Ms O S Ugolor v Transport for London: 2300322/2023
EMPLOYMENT TRIBUNALS
Case No 2300322/2023
Between
Ms O S UgolorClaimantTransport for LondonRespondent
Before
Employment Judge Liz OrdMs Crawshay-Williams (instructed by Counsel) for claimantMs Whittington (instructed by Counsel) for respondentDate 18 October 2024
JUDGMENT
[1]The Claimant’s complaint of harassment is not well-founded and is dismissed.[2]The Claimant’s complaints of victimisation are not well-founded and are dismissed. JUDGMENT having been given orally on 18 October 2024 and the written record having been sent to the parties, subsequent to a request for written reasons in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure, the following reasons are provided:
REASONS
[1]The claimant complains of disability discrimination. The respondent accepts that she was a disabled person at the relevant time for the purposes of the Equality Act 2010 based on her conditions of anxiety, depression and post-traumatic stress disorder.[2]The following list of issues was agreed at the hearing: HARASSMENT 1. Did the Respondent do/ not do the following things: i. On 17 October 2022, during an informal meeting for the Bullying and Harassment complaint against the Claimant’s manager Brian Greenidge, Mr Greenidge described the Claimant as being “mentally unstable”. ii. If so, was that unwanted conduct? iii. Was it related to the Claimant’s disability? iv. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? v. If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for th conduct to have that effect. VICTIMISATION[6]Did Claimant’s email dated 4 July 2021 raising issues of less favourable treatment based on her race sent to her trade union representative Claude Hiol amount to a protected act? The Respondent accepted in the Amended Grounds of Resistance that the email constitutes a protected act [51].[7]If so, was the Claimant subjected to a detriment by the Respondent? The Claimant relies upon the following alleged detriments: i. The Respondent’s delay in providing the Claimant with an outcome to the complaint she raised regarding Brian Greenidge on 8 September 2022, following the informal meeting on 17 October 2022. ii. The Respondent’s delay in substantively responding to the Claimant’s complaint regarding Lyndsey Sutherland Powell on 26 October 2022.[8]Was any detriment found to have occurred because of the alleged protected act? Evidence 3. The tribunal had before it a documents bundle (953 pages), a cast list, a chronology. References in brackets in these reasons as to pages in the bundle. 4. It had the following witness statements: 4.1. On behalf of the claimant: Onome Uglor (claimant). 4.2. On behalf of the respondent: Brian Greenidge (Project Manager), David Sockett (Grievance Appeal Investigator), Iyiola Ajala (Line Manager of Brian Greenidge), Steve Ristow (Grievance Appeal Investigator). 5. On behalf of the claimant we heard evidence on oath from Onome Uglor. 6. On behalf of the respondent we heard evidence on oath from Brian Greenidge, David Sockett, Iyiola Ajala, Steve Ristow. The Law 7. Section 26 Equality Act 2010 – Harassment(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.(2) …(3) …(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 8. Section 27 Equality Act 2010 – Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act (2) Each of the following is a protected act – (a) Bringing proceedings under this Act; (b) Giving evidence or information in connection with proceedings under this Act; (c) Doing any other thing for the purposes of or in connection with this Act; (d) Making an allegation (whether or not express) that A or another person has contravened this Act.
The Law
[9]The tribunal has taken account of the authorities referenced in the parties’ closing submissions. Overview of grievances[10]At the material time the claimant was a Project Support Officer working for the respondent, Transport for London.[11]She took out several grievances against other employees working for the respondent. The chronology is as follows: Complaints & Grievances Date 1st grievance - against Graham Carter and Rachel 4.7.21 Doncaster, which the parties agree is a protected act (251- 252). 1st grievance outcome 15.2.22 1st grievance appeal outcome 23.8.22 2nd grievance – bullying and harassment against Brian 8.9.22 Greenidge Informal grievance meeting with Brian Greenidge 17.10.22 3rd grievance – bullying and harassment against Lyndsey 26.10.22 Sutherland Powell ET1 20.1.23 2nd grievance outcome 24.1.23 4th grievance – against Brian Greenidge 18.4.23 4th grievance meeting 27.7.23 2nd grievance appeal outcome 5.9.23 4th grievance outcome 19.9.23 3rd grievance outcome 19.9.23 3rd grievance appeal outcome 22.2.24 Harassment Allegation – Brian Greenidge describing the claimant as mentally unstable at 17 October 2022 meeting[12]From our reading of the transcripts (live recording of MS Teams meeting – 439-501 and the typed transcript of part of the meeting – 502-512) it is clear that Brian Greenidge did not use the words “mentally unstable” at the meeting on 17 October 2022; nor did he use words to that effect.[13]Mr Greenidge made reference to the suicide of others (509 & 511).[14]There are no words or phrases, either taken in isolation or cumulatively, which suggest Mr Greenidge described the claimant as mentally unstable at the meeting of 17 October. It is too much of a stretch to say his reference to suicide inferred that the claimant was unstable.[15]Taking account of the context of the meeting, we conclude that Brian Greenidge did not describe the claimant as mentally unstable at the meeting on 17 October 2022.[16]We take the view that this is as far as we need go, as the allegation did not occur. However, for completeness, and in case we are wrong, we have gone on to consider whether anything else within the 17 October meeting could be interpreted/inferred as a description of “mentally unstable”. Further findings of fact[17]During the 17 October meeting Mr Greenidge said (508) he repeated what he said at the meeting on 30 September 2021 (notes at 306-10). This September meeting concerned the claimant’s 1st grievance against Graham Carter and Rachel Doncaster where, as part of the investigation, Alero Abbey interviewed Mr Greenidge.[18]The notes of the 30 September meeting (307) record Mr Greenidge commenting as follows: “He said he wasn’t a doctor but due to his experience outside of work he thinks Onome has a mental health issue and he’s always felt that.”[19]Further into the meeting (309-10), Ms Abbey asked Mr Greenidge whether he knew anything about a “blacklist” or “black mark”. Mr Greenidge explained that the claimant had said at one of the Black Lives Matter meetings that she thought there was a blacklist. The notes record the following: “BG said you don’t need a blacklist as you know who is persona non grata within your department or even TfL as people talk.”[20]Mr Greenidge was aware the claimant had been off work with mental health issues as recorded in the FIT note of 27.5.2021 (126) as “low mood and depression due to work related stress and racism.”[21]The claimant also acknowledged in her witness statement that she has mental health issues (OG WS para 3). Further conclusion[22]Mr Greenidge’s reference to “mental health issues” is not tantamount to saying the claimant is “mentally unstable”. The phrase “mental health issues” encompasses a much wider scope of matters and “mental instability” cannot be inferred from those words.[23]Turning to the words “persona non grata”, this does not mean that a person is mentally unstable. In any event, Mr Greenidge was not referring specifically to the claimant when he said those words; he was making a general comment.[24]There is nothing else from the meeting of 30 September that could be interpreted as a reference to the claimant being “mentally unstable”, either taken in isolation or combined.[25]Nor is there anything else from the October meeting that could be interpreted as a reference to the claimant being “mentally unstable”. Overall conclusion[26]For the reasons given above, we find that the claimant’s complaint of harassment is not well founded and is dismissed. Victimisation[27]The claimant’s 1st grievance against Graham Carter and Rachel Doncaster, sent by email dated 4 July 2021 to her trade union representative, Claude Hiol, raised issues of less favourable treatment based on her race,. The respondent agrees this is a protected act. We accept this. Alleged detriment 1: delay in outcome to 2nd grievance - bullying & harassment against Brian Greenidge[28]The managers who dealt with the grievance and the appeal had no knowledge of the 4 July email. With respect to Mr Ajala, he only joined the Directorate in April 2022 and was unaware of the nature of the 4 July complaint. Mr Sockett and Mr Ristow were both senior managers and had never met the claimant before they were appointed to hear the appeal. They knew nothing about the 4 July complaint.[29]Chronology of events and reasons for the delay: Action Date The claimant took out a grievance against Brian Greenidge 8.9.22 about alleged bullying and harassment via a letter to Iyiola Ajala, who managed Mr Greenidge at the time (408 – 410). Mr Ajala acknowledged it and asked the claimant to please 10.9.22 propose within 7 days two options for a date to meet to understand the complaint in more detail (411-12). The claimant emailed Mr Ajala with two dates of availability: 20 13.9.22 and 21 September (413). However, the claimant’s union representative, Claude Hiol, was not available on these dates. The bullying and harassment investigation meeting with Mr Ajala 27.9.22 took place (420-433). The claimant confirmed her willingness to engage in informal 29.9.22 resolution The claimant asked Mr Ajala for more time to present amended 7.10.22 minutes of 27.9.22 meeting (436). Mr Ajala asked the claimant how much time (436). 7.10.22 The claimant asked Mr Ajala for a couple of weeks (435). 7.10.22 Mr Ajala emailed back saying he was not sure he could 7.10.22 accommodate weeks and was asking HR for advice. Mr Ajala emailed the claimant saying he was on holiday until 17.10.22 1.11.22, so she could have until Friday 28.10.22 There was an informal resolution meeting with Brian Greenidge 17.10.22 chaired by Mr Ajala (439-501). Mr Ajala sent the Transport for London Bullying and Harassment 17.10.22 Policy & Procedures to the claimant (437). An email, which appeared to be from the claimant was 18.10.22 forwarded to her union representative and copied to Mr Greenidge, giving her interpretation of the meeting on 17.10.22. She wrote “Brian Greenidge stated that he stands by his words when he referred to me as being mentally ill numerous times and that I’m a persona non grata. He then tried to justify these insults by giving two examples of people who he said had mental illness and then committed suicide (513-14). This formed the basis of a 4th grievance. Due to the raising of these issues, it was necessary to obtain a transcript of the meeting (502-512). The claimant sent the notes back to Mr Ajala with amendments. 28.10.22 (515) A FIT note was obtained by the claimant which indicated she 3.11.22 should work from home for 3 months. Mr Ajala shared the meeting recording of 17.10.22 informal 1.12.22 meeting with the claimant and Mr Greenidge (536). Mr Ajala sent the grievance outcome letter to the claimant (538- 24.1.23[40]under cover of an email (541). 24.1.23 Reasons for the delay from 28 October 2022 to 24 January 2023: Mr Ajala’s Witness Statement does not say much about delay between October 2022 and January 2023 (42-45). However, he gave oral evidence that the delay happened because of a combination of Christmas, his holidays in October, the claimant having time off work, and because he wanted to get everything right. We accept these reasons. The claimant appealed the outcome to Sabiha Ali (541). 25.1.23 Ms Ali sent an email to David Sockett asking whether he would 27.1.23 hear appeal (546). He confirmed he would. Ms Ali emailed David Sockett with the relevant documents and 30.1.23 the date for the appeal meeting by Teams - 13.2.23 (545). Ms Ali emailed Mr Sockett at 11.17 asking for confirmation that 2.2.23 the appeal invite letter had been sent out (545). Mr Sockett emailed the claimant sending an invitation letter 3.2.23 dated 2.2.23 to the bullying & harassment appeal meeting to be held on 13.2.23 (542) (letter at 543-44). Mr Sockett emailed the claimant to check that she was attending 13.2.23 the meeting (547). The claimant went off sick from 7.2.23 to 24.2.23 (190). The 24.2.23 meeting did not go ahead because the claimant was not in work. There was then some delay because it was the year end in 18.4.23 March and the workload was very high. As Mr Sockett was a senior manager he was under considerable pressure at this time. Mr Socket gave evidence that, if the February meeting had gone ahead, he would have had time to progress the appeal earlier. We accept this. Mr Sockett sent another invite to the claimant to attend an appeal meeting on 4 May 2023 (941). In this second invitation he said “pleased to hear you are now back”. In actual fact, the appeal meeting was re-arranged for 10 May 10.5.23 via Teams (656-670). Mr Sockett emailed the claimant sending her the grievance 16.5.23 appeal meeting notes (655). The claimant then sent large volumes of evidence to Mr Sockett 30.5.23 for review on 30.5.23 (618), and 2.6.23 (596), and 5.6.23 (627) and 8.6.23 (599). Mr Sockett then reviewed the Transport for London’s policies 12.6.23 and procedures. At this point he realised that the bullying and harassment procedure was slightly different to the grievance procedure in that for bullying and harassment, the chair needed to be outside the management chain, which was not the case for grievance. He had not dealt with bullying and harassment before so had no experience of this specific procedure. Mr Sockett was within the claimant’s management chain and this precluded him from continuing with the appeal. At some point between 12 and 16 June the decision was made that Mr Sockett could not hear the appeal. Ms Ali reached out to other managers asking for someone else to take on this role. Steve Ristow offered and was appointed. Ms Ali emailed the claimant regarding the change of appeal 19.6.23 chair from David Sockett to Steve Ristow explaining that it was because the harassment and bullying procedure required the appeal chair to be a manager outside the management chain. She apologized for the delay (559). Mr Ristow discussed the appointment with Ms Ali (556). 20.6.23 Mr Ristow emailed the claimant saying he would like to move as 20.6.23 quickly as possible on this and offered a couple of dates for an initial meeting – 26 or 27 June (558). The claimant emailed Mr Ristow saying she was liaising with the 23.6.23 Union and wouldn’t be able to confirm anything (558). The appeal meeting with Mr Ristow took place (677-703). 12.7.23 Mr Ristow then had to review a large amount of evidence and have meetings with the people concerned. Mr Ristow had a discussion with Mr Sockett (ref in 4.8.23 email). 17.7.23 (823). Mr Sockett sent his appeal meeting notes to Ristow (655). 17.7.23 Mr Ristow emailed Mr Greenidge to set up a meeting (716-17). 19.7.23 Mr Ristow interviewed Mr Greenidge (meeting note 728-29) – 21.7.23 includes talking about “mentally unstable” and persona non grata” The claimant requested an extension of time to review the 25.7.23 appeal meeting notes (739); which was agreed (740). Mr Ristow sent Mr Greenidge a copy of the meeting notes to 4.8.23 review. He said he wanted to release the final outcome as soon as he returned from leave on 21.8.21 (826). Mr Ristow emailed Mr Sockett asking him to review the notes of 4.8.23 their meeting on 17.7.23 (823). Mr Sockett emailed Mr Ristow clarifying one point in the notes 7.8.23 (823). Mr Ristow confirmed to Mr Greenidge that he was back from 21.8.23 leave and asked him to confirm the notes today (825). Mr Greenidge sent the notes back with one amendment (825). 21.8.23 The appeal outcome letter was sent to the claimant (836-839) 5.9.23 under cover of an email (835).30. Whilst the time period taken in processing the grievance and grievance appeal was long and considerably out of policy target, it was not wholly disproportionate under the circumstances, particularly as not all the delay was down to the Respondent. There were acceptable reasons for the delay, as set out above in the chronology. The claimant’s complaints were not ignored and were considered in full, and the time taken did not affect the outcome.31. There is no evidence to suggest that the delay had anything to do with the claimant’s 4 July 2021 complaint against Rachel Doncaster and Graham Carter, or that the managers involved were in any way motivated by this complaint. The 4 July complaint occurred some significant time prior to the date of the 2nd grievance on 8 September 2022 and none of the managers involved in the grievance process had knowledge of it.32. The delay was not because of the protected act. Therefore, the first allegation of victimisation is not well founded and is dismissed. Alleged detriment 2: delay in substantively responding to the claimant’s complaint regarding Lyndsey Sutherland Powell on 26 October 202233. Chronology of events and reasons for the delay: Grievance against Lyndsey Sutherland Powell Date The claimant sent a grievance against Lyndsey Sutherland 26.10.22 Powell by email to Lilli Matson, who managed Ms Sutherland Powell (852-853). Ms Matson sent an email to Brian Greenidge making him 27.10.22 aware of the grievance. In it she said she was taking no further action as she presumed the claimant was pursing it through HR processes (852). Mr Greenidge sent an email to Mr Ajala, Mr Sockett, and 28.10.22 others (Costigan, Shaw, Ali) notifying them of the grievance for information. He made the comment “Here we go again and again”, being a reference to the number of complaints the claimant was making. It was headed - Legally Privileged (852). Mr Greenidge sent Ms Matson’s email of 27.10 to the 28.10.22 claimant “just for information” (see email 3.2.23 claimant to Ajala). The claimant sent an email to Ms Matson at 14.19 asking 23.1.23 for an update on the grievance (859). Ms Matson sent an email to the claimant at 15.55 saying 23.1.23 she had passed the claimant’s concern to Mr Greenidge immediately on receipt, as it did not relate to her area of the business (858). The claimant sent an email to Ms Matson at 16.18 saying 23.1.23 she had taken out a grievance against Mr Greenidge and her grievance had been ignored and by HR as well (858). The claimant emailed Mr Greenidge at 10.43 saying the 25.1.23 claimant understood that Ms Matson had told him of her grievance against Ms Sutherland Powell and she asked for an update on how it was being progressed (857). Reasons for delay: There had been confusion over who was handling the grievance. Ms Matson did not expect to handle it because it was not within her business area. HR had thought Mr Greenidge was dealing with it because he was still showing as the claimant’s line manager on the SAP system. Mr Greenidge did not think he was dealing with it because Ms Matson had assumed it was going through HR. Also, he thought it would have been inappropriate for him to handle it as he was himself the subject of a grievance taken out by the claimant. Whilst at some point in the early stages of the investigation, Mr Greenidge produced a chronology of events, in which he concluded (at the bottom of it) that the claimant owed Ms Southerland Powell an apology and this was a frivolous assault on her character (919), this had nothing to do with the delay. Mr Ajala had not been asked to handle the grievance by HR and did not think he was dealing with it. Due to a combination of these misunderstandings, the 3rd grievance was not progressed. Once it became apparent what had happened, Mr Ajala took over. Mr Ajala emailed the claimant to apologise for the delay. He 1.2.23 said he was now able to look into this grievance, having submitted his findings/report/outcome on the claimant’s grievance against BG (2nd grievance) (857). The claimant emailed Mr Ajala at 15.32 asking if he had 3.2.23 been informed of her grievance against Ms Sutherland Powell (857). The claimant emailed Mr Ajala at 16.26 sending him a 3.2.23 timeline for clarity (856). The claimant went off sick from 7.2.23 to 24.2.23 (190). 7.2.23 Mr Ajala emailed the claimant saying due to her sickness 16.2.23 (flowing from last week til now) and other reasons (annual leave) he had not been able to process the matter. Once she was fit and back to work, he would revisit (856). The claimant had some further periods of absence. According to her absence record (190) she was absent on the following dates: 19-23.5.23 (sick) 13-15.6.23 (sick) 19.6.23 (AL) 26-30.6.23 (AL) 3.7.23 (AL) 18.7.23 (AL) There is also a FIT note covering the 3 month period from 3.3.23 – 3.6.23, which advises home working due to a number of medical issues (181). An investigation meeting was held with Mr Ajala. He took 27.7.23 the decision to deal with the grievances against Mr Greenidge and Ms Lyndsey Sutherland Powell together (865-903) (starts with BG and then LSP). There was a further meeting with Mr Ajala (904-905). 18.9.23 The grievance outcome letter from Mr Ajala was written and 19.9.23 dated (907-908). A covering email and the outcome letter for 3rd grievance 21.9.23 (LSP) and 4th grievance (BG) was sent to the claimant (906). The claimant appealed the 3rd grievance (LSP) (909-910). 25.9.23 Mr Sockett was appointed to deal with the appeal. At this time Mr Sockett’s wife was terminally ill and he was caring for her. The 3rd grievance appeal meeting with David Sockett was 15.12.23 held on Teams (932-939). Mr Sockett’s wife died. 26.12.23 Mr Sockett spoke to Ms Sutherland Powell as part of his 30.1.24 investigation (940). The 3rd grievance appeal outcome letter was written (912- 22.2.24 914) with a covering email from Mr Sockett (915). It was not sent to the claimant until 4.3.24 (911). This was because the claimant told Mr Sockett that she wanted another meeting with him. Mr Sockett met with the claimant and her union 4.3.24 representative to explain the outcome of her appeal (911). The outcome letter was sent to the claimant. Mr Sockett 4.3.24 emailed Sabiha Ali formally closing the appeal (916).34. The time period taken for the grievance and grievance appeal procedure was long and considerably out of policy target. However, it was not wholly disproportionate under the circumstances, and particularly as not all the delay was down to the Respondent. There were acceptable reasons for the delay, as set out above in the chronology. The claimant’s complaints were not ignored and were considered in full, and the time taken did not affect the outcome.35. There is no evidence to suggest that the delay had anything to do with the claimant’s 4 July 2021 complaint against Rachel Doncaster and Graham Carter, or that the managers involved were in any way motivated by this complaint. The 4 July complaint occurred some significant time prior to the date of the 3nd grievance on 26 October 2022, and none of the managers involved in the grievance process had knowledge of it.36. The delay was not because of the protected act. Therefore, the second allegation of victimisation is not well founded and is dismissed.