Miss P Mallik v Arriva Kent and Surrey Ltd: 2303167/2021 and others
EMPLOYMENT TRIBUNALS
Case No 2303167/2021, 2301055/2023
Between
Miss Pialy MallikClaimantArriva Kent and Surrey LimitedRespondent
Before
Employment Judge FowellDate 24 February 2025
JUDGMENT
[1]In relation to claim number 2303167/2021, there was a breach of the equality clause in relation to the claimant’s contract of employment, with the result that Miss Mallik was entitled to a payment of £5,168.84. That payment was made on 12 August 2022 and no further remedy is due.[2]The remaining complaints are dismissed.[3]In relation to claim number 2303167/2021, those complaints included:(a) harassment on grounds of disability.(b) a failure to make reasonable adjustments.(c) direct discrimination on grounds of race.(d) breach of contract.(e) unlawful deduction from wages; and(f) in respect of holiday entitlement under the Working Time Regulations 1998.[4]In relation to claim number 2301055/2023, the claim included unfair dismissal. Page 1 of 25
REASONS
[1]These written reasons are provided at the request of Miss Mallik.[2]By way of background, Miss Mallik worked for the company as an Engineering Clerk at the company’s bus depot in Maidstone. In January 2020 a disciplinary allegation was raised against her, and it resulted in a final written warning. Although that sanction was overturned on appeal, she was so unhappy about it that she put in train a series of grievances, so many in fact that she was ultimately dismissed by the Managing Director on the basis that working relations between her and her colleagues had broken down irretrievably. As a result of those events, she brings claims of unfair dismissal, harassment on grounds of disability, direct discrimination on grounds of race, a failure to make reasonable adjustment and various claims for sums owed. Procedure and evidence History[3]These proceedings began with a claim for equal pay, submitted on 21 July 2021. As recorded in the first case management order on 27 November 2023, that prompted an equal pay audit, based on ‘like work’, which resulted in a payment of a little over £5,000 to Miss Mallik in August 2022. There was also mention of an equal value claim, but this was struck out at a second case management hearing on 27 March 2024. That decision is now subject to an appeal.[4]As things stand therefore, the only outstanding action from the first claim is to make a declaration, as provided by section 132(2) of the Equality Act 2010, as to the rights of the parties, which is now done in this judgment.
List of Issues
[5]One consequence of the appeal was that the Employment Appeal Tribunal (HHJ Auerbach) reviewed the list of issues in this claim and suggested some additional points which should have been included. Those points were included by agreement at this hearing, and I will work through the completed list in due course.[6]There was one further minor amendment: Miss Mallik’s claim alleged various disabilities, only some of which were admitted:(a) arthritis,(b) IBS and(c) stress, depression and anxiety. An imbalance in her ears was mentioned in her impact statement as a further potential impairment, but not conceded, and so that remains a live issue. Page 2 of 25 Members[7]Regrettably, late last week the parties were notified that there were no non-legal members available to sit on the case and it would have to be dealt with by me sitting alone. The respondent took a neutral view of the matter. Miss Mallik was unhappy with that arrangement but given the delay in arranging this final hearing she did not wish to see it adjourned again and agreed to continue.
Evidence
[8]In the last few days Miss Mallik asked to include many more documents in the bundle. The respondent agreed to almost everything and the bundle expanded from 871 pages to 1109 pages, with the final version emailed across to Miss Mallik at about 1 am on the first morning of the hearing. Although Miss Mallik was unhappy with the late arrival of this complete bundle I thank the company’s legal representatives for their efforts.[9]As far as I can see, the only items which the respondent did not agree to include were some financial charts of obscure relevance and a without prejudice offer of settlement dating back to August 2022. Miss Mallik argued that the latter was admissible because it contained a threat of dismissal but in fact it simply stated that without some agreement, they would have to take formal measures. As to the financial tables, these did have some relevance and I took them into account.[10]I heard evidence from Miss Mallik and, briefly, from her supporting witness, Mrs Jane High. Her role was as a Recruitment Business Partner, and she worked in a different department. Her statement did not deal with the specific complaints raised in this case; it was more general and maintained that she was not aware of any gossip or fallings out in the engineering department, and that Miss Mallik had got on well with some colleagues, including her original line manager, Mr Casey Bow.[11]From the company I heard from:(a) Mrs Usheena Patel (HR Business Partner)(b) Mr Andrew Whitehouse (Engineering, Safety and Improvement Director), who carried out the investigation that led to Miss Mallik's dismissal. (He has since left the business), and(c) Ms Alison Ashcroft (HR Director)[12]Mr Paul O'Neil (Managing Director, UK Bus) took the decision to dismiss her but in the event he could not make time at attend because of personal difficulties, so I have had to give his statement such weight as seems appropriate. It is relatively Page 3 of 25 short, at four pages. The decision letter itself, together with the record of his interview with Miss Mallik, substantially document his involvement.[13]There was limited time to hear from everyone. I was also listed to deal with a remedy hearing on the fourth morning of this case, which ate into the time available for this five-day hearing. I urged the parties to focus their questions on the main issues and Dr Ahmad completed his cross-examination of Miss Mallik by lunchtime on the second day. That left Tuesday afternoon and Wednesday for Miss Mallik to cross examine the three witnesses for the respondent. Each side then had Thursday morning to prepare their closing submissions.[14]Miss Mallik found it difficult to ration her time in any way. By way of example, the first witness was Mrs Patel. Her statement was largely about some background aspects of the case, and stated, for example: “3. I cannot remember when I first heard about the Claimant, Pialy Mallik, and the issues she was having at the Maidstone depot …” “4. From what I have been told…”[15]These introductory statements were challenged extensively as being evasive and unsatisfactory. I had to intervene a number of times to move Miss Mallik on to the parts of the witness statement that did address the issues in the case and to remind her that time was limited. Nevertheless, she spent over three hours with Mrs Patel. That left less time for Mr Whitehouse, who has now left Arriva, and had a limited window for giving evidence. I had to terminate questions to him when that time was up, after about an hour and a half but he had by then given a full account of his investigation. (At that stage it was not known that Mr O’Neill would be unable to attend.) Miss Mallik then used the afternoon of the third day for questions to Ms Ashcroft, again about the involvement of HR in the various processes.[16]I found him Mr Whitehouse a particularly impressive witness. He had clearly invested a considerable amount of time and effort into finding a way forward for Miss Mallik, and helping her to avoid dismissal, as I will go on to describe.[17]Having considered all that evidence and the submissions on each side, I make the following findings of fact. Not every point is dealt with, only those necessary to deal with the issues in the list of issues and to support the conclusions.
Findings of Fact
[18]Arriva is obviously a large and well-known company which operates trains and buses around the country, including Kent and Surrey – their Southern Counties region. Miss Mallik joined them in June 2018 as an agency worker, then from September 2018 as an Engineering Clerk, working in admin and payroll at the Page 4 of 25 company’s Maidstone depot. Buses run in and out of the depot from early in the morning to late at night. As well as bus drivers, the depot is base to maintenance staff, painters, cleaners and admin staff, with about thirty working in the engineering department. The initial disciplinary allegations[19]Despite the size of the bundle there are few records going back to the start of this dispute in 2020. The respondents have taken the view that the factual issues in the agreed list begin in October 2021 and so earlier events, certainly much earlier events, are not relevant. That seemed to me too purist a view. It is important to know something about the origins of the dispute. Fortunately, a full narrative is set out in the investigation report prepared by Mr Whitehouse.[20]Miss Mallik followed the respondent’s lead, and her witness statement only gave a page to events in 2020, with little detail. She does not say anything about the actual disciplinary allegation that led to her receiving a final written warning, just that it was an attempt by the depot manager to dismiss her on the basis of false information, and that several junior managers were asked to assist in this. Consequently, she states, she raised a grievance against “all of them, including the HR” and “Raised multiple acts of fraud and data breaches to them as well as asking them to look into my hourly rate but they failed to take any matter seriously.”[21]According to the Whitehouse report, which is more specific, someone made an allegation that Miss Mallik had shared confidential details about the sickness absence of another member of staff. It does not sound particularly serious, but Miss Mallik was suspended and then invited to a disciplinary hearing. That must have been very worrying, and she certainly felt it as a huge injustice. Hence, she raised a grievance. In it she complained that one of the apprentices had delivered the disciplinary pack to her home address – a breach of her privacy.[22]After the disciplinary hearing, notes from the hearing were found on a workbench used by a Mr John Tancred, a trade union representative. He was not the representative at the hearing, so it raised a question as to how he came by them. For some reason, that resulted in a further grievance rather than a complaint against the union.[23]The disciplinary process was paused while these grievances were investigated. Miss Mallik then went off sick. An Occupational Health referral was made, but it was done without her consent. She raised a further grievance about this breach of confidentiality and the haste with which it was done – she was contacted on her second day off work. She also made a Subject Access Request to find out who Page 5 of 25 was behind the Occupational Health referral. She continues to be very cross about it and emphasised it in her closing submissions.[24]Her appeal against the final written warning was, as already mentioned, successful, and no sanction was imposed. The view was taken that it was one person’s word against another. But the various grievances were rejected. Miss Mallik remained unhappy about the rejection of her grievance however and so, as far as I can see, she simply restated them sent them to someone more senior. The main grievance process – Ms Mary Collins[25]That complaint is set out in her letter of 9 June 2020 [509], addressed to “Senior HR Manager only” and included each of the above points. For example she complains at length there about the apprentice coming to her house, that it was a breach of data protection, that it was humiliating to have another member of staff turn up and give her a private and confidential letter on her doorstep, that he now had her address electronically stored in his mobile phone, and, to add insult to injury, the company had referred to this only as a ‘potential’ breach of her privacy. She complained too about the original disciplinary allegations made against her as vexatious and based on a false statement, that the process was defective or unfair in various respects, as was the conduct of the disciplinary hearing. She mentioned the lack of any welfare meetings during her absence and the unauthorised occupational health appointment. The language is emphatic. She stated, for example, “I am shocked at the continuous levels of deceit that have been undertaken by the Maidstone Management team.”[26]It was referred to Ms Mary Collins, HR Business Partner, who began her own investigation. She spoke to Miss Mallik and interviewed a number of witnesses. According to the Whitehouse report she found in Miss Mallik’s favour on several points but unfortunately that outcome letter has not been provided.[27]Miss Mallik’s witness statement does not give any indication of a favourable outcome, complaining that Ms Collins had failed to own up to the deceit by one of her colleagues who arranged the Occupational Health referral, ignored the multiple acts of fraud and data breaches she had raised, and that the respondents had “continuously lied” about the payroll issue. Suffice to say, she was not content with the outcome and raised an appeal. The grievance appeal.[28]That appeal was referred to Mr Kevin O’Leary, Engineering Director. They met on 23 March 2021. Not long afterwards, Mr O’Leary was contacted by Mr Tancred, the trade union representative, who wanted to raise a concern about comments Miss Mallik had been making in the depot. He felt that Miss Mallik had got away with the disciplinary allegation because of a mistake over the date of the incident Page 6 of 25 and that the management had formed a mistaken view that it could not have taken place as alleged. He agreed to give a statement, as did a colleague, Mr Billy Reynolds.[29]Pausing there, I take from this that feelings must have been running high, even then. It is fairly remarkable that Mr Tancred, a union representative, would go out of his way to get Miss Mallik into disciplinary trouble in this way. But the disciplinary process was not re-opened. It is not even clear whether they were told that nothing was going to be done about it. But nothing was done. Instead, Mr O’Leary completed the grievance appeal process and sent an outcome letter to Miss Mallik on 18 May 2021, rejecting all her complaints. Grievance from Tim Lynch[30]The complaint from Mr Tancred was followed by one from Mr Tim Lynch, a duty manager at the depot [220]. He had been suspended from work and wrote on 17 July 2021 to say that one of the office administrators had been telling one of the drivers why he had been suspended. It was soon confirmed that he was talking about Miss Mallik. The driver in question was a Mr Bjorn Barker, who supported the allegation.[31]That grievance was assigned to a Mr Richard Gilmore, Engineering Manager from another part of the region (Harlow and Ware). He held an investigation meeting with Mr Lynch on 30 July 2021 [222]. Mr Lynch’s union representative was concerned about Miss Mallik’s reaction when she found out about the grievance, and he urged Mr Gilmore to have her suspended.[32]As a general observation, the company went to great lengths to investigate the grievances raised by Miss Mallik, but the same did not apply to the complaints which were made against her. No outcome letter was sent to Mr Lynch, and Miss Mallik was not even informed of it at the time - it was simply left in abeyance. One possible explanation is that by then Miss Mallik had issued her first claim for equal pay, and it might have looked like an act of victimisation, but the lack of action can have done little for the morale of those who had raised things.[33]In fact, shortly afterwards, Miss Mallik found out about the statements made by Mr Tancred and Mr Reynolds. They were referred to in the grievance outcome letter, and she then made a Subject Access Request to get hold of them. As they had feared, she then raised grievances against them both.[34]Mr Tancred emailed Mr O’Leary on 12 August 2021 [850] to say that she had now put in a complaint to Unite against him and that it was making the working environment very uncomfortable, adding: “I’m not sure how much longer Maidstone can go on like this. Page 7 of 25 Or how much more I personally can take. Something needs to be done fast.”[35]These are strong words. But nothing was done, certainly not for several months. Grievance Stage 2 Appeal Meeting[36]Although Miss Mallik’s main grievance had been considered by Ms Collins and Mr O’Leary (not to mention the previous managers) it was then referred on to Ms Hilary Tysoe, Human Resources Director, UK Trains. Miss Mallik’s concerns had therefore reached a very senior level within the company. She went to London on 14 October 2021 for an investigation meeting with Ms Tysoe. In fact, the first allegation in the list of issues is a complaint that Miss Mallik should have been paid for her lunch and travel time for going to that meeting. Her train ticket, however, was paid.[37]The notes of that meeting show the pitch to which matters had risen. Miss Mallik referred to there having been “multiple levels of fraud”. She complained about the smoking shelter allegations, about Mr O’Leary for dismissing her grievance, and about Mrs Patel, who had provided HR support. Her criticisms extended to the company’s legal department, who were defending the equal pay claim and to Ms Ruth Abdey, the Head of HR, whom she had contacted about delay in the grievance process. At one point she said that her grievance documentation named 35 members of management who had not been “honest, respectful or truthful.” Craig Farmer[38]When not in meetings of this sort, Miss Mallik was working as normal in the depot. Her line manager by then was a Mr Craig Farmer, who arrived at the beginning of September, and began to question some things. One was about her overtime payments. Miss Mallik’s position is that she was entitled to overtime whenever she had to stay late, that she did not need to have it authorised in advance and since she worked in payroll, she could ensure that it happened.[39]It seems that when Mr Farmer raised this with her, she took strong exception. There was an incident on 18 October. According to Mr Farmer, she told him he was shit at his job and stormed out, slamming the door. Miss Mallik refuted the details but accepted that she had been angry and described him as having crossed through her timesheets like a child. She left work that day and went off sick. In fact, that was her last day of work at the company. All of the events that followed took place while she was off sick, on special leave or suspended. Grievance Stage 2 Appeal Outcome Page 8 of 25[40]It was during her absence that Miss Mallik received the appeal outcome letter from Ms Tysoe [727]. By then, 26 November, Ms Tysoe had interviewed Mr Tancred and Mr Reynolds (who stood by their statements) together with Mr O’Leary and three others from Maidstone. Mr Tancred and Mr Reynolds told her that the atmosphere at Maidstone was toxic, and they could not understand why Miss Mallik was so aggrieved, given that she had been cleared of the original disciplinary allegations. It also emerged that Mr Reynolds had a video of Miss Mallik on his phone, to support his claim that she had been speaking about people’s personal information at work, although he had not shown it to anyone. Although the grievances were not upheld, Ms Tysoe stated was concerned that there had been what she described as a breakdown in the working relationships and she recommended mediation as a way “to support you, Billy, John and others in regaining each other’s trust and confidence.” [733].[41]But Miss Mallik did not agree. Her view, which she maintains, is that this video was evidence of stalking and harassment by Mr Reynolds and that he should have been sacked. Being placed on special leave[42]One of Miss Mallik’s complaints is that she had no welfare meetings during this absence. Mrs Patel’s evidence was that it was difficult to find anyone who was prepared to do it, given that she had complained about her line manager, and also about Mrs Patel herself, and Ms Collins. Managers were reluctant to get involved because of the fear that grievances would then be raised against them.[43]When Miss Mallik was ready to return to work the situation was referred to Ms Alison Ashcroft, HR Director, who took the decision to place her on special leave. Her email of 2 December 2021 again recommended mediation and also an Occupational Health referral to make sure that she was well enough to return. She went on: As a result, rather than returning on Monday, I am now asking you to stay at home. You will do so on full pay. This period at home will be a period of special leave. It will not count towards your annual leave and will not be included in any figures regarding sickness absence. Please also note that this is not a suspension nor any other form of disciplinary action. Instead, this period of special leave (when you will be at home on full pay) is to allow us time to conclude your outstanding grievances and then to try to find a way to restore the working relationships at Maidstone to a more amicable level.”[44]It is difficult in fact to overstate the extent of Miss Mallik’s dissatisfaction with this course of action. She did not see it in a positive light. It was very much resented. In fact, it almost overshadowed the dismissal itself as the focus of this hearing. She felt, understandably to a point, that it showed that the company believed that Page 9 of 25 she was to blame for the state of affairs in the depot, and that they would rather pay to her sit at home than have her there, causing trouble. She did not agree to an Occupational Health referral either, but she did remain off work.[45]On 26 December, however, she came into the depot. She wanted to get some evidence in support of her equal pay case, which she had begun in June. She had not actually been banned from attending the depot and so she saw no difficulty in attending, but it resulted in another row with Mr Farmer. They then complained about each other. Her complaint said that he should be told to mind his own business.[46]In the New Year, disputes continued. Ms Ashcroft was her main point of contact at this stage and Miss Mallik emailed her on 4 January, at considerable length, stating, for example: “Therefore, I will make this point very clear, that if you are still intending to continue ‘claiming ignorance’, then any understandings that you need to obtain regarding the continuous corrupt conducts of practice which are reoccurring, time after time, within the workplace, then I suggest that you contact ACAS directly, whom I believe would be the appropriate Professional Company to give you their ‘documented lawful advice’. … “You are now stopping me from returning to work because of a non existent ‘toxic atmosphere’ – What toxic atmosphere are you talking about exactly and by this, I would like to know what this toxic atmosphere is in relation to, which has led you to stop ‘me only’ from returning to work.”[47]There was certainly no attempt here to win favour with the management by any show of cooperation. In fact, Miss Mallik was very candid at this hearing that she was very angry about having to continue on the special leave and being excluded. And again, that is understandable, to a point. Her focus was on the injustice of her situation, as she saw it, rather than on mending fences with colleagues or management in order to bring about that return to work. Ms Ashcroft had a meeting with her in London on 8 February 2022 to try to persuade her to take up the option of mediation, to no avail. She remained off work with no resolution in sight. Ms Hibbert’s grievance[48]In early April 2022 Miss Mallik went into work again and there was another row. This time, it resulted in a complaint from a colleague, Ms Romana Hibbitt. According to her letter of 4 April [316]: “Please accept this letter as a formal grievance about an incident what happened on Monday 4th April with Pialy Mallik. Page 10 of 25 Upon entering the team leader’s office to change the bins, I was questioned by Pialy with regards to work I was doing in her absence, she also questioned me about my overtime to cover this work at which point she showed me a piece of paper with 50 hours written on it and said that I had been doing an average of 50 hours a week. She wanted to know why I had not messaged her to give her the thumbs up that I was covering her work and said, “why had a cleaner who was on probation been trained in oracle” she tried to insist that I was doing her job role in her absence and told me that bus drivers had been keeping her informed about me doing her job in the detail office, at this point she accused me of being a backstabber and two faced and said that she had thought of me as a friend but not anymore. … Throughout the whole line of questioning I was subjected to, I found Pialy to be threatening, intimidating and verbally aggressive towards me, I felt that she was insinuating that my job could be at risk due to me still being within my probation period and doing her work. “Why was a cleaner on probation doing her job!” were her words to me. The tone and aggression of her voice I felt implied I was being belittled for being a cleaner and I had no right to be doing any of her work. Initially when I was first asked by management to cover the defect cards, I expressed my concerns about Pialy’s reaction to this, knowing the ongoing situation with her against Arriva and all of her grievances against various members of staff and felt I would potentially become one of her grievances”[49]This time the complaint was taken seriously, and Miss Mallik was placed on disciplinary suspension. The difference from special leave was minor in practice but it did prevent her going into the depot. The investigation by Mr Gilmore[50]This new matter was also referred to Mr Gilmore, who rang Miss Mallik to tell her that she was suspended. Miss Mallik was out shopping when he rang and says that she spent an hour on the phone to him taking about it; hence one of her claims is for an hour’s overtime.[51]She then made a counter-grievance against Ms Hibbert [333] accusing her of slander and defamation.[52]There were no direct witnesses to the argument but one member of staff, Mr Hopcroft, had seen Ms Hibbitt shortly afterwards and was later interviewed to confirm that Ms Hibbitt had been distressed. Miss Mallik was interviewed on 9 May 2022 and accepted that there had been a disagreement. She said that she spoke to Ms Hibbitt, told her she had heard that Ms Hibbitt was doing her job, that Ms Hibbitt got defensive and said she was just helping with defect cards, that Miss Mallik told her she was lying and that Ms Hibbitt denied it. All in all, there is not much difference in the accounts. Page 11 of 25[53]Mr Gilmore’s outcome letter, on 4 July 2022 [436] states: “James Hopcraft being a witness has provided a contemporaneous account so I believe that something clearly happened, balance of probability is I believe there was a conversation of potentially aggressive and of a not pleasant nature, but it should have been for you to speak to the management team and not challenge Romana directly is this is unprofessional and not necessary. This grievance will not result in disciplinary action, however my recommendations will be;• The need to better understand confidentiality• Reminders about good, expected behaviours[54]That is, arguably, a very generous assessment for someone who was on special leave at the time because of the state of relations at work, and who had come into the depot and then proceeded to challenge a colleague in this way. There was certainly no attempt by her to avoid conflict, which was the least that might have been expected in the circumstances. Ms Hibbitt appealed against this mild conclusion, but without success.[55]At about the same time it came to light that nothing had been done about the grievance raised by Mr Lynch and that was finally investigated. Miss Mallik was interviewed about it on 13 June [397] but no action was taken as a result. The only change was that Miss Mallik’s suspension was lifted and things returned to the previous state of affairs – special leave. Certainly nothing had changed to alter the reasons for her to stay away. If anything, there was more evidence to show the parlous state of relations between Miss Mallik and her colleagues. Further complaints[56]As already noted, Miss Mallik also raised a complaint about Mr Farmer following the disagreement in December and this was passed to a Mr Steve Bond, Engineering Director, to investigate.[57]At the same time, and for reasons which are unclear to me, the company allowed a further appeal against the conclusions of Ms Tysoe, which was dealt with by a Mr Marcos Hart. He gave his decision on 7 June 2022 and did not uphold either the appeal or the complaint. Miss Mallik appealed his decision in turn, on 20 June, so there appear to have been limitless opportunities in practice for Miss Mallik to appeal, until she came to the top of the organisation.[58]Also, that day she raised a further, formal grievance [433] about the length of her suspension, as she termed it. That was not included in the existing, long-running, grievance about the events which led to her being placed on special leave (the main grievance) but was referred instead to a Mr Jon Sweet, who had a meeting Page 12 of 25 with her on 6 July [444]. As a result, there were at least three sets of proceedings underway at that time, being dealt with by Mssrs. Bond, Hart and Sweet.[59]Her appeal against the decision of Mr Hart in the main grievance, meanwhile, was referred to Mr Whitehouse, which marks the start of his involvement. Again, he was Engineering, Safety and Improvement Director for the whole company, one of the statutory directors, and reported directly to the Managing Director, Mr O’Neill. Mr Whitehouse had meetings with Miss Mallik in July and August, then met her again on 2 September 2022 to give her the outcome.[60]The August meeting, which as usual involved a representative and a note-taker, was the main discussion, but it is clear from the notes [929] that Miss Mallik was more concerned with process. They spent about half an hour on whether it was a formal or informal meeting and Mr Whitehouse was only able to persuade her to move on with difficultly. He recorded his decision in a letter of 5 September [936]. In it he noted: “To enable your return to work, it has been explicitly noted that the company feel it is necessary for you to partake in meaningful mediation with a number of members of the Maidstone team. In my opinion the imposition of special leave was an appropriate decision at the time. The findings of a toxic environment required resolution and the intention was to allow for a more durable fix to be found with mediation being a key element of this. I have therefore concluded your period of special leave needs to be extended until we are confident that working relationships can be restored at Maidstone, to ensure we address the Company’s duty of care to both you and your colleagues.”[61]He asked for a response to the proposal of mediation by 16 September. She did not respond, and he had a further meeting with her on 30 September to see if she had made a decision [939]. He discussed with her the importance of mindset, the need to express feelings as part of a mediation process, and that it would help to let go of negative emotions. She responded by asking him why he had waited till September and maintained that her suspension was illegal and that there had been no relationship breakdown. Despite all this, Mr Whitehouse agreed to give her another two weeks to make a decision. The answer came, on 10 October, in the form of a markedly hostile letter from solicitors acting on Miss Mallik’s behalf [475]. In it, they complained about her being suspended and said that there was no basis to assert that there was a toxic atmosphere at work. Mr Whitehouse’s investigation[62]This seems to have been taken as a definite ‘no’ on her part, and Ms Ashcroft decided that enough was enough. Her solution was to arrange an investigation into whether or not the working relations had indeed broken down irretrievably, and Mr Whitehouse agreed to take this on. Page 13 of 25[63]His investigation involved a visit to the depot on 19 October 2022 to find out, if possible, what the state of relations were there. He went down the night before and stayed over so he could be on site for when the first buses went out in the morning, then got into the office for about 5.45 am. He spent a few hours talking to the local management. The theme that emerged from those conversations were that Miss Mallik used to be much more positive, but the disciplinary matter had changed all that and she felt that justice had never been served. She had not let it go and now, they felt, things had gone too far; it would not to be feasible for her to come back.[64]He then went out to talk to the staff on the shop floor, having given some thought to the best approach. He took with him Mr James Hallett, the depot manager, who was fairly new. Mr Hallett did not know Miss Mallik, but he knew the staff, and Mr Whitehouse felt that it would reassure them to know that his visit was something that had his support. He spoke to people in no particular order, as he came across them, trying to make the exchanges as natural as possible. If someone was on a bus, they chatted at the back of the bus. He made some notes but did not ask people to make statements because that might have led to further grievances from Miss Mallik. Then, at 12.45, he sat down for a meeting with her [546].[65]This time there were just the two of them and a note-taker. He started by explaining that it was an investigation meeting and he wanted to put to her some of the things that had been shared with him that morning, to get her views. He read out some examples. They are so offensive that I am reluctant to refer to them in this judgment. There were many of them and they included terms like spiteful, poisonous and vindictive.[66]Mr Whitehouse explained in his evidence that he was looking for some acknowledgement of these difficult comments – some remorse, regret, surprise, some willingness to fix things or even just to accept that that was their view, but her response was to question his impartiality. The discussion continued but there was no acceptance on her part of the truth of these comments, and she continues to dispute them.[67]I should also mention that there was a specific dispute about what was said at that investigation meeting. One of the allegations, added at the prompting of HHJ Auerbach, is that Mr Whitehouse made a remark to the effect that Miss Mallik was using her mental health as an excuse.[68]The notes [552] record the following: “[discussion during short adjournment around behaviours - PM stated that she had depression; AW responded that this didn’t excuse the behaviours she was exhibiting. PM felt that AW was saying that depression is “just an excuse” - AW Page 14 of 25 clarified this wasn’t what he was saying - understand things are difficult for her at the moment, but it doesn’t excuse aggressive behaviours.]”[69]Mr Whitehouse was asked about this in his evidence and said there had been an explosion at that point by Miss Mallik, who took a comment out of context. This is of course difficult to resolve but there is no other trace of any exasperation on his part, throughout the many meetings he had, including long discussions about whether meetings were formal. On the other hand, Miss Mallik had been challenging the honesty and good faith of management throughout and was keen to put the worst construction on what was said. In those circumstances I prefer his account that nothing inappropriate or disparaging about mental health was said and in particular I am satisfied that he did not use the words “just an excuse”.[70]After that meeting, he went away to prepare his investigation report. While he was doing so Miss Mallik went into the depot again. This was raised by a Mr Wayne Oakley on 1 November 2022, the National Vice-Chair of Unite [555]. He reported that her presence had caused “at least 4 members of the engineering team to basically hide away. She certainly stressed-out young Jack the cleaner …”[71]As a result, she was suspended again, pending a hearing with Mr O’Neill, and while Mr Whitehouse completed his investigation report. Given the effort involved in its production I will just explain briefly its scope. As already mentioned, it set out a comprehensive history of the various complaints going back to 2020. This included those by and against Miss Mallik and the decision to place her on special leave. It also set out a summary of interviews with the local management together with other comments from staff members from his visit on 19 October, and while it contained no express findings about whether the working relationship had broken down it did state: One interpretation of the above may be that there is very little to suggest that PM has taken on board the warnings made by Steve Bond. She persists in her view that there is not a toxic working environment in Maidstone or that her behaviours are in any way the reason it exists. Another interpretation is that PM has so little trust in the company or any of its leadership (local or national) that in fact, even if gestures of kindness such as the provision of sandwiches or a pay rise, lead to suspicion and complaints it may be genuinely quite difficult to see how a positive working relationship can be restored. Even a letter confirming that no action would be taken in relation to the disciplinary matter of January 2020 was appealed. There is information to suggest that the working relationship may have deteriorated to such an extent that it is no longer feasible. The final hearing Page 15 of 25[72]Although I did not hear evidence from Mr O’Neill, as I said at the outset his involvement is well documented. Miss Mallik was sent a copy of the investigation report, and they had a formal meeting on 19 December 2022. Miss Mallik was of course aware that Mr O’Neill was considering dismissing her because of this breakdown and working relations and it was essentially her last chance to avoid that outcome with some show of flexibility. That was clear from the investigation report itself and from the invitation letter.[73]He began with a lengthy script, setting the scene for the meeting, and explaining that “some other substantial reason” is a potentially fair reason for dismissal. This document bears clear hallmarks of having been legally drafted, and it shows some anxiety about keeping the meeting on track and not going back over the detail of previous grievances. He then put forward a series of questions including whether she genuinely believed that she could return to her role at Maidstone, whether she accepted that relations had broken down, asked what would be needed for a return to Maidstone, whether she would be willing to consider any redeployment and finally how she responded to the various comments made by her colleagues.[74]It is not necessary to say much about the subsequent discussion but not only did Miss Mallik continue to insist that there had been no breakdown in relations, she said that there had been no discussion with her about whether the relationship was tenable. She did say however that she was open to mediation as long as it did not affect her existing court cases, something which was not an issue from the company’s point of view. She was not open to redeployment, however.[75]Consequently Mr O’Neill, or more accurately his HR advisors, went off to explore the possibility of mediation at this eleventh hour. Enquiries were made at the depot but none of those she had complained about was willing to enter mediation. That left Mr O’Neill with little option. The key passages from his outcome letter are as follows: “You challenged the accuracy of the interview accounts set out in the report prepared by Andy Whitehouse. However, as explained at the hearing, I have taken steps to verify those accounts and regretfully it is the case that some of your colleagues believe their relationship with you to be unsustainable and in some cases, colleagues are seriously apprehensive about a potential return to the Depot. … Whist I can understand that you may have reason to feel aggrieved about the conduct of the Company, particularly in relation to the imposition of special leave, it is my finding that you in turn have contributed to creating an atmosphere of extreme and ingrained distrust and animosity between both parties and - notwithstanding the fact that at least three of those involved are now not amenable to engaging in mediation - I feel that mediation would not effectively solve this issue in any event. Page 16 of 25 Your union representative proffered that if concerns had been adequately addressed at an earlier juncture, issues would not have been allowed to fester and escalate. I accept this assertion. However, this doesn’t remove the stark fact that the current situation is now untenable. The working relationship between yourself and your colleagues has irretrievably broken down. Of this I am certain. In my professional opinion, the volume, breath, and scope of the various grievances that you have raised since the commencement of this matter back in 2020 is testament to the extent of the breakdown in the relationship. Nearly every manager or company representative who has been tasked to participate in the management of your case has found that they are the subject of a grievance, and - even when grievances have been upheld in your favour - further appeals and challenges have followed. To be clear, you are not being dismissed for raising grievances; this is your statutory right. However, there appears to me to be a reluctance to ever accept the outcome of grievances and I genuinely don’t believe it is therefore credible for you to maintain that you are not at odds with the Company and that a return to work is feasible. There is clearly a significant level of mistrust.[76]It is difficult to disagree with any of those conclusions. Miss Mallik was paid her notice pay in full, with her holiday pay for that year.[77]She appealed against this decision but of course there was no one more senior than Mr O’Neill to appeal to and he decided [643] that as he was the most senior figure in the organisation “… it would be unconscionable for me to suggest that this decision would be overturned.”[78]That concludes my findings of fact, and I will turn to the various complaints, starting with the smaller ones. Unlawful deduction from wages under section 13 Employment Rights Act.[79]There are various claims for unlawful deduction from wages. In particular:(a) overtime pay for the last week that she worked.(b) travel time and lunch allowance for attending the meeting in London on 14 October 2021, and again on 8 February 2022.(c)£30 for printing materials in relation to her grievances claimed on 4 March 2022; and(d) overtime pay for one hour speaking to Mr Gilmore when she was suspended.[80]The question in each case is whether such sums were properly payable. I will start with the overtime pay.[81]The last of these points – time spent talking to Mr Gilmore on the phone – is clearly unarguable. This was a call during the working day, while Miss Mallik was being paid in full. There is no reason why she should be paid twice. Page 17 of 25[82]More generally, it is a very unusual suggestion that overtime is payable without being approved in advance. That is an elementary safeguard in almost all workplaces. There is no basis for it in Miss Mallik’s contract of employment [208]. That makes no mention of overtime at all, authorised or otherwise. Nor does it appear in the company’s expenses policy [176]. The sick pay policy makes reference [190] to salaried staff being able to take Time Off in Lieu where they regularly work long hours of unpaid overtime. So, at most, Miss Mallik’s evidence is that it while it was not the official policy, it had become custom and practice in her area. The respondent does not dispute that people were paid overtime but says that it needed to be authorised in advance.[83]The tables which Miss Mallik provided show the amount of overtime people were paid. They are dated 7 December 2021 so were prepared by her at the start of her special leave, presumably from payroll records. They shows that of ten employees, six had received overtime payments in the previous six months. One of them was her, with 101 hours. Two others had large amounts – 225 hours and 157 hours respectively, but the others had little or none. And that does not help on the question of whether permission was needed.[84]It is well-established that to be a term of the contract it has to be ‘reasonable, notorious and certain.’ - Devonald v Rosser & Sons 1906 2 KB 728, CA. Such an arrangement is not, in my view, reasonable, given the scope for abuse, and so this complaint must fail. In any event there is no evidence that this practice of selfauthorised overtime went beyond Miss Mallik, so I do not accept that it was notorious either.[85]The other claims are for expenses, but expenses are specifically excluded from the definition of wages by section 27(2) Employment Rights Act 1996. Nor is there any contractual right to them. The company did not agree to pay them, either at the time or in any stated policy. Hence, these claims too are dismissed. Miss Mallik may regard it as reasonable that the company pays for her printing materials etc., but that is not a sufficient basis to order payment. Annual leave[86]Miss Mallik says that in the year to 31 March 2022, while she was on special leave, she accrued 19 days of annual leave which she was not paid for. Nothing was said about annual leave arrangements during this period, and she did not ask to take any part of that time as holiday.[87]The Working Time Regulations 1998 only allow for holiday payments when the employment comes to an end. A worker does have to be given a reasonable opportunity to take holiday in the year in question. That may not be the case where, for example, the worker is off sick for a long time. Sickness absence and holiday serve different purposes and cannot be conflated. But that was not the Page 18 of 25 position here. Miss Mallik was not expected to remain at home. She did not have to report in. There would have been nothing to prevent her taking a holiday or making a request to take any given period as leave. In those circumstances I cannot see any basis to uphold a claim for further leave payments and of course she was paid throughout the period in question. Breach of contract[88]There is then a separate allegation of breach of contract. Although framed as two separate complaints, the decision to place her on special leave and the decision to refuse to allow her to return to work after her period of ill health, which ended in early December 2021, are essentially one and the same.[89]Miss Mallik has of course made this a focus of the claim, disputing that there is any such thing as special leave, and arguing that it is illegal. It is certainly not mentioned in her contract or in any policies. By calling it special leave it seems to me that the company were keen to ensure that she understood that she was not accused of any misconduct.[90]People go to work for a variety of reasons not just to collect their pay. It provides them, hopefully, with a sense of worth and fulfilment and gives them the company of others in a shared endeavour. The mental health benefits of work are well recognised so to keep someone out of the workplace for a long period can be very detrimental. But here the circumstances were highly unusual, and it does not seem to me that the company kept her out of the workplace for longer than was reasonable in the circumstances. The original decision appears to me fully justified, and at no point after that did Miss Mallik do anything to call the need for it into question. The rationale was in fact fortified by her occasional visits to the depot, with the resulting disagreements and further grievances.[91]Accordingly, I conclude that there was no breach of contract but even if I am wrong about that I cannot see that any financial compensation could be due in the circumstances. No compensation for injury to feelings can be awarded for breach of contract. Discrimination Burden of Proof[92]Turning to the discrimination claims, for each type of discrimination, the key question is the reason why the employer acted as it did. Was it because of Miss Mallik’s disability or race? Or was the harassment related to it?[93]That does not have to be the only reason, or even the main reason, it just needs to have been a significant influence. That influence can even be the result of subconscious bias. Having heard the evidence from each side and made findings of fact, I have to decide whether the proper inference to draw is that there was such bias at work; in other words, whether it was tainted by discrimination. Page 19 of 25[94]The Equality Act gives us a structure to follow in carrying out that exercise. Section 136 deals with the burden of proof. It provides that: (2) If there are facts from which the [tribunal] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the [tribunal] must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.[95]So I first have to decide from all the evidence whether there might have been discrimination involved. If so, it is then for the respondent to satisfy me that there was not. A mere difference in treatment is not enough by itself: something more is required. That may be some other feature of the case – the timing of the decision perhaps, or that it was out of the ordinary for some other reason. So, for example, if a manager takes a decision to discipline a member of staff of a different race or sex or age group over a dispute at work, that will not by itself call for an explanation, but if the manager’s normal approach is to opt for mediation, it may well do so. There generally has to be something out of the ordinary, something which calls for an explanation. Direct discrimination on grounds of race[96]Applying those principles to this case, I will deal with the allegations of race discrimination fairly briefly, for the simple reason that they scarcely featured in this hearing at all. Summarising those allegations they include:(a) being taken directly to a disciplinary hearing in May 2022 following the complaint made by Ms Hibbitt without a fact-finding hearing.(b) being left on suspension after that meeting.(c) being denied the right to follow the grievance procedure in relation to her counter grievances against Mr Lynch, Ms Hibbitt and others.(d) being accused of gossiping about Mr Lynch in Mr Whitehouse’s report.(e) being suspended again on 4 November 2022.[97]There are then some undisputed events:(a) being put on special leave.(b) being investigated in relation to the complaint by Mr Lynch.(c) being suspended following the complaint made by Ms Hibbitt; Page 20 of 25(d) being investigated in relation to the complaints by Ms Hibbert.(e) being put back on special leave afterwards.[98]Some of these points are simply unfounded. She was not invited to a disciplinary meeting over the allegations by Miss Hibbert, it was a grievance investigation meeting. For that reason, she remained suspended for a brief period after that meeting while the investigation continued. Further the Whitehouse report did not accuse her of gossiping, it simply referred to the historic accusation against her.[99]Other accusations are clearly misconceived. Direct discrimination involves less favourable treatment on grounds of race but in most respects, there is nothing to suggest that she was treated any differently to a hypothetical white person in the same circumstances. For example, her counter grievances (as the name suggests) arise from the same dispute and there is no reason to expect a separate process to address them. The procedure adopted by the company would have been the same for anyone.[100]And while it is true that she was suspended again on 4 November 2022, this was during the final stage of the process. It was shortly after she had attended the depot again, causing further disruption, and appears perfectly appropriate in the circumstances.[101]Equally, and for the reasons already given, all of the admitted steps seem perfectly appropriate. They are what would be expected in the circumstances. Nothing here suggests that race may have been a motive so as to call for any further explanation from the company.[102]In fact, at no stage prior to the submission of her tribunal claim was there any mention of race (or disability). None of the many and lengthy emails complaining about her treatment suggest any such connection. When she was asked about this in the course of her evidence, Miss Mallik gave various explanations to the effect that she was not required to explain these matters to the person concerned. She also said that it was referred to in the further information she provided, although in fact that only refers to race discrimination in the headings or subheadings. Even her witness statement makes no mention of race. In response to that she said that Employment Judge Wright had a copy of the witness statement at the last preliminary hearing and that it was her job to tell her that she needed to put in such things. That is not the case. Overall, there is nothing tangible to support an allegation of race discrimination, or even to show that she had that view at the time, and so these complaints are dismissed. Disability[103]Some of the same points can be made in relation to the complaints of disability discrimination. As already noted, the respondent has conceded certain Page 21 of 25 disabilities, including stress, depression and anxiety. Miss Mallik also relies on an imbalance in her ears, but she has not explained why that has any bearing on the complaints in question. In fact, having found that there was no remark made by Mr Whitehouse about using mental health as an excuse, the only factual complaint of disability discrimination concerns the lack of welfare meetings during her illhealth absence in October and November 2021. That is put forward either as an allegation of harassment or a failure to make reasonable adjustments.[104]In either case it is necessary first of all for the employer to know about the condition. It is not necessary to know that it was a disability at the relevant time, only that she had it. It does not seem to be disputed that the company was aware that Miss Mallik was signed off with stress, so this hurdle is overcome, but it is only her mental health which is relevant. There is nothing to show that they were aware of her other conditions at the time and of course there were no occupational health reports. She did not suggest to any of the respondent’s witnesses that they knew about her other health matters, and again I saw no reference to them in her correspondence.[105]Was the lack of welfare contact out of the ordinary, perhaps suggesting that her mental health was a factor, so as to call for a further explanation from the respondent? There is some circularity about that – the suggestion that she was not supported because she was ill.[106]Working relations were, it appears to me, in a parlous state by about August 2021, if not earlier, when the rather anguished email was sent by Mr Tancred to the effect that he did not think there was much more he could take. That was before the significant row with Mr Farmer that led to her absence. In those circumstances, I accept Mrs Patel’s explanation that there was really no one who could have maintained welfare contact with her during this period of about two months. Even if someone could have been found, someone willing to take the risk of being dragged into this controversy, the explanation given seems perfectly satisfactory. The burden of proof on this issue does not shift to the respondent.[107]I note too that there was an earlier period of sickness absence in 2020 after which Mrs Mallik also complained about the lack of welfare contact, but in both cases, there was no request for welfare meetings at the time, only complaints afterwards.[108]During the second absence, Miss Mallik was in contact with people at work, and in particular with Ms Tysoe, whom she met in London to discuss her grievance. I cannot see that she expressed any concern about lack of contact. Hence, I am not satisfied that Miss Mallik was genuinely interested in such welfare contact at the time and so its absence did not in any way violate her dignity or otherwise meet the test of harassment, as set out in the list of issues. Page 22 of 25[109]Although this allegation is also now raised as a failure to make reasonable adjustments, the fact is that there was a general practice of having such welfare meetings - usually by telephone – so this is not a case of the company having a practise which disadvantaged her, it is more an assertion that the company was not following its own practice in her case. That might be a complaint of harassment or direct discrimination, but it does not appear to be one of failure to make reasonable adjustments. In any event I am satisfied that the company acted reasonably in the circumstances. Unfair Dismissal[110]The final, and principal claim is of unfair dismissal. This important right is set out in s.94 Employment Rights Act 1996 (ERA), and by s.98 the employer has first to show a fair reason for the dismissal. Subsection (2) lists the main ones – conduct, capability, redundancy or illegality, and subsection (1) states: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[111]This reference to ‘some other substantial reason’ therefore recognises that not all situations can be covered by the main categories. But it has to be something of equivalent weight and seriousness. Various cases have warned against allowing an employer simply to say that the working relationships have broken down and so the employee has to go. For example, in Leach v Office of Communications 2012 ICR 1269, CA, Lord Justice Mummery held that ‘breakdown in trust and confidence’ is not a convenient label to stick on any situation in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is unavailable or inappropriate.[112]Here, however, I am perfectly satisfied that there was a near total breakdown in working relations. It was not a case of the company feeling let down by Miss Mallik. Other people were not prepared to continue to work with her. Without wishing to repeat all the concerns raised, they came from many of her colleagues, and they found her aggressive and unmanageable. She was, for example, entirely unwilling to accept that she was not entitled to overtime in the way she had been doing, no matter who told her otherwise or how senior they were. That is not a sustainable state of affairs. Indeed, the company could have taken a much firmer line with her. The door-slamming and abusive comments alleged by Mr Farmer Page 23 of 25 could, for example, have been investigated as acts of gross misconduct. So, on any view, there was a substantial reason for the dismissal.[113]That is not the end of the matter, however. By s.98(4): “… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) —(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[114]Clearly this is a very large organisation, with an expert HR department, and so a high level of fairness is to be expected. The main challenge however is not to the procedure followed, but to the honesty and integrity of those involved.[115]The main considerations in deciding whether the employer acted reasonably are those which were considered in the Whitehouse report and by Mr O’Neill. Again, the first and foremost is mediation. It clearly was considered, and urged on Miss Mallik throughout 2022, from at least the meeting that she had in London with Ms Ashcroft in February and then all the way through to the final hearing with Mr O’Neill in December.[116]Another possibility might have been redeployment, but this too was ruled out by Miss Mallik. Arguably the company could have insisted on this but their reluctance to do so is hardly something that Miss Mallik can complain about, and I accept that it would have stood little chance of success, given her opposition. Essentially that left them with no alternative but dismissal.[117]It is difficult to elaborate the point any further. The difference between the parties is stark. Miss Mallik remains of the view that there had been no breakdown in working relations and no toxic atmosphere. It is difficult to understand how she can remain of that view, given the evidence presented. My own view is that the various managers approached her concerns with exemplary patience and thoroughness, arguably at the expense of some of her colleagues, who were less well supported.[118]I have given consideration to the lack of an effective appeal, but again the reasons for that situation are abundantly clear. It might have been better to insist that her concerns were dealt with at a lower level before they were referred to Mr Whitehouse but that was not of course something that Miss Mallik complained of and it was her choice to escalate matters at every stage. Once again, if anything, Page 24 of 25 the company was too accommodating. The fairness of the decision has to be viewed in the round and considered against the background of the wealth of meetings at a senior level which had gone on for over a year by that point, it would be quite artificial to conclude that the lack of an appeal rendered the decision unfair. Accordingly, all of the complaints are dismissed.[119]Having reached that conclusion, and having regard to the length of this decision, I shall only say a brief word about time limits. For the allegations raised in the second claim, any act or omission before 24 December 2021 is out of time. Hence, any of the events that predated the period of special leave are in that category. That includes most of the claims for wages or breach of contract, including the overtime which was refused by Mr Farmer and travel to London on 14 October 2021. Given that Miss Mallik brought her first claim in June 2021, it was clearly reasonably practicable – the test for claims brought under the Employment Rights Act 1996 - for her to have done so earlier, and those claims are out of time.[120]No reason has been suggested as to why it would be just and equitable to extend time for the discrimination claims – which is the test for claims brought under the Equality Act 2010 - and I cannot see any, so the allegations concerning a lack of welfare contact and the decision to place her on special leave are also out of time. Other complaints are in time, but unfounded.