Ms M Jervis v Peabody Trust and Its Subsidiaries: 2301222/2023 and 2303619/2023

EMPLOYMENT TRIBUNALS

Case No 2301222/2023, 2303619/2023

Between

Ms M JervisClaimant

Peabody Trust and Its SubsidiariesRespondent

Before

Employment Judge Heath

In person for claimant

Ms T Burton (instructed by Counsel) for respondent

Date 22 January 2025

JUDGMENT

[1]The claimant’s claim of unfair dismissal is well-founded. The claimant was unfairly dismissed.

[2]It is just and equitable to reduce the compensatory awards for unfair dismissal to zero because of the claimant’s conduct before her dismissal.

[3]The claimant’s claims of victimisation in relation to claims identified under the List of Issues as acts under 3.3.30 and 3.3.31 which were expressed to be acts of victimisation under 7.4 are well-founded and succeed.

[4]All other claims of direct race discrimination, race-related harassment, direct sex discrimination, sex-related harassment and victimisation are not well-founded and are dismissed.

[5]This matter will be listed for a remedy hearing if, 28 days after this judgment is sent to the parties, the parties write to the tribunal requesting one. The tribunal will list such a hearing and will issue such case management orders as are appropriate, having regard to any representations made by the parties on this issue. Case No: 2301222/2023 2303619/2023 2

REASONS

[1]The claimant brings claims of direct race discrimination, race-related harassment, direct sex discrimination, sex-related harassment, victimisation and unfair dismissal. The claimant relies on acts concerning things she alleges were done in the course of work, relating to grievances she brought and which were brought against her, and relating to a restructure which led to her being made redundant. The respondent denies discriminating against, harassing or victimising the claimant as alleged and denies that it unfairly dismissed her. If it is found that the claimant was unfairly dismissed, the respondent asserts that she would have been fairly dismissed in any event for gross misconduct.

Issues

[2]This has been a case where there has been substantial difficulty in agreeing a List of Issues (“LOI”). There have been no fewer than three case management preliminary hearings in this case. At the last one on 12 September 2024 before Employment Judge Rice-Birchall, the Judge observed that the respondent made a number of concessions to enable the LOI to be agreed. She annexed that to her Record of a Preliminary Hearing. She observed “This list is to be treated as final, unless the Tribunal at the final hearing decides otherwise”.

[3]There was further correspondence after that hearing suggesting the claimant did not agree to the LOI being final. However, despite this correspondence, at the start of the hearing before us she agreed that the final LOI was in fact agreed. We annexe the LOI at the end of this decision.

Procedure

[4]At the start of the hearing there were a number of housekeeping matters, notwithstanding the fact that there had been three previous Case Management Preliminary Hearings.a. This case had been listed for 10 days, but the tribunal could not sit on the final day. The matter would be heard over nine days. It had been agreed at a previous Case Management Preliminary Hearing that this hearing would consider liability only. A draft timetable had been produced by the respondent, and it appeared that even losing Case No: 2301222/2023 2303619/2023 3 the day would still allow the parties to present their evidence and probably deliver closing submissions.

b. The claimant provided shortly before the hearing an updated copy of her witness statement. The only updates were that she had provided page references within the statement. The content of the statement was identical. There was no issue between the parties about this.

c. The respondent provided a cast list and chronology which were not agreed by the claimant. We were told that the claimant had sent in an amended version, but we were not provided with this. We made clear to the claimant that such documents were not evidence, and were merely tools to assist the Tribunal.

d. The respondent told us that it did not seek to cross examine any of the witnesses called by the claimant, as it did not see them as giving evidence relevant to the issues we have to determine. The witnesses were not therefore called, and their evidence was accepted by the tribunal as unchallenged.

e. Four witnesses were subject to witness orders on the application of the claimant. The claimant told us that she would be withdrawing her application for a witness order in respect of one of them. There was ongoing discussion during the hearing as to whether the remaining three would be called and what arrangements would be made for calling them.

f. We were told that there were 13 hours of audio recordings of meetings and conversations which the claimant covertly recorded. There were transcripts of these recordings in the bundle. We made clear to the parties that we did not consider that listening to these recordings would be a productive use of time. The claimant said if she could point to specific parts of recordings she may ask to play them. In the event, she did not later ask to play the recordings.

g. It was clear from scanning the witness statements that a vast number of documents were referred to statements, particularly the claimant’s. We asked the parties to agree an essential reading list prior to our withdrawing to read into the case. This was produced and we read these documents. We made it clear to the parties that they should not assume that we had read anything else (even if cross referenced in a witness statement), and that they must bring documents to our attention if they wanted them to be read.

h. We were provided with a bundle of over 3600 pages. We were provided with 20 witness statements running to 311 pages.

i. After discussion with the parties we took the rest of the day 1 of the hearing and all of day 2 to read into the case. Case No: 2301222/2023 2303619/2023 4

j. On day 3 the respondent made an application to discharge the witness orders. For reasons given orally we did not accede to this application. In short we could see that the evidence of the witnesses subject to witness orders was at least potentially relevant to the issues. We stressed to the claimant that she could not cross examine these witnesses and that she must ask open questions tightly focused on the issues we had to determine. We stressed that as the respondent had not seen a proof of their evidence (as there was none), if it felt at a disadvantage as evidence was being given, it may well make further applications.

k. Literally moments before going into the witness box to begin giving evidence on the morning of day 3, the claimant told us that she did not agree the bundle, believing that evidence was missing. She believed the respondent had removed evidence and broken up email threads. She said she had brought in what had been missed out. She said that the respondent had “thrown everything” at her and was seeking to take advantage of her as a litigant in person. We noted that there had been difficulties about bundle preparation raised in previous Case Management Preliminary Hearings. At the hearing on 12 September 2024 the Judge heard similar complaints from the claimant. In the Record of Preliminary Hearing at paragraphs 9 to 11 the Judge deals with this. In summary, the claimant had not made an application for specific disclosure, and she could in theory do that at the outset of the final hearing, explaining clearly why requested documents and were relevant and to which issues they related. The judge observed that the respondent had included numerous documents which it felt were irrelevant in the interests of finalising the bundle. The bundle must be prepared by 16 September 2024.

l. We expressed our disappointment that the claimant raised further difficulties with the bundle this stage of this hearing. The claimant has not been specific about documents which she says are relevant and missing. She has made generalised allegations against the respondent. We made clear that we would be using the bundle that had been prepared for this hearing.

[5]As set out above, we were provided with a bundle of some 3600 pages.

[6]The following witnesses gave evidence under a witness order. They had not prepared a witness statement or proof of evidence. They gave evidence remotely by CVP. In the case of Ms Falconer, technical issues meant that she gave evidence by audio only:a. Ms S Dhanillal;

b. Ms J Stewart;

c. Ms M Falconer. Case No: 2301222/2023 2303619/2023 5

[7]The following provided witness statements on behalf of the claimant. The respondent indicated at the start of the hearing that it did not wish to cross examine and their evidence was taken as read:a. Ms C Barrington (former Customer Relations Administrator);

b. Mr S Shillingford (former Assistant Surveyor);

c. Mr Z Hussain (former Senior Surveyor Technician);

d. Ms A Dennis (tenant);

e. Mr J Burnett (tenant);

f. Ms Henry (tenant).

[8]The following gave evidence on behalf of the respondent:a. Mr Shaun Gillam (Head of Asset Investment);

b. Mr Paul Crow (Former Interim Head of Investment)

c. Ms Kudirat (Bim) Balogun-Springer (Project Manager)

d. Mr Ed Wallis (Head of Delivery for Major Projects in Fire Remediation)

e. Ms Lisa Carter (Project Officer)

f. Mr Richie Alder (Consultant)

g. Mr Shaun Kennedy (Head of Diversity and Inclusion)

h. Ms Rebecca Morris (Head of Strategic Partnering);

i. Ms Szilvia Jona (People Consultant)

j. Mr Pablo Cazar (Assistant Director of Operations - South);

k. Ms Andrea Joseph (Director of Asset Management);

l. Ms Irena Bennett (Interim Group Director of People);

m. Ms Ebun Atinmo (Head of Communications);

n. Mr Stephen Burns (Executive Director of Care, Inclusion and Communities). Facts The parties

Facts

[9]The respondent is a charitable registered provider of social housing, regulated by the Regulator for Social Housing and in receipt of public funds. The claimant started employment with the respondent on 3 October 2016 as a Resident Liaison Officer. On 1 May 2018 she started in her role as Communications Manager. On 18 January 2021 the claimant was assimilated, during the course of a restructure, into the role of Senior Communications Manager. This was the role she had during the course of events we are concerned with in these claims. Policies and procedures

[10]The respondent operated a number of policies and procedures. Case No: 2301222/2023 2303619/2023 6

[11]The Grievance Policy and Procedure [1221ff] has the purpose of providing an internal process to resolve complaints which cannot be resolved by normal managerial practices. It provided that in the first instance employees should discuss matters informally with their line manager or senior manager, and if resolution is not achieved the matter should be proceed to formal grievance procedures. To go through the formal route, the employee should detail their grievance in writing to their line manager, more senior manager or HR. A grievance investigation manager has the discretion to determine the scope of any investigation, and may reasonably decide to focus or limit any investigation after discussion with the employee. After a grievance has been determined, the employee has a right of appeal to a manager of equal or more seniority to the grievance investigation manager. If a grievance is raised during the course of an ongoing grievance capability or disciplinary proceedings, the respondent could deal with the new grievance in conjunction with ongoing proceedings.

[12]The respondent operated a Redeployment: the Suitable Alternative Employment and Assimilation Principles: Peabody and Catalyst [2093 ff]. Background relied on by the claimant

[13]The issues we have to determine are extensive, the bundle was over 3,600 pages, the claimant’s witness statement was 85 pages long and we had around 20 witness statements in this case. We have tried to maintain focus on the relevant issues in this case, and are aware of our obligation to set out findings of fact relevant and proportionate to these issues. The claimant and some of her witnesses gave substantial evidence about numerous matters we have not found helpful in determining the issues in this case. Mr Shillingford, for example, gave substantial evidence about his own difficulties with the respondent which led him to taking out proceedings against the respondent.

[14]There was also substantial evidence about the Hive Staff Survey conducted in 2019 which highlighted, among other things, an apparent disparity in disciplinary action taken against Black as opposed to White employees. The claimant also gave evidence of the workings of a collective of BAME officers, The Investment EDI Group which referred to itself as 'The Group', who worked with HR to provide insights on the experience of BAME staff members. We note that this group included, among others, Ms Balogun-Springer and Ms Kutuba, two Black women who the claimant was later to accuse of discriminating against her. The claimant’s evidence was that she began working with The Group in around 2020 following the murder of George Floyd and the emergence of the Black Lives Matter movement. The claimant also gave evidence that an HR Director had sent emails referring to a small group of people as becoming “slightly militant and we need to break this”. The claimant did not quote the following words which were “so that it is the whole team’s responsibility to embed inclusion and diversity”. Case No: 2301222/2023 2303619/2023 7

[15]On the whole, we did not find this evidence useful in determining the issues we have to decide, and we do not make findings of fact any further than this. The claimant’s team

[16]The claimant’s role was within the Planning and Investment Team, which itself was one of five teams within Asset Management. Ms Joseph was the director of Asset Management. The Planning and Investment Team was headed by a Head of Investment who reported to Mr Spillett and then in April 2022 to Ms Joseph. When the claimant started in the role, the Head of Investment was Mr Kearney, followed by Ms Muirhead. Ms Muirhead went on maternity leave in April 2021 and Mr Crow took up the post on an interim basis from July 2021. This team dealt with all the investment works for the whole of the respondent, including such matters as kitchen or bathroom replacements, or anything relating to the internal or external structure of the respondent’s buildings.

[17]Within Planning and Investment Team there were four teams. There were two Projects teams, one headed by Mr Wallis, and one by Mr Gillam, both Senior Project Surveyors. There was also a Clerk of Works team headed by Mr Edwards, Senior Clerk of Works. The final team was the Communications team headed by the claimant. All of these heads were line managed by the Head of Investment, which at all times relevant to these claims was Mr Crow. The Projects Teams project managed works and delivery of works on site. The Clerk of Works team was responsible for checking works after they had been completed. The Communications team held a liaison function between the project team and the residents, keeping them up-to-date about various works. While the claimant’s job title was Senior Communications Manager, it is not what many would understand as a “comms role” as such, but was more of a resident liaison management role. Each of these heads managed a team of around three or four people.

[18]In July 2021 Mr Crow was appointed as Interim Head of Investment. He has had a long career in housing, and in recent years has undertaken interim roles which involves going into organisations, troubleshooting issues in their processes and working to fix them. He told us, and we accept, that he was given a mandate to fix problems with the Investment Team when he was appointed.

[19]When Mr Crow came into role he observed that there were underlying issues between the project teams and the claimant, which may have been ongoing for some time before he had started. Some of the problems Mr Crow noted, very much in brief summary, included:a. The claimant wanting to be involved in the detail of the project work beyond what was required; Case No: 2301222/2023 2303619/2023 8

b. The claimant wanting to have every piece of work coming to her first before delegating it to a Customer Liaison Coordinator (“CLC”) in her team rather than there being dedicated CLCs for each project team.

c. The claimant wanting all meetings with residents and contractors taking place on site.

d. The claimant wanting to sign off on every bit of communication going to residents.

[20]Mr Crow believed that these ways of working could be inefficient and often caused substantial delay. Additionally, it appeared that there was substantial friction between the claimant and her team and the project team. Mr Crow observed a lot of backbiting and sniping between the project teams and the claimant and a complete lack of collaborative working. There appeared to be a lack of clarity in some of the roles the respective teams were carrying out.

[21]Such were the problems that Mr Crow felt it prudent to engage some sort of a review of the way in which the project teams and the Communication team worked together. In August 2021 Mr Crow spoke to the Director of Commercial and Asset Management, Mr Spillett, and it was agreed that a Program and Communication Working Party (the Working Party) would be set up to address these issues. The Working Party consisted of Mr Crow, Mr Wallis, Mr Gillam, the claimant, and some other Project Surveyors, Project Officers and a CLC. The Working Party held a weekly meeting to discuss how the teams could work together to improve the service.

[22]Prior to the setting up of the Working Party, Mr Gillam corresponded with a CLC, Ms Stewart, who the claimant managed, about a project on Evelyn Road (also referred to as the Ni-Block contract). The claimant was copied into some but not all of the correspondence. Ms Stewart would have been the designated CLC with the expectation that she would deal with correspondence and attend meetings. The claimant may not have attended all meetings or received all correspondence (she appeared to have been copied into the only document in the bundle we were taken to about this issue, [3003]), but a member of her team, Ms Stewart, did.

[23]On 24 August 2021 there was a meeting attended by the claimant, Mr Wallis, Mr Gillam and Mr Crow. This meeting followed complaints from the claimant that she was being kept out of the loop. Prior to the meeting she had circulated an old operations manual which set out a process of delivering planned investment works and dealt with matters such as engaging with residents, managing contractors and other matters. Some of this manual was currently being followed, although in a number of ways it had become obsolete because of various restructures and changes in ways of working since the operations manual had been developed. Case No: 2301222/2023 2303619/2023 9

[24]Unknown to all but the claimant, the claimant covertly recorded this meeting, as she was to do with numerous other meetings. A transcript appeared in the bundle [693 – 720]. This meeting covered a number of issues including:a. Mr Crow saying he had not seen such a manual since the 1990s and did not think was in use in many places. He found it confusing, full of meaningless “buzzwords”, lacking in targets or timescales or delineation of responsibilities and not helpful to the point of being unfit for purpose.

b. Mr Crow asked the claimant to produce a short document setting out how she believed the process for communicating with residents on certain projects should be run. He explained it need not be a lengthy document and that he and the other managers could regroup and tweak the process together having reviewed it. The claimant was reluctant to do this, but Mr Crow explained that it was vital that the processes should be sorted out, which would lead to more efficient working in the long run, and that he would help her produce the document. The claimant agreed to produce such a document, and later sent a draft to Mr Crow on 21 September 2021.

[25]In early September Ms Carter, a Project Officer in Mr Wallis’ team, and the claimant were involved in sending out communications on a project on Ringside Court. A Project Surveyor also in Mr Wallis’ team, Ms Balogun-Springer, had sent out a communication that contained spelling errors. Ms Balogun Springer has dyslexia. The claimant commented negatively about the quality of the document. Ms Carter felt that the claimant’s remarks were “out of order and potentially discriminatory” (although the claimant says she was not aware of Ms Balogun-Springer’s dyslexia at this point). A heated argument took place between Ms Carter and the claimant. The two women had previously enjoyed a good working relationship, but after this argument it soured.

[26]On 8 September 2021 there was a meeting called by an external consultant, Ms Hopper, about planned works in relation to Phoenix Point. Ms Stewart was the dedicated CLC for the project. As well as Ms Hopper and Ms Stewart, the meeting was attended by Ms Carter, Ms Balogun-Springer, Mr Wallis and others. The meeting was recorded and a transcript was in the bundle [2336-2356]. It is clear from the transcript that the claimant assumed the role of chair of the meeting and introduced the meeting and began talking about the works. Early in the meeting Ms Balogun-Springer said “Okay, sorry I got my hand up and as usual I don’t get to speak, so I’m speaking now. Basically we need to know, this meeting Jackie [Stewart] is supposed to be communications officer so I would rather that Jackie either chaired the meeting or Martina [Hopper] chaired the meeting because this is about comms”. The claimant said that Ms Stewart was leading on the project but she was going to chair the meeting, and that she would be supporting Ms Stewart on the project. She Case No: 2301222/2023 2303619/2023 10 said that she headed the comms team. Ms Balogun Springer said “Sorry Maxine micromanaging I do not believe in, so Jackie is the one I’ve been working with in Jackie is the one that I accept to be chairing the meeting because she is the one who is supposed to be the officer, but if you want to, I object but you can carry on”. Ms Stewart then said that the reason the claimant was chairing the meeting was because she herself had not been here all of the time for the project and the claimant chairing it was going to give her an idea on how to move forward on other projects. The meeting then carried on and the issues were discussed.

[27]In September 2021 a letter needed to be sent out to residents of Phoenix Point informing them of the works. It was an urgent project and the Communications Team indicated that they needed four weeks’ notice to produce the letter. The project team was concerned that a letter needed to be sent out in a shorter timescale. Ms Stewart was involved in preparing the first draft of the letter. The claimant reviewed the letter and made some corrections. Mr Wallis took the view that the letter needed one final update, which he instructed Ms Carter to do. When she had done this, he instructed that the letter be sent out. The claimant was upset that the letter had been sent out without being finally reviewed by her.

[28]It is clear from the contemporaneous documentation that there was a need to get the letter out urgently. If the contractor did not start the works immediately the respondent would not get grant funding, the residents were scared about either selling their homes or living in dangerous circumstances and there was a need for everyone to work together as arguments were causing delays.

[29]On 16 September 2021 Ms Balogun-Springer telephoned and Ms Carter emailed Mr Wallis with complaints about the claimant. Ms Balogun Springer forwarded some emails the next day dealing with some issues she had with the claimant setting out that she had been personally aggrieved and that her mental well-being was being affected. She wanted management to intervene. Ms Carter also sent emails from the claimant highlighting unproductive and uncollaborative conduct. She felt undermined by the communications team who she felt were excluding her. She said she normally had a good relationship with the claimant.

[30]Also on 16 September 2021 the claimant telephoned Mr Wallis to complain about Ms Balogun-Springer. During the course of this conversation Mr Wallis told the claimant that Ms Balogun-Springer had complained about her. The claimant got very angry and hung up the phone. Mr Wallis felt that from that moment his relationship with the claimant changed and that she was no longer friendly.

[31]Mr Wallis contacted Mr Crow to tell him about the various complaints. At this stage he did not know the detail of the dispute between the claimant and Ms Balogun-Springer but he wanted help from his manager in dealing with this situation and restoring some harmony. On 17 September 2021 Mr Wallis forwarded emails from Ms Carter and Ms Balogun-Springer to Mr Case No: 2301222/2023 2303619/2023 11 Crow. Ms Carter spoke with Mr Crow and told him how upset she was that the claimant appeared to be bypassing her. Mr Crow contacted Ms Jona in HR for advice on how to handle the situation. She recommended that mediation be attempted.

[32]On 20 September 2021 the claimant emailed Mr Wallis cc: Mr Crow subject: “Concerns about resolution of conflict”. She referred to two recent projects and said that in the light of what had occurred “I need you to unreservedly apologise to myself and my team… We have all been affected by the pernicious behaviour and attitude by you and members of your team (i.e. Bim [Balogun-Springer] and Lisa [Carter]”. She went on to say that she had called Mr Wallis and he stated she was undermining members of his team. She wanted to know who levelled these accusations. She also wanted a response on the issue that had arisen when Ms Balogun-Springer had objected to the claimant chairing a meeting.

[33]On 21 September 2021 the claimant emailed Mr Crow to say she would not be at work until further notice as she was unwell and needed to tend to her mental health and well-being in light of recent experiences.

[34]In the claimant’s absence Mr Crow himself had to step in to do the claimant’s work. On or around 27 September 2021 he had a meeting with the CLCs she managed. It was Mr Crow’s understanding was that the claimant held three meetings a week with her team. The claimant says it was two. Whichever it was, Mr Crow felt that he did not need to have that many meetings with the CLC’s, and he told them so. He also made the change that each CLC would support designated teams, rather than being assigned work in an ad hoc manner. Mr Crow did not have the time to review all work coming in and make a decision on who to allocate it to. Having CLCs assigned to particular teams or workstreams removed the need for this additional work. Mr Crow did not criticise the claimant to her team, although she may well have taken his making these changes as an implied criticism.

[35]On 28 September 2021 the claimant provided a fit note signing her unfit for work until 14 October 2021. In her covering email to Mr Crow she said that the doctor’s determination was because of the impact of her current inappropriate working environment that was placing her well-being and mental health at risk. She said by the time she returned she hoped that the issues she raised in writing and verbally would have been investigated and a constructive and appropriate working environment restored. She referred to her being censured at a meeting and sought full clarity on Ms Carter’s roles in relation to communications and other matters. She wanted further clarity on how senior managers are meant to work together. Mr Crow forwarded this email to Ms Jona questioning whether this was an implied grievance which needed to be dealt with in accordance with the grievance procedure. She responded that he should wait until the claimant returned and then to catch up with her about the issues. If he felt there were Case No: 2301222/2023 2303619/2023 12 operational behavioural issues within the team then he could address those with individuals if he wished. Ms Jona’s observations from seeing the emails was that there was a misunderstanding about operational responsibilities that got out of hand, but recognised that the claimant’s perception might be different.

[36]On 15 October 2021 the claimant returned to work and had a return to work meeting virtually with Mr Crow. Once again the claimant covertly recorded this meeting. This meeting covered a number of issues including:a. Mr Crow telling the claimant that he would have a separate meeting to update her about the Working Party, but assuring her that nothing had been finalised.

b. Mr Crow discussing how he would investigate the issues she had raised, including enquiring whether she was complaining about him (which might impact whether he would be suitable to investigate). The claimant said that she was not accusing Mr Crow of victimising her or accusing him in any way.

c. The claimant clarified that she did not believe any incidents had been racially motivated but referred to “micro-aggression or respect”. Mr Crow did not understand from what she said during the meeting that the claimant was making any complaints relating to race.

d. Mr Crow said that there had been issues with communications in processes from the claimant so he asked her to do a brief flowchart. The transcript does not show on the face of it Mr Crow being critical of the claimant. He explained that he was “here to support you so as well as everyone else, so we need to sort it”.

e. Mr Crow found that the was the claimant was speaking during the meeting was slightly odd, and felt she was trying to set him up or provoke some kind of reaction. He asked directly whether she was recording the meeting she replied. “No, it’s just no, I’m just making very clear, I’m writing it down. I’m writing down because I’m remembering right.” This was not an honest response.

[37]On 19 October 2021 the claimant had a further meeting with Mr Crow by Microsoft Teams. Once again the claimant recorded the meeting covertly. The transcript is in the bundle at [813-853]. It is clear from the transcript that the connection was not good, with both parties having technical issues and with both parties often talking over each other and Mr Crow’s camera was off. This meeting included:a. Reasonably early in the meeting Mr Crow said, in response to something the claimant said, “Did you just say bollocks?” The claimant said “Eh?” And he repeated the same question. The claimant said that she had not said this and questioned why she Case No: 2301222/2023 2303619/2023 13 would say it. Mr Crow said that he thought she said it, and asked what she did say. There was some further discussion on this point where Mr Crow saying the he heard the claimant say the word “bollocks”. The claimant adamantly denied this, and invited Mr Crow to report her for something she had not said. He said that he was not going to report her.

b. Mr Crow updated claimant about certain changes he had made to the allocation of work to the CLC. The claimant was very unhappy about this and asked why he couldn’t have waited and why her decisions were not respected. Mr Crow explained that he felt the changed processes appeared to have worked well during the claimant’s absence and things had not been working beforehand. Mr Crow explained that he did not know how long the claimant would be off and implemented changes to assist with his own workload.

c. Mr Crow said that he was putting together training to get an overview of the training team had had, and he asked the claimant whether she had had any management development training. He said that she should let him know if she needed to do any courses. We do not find that he was implying that her work was such that she training, but was just enquiring what training she had undertaken.

d. Mr Crow asked the claimant whether there was anything the respondent could do to support her, and she responded that there was an inappropriate toxic working environment and that she was being undermined and not listened to.

[38]We find as a fact that the claimant did not say the word “bollocks” during the course of this meeting. We further find as a fact that, in all probability because of both the element of friction during the meeting and the poor connection, Mr Crow genuinely misheard the claimant and thought that she had said “bollocks”. We find that he believed that she was saying, in effect, that he was talking rubbish, which he found disrespectful.

[39]On 20 October 2021 Mr Crow emailed the claimant to say that the interim arrangements that had been implemented about designated CLCs would continue to operate. That day he became aware that the claimant had reversed changes he had made the way the communication team worked. On the same day working party was cancelled because Mr Crow was working on the process flowchart that the claimant had provided. On 26 October 2021 the Working Party meeting was cancelled as a number of people were on annual leave. The later Working Party meetings were cancelled after the claimant was later to put in a grievance.

[40]On 26 October 2021 the claimant emailed Mr Crow, CC Mr Spillett, Mr Kennedy (Head of Diversity and Inclusion) and two other individuals [865] about various complaints she had; namely: Case No: 2301222/2023 2303619/2023 14a. The changes Mr Crow had made to her team whilst she was sick leave;

b. No effort had been made to investigate concerns she had raised when going off sick;

c. That having raised concerns that led to her being off sick, she had been victimised, bullied and harassed and subjected to micro-aggression as an unfavourable treatment. She requested that these matters be formally investigated.

[41]On 27 October 2021 Mr Crow replied to the claimant. He addressed all points she had raised.

[42]On 1 November 2021 the claimant telephoned Mr Kennedy. She raised that she felt that a number of colleagues including Ms Carter, Mr Crow and Mr Wallis were subjecting her to micro-aggressions. Mr Kennedy listened to her and recommended that if she felt that way she should use the internal grievance procedures.

[43]On 2 November 2021 [879] the claimant responded to Mr Crow’s email of 27 October 2021 cc’d to a number of people including Mr Kennedy, expressing her reservations about its content. She challenged the responses he had given. She said she was “holding Mr Wallis to be vicariously responsible for the behaviour of his staff members towards me and my team and for what he said to be. I will be taking out a grievance against Ed Wallis e.g. bullying and harassment, victimisation and micro-aggression”. She went on to ask how far he had got in investigating her complaint about Ms Carter and Ms Balogun-Springer’s unprofessional conduct. She said she felt there was an underlying agenda to undermine her position. She said she had no confidence in the Crow and would not meet him on her own as there was a breakdown in trust.

[44]On 3 November 2021 Mr Crow emailed Mr Spillett and Ms Jona making a number of comments on the claimant’s reply the previous day. In one of his comments he indicated he felt there was a failure by both the programme teams and the communications team, and that the issues the claimant raised was not just a communications team issue. He strongly recommended that somebody external from the respondent was brought in to investigate the allegations.

[45]On 4 November 2021 the claimant sent a complaint about Mr Crow and Mr Wallis to Mr Spillett, Mr Kennedy, and others. She accused them of undermining and tarnishing her leadership role and attacking her professionalism. She felt she was being bypassed and undermined and subjected to a hostile and damaging working environment. The claimant referred to the Afro-Caribbean heritage of members of her team and referred to some treatment been during Black History Month, but did not expressly assert discrimination. Case No: 2301222/2023 2303619/2023 15

[46]That same day, 4 November 2021, Ms Adeshokan, a CLC managed by the claimant, emailed the claimant to say that she was disappointed that the claimant had raised her voice at her that day.

[47]One 8 November 2021 the claimant again emailed Mr Spillett. In it she appeared to agree to the changes that Mr Crow had made to her team working (CLCs being dedicated to certain teams), but making various criticisms of Mr Crow. She said that she felt as the only senior BAME manager within the Investment Delivery team “there has been some negative profiling of me as an individual”. She referred to Mr Crow referring to her as “being rather challenging” which she felt confirmed negative stereotypes of BAME people, particularly of Afro-Caribbean origin. Mr Spillett responded on 11 November 2021 saying, among other things, that he understood the claimant would be meeting with HR to discuss how grievances might progress. The changes made to the CLC’s way of working will be implemented on 16 November 2021.

[48]On 16 December 2021 a Project Surveyor, Ms Kutubu, called a Teams meeting to discuss one of the project with external contractors. Mr Gillam, who managed Ms Kutubu was there, and a CLC Ms Melis attended from the communications team. At the meeting Ms Melis requested that the claimant be invited to the meeting. Ms Kutubu explained that this was not necessary as the meeting was just a quick catch up and there was no need for the claimant to attend. Ms Melis was seen in the meeting muted but talking on the phone. She then left the meeting.

[49]Later that day the claimant sent an email to Ms Kutubu and Mr Gillam cc: Mr Crow [985] saying “Can you both urgently explain/give account to me as to what happened earlier this morning at the Retrofit Project week review meeting that so upset [Ms Melis]”. She went on to explain that various people were in attendance in the meeting and that Ms Melis was very upset. Mr Gillam found the tone of the email entirely inappropriate given that he was on the same seniority as the claimant and she was in no position to make such demands. Mr Gillam himself had felt that there had been nothing inappropriate in what Ms Kutubu had done at the meeting, and was surprised by Ms Melis’ request that the claimant attend the meeting. He felt that a quick phone call from the claimant would have been a much better approach.

[50]Mr Gillam did not respond to the email as Mr Crow had been CCed. Mr Gillam gave his line manager Mr Crow his account.

[51]On 17 December 2021 the claimant emailed Ms Kutubu and Mr Gillam cc: Mr Crow saying that she had not received a response to her email and that until further notice Ms Melis would not attend meetings with them and that they were not to contact her. The claimant followed this up on 21 December 2021 with a further email to Mr Gillam asking for an overview of what happened. Mr Gillam again considered this an inappropriate email and considered that picking up the phone would be a far better approach. Mr Gillam did not respond as he had already given his account to Mr Crow Case No: 2301222/2023 2303619/2023 16 and did not want to get involved in protracted email correspondence on this issue. He did not appreciate the claimant’s tone and did not believe corresponding with her would resolve the issue.

[52]Between 6 January 2022 and 11 January 2022 there was email correspondence between Ms Stewart, Ms Carter and the claimant about a fire remediation program. Ms Stewart drafted an initial letter on 6 January 2022. Ms Carter proposed making some changes the following day, including removing work programme reference numbers and certain dates. The claimant emailed on 10 January 2022 providing a rationale for keeping the reference numbers and making some other observations on dates. The same day Ms Carter responded disagreeing with the claimant’s view on reference numbers and dates. The claimant wrote back to say the reference numbers and dates would remain in the letter. Ms Carter wrote back on 11 January 2022 reiterating her position, as did the claimant. The correspondence does not make any reference to any established procedure relating to the matters under discussion. We find that this appeared to be little more than two professionals disagreeing on how to approach a certain matter.

[53]On 11 January 2022 an individual working alongside the HR team was identified as someone who might investigate the issues in the Investment Team. This person left shortly after, and so at some point in January Mr Alder, a retired employment solicitor who formerly worked for Trowers and Hamlin, the respondent’s solicitors in the current proceedings, was identified as a potential investigator into the issues in the investment team.

[54]On 13 January 2022 Ms Adeshokan made a further complaint in an email to the claimant about how the claimant treated her.

[55]On 18 January 2022 Mr Wallis chaired a meeting in relation to a programme of works at Bristow Court. This was housing let on long leases rather than social housing. This was a meeting which the communications team may have expected to have attended. At this point in time there were significant problems in the way the project teams and the communication teams were working. The residents of Bristow Court included people with professional expertise such as architects. Ms Carter had discussed her problems with Mr Crow, and Mr Crow told her that the communications team did not need to be present at this meeting. At this stage Ms Carter had reached a point where she had set up an email rule that would file any email from the claimant or her team into a particular folder which she would only look at when she felt mentally prepared to do so. The reason for not inviting the communications team was to avoid any displays of disharmony in front of residents and because the residents in question would have been well able to understand technical information without the communications team’s input.

[56]In mid-January 2022 there was correspondence between Ms Balogun-Springer, Ms Hopper, the claimant and others about a newsletter to the residents of Phoenix Point. On 17 January 2022 there was discussion Case No: 2301222/2023 2303619/2023 17 about who had final sign off on the newsletter. Ms Hopper asked whether Ms Balogun-Springer would review a draft and then the claimant would do a further review. Ms Balogun-Springer expressed the view that it was her project and she should have final sign off. The claimant expressed the view that the project lead should ensure the project programme and progress updates were correct and then the communications team would consider the overall newsletter. She said that this was the process that had been in place for a period of years. The communications team would complete the final review of the newsletter. On the issue of this process being in place for a number of years Ms Balogun-Springer commented “This is untruth you have only been in Senior Communications Manager since the restructure December 2022 April 2021. Please provide me with a written Peabody process.”

[57]Mr Wallis, who had been copied in, joined the discussion on 19 January 2022 and “in the spirit of cooperation” suggested a simple four point process for how to approach newsletters as there had not been an established process, but merely a convention for how to deal with them. The claimant sent a lengthy email in response making stylistic changes to the proposed process and adding further steps.

[58]On 21 January 2022 Ms Jona wrote to all members of the Investment team informing them that Mr Alder had been instructed to carry out an independent team review. She supplied his contact details for any team member to express their view or concerns by 27 January 2022. She said she would herself contact any team member who had previously raised an issue with managers or herself. She said that the aim of the review was to “look at the way in which the team has operated since the restructure, rather than investigating any specific complaints which may have been made – so the focus will be on ways of working and processes, roles and responsibilities and communication between the teams”. She said that once the report with findings and recommendations had been completed, the leadership team would devise an action plan. Anyone with questions was invited to contact Ms Jona.

[59]Mr Alder’s investigation began around this date. The claimant was challenging the terms of reference with Ms Jona, feeling that it should cover behaviours, culture, equality, diversity and inclusion. The claimant was told that Mr Alder would take a holistic approach but not deal with individual complaints or grievances. Mr Alder interviewed a number of members of the team including the claimant on 27 January 2022 by telephone.

[60]Mr Alder sent the claimant copies of the notes of this interview the same day. The claimant responded on 3 February 2022 with numerous significant amendments to the notes, which Mr Alder did not consider added anything significant. She sent further emails about matters he did not consider relevant. The claimant made reference to her being “the only person of colour in a senior position” in her meeting with Mr Alder. Case No: 2301222/2023 2303619/2023 18 However, she did not make any explicit reference to any treatment she identified as being discriminatory on grounds of her race or any other protected characteristic.

[61]Mr Alder produced an Investment Review Report on 10 February 2022. This report included:a. Mr Alder setting out the terms of his appointment. He stressed that his terms of reference did not extend to considering complaints raised by or about individual team members, rather that it would be limited to an analysis of the structure of the team and the way the team operates on a day-to-day basis, including the formal responsibilities of each of the post holders in communications between them. He indicated that where possible he would endeavour to anonymise the report apart from making references to certain comments of Mr Crow and the claimant (identified as Senior Communications Manager).

b. Mr Alder setting out a background, which included the restructure of the Investment Team between November 2020 and January 2021 and how it began to operate. He set out his understanding of the how a stand-alone communications team had come into being, rather than CLCs being directly allocated to work with surveyors.

c. Mr Alder set out the concerns raised by the project teams. He set out a perception amongst the project teams that the communication team was interfering with its dealings with residents and assuming responsibilities beyond their roles. The project teams raised that there was a clash of personalities with “everything being a battle” and it being “all about who has the last word”. Poor working relationships and work patterns were identified and highlighted.

d. Mr Alder set out concerns raised by the communications team, which included the claimant saying that there was a reluctance to accept her newly created position of seniority. A clash of personalities was identified, with suggestions that surveyors were being dismissive of the communications team. It was felt that the project teams would pick and choose when to involve the communications team and would blame them for things they weren’t responsible for. The technical teams would be slow to provide information the communications team needed to perform the role.

e. Mr Alder set out his analysis and findings. These included that there had been a breakdown in effective working relationships between the project teams and the communications team. Mr Alder highlighted examples, which must be the newsletter issue and the fire remediation letter set out above, which indicated different but legitimately held views reflecting the different nature of the roles of the two teams. He expressed the view that the project team’s view Case No: 2301222/2023 2303619/2023 19 that the communication team was overstepping their responsibilities was not a matter for the project teams to determine, as the respondent had taken a commercial decision that the communications team was to be established.

f. Mr Alder made a number of recommendations, including that the respondent should try and instil some unity in the team with various initiatives. He suggested that it should be emphasised that the teams must operate within the parameters of the structure, and that they should not challenge it. He suggested the job descriptions should be reviewed. He referred to the Head of Investment being concerned that he was unable to drive through legitimate management changes without triggering complaints and significant pushback to change. He said that staff in the project teams who resented the role of the Senior Communications Manager should not refuse to involve her because they disagree with her role or style. Training should be introduced to ensure the team saw the bigger picture. Mr Alder referred to complaints about the Senior Communications Manager hijacking meetings. He said while it was not a specific complaint which he was asked to investigate, as it was a concern raised, he recommended that training around effective leadership might be beneficial for the Senior Communications Manager.

[62]Also on 10 February 2022 Ms Adeshokan raised a complaint with HR about the claimant. She asserted that a recent sickness absence had been because of stress, which was partly down to the claimant. Mr Crow contacted the claimant to make her aware of this and to suggest that he conducted Ms Adeshokan’s return to work interview. The claimant responded that this was undermining her and she wanted to continue with Adeshokan’s return to work meeting.

[63]On 10 March 2022 claimant sent an email to Ms Fox, Chief Operating Officer, copied to Mr Kennedy among others, raising numerous complaints about Mr Alder’s report. Her complaints were extensive under headings a) to m) (with further subheadings) but included allegations that the report was inaccurate, biased, singled the claimant out as the problem, failed to grasp with “race and gender discrimination issues”. She went on to outline that she had grievances against Mr Wallis, Ms Carter, Ms Balogun-Springer, Ms Kutubu and Mr Crow. Very much in brief summary, she described all of their behaviours as “bullying and harassment, victimisation and micro-aggression behaviours”. In respect of Mr Wallis, Ms Carter and Mr Crow, who are all white, she added that their behaviour was “tantamount to systemic race and gender discrimination”. She made clear that while she criticised Mr Gillam and another individual, she was limiting her grievances to the identified persons above.

[64]In April 2022 Mr Kennedy was assigned to hear the claimant’s grievance. Also in April 2022 Ms Joseph became the Director of Asset Management. Case No: 2301222/2023 2303619/2023 20

[65]On 7 April 2022 Ms Adeshokan raised a formal grievance about the claimant with Mr Crow. She alleged that the claimant had shouted at her for more than one occasion, had undermined her, was rude and unprofessional, had created a toxic environment that was beginning to affect her own mental health. Mr Cazar, Assistant Director of Operations – South was assigned to hear this grievance. Ms Adeshokan provided further information to Mr Cazar on 20 April 2022. By an email of 21 April 2022 Ms Adeshokan made clear that she wanted her complaints, which she set out under 12 bullet points, treated as a formal grievance. As an outcome she wanted the claimant to be sent to training as “she needs to know how to communicate, resolve conflict, motivate her team and understand the role of a manager in a team and not be a dictatorship for one way relationship where everything is dependent on how she wants it done”. Mr Cazar held a grievance investigation meeting with Ms Adeshokan on 4 May 2022. He interviewed another CLC, Ms Melis, on 11 May 2022, and on 16 May 2022 he interviewed the claimant. Both Ms Adeshokan and the claimant emailed him further documentary evidence for him to consider. It was suggested by the claimant that Mr Cazar should interview Ms Adeshokan’s former manager, Ms Falconer, but Mr Cazar determined that she had not figured in any of the allegations, her involvement with Ms Adeshokan predated the allegations, and she could not provide relevant information. He attempted to interview another CLC, Ms Stewart, but she declined to be interviewed.

[66]Ms Adeshokan had spoken to Mr Crow a number of times from February 2022 onwards and he was aware of her difficulties with the claimant and how they were making her unwell. In early May 2022 a secondment post was to be advertised for an Assistant Surveyor role in Mr Gillam’s team. Before the role was advertised, Mr Crow spoke to Ms Adeshokan and suggested she apply for it. He was concerned for her welfare at this point, and he spoke to Mr Gillam to say that any application Ms Adeshokan might make would have his backing. Mr Crow felt that this would put some space between Ms Adeshokan and the claimant. Mr Crow did not discuss this with the claimant, as Ms Adeshokan asked him not to.

[67]Meanwhile, Mr Kennedy had been making attempts to begin investigating the claimant’s grievance. During April 2022 Ms Jona had been corresponding with the claimant attempting to set up a meeting between the claimant and Mr Kennedy. It was not possible to arrange a meeting until 5 May 2022. Half an hour before the claimant was due to meet Mr Kennedy on 5 May 2022, she sent a further lengthy email with numerous documents attached to it, suggesting she had more information to send the following week. She set out her desired outcomes for the grievance which included apologies from all those she was complaining about.

[68]The claimant was given the opportunity to attend with a trade union representative or colleague, but she attended alone. The claimant was struggling with her voice, and because of this, and the fact that it a Case No: 2301222/2023 2303619/2023 21 significant amount of information had been provided at the last minute, the meeting was postponed to the following week.

[69]On 7 May 2022 the claimant contacted Mr Kennedy to ask whether the people she had submitted grievances about had been notified of her grievance. On 9 May 2022 Mr Kennedy confirmed to the claimant that they would be notified once he had conducted the grievance meeting with her. There was further correspondence between Mr Kennedy and the claimant about who she could bring as a companion to the grievance investigation meeting.

[70]On 12 May 2022 Mr Kennedy met with the claimant on MS Teams for a grievance meeting. Mr Kennedy was supported by HR, Ms Coshell, and by a note taker, Ms Popova, and the claimant attended with a colleague as a companion. Mr Kennedy sought to take a methodical approach going through the allegations one by one. The claimant, on the other hand, took a more scattergun approach and was jumping from topic to topic. Mr Kennedy found it difficult to drill down into the issues for this reason. It also made it difficult for an accurate note to be taken of the meeting. Mr Kennedy also struggled to see how the documents the claimant provided him with supported her complaints, and he sought to draw out of her the information to support her complaints. Mr Kennedy specifically asked the claimant how her complaints related to race. At one point the claimant responded “I am not focused on race, I said that it raises such issues. My main concern here is the bullying and harassment behaviours because of the hostile environment and this is not what Peabody stands for”. This left Mr Kennedy unsure as to why the claimant was alleging a racial motivation in her complaints.

[71]After the grievance meeting with Mr Kennedy the claimant sent further documents to him. On 24 and 25 May 2022 Mr Kennedy interviewed all of the subjects of the grievance. On 7 June 2022 he also interviewed the CLC Ms Melis. Following correspondence with the claimant, in which she queried whether Mr Kennedy had interviewed Mr Gillam and another individual, Mr Kennedy contacted those individuals. Mr Kennedy and Ms Coshell also reviewed the notes of the interview with the claimant taken by Ms Popova, and these were sent to the claimant on 6 July 2022. On 13 July 2022 the claimant emailed Mr Kennedy with numerous comments about the grievance meeting notes. It was agreed between Mr Kennedy and HR that the claimant’s comments would be added as an addendum to the meeting notes. Mr Kennedy was hoping to receive a recording of the meeting of 8 September 2021, but a digital recording was lost in the post and then Mr Crow left the organisation. Mr Kennedy went ahead and made findings without listening to this recording.

[72]During the course of Mr Kennedy’s investigation the number of other relevant matters happened. On 23 May 2022 the claimant was informed that Ms Joseph would become her line manager. Ms Joseph made this decision as she became aware that the claimant had raised a formal Case No: 2301222/2023 2303619/2023 22 grievance against Mr Crow. Ms Joseph believed that a change of line management could help ease tensions. Ms Joseph met the claimant on 23 May 2022 and explained that she knew there were tensions in the team and she wanted to explore how everyone could move forward together. She offered the claimant the opportunity of discussing any issues she might have. The claimant did not raise any complaints about the change in line management.

[73]On 1 June 2022 Ms Adeshokan was interviewed for the role of Assistant Surveyor. At some point in early June she was successful in securing this role. She did not tell the claimant about her application, interview or placement into this role. On 16 June 2022 Ms Joseph told the claimant in a one-to-one that Ms Adeshokan had applied for the secondment role.

[74]Also during this one-to-one meeting Ms Joseph informed the claimant of the fact that a new structure would be implemented. There was to be a merger with another housing association, Catalyst. Ms Joseph emailed the claimant on 16 June 2022 after the one-to-one saying “New structure is more likely to mirror Catalyst model collaboration, and better productivity”. She also referred to Ms Adeshokan’s application.

[75]On 20 June 2022 the claimant emailed Ms Jona and Ms Joseph recording her shock and disappointment to learn of Ms Adeshokan’s successful application for a secondment role. She asked for information about how the process was undertaken and set out the impact it would have on her team. She said that the way the secondment had been handled was further illustration of the hostile environment and ongoing detriment she continued to experience. Ms Jona responded providing some information and setting out that, given the current relationship problems with Ms Adeshokan, this would give the parties an opportunity to take a break, and to start afresh at the end of the secondment. Ms Joseph also commented that she felt that it was in the best interests of Ms Adeshokan and the organisation for the secondment to proceed. She said that she would be happy to discuss with the claimant how her duties could be covered, and indicated home fire remediation work had moved away.

[76]There was further correspondence on 21 June 2022 between the claimant, Ms Jona, Ms Joseph and Mr Gillam. There was a significant amount of information about how the process had been undertaken, and this was provided. The claimant asked for further information, and in further emails expressed her shock that the secondment was not in line with the secondment procedure. Over the course of the following day there was further email traffic on this issue Ms Jona providing further clarity on the procedure. Ms Jona explained that ideally an individual should let their line manager know that they were applying for a secondment post, at latest when they are invited for the interview. This was not done here, but Mr Crow was on board with the arrangement to alleviate the tension between the claimant and Ms Adeshokan. Ms Jona sympathised with the claimant’s concerns about staffing, but observed how the fire remediation work had Case No: 2301222/2023 2303619/2023 23 eased which should create some capacity. Ms Jona said that she did not approve of Ms Adeshokan not telling the claimant about her application. After Ms Jona’s clarification on 22 June 2022 Ms Joseph emailed at 11:28 AM thanking her for her clarification, and saying “@Maxine Jervis I think we need to draw a line on this now and we will discuss further in our meeting this afternoon”.

[77]In later June or early July 2022 Mr Crow resigned from his interim role with one week notice.

[78]At some point in early July 2022 the claimant made a request to Mr Gillam that a Project Officer, Ms Dobbin, support her with some work on complaints and enquiries. Mr Gillam spoke to Ms Dobbin, who said she did not have capacity to assist. Mr Gillam relayed this to the claimant by email on 15 July 2022, and set out some information about how some assistance can be given to the claimant and her team. The claimant asserts that Ms Dobbin had the capacity to assist, and that Mr Gillam’s refusal was an act of victimisation. We find as a fact that Mr Gillam was told by Ms Dobbin that she did not have the capacity to assist, and this was the reason why Mr Gillam declined the claimant’s request.

[79]On 6 July 2022 Mr Cazar upheld some of Ms Adeshokan’s grievances but did not uphold others.:a. He considered that the poor performance of one team member may have been a contributing factor to disagreements within the team.

b. The claimant could have handled an issue concerning Ms Adeshokan leaving a team meeting by talking to her outside of the meeting rather than requiring her to come back into the meeting.

c. The claimant was right to require Ms Adeshokan to perform a particular task, but the claimant should have reflected on how this impacted on her.

d. The claimant was generally right to step in on certain communications, but her tone could be interpreted as assertive by the multiple people she copied into communication.

e. The claimant was unprofessional to raise openly the underperformance of a particular team member in a critical fashion.

f. The claimant’s tone of communications could be interpreted as not reflecting the respondent’s ethos of behaving in a “human and kind” manner. The claimant’s assertiveness could be considered unprofessional in certain contexts, but did not appear to be targeted at any particular individual. He recommended mediation between the claimant and Ms Adeshokan.

g. The claimant’s requirement that Ms Adeshokan seeks approval and has her work doublechecked, her needing to be copied into emails Case No: 2301222/2023 2303619/2023 24 and added to invitations to meetings, her chasing for updates ahead of deadlines, being overly prescriptive and detailed with instructions could be interpreted as micromanagement.

h. The claimant had not deliberately created a divisive team environment, but this was a perception.

i. The claimant did not set unrealistic targets and deadlines, but the language she used could make staff feel that things needed to be done immediately and urgently. The claimant should work on this aspect of her communication.

[80]On 14 July 2022 HR notified the claimant of the outcome of the grievance against her.

[81]Also on 14 July 2022 Mr Kennedy held a grievance outcome meeting with the claimant to notify her of the outcome of his grievance investigation. He communicated to the claimant that her grievance was not upheld in any respect. The claimant asked what the appeal process was, and she was told that this would be set out in the outcome letter.

[82]We are mindful that it is our duty to make proportionate findings relevant to the issues in dispute. Mr Kennedy’s outcome letter is 17 pages long, and the full report, annexing relevant interview summaries, runs to over 120 pages. The list of issues at 7.4.2 merely refer to it being an act of victimisation that Mr Kennedy “conducted a grievance hearing… that was not objective or reasonable”. It would not be proportionate to make detailed findings on every aspect of the grievance outcome documentation, so we will confine ourselves to a broad identification of Mr Kennedy’s outcome, and findings relevant to the issues the claimant raised in evidence about the grievance process and outcome.

[83]Mr Kennedy’s grievance outcome letter was emailed to the claimant on 15 July 2022. This letter was 17 pages long. In it he sets out the claimant’s grievance, the process followed and the applicable policies, including setting out his understanding of terms such as bullying and harassment, victimisation and micro-aggression. Mr Kennedy then sequentially goes through his findings in relation to each person the claimant identified in her grievance. In respect of each person Mr Kennedy set out the allegations against this individual, set out the interviews he undertook and the documentation he reviewed. He then set out his findings of fact in relation to what had been raised in written evidence, investigation meetings with the claimant and other members of staff. Mr Kennedy then made a conclusion based on the evidence he identified.a. In respect of Mr Wallis, Mr Kennedy did not uphold the complaint. He set out the competing narratives raised in respect of the issues and did not consider that they supported the claimant’s contention that Mr Wallis bullied, harassed, victimised, displayed micro- Case No: 2301222/2023 2303619/2023 25 aggressive behaviour and treated her differently because of race or gender.

b. In respect of Ms Carter, again Mr Kennedy did not uphold the complaint. He carefully balanced the evidence given in relation to the complaint by the claimant and Ms Carter and others and did not consider the evidence supported the claimant’s contention.

c. In respect of Ms Balogun-Springer, Mr Kennedy did not uphold the complaint. Balancing the evidence put forward from both sides Mr Kennedy did not consider that the evidence substantiated any of the behaviour the claimant alleged.

d. Mr Kennedy did not uphold the complaint against Ms Kutubu. He did not consider that what happened in the meeting when Ms Kutubu had suggested the claimant did not need to attend supported the claimant’s complaint that she was bullied, harassed, victimised or displayed micro-aggressive behaviours that amounted to systemic race and gender discrimination.

e. In respect of Mr Crow, Mr Kennedy recognised that both the claimant and Ms Melis did not welcome the changes that Mr Crow implemented in the claimant’s absence. However, Mr Kennedy did not consider that Mr Crow’s actions amounted to harassment bullying, victimisation or micro-aggressions that are tantamount to systemic race and gender discrimination.

f. In relation to the complaint about Mr Alder’s report, Mr Kennedy did not find evidence to support bullying harassing or any form of discriminatory behaviour. What is clear from the full report, however, is that it Mr Kennedy considered that some of the criticism the claimant made of the report was valid. He noted that Mr Alder, while his remit was not to consider individual complaints, his recommendation that the claimant be provided effective leadership and training could be viewed as singling her out. In that regard, her concerns that the report was inaccurate, one-sided, and an indictment of her integrity and character had some validity.

[84]During the course of the hearing before us, the claimant relied on the following criticisms of Mr Kennedy;a. He was not fully independent as the claimant had copied him into previous informal complaints, but he pushed her towards taking a grievance;

b. His notes were inaccurate;

c. He failed to consider Ms Melia’s there is no evidence to support witness statement; Case No: 2301222/2023 2303619/2023 26

d. He accepted what management witnesses said at face value without testing;

e. He accepted Mr Alder’s report at face value without testing the veracity;

f. He did not ensure Mr Alder’s recommendations were carried out;

g. He failed to have proper regard to the weight of evidence the claimant was putting forward;

h. He failed to look at differential treatment as the only senior black individual in the team.

[85]There is no evidence to support the allegation of Mr Kennedy not being impartial. The claimant had approached him about her problems in the workplace in the past, he listened to her complaints and suggested that taking the matter through the formal grievance process would be the avenue for seeking resolution. That does not seem to be an improper suggestion by him, and there is nothing to suggest that any contacts the claimant had with Mr Kennedy at this point made him unsuitable to hear her grievance at a later stage.

[86]The claimant has taken issue with virtually every set of minutes taken of meetings, but there is nothing from which we could conclude that the summary provided during the grievance procedures was inaccurate.

[87]We do not accept that the management and Mr Alder’s evidence was simply accepted at face value. It is clear from the outcome letter and the grievance report that Mr Kennedy set out the competing narratives put before him and carefully balanced them. The fact that he did not accept the claimant’s allegations does not in of itself mean his approach was unfair unreasonable or flawed. Indeed, in respect of the allegations against Mr Alder, Mr Kennedy did make some criticism of his own, although not upholding the complaint. Mr Kennedy did not accept that it was part of his remit to ensure any recommendations in Mr Alder’s report were advanced. His duty was to hear the grievance.

[88]It is also clear from the outcome letter and the report that Ms Melis’s evidence was carefully considered by Mr Kennedy. He also carefully set out the evidence put forward by the claimant. He balanced that carefully against the evidence given by management witnesses, and did not consider that it supported the claimant’s contentions. The fact that he did not uphold the allegations did not mean that he ignored the claimant’s evidence. He plainly did not ignore it.

[89]It is also clear from the face of the outcome letter in the report that Mr Kennedy, a BAME man with 40 years’ experience working in senior equality, diversity and inclusion roles, carefully examined the claimant’s complaints of discrimination, victimisation and micro-aggressions. As set Case No: 2301222/2023 2303619/2023 27 out above, the claimant also presented a slightly confusing case to Mr Kennedy, in that she specifically said that she was “not focused on race”.

[90]On 22 July 2022 the claimant appealed against the grievance outcome in an eight page appeal letter. Her grounds of appeal were lengthy and extensive, but were clustered into grounds that;a. The investigation was fundamentally flawed;

b. The outcome and conclusions were fundamentally flawed;

c. The grievance hearing was not balanced and reasonable; and

d. Mr Kennedy had misconstrued what the claimant had stated.

[91]Her letter included reference to codes and policies not being applied or properly applied, key evidence being not used, Mr Kennedy should have recused himself, a proper investigation had not taken place, poor notes being taken of the hearing, issues of race and gender were not seriously considered, Mr Alder’s report was regurgitated, the grievance process was not balanced and reasonable, issues of bullying harassment, victimisation and micro-aggressions were not properly considered.

[92]In August 2022 Ms Joseph was assigned to hear the appeal by Ms Jona in HR. Ms Joseph was a more senior manager to Mr Kennedy, and Ms Joseph had not featured in any of the claimant’s complaints as part of her grievance. It was therefore deemed appropriate under the grievance policy that Ms Joseph should hear the appeal, as the policy stipulates that the appeal should be heard by a manager more senior than the manager who heard the grievance.

[93]On 16 August 2022 Ms Jona wrote to the claimant acknowledging her grievance appeal, setting out a summary of what she understood the claimant’s grounds of appeal to be, and inviting her to attend an appeal meeting on 30 August 2022 to be heard before Ms Joseph. She was reminded of her entitlement to be accompanied by a workplace colleague, an employee supporter or trade union representative. She was told she could present any evidence or paperwork she wished to rely on, and preferably to send this in advance.

[94]On 24 August the claimant emailed Ms Jona raising a few concerns including questioning whether it was appropriate for Ms Joseph to hear the grievance appeal, considering the claimant currently reported to her. Ms Jona responded to the email the following day dealing with the claimant’s queries, including setting out her belief that Ms Joseph was the right person to hear the appeal as she had no prior involvement in the case whatsoever and would be able to make an independent and unbiased decision.

[95]The claimant’s companion was not available for the date of the appeal meeting, and the meeting was arranged to take place on 22 September Case No: 2301222/2023 2303619/2023 28 2022. One day before the appeal, on 21 September 2022 the claimant supplied Ms Jona with some further documents she wanted considered.

[96]The claimant attended the appeal meeting on 22 September 2022 before Ms Joseph who was supported by Ms Jona who took a note. The claimant was accompanied by workplace colleague. The minutes of the meeting were in the bundle at [1803-8] (although the claimant was later to make numerous suggestions for amendments when she was later supplied a copy). The minutes make clear that:a. The claimant provided some additional recordings which had not been provided to Mr Kennedy;

b. The claimant made clear that she wanted an apology for herself and her team, to be respected, for people to understand their roles, and to be financially compensated.

c. The claimant was given the opportunity to explain and expand on her grounds of appeal.

[97]On 11 October 2022 the claimant provided Ms Joseph with further documents to be considered as part of her appeal. On 2 and 3 November 2022 the claimant made numerous comments on the meeting notes.

[98]On 11 November 2022 Ms Joseph sent the claimant an appeal hearing outcome letter [2546-9]. Ms Joseph’s outcome letter included the following:a. She set out the claimant’s grounds of appeal and dealt with them in turn.

b. In terms of fundamental flaws to the investigation, Ms Joseph’s findings included: i. the respondent’s code of conduct had not been breached. Having listened to the recorded video of the meeting on 8 September 2021, and the meeting on 19 October 2021, Ms Joseph concluded that the situations appeared to be very tense and communication was not ideal on both sides. There was clearly an issue of communication between the claimant and her colleagues, and some of her colleagues clearly did not find her tone of voice in written or verbal communication acceptable. The actions the claimant complained of appeared to be reactions from colleagues to the way she spoke to them. ii. Mr Kennedy clearly carefully considered whether the evidence the claimant submitted was sufficient to substantiate claims of bullying and harassment. His conclusions were appropriate. Case No: 2301222/2023 2303619/2023 29 iii. Although the recording of one meeting was not used at the grievance hearing, Ms Joseph listened to it and concluded that it did not substantiate the claimant’s grievance. On this basis she partially upheld the grievance appeal. iv. Mr Kennedy was a suitable person to hear the grievance despite the claimant having copied him into certain emails and having spoken to him once. There is no evidence that he was biased or should have recused himself. v. The grievance hearing minutes were not verbatim and there was nothing to suggest that they had any impact on the overall outcome of the grievance. vi. Ms Joseph did not feel that Mr Alder’s report was particularly helpful, in that it did not make any helpful conclusions to help the Asset Management Team for the future. She did not consider that it amounted to victimising the claimant. On this basis she partially upheld this ground.

c. On the question of the outcomes being flawed, Ms Joseph could not see any evidence to suggest the evidence relied on by Mr Kennedy was not true. Mr Kennedy took into account all the evidence in a fair and unbiased way.

d. In terms of process, while Mr Kennedy was unable to obtain the copy of a meeting recording despite efforts, this did not have any unfair impact on the process. Mr Kennedy carefully reviewed everything the claimant chose to put before him.

e. There was no evidence to suggest that Mr Kennedy misconstrued what the claimant said about bullying, harassment, victimisation and micro-aggressions. It was clear that Mr Kennedy carefully considered these allegations but could find no evidence to substantiate them based on the claimant’s submissions and the statements of the witnesses.

[99]Having followed through the grievance process and the appeal, we will step back in the chronology to deal with a couple of other points at issue in this case.

[100]On 18 July 2022 Mr Gillam began acting up into the Head of Asset Investment role following the resignation of Mr Crow. This role was made permanent on 3 July 2023.

[101]On 20 July 2022 Mr Evans, Executive Director Property Services & Assets, emailed the senior management team information about the fact that a coroner’s inquest would start the following day into the death of one of the respondent’s residents. The email also set out certain actions and responses appropriate. Ms Joseph was a recipient of this email and she Case No: 2301222/2023 2303619/2023 30 cascaded it down to Mr Gillam and another manager for their information. On 10 August 2022 Mr Gillam cascaded this email down to a number of other people including the claimant and her team members. He started the email “Although I have discussed this in the past with some of you, please see below”. We find that Mr Gillam was simply cascading information down to inform people of the senior management team’s response to the coroner’s inquest. There was no requirement for him to seek intelligence from the claimant, and there was no particular communications input that was required.

[102]By July 2022 Mr Gillam was receiving complaints from contractors and suppliers about the way the claimant was handling meetings. They complained that she was taking over meetings and would not listen to anyone else in the meeting. Additionally, Ms Dobbins, a project officer, called Mr Gillam in tears to say the claimant had treated her badly. There was no real requirement that the claimant or anybody in the communications teams to attend supplier meetings. Such was the poor working relationship between Mr Gillam, his team and the claimant that he decided not to invite her to any supplier meetings.

[103]On 18 November 2022 the claimant emailed Ms Joseph to say that she was not satisfied by the grievance outcome

[104]On 21 November 2022 Ms Joseph and the claimant had a one-to-one meeting. There was correspondence between them both following the meeting about the content of the meeting. Ms Joseph referred in bullet points to what had been discussed, including the “tone of emails to colleagues needs to use less descriptive words to pull up colleagues conduct”. The claimant responded that Ms Joseph had said that “no one wants to speak with me due to the tone of my emails which have lots of adjectives which gets their back up”. Ms Joseph in her evidence more or less accepted that she did say something along these lines. She told us that the reason she would have said this is because she was getting feedback that tensions between the communications team and the project teams were getting worse and worse, to the point where the project teams did not want to work with the claimant. We find that Ms Joseph was not trying to berate or antagonise the claimant but merely urge her to reflect on how her communication was playing a part in driving others away.

[105]A meeting was due to be held with a particular communications team member who had a diagnosis of a serious mental health condition. That team member was due to attend with their trade union representative to discuss the issue of reasonable adjustments. Prior to this meeting the claimant had a discussion with Ms Joseph. Ms Joseph explained to the claimant at length why this particular team member’s role could not properly be undertaken as a home worker. The role simply could not be adjusted to a fully remote role. However, Ms Joseph discussed the possibility of exploring a vacancy for a different role for this team member Case No: 2301222/2023 2303619/2023 31 which might have been suitable if the team member wished solely to work from home.

[106]The claimant and Ms Joseph met the team member and their trade union representative. Ms Joseph explained the respondent’s position on homeworking in the role and was seeking to explore a compromise position. During the meeting the team member and their trade union representative appeared to be agreeing with what Ms Joseph was setting out. The claimant then, without any prior warning or discussion, declared that this team member’s role could be undertaken entirely from home. The team member became confused and upset and asked for a break from the meeting. Ms Joseph was extremely annoyed with the claimant at this point as she had been close to reaching agreement with the team member before the claimant’s interjection totally undermined the positive discussion, and undermined Ms Joseph as a senior manager. Ms Joseph in her evidence accepted that this was not her “finest hour” and that she was not as diplomatic as she could be. She said to the claimant words to the effect of “when they come back again, it’s not about your opinion, no one wants your opinion. Can you please be quiet and speak when spoken to”.

[107]The claimant, for her part, told us that she recognised that the team member was extremely vulnerable, and that her contribution to the meeting was meant with the best intentions to support her team member. We do not need to make findings on the claimant’s motivation. Ms Joseph more or less accepts that she said what the claimant alleged. It is Ms Joseph’s actions and her reasons behind them which we need to explore. We find that Ms Joseph was extremely annoyed that the claimant appeared to act in a way to undermine her and everything she was trying to achieve (contrary to what had been agreed prior to the meeting) when she was close to reaching agreement on a tricky issue.

[108]On 21 December 2022 Mr Gillam held a Christmas lunch for his project team. Although he was acting up into the role of Head of Investment, this particular festive event was for his project team not the wider investment team. He therefore did not invite any of the claimant’s team nor did he invite any of Mr Wallis’s team. He did, however, invite Ms Joseph.

[109]On 5 January 2023 the claimant emailed Mr Gillam to say that it had come to her attention that there was a team Christmas lunch on 21 December 2022 and that neither she nor her team was invited. She wanted to know why.

[110]Mr Gillam responded that the Christmas lunch was for his team and he only invited those he directly managed. The claimant responded on 17 January 2023 that Mr Gillam was Head of Investment, and it was therefore disappointing that her team were excluded in the season of goodwill. She said that his actions “had an effect”. The claimant forwarded this email chain to Ms Joseph, who commented that this was just Mr Gillam inviting Case No: 2301222/2023 2303619/2023 32 the team who directly reported to him, and there was nothing sinister. The claimant observed that Mr Gillam was Head of Service and had invited Ms Joseph. We observed that the claimant puts this forward as an act of direct race discrimination and direct sex discrimination. Ms Joseph is a Black woman. The restructure

[111]In January 2023 the respondent merged with an organisation called Catalyst. It appears that this had been in contemplation for some while, as we note that as early as 16 June 2022 Ms Joseph had informed the claimant that a new structure would come into being which would mirror that of Catalyst (paragraph 74 above). The merger led to a wide scale restructure within the respondent, leading to 29 restructures in most of the directorates across the organisation. It appears that there had been previous restructures, and the claimant had in fact been assimilated into the role she held in a restructure in 2021.

[112]The respondent operated a Managing Change Policy [1947-53] which defined a redundancy situation. It set out that selection procedures would be adopted with an ambition to avoid redundancies adopting various means. It sets out how consultation will take place, how dismissals will be effected and how appeals will be conducted. It set out that “Assimilation may take place where the role previously performed is changed slightly to reflect the new way of working required. Where the change is such that the new role remains substantially the same as the previous role, the post holder will be offered the new post without the need to undergo a formal selection process. If there are more suitable individuals at risk than there are new roles, a competitive selection process will take place.” There is also a Redeployment Policy [2093-4] which included:a. A section setting out that assimilation occurs where a colleague is automatically assimilated into their role without any further selection process. This can occur when there is no significant change to a role profile, personal specification or grade/salary compared to a new role within the structure. The following criteria would need to be met: i. “there is only one person who would be eligible for assimilation into the role, and there are no other valid claims that someone else could be matched to the post; ii. There is no significant change to the scale and scope of the role; and iii. There is a 70%+ match between the current role of the proposed new role”.

b. A section on suitable alternative employment setting out that suitable alternative employment was another role within the Case No: 2301222/2023 2303619/2023 33 organisation comparable to the one currently being undertaken by someone at risk of redundancy in respect of a number of factors including “The knowledge, qualifications, level of seniority, skills and experience required to undertake the role; and The salary, benefits, hours of work, location and status associated with the role. The policy stated that when considering suitability “we will always compare the role profiles and consider the possibility of training to up skill colleague. We will be transparent with colleagues in her assessment of what we consider will be suitable. All roles that are offered a suitable alternative employment will carry a trial period, which will be to between 4 – 12 weeks. The purpose of the trial period is both for us and the colleague to ascertain whether new role is suitable.”

[113]Ms Joseph was responsible for implementing the restructure in the Asset Management Team. On 16 January 2023 she presented her proposals to the respondents Change Board (a sub-committee of the Executive Board which had final say about whether a restructure could be implemented). These proposals [3077-3079] would lead to a small increase in staffing from 67 to 70, with the creation of certain new roles. However, the proposals included the deletion of four roles, including that of the Senior Communications Manager. If

[114]Ms Joseph gave evidence to us as to the rationale for the restructure. The respondent sought to introduce a better end-to-end process and reduce silo working and inefficient processes. The new structure would reduce the current reliance on consultants, and provide technical updates to customers through a single point of delivery. The Asset Management team and the Investment team needed to become based on the Catalyst structure. The Catalyst model had project teams with no consultants, only one senior manager and project managers, clerk of works and Resident Liaison Officers for each project. Ms Joseph observed that this model was more efficient than the one operated by the respondent.

[115]The then current structure in the Investment Team consisted of a Project Team comprising of three project sub teams led by a Project Surveyor who reported into a Senior Project Surveyor. There was also the Clerk of Works Team headed by the Senior Clerk of Works. Additionally there was the Communications Team which consisted then of CLCs assigned to each project but reporting to the claimant as Senior Communications Manager. This structure meant that on any one project there were three senior managers all feeding into the same project. Ms Joseph took the view that this structure was what had led to the disagreements and issues within the team. There were new no clear lines of responsibility and inefficient processes. Case No: 2301222/2023 2303619/2023 34

[116]On 16 January 2023 Mr Evans, Executive Director Property Assets, signed off on Ms Joseph’s proposals. On 17 January 2023 the Change Board approved Ms Joseph’s proposed new structure.

[117]Ms Joseph’s proposals had also set out a timetable for consultation, selection and implementation of new structure. The consultation was to start on 1 February 2023, and on 15 March 2023, with interviews beginning 20 March 2023 and the new structure in place by 3 April 2023. Ms Joseph’s proposals indicated that an equality impact assessment had been completed with respect to the proposed restructure, with no issues arising. The proposals set out that an equality diversity and inclusion (EDI) working group was being set up with a view to supporting an EDI agenda.

[118]On 30 January 2023 the claimant commenced a period of sick leave.

[119]On 2 February 2023 there was a directorate wide meeting for the Asset Management team chaired by Mr Evans. The proposals were summarised, setting out the rationale for the changes. A summary of the changes was provided, including setting out which roles were at risk of redundancy, which roles would be assimilated directly into the new structure (a number of these involving a change of job title but the same or broadly similar role), which roles would move into the team, and which roles would be retained. Four roles were at risk of redundancy; the Open Spaces Strategy Manager role, the Senior Communications Manager role (the claimant’s role), one Program Manager role (then vacant) and one Head of Technical – Post Construction role.

[120]For clarity, what was proposed under the new structure involved:a. The Senior Project Surveyor roles (held by Mr Wallis and Mr Gillam) would assimilate into Senior Project Manager roles, which were, essentially, the same roles;

b. The Senior Clerk of Works role (Mr Edwards’ role) was to assimilate into the Senior Project Manager role because they were sufficiently similar as to meet the respondent’s assimilation criteria;

c. The CLCs, who made up the team managed by the claimant, would be spread across proposed project teams;

d. There were no roles sufficiently similar to the claimant’s role in the new structure. This meant that there were no roles which she could assimilate into. There were 48 people across the Investment Team who did not have a direct assimilation route in the restructure.

[121]On 7 February 2023 Ms Joseph chaired a team meeting regarding the proposed changes to the structure of the Asset Management Team. The claimant was still off sick at this stage. Ms Joseph, therefore, telephoned the claimant before the meeting to give her a “heads up” about Case No: 2301222/2023 2303619/2023 35 the restructure and the fact that the proposal was to remove the claimant’s role from the structure. Ms Joseph also told the claimant that if the proposals went ahead there would be attempts to find suitable alternative employment, and if this was not possible she could also apply for any other vacancy. Once again the claimant covertly recorded this call. During the meeting the claimant was unable to attend, Joseph outlined the proposals, including the timescales for transition into the new structure.

[122]On 10 February 2023 Ms Joseph wrote to the claimant inviting her to an individual consultation meeting to take place by Teams on 16 February 2023. It was set out that as a result of the proposals the claimant’s role had been identified as being at risk of redundancy. It was explained that no decisions had been taken at that stage and that no decisions would be taken until consultation concluded on 18 March 2023. It was set out that the purpose of consultation was to explore ways of avoiding or reducing the number of redundancies, and for the claimant to make any suggestions or more alternatives to the proposals as well as raising concerns or questions. She was encouraged to provide any input to a dedicated restructuring box. She was also invited to inform Ms Joseph or HR if she identified any roles she might be interested in.

[123]There was some correspondence between the claimant and Ms Joseph and Ms Fenby-Taylor of HR asking whether there was a list of alternative roles the claimant could consider. On 15 February 2023 Ms Fenby-Taylor emailed the claimant to say there were likely to be a number of roles to which nobody has been matched or ring fenced and these would be advertised internally. The claimant was encouraged to look at the vacancies board.

[124]The claimant met Ms Joseph and Ms Fenby-Taylor on 16 February 23, accompanied by her trade union representative. During the meeting the claimant said she did not understand why her role did not fit in the new structure. Ms Joseph outlined the difficulties in communication that had arisen under the current structure which led to confusion and conflict. The claimant denied that this was the case. There was significant discussion about the rationale for the proposed structure and why Ms Joseph had proposed it. Ms Joseph made clear that she was happy to consider any alternative proposal put forward by the claimant. The question of why some roles had an assimilation route and the claimant’s did not was discussed. The claimant was told that there would be an attempt to find alternative employment and she was asked to share her CV. She was told that there were certain vacant roles, including Project Manager and Senior Project Manager, which were technical roles, and she was told that she would be provided with the JDs for these roles. The claimant was encouraged to check the vacancy board over the next few weeks for possible alternative roles. She was told that she would be required to work her notice period if she was made redundant. Minutes of the meeting were sent to the claimant the following day. On 8 March 2023 the claimant made comments on the minutes. Case No: 2301222/2023 2303619/2023 36

[125]On 8 March 2023 there was a second consultation meeting involving exactly the same people as the first consultation meeting. There was a discussion about why the claimant’s role no longer existed, possible training and other matters. There was a discussion about a role for Projects Manager and Senior Project managers which were vacant as there were more roles than people to be assimilated.

[126]On 9 March 2023 the claimant was sent the job descriptions for these two roles. Both these roles were technical roles that require professional qualifications and experience in managing projects in investments, repairs and maintenance. The claimant did not have these qualifications, and the respondent took the view that they were not suitable for her. Nonetheless, Ms Joseph confirmed to the claimant that she was free to apply for them. The claimant did not apply for these or other administrative roles which were also vacant.

[127]On 17 March the claimant submitted her first claim form.

[128]On 18 March the consultation period ended, and the respondent decided to implement the proposed new structure. The claimant’s role would therefore be deleted and her employment would be terminated on the grounds of redundancy unless suitable alternative employment could be found.

[129]On 22 March 2023 the claimant sent a copy of her CV to Ms Joseph.

[130]On 24 March 2023 Ms Joseph sent the claimant a letter informing her that consultation had concluded for the Asset Management Team restructure. The claimant was told that now that consultation had finished, the respondent proposed proceeding with the planned changes, and that unfortunately her role remained at risk of redundancy. Ms Joseph invited the claimant for another formal individual consultation meeting on 30 March 2023 on Teams to discuss the outcome and next steps.

[131]On 26 March 2023 the claimant submitted a second tribunal claim.

[132]On 29 March 2023 Ms Joseph sent out a team wide email setting out the new structure.

[133]The consultation meeting with the claimant did not take place on 30 March 2023 as the claimant was on leave. The meeting instead took place on 3 April 2023. Ms Joseph was supported by Ms Morris of HR and the claimant attended with her trade union representative. Ms Joseph confirmed that the claimant that her role was deleted, no alternative employment had been found and she was issuing formal notice of redundancy. Ms Joseph explained that the claimant’s notice period was two months, meaning the last day of employment would be 30 May 2023. It was explained to the claimant that she would be placed on garden leave Case No: 2301222/2023 2303619/2023 37 until 7 April 2023 when her employment would terminate and she would be paid in lieu of her two month notice period.

[134]The claimant was unhappy about the decision to place her on garden leave as she felt she had insufficient time to complete final tasks. Ms Joseph told the claimant there were no tasks for her to complete. Ms Joseph had a private discussion with Ms Morris, and a decision was reached to allow the claimant to stay in employment until 14 April 2023 to allow her download payslips and other personal documentation, and to apply for internal vacancies. She would be placed on garden leave for the period up to 14 April 2023. The claimant asked why she could not work her notice period, and Ms Joseph explained that new projects were starting the following week, and there would be no work for her to do. In her witness statement Ms Morris said “We were also conscious that at the meeting, Ms Jervis seemed very disenfranchised with Peabody and as she knew a lot of colleagues, we did not want any negative feelings to impact on other team members, which is why the decision was made to place her on garden leave. The decision to do this was not related to race, sex or age”.

[135]On 3 April 2023 Ms Morris emailed the claimant notifying her of the respondent’s employee assistance programme and giving contact details. The employee assistance programme provider had changed two days previously and Ms Morris mistakenly included the details of the former provider.

[136]On 4 April 2023 Ms Joseph completed an outcome letter which was sent to the claimant by Ms Morris. Ms Joseph had used a template for the letter which also contained details of the old employee assistance programme provider. The letter set out details of consultation and the failure to identify suitable alternative employment which meant that the role was redundant. Ms Joseph confirmed the employment would end on 14 April 2023 by reason of redundancy, and that the claimant would be placed on garden leave until then with the remaining six weeks’ notice being paid in lieu. The letter explained that the respondent would continue to discuss and explore possible suitable alternative employment during the notice period. The claimant was given details of her redundancy pay and given a right of appeal.

[137]In her covering email to the claimant, Ms Morris asked the claimant to let HR know if she found any suitable alternative roles. She noted that the Corporate Comms team was looking for a Business Partner (the “CCBP” role as we will refer to it) with certain skills and experience. She said the role was on the internal website if the claimant wished to review it.

[138]The CCBP was in a separate directorate, the Communications and Corporate Affairs Team. Two new CCBP roles had been proposed in the Catalyst restructure in February 2023. One role had been filled by assimilation and the other was vacant. It was authorised for recruitment on 28 March 2023 and advertised on 4 April 2023. Case No: 2301222/2023 2303619/2023 38

[139]On 5 April 2023 the claimant emailed Ms Morris, cc a number of others, complaining about a number of things including the fact that she was not allowed to work her notice period. She complained that the decision was an act of victimisation for having done a protected act by raising grievances and appeals, harassment, and less favourable treatment because a white colleague, Ms Doherty, was allowed to work out her notice period and had not been put on garden leave. Ms Bennett responded that day making herself available to discuss the points raised by the claimant on a Teams call.

[140]On 13 April 2023 the claimant emailed Ms Joseph and the number of others pointing out that she had attempted to contact the employee assistance programme provider and had been informed that the service had been cancelled. She asked when it was cancelled and the purpose of referring her to a different service. Within 13 minutes Ms Morris emailed the claimant back apologising for her error. She set out that on 1 April 2023 the respondent moved to a new employee assistance service. She provided contact details for the new service. We are satisfied that it was a simple error that led to the claimant being given incorrect details of the employee assistance provider.

[141]On 13 April 2023 the claimant also emailed Ms Bennett to say that she would not be able to have access to vacancies for the next 6 weeks. She asked for the period to be extended to allow her to apply for jobs that become available. Ms Bennett responded the following day to say the claimant’s last day of employment was 14 April 2023 and that she had had full access to vacancies during the past two weeks and that one role had been highlighted to her. She would not have access to internal vacancies after the last date of employment. Her IT access would also be terminated on that date. The claimant responded to Ms Bennett saying that she proposed making at least one application for a job that day.

[142]Also on 13 April 2023 the claimant appealed against her dismissal for redundancy. Her grounds were set out under five headings:a. Failure to follow the Managing Change Policy and Procedures;

b. Absence of Transparency and Objectivity in decision making process;

c. Unlawful victimisation;

d. Unfair Redundancy Selection and Unfair Dismissal. Under this heading she mentioned that the organisation was still in the throes of reorganisation and a brief look at the new structure would indicate that vacancies are available and more vacancies were in the pipeline;

e. Acts of Bad Faith, Detrimental Treatment, Unlawful Harassment; Case No: 2301222/2023 2303619/2023 39

[143]On 14 April 2023 the claimant’s employment was terminated on the grounds of redundancy.

[144]On her last day in the respondent organisation the claimant stayed in work until late, and she put in an application for the CCBP role. In the claimant’s application she indicated that her role was at risk of redundancy. She included a supporting statement in which she set out how she demonstrated the skills and experience for the role. She included a CV which clearly stated her various roles within the respondent organisation.

[145]On 17 April 2023 the new structure came into being within the Asset Management Team.

[146]Around 20 April 2023 Ms Atinmo, Head of Communications, who was the recruiting manager for the CCBP role, reviewed applications for the role together with another colleague. The respondent operates a blind recruitment process whereby applications were effectively anonymised. However, Ms Atinmo gave evidence that she knew the claimant well and indeed had a good working relationships with her, having supported her in her role quite a bit. Her evidence on the point was slightly equivocal, but we find that it would have been obvious to Ms Atinmo from reading an application, which set out explicitly that the claimant was the Senior Communications Manager, that it was obvious that this application was from the claimant.

[147]Both Ms Atinmo and her colleague did not shortlist the claimant for the role. We accept her evidence that she looked at the applications objectively looking for evidence of the necessary skills and experience for the role. The application of indicated that the claimant’s experience was more customer service and resident liaison than strategic communications. However, Ms Atinmo said she did not pick up on the fact that on the face of the application, the claimant had indicated that she was at risk of redundancy which should have guaranteed her an interview.

[148]Going back slightly in the chronology, we find that the CCBP vacancy was authorised on 28 February 2023. It was not signed off at director level until 28 March 2023. Ms Morris, as Head of Strategic Partnering included responsibility for the HR-side of managing change projects across the business and she and her team had knowledge of, or at least access, to information on changes approved and budgeted across directorates and departments in relation to the merger with Catalyst. She managed a small team of nine including Ms Jona whose role included “HR support with organisational changes, strategy and people plans” and who had previously been involved in numerous matters concerning the claimant and the Investment Team including Ms Adeshokan’s grievance, Ms Joseph taking over line management of the claimant and the claimant’s grievance appeal after which she says her involvement in the claimant’s “case” ended. Ms Morris stepped in to partner Ms Joseph at the Case No: 2301222/2023 2303619/2023 40 3 April meeting as two of her staff, Ms Fenby-Taylor and her intended cover, were absent.

[149]We are satisfied that Ms Morris, as the line manager of a small team who had either current or recent dealings with the claimant, including regarding a number of complaints, and whose role included HR organisational change across teams and directorates, would have had prior knowledge that the claimant’s Senior Communications Manager role was to be made redundant , that she was a “problematic” employee and that new headcount for the Corporate Communications team included two new CCBP roles, at least one of which was not filled. While Ms Morris may not have looked at the role profile for the CCBP position before it was advertised on 4 April, she would have known of its existence and the job titles alone would have indicated that the roles should be compared to check similarity.

[150]On 4 May 2023 a Ms Hooker, a white woman, who had 20 years experience in comms, and who was a senior Communications business partner in her previous role at a different housing association, was interviewed for the CCBP role. She was offered the job, accepted it, and began working on 3 July 2023.

[151]On 19 May 2023 the claimant was notified that her application for the CCBP role was unsuccessful.

[152]On 2 June 2023 the claimant’s appeal against dismissal was heard by Mr Burns, Executive Director Care, Inclusion & Communities. The claimant was accompanied by her trade union representative. At the meeting the claimant expanded upon her grounds of appeal. She was sent minutes of the appeal on 6 June 2023, and made a number of comments by 13 June 2023. Mr Burns had previously sought information from HR, and received information that the claimant had emailed him.

[153]As part of the appeal process Mr Burns interviewed Ms Joseph. He also received further emails from the claimant.

[154]Mr Burns was ready to send out an appeal towards the end of June 2023. However, there were some discussions, the contents of which we were not made aware of, between the HR team and the claimant and her trade union representative which necessitated a delay to the appeal letter being sent out.

[155]On 12 July the claimant submitted a further claim.

[156]The appeal letter was sent the claimant on 1 September 2023. Mr Burns dealt with the grounds of appeal, including:a. Failure to follow the Managing Change Policy and Procedures - Mr Burns established that the claimant was saying that her role should have been continued in some form, and he did not detect a Case No: 2301222/2023 2303619/2023 41 procedural challenge. He concluded the procedure was followed and did not uphold the appeal. He concluded that no suitable roles had been identified for the claimant, and that she had been made aware of the CCBP role. He considered that there were similarities between the claimant’s current role and this role, and that consideration should have been given as to whether this was suitable as alternative employment, assimilation, ring fenced interview, or a work trial of some description. Although he was not able to determine how closely matched the roles were, he considered more could have been done to explore the claimant suitability for the role. Mr Burns did not consider that the Project Manager role or the Senior Project Manager role were suitable alternative roles as the claimant did not have the required qualifications or experience.

b. Absence of Transparency and Objectivity in decision making process; Mr Burns concluded that he saw no evidence that the claimant’s race or the fact of her raising previous grievances had any bearing on the businesses determination of the new structure. The fact that a white employee in a different part of the organisation have been assimilated into a different role was not relevant. Mr Burns found that available roles in the new structure were technical in nature and not suitable for the claimant by reason of her lack of qualifications and experience. This was why they were deemed not comparable not for any other reason.

c. Unlawful victimisation; Mr Burns saw no evidence that the claimant’s race for any previous complaints had any bearing on any decisions made.

d. Unfair Redundancy Selection and Unfair Dismissal. Mr Burns did not see any evidence that the claimant had been unfairly selected for redundancy. Any vacancies were for technical roles which the claimant was unsuitable for. However more could have been done to explore the claimant suitability for the CBBP role.

e. Acts of Bad Faith, Detrimental Treatment, Unlawful Harassment: Mr Burns could find no evidence to suggest bad faith treatment were unlawful harassment in relation to the selection for redundancy. He said the claimant had been not asked to work her notice because she was allowed to leave with immediate effect because there was no handover of duties required or any outstanding products. This was in contrast with the colleague the claimant had raised during the appeal hearing who was required to continue with a specific project during their notice period. He considered that payment in lieu was not unusual and frequently welcomed.

[157]On 9 September 2023 the claimant notified Mr Burns that she had raised a claim against the respondent. Case No: 2301222/2023 2303619/2023 42 Data breaches

[158]On 25 March 2024, the respondent’s data protection officer was contacted by one of the respondent’s service users raising concerns that the claimant had accessed their personal data. This was investigated immediately and it was discovered that prior to leaving the respondent the claimant had, during working time, emailed herself large amounts of confidential company, colleague and tenant data to her personal email address.

[159]On 26 March 2024, Mr Evans wrote to the claimant explaining that the data the claimant had taken was the respondent’s property and that her conduct constituted a breach of three clauses of her contract of employment (relating to confidential information, returning property on termination of employment, and data processing), breach of the respondents data protection policy and a criminal offence under the Data Protection Act 2018 [2018-20]. The claimant was asked to return all confidential information, confirmed she had deleted or destroyed any copies of the information, to confirm she would not use information in future, and confirm whether she had already misused, disclosed or shared the information. Further correspondence ensued in which the claimant, essentially, refused to return the data and sought to justify her actions.

[160]In her evidence to the tribunal Ms Bennett told us that the data included Excel spreadsheets of hundreds of residents’ contact data. She told us that two residents had reported this to the Information Commissioner’s Office, and that the respondent had been obliged to self-report. She told us that the claimant had covertly recorded tenants, residents, and colleagues, including ones in different departments. She said that the claimant had mentioned that she had taken other recordings as well. Ms Bennett told us that she was aware of a recent dismissal for data breaches involving misuse of personal data which she characterised as less serious than the claimant’s breaches. We accept all of Ms Bennett’s evidence in this respect. The claimant did not challenge it, indeed her questioning of Ms Bennett was premised on the basis that she was justified in doing what she did in order to protect herself from the way she was treated by the respondent. Findings about named comparators

[161]The claimant identifies 7 named comparators in her race discrimination complaints (3.4.2 and 3.4.4 who are male and 3.4.3 who are female) and the same four males as identified for her race complaints as comparators in her sex discrimination complaints (5.4).

[162]The claimant referred to her “white male” colleagues on numerous occasions in her witness statement and her oral evidence. Often it was difficult to identify precisely what comparisons she was seeking to make in terms of which individual and which act of less favourable treatment. Case No: 2301222/2023 2303619/2023 43 Robin Edwards, Shaun Gillam and Ed Wallis

[163]Mr Edwards, the Senior Clerk of Works who assimilated into a Senior Project Manager role (see paragraph 17 and 120 above) was one of the claimant’s peer managers. Mr Gillam and Mr Wallis were also peer managers, who managed Project Teams. We have set out that it has not always been easy identifying what comparisons the claimant seeks to draw, but the claimant appears to say in her witness statement:a. None of her white male peer managers had their teams reorganised by Mr Crow (paragraph 127);

b. None of her white male peer managers were singled out as needing training in Mr Alder’s report (184);

c. There was no hostility shown to Mr Edwards (185);

d. None of her white male peer managers was identified as at risk of redundancy, and were all assimilated to roles in the new structure, and in particular that Mr Edwards was lacking in experience to carry out the role in the new structure (217, 222, 232 and 258).

[164]We have found that Mr Crow made some changes to the way the work was done while he covered for the claimant (paragraph 34 above). There was no identified need for Mr Crow to make changes to the way other teams operated, and he did not have to step in to cover the other managers’ teams. There is nothing here which assists in inferring less favourable treatment because of either race or sex.

[165]We have found that Mr Alder recommended training for the claimant as there was evidence of her hijacking meetings. There were no such, or similar issues raised about the claimant’s peer managers. In terms of the identified resentment against the claimant, Mr Alder made balanced findings in which he identified issues in both the communications and project teams. The claimant was not being singled out, and there was nothing to suggest a racial component to any resentment of the claimant. There is nothing here which assists in inferring less favourable treatment because of either race or sex.

[166]Our findings on the identification of the claimant’s role as being at risk of redundancy are above at paragraphs 111 to 141. In particular, paragraphs 114-115 and 120 above deal with the rationale for identifying the claimant’s roles as at risk and why there was an assimilation route for her peer managers. Additionally, at paragraph 126 we set out that the claimant was given the opportunity of applying for a Projects Manager or Senior Projects Manager role, but did not do so. The peer managers were not in a comparable situation to the claimant. There were clear reasons why Ms Joseph considered that the peer managers had an assimilation route and the claimant did not. In particular reference to Mr Edwards, we accept Ms Joseph’s evidence that, while Mr Edwards did not have Case No: 2301222/2023 2303619/2023 44 identified qualifications for the role in the new structure, he had the alternative requirement in that he had over ten years’ experience of managing projects in investments, repairs and maintenance. William Walker

[167]Mr Walker was a Programme Manager who managed the claimant before she became a Senior Communications Manager, and was in post between 1 November 2019 and 15 May 2022. He left before the restructure took place, and his post was deleted and not replace. We have not been able to discern how the claimant compares his treatment to hers. Paul Crow

[168]It has been impossible for us to discern what treatment of Mr Crow the claimant compares to her own. He was her line manager for much of the time Head of Service. Ms Doherty

[169]The claimant suggests that Ms Doherty, a white woman, was treated differently from her in that she was allowed to be in the workplace when is redundant and she was working her notice. Ms joseph gave evidence that Ms Doherty was in a different situation from the claimant, in that while on notice, she had certain projects which she had to finish off. Once she finished these projects she was immediately placed on garden leave. We accept Ms Joseph’s evidence which was not challenged or contradicted by the claimant. Ms Garrick

[170]We have not found it easy to see how the claimant compares her treatment with Ms Garrick. We find that Ms Garrick was formerly a fixed term worker with Catalyst who was formerly a Communications Manager with the Building Safety team. She became a Communications Lead working in Ms Atinmo’s team. We accept Ms Atinmo’s evidence that Ms Garrick was carrying out a generalist comms role. She did not become a Business Partner. We have not found Ms Garrick’s treatment helpful in inferring race discrimination. Her circumstances were different to the claimant’s. The law Direct discrimination

The law

[171]In respect of direct discrimination, Section 13(1) of the EqA provides as follows: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Case No: 2301222/2023 2303619/2023 45

[172]Section 23(1) of the EqA deals with comparisons, and provides:- On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

[173]The EAT in Chief Constable of West Yorkshire v Vento

[2001] IRLR 124

made clear that using examples of individuals who were not true comparators was a proper way of constructing a hypothetical comparator.

[174]The burden of proof provisions (which apply equally to harassment) are set out in section 136 EqA 2010:-(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[175]When considering direct discrimination, the tribunal must examine the “reason why” the alleged discriminator acted as they did. This will involve a consideration of the mental processes, whether conscious or unconscious, of the individual concerned (Amnesty International v Ahmed

[2009] IRLR 884

). The protected characteristic need not be the only reason why the individual acted as they did, the question is whether it was an “effective cause” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School and anor

[1996] IRLR 372

[176]Guidance on the application of the burden of proof provisions of the Sex Discrimination Act 1975 (which is applicable to the EqA, including claims of harassment and victimisation) was given by the Court of Appeal in Igen v Wong

[2005] IRLR 258

: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail. (3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex Case No: 2301222/2023 2303619/2023 46 discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”. (4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. (5) It is important to note the word “could” in SDA 1975 s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. (6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. (7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA 1975 from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA 1975. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. (12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge Case No: 2301222/2023 2303619/2023 47 the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. (13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.''

[177]Tribunals are cautioned against taking too mechanistic an approach to the burden of proof provisions, and that the process of drawing inferences of discrimination is a matter for factual assessment and is situation-specific, and that the tribunal’s focus should be on whether it can “properly and fairly infer … discrimination” (Laing v Manchester City Council

[2006] ICR 1519

). The Supreme Court has observed that provisions “will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence, one way or the other” (Hewage v Grampion Health Board

[2012] UKSC 37

[178]The Court of Appeal has emphasised that “The bare facts of a difference in treatment, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination” (Madarassy v Nomura International plc

[2007] IRLR 246

). “Something more” is needed for the burden to shift. Unreasonable behaviour without more is insufficient, though if it is unexplained then that might suffice (Bahl v Law Society

[2003] IRLR 640

[179]The EAT has also provided some recent guidance both on comparators and on the shifting burden of proof in Leicester City Council v Parmar EA-2023-000353-JOJ. In its review of the case law the EAT observed that “the purpose of a Tribunal’s consideration of comparators is to use it as an evidential tool to see whether an inference of discrimination is justified. It is not an end in itself” and “The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference”. Harassment

[180]Section 26(1) EqA 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— Case No: 2301222/2023 2303619/2023 48 (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[181]Section 26(4) EqA sets out factors which tribunals must take into account: - (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.

[182]Section 212(1) EqA provides that conduct amounting to harassment cannot also be direct discrimination.

[183]The Court of Appeal in Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

stated:- “an employer should not be held liable merely because his conduct has had the effect of producing a proscribed consequence. It should be reasonable that that consequence has occurred. The claimant must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, but the tribunal is required to consider whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so….We accept that 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.”

[184]The Court of Appeal again emphasised that tribunals must not cheapen the significance of the words of section 26 EqA as “they are an important control to prevent trivial acts causing minor upsets being caught up by the concept of harassment” (Land Registry v Grant

[2011] ICR 1390

). Victimisation

[185]Section 27 EqA deals with victimisation and provides: - Case No: 2301222/2023 2303619/2023 49(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

[186]A person suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

. An unjustified sense of grievance is not sufficient (Barclays Bank plc v Kapur (No. 2)

[1995] IRLR 87

and EHRC Employment Code, paragraphs 9.8 and 9.9). Limitation

[187]Section 123 EqA governs time limits and provides: - (1)… proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— Case No: 2301222/2023 2303619/2023 50 (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. Unfair dismissal

[188]Section 139 Employment Rights Act 1996 (“ERA”) provides: For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a)… (b) the fact that the requirements of that business—(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,have ceased or diminished or are expected to cease or diminish.

[189]Under section 98(1) Employment Rights Act 1996 (“ERA”) it is for the employer to show the reason for dismissal and that such reason was potentially fair one under section 98(2). Redundancy is one such potentially fair reason.

[190]Section 98(4) ERA provides that:- “the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case”.

[191]Tribunals are entitled to satisfy themselves that the redundancy situation is genuine, but it is not their function to go behind or examine the commercial merits of the decision to reorganise a business, so long as it is established that the decision to make redundancies was based on proper information and consideration of the situation (Moon v Homeworthy Furniture (Northern) Limited

[1977] ICR 117

, Orr v Vaughan

[1981] IRLR 63

EAT.. Case No: 2301222/2023 2303619/2023 51

[192]General principles relating to fairness in redundancy process emerge from Polkey v A E Dayton Services Ltd

[1988] ICR 142

where it was held that an employer will not be acting reasonably unless it:a. Warns and consults affected employees or their representatives;

b. Adopts a fair basis on which to make selections for redundancy; and;

c. Takes reasonable steps to avoid redundances.

[193]In Williams v Compair Maxam Ltd

[1982] ICR 156

guidance was given on the factors which the tribunal should consider when assessing fairness within a redundancy process: - d. The employer should seek to give as much warning as possible of impending redundancies to employees; e. It should consult them or their unions about the best means of achieving redundancies, including the applicable criteria in selecting for redundancies; f. That criteria for selection should, so far as possible, not depend solely on the subjective opinions of decision-makers; g. Selection is made fairly according to the criteria; and h. The employer will take reasonable steps to offer alternative employment instead of dismissing.

[194]In looking at all these elements it is not for us to substitute our own view, but to assess whether the employer’s actions fell within a range of reasonable responses open to a reasonable employer.

[195]In terms of establishing a pool for selection, the employer is to be given considerable latitude and the tribunal is to consider whether the choice of the pool is within the range of reasonable responses open to an employer in the circumstances. Identifying the pool is primarily a matter of the employer and the pool does not have to be confined to employees doing the same or similar work. It is difficult to challenge the establishment of the pool if the employer had genuinely applied its mind to the consideration (Taymech v Ryan

UKEAT/663/94

, Capita Hartshead Ltd Byard

[2012] IRLR 814

[196]A pool of one is permissible, and it may be the case that an employer might fairly focus on one individual employee without considering the development of the pool Wrexham Golf Co Ltd v Ingham

UKEAT/0190/12

[197]The question of reasonable alternative employment is viewed through the reasonableness test under section 98(4) ERA, and, again, we are to consider whether the respondent’s efforts fell within the range of reasonable responses. Case No: 2301222/2023 2303619/2023 52 In Thomas and Betts Manufacturing Co v Harding

1980 IRLR 255

, CA, the Court of Appeal ruled that an employer should do what it can so far as is reasonable to seek alternative work. The tribunals, however, are not to impose an “unreal or Elysian standard” (British United Shoe Machinery Co Ltd v Clarke

[1977] IRLR 297

[198]Under the principal in Polkey where there is a failure to adopt a fair procedure at the time of dismissal, dismissal would not be rendered fair just because the procedural unfairness did not affect the end result. Compensation can be reduced to reflect the chance of dismissal taking place had a fair procedure been adopted. Additionally, it is open to the tribunal to have regard to misconduct discovered subsequent to dismissal, not on the question of the fairness of the dismissal, but on the issue of what, if any, compensation it is just and equitable to award (W Devis & Sons Ltd v Atkins

[1977] IRLR 314

Conclusions

[199]The way the claimant puts her claims is that she asserts that numerous acts set out in the list of issues at paragraph 3.2.1 to 3.2.3 and 3.3.1 to 3.3.32 amount to direct race discrimination. The way the LOI is framed makes clear that these self-same acts are asserted to be acts supporting claims of race -related harassment, direct sex discrimination and race related harassment. She relies on 3.3.14 to 3.3.32 as being acts of victimisation also. Additionally, she relies on acts at paragraph 7.4.2 to 7.4.9 LOI as being acts of victimisation.

[200]We will only determine the issues set out in the LOI. We will make reference to the acts set out in paragraph 3 LOI and paragraph 7 (victimisation), but make clear when such acts are relied on as race or sex related harassment or direct sex discrimination. For example, LOI 3.3.15 is an act of race discrimination which is also said to be an act of race related harassment (4.2.1), and act of direct sex discrimination (5.3.1), an act of sex-related harassment (6.2.1) and an act of victimisation (7.4). We deal with this act under the heading of a brief description of the act followed by 3.3.15, but determine all the complaints relating to the act under this heading. It may at times be convenient to take more than one issue together when the issues are closely connected to each other. In particular, we will deal with all claims related to the dismissal together.

[201]The respondent accepts that certain acts were protected for the purposes of the victimisation claims, but some are not accepted. We will therefore deal first with the disputed issue of whether certain acts were protected, so that we can deal with victimisation as we go through our conclusions. Were certain acts protected?

[202]The respondent accepts that the following were protected acts for the purposes of the victimisation claims: Case No: 2301222/2023 2303619/2023 53a. The grievance dated 10 March 2022;

b. The employment tribunal claim presented 17 March 2023.

c. The redundancy appeal letter of 13 April 2023 (conceded to be protected in closing submissions by the respondent).

[203]We will make conclusions about other acts the claimant relies on being protected. Emails 26 October 2021 to 11 November 2021 (7.2.1)

[204]Our findings on these emails appear between paragraphs 40 and 47 above. On a number of occasions the claimant uses terms such as “victimisation”, “harassed” and “micro-aggression”. Victimisation and harassment have both a colloquial meaning as well as a meaning under the Equality Act 2010. We find that the claimant was using the terms here in a colloquial rather than legal sense. We note at paragraph 45 that the claimant makes reference to the ethnicity of some of the staff members and refers to Black History Month. However, she does not appear to assert any form of discrimination or breach of the Equality Act 2010. None of these references, we find, qualify for protection. They are not things done for the purposes of or in connection with the Equality Act 2010, and are not allegations (express or otherwise) that another person has contravened the Act.

[205]However, we find that her reference in an email of 8 November 2021. (set out at paragraph 47 above) to negative stereotyping as a “challenging” Afro-Caribbean woman does amount to a protected act. Comments during the Alder investigation (7.2.2)

[206]Our findings on this issue are at paragraph 59-60 above. We find that the reference to being the only person of colour in a senior position does not qualify for protection. It is not something done for the purposes of or in connection with the Equality Act 2010, and is not an allegation (express or otherwise) that another person has contravened the Act, but is merely the identification of a protected characteristic. The acts of less favourable treatment/unwanted conduct/detriment Reorganising the claimant’s team 3.2.1, criticising and undermining the claimant 13 and reorganising her team 3.3.7

[207]Respondent admits that the place, but denies that it was discriminatory or harassing in any way. We would comment that the allegation that Mr Crow “reorganised” the team overstates it. He made certain changes to ways of working in the claimant’s absence. Our findings are at paragraphs 33 to 34 above, and we make reference to the claimant accepting certain changes at paragraph 40 above. Case No: 2301222/2023 2303619/2023 54

[208]We found as a fact that Mr Crow made certain changes to timings of meetings and the allocation of CLCs to project teams when he stepped in to cover the claimant’s work. We do not find as a fact that he overtly criticised the claimant, but merely that the claimant took these changes as an implied criticism of her work.

[209]There is nothing from which we could conclude that this decision (unwanted as it may have been by the respondent) was in any way because of or related to the claimant’s race or sex. The comparator evidence has not been of assistance, as her peer managers’ teams never needed covering, and there was no identified need to make changes to how they worked. Mr Crow satisfied us that the reason why he cut down the number of meetings and assigned CLCs to project teams during the claimant’s absence was to cut down the amount of work he had to do whilst covering the claimant’s role. We do not uphold the claims of direct race or sex discrimination or harassment related to either characteristic. Mr Kennedy not upholding the claimant’s grievance 3.2.2, conducting a grievance hearing that was not objective or reasonable 7.4.2 and providing inaccurate grievance notes 7.4.5

[210]Section 24 Equality Act 2010 provides that for the purposes of establishing a contravention of the Act, it does not matter whether the alleged discriminator as the alleged protected characteristic. Like a number of people whom the claimant has made allegations against, Mr Kennedy is from a BAME community, and, moreover, has spent a career working in the EDI field. While as a matter of law this does not mean that he cannot have discriminated against the claimant because of her race, evidentially it is potentially a factor, amongst others, that we may have regard to when looking into the mind of the alleged discriminator to establish the reason why he may have done what he did.

[211]Our findings of fact are relevant to these issues appear at paragraphs 64, 67 to 82, and 80 to 89 above.

[212]We do not accept that Mr Kennedy failed to conduct an objective or reasonable grievance process and hearing. We do not consider that he was compromised in any way from hearing the complaint because the claimant had contacted him earlier about problems within the workplace she said she was having. As we have set out in some detail above, he met the claimant to establish her version of events, considered documents she supplied him with and interviewed individuals relevant to the claimant’s complaints. Having ourselves read the claimant’s witness statement, heard her give evidence and cross-examine the respondent’s witnesses we have some sympathy with Mr Kennedy’s suggestion that the claimant had adopted something of a “scattergun” approach during the grievance hearing. We can well see that taking minutes of this hearing would have been a difficult exercise. The claimant complained about the quality of the minutes of the meeting she had with Mr Kennedy, as she did with practically every other set of minutes produced during her employment Case No: 2301222/2023 2303619/2023 55 that we have been made aware of. The minutes would not have been verbatim, and we conclude that if they failed to capture the precise wording of the hearing it was because of the scattergun nature of the claimant’s presentation. In terms of his conclusions, as we have set out above Mr Kennedy balanced the evidence put forward by the claimant against the evidence he heard from the other witnesses. Having done this, he did not uphold the grievances.

[213]As a conclusion of fact we do not find that Mr Kennedy’s hearing was not objective or reasonable. We do not find he provided inaccurate notes. He provided the notes taken by the notetaker doing the best she could do in difficult circumstances. In order to address the claimant’s complaints about the minutes, her observations were annexed to the grievance, which is a reasonable approach. These two complaints are of victimisation. The thrust of the complaints, having regard to the findings or concessions on protected acts, essentially mean that the claimant’s case is that Mr Kennedy’s hearing was not objective or reasonable and he provided inaccurate notes because the claimant had on 8 November 2021 asserted that she had been stereotyped by Mr Crow, and secondly that she had brought the grievance alleging discrimination.

[214]There is nothing from which we could conclude that the approach taken by Mr Kennedy to the grievance and to the notes provided had anything to do with assertions of discrimination made by the claimant in these protected acts. We conclude that Mr Kennedy approached his task conscientiously and without any animus based on previous complaints. The reason why he approached the grievance he did as he felt that this was a fair and appropriate way of dealing with it. We do not uphold these victimisation claims.

[215]The claimant’s case is that Mr Kennedy treated her less favourably because of her race and sex and subjected her to unwanted conduct related to her race and sex by not upholding the grievance. There is nothing from which we could conclude that Mr Kennedy’s decision not to uphold the grievance had anything to do with either of these protected characteristics. We find that Mr Kennedy made the decisions that he did was because, having conducted an extensive and fair investigation, he could not see evidence to uphold the grievances. This complaint is not upheld. Excluding the claimant from discussions on the Ni-Block contract 3.3.1

[216]Our findings on this matter are at paragraph 22 above, although there are some findings throughout the decision which may illuminate our conclusions.

[217]The way which the communications team was working with the project teams was problematic for most of the time that this claim is concerned with. One particular difficulty appears to be the claimant’s desire for all the work to come through her to be allocated to the CLCs. Case No: 2301222/2023 2303619/2023 56 The respondent took the view that this was not inappropriate or efficient way of working. At least one member of the claimant’s own team felt she was being micromanaged. We conclude that what happened with respect to the work on the Ni-Block contract was that Ms Stewart was the designated CLC who would do the liaison work on this contract. Some of the emails and some meetings were arranged with Ms Stewart. We find that this was simply because she was the nominated CLC. This does not create compliance difficulties. If the claimant had not been sent certain emails she may have felt put out by this, but this was nothing to do with her race or sex. There is simply no evidence from which we could conclude that this was the case. The reason why she was not cc’d into every email or invited to all meetings is that there was no operational need to do so. Mr Crow not supporting the claimant and instructing her to write a guidance on 10 August 2021 3.3.2

[218]The meeting the claimant refers to actually took place on 24 August 2021, and we make findings relevant to this complaint at paragraphs 23 and 24.

[219]This was one of the many meetings the claimant covertly recorded. The full transcript was in the bundle. It is difficult to see from the verbatim transcript quite how it is alleged that Mr Crow failed to support the claimant. There was in existence a manual on ways of working which was practically unfit for purpose. Given the difficulty in ways of working we can see how it would be highly desirable for some sort of guidance to be prepared. We conclude that asking the claimant to do this could only be helpful for all concerned. It is also quite clear that Mr Crow was suggesting this so that the teams could work together more productively and efficiently in the long run. He also clearly offered to help the claimant to produce such a document.

[220]In the circumstances we are at a loss as to understand how any of this could be less favourable treatment. There is nothing from which we could conclude that the reason why Mr Crow acted as he did was in any way related or because of the claimant’s sex or race. The reason why he raised concerns about the existing manual was because it was useless. The reason why he suggested the claimant put together a new guidance was to provide clarity on ways of working, which was sorely needed.

[221]We do not uphold these complaints. Ms Balogun-Springer objected to the claimant chairing the meeting and accused her of micromanagement 3.3.3

[222]Our findings of fact on this issue appear at paragraph 26 above. The context is that shortly before 8 September 2021 relationships were clearly becoming very strained indeed between the claimant and members of the project teams. We also note that these allegations of race Case No: 2301222/2023 2303619/2023 57 discrimination and race-related harassment and sex discrimination and sex-related harassment are levelled against Ms Balogun-Springer, a Black woman who had been active in the work of The Group.

[223]At the time of the meeting of 8 September 2021 we find that Ms Balogun-Springer (who was in the same team as Ms Carter, who had also fallen out with the claimant) had a dim view of the claimant. She felt that the claimant unreasonably took over meetings and was prone to micromanagement (a view she was not alone in holding). There is nothing from which we could conclude that the claimant’s race or sex had anything to do with Ms Balogun-Springer saying or doing what she did. We find that the reason why Ms Balogun-Springer objected to the claimant chairing the meeting was that she felt that the contractor or Ms Stewart was the appropriate chair, and she felt the claimant was just taking over. We do not uphold these complaints. Mr Wallis and Mr Crow failed to investigate complaints about Ms Balogun-Springer, and did nothing about conflict resolution 3.3.4 and 3.3.6

[224]Findings relevant to these issues appear at paragraphs 29 to 33, 35 to 37 and 42 to 45 as well as other paragraphs.

[225]As is clear from our findings of fact, working relationships were souring even further as things progressed during the course of September 2021. It is wrong to say Mr Wallis did nothing when the claimant notified him of her problems with Ms Balogun-Springer. Not only did he tell her that she had raised problems with him, but he also escalated the matter to Mr Crow. In terms of conflict resolution, the claimant was demanding unreserved apologies because of the “pernicious behaviour” she had been subjected to. It is also clear that Mr Crow raised with the claimant explicitly on her return to work how he should investigate issues she had raised. He also set out that he was there to support her. It is not right to say that Mr Crow did nothing, it is more accurate to say that the claimant’s complaints and the broader disharmony in working relationships escalated and went in a different direction. The claimant escalated her complaints to Mr Kennedy and HR. The situation was further complicated by Ms Adeshokan taking out a grievance against the claimant. It is simply untrue to allege that nothing was done about conflict resolution. Quite the contrary: things moved towards the appointment of Mr Alder to investigate the disharmony within the teams.

[226]We do not accept the factual premise put forward by the claimant here. We do not find that she has been treated less favourably here as she alleges. In terms of what actually happened there is nothing from which we could conclude that the claimant’s race or sex had anything to do with how her complaints were taken forward. This was a situation where numerous individuals were complaining about each other and the whole matter moved towards an investigation of this with a view to conflict resolution. We do not uphold these complaints. Case No: 2301222/2023 2303619/2023 58 Mr Wallis allocated the claimant’s communications duties to Ms Carter and bypassed her 3.3.5

[227]Our our findings are set out at paragraphs 27 and 28 above. Again we would observe that the claimant’s characterising this issue as “allocating” her duties to Ms Carter very much overstates what happened. Ms Carter sent out a letter on one occasion where the claimant did not have final sign off.

[228]The correspondence makes clear that there was a need for urgency in sending out a letter for various pressing reasons. Mr Wallis took the view that only one final update needed to be made following the claimant’s review of the letter, and he instructed Ms Carter to make this change and send out the letter. There is nothing from which we could conclude that the claimant’s race or sex had anything to do with this approach by Mr Wallis. One change needed to be made to the letter and then it was good to go. The claimant did not need to be involved. We strongly suspect that the claimant’s taking umbrage here was simply another expression of the worsening relationships between the teams. We accept Mr Wallis’s explanation that the claimant’s race and sex had nothing to do with this approach. He just wanted the letter sent out quickly. These complaints are not upheld. Exclusion from the working group 3.3.8

[229]Our findings on this matter appear at paragraphs 21 to 22, 36 a) and 39.

[230]The claimant was an invited member of the working party and attended its meetings before she went off sick. It appears that there was a meeting or meetings whilst she was off sick, and Mr Crow updated the claimant about these meetings. A couple of meetings were cancelled for various reasons and then were cancelled for good when the claimant put in her grievances. Given that the work of the working party was to investigate the improvement of working practices, this is hardly surprising.

[231]The claimant simply was not excluded from the working party meetings.

[232]There is nothing from which we could conclude that the meetings that she did not attend were anything other than by reason of her being off sick at the time. There is nothing from which we could conclude that race or sex had anything to do with this.

[233]These complaints are not upheld. Case No: 2301222/2023 2303619/2023 59 On 15 October 2021 Mr Crow criticised claimant, did not support her said that she was challenging and asked whether she had any professional qualifications 3.3.9

[234]Our findings of fact or at paragraph 36 above. This was yet another meeting that the claimant covertly recorded (and lied about this fact when she was asked if this was the case).

[235]We do not find as a fact, from the verbatim transcript, that Mr Crow did criticise the claimant. Contrary to the claimant’s assertion Mr Crow specifically did ask whether she needed support. There is no suggestion that he did not respect any of her decisions and he did not call her challenging or aggressive.

[236]It may be that the claimant has confused this meeting with the next one at 19 October 2021 (our findings about this meeting are at paragraph 37 above). In this meeting he did say at one point, in a tense meeting where because of a number of factors, including a poor connection, Mr Crow and the claimant were talking over each other, that he was “trying to explain to you that you are simply getting rather challenging with regards to this”. In this meeting he also asked whether she had done management development training. We have found that this was a simple enquiry about what training she had undertaken, not an implication of any failings by her.

[237]We do not find that the claimant has established the factual basis for her allegations. We also note during the course of the meeting that Mr Crow specifically asked the claimant whether any treatment she was alleging was racially motivated. The claimant specifically said she was not. There is nothing from which we could conclude that Mr Crow’s actions had anything to do with the claimant sex or race. The reason why he said what he did and did what he did was to respond to legitimate issues at the time. We do not find these complaints proven. Falsely accusing the claimant of swearing 3.3.10

[238]Our findings on this matter are at paragraphs 37 to 38 above.

[239]We have found as a fact that Mr Crow genuinely believed the claimant had said the word “bollocks”, suggesting that he was talking rubbish. The reason why he made this allegation was because of this genuine belief. Had he misheard this from someone in a meeting of any race or sex he would have reacted the same. We read numerous examples of people swearing in meetings, including the claimant, and nothing being done. It is not the swearing that was at issue here, and examples of white colleagues swearing in meetings were not comparable. What Mr Crow was reacting to was the belief that the claimant had in colourful terms told him he was talking rubbish. This is what he challenged. Case No: 2301222/2023 2303619/2023 60 Failing to do anything about the claimant’s complaints between 26 October 2021 and 11 November 2021 3.3.11; Mr Kennedy failed to take action to resolve the claimant’s complaints 3.3.13

[240]Relevant findings appear at paragraphs 40 to 47, 53 and 58 although other paragraphs are relevant. It is simply not the case that the respondent failed to do anything about the claimant’s complaints. By October and November 2021 it was abundantly clear that there were serious issues between the claimant and a number of her colleagues. When she sought to involve Mr Kennedy he, understandably, advised her to formalise it into a grievance. She did not do so until much later. She sought to involve Mr Spillett and he responded to her. The claimant’s complaints about Mr Crow were within a much broader context of complaints against a number of other people and complaints made by a number of people about the claimant. This matter was progressing towards an enquiry that would be conducted by Mr Alder. Far from ignoring the claimant’s complaints, she was getting significant time from HR who were playing a part in nudging this towards the enquiry. The claimant has not established any less favourable treatment. For good measure, we find that there is nothing from which we could conclude that the way the respondent approached these issues had anything to do with the claimant’s race or sex. Had anyone, regardless of race or sex, been in a materially similar circumstance to the claimant exactly the same thing would have happened. We do not uphold these complaints. Excluding the claimant from contractors supplier meeting July to September 2022 3.3.12; excluding the claimant from contractors supplier meeting August to October 2022 7.4.7; not allowing support from Ms Dobbins 7.4.8; withholding information/excluding the claimant concerning coroners inquest 7.4.6

[241]These are all allegations levelled against Mr Gillam, and essentially asserting that he was excluding the claimant from certain work.

[242]In respect of both issues concerning excluding the claimant from contractors supplier meetings, our findings are at paragraph 102 above. For context, we also found at paragraph 55 above that as early as January 2022 decisions were being taken about not inviting the claimant to some meetings to avoid displays of disharmony in front of residents.

[243]By the time it got to the summer and autumn of 2022 things had got even worse. This time it was contractors who were complaining about the way the claimant conducted herself during meetings, and who wished to avoid being in a meeting with her. Mr Gillam therefore took the decision not to invite her any more to these meetings. There is nothing from which we could conclude that this decision was made because of or related to the claimant’s race or sex or the fact that she had made complaints of discrimination. We are satisfied that Mr Gillam has established that the reason why he did not want the claimant at these meetings were that working relationships with the claimant, including between the claimant and contractors, had got to the stage where her presence at these Case No: 2301222/2023 2303619/2023 61 meetings was not wanted. He was not even aware that the claimant had alleged discrimination in a grievance at this stage. These complaints, 3.3.12 and 7.4.7, are not upheld

[244]Our findings about Ms Dobbin are at paragraph 78 above. We have found above that the reason why Mr Gillam told the claimant that Ms Dobbin could not assist was that she had told him that she did not have the capacity to assist the claimant. We accept Mr Gillam’s evidence that he was not aware that the claimant had alleged discrimination in a grievance at this stage. There is nothing from which we could conclude he refused to allow Ms Dobbin to help was in any way to do with the claimant’s prior protected act. This complaint is not upheld.

[245]Our findings about the coroner’s inquest are at paragraph 101 above. Mr Gillam was cascading information from senior management. There had been nothing he had needed to discuss beforehand with the claimant about any of the issues to do with the tenant who had died or the subsequent inquest. We accept Mr Gillam’s evidence that he had not been aware that the claimant had raised discrimination in a grievance. There is nothing from which we could conclude that the protected act had any influence whatsoever on Mr Gillam doing as he did. This complaint is not upheld. Mr Wallis and members of his team ignoring and undermining the claimant in a number of ways 3.3.14a) to c)

[246]Our findings about Ms Kutubu’s actions on 16 December 2021 are at paragraphs 48 and 49.

[247]We do not find that Ms Kutubu was disrespectful to Ms Melis. She merely said that there was no need for the claimant to be at the meeting as it was a quick catch up. There is nothing from which we could conclude that Ms Kutubu’s actions had anything to do with the claimant’s race. We find that the reason why Ms Kutubu, a Black woman who had previously been active in The Group, did what she did because of the claimant’s sex or race or that it was in any way related to her sex or race or because of a previous complaint of discrimination. The reason that she said what she did to Ms Melis was that she did not consider the claimant’s presence was needed in a quick catch up meeting.

[248]Our findings on Mr Gillam’s alleged lack of response to the claimant raising issues about Ms Kutubu is at paragraphs 49 to 51. Our conclusion is that Mr Gillam did not feel that the claimant’s email was appropriate in the circumstances. The claimant had cc’d Mr Crow into the email, and Mr Gillam did not want to get into a protracted email correspondence on this issue. His relationship with the claimant was by this stage tense and he did not believe that responding would take matters any further. There is nothing from which we could conclude that his decision not to respond was anything to do with the claimant’s race or sex or because of a previous protected act. The reason why he did not respond is that he did Case No: 2301222/2023 2303619/2023 62 not think the claimant’s email was appropriate and he did not think responding to it would take things further. This complaint is dismissed.

[249]Our findings about Mr Wallis and his team members challenging established procedures and accusing the claimant of lying and excluding the claimant from consultation meetings is at paragraph 52 and 56 to 57. We do not find that Mr Wallis and his team were challenging established procedures. There was a disagreement between Mr Wallis’s team members and the claimant about what needed to be included in certain correspondence. Each party to the disagreement put forward their view. There is nothing from which we could conclude that race or sex, or a protected act, was a factor in any of this. This is merely a professional disagreement about how things were done. The reason why Mr Carter suggested what she did was that she believed that her view was the right way of doing things.

[250]There was a further disagreement between Ms Balogun-Springer and the claimant about who had final sign off on a newsletter. The claimant took the view that a certain way of doing things had been in place for years. Ms Balogun-Springer said that this was untrue as the claimant had not been in post for that long. This was probably a clumsy way of putting things by Ms Balogun-Springer, but by this stage she had a dreadful working relationship with the claimant. However, there is nothing from which we could conclude that the claimant’s race or sex had anything to do with Ms Balogun-Springer saying what she did. She was merely challenging the claimant’s assertion that things had been done a certain way for years by saying, clumsily, that this could not be the case because the claimant had not been in post for that long. We do not find this complaint has any merit. Mr Alder’s report 3.3.15

[251]Our findings on this issue are at paragraphs 58 to 61 above.

[252]We do not find that Mr Alder’s report was inaccurate, one-sided or not objective. It is right to say that, to a degree, the claimant was singled out and identified in the report and it was suggested that she needed training.

[253]A close reading of Mr Alder’s report shows that he took a balanced approach having followed a thorough process which sought to access evidence broadly. He saw force in some of the criticisms against both the project teams and the communications team.

[254]From the claimant’s perspective, it is easy to see how she felt singled out, in that she was the only person identified as someone who might benefit from further training. We do not consider that this was put forward negatively by Mr Alder. More to the point, there is nothing from which we could conclude that this, the only potentially less favourable Case No: 2301222/2023 2303619/2023 63 treatment we have been able to identify, had anything to do with the claimant’s race or sex all because of a protected act. Dealing with Ms Adeshokan’s grievance formally 3.3.16, unfair process and outcome in determining Ms Adeshokan’s grievance 3.3.19

[255]Our findings relevant to this are at paragraphs 46, 54, 62, 65 to 66 and 79 to 80 above.

[256]We can deal with this matter reasonably simply. The reason why the respondent investigated this grievance formally was because Ms Adeshokan asked for it to be dealt with formally. She claimed to have significant problems with the claimant and did not seek a local informal resolution.

[257]There is nothing from which we could conclude that the reason why the respondent dealt with this matter formally had anything to do with the claimant’s race, sex or her having done a protected act.

[258]In terms of the process adopted by Mr Cazar, another BAME man, we do not conclude that he undertook a process that was not fair or balanced. Mr Cazar took a reasoned decision that Ms Falconer would not add relevant evidence to the investigation and Ms Stewart declined to be interviewed. He considered oral and documentary evidence from both Ms Adeshokan and the claimant, and further interviewed another CLC in the team. Some of the allegations were upheld, some of them were not.

[259]There is nothing from which we could conclude that the way Mr Cazar approached the grievance or the conclusions he made the evidence were in any way because of or related to the claimant’s race or sex or because she had done any of the protected acts. We find that Mr Cazar followed the process that he did because he considered this was the appropriate and fair way to deal with the grievance. We further find that the reason why he came to the conclusion was that he did was because he considered that these were the appropriate decisions on the evidence put before him. Ms Joseph becoming the claimant’s line manager without consultation 3.3.17

[260]Our findings on this issue are at paragraph 72 above. This was not something the claimant complained about at the time and was a decision implemented by Ms Joseph.

[261]There is nothing from which we could conclude that Ms Joseph made this decision for any reasons related to the claimant’s race sex or having made a protected disclosure. The reason Ms Joseph decided to take over line management responsibility of the claimant was because she had raised a formal grievance against her line manager. She discussed this with the claimant during a supervision meeting. There was no need to Case No: 2301222/2023 2303619/2023 64 negotiate this issue and the claimant appeared to have no problem with it at the time. Not consulting with the claimant about Ms Adeshokan’s secondment 3.3.18

[262]Our findings on this issue are at paragraphs 66, 73 and 75 to 76.

[263]It is abundantly clear that Ms Adeshokan had a very poor working relationship with the claimant, so much so that she took out a grievance against her for bullying and harassment (which was partly upheld).

[264]It is unsurprising that Mr Crow had Ms Adeshokan in mind when a potential secondment opportunity arose in Mr Gillam’s team. At this stage Ms Adeshokan had already told Mr Crow that the claimant’s treatment of her was making her ill. It is also unsurprising that at this point Mr Crow did not mention this to the claimant. Ms Adeshokan had specifically asked him not to. The onus was on Ms Adeshokan to inform her line manager at the interview stage that she was pursuing a secondment opportunity. The fact that she did not do this is entirely understandable in the context of her dreadful working relationship with the claimant.

[265]While it is possible to envisage scenarios in which this could have been handled better, Ms Adeshokan not telling the claimant about pursuing the secondment opportunity is entirely understandable. One can envisage a scenario where Ms Adeshokan was unsuccessful in her application, and this might sour the working relationship even further if she had already told her of her application. There is nothing from which we could conclude that the claimant’s race or sex or protected act had anything to do with the lack of consultation with the claimant. Ms Adeshokan pursued the secondment opportunity in substantial part to get away from the claimant. The reason why she did not tell the claimant she was pursuing this application, and the reason why nobody else told the claimant until Ms Adeshokan was successful in her application was so as not to expose Ms Adeshokan to the possibility of having to face the claimant having been unsuccessful in her application. We do not uphold this complaint. Appointment of Ms Joseph to hear grievance appeal 3.3.20, Ms Joseph failed to uphold the grievance appeal 3.3.21 and conducted the grievance appeal hearing in a way that was not objective or reasonable 7.4.2

[266]We deal with these issues together as they are interconnected.

[267]Our findings relevant to all issues appear above at paragraphs 92 to 98.

[268]We do not conclude that Ms Joseph was an inappropriate person to hear the grievance appeal. She had not been in her post when the claimant brought her grievance and had not been interviewed by Mr Kennedy. She was more senior than Mr Kennedy and thus was an Case No: 2301222/2023 2303619/2023 65 appropriate person to hear the appeal under the relevant policy. The final decision as to the appointment of Ms Joseph was made by Ms Jona. Her reasoning appears rational. More to the point, there is nothing from which we could conclude that the claimant’s race, sex or her having made protected disclosures had anything to do with Joseph being appointed to hear the appeal.

[269]We do not find that the process adopted by the respondent was not objective, reasonable or fair. Efforts were taken to establish and understand what the claimant’s grounds of appeal were, she was reminded that she could present any evidence she chose, the meeting was postponed to allow her to be accompanied, she provided further information to the hearing and after it and Ms Joseph considered all of this evidence. Ms Joseph made detailed findings on the claimant’s grounds of appeal addressing the evidence put before her. We can identify no lack of objectivity, unreasonableness or unfairness in any of this.

[270]There is nothing from which we could conclude that the way Ms Joseph (and Ms Jona in support) approached the process or determined the outcome of the grievance had anything to do with the claimant’s race, sex or any protected acts. The reason why Ms Joseph adopted the process she did was because she considered it the appropriate way to deal with the claimant’s appeal. The reason why Ms Joseph did not uphold the appeal was because she considered on the material presented to her that the grounds of appeal were not made out. These claims are not upheld. Ms Joseph saying “we need to draw a line under this” 7.4.4, “no one wants to speak with you” 3.2.22, and “you are annoying me now etc” 3.3.23

[271]Our findings on the “draw a line” comment are at paragraph 74 to 76 above. Ms Joseph had informed the claimant about Ms Adeshokan’s secondment, which was clearly a matter of concern for the claimant. The claimant then engaged in protracted correspondence with Ms Jona, Ms Joseph and Mr Gillam over a couple of days. It is clear from the correspondence that there was some sympathy for the claimant not being told about the secondment until it was a fait accompli.

[272]We conclude that Ms Joseph’s comment was a reasonable one in the circumstances. A decision had been made on the secondment, the claimant was given a significant amount of information on the issue and Ms Joseph reached a point when she felt she needed to move on. She was not shutting out the claimant from discussing the matter further, and indeed indicated there could be further discussion. She was merely “drawing a line” under significant email traffic which was taking things no further. There is nothing from which we could conclude that Ms Joseph made this comment because of or related to the claimant’s sex or race or because she had done a protected act. Ms Joseph made this comment as a senior manager indicating that email discussion on a particular point Case No: 2301222/2023 2303619/2023 66 should conclude, and any further discussion be taken up in a supervision meeting.

[273]Our findings on the “no one wants to speak to you” comment is at paragraph 104 above. The context is that there has been in this case a substantial amount of evidence indicating that the claimant’s working relationships with a number of colleagues became extremely strained at various times. We note that Mr Cazar upheld an element of a grievance against the claimant relating to her communication with Ms Adeshokan, that members of the project teams reached a point where they did not want to have meetings with the claimant, that Ms Carter set up a rule to restrict the times she received email from the claimant, and that contractors told the claimant’s colleagues they did not want to hold meetings with her.

[274]We find that Ms Joseph is likely to have communicated to the claimant during the meeting of 21 November 2022 that her communication style was having an impact on the claimant’s colleagues, to such an extent that they did not want to speak to her. We have no doubt that this comment would have been set in an appropriate context, and delivered with the intention of drawing these difficulties to the claimant’s attention with a view to addressing them. Ms Joseph was delivering and uncomfortable truth, but a truth nonetheless.

[275]There is nothing from which we could conclude that Ms Joseph’s making this comment was in any sense because of or related to the claimant’s race or sex, and it had nothing to do with the fact that she had done a protected act. The reason why Ms Joseph made this comment was that it broadly reflected a workplace reality which needed to be brought to the claimant’s attention.

[276]Our findings on the “you are annoying me etc” comments are at paragraphs 105 to 107. Ms Joseph recognised that she had not been diplomatic here. She was, however, extremely frustrated that the claimant had gone back on what had been agreed and, effectively, undermined Ms Joseph during a particularly difficult and sensitive meeting. There is nothing from which we could conclude that Ms Joseph made these comments because of or that such comments were related to the claimant’s race or sex or were done because of any protected act. The reason why Ms Joseph made these comments was out of extreme frustration and to ensure the claimant did not undermine her again when the meeting resumed. Mr Gillam’s Christmas lunch 3.3.24

[277]Our findings in relation to this issue are at paragraphs 108 to 110 above.

[278]There is nothing from which we could conclude that Mr Gillam not inviting the claimant to the Christmas lunch with anything to do with her Case No: 2301222/2023 2303619/2023 67 race, her sex or her having done a protected act. The reason why Mr Gillam did not invite her was that this was a lunch for his project team which the claimant was not in. He did invite Ms Joseph, who was the overall head of the Asset Management Team (who herself is a Black woman, albeit one who had not done protected acts). We do not uphold this claim. The dismissal

[279]The complaints relating to the dismissal are unfair dismissal LOI 2, direct race discrimination (3.2.25 to 3.3.32) acts which are also claimed to be race-related harassment (4.2.1), direct sex discrimination (5.3.1), sex-related harassment (6.2.1), victimisation (7.4). The selection of the claimant’s post for redundancy is also said to be an act of victimisation (7.4.9).

[280]Our findings on the dismissal are extensive and are from paragraph 111 to 159 (including Polkey). The claimant’s Equality Act 2010 claims in relation to dismissal are, effectively, embedded within the issues we are considering for her unfair dismissal claim. Our conclusions will therefore follow the framework of the issues we are considering for the unfair dismissal claim with conclusions being made on relevant Equality Act 2010 claims as we are going through this. Genuine redundancy situation

[281]As is not infrequent with certain organisations, the respondent appears to undergo regular restructures. The restructure we are concerned with in this case followed a merger with Catalyst and led to 29 different restructures within directorates across the organisation (paragraph 111). The restructure within the Asset Management Team affected 67 people, and no doubt more were affected in the wider organisation.

[282]We are satisfied that there was a genuine business need behind the restructure, and that the proposed structure would implement efficiencies (paragraphs 114 to 115). One particular inefficiency that the restructure would address was, essentially the existence of a stand-alone communications team with a communications manager. In the Catalyst model the CLCs were embedded within the project teams. Ms Joseph’s view that the existing structure led to disagreements and inefficient processes in many ways is entirely borne out by what happened in the workplace between 2021 and early 2023.

[283]The suggestion that the redundancy exercise was a “sham” in order to get the claimant out of the organisation is rejected. The proposed restructure, in particular involving the deletion of the Senior Communications Manager role, has a solid rationale supported by evidence. There was a genuine redundancy situation. Case No: 2301222/2023 2303619/2023 68

[284]The claimant claims that the identification of her role as one that did not assimilate into or match into a role in the new structure was race and sex discrimination and harassment and victimisation (3.2.25) and that the selection of her post for redundancy was an act of victimisation (7.4.9).

[285]There is nothing from which we could conclude that the identification of the claimant’s role as potentially redundant (one of four so identified), with no assimilation route or match into the new structure, was because of or related to sex, race or protected acts.

[286]If we are wrong on this and the burden shifts, we turn to the reason why the role was identified as potentially redundant with no match in the new structure. The respondent has satisfied us that the reason why this role was identified as potentially redundant with no match in the new structure was because it was not a role that existed in the Catalyst structure, the CLCs managed by the claimant under the old structure would be assigned to project teams in the new structure meaning a stand-alone communications team was not needed, and that the new model would achieve efficiencies which were plainly needed based on the fact that the old structure had not worked effectively. All of this was in no sense related to or because of sex, race or protected acts.

[287]The complaints relating to the acts at 3.2.25 and 7.4.9 are not well founded. Adequate warning of redundancies and reasonable consultation

[288]They claimant was told that day restructure was in contemplation back in June 2022. However, this was firmed up when Mr Evans conducted a directorate wide meeting on 2 February 2023 (paragraph 119). Ms Joseph telephoned the claimant on 7 February 2023 as she was off sick, to let her know about the proposed restructure and how this would impact the claimant’s role.

[289]The consultation period ran for 45 days between 2 February 2023 to 18 March 2023. We have set out our findings on consultation between paragraph 121 and 128. In particular we note that the claimant was represented by a trade union representative during the course of her consultation meetings on 16 February 2023 and 8 March 2023. The claimant was encouraged to input information outside of these designated consultation meetings also. The claimant was consulted when proposals were a formative stage, was provided with adequate information, adequate time in which to respond and any proposals put forward were given conscientious consideration by the respondent.

[290]We find that the claimant was given adequate warning and the consultation undertaken by the respondent fell within the band of reasonable responses open to a reasonable employer. Case No: 2301222/2023 2303619/2023 69 Fair selection according to fair selection criteria

[291]The criteria for selection were those set out in the Managing Change and the Redeployment Policy (paragraph 112). Ms Joseph created a new proposed structure in line with the Catalyst model. She identified roles which would exist wholly or substantially (up to 70%) in the new structure. She mapped out which roles would have an assimilation route following the provisions in the Redeployment Policy, and provisionally determined that the claimant’s role did not exist in the new structure and there was no role to which she could be assimilated to.

[292]The draft proposal was presented to the whole Asset Management Team together with its rationale. At the consultation meetings, the proposal was not presented to the claimant as a fait accompli, but a proposal on which her views were sought.

[293]As we understood the claimant’s case, she appeared to be arguing that her role should have been maintained in the new structure. We did not understand her to be saying that the assimilation was not properly carried out.

[294]It may be that her case is that there was race and sex discrimination (and possibly victimisation) in that she was not assimilated into a role whereas Mr Edwards was assimilated into his new role structure when he did not have a 70% match. As we set out at paragraph 120 above, Mr Edwards was the Senior Clerk of Works in the old structure, and he assimilated into a Senior Project Manager role in the new structure.

[295]We were taken to the role matching matrix in respect of this role [3045] which set out an 85% match, and we heard unchallenged evidence from Ms Joseph that Mr Edwards “more than matched” the new role which satisfied us that he matched the new role. Mr Edwards is not an apt comparator. He is a white man who had not done protected acts. He was matched into a new role because he more than demonstrated a 70% match under the Redeployment Policy. In comparison, there was no role in the new structure (for reasons explained above) to which the claimant could be matched. We cannot see how any discrimination, harassment based on sex or race or victimisation is made out by the claimant.

[296]There were vacancies in the proposed new structure for a Projects Manager role and a Senior Projects Manager role. The claimant’s case is that she was directly discriminated against because of her race and sex, that she was harassed for reasons related to her race and sex and victimised by not being considered for a vacant role (3.3.26). She similarly claims the same discrimination harassment and victimisation in not being offered training to assist with being matched to vacant roles (3.3.27 ). Again, she claims that she was similarly discriminated against, harassed and victimised by not being given an opportunity to apply for a Senior Project Manager role (3.3.28, and leaving aside for the moment the CCBP Case No: 2301222/2023 2303619/2023 70 role). Finally, she claims similar discrimination, harassment and victimisation in that she was not considered for a vacant Senior Projects Manager role (3.3.29).

[297]As we have set out at paragraphs 124 to 126 above, these roles were discussed at both the claimant’s consultation meetings. She was advised that these were technical roles, and we have found as a fact that they were technical roles for which the claimant did not have the relevant professional qualifications and experience. The claimant sought to persuade us that her experience as a Senior Communications Manager meant that she looked at snagging and dealt with residents’ complaints about substandard work carried out by contractors meant that she did have relevant experience. We did not accept his evidence. The two project managers roles required technical qualifications which the claimant did not have and/or “management experience or equivalent in managing construction projects in Investment Repairs and Maintenance”. The claimant did not have experience managing construction projects.

[298]As the claimant simply did not have the essential requirements for this role, it would not have been appropriate to match into this role even on a trial basis. There is no training within an appropriate period that could have brought her up to the required level of having managed construction contracts or having technical qualifications. Furthermore, as we have set out above, the claimant was provided with job descriptions of both the Project Manager and the Senior Projects Manager roles and she did not apply for them.

[299]There is nothing from which we could conclude that the fact the claimant was not considered for these roles, was not offered any training and was not given a trial period in them had anything to do with her race, her sex with the fact that she had done protected act. It is factually wrong to say she was not given an opportunity to apply for these roles – she was given such an opportunity and she did not apply. The reason why she was not considered to these roles, given training or a trial period in them was that they were technical roles and she did not have the qualifications or experience to do them. She was given the opportunity to apply for them but did not do so. The burden does not shift, but in any event we are satisfied that the respondent’s approach was in no sense tainted by discrimination, harassment or victimisation.

[300]The discrimination, harassment and victimisation claims based on the acts in 3.3.26, 3.3.27, 3.3.28 (excepting the CCBP role for the moment) and 3.3.29 are not well founded.

[301]In respect of the unfair dismissal claim, we do not find that the selection criteria or the manner in which they were followed fell outside of the range of reasonable responses open to a reasonable employer. Case No: 2301222/2023 2303619/2023 71 Alternative employment

[302]We have dealt with a significant amount of this element in the section above. In respect of the Projects manager and Senior Projects manager roles we have found that the way the respondent went about things was not unfair and did not amount to direct discrimination or harassment because of or related to race or sex, and was not victimisation.

[303]We turn to the CCBP role as part of our consideration of alternative employment. Our findings relevant to this are at paragraphs 133 to 150 above.

[304]Our findings of fact and conclusions so far make clear, if it has not been stated explicitly, that, broadly speaking, it would not be surprising if the respondent viewed the claimant as something of a “problem” employee. There are a number of factors which might support such a view. She had been the subject of formal and informal complaints and grievances by colleagues. She had made a number of complaints and formal grievances herself, and appealed the outcomes. She was very much at the centre of an external investigation into dysfunctional working relationships within the Investment Team. An examination of the substance of complaints against her, the verbatim transcripts of various meetings and the content of emails might suggest that the claimant often expressed herself in a way which others find to be antagonistic. Our industrial experience suggests that such an employee would generally have something of a profile within an employer’s HR department and often be somewhere on the radar of senior management.

[305]We have accepted that Ms Joseph did not set up a sham restructure. There were sound business reasons for restructuring and, in particular for identifying the claimant’s role as potentially redundant. This was not a restructure designed to get rid of the claimant.

[306]There are a number of features of the handling of the CCBP role and the imposition of a PILON which made us examine very closely whether, having initiated a bone fide restructure, the opportunity was taken to lose a “problem” employee within the restructure.

[307]We have found that there would have been some sort of knowledge within the HR Department from the end of February or early March that a Communications role (the CCBP role) was likely to be vacant and that the claimant’s Communications role was proposed as redundant. The fact that both roles had Communications in them should have flagged up at least the possibility that the CCBP role was one that might be explored as being suitable alternative employment. It appeared to be on the same grade and same salary as the claimant’s role. Ms Atinmo herself agreed that the job description of the CCBP role read like a generalist communications role, rather than a more specialised corporate role. However, assessments of Case No: 2301222/2023 2303619/2023 72 assimilation and suitable alternative employment begin with the job description.

[308]The initial proposal made in the meeting after 3 April 2023 was for the claimant’s redundancy to take effect on 7 April 2023 and for her to be placed on gardening leave until then. It was only after the claimant’s protestations that a further week was given to her followed by PILON. The claimant was not given a vast amount of time to indicate an interest in this role, and would have been given even less had she not protested.

[309]We then note the fact that the claimant’s clear indication of being at risk of redundancy in her application for the CCBP role was not picked up.

[310]We have also found some difficulty in accepting the respondent’s rationale for implementing a PILON. At the first consultation meeting on 16 February 2023 the claimant was told that she would be required to work her notice (paragraph 124 above). While we accept Ms Joseph’s evidence (paragraph 134) that there was no work for the claimant to do as the restructure began to be implemented, we cannot see how this obliges the employer to pay in lieu of notice rather than simply allowing garden leave. Garden leave would preserve the contract and allow the employee to remain employed and continue to look for and be considered for alternative employment. Similarly, Ms Morris’s evidence (paragraph 134) that she did not want the claimant’s disenfranchisement negatively to impact colleagues only goes to the decision to impose garden leave, and not to impose PILON. There simply does not appear to be a compelling rationale not to allow the claimant to work her notice, in contrast to what she was told in her first consultation meeting and in the face of her firm indication that she wanted to remain employed.

[311]Putting all this together, we find that the explanation that best fits the facts is that the respondent wanted to minimise the claimant’s opportunities to find alternative employment during the course of the implementation of the restructure. It did not in March to give the claimant an opportunity to demonstrate that she had the knowledge, qualifications, level of seniority, skills and experience required to undertake the CCBP role as suitable alternative employment as set out in the Redeployment Policy (see paragraph 112b) above). It also imposed a PILON for reasons not readily explained, which minimised her opportunity to find a suitable alternative work during the course of her notice.

[312]In the circumstances we considered that the efforts made to find alternative employment fell outside the range of reasonable responses open to a reasonable employer. We find that the dismissal was unfair for that reason. This claim was not outside the time limits.

[313]The claimant asserts that not being job matched to the CCBP role in April 2023 (3.3.30) and being prevented from working her notice period (3.3.31) were acts of direct sex and race discrimination, sex and race -related harassment and victimisation. Case No: 2301222/2023 2303619/2023 73

[314]The claimant appears to rely on the comparator who was successful in getting the CCBP role for the purposes of her discrimination claims. This person was a white woman. Our conclusions above are that their was a collective failure to join the dots to put the claimant forward for consideration for the CCBP job. It is difficult to pin down who is responsible. Ms Atinmo took a decision not to shortlist the claimant in April 2023. She is a Black woman, though we remind ourselves that this does not mean as a matter of law that she cannot have discriminated against the claimant. It is, however, one of the factors which we have regard to when attempting to put ourselves into the mind of the alleged discriminator.

[315]In respect of possible failings in HR and the decision of Ms Atinmo, there is nothing from which we could conclude that the claimant’s sex and race had anything to do with her not being job matched to the CCBP role. In terms of the comparator evidence, we were persuaded by Ms Atinmo’s evidence that the successful candidate had decades long experience in corporate communications and was a strong candidate for the role. We also accept her evidence that, while there was some evidence of some comms type work in the claimant’s application, it was clear that she had more tenant liaison experience rather than corporate communications. We note that the application was a “blind” one, albeit that we find that it would have been obvious to Ms Atinmo that the applicant was the claimant. However, even if the burden were to shift, Ms Atinmo has satisfied us that the reason she did not shortlist the claimant was based on a dispassionate assessment of her application, and that her decision was in no sense related to or because of the claimant’s race or sex.

[316]In respect of the more collective failure to put the claimant forward for consideration by HR, there is nothing from which we could conclude that this was motivated by sex or race. The burden does not shift. If it does shift, the explanation that best fits the facts is that the reason why HR were not proactive in putting the claimant forward was because of a strong, and evidence-based perception of her as a “problematic” employee. Part of the evidence for this is set out at paragraph 134 above in relation to the garden leave issue. Ms Morris articulated a sense that the claimant was “disenfranchised with Peabody” and the respondent did not want her negativity to impact others. She goes on to say that, in respect of the decision to place the claimant on garden leave, that this was not related to race sex or age (sic). We conclude that this provides something of a glimpse into a collective perception of the claimant as problematic. We do not find that the burden shifts to the respondent in respect of this issue, but if it did we are satisfied that the reason why she was not put forward was in no sense because of or related to her race or sex, and was because she was seen as a problematic or difficult employee.

[317]This brings us to victimisation. As we have set out above, we find that there were a number of reasons why the claimant was perceived as difficult or problematic or “disenfranchised”. One of the possible ways in Case No: 2301222/2023 2303619/2023 74 which there was a perception of her being difficult or disenfranchised was because she had made a number of complaints. Within some of these complaints there were protected acts. How specific complaints within her grievances might be causative of a collective failure to put forward for the CCBP role is not easy to determine. However, our finding that there was not an appetite to keep her in the workplace because of a perception that she was problematic, difficult or disenfranchised does raise facts from which we could conclude in the absence of an explanation but this was because she had done protected acts. We therefore conclude that the burden shifts on the issue victimisation to the respondent to prove that it did not victimise her.

[318]We conclude that the respondent has not discharged this burden. Ms Joseph gave evidence that the restructure was not initiated as a means of getting out a problem employee and that there were compelling reasons identifying her role as redundant. We accepted this evidence. We have found, however, that the restructure subsequently presented an opportunity not to keep her in employment, which the respondent took. It fell short on the issue of finding alternative employment. For understandable reasons, based on the way the respondent presented its case, the respondent did not give evidence that any perception of the claimant as being difficult was not in any sense to do with the fact that she had complained of discrimination.

[319]We therefore uphold the complaint of victimisation in respect of the acts at 3.3.30 (not job matching the claimant to the CCBP role).

[320]In terms of the complaint at 3.3.31 of being prevented from working her notice period despite request, the claimant cites the comparator Ms Doherty, who was made redundant from her role in the Landscape Team. We accept the evidence that Ms Joseph gave that the reason why Ms Doherty was not immediately placed on garden leave was that she was required to finish a particular project. Once she finished that she was placed on garden leave. We have not found the evidence relating to Ms Doherty helpful to the claimant in establishing a difference in treatment based on race. We also note that the decision-maker in respect of this was Ms Joseph there is nothing from which we could conclude that the decision not to allow the claimant to work her notice period was in any sense related to or because of the claimant’s race or sex.

[321]If the burden did shift on this complaint, the respondent has proved that this decision was in no sense because of or related to the claimant’s race or sex. Again, we find the reason why the claimant was not allowed to work her notice was because she was perceived as a difficult employee, and not allowing her to work her notice would reduce the chances of her getting alternative employment.

[322]As with the complaint under 3.3.30, while we have found that there is nothing from which we could conclude the decision was in any way related to race or sex, it does call for an explanation from the respondent Case No: 2301222/2023 2303619/2023 75 in respect of victimisation. There are facts from which we could conclude in the absence of an explanation from the respondent that her having made complaints of discrimination may have been a factor in the perception of her which led the respondent not to allow her to work her notice. Because of the way the respondent ran its case, the respondent has not provided such an explanation.

[323]We uphold the complaint of victimisation of the acts at 3.3.31 not allowing the claimant to work her notice. These complaints are not outside the time limits. Giving the claimant wrong information about the Employee Assistance Program 3.3.32

[324]Our findings on this matter are at paragraphs 135 to 136 and 140. We have already made findings of fact that Ms Morris provided the name of the provider which had changed two days previously and which was still on a template letter. We have found this was an entirely innocent mistake. There is nothing from which we could conclude that the claimant’s race, sex or her having done protected acts had anything to do with this whatsoever. The reason why Ms Morris provided this information was because of a genuine error. We do not uphold these complaints. Polkey and Devis v Atkins

[325]We have concluded that the claimant was unfairly dismissed because the efforts made to find alternative employment fell outside the range of reasonable responses. We have also upheld two complaints of victimisation also in relation to the efforts to find alternative employment.

[326]We have made findings of fact about data breaches at paragraphs 158 to 160.

[327]The tribunal is seeing more and more examples of covert recordings being relied on in tribunal proceedings. That said, the scale of covert recording we have seen in this case is of an altogether different order from what is generally seen in the tribunal.

[328]We have regard to the observations of the EAT in Phoenix House Ltd v Stockman (No.2)

[2019] IRLR 960

: ''We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as [the employer's counsel] Case No: 2301222/2023 2303619/2023 76 recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee's blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change.''

[329]We do not accept an argument that the claimant was justified in making these recordings because she needed to protect herself. The sheer extent of the recordings and the fact that she recorded managers, colleagues (even those in different parts of the organisation), contractors and tenants militates against her being “confused and vulnerable employee seeking to keep a record or guard against misrepresentation”. We do not see this as a rare case of justifying any of the recordings that we were referred to. We observed that Mr Crow felt during the meeting of 15 October 2021 that the claimant was trying to “set him up” and that he directly asked her whether she was recording the meeting. Her response was a lie.

[330]We have no hesitation in concluding that the claimant’s campaign (and we do not consider that using such a word is hyperbole) of covert recording lies at the top of the scale of blameworthiness. Such actions are conduct which totally undermines the relationship of trust and confidence between employer and employee. These data breaches alone justify summary dismissal.

[331]However, the claimant’s data breaches do not end there. The claimant did not challenge Ms Bennett’s evidence that the claimant had downloaded Excel spreadsheets containing confidential data relating to hundreds of residents. Two of these residents had reported the issue to the ICO and the respondent had been obliged to self-report.

[332]The claimant also did not challenge Ms Bennett’s evidence that an employee had been dismissed for a data breach regarded as less serious than those committed by the claimant.

[333]We find that this data breach alone is conduct which undermines the relationship of trust and confidence between employer and employee. Case No: 2301222/2023 2303619/2023 77

[334]We find that the claimant was guilty of gross misconduct meriting summary dismissal whilst employed by the respondent. It would not be just and equitable to award the claimant any compensatory award for unfair dismissal.

Remedy

[335]We conducted a liability only hearing, subject to hearing argument about Polkey and what was best characterised as a Devis v Atkins argument. The tribunal has upheld two victimisation complaints in relation to the finding of alternative employment. The tribunal did not hear argument on the issue of financial loss in relation to the victimisation claims which we upheld.

[336]We have found that the claimant committed gross misconduct during the course of her employment which would have merited summary dismissal. The parties may wish to reflect on the legal principles set out in the case of Chagger v Abbey National plc

[2010] ICR 397

if there are to be any discussions between the parties about remedy. This is a case where the Court of Appeal held that when deciding what financial loss to award an employee dismissed for a discriminatory reason, it is open to the tribunal to factor in the fact that the employee would have been dismissed in any event for a non-discriminatory reason.

[337]If the parties fail to agree on remedy, they are to write into the tribunal within 28 days from when this judgment is sent to the parties to request the listing of a remedy hearing.