Ms Y WalshMs S KhawajaIn person for claimantMs C White (instructed by Counsel) for respondentDate 27 March 2020
JUDGMENT
[1]The Claimant’s claim of harassment is unsuccessful;[2]The Claimant’s claim of victimisation is successful in part;[3]The Claimant’s claim of unfair constructive dismissal is successful.[4]A remedy hearing will be listed in due course if the parties cannot reach agreement in the meantime.
REASONS
[1]By a claim presented to the employment tribunal on 30 July 2018 the Claimant claimed age and race harassment, victimisation, and unfair constructive dismissal.[2]The Respondent resists the claims.[3]The Claimant gave evidence on her own behalf together with a witness statement from her husband Mr Channesh Shivaprakash Babu.[4]The Respondent gave evidence through Ms Sophie Malik, Head of People; Ms Duygu Tanisik, former Head of Legal Affairs; Mr Dan Perrett, Finance Director; and Mr Erik Nygard, Chief Executive Officer.[5]The Tribunal was presented with a bundle comprising 700 pages.
The issues
[6]The list of issues was agreed at the outset of the hearing.[7]It was agreed that the Tribunal in the first instance will address liability only. A brief statement of the relevant law Harassment[8]Section 26 of the Equality Act 2010 provides: “(1) A person(a) (A) harasses another(b) (B) if— A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of— violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. . . (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— the perception of B; the other circumstances of the case; whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are - . . . age, race . . .”[9]The motive or intention on behalf of the alleged harasser is irrelevant.[10]The Court of Appeal confirmed in Land Registry –v- Grant (Equality and Human Rights Commission intervening) [2011] ICR 1390 “when assessing the effect of a remark, the context in which it is given is always highly material”.[11]In Richmond Pharmacology –v- Dhaliwal [2009] ICR 724 the EAT held that the Claimant must have felt or perceived his or her dignity to have been violated. The fact that a Claimant is slightly upset or mildly offended is not enough. Victimisation[12]Section 27 of the Equality Act 2010 provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because - a) B does a protected act, or b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— a) bringing proceedings under this Act; b) giving evidence or information in connection with proceedings under this Act; c) doing any other thing for the purposes of or in connection with this Act; d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.”[13]Causation is shown where the protected act materially influences (in the sense of being more than a trivial influence) the employer's treatment of the Claimant (see for example Igen -v- Wong [2005] ICR 931, CA and Fecitt -v- NHS Manchester [2012] ICR 372, CA on protected disclosures, which adopted general discrimination principles).[14]The EAT in The Chief Constable of Kent Constabulary -v- Bowler [2017] UKEAT/0214/16 gave guidance on detriments in victimisation claims: “Determining whether the treatment that B is subjected to amounts to a detriment involves an objective consideration of the complainant’s subjective perception that he or she is disadvantaged, so that if a reasonable complainant would or might take the view that the treatment was in all the circumstances to his or her disadvantage, detriment is established. In other words, an unjustified sense of grievance does not amount to a detriment; the grievance must be objectively reasonable as well as perceived as such by the complainant”. Burden of Proof[15]The burden of proof reversal provisions in the Equality Act 2010 are contained in section 136: “(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”.[16]The Supreme Court in Hewage –v- Grampian Health Board [2012] UKSC confirmed: a. “The points made by the Court of Appeal about the effect of the statute in these two cases [Igen and Madarassy] could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors [2011] ICR 352, para 39, it is important not to make too much of the role of the burden of proof provisions. They 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.”[17]The approach set out in Hewage was endorsed and applied to the Equality Act 2010 burden of proof reversal provisions by the Court of Appeal in Ayodele –vCitylink [2017] EWCA (Civ) 1913. Unfair Constructive Dismissal[18]The law relating to constructive dismissal is well-established and requires generally four conditions to be present:• There must be a breach of contract by the employer;• That breach (or series of incidents) must amount to a fundamental breach;• The employee must leave employment as a consequence of that breach (whether express or repudiatory); and• The employee must not affirm the breach (see Western Excavating (EEC) Ltd –v- Sharp [1978] IRLR 27, CA)[19]The common law relating to contractual terms and breach of contract is also well-established. A breach of an express or implied term must be considered objectively (see BG plc –v- Brien [2001] IRLR 496, EAT).[20]Where a claimant has been constructively dismissed, the Respondent must show that the reason for dismissal is one of a number of permissible reasons.[21]If so demonstrated, the Employment Tribunal will consider whether or not the dismissal was fair in all the circumstances in accordance with the provisions in section 98(4) of the Employment Rights Act 1996. The standard of fairness is achieved by applying the range of reasonable responses test.[22]In the case of Malik –v- The Bank of Credit and Commerce International SA [1997] IRLR 462, HL, confirmed that the implied term of mutual trust and confidence is implied into every contract of employment. With regard to a breach of that implied term Lord Steyn stated: “The employer shall not without reasonable and proper cause conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee” (see also Omilaju –v- Waltham Forest London Borough Council [2005] ICR 481, CA).[23]An employee’s subjective belief as to how they believe they have been treated is not relevant, even if genuinely held (see Omilaju).[24]With regard to a ‘final straw’ constructive dismissal, the Court of Appeal in Omilaju held that a final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. There is no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. Facts and associated conclusions[25]The Respondent’s business is in energy technology.[26]This case arises out of the Claimant’s role as a Paralegal with the Respondent and her working relationship with Ms Tanisik, who at the time of the Claimant’s employment was Legal Counsel for the Respondent. That working relationship began to deteriorate seriously after a phone call between the two on 26 April 2018.[27]The Claimant was employed as a Paralegal on 26 March 2018 on a six-month fixed-term contract, due to end on 26 September 2018. The Claimant was interviewed and employed by Ms Malik and Ms Tanisik. She was to work in a legal team of two with Ms Tanisik.[28]The Claimant was placed on a one month probationary period. Ms Tanisik had requested a two month probation period at the outset of the Claimant’s employment but that request had been missed, The usual period for new permanent employees was three months. Harassment complaint[29]The harassment complaints are set out in paragraphs 1.1 to 2.1 in the list of issues. Paragraphs 1.1 to 1.3 relate to the protected characteristic of age and 2.1 relates to race.[30]The Claimant alleges that in the first week of her employment Ms Tanisik asked the Claimant how old she was and when the Claimant replied that she was 26, Ms Tanisik remarked “Oh, you’re such a baby”.[31]The Claimant did not complain or raise this alleged comment at the time. The Tribunal finds as fact that in early April 2018 the Claimant raised with Ms Malik the issue of Ms Tanisik addressing her over timekeeping and there was another discussion on or around 25 April 2018, but certainly before the 26 April phone call, but the Tribunal finds that the Claimant did not during those conversations mention this alleged comment. The first time the Claimant appears to have expressly mentioned it in writing is by an e-mail dated 06 July 2018.[32]Ms Tanisik could not recall whether or not it had been said. English is not her first language and fairly, she could not accept or deny she had said those words or something similar. Ms Tanisik stated a similar view when the matter was first raised by the Claimant in July 2018 after their working relationship had deteriorated.[33]The Tribunal concludes on balance that the comment was said by Ms Tanisik and accepts her evidence, having considered her evidence as a whole, that if it was said it was obviously not meant in any literal sense and also concludes that it was Ms Tanisik expressing her view that the Claimant was comparatively young and was meant both as a compliment and contained a degree of selfreflection, although Ms Tanisik is not much older.[34]The Claimant also alleges that during the first week in a conversation about Microsoft Excel with a colleague, when Ms Tanisik discovered that the Claimant knew how to use an Excel Spreadsheet she remarked to the colleague “new generation”.[35]As above with the “You’re such a baby” comment, Ms Tanisik genuinely does not recall such a conversation. The Tribunal finds as fact that in April the Claimant raised with Ms Malik issues over Mr Tanisik and the Claimant’s timekeeping but did not mention this alleged comment and the first time the Claimant appears to have expressly mentioned it in writing is by an e-mail dated 06 July 2018.[36]However, the Tribunal finds on balance that this comment was said and that it was clearly a comment made by Ms Tanisik to reflect her view that the new generation of lawyers had a greater degree of IT skills. It was meant both as a compliment to the Claimant and with an element of self-deprecation.[37]The Tribunal concludes that even if both of these comments were unwanted by the Claimant and related to her age, they most certainly did not have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her and also concludes it did not have that effect when taking into account the Claimant’s perception, the surrounding circumstances and whether it is reasonable for the conduct to have that effect.[38]The events of 26 April 2018 phone call (see below) had passed by the time of the allegation that in a meeting on 16 May 2018 Ms Tanisik said to the Claimant regarding the phone call: “If you were not so young and junior I would not have taken it so lightly”.[39]The Claimant does not appear to have raised this matter in writing until an email to Ms Tanisik dated 22 June 2018.[40]Having considered her evidence as a whole, the Tribunal accepts the evidence of Ms Tanisik that any reference to ‘young’ or ‘junior’ was a reference to experience. The Tribunal considers it unlikely that Ms Tanisik said both ‘young’ and ‘junior’ in that sentence and on balance may have used the word young. However, as stated above, English is not Ms Tanisik’s first language and it is clear that experience what she meant to convey in that conversation. She was expressing that she had put the Claimant’s behaviour during the telephone conversation down to her work inexperience.[41]The Tribunal concludes that even if attributing the Claimant’s conduct during that telephone conversation to work inexperience (as opposed to other alternatives such as taking disciplinary action) amounts to unwanted conduct and a reference to inexperience can be argued as relating to age, the Tribunal concludes that it was not said with the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.[42]The Tribunal also unanimously concludes that it is not close to having that effect having regard to the perception of the Claimant, the surrounding circumstances and whether it is reasonable for the conduct to have that effect.[43]As the authorities confirm, mild offence, for example, is not enough. The effect on the Claimant was not at the level anticipated by the statutory provisions, as demonstrated by the terms of the Claimant’s email dated 22 June 2018 in which she makes reference to these matters to Ms Tanisik (page 421).[44]The Tribunal concludes on balance that Ms Tanisik did not call the Claimant ‘immature’. Ms Tanisik is likely to have used the word ‘sensitive’ (but not in the context alleged below relating to Indian culture) during the conversation on 14 May 2018, but the Tribunal finds this was not done in an age or race related way. It was her true reflection on the Claimant’s reaction to many of the events that had occurred. Paragraph 2.1[45]The Tribunal concludes that Ms Tanisik did not say to the Claimant: “I know you are an Indian. I am familiar with Indian culture, I don’t know why you are being so sensitive”. Ms Tanisik’s husband is Pakistani and she travels to and is fond of the region.[46]The Claimant argued as part of her cross-examination relating to this matter that a comment in Ms Tanisik’s witness statement that the Claimant was “biting back”, was a reference to the Claimant being a dog or a snake. Ms Tansisk wrote in her statement: “I was being supportive in giving her the benefit of the doubt and seeking to put the incident behind us. I doubt many other managers would have been so accommodating and supportive after suffering what Dhatri had subjected me to. Even so, she yet again created a negative and was biting back at me when I was so clearly trying to give her the benefit of the doubt”.[47]The Tribunal concludes having regard to all the evidence that this is further demonstration of the Claimant searching for negative meaning where none exists relating to many of the allegations made against Ms Tanisik. The comment was clearly used as a common short-hand reference to aggressive retaliation and was not done to equate the Claimant personally with a dog or a snake.[48]The allegation in the Claimant’s e-mail of 10 July 2018 has more detail about the alleged comment than in her earlier response to Ms Malik in an e-mail of 05 July 2018.[49]Tribunal concludes on balance from the evidence that the comment was not said by Tanisik as alleged. Victimisation complaint[50]The Claimant relied upon a single protected act identified in the case management discussion, being a conversation with Mr Nygard the Respondent’s CEO on 26 June 2018.[51]However, there is an e-mail from the Claimant to Ms Malik on 27 April 2018 where she states that she may have to bring a harassment complaint against Ms Tanisik. Although not referenced expressly as an alleged protected act, it appears in the list of issues that includes the Claimant’s agreed post preliminary hearing amendments to her claim.[52]The Claimant does not identify in that e-mail the nature of the protected characteristic. Nor did the Claimant identify the protected characteristic she was referring to at that time in her witness statement. There is reference in the witness statement to prior conversations with Ms Malik on 04 and on or around 25 April 2018 that, in part, mentioned age but this is denied by Ms Malik. The Tribunal prefers the evidence of Ms Malik that the Claimant raised the issue of age with her later and the conversations in April 2018 related only to the time keeping issue and the ‘tone’ of Ms Tanisik’s communication.[53]Section 27(2)(d) requires that the person victimised has alleged that the discriminator, or any other person, has committed an act which would amount to a contravention of the Equality Act 2010.[54]The authorities suggest that a broad interpretation should be given to the statutory provision, which is in part incorporated by words “whether or not express”. On that basis the Tribunal concludes, although very marginally, that the complaint of harassment in the e-mail of 27 April 2018 did amount to a protected act.[55]However, there was no evidence adduced that Ms Tanisik knew of that e-mail which had been sent only to Ms Mailk, or of the content, or if she did know, the date when she received that knowledge.[56]Therefore the Tribunal concludes that if it did amount to a protected act there has been no causal link established with the events in the list of issues involving Ms Tanisik that occurred up to the later protected acts.[57]The only protected act expressly set out in the Case Management Order of the Tribunal dated 22 November 2018 is a discussion between the Claimant and Mr Nygard, the Respondent’s CEO, on 26 June 2018. It was accepted in evidence by Mr Nygard that the Claimant raised the allegation of harassment of her by Ms Tanisik in that meeting. The Claimant had raised the issue of age and culture to Ms Malik by this time. The Tribunal accepts that this did amount to a protected act under section 27(2)(d) of the Equality Act 2010.[58]The Tribunal also observes that the Claimant send an e-mail dated 22 June 2018 to Ms Tanisik in which she complains about her alleged attitude and behaviour and references alleged age and culture related comments. The Tribunal concludes that this also amounts to a protected act. The e-mail was copied to Ms Malik. Although again this does not appear on the list of issues, either as an event or as an alleged protected act, the Tribunal is content that it is a protected act for the purposes of this claim, particularly as Counsel for the Respondent identified it as such and relied upon arguments of bad faith.[59]With regard to bad faith, in the case of GMB Union -v- Fenton EAT0798/02 under antecedent legislation to the Equality Act 2010 where the wording of was ‘false and not made in good faith’, the EAT held that the test had two limbs: first, whether an allegation was false; and, second, whether the person making the allegation knew it was false at the time it was made. The EAT held that if a claimant “has a belief that they have a good claim, but perhaps one that is not terribly likely to succeed, and he brings that claim with some collateral purpose, it appears to us that that does not necessarily make the bringing of that claim in bad faith. The issue is not the purpose, but the belief in the claim”.[60]This was confirmed more recently in Saad -v- Southampton University Hospitals NHS Trust [2019] ICR 311, where the EAT considered the ‘bad faith’ test and held that the primary question is whether the employee acted honestly in giving the evidence or information, or in making the allegation, that is said to be a protected act. The issue of whether the employee was acting with an ulterior motive is of less relevance. In that case, the Claimant made an allegation of racial or religious discrimination in a grievance, but the grievance had also been made to deflect from performance concerns. The EAT held that the tribunal’s findings meant that the claimant had made his allegations honestly and his motive for doing so did not mean that he had acted in bad faith.[61]The Tribunal refers to all its findings below relating to the Claimant’s behaviours and the protected act. The Tribunal has found that the Claimant raised false allegations of both professional misconduct and the job title of Ms Tanisik that the Tribunal finds were to cause trouble for Ms Tanisik. The Tribunal concludes that these allegations were such that they were not honestly believed by the Claimant and were made in bad faith. The motive does not mean that the Claimant acted in bad faith, but it informs the Tribunal on whether that belief was honestly held given the factual content of the allegations. However, they did not form the whole of the protected act raised by the Claimant on 22 and 26 June 2018. The Claimant raised other issues of harassment under the Equality Act. The Tribunal concludes that part of a protected act being made in bad faith does not preclude the Claimant from protection against victimisation in relation to the remainder. Indeed, technically each allegation is of itself a protected act and the mode of conveying those allegations is typically used by way of a useful means of reference.[62]The acts of alleged unfavourable treatment arising because of the protected acts are set out in remaining paragraphs 6.3 to 21 in the list of issues.[63]Addressing those in turn: Paragraph 6.3 – The Claimant’s probation was extended arbitrarily on 27 April 2018 in response to the Claimant raising issues including harassment.[64]The Tribunal finds as fact that there were occasions when the Claimant was late attending work and left early. Ms Tanisik was informed by a member of staff on 04 April 2018 that the Claimant has left work early without the appropriate permissions.[65]Ms Tanisik mentioned this in an e-mail to the Claimant dated 04 April 2018: "On a separate note, please note that the official working hours are from 9am to 6pm and usually we would have more than enough work/reading to keep us busy between those hours if not longer. May I request you to come in and leave at least within the working hours unless you have a specific excuse which I should be made aware of whether I am in the office or not? I am sure you will appreciate that we cannot justify making an exception for you when everyone is abiding by the hours unless they have a reasonable excuse to leave early or come in late, not to mention that the CEO is sitting just across from us. Apologies for not being able to have this chat face-to-face due to my unavailability this week, otherwise I would have preferred to, but will appreciate if you can take note before we get a formal warning from HR which is imminent if we consistently remain outside of the official working hours".[66]The Claimant replied: "Apologies for leaving early yesterday, but I took a break of half an hour so that I could finish up the work quicker and leave as I was unwell and suffering from a particularly embarrassing problem. I did not want to take leave as this is only my second week. I am happy to discuss my illness with you or Sophie face-to-face rather than put it in mail".[67]Ms Tanisik replied: "Thanks for letting me know. I am sorry to hear that, hope nothing serious and it is only temporary. Let's chat in more detail next week, before we pick up with Sophie. Hope you feel better soon and if not please feel free to rest home/work from home tomorrow but either let Sophie and I know if you decided to stay home".[68]The Claimant alleges that: “The overbearing supervision started to make me paranoid”.[69]The Claimant had two discussions with Ms Malik where timekeeping and Ms Tanisik’s communication were discussed. The first main discussion was on 05 April 2018. The second time it was raised was during a catch-up on or before 25 April 2018.[70]On 26 April 2018 the Claimant sent an e-mail to Ms Tanisik stating: "Do you have 15 mins today after 5PM today. I'd like to catch up on some stuff. Let me know a good time to call you and I’ll make it quick". Ms Tanisik replied later that day: "Just seeing it now, sorry. Will leave the library at 8pm, would you like to catch up then or tomorrow?”. To which the Claimant replied: "Catch-up after 8 then. Do give me a call when you get free or I could call you at 8.15".[71]Ms Tanisik had been absent from the office on study leave for an important exam.[72]During the phone call the Claimant first raised a series of complaints she had about Ms Tanisik and the earlier e-mail about time keeping. The Claimant also asked for a change to her job title from Paralegal to help her future search for new employment. Ms Tanisik said that she would discuss this when she was next in the office.[73]The discussion turned to the Claimant’s probation period. The Tribunal finds as fact that the Claimant informed Ms Tanisik it had expired that day, which took Ms Tanisik by surprise as she had thought the Claimant was on a two month probation period, as explained above and corroborated by e-mail exchanges with Ms Malik. Ms Tanisik told the Claimant that her probation period was supposed to be two months and said that she would look into it.[74]The Tribunal finds as fact that at the time of the phone call the Claimant considered that her probation period had just come to an end that day.[75]The Claimant’s contract states that her probation period is one month. It gives provision for termination of employment if the required standards are not met and the right in borderline cases to extend the probation period. Under those terms the probation period would come to an end on 26 April 2018.[76]Although the Claimant refers to an e-mail dated 27 April 2018 where she states that her probation period was “supposed to have completed a week ago”, the Tribunal unanimously concludes that the Claimant knew the probation period had ended on 26 April 2018.[77]The Tribunal does not consider the Claimant’s evidence as credible that Ms Tanisik had said during the call that the Claimant’s probation period would not be extended, given the evidence of both participants over the nature of the telephone conversation.[78]After the phone call ended Ms Tanisik telephoned Ms Malik. Ms Malik saw the missed calls from Ms Tanisik who had never called her at that time in the evening before and was on study leave, so Ms Malik suspected something was wrong. The Tribunal accepts Ms Malik’s evidence that Ms Tanisik was extremely upset, sounded distressed and was close to tears. Ms Tanisik relayed to Ms Malik that the Claimant had shouted at her and had been aggressive.[79]The Claimant wrote an email to Ms Malik on 27 April 2018 at 2.49am stating: "I took your advice and broached the subject as part of a conversation with Duygu that I had relating to work at 8 PM last evening. The call did not end well. It ended with Duygu stating "have a good life". After much deliberation and loss of sleep, I may have to lodge a formal harassment complaint in the coming days. I am quite stressed, but I am going to attempt to have a chat with Duygu once more, as I see I have to work with her at least until the end of my contract, although I am not hopeful". Ms Malik did not see this e-mail until she attended at work that morning.[80]Ms Tanisik also sent an email to Ms Malik at 9.27 that morning outlining her account of the issues in anticipation of them being discussed that day in her absence. The Tribunal accepts Ms Tanisik’s evidence that this e-mail was written by her in attempted conciliatory and constructive tones. This email was copied to the Claimant.[81]The Claimant replied to that email on the same date, copied to Ms Malik and Mr Nygard the CEO (page 249).[82]There was also at that time an exchange of e-mails between Ms Malik and Ms Tanisik about the Claimant’s probation period (pages 257 and 258).[83]Ms Malik met with the Claimant that day and explained that her probation period was to be extended by one month.[84]The Claimant sent an e-mail to Ms Malik, also on 27 April: “Having just heard from you regarding an extension of my probation, which was supposed to have completed a week ago, and this without a Performance Review. Please can you convey the same over e-mail. I would like to also know the actual grounds for the extension too”.[85]Ms Malik replied the same day: "To confirm, Duygu has extended your probation by one month, with a view to working together with you more on her return and also to provide the guidance and support that will enable you to demonstrate the full standard of the Paralegal role at Limejump".[86]The Tribunal on balance accepts the evidence of Ms Tanisik that the Claimant raised her voice, was disrespectful and aggressive in tone during the telephone call.[87]The e-mail contact and the telephone call made by the Claimant coincided immediately with the end of her probation period. The Tribunal has concluded that the Claimant was fully aware of that fact.[88]The Claimant had raised the issue over the 04 April e-mail in the telephone call with Ms Tanisik, which she had not done before, despite having had constant similar opportunities to have done so.[89]The Tribunal is driven to the conclusion that the call was premeditated and deliberately arranged to coincide with the end of the Claimant’s probation period.[90]The Tribunal accepts that Ms Tanisik was shaken and upset by the phone call as corroborated by the evidence of Ms Malik relating to the conversation with Ms Tanisik immediately after the event.[91]The Tribunal concludes that the extension of the Claimant’s probation period by Ms Tanisik as confirmed by Ms Malik was due to concerns over the Claimant’s tone and attitude in the telephone call on 26 April 2018, not because the Claimant had sent the e-mail to Ms Malik that morning. As stated above, there was no evidence that Ms Tanisik knew of the harassment allegation, but in any event, it was quite clearly the content of the phone conversation that led to the probation extension.[92]The Tribunal concludes that Ms Tanisik was considering extending the probation period at the time of the call. The extension of the probation period was also discussed with Ms Malik on the phone that evening, both events occurring before the protected act was made.[93]On 17 May 2018 the Claimant’s probation period was confirmed as completed by Ms Tanisik with the message “Congratulations and keep up the good work!”. This was also confirmed a week early so the Claimant was informed before she went on annual leave for two weeks. Paragraph 7 - Ms Tanisik shouted at the Claimant in open office.[94]The Claimant’s evidence argues that this happened on two occasions, once on 14 June 2018 and the second on 20 June 2018. The Claimant’s account is that Ms Malik was present on both occasions. Ms Malik did not recall any raised voices between the two occurring before 20 June 2018. The 14 June 2018 event was not put to her in cross-examination.[95]On 20 June 2018 Ms Tanisik stated to Ms Malik that she had some concerns about the Claimant not keeping her up-to-date regarding work, but was reluctant to raise it given past events.[96]However, when Ms Tanisik spoke to the Claimant Ms Malik recalled the Claimant’s reply being in a “what do you want?” manner. She eventually asked them both to “keep it down” and had separate conversations with them both that day to use a meeting room for work discussions.[97]By this stage relations between the Claimant and Ms Tanisik were extremely frayed.[98]The Tribunal concludes from all the evidence that both parties had their share of contribution regarding their communication. The Tribunal concludes that there is no evidence to suggest that the behaviour of Ms Tanisik was because of the Claimant’s e-mail to Ms Malik on 27 April 2018 even if she did know about it. It pre-dates the Claimant’s other protected acts. Paragraph 8 - Ms Tanisik ridiculed the Claimant for taking stress-induced leave.[99]This allegation relates to 21 June 2018. Ms Tanisik confirmed by e-mail certain work that needed to be completed by the Claimant. A colleague confirmed to Ms Tanisik by e-mail that she had spoken to the Claimant and gone through her queries and asked Ms Tanisik whether she would like her to send over the work material or wait, to which Ms Tanisik replied: “That’s great thanks to both of you” and that she would like the responses that day.[100]The Claimant later e-mailed Ms Tanisik ay 18.07 and said: “I am leaving the office now. I shall send the document in the manner required to you by midnight tonight”.[101]Ms Tanisik replied at 19.42: “I thought Mel’s e-mail earlier today said that going through the questions was completed between the two of you. However, if this wasn’t the case it will have to be tomorrow because you are not expected to work after hours. Please complete and send through tomorrow am. As requested numerous times it would be my usual expectation to receive an update from you if deadlines won’t be achievable”.[102]The Claimant e-mailed Ms Tanisik at 20.44 signing herself off work for a day with the description “stress induced”.[103]The Claimant further e-mailed Ms Tanisik at 21.17: “May I please refer to the previous e-mails where I have asked you for a certain time within today. Also please refer to the e-mail where you have asked me to send it ‘today’ wherefore I have said that I shall send it before 12 tonight. Also I have taken your advice about ‘lawyers’ not making excuses about the number of working hours (which I never have, for the sake of clarity)(You may also refer to my contract to be assured that legally I have waived the ‘working hours’ right). Please find attached Mel’s suggestion word document . . . As for the rectifications, a contract full of basic grammatical and sentence errors (apart from errors which are not merely cosmetic, for example: use of the word ‘later’ instead of ‘earlier’) does not do well for a company’s reputation, but that is only my opinion, of course, it is left to you as to whether you deem them important or not. Please do not hesitate to let me know (anytime and anywhere) if there are any issues with these documents”.[104]Ms Tanisik replied on 22 June 2018: “I am not in agreement with any of the other points about rectifications etc you have raised in your e-mails the example you have given in your e-mail is not reflective of the over-all mark-up. Criticism and challenge communicated in a professional manner are always welcome to improve things however it is best to have a conversation in person when you are back in the office. However in the meantime I find it useful to repeat a point despite the fact that this has been communicated to you countless times, that is, you are not expected to work after your contractual working hours and you have never been. With this in mind, you could have well figured out yourself that when something is expected from you today, this means it is expected until 6pm not when the day ends at midnight. I am extremely surprised to see you falling into so many confusions with the interpretation of this simple concept . . . Where you are not finished with something within your working day i.e. by 6pm or within any other deadline you are given within your working hours you should simply communicate this to me (by means of your own choice) with an update as to when you think you would be in a position to deliver”.[105]The e-mail raises an issue of the Claimant playing pool when dead-lined work was outstanding, which was an area of evidential dispute. The email concludes: “Reasons for your delay are not so much important to me as compared to the level of professionalism that is constantly being underreached here. It has been extremely disappointing to see that it has been so difficult to get this simplest conduct point understood and followed. At a personal level it has been worrying to see that an expectation to comply with a simple workplace practice to ensure a basic level of professionalism has induced such stress that had to keep you away from work today. To help the way you feel I genuinely hope you take some time to reflect and consider these from a professional – rather than emotional – point of view”.[106]The Claimant replied: “Your e-mails come with factual inconsistencies – this comes of no surprise, as this is not the first time you have done so. To clarify yet again, I have no issues with the type of work, the workload or work timings, on the contrary I have enjoyed every work given. I do however, have a problem with your attitude and behaviour in general. The last time I attempted to speak to you in this regard, you took it in the wrong way. You called me “young”, “junior” and “sensitive”. You also made an inappropriate reference to my “Indian Culture” – as if to say that I should be used to this type of conduct from you. And the very next day after the day I attempted to talk to you, you extended my probation in violation of my contract with zero explanation on why it was done so arbitrarily. When you disrespect clients with gross unprofessional conduct, there isn’t much respect someone your junior can expect”.[107]The Claimant clearly had not been instructed to stay up to midnight to complete the work. Neither was such action implied by document or conduct, or that there would be repercussions if she did not turn the work around that day, as demonstrated by the e-mail reply.[108]The Tribunal concludes that Ms Tanisik was not ridiculing the Claimant for taking stress-induced leave, but was simply reflecting the circumstances that she had not asked the Claimant to stay up to midnight, that there were no repercussions if the work did not get finished that day, that it could be completed the next day, and with the repeated instruction to the Claimant that if she could not hit a deadline to inform Ms Tanisik before the deadline had passed so she was kept in the loop. Ms Tanisik was reflecting that in those circumstances, which were the factual realities, she was worried that the Claimant had self-certified her absence from work with stress. The Tribunal concludes that although the e-mail was frank, this reaction was Ms Tanisik’s response to those prevailing circumstances and was not because of the protected act on 27 April 2018, even if Ms Tanisik had known about it. Paragraph 9 - Ms Tanisik gave the Claimant unreasonable and vexatious instructions.[109]The Tribunal has reviewed all of these allegations that are mainly set out in the Claimant’s particulars of claim at paragraph 27. It is not proportionate to set out all the evidence relating to them.[110]The Tribunal concludes that the issues are management points raised by Ms Tanisik. The biggest issue Ms Tanisik appears to consider she had with the Claimant was communication about work done, or to be done, within the required timescales. The Tribunal concludes that this state of affairs endured almost from the start of the Claimant’s employment and certainly before any of the alleged protected acts.[111]Those circumstances continued throughout the Claimant’s employment, with frustration shown by both sides. Ms Tanisik was frustrated that the Claimant appeared unable on occasion to comply fully with work instructions she had given and the Claimant clearly felt more empowered to stand her ground once her probation period had passed.[112]The Tribunal concludes that none of these matters arose because of any protected act. The difficulties existed before the alleged protected acts were made and deteriorated further due to the nature of the telephone call on 26 April 2018, again pre-dating the protected acts. Paragraph 10 - Ms Tanisik made false statement to the Claimant’s detriment.[113]The Claimant sets this allegation out in paragraph 114 of her witness statement. The Claimant states that during the disclosure process as part of these Tribunal proceedings she became aware that Ms Tanisik had written to the Finance Director, Mr Perrett, by email on 19 July 2018 (page 517). The Claimant argues that the matters set out in paragraph 4 are false in that Ms Tanisik states that, in response to a particular request, the Claimant refused to comply, took matters personally and gave a sarcastic reply.[114]The e-mail chain relating to this matter took place on 04 July 2018 and is in the bundle from pages 481 to 475A.[115]The Tribunal has reviewed that email exchange and concludes that Ms Tanisik’s view of the exchange is one that was reasonable for her to hold given all the surrounding circumstances.[116]Ms Tanisik did ask for a tracked changes version of a particular document on four occasions. The Claimant at one stage acknowledged that she would do the track changes required and send the document over to Ms Tanisik, but later stated that there was no tracked changes version. On two occasions the Claimant seems to prefer to take Ms Tanisik through the changes in a meeting.[117]The Claimant states: “I am happy to take you through the whole document in case you are sceptical of changes other than the ones I have put in the comments”. However, all Ms Tanisik was requesting was a tracked changes version that she could quickly and simply review, as was the expected practice and more efficient than a meeting. In cross-examination the Claimant accepted that this was a reasonable request[118]As for the alleged sarcasm in the final reply from the Claimant: “Great tip, thank you Duygu”, given the simplicity of the instruction, the preceding e-mail chain and the witness evidence, the Tribunal can understand how Ms Tanisik read it that way.[119]The Tribunal concludes that the e-mail to Mr Perrett was not done because of the Claimant’s protected act, but because that genuinely is how Ms Tanisik viewed the e-mail correspondence, created by the nature of the working relationship between Ms Tanisik and the Claimant, which had not been good almost from the start of her employment. Paragraph 11 – the Claimant was shopped to other departments for work unrelated to her job.[120]This allegation relates to an email dated 11 June 2018 by the VP of Sales, that the Claimant had been assigned by Ms Tanisik to the Commercial Team to carry out administrative work. The e-mail is at page 335 of the bundle.[121]The e-mail also confirms that all negotiated contracts go through Ms Tanisik and the Claimant, which is confirmation of the higher level work the Claimant was entrusted to do with work colleagues.[122]The Tribunal accepts Ms Tanisik’s evidence that in start-ups everyone can do every type of work and that she did similar administrative functions for the first 12 weeks of her employment and also undertook those tasks after the Claimant’s employment ended. Ms Tanisik genuinely considered them as support tasks typically undertaken in in-house teams and done by Paralegals. Paragraph 13 – the Respondent investigated the Claimant’s complaint on 26 June 2018 informally and without obtaining evidence from the Claimant.[123]The event on 26 June 2018 to which the Claimant is referring is a verbal complaint she made to the CEO Mr Nygard.[124]The Claimant raised the allegation of being shouted at by Ms Tanisik plus allegations of gross professional misconduct and inappropriately using the title Legal Counsel.[125]The Claimant produced an e-mail chain that she considered demonstrated gross professional misconduct. The Claimant believed that Ms Tanisik had been disrespectful to a particularly important client.[126]Although the Claimant stated in her e-mail to Ms Tanisik on 22 June 2018 that Ms Tanisik had disrespected a client with “gross unprofessional conduct”, her witness statement uses the term “gross professional misconduct” in relation to her meeting with Mr Nygard and the Tribunal concludes that this is what she said to him, as also confirmed by his own evidence. Nothing turns on it. It is clear the seriousness of what the Claimant meant to convey.[127]Mr Nygard looked at the e-mails and could see nothing representing gross professional misconduct. The Tribunal has also seen those e-mails and agrees with Mr Nygard that they display nothing of the sort and in fact is a good example of the Claimant’s animosity towards Ms Tanisik manifesting itself by seeking to find fault where none exists.[128]Ms Tanisik wrote an e-mail to a colleague cc’d to the CEO of a client who was well known to the Respondent. The e-mail requested a rescanned version of a legal agreement they were working on. The client sent an email in return in friendly and professional terms ending “PS and get a new scanner!”. In her reply to the client, equally professional, Ms Tanisik ended her email with “Our new scanner is arriving next Tuesday, please drop in for champagne! Have a good w/end”. The client sent a reply ending “VERY good news about the scanner. Have a good w/end”. The e-mails between the client and Ms Tanisik were good natured and professional. They are an extremely long way from “gross professional misconduct”.[129]The basis for the Claimant’s allegation that Ms Tanisik was inappropriately using the title Legal Counsel was also unfounded. Although not qualified in the UK, Ms Tanisik was professionally qualified in Turkey in 2009, where she had worked as a lawyer in banking. Ms Tanisik had communicated with the SRA over what she could and could not do since her move to the UK in 2012. The Claimant had not raised or sought to clarify this matter with Ms Tanisik or anyone before making her allegation to the highest person in the Respondent organisation.[130]It appears to the Tribunal that these two complaints to the CEO of the company are deliberately and solely trying to cause trouble for Ms Tanisik and as discussed above, the Tribunal finds on balance that they were not honestly believed. It is extraordinarily difficult to see how an allegation of gross professional misconduct can be made from the e-mail exchanges, and how a claim that the head of the legal department was inappropriately using the title Legal Counsel without even making the most cursory of enquiries. The Tribunal concludes from the facts and from the witness evidence that the Claimant did not honestly believe them to be true and her judgement at that stage was clouded by her animosity towards Ms Tanisik. Accordingly, the Tribunal concludes that they were made in bad faith.[131]Nevertheless, Mr Nygard asked Ms Malik to investigate the circumstances. Having considered Mr Nygard’s evidence the Tribunal concludes that the way he addressed the Claimant’s concerns was not adversely influenced by the fact that she had used the term harassment in the complaint to him. There was also no evidence that the Claimant expressed that she was formally raising the matter under the Respondent’s complaints procedure.[132]Ms Malik investigated the complaints.[133]On 3 July 2018 there was a meeting between Ms Malik and the Claimant. Ms Malik stated to the Claimant that she would try to resolve the issues informally. The Claimant in her witness statement confirmed that: “I went along with it hoping this would finally result in the abuse stopping”.[134]An informal meeting between Ms Malik, Ms Tanisik and the Claimant was arranged for 04 July 2018 and then rescheduled.[135]On 05 July 2018 Ms Malik summarised to the Claimant Ms Tanisik’s responses from the discussion on 3 July (page 514A). The Claimant provided her own responses by e-mail on 05, 09 and 10 July 2018.[136]On 10 July 2018 the Claimant sent an e-mail to Mr Nygard formalising her complaint.[137]The Tribunal concludes that the Respondent investigated the Claimant’s complaint of 26 June 2018 informally as the best way forward to resolve the issues and the Claimant was content at that time to try this route in the hope it may be successful. There was no detriment arising.[138]It is not factually correct, as demonstrated above, that the Respondent investigated the matter informally without obtaining evidence from the Claimant. Ms Malik considered the best way of addressing the issue was to clarify the position from both sides. That was a reasonable course of action and was not a detriment.[139]Even if these events could be considered to be a detriment, the reaction to the Claimant’s complaint was not done because the Claimant had made a protected act. The Tribunal concludes that Mr Nygard and Ms Malik would have taken the same action whether or not the Claimant had made any protected act. Paragraph 14 – the Respondent failed to respond to the Claimant’s request for the investigation to be formalised.[140]The request to formalise her complaints was sent by the Claimant to Mr Nygard on 10 July 2018.[141]Mr Perrett notified Ms Tanisik of the formal complaints also on 10 July 2018 to which she replied by email on the same day.[142]Without prejudice discussions and considerations were held between the Respondent and the Claimant from 11 to 17 July 2018.[143]Mr Perrett looked into the matter and produced a Summary Investigation Report that he provided to the Claimant on 20 July 2018.[144]Accordingly, it is not factually correct that the Respondent failed to respond to the Claimant’s request for the investigation to be formalised. Paragraph 15 - Ms Tanisik deliberately failed to return confidential documents belonging to the Claimant promptly.[145]On her second day at work in March 2018 the Claimant had lent Ms Tanisik some study notes she had used for the QLTS exam.[146]Ms Tanisik did not use these notes for her study and they had remained at her home inside the unopened envelope in which they had been given to her.[147]The Claimant had inadvertently included in that envelope some sensitive and confidential work documents relating to previous clients, but unrelated to the Respondent.[148]Ms Tanisik did not see the contents of the envelope until she was tidying up papers after her exam. It was at this stage that she realised the Claimant had included the confidential materials.[149]Ms Tanisik shared her concerns with Ms Malik that day, 03 July 2018, and said that she would return the documents. Ms Malik informed the Claimant.[150]The Claimant e-mailed Ms Tanisik on 03 July 2018 at 13.58 asking for the return of the papers: “I would like you to return to me ALL my notes along with ALL other documents that are with you, tomorrow promptly”. The Claimant also sent a text message to Ms Tanisik that day too at 19.42. The Claimant sent a further e-mail at 17.58 on 04 July 2018 stating “A gentle reminder again (third) . . . Considering its sensitivity, I again plead you to take serious note of my request and return my belongings to me with no further delay”. The Claimant copied in Ms Malik.[151]Ms Tanisik returned the documents to the Claimant first thing on 05 July 2018 and sent an e-mail setting out how she had re-sealed the documents in the envelope, had not shown anyone the contents, that it had been kept safe, but warning the Claimant about care with sensitive data, particularly relating to the Respondent. Ms Tanisik stated that she was not copying in Ms Malik to the email and that this would be the only one she writes on the topic.[152]The Tribunal concludes that there was no unreasonable delay in Ms Tanisik dealing with the issue, the brief delay did not amount to a detriment and also was not because of any protected act. Paragraph16.1 – The Respondent gave a settlement proposal to the Claimant on 11 July 2018. Paragraph16.2 – The Respondent stated retaliatory concerns in the settlement proposal. Paragraph16.3 – The Respondent failed to provide the Claimant with reasonable time to consider the settlement proposal.[153]It was quite clear that by the end of June 2018 that the working relationship between the Claimant and Ms Tanisik had completely broken down. It was not unreasonable for the Respondent to seek alternative means of addressing the matter and was perfectly entitled to do so by way of a compromise agreement subject to agreed terms.[154]The Tribunal has seen the terms of the settlement proposal, with both sides having waived any privilege. The passage to which the Claimant refers at paragraph16.2 states: “We have had some concerns about your conduct and performance at work, including communications with your line manager on company and personal e-mail and failure to follow reasonable line management instructions”. The Claimant was informed that if agreement was not reached the Respondent would next investigate the concerns further under the disciplinary policy “and then decide whether it may be appropriate to convene a disciplinary meeting”. The letter also confirms: “You should note that there is no obligation for you to enter into discussions with us in relation to this proposal. Whether you choose to do so or not, please also note that any response to this letter, and any correspondence or discussions which may follow, will have no bearing on any later disciplinary or performance management procedure or subsequent decision taken by us, in the event that we are unable to reach an agreement”. The letter was set by Mr Perrett the Financial Director.[155]The Tribunal concludes that this is typical content for a without prejudice settlement proposal letter. It is not a detriment to seek to resolve the matter through a settlement agreement where the Claimant can decide whether or not to accept the terms and during which both sides put their respective views of the situation not least as part of the negotiation. That is the nature of ‘without prejudice’ discussions. The Claimant could accept or reject the offer and put her view of events in similar terms as the Respondent.[156]The proposal was sent on 11 July 2018 and Claimant was given to 10.00 on 16 July to signify acceptance, which included a weekend. Upon representations by the Claimant, she was given an extension to 14.00 on 17 July 2018.[157]The Tribunal considers that the amount of time provided for accepting the agreement is largely a matter for the Respondent. It is the Respondent’s offer. The Claimant did not suggest an alternative time frame other than simply requesting an extension. As the Claimant and Ms Tanisik were still working together and the working relationship had deteriorated to such a degree, there was clearly some pressure over the time available for settlement to be reached. Paragraph 17 – The Respondent failed to respond to the Claimant’s e-mail about her complaint dated 17 July 2018.[158]The Claimant wrote an e-mail on 17 July 2018 to Mr Nygard and Mr Perrett, which is at page 582A of the bundle. The e-mail states in essence that the Claimant had seen no progress or outcomes to her complaints, complained of undue pressure regarding time for consideration of the settlement agreement and ending with a request that all the Claimant’s communications are preserved by the Respondent.[159]The Tribunal concludes that this is not an e-mail that required an immediate response. It was not a detriment not to provide one. The deadline for signifying acceptance of the settlement proposal had ended earlier that day and the Respondent was considering the next steps. The Claimant’s employment ended five days later. Paragraph 18.1 - Ms Tanisik influenced the process by which the Claimant’s grievance was investigated or the content of the grievance report.[160]The Tribunal concludes that Ms Tanisik did not influence the process by which the Claimant’s grievance was investigated or the content of the grievance report. The process was led by Ms Mailk and Mr Perrett. Ms Tanisik clearly needed to be afforded an opportunity to respond to the complaints about her by the Claimant and also the opportunity for her own complaints regarding the Claimant to be considered. Ms Tanisik was not involved in the decision making process of the Respondent. Paragraph 18.2 - Ms Tanisik retaliated against the Claimant by raising complaints about her conduct and performance.[161]The complaints Ms Tanisik made against the Claimant are at pages 517 to 523 of the bundle. The complaints relate to the 26 April telephone call; the probation period; the issue over tracked changes; complying and communicating over deadlines; the confidential documents and an issue relating to a group e-mail.[162]The issue over the group e-mail is addressed by Ms Tanisik in point 8 of her email.[163]The Tribunal finds as fact that Ms Tanisik gave the Claimant a draft commercial agreement for her to complete and a deadline of a week within which to complete it. The work was not finished and a number of extended deadlines were provided, which resulted in less time for Ms Tanisik to check the work over before it was given to the commercial team.[164]During this process on 20 June 2018, the Claimant wrote a group e-mail to Ms Tanisik and importantly, copied to members of the commercial team saying: “Pursuant to our conversation, I have attached the first draft of the CM Agreement . . . As you will see, this is fraught with language and grammatical errors and considering the importance you place for ‘details’, rectification of these errors took me longer than the other work. This is the most I can do considering I had about less than five days to finish this and a few days of exposure to CM, even after coming in early and leaving quite late in the night. I suggest you include every communication with me on e-mail as your versions are quite often different from my understanding. Hi Mel [one of the recipients], if I have the opportunity to take you through my questions I would. Let me know if there are any doubts”.[165]Ms Tanisik’s reply addressed the work issue and also said: “Regarding all the other points raised in your e-mail, I am sure you would be in agreement that this is not an appropriate platform to use so let’s take them offline”.[166]The Tribunal can understand why Ms Tanisik considered that this e-mail communication was wholly inappropriate. It is an e-mail to a line manager in the legal department, copied to the commercial team with whom they work, personally criticising her and with the issue relating to e-mail communication, appearing to question her honesty.[167]Particularly given the Claimant’s own keen perception of things said by Ms Tanisik as set out above, the Tribunal concludes that the Claimant knew the insult to Ms Tanisik.[168]The Tribunal concludes that the complaints that Ms Tanisik made against the Claimant were not retaliatory to the extent that it was done because the Clamant made a protected act. They were reciprocal because Ms Tanisik held a genuine sense of grievance both about the way she had been treated by the Claimant and the nature of the accusations. Given the findings made above by the Tribunal about some of the allegations made against Ms Tanisik, the Tribunal concludes that some sense of grievance was well founded.[169]Simply because one party happens to make a complaint first does not reasonably preclude the other party from making their own complaint, nor make it victimisation if the first complaint is a protected act. It may be that one party with a genuinely held sense of grievance may prefer to try to put it to one side, or first explore other resolution methods. It does not make any subsequent complaint necessary retaliatory, as the case here, it is simply a corresponding complaint. Paragraph19.1 – The Respondent suspended the Claimant. Paragraph19.2 – The Respondent barred the Claimant from contacting any member of staff of the Company and entering any premises of the Company. Paragraph19.3 – The Respondent invited the Claimant to a disciplinary hearing.[170]The Tribunal has reviewed the evidence relating to these matters. The relevant chronology is as follows, some of which has been addressed above:[171]On 22 June 2018 the Claimant sent an email to Ms Tanisik strongly alleging a range of issues and expressly accusing her of gross unprofessional conduct as set out above.[172]Ms Tanisik forwarded this e-mail to Ms Malik.[173]On 26 June 2018 the Claimant spoke to Mr Nygard about her allegations.[174]On 3 July 2018 there was a meeting between Ms Malik and the Claimant.[175]An informal meeting was arranged for 04 July 2018 between Ms Malik, Ms Tanisik and the Claimant, and was rescheduled.[176]On 05 July 2018 Ms Malik summarised to the Claimant Ms Tanisik’s responses from the discussion on 3 July. The Claimant provided her own responses by email on 05, 09 and 10 July 2018.[177]On 10 July 2018 the Claimant sent an e-mail to Mr Nygard formalising her complaint. Mr Perrett notified Ms Tanisik of the formal complaints (page 525) and Ms Tanisik provided her response by email (pages 526 to 528B), both also on 10 July 2018. Mr Perrett considered that there had been a serious breakdown in their working relationship. Mr Perrett formed the view both on the correspondence he had seen and through discussions with Ms Malik, that he had cause to believe that there were grounds for disciplinary action against the Claimant arising out of her behaviour towards Ms Tanisik and her intransigence in the face of what he considered to be unsustainable allegations against Ms Tanisik. He considered that the Claimant had only three months of her contract to run and saw no reason to allow the terrible atmosphere to continue if he could help it.[178]On 11 July 2018 the Claimant had a meeting with Ms Malik and Ms Perrett and the settlement proposal was put to the Claimant.[179]On 17 July 2018 the Claimant sent an e-mail to Mr Nygard and on 18 July the Claimant met again with Ms Malik and Mr Perrett.[180]On 19 July Ms Tanisik sent to Mr Perrett her formal complaints against the Claimant.[181]On 20 July 2018 Mr Perrett produced a Summary Investigation Report (page 622). This was provided to the Claimant, copied to Ms Malik. Mr Perrett considered that he had more concrete evidence of the Claimant’s behaviour towards Ms Tanisik and nothing to back-up the allegations the Claimant made against Ms Tanisik. The Claimant was suspended from work and invited to a disciplinary hearing on 24 July 2018. The Claimant was also informed to remain away from the workplace.[182]On 23 July the Claimant resigned.[183]The Tribunal concludes when assessing all the relevant circumstances that the Respondent appears to have proceeded to a disciplinary hearing without having undertaken a reasonable assessment of the Claimant’s grievance matters, particularly after they were expressly and formally made by her.[184]Mr Perrett, with advice from Ms Malik, appears from the terms of his contemporaneous report to have taken a view of the Claimant’s allegations against Ms Tanisik relating to earlier “informal complaints” by considering only e-mails between Ms Tanisik and Ms Malik and the formal complaints by considering the complaint and reply e-mails from the Claimant and Ms Tanisik. The Respondent’s formal grievance process was not followed. As a result Mr Perrett completed his ‘Investigation Report’, which starts by referring to the Claimant’s conduct at work, rather than her complaints, and concludes: “I do view some of the actions from DS to be a breach of conduct and malicious in their intent to cause distress to her line manager. There appears to be a breakdown of communication between DS and her line manager, and on balance I find it reasonable to believe that this is because of DS’s treatment of DT”.[185]The Claimant received no considered view of all her complaints but was subsequently invited to a disciplinary hearing, which states: “As separately confirmed, your line manager Duygu Tanisik refutes each of your specific examples of perceived bullying and harassment as detailed in your e-mail of 10th July 2018, including your claims that your culture and age were inappropriately mentioned. As you have been separately informed, I find no evidence to support your claim of either bullying or harassment from my investigation, however I do find your conduct in several instances to be a serious concern to the company”. The letter sets out the concerns and states “As a result of the above findings”, these conduct concerns would be discussed in a formal disciplinary setting. Mr Perrett, however, had not been able to discuss the Claimant’s grievances in a formal setting. The Claimant was suspended from work and told to remain away from the workplace: “in light of the upset and distress you have been causing. . . .”[186]The Tribunal concludes that it may be that the Claimant’s allegations against Ms Tanisik would all be unfounded, but if the matter was going to be considered with a report produced by Mr Perrett then it should have been done adopting the Respondent’s grievance process. In those circumstances the typical course of action would be to resolve the grievances and then institute any disciplinary issues once the grievance has been investigated and determined. This is particularly apt in the current case where Mr Perrett’s view at the time of Ms Tanisik’s management style was that she was “very demanding and very up-front”.[187]In this case the Respondent dealt with matters through e-mail and informal discussions. The Tribunal concludes that there were issues in respect of which the Respondent could have instigated disciplinary proceedings, but by going to that issue without adequately addressing the Claimant’s grievances first was detrimental treatment.[188]The Tribunal also further concludes that this detrimental treatment was at least in part significantly/materially influenced (in the sense of being more than trivial) because of the Claimant’s protected act of raising the issue of harassment. That is self-evident from the terms of the disciplinary hearing invitation itself. It should be noted that in when reaching this decision the Tribunal does not examine motive.[189]Therefore the Tribunal concludes that it amounted to victimisation by inviting the Claimant to a disciplinary hearing in light of the surrounding circumstances without first adequately addressing the Claimant’s grievances. Paragraph 20 – The Respondent pre-determined the disciplinary hearing.[190]The disciplinary hearing did not take place because the Claimant resigned in advance of it.[191]The Tribunal can understand how the Claimant will have formed the view that a fair hearing conducted by Mr Perrett as indicated by the disciplinary invite letter would have been highly unlikely, particularly given his comment on suspending the Claimant: “in light of the upset and distress you have been causing. . . .” and the terms of his investigation report.[192]However, the disciplinary hearing had not taken place and it remained possible that when hearing representations from the Claimant in the disciplinary hearing Mr Perrett may have formed a range of conclusions or, more likely, had the Claimant objected to him chairing the meeting, another more independent person may have conducted it.[193]There was no detriment to the Claimant. Paragraph 21 – The Respondent blocked the Claimant from appealing against the Respondent’s decision with respect to the Claimant’s harassment grievance.[194]There is no evidence that the Respondent blocked the Claimant from appealing against the decision by Mr Perrett regarding the Claimant’s complaints of 10 July 2018. No appeal was mentioned in the disciplinary invite letter nor the investigation report. The Claimant did not request an appeal, so one was not expressly turned down by the Respondent. This allegation has not been made out in fact. Unfair constructive dismissal[195]The Tribunal refers to all of the above matters when considering the Claimant’s unfair constructive dismissal claim. The Tribunal concludes that none of the matters raised individually or cumulatively amounted to a fundamental breach of contract, save for the issue relating to the Claimant being invited to a disciplinary hearing without adequately addressing her grievance complaints. The Tribunal has found that this amounted to victimisation and also amounts to a fundamental breach of the implied term of mutual trust and confidence that clearly formed part of the Claimant’s reasons for leaving her employment. It was conduct that had the effect of seriously damaging the relationship of trust and confidence. Therefore the constructive unfair dismissal claim is successful on the same point.
Remedy
[196]The matter will be listed for a remedy hearing. To assist the parties in settling the remedy issue given the current circumstances surrounding Covid-19 and the effect on Tribunal hearings, the Tribunal makes a preliminary observation that had the matters been addressed properly and fairly by the Respondent under policy it is extremely unlikely the Claimant’s contract would have been extended beyond the six months originally agreed. Given the Tribunal conclusions relating to some of the Claimant’s conduct, it would have been reasonable of the Respondent not to extend the contract beyond the six months originally agreed. There was no presumption of an extension in any event.[197]Accordingly, should this preliminary view be maintained by the Tribunal after hearing evidence and submissions on the matter, the Claimant’s remedy for loss of earnings would be limited to the salary she would have received had the contract lasted its full course, unless the Claimant can point to other circumstances that caused a resulting loss to her that is attributable to the actions of the Respondent.[198]It is possible the contract may lawfully have been terminated earlier than the end date of the contract had the Respondent adopted fair procedures within that time frame and if that is supported by evidence accepted by the Tribunal.[199]With regard to injury to feelings, any award will not reflect the injury to feelings that the Claimant considers that she has suffered throughout her employment with the Respondent. Any award can only be made regarding the injury to feelings arising only from the single act of victimisation found by the Tribunal. The parties are referred to the President of the Employment Tribunal’s guidance on injury to feelings.[200]The same observations apply to any claim for personal injury, if pursued the Claimant will have to produce medical evidence that is able to separate out the effects of the single act of victimisation from the effects of other matters the Claimant argues arose because of her employment.