Ms S Thompson v The Mayor and Burgesses of the London Borough of Merton: 2300217/2020 and others

EMPLOYMENT TRIBUNALS

Case No 2300217/2020, 2302818/2020, 2301372/2021, 2307642/2020

Between

Ms S ThompsonClaimant

The Mayor and Burgesses of the London Borough of MertonRespondent

Before

Employment Judge Corrigan

In person for claimant

Mr J Davies (instructed by Counsel) for respondent

Date 27 September 2024

JUDGMENT

[1]The claims for health and safety detriment and sex discrimination are dismissed upon withdrawal. Employment Judge Corrigan London South 12 October 2022 Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 1 of 161 EMPLOYMENT TRIBUNALS Heard at: London South On: 10 to 28 June 2024 Claimant: Miss S Thompson Respondent: The Mayor and Burgesses of the London Borough of Merton Before: Employment Judge Ramsden With members Mr C Mardner (for 10 and 11 June only) Mr K Murphy Representation: Claimant In person Respondent Mr J Davies, Counsel

[1]The Claimant began working for the Respondent on 29 March 2010 as a Parenting Officer in its Early Intervention team. The Claimant remains employed by the Respondent.

[2]The Claimant was a workplace representative for the trade union, GMB, in the period with which these claims are concerned, being 2014 until the date the fourth claim was filed, 21 April 2021.

[3]The factual events with which this matter is concerned are numerous, but a number of them centre upon allegations concerning the Respondent’s restructure of its Early Help team, which took effect on 3 February 2020 (the Reorganisation). The Claimant’s post was affected by this restructure. Before the Reorganisation the Claimant’s role was that of PEIP Parenting Officer (the Pre-Reorganisation Role), and on 3 February 2020 that role was deleted and she took up the post of Parenting Co-Ordinator (EPEC) (the Post-Reorganisation Role).

[4]The Claimant presented claims to the Employment Tribunal against the Respondent on each of: a) 14 January 2020 (the First Claim); b) 5 July 2020 (the Second Claim); Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 2 of 161 c) 17 November 2020 (the Third Claim); and d) 12 April 2021 (the Fourth Claim), together, the Claims.

[5]The issues to be decided in the substantive hearing to determine the Claims were set out in the Case Management Orders of EJ Burge of 29 September 2023, a copy of which is appended to this judgment.

[6]On 11 October 2023, EJ Burge determined that the Claimant was disabled at the relevant times by reason of diabetes.

[7]This matter has been the subject of 11 Preliminary Hearings, the latest of which took place three working days prior to the commencement of this hearing. Complaints and issues

[8]While some considerable time was spent defining the issues in this case in numerous Preliminary Hearings, the Claimant’s complaints have not actually been listed out comprehensively in any prior hearing, and so were discussed at the outset of this hearing. It was agreed that the Claimant’s complaints are as follows: Dismissal a) That she was unfairly dismissed (in breach of section 94 of the Employment Rights Act 1996 (the 1996 Act)) either:(i) on 18 December 2019, when she was told that she would be moved into a new post (at a lower salary grade but with a finite period of salary protection) with effect from 3 February 2020; or

(ii) on 3 February 2020, when she took up that post; b) That her dismissal was automatically unfair (pursuant to section 103(1) of the 1996 Act), because it was for the reason or principal reason that she performed or proposed to perform any functions or activities as an employee representative for members of the GMB trade union; c) That her dismissal was automatically unfair (pursuant to section 103A of the 1996 Act), because it was for the reason or principal reason that she made a protected disclosure; Detriment d) That she was subjected to five different detriments for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union, or penalising her for doing so, in contravention of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act); e) That she was subjected to 40 instances of detriment on the ground that she made one or more protected disclosures (relying on four disclosures), in contravention of section 47B of the 1996 Act; Disability discrimination Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 3 of 161 f) That she was directly discriminated against on ten occasions because of one or more of her disabilities (section 13 of the Equality Act 2010 (the 2010 Act)); g) That she experienced six incidents of unfavourable treatment because of things arising in consequence of her disability(ies) (section 15 of the 2010 Act); h) That the Respondent failed to make reasonable adjustments in relation to six provisions, criteria or practices it applied to her (in breach of section 21 of the 2010 Act); i) That, by three instances of unwanted conduct, the Respondent harassed the Claimant related to disability (as described in section 26 of the 2010 Act); Race discrimination j) That she was directly discriminated against on 28 occasions because of her race (section 13 of the 2010 Act); Victimisation k) That she was subjected to detriment on 23 occasions because of one or more of five ‘protected acts’ (as described in section 27 of the 2010 Act); and Written employment particulars l) That the Claimant was not provided with a written amendment to her written particulars of employment when she was demoted and/or dismissed on 3 February 2020 (in breach of section 1 of the 1996 Act).

[9]The precise complaints made by the Claimant are so numerous that they are described in the section entitled ‘Facts’ below and not also set out here. Because the Claimant avers that some matters occurred on more than one occasion, each individual complaint has been given an allegation number in the description of the facts below in the chronological order in which they arose (which allegation number has also been added to the corresponding issue in the appended list of issues). In total, the Claimant brought 120 complaints.

[10]In the course of the hearing the Tribunal became aware that the Claimant’s former line manager, Ernest Evwaraye, had also presented a claim to this Employment Tribunal relating to some of the events that the Claimant complains about in these proceedings. The London South Employment Tribunal (differently constituted to the Tribunal in this case) determined Mr Evwaraye’s case on 9 May 2023 (case number 2300221/2020). This Tribunal is not bound by the determinations in that case, and no account was taken of the findings of the Tribunal in that matter by this one. The hearing

[11]The Respondent was represented in the hearing by Mr Davies, Counsel. The Claimant presented her own case. The Claimant was accompanied and supported by various family members and friends. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 4 of 161

[12]At the outset of the hearing the parties referred to the fact the Claimant has filed a fifth claim against the Respondent in respect of which the Respondent had just, in the preceding week, submitted a Response. Neither party wished to make an application for that claim to be consolidated with the Claims being considered in this hearing. Indeed, both parties were keen for this hearing, concerning only the Claims, to proceed.

[13]Given that: a) the Claimant is still employed by the Respondent; b) the Claimant has filed a further claim that will not be resolved by this hearing; and c) the Claimant was visibly distressed at the outset of this hearing (and, indeed, at times thereafter), and the Respondent expressed concern about the impact of the litigation on her wellbeing (though it did not doubt her capacity), the Tribunal encouraged the parties to continue to explore whether a settled outcome could be reached instead of a litigated one, but that was not successful.

[14]Unfortunately, one of the Tribunal Panel members, Mr Mardner, had to withdraw from the case after two days, before the Tribunal had begun to hear evidence. Each party gave consent for the hearing to proceed before EJ Ramsden and Mr Murphy only, pursuant to section 4(9) of the Employment Tribunals Act 1996. The bundle(s)

[15]The Tribunal made it plain to the parties that we would read and consider any document in the bundle to which we were taken by written or oral witness evidence or submissions, but that the parties should not assume that we would otherwise read any contents of the bundle which neither party was relying on.

[16]At the Case Management Hearing on 5 June 2024 the parties discussed with EJ Corrigan that the bundle then stood at more than 6,000 pages. The Claimant had contacted the Tribunal to say that, in light of her dyslexia and chronic fatigue syndrome, she could not navigate a bundle of that size.

[17]At that hearing the Claimant said that she was only relying on around 90 pages of documents. The Respondent said that it had included the vast majority of the then-bundle’s contents because it understood that the Claimant wished to rely on them. Following discussion with the parties, EJ Corrigan Ordered the Respondent to compile a bundle comprising: a) The pleadings in respect of all of the Claims; b) The relevant Orders of the Tribunal; c) The documents upon which the Claimant wished to rely (which the Claimant was to email to the Respondent forthwith), being the around 90 pages she referred to in the Preliminary Hearing; and d) The documents upon which the Respondent wished to rely, Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 5 of 161 which, EJ Corrigan understood would not exceed 2,000 pages. EJ Corrigan Ordered that the leave of the Tribunal would be required for the bundle to exceed that page count.

[18]Unfortunately, that bundle was not provided to the Claimant or the Tribunal by the anticipated time of 1pm on the last working day before today’s hearing. Indeed, the bundle was not ready by the time of the commencement of this hearing. The Respondent indicated that the reasons for this were: a) The Claimant in fact provided the Respondent with very substantially more than 90 pages. She had provided around 900 pages worth of documents; and b) The electronic format of those pages made it very difficult for the Respondent to incorporate those pages into the bundle.

[19]A bundle of 1,985 pages (which we term the Respondent Bundle) was uploaded by the Respondent’s in-house lawyer on the afternoon of the first day of the hearing. The Respondent had created a separate pdf of the other documents sent to it by the Claimant, which ran to 792 pages. The Claimant did not apply to the Tribunal for leave to admit any of the documents in that pdf, and so the 792 page document has never had any status in this hearing.

[20]EJ Corrigan had Ordered that “Each party will be responsible for amending the page numbers in their own witness statements and providing these to the tribunal on 10 June 2024 [the first day of the hearing]”. Unfortunately, the statements of the 14 witnesses on whose evidence one or other party intended to rely were not updated with page references to the Respondent Bundle when that bundle was provided, and so the parties were instructed to complete this task as soon as possible, and in any event before the start of the second day of the hearing. The Respondent was instructed to assist the Claimant with identifying the equivalent page references to the material she refers to in her witness statement in the Respondent Bundle, in light of her disabilities and the overriding objective. Again unfortunately, this task was not completed. At the start of the second day the Respondent’s witness statements were updated, but the Claimant emailed on the second day (a day for Tribunal reading) to say that she was struggling with the task.

[21]By the third day, the Claimant still had not updated the cross-references in her witness statement. The Claimant applied for the original bundle of more than 6,000 pages (the one which she had complained about prompting the Preliminary Hearing before EJ Corrigan) to be admitted into evidence. In light of the time wasted by the fact that the Tribunal had not yet been able to read the Claimant’s witness statement by reference to the evidence to which she refers, the Respondent did not object to this application. The Tribunal admitted the original bundle of 6,011 pages into evidence at the start of the fourth day of the hearing, understanding that the Claimant would refer the Tribunal and the Respondent witnesses in cross-examination to pages in that bundle (which we therefore term the Claimant Bundle), and the Respondent would refer the Tribunal and the Claimant to the Respondent Bundle. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 6 of 161

[22]On the fourth day of the hearing, the Respondent wrote to the Tribunal seeking permission to supplement the Respondent Bundle with 98 further pages. This, the Respondent said, was needed because: a) The Claimant had identified documents referred to in her witness statement which were omitted from the Respondent Bundle in error; b) The Respondent had identified documents referred to in one or more of its witness statements which were omitted from the Respondent Bundle in error; and c) The Respondent said that a few additional pages or documents would be needed so as to provide context or complete other documents. The Claimant did not object to these additions. The Tribunal permitted the Respondent Bundle to be expanded as requested, so it then stood at 2,093 pages.

[23]The Tribunal was therefore taken to two bundles of evidence in the course of the hearing: a) The Claimant Bundle, running to 6,011 pages; and b) The Respondent Bundle, running to 2,093 pages.

[24]The high volume of evidence meant that it would be challenging to physically navigate 15 lever arch files of the Claimant Bundle and three lever arch files of the Respondent Bundle. Because only a single bundle was anticipated in light of EJ Corrigan’s Orders, only the Respondent Bundle was provided by the Respondent in hard copy (on the afternoon of the first day of the hearing, and added to on the fourth day with the additional 98 pages). When the Claimant Bundle was also admitted into evidence on the fourth day, and following discussion with the parties, the Tribunal permitted: a) the Claimant to use her laptop, disconnected from the internet and with the Claimant Bundle loaded onto it (which was viewed by the Respondent and the Tribunal), so that the Claimant could locate and take the Respondent and/or Tribunal to documents in the Claimant Bundle if she wished to when giving her oral evidence; and b) the Respondent to provide an equivalent laptop for its witnesses (which was inspected in the same way, this time by the Tribunal and the Claimant), and was similarly disconnected from the internet but loaded with the Claimant Bundle, so that the Respondent witnesses could view the documents the Claimant would refer to when questioning them.

[25]On the ninth day of the hearing the Claimant raised a concern about the propriety of the redactions in a set of minutes of a meeting within the Respondent organisation on 10 September 2019. Effectively, the Respondent had redacted the substantive content of the meeting, leaving only the name of the meeting – “CMT”, the names of the attendees, and the agenda items, which included the Spending Review 2019 and “CE/Directors Reports”. The Respondent provided an unredacted copy of that document to the Claimant the following day, and the Claimant made an application – unopposed by the Respondent - for the unredacted copy to replace the redacted copy in the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 7 of 161 Claimant Bundle (the document did not appear in the Respondent Bundle). That application was granted, though the Tribunal noted the lateness of the application and the fact that one of the Respondent witnesses who attended that meeting, Ms Wardell, had completed her evidence, and any submissions that the Claimant wished to make in respect of this document would be considered in light of that fact. In the end, the Claimant made no submissions about this document, and nor did she ask Ms Doody, whose evidence followed the replacement of those minutes with an unredacted version and who was present at the relevant meeting, about that document.

[26]On the eleventh day of the hearing the Claimant applied for two further documents to be entered in as evidence. Both documents had been in the Claimant’s possession since the time of the events complained of, and so for at least three years. That application was opposed by the Respondent on the basis that the documents refer to allegations of direct and indirect discrimination in the Respondent’s policies and procedures, which are not part of the Claimant’s claims in these proceedings. The Tribunal refused to allow those documents into evidence given: a) the lateness of the application (notably, eight of the eleven witnesses giving oral evidence to the Tribunal had already done so by the time of the application); b) the fact those documents have been known to the Claimant for several years, and she should have made clear to the Respondent in preparation for this hearing that she wanted those documents included in the bundle; and c) at the very latest, when applying for the Claimant Bundle to be admitted she should have also applied for those documents to be admitted also.

[27]The time lost from this hearing by reason of the parties’ inability to agree the contents of the bundle meant that the Tribunal ordered that any consideration of remedy would be done by way of distinct hearing, and this hearing would be concerned with liability only. Claims and issues

[28]At the outset of the hearing, the Tribunal discussed the lists of claims and issues set out in EJ Burge’s Case Management Orders of 29 September 2023 (and appended to this judgment). The parties agreed that: a) The correct alternative date of dismissal asserted by the Claimant to that of 3 February 2020 is 18 December 2019, when she was informed that her role was being changed; b) The content in section 3.3 regarding the procedural unfairness of the Claimant’s dismissal could be removed from that paragraph, given 3.3 is concerned with the reason for the dismissal and procedural fairness is already referred to in section 3.4; c) The content in section 3.3 about whether the Claimant’s dismissal was an act of race discrimination should properly be added as a further complaint of direct race discrimination to the complaints in section 11.2; Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 8 of 161 d) This section needed to contain reference to the Claimant’s assertion that the reason or principal reason for her dismissal was her trade union functions or activities pursuant to section 103 of the 1996 Act. The Respondent’s Counsel confirmed that the Respondent understood this to be part of the Claimant’s claim, and had prepared for this hearing ready to respond to that allegation; e) The content in section 3.3 that the Claimant was dismissed for having made protected disclosures can be deleted, as it is already included in the second paragraph of that section; f) The content in section 3.3 that the Claimant was dismissed for having done protected acts under the 2010 Act rightly belongs under the sub-heading “victimisation” in section 16.2, and so should be deleted from section 3.3; g) The reference, in the fourth paragraph of section 3.3, to the fact that the Claimant regarded the decision to dismiss her as pre-determined, is already reflected in section 3.4 and its reference to “the decision was made prior to consultation such that the consultation was not genuine”, and so the language of pre-determination in section 3.3 was to be deleted; h) Section 9 of the list of issues, concerning whether the Claimant is disabled for the purposes of section 6 of the 2010 Act, is no longer in issue, as the Respondent agreed that the Claimant was disabled by reason of dyslexia and chronic fatigue syndrome, and EJ Burge found on 4 October 2023 that the Claimant was disabled by reason of diabetes. The Claimant does not claim any other disabilities, and so these issues no longer need to be considered by this Tribunal; i) Section 12 of the list of issues, concerning direct age discrimination complaints, is no longer in issue, as those complaints were dismissed by EJ Corrigan on 5 June 2024 following the Claimant’s withdrawal on 14 August 2023; and j) The paragraph in section 16.2.14 that reads: “Note the respondent will cross reference the above list with the allegations in respect of other claims and add above any dates and any further details that are apparent from where these events have been mentioned before”, together with section 16.3, were drafting notes that could be removed.

[29]The Claimant provided some further detail to sections 10.2.6, 10.3, 11.2.10, 11.2.14, 11.2.18, 13.1 and 16.1.

[30]In addition, the Respondent confirmed that, in the interests of time, it was no longer pursuing arguments about abuse of process (in section 1 of the list of issues), and consequently sections 2.2, 2.3 and 2.4 of the list of issues could also be removed.

[31]Additional commentary is recorded in the list of issues based on the Respondent’s concessions/comments, and additional detail is recorded where the Claimant confirmed that, for example, a particular person did the act complained of. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 9 of 161

[32]These changes are reflected in the “tracked changes” to the list of issues appended to this judgment.

[33]In total, the Claimant was making 120 complaints (if each complaint where she says the matter occurred on more than one date is treated as a separate complaint), but a significant number of these were not even mentioned in the Claimant’s witness statement. In light of that latter fact, the Tribunal asked the Claimant to review her list of complaints and withdraw any she did not wish to pursue, but she found that difficult to do, in part it seemed because of her disabilities which can mean that she feels overwhelmed. Each complaint has therefore been considered by the Tribunal.

[34]On day seven of the hearing the Claimant withdrew the allegation of direct race discrimination set out in paragraph 11.2.4 of the list of issues (the allegation that Ms Evans failed to respond to a meeting request on 14 March 2019 from black colleagues including the Claimant to discuss unfair treatment because they were “loud and angry people”), because she acknowledged that the Respondent Bundle contained a document which showed that the Claimant’s then-line manager, Mr Evwaraye, emailed Ms Evans saying: “Ignore this. I have spoken with Sherine about the inappropriateness of such a meeting.” Adjustments

[35]Start time on day 1: Following EJ Corrigan’s Orders at the 5 June Preliminary Hearing, the first day of this hearing began 30 minutes later than is typical for tribunal hearings, at the request of the Claimant. On that first day the Claimant confirmed that she thought she could attend the Tribunal in time for the typical 10am start on the second day and thereafter. She continued to attend for 10 am throughout the remainder of the hearing, for which the Tribunal was grateful, in light of the time lost at the outset of the hearing to bundle issues.

[36]General flexibility for breaks: On day seven the Claimant returned from lunch feeling very tired. She appeared too tired to carry on with cross-examination, and so the hearing was adjourned to 10am the following morning without objection from the Respondent. There were other occasions during the hearing when the Claimant appeared to the Tribunal to be tired, and breaks were offered and taken.

[37]Reading the bundle and witness statements: a) The Claimant explained that due to her dyslexia, she can find it difficult to read sections of text because the words ‘jump around’ in her vision. The occurrence of this is reduced if the text is printed on certain colours of paper, and so, as was agreed by EJ Corrigan, the Claimant brought a coloured overlay to assist her with reading documents when giving evidence. b) Also as was agreed with EJ Corrigan, the Claimant brought a magnifying glass to assist her in reading documents which have small text. c) EJ Corrigan’s Orders anticipated that once the bundle was made available for the Claimant to look at, she would liaise with the Respondent’s representative about any pages that she needed to be enlarged or similarly adjusted in order to assist her when giving evidence. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 10 of 161 In fact, the Claimant’s magnifying glass enabled her to read those parts of the bundles that she wished to.

[38]Questions: a) EJ Corrigan’s Orders noted that the Claimant should be asked short questions, and that multiple questions within one question should be avoided. The Respondent was, on occasion, reminded of this during the Claimant’s evidence, but Mr Davies had clearly planned his questions being conscious of this. The Claimant said if she needed a question rephrased, and had a good rapport with Mr Davies throughout the hearing. b) The Claimant sometimes needed assistance to summarise the question she was putting to the Respondent witnesses in cross-examination. The Employment Judge assisted her in doing so without objection from the Respondent, and the Claimant confirmed or corrected the Employment Judge’s summary.

[39]Assistance navigating the bundles: a) The Claimant, at times, could not find documents in the bundles to which she wished to refer. Mr Davies was helpful in trying to locate them, as was the Respondent’s solicitor, Mr Cameron, but in light of her dyslexia the Tribunal also endeavoured to assist the Claimant when she sought to refer to a document that she could not locate. Witnesses

[40]The Claimant gave evidence in support of her claim. Regrettably, the bundle and witness statement difficulties meant that her evidence did not begin until halfway through the fourth day of the hearing.

[41]The Claimant was, at times, very distressed in the course of giving her evidence and when cross-examining many of the Respondent witnesses, and breaks were offered and at times taken when that occurred. Evidence only resumed when the Claimant confirmed she was able to continue.

[42]Late at night on the fourth day of the hearing, after the first session of the Claimant’s evidence, the Claimant wrote to the Tribunal seeking for a further set of documents to be entered in as her evidence, and for the Tribunal to take her email as a further statement of her evidence. When asked which of those documents were not already in the Claimant Bundle, the Claimant was not able to say. In light of that fact and the extensive body of evidence already contained in the 6,011 Claimant Bundle and the 2,093 Respondent Bundle, together with the long lead-in time to this hearing, that application was refused. The Claimant was reminded that she was part-way through her evidence, and that if she wished to clarify any responses already given to Mr Davies’ cross-examination questions she could do so as part of re-examination at the end of her oral evidence, or she could bring particular documents already in evidence to the Tribunal’s attention as part of her submissions. The Respondent said that, as an adjustment to the usual practice in light of the Claimant’s disabilities, it was Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 11 of 161 content for the Claimant to be able to use that email when conducting her own re-examination at the end of her oral evidence, although in the event she chose not to use it (even following the Employment Judge’s reminder that she could do so).

[43]11 witnesses gave oral evidence in support of the Respondent’s resistance of the Claimant’s claims: a) Rachael Wardell, a former employee of the Respondent who, in the period May 2019 to December 2020, held the position of Director of Children, Schools & Families Department, and was the Chair of a committee of the Respondent known as “the Director’s Management Team” (the DMT), which also comprised her two Assistant Directors, Jane McSherry and El Mayhew; b) Roberta Evans, a former employee of the Respondent who, in the period April 2012 to 7 September 2020, held the position of Head of Adolescent & Family Service at the Respondent, and was the Claimant’s indirect line manager prior to the Reorganisation; c) Cate Gachet, the Respondent’s Learning & Development Advisor from September 2020 to August 2022; d) Allison Jones, who was the Respondent’s Head of Early Years, Childcare & Children’s Centres until 3 February 2020, and thereafter its Head of Early Years, Family Wellbeing & Early Help. Ms Jones headed the department that the Claimant joined at the time of the Reorganisation; e) James McGinlay, who was the Respondent’s Assistant Director for Sustainable Communities Development at the relevant time, and who investigated the grievance raised by the Claimant on 31 October 2019. Mr McGinlay was not part of the children’s or adolescent services provided by the Respondent, and so was not in the same part of the Respondent’s organisation as the Claimant either before or after the Reorganisation; f) Rui Afonso, who was the Respondent’s Contracts & Security Manager from December 2019 to December 2023. Mr Afonso gave his evidence following a witness order made on the seventh day of the hearing, at the request of the Respondent overnight on the sixth day of the hearing. That request was not objected to by the Claimant. Mr Afonso was not a hostile witness, but required the Order so as to obtain permission from his new employer to attend the hearing; g) Samantha Terry, the Claimant’s line manager from early March 2020 to 19 November 2020, and during relevant period from early March 2021; h) Hannah Doody, the Respondent’s:(i) Director of Community and Housing from July 2017 to July 2021;

(ii) Interim Director of the Children, Schools and Families department from 3 December 2020 to 25 April 2021; and

(iii) Chief Executive since July 2021, Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 12 of 161 who dealt with the Claimant’s appeal against the grievance outcome decided by Mr McGinlay; i) Paul Collins, now retired, who was the Claimant’s line manager from 17 November 2020 until 5 March 2021; and j) Tricia Pereira, the Respondent’s Head of Operations, Adults Social Care & Adult Safeguarding from July 2019 to March 2021. Ms Pereira investigated the Claimant’s formal grievance in early 2021 (referred to as Grievance 2 below).

[44]Richard Howell, who worked as a security supervisor for the Respondent deployed at Merton Civic Centre from April 2020 to September 2023, had prepared a written witness statement and was willing to present himself to the Tribunal to give oral evidence. However, as neither the Claimant nor the Tribunal had any questions for him his statement was accepted without the need for oral evidence.

[45]In the course of Ms Jones’ evidence, a member of the Claimant’s family who was in the public gallery repeatedly fell asleep. He was offered to go the Claimant’s waiting room a few times, and on the fourth occasion was asked to leave, as he was sat directly behind the Claimant and in the witness’s eyeline, and the Tribunal was concerned that his sleeping could prove distracting to the witness. The rest of the public gallery was largely full, and so there was not space for him to move out of the witness’s eyeline. He left respectfully, with an apology, and the Claimant agreed with the Tribunal’s decision.

[46]Evidence from two further witnesses was presented by the Respondent, that being from: a) Emma Bradley, the Respondent’s Operational Manager, Tackling Exploitation Team, Adolescent & Family Service from July 2018 to September 2021; and b) Jane McSherry, a former employee of the Respondent who had the role of Assistant Director of Education until April 2021 and was a member of the DMT during the 2019 restructure. Neither was made available by the Respondent for cross-examination or questions from the Tribunal, and so the question of whether to admit that evidence, and if so, the weight to be given to those statements, was a matter for submissions from the parties.

[47]The Tribunal determined to admit Ms Bradley and Ms McSherry’s statements into evidence, as they are probative to issues (as per the list of issues appended to this judgment): a) 11.2.7, 11.2.16 and 16.2.12 – in the case of Ms Bradley’s statement; and b) 3.1, 3.2, 3.3, 7.1.4, 7.1.5, 10.2.2, 11.2.20 and 16.2.2 – in the case of Ms McSherry’s statement.

[48]As to the weight that should be given to those statements: a) The Respondent observed that both statements are signed, and said that weight should properly be placed on these statements where their Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 13 of 161 evidence refers to and relies upon documents which were before the Tribunal, or were not disputed by the Claimant when she was cross-examined; and b) The Claimant acknowledged that:(i) In relation to Ms Bradley’s statement, she did not dispute Ms Bradley’s explanation about Yasmin’s leaving cake celebration; and

(ii) In relation to both statements, their content is consistent with content on the same issues that appear in the statements of other Respondent witnesses. The Claimant disputed the accuracy of those assertions in the ways she has put to the other witnesses who appeared before the Tribunal, but she agreed that in these respects the statements were “singing from the same hymn sheet” as the evidence of the Respondent’s other witnesses on the same points.

[49]The Tribunal determined that: a) In relation to Ms Bradley’s evidence:(i) The content relating to issues 11.2.7 and 16.2.7 (both about Yasmin’s leaving gathering, save for the second part of 11.2.7 about Ms Mayhew) was not disputed by the Claimant, so it was appropriate to place weight on this evidence, as the Claimant would not have challenged that by way of cross-examination;

(ii) The content relating to the second part of issue 11.2.7 (that Ms Mayhew reprimanded the Claimant for sharing details of why she felt offended in an email dated 13 December 2019), is not an allegation which the Claimant has pursued in her written or oral evidence, and so the Claimant has not established the facts which are necessary for that allegation to succeed. It was therefore unnecessary to consider this part of Ms Bradley’s statement; and

(iii) The content relating to issue 11.2.16 (Ms Bradley allegedly advertising the Claimant’s core roles), Ms Bradley’s statement points to contemporaneous documentary evidence which supports her contentions, and so weight was put on that; and b) In relation to Ms McSherry’s evidence: (i) A significant part of Ms McSherry’s statement relates to the Reorganisation, and is corroborated by the evidence of Ms Wardell, Ms Evans and Ms Jones, even if the Claimant disputes the truth or accuracy of their assertions. More weight was placed on the evidence on these subjects given by those witnesses available for cross-examination and Tribunal questions, but some account was still taken of what Ms McSherry had to say on these matters; (ii) Ms McSherry was personally named in the complaint described at issue 7.1.4, and that complaint relates to an email which was Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 14 of 161 included in the bundles. The allegation put was that the email, sent by Ms McSherry, accused the Claimant of misconduct - which is a matter the Tribunal is able to determine for itself by reading the email. Ms McSherry’s evidence about what the email says adds little to the Tribunal’s ability to read and interpret that email itself. The reason it was sent, the intention behind it and the fact that its terms were agreed by the Respondent management, were matters on which Ms Wardell and Ms Jones both gave oral evidence, and that evidence was consistent with the terms of Ms McSherry’s statement, so some weight was given to that content; (iii) Where Ms McSherry responds to issues 7.1.5 and 16.2.2 (relating to the consultation around the Reorganisation, and the decision to delete the TF team), Ms Wardell, Ms Evans and Ms Jones gave evidence on these matters, and greater weight was placed on their evidence in light of their availability to face questions from the Claimant and the Tribunal; and

(iv) What is said by Ms McSherry pertaining to issue 10.2.2 is a matter on which Ms Gachet also gave evidence consistent with that of Ms McSherry, and which contemporaneous documents also support, and so weight was given to the content here.

[50]Where weight was given to this written evidence, the Tribunal kept in mind the need to apply some caution about the fact that the relevant witness could not be questioned on its content. Facts

[51]The Claimant commenced employment with the Respondent on 29 March 2010, working in its Early Intervention team. Provisions, criteria and practices which the Claimant avers applied throughout her employment

[52]The Claimant contends that the Respondent operated a provision, criteria or practice of not converting holiday to sickness absence where necessary (PCP 6). She says that the Respondent failed to make reasonable adjustments to avoid the disadvantage to which this put her because of her disabilities (Allegation 1, issue 14.2.6 and related issues 14.3.6, etc.).

[53]The Claimant offered no evidence that the Respondent operated PCP 6 (or of any substantial disadvantage to which this put her). The Respondent, with evidence provided by Ms Jones, said that the Respondent operated a policy of converting holiday leave to sick leave where a person was ill during holiday leave if the employee both: a) opted to have sick leave; and b) could demonstrate that they were sick. Allegation 1 consequently fails, as the Claimant has failed to evidence that the Respondent operated the PCP. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 15 of 161 Ms Evans set up Vlinder, February 2013

[54]In February 2013 Ms Evans set up her own business, Vlinder Consultancy Ltd (Vlinder) – a vehicle through which she could provide training and consultancy in the field of youth justice. Ms Evans also worked with an organisation called Wardell Associates (which later incorporated as Wardell Associates Ltd) (Wardell). The evidence of Ms Wardell, who was the Respondent’s then-Director of its Children, Schools & Families Department, is that she has no connection with Wardell – the similarity with her surname is purely coincidental. The Respondent’s online diversity and inclusion training

[55]The Respondent mandates that its employees undertake Diversity and Inclusion (D&I) training, and the Claimant says that on each of: a) 27 March 2014 (PA 1); b) 16 December 2014 (PA 2); and c) 30 April 2017 (PA 3), the Claimant raised concerns that the requirement to complete this online training by a specified deadline disadvantaged staff with disabilities such as dyslexia, who may find it more difficult to meet that deadline. The Claimant avers that these were protected acts for the purposes of section 27 of the 2010 Act (victimisation) (issue 16.1.4). However, the Claimant has failed to provide any evidence of her raising these concerns. The Tribunal finds that she has failed to establish that these averred protected acts occurred. Ms Evans began working for the Respondent, 1 April 2015

[56]Ms Evans began working for the Respondent (initially, on a fixed-term contract) on 1 April 2015, and made a declaration of interest regarding each of Vlinder and Wardell. The Claimant was line-managed by Ernest Evwaraye, November 2017

[57]From November 2017 to 2 February 2020 the Claimant was line managed by Mr Evwaraye. The Claimant’s evidence was that Mr Evwaraye afforded her a great deal of autonomy in her day-to-day work and how she was to achieve the objectives they would set together. The Claimant describes herself as Black Caribbean, and Mr Evwaraye is also Black. Matters relating to “JT”, May to August 2018

[58]On 3 May 2018 Ms Evans, the Head of the Respondent’s Adolescent & Family Service (which the Claimant’s Pre-Reorganisation Role was part of): a) took advice from the Respondent’s HR team about whether the change in focus and the size of caseload being handled by one of the Claimant’s colleagues, JT, meant that there was a need to readvertise JT’s position; and b) amended JT’s job profile to reflect the additional responsibilities he had undertaken. The Claimant avers that this amounted to creating a post for JT, and upgrading and promoting him without competitive assimilation, Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 16 of 161 which she says subjected her to less favourable treatment because of race (Allegation 2, issue 11.2.1) (JT is White).

[59]The relevant evidence before the Tribunal on the dispute as to whether Ms Evans created a post for JT, upgraded or promoted him, was: a) Provided by the Claimant in her written and oral evidence; b) Provided by Ms Evans in her written and oral evidence; and c) Documentary evidence included in the Respondent Bundle and the Claimant Bundle.

[60]The Claimant acknowledged in her written evidence that JT was not, in fact, promoted, but was rather was recognised as having been assigned tasks that put him “on route toward” attaining the grade higher than his then-current role.

[61]Ms Evans’ evidence was that JT had already been undertaking additional duties which made an adjustment to his job description appropriate, but that a new post had not been created for him and nor had he been promoted.

[62]The email correspondence between Ms Evans and JT, and between Ms Evans and the Respondent’s HR team about JT, shows that: a) While JT remained on the same ME12 grade, his salary was increased within the range for that grade; b) The change in job description effected was an acknowledged step on the route towards promotion, but did not represent a promotion in itself; and c) When HR assessed the degree of adjustment to JT’s role they determined that it had evolved, as opposed to a new role having been created.

[63]The Tribunal finds that the movement of JT along the salary scale for his grade, and the revision of his job description to reflect tasks he was already undertaking within the same job grade, does not amount to “creating a post” for JT, or “promoting” him, and his job grade did not change, so he was not upgraded. The factual assertion made by the Claimant as part of Allegation 2 is not made out on the evidence, and so that complaint fails.

[64]On 27 July 2018 the Claimant raised concerns with Ms Evans about: a) the lack of clarity and transparency with what had happened to JT’s role; and b) the fact that JT was in a romantic relationship with another person working at the Respondent, “VP”, which the Claimant said was creating feelings of hostility and exclusion for staff.

[65]The parties agree that their discussion took place in those terms, but the Claimant goes further and says that she connected that conversation to protected characteristics under the 2010 Act. Specifically, she says that she raised concerns with Ms Evans about how Black colleagues and a colleague with a disability were treated in comparison to the treatment of JT (this is said by the Claimant to be a protected act for the purposes of section 27 of the 2010 Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 17 of 161 Act , PA 4, issue 16.1.2). The Respondent disputes that the Claimant raised these 2010 Act concerns.

[66]There is a further dispute between the parties about Ms Evans’ response to the conversation. The Claimant says that Ms Evans gave her “notice of ramifications” in this meeting, which the Claimant says is less favourable treatment because of race (Allegation 3, issue 11.2.2). The Claimant says, in effect, that this amounted to a threat levelled at her by Ms Evans that the Claimant would face ramifications should she raise concerns of this kind again.

[67]These disputes concern what happened in a face-to-face meeting at which only the Claimant and Ms Evans were present. Each witness’s account contradicted the other’s on these points, but there was some follow-up email correspondence between them on 1 August 2018 which the Tribunal finds sheds light on the tone and content of their oral discussion.

[68]Ms Evans’ email includes: “I have taken on board your recommendation to meet with the two workers who are in a relationship… to outline the impact in regard to team dynamics… I will also be reflecting with the management team how we can be more transparent in advising staff about job opportunities or staffing updates that involved a single process with HR and how we can ensure that we are approachable for staff to come to us with these concerns. Please do let me know if there are any further concerns or ramifications of this dynamic.”

[69]The Claimant points to this email, and the reference to “ramifications”, and says that this email repeats the threat made orally, that the Claimant would face negative consequences were she to raise a concern of this kind again. This, the Claimant avers, was less favourable treatment because of race, amounting to direct race discrimination (Allegation 4, issue 11.2.2).

[70]The Claimant replied: “I have just read your email, and think in light of the steps you have taken this should enable you to best manage, monitor and review!! … I agree with you 100% that openness and transparency is key to maintaining a successful team spirit and what you have set in place is a very good start and positive move forward!! From a union point of view I believe your willingness to implement noticeably change, should encourage staff members concerned that management are will to listen and take necessary action for the good of all and not just a selected few… Thank you for update and taking those concerns seriously to warrant your time to implement effective measures for change. Wishing you all the best!! Best regards”. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 18 of 161

[71]Ms Evans sent an email to the two impacted teams, which included the Claimant, on 14 August 2018, explaining the changes to JT’s role. The Claimant avers that this email also gave her “notice of ramifications”, which she says was an act of direct race discrimination (Allegation 5, issue 11.2.2), and that it was an attempt by Ms Evans to justify her actions in creating a post for and upgrading JT, which she also says was an act of direct race discrimination (Allegation 6).

[72]The Tribunal finds that: a) In the oral discussion on 27 July 2018 the Claimant did not raise concerns with Ms Evans about how Black colleagues and a colleague with a disability were treated in comparison to the treatment of JT. If she had done so then Ms Evans’ email reporting on her actions following on from that meeting would have referred to this, and if that discussion had occurred and Ms Evans’ email neglected to mention actions on those concerns, the Claimant would not have written in such friendly terms in reply, and would have reminded Ms Evans of the clear gap in her email. Because we find that the Claimant did not raise 2010 Act concerns, this conversation (PA 4) was not a ”protected act” for 2010 Act purposes; b) There was no oral threat made by Ms Evans to the Claimant on 27 July 2018 of negative ramifications should the Claimant raise concerns like this again. The friendly tone of the email correspondence between the parties is inconsistent with that, and Ms Evans’ follow-up email on 1 August 2018 requests that the Claimant get in touch again if there are further concerns or ramifications for the team dynamic arising out of JT’s relationship with a colleague or the team’s concern about changes to his job role. Consequently, Allegation 3 fails; c) There was no threat in Ms Evans’ 1 August email – her reference to “ramifications” was inviting the Claimant to ‘keep her posted’ if team members raised related concerns. Allegation 4 therefore also fails; d) The 14 August 2018 email from Ms Evans (included in the Claimant Bundle) does not say anything about ramifications, or elude to any threat to the Claimant. The email is a factual description of developments, including informing the teams of changes to JT’s role and how those came about. Allegation 5 therefore fails; and e) The same 14 August 2018 email from Ms Evans provided the explanation that the Claimant had requested be provided to team members. It was also an attempt to justify what had happened in relation to JT’s role to team members (Allegation 6), responsive to the concerns the Claimant had raised in her meeting with Ms Evans on 27 July. Whether this attempt to justify her actions was an act of direct race discrimination is considered in the Analysis section below. Breach of confidentiality by Ms Evans to JT and VP, July to September 2018

[73]The Claimant avers that in the period 27 July to 22 September 2018, Ms Evans breached her confidence by revealing that the Claimant, in her trade union capacity, was the source of a complaint made in confidence about JT and VP Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 19 of 161 to those colleagues. Ms Evans cannot recall if she named the Claimant, but she accepts that she informed JT and VP that the concerns were raised by “a Union representative on behalf of staff”. The Claimant says that that, in effect, identified her as the person who raised the concerns, and the Tribunal agrees with her that it did, given that the Claimant was a prominent GMB representative within her team. This, the Tribunal funds, occurred in a situation where the Claimant would have expected confidentiality to have been maintained.

[74]The parties disagree about why this breach of confidentiality came out. Ms Evans and the Respondent say it was an unintentional error which should be put down to lack of experience. The Claimant, on the other hand, says that this action was deliberate and was: a) done to prevent or deter the Claimant from taking part in GMB activities at an appropriate time, or to penalise her for taking part in the activities of the GMB at an appropriate time (Allegation 7, issue 7.1.1); and/or b) a detriment on the ground that she had made a protected disclosure (Allegation 8, issue 6.1.5).

[75]Ms Evans accepted that she could have handled her initial conversation with JT and VP better, and that she should have taken HR advice before having it. However, she said that that was a result of inexperience and naivety, rather than intentionally or with a view to penalising the Claimant for her trade union activities or for her having made a protected disclosure. Moreover, Ms Evans said that she was not expecting JT and VP to react as they did “because they were the ones not following the [Respondent’s relationship] policy”, and therefore she was not expecting there to be any detriment that flowed to the Claimant from that conversation.

[76]The Claimant considers that Ms Evans, by breaching her confidence, had followed through on her threat made on 1 August 2018 of “ramifications” for the Claimant.

[77]The Tribunal finds that this breach of confidentiality was borne out of inexperience and was not intended. Ms Evans’ evidence that the reactions of JT and VP were not expected by her is borne out by the fact that: a) As Ms Evans observed, JT and VP were the ones who had not complied with the Respondent’s policy; and b) The fall out of this conversation caused difficulties for Ms Evans as well as for the Claimant, with JT and VP making a complaint about Ms Evans’ handling of the situation, as well as to the GMB about the Claimant’s actions.

[78]The Tribunal considers that the Claimant has simply misread Ms Evans’ 1 August 2018 email, which did not (as noted above) threaten the Claimant with ramifications, but rather was a request to the Claimant to keep Ms Evans abreast of any further feelings of disquiet in the team about JT and VP’s relationship.

[79]We find that the breach of confidentiality: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 20 of 161 a) was not done to prevent or deter the Claimant from taking part in the activities of a trade union at an appropriate time or to penalise her for taking part in the activities of a trade union at an appropriate time; and b) was not on the ground that the Claimant had made a protected disclosure, not least because each of the disclosures which the Claimant avers were protected post-dated this breach of confidentiality. Consequently, each of Allegations 7 and 8 fails. Early thinking about a possible reorganisation of the Respondent’s Early Help team, 2018 to early 2019

[80]The Respondent had various sources of funding for the work of its Early Help department, but a significant one was grant funding provided by central government which was previously known as the “Troubled Families” grant. The Respondent used this grant to support its Transforming Families programme (TF), which was part of its Early Help provision.

[81]In 2018 the Respondent became aware of the possibility that its Troubled Families grant would cease, and undertook a review of its Early Help department in 2018.

[82]Later that year it made a bid for replacement funding for Early Help, but was not successful.

[83]The parties agree that the grant funding that was due to end did not fund the Claimant’s Pre-Reorganisation Role.

[84]On 25 January 2019 the DMT discussed a restructure of the Early Help department. February 2019 AMBIT training

[85]The Claimant attended AMBIT training on 12 February 2019, as did Ms Evans, and in her Claims she says that while at that training she was: a) Labelled as “very loud and angry” by Ms Evans in front of other colleagues, which she says was direct race discrimination (Allegation 9, issue 11.2.3); and b) Experienced hostility and was ostracised from clique groups (not including Ms Evans, but observed by her), which the Claimant also avers was direct race discrimination (Allegation 10, issue 11.2.2). Ms Evans disputes the Claimant’s contentions.

[86]In relation to the disputed fact at the centre of Allegation 9 - whether Ms Evans labelled the Claimant as “very loud and angry” on 12 February 2019: a) The Claimant did not refer to this allegation in her witness statement. b) The Claimant did raise this matter in cross-examination with Ms Evans, and Ms Evans’ response was:(i) She does not recall saying that;

(ii) In any event, she does not think that would be the kind of language she would use; and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 21 of 161

(iii) The Claimant has never raised this with her before. c) Mr Davies has questioned why, if this occurred, the Claimant did not bring a claim before the Employment Tribunal at the time, given she said she advised Jodie Griffins (referred to below) about time limits for filing such a claim, showing that the Claimant was conscious of them. d) In response to the failure to raise it with Ms Evans, and the failure to file an Employment Tribunal claim about it until the Third Claim was presented on 17 November 2020, the Claimant says that she had complained about it to her then-line manager, Mr Evwaraye, and that she was waiting on him to act upon it. However, the Claimant did not point the Tribunal to any evidence that she raised the matter with Mr Evwaraye besides her say so.

[87]The Tribunal finds that Ms Evans did not label the Claimant as “very loud and angry” on 12 February 2019. We consider it significant that the Claimant, who has a history of ‘standing up’ and raising matters which she considers are not fair or just (for example, the matters relating to JT), did not complain to Ms Evans at the time about this purported comment, and has not made any such complaint since, including in either the First Claim or the Second Claim, until raising it before the Employment Tribunal in the Third Claim on 17 November 2020. We also consider that the detail added by Ms Evans - that the description of what was said would not be the kind of language she would use in any event - makes her account more plausible than a simple denial. As a result, Allegation 9 fails.

[88]As for Allegation 10, the Claimant did not refer to this in her witness statement, but she did question Ms Evans about it. Ms Evans denied that she observed any hostility, or any ostracisation of the Claimant.

[89]The Claimant says that her account should be favoured over the denial of Ms Evans because, at 6:35pm on 12 February 2019, on the evening of the AMBIT training day, Ms Evans replied to an old email from the Claimant. The email Ms Evans responded to was dated 1 August 2018, and was the one referred to above in which the Claimant had reacted positively to Ms Evans’ summary of the steps she had taken to address the two concerns that the Claimant had raised with Ms Evans on 27 July 2018 relating to JT. The email from Ms Evans on 12 February 2019 was following up on those matters, and it begins with “This matter came to mind during the training this week”. The Claimant says that the reason the matter came to Ms Evans’ mind was because she observed the hostility towards the Claimant from JT and other colleagues at that AMBIT training.

[90]Ms Evans says that the matter came to mind because she wanted to check whether a confidential and sensitive referral which the Claimant and Ms Evans had discussed at the same time as they had discussed JT and VP’s relationship had been managed. Ms Evans said that the AMBIT training had focused on the dynamics of the family, and it was that that had triggered a reminder for her to follow-up with the Claimant on that matter (as the referral in question concerned a member of JT’s family). Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 22 of 161

[91]The Tribunal found Ms Evans to be honest in the evidence she gave, acknowledging at times when she could have handled matters better, and when she made mistakes (such as identifying the concerns about JT and VP’s relationship as having been relayed to her by a trade union representative, which effectively identified the Claimant). The fact that she admitted those other errors makes it more likely that her clear and forceful denial that she observed hostility or the Claimant being ostracised at the AMBIT training is truthful. Moreover, we note that when the Claimant referred to hostility and ostracisation from colleagues she did not describe what actually happened on 12 February 2019. Instead, she repeatedly referred to an entirely different occasion, in September 2018, when the Claimant had returned to work after the summer break and a song was sung at her by JT and others that caused her distress. Moreover, we find it surprising, given the Claimant frequently raised concerns with managers, that Ms Evans was unaware of this complaint until the Claimant brought her Employment Tribunal claims – this increases the likelihood that Ms Evans’ recollection is correct.

[92]On balance, we prefer Ms Evans’ evidence for these reasons, and find that Ms Evans did not witness the Claimant suffering hostility or ostracisation at the 12 February 2019 AMBIT training, and so Allegation 10 fails. Initial concerns that ultimately resulted in the MK collective grievance, late 2018 to March 2019

[93]In late 2018 four members of staff (not including the Claimant) raised concerns about one of the managers in a team which came under Ms Jones’ responsibility, “MK”, who had been managing them. Ms Jones began to take advice from the Respondent’s HR team about those concerns, and commenced an informal investigation into the matter, which included taking statements from each of the complainants.

[94]In March 2019 the four complainants confirmed to Ms Jones their intention to raise a formal grievance. The first averred protected disclosure, 14 March 2019

[95]On 14 March 2019 the Claimant avers that she wrote to Ms Evans raising concerns that Ms Evans’ role as Head of Service was in conflict with Ms Evans’ personal interest in Vlinder, as Vlinder was contracting with the Respondent (Disclosure 1, issue 5.1.1.1). The Respondent agrees that the Claimant emailed Ms Evans on this date, but says that she did not raise the concerns she claims.

[96]The email shown to the Tribunal which was sent by the Claimant to Ms Evans on this date is about planning a social event for parents engaged with the TF team, seeking to schedule a meet up to discuss arrangements for that. There is nothing in that email about Ms Evans’ interest in Vlinder. The Claimant consequently does not succeed in establishing that Disclosure 1 was a protected disclosure.

[97]Also on 14 March 2019, the Claimant says that she accompanied Jodie Griffins, a Black worker who has a disability, to a grievance appeal where the subject of Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 23 of 161 the grievance was 201 0 Act-related discrimination (PA 5, issue 16.1.1). The Respondent does not accept that the Claimant’s attendance at this meeting, in the capacity as Ms Griffins’ trade union representative, amounts to a protected act (this is considered in the Analysis section below). Did Ms Evans’ decide to delete TF so as to ensure the removal of the Claimant and two Black colleagues? 14 March 2019

[98]The Claimant says that on 14 March 2019 Ms Evans decide to delete the TF team to ensure the removal of the Claimant and two black colleagues, Mr Evwaraye and Jason Young, which she says was direct race discrimination (Allegation 11, issue 11.2.5).

[99]The Claimant, in support of her contention: a) Points to a paper authored by Ms Evans with this date, entitled “Transforming Families and MOPAC Funding”; b) Says that she attended an external meeting on 31 May 2019 where third parties referred to the fact that the Respondent’s TF team was to be disbanded, which she says shows that the decision to do so was taken earlier than the Respondent says, and before any consultation took place; c) Observes that the loss of grant funding cannot have been the reason for the Reorganisation in February 2020, given the Troubled Families grant was extended for a further five year period; and d) Notes that there were, in fact, no compulsory redundancies effected in connection with the Reorganisation, despite approximately 50 staff being warned by letter that their roles were at risk of redundancy at the outset of the consultation process. This, she says, calls into question whether the real purpose of the Reorganisation was as stated.

[100]The Respondent (through witness evidence from Ms Wardell, Ms Evans, Ms Jones and Ms McSherry, and submissions) says: a) It only settled upon its reorganisation proposal in July 2019, but there was work undertaken significantly ahead of that date (Ms Jones thought about two years ahead) to:(i) review the way the Respondent was supporting families through an Early Help approach; and

(ii) review ways to mitigate the impact of the loss of funding related to the Troubled Families grant. Those two pieces of work came together, and consideration was given to the options available to the Respondent and what its proposal to both improve its Early Help offer and protect that work against the impact of the possible loss of the Troubled Families grant funding should be. Ms Evans’ paper was part of that process of consideration; b) No final decision was taken to proceed with the Reorganisation until October 2019; Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 24 of 161 c) Ms Evans was not the decision-maker about the reorganisation proposals - that decision was taken by the DMT (comprising Ms Wardell, Ms McSherry and Ms Mayhew); d) The decision to undertake the Reorganisation was taken because of: (i) a desire to create an umbrella service for Early Help, with a single “front door” to simplify the method of engagement with Early Help for external parties; and (ii) concerns about the stability of the team going forward due to reliance on external funding – the fact that the Troubled Families grant was extended did not change the risk posed by the possible withdrawal of that funding. A key objective of the Reorganisation was to ensure that all roles in Early Help were covered by the Respondent’s own core funding; e) By the time the Reorganisation was implemented on 3 February 2020, there had been some natural attrition and efficiencies achieved which meant that there was no need for compulsory redundancies, but the Reorganisation still occurred; and f) Of the around 50 people affected by the Reorganisation, Ms Jones’ evidence was that around 29 of those experienced a role change.

[101]The Tribunal finds that: a) Ms Evans was not a decision-maker in relation to the Reorganisation, though she was one of its architects. Ms Evans’ 14 March 2019 paper considers the long-term risks to TF, and suggests three options for responding to that. One of those options represents the key tenets of what was to happen in the Reorganisation (namely “restructure Early Help services into one service framework”), but the witness statements of Ms Wardell, Ms McSherry, Ms Jones and Ms Evans are consistent in their assertion that Ms Evans was not a decision-maker on the Reorganisation question; b) The decision to proceed with the Reorganisation had not been taken by this time. The Tribunal has been shown PowerPoint slides, meeting notes and written papers which corroborate the accounts of Ms Wardell, Ms McSherry, Ms Jones and Ms Evans that the decision to proceed with the Reorganisation was not taken until autumn 2019; c) It was not the Respondent’s objective, in effecting the Reorganisation to ensure the removal of the Claimant and two of her Black colleagues. Our reasons for concluding this are:(i) If this had, in fact, been the Respondent’s objective, the Respondent would not have found assimilation positions for the Claimant to move into (as it went on to do) – i.e., if removing the Claimant was its objective, it would have removed her;

(ii) The Claimant offered us no evidence that either Mr Evwaraye or Mr Young was removed as part of the Reorganisation. The Respondent informed us that there were no compulsory Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 25 of 161 redundancies, which indicates that Mr Evwaraye and Mr Young were also in fact retained in the Respondent’s employment or chose to leave; and

(iii) The Reorganisation proposal affected around 50 people, and involved extensive analysis and planning over several years, and consultation with those individuals and their representatives. The amount of work involved makes it implausible that this was done so as to remove the Claimant and her two Black colleagues, especially given that putative objective was not achieved. It is most unfortunate that the Claimant learned from external agencies that her employer had proposals to disband her team, but that does not mean that the decision to disband it had been taken by that time, and nor does this support a position that the proposal was designed to get rid of her; and d) The Respondent’s objectives and reasons for the Reorganisation were: (i) To create a single “front door” for external persons to access the Respondent’s range of family wellbeing services; (ii) To shore-up the funding bases for all the roles in Early Help (because the Troubled Families grant was uncertain); and (iii) To consolidate services relating to Early Help to create efficiencies.

[102]In light of these factual findings, Allegation 11 does not succeed. DMT considers the restructure further; the MK collective grievance; online D&I training, March to May 2019

[103]The DMT held meetings about the impact of the possible funding loss and the potential restructuring of the TF team on each of 14, 21 and 28 March 2019. The MK Collective Grievance, 9 May 2019

[104]On 9 May 2019 the four members of staff who had informed Ms Jones that they wished to raise a formal grievance about MK did so (the MK Collective Grievance), copying the Claimant on that grievance as their trade union representative. D&I training, 16 May 2019

[105]The Claimant says she raised 2010 Act-related concerns with the Respondent’s mandatory online D&I training on 16 May 2019 (PA 6, issue 16.1.4). The Respondent says, in relation each of these averred protected acts concerning the D&I training that “It is not clear what concerns [the Claimant] raised about equality issues in respect of mandatory training”. The Claimant did not point to any evidence that she did in fact raise these concerns besides her say-so. However, in light of the fact that the Claimant is dyslexic, the Tribunal itself searched both bundles for any evidence that concerns were raised on the dates the Claimant gave. The only instance where we found that evidence was on 16 May 2019. The Claimant did raise 2010 Act concerns with the training (as can be seen on page 1800 of the Claimant Bundle). Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 26 of 161 Ms Jones and the MK Collective Grievance complainants, May 2019

[106]On 24 May 2019 Ms Jones wrote to the MK Collective Grievance complainants in the following terms: “Dear All I just wanted to be clear about the process that we are in. As you are aware, we had initiated information gathering prior to you submitting the grievance procedure so I thought it may be helpful to confirm my understanding of this – and to ensure that this is your understanding too. The Grievance Guidance states the following: 3. FORMAL PROCEDURE [STAGE 2]3.1 A formal grievance should be submitted in writing…

3.2 The manager should arrange for a meeting to take place within 12 working days of a formal grievance being received. As we have had meetings already we will not be carrying this out – as we have already done this earlier in the year and you have all agreed that you do not want a further interview with your union representatives, so we will not be having further meetings.

3.3 The manager and the employee and their chosen companion should make every effort to attend meetings. At the meeting, employees should be allowed to explain their grievance and how they think it should be resolved. This has already happened – you have all individually explained your grievance and how you think it should be resolved...”.

[107]The Claimant says that this subjected her to detriment, and that it was done to prevent or deter the Claimant from taking part in GMB activities at an appropriate time, or to penalise her for taking part in the activities of the GMB at an appropriate time (Allegation 12, issue 7.1.2). Initial information given of the planned reorganization, 19 June 2019

[108]On 19 June 2019 an email was sent on behalf of Ms McSherry and a colleague to all members of the Children, Schools and Families department so as to inform them of a planned reorganisation. The email set out a summary of the Respondent’s proposal. Online D&I training, July 2019

[109]The Claimant says that from July 2019 the Respondent required the Claimant and others to carry out online training within specific deadlines (PCP 1). The Respondent agrees that it did so in relation to the D&I online training. The Claimant claims that the Respondent failed to take reasonable steps to avoid the disadvantage this PCP 1 caused her and others with dyslexia and chronic fatigue syndrome (Allegation 13, issue 14.2.1), which the Respondent refutes. Consultation about the Reorganisation begins, July 2019

[110]On 5 July 2019 the DMT reviewed the proposed restructure and its business case. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 27 of 161

[111]The Respondent launched its consultation on its proposed changes to its Early Help team on 12 July 2019 by email to the approximately 50 affected staff members. About ten minutes later the Respondent’s HR team emailed the representatives of the various trade unions notifying them of the consultation launch meeting scheduled for 18 July 2019 about the Early Help reorganisation.

[112]The Claimant claims that the initiation of this consultation was a detriment done because she did a protected act (Allegation 14, issue 16.2.2). This is denied by the Respondent. The Tribunal has found, as set out above, that the Respondent’s reasons for the Reorganisation were the three business reasons set out in paragraph 101 d) above. The Tribunal finds, based on the evidence of Ms Wardell and Ms Jones on this subject, supported by documentary evidence in the bundles, that the Respondent’s reason for initiating consultation was because the Reorganisation proposal at that time could potentially result in collective redundancies, and so it was looking to comply with its obligations to inform and consult about that proposal. Consequently, Allegation 14 fails.

[113]On 17 July 2019 Ms Jones and Ms Evans presented a joint proposal for the reorganisation of Early Help that was approved by Ms Wardell.

[114]The following day (18 July 2019) the Respondent launched the consultation process with a presentation to affected staff and trade unions. The consultation slides identified the proposed redesign of the Early Help service, and proposed that the Claimant’s Pre-Reorganisation Role would cease to exist, along with her colleague, MK’s role, and proposed the creation of the role of Parenting Co-ordinator (EPEC) at grade ME10, one grade lower than the Claimant’s Pre-Reorganisation Role, as well as the creation of the role of Contact Co-ordinator at grade ME11, the same grade as the Claimant’s Pre-Reorganisation Role.

[115]As part of the consultation process a specific email address, “EHConsultation”, was established to enable staff to communicate with the management team.

[116]The Claimant alleges that the consultation on the Reorganisation was started during the six-week summer holidays knowing that the Claimant worked term-time only, which would therefore deny her colleagues access to trade union representation, with the result that the Claimant had to work during the holidays. The Claimant says this subjected her to a detriment which was done to prevent or deter her from taking part in GMB activities at an appropriate time, or to penalise her for taking part in the activities of the GMB at an appropriate time (Allegation 15, issue 7.1.5).

[117]The Tribunal was presented with evidence on this issue from the Respondent’s witnesses Ms Evans, Ms Jones and Ms Wardell, and Mr Davies made submissions on this matter. In summary, the Respondent says that: a) There is never a good time to launch a consultation process around a restructure which has redundancies as a possible consequence, but it needed to complete the consultation process with sufficient time to reach conclusions about what to do before the possible end of the Troubled Families grant, which was due to run out before the end of the financial year (April); Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 28 of 161 b) The consultation process was begun on 18 July 2019 and ended 17 September 2019 – which was a longer time than the 30 day period required, and that timeframe allowed for people who did not work in the summer holidays to participate; and c) The timing was a result of when DMT signed off the reorganisation proposal that could then be put to staff and their representatives. It was not designed around the Claimant’s working pattern.

[118]The Tribunal finds that the timing of the consultation was driven by the need to have settled on a restructuring proposal and implemented the same by the end of the financial year. It is implausible to suppose that a consultation process involving around 50 affected employees was timed around the Claimant’s summer leave. Moreover, no evidence was provided by the Claimant that if she were absent her colleagues would have been denied access to trade union representation. On the contrary, the evidence given to the Tribunal was that the Claimant was one of a number of GMB representatives, organised under the leadership of Gwyn Isaacs. There is no reason to suppose that if the Claimant taken her planned holiday representation of the Claimant and her colleagues would not have been provided by one or more of the other GMB representatives at the Respondent. Allegation 15 therefore fails. Other allegations pertaining to 18 July 2019

[119]The Claimant also says that on 18 July 2019: a) her essential car allowance was removed, and this was a detriment done on the ground that she made a protected disclosure (Allegation 16, issue 6.1.2) and detriment because she had done a protected act (Allegation 17, issue 16.2.13); b) her systemic therapy course was interrupted, and this was also a detriment done on the ground that she made a protected disclosure (Allegation 18, issue 6.1.4); c) she was prevented from completing year 2 of her systemic therapy course, which was a detriment done because she did a protected act (Allegation 19, issue 16.2.1); and d) she was stripped of all opportunity to progress, which she says was a detriment done because she did a protected act (Allegation 20, issue 16.2.8).

[120]The Tribunal finds that the Claimant experienced no change to her Pre-Reorganisation Role with effect from 18 July 2019 (her role changed with effect from 3 February 2020), or to the terms of her contract with the Respondent, so Allegations 16, 17 and 20 fail.

[121]If instead those Allegations 16, 17 and 20 should be amended so as to aver that these detriments were effected on 3 February 2020 when the Claimant’s role changed, the Tribunal still does not find them made out on the facts. The Tribunal finds that: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 29 of 161 a) The removal of the Claimant’s essential car allowance (Allegations 16 and 17) occurred on 3 February 2020 because the Claimant’s Post-Reorganisation Role did not meet any of the criteria to receive it.(i) Ms Jones was the main witness who addressed this allegation on behalf of the Respondent. She described, and the Claimant agreed, that the Claimant’s essential car users allowance (of around £90 a month) was not replicated in her Post-Reorganisation Role, but the Claimant was then able to expense work-related travel pursuant to the casual car users expenses policy. Ms Jones pointed the Tribunal to the essential car allowance criteria, which was not altered as part of the Reorganisation. This includes the following: “Posts will only be eligible for essential car user status if one or more of the following conditions is met: (a) Where a Director deems that the duties of the post cannot be undertaken effectively unless a car is at the postholder’s disposal every day; or (b) Where at least 2,000 miles were claimed in the previous year and there is reasonable expectation that this level of mileage will continue [account will be taken of employees on sick leave etc.]; or (c) where the postholder needs access to her/his own car to transport vulnerable service users and taxi costs would exceed essential car user costs; or (d) where bulky equipment is frequently carried as an integral part of the job; or (e) where there is a need to respond to urgent call-out requests on a frequent basis and the use of taxis is deemed less efficient.” Ms Jones explained that the Post-Reorganisation Role did not meet any of these criteria.

(ii) The Claimant questioned whether, as a training facilitator expected to carry a laptop, refreshments and other resources, her Post-Reorganisation Role would satisfy category (d). Ms Jones said that a laptop would not be considered bulky equipment, and after the Reorganisation the refreshments were ordered to be delivered to the training location by a central team as part of the Respondent’s desire to achieve efficiencies – the Claimant would no longer need to do that. As regards equipment, Ms Jones again said that the aim of achieving cost efficiencies in the Reorganisation meant that training was, post-Reorganisation, to be provided out of a fixed base (one of the Respondent’s centres), so the equipment for delivering training was already there. Ms Jones said that this was designed to reduce staff travel and increase output. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 30 of 161

(iii) The Claimant’s evidence in cross-examination was that lots of people lost their essential car allowance as part of the Reorganisation, and that the GMB was asking why this was happening in some teams but not others. This evidence suggests that the loss of the essential car allowance for the Claimant was not on the ground that she had made a protected disclosure or because she had done a protected act.

(iv) Ms Evans said that, as part of the redesign of the Early Help provision (resulting in the new Family Wellbeing Service), management was required to review roles against the essential car users criteria. Her evidence indicated that prior to the Reorganisation there may have been a number of people who were erroneously given that allowance when their roles did not meet the criteria, but that the Reorganisation was an opportunity to review and correct that. This is clear evidence that the reason the Claimant’s essential car allowance was lost when her role changed was because the requirement of the Post-Reorganisation Role did not meet the pre-existing criteria for that allowance. The Tribunal finds that policy, and Ms Jones’ evidence as to how its criteria did not apply to the Post-Reorganisation Role, was the reason the Claimant stopped receiving that allowance on 3 February 2020. There has been no evidence presented to the Tribunal that the requirements of the Post-Reorganisation Role, or the changes made by the Respondent with regards to centrally ordering refreshments and holding training at centres which had training equipment on site, were designed so as to deprive the Claimant of that car allowance on the ground that she had made disclosures, or because she had done a protected act. b) The Claimant has not established the factual premise that when her role changed she was stripped of all opportunity to progress (Allegation 20). Indeed, she offered no evidence of this at all besides her statement, with no explanation, that this was the case. The evidence from Mr Collins (who later became the Claimant’s line manager) was that he was open to the development of the Claimant’s role to include training her in other kinds of parenting programmes once the core part of it – setting up the EPEC training programme – had been achieved (his 21 January 2021 email which shows this is cited below). The Tribunal does not find the Claimant’s position made out – she has offered no basis for saying that she was stripped of all opportunity to progress, and email evidence from Mr Collins shows that he was willing for her to attend training programmes outside of the scope of her Post-Reorganisation Role once the EPEC programme was up-and-running. Allegation 20 therefore fails. The Claimant’s systemic therapy course

[122]The Claimant has offered no evidence whatsoever that her systemic therapy course was interrupted, or that she was prevented from completing year 2 of that course, so Allegations 18 and 19 also do not succeed. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 31 of 161 The Claimant’s email correspondence with EHConsultation, August 2019

[123]The Claimant emailed the EHConsultation mailbox, as well as all members of staff affected by the restructure, on 2 August 2019, objecting to the proposal. The Claimant’s email included: “it would appear the current proposal leads towards ‘harmonising’ terms and conditions across the workforce of the proposed family wellbeing model in order to bring it into line with that of less generously paid members of staff who do not have the specialised training, expertise and knowledge as some established and experienced practitioners within TF and other team who provide a valuable and needed service for Adolescents young people, vulnerable parents and their families.”

[124]On 9 August 2019 Ms McSherry emailed all staff involved in the reorganisation in the following terms: “Feedback has been received about the content and tone of some of the emails copied to all affected staff members in the EHConsultation email group. Some staff have expressed a level of upset and some wish not to continue to receive emails… While you have an absolute right to have a voice in the consultation period, you are asked, to avoid undue upset to colleagues, that you refrain from copying in all other affected staff into future emails sent to the EHConsultation inbox and from using the EHConsultation email address and circulation group to communicate issues which do not form part of the consultation…”.

[125]The Claimant alleges that this email accused her of misconduct following an email the Claimant sent in her capacity as a trade union representative to colleagues potentially affected by the Reorganisation. The Claimant says that Ms McSherry’s email was sent to prevent or deter the Claimant from taking part in GMB activities at an appropriate time, or to penalise her for taking part in the activities of the GMB at an appropriate time (Allegation 21, issue 7.1.4).

[126]The Tribunal finds that the email from McSherry: a) Does not accuse the Claimant, or anyone, of misconduct; b) Was sent to remind recipients, including the Claimant who had caused upset to some colleagues by her 2 August email, to consider the impact of their emails to the EHConsultation inbox; and c) Explicitly acknowledged the right of recipients to “have a voice in the consultation period”, and this sentiment included the Claimant in her capacity as an affected employee as well as in her capacity as a GMB representative.

[127]Allegation 21 therefore fails, as it is premised on facts that the evidence does not support. The Claimant presents the First Claim, 14 January 2020

[128]The Respondent says, in light of the facts that Early Conciliation in respect of the First Claim began on 19 November 2019 and ended on 18 December 2019, Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 32 of 161 and that the First Claim was presented on 14 January 2020, that any matter which occurred prior to 19 August 2019 is out of time. The Claimant’s email of 12 September 2019

[129]The Claimant sent an email to the EHConsultation inbox, and addressed the email as “Dear Roberta/ EHConsultation” (i.e., treating the EHConsultation mailbox as Ms Evans), copying in some other people, on 12 September 2019, objecting to the reorganisation proposal in strong terms, including on moral grounds, and went on to say: “And yet Merton council sees nothing morally wrong with you selling your tight rope [a process patented by Ms Evans] cards which are not evidence based commercially on Amazon for £44.95? Merton sees nothing wrong in you advertising your product on the official Youth Justice Board resources hub offering training to other local authorities for Tight rope training @ a special offer of £500 per day through your own company ‘Vlinder’… Then you are also an associate member of Wardell Associates Training & Consultancy, which if my memory serves me right has done an audit of YJS [the Respondent’s Youth Justice Service] files in the past? We are here fighting to keep our jobs and having to justify why we should keep our salaries and essential car allowance for safe protection and you are gaining multiple incomes from various places and see nothing morally wrong to how you have whitewashed and ethnic Cleansed AFS and departments within CSF… It is my opinion your actions… contravenes the councils employees code of conduct in so many ways”.

[130]The parties agree that this was a protected disclosure for the purposes of the 1996 Act, and this email is referred to as Disclosure 2 below (and is issue 5.1.12 in the List of Issues).

[131]The Claimant also says that, by sending this email she raised a grievance which included complaints of discrimination on the grounds of disability, age and race, which she says is a protected act for the purposes of section 27 of the 2010 Act (PA 7, issue 16.1.3). The Respondent disputes that this email was a protected act. This issue is considered in the Analysis section below.

[132]The Claimant says that, again on 16 September 2019, she submitted a grievance in similar terms (PA 8, issue 16.1.3). The Tribunal has read the Claimant’s 16 September 2019 email, and it does not raise any 2010 Act concerns, and therefore is not a protected act. The Claimant’s one-to-one consultation meeting with Ms Jones, 17 September 2019

[133]Ms Jones had a one-to-one meeting with the Claimant on 17 September 2019, with a colleague from HR present who took notes. As part of that consultation process affected employees were told about the option to take voluntary redundancy, and calculations were provided of the redundancy payment to which they would be entitled should they accept that offer. The parties agree that the letter about the voluntary redundancy process explained that if the offer Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 33 of 161 was accepted, the employee’s employment would terminate on 31 December 2019. The parties also agree that the Claimant did not opt for voluntary redundancy.

[134]The Claimant says that, in this meeting, Ms Jones told her to request voluntary redundancy and consider early retirement, which she avers was an act of direct race discrimination (Allegation 22, issue 11.2.6).

[135]In oral evidence the Claimant said that Ms Jones encouraged her to sign a letter accepting the voluntary redundancy terms, on the basis that she could later withdraw that acceptance if she wanted, but the Claimant refused to do so. The Claimant also said in response to questions in closing submissions that the voluntary redundancy payment calculations were provided to affected employees in their one-to-one consultation meetings at the insistence of the unions.

[136]The Respondent: a) Denies that Ms Jones told the Claimant to request voluntary redundancy and consider early retirement; and b) Says that all staff were spoken to about voluntary redundancy, and that that followed a standard process where a crib sheet was used, which included: “Explain that employees can put themselves forward to be considered for voluntary redundancy. Explain current terms”. The notes for the consultation meeting between Ms Jones and the Claimant have that box ticked, indicating that that information was conveyed.

[137]There is limited evidence for the Tribunal to assess here – the conflicting evidence of two witnesses, together with the notes of the meeting. We observe, though, that Ms Jones’ witness statement explains how the voluntary payment was calculated, and one element for employees over 55 years of age was access to their local government pension without actuarial reduction. The Claimant was 55 years of age at the time of the meeting, and so would have been eligible for that early pension access. We consider it more likely, and therefore find, that the Claimant’s recollection that Ms Jones told the Claimant to consider early retirement was the Claimant’s interpretation of Ms Jones’ explanation of how the voluntary redundancy terms applied to her.

[138]As for whether Ms Jones told the Claimant to request voluntary redundancy, we find that she did not, for the following reasons: a) The contemporary notes of the meeting, taken by the Respondent’s HR team, simply indicate that the voluntary redundancy cribsheet text was delivered, presumably with the information about the Claimant’s own calculation; and b) When asked by the Tribunal about her relationship with the Claimant as at 4 March 2020 (a later date than this point in time), Ms Jones said that she and the Claimant had only met a handful of times, and that she was “cautious” in her relationship with the Claimant. The Tribunal finds this evidence persuasive, as: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 34 of 161(i) Ms Jones had never directly line-managed the Claimant (who, up until the Reorganisation, was not even indirectly line managed by the Ms Jones);

(ii) The Claimant was a representative for GMB members, and so may well have come across Ms Jones in that context; and

(iii) Ms Jones was part of the management team to whom emails sent to the EHConsultation inbox were copied. Ms Jones would therefore have seen the Claimant’s email from August which had upset and offended some colleagues, and September, where the Claimant raised concerns about Ms Evans having a conflict of interest. Both of these interactions preceded the one-to-one between the Claimant and Ms Jones on 17 September. Ms Jones’ caution in her relationship with the Claimant makes it less likely that she would have veered off the pre-prepared cribsheet and “told” the Claimant to apply for voluntary redundancy.

[139]As we find that Ms Jones did not tell the Claimant to request voluntary redundancy or consider early retirement, Allegation 22 fails. The Respondent extended the timeframe for its consideration of the reorganisation proposal and alternative proposals, 17 September 2019

[140]Also on 17 September 2019 (the last day of the consultation period), two staff groups (one of which was the TF team, which included the Claimant) responded to the consultation with alternative restructuring proposals. As a result, the Respondent extended the timescale by which it would report on the outcome of the consultation to 8 November 2019. The Claimant raises a grievance, 31 October 2019

[141]On 31 October 2019 the Claimant raised a grievance, alleging various kinds of discrimination and victimisation for making protected disclosures (Grievance 1). The parties agree that this was a protected act for the purposes of section 27 of the 2010 Act (PA 9, issue 16.1.3). Grievance 1 was extensive, running to 28 pages, and (having been viewed by the Tribunal) we find that the Claimant’s list of complaints was not at all clear.

[142]In the Grievance 1 document: a) The Claimant raised concerns about Ms Evans’ interest in Vlinder, and said it created a conflict of interest as regards Ms Evans’ role in the Respondent organisation. The Claimant averred that she had suffered detriment for raising those concerns; b) The Claimant said that a colleague had approached her and told her that the Respondent wished to get rid of three members of staff, which included the Claimant, and were using the Reorganisation as a guise for doing so; Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 35 of 161 c) The Claimant contended that she was being subjected to detriments for performing her trade union role in relation to her conversation with Ms Evans about JT and VP’s relationship on 27 July 2019; d) She made allegations of race discrimination. These were wide-ranging and imprecise, and referred to the Reorganisation being tainted by racism as it was being used to effect “ethnic cleansing” and “whitewashing”; e) She included the heading “Disability Discrimination”, but her complaints under this were imprecise and difficult to understand; and f) Broad allegations were made of a failure, on the part of the departments affected by the Reorganisation, to comply with the Respondent’s policies and procedures, but the relevant policies and procedures were not identified.

[143]The Respondent’s grievance template asks what the complainant would like to happen as a result of their grievance, and the Claimant included: a) That she would like her Pre-Reorganisation Role to be retained; and b) That she would like an apology from Ms Evans in relation to the breach of confidentiality concerning the Claimant’s conversation with her about JT and VP’s relationship.

[144]At around the same time, three of the Claimant’s colleagues also raised grievances, and those also contained allegations about Ms Evans. The four grievances were passed to Mr McGinlay to consider (as a member of the Respondent’s management team unconnected with Early Help or any of the individuals involved in the complaints). Mr McGinlay determined that he would consider them at the same time because of the overlap between them.

[145]The Claimant avers that the Respondent delayed dealing with Grievance 1, and that this was unfavourable treatment because of something arising out of the Claimant’s disability, namely that the Claimant “thinks differently”. This forms the basis for the Claimant’s complaint that in delaying dealing with Grievance 1 the Respondent discriminated against her pursuant to section 15 of the 2010 Act (Allegation 23, issue 13.1.1). This is considered further below, in July 2019, when the outcome of Grievance 1 was provided to the Claimant. The Claimant emailed Ms Jones about a Sessional worker, November 2019

[146]The Claimant says that in November 2019 she challenged Ms Jones about using volunteers instead of paid Sessional workers in contravention of a volunteer policy, with safeguarding and data protection consequences. This email, the Claimant posits, was a protected disclosure (Disclosure 3, issue 5.1.1.4). The email the Claimant sent to Ms Jones was brief: “I gave you [S]’s name in July before the consultation launch. In that meeting you had agreed for her to be added to the training. please also note whether she is a sessional worker for Merton she still has equal rights to access training. In fact she is a longstanding paid sessional worker over 6 years.” Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 36 of 161

[147]The Respondent disputes that this was a protected disclosure. The consultation outcome, November 2019

[148]On 7 November 2019 the Respondent communicated its decision regarding the restructure of the Children, Schools and Families department, gave feedback on the consultation, and provided details of the Reorganisation that was to follow. Effectively, the Reorganisation was to create a single Family Wellbeing Service, providing a single ‘front door’ whereby people accessing family wellbeing services provided by the Respondent could access the full range of its services via a single contact. (Before the Reorganisation, support to families was accessed through different teams depending on whether the family’s children were aged 0-5, 2-11, or older.) The process of then engaging the relevant teams within the Respondent would be coordinated following this initial ‘front door’ contact. For families, this was designed to mean that they experienced a single joined-up service, regardless of the age of their children (provided they were 18 years or younger, or 25 years or younger in the case of children with special educational needs).

[149]The Claimant avers that on 7 November 2019 the Respondent deleted TF and created separated teams. She says that this was a detriment done on the ground that she made a protected disclosure (Allegation 24, issue 6.1.9).

[150]It is not disputed that the Reorganisation did involve the deletion of the TF team, but it was not effected until 3 February 2020. If the Claimant’s allegation is re-framed so as to apply as at 3 February 2020 the Tribunal still does not find it made out. As noted above, the Tribunal has found that the Respondent’s reasons for the Reorganisation business reasons not specific to the Claimant – they were: a) to create a single ‘front door’ for external persons to access the Respondent's range of family wellbeing services; b) to shore-up the funding bases for all the roles in Early Help (because the Troubled Families grant was uncertain); and c) to consolidate services relating to Early Help to create efficiencies.

[151]The Tribunal therefore finds that the Respondent did not delete TF and create separate teams because the Claimant made a protected disclosure, or that the fact she had made protected disclosures influenced that decision in any way, and so Allegation 24 fails. The Claimant says that on this same date (7 November 2019) she was assigned a new manager, Anne Roberts, and that that assignment, together with her subsequent assignment to four different line managers, was a detriment because she had done a protected act (Allegation 25, issue 16.2.4). The Respondent says, and the Tribunal finds (and the Claimant accepted this in oral evidence, and issue 16.2.4 is premised on this fact) that Ms Roberts did not become the Claimant’s line manager until 3 February 2020, and the Claimant continued to be line managed by Mr Evwaraye until that time.

[152]On 11 November 2019 the Respondent informed the Claimant of the outcome of the Reorganisation for her role – it was not being retained in the new structure. This engaged: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 37 of 161 a) The Respondent’s Reorganisation policy, which included the following commitments: “It is the Council’s intention, insofar as practicable within the terms of the business case, to achieve these changes without the need for compulsory redundancies”, “The Council will take all steps, having regard to its business aims and objectives, to assimilate employees into roles where possible”, and “Where roles cannot be filled by assimilation, competition for roles will be opened up on a ring-fenced basis so that vulnerable employees are given preference to vacancies”; and b) The Respondent’s Reorganisation procedure, which provided further detail on that process as follows: “The relevant manager should identify which roles in the new structure have duties and responsibilities which are substantially the same as roles in the old structure and then consult with the recognised Trade Unions…”, “Where only one employee has an assimilation claim to a role in the new structure, that employee will be directly assimilated into that role”, and “Where there are a number of employees who have assimilation claims for a number of roles, those employees should be asked to express a preference for the roles involved. If possible, employees should then be slotted into the roles. If two or more employees express a preference for the same role, then competitive assimilation arrangements will apply.”

[153]The Claimant was informed that she had assimilation rights to two posts within the new Family Wellbeing Service, namely: a) Parenting Co-Ordinator (EPEC) with grade ME10; and b) Contact Co-Ordinator with grade ME11, and she was provided with a job description for each of the roles.

[154]The Claimant was also informed that she was in a pool of two for these posts, and that she and the other person were now each being asked to express a preference for one of those roles. “If both parties choose the same preferred option, then a competitive assimilation process will apply and you will be interviewed for the position.”

[155]She was told of her right to appeal against “this decision”, and details of how to do so were provided. The letter requested: “Please outline the grounds for your appeal in accordance with the Reorganisation Policy, Procedure and Guidance”, the latter of which sets out examples of grounds of appeal, being:• “That an assimilation claim has not been recognised;

• That a ring fence is not being correctly applied;

• That the employee should or should not be included in a ring fence; and/or Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 38 of 161

• Issues relating to the reorganisation or selection generally.”

[156]On 12 November 2019 the Claimant: a) Expressed a preference for the Parenting Co-Ordinator (EPEC) role; and b) Appealed against the outcome of the consultation on several bases, including:(i) Her Pre-Reorganisation Role should not be deleted as it was never part of the TF funding, and so was not affected by the risk of losing the TF grant;

(ii) The Respondent had unilaterally changed her terms and conditions of employment by means of ‘dismissal and re-engagement’, which change she did not accept;

(iii) She averred that the removal of her Pre-Reorganisation Role was ‘victimisation’, because she had historically made a complaint about the conduct of an employee referred to as “TW” in this judgment;

(iv) Her assimilation into the Parenting Co-Ordinator (EPEC) role (the Post-Reorganisation Role) should be direct, on the basis that the Claimant considered the tasks involved in that post to be “what I do within my current role”, and that that role and tasks “of EPEC is a role I have been carrying out from 2012 to date”; and

(v) Her Pre-Reorganisation Role should be ringfenced, as the Parenting Co-Ordinator (EPEC) role (the Post-Reorganisation Role) involved a grade demotion, a salary cut, the loss of her essential car users allowance and did not provide room for career progression.

[157]The other person in the ringfence, MK, expressed a preference for the Contact Co-Ordinator post.

[158]The Respondent subsequently decided that the Claimant’s appeal pursuant to the Reorganisation policy (the Reorganisation Appeal) would be heard by Ms Wardell. Grievance 1, scheduling a meeting, November to early December 2019

[159]Mr McGinlay wrote to the Claimant on 19 November 2019 inviting her to a meeting to discuss Grievance 1 on 26 November 2021. The Claimant replied the following day to say that she was unavailable on that date. By 26 November 2019 the meeting date had been settled as being 5 December 2019. The Claimant is booked on EPEC training

[160]On 21 November 2019 an email was sent to the Claimant confirming her place on EPEC training on 2, 3, 9 and 10 December 2019. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 39 of 161 Ms Bradley met with Ms Miller, 22 November 2019

[161]On 22 November 2019 Ms Bradley met with a member of her team, Yasmin Miller, who was due to leave the Respondent’s employment on 13 December 2019, and sent out an email to certain colleagues inviting them to attend a small ‘goodbye’ gathering. The email was not sent to the Claimant. Online D&I training, December 2019

[162]The Claimant says that in December 2019 she raised further equality concerns with the Respondent’s mandatory online D&I training (PA 10, issue 16.1.4). No evidence was provided by the Claimant of this, and so this assertion fails. The Reorganisation Appeal meeting took place, 4 December 2019

[163]On 4 December 2019 the Claimant met with Ms Wardell, who heard the Claimant’s representations as part of the Reorganisation Appeal. The Claimant says that the Respondent’s appointment of Ms Wardell to hear this appeal was less favourable treatment because of race (Allegation 26, issue 11.2.9).

[164]Mr McGinlay was unwell on 5 December 2019 (the date scheduled for him and the Claimant to discuss Grievance 1), and so that meeting was rescheduled for 9 January 2020. The cake incident, December 2019

[165]On 11 December 2019 Ms Miller’s leaving gathering took place. The Claimant became aware of it and emailed Ms Bradley to ask why she had been excluded. The Claimant described this as an act of direct race discrimination (Allegation 27, issue 11.2.7) and victimisation (Allegation 28, issue 16.2.12) by Ms Bradley.

[166]Ms Bradley responded on 12 December 2019: “This is just a misunderstanding in view that Yasmin did not really want anything for ending her work with us but agreed to cakes. She went through a number of names and people (she wanted to keep it very small not opening it to the whole of CSC) and I invited these people – we have just by mistake missed you off the list as we had done with another person who mentioned to Yasmin and she then invited herself. There was nothing intentional within the invite and if I have missed others from the office then we would want to invite them also.”

[167]The Tribunal finds on the basis of Ms Bradley’s evidence, this part of which the Claimant accepted as accurate in submissions, that the reason Ms Bradley did not invite the Claimant to Ms Miller’s leaving cake because Ms Miller told Ms Bradley which colleagues she wished to invite, and the Claimant was not on that list. Ms Bradley did not decide to exclude the Claimant from the invitation, and the Claimant was not excluded because she had done a protected act. The factual premise for each of Allegations 27 and 28 is not made out on the facts, and so those Allegations fail.

[168]On 13 December 2019, Ms Mayhew emailed the Claimant about her recent interactions with Ms Bradley. This email was about the cake incident described above, but also noted that the Claimant, in her email to Ms Bradley, had referred to Grievance 1 and her concerns about Ms Evans, and Ms Mayhew informed the Claimant that Ms Bradley had been unaware of that grievance until the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 40 of 161 Claimant’s email, and asked her not to share details of her grievance allegations with staff. This was effectively a reminder to the Claimant to maintain confidentiality. This email, the Claimant avers, amounted to Ms Mayhew reprimanding her for sharing details of why she felt offended about the cake incident, which the Claimant says was direct race discrimination (Allegation 29, issue 11.2.7).

[169]The Claimant offered no evidence that this email ‘reprimanded’ her in her written or oral evidence to the Tribunal. The Tribunal has read the email included in the Claimant Bundle from Ms Mayhew to the Claimant on the date concerned, and while it reminds the Claimant of maintaining confidentiality about grievances that do not involve the people they are communicating with, it does not reprimand the Claimant for expressing to Ms Bradley that she felt offended by her exclusion from Ms Miller’s leaving cake celebrations. The factual premise for Allegation 29 is not supported by the evidence and so this complaint fails. The outcome of the Reorganisation Appeal, 13 December 2019

[170]Ms Wardell’s decision on the Claimant’s appeal against her treatment as part of the Reorganisation was communicated to the Claimant in writing on 13 December 2019. Ms Wardell rejected the Claimant’s appeal, which the Claimant says was direct discrimination because of race (Allegation 30, issue 11.2.8). The list of issues on this point includes the closing words: “institutional racism”. Assimilation, December 2019

[171]On 18 December 2019 the Respondent wrote to the Claimant to inform her that she would be placed into her preferred post of Parenting Co-Ordinator (EPEC) (i.e., the Post-Reorganisation Role) with effect from 3 February 2020. The Respondent also informed the Claimant that she would receive salary protection for two years, but that at the conclusion of that period her salary would revert to the top of the ME10 grade at spinal point 28.

[172]The Claimant says: a) That the Respondent dismissed her on this date, and that that was:(i) an unfair dismissal, contrary to section 94 of the 1996 Act (Allegation UDL 1, issue 3);

(ii) victimisation pursuant to section 27 of the 2010 Act (Allegation 31, issue 16.2.15); and

(iii) direct race discrimination pursuant to section 13 of the 2010 Act (Allegation 32, issue 11.2.20); and b) That the Respondent failed to provide her with an updated written contract or variation, which she posits was a detriment because she had done a protected act (Allegation 33, issue 16.2.14).

[173]The Respondent disputes that the Claimant was dismissed on this date (or at all), and says that it sent information about the changes that applied to her role on this date. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 41 of 161

[174]The Tribunal finds that the Claimant was not dismissed on 18 December 2019, for the two reasons: a) There was no express dismissal of the Claimant on or with effect from this date; and b) The Claimant asserts that the changes that were made to her contract were so significant that this was a “Hogg v Dover College”-type dismissal, but no changes were made to her contract as at this date – she was informed that changes would take effect on 3 February 2020.

[175]Consequently, the factual basis for Allegation UDL 1 and Allegations 31 and 32 are not made out and those complaints do not succeed. Furthermore, because the Tribunal finds that no changes were made to the Claimant’s contract on this date (but rather, the changes took effect on 3 February 2020), there was no failure to provide her with an updated written contract or variation on 18 December 2019, so Allegation 33 does not succeed.

[176]The Respondent did provide the Claimant with an update or variation to her contract of employment on this date, in the form of the letter. The Claimant was not subjected to the detriment she avers, and so Allegation 33 fails. First meeting between the Claimant and Mr McGinlay about Grievance 1, 9 January 2020

[177]The Claimant met with Mr McGinlay on 9 January 2020 to discuss Grievance 1, but there was insufficient time to complete their discussion, so that meeting was adjourned. Online D&I training, 9 January 2020

[178]The Claimant says that, on that same date (9 January 2020), she raised further equality concerns with the Respondent’s mandatory online D&I training (PA 11, issue 16.1.4). No evidence was provided by the Claimant of this, and so this assertion fails. Relocation to Steers Mead, January 2020

[179]On 14 January 2020: a) The Claimant presented the First Claim to the Employment Tribunal, which is accepted by the Respondent as a protected act for the purposes of section 27 of the Equality Act 2010 (PA 12, issue 16.1.5); b) The Claimant avers that the Respondent instructed her to clear out her desk and relocate to a remote children’s centre, without a risk assessment or reasonable adjustments, which she says was a detriment done on the ground that she made a protected disclosure (Allegation 34, issue 6.1.6). The Respondent denies this; c) The Claimant says that the Respondent removed her designated annex space, which she says was a detriment done on the ground that she made a protected disclosure (Allegation 35, issue 6.1.10). The Respondent denies this; d) The Claimant says that she was relocated to Steers Mead, which she says: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 42 of 161(i) was not practical, a change which she says was a detriment done on the ground that she made a protected disclosure (Allegation 36, issue 6.1.12);

(ii) was to a remote children’s centre, and was forced on her by Ms Jones, despite the Claimant’s mobility issues, which she says was direct disability discrimination (Allegation 37, issue 10.2.1); and

(iii) was a provision, criteria or practice, requiring her to work at a remote location with no canteen, no place to recuperate, and no security. This is described as “PCP 3” in the List of Issues, and the Claimant avers that the Respondent failed to comply with its duty to make reasonable adjustments in respect of this PCP 3 (Allegation 38, issue 14.2.3 and related issues). The Respondent says that the Claimant was not relocated to Steers Mead.

[180]The bundles each contain an email from Ms Jones, dated 24 January 2020, which was sent to 32 people including the Claimant, setting out “an update about the new teams, line management arrangements and next steps over the coming couple of months”. That email communicated to the Claimant that she was to be managed by Ms Roberts, and that Ms Roberts’ team was going to be located at Steers Mead. (This also shows that the Claimant’s line manager did not change to become Ms Roberts as she averred in Allegation 25 – because this email was about changes that were to be effected at a future date yet to be determined in connection with the Reorganisation.)

[181]The email that the Claimant has pointed to as the instruction “to clear out her desk” (the first part of Allegation 34) was sent by the Respondent’s Practice Development Manager, Ms Watson, who sent an email on 27 January 2020 to 15 people, including the Claimant, which included: “Following from Allison’s email last week I will be getting a plastic storage container out to each of you on Wednesday or Thursday this week to enable you to gather your belongings (personal work resources) ready for you to move to your new/temporary location, I will then be in contact to arrange for them to be transported for you next week.”

[182]As for the second part of Allegation 34, neither party presented any map or photographic evidence about whether Steers Mead was “remote”. The Claimant says that it is not easily accessible without use of a car, as the tube does not stop nearby, and only buses that cover very long and round-about routes pass near it. Ms Jones from the Respondent agreed that it is not as central as the Respondent’s Civic Centre building, but said she would not describe it as “remote”.

[183]In any event, the parties agree that, upon the Claimant’s objection to being relocated there on the basis of her disabilities, her relocation to that site was paused pending the advice of occupational health (OH). In fact, the parties agree that the Claimant has never relocated to Steers Mead, and so Allegations 36, 37 and 38 fail. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 43 of 161

[184]It is clear to the Tribunal that the instruction to pack up her desk was not done on the ground she made a protected disclosure – it was an email sent to all persons working in Ms Jones’ new service, and was designed to facilitate a smooth relocation of people whose office base was changing. This mental process, entirely unconnected to any protected disclosure, is significant (Knight).

[185]Similarly, the whole of the Claimant’s new team under the line management of Ms Roberts was to be located to Steers Mead – this was not an instruction given to the Claimant because she made a protected disclosure. Ms Jones gave evidence about the reasons for Ms Roberts’ team being located in Steers Mead (although the Claimant has never, in fact, relocated there). Those were cogent reasons, that the Respondent wanted community-based activities (such as parenting support) to be co-located within the community they serve, on a site with a creche, and that co-location with their clients was thought to reduce the amount of travel for staff.

[186]The Tribunal finds that the Claimant was not instructed to clear out her desk and relocate to a remote children’s centre without a risk assessment or reasonable adjustments. The factual basis for this allegation is not made out and so Allegation 34 fails.

[187]The Claimant has not offered any evidence – in her witness statement or orally – that the Respondent removed designated annex space from her on 14 January 2020, and so Allegation 35 fails. January 2020 interactions with Ms Jones

[188]The Claimant says that on 20 January 2020 Ms Jones forced her to change her flexible working hours, and did not allow her to have half an hour at work before delivering parenting programmes. The Claimant says this was less favourable treatment because of disability (Allegation 39, issue 10.2.4). The parties agree that, in fact, the Claimant’s working hours have not changed, and she continues to start work at 10am. The Claimant’s allegation seems to relate to the second part – that Ms Jones did not allow her to have half an hour at work before delivering parenting programmes. This fact the Respondent admits, though the Respondent resists the allegation that this amounts to direct disability discrimination.

[189]The Claimant met with Ms Jones on 21 January 2020. The Claimant says that at this meeting: a) Ms Jones asked her “why don’t you leave”; and b) When the Claimant broke down crying, Ms Jones said “we are finally seeing your softer side”, which the Claimant avers was less favourable treatment because of race (Allegation 40, issue 11.2.11). These allegations are disputed by the Respondent.

[190]There are conflicting accounts from the two witnesses who were present at this meeting. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 44 of 161 a) The Claimant’s witness statement only makes passing reference to this meeting, and her oral evidence was to the effect that the meeting began as a handover meeting with Mr Evwaraye present, but he later went to get some tissues when the Claimant started to cry. In her oral evidence the Claimant did not blame Ms Jones for why she was crying, but said that Ms Jones said to her that if she wasn’t going to fit into the service, why didn’t she leave the service. The Claimant went on to say that that’s when she shared some personal information with Ms Jones about why she thinks she would struggle to get new employment. b) While the Claimant did not cross-examine Ms Jones about this meeting, Ms Jones’ witness statement records that she does not recall saying either of these phrases, that she hugged the Claimant when the Claimant became distressed, and that she believed she was being empathetic and kind. She is confident that she did not say anything about “finally” seeing the Claimant’s softer side, which Ms Jones says changes the meaning from being sympathetic to become critical.

[191]The other relevant evidence as to what was said in that meeting is the follow-up email the Claimant sent to Ms Jones the next day, which included: “I just wanted to say thank you for meeting with me today it really helped!! It helped me to hopefully allow you the opportunity to develop your own perception of me Even if in your words“ Seeing the softer side to me” I left that meeting feeling hopeful that we can work respectfully, to meet the aim of the service and the new direction in which it now proceeds to take… But for today, I just wanted to say thank you for what I thought was a good meeting to clear the air and create a more positive path in moving forward.”

[192]On the basis of this email, the Tribunal finds: a) Ms Jones did not say “why don’t you leave”. That really is not plausible in light of the Claimant’s email the next day, expressing gratitude to Ms Jones, and hope for their future working relationship; and b) Words to the effect that Ms Jones was seeing the Claimant’s “softer side” were said – they are echoed in the Claimant’s follow-up email – but there was no mention of that “finally” being the case, because that implicit criticism would not have engendered the gratitude and positivity the Claimant expressed in her follow-up email. This part of Allegation 40 is therefore considered in the Analysis section below. An OH referral is made in respect of the Claimant

[193]After that meeting Ms Jones made an OH referral in respect of the Claimant’s relocation to Steers Mead. In the meantime Ms Jones informed the Claimant’s line manager, Ms Roberts, that the Claimant would remain at the Civic Centre pending OH’s advice on the planned relocation of the Claimant to Steers Mead. Online D&I training, 31 January 2020

[194]The Claimant says that she repeated her equality concerns about the Respondent’s mandatory online D&I training on 31 January 2020 (PA 13, issue Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 45 of 161 16.1.4 ). The Claimant has offered no evidence of this, and so the assertion that this amounted to a protected act fails. The Reorganisation took effect, 3 February 2020

[195]On 3 February 2020 the Reorganisation of the Respondent’s Early Help department took place. With effect from that date the Claimant’s role was changed (by the Respondent) from the Pre-Reorganisation Role (which was deleted) to the Post-Reorganisation Role. The Claimant dates various of her complaints as arising out of this change: a) She says that she was demoted to an entry level role, which she asserts was a detriment done on the ground that she made a protected disclosure (Allegation 41, issue 6.1.1); b) She says that she was set up to fail by the Respondent’s failure to provide her with induction training or safeguarding when she joined the Early Years’ Family Wellbeing Service on this date. This, she claims, was direct disability discrimination (Allegation 42, issue 10.2.3); c) The Claimant posits that she was segregated from her white peers within her team, as authorised by Ms Jones, with white colleagues managed by a white manager, Rebecca Doyle, and the Claimant managed by Ms Terry, whom the Claimant describes as being of mixed race. The Claimant says this was direct race discrimination (Allegation 43, issue 11.2.12); d) The Claimant characterises the unilateral change to her terms and conditions imposed by the Respondent as a dismissal with effect from this date, which the Claimant alleges was:(i) unfair dismissal (Allegation UDL 2, issue 3)

(ii) direct race discrimination (Allegation 44, issue 11.2.20); and

(iii) victimisation (Allegation 45, issue 16.2.15); e) She avers that with effect from this date the Respondent required the parenting programme to commence at 10:00 am, and that that was an application of a provision, criterion or practice (labelled PCP 2 in the list of issues). The Claimant says that the Respondent failed to make reasonable adjustments in respect of PCP 2, contrary to section 20 of the 2010 Act (Allegation 46, issue 14.2.2 and other related issues); f) The Claimant’s line manager changed with effect from this date (from Mr Evwaraye to Ms Roberts). This is relevant to other of the Claimant’s complaints (which also rely on subsequent management changes), those being that the Claimant says that: (i) the five changes she experienced in line manager in a 12 month period was a detriment imposed on her because the Claimant did a protected act, contrary to section 27 of the 2010 Act (this forms part of Allegation 25, issue 16.2.4); and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 46 of 161 (ii) she was set up to fail, and the Respondent destabilised her, with three management changes and giving her different management instructions on this date, as well as 4 March 2020, 6 October 2020, 20 January 2021 and 3 March 2021, which she says was a detriment on the ground that she had made a protected disclosure (Allegation 47, issue 6.1.7); g) She says that the Respondent failed to provide her with an updated written contract or variation to reflect demotion, reduced salary, change of job role, times and location of work and removal of supervisory tasks, which she avers: (i) was a detriment done because she did a protected act (Allegation 48, issue 16.2.14); and (ii) meant that the Respondent was in breach of its duty to give the Claimant a written statement of a change to her employment particulars contrary to section 4 of the 1996 Act (Allegation 49, issue 18.1); and h) She says that the deletion of the TF team was a detriment done because she had done a protected act (Allegation 50, issue 16.2.2).

[196]Each disputed fact relating to the above list is considered in turn below.

[197]Was the Claimant demoted to an “entry level” role? (Relevant to Allegation 41) a) The Respondent accepts that she was demoted, but contends that it was not to an “entry level” role, which Ms Jones would describe as more like an ME5 role, whereas the Post-Reorganisation Role was at ME10 grade. The Claimant conceded the Respondent’s position on this point during submissions, when she said that what she meant was that she was taken back to the grade she started on when her employment with the Respondent began 14 years ago. b) There seems to actually be no dispute between the parties, and the Tribunal agrees that the Claimant was demoted by the change from the Pre-Reorganisation Role to the Post-Reorganisation Role, but that demotion was not to an “entry level” role, but was rather by one grade, which should be seen in the context of the Claimant having worked at ME11 pre-Reorganisation and then went into an ME10 role post-Reorganisation.

[198]Why was the Claimant demoted? Was it on the ground that she had made a protected disclosure? (Relevant to Allegation 41) a) The Respondent says that the reason the Claimant was not put into an ME10 grade role (i.e., the same grade as her Pre-Reorganisation Role) was because of her choice to move to the Post-Reorganisation Role rather than elect to be considered for the alternative role identified for her at ME11 grade as part of the assimilation process. The Respondent says that the reason for the Claimant’s demotion was not that she had made a protected disclosure. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 47 of 161 b) There is no evidence to suggest that the Claimant was demoted on the ground that she made a protected disclosure, and some evidence suggesting that that was not a factor, because the Claimant was presented with the option to elect to be assimilated into a role of the same grade as her Pre-Reorganisation Role. c) The Tribunal finds that the Claimant’s demotion was a consequence of two things:(i) The Reorganisation, which deleted her Pre-Reorganisation Role and created the Post-Reorganisation Role (and we have already found that the reasons the Reorganisation was undertaken did not include the fact that the Claimant had made a protected disclosure); and

(ii) Her choice to be assimilated into the ME10 role rather than to be considered for the ME11 role. Had the Claimant expressed a preference for the ME11 role then she would have faced competition for that post from MK, and we cannot know what the outcome of that would have been, but she chose not to be considered for the ME11 role and thereby lost the chance to avoid demotion. d) The Tribunal finds that the Claimant was not demoted because she had made a protected disclosure. Allegation 41 therefore does not succeed.

[199]By not providing the Claimant with induction or safeguarding training before taking up the Post-Reorganisation Role, did the Respondent “set her up” to fail? (Allegation 42) a) The Respondent agrees that it did not provide the Claimant with induction or safeguarding training specifically related to the transition in her role, but it denies that she was “set up to fail”. It notes that:(i) The South London and Maudsley NHS Foundation Trust (the SLAM) had made a commitment to roll-out EPEC, and it was a priority of the Respondent’s, as one of the London Boroughs involved, to do so. As Ms Jones put it, the Respondent very much wanted the Claimant to succeed in her new role;

(ii) All staff in the service were well-versed in safeguarding matters, including the Claimant;

(iii) In her appeal against the Reorganisation, the Claimant argued that her assimilation into the Post-Reorganisation Role should be ‘direct’, as the tasks involved with it were, the Claimant said, within her Pre-Reorganisation Role, and she had been doing EPEC (which involves empowering parents to train other parents) since 2012; and

(iv) The Claimant attended EPEC training in December 2019, which the Claimant regarded as ‘refresher’ training in light of her pre-existing experience of the EPEC model. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 48 of 161 b) The Claimant maintained in oral evidence that her skillset and experience was in parenting support for parents of children aged 12 and above – adolescents - whereas she came to realise, after the Reorganisation, that the Respondent’s plans for the EPEC Coordinator role were centred upon children aged 0-5. The fact that she had not understood the Respondent’s focus to be on the parents of primary aged children was, she said, why she argued at the time of her Reorganisation Appeal that her assimilation into the Post-Reorganisation Role should have been direct. c) The Tribunal finds that there was a change in the focus of the Claimant’s work following the Reorganisation from parenting support for parents of adolescents to parenting support for younger, primary-school aged, children, but the Claimant was not set-up to fail. Our reasons for finding that are as follows: (i) The evidence shows a pattern of the Respondent repeatedly emphasising the importance and priority of rolling-out the EPEC programme (this is clear from the supervision records and email correspondence involving the Claimant and Ms Terry and Mr Collins, when they line managed her, as well as with Ms Jones). (ii) The Claimant has not been taken through any kind of performance management process, so she is not in fact failing. (iii) The Claimant was given EPEC (refresher) training ahead of starting the Post-Reorganisation Role, and safeguarding was part of her Pre-Reorganisation Role (so, by not giving her training on this there was no question of the Respondent “setting her up to fail”). (iv) The supervision notes between the Claimant and Mr Collins show that the Claimant requested safeguarding training that was bespoke to younger children, and she attended such a course in June 2021 – this was 15 months after the Reorganisation, but the provision of this training by the Respondent supports our finding that the Respondent was not setting her up to fail. d) The factual premise for Allegation 42 is not established by the Claimant, and so this complaint fails.

[200]The Claimant was not assigned to be line managed by Ms Terry at this point in the timeline, so the relevant factual dispute in relation to what occurred on 3 February 2020 is why was the Claimant placed in a separate team to the Parenting Practitioners at the time of the Reorganisation in February 2020? (Relevant to Allegation 43) (The Tribunal returns to the decision to assign the Claimant to Ms Terry’s line management at the point in the chronology when that occurred, being early March 2020.) a) It is not disputed that, immediately following the Reorganisation: I. the Claimant was assigned to be managed by Ms Roberts (who is white) from 3 February 2020 to 3 March 2020, and then by Ms Terry (who is a person of colour); and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 49 of 161 II. the other parenting coordinators were assigned to be managed by Ms Doyle (who is white), i.e., the Claimant, as Parenting Co-Ordinator (EPEC) (the Post-Reorganisation Role), was line-managed separately from the other parenting coordinators. b) The Respondent disputes, though, the Claimant’s contention that this was done on racial grounds. This is considered further in the Analysis section of this judgment below.

[201]Was the Claimant dismissed on 3 February 2020? (Relevant to Allegation UDL 2 and Allegations 44 and 45) a) This is a question of both fact (‘what were the changes to her terms and conditions?’) and law (‘were those changes sufficiently significant to amount to imposing a radically different contract on the Claimant?’). b) On the first part, the parties agree that:(i) The Claimant’s job title changed from “Parenting Officer (Parenting Early Intervention Programme)” to “Parenting Coordinator (EPEC)”;

(ii) The Claimant’s job grade changed from ME11 to ME10 (a demotion of one grade);

(iii) The Claimant’s salary changed, though she was subject to pay protection for two years. Surprisingly, neither party provided evidence of the amounts involved or the percentage difference, and so the parties provided figures in submissions at the request of the Tribunal. The parties each had different figures for the change to the Claimant’s nominal (i.e., without pay protection) salary, but the Claimant had not adjusted hers for the fact that she worked term-time only, and so the Respondent’s figures were preferred (in fact, the parties’ respective figures showed the same percentage difference in looking at the percentage of her Pre-Reorganisation Role salary that was lost when she assumed the Post-Reorganisation Role). The Respondent said the Claimant’s annualised salary as at 2 February 2020 was £32,413.35, and as at 3 February 2020 (without pay protection) was £30,205.82. This represented a 6.8% change;

(iv) The Claimant was entitled to Essential Users Car Allowance as part of her Pre-Reorganisation Role, but lost that entitlement upon taking up the Post-Reorganisation Role and was instead entitled to claim travel-related expenses in the Post-Reorganisation Role. The parties agreed that the value of the Essential Car Allowance to the Claimant had been approximately £90/month;

(v) The Claimant ceased to be line managed by Mr Evwaraye and was instead line managed by Ms Roberts (and others, subsequently); Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 50 of 161

(vi) The Claimant had supervised paid casual workers, known as “sessionals”, in her Pre-Reorganisation Role. These were parents whom the Claimant had trained to roll out parenting support training to other parents. The Claimant was no longer responsible for managing paid sessionals in her Post-Reorganisation Role, but was expected to train unpaid volunteers parents to in turn train other parents in EPEC parenting support programmes;

(vii) The Claimant’s Pre-Reorganisation Role was based at the Respondent’s Civic Centre, whereas it was intended that the Claimant’s Post-Reorganisation Role would be based at Steers Mead. This change has never, in fact, been effected; and

(viii) While the Claimant would organise refreshments for parenting courses she provided, after the Reorganisation the task of organising and physically setting up those refreshments was carried out by a central business hub. c) The analysis as to whether these changes amounted to a termination of the Claimant’s contract of employment, i.e., that she was dismissed, is conducted in the Analysis section of this judgment.

[202]Did the Respondent fail to provide her with an updated written contract or variation to reflect demotion, reduced salary, change of job role, times and location of work and removal of supervisory tasks? (Relevant to Allegations 48 and 49) a) The parties agree that the Respondent provided the Claimant with a letter on 18 December 2019. The Respondent avers that that letter set out the changes to her terms and conditions that were to take effect on 3 February 2020. b) The letter (included in both the Claimant Bundle and the Respondent Bundle) set out: I. Her new job title; II. Her new grade; and III. The fact the Claimant was to receive salary protection for two years, and that on 3 February 2022 her salary protection would end and “you will revert to the top of the ME10 grade at spinal point 28”. c) This letter communicated the Claimant’s demotion and her change of job role. It informed the Claimant that her nominal salary was reduced but that she would benefit from pay protection, and it told her where on the Respondent’s pay scale the new role would fall when that pay protection came to an end. It did not, though, place a value on the unprotected salary the Post-Reorganisation Role commanded. The Post-Reorganisation Role job description had already been provided to the Claimant as part of her consideration of the two roles identified for her assimilation, so the reference to the Post-Reorganisation Role was understood by her as referring to that job description. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 51 of 161 d) The Respondent says that there was no change to times of work – the Claimant continued to the work the same hours she had done in her Pre-Reorganisation Role – which the Claimant agreed. e) Whilst Ms Jones had decided that the Claimant’s work base was to be changed from the Respondent’s civic centre to Stears Mead, that change was never in fact made because the Claimant raised concerns that prompted an OH report to be ordered. f) The Claimant’s supervisory tasks of paid sessionals was removed, but the Post-Reorganisation Role did require the Claimant to supervise volunteers, and this latter point was spelled out in a few places in the job description for the new role. g) While the letter does not state that it varied the Claimant’s contract of employment, that fact was understood by the Claimant, as is clear from the terms of her Reorganisation Appeal, where she referred to the fact that the Respondent “has unilateral[ly] changed the terms and conditions of my contract of employment”. h) The Tribunal finds that the Claimant’s contention that the Respondent failed to provide her with an updated written contract or variation is not true – it did provide this in the 18 December 2019 letter – and that letter provided the Claimant with all the information she has listed in Allegations 48 and 49, save for updated salary information. The Tribunal finds that the Respondent failed to provide the Claimant with details of what salary the Post-Reorganisation Role attracted absent salary protection. Referring the Claimant to a point on a salary scale was insufficiently clear, as demonstrated by the fact that neither party could tell the Tribunal when asked what the Claimant’s unprotected annual salary was on 3 February 2020, and this became a point for submissions.

[203]Why did the Respondent fail to tell the Claimant what her (unprotected) salary for the Post-Reorganisation Role was? Was it because she had done a protected act? (Allegation 48) a) The Respondent clearly intended to communicate the appropriate changes to the Claimant’s terms and conditions of employment in its 18 December 2019 letter, and it did identify the point in the salary scale that her salary would revert to at the end of the pay protection period. It is reasonable to conclude that the reason the Claimant’s nominal salary was not specified in the letter was because the Claimant’s salary was protected for two years – a fact which the letter did state – so the monetary value of the salary that her role would revert to at the end of the protected period (the top of the ME10 grade at spinal point 28) could be different to its monetary value at the time the letter was sent. b) The letter closed with “Should you have any queries about the contents of this letter please do not hesitate to contact me on the above number” (the letter was sent by a member of the Respondent’s HR team). The Claimant did not, in fact, contact that person with any queries. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 52 of 161 c) The Tribunal finds that the Respondent’s failure to tell the Claimant what her unprotected salary in the new role was is attributable to oversight rather than design. It was not because the Claimant had done a protected act. Allegation 48 fails.

[204]Allegation 49, whether the Respondent was in breach of its duty to give the Claimant a written statement of a change to her employment particulars contrary to section 4 of the 1996 Act, is considered further in the Analysis section below.

[205]Was the TF team deleted because the Claimant had done a protected act? (Relevant to Allegation 50) a) As set out above, the Tribunal has found that the Reorganisation, which included the deletion of the TF team, was done for the following reasons:(i) to create a single “front door” for external persons to access the Respondent's range of family wellbeing services;

(ii) to shore-up the funding bases for all the roles in Early Help (because the Troubled Families grant was uncertain); and

(iii) to consolidate services relating to Early Help to create efficiencies. b) The Tribunal finds that neither the TF team nor the Claimant’s Pre-Reorganisation Role were deleted because the Claimant did a protected act, and so Allegation 50 fails.

[206]In relation to Allegation 46, it is not disputed by the Respondent that it required parenting programmes to commence at 10:00am rather than the 10:30am start time that had operated in her old role, although the Respondent questions whether this occurred on 3 February 2020. As the Respondent says, shortly after the Claimant started in her Post-Reorganisation Role the country went in lockdown, and so the delivery of parenting programmes was interrupted significantly. Nonetheless, the Respondent agrees that this PCP 2 was imposed on her Post-Reorganisation Role by the Respondent.

[207]The Claimant also contends that, with respect to a new EPEC Hub, the Respondent bypassed the SLAM Quality Standards for a Local EPEC Hub framework, which she says set her up to fail, and that this was done because the Claimant did a protected act (Allegation 51, issue 16.2.7). The Claimant offered no evidence in relation to this – indeed, she has not mentioned this at all - and so this allegation fails. Second meeting to discuss Grievance 1, 13 February 2020

[208]On 13 February 2020 a second meeting was held between the Claimant and Mr McGinlay in respect of Grievance 1. The Claimant was accompanied by a colleague, and there was an HR advisor present as well as a note taker. 26 February 2020

[209]The Claimant avers that on 26 February 2020 the Respondent removed her core duties on the ground that she made a protected disclosure (Allegation 52, issue 6.1.8). The Claimant has offered no evidence as to what happened on Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 53 of 161 this date, or in what way the Respondent removed her core duties. This complaint therefore fails. Ms Terry becomes the Claimant’s line manager, early March 2020

[210]Ms Terry became the Claimant’s line manager in early March 2020, and they had a handover meeting.

[211]The Claimant avers that on 4 March 2020 she was subjected to various detriments on the ground that she had made a protected disclosure. Specifically, the Claimant says that: a) (This is a further part of Allegation 47) She was set up to fail because of three management changes she experienced, and her being given different management instructions, on 3 February 2020, 6 October 2020, 20 January 2021, 31 March 2021 and this date of 4 March 2020, which destabilised her; b) She was segregated from her white parenting staff colleagues when they were assigned to be managed by Rebecca Watson while the Claimant was assigned to be managed by a mixed race manager, Ms Terry (Allegation 53, issue 6.1.13); c) She was prevented from sitting with the parenting team for peer and emotional support (Allegation 54, issue 6.1.14); d) Her autonomy and supervision duties were removed from her (Allegation 55, issue 6.1.15); and e) She was removed from the Youth Justice Board Parenting Forum (Allegation 56, issue 6.1.16).

[212]While the Claimant has dated this complaint as “from 3 February 2020”, Allegation 43 is one that the Respondent allocated the Claimant to be line managed by Ms Terry (a person whom the Claimant describes as mixed race) and allocated her white colleagues (a reference to the other Parenting Coordinators) to be managed by Ms Doyle (who is white) as an act of direct race discrimination. While the Claimant has mis-dated it, she is clearly referring to this point in the timeline of the case, and so Allegation 43 is considered here as well.

[213]The Respondent: a) Agrees (in relation to Allegation 47) that the Claimant experienced a change in line manager on or around this date (on this occasion, to Ms Terry), but denies that she was “set up to fail”, that different instructions were given to her, or that it destabilised her; b) Agrees (in relation to Allegation 53) that the Claimant was assigned to a mixed race line manager, Ms Terry, and that the other Parenting Coordinators were assigned to be managed by Ms Doyle. It does not accept that the Claimant was assigned to Ms Terry on the ground that she had made protected disclosures; c) Disputes (in relation to Allegation 54) that the Claimant was prevented from sitting with the parenting team for peer and emotional support; Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 54 of 161 d) Disputes (in relation to Allegation 55) that the Claimant’s autonomy and supervision duties were removed from her; e) Disputes (in relation to Allegation 56) that the Claimant was removed from the Youth Justice Board Parenting Forum; and f) Disputes (in relation to Allegation 43) that the line management decisions taken by Ms Jones for the Claimant and the other Parenting Coordinators was done on the basis of race.

[214]In relation to the disputed facts in the previous paragraph: a) Allegation 47 is considered further below, at the part of the chronology dealing with the final date it relates to. b) The reason (or reasons materially influencing the decision) that the Claimant was assigned to be line managed by Ms Terry: Was the Claimant assigned to be line managed by Ms Terry on the ground that the Claimant had made protected disclosures? (Relevant to Allegation 53)(i) The Respondent says - and the Claimant accepts - that Ms Roberts, the Claimant’s previous line manager, was employed by the Respondent on a temporary basis only, and that her work for the Respondent ended at this time. This necessitated a change in line manager for the Claimant, and this particular change cannot therefore have been made by the Respondent with an intention of ‘setting the Claimant up to fail’ – she needed to be line managed by someone, particularly as she had undertaken a new role and was seeking support with that.

(ii) The Claimant considers that the choice of her replacement line manager was made on the grounds that she had made protected disclosures. At the time, when the Claimant asked about the decision to assign her to Ms Terry’s team, Ms Jones emailed her and said: “There is nothing sinister about this. The decision was based on a number of factors including: a) The line of least disruption for staff in the near future and during the transition period. b) Rebecca has previously managed some of the current parenting programme and team and she knows the staff and programmes so can support the function of supervision time. [Her team also has a vacancy in it at present] so has a little more capacity at this point in time. c) EPEC demands a different approach due to it being a new piece of work… There is no divide on colour, racial or ethnicity lines. You are the only Parenting Co-ordinator (EPEC)...”. Ms Jones gave written evidence consistent with the above, noting that: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 55 of 161 1. There was a vacant line manager post for staff delivering parenting services, which was described by her as an unfortunate outcome of the Reorganisation; and 2. In deciding which of Ms Roberts’ team to allocate to which alternative line manager, Ms Jones said that her driving considerations were “what was best for the service”, and “what was least disruptive to staff”. Ms Doyle had managed the Claimant’s colleagues - four Parenting Practitioners - previously, but would have very little spare capacity after taking those. Ms Jones considered the Claimant’s EPEC post required a different approach, “in respect of which the Claimant would need managerial and programme development support”, which she viewed Ms Terry as best-placed to provide.

(iii) Ms Terry’s evidence to the Tribunal was that she was new into a management post at the time and, particularly as that was an interim post, she wanted to impress the Respondent’s management team with how she performed in that role. She was assigned to manage the Claimant, as the EPEC Coordinator, as well as MK (who had been assimilated into the Grade 11 role which had been identified as the alternative post into which the Claimant could have been assimilated). Ms Terry’s evidence was that she was excited to manage the Claimant. When the Tribunal asked Ms Terry why she thought the Claimant had been assigned to her when the four Parenting Officers were to be managed by Ms Doyle, she acknowledged “how it looks” (a reference to her race). She said: “I am an optimist, so I really, really would like to think that it wasn’t done for a malicious reason… I think there might have been two reasons: the first one was that I was going to pick up both of the Coordinator posts, and the second reason may have had something to do with managing behaviour which may have been seen as challenging”. Ms Terry did acknowledge that she thought the decision was to do with the Claimant’s behaviours being regarded as challenging.

(iv) Ms Terry’s perception chimes with that of the Claimant, who said in cross-examination that “The narrative at the time was that parenting had to be contained for me because I was disruptive”.

(v) This question is a similar one to that in Allegation 43, and similarly the Tribunal finds that the decision to assign the Claimant to be line managed by Ms Terry was based on four grounds: I. Whereas Ms Doyle had previously managed the other four Parenting Coordinators and was familiar with their roles, Ms Doyle had not previously managed the Claimant, nor her new role. II. The Claimant’s post was newly-created, and was something of a priority for the Respondent. It needed Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 56 of 161 someone with time to line manage that new post, and Ms Terry as a new line manager did not have a pre-existing team, and was keen to prove herself; and III. Ms Jones considered that the line management of the Claimant was going to require more intervention than was the case for the other Parenting Coordinators. This was for four reasons: i. EPEC was a new programme, reliant on parent volunteers (by contrast to the bank of paid sessional workers the Claimant had used in her previous role), and the Respondent’s progress in establishing it was to be monitored and reported to SLAM; ii. The Claimant needed active support. The Claimant had expressed some anxiety about the transition to her new role in her one-to-one meeting with Ms Jones, and the Claimant had spoken to Ms Jones about her mental health challenges, so Ms Jones was on notice that the Claimant needed support in that regard; iii. The Claimant had displayed some behaviours that the management team had felt the need to respond to. Ms Jones spoke about how the Claimant had disrupted the “town hall” meeting to open the consultation process, and Ms McSherry had felt the need to respond to an email the Claimant sent on 8 August 2019 which had caused upset from a number of team members; and iv. The Claimant had forcefully challenged a number of management actions in the recent past. These were principally whether the Respondent had appropriate oversight of the management of the conflicts between Ms Evans’ personal business interests those arising in the context of her role for the Respondent, whether appropriate procedures had been followed in connection with the MK Collective Grievance, and whether the decision to disband the TF team was an appropriate one.

(vi) This prompts the question of whether Ms Jones’ perception of the Claimant as being challenging amounted to a decision for the Claimant to be line managed by Ms Terry on the ground that the Claimant had made protected disclosures.

(vii) The Tribunal finds that the designation of Ms Terry as the Claimant’s line manager was not done because the Claimant had made protected disclosures, but because of the way in which the Claimant challenged. When Ms Jones was questioned by the Claimant about Ms Jones’ attitude to the Claimant’s challenge she was asked, “Do you believe, in light of everything that has happened, that I was out of line to challenge the way the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 57 of 161 reorganisation was conducted? ” Ms Jones replied that the Claimant was “absolutely within [her] rights to challenge the restructure”, which she described as everybody’s right to challenge, communicate, feed back and discuss. Ms Jones continued: “There are different approaches to how different people may do that. I think everybody has those rights. How we do that is something different.” The Tribunal finds that it was not the fact that the Claimant challenged, but the way in which the Claimant challenged, that was perceived by Ms Jones in a negative light (consistent with the distinction drawn by Lewis J in Panayiotou). c) The reason the Claimant was assigned to be line managed by Ms Terry: Was the Claimant assigned to be line managed by Ms Terry, and the other Parenting Coordinators to be line managed by Ms Doyle, because of race? (Relevant to Allegation 43) (i) The Claimant says that: I. She could not understand why she, as a Parenting Coordinator, was not assigned to the same team as the other four Parenting Coordinators; II. When she asked about the decision to allocate her to a different team to the other Parenting Coordinators she was told it was because her role was EPEC-specific. However the Claimant considers that if the Reorganisation was done so as to build a seamless service for families of children aged 0-18 (or 0-25 if the children had special educational needs), it did not make sense that she was assigned to a different team; III. She considers that this was done on the basis of race, so as to segregate her from her white colleagues; and IV. She also considers that it was done so as to contain her as she was perceived as disruptive. (ii) Ms Jones’ evidence to the Tribunal is described above (in relation to Allegation 53). Additionally, as regards the decision to assign the Claimant to be line managed by Ms Terry when Ms Roberts left the Respondent’s employ, Ms Jones said: “In contrast to the parenting programmes which the Parenting Practitioners were tasked with delivering, the Claimant’s EPEC work required a different approach and in respect of which the Claimant would need managerial and programme development support. I felt that Sam Terry was best placed in the circumstances to provide that support.” (iii) Ms Terry’s evidence is also described above, i.e., that she believed the Claimant was assigned to be line managed by her in part because the Claimant was perceived as challenging. Ms Terry went on to pose the question to herself: “was that because Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 58 of 161 of stereotypes associated with race? ”, to which she answered “I don’t know”. (iv) The Tribunal finds that the decision to assign the Claimant to be line managed by Ms Terry, and the other Parenting Coordinators to be line managed by Ms Doyle, was not on the grounds of race. Ms Terry’s honesty that the Claimant was perceived as displaying challenging behaviours could be based on a racial stereotype, however there is clear evidence that the Claimant was, in fact, a person who challenged things that she did not agree with – a point that the Claimant herself has made repeatedly in evidence. Ms Jones’ perception of the Claimant as challenging was unsurprising given that: I. Ms Jones expressed concern about the Claimant’s behaviour at the consultation launch meeting. On perhaps the first occasion Ms Jones had engaged with the Claimant, at the consultation launch meeting, the Claimant offered challenge in such a way that Ms Jones said she received feedback from some of the attendees that those attendees had found it difficult to absorb the information relayed, which led to complaints from them which reached Ms Jones. Ms Jones that she regarded it as perfectly proper that the Claimant should be able to question and challenge, but it was the way the Claimant went about that that Ms Jones struggled with, as she felt the Claimant’s actions had made it difficult for some people to hear, made some people feel awkward and less able to ask their questions, and had inhibited some people’s understanding of information they needed to have about the Respondent’s proposals. The Claimant asked Ms Jones if Ms Jones made a complaint to HR about the Claimant at that time. Ms Jones said that she did not recall making a formal complaint, but she “may have raised some concerns or feelings to HR or my LMs about [the Claimant]”; II. The Claimant had also sent an email to the EHConsultation mailbox on 2 August 2019 which had upset a number of her colleagues, prompting Ms McSherry’s email of 9 August reminding all addressed to be conscious of the potential to upset people by their emails, referred to above; III. The Claimant appealed the outcome of the Reorganisation, showing resistance to the change that Ms Jones was intimately involved in effecting; IV. The Claimant had raised Grievance 1; and V. The Claimant objected to being relocated to Steers Mead. The Tribunal finds that Ms Jones’ perception that the Claimant displayed challenging behaviours was based on what had in fact Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 59 of 161 occurred, and was not a presumption based on a racial stereotype. Moreover, the Claimant has displayed considerable distress at the decision to remove her Pre-Reorganisation Role and disband the TF team (for example, in her 1-2-1 consultation meeting between her and Ms Jones on 17 September 2019), and had told Ms Jones in their 1-2-1 meeting that she had poor mental health which was affected by the Reorganisation, and so it was legitimate and proper for Ms Jones to regard the Claimant as needing additional line management support. (v) To summarise, the Tribunal finds that the Claimant was assigned to be line managed by Ms Terry because: I. Ms Terry was to line manage MK, the other Parenting Coordinator, and so there was some subject-matter logic to also assigning the Claimant to be managed by her (she was already line managing a Parenting Coordinator); II. Ms Terry was new to post, and so had more capacity than pre-existing managers with pre-existing teams, such as Ms Doyle; and III. Connected with the previous point, Ms Jones regarded Ms Terry’s greater capacity than her other management peers and enthusiasm for her new management position, as indicators that she may be able to manage the Claimant effectively, including:

• communicating if the manner of the Claimant’s challenge was problematic (e.g., by causing offence to colleagues in the way her 2 August 2019 email had);

• supporting the Claimant through a transition the Claimant found difficult when the Claimant had been open about her poor mental health; and

• ensuring that the Claimant progressed in rolling out the EPEC parenting programme in accordance with the Respondent’s commitment to do so. (vi) Consequently, Allegation 43 does not succeed. d) The effect of the decision that the Claimant was to be line managed by Ms Terry: Was the effect of Ms Jones’ decision to assign the Claimant to be line managed by Ms Terry a detriment? (Relevant to Allegation 53) (i) The answer to this comes from the Claimant in very clear terms. She regards (and regarded at the time) the designation of Ms Terry as her line manager as a positive thing – it was not a detriment. At the time of her assignment to Ms Terry’s management the Claimant told Ms Jones in email that she was “happy” to be managed by Ms Terry. This is consistent with her questioning of Ms Terry before the Tribunal, where the Claimant Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 60 of 161 said that “ Overall, [Ms Terry] supported me to be able to access work and to be inclusive in work”. (The Claimant also said that “somewhere along the line it went a bit wrong”, but that was referring to a time after the decision to designate Ms Terry as her line manager.) (ii) The Tribunal agrees with the Claimant that the Claimant’s being assigned to be line managed by Ms Terry was not a detriment: Ms Terry went to some considerable efforts to understand and support the Claimant, whilst also looking to ensure that the work the Respondent needed to be done was advanced. Allegation 53 therefore does not succeed. e) Was the Claimant prevented from sitting with the parenting team for peer and emotional support? (Allegation 54) (i) The Claimant has said little about this, other than to state that she was prevented from sitting with her parenting team peers. (ii) The Respondent says that March 2020 was the time of the Covid-19 pandemic, when the country went into lockdown, and consequently, none of the parenting staff were sitting together at this time. The Respondent also says that there was nothing to prevent the Claimant from communicating with them at this time. (iii) The Tribunal notes that the country went into lockdown around this time, and the parties agreed that all the parenting officers and coordinators were working from home (and the Claimant was shielding because of her medical conditions). While the Respondent had intended for the Claimant to be based from its Steers Mead office, that never in fact happened due to the Claimant expressing concerns about whether that location was suitable for her in light of her disabilities. Furthermore, the Claimant gave evidence that at this time, the Parenting Officers and she set up their own parenting forum facilitator meetings. The Claimant referred to the fact that those meetings were subsequently stopped, but how that came about is not part of her allegations. At the time of her assignment to be part of Ms Terry’s team, she was not prevented from sitting with her Parenting Officer colleagues, or segregated from them on the ground that she made a protected disclosure, and so Allegation 54 fails. Nor was the Claimant preventing from sitting with them, or segregated from them on racial lines, because she is black and they are white (Allegation 53). f) Were the Claimant’s autonomy and supervision duties removed from her at this time? (Allegation 55) Loss of autonomy (i) The Claimant gave evidence that when she was in her Pre-Reorganisation Role, managed by Mr Evwaraye, she had a lot of freedom to create her own work plan and determine the ways in Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 61 of 161 which her objectives would be pursued. When questioned, though, she accepted that Mr Evwaraye had the authority to tell her what parenting programmes to present and the arrangements for doing so, though he generally did not do so. Her evidence was that the freedom she had when she was line managed by Mr Evwaraye was removed when the Reorganisation took effect and she took up the Post-Reorganisation Role (so not on 4 March 2020). (ii) Her evidence about the putative loss of her autonomy was very scant. She referred to the fact that shortly after she had been told that she was to be assimilated into the Post-Reorganisation Role she was contacted by Ms Jones to say that EPEC was behind schedule, and that email (dated 2 December 2019) appeared in the Claimant Bundle, but it is not clear how this relates to the complaint, given that the Claimant agreed that she worked to goals that were drawn up by reference to the Respondent’s priorities when she was supervised by Mr Evwaraye. (iii) The Respondent says that Mr Evwaraye may have had a different management style to the Claimant’s subsequent line managers, but the Claimant did not lose her autonomy, as she always needed her line manager’s approval for the work plan she operated under, and in any event, any change to the degree of her autonomy came about as a consequence of the Reorganisation rather than on the ground that she had made protected disclosures. (iv) The Tribunal considers that the evidence put forward by the Claimant is insufficient to demonstrate that she experienced any loss of autonomy as part of the Post-Reorganisation Role. Supervision duties (v) The Claimant’s evidence was focused on her loss of supervision of paid sessional workers. She expressed deep discomfort with using volunteers parents to deliver the EPEC programme, and in fact her evidence was that she refused to do so. (vi) The Respondent said that the Claimant did not lose her supervision duties, but rather the people she was to supervise changed from paid sessional workers to parent volunteers. (vii) It is abundantly clear to the Tribunal from the job description of the Post-Reorganisation Role, the notes of her supervision meetings with Mr Collins (the person who line-managed the Claimant after Ms Terry), Mr Collins’ draft work plan for the Claimant, and the EPEC Scaling Programme for the SLAM, that the Claimant was to supervise parent volunteers as part of the EPEC programme (indeed, the requirement for the Claimant to supervise parent volunteers is referred to in several of the “Main duties and responsibilities” in the Post-Reorganisation Role job description). The Post-Reorganisation Role very definitely Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 62 of 161 involved the Claimant supervising other people – it is just that who those people were changed from being paid casual workers to being volunteers.

(viii) Our factual findings mean that Allegation 55 fails. In any event, even if the Claimant’s post-Reorganisation managers had more of their own ideas about the content of the Claimant’s work plan than had been the case when she had been supervised by Mr Evwaraye, the Tribunal finds that was attributable to the Respondent’s commitment to roll out the EPEC programme at pace and the pressure of that roll out being behind schedule. The Claimant has failed to persuade us that any loss of autonomy the Claimant experienced was on the ground that she had made protected disclosures.

[215]The Claimant has offered no evidence in relation to Allegation 56 – that she was removed from the Youth Justice Board Parenting Forum - and so this complaint fails. Ms Jones sent the Claimant two emails on 4 March 2020

[216]Also on 4 March 2020 the Claimant avers that: a) Ms Jones sent two emails written in a hostile tone reprimanding the Claimant for attending a conference and copying her into an email and asking why the Claimant had cc-ed her previous manager. The Claimant asserts that this was less favourable treatment because of race (Allegation 57, issue 11.2.13); and b) She was prevented from attending case conferences, which she says was detriment because she did a protected act (Allegation 58, issue 16.2.10).

[217]In relation to Allegation 57, the Respondent says the emails were not written in a hostile tone, though some of the comments were “direct” (as accepted by Ms Jones).

[218]The Tribunal has viewed the two emails. The first was sent by Ms Jones at 18:57. It is lengthy, and so we do not quote it here, but the Tribunal does not consider it to be hostile in tone. The second, sent at 19:36, is much more pointed. We find it was hostile, notably the following remarks: a) “As a general rule, any concerns or workplace issues should be raised in the first instance with your line manager. Please ensure you adhere to this requirement in the future… As an exception to the general rule and as I am going to be meeting with you, I am responding to your e-mail”; and b) “The restructure was not ‘mis-sold’ and I am disappointed you do not appear to have accepted what was a necessary re-organisation.”

[219]The next point of factual enquiry for us is to consider whether the Claimant was treated worse than someone else in materially the same circumstances was treated. The Claimant has identified Sue Kale, a white parenting officer, as her comparator, but has offered no evidence of how Ms Kale was treated by Ms Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 63 of 161 Jones at all, whether in these kind of communications or otherwise. We therefore proceed to consider the treatment of a hypothetical comparator.

[220]The Claimant has not offered any evidence that she was prevented from attending case conferences, and so Allegation 58 cannot succeed. The second averred protected disclosure, 17 March 2020

[221]On 17 March 2020 the Claimant reported concerns to the Respondent’s then-Chief Executive, Ged Curran, about improper decisions (Disclosure 4, issue 5.1.3). The Respondent accepts this was a protected disclosure. That report also complained about the length of time it was taking the Respondent to respond to Grievance 1.

[222]On 11 May 2020, Louise Round of the South London Legal Partnership (the Respondent’s legal adviser) wrote to the Claimant in response to her 17 March 2020 complaint to Mr Curran. That included a section which replied to the Claimant’s dissatisfaction about the time it was taking for her to receive an outcome to Grievance 1. Ms Round wrote: “I understand that problems in coordinating diaries, illness and the Christmas break meant it took some time for the initial meetings to take place but there have now been two meetings… However, you have not yet been sent confirmation of his findings. I agree that ideally this grievance would have been dealt with more quickly… I have been in contact with Mr McGinlay and he has given me an assurance that you will receive a full response no later than the end of May.” The Claimant says she sought re-evaluation of her Post-Reorganisation Role, May 2020

[223]The Claimant alleges that in May 2020 her line manager, Ms Terry, and the Respondent’s Human Resources team, refused her request for her Post-Reorganisation Role to be reviewed or re-evaluated, which she avers was less favourable treatment because of race (Allegation 59, issue 11.2.18).

[224]The Claimant offered no evidence of having asked for a re-evaluation at this time, but in any event, the correspondence from the Respondent at the time of her Reorganisation appeal outcome letter from Ms Wardell on 13 December 2019, stated: “You do not agree with the grading assigned to the new post. I have sought advice from HR about how this can be taken forward. HR advice is that under the job evaluation procedure staff can only appeal the grading of their post after being in that post for 6 months. Prior to submitting any appeal, the staff member would update their job description with their manager. The agreed updated job description would then be evaluated, and if the individual remained unhappy with the evaluation, they could then appeal.”

[225]We find this allegation fails because the Claimant has provided no evidence that she sought re-evaluation at this time. Moreover, even if it was refused, this would be consistent with the Respondent’s policy applicable to all, and so there would be no suggestion that the Claimant would have suffered any less favourable treatment than the treatment that was or would have been meted out to any comparator in this regard. Allegation 59 fails. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 64 of 161 The Claimant commences a period of ill health absence from work

[226]The Claimant began a period of sickness absence on 15 May, and returned to work on 1 October, 2020. The Claimant sent evidence relating to Grievance 1 to Mr McGinley

[227]On 26 May 2020 the Claimant sent supporting evidence for Grievance 1 to Mr McGinlay. An OH referral is made in respect of the Claimant, June 2020

[228]A referral was made to OH in respect of the Claimant in June 2020. Complaints relating to events on 2 July 2020

[229]The Claimant avers that on 2 July 2020 she was subjected to the following detriments on the ground that she had made a protected disclosure: a) Her supervision status for paid sessional workers was removed (Allegation 60, issue 6.1.3); and b) Ruth Hearty was given the responsibility for supervising paid sessional staff (Allegation 61, issue 6.1.17).

[230]The Respondent agrees that the Claimant’s Post-Reorganisation Role did not include supervision of paid sessional workers, but says this change took effect from 3 February 2020 rather than 2 July 2020, and that it was a consequence of the Reorganisation and the change to the Claimant’s role, rather than because she had made a protected disclosure.

[231]The Respondent also agrees that Ms Hearty was given the responsibility for supervising some paid sessional staff, but again says that this assignment to Ms Hearty was not a detriment to the Claimant on the ground that she had made a protected disclosure.

[232]Was the Claimant’s responsibility to supervise paid sessional workers removed on the ground that she had made a protected disclosure? (Allegation 60) a) Ms Jones’ evidence was that:(i) The EPEC model being rolled-out across the SLAM involved the use of volunteer parents delivering the programme – this was not a model that the Respondent had itself designed; and

(ii) If the Claimant had not been assimilated into the Post-Reorganisation Role (or the other role identified for her and MK as part of the assimilation process) the Claimant would likely have been dismissed as redundant, as her Pre-Reorganisation Role ceased to exist. b) The Tribunal finds that it was the particular EPEC model adopted by the Respondent – the Scaling Programme document to which the Tribunal was taken to in evidence by the Claimant – that identified the parents who were to deliver the EPEC training as volunteers. The fact that the Post-Reorganisation Role provided for the post-holder to supervise volunteers was a consequence of that design. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 65 of 161 c) We have already found that the Claimant’s Pre-Reorganisation Role (which was part of the TF team) was not removed because the Claimant made a protected disclosure (Allegation 24), but rather as a consequence of the Reorganisation. d) Furthermore, the detriment the Claimant described in her evidence to the Tribunal was the loss of her supervisory status. She said in evidence: “I was demoted… all my senior status to supervise sessionals, oversee the programmes, that was all removed from me”. However, the Post-Reorganisation Role provided for her to supervise the volunteers that the Respondent wished her to use to deliver EPEC training to other parents. The reason the Claimant ceased to supervise others was because she refused to use volunteers to roll-out the training programme, not because she had lost the status as supervisor. Any detriment the Claimant suffered in the loss of her supervision status was because of a choice she made (which she regards as a moral choice), it was not a detriment imposed on her by the Respondent.

[233]Was Ms Hearty given the responsibility to supervise paid sessional staff on the ground that the Claimant made a protected disclosure? (Allegation 61) a) As for Allegation 60, the Tribunal finds that the reason the supervision of paid sessional staff was assigned to others (Ms Hearty among them) was because of the change in the Claimant’s role. The Claimant’s Post-Reorganisation Role was EPEC-specific, and the EPEC model rolled out by the Respondent (set by the SLAM) used volunteer parent group leaders. The Claimant has not demonstrated that the re-assignment of the paid sessional workers she supervised in her Pre-Reorganisation Role to Ms Hearty was done on the ground that she made a protected disclosure, and evidence is before the Tribunal that the Claimant’s Post-Reorganisation Role involved the recruitment and supervision of volunteers. Consequently, Allegation 61 does not succeed.

[234]The Claimant also says that on this date she was informed that Ms Hearty would take over parenting sessions that the Claimant had previously been responsible for supervising, which she says was direct discrimination on the ground of race (Allegation 62, issue 11.2.14).

[235]The Respondent agrees that Ms Hearty took over supervising some of the paid sessional workers the Claimant had previously supervised, but says this was a consequence of the Claimant’s change of role, and not influenced by race. This is considered in the Analysis section below. The Claimant presented her Second Claim to the Employment Tribunal, 5 July 2020

[236]The Claimant presented her Second Claim to the Employment Tribunal on 5 July 2020, which the Respondent accepts was a protected act (PA 14). Ms Terry discusses the Respondent’s long-term absence review procedure with the Claimant, 6 July 2020

[237]On the following day, 6 July 2020, the Claimant says that Ms Terry informed her that the Respondent’s sickness absence procedure had been triggered, which the Claimant says was discrimination arising from disability, i.e., that her Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 66 of 161 absences from work arose in consequence of her disability, and by commencing the absence procedure Ms Terry/the Respondent had subjected the Claimant to unfavourable treatment (Allegation 63, issue 13.1.2).

[238]The Claimant was absent from work at this time, and had been since 15 May 2020.

[239]When cross-examining Ms Terry, the Claimant suggested that this discussion in fact took place when she returned to work after her sick leave, and Ms Terry agreed that they met on 13 October 2020. Ms Terry could not recall them meeting on 6 July 2020. It therefore seems that the allegation has been incorrectly dated, and the Tribunal therefore proceeded to assess that allegation as if it related to the meeting the parties agree took place on 13 October 2020.

[240]Ms Terry says as part of that 13 October 2020 meeting they discussed whether the Claimant was fit to return to work, in line with the Respondent’s standard procedures when a person has been on lengthy sick leave. She (Ms Terry) said that the Respondent has a template that is designed to be used by managers to record the relevant information, and that there are sub-headings within that template that act as an ‘aide memoire’ so that all the relevant material is covered in the meeting. Ms Terry said that she recalled saying in that meeting that the Claimant’s absence had met the trigger point for long-term absence review or monitoring, but that she took the view that engaging that procedure would have a detrimental impact on the Claimant’s wellbeing, and so she informed the Claimant that she would not be starting that procedure.

[241]Ms Terry was adamant that the long-term absence procedure was not started for the Claimant, and the Claimant offered no evidence – besides her say-so – that it was. The Claimant appeared to accept Ms Terry’s explanation, because her cross-examination then moved on to talk about her return from work from a later period of long-term absence in March 2021.

[242]We prefer Ms Terry’s evidence on this point for two reasons: a) Ms Terry’s evidence was far more cogent on this point than the Claimant’s – suggesting an alternative date at which the discussion than the date identified by the Claimant in the list of issues, and the Claimant agreed with Ms Terry’s correction; and b) If the Respondent had triggered a long-term absence review procedure, we would expect there to be an email or letter informing the Claimant of that fact, setting out the expectations of the Respondent as to the Claimant’s attendance and specifying the time period over which attendance would be subject to the procedure. Despite there being nearly 8,500 pages of evidence before the Tribunal we have been taken to no such correspondence.

[243]Therefore we find that Ms Terry did not inform the Claimant, whether on 6 July 2020 or in October 2020, that the Respondent’s sickness absence procedure had been triggered, and so Allegation 63 fails. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 67 of 161 10 July 2020 OH report

[244]On 10 July 2020 an OH report was produced in respect of the Claimant. This concluded that she was not fit for work and did not state when the Claimant was expected to be fit to return, but offered indicative advice about possible reasonable adjustments, being: a) The provision of an on-site staff canteen; b) The provision of a workplace location near to food shops; or c) The provision of a workplace location near to a chemist. The Claimant chases, and then is given, the outcome of Grievance 1, 31 July 2020

[245]On 31 July 2020: a) The Claimant emailed Mr Curran at 15:34, informing him that her mental health was in a very poor state, chasing the outcome of Grievance 1; and b) Mr McGinlay emailed the Claimant shortly after that time, informing her of the outcome of Grievance 1.

[246]Mr McGinlay set out in that outcome letter his understanding that the Claimant’s complaints (or those that were not already being dealt with by other processes, as her complaint about the deletion of her Pre-Reorganisation Role was the subject of an appeal by the Claimant from Ms Wardell’s decision) concerned two matters: a) An allegation that black staff were being treated differently to white staff; and b) An allegation that Ms Evans inappropriately dealt with a staffing matter raised by the Claimant as a trade union representative (namely, JT and VP’s undisclosed relationship), and that the Claimant believed she had been ostracised by the team as a result of Ms Evans’ handling of that situation.

[247]Mr McGinlay did not uphold either of those complaints, but he enclosed his Grievance Response report, which included a postscript, exerts of which are set out below: “I would add a postscript. Black Lives Matter has, in very recent times, become a rallying call for racial equality to be taken seriously and that we all, as individuals and as corporate bodies, must step up to the plate and address this matter. It is important that the Council not only addresses this rallying call but that it is seen to be doing it… A number of issues raised by Sherine followed staff procedures correctly but they may, unintentionally, perpetuate discriminatory practices by not opening up opportunities to a wider selection process and I would encourage the Council, under the stewardship of the BAME staff forum, help to identify where such practices actually exist and seek to amend them if required…”.

[248]The Claimant says that Mr McGinlay: a) failed to properly address Grievance 1 in the period 9 January 2020 to 31 July 2020; and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 68 of 161 b) failed to deliver an appropriate outcome to Grievance 1, which she says was less favourable treatment because of race (Allegation 64, issue 11.2.10).

[249]It was apparent from the Claimant’s questions to Mr McGinlay and her submissions that the first part of this complaint centres on the delay in receiving a conclusion to Grievance 1 in the period 9 January 2020 to 31 July 2020. (The Claimant raised Grievance 1 on 31 October 2019, but the significance of 9 January 2020 is that was the first time she and Mr McGinlay met to discuss her complaints.)

[250]While, on the face of it, the length of time it took to determine Grievance 1 seems extraordinary, in fact there is some explanation for the long passage of time: a) The Claimant does not complain about the period 31 October 2019 to 8 January 2020, i.e., the period before she and Mr McGinlay met to discuss Grievance 1 (and that period seems to have been equally challenging as regards the Claimant’s availability as for Mr McGinlay’s); b) From 9 January 2020 to 13 February 2020, Mr McGinlay and the Claimant struggled to get ‘diaries to work’ to enable a further meeting which Mr McGinlay considered necessary to discuss Grievance 1. The need for the second meeting is unsurprising to the Tribunal, given the length and lack of clarity in the terms of Grievance 1; c) The Claimant conceded in the course of the hearing that she is not complaining of the delay in receiving an outcome to Grievance 1 until 11 May 2020, when she was sent a letter from Ms Round (the Respondent’s lawyer) which indicated that the outcome would be sent to the Claimant by the end of May 2020; d) The parties agree that, at the conclusion of the second meeting between the Claimant and Mr McGinlay on 13 February 2020, the Claimant asked to be permitted to send Mr McGinlay some further evidence, which permission was given. Unfortunately, the Claimant did not in fact send that evidence until 26 May 2020. The Tribunal accepts that Mr McGinlay had been asked by the Claimant to consider those documents, and so it is reasonable that he did not respond to Grievance 1 in the period 13 February to 26 May 2020; e) When the Claimant did send the promised further documentation, it amounted to 26 pages of parts of documents and WhatsApp chats embodied in a Word document. There were 48 working days between 26 May and 31 July 2020. This is not a short period of time for someone awaiting a grievance outcome, but the passage of some of that period without being given the outcome is explicable by Mr McGinlay’s need to review the material sent to him by the Claimant, and conduct any further investigation he considered necessary to understand those documents; and f) Mr McGinlay’s evidence was that, as he was investigating three other similar grievances, he progressed those grievances together, so it took Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 69 of 161 longer to move each grievance forward than it would if he had considered them consecutively. His written evidence to the Tribunal was that: “I treated each [grievance] independently but did consider it appropriate to… conclude my investigations into all of them to determine if there were any common themes or conclusions” – an approach which seems sensible to the Tribunal in light of the Claimant’s allegations of widespread racism in the Respondent’s organisation. In fact, he said that he concluded the Claimant’s grievance before the others, but this would have accounted for some of the time gap between 26 May and 31 July.

[251]In light of the above facts, the Tribunal does not consider that the factual premise of the first part of the Claimant’s Allegation 64 complaint is made out – there was not a failure to properly address Grievance 1 in the period about which she complains. The initial delay the Claimant herself agreed was down to both parties, and the period about which she is concerned – 11 May to 31 July – is explained by the Claimant’s delay in sending Mr McGinlay material he needed to consider, then his consideration of that material, and his not unreasonable approach of progressing the four grievances he was considering together.

[252]As for the second part of Allegation 64 - that Mr McGinlay failed to deliver an appropriate outcome - the Claimant simply did not question Mr McGinlay about that. Rather, the Claimant seemed to interpret his postscript as contradicting the outcome of Grievance 1, which it does not. The postscript focuses on wider policies and practices than Mr McGinlay understood to the complaints in Grievance 1, and he did not look into those policies and practices as they were outside of that remit. Mr McGinlay’s postscript expressed a hope and ambition that the Respondent would examine those policies and practices in light of the sentiments expressed by the Claimant that they contributed to continuing structural race-based inequalities within the Respondent’s workforce. Mr McGinlay did not express a view about whether those sentiments were justified.

[253]The focus of the Claimant’s questions to Mr McGinlay was whether his qualifications, training and experience meant he was a suitable person to hear Grievance 1 at all, but that had no direct bearing on her complaints involving Grievance 1 or him. The Claimant’s witness statement focuses on the delayed outcome to Grievance 1, and while it describes that Grievance 1 was not upheld, it does not appear to complain about it.

[254]The Claimant has not – either in her written or oral evidence, or in her cross-examination of Mr McGinley – sought to establish facts from which the Tribunal can conclude that Grievance 1 failed to deliver an appropriate outcome.

[255]Consequently, Allegation 64 fails.

[256]We also consider here Allegation 23 – that the Respondent delayed dealing with Grievance 1 because of something arising out the Claimant’s disability, namely that she “thinks differently”, and that this was unfavourable treatment because of something arising in consequence of her disability, contrary to section 15 of the 2010 Act. As set out above, we think that the lengthy period of time it took for the Claimant to receive a conclusion on Grievance 1 is explicable by the fact pattern described above. Moreover, Mr McGinlay was Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 70 of 161 effectively performing two jobs for the Respondent at the time, and he said at the outset when he was asked to investigate the grievances that he was very time poor, and that could impact the time he delivered grievance outcomes. In addition, the Covid-19 pandemic began during this time period, and Mr McGinlay’s work was significantly affected by that.

[257]The Claimant failed to put any kind of case to the Tribunal that the delay was attributable to the fact that she “thinks differently”. This allegation is not supported by the facts, and alternative reasons for the apparently lengthy time gap between her raising Grievance 1 and it being answered are persuasive. We find that Allegation 23 is not made out. The Claimant avers the Respondent took away her core meaningful work, 31 July 2020

[258]The Claimant avers that, also on 31 July 2020, the Respondent took away the Claimant’s core meaningful work, which she says was victimisation for having done a protected act (Allegation 65, issue 16.2.5).

[259]The Claimant has proffered no evidence whatsoever – not even a bare assertion – that there was any change to her work that occurred on this date, and so this complaint is not made out on the facts. The Claimant says Ms Terry refused her request for re-evaluation of her Post-Reorganisation Role, August 2020

[260]The Claimant alleges that in August 2020 her line manager, Ms Terry, and HR refused her request for her Post-Reorganisation Role to be review or re-evaluated, which she avers was less favourable treatment because of race (Allegation 66, issue 11.2.18).

[261]The Claimant has not pointed to any evidence of her having made this request, or that it was refused, so this complaint fails. The Claimant’s appeal against the outcome of Grievance 1

[262]The Claimant appealed Mr McGinlay’s conclusion on Grievance 1 on 12 August 2020 (in a ten page letter), and an appeal meeting was held with Ms Doody on 5 October 2020.

[263]The following day, on 6 October 2020, the Claimant sent further information (running to 20 pages of text with embedded documents, messages, extracts, etc.) in support of her appeal against the outcome of Grievance 1, to Ms Doody. The Claimant avers she was “set up to fail”, 6 October 2020

[264]Also on 6 October 2020, the Claimant says: a) She was set up to fail because of three management changes and different management instructions. The Claimant cited 6 October 2020 in connection with this allegation, as well as 3 February 2020, 4 March 2020, 20 January 2021 and 31 March 2021. She said these destabilised her, and that they were a detriment on the ground that she had made a protected disclosure (part of Allegation 47, issue 6.1.7); and b) She experienced a further change in line manager (she says she was assigned to five different managers in 12 months), which she was a Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 71 of 161 detriment done because she did a protected act, contrary to section 27 of the 2010 Act (part of Allegation 25, issue 16.2.4).

[265]The evidence before the Tribunal is that Claimant did not experience a change of line manager on 6 October 2020, but rather that the Claimant’s line manager from around 5 March 2020 to 18 November 2020 was Ms Terry. No instruction(s) issued to the Claimant on this date have been cited to the Tribunal, so we find there was no new management instruction given to the Claimant by the Respondent on this date.

[266](Allegations 47 and 25 are considered more fully in the part of the chronology dealing with the last date cited, once the full factual picture they rely on has been determined.) The Claimant experienced an issue with her parking arrangements at the Civic Centre, 6 October 2020

[267]The Claimant contends that, on 6 October 2020, the Respondent removed her designated car parking in the Civic Centre, despite the Claimant’s mobility issues, which she says was a detriment on the ground that she had made a protected disclosure (Allegation 67, issue 6.1.11).

[268]The Tribunal heard various pieces of evidence relevant to this Allegation: a) The Claimant agreed that she did not have designated car parking bay in the Civic Centre, but rather clarified that she had a designated pass to park in the Civic Centre car park which was removed on this date. b) Mr Afonso, the Respondent’s Contracts & Security Manager at the time of the parking-related events the Claimant complains of, gave evidence to the effect that:(i) Access to the Civic Centre car park was controlled both automatically and manually. The car park technology would scan the number plate of a car waiting at the barrier, and it would lift automatically if the registration of the vehicle was pre-approved and recorded in the system as an authorised vehicle. If the vehicle was not pre-approved, the driver would need to speak to a member of the security staff via the intercom, and the security staff would determine if that person was authorised to park, depending on the reason for the visit and the availability of spaces.

(ii) No driver was ever refused entry to the car park, because the position of the car park entrance meant that to do so would require the driver to reverse their vehicle onto the main road which would have been dangerous. Therefore, even if the person was refused permission to park, security would allow the vehicle to enter the car park so as to turn around.

(iii) When a licence plate was logged into the car park’s system as one for which the driver was to be given automatic entry to the car park, that pass would remain active for a set period before it Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 72 of 161 expired. In the case of people with permission to park linked to an OH report, the period before their pass would expire would depend on the terms of the OH report, and how long the parking arrangement was said to be needed.

(iv) That automatic number plate recognition system was not set so as to issue reminders when an authorisation was approaching expiry – the driver in question would simply find that their number plate was not recognised, and they would need to engage with Security and/or their line manager about renewal.

(v) The renewal process for people whose disability meant that they needed parking required either: (I) evidence that they had a blue badge, or (II) an OH report showing that parking was needed. In the latter case, the Assistant Director would review the OH report for the individual and make the decision as to whether their vehicle would be permitted to use the disabled parking bays.

(vi) Save for the Mayor and Leader of the Council, who did have designated parking bays, no individual had a designated space, but there were a certain number of spaces allocated to different groups. c) Richard Howell, who worked at the Respondent’s Civic Centre in its security team between April 2020 and March 2024, provided his evidence in the form of a written witness statement. Neither the Claimant nor the Panel felt the need to cross-examine Mr Howell, so his written statement stands unchallenged. That says (on the points in issue here) that, since he first started working in the Civic Centre in April 2020: (i) The car park at the Civic Centre has only 59 spaces, while the building can hold up to 1,200 people. (ii) In 2020-2021, only 75 permits were issued for the Civic Centre car park. (iii) Of the 59 spaces, five were reserved disabled spaces, which were not reserved to particular vehicles. He, like Mr Afonso, says that permission to park in the disabled spaces is reserved to those with a blue badge or where the Assistant Director has given approval following an OH report saying that disabled access should be granted. (iv) The disabled spaces are available on a first come, first served basis, and when those are full, a person with disabled access permission would be allowed to park all day in a one hour bay if there was a bay free. (v) The automatic number plate recognition entry permits lapse after one year, and a new permit is needed, but where a person’s permission has been approved by the Assistant Director following a suitable OH report, the permission will not be renewed until both a new updating OH report is provided and the Assistant Director has given his approval. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 73 of 161

[269]Mr Afonso gave evidence that the Claimant’s pass had not been deactivated by anyone’s instruction in October 2020, but rather it had expired, because the Respondent was unaware that the Claimant was a blue badge holder, and therefore her permission was tied to her OH report. In order to reactivate it, the Respondent considered (because it was unaware that she was a blue badge holder) that the Claimant needed to provide an OH report, and for the Assistant Director to review that and approve her vehicle registration being given automatic entry into the car park and for her to be a recognised user of the disabled parking bays.

[270]The Claimant did not challenge Mr Afonso’s evidence. Indeed, she concluded her cross-examination of Mr Afonso by thanking him for his evidence, saying “That’s put my mind at rest that nothing wrong was at play”. However, when asked whether she wished to withdraw her allegations relating to parking matters, the Claimant said she did not.

[271]The Claimant had been absent from work due to ill health in the period 15 May 2020 to 1 October 2020, and that had been preceded by the national Covid-19 lockdown from 23 March 2020. Therefore, when she attempted to enter the Civic Centre car park on 6 October 2020, she had not done so for more than six months.

[272]The Claimant accepted Mr Afonso’s evidence. The Tribunal agrees that it is cogent, and corroborated by Mr Howell’s unchallenged evidence of the Respondent’s processes regarding car parking at the Civic Centre. The Tribunal therefore finds that the Claimant’s designated car parking was not removed, and its expiry was not on the ground that she had made a protected disclosure, it had simply expired with time and needed renewal. Allegation 67 therefore fails.

[273]The Claimant also cites this car parking incident as part of other complaints. The Claimant alleges that: a) From October to November 2020 the Respondent locked her out of the car park at the Civic Centre and removed her staff badge/number plate recognition/blocked her staff card access (Allegation 68, issue15.1.1 ); b) On a date not specified but falling within the period October to November 2020, the Respondent assigned the Claimant a one-hour parking bay in the Civic Centre car park and then put a warning on her car that she had overstayed, and if she did it again she would be banned from the Civic Centre (Allegation 69, issue

15.1.2 ); and c) In this same period, the Respondent subjected her to having to go to and fro and raise disability discrimination before the parking situation was resolved (Allegation 70, issue

15.1.3 ), each of which she says was harassment related to disability.

[274]The Claimant also contends that the Respondent applied a provision, criteria or practice to a group that included the Claimant of limiting parking passes for the Civic Centre to managers and social workers (referred to as PCP 5). The Claimant says that the Respondent failed to make reasonable adjustments to avoid the disadvantage that the application of PCP 5 had for her (Allegation Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 74 of 161 71 , issue 14.2.5 and related issues). However, the unchallenged evidence of Mr Afonso and Mr Howell is that no such PCP was applied, and in fact there were spaces allocated for disabled people, as well as for senior members of the Respondent’s management and other groups. Allegation 71 therefore fails.

[275]For the same reasons that the Tribunal found that the Respondent did not remove the Claimant’s designated parking, we also find that the Respondent was not locked out of the car park at the Civic Centre (which relates to part of Allegation 68 – that the Respondent removed her number plate recognition).

[276]Moreover, Mr Afonso’s evidence, accepted by the Claimant, was that staff use “swipe cards” to access the building, and those were controlled by a central computer system which rescinded permissions after a period of non-use, and it did so without warning. This, he said, was a security measure which applied to all staff, and cards could be re-activated by contacting a member of Mr Afonso’s team. Again, this unchallenged evidence means that the remaining part of Allegation 68 (that the Respondent removed her staff badge/blocker her staff card access) fails.

[277]As for Allegation 69, Mr Afonso was not aware of the Claimant being assigned to a one-hour parking bay at some time in the period October to November 2020, nor that a warning had been placed on her car in the terms she asserts, but he did not dispute that it occurred. His evidence was that the printed piece of paper placed on cars which over-stayed their one-hour slot in the one-hour bays did not warn the driver that they would be banned, but did warn that the vehicle would be banned upon a further breach.

[278]In relation to Allegation 70, it was accepted by the Respondent that when the issues with the parking arose, they were resolved by the Claimant complaining about them, and Ms Terry writing some emails supporting the Claimant’s need to be able to park at the Civic Centre due to her disabilities.

[279]As for Allegation 71, the evidence of Mr Afonso and Mr Howell on the allocation of car parking spaces in the Respondent’s Civic Centre car park was accepted by the Claimant, and that evidence was clear that spaces were only designated for two specific individuals, being the Mayor and the Leader of the Council, and that a limited number of parking spaces were designated for pools of individuals, namely external leaseholders, disabled drivers, traffic enforcement vehicles, electric cars, one-hour bays and a skip. Their evidence was clear, and unchallenged, that alleged PCP 5 was not applied – the Respondent did not limit parking passes for the Civic Centre to managers and social workers, and so Allegation 71 fails. Stress risk assessment conducted on the Claimant, 13 October 2020

[280]Also on 13 October 2020 the Claimant met with Ms Terry and Mr Collins to conduct a stress risk assessment. The Claimant contends that Ms Terry failed to act on the findings of that assessment on 3 and 12 March 2021, which she says was less favourable treatment because of disability (Allegation 72, issue 10.2.5). Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 75 of 161

[281]The Claimant did not put this allegation to Ms Terry when cross-examining her (and Ms Terry, in her witness statement, denies this allegation), and nor has the Claimant referred to this allegation in her witness statement.

[282]The Tribunal took it upon itself to look at the stress risk assessment in the Claimant Bundle from this date. The evidence before us was that a number of the action items in that risk assessment were being actioned by the Respondent, namely: a) There was an action item to allow the Claimant flexible working – which the Claimant agreed in another part of her evidence was in place (she was permitted to start work at 10am); b) The Respondent was to review the Claimant’s safeguarding training – the Claimant was given safeguarding training regarding early years on 30 June 2021 according to Ms Jones’ witness statement; c) The Respondent was to develop a work plan for the Claimant – the evidence from the Claimant and from Mr Collins was that she and Mr Collins discussed her work plan; and d) The Respondent was to support the Claimant to use her skillset – the evidence before the Tribunal is that Mr Collins encouraged the Claimant to get the EPEC programme off the ground.

[283]We find that the Respondent did act on the findings of the stress risk assessment, and so this part Allegation 72 fails. The requirement to recruit volunteers rather than paid Sessionals, 13 October 2020

[284]The Claimant avers that on the same date, 13 October 2020, the Respondent assigned Ms Hearty to recruit paid Sessionals whilst setting up the Claimant to fail by assigning her to recruit volunteers without the same resources (Allegation 73, issue 11.2.19).

[285]The Respondent does not dispute that Ms Hearty was assigned to recruit paid Sessionals, but it does dispute that the Claimant was set up to fail, including by assigning her to recruit volunteers. The Respondent’s evidence is that the fact that the Claimant was expected to recruit volunteers was attributable to her Post-Reorganisation Role, because the EPEC model envisaged the use of volunteer parents to train other parents.

[286]The Claimant, in relation to a different issue, took the Tribunal to evidence of the SLAM scaling programme, which envisaged 16 EPEC hubs across the Trust, each of which was expected to be “staffed by a part-time Hub co-ordinator who will recruit and supervise a cohort of 12 volunteer EPEC parent group leaders”. It is clear from this that the Respondent’s expectation that its EPEC Coordinator recruit volunteer parents to deliver the EPEC programme had nothing whatsoever to do with race, but was part of that programme. The Respondent did not set the Claimant up to fail by assigning her to recruit volunteers – that was the expectation of the SLAM-wide roll-out of the EPEC programme, and was nothing specific to the Claimant. Allegation 73 therefore fails. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 76 of 161 The outcome of the Claimant’s appeal against Grievance 1 is determined, 14 October 2020

[287]Ms Doody wrote to the Claimant on 14 October 2020 with the outcome of her appeal against Mr McGinlay’s decision on Grievance 1 – that appeal was not upheld. The Claimant avers that that rejection, together with what she says was Ms Doody ignoring substantial supporting documents the Claimant had provided), was direct race discrimination (Allegation 74, issue 11.2.15). Ms Doody disagrees on both counts. Ignoring substantial supporting documents

[288]Ms Doody’s evidence to the Tribunal was that she considered: “everything that was relevant to Ms Thompson’s appeal. Where I did not take into account anything in particular, the reason was that I did not consider it to be relevant to the appeal points which I was considering. My views on what I considered to be irrelevant was not in any way based on or because of Ms Thompson’s race or the race of any person – it was purely due to my view of the relevance of the information/material”.

[289]The Claimant did not take Ms Doody to any of the documents which the Claimant submitted to her to ask Ms Doody if they were, or were not, considered by her. The Claimant’s witness statement indicates that the reason the Claimant believes Ms Doody ignored substantial supporting documents is that she does not consider that Ms Doody could have come to the conclusions that she did without ignoring the evidence the Claimant provided to her – but the Claimant has not taken the Tribunal to that evidence, or explained how the material was relevant to her grounds of appeal.

[290]Moreover, the documents the Claimant’s written statement refer to as having been ignored by Ms Doody relate to the allegations she made that the judgement of Ms Wardell and Ms Evans was impaired by reason of conflicts of interest that the Claimant perceived them as having. Ms Wardell’s judgement was relevant to the Claimant because of her involvement in the decision to implement the Reorganisation in the way it was implemented, and she presided over the Claimant’s appeal against the Reorganisation outcome for her. Ms Evans’s judgement was relevant to her role as part-architect of the structure of the Reorganisation, and her handling of matters involving the Claimant and JT. However, Ms Doody said that: a) She was not reconsidering the Reorganisation outcome for the Claimant, given that appeal (heard by Ms Wardell) had already been determined and there was no further right of appeal; b) The allegations relating to Ms Evans’ conflict of interest were already the subject of a separate investigation prompted by the Claimant’s whistleblowing report (PA 7), and the Grievance Appeal would not duplicate that process.

[291]Therefore we find that Ms Doody did ignore substantial parts of the evidence the Claimant presented, but she did so on the basis that the function of the grievance appeal process was not to re-run or duplicate other Respondent procedures. We accept her evidence, which accords with the content of the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 77 of 161 Grievance Appeal outcome letter to the Claimant, that where she did not take documents submitted by the Claimant into account the reason was that she did not consider it relevant to the appeal points she was considering. Whether that amounted to direct race discrimination is considered in the Analysis section below. Rejecting the appeal

[292]The Respondent agrees that Ms Doody rejected the Claimant’s appeal against Grievance 1, but says that she did so for the reasons set out in her letter to the Claimant at the time, namely: a) That there was no evidence to suggest that the choice of who was sent on the AMBIT training was based on ethnicity, and in any event the Claimant attended it and so suffered no detriment; and b) As regards the Claimant’s complaint that Ms Evans identified the Claimant as the person who complained about JT and VP’s relationship, Ms Doody noted that Ms Evans did not deal with that situation well and that led to the Claimant being vulnerable, however, she found that was not because of the Claimant’s position as a trade union representative. Ms Doody considered this came about because it was a difficult situation that spiralled due to insensitive handling.

[293]We read and heard evidence from Ms Doody, and had the benefit of the Claimant’s cross-examination of her. Ms Doody acknowledged where the Respondent had not responded perfectly (e.g., Ms Evans’ handling of the personal relationship matter), and in cross-examination responded honestly to the Claimant’s question of whether she believed that the Claimant had experienced microaggressions (“I can’t sit here and say you didn’t experience that, but I didn’t witness it. If I had, I would have called those behaviours out”). We find that the reasons she rejected the Claimant’s appeal were the reasons she gave.

[294]Whether this part of Allegation 74 constituted direct race discrimination is also considered in the Analysis section below. The Claimant says her line manager refused her request for re-evaluation of her Post-Reorganisation Role, November 2020

[295]The Claimant says that, in November 2020, her line manager and HR refused her request for her Post-Reorganisation Role to be reviewed or re-evaluated, which she avers was less favourable treatment because of race (Allegation 75, issue 11.2.18).

[296]The Claimant failed to take us to relevant documents to demonstrate this allegation, or to raise this with either Ms Terry or Mr Collins (there was a handover between Ms Terry and Mr Collins of line management of the Claimant in this month) in cross-examination.

[297]The Tribunal can see, from the documentation referred to in Mr Collins’ witness statement, that the Claimant asked Mr Collins about her role being regraded, because Mr Collins made enquiries of the Respondent’s Human Resources team about the process on 24 November 2020. Mr Collins asked the Claimant, on 15 January 2021, for evidence relevant to the re-evaluation of her role, and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 78 of 161 the Claimant provided it , on 19 January 2021. We have not been taken to any evidence that he, or the Respondent’s HR team, refused that request. We do not even know if it was submitted, or if the Claimant sought to submit it.

[298]The factual premise that the Claimant’s line manager and HR refused her request for her Post-Reorganisation Role to be reviewed or re-evaluated is not made out, and so Allegation 75 cannot succeed. The Claimant regained parking rights in the Civic Centre car park, 3 November 2020

[299]The Claimant was re-issued with a parking permit to park in the Respondent’s Civic Centre car park on 3 November 2020. Allegations pertaining to 11 November 2020

[300]The Claimant avers that on 11 November 2020 she was subjected to the following detriments on the ground that she had made a protected disclosure: a) Her supervision status for paid sessional workers was removed (Allegation 76, issue 6.1.3); and b) Her systemic therapy course was interrupted (Allegation 77, issue 6.1.4).

[301]The Claimant also says that on this date the Respondent assigned Ms Hearty to recruit paid Sessionals whilst setting her up to fail by assigning her to recruit volunteers without the same resources, which the Claimant posits was direct discrimination (Allegation 78, issue 11.2.19).

[302]The Claimant has pointed to no evidence of any change to her job role that occurred on 11 November 2020. Rather, it appears that her supervisory duties for paid Sessionals ended when her role changed at the time of the Restructure, i.e., 3 February 2020. As noted above, the Tribunal has been taken to the SLAM scaling programme document by the Claimant, and that document makes it plain that, across the 16 EPEC hubs that were to be set up in the SLAM’s remit, each EPEC co-ordinator was expected to recruit volunteer parents to deliver the training to other parents. This was not something particular to the Claimant, or on the ground that she had made a protected disclosure, or because of race. The removal of the Claimant’s supervisory responsibilities for paid Sessionals was a consequence of the change to her job. Allegations 76 and 78 therefore do not succeed.

[303]The Tribunal has been shown no evidence by the Claimant that her systemic therapy course was interrupted, at this time or any other, and so Allegation 77 does not succeed either. The Claimant complains to the Respondent that her being denied access to its car park without warning was disability discrimination, 13 November 2020

[304]The Claimant made a complaint of discrimination based on her disability to Ms Terry and Mr Afonso of the Respondent’s Security team on 13 November 2020, based on her contention that she was denied access to the Respondent’s car park without forewarning. The Claimant presents the Third Claim, 17 November 2020

[305]The Claimant presented the Third Claim on 17 November 2020. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 79 of 161 The Claimant starts to be line managed by Mr Collins, c 19 November 2020

[306]From around 19 November 2020 to 4 March 2021 the Claimant was line managed by Paul Collins. The Respondent advertises for AFS Projects/Groups and Mentoring Sessional Workers, 27 November 2020

[307]On 27 November 2020 Ms Bradley advertised for AFS Projects/Groups and Mentoring Sessional Workers, which the Claimant alleges were her core roles. The Claimant says this was less favourable because of race (Allegation 79, issue 11.2.16).

[308]The Claimant did not make any submissions about this, and her witness statement made references to material in the Claimant Bundle that did not appear relevant to the Tribunal.

[309]Ms Bradley for the Respondent, who did not appear to give oral evidence, has said in her witness statement that the grading of the Mentoring Sessional roles advertised were considerably lower graded than the Claimant’s roles, both the Pre-Reorganisation Role and the Post-Reorganisation Role. Her assertion is supported by copies of the job descriptions which appear in the Claimant Bundle. Those documents show that the Claimant’s Pre-Reorganisation Role was graded ME 11, and her Post-Reorganisation Role was graded ME10. By contrast, the Projects and Mentoring Professionals roles were ME7.

[310]The Tribunal finds that the Projects and Mentoring Professionals roles were not the Claimant’s “core roles”, otherwise her role would have been graded similarly. Allegation 79 therefore does not succeed. The Claimant raises Grievance 2, 17 December 2020

[311]The Claimant raised a further grievance on 17 December 2020 (Grievance 2). This was addressed to Ms Mayhew, as well as to the Head of the Respondent’s Human Resources team. The Respondent’s response to Grievance 2 is not itself the subject of any of the complaints here, so it suffices to say that the Claimant made various complaints of (unspecified) discrimination and victimisation, failure by the Respondent to make reasonable adjustments for the Claimant, unfairness in the Reorganisation process and its disbanding of the TF team, and unethical and, the Claimant averred, unlawful plans to recruit volunteers to replace paid Sessional workers. The Claimant says the Respondent gave her a role outside her skillset, 18 December 2020

[312]The Claimant avers that the Respondent gave her a role outside her skillset, and that that was a detriment imposed on 18 December 2020 (and 8 February 2021, considered below) on the ground that she had done a protected act (Allegation 80, issue 16.2.6).

[313]As noted above, the Claimant said in oral evidence that her skillset and experience was in parenting support, and that she had been using EPEC “for years”. The Claimant considered that the change in the age group of the clients’ children was a significant difference, but the Tribunal has already concluded that that change came about because of the Reorganisation, and the role Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 80 of 161 chosen by the Claimant to be assimilated into. It was not because the Claimant had done a protected act. Allegation 80 therefore cannot succeed. Did Mr Collins interrogate the Claimant about her disabilities in January 2021?

[314]The Claimant alleges that Mr Collins interrogated her about her disabilities and the adjustments required in their supervision meeting in January 2021, instead of actually providing supervision. This, she says, was discrimination arising from disability (Allegation 81, issue 13.1.3).

[315]Again, the Claimant has offered no evidence of this, either in her witness statement or in her cross-examination of Mr Collins. Mr Collins’ evidence in his witness statement denies the allegation, and says that in the January 2021 supervision meeting they discussed general welfare and work matters, such as the EPEC course the Claimant was to run from April 2021, and another programme that the Claimant was to develop. Mr Collins says there was no discussion of reasonable adjustments, and this ties in with the contemporaneous record of that supervision included in the bundles. The factual premise for this complaint is not made out, and so Allegation 81 fails. The events of January 2021

[316]On 19 January 2021 the Claimant provided a document making the case for the re-grading of the Post-Reorganisation Role to Mr Collins.

[317]The Claimant asserts as part of this claim that with effect from 19 January 2021 her core duties were removed, which she regards as a detriment on the ground that she made a protected disclosure (Allegation 82, issue 6.1.8). Although the Claimant did not refer to this herself, Mr Collins’ witness statement directs us to an email from the Claimant on this date in which she wrote: “Due to much of my core tasks of the PEIP Parenting role [the Claimant’s Pre-Reorganisation Role] being removed and now allocated to Ruth Hearty reparation officer, the recent recruitment of ‘paid’ sessionals to deliver parenting of which Ruth Hearty Reparation Coordinator has had my core role duties allocated to her is substantial evidence there was no justified reason for the deletion of my previous role as there is still a requirement for my expert and specialist role of working with parents of young adolescents within the delivery community and specialist programmes of which my role as parenting officer was deleted.”

[318]As noted above, the Tribunal finds that the removal of the Claimant’s supervision of paid sessionals was a consequence of her change of role, not because she had made a protected disclosure. This is effectively the same complaint as Allegation 76 (which allegation relates to 11 November 2020), just two months later. In fact, the Tribunal finds, the change of role took place on 3 February 2020, and was by reason of the Reorganisation rather than because the Claimant had made any disclosures. Allegation 82 therefore does not succeed.

[319]The Claimant also says that the Respondent subjected her to a number of detriments on 20 January 2021 on the ground that she had made a protected disclosure, those detriments being: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 81 of 161 a) The removal of her supervision status for paid sessional work (Allegation 83, issue 6.1.3); b) That she was set up to fail, and destabilised, by three management changes and giving her different management instructions, including on 20 January 2021 (part of Allegation 47, issue 6.1.7); c) That she was prevented from sitting with parenting team for peer and emotional support (Allegation 84, issue 6.1.14); and d) That it declined her interest in being allowed to access DV training and further parenting programme training ‘EPEC, Triple P’ for teenagers, whilst parenting facilitators at a lower grade were allowed access (Allegation 85, issue 6.1.18).

[320]In relation to Allegation 83, as above, we find that the removal of her supervision of paid sessionals occurred because of the Claimant’s role changed, rather than because she made a disclosure (and this role change occurred on 3 February 2020).

[321]As for the part of Allegation 47 that refers to this date, both parties agree that Mr Collins line-managed the Claimant from November 2020 to early March 2021, so there was no change of manager on this date. The Claimant has not pointed to any instruction given to her by Mr Collins on 20 January 2021, although a team meeting took place, the notes of which appear in both bundles. It is not clear if the Claimant, when alleging that she was given different management instructions on this date, is referring to any instruction given in the team meeting, but nor is it for the Tribunal to guess. Consequently, the Tribunal cannot find that there was either a management change nor a change of management instruction on this date.

[322]Allegation 84, that on this date she was prevented from sitting with the parenting team for peer and emotional support, was supported by some limited relevant oral evidence from the Claimant. However, her evidence was that she was told during a meeting held via the Teams platform that Ms Jones had made the decision that Ms Doyle would manage the Claimant’s white colleagues and that they would operate out of the Respondent’s Bond Road site, while the Claimant would work from Steers Mead – and so this appears to be a reference to the initial post-Reorganisation location decision taken by Ms Jones in March 2020, which was the subject of Allegation 54 (referred to above). There has been no evidence offered by the Claimant that she was prevented by the Respondent from sitting with the parenting team in January 2021 – when England went into national lockdown due to Covid-19 – and nor do we find that there was any ongoing forced separation or segregation of the Claimant from her white parenting officer colleagues (noting that Allegation 54 was not made out on the facts), so Allegation 84 fails.

[323]The Claimant did address complaint Allegation 85 – that she was not permitted to undertake DV or Triple P training - in her witness statement, where she says: “I was also overlooked training freedom programme, that I had had previously requested and denied. All parenting practitioners are freedom programme trained except me.” Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 82 of 161

[324]She also questioned Mr Collins (the relevant decision-maker) about access to this training. While he did not agree that he refused her requests to attend this training, he did say that he saw the focus of her role as being the EPEC programme, and he tried to focus the Claimant’s attention on that.

[325]The contemporaneous documents include an email Mr Collins sent to Ms Terry on 21 January 2021, containing a draft reply to an email he had received from the Claimant (though there is no evidence that he in fact sent that email to the Claimant). In that draft he wrote, in response to the Claimant saying that she, unlike colleagues, had not been invited to attend the Triple P training: “My understanding is that your role is EPEC Coordinator, a role which focuses on EPEC and its roll-out in Merton. This is a specific area of work and as such we did not feel it was necessary or appropriate for you to attend the Triple P training. Considering the points raised by you and on reflection, we feel that it is not unreasonable for you to raise this and as such we would support you in training in Triple P or any other parenting programme that you or Merton identify, pending usual considerations around budget etc. With this in mind and to find a way to resolve this issue we would like to offer you the opportunity to be trained in Triple P0-12 parenting programme as a starting point. We can consider further training and development throughout your supervision.”

[326]The Tribunal therefore finds that the Claimant was, initially at least, denied access to at least the Triple P programme.

[327]The next factual issue that falls to be determined is why Mr Collins denied her that access. In response to the question of why asked of him by the Claimant in cross-examination, Mr Collins replied: “You were employed in the EPEC role. The other training you were interested in – freedom training – I recall a conversation with you about the priority being EPEC. Maybe in time we could look at other opportunities. We would generally encourage people to improve their skillset and access training. In a number of areas there were challenges with getting EPEC off the ground – we wanted you to focus on that… The grading of the role you were in, being the Coordinator in the borough, was for building links with other boroughs, whereas the parenting officers were delivering programmes, so their role didn’t involve liaising with other agencies – they were day-to-day delivering programmes… I didn’t have an objection to you being trained in those programmes, but I wanted you to be focused on the launch of EPEC.”

[328]Mr Collins also said, in evidence, that he did not believe that the EPEC programme had ever been run in person, and that the envisaged rolling programme of parents training parents has not happened.

[329]The Tribunal found Mr Collins convincing in his explanation as to why the Claimant was (at least initially) denied access to the Triple P training. Moreover that ties-in with the Respondent’s commitment to the EPEC roll-out, and Ms Jones’ email in December 2019 that, at that point, the EPEC roll-out was behind schedule. The Respondent’s concern that the Claimant focus on EPEC would very likely have been heightened 14 months later when EPEC still had not been rolled out. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 83 of 161

[330]We therefore find that the ground on which the Claimant was (at least initially) denied access to the Triple P training was because the Respondent was concerned to ensure that the Claimant focus on the roll-out of the EPEC programme. It was not on the ground that the Claimant had made a disclosure. Allegation 85 therefore fails. Did Mr Collins interrogate the Claimant about her disabilities in February 2021?

[331]The Claimant alleges that Mr Collins interrogated her about her disabilities and the adjustments required in their supervision in February 2021, instead of actually providing supervision. This, she says, was discrimination arising from disability (Allegation 86, issue 13.1.3).

[332]Again, the Claimant has offered no evidence to support this contention, which Mr Collins denies.

[333]The notes of their February 2021 supervision meeting refer to adjustments being made in response to the Claimant’s Chronic Fatigue Syndrome, and there was some discussion about OH reports regarding the Claimant, but those notes contain no evidence of extensive discussion of the Claimant’s disabilities or reasonable adjustments.

[334]On the evidence before us, we can only conclude that the Claimant has not proven that this took place. Indeed, the Claimant has offered no evidence whatsoever that it did, and so Allegation 86 fails. Was the Claimant prevented from completing her trade union course?

[335]The Claimant also contends that, in the period 1 February 2021 to 22 February 2021, Mr Colins denied her application to complete her trade union course. The Claimant goes on to say that in so doing the Respondent subjected to her a detriment so as to prevent or deter her from taking part in the activities of GMB at an appropriate time, or to penalise her for taking part in GMB activities at an appropriate time (Allegation 87, issue 7.1.3).

[336]There is nothing in the Claimant’s written witness statement about this, and nor was it part of the oral evidence she gave the Tribunal. Mr Collins’ witness statement strongly denies that this occurred, with Mr Collins averring that he is a big supporter of trade union rights, and was a steward of the Unison trade union before his job role meant he could not provide a sufficient commitment to his shop steward role.

[337]In relation to the actual meeting when the Claimant says this denial occurred (the February 2021 supervision meeting), the notes written by Mr Collins in the bundles record the following: “Training: Currently doing: Diploma in Politics and Contemporary unionism… I asked [meaning Mr Collins] who had approved/authorised this training, Sherine [the Claimant] said that Ernest never opposed any training that she did with the union, she said she would send him dates and he would say yes… Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 84 of 161 Paul explained that the policy is that any union activity or training should be requested and this would need to be authorised by line manager, this can be done through itrent and the expectation is that Sherine would follow this procedure.”

[338]The contemporaneous evidence to which we were taken to by the witness statements, oral evidence and submissions, does not support the factual assertion that Mr Collins denied the Claimant’s request to complete her course – he simply asked her to submit the request authorisation for the time away from her usual duties via the Respondent’s relevant time management system – Allegation 87 does not succeed. Complaints pertaining to 1 February 2021

[339]On 1 February 2021, the Claimant had a supervision meeting with Mr Collins. The Claimant dates a number of her complaints from this meeting, those being: a) That she was subjected to detriment by the Respondent on the ground of having made a protected disclosure by the Respondent:(i) Interrupting her systemic therapy practice course (Allegation 88, issue 6.1.4);

(ii) Removing the Claimant’s core duties (Allegation 89, issue 6.1.8);

(iii) Removing the Claimant’s autonomy and supervision duties (Allegation 90, issue 6.1.15);

(iv) Removing the Claimant from the Youth Justice Board Parenting Forum (Allegation 91, issue 6.1.16); and

(v) Declining the Claimant’s interest in being allowed to access DV training, and further parenting programme training EPEC, ‘Triple P’ for teenagers, whilst parenting facilitators at a lower grade were allowed access (Allegation 92, issue 6.1.18); and b) That she was subject to detriment by the Respondent because she did a protected act by the Respondent: (i) Stripping the Claimant of all opportunity to progress (Allegation 93, issue 16.2.8); (ii) Preventing the Claimant from attending case conferences (Allegation 94, issue 16.2.10); and (iii) Forcing the Claimant to return to face-to-face meeting (Allegation 95, issue 16.2.11).

[340]Was the Claimant’s systemic therapy practice course interrupted? (Allegation 88) a) As for the previous two occasions when the Claimant alleges that her systemic therapy practice course was interrupted (18 July 2019 – Allegation 18 - and 11 November 2020 – Allegation 77), the Claimant has offered no evidence that this occurred, and so the Tribunal cannot find this factual allegation made out. The Claimant does not mention it in her witness statement, and when cross-examining Mr Collins (her line Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 85 of 161 manager at this time), she simply asked Mr Collins about their relationship when they were undertaking this course together. In addition, Mr Collins’ witness statement points the Tribunal to notes of their February 2021 supervision, which record, under the subject “Training”: “Systemic Yr 2… Sherine has been getting her hours for her portfolio by attending these sessions on zoom. Tuesday pm.” b) Moreover, the Tribunal observes that the notes of this supervision suggest that, far from interrupting her course, the Respondent was supporting her to progress it by allowing her to get her hours for her portfolio. c) Allegation 88 therefore does not succeed – the Tribunal has no basis for finding that this occurred given the Claimant has not put a positive case about it and the Respondent has proffered evidence that it did not occur.

[341]Were the Claimant’s core duties removed on 1 February 2021? (Allegation 89) a) The Claimant has offered no evidence her core duties were removed nearly a year after she started in the Post-Reorganisation Role. It is not mentioned in her witness statement, and she did not cross-examine Mr Collins about it. Allegation 89 cannot succeed without the Claimant establishing that the averred act in fact occurred.

[342]Did the Respondent remove the Claimant’s autonomy and supervision duties on this date? (Allegation 90) a) In relation to the averred loss of autonomy, in evidence the Claimant cited two ways in which her autonomy was lost:(i) She described how, prior to the Reorganisation, when she was line-managed by Mr Evwaraye, she had the freedom to design and deliver parenting programmes as she saw fit, with minimal interference or direction, save that the programmes needed to further one of the Respondent’s objectives in its corporate plan. The Claimant described how she would draw up her own “work plan” (planned scheme of work for the appraisal year), and while she needed Mr Evwaraye’s sign-off of that plan, his approach was to support the Claimant’s plan if it related back to the Respondent’s objectives. The Claimant went on to say that, post-Reorganisation, that all changed, with significantly more oversight from Mr Collins; and

(ii) The Claimant cited the fact that Mr Collins expected her to seek permission to attend trade union training, which she avers Mr Evwaraye never did. (b) In terms of the removal of her supervision duties, in this regard the Claimant relies on the removal of her supervision of paid sessional workers, acknowledging that she did have supervisory responsibility for unpaid volunteers (though she has a moral objection to the use of such unpaid volunteers, and so has not in fact supervised others since her change of job role in February 2020). Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 86 of 161 b) The Respondent says that the Claimant regards “autonomy” as having free reign to design and deliver parenting programmes as she saw fit, with minimal or no management interference or direction. The Respondent says that no employee has a right to such “autonomy”, and that asking the Claimant to deliver parenting programmes in accordance with her job description was not removing her autonomy. It says that none of the supervision duties in her job description for the Post-Reorganisation Role were removed. c) The Tribunal finds that, as regards the assertion of loss of autonomy: while the Claimant was supervised differently by different line managers, with a noticeable change in the way her goals and tasks were set from the more distant, freer-reign approach of Mr Evwaraye to a more structured, management-suggested approach of Mr Collins, the Claimant never had free reign to determine her own tasks. The Claimant agreed in oral evidence that Mr Evwaraye was entitled to have input on the programmes she presented and how she presented them, he just didn’t feel the need to do so. Mr Collins, on the other hand, was the Claimant’s line manager at a time when her new role had specific time-bound goals for programme delivery. The Tribunal finds that there was no loss of autonomy from the Claimant’s role on 1 February 2021, just different managerial approaches and different external pressures resulting in the need for the Claimant’s work plan to align with the goals of the EPEC programme. d) The Tribunal has already found that the Claimant had supervisory responsibilities as part of the Post-Reorganisation Role (discussed in relation to, among others, Allegation 57), and no evidence has been presented to us that these were removed on 1 February 2021. The Claimant accepted in oral evidence that her position has the responsibility for supervising volunteer parents, but affirmed that that is something that she does not wish to do. The factual assertion that she lost supervisory responsibilities on 1 February 2021, or indeed any other date, is not made out. e) The Claimant’s contention, therefore, that she experienced a loss of autonomy and the removal of her supervision duties on 1 February 2021 is not made out, and Allegation 90 therefore does not succeed.

[343]Was the Claimant removed from the Youth Justice Parenting Forum on 1 February 2021? (Allegation 91) a) The Claimant has offered no evidence that this occurred (similarly to Allegation 56).

[344]Did the Respondent decline the Claimant’s interest in being allowed to access DV and Triple P whilst parenting facilitators at a lower grade were allowed access on 1 February 2021? (Allegation 92) a) As referred to above (see Allegation 85), the Respondent accepts that it did decline the Claimant’s interest initially, and it accepts that some lower grade parenting officers attended this training. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 87 of 161

[345]What was the reason the Respondent (at least initially) declined the Claimant’s interest in D and Triple P on the ground that the Claimant had made a protected disclosure? (Allegation 92) a) Also as referred to in relation to Allegation 85, we find that the ground on which the Claimant was denied access to this training was because the Respondent was concerned to ensure that the Claimant focus on the roll-out of the EPEC programme. It was not on the ground that the Claimant had made a disclosure. Allegation 92 therefore fails.

[346]Was the Claimant stripped of all opportunity to progress? (Allegation 93) a) The Claimant has offered no evidence of this. The Tribunal heard nothing at all about her potential to progress, pre-Reorganisation/post-Reorganisation, pre-protected disclosure or post-protected disclosure. The factual basis for Allegation 93 is not made out, and so it does not succeed.

[347]Was the Claimant prevented from attending case conferences? (Allegation 94) The Claimant has offered no evidence of this, so this Allegation fails. While the Claimant and Ms Terry referred to the fact that the Claimant did temporarily carry out some case work as part of alterations to work during adjustments made to normal activity during the Covid pandemic, the Claimant offered no evidence that she was prevented from attending case conferences.

[348]Was the Claimant forced, on 1 February 2021, to return to face-to-face meetings? (Allegation 95) a) In cross-examination the Claimant agreed with the suggestion put to her by Mr Davies that in February 2021 schools were closed, there were no face-to-face meetings with parents, and no parenting programmes were presented in that period. b) The Claimant’s contention therefore must relate to face-to-face meetings with her team. She avers that after her return from nine weeks’ sickness absence which began in January 2021, Mr Collins put pressure on her to return to face-to-face work. c) Mr Collins denied that he forced the Claimant to return to face-to-face meetings. Mr Collins agreed that he spoke in team meetings about returning to face-to-face meetings as lockdown eased, and that this was also mentioned in individual supervision meetings with the Claimant and in the draft work plan he prepared for discussion with her. Correspondence included in the Respondent Bundle between Mr Collins and members of the Respondent’s HR team describes a meeting between him and the Claimant on 25 February 2021, and records that Mr Collins told the Claimant that the Respondent would respect any advice the Claimant had received to shield. d) The Claimant agreed that she did not attend any face-to-face meetings in February 2021, and in light of this and the email in the Respondent Bundle referred to above, the Tribunal finds that the Respondent did not force the Claimant to return to face-to-face meetings on 1 February 2021. Allegation 95 therefore fails. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 88 of 161 Complaints pertaining to 8 February 2021

[349]Mr Collins circulated the notes of the 1 February 2021 to the Claimant on 8 February 2021. The Claimant alleges that on this 8 February date: a) The Respondent subjected to her to the following detriments on the grounds that she had made a protected disclosure:(i) It removed her autonomy and supervision duties (Allegation 96, issue 6.1.15); and

(ii) It imposed a work plan on the Claimant which was outside her job description (Allegation 97, issue 6.1.19); b) The Respondent imposed a provision, criteria or practice of requiring the Claimant to fulfil a work plan outside her skillset (PCP 4). In doing so, the Claimant avers, the Respondent failed to make reasonable adjustments to avoid the disadvantage she suffered as a result of PCP 4 in light of her disabilities (Allegation 98, issue 14.2.4); and c) The Respondent subjected her to the following detriments because she had done a protected act: (i) It gave the Claimant a role outside her skill set (Allegation 99, issue 16.2.6); and (ii) It stripped the Claimant of her supervisor status (Allegation 100, issue 16.2.9).

[350]Did the Respondent remove the Claimant’s autonomy and supervision duties on this date? (Allegation 96) a) The Claimant’s contentions, the Respondent’s response, and the Tribunal’s conclusion, are the same as for Allegation 90. Allegation 96 fails because the Tribunal finds that the factual premise on which it is based (that the Claimant suffered a removal of her autonomy and a loss of her supervision duties) is not made out.

[351]Did the Respondent impose a work plan on the Claimant that was outside her job description? (Allegation 97, part of Allegation 98, Allegation 99) a) There is nothing in the Claimant’s witness statement about a work plan being imposed on her on this date, and nor did she cross-examine Mr Collins on this issue. The Claimant has not pursued this allegation before the Tribunal. b) In any event, the Tribunal was provided with evidence on this issue from Mr Collins’ witness statement, which refers to an email in the Respondent Bundle where the Claimant requested that Mr Collins provide her: “with a workplan of the vison [sic] you have of EPEC, key aims and objectives you expect of me within a reasonable and agreed timeframe”. Mr Collins provided that draft work plan on 8 February 2021, in an email that included the following: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 89 of 161 “Please find attached… the draft EPEC work plan as requested. Please have a look at the work plan, it would be helpful to have your input and start to look at timeframes on Friday.” c) As Mr Collins says, this was clearly a draft work plan, which was to be discussed, not imposed. Allegations 97 and 99 therefore fail, as does Allegation 98, as the averred PCP (“Require the claimant to fulfil a workplan outside skillset”) was not applied to the Claimant.

[352]Did the Respondent strip the Claimant of her supervisor status on 8 February 2021? (Allegation 100) a) As above, the Tribunal finds that the Claimant was not stripped of her supervisor status, it was simply that – with effect from 3 February 2020 – the people she was to supervise changed from being paid sessional workers to unpaid volunteers. Allegation 100 fails because the Claimant was not stripped of her supervisor status. The Claimant met with Ms Pereira, 17 February 2021

[353]On 17 February 2021 the Claimant met with Ms Pereira, who was nominated by the Respondent to investigate Grievance 2. February and March 2021 parking-related complaints

[354]The Claimant says that on 23 February 2021: a) The Respondent removed her designated car parking at the Civic Centre despite her mobility issues which she avers was a detriment on the ground that she had made a protected disclosure (Allegation 101, issue 6.1.11); and b) Ms Pereira told the Claimant that she should apply for a blue badge for parking purposes, which the Claimant says was direct disability discrimination (Allegation 102, issue 10.2.6).

[355]The Claimant says that, again on each of 25 February 2021 and 2 March 2021, Ms Pereira told the Claimant that she should apply for a blue badge for parking purposes, which the Claimant says was direct disability discrimination (Allegation 103, issue 10.2.6 and Allegation 104, issue 10.2.6, respectively).

[356]Did the Respondent remove the Claimant’s designated car parking at the Civic Centre on 23 February 2021? (Allegation 101) a) As the Tribunal has already found (in relation to Allegation 67) that the Respondent did not remove the Claimant’s designated car parking, but rather that her car parking permission had expired and required renewal, Allegation 101 fails.

[357]Did Ms Pereira tell the Claimant that she should apply for a blue badge for parking purposes on 23 February 2021 (Allegation 102), 25 February 2021 (Allegation 103), and/or 2 March 2021 (Allegation 104)? a) The evidence is clear (and not disputed by the Respondent) that, in her grievance investigation report, Ms Pereira wrote that if the Claimant has a blue badge, she should use it, and if she doesn’t have one, Ms Pereira Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 90 of 161 advised her to apply for one via a GP. It is not clear when this report was provided to the Claimant, but it was sent to Ms Terry on 23 March 2021. b) Whether this amounted to direct disability discrimination is considered in the Analysis section below. Events of March 2021 between the Claimant and Mr Collins

[358]The Claimant alleges that Mr Collins interrogated her about her disabilities and the adjustments required in their supervision meeting in March 2021, instead of actually providing supervision. This, she says, was discrimination arising from disability (Allegation 105, issue 13.1.3).

[359]On 3 March 2021 Mr Collins sent a draft OH referral to the Claimant. The Claimant says that this draft referral was overly-intrusive, which she says amounts to discrimination arising from disability (Allegation 106, issue 13.1.4).

[360]The Claimant complains that, on 3 March 2021: a) the Respondent removed her supervision status for paid sessional work, and that that was a detriment on the ground that she had made a protected disclosure (Allegation 107, issue 6.1.3); and b) Ms Terry pressured the Claimant to change what the Claimant had written for a covid risk assessment, which the Claimant avers was less favourable treatment because of disability (Allegation 72, issue 10.2.5).

[361]The Claimant says that, on 4 March 2021, the Respondent victimised her because she did a protected act by subjecting her to the following detriments: a) The Respondent segregated and isolated her by separating her from peers; b) The Respondent removed her Business Support; and c) The Respondent provided her with no supervision (Allegation 108, issue 16.2.3).

[362]Did Mr Collins interrogate the Claimant as alleged in March 2021? (Allegation 105) a) The Claimant has offered no evidence to support Allegation 105 – and does not even repeat that allegation in her witness statement. Moreover, it is improbable that this did occur given that the evidence before the Tribunal is that the Claimant and Mr Collins did not meet in March 2021, and it is not disputed that Mr Collins ceased to line manage the Claimant on 5 March 2021. Allegation 105 is therefore not made out on the facts – the Tribunal finds that Mr Collins did not interrogate the Claimant as alleged in March 2021.

[363]Was the draft OH referral prepared by Mr Collins and sent to the Claimant on 3 March 2021 overly intrusive? (Allegation 106) a) The Claimant’s witness statement repeats the assertion that the referral was overly-intrusive, but it is not clear from that why she considers it to be so. In her cross-examination of Mr Collins, she made it plain that she considered that the referral from July 2020 “lasts for approximately one Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 91 of 161 year ”, so she objected to the fact that she was being put through another “rigorous” OH referral. b) Mr Collins responded that the information he had in his possession did not give him much information around the Claimant’s health, and he was expecting that the response to the referral would give him more specific information about how to support the Claimant. c) The referral is included in the Respondent Bundle, and the Tribunal does not consider it overly-intrusive.(i) Some of the additional manager comments in the ‘free text’ boxes summarised the recommendations of the previous reports, and how the Respondent had responded to those. One such comment was that the July 2020 OH report had noted that: “In the absence of formed treatment plans for some of her long-term conditions and her mental health, it is difficult to provide specific advice about future re-occurrence”. The ‘free text’ added by Mr Collins went on to asked for specific advice and information about who would be expected to develop such treatment plans for the Claimant, as such a treatment plan “would benefit us all in working together”. This, the Tribunal finds, was reasonable clarification to seek.

(ii) Mr Collins went on to describe some of the comments that the Claimant had made to him in recent times, describing her distress and the state of her health. He noted “Sherine has stated that we are not following the advice given in previous OH reports”, and Mr Collins asks OH to comment on this – again, the Tribunal finds this reasonable in light of the Claimant’s complaint, and in light of the Respondent’s duties towards the Claimant.

(iii) Under the sub-hearing “Advice sought”, Mr Collins has asked sensible and reasonable questions that the Tribunal finds were not overly-intrusive. Mr Collins was not only seeking to understand the Claimant’s health difficulties better – both at present and as anticipated in the future - but he was also specifically asking what OH recommended that the Respondent do in response to those difficulties. This was both appropriate and necessary. d) As the draft OH referral was not overly-intrusive, Allegation 106 does not succeed.

[364]Did the Respondent remove her supervision status for paid sessional work on 3 March 2021? (Allegation 107) a) As noted above in relation to Allegation 83 (among others), the Tribunal finds that the Claimant did see her supervisory responsibilities for paid sessional workers removed on 3 February 2020 when her role changed.

[365]Was the Claimant’s supervision of paid sessional workers removed on 3 March 2021 on the ground that she had made a protected disclosure? (Allegation 107) a) Also as noted above in relation to Allegation 83, the Tribunal finds that this was removed because of the Claimant’s role changed, rather than Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 92 of 161 because she made a disclosure (and this role change occurred on 3 February 2020). Also as noted above, the Tribunal finds that the Claimant’s role changed because of the Reorganisation, not because the Claimant had made a protected disclosure.

[366]Did Ms Terry put pressure on the Claimant to change what the Claimant had written for a covid risk assessment? (Allegation 72) a) The Claimant has said that this occurred, but there are no documents the Tribunal has been taken to relating to 3 March 2021 which evidence any such pressure, and Ms Terry denies that she did so. On 3 March 2021, the Claimant was line managed by Mr Collins in any event. There is evidence of correspondence between the Claimant and Ms Terry on the subject of her covid risk assessment on 31 March 2021. The part of Allegation 72 that relates to 3 March 2021 is not made out.

[367]Was the Claimant segregated and isolated by the Respondent separating her from her peers? (Part of Allegation 108) a) The Claimant was line managed separately to some of the other Parenting practitioners from 3 February 2020.

[368]Was the separation of the Claimant from most of the other Parenting practitioners a detriment? (Part of Allegation 108) a) The Tribunal has already found (in relation to Allegation 53) that it was not, either in the Claimant’s eyes or factually, as determined by the Tribunal taking account of the Claimant’s perception.

[369]Was the separation on the ground that the Claimant had done a protected act? (Part of Allegation 108) a) The Tribunal has already found that the decision that the Claimant was to be line-managed by Ms Terry, while the other Parenting practitioners (with the exception of MK) were to be line-managed by Ms Doyle, was taken by Ms Jones for several reasons:(i) Ms Terry was to line manage MK, the other Parenting Coordinator, and so there was some subject-matter logic to also assigning the Claimant to be managed by her (i.e., Ms Terry was already line managing a Parenting Coordinator);

(ii) Ms Terry was new to post, and so had more capacity than pre-existing managers with pre-existing teams, such as Ms Doyle (who was to manage the other Parenting practitioners, from whom the Claimant avers she was separated and segregated); and

(iii) Connected with the previous point, Ms Jones regarded Ms Terry’s: 1. greater capacity than her other management peers; and 2. enthusiasm for her new management position, as indicators that she may be able to manage the Claimant effectively, including: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 93 of 161 1. communicating if the manner of the Claimant’s challenge was problematic (e.g., by causing offence to colleagues in the way her 2 August 2019 email had); 2. supporting the Claimant through a transition the Claimant found difficult when the Claimant had been open about her poor mental health; and 3. ensuring that the Claimant progressed in rolling out the EPEC parenting programme in accordance with the Respondent’s commitment to do so. b) The Tribunal has already found, and reiterates, that it finds that the decision that the Claimant was to be line-managed separately from the other Parenting practitioners (save for MK) was not taken on the ground that the Claimant had done a protected act.

[370]Did the Respondent remove the Claimant’s Business Support on 4 March 2021? (Part of Allegation 108) a) The Claimant has offered no evidence that this occurred, and the Tribunal finds that it did not. This part of Allegation 105 fails.

[371]Was the Claimant provided with no supervision on 4 March 2021? (Part of Allegation 108) a) The Respondent agrees that there was a scheduled supervision between the Claimant and Mr Collins for 4 March 2021 that did not take place.

[372]Was the Claimant not provided with supervision on 4 March 2021 because she had done or was threatening to do a protected act? (Part of Allegation 108) a) The explanation proffered by Mr Collins for the cancellation of the 4 March 2021 supervision is that he did not know how to continue supervising the Claimant, and that attempting to manage her had a serious negative impact on his health and wellbeing. This is supported by an email he sent to the Respondent’s Human Resources team on 4 March 2021, and the Tribunal accepts this explanation, which is consistent with the fact that Mr Collins ceased to supervise the Claimant on the following day. b) In that email Mr Collins described the Claimant’s communication as “aggressive and challenging” and referred to its “content ( discussion/threat of grievance, Employment Tribunal, ACAS, Subject Access Request, etc)”. This latter reference to the Claimant threatening to raise a grievance or an Employment Tribunal complaint could amount to a protected act if the threatened grievance or Tribunal claim was 2010 Act discrimination-related, but it is clear from Mr Collins’ expression that it is not the fact that a grievance or Tribunal claim could follow that means he does not wish to proceed to manage the Claimant, but rather the impact of the Claimant’s style and content of communication on him. He writes to the Human Resources team that if his own communications with someone he was line managing had that tone and content he would held to account, but the fact that it is from an employee to their line manager Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 94 of 161 meant, he believed, that the Respondent ignored it , but he says that: “However the impact is the same regardless of who experiences this”. c) The Tribunal finds that the reason the Claimant was provided with no supervision on 4 March 2021 was because of the breakdown of the relationship between Mr Collins and the Claimant – it was not because she had done or was threatening to do a protected act, but because of the effect line managing the Claimant was having on Mr Collins’ mental health. This part of Allegation 108 is not made out. Events of March 2021 between the Claimant and Ms Terry

[373]Ms Terry became the Claimant’s line manager again from around 5 March 2021.

[374]The Claimant says that, similarly to 3 March 2021, on 12 March 2021 Ms Terry pressured the Claimant to change what the Claimant had written in a covid risk assessment form, which the Claimant avers was less favourable treatment because of disability (Allegation 72, issue 10.2.5). Ms Terry, for the Respondent, denies that she pressured the Claimant to change what she had written in her covid risk assessment, and denies that her actions amounted to less favourable treatment because of disability.

[375]The only documentary evidence relating to this is email correspondence from 30 March 2021 (when the Claimant wrote to Ms Terry) and 31 March 2021 (when Ms Terry replied). That documentary evidence refers to the Claimant and Ms Terry speaking about this subject on 16 March 2021 in a supervision meeting.

[376]Ms Terry says that she raised with the Claimant on 16 March 2021 that: a) the Claimant’s written comments on the covid risk assessment contained comments that did not relate to covid, and therefore she felt unable to submit that risk assessment; and b) the Claimant had previously (on 20 December 2020) raised concerns about the storage of her personal information (that email is in the Respondent Bundle), and Ms Terry was conscious that the covid risk assessment would be sent to Public Health.

[377]The email which the Claimant avers applied pressure on her to change what she had written in the covid risk assessment contained the following: “We last spoke on the 16th March regarding the COVID risk assessment. My understanding was that you were going to get back to me on the 19th to let me know whether I could retract the information you had added to the risk assessment as my view was that the information you had provided was not appropriate and that the COVID risk assessment was in relation to the impact of COVID on your role/ work. We had agreed that you would speak to your union to clarify what your next steps were as we had also discussed the possibility of completing another Stress based risk assessment so that you could have an opportunity to highlight the stress factors in a way that would Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 95 of 161 mean each area would be addressed. There has been no feedback to date in regards to this so would it be possible to let me know whether the document can be changed or that you wish to share it as it is. If you do wish to share it as it is I may need to discuss the content with HR as I am still not sure whether that information needs to be in there.”

[378]There was some pressure applied by Ms Terry in this email for the Claimant to amend the content of her covid risk assessment. This allegation is considered further in the Analysis section below.

[379]The Claimant says that, on 11 March 2021, Mr Collins (though she must mean Ms Terry, given Mr Collins ceased line management of her on 5 March 2021) subjected her to the detriment of being forced to return to face-to-face meetings because she had done a protected act (Allegation 109, issue 16.2.11). a) The Claimant did not put this allegation to Ms Terry in cross-examination. The Tribunal has no evidence before it that this occurred, and therefore finds that it did not. Allegation 109 does not succeed.

[380]The Claimant avers that, on 23 March 2021, the Respondent took away her core meaningful work because she did a protected act (Allegation 110, issue 16.2.5). a) The Claimant did not refer to this in her witness statement or to any change to her duties which occurred on 23 March 2021 in her oral evidence. Ms Terry denies that she took away the Claimant’s core meaningful work on this date or at any other time. As the Claimant did not put any case that this occurred and Ms Terry denies that it did, the Tribunal finds this allegation is not made out on the facts.

[381]The Claimant says that the Respondent removed her designated car parking in the Civic Centre despite the Claimant’s mobility issues on 25 March 2021, which she asserts was a detriment on the ground that she had made a protected disclosure (Allegation 111, issue 6.1.11). a) As for the previous related complaints about parking, the Tribunal finds that the automatic recognition of the Claimant’s number plate and her access to the Respondent’s disabled parking bays expired, and there was no conscious removal on this or any other date. Allegation 111 fails.

[382]The Claimant founds six complaints on what she says occurred on 31 March 2021. She says that: a) She was subjected to the following detriments on the ground that she had made a protected disclosure:(i) She was set up to fail because of three management changes she experienced on 3 February 2020, 6 October 2020, 20 January 2021, 4 March 2021 and this date of 31 March 2021, which involved her being given different management instructions and destabilised her (Allegation 44, issue 6.1.7);

(ii) Her core duties were removed (Allegation 112, issue 6.1.8);

(iii) Her autonomy and supervision duties were removed (Allegation 113, issue 6.1.15); and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 96 of 161

(iv) The Respondent declined her interest in accessing DV training and further parenting programme training, ‘EPEC, Triple P’ for teenagers, whilst parenting facilitators at a lower grade were allowed access (Allegation 114, issue 6.1.18); and b) She was subjected to the following detriments because she had done a protected act: (i) Being assigned to five different managers in 12 months (on 7 November 2019, 3 February 2020, 6 October 2020 and this date of 31 March 2021) (Allegation 25, issue 16.2.4); and (ii) Stripping the Claimant of all opportunity to progress (Allegation 115, issue 16.2.8).

[383]Was the Claimant set up to fail and destabilised by a combination of three management changes and different management instructions which occurred on 3 February 2020, 6 October 2020, 20 January 2021, 4 March 2021 and 31 March 2021? (Allegation 47) a) This allegation is confusingly expressed, but the parties agree that the Claimant experienced a change in line manager on each of:(i) 3 February 2020, when the Claimant ceased being line managed by Mr Evwaraye and began being managed by Ms Roberts;

(ii) 5 March 2020, when the Claimant ceased being line managed by Ms Roberts and was instead line managed by Ms Terry;

(iii) 19 November 2020, when she ceased being managed by Ms Terry and began being managed by Mr Collins; and

(iv) 5 March 2021, when she ceased being managed by Mr Collins, and began being managed by Ms Terry (again). b) The Tribunal has found that there was no change of line manager for the Claimant on either of 6 October 2020 or 20 January 2021, and that no new management instruction was issued on any of these dates. c) As for 31 March 2021, the Claimant does not assert that her line manager changed on this date, and nor has she pointed to any instruction issued to her by Ms Terry or any other person purporting to be her line manager on this date. From a search of the bundles, the Tribunal has found an email from Ms Terry on this date, responding to a series of questions from the Claimant raised on 30 March 2021, but none of those issue any new instructions to the Claimant – in fact, Ms Terry expressly confirms that “your role remains the same”. The Tribunal therefore finds that there was no management instruction issued to the Claimant on 31 March 2021 that was inconsistent with those issued in the past. d) The question therefore remains whether the Claimant was set up to fail, or destabilised, by the management changes that took place on the dates outlined above. e) Answers to questions posed by the Tribunal established that the Claimant was not put through any kind of performance management Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 97 of 161 process in the period covered by this case – she is not in fact failing by that measure. f) As to whether the Respondent set her up to fail (i.e., wanted her to fail, and took steps to try to make this happen), this is vehemently denied by the Respondent. The Respondent’s main witness on this part of this allegation is Ms Jones, who says that the Respondent very much wanted the Claimant to succeed in her role, not least because of the Respondent’s commitment to SLAM to deliver the EPEC programme. g) The Claimant says: (i) She does not have the expertise to perform a role that is focused on early years, which the Post-Reorganisation Role is focused upon; (ii) Each line manager has come up with their own interpretation of her role, from range of duties, standards of work, location of work, and her time of work, which has caused her confusion; (iii) This has been compounded by the fact that she has not been provided with a new EPEC contract of employment or written statement of terms and particulars, which is essential for her to be productive; and (iv) She was denied access to certain training, which set her up to fail. h) In response to the Claimant’s specific contentions above, Ms Jones (the relevant decision-maker whose mental processes should be examined to answer the question of the matters which materially influenced that decision – Knight, Fecitt) says: (i) In her Reorganisation Appeal the Claimant averred that she should have been directly assimilated into the Post-Reorganisation Role, as the role and tasks of that role were things she had been doing since 2012, i.e., the Claimant herself said she had the expertise to perform the Post-Reorganisation Role; (ii) The line management changes were regrettable, but they did not occur because the Respondent was setting the Claimant up to fail. The first line management change was because of the Reorganisation (Mr Evwaraye did not come under the same part of the reorganised structure as the Claimant), the second was because Ms Roberts, a fixed-term employee, left the organisation, and the fourth was because Mr Collins became ill, which he attributed to the difficulties he had managing the Claimant. The third is the only change which seems to have been brought about by a management decision, and Ms Jones says Mr Collins was newly-appointed to the line management role, and managing the Claimant came within his job description; and (iii) The Claimant was provided with EPEC training in December 2019, and the Claimant made it clear that this was, for her, refresher training, as she had already been trained in EPEC. Further training, such as on safeguarding across age ranges, is Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 98 of 161 and was accessible via the Respondent’s training site and the Merton Safeguarding Children Partnership, both of which were bookable by the Claimant. The Claimant asked for some training in early years after the new structure had landed, and a bespoke course was provided to her on 16 and 30 June 2021. i) While it is clear to the Tribunal that the Parenting role the Claimant was to perform was focused on parents of children of a different age to the teenagers and young adults the Claimant’s practice had centred upon pre-Reorganisation, we find that the change in the focus of her role was not driven by a desire to set her up to fail – it was driven by the priorities of the Respondent, and the Respondent sought to support the Claimant with that transition. It is clear from the supervision meeting notes and emails which the Tribunal was taken to when the Claimant was managed by Ms Terry and Mr Collins that each of them went to considerable trouble to support the Claimant. The Claimant herself described Ms Roberts as a supportive line manager. While the frequent change of line management was regrettable, especially when the Claimant was absent from work due to illness, and/or was working from home for much of this time, we find these changes were not deliberately made to set the Claimant up to fail, or to destabilise her. In three of the four instances they were unavoidable, and the fourth (the change from Ms Terry to Mr Collins) did not result in the Claimant being unsupported. j) The Tribunal has already found that the Claimant has not provided any evidence that when her line managers changed there were different management instructions given to her. Her duties did not change, we were provided with no evidence that the standards expected of her altered, and her work location remained the same (save as regards home-working necessitated by Covid-19). The Claimant agreed in oral evidence that her hours of work did not change. k) While the Claimant was not given a revised contract of employment, the letter of 18 December 2019 set out the revisions to her existing contract, which referenced the job description for the Post-Reorganisation Role that had already been provided to the Claimant as part of the consultation process about the Reorganisation in November 2019. The Tribunal finds that the Claimant was not inhibited in the performance of her role by a lack of new employment contract, and that those changes to her duties that impacted her performance of her role were set out in the job description provided to her ahead of her expressing a preference for the Post-Reorganisation Role. The Tribunal finds that the failure to do more in this regard did not in any way seek to or contribute to any failure to perform the Post-Reorganisation Role on the part of the Claimant. l) Mr Collins agreed that the Claimant had been denied access to certain training courses she requested, namely, Triple P and the Freedom programme, but he says that she was denied that access because she was employed to perform the EPEC role. In other words, Mr Collins says that she was denied access to training that the Respondent regarded as outside of the Post-Reorganisation Role precisely because it wanted her Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 99 of 161 to focus on delivering the role she was employed to do. The Tribunal cannot find that the Claimant was denied access to EPEC training, because she agrees she was provided with EPEC training. m) Consequently, we find that the factual assertion upon which Allegation 47 is based – that the Claimant was set up to fail and destabilised by the change in line management arrangements and different management instructions – is not made out. Allegation 47 fails.

[384]Were the Claimant’s core duties removed on 31 March 2021? (Allegation 112) a) As above, no evidence has been presented to the Tribunal that the Claimant’s core duties were removed on 31 March 2021, so Allegation 112 fails.

[385]Were the Claimant’s autonomy and supervision duties removed on 31 March 2021? (Allegation 113) a) As above, no evidence has been presented to the Tribunal that there was a change to any of the Claimant’s duties on this date. It is clear that the Claimant’s job changed, and the nature of the people she was to supervise, changed with effect from 3 February 2020, but her supervision duties were not removed on that date, and nor was her autonomy, as discussed above. Allegation 113 fails because its factual basis is not established.

[386]Did the Respondent decline the Claimant’s interest in accessing DV training and further parenting programme training, ‘EPEC, Triple P’ for teenagers, whilst parenting facilitators at a lower grade were allowed access? (Allegation 114) a) The Respondent, through Mr Collins’s evidence, admitted that the Claimant was denied access to DV training and Triple P when others were allowed that access.

[387]Was the Claimant denied access to that training on the ground that she had made protected disclosures? (Allegation 114) a) Mr Collins was adamant that the reason the Claimant was denied access to this training was because the EPEC programme needed to get going. His evidence on this point was persuasive. The Tribunal considered him to be honest – he accepted that, on reflection, he thought his response could have been better, and that he should have agreed that the Claimant could be provided with the requested training in the future once the EPEC programme was up-and-running. b) The Tribunal finds the reason he refused the Claimant access to those programmes was a desire for the Claimant to focus on the delivery of the EPEC programme, not only because we believed his evidence but also because that is consistent with Ms Jones’ earlier correspondence about that programme being behind schedule, and with contemporaneous correspondence and notes at the time when Mr Collins discussed the matter with the Claimant. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 100 of 161 c) The Tribunal finds that the reason the Claimant was denied access to this training was not that she had made one or more protected disclosures – Allegation 114 does not succeed.

[388]Was the Claimant assigned to five different managers in 12 months (on 7 November 2019, 3 February 2020, 6 October 2020 and 31 March 2021)? (Allegation 25) a) The Respondent agrees that the Claimant was assigned five different managers in the period November 2019 to March 2021 (though there was no change of manager on 6 October 2020).

[389]Was the Claimant assigned to five different managers because she had done a protected act? (Allegation 25) a) No, as above, the Tribunal finds that three of the four changes of line manager were due to matters independent of the Respondent’s relationship with the Claimant: the first was down to the Reorganisation, the second because Ms Roberts fixed-term employment with the Respondent came to an end and she left the Respondent’s employment, and the fourth was brought about by Mr Collins’ ill health. The only other line management change was the change from Ms Terry to Mr Collins in November 2020. Ms Jones’ evidence was that Mr Collins was recruited into the line management role, and that is consistent with her (written and oral) evidence about the Reorganisation having the unfortunate consequence of leaving her with a manager vacancy in the Early Years team. The Tribunal considers this to be satisfactory and plausible explanation, and consistent with the evidence of both Ms Jones and Ms Evans about the natural attrition of personnel that occurred at the time of the consultation about the Reorganisation, meaning that while all affected staff were at one time warned of the risk of redundancy, no compulsory redundancies were in fact effected by the Respondent. We find that this line management change from Ms Terry to Mr Collins was not because the Claimant had done a protected act.

[390]Was the Claimant stripped of all opportunity to progress on 31 March 2021? (Allegation 115) a) The Claimant has offered no evidence of this, and the Tribunal does not understand what is supposed to have occurred on 31 March 2021 to form the basis for this. This Allegation fails. Events of 1 April 2021

[391]On 1 April 2021, Ms Pereira wrote to the Claimant with the conclusion of her investigation into Grievance 2: none of the Claimant’s complaints were upheld.

[392]The Claimant says that: a) On 1 April 2021 the Respondent threatened the Claimant with performance management for failing to complete the mandatory online training (despite the Claimant having raised the need for adjustments), including in a letter from Jane McSherry on about 1 April 2021 that was copied to heads of service managers. The Claimant says this was less Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 101 of 161 favourable treatment because of disability (Allegation 116, issue 10.2.2); and b) Both:(i) The rejection of her Grievance 2 complaint by Ms Pereira; and

(ii) The failure to take the notes of the investigation meeting Ms Pereira held with Ms Jones, were less favourable treatment because of race (Allegation 117 and Allegation 118, respectively, issue 11.2.17).

[393]Was the Claimant threatened with performance management for failing to complete the mandatory online D&I training on 1 April 2021? (Allegation 116) a) Some time was spent on this in evidence from the Claimant, Ms Gachet and Ms Terry. None of the email correspondence included any threats of performance management for failing to complete the D&I training in the required timeframe. Ms Gachet denied that any such threats were made, and when the Claimant was asked to take the Tribunal to evidence of this by Mr Davies, she did not do so. The factual basis for Allegation 116 is not made out and this allegation fails.

[394]Why was Grievance 2 rejected by Ms Pereira? a) Grievance 2 was, in large part, rejected by Ms Pereira. Two complaints were upheld:(i) that the job description for the AFS sessional workers contained erroneous references to the TF team, which should be deleted in light of that team’s disbandment; and

(ii) Ms Pereira accepted the Claimant’s assertion that she was not given the opportunity to see witness statements taken by Mr McGinlay as part of the investigation process of Grievance 1, but all of the Claimant’s other complaints were rejected. The outcome letter did include some recommendations from Ms Pereira of some things the Respondent could do better (e.g., provide notes and witness statements relating to Grievance 1). b) In her letter informing the Claimant of the outcome of Grievance 2, Ms Pereira used a two column table identifying the Claimant’s complaints in the left-hand column, and the evidence Ms Pereira considered, her findings and conclusions, and her recommendations (where she made them) in the right-hand column. That table ran to 18 pages. The Tribunal has reviewed that table, and it is thorough and clear, setting out where Ms Pereira: (i) considered there was no evidence to support a particular complaint; (ii) found relevant evidence, what she thought of it; and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 102 of 161

(iii) regarded the complaint as outside the scope of the grievance because it had been dealt with by another process (i.e., the Reorganisation Appeal, and Grievance 1 and its appeal). c) The table clearly shows the reasons why Ms Pereira rejected Grievance 2, and the Tribunal finds that, where the Claimant’s complaints were rejected, it was for the reasons the table describes, based on the evidence (or lack of evidence) Ms Pereira found relating to the relevant matter.

[395]Why did Ms Pereira not take notes of her meeting with Ms Jones? a) Ms Pereira said in her witness statement and oral evidence that:(i) She had the benefit of a note-taker when she met with Mr Collins and Ms Terry, but a note-taker was not available at the time she had scheduled to meet with Ms Jones.

(ii) As Ms Pereira was due to leave the Respondent’s employment in early March 2021, and she had met with the Claimant on 17 February 2021, there was a relatively short period of time for Ms Pereira to complete her investigation and determine the outcome of Grievance 2.

(iii) Ms Pereira said that Ms Jones was entitled to be accompanied by a union representative to their meeting, and to be given five days’ notice of their meeting, but conscious of the truncated timeframe, Ms Jones agreed to forego those things so as to give Ms Pereira the opportunity to complete her investigation. This was in light of the fact that Ms Pereira had been advised that if her investigation was not completed by the time she left, Grievance 2 would need to be investigated from scratch. b) The Tribunal was initially surprised that there were none of Ms Pereira’s own notes of the meeting with Ms Jones, but Ms Pereira clarified in oral evidence that she did in fact take handwritten notes of what was said in that meeting, but she no longer had those notes when she became aware of the Tribunal proceedings. Ms Pereira said that that was attributable to the facts that: (i) Significant time had passed between her taking those notes and her becoming aware of these proceedings, during which time she had changed employers twice; and (ii) She copied those handwritten notes verbatim into her investigation report provided to the Claimant. c) The Tribunal found these to be plausible and truthful explanations. Furthermore, we note Ms Pereira’s impressive credentials as an advocate for race equality, including during her time working for the Respondent, when she was significantly involved in the creation and establishment of the Respondent’s Race Equality Network. The Claimant has given the Tribunal no reason to doubt the truth of Ms Pereira’s categorical denial that she did not retain the notes of her meeting with Ms Jones because of race. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 103 of 161 d) We find that Ms Pereira did in fact take handwritten notes of her meeting with Ms Jones, and the reasons she did not retain those notes were that: (i) She left the Respondent’s employment (whereupon it is standard practice that paperwork relating to her employment would belong to, and should be returned to, the Respondent); and (ii) She considered there to be no need to retain those notes as she had typed them into her investigation report. The Claimant appealed the outcome of Grievance 2, 12 April 2021

[396]The Claimant appealed the outcome of Grievance 2 on 12 April 2021. Some procedural history

[397]The Claimant presented the Fourth Claim on 12 April 2021.

[398]The Tribunal determined, at a Preliminary Hearing on 19 April 2022 before EJ Sekhon, that the Claims would be heard together.

[399]On 11 October 2022 EJ Corrigan dismissed the Claimant’s complaints of health and safety detriment and sex discrimination upon withdrawal.

[400]Further Preliminary Hearings took place on 29 July 2022, 14 September 2022, 11 October 2022, 15 December 2022, 19 July 2023, 29 September 2023 (at which the list of issues was discussed, EJ Burge determined that the Claimant was disabled at the relevant times by reason of diabetes) and the latest, before EJ Corrigan, on 5 June 2024.

[401]The Claimant’s complaint of age discrimination was dismissed upon withdrawal on 6 June 2024. Summary of what the Tribunal’s factual findings mean for the Claimant’s complaints Complaints centring upon disputed facts for which the Claimant has offered no evidence

[402]A number of the complaints made by the Claimant centre upon disputed facts, for example, where the Claimant in the Claims says that the Respondent acted or failed to act in particular way, and there is a dispute between the parties as to whether or not they occurred. For a significant number of these the Claimant did not put forward any evidence, whether in her written statement or orally, and so those complaints fail. This applies to the following 30 Allegations: 1, 18, 19, 23, 29, 35, 51, 52, 56, 58, 59, 65, 66, 75, 76, 77, 79, 81, 86, 88, 89, 91, 93, 94, 97, 98, 99, 109, 110, 112, 113, 115, as well as PA 1, PA 2, PA 3, PA 10, PA 11 and PA 13. Complaints centring upon disputed facts where the Tribunal has found in the Respondent’s favour, so the complaints fail

[403]The Tribunal’s findings on disputed facts mean that the following 68 Allegations do not succeed, either because the act/omission alleged by the Claimant was found by the Tribunal not to have occurred or because the Tribunal has concluded the basis upon which the act/omission which did occur was not the basis upon which the Claimant’s contention depends: UDL 1, 2, 3, 4, 5, 7, 8, 9, Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 104 of 161 10, 11 , 14, 15, 16, 17, 20, 21, 22, 24, 25, 27, 28, 29, 31, 32, 33, 34, 36, 37, 38, part of 40 (that Ms Jones asked the Claimant “why don’t you leave”), 41, 42, 47, 48, 50, 53, 54, 55, 60, 61, 63, 64, 67, 68, 71, 73, 78, 79 (the Claimant also offered no evidence of this Allegation), 80, 82, 83, 84, 85, 87, 90, 92, 95, 96, 97 (the Claimant also offered no evidence of this Allegation), 98 (the Claimant also offered no evidence of this Allegation), 99 (the Claimant also offered no evidence of this Allegation), 100, 101, 105, 106, 107, 108, 111, 114 and 116, as well as PA 4 and PA 8. The complaints for which the factual basis is made out or accepted by the Respondent

[404]The factual basis for the following 24 Allegations is either admitted by the Respondent or, where disputed, the Tribunal has found in the Claimant’s favour: 6, 12, 13, 26, 30, 39, part of 40 (relating to the complaint that Ms Jones told the Claimant that she was “finally seeing [her] softer side”), 43, 44, 45, 46, 49, 57, 62, 69, 70, part of 72 (relating to Ms Terry putting pressure on the Claimant to change the content of what the Claimant had written in a covid risk assessment), 74, 102, 103, 104, 117 and 118, together with the acts forming the bases for PA 5, PA 6, PA 7, PA 9, PA 12, PA 14 and Disclosure 3. These complaints (and the complaints relating to PA 5, PA6, PA 7, PA 9, PA 12, PA 14 and Disclosure 3) do not automatically succeed, but rather proceed to be considered against the relevant legal tests so as to determine whether they succeed.

[405]There were some changes made to the Claimant’s terms and conditions of employment, so UDL 2 is also considered in the Analysis section below to determine whether it is made out. Are there any inferences of discrimination that should properly be drawn from considering the totality of the primary facts?

[406]The Tribunal is conscious that, as observed by Neill LJ in King, direct evidence of discrimination is unusual, but it does not mean that discrimination has not occurred. The Tribunal therefore needs to consider, in light of the totality of the primary facts (those agreed by the parties together with those found by the Tribunal), whether it is appropriate for us to infer from those facts, and all the circumstances of the case, that there was a racial and/or disability ground for the acts the Claimant complains of (Qureshi). The significant number of allegations in this case, and the substantial amount of factual background and disputed facts, makes this exercise all the more important. We are also reminded that any inferences drawn must be based on evidence, not by making use (without evidence) of a verbal formula such as ‘institutional discrimination’ (Stockton on Tees BC v Aylott

[2010] ICR 1278

[407]We concluded that no such inferences should be drawn.

[408]There were aspects of the factual matrix, and other circumstances of the case (namely, aspects of oral evidence before the Tribunal), that gave us initial cause for concern: a) There was a total lack of evidence offered by the Respondent of the process it used to ‘map’ the Pre-Reorganisation Role into the new Early Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 105 of 161 Help structure. The only evidence offered by the Respondent witnesses about why the Claimant had been offered assimilation rights into the two roles that she had been, and the grading of those roles, was (in effect) that ‘HR did it’. The methodology and workings were not provided to the Tribunal, and it is surprising to us, in a public sector organisation of this size, with reorganisation policies and procedures, that the process for comparing pre-existing roles with new roles was not clearly spelled out and that its application was not checked against that process for consistency. b) The same dearth of evidence applied to the scoring process used by the Respondent for fitting the Post-Reorganisation Role into the Respondent’s grading structure. This is all-the-more surprising given the process in this case resulted in the Claimant’s demotion by a grade. c) Hostility was displayed towards the Claimant during the hearing by Ms Jones and Ms Pereira. In Ms Jones’ case, it was overt. Ms Jones avoided looking at the Claimant during cross-examination, and was unresponsive to the Claimant’s attempts to ‘warm her up’ and introduce a note of friendliness into the cross-examination process. This was in the context of Ms Jones continuing to indirectly line manage the Claimant. Ms Jones did look at the Tribunal Panel members when we asked our questions, so this did not appear to be a universal response on her part – it was borne out of her relationship difficulties with the Claimant. d) Mr McGinlay was asked by the Claimant in cross-examination about his understanding of the term “microaggressions”, and how they might manifest in the workplace for a person of colour. His response was unfortunate: that microaggressions are “something where black members of staff might behave in ways due to experienced prejudice and might be seen as aggressive, but because of their experience”. The Claimant replied: “It is the black person who behaves in a particular way?”, and Mr McGinlay responded: “That’s my understanding”. The term “microaggressions” does not appear in legislation, but the EHRC in a 2019 paper1 has used the following definition: “A brief, everyday interaction that sends a denigrating message to a person because they belong to a racially minoritised group. Compared to more overt forms of racism, racial microaggressions are subtle and insidious, often leaving the victim confused, distressed and frustrated and the perpetrator potentially oblivious to the offence caused.” In other words, in the case of the kind of racial discrimination the Claimant was referring to, the white person is the aggressor. An explanation from Mr McGinlay apparently shifting that aggression to the 1 Tackling racial harassment: Universities challenged (equalityhumanrights.com) Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 106 of 161 black victim, was offensive, and caused the Claimant distress in the hearing, which made a break in the hearing appropriate.

[409]However, it is important to put these matters into their proper context when considering whether they should form the basis for an inference of discrimination: a) The Claimant herself agreed, initially at least, that the Post-Reorganisation Role was a suitable one for her, arguing in the Reorganisation Appeal process, that she should have been directly assimilated into that role. The Respondent relied on that, in the context of a very large number of complaints that they were resisting. The Respondent perhaps considered that evidence of the role mapping process need not be included in the hearing bundle in light of that. The Respondent witnesses asked about the role-mapping process by the Tribunal (Ms Jones, Ms Wardell and Ms Evans) did not appear to be avoiding the related questions, they just had not themselves had involvement in that HR-led process, and so could not comment on it. b) While the Claimant was demoted, Ms Jones questioned whether the grading of the Post-Reorganisation Role was correct, and enquired whether it should really be graded one grade higher (which would have avoided the Claimant’s demotion). The email evidence relied on by the Respondent records that the HR personnel involved confirmed the ME10 grade of the Post-Reorganisation Role, and there is no suggestion that they knew the Claimant, or knew she was going to be appointed to the role, so this does appear to be an impersonal assessment on their part. c) There was evidence before the Tribunal of Ms Jones’ kindness to the Claimant in their 1-2-1 consultation meeting. However, their relationship clearly deteriorated significantly after that, as witnessed by the Tribunal, and that is perhaps unsurprising in light of the allegations made by the Claimant – for example, that Ms Jones racially segregated the parenting practitioners in her team. Those allegations would, undoubtedly, have caused Ms Jones great upset. In other words, the hostility between Ms Jones and the Claimant is explicable by the accusations levelled at Ms Jones by the Claimant. d) In the case of Ms Pereira, a person of colour and a social worker, the Claimant has levelled accusations of racism and disability discrimination at her, when Ms Pereira’s position to the Tribunal is that:(i) a significant portion of her professional life has been committed to combatting racism in the workplace; and

(ii) her career as a social worker involved her working with adults managing chronic illness, seeking to empower them to remain independent. The Claimant’s allegations would no-doubt have triggered distress and anger on Ms Pereira’s part, explaining her hostility to the Claimant in the hearing. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 107 of 161 e) Mr McGinlay did not know what “microaggressions” means, but it is an esoteric term, and the Tribunal considers he guessed when he felt under pressure to answer the question (having just said why he felt he was in a position to determine a grievance that, in part, raised concerns of race discrimination). When answering, Mr McGinlay emphasised that the black person he was referring to had had life experiences of racism, and so it was as a result of trauma they had experienced that their behaviour might appear more aggressive than a person who has not experienced racism. Mr McGinlay was very far from expressing a view that black people are, by nature, more aggressive. Moreover, Mr McGinlay, when determining Grievance 1, found all of the complaints unfounded, yet he was motivated to write his “Postscript”. That “Postscript” went further than his remit, and invited the Respondent, in light of the concerns raised by the Claimant and the reflections the Black Lives Movement, to look at its policies and procedures which Mr McGinlay was not himself called upon to examine. He used his “white privilege” to call for the Respondent to undergo a process of self-reflection so as to identify any unconscious racial bias, and to do this by working with the Respondent’s race equality network. That was not the action of a person who regards black people as aggressive.

[410]These points of note also need to be seen in the context of sheer number of allegations made by the Claimant that are entirely without evidence or apparent foundation (30 allegations had no evidence whatsoever supporting them), and a further 68 were found by the Tribunal to be disproven on the facts. A relatively small proportion of the Claimant’s complaints proceeded to be examined beyond the initial “fact finding” stage.

[411]We consider that, looking at the evidence and all the circumstances of the case, it is not appropriate to draw any inferences that there were the averred discriminatory grounds for the acts complained of. Law Automatic unfair dismissal: on the ground of performing trade unions functions or activities

[412]Section 103(1) of the 1996 Act provides that: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee, being— (a) an employee representative for the purposes of Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992 (redundancies)… performed (or proposed to perform) any functions or activities as such an employee representative...”. Automatic unfair dismissal: on the ground of protected disclosure

[413]Section 103A of the 1996 Act provides: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 108 of 161 “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” Unfair dismissal – Hogg v Dover College-type dismissals

[414]Section 94(1) of the 1996 Act states: “An employee has the right not to be unfairly dismissed by his employer.”

[415]Section 95 sets out the circumstances in which an employee is dismissed, and includes, at section 95(1)(a): “For the purposes of this Part an employee is dismissed by his employer if … — (a) the contract under which he is employed is terminated by the employer (whether with or without notice)”.

[416]The effective date of termination is described in section 97(1) of the 1996 Act: “in this Part “the effective date of termination”— (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires”.

[417]As demonstrated by the seminal case of Hogg v Dover College

[1990] ICR 39

, where an employer unilaterally imposes “wholly different” terms and conditions on its employee from those under which they had previously been employed, that should properly be regarded as a dismissal of the employee, and the employee need not resign and claim constructive dismissal in order to bring a claim of unfair dismissal to this tribunal. There is no question of the employee affirming a repudiatory breach by the employer by continuing to work, because the employee is working under the new contract, and so is not thereby affirming a breach of the old one.

[418]Hogg was followed by the EAT in Alcan Extrusions v Yates and ors

[1996] IRLR 327

, which concluded that: “Where an employer unilaterally imposes radically different terms of employment, applying the principle in Hogg v Dover College, there is a dismissal under s.55(2)(a) [the then-equivalent to our present-day section 95] if, on an objective construction of the relevant letters or other conduct on the part of the employer, there is a removal or withdrawal of the old contract... In the present case… the new terms were so radically different from the old as to pass beyond mere repudiatory variation of the old contract, so that they could properly be characterised as the removal of the old contract and the offer, by way of substitution, of a new and substantially inferior contract.”

[419]Whether a change in contractual terms imposed by the employer does in fact amount to a termination of the original contract (as opposed to a variation of it) is a question of fact and degree, assessed by: a) firstly, analysing the terms of the role the employee undertook before and after the variation; and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 109 of 161 b) secondly, considering whether those changes mean that the ‘after’ role is radically different to the ‘before’ role so as to amount to a withdrawal of the ‘before’ contract and its replacement by the ‘after’ contract (Alcan, and this exercise was described in Jackson v University Hospitals of North Midlands NHS Trust

[2023] EAT 102

). Detriment (other than dismissal) on grounds related to union membership or activities

[420]Section 146 of the 1992 Act provides that: “(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of- … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so… (2) In subsection (1) “an appropriate time” means-(a) a time outside the worker’s working hours, or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union or (as the case may be) make use of trade union services; and for this purpose “working hours”, in relation to a worker, means any time when, in accordance with his contract of employment (or other contract personally to do work or perform services), he is required to be at work. … (5) A worker or former worker may present a complaint to an employment tribunal on the ground that he has been subjected to a detriment by his employer in contravention of this section. (5A) This section does not apply where- (a) the worker is an employee; and (b) the detriment in question amounts to dismissal.”

[421]This can be broken down into a number of questions: a) Question 1: Was the Claimant subjected to a detriment by the Respondent? b) Question 2: Was that detriment targeted at the Claimant as an individual (as opposed, say, to an organisation-wide detriment)? c) Question 3: Was the Respondent’s sole or main purpose in subjecting the Claimant to detriment to prevent or deter them from taking part in the activities of an independent trade union, or penalise the Claimant for doing so? Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 110 of 161 d) Question 4: When the Claimant was taking part in the activities of an independent trade union, was he doing so at an “appropriate time”, being either:(i) outside of his working hours, or

(ii) within working hours in accordance with the agreement or consent of the Respondent for such time to be spent on trade union activities?

[422]The term “detriment” is not defined in the 1992 Act, but it is a wide concept. Elsewhere in discrimination law, the House of Lords has held that whether something is a “detriment” should be assessed from the viewpoint of the worker (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

). “Detriment” in this context does not (as per section 146(5A)) include dismissal, and dismissal on grounds related to union membership or activities is covered by section 152. Protected disclosures

[423]The term “protected disclosure” is set out in section 43A: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

[424]The basis on which a disclosure will be a “protected disclosure” is described in section 43B as follows: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”

[425]A “qualifying disclosure” made to the discloser’s employer is a “protected disclosure” pursuant to section 43C.

[426]In other words, for a person to demonstrate that they have made a protected disclosure they need to show the following: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 111 of 161 a) That they have made a “qualifying disclosure” by:(i) disclosing information;

(ii) in the reasonable belief that the disclosure was in the public interest;

(iii) in the reasonable belief that the information disclosed tended to show one or more of the “relevant failures” in section 43B(1)(a) to (f); and b) That their qualifying disclosure was made in accordance with one of the six specified methods of disclosure, which includes disclosure to their employer.

[427]Disclosing information involves conveying facts, not simply allegations (Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] ICR 325

and Kilraine v London Borough of Wandsworth

[2018] ICR 1850

[428]The language “in the reasonable belief of the worker” involves applying an objective standard to the personal circumstances of the discloser (and this was considered by the EAT in the case of Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, which concluded that those with professional or ‘insider’ knowledge will be held to a different standard than laypersons in respect of what it is ‘reasonable’ for them to believe). This “reasonable belief of the worker” language applies to both whether the disclosure is in the public interest and whether the disclosure tends to show one or more relevant failure. There are both subjective and objective elements to this test. a) The subjective element is that the worker must believe that the disclosure is in the public interest and that the information disclosed tends to show one of the relevant failures; and b) The objective element is that that belief must be objectively reasonable (Phoenix House Ltd v Stockman

[2017] ICR 84

). Protected disclosure detriments

[429]Section 47B(1) of the 1996 Act provides: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” (Emphasis added.)

[430]The protection afforded workers by section 47B is from detriment by his employer done on the ground that the worker has made a protected disclosure, so a claimant pursuing a claim under section 47B must show: a) That they made a protected disclosure; b) That they suffered some identifiable detriment; c) That detriment was at the hands of their employer; and d) There was a causal connection between the act or failure and the protected disclose – that the detriment was on the ground of their protected disclosure. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 112 of 161

[431]It is not a “but for” test, but rather whether the detriment is “on the ground” of the protected disclosure is to be understood as meaning that the protected disclosure “materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower” (Fecitt v NHS Manchester

[2012] ICR 372

[432]This requires an examination of the mental processes (conscious or unconscious) of the decision-maker – what caused or influenced them to act (or fail to act) as they did (London Borough of Harrow v Knight

EAT/0790/01

). Mr Justice Lewis in the EAT in Panayiotou v Chief Constable of Hampshire Police

[2014] IRLR 500

considered that: “Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. …”. Detriment (other than dismissal) on grounds related to union membership or activities

[433]Section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992 (the 1992 Act) provides that: “(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of- … (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so… (2) In subsection (1) “an appropriate time” means-(a) a time outside the worker’s working hours, or

(d) the detriment in question amounts to dismissal.”

[434]This can be broken down into a number of questions: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 113 of 161 a) Question 1: Was the Claimant subjected to a detriment by the Respondent? b) Question 2: Was that detriment targeted at the Claimant as an individual (as opposed, say, to an organisation-wide detriment)? c) Question 3: Was the Respondent’s sole or main purpose in subjecting the Claimant to detriment to penalise the Claimant for taking part in the activities of an independent trade union? d) Question 4: When the Claimant was taking part in the activities of an independent trade union, was he doing so at an “appropriate time”, being either:(i) outside of his working hours, or

(ii) within working hours in accordance with the agreement or consent of the Respondent for such time to be spent on trade union activities?

[435]The term “detriment” is not defined in the 1992 Act, but it is a wide concept. Elsewhere in discrimination law, the House of Lords has held that whether something is a “detriment” should be assessed from the viewpoint of the worker (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

[436]Section 13(1) of the 2010 Act describes the prohibited conduct of direct discrimination as follows: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[437]In other words, two conditions must be satisfied for a complaint of direct race discrimination, or direct discrimination on the basis of religion, to be made out: 1. The employer must have treated the claimant less favourably than it treated or would treat others; and 2. The reason for that difference in treatment is a protected characteristic.

[438]The assessment of whether treatment is less favourable is an objective one, i.e., whether the tribunal finds it so, not whether the claimant perceived it as such (Land Registry v Grant (Equality and Human Rights Commission intervening)

[2011] ICR 1390

[439]Section 13 involves the comparison of treatment afforded the claimant against a named or hypothetical comparator (“than A treats or would treat others”), and section 23(1) provides that: “there must be no material difference between the circumstances relating to each case” [i.e., there must be no material difference between the circumstances of the claimant and the comparator]. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 114 of 161

[440]Where there is no “real life” or “actual” comparator identified by the claimant, or where the claimant’s selected comparator does not meet the conditions in section 23(1), the tribunal must construct one to determine the complaint.

[441]Linden J in the EAT decision of Gould v St John's Downshire Hill

[2020] IRLR 863

described the process of constructing a hypothetical comparator for this purpose: “Where a Tribunal does construct a hypothetical comparator, this requires the creation of a hypothetical 'control' whose circumstances are materially the same as those of the complainant save that the comparator does not have the protected characteristic or has not taken the protected step. The question is then whether such a person would have been treated more favourably than the claimant in those circumstances.”

[442]When answering the second question, the examination of the reason why the decision-maker acted in the way that they did, the claimant need not show that the protected characteristic was the sole reason, but it needs to have been a “significant influence” (Lord Nicholls in Nagarajan v London Regional Transport

[1999] IRLR 572

). It is not necessary that the decision-maker was conscious of this significant influence.

[443]Lord Nicholls in Nagarajan observed that “the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

[444]In some cases it will be obvious why the complainant received the less favourable treatment, and as noted by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

: “employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant.” Discrimination arising from disability

[445]Section 15 of the 2010 Act provides that: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 115 of 161 “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if- (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[446]This, as Simler J summarised in Secretary of State for Justice v Dunn

UKEAT/0234/16/DM

, means there are four elements that must be made out in order for a claim for discrimination arising from disability to succeed:a. There must be unfavourable treatment;

b. There must be something that arises in consequence of the claimant’s disability;

c. The unfavourable treatment must be because of (i.e., caused by) the something that arises in consequence of the disability; and

d. The alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[447]In addition, as per subsection (2), the respondent must have known, or should reasonably have known, that the claimant had the disability. Failure to make reasonable adjustments

[448]The duty to make reasonable adjustments is set out in section 20 of the 2010 Act, and for the purposes of this case the relevant part of that duty is as follows: “where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a matter in comparison with persons who are not disabled, [A is] to take such steps as it is reasonable to have to take to avoid the disadvantage”.

[449]This effectively involves four questions: 1. Did the respondent know (in fact, or by reason of knowledge being imputed to them because they could reasonably be expected to know) that the claimant was disabled at the relevant time? 2. If yes, did the respondent apply a provision, criterion or practice (the PCP)? 3. If yes, did that PCP cause the claimant (a disabled person) a substantial disadvantage? 4. If yes, was there a step that could reasonably have been taken that had a prospect of ameliorating the disadvantage?

[450]The determination of whether the disadvantage is substantial (defined in section 212(1) of the 2010 Act as something that is “more than minor or trivial”) is made by way of comparison with “persons who are not disabled”. In other words, the application of the PCP must cause greater disadvantage to disabled people than to non-disabled people. This necessarily means that the PCP Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 116 of 161 applies, or is capable of applying, to non -disabled people as well as to disabled ones. An arrangement will not amount to a “PCP” if it applies, and would only ever apply, to the claimant alone (Ishola v Transport for London

[2020] ICR 1204

). It may not always be necessary to identify the non-disabled comparators if that is obvious from the nature of the PCP, and if the disadvantage to the disabled person is clear (Fareham College Corporation v Walters

[2009] IRLR 991

[451]The assessment as to whether the adjustment (or “step”) is reasonable is an objective one (Smith v Churchills Stairlifts plc

[2006] ICR 524

). Paragraph 6.28 of the EHRC Code sets out some factors which might be taken into account when deciding what is a reasonable step for an employer to have to take, those being: a) Whether taking any particular steps would be effective in preventing the substantial disadvantage; b) The practicability of the step; c) The financial and other costs of making the adjustment and the extent of any disruption caused; d) The extent of the employer’s financial or other resources; e) The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and f) The type and size of the employer. A significant consideration will be the effectiveness of the proposed step (whether it would, or might, be effective in removing or reducing the disadvantage), but the relevant considerations in a given case will depend on its particular circumstances (paragraph 6.23 of the EHRC Code). Harassment in the 2010 Act

[452]‘Harassment’ is defined in section 26, which includes, in subsection (1): “A person (A) harasses another (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.”

[453]In other words, there are three elements to this test:a. There has been unwanted conduct;

b. That has the proscribed purpose or effect; and

c. That unwanted conduct relates to a relevant protected characteristic.

[454]As for “purpose or effect”, the requisite threshold is high – intending to or causing upset or offence is insufficient – the language used (e.g., “violating” Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 117 of 161 and “ degrading”) points to purposes/effects which are serious and marked (Betsi Cadwaladr University Health Board v Hughes EAT 0179/13). “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment” (Elias LJ in Land Registry v Grant

[2011] ICR 1390

)).

[455]The question of whether conduct “related to” a relevant characteristic is determined by the Tribunal, not by the claimant’s perception (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

[456]Section 26(4) requires that: “In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken account-(1) the perception of B;

(2) the other circumstances of the case; and

(3) whether it is reasonable for the conduct to have that effect.”

[457]This is entails both subjective (the perception of B) and objective (whether it is reasonable for the conduct to have that effect) assessments of the effect of the conduct, as well as consideration of all the other circumstances of the case. The objective assessment is particular to the claimant – was it reasonable for the conduct to have the effect on that particular claimant? Victimisation

[458]Section 27 of the 2010 Act sets out that: “(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;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.”

[459]This can be summarised by way of a three-stage test: a) Did the claimant do a “protected act”? b) If yes, did the respondent subject the claimant to a detriment?; and c) If yes, was the claimant subjected to that detriment because they either did a protected act, or the respondent believed they had done or might do a protected act? Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 118 of 161

[460]“Detriment” is not specifically defined in the 2010 Act (although section 212(1) provides that it does not include conduct which amounts to harassment), but the EHRC Code (at paragraphs 9.8 and 9.9) suggests that: “Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards…”. The burden of proof in discrimination complaints

[461]Section 136(2) of the 2010 Act sets out the burden of proof applicable to proceedings under that Act: “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 the contravention occurred.”

[462]In other words, an examination of whether 2010 Act-based discrimination has occurred involves a two-stage enquiry: a) Firstly, the claimant must establish, on the balance of probabilities, facts from which the inference could properly be drawn by the tribunal that, in the absence of any other explanation, an unlawful act was committed; and then b) Secondly (if the claimant has made out a prima facie case for discrimination, as per the first stage), the burden of proof shifts to the respondent to prove, on the balance of probabilities, that the treatment in question was in no sense whatsoever on the ground of the claimant’s race (Igen Ltd (formerly Leeds Careers Guidance) v Wong

[2005] ICR 931

[463]The Court of Appeal in that case endorsed the following guidelines when applying that two-stage test:(1) It is for the claimant to prove on the balance of probabilities such facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination against the claimant.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases, the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 119 of 161

(5) It is important to note the word “could”. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw from an evasive or equivocal reply to a questionnaire or any other questions.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of the protected characteristic, then the burden of proof moves to the respondent.

(10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

[464]The first stage of that test has been considered in a number of subsequent cases, including by the Court of Appeal in Madarassy v Nomura International plc

[2007] ICR 867

, where Lord Justice Mummery observed that: “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”, and as per the Network Rail Infrastructure Ltd v Griffiths-Henry

[2006] IRLR 865

, EAT: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 120 of 161 “There does not have to be positive evidence that the difference in treatment is race or sex in order to establish a prima facie case. The mere fact, however, that a claimant is a black woman who was not appointed, and the others are white men, does not constitute sufficient primary facts to justify an inference of discrimination. The suggestion in Dresdner Kleinwort Wasserstein Ltd v Adebayo that an employee would be able to establish a prima facie case if he were black, was not promoted and was at least as well qualified as the white comparator would be agreed with where there were only two candidates, but the case becomes weaker where there are a number of candidates and the black candidate is rejected with a number of equally well-qualified white candidates. There is then no distinction between all the unsuccessful candidates and the justification for inferring a prima facie case is significantly weaker.”

[465]As to what evidence is considered at stage one, the then-President of the EAT, Elias J, opined in the decision of the EAT in Laing v Manchester City Council

[2006] ICR 1519

that: “it is for the employee to prove that he suffered the treatment, not merely to assert it, and this must be done to the satisfaction of the tribunal after all the evidence has been considered” (my emphasis). In other words, the facts presented by the respondent are also relevant to the stage one assessment. What is not relevant to that first stage is any explanation from the respondent.

[466]Sometimes the reason for a person acting in the way the claimant now complains of may not, on-the-face-of-it, seem discriminatory but, as Lord Nicholls reminded us in Nagarajan v London Regional Transport

[1999] ICR 877

: “All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim, members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did.” Inferring discrimination

[467]As has been acknowledged in the case law: “it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’.” Neill LJ in the Court of Appeal decision in King v Great Britain-China Centre

[1992] ICR 516

) Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 121 of 161

[468]As described by the EAT in Qureshi v Victoria University of Manchester

[2001] ICR 863

, in relation to disputed facts in discrimination cases: “The function of the tribunal in relation to that evidence was therefore twofold: first, to establish what the facts were on the various incidents alleged by [the claimant] and, secondly, whether the tribunal might legitimately infer from all those facts, as well as from all the other circumstances of the case, that there was a racial ground for the acts of discrimination complained of.”

[469]This approach was confirmed in Igen: after the primary facts have been determined, tribunals must consider what, if any, inferences are appropriate to draw from those primary facts seen in their totality (Qureshi), so as to determine what facts it is proper to infer. After the primary facts have been determined and the consideration of whether it is proper to draw any inferences of secondary facts, the question of whether the claimant has established a prima facie case of discrimination can then be answered. If a prima facie case has been made out in relation to any of the complaints, the burden of proof then shifts to the respondent to demonstrate that the respondent’s actions were in no sense whatsoever on the protected ground.

[470]Drawing inferences must be based on evidence, not by making use (without requiring evidence) of a verbal formula such as ‘institutional discrimination’ or ‘stereotyping’ (Stockton on Tees BC v Aylott

[2010] ICR 1278

). Employment particulars, statement of changes

[471]Section 1 of the 1996 Act contains the following: “(1) Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment. (2) Subject to sections 2(2) to (4)—(a) the particulars required by subsections (3) and (4) must be included in a single document; and

(b) the statement must be given not later than the beginning of the employment.”

[472]Section 1(4) lists the various particulars that must be included.

[473]Section 4 deals with changes, and provides: “(1) If, after the material date, there is a change in any of the matters particulars of which are required by sections 1 to 3 to be included or referred to in a statement under section 1, the employer shall give to the worker a written statement containing particulars of the change. … (4) A statement under subsection (1) may refer the worker to the provisions of some other document which is reasonably accessible to the worker for a change in any of the matters specified…”.

[474]Section 38 of the Employment Act 2002 states: “(1) This section applies to proceedings before an employment tribunal relating to a claim by a worker under any of the jurisdictions listed in Schedule 5. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 122 of 161 (2) If in the case of proceedings to which this section applies-(a) the employment tribunal finds in favour of the worker, but makes no award to him in respect of the claim to which the proceedings relate, and

(b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996… the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the worker and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.”

[475]In other words, a breach of the obligation in either section 1 or section 4 of the 1996 Act does not give rise to a freestanding right to compensation. The right to claim compensation depends on the worker succeeding in a different complaint listed in Schedule 5 of the Employment Act 2002. The list of jurisdictions in Schedule 5 includes unlawful discrimination in work cases under the 2010 Act and unfair dismissal, among other matters. Analysis

[476]As noted above, a significant number of the Claimant’s Allegations do not succeed because she has either offered no evidence that the acts or omissions with which they are concerned occurred, or because the Tribunal has concluded disputed facts in a way that means those Allegations do not succeed. Those that remain are considered as set out below. Allegation 6: That Ms Evans’ email of 14 August 2018, being an attempt to justify her actions in creasing a post for and upgrading JT, was an act of direct race discrimination

[477]Ms Evans sent an email on 14 August 2018 which explained to the Claimant’s team members, including the Claimant, what had happened to JT’s role and why. As set out above, the Tribunal has found that this email was also an attempt to justify what had happened in relation to JT’s role. The Claimant contends that this was an act of direct race discrimination.

[478]The question therefore arises as to whether, by the sending of this email, the Claimant was treated worse than a relevant comparator was or would be treated. The Claimant has referred to the treatment of Sue Kale, a white parenting officer. It is unclear how Ms Kale satisfies the section 123 of the 2010 Act conditions for being an appropriate comparator, but more fundamentally, it is unclear to the Tribunal what the treatment of the Claimant is in relation to Allegation 6. As Allegation 2 (that a post was created for JT, upgrading and promoting him without competitive assimilation) was found not to be made out on the facts, it is difficult to see how Ms Evans’ actions in sending an email to the team explaining what had happened and justifying what she had done (i.e., explaining that a new post had not been created for JT, but rather his existing post was revised to reflect tasks he was already undertaking) amounted to treatment of the Claimant. The substance of the email that was sent by Ms Evans was sent at the Claimant’s suggestion that greater openness and transparency with the team was desirable.

[479]Even if the sending of this email should properly be regarded as treatment of the Claimant, the relevant comparators for the purposes of a direct race Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 123 of 161 discrimination complaint are the other team members who the Claimant said were also concerned about JT’s treatment and who were white. Those other team members were treated in the same way as the Claimant – they were sent the same email by Ms Evans.

[480]Allegation 6 consequently does not succeed. Allegation 12: That on 24 May 2019 Ms Jones attempted to conduct a formal grievance of four workers without allowing the Claimant as their trade union representative to represent them at the hearing

[481]The Respondent agrees that Ms Jones sent an email to the MK Collective Grievance complainants on 24 May 2019. The Claimant, in Allegation 12, says that the terms of that email subjected her to detriment, and that it was done to prevent or deter her from taking part in GMB activities at an appropriate time, or to penalise her for taking part in such activities.

[482]The email from Ms Jones set out an assumption that the step in the formal grievance process that involved the complainants meeting with their manager need not be complied with, as those complainants had already met with Ms Jones (their indirect line manager, because the complaints concerned the complainants’ direct line manager). The Claimant objected to the assumption that the complainants had agreed to bypass this stage.

[483]The relevant legal questions for an allegation that the Respondent subjected the Claimant to a detriment so as to prevent or deter her from taking part in the activities of a trade union at an appropriate tie, or to penalise her for taking part in the activities of a trade union at an appropriate time, contrary to section 146 of the 1992 Act, are as follows: a) Question 1: Was the Claimant subjected to a detriment by the Respondent? b) Question 2: Was that detriment targeted at the Claimant as an individual (as opposed, say, to an organisation-wide detriment)? c) Question 3: Was the Respondent’s sole or main purpose in subjecting the Claimant to detriment to prevent or deter them from taking part in the activities of an independent trade union, or penalise the Claimant for doing so? d) Question 4: When the Claimant was taking part in the activities of an independent trade union, was she doing so at an “appropriate time”, being either:(i) outside of his working hours, or

(ii) within working hours in accordance with the agreement or consent of the Respondent for such time to be spent on trade union activities?

[484]Question 1: Was the Claimant subjected to a detriment by the Respondent? a) On one view, the assumption or suggestion that the meetings need not take place did not subject the Claimant to a detriment, but rather if there Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 124 of 161 is a detriment involved in this suggestion it is principally suffered by the complainants, who lose a further opportunity to liaise with management in an attempt to resolve their complaint. On the facts here, though, the Claimant evidently regarded this suggestion as an attempt to prevent her from taking part in her activities as a GMB representative by attempting to prevent her participating in further meetings regarding the MK Collective Grievance, and detriment should be assessed from the view point of the worker (Shamoon). It is not unreasonable for the Claimant to perceive this as an attempt to sideline her, and the Tribunal therefore concludes that this action did subject the Claimant to a detriment.

[485]Question 2: Was that detriment targeted at the Claimant as an individual (as opposed, say, to an organisation-wide detriment)? a) The Claimant was representing the complainants, and so the detriment was specific to her.

[486]Question 3: Was the Respondent’s sole or main purpose in subjecting the Claimant to detriment to prevent or deter them from taking part in the activities of an independent trade union, or penalise the Claimant for doing so? a) Ms Jones’ evidence is that, as she had already met with the complainants on a number of prior occasions, she was operating on the understanding that they would not wish to meet again, but that she was happy to do so if that understanding was incorrect. Ms Jones’ position is supported by her email correspondence with a member of the Respondent’s Human Resources team, where Ms Jones summarises to that person her belief that “Staff have agreed that [the individual investigations already carried out] can be used as part of the process and that they won’t have another interview with union representation”. The Tribunal finds this email persuasive – Ms Jones had no reason to mislead the Human Resources person who was supporting her with help and advice. We therefore consider that Ms Jones’ sole or main purpose was not to cut the Claimant out of the process, or to undermine her role in any way, but rather she was proceeding in the interests of efficiency, on the basis of her understanding of the complainants’ position.

[487]Question 4: When the Claimant was taking part in the activities of an independent trade union, was she doing so at an “appropriate time”? a) If Question 4 had been relevant, the Claimant was taking part in the activities of an independent trade union at an appropriate time.

[488]Because we find that Ms Jones’ purpose was not solely or principally to prevent the Claimant taking part in the activities of an independent trade union, Allegation 12 does not succeed. Allegation 13: That, in July 2019, the Respondent failed to take reasonable steps to avoid the disadvantage that PCP 1 – the requirement to carry out online training Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 125 of 161 within a specific deadline – caused her and others with dyslexia and chronic fatigue syndrome

[489]As set out above, examining whether this amounted to a failure to comply with the duty to make reasonable adjustments under sections 20 and 21 of the 2010 Act involves answering four questions: a) Did the Respondent know (in fact, or by reason of knowledge being imputed to them because they could reasonably be expected to know) that the Claimant was disabled at the relevant time? b) If yes, did the Respondent apply a provision, criterion or practice (the PCP)? c) If yes, did that PCP cause the Claimant (a disabled person) a substantial disadvantage? d) If yes, was there a step that could reasonably have been taken that had a prospect of ameliorating the disadvantage?

[490]The Respondent did know that the Claimant was dyslexic and that she had Chronic Fatigue Syndrome at this time, and it did apply PCP 1 to the Claimant and to others without her disabilities.

[491]The third question is more problematic, as it is far from clear that the Claimant suffered any kind of disadvantage, let alone a substantial one, by the application of PCP 1. While the Respondent accepted that it could take people with dyslexia and chronic fatigue syndrome (such as the Claimant) longer than people without those disabilities to complete the required training, no evidence was given that the period within which the Respondent expected its staff to complete that training was insufficient for her or other people with dyslexia or chronic fatigue syndrome. Moreover, there is no evidence that there was any consequence of failing to complete the training within that timeframe.

[492]There is simply no evidence that the Claimant was put to a disadvantage by the application of PCP 1. Even if she were, the natural adjustment (and the adjustment suggested by the Claimant in evidence) would be to allow people with dyslexia and chronic fatigue syndrome longer to complete the training – but that in effect was permitted by the Respondent, because there was no consequence (besides a chaser email) for late completion of the training.

[493]Allegation 13 fails because the Claimant has failed to establish that she suffered any kind of disadvantage by the application of PCP 1. Allegation 26: That the Respondent’s appointment of Ms Wardell to hear the Claimant’s Reorganisation Appeal was less favourable treatment because of race

[494]As set out above, direct discrimination involves the respondent treating the claimant less favourably that the respondent treats or would treat others, where the “other” is an appropriate comparator.

[495]The Claimant identified Ms Kale as the comparator she was relying on, but no evidence was presented to the Claimant about how Ms Kale was affected by the Reorganisation, or about who was appointed to hear any appeal Ms Kale Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 126 of 161 made against the implications of the Reorganisation for her role . The Tribunal therefore considers it appropriate to devise a hypothetical comparator – being a white person whose role was made redundant by the Reorganisation, and who was offered and accepted an assimilation post at a lesser grade.

[496]The next step is to consider how that hypothetical comparator would have been treated if she appealed the Reorganisation outcome for her – would Ms Wardell have been appointed to hear her appeal? Ms Wardell’s evidence was that she had been appointed to determine the Claimant’s Reorganisation Appeal but also the equivalent appeals of seven other members of the Respondent’s staff affected by the Reorganisation, and race was not a factor in the appointment of her to hear those appeals.

[497]We did not hear evidence from the person at the Respondent who decided that Ms Wardell was to hear the Claimant’s appeal, but email correspondence was included in the bundles which showed that a member of the Respondent’s Human Resources team asked Ms Wardell to hear that appeal, and then liaised with her about whether she was sufficiently independent to hear the appeal. Ms Wardell was clearly asked to hear all of the appeals raised, regardless of the race of the appealing employees. There is no basis for considering, therefore, that an appeal raised by the hypothetical comparator would have been heard by anyone other than Ms Wardell. There is no indication that the Claimant’s race made any difference to the Respondent’s decision that Ms Wardell should hear her appeal.

[498]Allegation 26 therefore does not succeed, because there is no reason to believe that the Claimant was treated any less favourably than any comparable other person was or would be. Allegation 29: That Ms Mayhew reprimanded the Claimant for sharing details of why she felt offended by the cake incident in an email dated 13 December 2019, amounting to direct race discrimination

[499]While we have already concluded that Allegation 29 is not made out because we find that the Claimant was not reprimanded by Ms Mayhew, we also consider that the Claimant would, in any event, fail to shift the burden of proof with this allegation. There is absolutely no reason to suppose that a white colleague, who shared details of their grievance allegations against another member of staff with a third member of staff, thus breaching confidentiality, would not be reminded about the expectations of confidence by a manager. Allegation 30: That Ms Wardell rejected the Claimant’s Reorganisation Appeal was direct discrimination because of race (institutional racism)

[500]The Respondent agrees that Ms Wardell rejected the Claimant’s Reorganisation Appeal, but disagrees that that amounted to direct race discrimination.

[501]In her witness statement the Claimant: a) Criticised the choice of Ms Wardell to hear her appeal, given Ms Wardell’s part in deciding to propose the Reorganisation in the first place, and in selecting the form that would take, as one third of the members of the DMT; and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 127 of 161 b) Criticised the outcome, but did not explain why she considered the outcome to be flawed.

[502]In her cross-examination of Ms Wardell the Claimant asked her about the steps she took to ensure that the decision the DMT took to consult on the proposed Reorganisation in the terms that it did was free from bias or race discrimination. Ms Wardell noted that: a) An equality impact assessment was conducted alongside the proposals in the consultation, and that that gave her no reason to consider that any kind of bias was involved; b) While she said that she would be “naïve” if she thought that the Respondent workers experienced no racism at all, she did not believe that racism played any part in the motivation for, or the consultation or restructure process involved in, the Reorganisation; and c) She had been the Respondent’s Equalities Lead for a time.

[503]The Claimant also took Ms Wardell to an email where Ms Wardell raised a complaint to the lead GMB representative about the Claimant having disclosed details of another person’s grievance where the Claimant had provided support as a trade union representative in the Claimant’s own correspondence about the Reorganisation proposal and its impact for her position. This complaint was made in September 2019, so preceded the consultation outcome and the determination of the Reorganisation’s particular outcome for the Claimant (which was communicated in November 2019), and preceded Ms Wardell’s determination of the Claimant’s appeal of that outcome, which occurred in December 2019.

[504]While the Claimant enquired of Ms Wardell’s considerations of race in the formulation of the Reorganisation proposal, she did not ask Ms Wardell about whether race played any part in her decision as regards the Claimant’s Reorganisation Appeal.

[505]The Claimant has not pointed to any difference in treatment between her and any other person who appealed the Reorganisation outcome for them (and we know there were seven others). Nor has she indicated in any way any “race bias” on the part of Ms Wardell.

[506]The Claimant has pointed to factors that the Tribunal consider could legitimately call into question the propriety of Ms Wardell hearing her appeal: a) That she was one of the joint decision-makers who decided to propose the Reorganisation in the terms that the Respondent did. She would be naturally pre-disposed to defend it; and b) She had raised clear concerns about the Claimant’s conduct.

[507]However, none of this provides any evidence that another person in comparable circumstances but who was white was, or would have been, treated differently to the Claimant as regards the outcome of the Reorganisation Appeal. If anything, the predisposition Ms Wardell might have felt to confirm the propriety of the Reorganisation by way of appeal outcomes would have made it more likely that other people, including white comparators, would have been treated Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 128 of 161 in the same way . Furthermore, if the Claimant could point to a difference to treatment, and Ms Wardell’s complaint about the Claimant might offer an alternative explanation for the reason for that difference in treatment than any kind of racial bias.

[508]The Claimant has simply not presented any kind of case that Ms Wardell’s appeal outcome decision was discriminatory. She has failed to shift the initial burden of proof that sits with her (as per section 136(2) of the 2010 Act), and so Allegation 30 does not succeed. Allegation 39: That Ms Jones, by not allowing the Claimant to have half an hour at work before delivering parenting programmes, was directly discriminating against the Claimant because of disability

[509]The Respondent allowed the Claimant to work flexibly, provided she started work by 10am on her working days. The Claimant was accustomed to starting work at 10am, and then, when delivering parenting programmes, scheduling them to begin at 10:30am so as to allow herself half an hour at work to get herself ready, and set up the room, organise the refreshments, etc., before commencing that training.

[510]The Claimant complained in the hearing that by requiring her to start delivering the parenting programmes at 10am, Ms Jones was making her look unprofessional, because she would arrive at work for 10am and immediately be expected to deliver training. The Claimant says this was direct discrimination on the ground of disability.

[511]The Claimant dates this complaint “from about 20 January 2020”, but Ms Jones’ evidence is that, because of the Covid-19 pandemic, the Claimant did not deliver any group parenting programmes in 2020.

[512]Ms Jones for the Respondent agrees, though, that she required that parenting programmes commence at 10am after the Reorganisation, so from February 2020 onwards (although her evidence is that no such face-to-face programmes were delivered until April or May 2021 – after the period with which the Claims are concerned). Ms Jones gave four reasons for this: a) The duration of the parenting programmes meant that, had they started at 10:30am rather than 10am, the operating hours of the Respondent’s on-site creche (9:30am to 11:30am) would have had to have been altered, which Ms Jones did not regard as reasonable; b) Under the new service, a central team was responsible for ordering refreshments and ensuring that they were set up ready for events such as this. The Claimant would not have to do that; c) With the parenting programmes situated at a fixed base post-Reorganisation, with reduced travelling for staff delivering parenting programmes, the equipment for delivering the training would be on-site, reducing set-up time; and d) It suited a colleague of the Claimant’s, who was the co-facilitator of the training, to commence work earlier than the Claimant did, and so the colleague agreed to do any required setting up so the Claimant could just get started when she arrived at 10am. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 129 of 161

[513]Furthermore, the Respondent Bundle contains an email from Mr Collins to the Claimant on 25 February 2021, which says, in response to the Claimant’s request to alter the start time of sessions to 10:30am: “We have considered starting the sessions at 10.30am but ths has an impact on childcare and also on the routines of parents, doing the school drop off, picking up from nursery etc”.

[514]For the purposes of her complaints of direct disability discrimination the Claimant points to the treatment of Clair Metcalf and Fiona Reid, but no explanation was provided of the relevance of those individuals to this allegation.

[515]From Ms Jones’ oral evidence, it appeared that to the Tribunal that she was the decision-maker regarding the start time of the parenting programmes the Claimant was to deliver, and that her reason for requiring the 10am start was the operating times of the creche. We found her evidence in that regard persuasive – she did not believe it reasonable to alter the opening hours of the on-site creches on the days when the Claimant was delivering parenting programmes when she considered that the Claimant’s reasonable adjustment work start time of 10am could be accommodated with the Claimant’s co-facilitator taking responsibility for any set-up.

[516]The Tribunal considered that an appropriate comparator would be a non-disabled person who otherwise wished to start delivering parenting programmes at 10:30am rather than 10am. The Tribunal concluded that that individual would not be permitted to do that either, because of the logistical challenges with the creche. Furthermore, the Respondent may have required that person to attend work ahead of the scheduled start time of the training. Here, the Respondent was conscious of the Claimant’s disabilities, and so had relied upon the willingness of the co-facilitator to undertake the relevant set-up as a basis for permitting the Claimant’s 10am start time. The Tribunal concluded that, if anything, the Claimant had more favourable treatment than a hypothetical non-disabled comparator would have received.

[517]Consequently, Allegation 39 does not succeed. Allegation 40: That Ms Jones said to the Claimant words to the effect that she was seeing the Claimant’s “softer side” when the Claimant was crying at a meeting on 21 January 2020, and that that amounted to direct race discrimination

[518]As noted above (and for the reasons there noted), we find that Ms Jones said words to the effect that she was “seeing the Claimant’s softer side”, but not that Ms Jones that she was “finally” seeing that softer side.

[519]The allegation the Claimant makes here is that that amounted to less favourable treatment that Ms Jones treated or would treat a comparable white person.

[520]Firstly, we do not consider that what was said was less favourable treatment (which is assessed objectively – Grant). The words were meant as a kindness – an acknowledgement that the two people in the meeting had understood each other and that the Claimant had shared some personal information which had taken courage and confidence. Ms Jones was trying to reassure the Claimant that it was okay to open up like that, and that their relationship would be the better for it. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 130 of 161

[521]Secondly, the Claimant put no case that any other comparable white person would have been treated differently.

[522]The Claimant has not shifted the burden of proof as regards this allegation, and so it does not succeed. Allegation 43: That the Claimant was segregated from her white peers from 3 February 2020, with white colleagues managed by a white manager (Ms Doyle), and the Claimant managed by Ms Terry, who is of mixed race, which was direct race discrimination

[523]The parties agree that Ms Jones determined that the Claimant was to be line-managed by Ms Terry, who is a person of colour (from early March 2020, not 3 February 2020), when other parenting officers who had been line-managed by the departing Ms Roberts were to be line-managed by Ms Doyle, who is white. However, the Tribunal considers that the Claimant has not shown the “something more” that is needed to shift the burden of proof to the Respondent to disprove the allegation of race discrimination (as per the cases of Madarassy and Griffiths-Henry).

[524]Even if the Claimant had done enough to shift the burden of proof to the Respondent, the Tribunal finds that the Respondent has discharged that burden by satisfying the Tribunal that the decision that the Claimant should be line-managed by a different manager than the other Parenting Coordinators was not done on the basis of race.

[525]The decision as to which people were line managed by which managers in the structure of the new Early Help service was taken by Ms Jones as the person heading that service. Ms Jones’ evidence was that there was a vacant line manager post for staff delivering parenting services, which was described by her as an unfortunate outcome of the Reorganisation. She said in her witness statement that: “My reasons for deciding where the staff would go was based on what would be best for the service and least disruptive for the staff. [Ms Doyle] had previously managed the parenting programmes, some of which were still running in February 2020, and the team and knew the staff. I felt she would be best placed to support the programme delivery and the 4 Parenting Practitioners. Rebecca also had a little spare capacity at that time. In contrast to the parenting programmes which the Parenting Practitioners were tasked with delivering, the Claimant’s EPEC work required a different approach and in respect of which the Claimant would need managerial and programme development support.”

[526]Ms Jones’ oral evidence to the Tribunal on this point was consistent with that written evidence.

[527]Ms Jones has provided convincing (non-race-based) reasons for why the Claimant was assigned to a different line manager than the other parenting coordinators.

[528]We find that the reason the Claimant was assigned to different line management than the other Parenting Coordinators was a combination of three considerations: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 131 of 161 a) Ms Doyle had previously managed the other four Parenting Coordinators, and was familiar with their roles, but this did not apply to the Claimant or her new role. There was no challenge to this evidence given by Ms Jones from the Claimant; b) The Claimant’s post was newly-created, and was something of a priority for the Respondent. Indeed, Ms Jones’ evidence was that, absent the commitment the Respondent had made to the roll-out of the EPEC programme, the Claimant and the other four Parenting Coordinators may well have been dismissed by reason of redundancy as part of the Reorganisation; and c) Ms Jones considered that the line management of the Claimant was going to require more intervention than was the case for the other Parenting Coordinators. This was for four reasons:(i) EPEC was a new programme, reliant on parent volunteers (by contrast to the bank of paid sessional workers the Claimant had used in her previous role), and the Respondent’s progress in establishing it was to be monitored and reported to SLAM;

(ii) The Claimant needed active support. The Claimant had expressed some anxiety about the transition to her new role in her one-to-one meeting with Ms Jones, and the Claimant had spoken to Ms Jones about her mental health challenges, so Ms Jones was on notice that the Claimant needed support in that regard;

(iii) The Claimant had displayed some behaviours that the management team had felt the need to respond to. Ms Jones spoke about how the Claimant had disrupted the “town hall” meeting to open the consultation process, and Ms McSherry had felt the need to respond to an email the Claimant sent on 8 August 2019 which had caused upset from a number of team members; and

(iv) The Claimant had forcefully challenged a number of management actions in the recent past. These were principally whether the Respondent had appropriate oversight of the management of the conflicts between Ms Evans’ personal business interests those arising in the context of her role for the Respondent, whether appropriate procedures had been followed in connection with the MK Collective Grievance, and whether the decision to disband the TF team was an appropriate one.

[529]In summary, we find the Claimant has not shifted the burden of proof that sits with her to show facts from which the inference could properly be drawn by the tribunal that, in the absence of any other explanation, unlawful race discrimination had occurred – the Claimant failed to do more than point to a difference in treatment.

[530]If we are wrong about that, and the Claimant is properly to be regarded as having shifted the burden of proof, we find that the Respondent has discharged Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 132 of 161 by demonstrating that the treatment in question (the line management allocation decision) was in no sense whatsoever on the ground if the Claimant’s race (Igen).

[531]In any event, Allegation 43 does not succeed. Allegation UDL 2: That the Claimant was dismissed on 3 February 2020

[532]Having identified the changes that were made to the Claimant’s contract of employment with effect from 3 February 2020, the question arises whether these changes are sufficient so that they should properly be regarded as amounting to the termination of the Claimant’s contract with the Respondent and her re-engagement pursuant to a new contract, thereby falling within the concept of “dismissal” for section 95(1)(a) of the 1996 Act.

[533]As described in the Law section above, the case law shows that where an employer unilaterally imposes “wholly different”, or “radically different”, terms and conditions on its employee from those under which they had previously been employed, that should properly be regarded as a dismissal of the employee (Hogg v Dover College, Alcan Extrusions).

[534]Recognising that that assessment is one of fact and degree (Jackson), the Tribunal finds that here, the Post-Reorganisation Role was not “wholly” or “radically” different to the Pre-Reorganisation Role. We reach this conclusion for several reasons: a) While the age of the children of the parents that the Claimant was to support altered on 3 February 2020 from being adolescents and older children to early years, aged 0 to 6, the Claimant was still delivering parenting support to troubled families, as was reflected in her job titles pre- and post-Reorganisation. While the work was different, it was not so wholly or radically different that it should properly be regarded as an entirely new contract. The Claimant was still supporting parents of troubled families in the Respondent’s remit, she was still liaising with schools (albeit primary schools rather than secondary schools). This conclusion is supported by the fact that when the Claimant herself understood the role to encompass parents with children aged 0 – 25 years, she thought (as reflected in her Reorganisation Appeal) that her assimilation into that role should be direct, as she had experience across the age ranges, albeit that her expertise was supporting parents with older children and adolescents. b) She was demoted by a grade as part of the Reorganisation, but that was in the context of her going from grade 11 to grade 10. The Post-Reorganisation Role was not a wholly or radically different grade from that of the Pre-Reorganisation Role. c) The Claimant experienced a salary reduction, albeit after a period of two years’ pay protection, but that reduction was thought by the parties to be around a 7% reduction. A 7% pay reduction is significant, but the pay change was not so drastically different that it points to the contract underlying the change to be a wholly or radically different one. This is supported by the fact that the Claimant did not make enquiries of the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 133 of 161 Respondent at the time as to what her salary drop would be , were it to have been effected then and there without the pay protection. Indeed, the first time that question was addressed by the parties was in response to the Tribunal’s question on the matter. d) The Claimant experienced a line manager change, but again, particularly in an organisation of the size of the Respondent, that does not indicate that the Post-Reorganisation Role was wholly or radically different from the Pre-Reorganisation Role – a change in line manager might be expected from time to time when a person is employed by such a large employer reliant on funding which is subject to change with economic and political shifts. e) The change in who the Claimant was supervise was not objectively dramatic, albeit that it engaged personal moral issues for the Claimant. The Claimant was still expected to supervise parents who she trained to deliver parenting programmes. The change was more for the parents themselves, as before the Reorganisation those parents were paid for their work by the Respondent, and after the Reorganisation the parents the Claimant was to supervise were to be unpaid volunteers. This did not significantly alter the Claimant’s supervisory role, and supervision of others remained a core part of her duties post-Reorganisation. f) The Claimant has remained working at the Civic Centre, and has not relocated to Steers Meade as was anticipated. In any event, the Claimant spoke about how pre-Reorganisation she would have to travel in her car (which is why she regarded her car allowance as so important), and so travelling to a further-away base more regularly with less peripatetic travel would not have been a dramatic change for her. g) The creation of the central hub to order and organise refreshments for the parenting programmes was not a significant alteration in her duties. h) As well as considering these changes individually, we have considered whether, taken together, they represent a wholly or radically different set of terms of conditions of employment – we find they do not. The Claimant’s terms of employment did alter, and that alteration was significant for her, most particularly as regards the age of the children whose parents she supports. However, we regard these changes as falling a significant way short of amounting to a wholly or radically different contract of employment. i) We find that the Claimant was not dismissed on 3 February 2020 by reason of the changes to her role brought about by the Reorganisation, and so Allegation UDL 2 does not succeed. Allegation 44: That the Claimant was dismissed on 3 February 2020, and that was direct race discrimination

[535]Because we have found that the Claimant was not dismissed, Allegation 44 does not succeed.

[536]If we were to reframe this allegation so that its avers that the Claimant was unfavourably treated by the Respondent in the changes to her terms and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 134 of 161 conditions of employment that fell short of dismissal, and that was an act of direct race discrimination, we still would not find that allegation made out.

[537]The Claimant has put no case to us that anyone else in comparable circumstances besides race was treated differently than she was.

[538]If anything, the best actual comparator would seem to be MK, another parenting specialist, who is white, whose role was also made redundant by the Reorganisation, and whose post-reorganisation role was at the same grade as her pre-reorganisation role. However, will the outcomes of the Reorganisation for MK and the Claimant were different, that could be entirely down to choice, as the Claimant was asked whether she wished to be assimilated into either the Post-Reorganisation Role she chose or the ME11 role that MK was ultimately assimilated into. We do not know what would have happened had both the Claimant and MK expressed a preference for the role MK was appointed to. The Claimant chose to be assimilated into the ME10 role. The evidence shows that the Claimant and MK were treated the same – they were both identified as having indirect assimilation rights into the same two roles, and they were both given the opportunity to express a preference for which role they preferred. The Respondent told them that if they had both chosen the same role, a competitive process would then have followed, but we do not know what the outcome would have been as that never occurred. The treatment that was meted out to the Claimant was the same treatment as for MK, who we regard as an appropriate comparator. We therefore consider that the Claimant would have failed to establish facts from which the tribunal could decide, in the absence of any other explanation, that the Respondent contravened section 13 of the 2010 Act. Furthermore, if the burden of proof had shifted, the Respondent would have been able to point to the Claimant’s election to be assimilated into the Post-Reorganisation Role as being the sole reason for the difference in treatment.

[539]For all these reasons, Allegation 44 does not succeed.

[540]The next allegation, Allegation 45, is one of victimisation, so the Tribunal firstly considered whether the averred “protected acts” still in contention amounted to “protected acts” for section 27 of the 2010 Act purposes. Was PA 5 a “protected act” for the purposes of section 27 of the 2010 Act?

[541]The Claimant says that she did a protected act when she accompanied Jodie Griffins, a black worker who has a disability, to a grievance appeal where the subject of the grievance was 2010 Act-related discrimination. The Respondent says that carrying out trade union work cannot amount to a “protected act”, and in order for it to be a “protected act” vis-à-vis the Claimant, she would have needed to bring the relevant grievance.

[542]We do not agree. Section 27(2) of the 2010 Act is very wide in the way it defines a “protected act”, and “doing any other thing for the purposes of or in connection with this Act” is wide enough to encompass accompanying a person bringing a 2010 Act-related grievance. Moreover, this interpretation is consistent with the protection afforded by section 27(2)(b) for persons giving evidence or information in connection with proceedings under the 2010 Act. Section 27(2) is designed to protect those involved in supporting as well as those bringing complaints that a person has contravened the 2010 Act. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 135 of 161

[543]PA 5 is a “protected act” for 2010 Act purposes. Was PA 6 a “protected act” for the purposes of section 27 of the 2010 Act?

[544]We have found that the Claimant did raise 2010 Act concerns as regards the email the Respondent sent on 16 May 2019. That email included the following: “I note that [completion of the training] has been made mandatory requirement by 31st May 2019, which for the following reasons I think maybe an unrealistic request… There are some workers who have different learning needs and requirements. However, your email does not convey what consideration and reasonable adjustments have been put in place for workers with learning difficulties or any other neurodivergent or learning disability or medical needs that may result in additional stress and pressure to complete by deadline set?”

[545]We find that this satisfies limb (d) of section 27(2), being a protected act because it made an allegation that the Respondent had contravened the 2010 Act by not, the Claimant averred, considering or making reasonable adjustments for disabled persons out at a disadvantage by the requirement. PA 6 is a protected act. Was PA 7 a “protected act” for the purposes of section 27 of the 2010 Act?

[546]The Respondent disputes the Claimant’s contention that the grievance she submitted on 12 September 2019 included complaints of discrimination on the grounds of disability, age and race.

[547]The email disclosed in the bundles includes the following: “Forgive me if the tone of this email sound personal or emotive, but I have zero tolerance for injustice…”, and goes on to accuse Ms Evans of “[whitewashing] and [ethnically cleansing] a highly respected team”.

[548]The Tribunal finds that this reference to “whitewashing” makes an allegation that Ms Evans and/or the Respondent has contravened the 2010 Act, and so the 12 September 2019 email from the Claimant to Ms Evans and EHConsultation was a protected act for the purposes of section 27 of the 2010 Act. Was PA 9 a “protected act” for the purposes of section 27 of the 2010 Act?

[549]The Respondent accepts that the Claimant raising this grievance (Grievance 1) on 31 October 2019 was a protected act. Was PA 12 a “protected act” for the purposes of section 27 of the 2010 Act?

[550]The Respondent accepts that the Claimant’s presentation of the First Claim, on 14 January 2020, was a protected act. Was PA 14 a “protected act” for the purposes of section 27 of the 2010 Act?

[551]The Respondent accepts that the Claimant’s presentation of the Second Claim, on 5 July 2020, was a protected act. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 136 of 161 Allegation 45: That the Claimant was dismissed on 3 February 2020, and that was victimisation for having done a protected act

[552]As above, we find the Claimant was not dismissed on 3 February 2020, and so this allegation fails. Allegation 46: That the Respondent failed to make reasonable adjustments in respect of PCP 2, which was its requirement, from 3 February 2020, that the parenting programmes commence at 10:00am

[553]The Respondent accepts that PCP 2 existed – that it expected parenting programmes to start at 10am, and that applied to all persons working on parenting programmes, not just the Claimant – but it says that this only applied outside of the timeframe the Claims are concerned with, from April to May 2021 (the Fourth Claim was presented on 12 April 2021). The Respondent also denies that allowing the parenting programmes to start at 10:30am was a reasonable adjustment.

[554]The case law shows that there are four questions that should be asked and answered to establish whether the duty arose and whether it was breached: a) Did the Respondent know (in fact, or by reason of knowledge being imputed to them because they could reasonably be expected to know) that the Claimant was disabled at the relevant time? b) If yes, did the Respondent apply PCP 2? c) If yes, did PCP 2 cause the Claimant (as a disabled person) a substantial disadvantage? d) If yes, was there a step that could reasonably have been taken that had a prospect of ameliorating the disadvantage?

[555]As for the first question, the Respondent accepts that it knew the Claimant was disabled by chronic fatigue syndrome at this time.

[556]In relation to the second, the Tribunal finds that the fact that the Respondent expected parenting programmes to begin at 10am from February 2020 means that PCP 2 in fact applied from that point in time. This is not a situation where the Respondent knew that it would not be delivering parenting programmes until April or May 2021 (where there may be a better argument that PCP 2 was not applied until that time), but rather that was how things turned out because the Covid-19 pandemic disrupted the delivery of those programmes for so long. We do not agree that PCP 2 did not apply in the time frame with which this claim is concerned. The Claimant knew that when parenting programmes resumed (and she did not know when that would be), she would be expected to deliver them at 10am.

[557]As for the third question, of whether PCP 2 caused the Claimant a substantial disadvantage, section 212(1) requires the disadvantage to be “more than minor or trivial”. The Tribunal heard little evidence from the Claimant about the disadvantage being required to start delivering training at 10am rather than having thirty minutes from her work start time to prepare caused her. She said in oral evidence that she was “looking late and unprofessional”, and her written witness statement noted that “it made me look unprofessional as I had no time Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 137 of 161 to settle in and had to go straight into delivery mode ” - but that was all the Tribunal heard about the disadvantage she suffered.

[558]As to whether the disadvantage was caused by the chronic fatigue syndrome, this was stated as a fact by the Claimant, and was not challenged by the Respondent. The Tribunal finds that any disadvantage the Claimant suffered was because she found it too difficult to get to work earlier than 10am, which was caused by her chronic fatigue syndrome.

[559]As a counterpoint to the Claimant’s assertions about disadvantage, the Respondent noted that there were several changes instigated by the Reorganisation that alleviated the disadvantage of PCP 2 to the Claimant: a) The central ordering system for refreshments meant that the Claimant did not have the responsibility for bringing those to the training sessions (as she had done prior to the Reorganisation); b) The change of the programmes to be more centrally delivered, requiring less travel for staff, meant that the equipment to deliver that training was always on the site where training was being delivered, and did not need to be transported by the Claimant or her colleagues (again, a change brought about by the Reorganisation); and c) A colleague of the Claimant’s had agreed to start work at an earlier time and that they would be responsible for any set-up.

[560]In light of these facts, the Tribunal finds that any disadvantage suffered by the Claimant was not “substantial” – it was “minor or trivial”. The Claimant was an experienced parenting practitioner, and could prepare for the sessions in the days before. She was only expected to turn up and start delivering the training, and it was reasonable, with the other changes made set out above, particularly the colleague’s earlier start time, to expect the Claimant to start delivering training at her agreed work start time.

[561]Even if the Claimant should properly be regarded as suffering a “substantial” disadvantage by reason of the imposition of PCP 2, we find the adjustment she sought was not reasonable, particularly in light of the creche opening and closing hours and the needs of the parent clients. It was not reasonable, in light of the relatively minor disadvantage suffered by the Claimant, for the start and finish times of the creche staff to be altered only on the days the Claimant was delivering training, and for parents to find themselves at a loose end after school drop off before the parenting programmes began. The adjustment the Claimant sought was not a reasonable one. We consider this assessment consistent with the factors identified in paragraph 6.28 of the EHRC Code. Allegation 49: That the Respondent breached its duty to give the Claimant a written statement of employment particulars or of a change to those particulars

[562]As noted in relation to Allegation 48, the Tribunal finds that the Respondent gave the Claimant a significant amount of information about the amendments to her terms and conditions of employment in connection with the Reorganisation, in its letter of 18 December 2019 – however, it failed to tell the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 138 of 161 Claimant what her new salary was, absent the pay protection it was applying for two years.

[563]Section 4(1) of the 1996 Act obliges an employer to give a worker a written statement containing particulars of any change to, among other things, “the scale or rate of remuneration or the method of calculating remuneration” (required by section 1(4)(a) of that Act).

[564]The question then arises as to whether the reference in the 18 December 2019 letter to the fact that the Claimant’s salary would revert to the top of ME10 grade at spinal point 28 at the end of the two year pay protection period was sufficient, in light of the terms of section 4(4), which permit the Respondent, when fulfilling its obligation to update those particulars by reference “to the provisions of some other document which is readily accessible to the worker”.

[565]Neither party addressed the Tribunal on the point, but what was clear was that neither party could find the source information that the letter referred to as at the date of the letter. The Tribunal asked ‘what would the Claimant’s salary have been absent the pay protection’, as part of its assessment of the Hogg v Dover College dismissal argument, and neither party could answer that question. We therefore conclude that the information about the salary at the top of ME10 grade spinal point 8 cannot have been “readily accessible” if the parties addressing us about the events that occurred at that time could not locate it. While the letter says that the Claimant’s salary was protected for two years, the Tribunal considers that the Claimant should have been provided with both what her salary would be for the present time (which she knew – it was the same salary she was receiving), as well as what her salary would have been without that protection in order to understand the implications of the changes to her role. That is the purpose of the obligation in section 4(1) – to enable workers such as the Claimant, seeing a change to their terms and conditions, to understand what those changes meant. For the Claimant, she needed to both understand what she would be paid month on month for the period of protection, but also what she might expect her salary to revert to at the end of the pay protection period by reference to her new role’s unprotected salary as at the date of the letter. We therefore find that there was a breach of section 4(1) of the 1996 Act on the part of the Respondent by not providing the Claimant with this important information. Allegation 57: That Ms Jones’ hostile emails sent on 4 March 2020 were acts of direct race discrimination

[566]As noted in the Facts section above, the Tribunal found that the first email sent by Ms Jones at 18:57 on 4 March 2020 was not hostile in tone, but we found the second, sent on the same date at 19:36, was. The Claimant avers this amounted to direct discrimination because of race, i.e., that the Claimant was subjected to less favourable treatment than a relative comparator received or would receive, and the reason for that less favourable treatment was race.

[567]The Claimant has pointed to the treatment of Ms Kale as a relevant actual comparator, but the Tribunal in fact heard no evidence about why Ms Kale was a relevant comparator for the purpose of this allegation. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 139 of 161

[568]In instances such as these, where the Tribunal may need to embark on an exercise of considering what the treatment of a hypothetical employee of the Respondent would have been, it can be helpful to consider whether the protected characteristic had a causative effect on the way the Claimant was treated (Shamoon). The reason why the Claimant was treated the way she was is a question of fact, and here the Tribunal is clear that the reason the Claimant received a hostile response from Ms Jones is because of the level of hostility communicated by the Claimant in her email to which Ms Jones was responding, for example: a) The Claimant was no longer managed by Mr Evwaraye at this point (26 February 2020), but she chose to copy him in on the email to Ms Jones, which was also copied to her then-current line manager, Ms Roberts, and her soon-to-be line manager, Ms Terry. This was an implicit challenge to Ms Jones’ authority, and undermined Ms Roberts; b) The Claimant wrote to Ms Jones: “… it does not go unnoticed for me the lack of diversity within the new team arrangements, that I am the only black worker within the team of 4 white parenting officers, and now separated to be managed by a BAME manager and my peers are managed by an all-white team. I am curious to understand the logic behind the divide?”; c) The Claimant stated, quite baldly, that “The restructure was mis-sold…”; d) The Claimant questioned, in a very direct manner, the ethics of the approach the Respondent had adopted: “How does Merton think it is ethically right to deliver EPEC and expect parents to remain dedicated to 60 hours of training and just receive expenses…?”; and e) Her hostility is again illustrated by the way she closed her email: “I await your response to my concerns”.

[569]The “reason why” the Claimant received a hostile email from Ms Jones at 19:46 on 4 March 2020 was not the Claimant’s race, it was the level of hostility the Claimant displayed in the email to which Ms Jones was responding. The Tribunal considers that a hypothetical white comparator who displayed equivalent aggression would have been met with an equally hostile response by Ms Jones, so Allegation 57 fails. Allegation 62: That Ms Hearty taking over parenting sessions for which the Claimant had previously been responsible was direct discrimination on the ground of race

[570]The Respondent accepts that Ms Hale took over the supervision of some of the paid sessional workers that the Claimant had supervised prior to her role change in connection with the Reorganisation. It denies, though, that that amounted to less favourable treatment because of race.

[571]The comparator identified by the Claimant for these purposes is Ms Kale, but no evidence has been provided of whether Ms Kale is an appropriate comparator, or how Ms Kale was treated. In looking for an alternative appropriate comparator, we observe that the Claimant’s role as EPEC Coordinator was unique – there was no white EPEC Coordinator. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 140 of 161

[572]As the case law shows (e.g., Gould), in the absence of a real life or actual comparator the Tribunal should look to construct an appropriate hypothetical comparator, and then ask itself whether such a person would have been treated more favourably than the Claimant in the same circumstances as the Claimant faced. The Tribunal here considers an appropriate hypothetical comparator to be a white EPEC Coordinator who had previously held the same Pre-Reorganisation Role as the Claimant (PEIP Parenting Officer), who was similarly affected by the Reorganisation, moving from that PEIP Parenting Officer role to the EPEC Coordinator role.

[573]When answering the question of how the hypothetical comparator would have been treated, the Tribunal needs to focus on the reason why the decision-maker acted as they did (Nagarajan). The Tribunal here finds that the reason the Respondent determined that Ms Hearty should take over supervising the paod sessional workers the Claimant had previously supervised was because the Claimant’s role had changed. We consider that if our white hypothetical comparator had changed roles in the same way the Claimant had done, she would similarly have seen a loss of her supervision of paid sessional workers. The Claimant has not suggested that Ms Hearty was appointed to her Pre-Reorganisation Role. Rather, Ms Hearty started to use the same sessional workers that the Claimant had supervised prior to the redundancy of the PEIP Parenting Officer role. We find that this was not because of the Claimant’s race, but because the Claimant’s role changed. Allegation 62 therefore does not succeed. Allegation 69: That the Respondent harassed the Claimant related to disability when, on a date in October to November 2020, it assigned the Claimant to a one-hour parking bay and then put a warning on her car that she had overstayed and that if she did it again she would be banned from the Civic Centre

[574]As noted in the Facts section above, Mr Afonso said that: a) if such a note had been placed on the Claimant’s car after her parking authorisation had been renewed, he can only think that placing the note on the Claimant’s car was a mistake on the security officer’s part; and b) the overstay warning does not warn the driver that they would be banned, but rather it warns that the vehicle would be banned for a further breach.

[575]The Claimant avers that the placing of the warning note on her vehicle amounted to harassment related to disability, contrary to section 26 of the 2010 Act.

[576]However, the Claimant did not challenge Mr Afonso that the note placed on her vehicle was in terms specific to her, or in any way different to the standard warning note Mr Afonso referred to.

[577]The Tribunal finds that the warning note was not “related to” disability as it was placed on the Claimant’s vehicle as part of the Respondent’s standard practice that applied to all vehicles parked without authorisation (albeit that it was an apparent error that the Claimant’s vehicle was regarded as being there without authorisation). The vehicles of disabled staff are less likely to be parked without authorisation, given those individuals are more likely to be entitled to park in the Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 141 of 161 designated disabled spaces for the day . The treatment complained of was not “related to” disability, and so Allegation 69 does not succeed.

[578]Moreover, the Tribunal does not consider that the placing of that warning note would have had either the purpose or effect specified in section 26. Mr Afonso’s evidence, not challenged by the Claimant, would rule out there being any such purpose, and even if the Claimant found it upsetting, the case law is very clear that the legislative language used (of violating dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment) points to purposes or effects that are serious and marked (Betsi Cadwaladr), and we do not consider (in light of both the subjective and objective considerations in section 26(4)) that this matches that description. Allegation 70: That the Respondent harassed the Claimant related to disability when the Claimant had to go to and fro and raise disability discrimination before her parking situation was resolved

[579]As noted in the Facts section above, it was accepted by the Respondent that when the issues with the parking arose, they were resolved by the Claimant complaining about them, and Ms Terry writing some emails supporting the Claimant’s need to be able to park at the Civic Centre due to her disabilities. The Claimant says that her needing to do this so as to resolve her parking issues amounted to harassment related to disability, i.e., that she was subjected to unwanted conduct which had the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The Respondent refutes this, contending that the reason the Claimant’s pass was de-authorised was simply because it expired and needed to be renewed.

[580]The Tribunal noted earlier that we accepted Mr Afonso’s evidence about the expiry of parking authorisations – that there was no decision to remove the Claimant’s parking authorisation, it had simply expired or been de-activated due to lack of use during the Covid-19 pandemic and working from home arrangements relating to the same.

[581]The steps that had to be taken to renew the Claimant’s authorisation were presented by the parties differently: the Claimant indicated that there had been quite a bit of to-ing and fro-ing on her part and on the part of Ms Terry (her line manager at the time), whereas Mr Afonso presented his response and rectification of the situation as happening relatively swiftly.

[582]At the conclusion of Mr Afonso’s evidence, when the Claimant thanked him for his evidence and told him that he had “put [her] mind at rest that nothing wrong was at play”, that was an acknowledgement on her part of the truth of his evidence that the Respondent had not deliberately set out to cause her hassle or distress by what happened with the parking. This acceptance rules out the Respondent having the requisite “purpose” to support a finding of harassment.

[583]Of course, the fact that the Claimant’s mind was only put at rest in the course of the hearing indicates that it was not at rest at the time – that the Respondent’s response to her reports about her car parking issues had caused her some distress. However, as noted above in relation to Allegation 69, the case law is clear that the purpose or effect should be serious and marked. We do not Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 142 of 161 consider that the Claimant, particularly when she encountered the swift support of her line manager, would have experienced a serious or marked effect from trying to resolve her parking authorisation with the Respondent, and even if she did, it was not reasonable for her do so (which must be taken into account, as per section 26(4)).

[584]We do not consider the legislative test for harassment made out, and so Allegation 70 does not succeed. Allegation 72: That Ms Terry pressured the Claimant to change what she had written for a Covid risk assessment on 12 March 2021, which was less favourable treatment because of disability

[585]As we have found on the Facts, there was some pressure applied by Ms Terry in her 12 March 2021 email in seeking to get the Claimant to amend the content of her Covid-19 risk assessment.

[586]However, it is clear from reading that correspondence that Ms Terry was not seeking to inhibit the concerns the Claimant raised, because she presented the alternative of the non-Covid-related concerns being raised by way of a new stress risk assessment. The Tribunal therefore does not consider that the Claimant was subjected to less favourable treatment by this email or the suggestion made in it (which is an objective assessment – Grant). The Claimant was simply asked to raise the concerns she was expressing as part of a different process, not least because the Claimant had previously expressed anxiety about the protection given to her personal information, and Ms Terry was aware that the Covid-19 risk assessment contents would be sent outside the Respondent’s organisation, whereas the Stress risk assessment contents would not. This is not less favourable treatment, but rather Ms Terry seeking to look out for the Claimant’s interests, as well as likely the Respondent’s in ensuring that the relevant content was in the Covid-19 risk assessment and the other content was raised by the appropriate channel.

[587]Allegation 72 consequently does not succeed. Allegation 74: That Ms Doody’s rejection of the Claimant’s appeal against Grievance 1, together with Ms Doody ignoring substantial supporting documents the Claimant had provided, was direct race discrimination Ignoring substantial supporting documents

[588]In order to amount to direct race discrimination, the Respondent (in the person of Ms Doody) would need to have treated the Claimant less favourably that it treats or would treat comparable other people, and the reason for the difference in treatment would need to be race.

[589]The Tribunal has accepted the reason given by Ms Doody for ignoring some of the evidence submitted by the Claimant – she did not consider it to be relevant to the appeal points which she was considering.

[590]This reason does not involve race, and so (as per Shamoon) Allegation 74 fails as regards the complaint that Ms Doody ignored documents. Rejecting the appeal Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 143 of 161

[591]The Respondent agrees that this occurred, but it disputes that Ms Doody did this on the proscribed ground of race.

[592]The Tribunal has found (see the Facts section above) that Ms Doody’s reasons for rejecting the Claimant’s Grievance Appeal were those set out in her letter, which are not on the basis or connected to race. Consequently (as per Shamoon), the remainder of Allegation 74 does not succeed. Allegation 98: That the Respondent imposed a provision, criterion or practice of requiring the Claimant to fulfil a work plan outside her skillset (PCP 4), and in doing so the Respondent failed to make reasonable adjustments to avoid the disadvantage she suffered in light of her disabilities

[593]We have already found that PCP 4 was not applied to the Claimant, but in any event, as a requirement that was not of general application but was particular to the Claimant, PCP 4 does not amount to a provision, criterion or practice for the purposes of section 20(3) of the 2010 Act. Therefore even if the Respondent had imposed PCP 4 on the Claimant, that would not engage the duty to make reasonable adjustments, and so Allegation 98 could not succeed. Allegations 102, 103 and/or 104: That Ms Pereira telling the Claimant on 23 February 2021, 25 February 2021 and/or 2 March 2021 that she should apply for a blue badge for parking purposes was direct disability discrimination

[594]As noted above, the Tribunal has found that in her grievance investigation report, Ms Pereira wrote that if the Claimant has a blue badge, she should use it, and if she doesn’t have one, Ms Pereira advised her to apply for one via a GP. It is not clear when this report was provided to the Claimant, but it was sent to Ms Terry on 23 March 2021.

[595]In order to succeed with these complaints of direct disability discrimination, the Claimant would need to show that she was treated less favourably than a non-disabled comparator because of disability.

[596]As per the case of Grant, the test of whether treatment is less favourable is an objective one, and the Tribunal considers that the treatment here was not less favourable. Ms Pereira at best used her experience as a social worker to try to identify practical steps that could assist the Claimant achieve the end the Claimant desired (to be located at or near her workplace, and close to food shops or a canteen). At worst, the Claimant already knew this information.

[597]Accordingly, Allegations 102, 103 and/or 104 do not succeed. Allegation 117: That the rejection of the Claimant’s Grievance 2 complaint by Ms Pereira was direct race discrimination

[598]As noted in the Facts section above, we have found that the reasons Ms Pereira gave for rejecting the Claimant’s Grievance 2 were those given in the Grievance 2 outcome letter. Those reasons were not race-based. The reason Ms Pereira did not uphold the majority of the Claimant’s complaints in Grievance 2 was not race, and so Allegation 117 cannot succeed (Shamoon). Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 144 of 161 Allegation 118: That Ms Pereira’s failure to take the notes of the investigation meeting with Ms Jones was direct race discrimination

[599]As noted in the Facts section above, we have found that Ms Pereira did take handwritten notes of her meeting with Ms Jones, and the reasons Ms Pereira did not retain them were unrelated to race. Allegation 118 cannot succeed (Shamoon). Was Disclosure 3 a “protected disclosure” for the purposes of section 47B of the 1996 Act?

[600]The Tribunal does not in fact need to determine this question, as none of the averred protected disclosure detriments were made out. In any event, we do not consider it reasonable for the Claimant to consider that the use of volunteers instead of paid sessional workers tended to show that: a) A criminal offence had been, was being or was likely to be committed; b) A person had failed, was failing or was likely to fail to comply with any legal obligation; and/or c) The health or safety of any individual had been, was being or was likely to be endangered (the Averred Qualifications).

[601]Volunteers are used by a multitude of organisations (e.g., charities) to carry out important and valuable work. It is not credible for the Claimant to assert that she believed that their use, in place of paid sessional workers, tended to show any of the Averred Qualifications. In support of her contention the Claimant pointed the Tribunal to a document authored by the Trade Union Congress (the TUC Charter on Strengthening Relations between Paid Staff and Volunteers: Agreement between Volunteering England and the TUC, dated 7 December 2009), included in the Claimant Bundle, which did not indicate that the use of volunteers in those circumstances amounted to any of the Averred Qualifications. On the contrary, it is clearly identified as an agreement between the TUC and Volunteering England, and described as “a statement of principles and good practice”.

[602]Moreover, Disclosure 3 did not convey facts, merely allegations, and so cannot amount to a protected disclosure (Geduld, Kilraine).

[603]Disclosure 3 did not convey information, nor was it made by the Claimant in the belief that it tended to show the Averred Qualifications, and in the alternative that she did, it was not a reasonable belief, particularly in light of reading the document the Claimant herself relied upon (Korashi, Stockman).

[604]Disclosure 3 was not a protected disclosure. Conclusions

[605]For all of the above reasons, each of the Claimant’s complaints, save for Allegation 49, fails. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 145 of 161

[606]Although we find that the Respondent breached section 4(1) of the 1996 Act (Allegation 49), that breach is remedied only by a declaration in this judgment: there is no right for the Claimant to seek compensation because she has not succeeded in any of her other complaints which would give rise to a consideration of compensation (pursuant to section 38 of the Employment Act 2002).

REASONS

[1]A Preliminary Hearing took place on 29 September 2023. One of the issues for the Tribunal to decide was: Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 2 of 10 (i) Was the claimant “disabled” under s.6 Equality Act 2010 at the relevant time by virtue of her diabetes? The hearing and the issues

[2]The respondent accepts that the claimant had dyslexia and chronic fatigue syndrome and that the associated impairments amounted to a disability. The respondent accepts the claimant was diagnosed with diabetes in about 2017 but does not admit that it met the definition of disability at the relevant time. It was agreed that the issues for the Tribunal are:2.1 Did the diabetes have a substantial adverse effect on the claimant’s ability to carry out day-to-day activities at the relevant time?

2.2 If not, at the relevant time, did the claimant have medical treatment, including medication, or take other measures to treat or correct the diabetes? 2.2.1 Would the diabetes have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?

2.3 Were the effects of the diabetes at the relevant time long-term? The Tribunal will decide:2.3.1 Did they last at least 12 months, or were they likely to last at least 12 months?

2.3.2 if not, were they likely to recur?

[3]The claimant had submitted 6 pages of medical evidence and a 7 page disability impact statement. She gave oral evidence to the Tribunal. Both the claimant and Mr Davies gave closing submissions.

Findings of Fact

[4]An Occupation Health Report dated 4 December 2018 confirms that the Claimant had suffered from type 2 diabetes since 2017 when she was prescribed with medication and that “this condition seems to be under control at present despite the fact that [the Claimant] report[s] that she gets side effects that occasionally she cannot tolerate such as nausea and vomiting”.

[5]A letter dated 14 February 2019 from the department of neurology to the claimant’s GP includes that the claimant is “on metformin for diabetes HbA1c said to be high at 55”.

[6]A letter from Dr Murphy dated 28 December 2022 states: Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 3 of 10 “I can confirm that this lady has Type 2 diabetes since 2016. Her recent bloods show that her sugars are at the target range for treatment (they have improved over the past year). Which she has informs is due to being at home. She is on twice daily metformin tablets for sugar control and once daily atorvastatin to control cholesterol. Miss Thompson’s symptoms from diabetes, has made it difficult for her to cope with day-to-day living due to severe tiredness and neuropathy (loss of sensation in both her legs and hands. As well as suffering from insomnia making her, lack concentration in the day and urgent need to nod off in the days. The long-term effect of living with diabetes for Miss Thompson with stage 3 kidney failure is she is prone to frequent urine infections and recuring athlete feet. On diagnosis, Miss Thompson did not cope well living with her diabetes due to side effects of her medication causing her extreme dizziness, constipation/diarrhoea, nausea, and vomiting.”

[7]The claimant wrote an impact statement on 20 January 2023, the relevant extract for these purposes is as follows: “To date, I live daily with feeling of nausea that will just suddenly come upon me with dizziness vertigo as if I am going to pass out at times. This feeling is further exacerbated by the constant tingling and numb sensation in both my hands and feet, that do not go away even under medication. What aggravates it is using mobile phone or the keyboard of a laptop, which triggers shooting pain to the tips of my fingers. I struggle with concentration and have to do work with short and frequent breaks to shake numbness and tingling out of my hand. At its worse, I can’t even feel I am tapping the keys or spacebar on the computer. I equally have an adverse reaction to coldness and need to be in a warm environment. Emotional Symptoms Living and working with long-term medical conditions and diabetes takes it toll on my energy, physical strength and my mental health.• I suffer from clinical depression of which I am being treated, but undue work related stress has caused me to relapse. Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 4 of 10 I use to be very confident and self-sufficient and resourceful, but currently my life consist of pain and stress. The hardest part for me with living with diabetes is coping with constant neuropathy in my hands and feet. This makes simple task as holding a cup of tea, using a pen, testing on the phone and using my laptop unbearable due to intense tingling leading to numbness where I cant feeling the keyboard. Its like living with frost bite. The fatigue causes me to lack concentration, due to brain fog and tension in my neck leading all the way up to my head. I often feel demotivated due to my current situation both at work and home. I suffer daily with frustration around challenges to focus or maintain reading without an inordinate amount of energy and effort…”

[8]In oral evidence to the Tribunal, the claimant’s evidence was consistent with her impact statement and it was therefore accepted. Her view was the neuropathy and tiredness was a part of her diabetes. She described how in 2017 she was having pins and needles in her hands and feet and this prompted her to visit the GP. She also had an urge to urinate and was thirsty. She was prescribed Metformin and she continues to take that, although at first the Claimant suffered from an adverse reaction to it.

[9]The claimant described how metformin does not make a difference to the tingling and neuropathy. The metformin helps keep her blood sugar levels under control, when it is too high she reviews what she has been eating and drinking and tries to change her diet. She is worried about getting worse so that she will have to inject insulin, something she does not want to do. In addition, the claimant has access to a coach who helps her with understanding her medication and her condition better and how her activities and diet can help her manage her diabetes. The Dr describes this coaching as in order to “assist her with pain management, be clear about her medicines and complications when failing to regulate her sugar levels. “

[10]The claimant uses a blood pin prick test to test her blood sugar levels and make sure she is not too low or too high.

[11]Unfortunately, the claimant also developed carpal tunnel and had an operation to relieve that in 2021.

Law

[12]Section 6 of the Equality Act 2010 (“EqA”) 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… Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 5 of 10 (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

[13]The questions for the Tribunal to answer therefore are: a) Did the claimant have a mental or physical impairment? b) Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? c) Was the adverse condition substantial (defined in S.212(1) EqA as meaning ‘more than minor or trivial’)? And d) Was the adverse condition long term?

[14]Paragraph 5 of Schedule 1 EqA provides: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:(a) measures are being taken to correct it, and

(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.”

[15]Paragraph 12 of Schedule 1 EqA provides that when determining whether a person is disabled, the Tribunal “must take account of such guidance as it thinks is relevant.” The “Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability” (May 2011) (the “Guidance”) was issued by the Secretary of State pursuant to s. 6(5) of the EqA 2010.

[16]The Guidance sets out a number of factors to consider including: the time taken by the person to carry out an activity [paragraph B2]; the way a person carries out an activity [B3]; the cumulative effects of an impairment [B4]; the cumulative effects of a number of impairments [B5/6]; the effect of behaviour [B7]. B7 provides: “Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities. Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 6 of 10 For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities. (See also paragraph B12.) When considering modification of behaviour, it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing. It would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport.”

[17]The effect of environment is set out in [B11] and the effect of treatment is in [B12]. B12 provides “In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs”. B14 states: “… Similarly, in the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.”

[18]The Equality and Human Rights Commission (EHRC) has published the Code of Practice on Employment (2015) (“the Code”). Both the Guidance and the Code do not impose legal obligations but tribunals and courts must take into account any part of the Guidance and/or Code that appears to them relevant to any questions arising in proceedings.

[19]An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect. In this regard, likely means “could well happen”: Boyle v SCA Packaging Ltd

[2009] ICR 1056

HL. In assessing whether there is a substantial adverse effect on the person’s ability to carry out normal day-to-day activities, any medical treatment which reduces or extinguishes the effects of the impairment should be ignored.

[20]In circumstances where a person (P)(a) has a progressive condition,

(b) as a result of that condition P has an impairment which has (or had) an effect on P's ability to carry out normal day-to-day activities, but

(c) the effect is not (or was not) a substantial adverse effect, then P is to be taken to have an impairment which has a substantial adverse effect if the condition is likely to result in P having such an impairment (Schedule 1, paragraph 8(1) and (2)).

[21]The time at which to assess whether there is an impairment which has a substantial adverse effect on normal day-to-day activities is the date of the alleged Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 7 of 10 discriminatory act. This is also the material time when determining whether the impairment has a long-term effect. It may be necessary for the Tribunal to draw inferences, based upon the evidence before it, as to the relevant time at which an impairment existed and/or produced substantial adverse effects. However, the key question is whether, at the time of the alleged discrimination, the adverse effects of an impairment have been established as both substantial and long-term. That is to be assessed by reference to the facts and circumstances existing at that date. The Tribunal is not entitled to have regard to events occurring subsequently (All Answers Ltd v W

[2021] IRLR 612

CA. 76.

[22]Mr Davies refers the Tribunal to Metroline Travel Ltd v Stoute

[2015] IRLR 465

EAT and Taylor v Ladbrokes Betting & Gaming Ltd [2017] IRR 312 EAT.

[23]In Metroline the claimant was a bus driver who suffered from type 2 diabetes which he controlled largely by avoiding sugary drinks during the two periods where he was not taking Metformin. It was the side effects of the metformin that caused the claimant to be unable timeously to perform work by reason of the side effect of diarrhoea. HHJ Serota QC allowed the appeal as he did not accept that abstention from sugary drinks constitutes a substantial adverse effect on day-to-day activities caused by type 2 diabetes as: “It would mean that any person suffering from Type 2 diabetes controlled by diet is to be regarded as disabled under the Act. It would also mean that people with other conditions such as nut allergies, intolerance to lactose or what have you would also be regarded as disabled. I agree with Mr Solomon’s submission that Type 2 diabetes per se does not amount to a disability.”

[24]In Taylor v Ladbrokes Betting & Gaming Ltd [2017] IRR 312 EAT HHJ Hand QC allowed the appeal of the claimant as the findings made by the Employment Judge were not supported by the medical evidence and the issue of whether the Appellant’s diabetes was a progressive condition, and therefore should be deemed under paragraph 8(2) of Schedule 1 to the Equality Act 2010 to be likely to result in a substantial adverse impairment on his ability to carry out day-to-day activities, should be re-considered in the light of further medical evidence.

Conclusions

[25]Unfortunately the claimant suffers from a number of conditions, and unsurprisingly it is not always easy to work out what symptom is as a result of what impairment. However, in respect of diabetes, her evidence is clear that she originally went to the doctors in 2016 because of the tingling and numb sensations in her hands and feet, as well as the thirst and urge to urinate. She also says “the constant tingling and numb sensation in both my hands and feet, that do not go away even under medication.”

[26]The claimant has not provided medical records confirming that she has visited medical professionals about this neuropathy. The claimant says that she was told Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 8 of 10 that she did not have to disclose documents containing her private information and so she restricted what she disclosed. However, the letter from Dr Murphy confirms that: “Miss Thompson’s symptoms from diabetes, has made it difficult for her to cope with day-to-day living due to severe tiredness and neuropathy (loss of sensation in both her legs and hands. As well as suffering from insomnia making her, lack concentration in the day and urgent need to nod off in the days.”

[27]Dr Murphy is saying that the claimant’s symptoms of diabetes are severe tiredness and neuropathy (loss of sensation in both her legs and hands), and these make it difficult for her to cope with her day to day living. It is not clear to me, however, whether the claimant has a separate diagnosis of insomnia.

[28]Dr Murphy also says “The long-term effect of living with diabetes for Miss Thompson with stage 3 kidney failure is she is prone to frequent urine infections and recuring athlete feet.”. However, it is not clear how likely it is that the claimant will suffer from frequent urine infections and recuring athlete foot. In her disability impact statement the claimant says that at the time she was first diagnosed with diabetes, “I was also suffering from with severe athletes’ feet which still causes ongoing and recurring issues to date.” However, it is not clear what the effects are on her ability to carry out day to day activities. Further, there does not seem to be evidence of what the effects of the urine infections are. I therefore conclude that, with the information available to me, recurrent athletes foot and urine infections do not meet the test under s.6 EqA.

[29]There is evidence that on diagnosis the claimant suffered from side effects of her medication causing her extreme dizziness, constipation/diarrhoea, nausea, and vomiting. However, this appears to have cleared up as she now regularly takes metformin.

[30]Returning to the neuropathy and severe tiredness. The claimant gives the following examples of the difficulties she has on a daily basis from her neuropathy: “What aggravates it is using mobile phone or the keyboard of a laptop, which triggers shooting pain to the tips of my fingers. I struggle with concentration and have to do work with short and frequent breaks to shake numbness and tingling out of my hand. At its worse, I can’t even feel I am tapping the keys or spacebar on the computer.”

[31]The claimant also says: The hardest part for me with living with diabetes is coping with constant neuropathy in my hands and feet. This makes simple task as holding a cup of tea, using a pen, testing on the phone and using my laptop unbearable Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 9 of 10 due to intense tingling leading to numbness where I cant feeling the keyboard. Its like living with frost bite. The fatigue causes me to lack concentration, due to brain fog and tension in my neck leading all the way up to my head. I often feel demotivated due to my current situation both at work and home. I suffer daily with frustration around challenges to focus or maintain reading without an inordinate amount of energy and effort.

[32]Using a telephone or a computer, holding a cup of tea, using a pen are day to day activities. Shooting pain, struggling with concentration and having to perform short periods of work with frequent breaks to shake the numbness and tingling out of her hand show that the impairment is having an adverse effect on her ability to carry out day to day activities. Substantial means more than minor or trivial, it was substantial in this case. By the time of the start of the discriminatory period the diabetes had already lasted over 12 months, it was long term.

[33]I conclude that the symptoms of the claimant’s diabetes, namely neuropathy and severe tiredness, had a substantial adverse effect on the claimant’s ability to carry out day-to-day activities at the relevant time.

[34]In Metroline, the EAT held that type 2 diabetes is not necessarily a disability for the purposes of the EqA 2010. The EAT noted that paragraph B12 of the Guidance must be read in conjunction with paragraph B7. This requires account to be taken of how far a person can reasonably be expected to modify his or her behaviour to prevent or reduce the effects of an impairment. A coping or avoidance strategy might alter the effects of the impairment such that they are no longer substantial, and the person would no longer meet the definition of disability. A particular diet may be a “treatment or correction” that must be ignored when assessing the effect of an impairment. However, the impact on day-to-day activities of a “diabetic diet” might be sufficiently small that it could not constitute a treatment or correction. It would be a reasonable behavioural modification of the type contemplated in paragraph B7. The EAT in Metroline were concerned not to open the floodgates to a condition that might be easily controlled by lifestyle modifications alone. Whether diabetes gives rise to a disability must be assessed on a case-by-case basis. If it is genuinely the case that a particular individual can manage their condition without medication and simply by adopting reasonable dietary modifications, then it may well be that the question whether the condition has a substantial adverse effect should be determined after taking those modifications into account. However, the provisions relating to medication and control by diet are not particularly relevant to the current case, as the metformin and dietary control do not affect the neuropathy and severe tiredness that the claimant suffers as part of her diabetes.

[35]Taylor v Ladbrokes Betting and Gaming Ltd

[2017] IRLR 312

concerned the assessment of diabetes as a progressive condition and proper medical evidence that ought to be taken into account. Again, this is not the position for the current Case Number: 2300217/2020 2302818/2020 2307642/2020 2301372/2021 10 of 10 case. The claimant is not saying that her diabetes should be a deemed disability as it is progressive, she is saying that since diagnosis in 2016/2017, her symptoms of diabetes have had a substantial adverse effect on her ability to carry out day-to-day activities.

[36]For all the above reasons I conclude that the claimant is “disabled” pursuant to s.6 EqA by virtue of the neuropathy and severe tiredness caused by diabetes. EJ Burge 4 October 2023 Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 1 of 13 EMPLOYMENT TRIBUNALS Considered at: London South On: [DATE] December 2024 By: Employment Judge Ramsden and Mr K Murphy In the matter of Miss S Thompson v The Mayor and Burgesses of the London Borough of Merton Consideration of judgment reached on: 27 September 2024

Conclusions

[1]The Claimant’s application for reconsideration of the judgment dismissing her claim given in this matter on 27 September 2024 has been considered, but it has no reasonable prospect of causing the original decision to be varied or revoked. The application is refused the decision in that judgment is confirmed.

BACKGROUND

[2]The Claimant’s Claim Forms were filed on 14 January 2020, 5 July 2020, 17 November 2020 and 12 April 2021.

[3]The Claimant claimed that: a) She was unfairly dismissed (in breach of section 94 of the Employment Rights Act 1996 (the 1996 Act); b) Her dismissal was automatically unfair (pursuant to section 103(1) of the 1996 Act), because it was for the reason or principal reason that she performed or proposed to perform any functions or activities as an employee representative for members of the GMB trade union; c) Her dismissal was automatically unfair (pursuant to section 103A of the 1996 Act), because it was for the reason or principal reason that she made a protected disclosure; Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 2 of 13 d) She was subjected to five different detriments for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union, or penalising her for doing so, in contravention of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act); e) She was subjected to 40 instances of detriment on the ground that she made one or more protected disclosures (relying on four disclosures), in contravention of section 47B of the 1996 Act; f) She was directly discriminated against on ten occasions because of one or more of her disabilities (section 13 of the Equality Act 2010 (the 2010 Act)); g) She experienced six incidents of unfavourable treatment because of things arising in consequence of her disability(ies) (section 15 of the 2010 Act); h) The Respondent failed to make reasonable adjustments in relation to six provisions, criteria or practices it applied to her (in breach of section 21 of the 2010 Act); i) By three instances of unwanted conduct, the Respondent harassed the Claimant related to disability (as described in section 26 of the 2010 Act); j) She was directly discriminated against on 28 occasions because of her race (section 13 of the 2010 Act); k) She was subjected to detriment on 23 occasions because of one or more of five ‘protected acts’ (as described in section 27 of the 2010 Act); and l) She was not provided with a written amendment to her written particulars of employment when she was demoted and/or dismissed on 3 February 2020 (in breach of section 1 of the 1996 Act). In total, the Claimant made 118 complaints. The Respondent resisted each of those complaints.

[6]There were nine preliminary hearings before the matter came for final determination before the London South Employment Tribunal in a 15-day hearing which began on 10 June 2024.

[7]All of the Claimant’s complaints failed save one. The remedy for the successful complaint was a declaration made in the judgment. APPLICATIONS

[8]The Claimant applied on 14 October 2024, under Rule 71 of the Employment Tribunals Rules of Procedure 2013 (the ET Rules), for reconsideration of the Tribunal’s decision.

[9]The Claimant’s reasons for applying for reconsideration of that decision are that: Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 3 of 13 a) The Tribunal failed to take account of key evidence. b) The Tribunal failed to accommodate her disabilities and provide equal treatment. c) The Claimant could not navigate the bundle. d) The Respondent redacted substantial parts of the bundle without adequate explanation or justification. e) The Tribunal refused the Claimant’s request to admit a supplementary bundle, which contained crucial evidence supporting her claims. f) The Tribunal failed to provide additional assistance to the Claimant to help her navigate the bundles. g) The Tribunal failed to extend the hearing to give the Claimant more time to process the witness statements and evidence presented during the hearing. h) The Tribunal failed to give the Claimant more structured support to guide the Claimant through the process. i) The Tribunal failed to take account of crucial evidence, such as an email from Allison Jones dated 21 June 2019, targeting the Claimant for demotion. j) The Tribunal failed to take account of the procedural tactics used by the Respondent, namely the repaginated bundle and delayed submission process. k) Due to the overwhelming emotional distress caused by the breakdown of the Claimant’s marriage just weeks before the hearing and her increased antidepressant dosage, the Claimant was not in a position to direct the Tribunal to key evidence within the bundle. l) The Tribunal failed to provide the Claimant with an advocate or legal aid to support her in cross-examining witnesses and navigating evidence. m) The Tribunal failed to provide a detailed timetable for the hearing. n) The Tribunal failed to make sufficient time allowances to accommodate the Claimant’s chronic fatigue and emotional distress. o) The Tribunal failed to allow the Claimant to submit electronic documents through manageable means, such as “WeTransfer”, and ensure that all electronic documents were accepted without undue procedural barriers. p) The Tribunal failed to allow the Claimant to give her evidence with her back to the Respondent witnesses, whereas the Claimant’s son was asked to leave for falling asleep in the public gallery to avoid distraction of the Respondent witness; and Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 4 of 13 q) The Tribunal permitted the Respondent witnesses to pass notes to the Respondent’s representative when the Claimant was giving her evidence. RULES

hearing.

[10]The Rules on reconsideration are set out in Rules 70 to 73 of the ET Rules.

[11]Rule 70 provides: “Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”

[12]Rule 71 sets out the conditions on which a party may make an application for reconsideration: “Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.”

[13]Rule 72 deals with the process the tribunal must follow regarding an application made under Rule 71: “Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked… the application shall be refused, and the Tribunal shall inform the parties of the refusal…”

[14]On time limits, Rule 5 states: “Extending or shortening time. The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.” Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 5 of 13 JURISDICTION TO RECONSIDER THE JUDGMENT REACHED

[15]Judgment in these cases was reached on 27 September 2024, and sent to the parties by the Tribunal on 30 September 2024.

[16]The Claimant applied for an extension of time to make an application for reconsideration on 3 October 2024, as she said she was at that time undergoing intense mental health treatment and therapy. No medical evidence was provided.

[17]The Claimant made an application for reconsideration on 14 October 2024. This was one day outside the 14-day timescale permitted for applications of reconsideration under Rule 71.

[18]The Tribunal has determined to extend the time limit specified in Rule 71 to permit the Claimant’s application for reconsideration made on 14 October 2024. While no evidence was provided of the Claimant’s mental treatment and therapy, the Tribunal is conscious of the Claimant’s dyslexia, and the judgment was lengthy (at 161 pages), as it dealt with 118 different complaints. In that context, it is in the interests of justice that the Claimant’s application for reconsideration be permitted.

[19]As noted above, the Tribunal has determined that there is no reasonable prospect of the original decision being varied or revoked, and the Claimant’s application is refused, and the original decision confirmed.

[20]The Tribunal’s reasons for doing so are as follows, set out in response to each ground for reconsideration made by the Claimant: a) The Tribunal failed to take account of key evidence.(i) The Application fails to identify what evidence the Claimant saysthe Tribunal failed to take into account, unless she is referring to the email from Allison Jones of 21 June 2019, which is dealt with under the separate ground concerning that heading below.

(ii) As noted in the judgment, at the outset of the hearing the Tribunalmade it plain to the parties that we would read and consider any document in either bundle to which we were taken by written or oral witness evidence or submissions, but that the parties should not assume that we would otherwise read the contents of the bundle which neither party was relying on. This is both common practice Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 6 of 13 and was essential in this case, where the number of pages in aggregate between the two bundles exceeded 8,000 pages.

(iii) Any document that the Claimant took the Tribunal to wasconsidered. Moreover, when both giving her own evidence and cross-examining Respondent witnesses, the Claimant often struggled to find a document she wished to refer to. The Claimant would tell the Tribunal what the document was, and commonly Mr Davies, Respondent Counsel, or Mr Cameron, from the Respondent organisation who was instructing Mr Davies, would then direct her to a document that he thought matched that description, which was usually the document the Claimant was looking for. Both bundles were searchable using Optical Character Recognition, and so the Panel would search in the electronic bundles for a word, phrase or title that was thought to match the Claimant’s description. In almost all cases the desired document was located, and the Claimant’s evidence or cross-examination would resume with her being able to refer to the document she wished to.

(iv) The Claimant did not indicate to the Tribunal during the hearing thatshe could not find a document that she thought amounted to key evidence. b) The Tribunal failed to accommodate her disabilities and provide equal treatment. (i) The Claimant acknowledges that some adjustments were made tothe conduct of the hearing. The Claimant has not identified any adjustments she requested which were not accommodated. (ii) The Claimant says that her distress and difficulties were observedby the Tribunal – which is correct, and breaks were frequently taken to give the Claimant time to gather herself and resume. The hearing only resumed when the Claimant confirmed that she was able to. There were several times when the Employment Judge offered the Claimant breaks and she said that she did not need them. (iii) On one occasion, when the hearing resumed after the lunch break,the Claimant told the Tribunal she felt tired, and so the hearing was adjourned until the following morning. On another occasion, the Claimant was upset by some of the evidence given by one of the Respondent witnesses, and the hearing adjourned at around 3pm and resumed the following morning. On another occasion the Claimant was tired and so the hearing adjourned at around 3pm for the day. There were times when the Claimant Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 7 of 13 communicated through the clerk at the end of the scheduled lunch break that she needed more time. All of these adjustments were accommodated. (iv) The Claimant notes in her application that the Employment Judgesaid that it was not for the Employment Judge to make the Claimant’s case for her. This was said and is correct. Justice requires that the Judge remains neutral in the proceedings. c) The Claimant could not navigate the bundle. (i) As noted in the Judgment, an additional Preliminary Hearing tookplace with EJ Corrigan shortly before the start of the Final Hearing on the issue of the hearing bundle. This Tribunal understands from the parties and the Case Management Orders made that the Claimant said that, as a person with dyslexia, navigating a more than 6,000-page bundle was difficult for her. The course of action Ordered in that hearing was the course of action requested by the Claimant – that the bundle be limited to 2,000 pages comprising the pleadings and no more than a specified number of pages of documentary evidence each. (ii) At the commencement of the hearing in this matter, that bundle wasnot ready, and Mr Davies for the Respondent told the Tribunal that that was because the Claimant:

• Had provided the Respondent with substantially moredocuments than she had told EJ Corrigan she wished to rely upon; and

• Had provided her documents in a format that made it difficult forthe Respondent to incorporate them into the electronic bundle. (iii) The start of evidence was considerably delayed because thewitness statements needed to be cross-referenced to the amended bundle. The Claimant had one witness statement of more than 50 pages, and she struggled to identify the correct crossreferences in the amended bundle. The Respondent had 14 witness statements to update with the new bundle references, and that process also took time. (iv) The Claimant still had not managed to adjust her crossreferencesby the third day of the hearing, and she at that point said that she wished to revert to using the approximately 6,000-page bundle that she had objected to before EJ Corrigan, because she had crossreferred to the evidence she wished to rely on by reference to that bundle. This was permitted by the Tribunal – which Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 8 of 13 is why there were two bundles in use. The Claimant’s witness statement therefore had one or sometimes two different page references when referring to documentary evidence (it was clear which was a reference to which bundle, as the references to the new shorter bundle were emboldened). When reading that statement, if there were references to both pages in the Claimant Bundle and the Respondent Bundle, the Tribunal looked at the cross-referenced document in each bundle. d) The Respondent redacted substantial parts of the bundle without adequate explanation or justification. (i) The issue of redactions came up in the hearing and is described atparagraph 25 of the judgment. Unredacted versions of the documents the Claimant asked for were provided and replaced the redacted versions in the bundles. Some of those unredacted documents were not referred to by the Claimant when she crossexamined the relevant witnesses who could speak to those documents. (ii) There were no redactions challenged by the Claimant whichremained in the bundles. e) The Tribunal refused the Claimant’s request to admit a supplementary bundle, which contained crucial evidence supporting her claims. (i) A document that the Claimant called “the supplementary bundle”was referred to on a few occasions by the Claimant. On each occasion, the Employment Judge noted that there were two bundles in evidence, exceeding 8,000 pages in total. The Employment Judge asked whether the Claimant was applying for the supplementary bundle to be added in as evidence and noted that if such an application was to be made, the Claimant would need to justify why further documents were needed. (ii) The Claimant informed the Tribunal that:

• These were “not new documents”;

• The Respondent had reformatted some of her documents whenproducing the shorter bundle (called the Respondent Bundle in the judgment, which was the bundle Ordered by EJ Corrigan at the Claimant’s request). The Claimant said that she could not read the reformatted documents – but they were in the original 6,000-page bundle, which was admitted into evidence (and called the Claimant Bundle) without the formatting issue; Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 9 of 13 In other words, the Tribunal understood the contents of the “supplementary bundle” to be duplicative of documents that were in the Claimant Bundle, and that they were legible to the Claimant in format contained in the Claimant Bundle. (iii) The Claimant never applied for the so-called “supplementary bundle” to be entered in as evidence, and the Employment Judge made it clear to the Claimant on each occasion she mentioned it that:

• That was not in fact a bundle in evidence.

• If she wished to apply for it to be added in as evidence, shewould need to do so; and

• If such an application was made, the Claimant would need tosay why the so-called “supplementary bundle” was needed. f) The Tribunal failed to provide additional assistance to the Claimant to help her navigate the bundles. (i) See above. Both the Respondent and the Tribunal provided theClaimant with assistance so as to navigate the bundles when they understood which document the Claimant wished to refer to, and when they knew where that document was (most assistance was provided by Mr Davies, who was far more familiar with the bundles than the Tribunal). When the Claimant’s family members and friends attended with her, they also assisted her with this. g) The Tribunal failed to extend the hearing to give the Claimant more time to process the witness statements and evidence presented during the hearing. (i) The Claimant did not request this. h) The Tribunal failed to give the Claimant more structured support to guide the Claimant through the process. (i) EJ Burge’s Case Management orders of 29 September 2023 described the hearing timetable, and the Employment Judge discussed that anticipated timetable at the outset of the hearing. That timetable was repeatedly referred to at the end of each day and the start of the next one, so that everyone was aware of the state of progress of the case against the anticipated schedule. (ii) The Employment Judge repeatedly went through the process bywhich a witness gives evidence to the Tribunal and gave structured guidance on submissions ahead of that point in the timetable. Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 10 of 13 (iii) The Employment Judge encouraged the Claimant to ask forexplanations if something was said or done that she did not understand – and the Claimant did so. (iv) The Employment Judge was unaware that the Claimant neededmore structured support, as this was not communicated or asked for by the Claimant. Indeed, this description from the Claimant now, of the fact that she needed “more structured support to guide [her] through the process”, is unclear as to what more support the Claimant would have wanted. i) The Tribunal failed to take account of crucial evidence, such as an email from Allison Jones dated 21 June 2019, targeting the Claimant for demotion. (i) The Claimant did not refer the Tribunal to this email. (ii) The Tribunal has, on consideration of the Claimant’s reconsideration application, looked in both bundles for an email of this date and has not found it. j) The Tribunal failed to take account of the procedural tactics used by the Respondent, namely the repaginated bundle and delayed submission process. (i) The Tribunal took account of the fact that the parties were not readyat the start of the hearing, and listened to the different accounts from each of them as to why that was the case (with the Claimant blaming the Respondent for the excessive length of the Bundle, and the Respondent attributing the majority of that content to documentation the Claimant wanted included in the bundle). (ii) Throughout the hearing, Mr Davies and Mr Cameron showedcourtesy and kindness to the Claimant, which the Claimant acknowledged with grace. k) Due to the overwhelming emotional distress caused by the breakdown of the Claimant’s marriage just weeks before the hearing and her increased antidepressant dosage, the Claimant was not in a position to direct the Tribunal to key evidence within the bundle. (i) When the Claimant mentioned the breakdown of her marriage, theEmployment Judge asked her if she was in a position to proceed with the hearing. The Claimant’s response was she needed the hearing to proceed, given the impact it was having on her life and health. (ii) The Tribunal does not recall the Claimant’s antidepressant dosagebeing discussed, but the Claimant throughout the hearing Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 11 of 13 confirmed that she was ready and able to proceed and expressed the need for the hearing to proceed in light of the impact of the ongoing litigation on her health. (iii) Indeed, the Employment Judge mentioned the fact that theClaimant had presented a fifth claim - but the Claimant was clear that she did not wish this hearing to be adjourned to incorporate the fifth claim – she was adamant that she wanted this hearing to proceed because of the impact on her health. l) The Tribunal failed to provide the Claimant with an advocate or legal aid to support her in cross-examining witnesses and navigating evidence. (i) The Claimant did not ask for an advocate or legal aid, but in anyevent, it is not in the Tribunal’s gift to provide those things. Legal aid is not available for Employment Tribunal proceedings. m) The Tribunal failed to provide a detailed timetable for the hearing. (i) EJ Burge’s Case Management Orders of 29 September 2023 setout an anticipated timetable for the hearing, and the Employment Judge spoke to the parties about progress against that timetable each day. n) The Tribunal failed to make sufficient time allowances to accommodate the Claimant’s chronic fatigue and emotional distress. (i) As above – many allowances were made, and the Tribunalunderstood from the Claimant that all breaks that were needed were taken. The Claimant assured the Employment Judge at the outset of the hearing that she would ask for breaks if she needed them, and the Claimant did ask for, and was given, breaks as the hearing progressed. In addition, the Employment Judge offered breaks when she thought she observed that the Claimant was struggling with her emotions or fatigue. o) The Tribunal failed to allow the Claimant to submit electronic documents through manageable means, such as “WeTransfer”, and ensure that all electronic documents were accepted without undue procedural barriers. (i) The Claimant did not ask the Tribunal for this. The Claimantreferred to the Respondent’s systems not accepting such documents, but those issues pre-dated the hearing, and the Tribunal understood that all the documents the Claimant wanted to send to the Respondent were sent to it. p) The Tribunal failed to allow the Claimant to give her evidence with her back to the Respondent witnesses, whereas the Claimant’s son was Case Numbers: 2300217/2020, 2302818/2020, 2307642/2020, 2301372/2021 12 of 13 asked to leave for falling asleep in the public gallery to avoid distraction of the Respondent witness. (i) No request was made by the Claimant to give her evidence with herback to the Respondent witnesses. (ii) One of the Claimant’s sons repeatedly fell asleep on one afternoonduring the hearing. He was sat in the direct eyeline of Ms Jones while she was giving her evidence. The Employment Judge mentioned that there was a waiting room the Claimant’s son could go to, and when he continued to fall asleep, the Employment Judge said she felt she needed to ask him to leave and explained why (the risk of distracting Ms Jones). The Claimant agreed that this was appropriate. q) The Tribunal permitted the Respondent witnesses to pass notes to the Respondent’s solicitor when the Claimant was giving her evidence. (i) This is common practice and was not objected to by the Claimant at the time.

evidence.

[21]In summary, the Tribunal finds that there is no reasonable prospect of the original decision being varied or revoked.

[22]For the reasons set out above: a) The Claimant’s application for reconsideration has been considered by the Tribunal, as we have judged that it is in the interests of justice to extend the time limit that applies to reconsideration applications to permit it; and b) There is no reasonable prospect of the original decision being varied or revoked. Employment Judge Ramsden Date 15 December 2024