Ms Tajae Tyrell v Department for Work and Pensions: 2300498/2017 and 2301819/2017
EMPLOYMENT TRIBUNALS
Case No 2300498/2017, 2301819/2017
Between
Ms Tajae TyrellClaimantDepartment for Work and PensionsRespondent
Before
Employment Judge John CrosfillIn person for claimantMr Alex Ustych (instructed by Counsel) for respondentDate 6 February 2018
JUDGMENT
[1]The Claimant’s claims that the Respondent subjected her to a detriment contrary to Regulations 5 or 7 the Part Time Workers (Less Favourable Treatment) Regulations 2000 are dismissed.[2]The Claimant’s claims that the Respondent victimised her contrary to sections 27 and 29 of the Equality Act 2010 are dismissed.
REASONS
[1]The Claimant has been employed by the Respondent (the “DWP”) since 27 July 2006 and, whilst being presently on a career break, remains an employee. The first claim(s) arise from a period during which the Claimant was seconded to another organisation, Safer London. The second claims arise from the termination of that secondment and in the process whereby the Claimant was (ultimately) permitted to take a career break.[2]The claims had been the subject of 2 case management hearings the first by telephone and the second before Employment Judge Phillips. As a consequence of those two hearings the issues we had to determine were agreed between the parties and recorded in the record of those hearings. Issues in Claim No 2300498/2017 (“the first claim”)[3]Whilst in her ET1 the Claimant had indicated that she was maintaining discrimination claims based on her sex and the fact that she suffers from a disability, she had later clarified her claim in amended grounds of complaint. Those grounds of complaint relied only on the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (hereafter “the regulations”). The issues were: 3.1. whether the Claimant’s chosen comparator, Olesegun Kehinde was a “comparable full time worker” for the purposes of Regulation 2 of the regulations; and 3.2. whether the Claimant has suffered less favourable treatment for the purposes of Regulation 5(1)(b) of the regulations 3.2.1. not being paid travel expenses in the course of her secondment; and 3.2.2. not having proper objectives set for the purposes of her appraisal and as a consequence receiving a reduced bonus (this issue being added or clarified at the PH on 23 October 2017). This was understood by the Respondent as forming part of the second claim but we do not think that can ever have been the intention as it would have been illogical as the protected act relied on for the victimisation claim postdated this. We have therefore dealt with it as an amendment to the earlier claim. 3.3. whether any such treatment was on the grounds that the Claimant was a part time worker; and 3.4. if it was, whether the treatment was justified. Issues in Claim No: 2301819/2017 (“the second claim”)[4]The issues in the second claim all concern the question of whether the Claimant has suffered a detriment because she brought the first claim. The Claimant has used the phrase “victimisation” but the claim is understood as being brought either under Regulation 7 of the regulations. It was not entirely clear to us that the Claimant had abandoned any claim under Section 27 and 39 of the Equality Act 2010. In the circumstances, we have dealt with the claim under that alternative basis as well. 4.1. The protected act relied upon both for the purposes of Regulation 7 and Section 27 is bringing the first claim. It was not disputed that this fell within Regulation 7(3) of the regulations. We have considered whether, it was also a protected act for the purposes of Section 27 of the Equality Act 2010 (despite the clarification that no discrimination claim was pursued). 4.2. The Claimant says she suffered the following detriments: 4.2.1. She was removed from her seconded post; and 4.2.2. She was required to re-apply for that post; and 4.2.3. She was initially refused a career break (added without formal amendment at the PH held on 23 October 2017) 4.3. The question for the tribunal is whether any detriment found proven was on the ground of any protected act.[5]The parties had prepared an agreed bundle and witness statements. We heard from the Claimant and her witness, Mr Olusegun Kehinde. For the Respondent we heard from Mr Martin Taylor (the Claimant’s Line Manager until mid 2016) Mr Chris Hoborough (her line manager from September 2016) and Mr Derek Harvey (a “Group Partnership Manager”). The witnesses gave evidence and were questioned in the ordinary way. At the conclusion of the evidence the parties made submissions. We have regard to those submissions in coming to our decisions but shall not set them out here.
The Law
[6]The material parts of the regulations are regulations 2, 5 and 7. These read as follows (with our emphasis added to reflect the parts applicable in this dispute): 2 Meaning of full-time worker, part-time worker and comparable fulltime worker.(1) A worker is a full-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is identifiable as a full-time worker.(2) A worker is a part-time worker for the purpose of these Regulations if he is paid wholly or in part by reference to the time he works and, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract, is not identifiable as a full-time worker.(3) For the purposes of paragraphs (1), (2) and (4), the following shall be regarded as being employed under different types of contract— (a) employees employed under a contract that is not a contract of apprenticeship; (b) employees under a contract of apprenticeship; (c) workers who are not employees; (d) any other description of worker that it is reasonable for the employer to treat differently from other workers on the ground that workers of that description have a different type of contract.(4) A full-time worker is a comparable full-time worker in relation to a parttime worker if, at the time when the treatment that is alleged to be less favourable to the part-time worker takes place— (a) both workers are— (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work having regard, where relevant, to whether they have a similar level of qualification, skills and experience; and (b) the full-time worker works or is based at the same establishment as the part-time worker or, where there is no full-time worker working or based at that establishment who satisfies the requirements of sub-paragraph (a), works or is based at a different establishment and satisfies those requirements. 5 Less favourable treatment of part-time workers (1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker— (a) as regards the terms of his contract; or (b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if— (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds. (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. (4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.[7]Unfair dismissal and the right not to be subjected to detriment(1) An employee who is dismissed shall be regarded as unfairly dismissed for the purposes of Part X of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).(2) 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 a ground specified in paragraph (3).(3) The reasons or, as the case may be, grounds are— (a) that the worker has— (i) brought proceedings against the employer under these Regulations; (ii) requested from his employer a written statement of reasons under regulation 6; (iii) given evidence or information in connection with such proceedings brought by any worker; (iv) otherwise done anything under these Regulations in relation to the employer or any other person; (v) alleged that the employer had infringed these Regulations; or (vi) refused (or proposed to refuse) to forgo a right conferred on him by these Regulations, or (b) that the employer believes or suspects that the worker has done or intends to do any of the things mentioned in sub-paragraph (a).(4) Where the reason or principal reason for dismissal or, as the case may be, ground for subjection to any act or deliberate failure to act, is that mentioned in paragraph (3)(a)(v), or (b) so far as it relates thereto, neither paragraph (1) nor paragraph (2) applies if the allegation made by the worker is false and not made in good faith.(5) Paragraph (2) does not apply where the detriment in question amounts to the dismissal of an employee within the meaning of Part X of the 1996 Act. 7. When looking at whether the part time worker and full time comparator are working under the ‘same type of contract’ it is necessary to focus on the similarities between the core duties and not on the differences in subsidiary duties Matthews v Kent and Medway Towns Fire Authority [2006] UKHL 8.[8]It is not open to the part time worker to construct a hypothetical comparator for the purposes of Regulation 2 a real comparator is a necessary ingredient of the cause of action Carl v University of Sheffield [2009] IRLR 616 EAT. Furthermore, it is necessary that the part time and full time workers have the same employer.[9]Regulation 8(6) provides that where a complaint is presented to the Employment Tribunal is for the Employer to demonstrate the grounds for any treatment complained of. An act or omission will be “on the grounds of” if the part time status or any matter listed in Regulation 7(3) is the effective or predominant cause of the treatment. It need not be the sole cause see Carl v University of Sheffield and Sharma v Manchester City Council 2008 ICR 623 (the position may be different in Scotland but those decisions are binding on us).[10]A claim for victimisation under the Equality Act 2010 may be brought by an employee under Sections 27 and 39. Section 27 provides as follows (again with our emphasis): 27 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.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[11]This section does not require the Claimant to show or the Tribunal to consider the position of any comparator Woodhouse v West North West Homes Leeds Ltd [2013] IRLR 733, EAT.[12]In order to show that treatment is ‘because of’ the fact that there has been a protected act it is necessary for the Tribunal to make a finding as to the motivation (whether conscious or unconscious), as opposed to the motive, for the treatment. That question can usually be answered by asking ‘the reason why’ the treatment was afforded to the Claimant Nagarajan v London Regional Transport [1999] IRLR 572.[13]The burden of proof in claims brought under the Equality Act 2010 is governed by section 136 of that act and provides that where a Claimant establishes facts from which a contravention of the provisions of the Equality Act (including Section 27) could be inferred (a prima facia case) then the burden of proving that the treatment was, in no sense whatsoever, discriminatory (or otherwise unlawful) passes to the Respondent. The proper approach to the shifting burden of proof has been explained in Igen v Wong [2005] ICR 9311 which approved, with some modification, the earlier decision of the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.[14]The burden of proof provisions should not be applied in a mechanistic manner Khan and another v Home Office [2008] EWCA Civ 578. In Laing v Manchester City Council 2006 ICR 1519 Mr Justice Elias (as he then was) said “the focus of the Tribunal's analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, "there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the Employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race"”. Such an approach must assume that the burden of proof falls squarely on the Respondent to prove the reason for any treatment. It is an approach that should be used only where the tribunal are in a position to make clear positive findings of fact as to the reason for any treatment or any other element of the claim.
Findings of fact
[15]Having heard the evidence we have made the following findings of primary fact. We return to these findings where in our discussions and conclusions we consider whether it is possible or whether we ought to draw inferences from these primary findings. Insofar as that amounts to making further findings of fact that is intentional.[16]The Claimant started working for the Respondent on 27 July 2006 as a "work coach". She is a graduate in Criminology and prior to 2017 she had obtained a Master’s degree in Criminology and Criminal Psychology. The Claimant’s job title with the Respondent was that of a “Work Coach”. Essentially she was expected to offer encouragement and support to persons seeking or in receipt of social security benefits to enable then to receive what they were entitled to and at the same time to help them return to employment or training. She worked for 3 days per week as we understand it both to accommodate her need to care for her son and also to accommodate her studies.[17]In early 2015 the claimant expressed an interest in a role working with a partner organisation "Safer London Foundation" as a "Pan London Gangs Adviser". Safer London's aims were to assist young people to free themselves of influence of gangs. To facilitate that they wished to work in partnership with the Respondent in order that targeted benefit and employment advice could be given to the young people they assisted. This role was ideal for the Claimant who was able to rely on her skills and experience as a Work Coach and also her interest in Criminology. She was successful in her application to be considered for this role.[18]Safer London and the Respondent entered into an initial tripartite secondment agreement whereby the Claimant would remain employed by the Respondent but she would be integrated into Safer London's team for the purpose of carrying out her role. The Agreement provided that he Respondent would remain liable to pay her salary. The agreement as expenses which set out in clause 9 at page 60 of the agreed bundle. The drafting is not as elegant or clear as it could be. This provided: “9.1 The Secondee may claim for reasonable travelling, subsistence and other out of pocket expenses incurred during the Secondment Period whilst carrying out their duties under this Agreement from the Host provided that such expenses are evidenced (in such an manner as the Host may specify) from time to time. 9.2 Such expenses will be paid in accordance with the DWP rates, claimed via the DWP Resource Management System and refunded by the Host on request. Hosts will be invoiced for refunds of incurred expenses and should refund within 30 Days”[19]The Claimant started in her new role on 18 May 2015. The initial agreement was set to expire on 31st of March 2016. The Claimant's line manager at Safer London was the L G E Service Manager, Nicole MacIntosh. The Claimant also reported to her Line Manager at the DWP, Martin Taylor. In the evidence we heard it appears that the secondment was a success. It seems that the Claimant was enthusiastic about her work and carried it out to a reasonable standard. Certainly, subject to what we say below, there were no complaints or issues raised about her work.[20]Prior to the secondment the Claimant would have needed to use the Respondent's online Resource Management System in order to submit her claim electronically. She may thereafter be required to show her receipts or a proof of purchase. Any claim needed to be authorised by her line manager. In line with the tax legislation the Respondent did not generally make any payment of expenses in respect of the journey to its’ employees ordinary place of work nor for their ordinary mid-day meal. Mr Olusegun Kehinde gave evidence, which we accept that the same policy was applied at all times to him. He was entitled to and did claim expenses where he travelled to a different workplace.[21]During her time at Safer London the Claimant had regular one-to-one meetings with Martin Taylor to discuss her development. One to ones should have taken place monthly. It seems from a record of those meetings that that aspiration was not entirely met but that there were regular meetings.[22]On 27 October 2015 Martin Taylor wrote to Sarah Hernandez and Patience Ukwehu the Lewisham Customer Services Operations Manager asking whether it was acceptable for the role to continue. He set out some of the Claimant's achievements and there is reference to the Claimant regularly being praised. Patience Ukwehu responded saying she was happy for it to continue. On 13 November 2015 he sent a further email to Sarah Hernandez found at page 89 of the agreed bundle. She was the J C P District Operations Manager. She also expressed a wish for the role to continue although noted that there had been no reports on progress from Safer London.[23]In February or March 2016 Safer London expanded their program from 15 boroughs to 32. This led to a greater opportunity for referrals to the Claimant but any changes were gradual. Whilst the secondment was due to come to an end it did not do so. The arrangement was simply permitted to continue without any further formality. No fresh secondment agreement was either prepared or entered into.[24]On 21 March 2016 the Claimant met with Martin Taylor for the purposes of her annual appraisal. The appraisal system was used, amongst other purposes, to assess whether the employee was entitled to a small annual bonus. An overall "box marking" of 1, 2 or 3 was given, where 1 represent an employee who is exceeding expectations, 2 an employee meeting expectations and 3 an employee was who is failing to do so.[25]As part of the system and employee would be assessed against smart objectives which ordinarily would have been agreed in advance. Martin Taylor had not received any objectives from Safer London. His evidence was that he had chased for this. In the absence of these he says, and we accept, that he assessed the Claimant against the main duties in the job description. Overall he assessed her box marking as a "2". The complete appraisal document does not obviously relate that assessment to any particular criteria but, in the view of the Tribunal, contains a broadly positive narrative.[26]The Claimant was dissatisfied with this and raised this with Martin Taylor initially it seems on 25 April 2017. On 2 May 2016 she sent Martin Taylor a document setting out her reasons why she should have received a "box 1". On 10 May 2016 Martin Taylor responded by email declining to change his decision. He acknowledged that in some instances the claimant had exceeded expectations but in others, in particular around "ETE" she had met expectations. He stated that he hoped that this ‘is not too disappointing for you’ and referred to the possibility of bringing a formal grievance but made suggestions how a “box 1” marking could be achieved the following year.[27]The Claimant decided to progress the matter via the formal grievance procedure. On 27 May 2016 she instigated the formal grievance process. The Claimant was invited to a meeting which was rearranged to accommodate the Claimant’s wish to be represented. On 21 June 2016 the grievance meeting took place conducted again by Martin Taylor. The Tribunal were provided with notes of that meeting and it seems Martin Taylor repeated exactly the same position that he had before using very much the same language. As a Tribunal, we were surprised that the same manager who had conducted the appraisal would also be involved in any informal resolution and then once again at the formal stage. It is unsurprising that the Claimant appealed. That appeal was heard by an Appeal Manager, Jackie Sternberg, The Claimant attended a meeting and it seems had been well prepared and was able to put forward her case. The outcome of the appeal was delayed by annual leave but finally on 10 August 2017 Jackie Sternberg informed the Claimant that she agreed with Martin Taylor’s assessment. It seems that by the time of the appeal the Claimant had been provided with an appraisal by Nicole McIntosh who concluded that, of six objectives the Claimant had exceeded expectations in two and had met expectations in four. It is not clear whether or not that document was considered as part of the appeal process but it is consistent with the conclusions reached that the Claimant was doing a good job, exceeding expectations in some but not all areas.[28]The Tribunal considered that the Claimant was justified in her disappointment in the manner in which her grievance was handled. Given that he was the person against whom complaint was made, it seems to us that it was inappropriate for Martin Taylor to have had any involvement with the formal grievance process. For the sake of fairness and transparency, that stage should have been handled by another manager. It is unnecessary for us to make any independent finding as to whether the assessment of the Claimant’s work was accurate. Indeed, we are not best placed to do so. We do note that in the course of 2016 the Claimant was nominated as being one of the 50 “Most Influential Public Sector Figures”. As such she was plainly doing important work. There can often be scope for honest reasonable disagreement with a performance appraisal system. We consider that that was the position here.[29]In the regular 1-2-1 meetings between the Claimant and Martin Taylor there is no written record that they ever discussed expenses. There is a specific section on the pro-forma used for these meetings where additional support needed from the Line Manager is recorded. There are various issues recorded but expenses are not mentioned. In his oral evidence Martin Taylor says, and we accept, that the Claimant did raise the issue of expenses with him at the time he conducted her appraisal in 2016. He says that he did not know what the arrangements were and elevated the issue to Patience Ukwehu. He thought that she had referred the question to HR. He recalled that he had told the Claimant that he had told her that she could not claim for journeys between her home and her regular office. The tribunal consider it likely that the topic was raised but are not in a position to make specific findings as to what was said. We do find that the Claimant remained subjectively uncertain about how she should claim expenses and what could be claimed.[30]Chris Hobrough joined the Department in August and became the Claimant's Line Manager effective from around September 2016. At some point prior to Christmas 2016 it is clear from an e-mail exchange that was included in the agreed bundle that the Claimant had raised the question of her expenses with Chris Hobrough. He responded to the Claimant’s questions. He said: “Secondees are paid any day-to day business expenses agreed with the host organisation as part of their job description and agreed as a part of their secondment agreement. These will be paid directly by the host. Secondees should be paid ath the reates that are the same ones they would receive if they were working for the DWP…” In response to a question in relation to travelling from home to the secondment workplace he said: During a period on loan to DWP the new location is the permanent location and you would be eligible to claim travelling expenses for official travel on DWP business. This does not include any daily travel between home and office..”[31]The advice given by Chris Hobrough to the Claimant is of course not entirely consistent with the terms of the Secondment Agreement. Under that agreement the expectation was that the expenses would be claimed from the DWP and repaid by Safer London. It is unclear what the Claimant was told the time the secondment commenced, but we infer from the fact that she did not do so, the Claimant was not told to use the Respondent's expenses system. As a consequence the Respondent has never paid her any expenses.[32]The Claimant responded to Chris Hobrough on 3 January 2017. In her e-mail she referred to “another employee” who she believes was able to claim expenses. She complained, correctly, that there was no current secondment agreement in place. She referred in this e-mail to the failure to permit her to claim expenses as being ‘discriminative’.[33]The employee referred to by the Claimant was Olusegun Kehinde. Olusegun Kehinde is a full time employee of the DWP and has been since around 2002. In around October 2016 Olusegun Kehinde responded to an “expression of interest” in a role as a Troubled Families Employment Advisor. The expression of interest/job description referred to this as being a secondment. Mr Hobrough’s evidence was that, despite the terms of the expression of interest, the role was not a secondment but a “co-location”. He says that because of delays either at the hands of Olusegun Kehinde or Lewisham Council no written agreement formalised the arrangement until April 2017. The agreement that was then executed describes the arrangement as a “co-location agreement”. Whilst the Claimant was suspicious that the “co-location agreement” had been generated as a consequence of her claims we found no evidence to support that.[34]Mr Hobrough’s explanation of the difference between a secondment and co location arrangement was that in the former the employee becomes an effective member of the other organisation’s workforce. They would ordinarily have a line manager in that organisation in addition to any within the DWP. A co-location agreement was a mechanism whereby DWP employees would perform DWP duties at premises owned by a third party. The line management would be solely retained by the DWP. We accept that the reference to a secondment in the expression of interest was inadvertent. The nature of the arrangement, as described both by Olusegun Kehinde and Chris Hobrough was consistent with Olusegun Kehinde carrying out DWP work but based in the premises controlled by Lewisham Council.[35]Olusegun Kehinde gave evidence. He was asked a number of questions about his expenses. What emerged is that he would not generally claim for journeys which could be catagorised as home to office. However, given the nature of his work there were some blurred lines. For example, a journey to an office other than the base office but commencing at home and going by the same route. He acknowledged that some managers were stricter than others when it came to authorizing expenses.[36]Chris Hobrough had become aware that the secondment agreement had expired and that there had been no amended job description following the expansion of the Claimant's role. Chris Hobrough took steps to draw attention to the current state of affairs to his senior management. Ultimately Derek Harvey who reported into the Social Responsibility Board became involved. he met with Chris Hoborough in December and then met again with Chris Hoborough and Safer London in January 2017. As a consequence of those meetings he prepared a paper found at page 270 271 and 282 of the agreed bundle and dated 9 February 2017. That paper was presented to the Senior Leadership Team at a meeting which took place on 27 February 2017.[37]Derek Harvey had undertaken a review of the secondment. He noted that the agreement had not been formalized since the initial agreement expired in March 2016. He further noted that no substantive review had been carried out since the expansion to the role in February 2016. He also noted a lack of reporting and/or feedback. He also expressed concerns that the expense of this secondment was coming from a local budget whereas the benefits were, since the expansion, more widespread. In his description of the “current situation” he noted that the expansion of the programme meant that dealing with referrals was “challenging” given that the Claimant worked part time. He records a request from Safer London for one “fte” post. His report gave 3 options: abandoning the secondment, continuing on a more formal footing or continuing to engage with Safer London but under a Service Level Agreement.[38]On 23 January 2017 the Claimant had presented her first ET1. Prior to that she has made contact with ACAS. It appears that the conciliation period was a month. The ET3 was not presented until 15 March 2017. It is not suggested that that ET3 was late (unlike the second one). It would follow that it must have taken the Tribunal Service about 2 weeks to process the claim. The Claimant did not suggest that she had any direct discussions with anybody at the DWP about her first claim.[39]The decision of the Senior Leadership Team was that the secondment should be progressed (i.e. “option 2”) albeit on the more formal basis proposed by Derick Harvey. Thereafter a decision was taken to draw up a new expression of interest. That decision was taken shortly after the meeting on 27 February 2017 and is recorded in an e-mail exchange between Derick Harvey and Chris Hobrough.[40]A matter important to the issues we have to decide is whether, at the time that a decision was made to engage in a fresh “expression of interest” exercise, Derick Harvey or Chris Hobrough were aware of the first set of proceedings. The Claimant’s case is that she simply assumed that that was the case. She relied on the fact that there must have been some contact by ACAS in advance of the decision being taken. Derick Harvey accepted that he was the person that had, in his report, proposed a fresh Expression of Interest exercise. That was then endorsed by the Senior Leadership Team on 27 February 2017. He stated that he had no knowledge whatsoever at that stage that the Claimant had issued her first set of proceedings. Having carefully considered all of the surrounding evidence we accept that is the case.[41]We would not accept that it was in any sense inevitable that contact via ACAS would have been notified to Dereck Harvey directly or via Chris Hobrough. If anything, the late response by the DWP to the second set of proceedings would suggest a poverty of communication rather than an efficient system. We note that there were sound objective reasons for carrying out a review of the status quo. Many of the matters addressed by Derick Harvey were, if anything, long overdue. We had regard to the fact that Derick Harvey noted that the role was ‘a challenge” for one part time employee. However, he made it clear, both by reference to a “fte” in his report, and by his oral evidence to us that this did not mean in his view a job share or part time working was inappropriate. His evidence that had recommended a fresh expression of interest exercise because the opportunity was substantially different to that advertised in March 2015 (which ought to have ended much earlier) was a view to which we find he was entitled to take. We noted that he bore no animosity towards the Claimant. He operated at a strategic level rather than an operational level. Despite this he recognised the human impact of his decisions and seemed genuinely regretful that the Claimant was upset by his decisions.[42]In keeping with our conclusion that the Claimant was not excluded from applying for the new Expression of Interest she was persuaded to apply and did so “under protest”. It seems that she was at that stage unable to focus on her application and very frankly accepted that she did not perform her best during the application process. As a consequence, the role was offered to another employee. The Claimant does not in these proceedings challenge that decision.[43]On 26 May 2017 the Claimant presented her second ET1. Prior to the amendments permitted later, that claim was solely a complaint that she had been made to re-apply for the role she had occupied, she said, as a consequence of bringing her first claim.[44]On or around 2 August 2017 the Claimant made an application for a career break. The documentation we were provided with is not complete on either side but is sufficient for us to understand the progression of the application. It seems that the initial request was made by the Claimant, we have taken the date of 2 August 2017 from a letter dated 23 August 2017. That oral application is referenced in an e-mail, undated, at page 166 of the bundle sent by Chris Hobrough to the Claimant and attaching the relevant application form. The tone of that e-mail is encouraging and supportive. Chris Hobrough says ‘in principle this is something we would be minded to consider favourably’. That is consistent with the evidence of Chris Hobrough where he says he had a conversation with the Claimant and followed that up by providing both the application form and the guidance. It appears that the Claimant promptly returned that form indicating that she wanted a career break for the purposes of her studies.[45]Later on the same day Chris Hobrough sent a further long e-mail to the Claimant. In that e-mail two issues are addressed. Firstly, the Claimant had been on long term sickness absence. Chris Hobrough was seeking to set up a meeting to discuss that. Secondly, he responded to the Claimant’s application. He states that on the application form the Claimant had indicated that the reason she wanted a career break was for study leave to pursue a PhD. He pointed out that the Career Break Policy stated that study leave would not usually be granted for over 2 years. He pointed out that the Claimant had mentioned her caring responsibilities on the telephone and he asked her to expand on those reasons.[46]On 21 August 2017 Chris Hobrough sent an e-mail to the Claimant setting out that he was taking advice in respect of her application and that he would meet with her when convenient. It is clear from the content of that e-mail that he is trying to deal with the matter urgently.[47]When Chris Hobrough gave evidence the Tribunal were impressed when he stated that he felt that he had failed the Claimant in the sense that there must have been some failure to communicate by him that had caused her to view his actions as unlawful. We consider that that showed an admirable degree of managerial insight. That point, together with the content and tone of the correspondence, lead us to have confidence in Chris Hobrough’s explanations as to what followed.[48]On 23 August 2017 Chris Hobrough wrote to the Claimant declining her application for a career break. The principle reason for that refusal was that the Claimant was seeking study leave in excess of the maximum of 2 years suggested in the policy. He said that he could see no reason for departing from the policy where the study did not directly relate to the Claimant’s core role as a Work Coach. He stated that he had considered the application on the alternative basis as a carer for her son. He stated that the policy would normally expect an applicant to show a high level of care responsibilities to justify a career break and that he could not allow the application on this basis either. In that respect there are some parts of the policy which would suggest that is the case although other parts give a more general discretion.[49]On 19 September 2017 the Claimant sought to appeal Chris Hobrough’s decision. That lead to an appeal meeting that took place on 2 October 2017. That meeting was conducted by Chris Hobrough. Once again we express our surprise at this given that Chris Hobrough was hearing an appeal against his own decision. Chris Hobrough sent the Claimant an outcome letter dated 20 October 2017. The Claimant complains about the fact that there was to be a hearing in her case on 23 October 2017 and suggests a link between the two. Whilst we recognise that the Claimant is expressing her honestly held beliefs we can find no evidence to support the suggestion that the timing was calculated. In any event the decision made was to grant the Claimant the career break she had sought. Discussions and conclusions[50]The first issue in the case, raised by the Respondent is whether or not Olusegun Kehinde is an appropriate comparator for the purposes of the regulations. It is the Respondent’s case that he was under a different sort of contract.[51]It seemed to us that this point was somewhat of a red herring. Nevertheless, we shall deal with it briefly. Whilst we accept that there are differences between a secondment agreement and a co-location agreement that is to focus on the differences and takes the focus away from the similarities in contrast to the approach endorsed in Matthews v Kent and Medway Towns Fire Authority. When one looks at the similarities it is apparent that both the Claimant and Olusegun Kehinde are carrying out the core roles of a Work Coach assisting with access to benefits and encouraging claimants to access work or training opportunities. The fact that the focus was on different disadvantaged groups does not detract from that.[52]During the arrangements both employees were remunerated by the DWP on the same scale and with the same terms and conditions in relation to pay and benefits. Taken as a whole we consider that both limbs of Regulation 2(4) are satisfied in this case. We note that Olusegun Kehinde did not start his colocation agreement until after the Claimant started her secondment. Our conclusion on the comparator issue would apply in the same way during any period where Olusegun Kehinde was a Work Coach whether within the Troubled Families team or otherwise.[53]We turn to the question of detriment. We consider that the expenses policy is quite clear. It sets out with clarity the travel and subsistence expenses that could be claimed and those which could not. Certainly ordinary journeys to the office where an employee was ordinarily based could not be claimed as expenses. We note that the expenses claims compiled for these proceedings include 7 day travel cards. It is impossible to see what journeys could, or could not, have been properly claimed as expenses.[54]Having heard from the Claimant who gave a description of her day to day work and travels around many London boroughs it would appear that at least a proportion of what she has claimed might have been allowable expenses. The evidence appears to be that the Claimant has not successfully reclaimed those expenses. In fact, many may never have been considered because, other than in these proceedings, they have not been submitted for consideration.[55]We find that as a matter of agreement the Claimant ought to have continued to submit her claims to the DWP who, had the claims been accepted, would have recovered those costs from Safer London. That is what the secondment agreement said and it is implicit that those terms would have continued to govern the relationship after the written agreement expired. We therefore conclude that she was at all times able to recover her expenses.[56]We accept that the Claimant was given mixed messages as to how any expenses should be claimed. Chris Hobrough does suggest that they should be recovered “directly” from Safer London. Whilst there was some confusion, we are entirely satisfied that the fact that the Claimant worked part time had no part whatsoever in the reason why she was not paid her expenses. The reason she was not paid her expenses is that because of confusion or misunderstanding she did not claim her expenses from the DWP as her comparator did. The DWP bears some responsibility for that as no proper explanation was given, in advance of the dispute, how to reclaim expenses and what to reclaim. This is unfortunate but it is not a breach of the regulations. We think it unlikely that, had the Claimant claimed the entirety of the expenses she now claims in these proceedings from the DWP, those expenses would have been allowed but we make no finding as to that.[57]The second claim that the Claimant advanced under the regulations is the failure to set proper objectives when she was on secondment. This claim was not advanced before us either in evidence nor with any enthusiasm in submissions.[58]We can deal with this very simply. We can assume that the Claimant’s comparator was set proper objectives. That leads to the issue of the reason why the Claimant was not. We accept the explanation given by Martin Taylor that the reason that he did not set the Claimant more specific targets was that he had little input from Safer London until after the event. As we accept that explanation the DWP has satisfied us that the fact that the Claimant worked part time had nothing whatsoever to do with the decision or omission. That means that this part of the claim must fail.[59]Turning to the second ET1, the first matter is the question of why the Claimant was required to re-apply for her post. We do understand how hurt the Claimant must be as a consequence of losing a job that she considered she was ideally suited for. In fact, the Tribunal has some real sympathy for that view. However, the manner in which the Claimant has put her case is very narrow both under the regulations and under the Equality Act.[60]As set out above it was not seriously disputed that bringing the first claim was a protected act both for the purposes of the regulations and for the purposes of the Equality Act. There could be no sensible dispute that the decision to conduct a fresh expression of interest exercise and/or having to apply for the role was a detriment. Indeed, as we have expressed ourselves above it was a considerable blow to the Claimant.[61]The issue here is one of causation. What was the reason for this treatment? It is clear that unless the relevant decision makers were aware of the protected act then the fact that the Claimant had commenced proceedings cannot have provided any motivation for the decision to conduct a fresh expression of interest process. We have concluded that that decision was taken by the Senior Leadership Team upon the recommendation of Derick Harvey. At the time he made that recommendation and advised the Senior Leadership Team he, and we find they, were unaware of the first claim. We are therefore entirely satisfied that the fact that the Claimant had commenced her claim played no part whatsoever in the reasons why she had to reapply for her post.[62]Finally, we deal with the initial refusal to permit the Claimant to take a career break. That was the decision of Chris Hobrough. There is no dispute that there was a protected act and no sensible dispute that the refusal (even though reversed) was a detriment. The issue is once again whether the protected act was a reason for that treatment.[63]The Claimant relies to a great extent on the later grant of the career break to suggest that the early refusal must have been unreasonable. Chris Hobrough says that it was only when greater emphasis was placed on the Claimant’s role as a carer that he was able to allow the application under the policy. It seems to us that the subsequent favourable decision must be treated with some caution. A further favourable decision would not necessarily suggest that the earlier refusal was improper or surprising. Indeed, the later decision may have been surprising or generous.[64]We have focused on the earlier refusal in the light of the subsequent decision. We have assumed that the burden of showing that the decision was in no sense connected with the protected act falls on the DWP. We found all of the witnesses who gave evidence before us to be credible. Chris Hobrough was no exception. We note that from the outset of the Claimant’s application he is helpful and encouraging. There is nothing in the earliest exchange of e-mails to suggest that he wanted to refuse the application or was looking for an excuse to do so. He could have quite properly considered that the Claimant had difficulties relying on her studies to fit within the policy. The policy clearly stated that ordinarily 2 years of study leave was the maximum. The policy did not suggest to Chris Hobrough, in any obvious way, that ordinary care responsibilities would justify a grant of a career break. Whilst that is not the only reading of the policy, parts of it might give the impression that some out of the ordinary care responsibilities were anticipated.[65]We consider that the initial decision is one which is in no sense shocking or surprising. When Chris Hobrough gave that decision he explained it and expressed, what we find to have been, genuine regret that he felt unable to accede to the application. We have concluded that, whether they were in accordance with the policy or not, the reasons given by Chris Hobrough were the totality of the reasons for his decision and that he was not motivated consciously or subconsciously by the fact that the Claimant had brought these proceedings.[66]For these reasons we dismiss the Claimant’s claims. RECONSIDERATION JUDGMENT 1. The Claimant’s application made on 2 April 2018 for a reconsideration of the judgment dated 6 February 2018 has no reasonable prospects of success and is dismissed.
Findings of fact
[1]The Claimant’s claims that the Respondent subjected her to a detriment contrary to Regulations 5 or 7 the Part Time Workers (Less Favourable Treatment) Regulations 2000 are dismissed.[2]The Claimant’s claims that the Respondent victimised her contrary to sections 27 and 29 of the Equality Act 2010 are dismissed. The rules 2. The Employment Tribunal Rules of Procedure 2013 as amended set out the rules governing reconsiderations. The pertinent rules are as follows: “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. 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. Process 72.—(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 (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.
Discussion and Conclusions
[3]In accordance with the Employment Tribunal Rules of Procedure I must reconsider any judgement where it is in the interest interests of justice to do so. Further, if I considered that there is no reasonable prospect of the original decision being varied or revoked I must refuse the application for reconsideration.[4]The Claimant’s application for a reconsideration is focusses exclusively on the issue of the failure to pay her expenses during the period of her secondment. I do not understand the Claimant to challenge any other aspect of the judgment.[5]In the judgment dated 6 February 2018 the tribunal set out the issues that had been identified by the parties. The Claimant had alleged that the failure to pay her expenses was unlawful because the grounds upon which that decision was taken was that she was a part time worker for the purposes of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.[6]The Claimant had not brought any proceedings or made any allegation which required the tribunal to determine whether or not the Respondent was in breach of contract in failing to pay her expenses or ensuring that the organisation to which the Claimant did so paid them. The Tribunal had no jurisdiction to entertain a simple breach of contract claim because the jurisdiction to do so arises only once the employment relationship has ended – See Regulation 4 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. Whilst the Tribunal has jurisdiction to deal with many failures to make payments by employers under Part II of the Employment Rights Act 1996 payments in respect of expenses are specifically excluded. The Tribunal could therefore only make an award of compensation reflecting the loss of the expenses if the claim under the Part Time Worker regulations succeeded.[7]There was no dispute that the Claimant had not received her expenses during her secondment. The focus for the Tribunal was on the question of whether or not the reason for that was her part time status. The Tribunal concluded that, as a matter of fact, that was not the reason for the difference in treatment between the Claimant and a full time comparator. That finding was fatal to the Claimant’s claim as presented.[8]The Tribunal in its judgment has been critical of the Respondent and its failure to properly explain the expenses policy. We have agreed with the Claimant that she was given mixed messages. That in no sense undermines our ultimate conclusion that it was the communication difficulties we have identified which led to the failure to pay expenses rather than the fact that the Claimant was a part time worker.[9]The Claimant in her application refers to Counsel for the Respondent’s closing submissions where it was suggested that it was possible that some expenses claims possibly should have been met by the Respondent. That concession was made in the context of submissions directed at the reason for the failure to pay the expenses. There was a tacit acknowledgement that the Respondent might, at least in principle, still be vulnerable to proceedings framed as a breach of contract.[10]Whilst the Claimant may be justifiably aggrieved at the failure to communicate how expenses should be claimed and then pay such expenses, that does not provide any reason why the judgment in respect of the claim under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was wrong.[11]It is not open to the Tribunal on an application for a reconsideration to adjudicate upon a claim that the Respondent ought to have paid the Claimant’s expenses as a matter of contract law. That was not the claim that we were invited to decide. We would not have had the jurisdiction to do so. The finding, that the fact that the Claimant was a part time worker played no part in the failure to properly explain and deal with the issue of expenses, was fatal to the claim.[12]For the reasons set out above I find that the Claimant’s application for a reconsideration has no reasonable prospects of success and I dismiss it without a hearing.