Employment Judge Truscott KCIn person for claimantMr A Bershadski (instructed by Counsel) for respondentDate 28 July 2024
REASONS
[1]This Preliminary Hearing was listed at the request of the claimant as:1.1 The claimant sought specific disclosure of certain documents. The respondent has responded to those requests in a detailed letter dated 16 January 2023.1.2 The claimant sought an anonymity order.1.3 The claimant sought unspecified orders regarding what she says is late exchange of witness evidence by the Respondent.1.4 The claimant sought to add an additional respondent.1.5 The claimant sought an order for a cast list.[2]The Tribunal received submissions from the claimant and the respondent. A bundle of documents running to 711 pages was provided to the Tribunal but [parties were agreed that it was not intended that it should be referred to at this hearing.[3]In relation to the anonymity order, the claimant set out her position in an email to the Tribunal dated 11 January which she summarised in an email dated 7 March, as follows:[1]Her work involves direct and indirect contact with the public. Some work duties can involve members of the public who are involved in criminal activity.[2]She has additional need given her mobility issues, which affect her daily activities.[3]She has recently been subject to another breach of her own private and confidential information by the respondent. Although she spoke with the respondent emphasising objections to the breach, the respondent did not protect her from the consequences of the breach and victimisation.[4]She emphasised that she had a right to individual privacy. She is a public facing civil servant. She made a number of complaints that the respondent had breached her confidentiality. She sought that her name and all personal information be withheld from all areas of the public domain, from all publishing platforms and from all online documents in England, Wales, Northern Ireland, Scotland and the world. The respondent said that it had redacted the names of any person involved in its enquiries. Anonymity Order Relevant Legal Framework[5]When assessing an application under SI 2013/1237 Sch 1 r 50(3)(b), as with all orders under r 50, is the strong interest in open justice and the limited power to permit exceptions from this. In British Broadcasting Corporation v. Roden [2015] IRLR 627 EAT, Simler J (as she then was) set aside the anonymity order. Her starting point was art 10 and the principle of open justice, which she said is of 'paramount importance and derogations from it can only be justified when strictly necessary as measured to secure the proper administration of justice' (at [22]). Further, at [50] she stated: ''The default position in the public interest is that judgments of tribunals should be published in full, including the names of the parties. That principle promotes confidence in the administration of justice and the rule of law. The reporting of court proceedings in full without restriction is a particularly important aspect of the principle and withholding a party's name is an obvious derogation from it, requiring cogent justification for its restriction. … The mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment, as the authorities make clear.''[6]Whilst 'the default position is and should be that it is in the public interest that the full decisions of courts and tribunals, including the names of the parties, should be published' (see Underhill J in F v. G [2012] ICR 246 at [49]), the case law reflects the increasing protection given to individuals' art 8 Convention right to a personal and private life which may justify an Anonymity Order. Anonymity Orders have assumed particular importance since the advent of the online judgment database. The result of this fully searchable online repository, coupled with the ability to disseminate information rapidly through social media channels, is that even if traditional media reporting on a case is proscribed by an Restricted Reporting Order, without anonymisation, it may be possible for an individual's involvement in a case to be quickly identified and publicised (see A v. Secretary of State for Justice [2019] IRLR 108, in which the EAT overturned the tribunal's decision to revoke an Anonymity Order and replace it with an RRO, considering this to provide insufficient protection). On the other hand, in A v. X [2019] IRLR 620, the EAT, at [70], having allowed an appeal against the tribunal's refusal to grant an RRO, did not allow an associated ground of appeal against the tribunal's refusal to grant an Anonymity Order. Soole J declined to accept that concerns that there would be social media breaches of the RRO compelled the tribunal to order anonymity. As various cases have shown, the process of balancing a Convention right in favour of an Anonymity Order (usually the right to a personal and private life under art 8) with a Convention right against an Anonymity Order (usually art 10, the right of freedom of expression including the right of the free press) may be a difficult exercise. Disclosure[7]In an email dated 7 January, the claimant set out the documents which she sought to be disclosed. A “streamlined version was provided on 7 March to which the respondent had not had an opportunity to respond. She also complained about the extent of redactions on some of the pages of the hearing bundle. Witness statements[8]The date for exchange of witness statements was 6 March 2023. The respondent sent five witness statements to the claimant on this date but the passwords were sent the following morning. The claimant has expressed a concern that substantive changes were made to the witness statements following receipt of the claimant’s statement. The respondent confirmed that this is not the case; whilst the claimant has correctly pointed out that the file sizes of the witness statements changed marginally between 6 and 7 March 2023, this was as a result of minor typographical changes to the headings and/or changes to the security settings of the documents. No substantive changes were made. Adding a respondent.[9]In a standard agenda form which was provided for this hearing, although it is not clear why, in response to one of the questions, the claiamnt had said she wishes to add a respondent. Cast list The claimant sought an order for a cast list. The Tribunal explained that this might be useful to the main hearing but would not be ordered at this stage. CONCLUSION Anonymity
CONCLUSION
[10]There was no substantial basis advanced by the claimant for the anonymity order. Most of her complaints were about the actions of the respondent. In relation to her involvement with investigations, standing the redactions by the respondent, there was no substantial reason for departure from the normal rule. The interest of open justice must be satisfied. The application is refused Disclosure[11]The Tribunal did not adjudicate the issue of specific disclosure. The Tribunal permitted the claimant time at the hearing to go through what she wanted in order that the respondent could properly understand the request. The respondent is to give consideration to the request. Witness statements[12]As the claimant now has the witness statements, they will be relied upon at the final hearing. No further order is necessary. The application is refused. Adding a respondent[13]The Tribunal explained that the claimant must apply to add a respondent and provide reasons. The Tribunal outlined the considerations involved and indicated that there appeared to be no grounds to do so at this stage. Cast list[14]The Tribunal explained that there was no need for an order at this stage.
Introduction
[1]The Claimant brought proceedings by way of an originating application received by the Employment Tribunal on 6th June 2021. The Claimant complained of victimisation. In her claim form she says that the protected characteristic she is referring to is sex-woman.[2]The Claimant represents herself and has corresponded confidently with the Tribunal from her work i.e. HMRC email address.[3]The issues were defined by EJ Dyal at a case management hearing on 28th October 2022 and the matter set down for hearing commencing on 29th August 2023. The issues will be set out below as they were agreed before EJ Dyal on 28th October 2022.[4]On 9th November 2022, the Claimant stated in the course of her correspondence that she is not in a position to post anything because of her mobility.[5]On 5th January 2023, the Claimant requested that disclosure is not made to her by means of Egress, stating that she is often afflicted with connection problems. This is a slightly surprising state of affairs as she was working from home at the relevant time.[6]On 15th March 2023, there was a hearing before EJ Truscott KC which the Claimant joined by phone and, at which, the Tribunal dismissed her application for an anonymity order.[7]On 10th April 2023, the Claimant requested that the final hearing be listed by CVP, that she be permitted to read out her own witness statement and that she be given additional time and breaks. By email of 24th May 2023, she complained that her HMRC IT access was about to be ended.[8]The Claimant then called the Employment Tribunal on 1st June 2023 to say that she had been dismissed from HMRC and that she was removed from their IT system as of 31st May. There were follow-up phone calls from the Claimant in which she said that she can’t accept any documents by post because of her mobility issues, that she does not have access to a personal computer nor a personal phone and could only participate in a CVP hearing.[9]The Tribunal consulted the parties about staying the proceedings. On 16th June 2023, the Claimant sent a letter to the Tribunal (providing her postcode) complaining about the Respondent disconnecting her access to IT services. As of 29th June 2023, the Respondents told the Tribunal that emails to the Claimant’s email address were bouncing back.[10]On 7th July 2023 the Respondents asked that the Tribunal not stay the claim. They informed the tribunal that the Claimant had been given 13 weeks’ notice prior to her dismissal. It stated that she had not been required to return her work computer and was offered assistance in setting up a personal email address and moving her data before her last day – which was 31st May 2023. There is some confusion as to whether she might, after all, have to return her laptop but, in any event, she has not done so. From this it can be concluded that she had her own laptop at all material times.[11]The Respondent informed the Tribunal that, at that stage, all the directions required to make a final hearing effective had been complied with – save that the Tribunal had enjoined the parties to try and agree a chronology and cast list and this had not been agreed.[12]From 3rd August 2023, the Tribunal felt it had no alternative but to correspond with the Claimant at her home address. Acting Regional Employment Judge Khalil wrote on 24th August 2023 to say he could not understand why postal service was not adequate and to warn that if a party was not ready for the trial because they had not complied with orders of the Court or was not otherwise actively pursuing/defending the claim then the claim or response could be struck out.[13]The matter was duly listed for final hearing on 29th August 2023 and the case was called on for hearing at 10.00 but the Claimant was not present. The Tribunal waited until 11.00 and called the case on again. When the Claimant was still not present, the Tribunal deliberated as to what to do. Preliminary issue[14]There was no application by the Claimant to postpone the hearing. There was no proper explanation by the Claimant for her absence. The Tribunal was mindful of the problems of social exclusion, the overriding objective and, above all, the interests of justice. The Tribunal wanted to be fair to the Claimant, to the Respondents and to other cases who were waiting their turn to be listed for final hearing.[15]The Tribunal was concerned that the Claimant had not engaged with the issue of how these proceedings were to be concluded and her claim resolved. The Tribunal had corresponded with the Claimant as had the Respondent. However, the Claimant did not assist the Tribunal to further the overriding objective nor co-operate with either the Respondent or the Tribunal to make this hearing effective.[16]The Tribunal decided to proceed with the hearing. It concluded that it could resolve the matter fairly and justly based on the material and witnesses it had. It would have been highly desirable to have the Claimant present but it did not seem reasonable to postpone the hearing in the absence of an application to do so, nor would this be compatible with the objectives in the rules of avoiding delay and saving expense. In circumstances in which the respondents had produced a bundle of evidence and appeared with their witnesses – it did not seem reasonable to say that the final hearing should take place on another day once the Respondents witnesses had attended Tribunal for the Trial.[17]Unfortunately this reserved reasoned Judgment has been the subject of significant delay for health reasons– for which apologies are proffered.
The Issues
[18]The issues were identified by EJ Dyal on 28th October 2022 but they are set out here – so that the parties/ reader does not have to refer to another document.[19]The claim is one of unlawful victimisation pursuant to S.27 of the Equality Act 2010.[20]Specifically, the Tribunal identified two questions and a number of matters under each question that are relied upon.20.1 Did the Claimant do a protected act? She relies upon the following matters:a. In August 2019, in a telephone call Mr Woodward said to the Claimant “I previously made similar remarks). The Claimant said, in response, words to the effect of “stop doing that” and “I’ve told you if you want to discuss work with me I’ll meet you at an HMRC office”;b. In September 2019, in [an] email to Mr Winterbourn, the Claimant complained about Mr Woodward’s conduct;20.2 Was the Claimant subjected to a detriment and if so was that because of any protected act? The Claimant relies upon the following: a. In January 2020, [payment of] an expenses claim was withheld for 2 weeks; without warning or consultation and without any right of appeal. The emailc. In March 2020, the Claimant raised a grievance about the change in her job role. She did not hear anything until she contacted HR and discovered that her grievance had not been investigated. The grievance investigation matters that were not part of her grievance, removed the term harassment
The Law
[21]The Court is concerned with Equality Act 2010, section 27 which states:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith[22]The EHRC Code of Practice on Employment at 9.3 specifies that, “victimisation must be linked to a ‘protected act’ ... Making an allegation or doing something related to the Act does not have to involve an explicit reference to the legislation.”[23]The Code goes on to give guidance about the meaning of detriment: “9.8 ‘Detriment’ in the context of victimisation is not defined by the Act and could take many forms. Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards.”[24]On the issue of what amounted to a detriment, the Tribunal concluded that any treatment that a reasonable worker might think was to their detriment will count (even if the tribunal itself might take a different view), see Warburton v Chief Constable of Northamptonshire Police [2022] EAT 42, [2022] ICR 925.[25]The Tribunal had regard to the burden of proof provided in Equality Act 2010, section 136 of the 2010 Act, which states:(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. …”[26]The interpretation of the above was confirmed in the unanimous Judgment of the Supreme Court in Efobi v Royal Mail Group Ltd [2021] ICR 1263; [2021] UKSC 33.[27]The Tribunal note that, in order for an employee to be able to show that they made an allegation that someone had contravened the Act (within s 27(2)(d)), it must be clear from the words used and their context that such an allegation is being made. For instance, a statement in a grievance that certain conduct “may be discriminatory” did not amount to protected act (Chalmers v Airpoint Ltd and others UKEAT/0031/19).[28]If what is alleged would not be unlawful under the relevant legislation there is no protected act. For example, in Waters v Metropolitan Police Comr [1997] IRLR 589.[29]The employer must subject the employee to a detriment “because” the latter has performed a protected act. The language used in EqA 2010, s 27 matches that in the definition of direct discrimination at s 13. It would seem to follow, therefore, that, the protected act has to be an effective and substantial cause of employer's detrimental actions but does not have to be the principal cause.[30]The doing of the protected act does not have to be the sole or even the principal cause: it is enough if it was a significant part of the respondent’s reason for doing the act complained of. This proposition of law is to be found in a multiplicity of authorities – including Page v Lord Chancellor [2021] ICR 912 at 922 para [30].[31]Our attention was drawn to St Helens Metropolitan Borough Council v Derbyshire and others 2007 ICR 841 in legal argument. Some caution is attached to this – just because it precedes the enactment of the Equality Act 2010. The issue is what may amount to a detriment with particular reference to the speech of Lord Neuberger “66 Secondly, under the victimisation provisions, it is primarily from the perspective of the alleged victim that one determines the question whether or not any 'detriment' (in this case, in s.6(2)(b) of the 1975 Act) has been suffered. However, the reasoning in Khan suggests that the question whether a particular act can be said to amount to victimisation must be judged from the point of view of the alleged discriminator. Of course, the words 'by reason that' require one to consider why the employer has taken the particular act (in this case the sending of the two letters) and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused detriment, one must view the issue from the point of view of the alleged victim. 67 In that connection, Brightman LJ said in Ministry of Defence v Jeremiah [1979] IRLR 436 at 440 that 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment'. That observation was cited with apparent approval by Lord Hoffmann in Khan at paragraph 53. More recently it has been cited with approved in your Lordships' House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. At paragraph 35, my noble and learned friend, Lord Hope of Craighead, after referring to the observation and describing the test as being one of 'materiality', also said that 'an unjustified sense of grievance cannot amount to “detriment”'. In the same case, at paragraph 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added 'if the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice'. 68 In my judgment, a more satisfactory conclusion, which in practice would almost always involve identical considerations, and produce a result identical, to that in Khan, involves focusing on the word 'detriment' rather than on the words 'by reason that'. If, in the course of equal pay proceedings, the employer's solicitor were to write to the employee's solicitor setting out, in appropriately measured and accurate terms, the financial or employment consequences of the claim succeeding, or the risks to the employee if the claim fails, or terms of settlement which are unattractive to the employee, I do not see how any distress thereby induced in the employee could be said to constitute 'detriment' for the purposes of ss.4 and 6 of the 1975 Act, as it would not satisfy the test as formulated by Brightman LJ in Jeremiah, as considered and approved in your Lordships' House. An alleged victim cannot establish 'detriment' merely by showing that she had suffered mental distress: before she could succeed, it would have to be objectively reasonable in all the circumstances. The bringing of an equal pay claim, however strong the claim may be, carries with it, like any other litigation, inevitable distress and worry. Distress and worry which may be induced by the employer's honest and reasonable conduct in the course of his defence or in the conduct of any settlement negotiations, cannot (save, possibly, in the most unusual circumstances) constitute 'detriment' for the purposes of ss.4 and 6 of the 1975 Act. 69 As already mentioned, it seems to me that in practice, the 'honest and reasonable' test suggested by Lord Nicholls in paragraph 31 of Khan would, at least in any case I can conceive of, be very likely to yield precisely the same result as the approach, having had the benefit of argument in support from Mr Hendy and Ms Gill focusing on the word 'detriment' in the present appeal, I would prefer. It is hard to imagine circumstances where an 'honest and reasonable' action by an employer, in the context or conduct of an employee's equal pay claim, could lead to 'detriment', as that term has been considered and explained in the cases to which I referred, on the part of the employee. “ Evidence[32]The Tribunal had the benefit of an agreed bundle of evidence – which it had read by the time of Judgment.[33]The Tribunal heard sworn evidence from the Claimant’s front line manager, Mr Andrew Woodward, Mr Woodward’s line manager, the Business Unit Head, Mr Simon Winterbourn, Gail Filby, Vernon Sanderson and Rhiannon Baynham.[34]As the Claimant was not present (either in person or online), the Tribunal played particularly close attention to the Claimant’s witness statement which we read twice. It contains a number of component parts but is 19 pages in total. The last two pages are a cast list dated November 2022. There is a schedule of loss and an impact statement of November 2022 – which consists of four pages. The first page of the statement consists of an introduction. The witness statement – as concerns liability – is from page 2 to 13. It is dated 6th March 2023 and has the benefit of an electronic signature. The significance is that it is produced after the case management hearing before EJ Dyal when the issues were defined. The statement is very well organised. It clearly sets out the section which deals with protected acts (paragraphs 2-7 – albeit it actually encompasses additional paragraphs 8-10) and separates this out from the acts of detriment. Even though the parties agreed before EJ Dyal that there were five specific detriments that the Claimant relied upon – the Claimant’s witness statement goes significantly beyond this. The Tribunal has, nonetheless, read these passages carefully – mindful that they may contain relevant background and context.[35]The Tribunal did not have an opportunity to hear the Claimant’s answers to any questions on oath. This makes it hard to attach the same weight to such evidence.[36]The Claimant’s statement makes reference to various documents in the bundle. Some of these are notes that the Claimant says that she prepared herself or emails sent to herself. The emails to third parties have the advantage that they are likely to represent the Claimant’s thinking and observations at the time that she sent them. The notes present a bit more of a challenge. The first of these is headed 29th March 2019. It says that her line manager said he was coming to her home (she uses block capitals which, by convention, would tend to denote a raised voice) but then recalls that they (seemingly rapidly) agreed to meet at Euston. The note then infers that her line manager then cancelled this hours later (this is the account given in the Claimant’s statement also). However, this is contradicted by an email from the Claimant’s line manager to her of 1st April 2029 in which he cancels the meeting at 09.19 on that day (he provides reasons for this in the body of the email). The Tribunal explored this discrepancy with the front line manager, We concluded that he did not mock up the email or otherwise falsify it but rather it is the line manager’s email that is contemporaneous and that it is the Claimant’s note that is in error.
Findings of Fact
[37]The Claimant was a long-standing civil servant, an employee of the Commissioners for His Majesty’s Revenue and Customs [HMRC], having commenced work on 18 August 2003. The Claimant was an executive officer. At the time she brought her claim she was still an employee of HMRC. She was undertaking a learning programme as an Employer Duties caseworker at Officer Grade from 2 March 2020 following a restructuring exercise which is addressed below. Prior to commencing this role she was employed at Officer Grade undertaking ad hoc research for caseworkers and assisting VAT staff with income tax enquiries in the Individuals and Small Business Compliance (ISBC) team, which formed part of the Customer Compliance Group (CCG).[38]At the relevant time, the Claimant was employed as a Grade O Officer. The Claimant was undertaking research work. She found that fulfilling. We heard no complaint about the quality of her work. However, one of the complications that arose was that this work was – by the relevant time – being undertaken by people at a lower band.[39]The Respondent is a large and sophisticated undertaking with significant (but not unlimited) resources. At relevant times, both the Claimant and her line managers all sought advice from human resources. Her managers were very keen to obtain advice frequently and follow the same closely.[40]It is relevant at this point to quote from the applicable HMRC harassment policy which governed the problem in question: “Harassment is unwanted conduct, including that of a sexual nature, related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. In cases of harassment the protected characteristics are age, sex, disability, gender reassignment, race, religion or belief and sexual orientation. Harassment can include: i. making offensive, threatening or abusive personal remarks ii. using explicit or provocative language or gestures iii. displaying or circulating inappropriate or offensive material iv. unwanted, intrusive or persistent questioning about e.g. someone's ethnic or racial origins or sexual relations v. making unwanted physical or verbal contact or advances. Complainants do not actually have to have the protected characteristic themselves. They may believe (perceive) they are being harassed because they are wrongly perceived to have a protected characteristic, or they associate with someone with a protected characteristic. An example is someone who is close friends with an openly gay colleague is regularly teased and subject to rumours and speculation about their own sexual orientation. Harassment also includes situations where the alleged conduct is not directed towards the complainant, but it has created a hostile, degrading or offensive environment. If this is the case, it should be considered whether it is reasonable for the conduct to have had that effect.[41]The Tribunal also had regard to the HMRC “raising and resolving concerns policy” which teased out the difference between formal and informal approaches and includes a commitment to timely decision-making. Background and overview[42]There is some common ground between the parties in that in September 2019, the Claimant emailed the Respondent to raise concerns about her line manager’s (Andrew Woodward’s) behaviour towards her, which she felt amounted to harassment and bullying. The Tribunal was invited to make findings about the original telephone conversation of August 2019 – which is said to be the first protected act.[43]The Claimant was invited to an informal grievance meeting on 18 November 2019 (this is said to be the occasion for a protected act), to discuss her concerns. A number of steps (which were agreed with the Claimant during the meeting) were actioned following the meeting, including the Claimant temporarily reporting directly to Mr Woodward’s line manager, Mr Winterbourne. The Respondent understood that the matter had been resolved informally.[44]Despite this temporary arrangement, the Claimant continued to correspond directly with Mr Woodward, rather than Mr Winterbourn, on day to day line management matters.[45]On 9 January 2020, the Claimant requested that Mr Woodward process an expense claim. This was subject to the Respondent’s expenses policy and procedures which provided a pathway to be followed to allow such claims to be authorised. The Respondent say that the expense claim was subsequently actioned by Mr Woodward once all the correct procedures had been complied with. This is the first complained of act of detriment.[46]At the start of 2020, as part of a business restructuring exercise within CCG, a decision was made by the Respondent to re-prioritise how it deployed resources, by ensuring that staff were re-deployed into high priority work. This was not an exercise which solely concerned the claimant – but involved a re-evaluation of all roles undertaken within the various business units within CCG. Of particular significance is the fact that there was a CCG-wide recruitment freeze and caseworker roles were considered to be a priority. This was a CCG-wide directive (the Tribunal accepting the evidence of Simon Winterbourne to that effect.[47]By way of a letter dated 7th February 2020, the Claimant was informed that her role could no longer be supported and that she would be considered for alternative roles across the CCG. This decision impacted upon other member of staff – it was not solely concerned with the Claimant. Others were moved to become caseworkers also. Aspects of this are said to constitute a detriment.[48]The Claimant was offered a caseworker role at Officer Grade as of 2nd March 2020. The Claimant was to be given additional support and training to assist her in this new role. The Claimant was to have a new line manager, Carole Addy.[49]The Claimant raised concerns over her move into this role and the fairness of the decision, This led to a review of the decision by a Grade 6 Manager. At the conclusion of the review, a decision was made to uphold the original decision and this was communicated to the Claimant on 21 February 2020.[50]On 2 March 2020, the Claimant complained about the decision to move her role and whether this was related to the fact that she had reported bullying and harassment. She also alleged that there had been inappropriate withholding of expenses. There was a delay in investigating this grievance – the Respondents saying it was unclear whether the Claimant was pursuing this complaint. This is a live issue in the case. This forms part of the Claimant’s allegation that she suffered detriment.[51]The investigation was eventually conducted into the Claimant’s allegations which took place from December 2020 until 14 April 2021 when a decision did not uphold the Claimant’s grievance. The decision maker concluded that the Claimant’s change in role was due to the business need for more caseworker resource and was not related to the reporting of bullying. She also concluded that proactive steps were taken by Mr Woodward to obtain approval to authorise the expense claim.[52]The Claimant appealed the decision on 14 April 2020. The appeal was not upheld on 24 May 2021. That outcome is in issue in this claim The protected acts a. In August 2019, in a telephone call Mr Woodward said to the Claimant “I previously made similar remarks). The Claimant said in response words to the effect of “stop doing that” and “I’ve told you if you want to discuss work with me I’ll meet you at an HMRC office.”[53]The team in which they all worked was split across two locations, Croydon, and Canary Wharf. The Claimant was the only team member who was working permanently from home – and had been doing so for a significant period but, as a result of a succession of management changes, her line manager was not able to establish why this had been authorised – i.e. was it because of a health issue? There was no evidence of a formal work from home agreement. For the Claimant’s line manager, this raised issues as to the suitability of these arrangements – most especially as a result of reported poor internet connection (the Claimant could not always be reached), security and occupational health considerations (the Claimant was said to work at her kitchen table using a hot spot from her mobile).[54]There was an abortive meeting at Euston on 1st April which her line manager had to cancel (on the morning – the Tribunal make that finding on the basis of both the oral and contemporaneous written evidence and the sheer unlikeliness that her line manager would fraudulently alter or create an email about a matter that was not even that material). By August 2019, both parties were seeking advice from HR advice. The front line manager felt he was being rebuffed by the Claimant in his desire to have a face-to-face meeting. He was concerned that he had no oversight of her working arrangement from a health and safety and wellbeing perspective as well as considerations of security and connection/connectivity.[55]The Claimant in her witness statement recalls that in August 2019, Mr Woodward told her, “I am coming to your home” and asked, “why can’t I come to your home.” She recalls that she told him to stop.[56]The Tribunal would conclude at this point, the claimant’s manager was just seeking a face to face meeting with her. His preference had been that this take place at her home as he would be able to see her working conditions for himself and it would allow him to have a dialogue with the Claimant about the multifarious matters which concerned him about the Claimant working from home – these included: Health & Safety, DSE or wellbeing issues (it was understood that the Claimant was working at a table in her home while sitting on a dining room chair), any security issues (HMRC officers are subject to enhanced confidentiality obligations under CRCA 2005) and her role in general.[57]It seems likely that the Claimant found this threatening as she had largely been left to her own devices. This difference in perspective is significant.[58]By that stage of the chronology, the Claimant had told him that she could not attend a meeting at an HMRC office. Just before the Claimant spoke to HR, she emailed her front-line manager as follows: “It is beginning to appear as if it is an interrogation to find out why I do not want a home visit. Five times of suggesting a home visit is too much, excessive. To recap: No home visits please.”[59]The Tribunal finds that the Claimant told her line manager on the phone in August 2019 words to the effect that she would not welcome a home visit and that he was to stop asking for the same. The entirety of the communication was that such a visit was unwanted.[60]The Claimant did not say, “I’ve told you if you want to discuss work with me I’ll meet you at an HMRC office”[61]The Claimant did say words to the effect of “stop.” This was a reference to the requests for a home visit.[62]The evidence from the HR notes is that it was the Claimant who was agitated and frustrated in conversation and the line manager who was concerned about the Respondent’s duty of care towards the Claimant. This was reflected in the August 2019 conversation.[63]It is striking that in this email, the Claimant does not put forward a concrete alternative venue as to where she is prepared to meet her line manager. The parties had reached stalemate. The Claimant’s line manager stopped seeking a home visit. He sought to obtain the Claimants consent for an occupational health referral.[64]The Claimant wrote two emails to herself in quick succession on 23rd August 2019 to the effect that she was being harassed and threatened at work as concerns the issue of the proposed visit to her home by her manager. She speculates that a man in her office would not be treated in this way. There is no evidence that this was reflected in any of the telephone or other conversations with the Claimant. It was just not communicated by her. b. In September 2019, in email to Mr Winterbourn, the Claimant complained about Mr Woodward’s conduct.[65]The Claimant emailed Mr Winterbourn on 9th September in which she made it very clear that she was unhappy with Mr Woodward suggesting/proposing/imposing any home visit on her. That this is the email that the Claimant relies upon is clear from her witness statement.[66]The email contained a reasonable amount of detail. It is not easy to read as it also contains an email of 23rd August in which she tells Mr Woodward not to keep asking for a home visit. It complained of unwanted actions that had been repeated by a line manager. The context makes it clear that what the Claimant did not want was a managerial visit to her workplace (which was also her home).[67]Mr Winterbourne replied on 12th September and included the following: “I do appreciate that after a couple of years of reduced contact Andrew’s approach may feel suddenly excessive and unnecessary. Regular contact and meetings is actually something which should have been done throughout and I am sorry that I wasn’t sufficiently aware to ensure that happened. My understanding is that you have subsequently indicated that you cannot now make the journey to Euston Tower, or any other HMRC office, and are not prepared to meet with Andrew either at your home or elsewhere. Is that right? As I mentioned one of the things Andrew is obliged to consider is whether your working environment at home conforms with both Health & Safety and security requirements. I appreciate the number of times you have told him that you do not want him to visit your home, but I cannot see that you’ve ever explained why. I’m sure that explaining the reason to him would help him better appreciate and assess the situation. I don’t know if you would prefer meeting with someone other than Andrew? And if so whether you would be willing for them to visit you at home, if travelling remains impossible for you? I would be more than happy to do so or there may be someone else who you would feel more comfortable with. Please let me know. Take care, Simon”[68]In response, the Claimant agreed to a meeting.[69]The Claimant met Simon Winterbourne with a note taker at Jubilee House on 18th November 2019.[70]The note reveals that this was a purposeful/constructive meeting that covered a lot of ground. The Claimant said that she had mobility issues. Mr Winterbourne proposed a whole series of supportive initiatives. He raised the fact that she might be considered disabled as a result of her mobility issues and might qualify for support with transport. He reviewed a series of questions from the adequacy of her internet connection, her working environment and security – all from a positive perspective. However, he also queried with her the concern that all the others who still did her work in the region were in the grade below and that he could not see a business need for the way she was being deployed.[71]Mr Winterbourne raised the issue of the Claimant’s relationship with her line manager. The discussion was relatively freewheeling. The Claimant did not raise any complaint of unlawful discrimination on grounds of sex. She complained of the persistence with which her line manager had sought a meeting at her home/place of work.[72]The meeting was followed by a letter from Mr Winterbourne in which he followed up the gamut of issues they had discussed in the meeting including access to work and health and safety. He wanted to see if the Applicant could still maintain her relationship with her line manager. He set out the advantages of the same while still asking: “Would you please let me have your thoughts on what would be required to form a fully productive relationship between you e.g. ground rules for telephone contact, a facilitated face to face meeting.” Detriments a. In January 2020, an expenses claim was withheld for 2 weeks;[73]The Claimant’s line manager provided the Claimant with an i-phone in a face to face meeting in Stratford in December 2019. HMRC’s IT function wanted her old Blackberry returned to them.[74]The Claimant emailed the Respondent on 9 January 2020 to say that she had posted the Blackberry back and was therefore submitting an expense in the sum of £7.40 to cover the postage.[75]The Claimant had not notified the correct person of her claim and she had to be asked for the supporting details to support her claim. She failed to produce an IT number as requested.[76]In the end, HMRC management approved the claim on pragmatic grounds.[77]The consequence of the route chosen by the Claimant to make her claim for expenses and the lack of information which she provided meant that her expenses were not paid for two weeks. without warning or consultation and without any right of appeal. The email[78]Simon Winterbourne communicated the decision about the Claimant’s new role in a letter that was sent by email and dated 7 February 2020. This was copied to Mr Woodward as her existing manager, Carol Addy as her new manager and Julie Brown as the Business Unit Head of the team which Miss Alabi was to be moved into. These were all people that were intimately involved in any change of duties by the Claimant. It cannot be that those three persons could have been kept in ignorance of such a business step.[79]The Claimant was on leave on 7th February 2020. She said she did not open the email and read the letter until the following Monday – by which time she felt that she was the 5th person to know the news – albeit the others were all holders of relevant management functions.[80]The letter sets out Simon Winterbourne’s reasons for the change of job role which was for the business reasons set out in the “Your role” section of that letter. In late 2019 all managers in the Directorate had been required to review all roles and ensure appropriate grades were undertaking as much casework as possible. Responsibility for overseeing the Regional position rested with Mrs Filby’s and so there was a discussion about all those not fully engaged on casework within the Business Unit.[81]The decision to move Miss Alabi was taken by Mr Winterbourne with the agreement of Mrs Filby and having regard to the necessity to cover work with limited resources. This inevitably involved prioritising between different streams of work.[82]The Claimant was plainly unhappy and rang HR and said that she had complained about her line manager for bullying and harassment. This coincided with the annual staff survey which revealed staff unease about bullying. This prompted the Claimant to seek a meeting with Gail Filby on 18th February 2020. However, the Claimant stressed on that occasion that the meeting was to be confidential and she did not want her allegation investigated or discussed but rather accepted as fact. The Claimant was also unhappy about her change of role. However, she was unclear what outcome she wanted and insisted on confidentiality. The Tribunal accept the evidence of Ms Filby that the Claimant never made reference to her protected characteristic of sex. Ms Filby corresponded with her but felt that the constraints imposed by the Claimant on this process meant that it wasn’t possible for her to conduct an investigation into the concerns raised by the Claimant.[83]However, Ms Filby did write to the Claimant on 21st February with a detailed review of the rationale for the change in her role – noting that she was not the only person having to undergo change. She stressed the offer of training and other support that was available to the Claimant. She noted the Claimant’s plea for confidentiality but asked that she respond to the request for her consent to an OH referral. c. In March 2020, the Claimant raised a grievance about the change in her job role. She did not hear anything until she contacted HR and discovered that her grievance had not been investigated. The grievance investigation[84]On 5 March 2020 Miss Alabi emailed Simon Winterbourne her Formal Concern about her new role. Additionally, the Claimant added a reference to her previous complaint about bullying and harassment by her line manager.[85]It is enlightening to consider the remedy that she sought:a. “restore me to my role in Specialist Construction Research; I am highly effective in terms of delivering bespoke, confidential information and evidence about individuals, company directors and businesses for Construction Teams. As always, I adhere HMRC guidance on customer data security and regulations and guidance on handling sensitive customer data;b. Continue with Reasonable Adjustment of me working from home until my mobility is restored is very useful. With HMRC Tech strategy in place, there are no boundaries and my work is paperless and always has been for years; andc. I do not want the Employer Duty Office.”[86]Simon Winterbourne responded to the Claimant the following day to say he had been in contact with Expert Advice Service because he was unclear from the guidance what he should do next.[87]On 16 March 2020 Simon Winterbourne (having received EAS advice) contacted Miss Alabi again to offer her a meeting with him or alternatively with his line manager, Mrs Filby, or someone independent. Miss Alabi said she had nothing to add to her Formal Concern.[88]Simon Winterbourne took advice again from EAS (17 March) who confirmed he could put his deliberations into an email to her.[89]Simon Winterbourne emailed Miss Alabi on 23 March 2020 confirming that his decision remained the same and offered her the opportunity to take the matter up with his manager formally. He added: “As you did not want to take the opportunity to discuss this at a meeting I consider that the matter has been dealt with informally. Should you now wish the matter to be dealt with formally please write to Filby, Gail (ISBC C&A SE) … and tell her that you do not agree with my conclusion and wish to raise the matter formally with her.”[90]In the meantime, on 19th March 2020, Ms Gail Filby set out in writing her reasoning as to why she did not uphold any complaint of bullying.[91]It is striking that the Claimant’s line managers went to a lot of trouble to seek out very detailed guidance from HR at all relevant times. This they followed. The Claimant was doing similar. The context is important. This was also a time when COVID was starting to cause dislocation/disruption to the service.[92]In November 2020 the Claimant contacted HR again to say that her concern had still not been resolved. They wrote to the Claimant to draw her attention to the previous correspondence and point out that she had not followed up the invitations to her to pursue matters beyond the responses to her complaint she had already given. They added that she had also asked the Expert Advice Service not to contact her business line any further.[93]The Claimant’s view was that if she had been content for the matter to be dealt with informally, she would have said so. This is somewhat passive. In circumstances in which you are invited in March to confirm that whether you wish to confirm your grievance further – it is somewhat extraordinary to complain in November that nothing has been done.[94]In December 2020 Rhiannon Baynham wrote to the Claimant to say that she has been appointed the independent decision maker to address the grievance. At that time, she was part of the Wealthy and Mid-sized Business Compliance (WMBC) directorate in CCG. Theresa Alabi was part of the Individual and Small Business Compliance (ISBC) directorate in CCG. Miss Alabi made it clear in correspondence that she did not wish to discuss the 9-month delay in not hearing from anyone about her Formal Concern.[95]A fact-finding meeting was eventually set for 14 January 2021 (arranged for mutual convenience). A note taker was present. The note covers 6 ½ pages of typed script. The fact- finding meeting covered both matters relating to the Formal Concern and the delay in resolving the Formal Concern.[96]Rhiannon Baynham also contacted the following to investigate the Formal Concern:a. Simon Winterbourn- a fact-finding meeting was arranged to take place on 27 January 2021. He confirmed that at the relevant time ISBC were not recruiting – hence the necessity of ensuring that each officer who was employed was working on core business. No one else in the region was undertaking the old work that the Claimant was undertaking – to that extent the Claimant’s workload was an anomaly. Rhiannon Baynham established in that meeting that the decision to change the Claimant’s role was that of Simon Winterbourn and Gail Filby.b. Gail Filby- a fact-finding meeting was arranged to take place on 18 February 2021c. Sam Mcilreavy- a fact-finding meeting was arranged to take place on 1 March 2021[97]On 17 March 2021, Rhiannon Baynham provided Miss Alabi by email with a copy of all the evidence she had gathered in relation to her Formal Concern, in order to give her an opportunity to provide comments. On 22 March 2021, Miss Alabi responded to by email of 17 March 2021 stating that ‘the evidence you have provided me confirms what my grievance, Formal Concern is all about.’[98]A Formal Concern meeting took place with the Claimant on 8 April 2021. This provided the Claimant with an in-depth opportunity to address her complaint with reference to contemporaneous emails etc… She stressed, in particular, that there had been no complaints about her work. To be fair to the Claimant nothing was ever advanced to contradict that. The Claimant also stressed that her meeting with Ms Filby was private. matters that were not part of her grievance, removed the term harassment[99]On 14 April 2021, Rhiannon Baynham contacted Miss Alabi via email to inform her of the outcome of the Formal Concern. It was dismissed based on the following findings:a. There was a CCG wide recruitment freeze and a decision made that case working roles were a priority;b. It was a reasonable management request to move staff onto higher priority work; andc. Others from within Gail Filby’s directorate were moved into case working roles for the same reason: that caseworker resource is a priority over other non-case working roles.[100]Ms Baynham concluded that she found no evidence to suggests the reason for the change in role was due to reporting bullying.[101]The Formal Concern decision stated: “I have reviewed the circumstances around the expense claim in January 2020 and there is no evidence to suggest this was being withheld in bad faith or as a result of you reporting bullying. The evidence collected demonstrates proactive steps being taken by your line manager to get approval to authorise the expense claim during the period of delay as he was not provided with a receipt and didn’t have prior notice of the claim.”[102]Ms Baynham added: “I have reviewed the circumstances and reasons for the delay between March 2020 and November 2020. This was due to no further action being taken following an email from Simon Winterbourn, dated 23 March 2020 asking you to write to Gail Filby if you wished for the concern to be dealt with formally. This informal treatment by Simon Winterbourn was on advice from EAS, as seen in the memo dated 23 March 2020.”[103]There was some reference to the meeting with Ms Filby, the Claimant’s mobility and reasonable adjustments. It is difficult to see how this could not be addressed when one of the outcomes that the Claimant sought was that she should be allowed to work from home.[104]Following the investigation of the Formal concern Rhiannon Baynham considered that the move to the new job role was due to the business need for more caseworker resource and not related to the reporting of bullying. She did not consider it unusual that the email letter included her current and new managers as they were being updated by way of this email.[105]On the claim that in January 2020 the claim for expenses was withheld for two weeks, Rhiannon Baynham’s considered that it was paid within a reasonable time considering the circumstances and was in any event unrelated to any complaint by the Claimant.[106]Baynham concluded that the delay in dealing with the Claimant’s complaint is because it had been closed on 23 March 2020 as it was considered at the time to be resolved informally. Miss Alabi was informed in writing by Mr Winterbourn that should she wish to pursue the matter formally to contact Mrs Filby. The Claimant did not do this.[107]The decision came with a rider: “The business should use this as an opportunity to consider and review how they communicate business motivated staff moves to the jobholder. Although I have not upheld the concern, I do not think the move or the reasons behind it were communicated well by the business and at a minimum, decisions like this should be communicated in a phone call rather than just by letter, especially if the letter discusses other topics.”[108]The Tribunal heard from Rhiannon Baynham and accepted that she did not use the word “harassment” because she had addressed herself to HMRC policy (see above) and concluded that there needs to be a link with a protected characteristic, and she found no such link.[109]Additionally, the Tribunal accepts the evidence of Rhiannon Baynham that, she chose in her decision notice to refer to Miss Alabi contacting Mrs Filby to consider transfer of the Claimant to another role. This was disclosed to her by Mrs Filby as part of the Formal Concern investigation. Rhiannon Baynham considered that the meeting was central to her Formal Concern investigation and was referenced in the decision notice to summarise the circumstances and provide reasoning for her decision.[110]On 15th April 2024, the Claimant submitted a grievance appeal dated the previous day. This was allocated to Vernon Sanderson, Head of Planning and Triage at HMRC based in the Fraud Investigation Service.[111]The appeal was a detailed document. Its principal thrust was that an unwanted job role was imposed on her after she had complained of harassment. The appeal also complained that the decision had addressed the delay issue when this was outside its remit.[112]The Claimant requested that her grievance appeal was allocated to a different Appeal Manager. This was declined on the basis that Mr Sanderson felt he met the criteria in the rules and no specific reason had been given to recuse himself. The Claimant did not provide full cooperation about arrangements for the appeal and confirmed that she wanted the appeal to be concluded without a meeting.[113]On 25 May 2021, Mr Sanderson emailed Miss Alabi a copy of the Appeal Decision Notice (ADN) confirming that her appeal against the original grievance decision was not upheld.[114]Mr Sanderson correctly directed himself that Miss Alabi was claiming that she was subjected to a number of detriments relevant to his involvement as Appeals Manager. He concluded that the move to the new job role was due to the business need for more caseworker resource and not because of the reporting of bullying/harassment by the Claimant. Specifically, he found that:a. Any delay in January 2020 in approving an expenses claim by Ms Alibi was not because of her complaint;b. Any delay in resolving the Claimant’s grievance between March 2020 and November 2020 was because the complaint had been resolved informally and Miss Alabi had not indicated that she wished to pursue her complaint further by contacting Mrs Gail Filby.c. There had been no reference to harassment in the decision by Ms Filby because of the conclusion that no harassment had taken place.d. If there was reference to wider facts then that was open to a Decision Maker who might consider any relevant information/facts to reach their decision. This information gathering does not need to be confined to matters of the complaint alone, if they are somehow related and relevant.[115]Mr Sanderson noted that Miss Alabi did not provide him with any new facts or information to consider further. He concluded that the procedure had been followed. He was satisfied that his decision was in no way influenced by the fact that Miss Alabi had complained about bullying and harassment at any time.[116]The Tribunal notes that the Claimant’s own witness statement does not make any complaint against the appeal save that she did not agree with its conclusions. Submissions[117]The Tribunal considered oral submissions on behalf of the Respondent.[118]When considering the issue of whether any of the alleged actions of the Claimant were protected, trying to be objective, and mindful of their duty to the Tribunal, the Respondents suggested that the closest fit to the Claimant’s case was an allegation pursuant to Equality Act 2010 section 27 (d) “making an allegation (whether or not express) that A or another person has contravened this Act.”[119]The Claimant asserted that her protected characteristic is sexwoman. Taken at its highest, the Claimant’s complaint is of bullying and harassment. The Respondents would say no such allegation is to be found in her August 2019 telephone call to Mr Woodward. Similarly, no complaint of harassment on grounds of sex is made in the email of September 2019. The Respondents would add that the exchanges actually only show justified and legitimate concerns about the Claimant’s mode of work including for her own welfare and the Respondent’s legitimate aim of security.[120]The Respondents would say that the Claimant was still not complaining of bullying and harassment on grounds of sex in her November 2019 meeting with Mr Winterbourn.[121]The problem for the Claimant is therefore that there is no protected act in law/alleged contravention of the Equality Act 2010.[122]On the question of identified detriments, the Respondent would say that the treatment of the Claimant’s expenses claim was entirely normal.[123]The move to a different job is more complicated. The words of President Woodrow Wilson referred to in argument seemed apt, “if you want to make enemies – try to change something.” The Respondents would just say that there was no connection between the Claimant’s change of role and any complaint she may have made.[124]Similarly, if there had been any delay in dealing with her grievance, that is because of the belief that it had been dealt with informally and then decided and not because of its contents. Similarly the Respondents would say that a full explanation for the way that the grievance was dealt with is contained in the text of the decision and the evidence heard by the Tribunal. As concerns the outcome of the Claimant’s appeal, the Respondents would say that the Claimant just did not engage.[125]The Respondents would say that the claim is not well founded. Application of the Facts to the Law[126]The Claimant complains of unlawful victimisation pursuant to S.27 of the Equality Act 2010.[127]The findings of fact above are determinative of this claim but it is important to organise the findings and apply them to the law.[128]The first issue we have to determine is whether the Claimant did a protected act. For these purposes that is making an allegation (whether or not express) [Tribunal’s emphasis] that HMRC has contravened this Act by reference to a protected characteristic in the 2010 Act that she seeks to rely upon - sex-woman.[129]The Claimant claims three protected acts. a. In August 2019, in a telephone call Mr Woodward said to the Claimant “I previously made similar remarks). The Claimant said, in response, words to the effect of “stop doing that” and “I’ve told you if you want to discuss work with me I’ll meet you at an HMRC office”;[130]At this point, August 2019, we are concerned with a pre-pandemic world. At that stage the Claimant was the only team member who was working permanently from home, Her line manager was anxious to establish the rationale and efficiency of such a deployment as well as its suitability.[131]The Tribunal finds that what the claimant’s line manager was seeking was a face to face meeting with her at her place of work.[132]The problem that the Claimant faces is that the Tribunal accepts that she simply told her line manager to stop requesting a visit to her home (a proposal made for completely professional reasons). However, there is no evidence whatsoever that she connected this to her protected characteristic. The evidence would say that this amounted to no more than an express (or implied) statement that her line manager was to stop requesting or announcing his intention of undertaking home visits. There was no protected Act as there was no allegation that the Respondent had contravened the 2010 Act. b. In September 2019, in [an] email to Mr Winterbourn, the Claimant complained about Mr Woodward’s conduct;[133]The Tribunal finds that the Claimant emailed Mr Winterbourn on 9th September 2019 in which she made it very clear that she was unhappy with Mr Woodward suggesting/proposing/imposing any home visit on her. In every other respect that email was complex and unclear.[134]It complained of unwanted actions that had been repeated by a line manager. The context makes it clear that what the Claimant did not want was a managerial visit to her workplace (which was also her home). The email was unwelcome. As Mr Winterbourne noted in his reply of 12th September, “I do appreciate that after a couple of years of reduced contact Andrew’s approach may feel suddenly excessive and unnecessary.”[135]The Tribunal appreciates that the allegation does not have to be express to be a protected act. However, in this case, the words of the email – in context (as per Chalmers) do not make it clear that an allegation of unlawful discrimination is being made by the Claimant. The Tribunal concludes that the contents of the email – even in context – does not amount to a protected act. There is no allegation that the 2010 Act was being contravened.[136]The Tribunal concludes that the contents of the September 2019 email did not constitute a protected act for these purposes.[137]The last of the alleged protected acts is said to have arisen from a meeting between the Claimant and Simon Winterbourne with a note taker at Jubilee House on 18th November 2019.[138]The meeting is not that easy to interpret as it covers so much ground. However, a complaint about the persistence with which her line manager had sought a meeting at her home/place of work is discernible. What this does not amount to is a complaint of unlawful discrimination under the Equality Act 2010 on grounds of sex. There is not allegation, express or implied of a contravention of the Equality Act 2010.[139]Standing back from these three issues, it can be seen that the Claimant’s case is flawed fatally in that the protected acts did not take place. There was no complaint that the 2010 Act had been contravened. The claim cannot then succeed. It is, however, likely to be helpful to go onto to consider the alleged detriments. Detriments a. In January 2020, [payment of] an expenses claim was withheld for 2 weeks;[140]The complaint here is not that her expenses claim (for £7.40) was not met but rather that the Respondents took two weeks to pay the claim. This is described by the Claimant as “withholding” her claim.[141]It is unclear what a normal period of time is for any expenses claim by a member of the Claimant’s team to be met. The evidence was that a period of two weeks to pay the same was reasonable. That would mean that the payment of the Claimant’s expenses was timely.[142]In the event, the Claimant did not use the prescribed expenses process nor provide the necessary information to support her expenses claim. Against that background there is simply no evidence that the payment of her expenses were “withheld.” The evidence is actually the opposite i.e. the expenses claim was authorised despite the requisite processes and information not being followed. Given that the correct procedures were not followed the period of two weeks was reasonable.[143]The Tribunal applies the EHRC definition that, “a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. On that basis a reasonable individual would not have considered that they had been placed at a disadvantage (rather the reverse). There was no detriment here.[144]In any event, there is no evidence whatsoever that the decision to meet her expenses claim was influenced in any way by a protected act (even if one were supposed to have existed). without warning or consultation and without any right of appeal. The email[145]The Claimant was a long-standing civil servant of the executive grade. If there is complaint, it is that her tasks as an executive grade civil servant changed. In the event they were adjusted so that she was expected to undertake work which was commensurate with her grade.[146]The Claimant found her existing work fulfilling and did not want it to be re-allocated. The change of duties was unwanted by the Claimant. That aspect would appear to meet the criteria for a potential detriment.[147]The other part of the claim is about process. The Claimant complains about the fact that the email communicating the information to her was copied into her relevant line managers. The Tribunal would conclude that this did not constitute a detriment It was necessary for them to receive this information.[148]The Claimant complains that the decision to adjust the Claimant’s duties was without warning or consultation and without any right of appeal.[149]The outcome of the grievance included the concession that, “the move [and] or the reasons behind it were [not] communicated well by the business and at a minimum, decisions like this should be communicated in a phone call rather than just by letter, especially if the letter discusses other topics.”[150]The Tribunal found that the Claimant would have known that there was an issue about her duties but the move was communicated to her (by letter dated 7th February 2020) without much by way of consultation (the Claimant was offered a caseworker role at Officer Grade as of 2nd March 2020). It is, however, difficult to see how it could have been communicated by telephone to the Claimant considering how difficult she made this.[151]It is not true that the Claimant was not provided with any opportunity to appeal. The Claimant raised concerns over her move into this role and the fairness of the decision, This led to a review of the decision by a Grade 6 Manager. At the conclusion of the review, a decision was made to uphold the original decision and this was communicated to the Claimant on 21 February 2020. The letter by Ms Filby communicated to her the detailed review of the rationale for the change in her role. A negative outcome is not the same as saying that the Claimant did not have an opportunity to appeal.[152]On the basis of the above, the Claimant was allocated work she didn’t want and was not consulted fully about this change. These are matters that a reasonable worker might think that were to their detriment. These are potential detriments. The other matters are not.[153]Nevertheless there was no connection whatsoever between the decision to alter the Claimant’s role – align her duties with that of the business and any complaint of unlawful discrimination by the Claimant (even if the same was actually made – which it was not). Instead the driver was solely the necessity for a reorganisation borne of the CCG-wide recruitment freeze and the decision that caseworker roles were considered to be a priority. The Tribunal recalls it finding that in late 2019 all managers in the Directorate had been required to review all roles and ensure appropriate grades were undertaking as much casework as possible. This was without regard to the circumstances of the Claimant and was not taken by her line manager or his line manager.[154]Similarly there was no connection between the consultation – or paucity of it prior to her change of post and any alleged protected acts. The reason for the quick pace of the job move – after the same was communicated to the Claimant would appear to be that the Claimant was the last piece in an elaborate jigsaw of a team – to be moved. This was also a time of immense dislocation with the beginning of the COVID pandemic.[155]There was therefore no connection between any protected acts (albeit the Tribunal has already found that these did not exist) and the two detriments. c. In March 2020, the Claimant raised a grievance about the change in her job role. She did not hear anything until she contacted HR and discovered that her grievance had not been investigated. The grievance investigation[156]The HMRC “raising and resolving concerns policy” addressed the difference between formal and informal approaches and includes a commitment to timely decision-making.[157]On 5 March 2020, Miss Alabi emailed Simon Winterbourne her Formal Concern about her new role. Additionally, the Claimant added reference to her previous complaint about bullying and harassment by her line manager. Confusion was thereby inherent from the outset.[158]Despite the fact that both parties had extensive advice from HR, the Claimant was led into dealing with her complaint informally. The Claimant engaged with that decision and was the subject of correspondence which advised her what to do if she wanted the matter taken further. “As you did not want to take the opportunity to discuss this at a meeting I consider that the matter has been dealt with informally. Should you now wish the matter to be dealt with formally please write to Filby, Gail (ISBC C&A SE) … and tell her that you do not agree with my conclusion and wish to raise the matter formally with her.”[159]In the meantime, on 19th March, Gail Fiby had set out in writing why she did not uphold any complaint of bullying.[160]The Claimant did not follow these references up until November 2020 when she contacted HR again to say that her concern had still not been resolved.[161]The Claimant has to take some responsibility for this. A reasonable employee would also be considered to have reasonable insight into their own shortcomings and responsibility. The Tribunal concludes that this was not a detriment.[162]It is appreciated that the Claimant would seek to argue that the delay in addressing her grievance was to her disadvantage. The Tribunal might be wrong. It is useful to pursue that counterfactual. 163. if the nine month delay in dealing with the Claimant’s formal concern was a detriment, the Tribunal went on to evaluate the implications of this. The factual findings of the Tribunal were that the reason for the delay was the understanding of the Respondents that the Claimant did not wish to pursue her complaint from March 2019 as she did not follow up any of the relevant invitations. This is completely unconnected with the contents of any complaint made by the Claimant and, in any event, cannot succeed as a claim because of the Tribunal’s prior finding that the Claimant has not actually made a protected complaint. matters that were not part of her grievance, removed the term harassment[164]It is not entirely clear whether the Claimant complains about the outcome of the grievance (i.e. it was not successful) or just the incidental or particular features about the way it was conducted. The Tribunal proceeded on the basis that it was all in issue.[165]The Claimant’s grievance was investigated with the utmost care.[166]The Claimant sought to delineate very carefully what material was and was not considered when dealing with her grievance. By way of example, Miss Alabi made it clear in correspondence that she did not wish to discuss the 9-month delay in not hearing from anyone about her Formal Concern and in her Formal Concern meeting on 8 April 2021, the Claimant also stressed that her meeting with Ms Filby was private.[167]Despite this Rhiannon Baynham chose to decide herself what material she considered to be relevant. By way of example, the factfinding meeting covered both matters relating to the Formal Concern and the delay in resolving the Formal Concern. Of particular significance is the fact that on 22 March 2021, the Claimant confirmed that, ‘the evidence you have provided me confirms what my grievance, Formal Concern is all about.’ This would suggest that she appreciated and understood the scope of Ms Baynham’s investigation and considered the same to be reasonable.[168]Any reasonable employee would appreciate that their employer would have to investigate every reasonable line of enquiry when dealing with a grievance. That is fair to the Claimant and the other employees of the Respondent.[169]The issue of delay and the conversation with Ms Filby were relevant. The latter was of significance as Ms Filby was a decision-maker on the move of the Claimant to a different role.[170]Ms Baynham not unreasonably drilled down in the evidence to arrive at some key conclusions (which were correct on the evidence/align with the findings of the Tribunal) that: o There was a CCG wide recruitment freeze; o The caseworker working stream took priority over other non-case working roles; o Given resources were finite, it was a reasonable management decision to move staff onto higher priority work; and o Others from within Gail Filby’s directorate were moved into case working roles for the same reason:.[171]This was the foundation of Ms Baynham conclusion that there was no evidence to suggests the reason for the change in the Claimant’s role was due to any report by her of bullying. The Tribunal has seen and heard the evidence and concurs. The grievance was rightly rejected.[172]Ms Baynham rightly reviewed all the relevant interaction between the Claimant and Ms Filby – including their meeting with Ms Filby. Ms Baynham was entitled to conclude that to address this grievance thoroughly she needed to examine the Claimant’s mobility and reasonable adjustments for the same. This was particularly because one of the outcomes that the Claimant sought was that she should be allowed to work from home.[173]The Tribunal heard from Rhiannon Baynham and has already made a finding of fact that that she did not use the word “harassment” in her decision because she had addressed herself to HMRC policy and concluded that there needs to be a link with a protected characteristic, and she found no such link.[174]Having examined the HMRC policy in question and the law and EHRC guidance, the Tribunal concludes that the Respondent rightly concluded that what the Claimant was complaining about was not harassment, “related to a relevant protected characteristic” On that basis it was reasonable of her to have left this word out of her decision.[175]Standing back, a reasonable employee in all the circumstances of this case would have welcomed her grievance ranging over all the relevant facts – including any conversation with Ms Filby and the issue of the delay in the grievance procedures.[176]A reasonable employee would also have understood that a manager is entitled to give the word, “harassment” the meaning it is given in HMRC guidance and not to include it in a decision if the criteria is not made out.[177]The decision on the grievance amounted to no more than an honest and reasonable action by an employer addressing a grievance.[178]If we are wrong about this and the Claimant was reasonable in considering the scope of the investigation and the outcome of the grievance was to her disadvantage and amounted to a detriment in law, then the Tribunal would conclude that the reason the word harassment was not used and the grievance failed are the same reason that this originating application is not well founded. The grievance was rejected as the claimant did not complain of harassment on the grounds of sex.[179]The investigation ranged as it did because the decision-maker wanted to explore all potentially relevant material. It is not reasonable for an employee to dictate what evidence may and may not be considered in all the circumstances of this case.[180]There was no connection whatsoever between the complaints relied upon by the Claimant and the outcome of the grievance or the breadth of the investigation into the same. In any event, the complaints were not protected acts so this claim must fail.[181]The Appeal was allocated to an independent manager outside the Claimant’s sphere of work. He was well qualified. The appeal was dealt with in a professional and timely manner with full opportunities to the Claimant to engage and in accordance with HMRC procedures. However, the Claimant did not contribute to the process, provide evidence or even engage beyond complaining about the identity of the allocated decisionmaker.[182]The Claimant complained that an unwanted job role was imposed on her after she had complained of harassment and that the grievance decision had addressed the issue of delay issue when that was outside its ambit.[183]The decision of Mr Sanderson was systematic and his conclusions were clear- any: o move to the new role was due to the business need for more caseworker resource and not because of the reporting of bullying/harassment by the Claimant; o delay (January 2020) in approving an expenses claim by Ms Alibi was not because of her complaint; o delay in resolving the Claimant’s grievance between March and November 2020 was because the complaint had been resolved informally and Miss Alabi had not indicated that wished to pursue her complaint further by contacting Mrs Gail Filby; o failure to make reference to the word harassment in the decision by Ms Filby was because of her conclusion that no harassment had taken place; and o reference to wider facts made by the decision maker in the outcome of the grievance was a matter that was open to her. She might consider any relevant information/facts to reach a decision. This information gathering does not need to be confined to matters of the complaint alone, if they are somehow related and relevant.[184]Mr Sanderson found no procedural irregularity. The outcome of the Claimant’s grievance appeal in May 2021 was merely a polite and reasoned response to the Claimant’s complaint. The Tribunal notes that the Claimant’s own witness statement does not make any complaint against the appeal save that she did not agree with its conclusions.[185]This left the Claimant with (in the words of Lord Hope of Craighead), “an unjustified sense of grievance” and this does not amount to a detriment. The reasonable worker would not conclude that this was a detriment.[186]If we are wrong about that, the decision on the appeal was not caused or “because of” any protected act by the Claimant. The outcome of the appeal was a product of a justified conclusion that the appeal had no merit (a decision with which the Tribunal concurs). There was no connection whatsoever with the original complaints made by the Claimant that she relies upon. The fact that the outcome of the appeal was that it was dismissed is not “because of” the complaints that the Claimant relies upon nor was the decision materially influenced by the same nor played a significant part in the outcome.[187]In any event, as reiterated above, the Tribunal finds that the Claimant did not, in the complaints that she relies upon, make an allegation that the Respondent had contravened the Equality Act 2010. The claim is not well founded.