Miss K Zyszkiewicz v Apax Support Ltd: 2301143/2018
JUDGMENT
The Claimant’s claims are dismissed.REASONS
[1]By a claim form presented on 4 April 2018 the Claimant made claims of discrimination on the protected characteristic of race and whistleblowing. These claims were defended by a response presented on 18 July 2018.[2]The Tribunal heard from the Claimant and on her behalf from Ms Chloe Piper. For the Respondent the Tribunal heard from Mr Anousha Vahdaty (Director) Ms Hoda Evans (Manager Ideation Department) and Mr Aaron Ayala (acting Accommodation Manager). The parties had agreed a bundle of documents comprising 174 pages.[3]The issues had been agreed in advance of this hearing and these finding reflect those issues. The issues are set out below. The Tribunal has not followed the exact order of the agreed issues, however all issues were discussed and considered. These findings relate to those matters that are relevant to the issues and necessary to explain the decision reached. All matters were considered even if they are not expressly referred to below.The agreed issues
[4]Time Limitsa. The Claimant brought her claims by means of an ET1 dated 4 April 2018, and entered into ACAS Conciliation between 13 February 2018 and 13 March 2018, time therefore expired on 14 November 2017.b. Were the Claimant’s race discrimination claims brought within 3 months of the acts or omissions complained of (or such longer period that applies as a result of the ACAS early conciliation process)?c. If not, is it just and equitable to extend time? If not, the claim should be dismissed as the Tribunal has no jurisdiction to hear it.d. Were the Claimant’s claims based on alleged whistleblowing detriments, or harassment brought within 3 months of the acts or omissions complained of (or such longer period that applies as a result of the ACAS early conciliation process)?e. If not, do the acts amount to a continuing series of acts, or was it not reasonably practicable for the Claimant to bring those claims in time?f. If it was not reasonably practicable for the Claimant to bring her claim based on alleged whistleblowing detriments on time, was her claim nevertheless brought within a reasonable period?[5]Direct Race Discriminationa. Are either of the named individuals appropriate comparators with the Claimant a) Chloe Piper; and b) Alexica?b. Did the following events happen: i. On 18 October 2017 was the Claimant called to a meeting with the Accommodation Manager and Director at which she was criticised?; ii. On 18 October 2017 was there a second meeting with the Director and Ms Piper at which she was again criticised and bullied? iii. On 1 November 2017 was she told that she would be moved to other accommodation? iv. Did the Respondent e-mail employees to say that stressrelated illness was caused by the sufferer’s own thinking at a time when the Claimant was the only employee absent through a stress-related illness? v. On 20 December 2017 was the Claimant treated badly during her appeal meeting? vi. Was the Claimant dismissed on 5 December 2017 with notice ending on 5 January 2017? The Respondent accepts the Claimant was dismissed.c. For each of those factual allegations found to have happened, has the Claimant discharged the initial, evidential burden of showing they were because of her race as a Polish person?d. Subject to an initial prima facie burden being discharged, can the Respondent show that the conduct complained of was in sense whatsoever because of the Claimant’s protected characteristic of race?e. If the Claimant was dismissed because of her race, what was the percentage chance she would have been dismissed but for the discriminatory conduct in any event?[6]Harassment a. Do acts bi, ii, iv and v amount to harassment on the grounds of race?[7]Whistleblowing Detriment Claimsa. Did the Claimant act as follows? i. On 5 September 2017 the Claimant sent an e-mail to Mr Ayala and Mr Vahdaty (the “5 September E-Mail”) BP112-3; and ii. On 16 October 2017 the Claimant sent an e-mail to Mr Ayala and Mr Vahdaty (the “16 October E-Mail”); BP122. iii. If so, did such acts constitute qualifying disclosures for the purposes of Section 43B of the Employment Rights Act 1996, namely: iv. Was there a disclosure of information in the 5 September email? v. If so, did the Claimant believe the information in the 5 September e-mail tended to show that the health and safety of the Claimant and Chloe was being endangered? vi. Was any such belief reasonable? vii. If so, did the Claimant reasonably believe that such disclosure was in the public interest? viii. Was there a disclosure of information in the 16 October email? ix. If so, did the Claimant believe the information in the 16 October tended to show that the health and safety of the Claimant and Chloe was being endangered? x. Was any such belief reasonable? xi. If so, did the Claimant reasonably believe that such disclosure was in the public interest?b. Was the Claimant subjected to a detriment as a result of her protected disclosures? Specifically, did the Respondent do the following: i. On 18 October 2017 was the Claimant called to a meeting the Accommodation Manager and Director at which she was criticised? ii. On 18 October 2017 was there a second meeting with the Director and Ms Piper at which she was again criticised and bullied? iii. On 1 November 2018 was she told that she would be moved to other accommodation? iv. Did the Respondent e-mail employees to say that stressrelated illness was caused by the sufferer’s own thinking at a time when the Claimant was the only employee absent through a stress-related illness? v. On 20 December 2017 was the Claimant treated badly during her appeal meeting?c. Do any of the matters set out above amount to detriments?d. If so, were those detriments done on the grounds that the Claimant had made a protected disclosure for the purposes of Section 47B Employment Rights Act 1996?Background
[8]The Respondent is an organisation that runs care homes. The Claimant was employed to work at Somerset House. This was a newly opened care home and therefore initially at least, there were fewer residents than it could take. The Respondent, at the time it presented its response, operated over eight sites and employed approximately 26 staff. The two relevant sites for the purposes of this claim are those at Somerset House in Sydenham Road, and Summer House in Catford.[9]The Claimant was employed as a Support Worker from 10 July 2017 and initially worked at Summer House while Somerset House was being prepared for opening. Somerset House opened in September 2017 and provides 24-hour high support for up to eight residents. There are three full-time members of staff, one live-in support worker and one part-time worker. The category of resident is different in Somerset House to Summer House.[10]On 8 August 2017 Mr Vahdaty sent an email to all new recruits (including the Claimant) which said:[11]“Dear New Recruits We are keen to improve our induction and training programme and general how we run things at Apax. If you observe and record your experience from a fresh pair of eyes whilst going through your first few months at Apax, or indeed at any time, and arrive at any suggestions or ideas of how we can improve things, do please let me know as your insights will be received with an open mind and gratitude”.[12]Summer House where the Claimant started her work for the Respondent is a medium supported housing establishment which had been open for eight years catering for 27 residents with one accommodation manager, one live-in support worker and four support workers. While at Summer House the Claimant was trained and inducted into the business and the Claimant had no issues during her time there.[13]When the Claimant moved to Somerset House, she reported to Mr Ayala. The working environment at Somerset House was different to that at Summer House with a different category of resident and different staffing levels. When the Claimant started working there, there were only a few residents and the only other support worker was Ms Piper. This was sufficient to meet the CCG requirements for the number of residents at that time. All residents had been assessed by independent medical experts as being able to leave Somerset House unsupervised when they wanted and that they were low risk.[14]As a start-up project, there were teething problems at Somerset House, which are to be expected in a new venture. This resulted in the Claimant and colleagues raising concerns with Mr Ayala about safety and lone working with residents, work/life balance, lone working in general and annual leave. Mr Ayala gave evidence that he tried to meet their concerns however it was difficult (particularly in relation to the rota and annual leave) given the few staff available at Somerset House at that time. The Respondent accepted there were difficulties when Somerset House first opened.[15]The Claimant relies on her emails of 5 September 2017 and 16 October 2017 sent to Mr Ayala and Mr Vahdaty. The first was sent before Somerset House opened and before the Claimant knew who the residents were or what level of risk (if any) they posed. The Claimant does not suggest in this email (or any subsequent email) that the residents posed a risk to the public.[16]The email of 5 September 2017 was sent by the Claimant and referred to her having met with Ms Piper to discuss the issues it raised. She complained that in relation to lone working, they did not know the clients or have a secure plan to manage the risks when working alone. She complained that there was not enough time off to recover in the rota given that there were only two of them working at that time, she complained that lone working in general caused stress and isolation which was increased as the third support worker had not started work at that time. Finally, in this email she asked how annual leave was going to be covered given that there were only proposed to be three support workers in total.[17]The Claimant made suggestions, namely that in the first couple of weeks a manager or another member of staff was at Somerset House to support them and that there was a third female support worker/manager present during the shifts so that they could have better work life balance. Within 30 minutes of the Claimant sending the email Mr Ayala replied saying that they should have a meeting to discuss the issues and the best course of action and asked the Claimant to organise this.[18]The Claimant organised a meeting on 6 September 2017 and the Tribunal find that the Respondent was sympathetic to the matters raised recognising it was a transitory phase in the venture as it was a start-up project. The Tribunal finds that amendments were made to the rota and arrangements for annual leave in so far as business needs at that time allowed. Following that meeting there were email exchanges about the rotas with the Claimant saying on 8 September 2017 “We love the fact we can have an open discussion with you about the rota and raise our concerns despite the fact it can be flusterting (sic) at times for both of the sides. Thank you for willingness to accommodate our needs. All the best…”[19]Mr Ayala sent a revised rota to the Claimant and Ms Piper on 12 September 2017. He said “I have gone through the rota and I made some changes. This is the best rota so far that I can think, taking in consideration employees and Apax interests. If its ok with you, we will start next week with this rota, and see how it goes, if we thing that something has to change again, we can meet again, reflect and implement changes”. The Claimant replied that day. She said “Thank you for the new rota. One thing, you put me for 26 sleep in. I ve got morning flight on 27, thus I won’t be able to do the sleep in. Or could do sleep in till 4 am”. Less than 10 minutes later Mr Ayala replied: “I will ask Alixcia to work that night, if she cannot, I let you know and you can ask Chloe to work that night and then you work one of hers later on the month”. The Claimant replied about 30 minutes later to say that Chloe had agreed to do that shift and she would take one of Chloe’s shifts instead.[20]On 5 and 6 October 2017 there were email exchanges about the rota with the Claimant saying in the final email of this chain. “I think we need to have a chat about this rota anyway. I have couple of concerns as I can see I am getting frustrated with it, I am super tired on this rota and I cant even swap any shifts as it put so much pressure on Chloe or in this case you, and finally working 7 days out of 9 does not allow me to do anything with my life (go to gym, do grocery shopping). In summer house there was a good mixture of late and early shifts. Here, not only I think, sometimes I am the only working here (because of lone working and the fact that most of the time on my own in the office even during the day anyway) but also not being even able to speak to someone for hours, its emotionally draining. Not even mentioning 7 days working in a row every second week. Please, can we have a chat after you come back?”[21]The second disclosure relied on by the Claimant is her email of 16 October 2017 to Mr Ayala and Mr Vahdaty. This referred to her working alone that day and her concerns about a particular resident who was anxious, and she expressed her concern that this resident’s behaviour might escalate and asks what measures can be taken to protect her and other from potential risk. She mentions that there is no second door in the office to escape through and the reception on her phone was bad in the office. She expressed concern that she may not be safe working alone. Ms Piper supported these concerns, although she did not contact the Respondent directly about them.[22]The Respondent met with the Claimant and Ms Piper on 18 October 2017 to discuss their concerns. The issues raised were discussed and an action plan was agreed by all. The email chain in the bundle from 16 to 19 October 2017 show that Mr Ayala took the Claimant’s concerns seriously and that there was what appears to be a constructive discussion culminating with a plan being set out in the email of 19 October as a result of the meeting the previous day.[23]The Claimant complains that at the meeting on 18 October she was harassed and bullied. This meeting happened on the day after the Claimant had sent what she says is her second protected disclosure. Mr Vahdaty gave evidence that this meeting was in response to her second disclosure, and that he was supportive throughout the meeting. He did have concerns about how the Claimant was reacting to her working environment and her perception of the risks the residents posed, in the way that she was, and sought to look at her previous experience so see if this could provide an explanation. This is why he says he had a copy of the Claimant’s CV with him. He denied mocking the Claimant or being unsupportive towards her. Mr Vahdaty accepts that the was critical of the Claimant and that he thought she was being pedantic and demanding but said he had legitimate concerns about her attitude.[24]The Claimant’s evidence is that in this meeting she was criticised. In her submissions she says that the aim of the meeting was to devalue her experience and education and that there was no other purpose of the meeting than an expression of unhappiness about the disclosures.[25]The Tribunal finds that this meeting was intended to be supportive and to try to have a discussion with the Claimant about the concerns she had raised on more than one occasion. The Tribunal does find that Mr Vadhaty criticised the Claimant. He was entitled to criticise her if he felt her attitude and behaviour warranted it. However, the Tribunal do not find he did this in any way that could be construed as bullying or harassment. There was no evidence to suggest that his criticism was because of the Claimant’s Polish nationality.[26]The Claimant was not happy following this meeting and challenged the Respondent’s decisions regarding the rota, leave and other matters. It became clear to the Respondent that they were unable to accommodate the Claimant’s particular concerns within the environment of Somerset House. It did however consider that all the Claimant’s concerns could be met if she moved back to Summer House, as this was a bigger, more established place where the Claimant had worked for two months prior to Somerset House opening without any complaint having had a good relationship with the accommodation manager. The set up at Summer House meant that the Claimant did not have to do sleep in shifts, which she had issues with, and there was less need for weekend working which was also something the Claimant complained about.[27]Mr Ayala wrote a long letter to the Claimant on 3 November 2017 confirming the move to Summer House which had been discussed in person that seek and setting out the reasons for the move. In this letter Mr Ayala recognises the Claimant’s perspective about the move and appreciated that a move could cause some uncertainty on her part and also sets out changes to the CCG’s staffing requirements. The reasons for the move are set out in this way: “Because [Somerset House] project is a start-up and the first of its kind, it is subject to constant change in operations and structure. In consultation with the steering group and commissioners of the project, the general consensus is that the provision would benefit from mixed gender support workers so that clients do not become institutionalised and develop the capacity for social inclusion – and thus, the provision would benefit from a male support worker. In addition, we listened carefully to your work environment preferences whereby you spoke to highly of your experience at Summer House, and have consequently come to learn in which accommodation we believe you would be most fulfilled and thrive. For instance, there’s no need for you to do sleep in shifts and there will be a requirement to work far fewer weekend shifts, which will allow you the time to pursue your leisure and personal activities such as going to the gym or weekend city breaks which you have expressed as important priorities. We have therefore, your best interests and career progress in mind and like to believe that you will be gain greater job satisfaction and feel rewarded as a result of working at Summer House. Marika and the team really enjoyed working with you whilst you were there and they look forward to welcoming you as part of the family”.[28]The intention was that the Claimant would move to Summer House after her annual leave on 16 November 2017. The Claimant did not agree with this move and raised a grievance against Mr Ayala. This left the Respondent in a situation where it had tried to address the Claimant’s concerns and had come up with a solution it thought viable only to have it refused. It had no other options available to it given the start up situation at Somerset House which gave them less flexibility in terms of sleep in shifts, lone working, annual leave and weekend work.[29]The Claimant went on sick leave from 18 November 2017 citing stress as the reason for her absence. While she was off work Mr Vahdaty sent a memo to all staff about dealing with stress at work. The Tribunal find this was most likely prompted by the Claimant’s sick absence but was part of a series of memos that were sent to all staff from time to time dealing with various issues that may affect them in the workplace. The Claimant says this was targeted at her. The Tribunal do not agree and find that this email was intended to be a supportive measure for all staff especially as they work in a stressful environment.[30]The Respondent was concerned that the Claimant was being disruptive, that it was incapable of meeting her concerns and that she had become unmanageable. It therefore called the Claimant to a disciplinary hearing by letter dated 30 November 2017. Ms Hoda Evans held this meeting in her capacity as Acting HR Manager. The Claimant attended and told Ms Evans that a move to Summer House would affect her well-being and that changes to the rota at Summer House would not be suitable for her.[31]The Claimant raised a grievance against Mr Ayala on 12 November 2017. This was considered by Ms Hoda Evans on 4 December 2017 at the same time as Ms Evans heard the disciplinary matter against the Claimant. Ms Hoda dismissed the Claimant’s grievance.[32]The Respondent considered that it had exhausted all options in responding to the Claimant’s continued concerns and therefore considered it had no option but to terminate the Claimant’s employment with a payment in lieu of notice by letter dated 5 December 2017 which said: “The decision to move you to Summer House was in the best interest of the organisation. I understand that you have personal plans for the future and you would have preferred to stay in the other setting however, your response to the move we found as unnecessarily challenging rather than constructive feedback. In regards to the rotas, you yourself confirmed that they are legally complaint. Your challenges were more around your personal feelings regarding your working hours however, we have a responsibility to service our users 24/7. As per your grievance outcome letter we have investigated your concerns regarding male key workers at 96A and have had no negative feedback surrounding the use of such at this service. I have given careful consideration to all the issues raised and it is my reasonable belief that you are unable to perform the role to the standard that is required by the Company. Therefore, (sic) I have decided to terminate your contract on the grounds of unsuitability”.[33]The Claimant appealed this decision citing discrimination and failure to follow correct procedures. Mr Vahdaty heard the appeal on 20 December 2017which was dismissed following further investigation and consideration. The Claimant complains that she was treated badly during this meeting. The Claimant’s witness statement says: 20th of December – Appeal hearing. The hearing was chaired by Anousha Vahdaty. Once again, I felt bullied during the meeting. AV spoke to me as he was speaking to someone that does not understand English language. He would repeat himself twice, in a slow manner. His tone and language were normal when he was addressing other British people in the room Chloe Piper and TJ. I confronted him about it., as I felt bullied. He did not provide me with a reason why he decided to speak to me in that kind of manner in first place. The hearing was pointless as AV was twisting my words, and hasn’t responded to my questions. I asked to record the meeting. I was refused to do that”.[34]Mr Vahdaty gave evidence saying that he wanted to clarify matters during the meeting where he felt that there was a misunderstanding and that he was careful in how he phrased things. He denied that he treated the Claimant differently because of her race or because she had made disclosures. The Tribunal were able to observe Mr Vahdaty when he gave evidence and find that he often spoke slowly and carefully and would ask questions to clarify the questions he was being asked and to ensure that what he said was being understood. Submissions[35]Both parties provided substantial written submissions for which they are thanked. These submissions were considered carefully by the Tribunal in coming to its conclusions. Both sets of submissions were substantial and are therefore not reproduced here. The Tribunal’s conclusions[36]Having found the factual matrix as set out above the Tribunal has come to the following conclusions on the balance of probabilities. Rather than start with whether the disclosures were protected disclosures, the Tribunal has started with examining the factual matters which the Claimant complains of and the Respondent’s actions and explanations for them. Due to the Claimant’s length of service there is no unfair dismissal claim before the Tribunal, and the Tribunal is not therefore considering whether the Respondent acted reasonably or otherwise as it would in that category of claim. Rather the Tribunal is concerned about whether the Respondent acted in the way that it did because the Claimant made the two disclosures set out above (if the Tribunal finds that it did, the Tribunal will go on to consider whether those disclosure were protected) or whether the Respondent treated the Claimant unfavourably because she is Polish.[37]The Tribunal finds that the reason that the Claimant’s employment was terminated was because the Respondent had run out of options to address the Claimant’s concerns. The Tribunal finds that the Respondent is an organisation that welcomes comment and feedback from its staff. This is evidenced by the memo set out at paragraph 7 above which positively invites feedback and suggestions. This is followed through during the Claimant’s employment. The evidence shows that when the Claimant (and Ms Piper) raised issues they were responded to very quickly and meetings were arranged where the issues were discussed. Notwithstanding this, the Claimant remained unhappy about the rotas, lone working and annual leave issues raising further concerns and stating in a bald fashion that she would not do certain shifts for example.[38]The Tribunal accepts the Respondent’s evidence that it operated within a statutory framework and was under the supervision of the Commissioning Care Group. The Tribunal also appreciates that the situation at Somerset House was difficult given it was a start up operation, with the inevitable teething problems. These problems which related to the number of staff were to be rectified by the employment of a third support worker however at the start this was not possible.[39]In relation to the meeting on 18 October 2017, the Tribunal finds that whilst there were some criticisms of the Claimant these were reasonable given the concern that the Respondent had about her attitude. It is reasonable to expect an employer to criticise an employee where this is warranted and the Tribunal finds that the Respondent acted reasonably in this meeting. Even if the Tribunal had found that the Claimant was treated harshly, there is nothing to suggest this is because of her disclosures or her race. The Claimant has failed to discharge the burden of proof and has not shown a link between the behaviours she complains of and her race or disclosures.[40]The Tribunal has read the letter from Mr Ayala to the Claimant about the move to Summer House and finds this to be a letter that demonstrates that the Respondent has taken the Claimant’s wellbeing and concerns on board. Even having heard from the Claimant the Tribunal is not sure why the Claimant was so resistant to moving back to Summer House as this is a workplace she had previously worked and said she enjoyed. She held Summer House up as what she expected at Somerset House. Whatever the Claimant’s reasons, she refused to move and went on sick leave instead. The Tribunal does not find that the reason for the proposed move to Summer house as advised verbally on 1 November 2017 and in writing was because of any disclosure the Claimant raised or because she is Polish. Rather it was a supportive act to address her particular concerns which could not be accommodated at Somerset House.[41]The Tribunal can understand the Respondent’s perspective that it had done all it could do to accommodate the Claimant’s concerns and that it felt that she was unmanageable given her intransigence and her lack of understanding of the operating conditions at that time. There was nothing in the evidence given by any of the Respondent witnesses that detracted from its pleaded case that it had done all that it could.[42]The Tribunal does not find that there was unfavourable treatment because of the Claimant’s race or that any treatment was because she raised disclosures whether protected or not. The Respondent encouraged disclosures so it could improve and the evidence as set out above demonstrates this.[43]The Tribunal finds that the Claimant’s complaints about the appeal hearing on 20 December 2017 are unfounded. The Tribunal does not find any evidence that Mr Vahdaty treated the Claimant differently because of her race or her disclosures. The Tribunal has found the Respondent to be sympathetic and supportive. Ultimately however it has a business to run, and was unable to help the Claimant more than it had tried to do.[44]In all the circumstances, the Claimant’s claims are dismissed. In light of the Tribunals decision it did not go on to consider whether the Claimant’s claims were in time or whether the Claimant’s disclosures met the requirements for a protected disclosure pursuant to s47(3) Employment Rights Act 1996.