Mrs S Garrod v Riverstone Management Ltd: 2300856/2020

EMPLOYMENT TRIBUNALS

Case No 2300856/2020

Between

Mrs S GarrodClaimant

Riverstone Management Limited PRELIMINARY HEARINGRespondent

Before

Employment Judge Harrington

In person for claimant

Date 23 August 2024

JUDGMENT

[1]The Respondent’s application in its letter dated 14 October 2020, that the paragraphs within the Claimant’s ET1 which refer to without prejudice matters be removed, succeeds.

[2]On 8 November 2019 a meeting took place which is covered by the principle of without prejudice. Consequently, all references to the without prejudice content of that meeting shall be removed from the pleadings and evidence in the case.

[3]No later than 3 December 2021, the Respondent shall provide to the Tribunal and the Claimant an appropriately redacted copy of the Claimant’s ET1.

REASONS

FOR THE JUDGMENT DATED 6 NOVEMBER 2021 [The numbers in square brackets within this document refer to either the Claimant’s or Respondent’s bundle with the reference ‘C’ or ‘R’, followed by the page number.]

Introduction

[1]The Claimant, Mrs Garrod, brings the following claims against her former employer and the Respondent, Riverstone Management Limited:1.1 That she suffered twenty two detriments contrary to Regulation 19 of The Maternity and Parental Leave etc. Regulations 1999 (‘MPL Regulations 1999’) and Section 47C of the Employment Rights Act 1996 (‘ERA 1996);

1.2 That the Respondent breached Regulation 18 of the MPL Regulations 1999;

1.3 That she suffered discrimination pursuant to Section 18 of the Equality Act 2010;

1.4 That she suffered harassment contrary to Section 26 Equality Act 2010; and PHCM Order (NEW August 2020) 1 of 15 August 2020

1.5 That she was constructively and unfairly dismissed.

[2]A Case Management Hearing was held on 30 June 2020 and a Preliminary Hearing on 8 January 2021. In the event, the hearing in January was unable to proceed and a further hearing was listed on 1 March 2021. Unfortunately that hearing then had to be postponed until 28 May 2021, when the matter came before me. The one day time allocation was insufficient and the hearing continued on 3 and 5 August 2021. Whilst these later two dates were listed with time being allocated for the Tribunal to give Judgment on the Preliminary matter, in the event the entirety of these days was taken up with the parties’ witnesses continuing to give evidence and with closing submissions. The Tribunal heard evidence from Mr Sherrard, the Claimant and Dr Garrod and closing submissions from both parties. The Claimant was given breaks whenever required and she was further accommodated by being given a much extended time allocation for her cross-examination of Mr Sherrard.

[3]On 5 August 2021, and pending this Judgment, I issued a Case Management Order listing the Final Hearing in September 2022 and a further Preliminary Hearing on 16 and 17 December 2021. That Order included the following paragraph, ‘At the hearing today, I emphasised the importance of the parties assisting the Tribunal with hearing this case in a way that is consistent with the overriding objective. To date the parties have attended the Tribunal on five different occasions prior to the final hearing beginning. It should be possible for the Tribunal to consider the remaining applications and case management in one day. I have listed a second day primarily for the Employment Judge to have adequate time to deliberate and decide the applications although I have instructed the parties to remain available for that day in case it becomes necessary (as with the Preliminary Hearing I have conducted) for the parties to attend beyond the time originally allocated.’

[4]At the commencement of this Preliminary Hearing, the following preliminary issues remained outstanding:4.1 The Respondent’s application, as detailed in a letter dated 14 October 2020, that the paragraphs within the Claimant’s ET1 which refer to what the Respondent describes as ‘without prejudice matters’ be removed, there be a prohibition from making such references in the bringing of her claim and the Respondent’s costs of making the application be paid by the Claimant (‘the without prejudice issue’);

4.2 Disclosure. There is said to be an outstanding dispute between the parties as to whether full disclosure has been made, with the Claimant asserting that the Respondent has failed to disclose all relevant evidence;

4.3 The Claimant’s application, detailed in her letter dated 17 May 2021, that the grounds of resistance be struck out. PHCM Order (NEW August 2020) 2 of 15 August 2020

4.4 Appropriate case management. The case management directions have currently been suspended.

[5]With the agreement of the parties, the Tribunal proceeded to consider the Respondent’s application as detailed in paragraph 4.1 above, and referred to as the ‘without prejudice issue’. As suggested by paragraph 3 above, it has been challenging to complete this Preliminary Hearing in a proportionate way. The parties accuse each other of openly lying and misrepresenting matters that are said to have occurred at the relevant meeting in November 2019. The Claimant accuses the Respondent’s witness of deliberately withholding documents from the Tribunal and has gone to considerable lengths to produce the evidence she considers helpful to her case including, for example, logging on to a webinar conducted by Mr Sherrard on 16 February 2021 on the topic of without prejudice and protected conversations, transcribing what Mr Sherrard said in that webinar and producing the transcript as evidence at this hearing.

[6]The Tribunal was provided with a substantial amount of documentation as follows:6.1 Witness statements from Mr H Sherrard, the Claimant and Dr Garrod;

6.2 Skeleton arguments from both parties;

6.3 Preliminary Hearing bundles from both parties (the Respondent’s bundle contains 180 pages and the Claimant’s 493 pages);

6.4 The Claimant’s Curriculum Vitae; 6.4 Excerpt from a Legal Practice Course Civil Litigation Manual 2018/19.

[7]The Claimant’s ET1 includes the following paragraphs, ‘28. On 8th November 2019, the Claimant was invited to a meeting with the Respondent, which she assumed was a meeting to discuss her grievance complaint in more detail. The Claimant was accompanied by her husband, Dr Matthew Garrod. Instead, at this meeting, the Claimant was ambushed by the Respondent’s representative, who told her in no uncertain terms that he did not care about her grievance, and he was there to make an offer to the Claimant to terminate her employment. ……….. 31. The Claimant anticipates that the Respondent will argue that the meeting that took place on 8th November 2019 is inadmissible in proceedings pursuant to s.111A ERA. Should the Respondent adopt this approach, the Claimant will maintain that the Respondent’s conduct was improper behaviour and therefore is not just for such discussions to be inadmissible in accordance with s.111A(4) of the ERA.’ PHCM Order (NEW August 2020) 3 of 15 August 2020

[8]The issues for the Tribunal in considering the Respondent’s application are as follows:8.1 Are the relevant matters referred to in the Claimant’s ET1, without prejudice matters?

8.2 If so, does the exceptional circumstance of unambiguous impropriety apply in this case, such that the references should be permitted to remain in the ET1 and in evidence before the Tribunal?

8.3 Does the Claimant’s repeated refusal to remove the references from the ET1 and / or the allegations of impropriety made by the Claimant amount to unreasonable conduct pursuant to Rule 76 of the ETs (Constitution & Rules of Procedure) Regulations 2013, Schedule 1?

Findings of Fact

[9]The findings of fact are set out below. The standard of proof is on the balance of probabilities, namely what is more likely than not.

[10]By way of background, the Claimant was employed by the Respondent as a Company Secretary. She has ten years legal and company secretarial experience and a number of legal qualifications. These include a law degree, a masters degree in International Trade and Company Law and the Legal Practice, for which the Claimant studied at the Guildford College of Law in 2008 passing with distinction in every module. Mr Sherrard is a solicitor who has a longstanding professional relationship advising the Respondent. At all relevant times, he was instructed by the Respondent in this matter.

[11]The Claimant returned from her maternity leave on 15 July 2019. On 17 October 2019, the Claimant informed her manager that she was pregnant with her second child. Between 18 October - 30 October 2019, the Claimant was signed off sick by her doctor. She felt depressed and anxious at this time.

[12]The Claimant submitted a grievance to the Respondent dated 30 October 2019 in which she raised serious allegations against three senior managers within the Respondent’s business [R134]. The Claimant complained of mistreatment and pregnancy and maternity discrimination including the following:12.1 That she had sustained bullying from her manager for nearly 5 years;

12.2 That she had been harassed by her manager;

12.3 That she had sustained a breach of her legal rights – namely, suffering a detriment pursuant to the MPL Regulations 1999.

[13]Within the grievance, the Claimant referred to using ACAS mediation or the Early Conciliation process if it wasn’t possible for the matter to be resolved ‘inhouse’ [R135]. PHCM Order (NEW August 2020) 4 of 15 August 2020

[14]In her evidence to the Tribunal, the Claimant accepted that her grievance included references to how her legal rights had been infringed and that the relevant treatment was ongoing. She also confirmed that in writing her grievance, she had particular legal rights in mind and that she was complaining about an infringement of her employment rights.

[15]Following the Respondent’s receipt of the Claimant’s grievance and on 6 November 2019, Mr Sherrard sent an email to the Claimant [R142]. In the email, Mr Sherrard proposed that he meet with the Claimant to progress matters. The Claimant was invited to attend the meeting with a friend or relative and a legal advisor if she wished. Mr Sherrard proposed that the Respondent would pay a maximum of £500 + VAT for a legal advisor and he requested that the Claimant provide dates and times of her availability to attend for the meeting at a local golf club.

[16]The Claimant responded to Mr Sherrard in two short emails and a meeting was arranged promptly for Friday 8 November 2019 [R143-144]. The Claimant stated that she would attend with her husband and that she did not consider a legal advisor was necessary, although she appreciated the offer.

[17]The meeting took place on Friday 8 November 2019 in a private room at the golf club. As planned, it was attended by Mr Sherrard, the Claimant and her husband.

[18]It is agreed that the start of the meeting was amicable with a discussion about appropriate refreshments and an additional drink and hot water being brought to the room. There was some discussion between Mr Sherrard and the Claimant’s husband, during which Dr Garrod referred to working as a lecturer at a local university. I accept Mr Sherrard’s account that beyond this, he knew no details about Dr Garrod and, in particular, that he had not googled him prior to the meeting. Whilst the Claimant suggested to Mr Sherrard in cross examination that he had researched Dr Garrod on the internet and had wrongly assumed him to be a solicitor in practice with a well known firm, Mr Sherrard categorically denied these assertions. The Claimant confirmed that the basis for her questions on this issue was an assumption that this is what Mr Sherrard had done, rather than having any evidence to support or suggest that he had. I was satisfied that Mr Sherrard had not carried out an internet search on the Claimant’s husband in preparation for the meeting. In preferring Mr Sherrard’s evidence on this point, I referred to the following matters:18.1 Mr Sherrard was asked numerous questions on this issue and steadfastly denied having googled Dr Garrod to investigate his professional background;

18.2 I accepted Mr Sherrard’s account that he was unaware of Dr Garrod’s full name ahead of the meeting on 8 November 2019. In those circumstance, it wouldn’t have been possible for him to carry out any meaningful search on Dr Garrod; PHCM Order (NEW August 2020) 5 of 15 August 2020

18.3 Considering the entirety of the factual context, I considered it was unlikely that Mr Sherrard would have googled Dr Garrod prior to the meeting. At that stage, Mr Sherrard knew little detail of the Claimant’s circumstance and had been instructed to have a preliminary meeting with her to include an exploration of agreeing a severance package. Against that factual background, I accepted the Respondent’s submission that it was unlikely Mr Sherrard would have gone to the lengths of investigating the Claimant’s husband.

[19]Mr Sherrard prepared some brief notes for the meeting [R142]. He had the notes with him at the meeting in a folder, together with a copy of the Claimant’s Contract of Employment.

[20]Dr Garrod took notes at the meeting. I accept Dr Garrod’s description of these notes as being ‘extensive’ and that they included comments about body language and Dr Garrod’s own reflections, added shortly after the meeting.

[21]At this point I record that it was surprising that it was only during the course of this hearing that the Claimant referred to the existence of these notes. They had not been disclosed, although I am satisfied that it would have been understood by the Claimant that they were important and entirely relevant for this hearing. Following the Tribunal providing additional time for the notes to be produced, and appropriate directions being made, I was informed that the notes could not be found in Dr Garrod’s office at the university where he works.

[22]Returning to the meeting, I accept Dr Garrod’s evidence that he asked Mr Sherrard whether he was acting in a mediator capacity and that Mr Sherrard replied that he was not. He confirmed that he was the Respondent’s representative. Following this exchange, Dr Garrod spoke little during the remainder of the meeting.

[23]Mr Sherrard asked the Claimant who she considered to be the most appropriate person to hear her grievance in light of the fact that a number of senior managers were implicated in her complaints. The Claimant referred to a number of people including Mr Mark Bannister. Mr Sherrard and the Claimant also discussed the main part of the Claimant’s grievance in outline, namely the assertion that the Claimant’s duties were not identical when she returned from her first period of maternity leave. Mr Sherrard spoke of a case in which a teacher had returned from maternity leave and had taught a different class. The Claimant responded to this comment with ‘yes, the Blundell case’; referring to the case of Blundell v The Governing Body of St Andrew’s Catholic Primary School

EAT/0329/06

[24]The conversation then moved on to discuss what the Claimant wanted from the grievance. The Claimant responded that she wanted her reporting line changed to enable her to report to the Managing Director rather than to her current manager. The Claimant referred to the Managing Director having the ability to reverse her current manager’s decisions, if necessary. In response to this suggestion, Mr Sherrard commented that the senior management team would PHCM Order (NEW August 2020) 6 of 15 August 2020 work in a collegiate way rather than, as suggested by the Claimant, in a way that contradicted each other.

[25]In making this finding about the use of the word ‘collegiate’, I have preferred the evidence of Mr Sherrard to that given by the Claimant. I do not accept that Mr Sherrard made a reference to the Claimant’s grievance as not being collegiate. In general terms I found Mr Sherrard’s evidence to be measured, consistent and straightforward. When he was unsure about something, he readily identified this in his responses to questions. I consider it unlikely that Mr Sherrard would have used such an expression in a meeting held to discuss the appropriate progression of the grievance.

[26]Mr Sherrard then told the Claimant that he would like to have a without prejudice conversation. He assumed that the Claimant understood what this meant. The Claimant did not ask Mr Sherrard what it meant. Mr Sherrard described this part of the meeting as an initial exploratory conversation about settlement and the possibility of the Respondent making of a severance payment to the Claimant. He told the Claimant that the employment relationship could be described as ‘fractured’ and ‘problematic’ and that the Respondent would like to make an offer to terminate her employment. Mr Sherrard referenced a payment in the sum of £80,000.

[27]On multiple occasions during the Tribunal hearing, the Claimant referred to her complete surprise about this part of the meeting. I am in no doubt that the Claimant was taken by surprise and that she felt ambushed by Mr Sherrard suggesting that an agreement could be reached between the parties resulting in the end of the Claimant’s employment with the Respondent. Mr Sherrard had not pre-warned the Claimant that the meeting would include a without prejudice discussion about the possibility of the Claimant leaving. It is agreed by the parties that when Mr Sherrard made these comments, the Claimant began to cry.

[28]I am satisfied that Mr Sherrard’s description of this episode and the Claimant becoming tearful but then shortly thereafter composing herself, is what occurred. In reaching this conclusion I refer to my following findings:28.1 On the balance of probabilities I do not accept the Claimant and her husband’s account that they did not understand what without prejudice meant. The Claimant stated that whilst she studied Civil Litigation as part of the Legal Practice Course, she did not think that the without prejudice principle was covered. She referred to the fact that there was no reference to the principle in her Civil Litigation textbook, although she was unable to find that textbook during the course of the hearing. I am satisfied that the principle of without prejudice would have been covered in the teaching of Civil Litigation on the LPC. It is an important principle with relevant case law going back a number years, certainly well before the year in which the Claimant studied for this legal qualification.

28.2 I am also satisfied that, with the legal qualifications and professional experience held by the Claimant, she understood what was meant by the phrase without prejudice in the context of the November meeting. Both the Claimant and her PHCM Order (NEW August 2020) 7 of 15 August 2020 husband have studied law to an advanced level. As stated the Claimant studied for the LPC and for a Masters in Law. The Claimant’s husband, a former police officer, has a first class law degree, a masters degree (with distinction) and a doctorate in law. The Claimant’s competency in law is further demonstrated by her view that she was suitable to be appointed to the role of Head of Corporate Legal [R20]. In that context, I consider it more likely than not that both the Claimant and her husband understood what was meant by Mr Sherrard’s reference to having a without prejudice discussion. Neither the Claimant nor her husband asked in the meeting what Mr Sherrard meant by the phrase ‘without prejudice’ and that was because they understood.

28.3 These conclusions are consistent with the email correspondence immediately after the meeting. Mr Sherrard used the phrase on two further occasions in an email sent to the Claimant later on 8 November 2019 [R146] and in an email he sent on 14 November 2019 [R152]. The Claimant did not query what he meant by those references.

28.4 I do not accept the evidence given by Dr Garrod as to his response to Mr Sherrard when the phrase ‘without prejudice’ was used in the meeting. Dr Garrod described saying ‘well, hang on what does without prejudice mean?’ before Mr Sherrard leant over the table and said that he should let him finish and that he had an offer to put. Dr Garrod said that he tried on two further occasions to ask about without prejudice and that Mr Sherrard ‘.. put his hand towards my face and said in a loud tone ‘shut up’’. Dr Garrod went on to say that he stated ‘we have to stop this – I have some questions about without prejudice…’. I repeat here the general conclusions I have drawn about Mr Sherrard’s evidence to this Tribunal set out in paragraph 25 above. Further, I consider it unlikely that Mr Sherrard, an experienced legal professional, would have conducted himself in this way at a meeting where one of his aims was to attempt to secure agreement from the Claimant to a proposal to end her employment. Conducting himself at the start of that discussion in the way described Dr Garrod would have been entirely contrary to that aim.

[29]As stated, the Claimant was able to compose herself and continue participating in the discussion. The parties discussed a settlement of the payment of a years salary and a letter acknowledging the Claimant’s upset. During this discussion Mr Sherrard referred to accepting a severance offer as being a fresh start for the Claimant. The Claimant referred to the fact that she liked working locally and, following this, there was a discussion about what other financial services companies there were in the area.

[30]It is the Claimant’s case that Mr Sherrard attended the meeting with a hard copy of a proposed settlement agreement. Mr Sherrard denies having a settlement agreement with him. Upon consideration of the entirety of the evidence on this issue, I accept Mr Sherrard’s account that he did not have a copy of a settlement agreement with him. In preferring Mr Sherrard’s evidence on this point I have referred to the following matters:30.1 The Claimant was not given a copy of a proposed settlement agreement at the meeting; PHCM Order (NEW August 2020) 8 of 15 August 2020

30.2 There was no reference from either Mr Sherrard or the Claimant to any written, draft settlement agreement seen at the meeting in the later email correspondence between them;

30.3 The second email sent by Mr Sherrard to the Claimant on 8 November 2019 refers to an offer being set out in ‘more detail in a settlement agreement, a draft which I will email to you next week.’ [R146]. This is consistent with no written agreement having been drafted at that stage;

30.4 Further email correspondence shows the production of the draft agreement on 12 November [R148]. The Respondent has also produced the word properties [R149/150] showing the settlement agreement was created on 12 November 2019;

30.5 The evidence from the Claimant’s husband on whether he had seen a copy of a settlement agreement at the meeting was vague. He described seeing a copy of an agreement ‘behind the flap’ in Mr Sherrard’s folder. I concluded that it was unlikely that Dr Garrod would have been able to ascertain whether the document behind the flap in the folder was actually a draft agreement or, for example, a copy of the Claimant’s contract of employment;

30.6 Whilst the Claimant described Mr Sherrard ‘hand editing’ the document during the meeting, I accept Mr Sherrard’s evidence that he was actually doodling in the meeting and that he drew around the ‘total’ figure on his notes page [R147].

[31]It was following this short discussion prefaced by Mr Sherrard with the phrase ‘without prejudice’, during which a limited number of matters had been canvassed but no agreement secured, that the meeting came to an end and the attendees left the golf club.

[32]It is important to record that the parties have given very different accounts as to the tone of the meeting and Mr Sherrard’s conduct. Mr Sherrard described the meeting as ‘amicable, calm and professional …. at all times’ and that the correspondence which followed showed a ‘polite and professional tone’. The Claimant describes Mr Sherrard as interrupting and that he was ‘overbearing and aggressive … he tried to pressure me into signing the legal agreement’. The Claimant’s husband described Mr Sherrard as ‘friendly and welcoming’ for the first couple of minutes of the meeting before he became aggressive. Having carefully considered the entirety of the witness evidence, I am satisfied Mr Sherrard’s account is to be preferred. I reach this conclusion noting the following:32.1 If Mr Sherrard’s behaviour had been as described by the Claimant and her husband, I consider that it likely that she would have referred to this and documented it shortly after the meeting. She did not do this and in fact, when responding in her email on 13 November 2019, the Claimant uses the phrase, ‘This is not directed at you as a person.’ [R151]. I find that such an email is inconsistent with the Claimant’s contention that Mr Sherrard’s behaviour was poor in the ways she sets out. Further, I accept the Respondent’s submission PHCM Order (NEW August 2020) 9 of 15 August 2020 that, taking into account the detailed way in which the Claimant has documented her issues within her grievance, if Mr Sherrard had behaved aggressively, the Claimant was more likely to have documented this and reported it directly to the Respondent;

32.2 I was not satisfied as to the accuracy of the description of the meeting, as detailed by the Claimant and Dr Garrod. In many instances I found their evidence to be exaggerated. For example, in Dr Garrod’s statement he says, ‘I felt intimidated by Mr Sherrard’s aggressive and confrontational tone and behaviour.’ He goes on to describe the Claimant as, ‘emotionally distraught and continued to cry heavy and uncontrollably for some time. Mr Sherrard slid a packet of tissues to try and dry up the pooling of tears.’ [C66, paragraph 25]. These descriptions were not put to Mr Sherrard when he was being asked questions but, in any event, I consider it unlikely that Mr Sherrard would have attempted to continue with a business meeting if the Claimant had been as greatly and visibly affected as described by her husband. Further, I consider it likely that such a significant and marked reaction would have been fully referenced in the correspondence between the parties shortly after the meeting but it was not.

32.3 Further, there are multiple aspects of the Claimant’s description of what Mr Sherrard said and how he acted which seem entirely unlikely. For example, that Mr Sherrard stated that the best the Claimant could hope for would be £14,000 and that he said ‘this is a clear case of constructive dismissal’. Mr Sherrard denies making these statements and there would seem no reason for stating that £14,000 would be the limit of what the Claimant could hope for, when the parties have agreed that figures of £80,000 and a years salary were discussed. There would also seem no reason for Mr Sherrard, as the Respondent’s legal representative, to state it was a clear case of constructive dismissal when such an admission would obviously be contrary to the Respondent’s interests.

32.4 As set out above, I do not accept that Mr Sherrard googled Dr Garrod before the meeting. For the avoidance of doubt I do not accept that Mr Sherrard asked Dr Garrod if he had a practising certificate or that there was a discussion during which Mr Sherrard referred to his understanding that Dr Garrod was a qualified solicitor with a practising certificate.

[33]Around an hour after the end of the meeting, Mr Sherrard wrote two emails to the Claimant [R145-146] – the first referenced the meeting and the issues discussed surrounding the Claimant’s grievance. Mr Sherrard noted that he would be discussing this matter further with the Respondent and that he would be in contact again [R145]. The second email begins, ‘I am writing this second email on a without prejudice basis following our discussion this morning.’ Later in the email he again refers to without prejudice as follows, PHCM Order (NEW August 2020) 10 of 15 August 2020 ‘If you wish to email me, it is best to continue the practice that I have established of keeping ‘on the record’ and without prejudice discussions separate.’

[34]On 13 November 2019, Mr Sherrard sent a draft settlement agreement to the Claimant by email [R151]. Very shortly afterwards, the Claimant responded by email stating that she was appalled and that she did not want to leave her job. She referred to feeling ‘compelled to take this forward…’ [R151] and that she had calculated her own schedule of loss. Further emails were exchanged in November 2019 [R152].

[35]On 3 December 2019, the Claimant’s grievance meeting was held.

[36]In January 2020 a further exchange of emails between the Claimant and Mr Sherrard included a repeated offer from the Respondent to pay for the Claimant to obtain legal advice. This offer was again refused by the Claimant [C266]. Closing Submissions

[37]On behalf of the Respondent Mr Panesar submitted that the Claimant’s version of events was a layering of untruths and that there was clearly a dispute between the parties as at the end of October 2019. The Claimant had made multiple detailed allegations against managers at the Respondent. Mr Panesar described the Claimant’s contention that there was no dispute as ‘a stark and obvious indicator of the unreality of the Claimant’s position’.

[38]Mr Panesar submitted that it is not the situation that a party can only make an offer to another if there is an agreement to do so. The Respondent’s offers in this case were made in good faith. Subsequently, they have all been withdrawn. With regards to the factual context, he contended that there were five obvious untruths from the Claimant as follows: that the Claimant had been pressured to sign a contract at the meeting, that Mr Sherrard had said that it was a clear case of constructive dismissal, that Mr Sherrard behaved in a way that could be described as aggressive, alarming and terrifying, that Dr Garrod’s notes of the meeting have disappeared and that the Claimant doesn’t understand the meaning of without prejudice.

[39]It was submitted that the meeting on 8 November 2019 partly considered how the Claimant’s grievance was to be progressed and partly dealt with a proposed settlement. The Respondent submitted that the Claimant clearly understood what without prejudice meant – it is a trite concept. Further, the suggestion of terminating an employment contract could not amount to victimisation as there would never then be without prejudice discussions, which are a recognisable form of alternative dispute resolution.

[40]The Claimant made detailed closing submissions that certain conditions needed to be met before the common law principle of without prejudice applies. When considering these conditions, bringing a grievance or exercising a contractual right to express dissatisfaction with your employer’s behaviour cannot automatically give rise to a dispute of a legal nature. In the circumstances of this PHCM Order (NEW August 2020) 11 of 15 August 2020 case, it was the Claimant’s contention that there was no dispute of a legal nature in existence at the time of the November meeting. A dispute might be said to arise following the conclusion of the grievance procedure, which yields no resolution, but not before. Further, the Claimant submitted that Mr Sherrard had attempted to increase the pressure on her by increasing the financial offer on the condition that the Claimant signed the agreement at the November meeting.

[41]One of the further arguments raised by the Claimant was that Mr Sherrard was attempting to use the without prejudice principle to confer upon him an invincibility when making statements which were tantamount to ‘abuse and victimisation’ at a meeting at which no steps were taken to ascertain the Claimant’s consent to such a discussion. The Claimant continued by describing Mr Sherrard’s conduct as including ‘trickery’, ‘inducements’ and ‘deception’.

[42]The Claimant referred to the ‘cloak for perjury’ and that Mr Sherrard ‘pleads more than a dishonest case’. Legal Summary

[43]The rule of evidence that without prejudice communications are privileged from disclosure and inadmissible in evidence applies in proceedings before the Employment Tribunal. The rule promotes the public policy objective of encouraging litigants to settle their disputes by agreement rather than through litigation. To this end, the parties are enabled to negotiate without fear of what is said being used in evidence.

[44]For the rule to apply, there must be an existing dispute between the parties at the time of the alleged without prejudice communication, coupled with a genuine attempt to settle it.

[45]If those conditions are met, the rule can still not be relied upon if the exclusion of the evidence would ‘act as a cloak for perjury, blackmail or other unambiguous impropriety’ (Unilever PLC v Proctor & Gamble Co

[1999] EWCA Civ 3027

). It has been emphasised that the exception should only be applied in the clearest cases of abuse of a privileged occasion.

[46]The authorities are clear that ‘unambiguous impropriety’ is not to be interpreted widely but is reserved for behaviour that shows a serious abuse of the privilege and only in the very clearest of cases.

[47]The without prejudice rule can apply to communications prior to the commencement of litigation. The issue is whether in the course of the negotiations, the parties contemplated or might reasonably have contemplated litigation if they could not agree.

[48]In the case of BNP Paribas v Mezzotero

[2004] IRLR 508

EAT it was held that the mere act of an employee raising a grievance does not by itself mean that the parties are necessarily in dispute. It is necessary to consider the nature of the grievance, the manner and circumstances in which it is raised. What is the PHCM Order (NEW August 2020) 12 of 15 August 2020 factual matrix which preceded the negotiations – does that show an actual dispute or the potential for a future dispute? If so, the rule will apply.

[49]The Claimant has also made reference to the specific statutory provision in Section 111A of the Employment Rights Act 1996. This provides that, in unfair dismissal cases, evidence of pre-termination negotiations is inadmissible. Such negotiations known as ‘protected conversations’ include any offer made or discussions held before the termination of the employment in question with a view to it being terminated on terms agreed between the employer and employee. This provision enables employers to instigate such conversations without a risk of being said to breach the implied term of trust and confidence and ensuring the conversation is confidential where the without prejudice principle would not apply as there is not deemed to be an existing dispute.

[50]As with the without prejudice rule, there are limitations to the scope of Section 111A including if anything that was said or done in the negotiations was in the Tribunal’s opinion improper or connected with improper behaviour – then it will only apply to the extent that the Tribunal considers just. It is important to note that whilst evidence of pre-termination negotiations is inadmissible in unfair dismissal claims, this does not render it inadmissible for the purpose of any other claim such as discrimination. Further the term improper behaviour is wider than the term unambiguous impropriety in relation to the without prejudice principle. Tribunal’s Conclusions

[51]I have considered the entirety of the documents to which I have been referred, the witness evidence and the parties’ closing submissions, including the caselaw identified.

[52]I am entirely satisfied that at the time of the meeting on 8 November 2019 there was an existing dispute between the parties. Obviously the meeting took place prior to the commencement of litigation but it is my conclusion that the meeting took place at a time at which the parties contemplated or might reasonably have contemplated litigation. I have considered the Claimant’s grievance and the factual matrix prior to and at the time of the meeting. As noted above, in her grievance the Claimant referred to using ACAS mediation or the Early Conciliation process if it wasn’t possible for the matter to be resolved ‘in-house’. This express reference from the Claimant, in the context of her legal knowledge and experience, supports my conclusion that there was a dispute between the parties. The Claimant is specifically referring to the first steps required for bringing a claim before the Tribunal. Accordingly, whilst the Claimant has referred to the mere bringing of a grievance as not necessarily establishing that there is a dispute between the parties, in the circumstances of this case I find that there was.

[53]The communications at the meeting on 8 November 2019 were instigated by Mr Sherrard as a genuine attempt to settle matters between the parties. It is agreed by the parties that the Respondent wished to reach an agreement with the Claimant pursuant to which she would be paid a sum of money and her employment with the Respondent would end. This was in the context of the PHCM Order (NEW August 2020) 13 of 15 August 2020 Claimant bringing a detailed grievance alleging breach of her employment rights and signposting the next stage as including the option of commencing the Early Conciliation process.

[54]Accordingly, I am satisfied that the without prejudice rule applies to the communications at the meeting on 8 November 2019 following Mr Sherrard’s statement that the next part of the meeting was to be without prejudice.

[55]I have set out my detailed findings of fact above. I have not accepted the evidence given by the Claimant and her husband describing Mr Sherrard’s conduct to include aspects which might amount to unambiguous impropriety. For the avoidance of doubt, I do not accept that the exceptional circumstance of unambiguous impropriety applies in this case. My findings as to Mr Sherrard’s conduct during the meeting accord with his description of polite and professional. The relevant references to without prejudice matters are therefore unable to remain due to the exceptional circumstances of unambiguous impropriety.

[56]Due to these conclusions I have not found it necessary to proceed to consider Section 111A of the ERA 1996 which has applicability in unfair dismissal cases.

[57]I allow the Respondent’s application in its letter dated 14 October 2020 such that all references to the without prejudice content of the meeting on 8 November 2019 shall be removed from the pleadings and evidence in the case.

[58]A Tribunal may make a costs order and shall consider whether to do so, where it considers that a party has acted ‘otherwise unreasonably in …..the way that the proceedings (or part) have been conducted’ (Rule 76 of the ETs (Constitution & Rules of Procedure) Regulations 2013, Schedule 1). The conduct relied upon by the Respondent is said to be the Claimant’s repeated refusal to remove the relevant references from the ET1 and / or the allegations of impropriety made by the Claimant.

[59]I do not have a costs application before me at this time but I am asked to consider whether the Claimant’s conduct amounts to acting ‘otherwise unreasonably’ for the purposes of the costs rules, such that a Tribunal may make a costs order, if an application was made.

[60]I do accept that the Claimant has acted unreasonably in the way that she has opposed this application made by the Respondent in the following ways:60.1 Firstly, the Claimant opposed the application on the basis that she did not understand what without prejudice meant. Taking into account the Claimant and her husband’s legal education, knowledge and experience, this contention was without foundation. The Claimant referred to her Civil Litigation manual as documentary proof for her assertion that the principle was not covered in her LPC course. However the Claimant had not produced the relevant extract of the manual in readiness for the hearing and, although given further time during the course of the hearing, was unable to find the manual. PHCM Order (NEW August 2020) 14 of 15 August 2020

60.2 Secondly, the Claimant description of Mr Sherrard’s conduct, both in evidence and submissions, as including trickery, perjury and that he pleaded ‘more than a dishonest case’ was unsupported and in my conclusion, was without foundation. The Claimant and her husband’s accounts were supposedly supported by detailed notes taken by Dr Garrod. However neither the Claimant nor Dr Garrod considered that the notes were relevant such that they required disclosure ahead of the Preliminary Hearing and, as with the Civil Litigation Manual, despite additional time being given during the hearing process for their disclosure, the notes could not be found.

[61]This case will now proceed to a further Preliminary Hearing at which the remaining preliminary matters will be considered by the Tribunal and further case management directions made, as appropriate.

[62]The Respondent had been mindful to keep communications with the Claimant at a minimum whilst she was on maternity leave as prior to going on leave, the Claimant had been stressed and stated that she wanted a complete break from work. However, in or around March 2019, it was necessary for Mr. Johnson to discuss the proposed changes to CoSec with the Claimant. The Claimant did not fully understand the proposals which is evident from an email she sent to Mr. Johnson on 26th March 2019 [651]. The Claimant said that half of her role would be given to Ms. Badejoko and that she would not be returning to the same job. This was not correct. The Claimant further stated in her email that whilst she looked forward to working with Mr. Johnson and Ms. Badejoko, she felt that Ms. Badejoko should be retained as an assistant company secretary rather that a company secretary. It is clear that the Claimant, wrongly, felt that Ms. Badejoko was not as qualified and experienced as she was and resented the fact that they would be equals. The Claimant wanted Ms. Badejoko to report to her in the capacity of an assistant company secretary.

[63]In the email the Claimant had sent to Mr. Johnson on 26th March 2019, she had stated a desire to undertake future development opportunities and expand her skills outside of CoSec. In order to facilitate the Claimant’s request, Mr. Henry decided that the Claimant should be allocated two tasks; to produce a note on the implementation of Diligent Software and to adopt new articles for Group Companies. Both tasks were to be completed by the end of 2019 and would provide the Claimant with interesting career developmental opportunities. Mr. Henry’s proposal was not a mandate and the Claimant was able to refuse the tasks should she have wished.

[64]On 3rd April 2019 Mr. Johnson responded to the Claimant’s email explain the reasons for the changes to CoSec and why it was necessary to appoint an additional company secretary. Mr. Johnson also assured the Claimant that having two company secretaries was the most suitable way of dealing with the increase in work as it would be unfair to expect one person to shoulder the entire load. He also stressed that the Claimant, upon her return, would be responsible for the same company secretary duties as she had prior to her maternity leave. Finally in his email, Mr. Johnson stated that they could discuss matters further at the Claimant’s next ‘keeping-in -touch’ (‘KIT’) day when Ms. Badejoko would also be present at work. The Claimant attended a KIT day on 12th April 2019 and met with Mr. Johnson and Ms. Wilding. At the meeting it was explained to the Claimant that: She was valued as a team member; her role was not being ‘halved’; two full time company secretaries were needed (the delay in producing minutes had continued whilst the Claimant was on maternity leave); there had been a drastic increase in workload; changes in reporting lines had occurred across most departments not just CoSec; and that the changes would mean that the Claimant had future development prospects with the Respondent. Following the meeting, Mr. Johnson treated the Claimant to lunch at her favourite Chilli Pickle restaurant and they had a pleasant time. KIT Days

[65]On 14th April 2019, the Claimant emailed Mr. Johnson asking if she could take a KIT day on 10th May 2019. Mr. Johnson explained to the Claimant that on that date, a team meeting, followed by luncheon, had been arranged to take place in the London office on that date. However, as the Respondent wanted the Claimant to participate in the team meeting and lunch, the event was relocated to Brighton to accommodate the Claimant and her London colleagues travelled to Brighton rather than the Claimant having to travel to London. Mr. Johnson emailed the Claimant and informed her that matters had been rearranged and the team lunch would take place at 12.30pm at the Park View public house in Brighton followed by the team meeting in the office. The Claimant attended the meeting but not the team lunch.

[66]The Claimant attended a further KIT day on, 7th June 2019. Prior to this, the Respondent had commissioned an independent board effectiveness review (‘iBER’) which was undertaken by Vicky Kubitscheck. On 7th June 2019, the Claimant met with Ms. Kubitscheck and was interviewed as part of the iBER process7. The Claimant’s next KIT day – on 28th June 2019 – which had been arranged between the Claimant and either HR or Mr. Johnson, coincided with a team lunch. Nicola Johnson (no relation to Mr. Johnson) was due to leave the Respondent’s employ and the team lunch also served as a leaving lunch for Ms. Johnson. It was not a specific leaving lunch for Ms. Johnson but a serendipitous circumstance and the Claimant did not attend the lunch despite having been sent a recurring invitation to team lunches. The Claimant’s Return from Maternity Leave

[67]On 15th July 2019, the Claimant returned to work following her maternity leave. The Claimant alleges that a return to work lunch was not organised for her. However, the Respondent did not have the usual practise of organising specific lunches or events when a staff member leaves or joins the Respondent. Sometimes, the occasion of a person joining or departing from the Respondent coincided with a date near to the monthly team meeting. If that was the case, the team lunch may act as a joint event. The Respondent not organising a return to work lunch for the Claimant was not because of her pregnancy or maternity leave. When a colleague of the Claimant returned to the Respondent after a secondment at an external law firm, she did not have a return to work lunch arranged for her either.

[68]Upon the Claimant’s return to work, she and Ms. Badejoko were assigned one major client each (RIUK for the Claimant and RSMA for Ms. Badejoko) to ensure fairness and to avoid any one person doing more work than the other. Work in CoSec was abundant and the Claimant and Ms. Badejoko were extremely busy with their duties. The Claimant returned to her original role in CoSec albeit there were changes to the companies the Claimant provided company secretarial services to. The Claimant’s role had never been to provide services exclusively to particular companies; it was to provide company secretarial services to companies as required. It was natural that as the Claimant had returned to a company that had massively grown and expanded, 7 Ms. Kubitscheck’s iBER findings were critical of CoSec and the delay in producing board meeting minutes. the companies she provided services to also changed to meet demand and provide a high quality service. There was nothing untoward about this nor was any change because of the Claimant’s pregnancy or maternity leave. During the Claimant’s absence the Respondent had undergone significant change and had to adapt to this. Neither company secretary had a right to provide their services to a particular company only. The companies CoSec provided services to and how the companies were allocated to the Claimant or Ms. Badejoko, was determined by pragmatism, equity and business needs.

[69]The Claimant’s contract of employment stipulated that her role was not specific to certain companies or agency companies only which would exclusively be ‘her companies.’ The companies allocated to a company secretary was in the gift of the Respondent. Thus, it follows that the taking of minutes for a particular company was not an entitlement for the Claimant or Ms. Badejoko. They were both allocated minute taking duties for companies according to business needs and convenience. Furthermore, as the Claimant had expressed a desire to be allocated interesting projects, this would only have been achievable if there was fluidity in which companies were allocated to her. For these reasons the Respondent did not discriminate against the Claimant or subject her to a detriment by adjusting the agency companies the Claimant provided CoSec services for.

[70]What is of significance is that the Claimant returned to, her original role, the same grade, the same (increased) pay and conditions, the same location, and the same benefits. A change which had occurred upon the Claimant’s return, was the manager the Claimant was required to report to (Mr. Johnson rather than Mr. Henry). The reasons for the change in the Claimant’s linemanagement have been discussed above and were not related to her pregnancy or maternity leave. The change did not amount to a demotion of the Claimant or a detriment.

[71]Prior to going on maternity leave, part of the Claimant’s duties was to attend the Respondent’s Group Remuneration Review Committee ‘GRRC’). As with the companies assigned to a company secretary, the Claimant nor Ms. Badejoko had a sole right, contractual or via custom and practice, to attend and deal with the GRRC. Upon returning from maternity leave the Claimant failed to appreciate the scale of change at the Respondent or that the appointment of Ms. Badejoko as a company secretary, would lead to obvious changes to how committees and companies would be assigned in CoSec. The Respondent was striving to ensure that duties were designated in a fair and efficient manner in CoSec. The Claimant felt that as some of the companies and committees she had previously dealt with had changed, her actual role had changed. This was not a sensible conclusion to arrive at. The very nature of the Respondent’s business meant that its corporate landscape was constantly evolving.

[72]It is undisputed that the Claimant returned to a very different company than she had left when she began her maternity leave. What is also apparent, and understandable, is that the Claimant will have been daunted at the level of change in the Respondent’s size, turnover and staff numbers. The appointment of Ms. Badejoko as additional company secretary had also caused the Claimant some chagrin. The Claimant did not accept that Ms. Badejoko was her equal, and not her assistant, as she had wanted, and felt that she was far more able, qualified and experienced than her peer. Cumulatively, these feelings led the Claimant to convince herself that she had returned to a different role and duties when she returned to work in July 2015. Nothing could be further from the truth. The Claimant had returned to her same role and duties and the only significant changes were:(a) The Claimant’s pay had increased

(b) the Claimant was no longer the only company secretary, and

(c) the appointment of Ms. Badejoko had eased the burden on the Claimant and went some way toward turning CoSec into a more efficient and dynamic unit. The Claimant’s role and duties had not changed, the company had changed. It had changed into a larger, more successful, prosperous and ‘heavyweight’ outfit.

[73]The Claimant’s consternation to the changes at the Respondent she had returned to, led her to become hypersensitive. The Claimant believed that she was being excluded from emails sent by Ms. Badejoko and Messer’s. Henry and Johnson. This was not true. There is a distinction between a person being omitted from an email which they had no reason to be included in and a person not being copied into emails which they should have been included in, to aid the execution of their role. There was no deliberate exclusion of the Claimant from emails. The Claimant felt that she had the right to be included in all emails to do with CoSec even when the subject matter of emails did not directly concern or affect her. What the Claimant had wanted was for Ms. Badejoko to copy her into all the emails she sent without the Claimant reciprocating. The Claimant would also insist on sitting-in on meetings Ms. Badejoko was dealing with whilst she would make Ms. Badejoko sit outside of meetings that she was attending [JB, paras. 27-28]. This is further evidence of the Claimant viewing Ms. Badejoko as her junior and not her equal. Notwithstanding, that whilst Ms. Badejoko was a qualified solicitor and had previous experience of managing a team, the Claimant was not a qualified solicitor and had no prior experience of managing a team. Relations Between the Claimant and Ms. Badejoko.

[74]On 4th and 6th September 2019, the Claimant and Ms. Badejoko attended the Respondent’s strategy, board, and committee meetings ‘away days’ at Ashdown Park in East Sussex. The two company secretaries were required to coordinate material and minute meetings and sessions at the away days. This event, unfortunately, was the beginning of a deterioration in relations between the Claimant and Ms. Badejoko.

[75]The Ashdown Park event did not start very well. Ms. Badejoko felt that the Claimant ignored her messages and was dismissive of her when they met in person. During the course of the event, the Claimant had asked Ms. Badejoko to organise pastries, request reception to fix her hotel room television, and carry her notebooks to her car whilst walking a pace or two in front of Ms. Badejoko. This caused Ms. Badejoko to feel that she was being treated as a minion by the Claimant. Ms. Badejoko was also upset that the Claimant had not told her that she and others were going to lunch and only was told her half way through the lunch which meant that when Ms. Badejoko attended, the Claimant and others had finished eating. The Claimant was irked by Ms. Badejoko handing out material which directors had requested because they were materials for ‘her’ meetings. On 12th September 2019, the Claimant and Ms. Badejoko attended a course in London and the Claimant ignored Ms. Badejoko.

[76]The incidents on 4th, 5th, and 12th September 2019 caused both the Claimant and Ms. Badejoko to complain to Mr. Johnson. Mr. Johnson asked Ms. Badejoko to attend the Brighton office on 16th September 2019 and took her and the Claimant to a café to discuss their respective complaints. The meeting lasted around two hours and at its conclusion, Mr. Johson believed that matters between the two had been resolved. The Claimant and Ms. Badejoko agreed that in future, they would be mindful to speak to one another with respect and work collaboratively. The Claimant’s Second Pregnancy

[77]At the conclusion of the meeting on 16th September 2019, the Claimant informed Mr. Johnson and Ms. Badejoko that she was pregnant but was worried about what other staff my think. The Claimant’s latter comment surprised Mr. Johnson as to the best of his knowledge, the Respondent had not treated an employee unfavourably due to becoming pregnant or going on maternity leave.

[78]The Respondent had a practice of hosting ‘team building’ activities and social events to reward staff, improve morale, and promote cohesion. The cost of such events was borne by the Respondent. At a Christmas event, the Claimant attended with her husband and dog and the Respondent had paid for all meals, accommodation and activities except for the Claimant’s dog’s board which she had paid circa £15.00 for.

[79]On 26th September 2019, the Respondent had held a ‘Legal Department Goals Meeting’ followed by an evening supper. The invitation had been circulated to all staff on 10th May 2019 and the meeting was to take place between 3.00pm to 6.00pm after which the evening event would take place. At this point in time the Claimant had adjusted her working hours to 8.30am to 4.00pm to accommodate her childcare duties. The litigation team (which was based in London) would be travelling to Brighton to attend the meeting and evening meal. The Claimant informed Mr. Henry that she would be unable to attend the meeting and meal due to her adjusted working hours. In an attempt to counter this, Mr. Henry re-scheduled the meeting for 2.00pm so that the Claimant could attend. He was unable to change the time of the supper due to the fact that a large number of people would be attending from London and had already booked train tickets and made childcare and other arrangements. However, Mr. Henry told the Claimant that in future, he would organise a lunch instead of a supper so that the Claimant could attend.

[80]As the event had been organised over four months in advance, it is very implausible that Mr. Henry arranged the timing of the meeting and meal specifically so that the Claimant would be excluded from them. A monthly team lunch had been scheduled to take place on 27th September 2019 but as the team had had a meeting and supper the previous day, the team lunch was cancelled. Again, the cancellation was not because Mr. Henry wished to exclude the Claimant but a matter of simple convenience. The Claimant’s belief that the two occurrences were deliberately staged so as to exclude her was her hypersensitivity trespassing into the realms of paranoia.

[81]Following the iBER audit which had taken place, the Respondent’s INEDS were keen to broach the issue of very delayed board meeting minutes by CoSec and implement the recommendations of iBER. To this end, Kalpana Shah (INED and someone whom the Claimant had been inspired by [815]) emailed the Claimant and others stating that the Claimant and Ms. Badejoko should send draft minutes to the Chair within one week of the corresponding meeting. The Claimant responded to Ms. Shah on the same day and sent her a curt response [831]. The Claimant stated that Ms. Shah’s request was unrealistic and that CoSec had ‘other immediate work’ which Ms. Shah was unaware of. In response, Ms. Shah emailed the Claimant to say that she was happy for the deadline to be extended from one week to 10 working days. Ms. Shah’s frustration is understandable as she, and other INEDS, had not received minutes for the Respondent on time. Ms. Shah was not attacking the Claimant personally but addressing the deficiency in CoSec as a whole.

[82]On 15th October 2019, Ms. Shah and Tom Riddell (INED) travelled to London to meet with the Claimant and Ms. Badejoko (the Claimant attended remotely from Brighton due to a medical appointment) to discuss the resource and needs of the CoSec function and agree on action plans for the future. The meeting induced further frustration in Ms. Shah as the Claimant refused to meaningfully engage in the meeting and held fast to her opinion that there was no issue with the CoSec function and that she did a good job. Ms. Shah explained that the Claimant as an individual was not being scrutinised but the CoSec team, as a whole, was. Due to the Claimant’s stance, a timeframe in which to produce and disseminate minutes was unable to be agreed. The Claimant was steadfast in her belief that there was no issue and that she and CoSec were performing well and did not require further resources. Ms. Shah voiced her opinion that if there was no resource problem in CoSec then the issue may be time management and the prioritisation of work.

[83]Ms. Shah did not place pressure on the Claimant to abide by stringent deadlines but was simply trying to agree on a mutually acceptable deadline (a deadline of three weeks was later agreed with Mr. Johnson). Neither did Ms. Shah state that she ‘didn’t care’ that the Claimant had a schedule of holiday booked. Ms. Shah was addressing the CoSec function as a whole and not individuals within it.

[84]Every week (insofar as circumstances allowed) Mr. Henry or Mr. Johnson would host a team meeting; the first portion would be a meeting of CoSec and the legal team would join the second half of the meeting to have a department wide meeting. On 17th October 2019, the Claimant, Ms Badejoko (via telephone conference call), Ruth Lyall and Messer’s Henry and Johnson met for the CoSec weekly meeting in Mr. Henry’s office. Prior to the meeting the Claimant had emailed Sophie Urwin (HR associate) and Mr. Henry stating that she was pregnant and her due date of delivery was 18th April 2020. At the meeting workload and deadlines were discussed and the Claimant revealed that she was struggling to get some minutes completed within the prescribed timelines due to other work commitments.

[85]Ms. Badejoko said that she had some capacity and offered to produce a first draft of the minutes the Claimant had been unable to produce. However, the Claimant did not accept or welcome Ms. Badejoko’s offer.

[86]Soon after, Ms. Badejoko left the meeting. At this point Messer’s Henry and Johnson said to the Claimant that as she was having some difficulty in completing the minutes, she should accept Ms. Badejoko’s offer of help. Mr. Henry told the Claimant that he would prefer that Ms. Badejoko begin drafting the minutes for the Claimant to approve as this would ease the pressure on her. The Claimant did not take kindly to this suggestion and became aggressive. She stated that the minutes were her minutes for her client and that she would produce them. The Claimant then accused Messer’s Henry and Johnson of trying to take tasks away from her and attempting to re-write her work profile. This was not the case. No tasks were being taken away form the Claimant. Instead, the Claimant was being offered assistance in completing a task she was struggling with.

[87]Mr. Henry tried to assure the Claimant that Ms. Badejoko was acting out of benevolence and urged her to accept the offer of help. This incensed the Claimant further and she threatened to complain to HR that work was being taken away from her. The Claimant’s stubborn refusal to accept help and her threat to report him to HR annoyed Mr. Henry who said words to the effect of ‘you do that’ and walked out of his office to calm down. Mr. Henry returned back a short while later and began to work at his desk. The meeting clearly being over, Mr. Johnson and the Claimant left. Sickness Absence and Grievance

[88]On 18th October 2019 the Claimant was absent from work due to illness and had been signed off work by her GP due to ‘stress at work.’ The Claimant remained off work until the termination of her employment. During her time of work due to sickness, the Claimant contacted the Equality and Human Rights Commission and undertook her own research on the Acas code on grievance procedures. Informed by her research, the Claimant raised a lengthy grievance on 30th October 2019 [972-979].

[89]The headline of the Claimant’s grievance was that she had been subjected to bullying, harassment, and direct and indirect discrimination on grounds of pregnancy and maternity leave. The matters complained of in the Claimant’s grievance stretched back to her very first week of employment with the Respondent in February 2015 and a sizeable portion of the grievance is comprised of the Claimant complaining about Ms. Badejoko’s alleged inferior quality of work. The Claimant had indicated that she would be happy for her grievance to dealt with by Mark Bannister (Group Chief Operating Officer).

[90]The Respondent initially decided to deal with the Claimant’s grievance by way of a preliminary discussion between the Claimant and Harry Sherrard (solicitor) who was independent of the Respondent. The Claimant and her husband met with Mr. Sherrard on 8th November 2019 at Singing Hills Golf Course. Employment Judge Harrington, at a Preliminary Hearing on 28th May and 3rd to 5th August 2021, made specific findings as to the meeting in a judgment at pp. 3467-3483 of the bundle. We do not interfere with Employment Judge Harrington’s findings save as to say, that the meeting between the Claimant and Mr. Sherrard did not resolve her grievance.

[91]Mr Bannister was tasked with investigating the Claimant’s grievance, in November 2019, by the Respondent’s HR and he set about his investigation by interviewing Messer’s Henry, Johnson and Tanzer, and Ms. Wilding. These interviews were conducted prior to a planned interview with the Claimant on 6th December 2019.

[92]On 5th December 2019, Mr. Bannister emailed the Claimant asking if their meeting scheduled at 2.00pm on 6th December 2019 could be brought forward to 1.30pm. The Claimant responded to Mr. Bannister advising that her husband would not be available to attend the meeting and that her GP had advised that she was not fit to attend the planned meeting [1080]. The Claimant also stated that her GP had recommended that as she was unable to attend an in-person meeting, any questions should be put the Claimant in writing as an alternative.

[93]Mr. Bannister responded to the Claimant the next day and set out that:(a) He had no intention to ask the Claimant to leave her job;

(b) he would not be legally represented at the meeting but a notetaker from Sherrards solicitors would be attending as the Claimant did not want a notetaker from the Respondent;

(d) that due to the depth of her grievance and its sensitive nature, it would be preferable to meet face-to-face. The Claimant telephoned Mr. Bannister and said that the grievance meeting would be a ‘sham.’ Mr. Bannister re-iterated what he had said in his email, explained why it would be more beneficial to have an in-person meeting, and assured the Claimant that he would be fair and impartial. The Claimant said that she would speak with her husband and revert to Mr. Bannister.

[94]The Claimant emailed Mr. Bannister on 9th December 2019 and said that in consideration of her health and after having spoken with her husband, she had opted to answer any questions from Mr. Bannister in writing rather than a faceto-face meeting. Mr. Bannister acceded to the Claimant’s request and on 16th December 2019 he emailed the Claimant explaining how he was investigating her grievance and sent her questions to answer in writing, as she had requested [1085-90]. The questions posed by Mr. Bannister (16 in total) were comprehensive and covered all relevant aspects of the Claimant’s grievance.

[95]On 17th December 2019 the Claimant sent Mr. Bannister her responses to his questions and in the covering email, complained that his questions had taken time to be sent to her, were one-sided, and that she was being painted as a ‘bad employee.’ The Claimant’s response to Mr. Bannister’s question was interspersed with her own questions. Overall, both from her responses (which contained a degree of aggression) and own questions, it is apparent that the Claimant felt that only she was right and her colleagues were wrong in every aspect of something she disagreed with. The Claimant sought to feign that she knew why people had acted as they did even if it would have been impossible for her to have had this knowledge. An example is that the Claimant accused Mr. Johnson of treating her to lunch at her favourite Chilli Pickle restaurant because he felt guilty. This was not the case and a pattern of the Claimant skewing altruistic acts into something sinister and duplicitous. The Claimant, for instance, stated in her response that her promotion to company secretary and the payment to her of bonuses was because the Respondent had to do these things not because the Respondent was an employer committed to rewarding deserving members of staff. More seriously, she outright stated that Ms. Wilding and Mr. Johnson had been proven to be liars; they had not, and neither is there any evidence of them having lied in respect of the Claimant or at all.

[96]On 23rd December 2019, Mr. Bannister advised the Clamant that he would be conducting further interviews with staff as a result of her responses and also posed five further questions to the Claimant [1150-51]. As the Claimant had maintained that there was nothing wrong with CoSec resources and the way it functioned, Mr. Bannister decided to write to the relevant INEDS for their views. Mr. Masterson (INED) responded to Mr. Bannister and corroborated the Respondent’s position i.e. that CoSec was under resourced, that the volume of work had significantly increased, and that he absolutely agreed that the Respondent required two company secretaries. The other INEDS responded to Mr. Bannister with similar sentiments and Ms. Shah, stated that in her time with the Respondent, she had never seen board meeting notes completed in a reasonable timeframe.

[97]On 2nd January 2020 the Claimant responded to Mr. Bannister’s further questions and maintained that CoSec were not under resourced, problems in CoSec would not have arisen if she had not been on maternity leave, a second company secretary was not required, and sought to ally blame on Ms. Badejoko for shortcomings in CoSec.

[98]Mr. Bannister emailed the Claimant on 8th January 2020 and informed her that he hoped to conclude his investigation soon and when he had, the findings would be shared with her. On 11th January 2020, the Claimant emailed Mr. Bannister and stated that she had begun Acas early conciliation as she intended to make an Employment Tribunal claim against the Respondent. The Claimant also accused Mr. Bannister of deliberately delaying his conclusion of the grievance investigation in an attempt to allow the primary time limit to elapse (the Claimant believed that she had until 16th January 2020 to submit her claim) and effectively time-bar the Claimant from submitting an Employment Tribunal claim. There is no evidence of Mr. Bannister seeking to thwart a potential claim from the Claimant.

[99]As part of his investigation, Mr. Bannister had received a statement from Bill Evans (Head of Litigation) who had briefly line-managed the Claimant in early 2017. Mr. Evans believed – from his interaction with her whilst she reported to him – that the Claimant: Was reluctant to discuss pre and post board meeting processes; was protective of her role; made him feel like he was interfering; found it difficult to report to Mr. Henry; was dismissive of queries from Mr. Henry; and desired a direct reporting line to Mr. Tanzer.

[100]In the Claimant’s grievance she said she had text messages from Mr. Henry where he was pressuring her to work continuously following an operation. On 13th January 2020, Mr. Bannister asked the Claimant for copies of the text messages. The Claimant responded to Mr. Bannister on 16th January 2020, stating that the said text messages were on an ‘old phone but it has a cracked screen’ and that she ‘would need to recover the data at the apple store.’ The Claimant asked Mr. Bannister to proceed to his conclusions nonetheless. During cross-examination from Mr. Panesar, the Claimant said that she had dropped her mobile telephone (with the alleged text messages from Mr. Henry) whilst chopping wood. She then said that the mobile phone was ‘lost’ and then provided an alternative explanation saying that she had ‘thrown (it) away.’ We find that there were no such messages sent to the Claimant from Mr. Henry. If the messages existed, the Claimant would have preserved and produced them.

[101]Mr. Bannister then finalised and produced his grievance investigation report [1218-1236] and sent it to the Claimant on 17th January 2020. Mr. Bannister’s report was comprehensive and clear. The report was divided into two parts, ‘discrimination’ and ‘behaviour.’ The Claimant’s grievance in respect of discrimination was not upheld. Mr. Bannister found that whilst the Claimant’s work was of a very high standard, the CoSec function prior to the Claimant’s maternity leave was not ‘fit for purpose’ and this continued upon the Claimant’s return from maternity leave. It was evident from Mr. Bannister’s findings that he was not apportioning blame to the Claimant for CoSec’s deficiencies and that an additional company secretary was a stark necessity as opposed to an indulgence. The appointment of Ms. Badejoko as a second company secretary had not diminished the Claimant’s role but had the effect of enhancing the functions of CoSec.

[102]It is plain from Mr. Bannister’s report that there was no evidence of the Claimant returning to a, lesser or different role, inferior pay or conditions, inferior status, or that the Claimant’s career progression had in any way been impeded. However, Mr. Bannister did find that the Respondent could have explained in more detail why a second company secretary was needed and been more frank about the shortcomings of CoSec especially in light of the Respondent’s exponential growth; but accepted that this was done as the Claimant could be sensitive of perceived inadequacy or criticism. Mr. Bannister also found that the Claimant had been dishonest in leading Mr. Johnson and Ms. Wilding to believe that she had accepted a new role profile when in fact, she had ‘spoiled’ her signature in the way a person may spoil a ballot paper.

[103]Ultimately, Mr. Bannister did not find any evidence that the Claimant had been discriminated against for reasons of maternity and, or, pregnancy.

[104]In respect of the second aspect of the Claimant’s grievance ‘behaviour,’ Mr. Bannister’s findings can be summarised as follows,(i) Whilst the relationship between the Claimant and Mr. Henry was at times strained, he did not humiliate, bully, or act inappropriately to her there was no evidence of Mr. Henry raising his voice to the Claimant (nor anybody else).

(ii) The Claimant was not supported in pursuing a MBA as it was not commercially beneficial to the Respondent and that decision applied to any member of staff who wished to embark on a MBA.

(iii) The Claimant had not been excluded from social or team events by Mr. Henry, Mr. Johnson, nor anybody else.

(iv) The individuals interviewed by Mr. Bannister (and the INEDS whom had provided statements to him) had been honest and transparent, there was no evidence of any ulterior motives. Thus, Mr. Bannister did not uphold this aspect of the Claimant’s grievance and advised her of her right of appeal. Grievance Appeal

[105]On 23rd January 2020 the Claimant appealed the grievance investigation findings [1266] and Charlotte Pritchard (Group Risk and Compliance Director) was tasked to deal with the appeal. Ms. Pritchard was an exceptionally able and talented member of the Respondent’s staff. Having begun employment with the Respondent in 2017 as an Internal Audit Manager, Ms. Pritchard swiftly rose through the ranks due to her dedication and hard work.

[106]Ms. Pritchard was of sufficient seniority and standing to handle the Claimant’s grievance and hitherto, she had had minimal contact or interaction with the Claimant so was appropriately impartial. Prior to her appointment to chair the Claimant’s grievance appeal, Ms. Pritchard had been unaware that a grievance had even been raised by the Claimant.

[107]In order to adequately prepare to chair the Claimant’s appeal, Ms. Pritchard was provided with, and had proper regard to,(a) The Claimant’s grievance appeal and appendices.

(b) The Claimant’s original grievance.

(c) Questions from Mr. Bannister to the Claimant on 16th December 2019 and 23rd December 2019, and the Claimant’s responses to those questions.

(d) Communications between Mr. Bannister and the INED’s.

(e) Mr. Bannister’s outcome letter to the Claimant. Due to the volume of documents provided to Ms. Pritchard and as she wished to meticulously examine them, she took to reading them in her non-work time. Ms. Pritchard also spoke with Mr. Bannister to ensure that she had received all of the relevant documents and was satisfied that she had.

[108]On 28th January 2020, Ms. Pritchard emailed the Claimant advising that her appeal was being addressed and that she may request a meeting. Ms. Pritchard was aware that the Claimant had previously asked that questions were put to her in writing but was alert to the fact that the Claimant’s circumstances may have changed and she may be able to attend a face-to-face meeting.

[109]On 5th and 12th February 2020 the Claimant pursued Ms. Pritchard for an update but as Ms. Pritchard had been on annual leave, she responded to the Claimant on 12th February 2020 informing her that she needed to speak with relevant people and would revert to her. Ms. Pritchard set about interviewing the relevant people and in the process, obtained a witness statement from Mr. Sherrard [1378]. Ms. Pritchard was meticulous in her preparations and created various excel workbooks [1382] [1397] which were colour coded to ensure nothing was missed.

[110]Having completed her investigations Ms. Pritchard emailed the Claimant on 21st February 2020 to ask if she could meet and canvassed possible dates. On 23rd February 2020, the Claimant emailed Ms. Pritchard stating that she had been advised to minimise contact with the Respondent and for Ms. Pritchard to deliver her appeal outcome in writing [1459]. From the Claimant’s communication, Ms. Pritchard surmised that the Claimant wanted no further interaction in the process and set about finalising her outcome to the appeal.

[111]Upon conclusion of her investigation into the Claimant’s appeal, Ms. Pritchard sent the Claimant her outcome on 6th March 2020 [1469]. Ms. Pritchard found that the Claimant’s appeal was not upheld and the original grievance outcome was confirmed.

[112]On 16th March 2020, the Claimant resigned from her role [1490]. The Claimant stated that she was resigning on the basis of ‘constructive dismissal’ and cited the relevant statutory provisions. The Claimant clarified that whilst she was aware of her right to resign with immediate effect, she was however, choosing to resign with notice as she may become sufficiently well enough to resume work or secure alternative employment.

[113]The Claimant did not return to her role and her employment with the Respondent terminated on 16th June 2020. Relevant Law Unlawful Detriments for Pregnancy and/or Maternity

Relevant Law

[114]S.47C of the Employment Rights Act 1996 (‘ERA 1996’) provides (so far as material), 47C Leave for family and domestic reasons.(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

(2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to— (a) pregnancy, childbirth or maternity, ….

[115]Regulation 19 of the Maternity and Parental Leave etc. Regulations 1999 (‘MPL 1999’) states (so far as material), Protection from detriment 19.—(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

(2) The reasons referred to in paragraph (1) are that the employee— (a) is pregnant; (b) has given birth to a child; ….

[116]It is established law that an unjustified sense of grievance could not amount to a detriment, Barclays Bank plc v Kapur and others (No 2)

[1995] IRLR 87

and Shamoon v. Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, HL. In, Shamoon, Lord Hope referred to the case of Lord Chancellor v. Coker and Osamor

[2001] IRLR 116

where it was held, ‘…that there had to be some physical or economic consequence as a result of discrimination which was material and substantial to constitute a detriment.’ Direct Sex Discrimination

[117]The starting point is, as always, the statutory provisions. By virtue of s.13 EqA 2010, ‘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.’

[118]Under s.23(1) EqA 2010, where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[119]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[120]We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[121]In many direct discrimination cases, it is appropriate for a Tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of sex. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as she was.

[122]S.136 EqA 2010 sets out the relevant burden of proof that must be applied. A two-stage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination.

[123]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s sex. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory.

[124]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v. Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

and we have followed those as well as the direction of the court of appeal in the case of Madarassy v. Nomura International

[2007] IRLR 246

, CA. The decision of the Court of Appeal in Efobi v. Royal Mail Group Ltd

[2019] ICR 750

confirms that the guidance in these cases applies under the EqA 2010.

[125]The Court of Appeal in Madarassy, stated: ‘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.’ (56)

[126]It may be appropriate on occasion, for the Tribunal to take into account The Respondent’s explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v. Manchester City Council and others

[2006] IRLR 748

; Madarassy). It may also be appropriate for the Tribunal to go straight to the second stage, where for example the Respondent asserts that it has a non-discriminatory explanation for the alleged discrimination. A Claimant is not prejudiced by such an approach since it effectively assumes in his or her favour that the burden at the first stage has been discharged (Efobi para 13).

[127]We are required to adopt a flexible approach to the burden of proof provisions. As noted in the cases of Hewage v. GHB

[2012] ICR 1054

and Martin v. Devonshires Solicitors

[2011] ICR 352

, they will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. However, they may have little to offer where we in a position to make positive findings on the evidence one way or the other.

[128]Allegations of discrimination should be looked at as a whole and not purely on the basis of a fragmented approach (Qureshi v. London Borough of Newham

[1991] IRLR 264

, EAT. This requires us to ‘see both the wood and the trees’ (Fraser v. University Leicester UK

EAT/1055/13

at paragraph 79).

[129]We are also required to consider whether or not there is a causal link between the impugned act and the Claimant’s sex, Nagarajan v. London Regional Transport

[1999] IRLR 572

[130]S.18 EqA 2010 provides (so far as material), ‘18 Pregnancy and maternity discrimination: work cases(1) This section has effect for the purposes of the application of Part 5 (work) to the protected characteristic of pregnancy and maternity.

(2) A person (A) discriminates against a woman if, in or after the Protected period in relation to a pregnancy of hers, A treats her unfavourably — (a) because of the pregnancy, or (b) because of illness suffered by her in that protected period as a result of the pregnancy.

(3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave or on equivalent compulsory maternity leave.

(4) A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or a right to equivalent maternity leave. (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (aa) if she does not have that right, but has a right to equivalent maternity leave, at the end of that leave period, or (if earlier) when she returns to work after the pregnancy; (b) if she does not have a right as described in paragraph (a) or (aa), at the end of the period of 2 weeks beginning with the end of the pregnancy. …. Harassment Related to Sex

[131]S.26(1) EqA 2010 provides: ‘A person(a) (A) harasses another

(b) (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’

[132]A similar causation test applies to claims under s.26 as described above to claims under s.13 EqA 2010. The unwanted conduct must be shown ‘to be related’ to the relevant protected characteristic. 115. The shifting burden of proof rules set out in s.136 of the EqA 2010 can be helpful in considering this question. The burden is on the Claimant to establish, on the balance of probabilities, facts that in the absence of an adequate explanation from the Respondent, show she has been subjected to unwanted conduct related to the relevant characteristic. If she succeeds, the burden transfers to the Respondent to prove otherwise. 116. Harassment does not have to be deliberate to be unlawful. If A's unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the definition of harassment is made out. There is no need to consider the effect of the unwanted conduct. 117. If the conduct was not deliberate, it may still constitute unlawful harassment. In deciding whether conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for B, we must consider the factors set out in s.26(4) EqA 2010, namely:(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that affect. 118. The shifting burden of proof rules can be also be helpful in considering the question as to whether unwanted conduct was deliberate. 119. Whilst the unwanted conduct need not be done ‘on the grounds of’ or ‘because of’, in the sense of being causally linked to, a protected characteristic in order to amount to harassment, the need for that conduct be ‘related to’ the protected characteristic does require a ‘connection or association’ with that; see Regina (Equal Opportunities Commission) v. Secretary of State for Trade and Industry

[2007] ICR 1234

QBD. Notwithstanding it was decided under the prior legislation including the formulation ‘on the grounds of’, the observations made by the EAT in Nazir v. Asim

[2010] ICR 1225

may still be of some relevance: ‘69 We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law—such as a person’s race and gender.’ 120. In relation to the proscribed effect, although the Claimant’s perception must be taken into account, the test is not a subjective one satisfied merely because the Claimant thinks it is. The ET must reach a conclusion that the found conduct reasonably brought about the effect; see Richmond Pharmacology v. Dhaliwal

[2009] IRLR 336

EAT. 121. Guidance on the threshold for conduct satisfying the statutory definition was given by the EAT in Betsi Cadwaladr University Health Board v. Hughes [2014] 2 WLUK 991; per Langstaff P (as he then was): 10. Next, it was pointed out by Elias LJ in the case of Grant v HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: “Tribunals must not cheapen the significance of these words. They an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” 11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.” 12. We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. Constructive Unfair Dismissal

[133]Under section 95(1) ERA 1996, an employee is considered to have been dismissed in circumstances where ‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’ This is commonly known as constructive dismissal.

[134]In order for there to have been a constructive dismissal there must have been:-a. A repudiatory or fundamental breach of the contract of employment by the employer;

b. a termination of the contract by the employee because of that breach; and

c. the employee must not of affirmed the contract after the breach, for example by delaying their resignation.

[135]In Western Excavating (ECC) Ltd v. Sharp

[1978] ICR 221

, CA, it was said ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.’

[136]An employee can rely on breach of an express or implied term of the contract of employment. In cases of alleged breach of the implied term of trust and confidence the test is set out in the case of Malik v. Bank of Credit and Commerce International Ltd

[1998] AC 20

; namely, has the employer, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The test of whether there has been such a breach is an objective one (see Leeds Dental Team Ltd v. Rose

[2014] IRLR 8

[137]The EAT in Frenkel Topping v. King

UKEAT/0106/15/LA

set out that simply acting in an unreasonable way is not sufficient to satisfy the test. The employer ‘must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term.’

[138]It is open to an employee to rely on a series of events which individually do not amount to a repudiation of contract, but when taken cumulatively are considered repudiatory. In these sorts of cases the ‘last straw’ in this sequence of events must add something, however minor, to the sequence (London Borough of Waltham Forest v. Omilaju

[2005] ICR 481

[139]On the question of waiving the breach, the Western Excavating case makes clear that the employee ‘must make up his mind soon after the conduct of which he complains; if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will regarded as having elected to affirm the contract.’

[140]In respect of the Claimant returning to the same job post her maternity leave, we were assisted by the law set out at paragraphs 73 to 84 of Mr. Panesar’s written closing submissions. We do not repeat the law here but are satisfied that it was accurately and fairly stated8. We have also considered the law as stated by the Claimant within her submissions. Whilst we have had regard to the law as set out by both the Claimant and Mr. Panesar, we have not quoted or repeated it in full in this judgement in the interests of brevity. However, that does not mean we have omitted to 8 The Claimant, in her oral closing submissions, did not query or challenge the law as set out in Mr. Panesar’s written submissions. consider it. Conclusions

Credibility

[141]The Claimant is no doubt a very intelligent, educated and ambitious person. She was successful in her role with the Respondent and they held her in high regard, this is evident from her swift promotion and the considerable bonus payments awarded to her. What is also clearly apparent is that there were considerable issues with the Respondent’s CoSec function before, during, and after the Claimant was employed but no blame was apportioned to the Claimant at any time. The Respondent fully recognised that the issue was a team issue and not one which could be attributed to an individual. We have no reservations that the Claimant was highly competent, able, and would have gone on to enjoy a very successful and rewarding career with the Respondent.

[142]Therefore, it is regrettable and disappointing that the documentary and oral evidence revealed that the Claimant dissembled from the truth, distorted facts to suit her narrative – even when that narrative had little or no evidential basis – and viewed almost every generous act from the Respondent with suspicion and hostility.

[143]Within her witness statement, pleadings and during cross-examination, the Claimant frequently painted an untrue picture and gave untrue evidence or refused to accept facts which were unimpeachable. A few examples of this (but by no means all examples) are:(a) When asked if the Claimant had attended a Christmas lunch in 2018 at Al Duomo restaurant, she denied this. The Claimant only conceded the fact when Mr. Panesar reminded her that she herself had stated this in her witness statement [SG, 152].

(b) The Claimant denied that Mr. Johnson had extended kindness to her multiple times. However, she then accepted that Mr. Johnson had treated her to lunches at the Chilli Pickle restaurant, arranged a lunch for the Claimant to meet with his wife so she could be reassured following her miscarriage (Mrs. Johnson too, sadly, had previously miscarried), and relocated a team day to Brighton from London so that the Claimant could attend.

(c) The Claimant continually maintained that the workload in CoSec had not been increased despite the incontrovertible evidence, that the Respondent had grown exponentially and naturally, so did CoSec’s workload.

(d) The Claimant would not concede that the Respondent needed two company secretaries despite that being the view of every Respondent witness, the INEDS and plainly evident from the documents. Post the Claimant’s departure, the Respondent still maintain two company secretaries.

(e) It was said by the Claimant that Ms. Wilding was unsympathetic to mothers as she herself did not have children. This is wholly untrue and we accept Ms. Wildings evidence that she has an adult daughter.

[144]The Claimant, in her witness statement and evidence, sough to introduce ‘red herrings’ by referring to Mr. Johnson speaking about dildos and Mr. Henry having massages. Such matters were not a part of the Claimant’s allegations and did nothing to further her case. We were not assisted by such information as it did not relate to any matters which we had to determine.

[145]It was apparent to us that the Claimant had a very inflated belief of her abilities, knowledge, and qualifications. This sense of self-importance held by the Claimant caused her to genuinely believe that she was as skilled and able as her senior and more experienced peers when she should have been aware that she was not. It also caused the Claimant to gratuitously make some very callous and hurtful allegations against witnesses and people employed by the Respondent. A sample of such behaviour is:(a) The Claimant’s allegations that, (i) Mr. Johnson was surprised that the Claimant’s bright yellow car had keyless entry and that the boot could be opened remotely (features that are banal, not unique, on modern vehicles). (ii) Mr. Johnson drove around in a £900 ‘banger’ whilst she had a new expensive car. In actuality, Mr. Johnson had a campervan worth circa £19,000.00p and after the birth of his second child, bought a £20,000.00p Volkswagen Golf TDI. (iii) Mr. Johnson forewent luxury holidays so he could bring his children up properly. The reality was that Mr. Johnson has travelled extensively with his family including tours of Asia, Australia and the USA. (iv) Mr. Johnson was envious of the Claimant’s two-week holiday at a farmhouse in France. There was no reason for Mr. Johnson to envy the Claimant as he had himself enjoyed a holiday in France with his family (in his luxury campervan). (v) Mr. Johnson’s children only went to nursery after the age of three when they were assisted by the Government’s free entitlement scheme and that Mr. Johnson fabricated in evidence that his children went to a private nursery. Again, this is simply untrue. Mr. Johnson’s children attended a fee-paying nursery and he was forced to provide evidence of this as the Claimant maintained that he had lied about this. Mr. Johnson did not lie and provided evidence corroborating what he had said.

(b) Knowing that Mr. Henry attended this Hearing via CVP due to a serious brain tumour (and who is disabled by virtue of his impairment) and despite having had sight of medical advice to this effect, the Claimant maintained that Mr. Henry deliberately avoided attending the Tribunal in person as he wanted to avoid facing her in the ‘theatre’ of the Tribunal. This was a particularly unattractive accusation by the Claimant.

(c) When the Claimant cross-examined Ms. Pritchard, she accused her of covering up discrimination to please Mr. Tanzer, found no grounds to uphold the Claimant’s appeal as she wanted to be promoted, and therefore, conducted a vitiated process. The Claimant’s accusations were totally unsubstantiated by any evidence and clearly caused Ms. Pritchard offence. That sense of offence by Ms. Pritchard was justified as she is a very talented, hard-working and qualified person whose career advancement is fully deserved.

[146]What also became clear, as the evidence unfolded, was that the Claimant was hypersensitive. The Claimant perceived that any criticism or questions about the functions and efficiency of CoSec were specific attacks on her and her ability. Such hypersensitivity, and at times feelings of paranoia, skewed the Claimant’s view. If the Respondent acted with kindness, the Claimant felt that it was doing nothing more than what it was duty bound to do. If the Respondent made a decision or acted in a way the Claimant did not agree with, she felt that this was automatic discriminatory conduct. The Claimant also had difficulty accepting that colleagues were more qualified, more experienced, and more senior to her. The Claimant had a personal dislike for Mr. Henry and resented that he line-managed her and this was revealed during the evidence.

[147]We found that the Respondent’s witnesses were honest, consistent, reliable and trustworthy. Their evidence was clam and cogent even in the face of personal pejorative assertions by the Claimant. Where there was conflict in the evidence, we preferred the evidence of the Respondent. Allegations9

[148]The Claimant’s claims of discrimination, largely, consist of allegations which are cited as breaches of discrete legislation i.e. ss.13 and 18 EqA 2010, s.47C ERA 1996, and r.19 MPL 1999. For ease of reading we have addressed each allegation in turn using the numbering adopted in the agreed List of Issues using the reference ‘LoI X’ (‘X’ denotes the numbered paragraph in the List of Issues). LoI 2

[149]The Claimant and her colleagues had been sent a recurring calendar invite to team lunches which were to take place on the last Friday of each month. The Claimant had possession of her work issue laptop and BlackBerry and was able to access this information. The Claimant’s name was on the list of invitees for the team lunches. The Claimant attended the leaving lunch for Ben Huggins on, 13th November 2022 and could have attended the team lunch on 28th June 2019. Notwithstanding that the Claimant had been paid for a full KIT day on 28th June 2019, she did not attend the office until the afternoon when the team had left the office. The Claimant received the invitation but may not have read it. However, the Claimant did not put to Mr. Henry that he had failed to notify her of the lunch and when Mr. Panesar put to the Claimant that Mr. Henry was not trying to hide team lunches from her, she agreed. This allegation is not made out. 9 Where the burden of proof has passed it has been specifically mentioned. Where it has not, it has not been referred to. LoI 5

[150]By July 2019, as the Respondent had monthly team lunches, no specific return-to-work lunches were laid on by the Respondent for its staff. Milestone events (leaving work, returning to work, birthdays etc.) were marked at the monthly team lunches and the Claimant was not treated unfavourably by the Respondent not organising a specific return-to-work lunch for her. LoI 6

[151]Although the burden of proof has passed to the Respondent, it has provided a non-discriminatory explanation for its actions. There was no promotion opportunity for the role of head of corporate legal. There was no role to advertise or apply for. What had happened is that Mr. Johnson’s job title, not role, had changed to align with the job title of his contemporaries from acquired companies. Even if there had been a new role created of head of corporate legal, the Claimant clearly would not have been qualified for the role. The Claimant was not a solicitor, was not qualified to give commercial advice on acquisitions and had not ever drafted a, even in part, commercial contract. LoI 7

[152]This allegation is not made out. When the Claimant began her first period of maternity leave in June 2018, she made it explicitly clear that she wanted to totally switch-off from work. If there was a deluge of communication for the Respondent to the Claimant, she could have argued that she was in this sense being discriminated against when she had made clear that she wanted a total break from her work. In any event, there was no lack of communication from the Respondent as the Claimant – during maternity leave – attended KIT days and social events. LoI 8

[153]The Respondent did not err in respect of this allegation. Whilst the Claimant was on maternity leave there was significant expansion of the Respondent but the Claimant’s role had not changed. What had changed was that due to a massive increase in workload, Ms. Badejoko was taken on as a second company secretary and companies that the company secretaries dealt with were equally allocated. The Claimant considered that the companies she had delt with were ‘her’ companies. This was not true. A company secretary had no domain over a particular company, it was for the Respondent to decide which companies to allocate to its staff. LoI 9

[154]This allegation is dismissed. As explained in the preceding paragraph (153 (supra.)), the Claimant did not have a specific portfolio to which her role was dedicated; she may have done work for certain companies more than others but that did not mean that they were solely her remit. LoI 10

[155]The Claimant had no remit for specific companies and thus, none were removed from her. What the Respondent did was to balance the work between the Claimant and Ms. Badejoko which it was perfectly entitled to do. The Claimant resented Ms. Badejoko dealing with companies she regarded as ‘hers’ and this allegation fails. LoI 10 and 11

[156]These allegations fail, see paragraphs 152 and 153 (supra.). LoI 12, 13 and 14

[157]The Claimant’s role, pay and conditions, terms of employment, job description, and seniority remained the same on her return from maternity leave as it had when she left to take maternity leave. As mentioned several times in this judgment, the Respondent had changed through significant expansion and it was necessary to employ a second company secretary. For obvious reasons this meant that work had to be allocated and reallocated to ensure the sufficient performance of CoSec. The idea that the Claimant returned to a different role is a chimera. The Claimant’s overall role and key responsibilities remained the same and did not change. These allegations fail. LoI 15

[158]There is simply no evidence that Ms. Wilding and Mr. Johnson gave the Claimant incorrect reasons for the alleged changes to her role. The Claimant fails to appreciate the distinction between changes to a role and changes to what needs to be done in a role due to business needs. Ms. Wilding and Mr. Johnson’s rationale for the changes within the Claimant’s same role were valid and not incorrect. The Claimant understood this following a meeting on 12th April 2019 and after the meeting sent a message to Mr. Johnson stating that: ‘Hi Nick, thanks for today. Me you and Jane are going to make a great team. I feel bad that you thought that the emails were directed at you. It was just that you were the spokesperson and I never had any issue with working with you. I genuinely respect and trust you. I will send you an email tomorrow with details of my return info and holiday days Sarah’ LoI 16

[159]Upon Ms. Badejoko being offered the role of a second company secretary and after her acceptance and appointment to the role, the Respondent had no obligation or requirement to notify the Claimant as her role was totally unaffected by Ms. Badejoko’s appointment. If fact, the only material difference Ms. Badejoko’s appointment had to the Claimant was that it meant she would not be overburdened in her role and that responsibilities would be shared. This was a positive, not negative, development and certainly not unfavourable treatment. The nub of this allegation is that the Claimant believed that she was entitled to be consulted about anything to do with CoSec and her ensuing dismay that her maternity cover (whom the Claimant believed was not as qualified, experienced, or capable as herself) had been appointed to a role as her equal and not as her assistant. LoI 17

[160]This allegation does not get off the ground. None, let alone ‘a significant number,’ of the Claimant’s duties were allocated to Ms. Badejoko or anybody else. The Claimant’s duties and job description remained the same as they were prior to her maternity leave. What had changed was the increased number of companies acquired by the Respondent, and subsequently committees and boards, which meant that the allocation of duties had to be reconfigured to ensure parity. Neither the Claimant nor Ms. Badejoko had the right to only deal with specific companies. LoI 18

[161]As with the allegation which forms the basis of LoI 16, the Claimant was not entitled to be copied into all emails regarding CoSec. Where the Claimant’s work was affected, she was copied into emails by Ms. Badejoko and Messer’s. Henry and Johnson. There needs to be a reason to copy somebody into an email otherwise, a person can be unnecessarily overwhelmed with emails. The Claimant felt that she should be copied into all emails in respect of CoSec and especially any emails emanating from Ms. Badejoko. This was as the Claimant did not see Ms. Badejoko as her equal. It is of note that at times when the Claimant emailed Mr. Tanzer regarding CoSec, she did not include anybody, not even her line-manger, into the emails. This allegation fails. LoI 19

[162]The Claimant had always made it known to the Respondent that she had ambition and wished to progress in and develop her career. There is nothing wrong with this and on the contrary, such determination is to be lauded. However, when the Claimant was provided with such opportunities, at her behest, by Messer’s. Henry and Johnson, she complained that it was unfavourable treatment. The Claimant was not admonished for not completing career developing goals in a timely fashion and had the opening to decline to take on these tasks if she had so wished. She did not. This allegation is not made out. LoI 20

[163]For the reasons in the preceding paragraphs this allegation fails. LoI 21

[164]Messer’s. Henry and Johnson did tell the Claimant that her level of seniority was equal to Ms. Badejoko. They told her this because it was true. Whilst the Claimant was qualified at a chartered level she had not qualified as a solicitor; Ms. Badejoko had. Ms. Badejoko was an experienced and highly competent company secretary and had had experience of managing a team, which the Claimant had not. Therefore, telling the Claimant that Ms. Badejoko was her equal was a statement of fact and not unfavourable treatment. LoI 22

[165]As we have found, Ms. Shah did seek to introduce more stringent deadlines on when board meeting minutes were produced in an email on 10th September 2019. However, the desire to meet the deadlines wished for by Ms. Shah applied to CoSec and not solely the Claimant. As an INED, Ms. Shah was entitled to espouse her views as to the timeliness of the completion of board meeting minutes and it was reasonable for her to do so in robust terms. Ms. Shah’s actions do not amount to a detriment or unfavourable treatment of the Claimant. LoI 23

[166]There is no evidence of this allegation and the Claimant failed to put this to Mr. Henry when she cross-examined him. In fact, the opposite is true. Mr. Henry did rearrange team meetings to accommodate the Claimant’s flexible working hours and arranged for future ‘socials’ to be held at lunchtime as opposed to evening time to accommodate the Claimant. This allegation is not made out. LoI 24

[167]This allegation involves Messer’s. Henry and Johnson removing tasks from the Claimant after 17th October 2019 when she announced she was pregnant. Ms. Badejoko was asked to produce minutes which the Claimant had not had the time to produce. As Ms. Badejoko had capacity and the Claimant did not, the instruction to Ms. Badejoko was reasonable and not connected to the Claimant’s pregnancy or maternity and not unfavourable treatment. Messer’s. Henry and Johnson were seeking to reduce the pressure on the Claimant in a situation when Ms. Badejoko was available and willing to assist. This allegation fails. LoI 25

[168]For the reasons set out in this judgment, the Claimant did return, after her maternity leave, to the job she was employed to do so this allegation is not made out and fails. LoI 26 and 27

[169]There is no evidence whatsoever that the Claimant returned from maternity leave to a different job nor that she returned on less favourable terms or conditions. These allegations are not made out. Harassment LoI 29 - 30

[170]As we have found (in this judgment) that the Respondent did make provision for the Claimant’s KIT day on 28th June 2010, did not exclude the Claimant from a team ‘night out’ on 26th September 2019, and cancelled the team lunch on 27th September 2019 for innocuous reasons, the Claimant’s allegations of harassment are not made out. Mr. Henry’s attitude was not untoward (and went unchallenged in crossexamination by the Claimant) and did not constitute conduct capable of harassment under s.27 EqA 2010. The Claimant’s allegations of harassment related to sex are not made out and stand dismissed. Personal Injury LoI 30

[171]The Claimant put forward no evidence in support of this claim nor did she put it to the Respondent in cross-examination. We have no evidence that the Claimant suffered any personal injury arising from the Respondent’s alleged discriminatory actions and therefore, this claim must fail. Constructive Unfair Dismissal LoI 33 to 36

[172]We have found (supra.) that none of the Claimant’s allegations under this head of claim (LoI 33 (i)-(iv)) occurred as alleged or at all.

[173]We are satisfied from the documentary and oral evidence that the Claimant’s grievance and grievance appeal were carefully dealt with by Mr. Bannister and Ms. Pritchard.

[174]There was no fundamental breach, or any breach, of the Claimant’s contract of employment by the Respondent. The Claimant resigned of her own volition and her resignation was not forced upon her by any action or actions of the Respondent. The Claimant’s claim of constructive unfair dismissal fails. Jurisdiction

[175]The Claimant has not made out that any alleged unlawful acts by the Respondent were part of a continuing course of conduct. Neither did we hear any evidence or submissions from the Claimant as to why it would be just and equitable to extend time for her out of time claims. However, due to our findings, we need not pursue the issue of jurisdiction further.

[176]For these reasons, all of the Claimant’s claims fail and are dismissed in their entirety. Postscript

[177]On 28th and 30th October 2023, after the Hearing had concluded and the Tribunal were in the deliberations stage, the Claimant emailed the Tribunal seeking disclosure from the Respondent in respect of matters she could, and should, have requested disclosure of at a much earlier stage (the issue of where Mr. Johnson’s children pre-schooled). The Respondent responded to the Claimant’s email on 3rd November 2023. It is especially disappointing as the Claimant sought, and received, disclosure of a matter which was accepted by the Tribunal i.e., the attendance of Mr. Johnson’s children at the fee-paid Montessori (nursery) School in Brighton and Hove. It is entirely inappropriate for the Claimant to impugn the integrity and honesty of Mr. Johnson and Mr. Henry (both solicitors) on a suspicion; a suspicion proven, via disclosure by the Respondent, to be devoid of any factual basis.

[178]The Claimant is advised not to cast any further aspersions on the characters of the Respondent’s witnesses unless she has credible and tangible evidence. Allegations of dishonesty and fraud committed by legal professionals can have damaging consequences on their careers.

[179]The Claimant’s post-Hearing correspondence provides us the opportunity to make two matters entirely clear. Firstly, we are satisfied that the integrity and honesty of Messer’s. Johnson and Henry are untroubled by the Claimant’s accusations and remain intact. Secondly, we are content that Mr. Panesar’s actions – both in and outside of the Tribunal room – were wholly appropriate.