimant is advised that the Tribunal cannot enter an appeal and any appeal must be lodged with the Employment Appeal Tribunal. Ground 1 – Error of law – Definition of disability[3]The claimant does not set out how she contends the Tribunal failed properly to assess whether her menopausal symptoms had a substantial and longterm adverse effect on day-to-day activities. The Tribunal found in the claimant’s favour in relation to substantial adverse effect (Judgment paragraph 293) and went on to consider whether, at the relevant time, the symptoms had the longevity required by section 6 as supplemented by Schedule 1 paragraph 2 Equality Act 2010 (Judgment paragraph 296). It is not understood how the Tribunal is said to have fallen into error. If there was an error of law, this is a matter for an appeal not a reconsideration. Ground 2 – Procedural fairness – witness evidence[4]The claimant has misunderstood the nature of a witness order. If a witness order had been granted in her favour, she would not then have been able to cross examine Ms Taylor. The Tribunal’s summary reasoning for refusing the application is set out at paragraph 7.3 of the Judgment. If the Tribunal was wrong in this regard, this is a matter for an appeal not a reconsideration. Ground 3 – Disclosure failures – Probation Policy[5]As set out at paragraph 10 of the Judgment, the Tribunal accepted the late disclosure of the correct probation policy primarily because this was a document the claimant herself had requested disclosure of, and which there was an ongoing duty to provide when the error in the bundle became apparent. The Tribunal ensured that any prejudice to the claimant in the late disclosure was mitigated by allowing her time to consider the document and to put further questions in cross examination. Ground 4 – Misapplication of the Burden of Proof – Discrimination Claims[6]The Tribunal was mindful of the claimant’s status as a litigant in person and gave the claimant repeated reminders of the need to put her case with reference to the matters the Tribunal had to determine, as summarised in the List of Issues.[7]The Tribunal applied the relevant legislation and authorities in relation to the burden of proof, as summarised at paragraphs 212 to 216 of the Judgment, in relation to each allegation of discrimination. It is not clear in which part or parts of the judgment the claimant contends the Tribunal found facts established from which discrimination could be inferred, but failed to shift the burden of proof or imposed a higher burden of proof than required. If there was an error of law, this is a matter for an appeal not a reconsideration. Ground 5 – Contractual misinterpretation – Probation Period[8]The claimant’s position is misconceived, as explained in paragraphs 286 to 288 of the Judgment. Ground 6 – Victimisation – Failure to Investigate Grievances[9]The Tribunal found in the claimant’s favour that the failure to investigate the claimant’s second grievance could reasonably be perceived to be a detriment. This is a separate issue to whether such detriment amounted to victimisation. The claimant has not indicated what evidence she contends the Tribunal failed to consider when determining whether there was anything from which the Tribunal could conclude that this was done because of the claimant’s protected acts. (See Judgment paragraphs 283 to 285.)